:■ CORNELL UNIVERSITY LIBRARY Cornell University Library E666 .J66 1868a + Supplement to The Congressional globe 3 1924 030 917 789 olin Overs 5\\ '^ «u Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030917789 SUPPLEMENT TO THE CONGRESSIONAL GLOBE: CONTAINING -4 THE PROCEEDINGS OF THE SENATE BITTING FOB THE TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES. FORTIETH CONGRESS SECOND SESSION. WASHINGTON CITY: PUBLISHED BY F. & J. EIVES & GEORGE A. BAILEY, REPORTERS AND PRINTERS OF THE DEBATES OF CONGRESS. 1868. r X^>' ^S4-7 Entered according to Act of Congress, in the year 1868, by F. «!k J. Rites & Geo. A. Bailey, In the Clerk's office of the Supreme Court of the District of Columbia. WITNESSES. FOR THE PROSECUTION. Name. Subject. Page. Blodgett, Foster „ Suspension from office 122 Burleigh, Walter A Conversations with Thomas 69 Chandler, William E..^ , Drawing money from Treasury 85 Chew, Robert S ...Form of commissions 115 Clephane, James President's speech, Aug. 18, 1866 94, 97 Creecy, Charles E Form of commission 54, 119 Dear, Joseph A President's St. Louis speech 113 Emory, William H Conversations with President; troops 78 Ferry, Thomas W...., " Demand of War Office ~ 78 Hudson, William N ] President's Cleveland speech 100 Jones, J. W Service of Senate resolution 54 Karsner, George W Conversations witli Thomas 75, 78 McDonald, William J.../. Service of Senate resolutions 54 McEwen, Daniel C .t President's Cleveland speech „ 104 Moore, William G Corrections President's speech, Aug. 18, 1866 97 Moorhead, James K Demand of War Office 58 Sheridan, James B President's speech, Aug. 18, 1866 93, 96 Smith, Francis H President's speech, Aug. 18, 1866 96 Stark, Everett D.a President's Cleveland speech 105 Tinker, Charles A . f Telegrams 39, 93, 96 Van Horn, Bart > Demand of War Office 56 Walbridge, L. L President's St. Louis speech Ill Wallace, George W Conversations with President; troops 84 Wilkeson, Samuel Conversations with Thomas , 74 Wood, H Interview with President 122 FOR THE DEFENSE. Able, Barton President's St. Louis speech 11 Armstrong, William W President's Cleveland speech 210 Clarke, D. W. C Nomination of Mr. Ewing 175 182 Cox, Walter S Test case 197 Knapp, George President's St. Louis speech 212 Meigs, R. J Arrest of Thomas 106 173 Merrick, Richard T Case of Thomas ; habeas corpus 204 Moore, William G ". Nomination of Mr. Ewing A-i 182 Perrin, Edwin O Conversations with President 206 Randall, Alexander W Foster Blodgett's case 235, 239 Seward, Frederick W Practice in appointments 220 Sherman, William T Tender of War Office 150, 163, 169 Thomas, Lorenzo Appointment; acts; conversations 136, 147 Welles, Edgar T Form of commission; troops 235 Welles, Gideon Troops; Cabinet counsels 221 Zider, Henry F President's St. Louis speech 213 For analysis of testimony, see Index : title, Witnesses. Ill INDEX TO SUPPLEMENT. A. Able, Barton — see Witnesses. Acquittal on Article XI 412 II 414 III 415 judgment of, entered 415 Adjournment sine die 415 Admissibility of testimony — see Evidence. Alta Vela letter- remarks on, by — Man'r Butler 335, 337, 341, 342, 343 Mr. Nelson 336, 337, 341, 342, 343, 350 Man'r Logan 337 Answer, application of Counsel for forty days to prepare 6 discussed by— Man'r Bingham 7, 8 Mr. Curtis 7 Mr. Stanbery 6, 7 Man'r Wilson 7 denied 8 orders offered fixing day for respondent to file, by — Mr. Edmunds 8 Mr. Drake 12 Mr. Trumbull 12 order that respondent file, on or before 23d of March — [By Mr. Trumbull. ] offered and agreed to 12 read and filed 12 exhibits accompanying — A. message of President, March 2, 1867, returning with objec- tions the tenure-of-office bill 18 B. message of President, Dec. 12, 1867, announcing suspen- sion of Secretary Stanton 19 C. address to President, by Hon. Reverdy Johnson, Aug. 18, 1866, communicating proceedings of National Union Convention 22 Anthony, Henry B., a Senator from Rhode Island — remarks by 82, 83, 99, 121, 158, 160, 162, 210, 233, 242, 246, 247, 250, 350, 379, 406, 407, 408, 411 Application of Counsel for forty days to prepare answer 6 denied 8 for thirty days to prepare for trial 23 denied (yeas 12, nays 41) 27 for three days to prepare proofs 120 granted 121 for adjournment in consequence of illness of Mr. Stanbery 174 Argument, right of counsel making motion to open and close, thereon 26 final, orders offered to fix the number and order of speakers on, by- Man'r Bingham 147 Mr. Frelinghuysen 147, 160 Mr. Sumner 160, 162, 174 Mr. Sherman 161, 247, 248 Mr. Conness :..'. 175, 248, 250 Mr. Doolittle 175 final, orders offered to fix the number and order of speakers, on by- Mr. Stewart 247 Mr. Vickers 247, 248 Mr. Johnson..- 248 Mr. Corbett 248 Mr. Henderson 249 Mr. Trumbull 250 Mr. Buckalew 250 Mr. Cameron 250 Mr. Yates 250 Argument — Continued. order that as many of Managers as desire be permitted to file, or address Senate orally, the conclusion of oral argument to be by one Manager — [By Mr. Trumbull.] offered, 250; amended, 250; adopted, 251; (yeas 28, nays 22.) on the case by — Man'r Butler 29 Mr. Curtis 123, 130 Man'r Logan 251 Man'r Boutwell 208, 279 Mr. Nelson 294 Mr. Groesbeck 310- Man'r Stevens 320 Man'r Williams 324, 331 Mr. Evarts S37, 343, 351, 301 Mr. Stanbery 308, 371 Man'r Bingham 379, 388, 398 Armstrong, William W.- — see Witnesses. Articles of impeachment exhibited by House of Representa- tives 3 vote on the — see Question. B. Bayard, James A., a Senator from Delaware — order by — that no Senator shall speak more than once, nor to exceed thirty minutes, during deliberations on final question: offered and rejected, 320; (yeas 16, nays 34.) remarks by 249, 320 Bingham, John A., of Ohio, a Manager, Chairman — motions by — that upon filing replication the trial proceed forthwith: offered and rejected, 8; (yeas 25, nays 26.) to amend Rule XXI, so as to allow such of Managers and Counsel as desire to be heard to speak on final argu- ment '. 147 argument by — on application of Counsel for forty days to prepare an- swer 7, 8 for thirty days to prepare for trial 23, 26 on motion to fix a day for trial to proceed 11 on right of Managers to close debate on interlocutory ques- tions 26 on authority of Chief Justice to decide questions of evi- dence 61, 62 on order in regard to rule limiting argument 147, 174 on right of Counsel to renew examination of a witness recalled by court 171, 172 on admissibility — of Adjt. Gen. Thomas's declarations to Mr. Burleigh, Feb. 21, 1868 08, 70 of Adjt. Gen. Thomas's declarations to clerks of War De- partment 72 of President's letter to Gen. Grant, unaccompanied with inelosures 82 of appointment of Edmund Cooper to be Assistant Secre- tary of the Treasury 87 of President's declarations to Adjt. Gen. Thomas, Feb- ruary 21 139 of President's declarations to Adjt. Gen. Thomas, prior to March 9 , 141 of question, Whether Gen. Sherman gave President an opinion, &c 163, 165 of President's message to Senate, Feb. 24 176, 177 final, on the case ,.379, 388, 398 Blodgett, Foster — see Witnesses. VI INDEX TO SUPPLEMENT. Bontwell, George S., of Massachusetts, a Manager — argument by — on application of Counsel for thirty days to prepare for trial, 26 on authority of Chief Justice to decide questions of evi- dence 61, 62 on admissibility — of telegrams relating to the reconstruction of Alabama 91 of extracts from records of Navy Department 185 final, on the case > 268, 270 remarks on the case of the removal of Timothy Pickering 120 on motion relating to number of speakers on final argument. ..... 246 Brief of authorities upon the law of impeachable crimes and mis- demeanors — \ By Hon. William Lawrence, M. C, of Ohio], 29, 41, 843 Buekalew, Charles R., a Senator from Pennsylvania — order by — that the conclusion of the oral" argument be by one Manager, as provided in Rule XXI : offered and agreed to, 250. prescribing form of final question : offered, 409. that the views of Chief Justice on the form of putting final question be eutered on the Journal: offered and agreed to, 409. remarks by 147, 242, 247, 248, 250, 409, 410, 412, 413 opinion on the case 510 Burleigh, Walter A. — see Witnesses. Butler, Benjamin F., of Massachusetts, a Manager — argument by — ■ on motion to fix a day for trial to proceed 8 on application of Counsel for thirty days to prepare for trial... 27 opening, on me case. 29 on authority of Chief Justice to decide questions of evi- dence 59, 00, 61 on right of Counsel to renew examination of a witness re- called by court 171 on admissibility — of Adjt. Gen. Thomas's declarations to Mr. Burleigh, Feb. 21, 1808 59, 63, 65, 66, 70 to clerks of War Department 71 of appointment of Edmund Cooper to be Assistant Secretary of the Treasury 86, 87, 88 of telegrams relating to the reconstruction of Alabama. ..90, 91 of Chronicle's report of President's speech in reply to Hon. Reverdy Johnson 95, 96 of Leader's report of President's speech at Cleveland. ..106, 107 of President's declarations to Adjt. Gen. Thomas, Feb. 21, 137, 138 of President's declarations to Adjt. Gen. Thomas, prior to March 9, as to use of force 141 of conversations between President and Gen. Sherman, Jan. 14 151, 152, 153, 154, 155, 156 of question respecting Department of the Atlantic 157 of tender of War Office to Gen. Sherman 157, 158 of President's purpose to get the question before the courts, 158, 159 of question, Whether Gen. Sherman formed and gave Pres- ident an opinion, &c 163, 164, 165 of affidavitand warrant of arrest of Lorenzo Thomas 167, 168 of President's message to Senate. Feb. 24 175, 176, 177 of extracts from records of Navy Department, 183, 184, 185, 186 of employment of counsel by President to get up a test case 197, 198, 199, 200 of President's declarations to Mr. Perrin, Feb. 21 206, 207 to Secretary Welles 222, 224 of advice to President by his Cabinet touching the constitu- tionality of the tenure-of-office act 225, 220 of advice to President by his Cabinet touching construction of tenure-of-office act 231, 232 of Cabinet consultations in regard to obtaining a judicial decision, &c 233 of papers in Mr. Blodgett's case 241, 242 remarks on application of Counsel for adjournment 208 on motion relating to number of speakers on final argument, 102 on the Alta Vela letter 335, 337, 341, 342, 243 Cameron, Simon, a Senator from Pennsylvania — order by — that all the Managers and Counsel be permitted to file argu- ments by'eleven o'clock to-morrow : offered and rejected, 250 that the Senate hereafter hold night sessions from eight until eleven p. ra. ; offered, 342 ; tabled, 351 ; (yeas 32, nays 17.) remarks by 62, 80, 89, 121, 209, 242, 250, 337, 342, 400, 407, 410, 412, 415 questions by 89 Cattell. Alexander G., a Senator from New Jersey — opinion on the case 523 Chandler, William E. — see Witnesses. Chandler, Zachariah, a Senator from Michigan — remarks by 225, 410 Chew, Robert S. — see Witnesses. Chief Justice, oath administered to ■• „ casting vote given by ; — ....-;• "A s * resolution denying authority of, to vote on any question during the trial — [By Mr. Sumner."] offered, 63; rejected, 63; (yeas 22, nays 20.) order denying privilege of, to rule questions of law — [By Mr. Drake.] offered and rejected, 63; (yeas 20, nays 30.) order denying authority of, to give casting vote— [By Mr. £>\im- ner.] offered and rejected, 63 ; (yeas 21, nays 27.) order that the ruling of the, upon all questions of evidence shall stand as the judgmentof the Senate unless a formal vote be asked, &c.— [By Mr. Henderson.] offered and agreed to, 63 ; (yeas 31, nays 19.) views of, on form of putting final question 409 Clarke, D. W. C— see Witnesses. Clephane, James 0.— see Witnesses. Cole, Cornelius, a Senator from California— remarks by 166,409 Competency — see Evidence. Conkling, Roscoe, a Senator from New York — orders by— . ,, , . , ., that Rule XXIII be amended by inserting "subject to the operation of Rule VII :" offered and agreed to, 6. that, unless otherwise ordered, trial proceed immediately after replication filed: offered, 10 ; agreed to, 11 ; (yeas 40, nays 10.) that Senate commence the trial 30th of March instant: agreed to, 28; (yeas 28, nays 24.) prescribing form of final question : offered, 409. that Senate will now proceed to vote on remaining articles: rejected, 413 : (yeas 26, nays 28.) remarks by 6, 8, 10. 11, 28, 61, 70, 71, 79, 82, 89, 92, 99, 107, 117,121, 127, 147, 160, 162, 165, 170, 175, 185, 224, 225, 233, 238, 248, 279, 310, 315, 341, 346, 350, 356, 406, 407, 408, 409, 412, 413, 414 questions by ■ •• 165 Conness, John, a Senator from California — orders by — that Rule XXI be amended to allow as many of Managers and Counsel to speak on final argument as choose, four days to each side to be allowed, and Managers to open and close: offered and rejected 175; (yeas 19, nays 27.) that hereafter Senate meet at eleven a. m. : offered and adopted, 209; (yeas 29, nays 14.) that such of Managers and Counsel as choose have leave to file arguments before April 24: offered and disagreed to, 248; (yeas 24, nays 25.) that two of Managers be permitted to fiie printed or written arguments before to-morrow noon: amendment offered, 249. prescribing form of final question : offered, 409. remarks by 12, 55, 62, 70, 82, 89,92, 98. 107, 120, 121, 136, 151, 163, 168, 169, 170, 174, 175, 195, 202,203, 208, 209, 222, 224, 227, 233, 235. 238, 242. 247, 248, 249, 250, 274, 387, 388, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415 questions by 242 Conversations — see Evidence; Witnesses. Corbett, Henry W., a Senator from Oregon — order by — that two of Counsel have the privilege of filing a written, or making an oral address, &c. : amendment offered, 248; withdrawn, 249. remarks by 248, 249, 250 Counsel for respondent.... 6, 11 Cox, Walter S. — see Witnesses. Cragin, Aaron H., a Senator from New Hampshire — remarks by 224 Creeey, Charles E. — see Witnesses. Curtis, Benjamin R., of Massachusetts, Counsel — motion by — for an allowance of three days to prepare proofs 121 granted 121 argument by — on application for forty days to prepare answer 7 for time to prepare proofs 120, 121 opening, for the defense 123, 130 on admissibility — of Adjt. Gen. Thomas's declarations to Mr. Burleigh, Feb. 21, 1808 67 of President's letter to Gen. Grant, unaccompanied with inclosures 82 of telegrams relating to the reconstruction of Alabama 91 of President's message to Senate, Feb. 24 176 of extracts from records of Navy Department 183, 184, 185, of employment of counsel by President to get up a test case 109^ oqq of President's declarations to Secretary Welles 223 of advice to the President by his Cabinet touching the con- stitutionality of the tenure-of-office act 226, 227, 280, 231 INDEX TO SUPPLEMENT. VII D. Pavis, Garrett, a Senator from Kentucky — order by — that a court of impeachment cannot be legally formed while Senators from certain States are excluded : offered and lost, 12; (yeas 2, nays 49.) remarks by 12, 159, 109, 172, 331, 342, 406, 410, 411 opinion on the case 438 Dear, Joseph A. — see Witnesses. Declarations — see Evidence; Witnesses. Documents — see Evidence. Doolittle, James R., a Senator from Wisconsin — order by — that on final argument Managers and Counsel Bhall alternate, . two and two, the Managers to open and close: offered and indefinitely postponed, 175; (yeas 34, nays 15.) remarks by 77, 92, 159, 175, 202, 209, 247, 249, 412, 413 opinion on the case 515 Drake, Charles D., » Senator from Missouri — orders by — that respondent file answer on or before 20th March : agreed to, 12; (yeas 28, nays 20;) reconsidered, 12; (yeas 27, nays 23.) that Chief Justice presiding has no privilege of ruling ques- tions of law on the trial, but all such questions should be submitted to the Senate alone: offered and rejected, 63; (yeas 20, nays 30.) that votes upon incidental questions shall be without a division, unless requested by one fifth of members present or pre- siding officer : (amendment to Rule VII.) offered, 77; agreed to, 92. that any Senator shall have permission to file his written opin- ion at the time of giving his vote : offered and rejected, 408 ; (yeas 12, nays 38.) that the fifteen minutes allowed by Rule XXIII, shall be for the whole deliberation on the final question, and not to the final question on each article: offered, 408; adopted, 409. remarks by 11, 27, 59, 61, 63, 70, 71, 77, 82, 85, 92, 93, 98, 107, 110. 140, 157, 158, 159, 160, 162, 166, 169, 170, 173, 174, 175, 178, 200, 218, 227, 231, 232, 274, 310, 407, 408, 410, 412, 413, 415 E. Edmunds, George F., a Senator from Vermont — orders by — that answer be filed April 1, replication three days there- after, and the matter stand for trial April 6, 1868: offered, 8. that when doors shall be closed for deliberation upon final • question, the official reporters shall take down the debates to be reported in the proceedings : offered, 294; not inde- finitely postponed, 310; (yeas 20, nays 27;) read, 320, 407 ; tabled, 407; (yeas 28, nays 20.) that the standing order of the Senate that it will proceed at twelve o'clock noon to-morrow to vote on the articles be rescinded — [May 11, 1868:] offered, 410; agreed to, 410. remarks by 8, 28,29, 70, 71, 92, 110, 111. 127, 147, 170, 174, 175, 185, 198, 227, 247, 250, 251, 294, 310, 320, 337, 393, 406, 407, 408, 409, 410, 411, 413 questions by 185, 198 opinion on the case 424 Emory, William H. — see Witnesses. Evarts, William M., of New York, Counsel — motions by — that after replication filed, Counsel be allowed such reasonable time as shall now be fixed to prepare for trial : offered, 27. for an adjournment in consequence of illness of Mr. Stanbery, 174 argument by — on application for thirty days to prepare for trial' 23, 24 on authority of Chief Justice to decide questions of evi- dence 62 on motion to remove limit as to number of speakers on final argument 162 on right of counsel to renew examination of a witness recalled by court 171, 172 on admissibility — of Adjt. Gen. Thomas's declarations to Mr. Burleigh, Feb. 21, 1868 70 of Adjt. Gen. Thomas's declarations to clerks of War Department 71, 72 of President's letter to Gen. Grant, unaccompanied with inclosures 82 of appointment of Edmund Cooper to be Assistant Secre- tary of the Treasury 86, 88 of telegrams relating to the reconstruction of Alabama... 90, 91 of Chronicle's report of President's speech in reply to Hon. Reverdy Johnson 95, 96 of Leader's report of President's speech at Cleveland. ..100, 107 of President's declarations to Adjt. Gen. Thomas, Feb. 21, 139 prior to March 9 141 of President'sconversationswith Gen. Sherman, Jan. 14, 153,155 of tender of War Office to Geu. Sherman 157, 158 Evarts, William M., of New York, Counsel — Continued. argument by— on admissibility — of question, Whether Gen. Sherman gave President an opinion, &c 104, 165 | of affidavit and warrant of arrest of Lorenzo Thomas... 107, 168 of President's message to Senate, Feb. 24 176, 177 of extracts from records of Navy Department 155 of employment of counsel by President to get up a test case 198, 200 of President's declarations to Mr. Perrin 207 to Secretary Welles 223, 224, 225 of advice to President by his Cabinet touching the consti- tutionality of the tenure-of-office act 226 touching the construction of the tenure-of-office act. ..231, 232 of Cabinet consultations in regard to obtaining a judicial decision, &c 233 of papers in Mr. Blodgett's case 240, 241, 242 final, on the case 337, 343, 351, 361 remarks announcing illness of Mr. Stanbery 174, 175 on order in regard to rule limiting argument 174, 175, 246, 249 on application for adjournment .....208, 209 Evidence, question, Whether objections to, should be decided by Chief Justice, or in first instance be submitted to the Senate — [By Mr. Drake] 59 discussed by — Man'r Butler 59, 60, 61 Man'r Bingham 61, 62 Man'r Boutwell 01, 62 Mr. Evarts 62 presiding officer may rule all questions of, which rulingshall stand as the judgment of the Senate, unless a vote be asked, &c; or he may, in first instance, submit such questions to the Senate — [By Mr. Henderson] — agreed to 63 ; (yeas 31, nays 19.) admissibility of — declarations of Adjt. Gen. Thomas, Feb. 21, as to the means by which he intended to obtain possession of the War De- partment : Objected toby Mr. Stanbery) 59, 63 discussed by — Man'r Butler ....59, 63, 65, 60, 70 Mr. Stanbery 59, 64, 05, 00, 70 Mr. Curtis 67 Man'r Bingham 08, 70 Mr. Evarts 70 admitted, 71 ; (yeas 39, nays 11.) declarations of Adjt. Gen. Thomas to clerks of War Department, antecedent to his appointment as Secretary of War ad interim, as to his intention when he came in command: (objected to by Mr. Evarts) 71 discussed by — Mr. Evarts 71, 72 Man'r Butler 71 Man'r Bingham 72 admitted, 72: (yeas 28, nays 22.) letter of President to Gen. Grant, Feb. 10, 1868, unaccom- panied by other letters referred to therein : (objected to by Mr. Stanbery) 81 discussed by — Mr. Stanbery 81, 82 Man'r Wilson 81, 82 Mr. Evarts 82 Man'r Bingham 82 Mr. Curtis , 82 objection not sustained, 83 ; (yeas 20, nays 29.) appointment of Edmund Cooper, Private Secretary of Presi- dent, as Assistant Secretary of the Treasury : (objected to by Mr. Stanbery and Mr. Evarts) 86 discussed by — Mr. Evarts 80, 88 Man'r Butler 87, 88 Mr. Stanbery 87, 88 Man'r Bingham /. 87 not received, 89 ; (yeas 22, nays 27.) telegrams between President and Lewis E. Parsons, Jan. 17, 1867, in relation to constitutional amendment and recon- struction of Alabama : (objected to by Mr. Stanbery) 90 discussed by — Man'r Butler 90, 91 Mr. Evarts .' 90, 91 Mr. Stanbery 91 Mr. Curtis 91 Man'r Boutwell 91 admitted, 92; (yens 27, nays 17.) Chronicle report of President's speech, Aug. 18, 1866, in reply to Hon. Reverdy Johnson : (objected to by Mr. Evarts).... 95 discussed by — Mr. Evarts 95, 9G Man'r Butler 95,96 withdrawn 96 VIII INDEX TO SUPPLEMENT. Evidence — Continued. admissibility of — Leader's report of President's speech at Cleveland, Sept. 3, 1866: (objected to by Mr.Evarts) discussed by — ■ Mr. Evarts 106, Man'r Butler 106, '^admitted, 107 ; (yeas 35, nays 11.) declarations of President to Adjt. Gen. Thomas, Feb. 21, 1868, after order for removal of Mr. Stanton, to show an absence of purpose to use force: (objected to by Man'r Butler) discussed by — Man'r Butler 137, Mr. Stanbery ■ Mr. Evarts Man'r Bingham admitted, 140; (yeas 42, nays 10.) declarations of President to Adjt. Gen. Thomas prior to 9th of March, in respect to use of force to get possession of the War Office : (objected to by Man'r Butler) discussed by — Man'r Butler Mr. Evarts Man'r Bingham admitted conversations between the President and Lieut. Gen. Sherman, Jan. 14, 1868, in regard to removal of Mr. Stanton : (objected to by Man'r Butler) discussed by — Mr. Stanbery 151, 152, 153, Man'r Butler 151, 152, 153, 154, 155, Mr. Evarts 153, Man'r Wilson not admitted, 159; (yeas 23, nays 28.) question in regard to the creation of the department of the Atlantic : (objected to by Man'r Butler) discussed by — Man'r Butler w Mr. Stanbery : not admitted....: tender to Gen. Sherman of appointment as Secretary of War ad interim: (objected to by Man'r Butler) discussed by — Man'r Butler 157, Mr. Evarts Mr. Stanbery admitted question. Whether at the first offer of the War Office to Gen. Sherman anything further passed in reference to the tender or acceptance of it : (objected to by Man'r Butler) ; discussed by — Man'r Butler Mr. Evarts ." not admitted, 158; (yeas 23, nays 29.) President's declaration of purpose of getting Mr. Stanton's right to office before the courts : (objected to by Man'r Butler) discussed by — Man'r Butler 158, Mr. Stanbery ". not admitted, 159 ; (yeas 7, nays 44.) President's declaration of purpose in tendering Gen. Sher- man the appointment of Secretary of War ad interim: (objected to by Man'r Bingham) not admitted, 160; (yeas 25, nays 27.) President's declarations to Gen. Sherman in reference to the use of threats or force to get possession of the War Office : (objected to by Man'r Butler) not admitted question. Whether Gen. Sherman gave President an opinion as to advisability of a change in the War Department: (objected to by Man'r Butler) discussed by — Man'r Bingham 163, Mr. Stanbery 163, Man'r Butler 163, 1G4, Mr. Evarts 164, not admitted. 106; (yeas 15, nays 35.) advice to President to appoint some person in place of Mr. Stanton: (objected to by Man'r Butler.) not admitted, 166; (yeas 18, nays 32.) affidavit of Edwin M. Stanton and warrant of arrest of Lorenzo Thomas: (objected toby Man'r Butler) ' discussed by — Man'r Butler 167, Mr. Evarts 167, Mr. Stanbery , 167, admitted, 108; (yeas 34, nays 17.) 100 107 107 137 138 138 139 139 141 141 141 141 141 151 154 156 155 156 157 157 157 157 157 158 157 157 158 158 158 158 158 159 158 159 1G0 100 103 105 105 105 105 166 167 168 108 168 Evidence — Continued. admissibility of — . question, Whether President stated to Gen. Sherman his pur- pose in tendering him the office of Secretary of War ad interim: (objected to by Man 'r Bingham) 169 admitted. 169; (yeas 26, nays 22.) President's declaration of purpose in tendering Gen. Sherman the office of Secretary of War ad interim : (objected to by Man'r Bingham) 169 admitted, 170: (yeas 20, nays 25.) message of President to Senate, Feb. 24, 1868, in response to Senate resolution of Feb. 21, 1868 : (objected to by Man'r Butler) 175 discussed by — Mau'r Butler 175, 176, 177 Mr. Curtis 176 Mr. Evarts 176, 177 Man'r Bingham 176, 177 not admitted 178 extraets from records of Navy Department, exhibiting practice in respect to removals: (objected to by Man'r Butler) 183 discussed by — Man'r Butler 183, 184, 185, 186 Mr. Curtis 183, 184, 185 Mr. Evarts 185 Man'r Boutwell 185 admitted, 186 ; (yeas 36, nays 15. ) employment of counsel by President to raise the question of Mr. Stanton's right to hold the office of Secretary of War against the authority of President: (objected to by Man'r Butler) 197 discussed by — Man'r Butler 197, 198, 199, 200 Mr.Evarts 198, 200 Mr. Curtis 199, 200 Man'r Wilson 199 admitted, 200; (yeas 29, nays 21.) acts toward getting out a habeas corpus in the case of Lorenzo Thomas: (objected toby Man'r Butler.) 201 admitted, 201 ; (yeas 27, nays 23.) acts, after failure to obtain a habeas corpus in pursuance of President's instructions, to test the right of Mr. Stanton to continue in office : (objected to by Man'r Butler) 1 202 admitted, 203 ; (yeas 27, nays 23.) declarations of the President to Mr. Perrin, Feb. 21, 1868, in reference to the removal of Mr. Stanton, and the nomination of a successor: (objected to by Man'r t Butler) 206 discussed by — Man'r Butler 206, 207 Mr. Evarts 207 Man'r Wilson 207 not admitted, 208 ; (yeas 9, nays 37.) President's declarations to Secretary Welles, Feb. 21, in rela- tion to the removal of Mr. Stanton: (objected to by Man'r Butler) 222 discussed by — ■ Man'r Butler 222, 224 Mr. Evarts 223, 224, 225 Mr. Curtis v 223 admitted, 225; (yeas 26, nays.23.) advice to President by his Cabiuet touching the constitutional- ity of the tenure-of-ofhce act: (obected to by Man'r Butler) 225 discussed by — Man'r Butler 225, 226 Mr. Evarts 226 Mr. Curtis 226, 227,' 230 j 231 Man'r Wilson 227 not admitted, 231 (yeas 20, nays 29.) advice to President by his Cabinet in regard to the construc- tion of the teuure-of-office act, and in regard to its appli- cation to the Secretaries appointed by President Lin- coln: (objected to by Man r Butler) 231 discussed by — Mr. Evarts 231 232 Man'r Butler 23l' 232 not admitted, 232; (yeas 22, nays 26.) Cabinet consultations in regard to obtaininga judicial decis- ion on the constitutionality of the tenure-of-office act: (objected to by Man'r Butler) 233 discussed by — Man'r Butler 233 Mr. Evarts * 233 not admitted ; (yeas 19, nays 30,) *..." 233 question, Whether any suggestions were made in Cabiuet looking to the vacation of any office by force: (objected to by Man'r Butler) „ ..„ _. 234 not admitted; (yeas 18, nays 20,) .....7.... 234 INDEX TO SUPPLEMENT. IX Evidence — Continued. admissibility of — opinions given to President by Cabinet on question, Whether the Secretaries appointed by President Lincoln were within the provisions of the tenure-of-office act: ob- jected to by Man'r Bingham) 238 not admitted ; (yeas 20, nays 26,).., 238 answer of Foster Blodgett to the Postmaster General's notice of his suspension from the office of postmaster at Augusta, Georgia: (objected to by Mr. Emrts) 240 discussed by — Mr. Evarts 240, 241, 242 Man'r Butler 241, 242 not admitted 242 nominations of Lieut. Gen. Sherman, Feb. 13, 1868, and of Maj. Gen. Geo. H. Thomas, Feb. 21, 1861, to be Generals by brevet: (objected to by Mr. Evarts) 246 not admitted; (yeas 14, nays 35,) 246 Evidence, documentary, for the prosecution — copy of oath of Andrew Johnson, President of the United States, April 15, 1865, with accompanying certificates 51 copy of President Lincoln's message to Senate, Jan. 13, 1862, nominating Edwin M. Stanton to be Secretary of War 51 copy of Senate resolution in executive session, Jan. 15, 1862, consenting to appointment of Edwin M. Stanton to be Secre- tary of War 51 copy of President's message to Senate, Dec. 12, 1867, announc- ing suspension of Edwin M. Stanton from the office of Secre- ' tary of War, and designation of Gen. Grant as Secretary of War ad interim 51 copy of Senate resolution, Jan. 13, 1868, in response to mes- sage of President announcing suspension of Edwin M. Stan- ton, and non-concurring in such suspension 53 copy of Senate order, Jan. 13, 1868, directing Secretary to com- municate copy of non-concurring resolution to President, to Edwin M. Stanton, and to U. S. Grant, Secretary of War ad interim 53 copy of President's message to Senate, Feb. 21, 1868, announc- ing removal of Edwin M. Stanton from office, and designa- tion of the Adjutant General of the Army as Secretary of War ad interim 53 copy of President's order, Feb. 21, 1868, removing Edwin M. Stanton from the office of Secretary of War 53 copy of President's letter of authority to Lorenzo Thomas, Feb. 21, 1868, to act as Secretary of War ad interim, and directing him immediately to enter upon the duties of that office 53 copy of Senate resolution, Feb. 21, 1868, that President has no power to remove the Secretary of War and to designate any other officer to perform duties of that office ad interim 54 copy of Senate order, Feb. 21, 1868, directing Secretary to com- municate copies of foregoing resolution to President, to Secre- tary of War. and to Adjutant General of the Army...... 54 copy of President Lincoln's commission to Edwin M. Stanton as Secretary of War, Jan. 15, 1862 54 commission of Edmund Cooper as Assistant Secretary of Treas- ury, Nov. 20. 1867 55 letter of authority to Edmund Cooper, Dec. 2, 1867, to act as Assistant Secretary of the Treasury 56 copy of General Orders No. 15, Mar. 12, 1868, requiring all orders relating to military operations issued by President or Secretary of War to be issued through the General of the Army 79 copy of Bvt. Maj. Gen. W. H. Emory's commission, July 17, 1866 80 Special Orders No. 426, Aug. 27, 1867, assigning Gen. Emory to command of Department of Washington 80 fcrder of President, Feb. 13, 1868, that Bvt. Maj. Gen. Thomas resume his duties as Adjutant General 80 letter of Gen. Grant, Jan. 24, 1868, requesting to have in writing order given him verbally by President to disregard orders of E. M. Stanton as Secretary of War, &c 80 President's instructions to Gen. Grant, Jan. 29, 1868, not to obey orders from War Department, unless, &c 80 letter of President to Gen. Grant, Feb. 10, 1868, in regard to his having vacated the office of Secretary of War ad interim 81 copy of President's letter of authority to Lorenzo Thomas to act as Secretary of War ad interim 83 copies of order removing Edwin M. Stanton, and letter of au- thority to Gen. Thomas with indorsements thereon, forwarded by President to Secretary of the Treasury for his information, 83 copy of General Orders No. 17, March 14, 1867, requiring all orders relating to military operations to be issued through the General of the Army 83 copy of order of General of the Army, to Gen. Thomas, to resume duties as Adjutant General 85 message ofPresidentcommunicating report of Secretary of State, showing proceedings under concurrent resolution of the two Houses requesting President to submit to Legislatures of States an additional article to the Constitution 92 Evidence, documentary, for the prosecution — Continued. reportof President's speech Aug. 18, 1866, in reply lo Hon Rev- erdy Johnson, as sworn to by Francis II. Smith 99 report of President's speech Aug.'18, 1866, revised by William G. Moore, his Secretary 100 at Cleveland, Sept. 3, 1866, in Cleveland Leader 107 at, Cleveland, Sept. 3, 1866, by D. C. McEwen 108 at Cleveland, Sept. 3, 1866, in Cleveland Herald 109 at St. Louis, Sept. 8, 1866, in Missouri Democrat 112 at St. Louis, Sept, 8, 1866, in St. Louis Times 114 forms of various commissions as issued by President before and after the passage of civil-tenure act 116 list of removals of heads of Departments at, any time by Presi- dent during the session of Senate 117 list of appointments of heads of Depart ments at any time by President without advice and consent of Senate and while Sen- ate was in session , 117 correspondence between President John Adams and Timothy Pickering, May 1800, relating to removal of Mr. Pickering from the office of Secretary of State 118 copy of President John Adams's message, May 12, 1800, nom- inating John Marshall to be Secretary of State in place of Timothy Pickering, removed, and action of the Senate thereon, 119 letter from President, Aug. 14, 1867, notifying Secretary of the Treasury, "in compliance with requirements" of tenure-of- office act, of suspension of Edwin M.Stanton 119 letter of Secretary of the Treasury notifying heads of bureaus, in compliance with requirements of tenure-of-office act, of the suspension of Edwin M. Stanton 120 executive messages of President communicating information of suspension of several officers 120 communication from Secretary of State, Dec. 19, 1867, report- ing to President, in compliance with provisions of tenure-of- office act, the suspension of the consul at Brunai, Borneo 121 copy of letter from Adjt. Gen. Thomas to President, Feb. 21, 1868, reporting delivery of President's communication to Edwin M. Stanton removing him from office, and accepting the appointment of Secretary of War ad interim 123 Evidence, documentary, for the defense — affidavit of Edwin M. Stanton, and warrant of arrest of Lorenzo Thomas, Feb. 22, 1868. 168 docket of entries as to disposition of case of United States tw. Lorenzo Thomas 174 President's nomination of Thomas Ewing, sen., to be Secretary of War, Feb. 22, 1868. 175 copy of Senate proceedings, May 13, 1800, on the nomination of John Marshall to be Secretary of State, in place of Tim- othy Pickering, removed 182 copy of President Tyler's order, Feb. 29, 1844, appointing John Nelson, Attorney General, to discharge the duties of Secretary of State ad interim 182 copy of Senate resolution, March 6, 1844, confirming nomina- tion of John C. Calhoun as Secretary of Siate, vice A. P. Upshur 182 copy of Pres'dent Fillmore's order, July 23, 1850, designating Winfield Scott to act as Secretary of War ad interim 182 copy of Senate resolution, Aug. 15, 1850, confirming nomina- tion of Charles M. Conrad as Secretary of War 182 copy of President Buchanan's order, Jan. 10, 1861, appoint- ing Moses Kelley to be Acting Secretary of the Interior 183 copy of President Lincoln's commission, March 5, 1861, to Caleb B. Smith as Secretary of the Interior , 183 copy of letters of Acting Secretary of the Treasury, Aug. 17, 1842, relating to removal of the collector and appraiser in Philadelphia 183 extracts from records of Navy Department exhibiting practice in respect to removals 188 list of civil officers of Navy Department, appointed for four years under act of. May 15, 1829, and removable at pleasure, who were removed, their terms of office not having expired... 187 copies of documents from State Department, showing practice of Government in removal of officers during the session of Senate, during recess, and covering all cases of vacancy, 188, 195 copies of documents from Post Office Department, showing remoyals of postmasters during session of the Senate and ad interim appointments 191 ■ message of President Buchanan, Jan. 15, 1861, in answer to Senate resolution respecting vacancy in the office of Secretary of War 191 list of persons who discharged duties of Cabinet officers, whether by appointment made in recess and those confirmed by Senate, as well as those acting ad interim or simply acting 192 statement of beginning and ending of each legislative session of Congress from 1789 to 1868 197 copy of President Adams's commission to George Washington, July 4, 1798, constituting him Lieutenant General of the Army 216 tables from Department of the Interior, showing removals of offi- cers, date, name, office, and whether removal was during recess or during session of the Senate 216 INDEX TO SUPPLEMENT. Evidence, documentary, for the defense — Continued. list of consular officers appointed during session of the Senate where vacancies existed when appointments were made 221 form of Navy agents' commission 235 official action of the Post Office Department in removal of Foster Blodgett 236 Evidence, documentary, for the prosecution, in rebuttal — Journal of First Congress, 1774-75, exhibiting report of commit- tee to draft a commission to Gen. George Washington 239 letter of James Guthrie, Secretary of the Treasury, Aug. 23, 1855, as to practice of Government in appointing officers during recess to fill vacancies existing before adjournment 239 copy of indictment in case of Foster Blodgett in district court of the United States for southern district of Georgia 240 list of the various officers in United States affected by ^Pres- ident's claim of right to remove at pleasure and appoint ad interim, their salaries, &c 242 Ewing, Thomas, sen., nomination of, to be Secretary of War 1/5, fa ' ' ' 182, 221, 234 F. Ferry, Orris S., a Senator from Connecticut — orders by — that the hour of meeting be at eleven a. m. , and that there be a recess of thirty minutes each day at two p. m. : offered and rejected, 175; (yeas 24, nays 26.) that tabular statements presented by Man'r Butler be omitted from published proceedings: offered, 209; adopted, 210. remarks by 63, 111, 175 199, 209, 210, 234, 238, 248, 414 questions by 199 opinion on the case 451 Ferry, Thomas W. — see Witnesses. Fessenden, William P., a Senator from Maine — remarks by 59, 89, 110, 111, 156, 248, 249, 312, 406, 407, 410, 411 question by 89 opinion on the case 452 Fowler, Joseph S., a Senator from Tennessee — remarks by 59, 92, 248 Frelinghuysen, Frederick T., a Senator from New Jersey — order by — that as many of Managers and Counsel as shall choose be permitted to speak on final argument: offered and laid over, 147; discussed, 160; tabled, 163; (yeas 38, navslO.) remarks by 63, 147,160, 161, 251, 407 question by 63 opinion on the case 520 G. Grimes, James W., a Senator from Iowa — order by — that hereafter the hour of meeting shall be twelve o'clock m. each day, except Sunday : offered, 279; adopted, 294; (yeas 21, nays 13.) remarks by 6, 26, 61, 98, 104, 201, 234, 236, 248, 249, 250, 279, 320, 337, 356, 370, 406 opinion on the case 420 Groesbeck, William S., of Ohio, Counsel — argument, final, on the case 310 H. Harlan, James, a Senator from Iowa — opinion on the case 435 Henderson, John B., a Senator from Missouri — orders by — that application for thirty days to prepare for trial be post- poned until after replication filed: offered, 27 ; not agreed to, 27; (yeas 25, nays 28.) that presiding officer may rule all questions of evidence, which ruling shall stand as the judgment of the Senate, unless some member shall ask a formal vote, in which case it shall be submitted to the Senate; or he may submit any such ques- tion to a vote in the first instance, (amendment to Rule VII:) offered, 63; agreed to, 63 ; (yeas 31, nays 19.) that, subject to Rule XXI, all the Managers not delivering oral arguments may file written arguments before April 24, and Counsel not making oral arguments may file written arguments before April 27 : offered, 249. remarks by 27, 62, 63, 83, 88, 147, 159, 173, 233, 249, 250, 361, 412, 413, 414 questions by 88, 173, 233 opinion on the case 516 Hendricks, Thomas A., a Senator from Indiana — order by — ■ that trial proceed with all convenient dispatch: amendment offered and agreed to. 28 prescribing form of final question : offered, 409. remarks by 28, 63, 77, 185, 210, 251, 342, 407, 409, 410, 411, 412 opinion on the case 490 Hour of meeting, order fixing, at eleven a. m.-{By Mr. Cannes*.] offered and adopted, 209 ; (yeas 29, nays 14.) c lindav _ order fixing, at twelve o'clock m. each day, except bunciay [By Mr. Grimes.] offered, 279; adopted, 294; (yeas 21, nays 13.) Howard, Jacob M., a Senator from Michigan— ° r tha r t b no~Senator shall speak more than once nor to , exceed fifteen minutes on one question, durmg final ^deliberations . off remarli 91, 173, 224 500 questions by opinion on the case ; Howe Timothv O., a Senator from Wisconsin — remarks by.. y '.12, 160, 166, 170, 174, 201, 202, 247, 250, 342, 408 opinion on the case *" Hudson, William N.— see Witnesses. I. Impeachable crimes, definition of. 29, 41, 343 Impeachment — see Articles. w. Johnson, Andrew, President of the United States — articles of impeachment 3 return of summons 6 called by proclamation 6, 11 appearance entered and counsel named 6 forty days asked to prepare answer 6 answer to articles 12 oath of office, April 15, 1865 51 suspension of Edwin M. Stanton, Secretary of War, and designa- tion of Gen. Grant Secretary 'ad interim communicated to Senate Dec. 12,1867 .- 51 Senate's non-concurrence in, communicated 53 removal of Edwin M. Stanton, Secretary of War, and desig- nation of Lorenzo Thomas Secretary ad interim com- municated to Senate Feb. 21, 1868 53 Senate's denial of power to remove and appoint communi- cated 54 appointment of Edmund Cooper Assistant Secretary of the Treasury _• 55, 56 order that Adjt. Gen. Thomas resume his duties 80 instructions to Gen. Grant not to obey orders from War Depart- ment, unless, &c 80 letter to Gen. Grant in regard to his having vacated the office of Secretary ad interim 81 telegram to Gov. Parsons 90 message communicating report relating to amendment of the Constitution 92 reports of speech Aug. 18, 1866, in reply to Hon. Reverdy John- son 100 at Cleveland, Sept. 3, 1866 107, 108, 109 at St. Louis, Sept. 8; 1866 112, 114 notification to Secretary of the Treasury, Aug. 14, 1867, of the suspension of Mr. Stanton 119 conversations with Gen. Emory 78, 79 with Gen. Wallace 84, 85 with Mr. Wood 122 with Mr. Blodgett 122. 123 with Adjt. Gen. Thomas 137, 140, 142, 143, 146, 149, 150 with Lieut. Gen. Sherman 150, 151, 157, 173 with Mr. Cox 197, 198, 200, 201 with Mr. Merrick 204, 205 with Mr. Perrin 206 with Secretary Welles 221, 222, 234, U35 tender of War Office to Lieut. Gen. Sherman 150, 157, 158 nomination of Mr. Ewing Secretary of War, Feb. 22, 1868 175 instructions to test Lorenzo Thomas's right to office, 200, 201, 204, 205 acquittal on Article XI 412 II 414 III 415 Johnson, Reverdy, a Senator from Maryland — orders by — that trial proceed at the expiration of ten days, unless for causes shown to the contrary : offered, 28. that Senate commence the trial 2d of April: offered, 28. that two of Managers be permitted to file printed arguments, &c. ; amendment offered and adopted, 248. remarks by 6, 11, 26, 27, 28, 51, 53, 54, 55, 59, 70, 71, 79, 83, 88, 90, 98, 103, 107, 118, 119, 120, 121, 130, 147. 159, 162, 166, 168, 169, 170, 171, 173, 174, 175, 183, 184, 185.' 186, 187, 191, 194, 195, 203, 205, 206, 207, 213, 216, 220, 223, 225, 227, 231, 236, 237, 238, 239, 240, 246, 247, 248, 25o! 286, 302, 310, 320, 335, 342,, 350, 379, 406, 409, 410, 411, 412, 413, 415 questions by 70,88,160,109,227 opinion on the case 428 Jones, J. W. — see Witnesses. Judgment of acquittal entered „\ v 415 INDEX TO SUPPLEMENT. XI K. Karsner, George W. — see Witnesses. Knapp, George — see Witnesses. L. Lawrence, William, a Representative from Ohio — brief of authorities upon the law of impeachable crimes, by 29,41, 343 Legislative business — see Practice. List of offices, &c 179 Logan, John A., of Illinois, a Manager — argument by — on application of counsel for thirty days to pr^sare for trial, 23 final, on the case 251 remarks on the Alta Vela letter 337 M. Managers on part of House 6 McCreery, Thomas C, a Senator from Kentucky — motion by 412 McEvven, Daniel C. — see Witnesses. 'IcDonald, William J. — see Witnesses. Meigs, R. J. — see Witnesses; Merrick, Richard T. — see Witnesses. Moore, William G. — see Witnesses. Moorhead, James K. — see Witnesses. Morrill, Justin S., a Senator from Vermont — order by — that the Senate meet on Monday next for the purpose of delib- eration ; and that on Tuesday the Senate proceed to vote without debate on the several articles— each Senator to be permitted to file his written opinion within two days after the vote : offered, 408 ; agreed to, 409. remarks by 127, 331, 408, 409 opinion on the case 474 Morrill, Lot M., a Senator from Maine — order by — that the Senate proceed on Monday next to take the yeas and nays on the articles without debate ; any Senator to have permission to file a written opinion: offered, 408. . remarks by 63, 145, 406, 408, 413, 414 opinion on the case 480 Morton, Oliver P., a Senator from Indiana — remarks by 8, 28, 225, 320, 411 N. Nelson, Thomas A. R., of Tennessee, Counsel — argument by — • on motion to fix a day for trial to proceed 9 on motion to fix the number and order of the speakers on final argument 175, 249 final, on the case *. 294 remarks on the Alta Vela letter 336, 337, 341, 342, 343, 350 O. , Oath administered to Chief Justice 5 to Senators..... 5, 6, 12 Officers, territorial and executive, list of, with their tenures 179 Opinion : order, that each Senator shall be permitted to file, within two days after the vote shall have been taken, his written, to go on the record — [By Mr. Morrill, of Vermont :] offered, 408 ; agreed to, 409. filed by — Mr. Buckalew 510 Mr. Cattell 523 Mr. Davis 438 Mr. Doolittle : : 515 Mr. Edmunds 424 Mr. Ferry 451 Mr. Fessenden 452 Mr. Frelinghuysen 520 Mr. Grimes 420 M» Harlan 435 Mr. Henderson 516 Mr. Hendricks 490 Mr. Howard 500 Mr. Howe 492 Mr. Johnson 428 Mr. Morrill, of Maine 480 Mr. Morrill, of Vermont 474 Mr. Patterson, of New Hampshire 507 Mr. Pomeroy 478 Mr. Sherman 445 Mr. Stewart 433 Mr. Sumner 453 Mr. Tipton 488 Mr. Trumbull _ 417 Mr. Van Winkle 43I Mr. Vickers 4gl Mr. Williams 457 Mr. Wilson 4g0 Mr. Yates ,-, 434 P. Patterson, James W., a Senator from New Hampshire — opinion on the case 507 Patterson, David 'P., a Senator from Tennessee — remarks by 54 Perrin, Edwin O. — see Witnesses. Pomeroy, Samuel C, a Senator from Kansas — remarks by 147, 247, 368, 412 opinion on the case 478 Practice — see Rules. right of counsel making motion to open and close argument ihereon 20 the limitation of argument on interlocutory questions to one hour by Rule XX has reference to the whole number of persons to speak on each side, and not to each person severally 70 it is not in order to call up business transacted in legislative session 99 objections to putting a question to a witness by a member of the court must come from the court itself. 166, 169, 170 but after question is asked, it is competent for Managers to state objections to its being answered 169, 170 it is competent for Senate to recall any witness 169 if Managers desire to cross-examine they must cross-examine before dismissing witness 173 an application for an order of Senate to furnish a statement from its records can only be addressed to Senate in legislative session 194 the general rules of the Senate in its legislative session govern the proceedings of the court, so far as applicable 147, 174 President — see Johnson, Andrew. Q- Question, final, order that when doors shall be closed for deliber- ation upon, the official reporters shall take down debates, to be reported in proceedings — [By Mr. Edmunds.] offered, 294; read, 310, 320 ; tabled, 407; (yeas 28, nays 20.) order, that Senate^proceed to vote on the several articles at twelve o'clock on day after the close of arguments — [By Mr. Sumner.] offered, 310 ; called up, 408. orders prescribing form of, offered by — Mr. Buckalew 409 Mr. Colliding 409 Mr. Conness 409 Mr. Hendricks 409 Mr. Sumner 310, / 409, 410 views of Chief Justice on form of putting .. 409 order that the views of the Chief Justice be entered on the Journal — [By Mr. Buckalew.] offered and agreed to, 409. order that the, be put as proposed by Presiding Officer, and each Senator shall rise in his place and answer "Guilty" or "Not guilty" only — [By Mr. Sumner.] • offered and agreed to, 410. order that the, shall be taken on the eleventh article first, and thereafter on the other ten successively as they stand — [By Mr. Williams.] agreed to, 411 ; (yeas 34, nays 19.) taken on Article XI, 412 ; (yeas 35, nays 19. ) order that the, be now taken on the remaining articles — [By Mr. Conkling.] offered and rejected, 413 ; (yeas 26, nays 28.) Order that the several orders heretofore adopted as to the order of voting on, be rescinded — [By Mr. Williams.] offered and agreed to, 414. taken on Article II, 414 ; (yeas 35, nays 19.) taken on Article lH, 415; (yeas 35, nays 19.) Questions — see Practice. R. Ramsey, Alexander, a Senator from Minnesota — remarks by 92 Randall, Alexander W. — see Witnesses. Replication, read and filed 28 Ross, Edmund G., a Senator from Kansas — motion by 414 Rule VII, order amending, in respect to submitting questions of evidence, &c, to Senate — [By Mr. Henderson.] offered and agreed to, 63; (yeas 31, nays 19.) VII, order amending and requiring votes upon incidental ques- tions to be without a division, unless demanded, &c. — [By Mr. Drake.] offered, 77 ; agreed to, 92. XX, construction of 70 XXI, motion to amend, so as to allow such of Managers or Counsel as desire to be heard to speak on final argument— [By Man'r Bingham] 147 XII INDEX TO SUPPLEMENT. Eule — Continued. XXI, motion to remove limit fixed by, as to the number who may participate in final argument— [By Mr, Frelinghuysen.) offered, 147. discussed by — Man'r Williams 1'60 Man'r Stevens 161 f Man'r Boutwell 162 Mr. Stanbery 102 Man'r Butler , 102 Mr. Evarts 162 tabled, 163; (yeas 38, nays 10.) XXIII, order amending, to subject it to the operation of Rule VII— [By Mr. Conlcling.] offered and agreed to, 6. amendment, that the fifteen minutes allowed by, shall be for the whole deliberation on the final question, and not to the final question on each article — [By Mr. Drake.] offered, 408 ; adopted, 409. Rules — see Practice. of procedure and practice 6 of Senate sitting in legislative session, adopted for guidance of court, as far as applicable 147, 174 Rulings — see Evidence) Practice. S. Senators, oath administered to ..6, 6, 12 Seward, Frederick W. — see Witnesses. Sheridan, James B. — see Witnesses. Sherman, John, a Senator from Ohio — orders by — that trial proceed on 6th of April : offered and discussed, 8. that under the rules all questions other than of order should be submitted to Senate : offered, 62. that additional time allowed by amendment to Eule XXI shall not exceed three hours: offered, 161. that Managers and Counsel have leave to file written or printed arguments before oral argument commences: offered, 247 ; amended, 247 ; disagreed to, 248 ; (yeas 20, nays 26.) that Managers be permitted to file printed or written ments: amendment offered, 248. remarks by 8, 27, 28, 53, 61, 02, 88 161, 162, 175, 184, 185, 186, 194, 201, 202, 224, 225, 247, 248, 274, 310, 341, 368, 383, 393, 406, 407, 408, . . questions by. 88 186 238 opinion on the case 445 Sherman, William T.— see Witnesses. Smith, Francis H. — see Witnesses. Sprague, William, a Senator from Rhode Island- remarks by 156,249, 274 Stanbery, Henry, of Kentucky, Counsel- motions by — for an allowance of forty d;iys to prepare answer, 6; denied, 8. for an allowance of thirty days to prepare for trial, 23 ; denied, 27; (yeas 12, nays 41.) argument by — on application for forty days to prepare answer 6 7 for thirty*days to prepare for trial !..'.'.'"!]" 25 on admissibility — of Adjt. Gen. Thomas's declarations to Mr. Burleigh, Feb. 21, 1868.. 59> 64[ 65 66 7o ot President s letter to Gen. Grant, unaccompanied with inclosures 81 82 of appointment of Edmund Cooper to be Assistant Secre- ' ' tary of the Treasury g7 88 of telegrams relating to the reconstruction of Alabama'".' ' 91 of President's declarations to Adjt. Gen. Thomas Feb. 21, 138 of conversations between President and Gen. Sherman, , Jan - J. 4 .--• 151, 152, 153, 154 of question respecting department of the Atlantic. . 157 of tender of War Office to Gen. Sherman 157 158 of President's purpose to get the question before the courts,' 158 of question, Whether Gen. Sherman formed and gave Presi- dent an opinion, &c ....163 165 of affidavit and warrant of arrest of Lore'nzo'fn'o'mas'.'.'.167! 168 on motion to remove limit to number of speakers on final argu- ment ° -.go on right of counsel to renew examination of a witness "recaiied by court 2*1 final, on the case gga 371 Stanton, Edwin M. o«»— » em.. "'" ' •.,.>. argu- , 119, 147, 236, 238, 409, 411 413 nomination of., confirmation of., commission of... Secretary of War — suspension of, communicated to Senate ......"... 53 Senate's non-concurrence in ."".... 53 removal of, order for 53 83 communicated to Senate .".."""...'....."..!!".." '53 Senate resolution on '" 54 interviews of, with Adjt. Gen. Thom'asrd'em'a'ndi'n g ''pos'ses's'i'o'n;' 137, 140, 143, 148, 150 Stanton, Edwin M., Secretary of War — Continued. letter of, denying Gen. Thomas's authority 137, 147 affidavit of, for arrest of Gen. Thomas 168 Stark, Everett D. — see Witnesses. Stewart, William M., a Senator from Nevada — order by — that Man'r Logan have leave to file written argument : offered, 247. remarks by 160, 174, 183, 209, 227, 239, 247, 250 opinion on the case 433 Stevens, Thaddeus, of Pennsylvania, a Manager — remarks on order relating to final argument 101, 248 argument, final, «n the case 320 Summons, return of Sergeant-at-Arms to writ of, read and verified, 6 Sumner, Charles, a Senator from Massachusetts — orders by — that Senate proceed with trial from day to day unless otherwise ordered: offered, 28; withdrawn, ,28. that Chief Justice presiding has no authority to vote on any question during the trial, &c. : offered, 63; rejected, 63; (yeas 22, nays 26.) that where the Senate were equally divided, and Chief Justice gave a casting vote, such vote was without authority under the Constitution : offered and rejected, 63 ; (yeas 21, nays 27.) that trial proceed without delay on account of removal of limit provided by Rule XXI : amendment offered and accepted, 100. that on final argument the several Managers who speak shall close: offered, 102. that under rule limiting argument to two on a side, such others as choose may file arguments at any time before the argu- ment of the closing Manager: laid over, 174; amended, 174j indefinitely postponed, 175 ; (yeas 34, nays 15.) that all evidence offered not trivial or obviously irrelevant be received without objection, to be open to question at the bar to determine its value, and to be sifted and weighed in the final judgment : tabled, 195; (yeas 33, nays 11.) that Senate sit from ten a. m. tosixp. in. : offered, 209 ; rejected, 209; (yeas 13, nays 30.) that Senate proceed to vote on the several articles of impeach- " ment at twelve o'clock on the day after the close of argu- ments: offered, 310; called up, 408. that after removal, which follows conviction, any further judg- ment shall be determined by a majority of members present : offered and laid over, 331. that Mr. Nelson, one of counsel, having used disorderly words, has deserved the disapprobation of the Senate : offered, 341 ; tabled, 351 ; (yeas 35, nays 10.) that Senate will sit from ten a. m. to six p. m. ; offered and tabled, 351 ; (yeas 32, nays 17.) that the question be put as proposed by Presiding Officer, and each Senator shall rise in his place and answer " Guilty" or " Not guilty " only : offered aud agreed to, 410. rules by — XXIII, in taking the votes of Senate on the articles presiding officer shall call each Senator by name, and upon each article propose the question of "Guilty or not guilty?" whereupon each Senator shall rise in his place aud answer: proposed April 25, 310; called up, 409. XX IV, on a conviction by Senate it shall be the duty of pre- siding officer forthwith to pronounce the removal from office of the convicted person ; any further judgment shall be on the order of Senate: proposed April 25, 310; called up, 410. remarks by 8, 28, 53, 63, 88, 92, 98, 107, 120, 121, 160 102, 174, 175, 183, 194, 209, 224, 274, 279, 294 310 315 320 331, 341, 342, 350, 351, 406, 408, 409, 410, 412, 415 opinion on the case ' ' 403 Testimony— see Witnesses; Evidence. Thayer, John M., a Senator from Nebraska— ThZftorfel ° 2 ' 7 °' U »' 1G °' 1W . 201 > rank and service of. restoration of, to duty as Adjutant General'. 80" g'j" appointment of, Secretary of War ad interim' ' 53 benate resolution on, communicated to. letter of, accepting demand of. for possession 56," 58," 'o9, '74' 75 "'fs' conversations of — ' with President 137 iA.n 1.19 no with Secretary Stanton. ". ' ' \f- *3 with Mr. Burleigh ",".'. ' with Mr. Karsner i'ii" with Mr. Wilkeson ' with Mr. B. B. Johnson '.'.'. declarations of, to clerks of the War Office 71 "7 intentions of, as to obtaining possession 249, 407, 413 130, ,87, 139, 146, 143. 141, 140, 143, .136, 142 137, 140 137, 142 54 123 140, 143 a, 7i 63, 71, 74, HI," 144, 149, 150 148, 150 144, 148 147, 148 144, 145 .148, 149 , 74, 147 59> 146, 148 INDEX TO SUPPLEMENT. XIII Thomas, Lorenzo— Continued. arrest of, and proceedings thereon 140, 144, 197, 198, 200, 201, 202, 203, 204, 20S, 206 Tinker, Charles A. — see Witnesses. Tipton, Thomas W., a Senator from Nebraska — M remarks by 98, 842, 410 opinion on the case 488 Trial; motion to fix a day for, to proceed — discussed by — Man'r Butler 8 Mr. Nelson 9 Man'r Bingham ._. x 11 order that, unless otherwise ordered, the, proceed immediately after replication filed — [By Mr. Conkliny,~\ offered, 10; agreed to, 11 ; (yeas 40, nays 10.) application of Counsel for thirty days to prepare for 23 discussed by — Mr. Evarts 23, 24 Man'r Bingham 23, 26 Man'r Logan 23 Man'r Wilson 24, 25 Mr. Stanbery 25 Man'r Boutwell 26 Man'r Butler 27 denied, 27; (yeas 12, nays 41.) orders offered to fix time for, to proceed, by — Mr. Edmunds 8 Man'r Bingham 8 Mr. Sherman 8 Mr. Conkling 10, 28 Mr. Johnson 28 Mr. Hendricks 28 Mr. Sumner 28 application of Counsel for reasonable time, after replication filed, to prepare for 27 order fixing the 30th of March for commencement of — [By Mr. Conkling.] offeredand agreed to, 28 ; (yeas 28, nays 24.) Trumbull, Lyman, a Senator from Illinois — orders by — that respondent file answer on or before 23d of March : agreed to, 12. that as many of Managers as desire be permitted to file argu- ments or address Senate orally ; but the conclusion of oral areument shall be by one Manager, as provided by Rule XXI : offered, 250 ; amended, 250 ; adopted, 251; (yeas 28, nays 22.) remarks by 27, 55, 63, 64, 70, 98, 147, 160, 172, 179, 209, 224, 249, 250, 342, 351, 406, 407, 408, 412, 413, 414 opinion on the case 417 * V - Van Horn, Burt — see Witnesses. Van Winkle, P. G. , a Senator from West Virginia — ■ opinion on the case 431 Vickers, George, a Senator from Maryland — orders by — that any two of Managers, except those who open and close, and who have not addressed Senate, may file written argu- ments before adjournment or make oral addresses after the opening by one of Managers and first reply of Counsel, and that other two of Counsel who have not spoken may reply, but alternating with said two Managers, leaving closing argument for President and Managers' final reply under original rule : amendmentoffered,247; disagreed to, 248; (y<';ii20, nays26.) that one of Managers may file printed argument before adjourn- ment, and that after oral opening by a Manager and reply by one of Counsel' another Counsel may file written or make oral address, to be followed by closing speech of one of Counsel and final reply of a Manager : offered, 248. remarks by 247, 248 opinion on the case 461 Votes — see Articles; Chief Justice; Evidence; Question; Mules. W. Walbridge, L. L. — see Witnesses. Wallace, George W. — see Witnesses. Welles, Edgar T. — see Witnesses. Welles, Gideon — see Witnesses. Wilkeson, Samuel — see Witnesses. Williams, George H., a Senator from Oregon — orders by — that consideration of respondent's application for time be postponed until Managers have submitted their evidence : offered, 28; not agreed to, 28; (yeas 9, nays 42.) that no Senator shall speak more than once, nor to exceed fifteen minutes during deliberations on final questions! offered, 320 ; tabled, 407. that the question shall be taken on the eleventh article first, and thereafter on, the other ten successively as they stand; agreed to, 411 ; (yeas 34, nays 19.) Williams, George H. , a Senator from Oregon — Continued. orders by — that the several orders heretofore adopted as to the order- of voting upon the articles be rescinded : offered, 412 ; agreed to, 414. remarks by 28, 63, 89, 162, 171, 173, 210, 231, 235, 320, 407, 409, 411, 412, 413, 414, 415 question by 231 opinion on the case 457 Williams, Thomas, of Pennsylvania, a Manager- argument, final, on the case 324, 331 remarks on motion relating to the number of speakers on final argument 160 Wilson, James P., of Iowa, a Manager — argument by — on application of counsel for thirty days to prepare for trial, 24, 25 On admissibility — of President's letter to Gen. Grant, unaccompanied with inclosures 81, 82 of President's conversations with Gen. Sherman 156 of employment of counsel by President to get up a test case.. 199 of President's declarations to Mr. Perrin 207 of advice to President by his Cabinet touching the consti- tutionality of the tenure-of-office act 227 Wilson, Henry, a Senator from Massachusetts — remarks by 8, 11, 29, 61, 62, 247, 248, 294, 394, 407 opinion on the case 460 Witness — see Practice. right of Counsel to renew examination of a, recalled by court — [By Mr. Williams.] question 171 discussed by — Mr. Evarts 171, 172 Man'r Butler 171 Man'r Bingham 171, 172 Mr. Stanbery 171 withdrawn 173 Witnesses for the prosecution — William J. McDonald: service of Senate resolutions at office of President 54 J. W. Jones: service of Senate resolution on Adjt. Gen. Thomas 54 C. E. Creecy: form of commission before and after tenure-of- - office act, 54, 55 ; commission of Edmund Cooper as Assistant Secretary of Treasury, 55, 56 ; date of change in form of com- mission 56; President's notification to Secretary of Treasury of Secretary Stanton's suspension, 119; notification of Secre- tary of the Treasury to heads of bureaus, 120. Burt Van Horn : Adjt. Gen. Thomas's demand for possession of War Department 56 James K. Moorhead: Adjt. Gen. Thomas's demand for posses- sion of War Department 58 Walter A. Burleigh: Adjt. Gen. Thomas's account of interview with Secretary Stanton, 59, 71 ; his intentions, 59, 63, 71 ; his declarations to clerks, 71, 72, 73, 74; means by which he intended to obtain possession, 59, 63, 71, 74.. Samuel Wilkeson: Adjt. Gen. Thomas's account of interview with Secretary Stanton 74, 75 George W. Karsner: conversations with Adjt. Gen. Thomas, 75, 76, 77; his intentions, 75 ; interview with Secretary Stanton, 78. Thomas W. Ferry : occurrences at War Department, Feb. 22... 78 William H. Emory: conversations with President in reference to troops, 78, 79; Orders No. 15 and 17, 79, 80. George W. Wallace: conversation with President in regard to garrison at Washington and movement of troops 84, 85 William E. Chandler : process of drawing money from Treasury Department, 85, 88, 89 ; course of issuing commission to an officer confirmed by Senate, 85, 80 ; authority of Assistant Secre- tary of the Treasury to sign warrants, 88, 89; the practice, 89. Charles A. Tinker: telegrams between Lewis E. Parsons and President relating to reconstruction in Alabama, 89, 90 ; Pres- ident's speech, Aug. 18, 1806, as telegraphed, 93, 96. James B. Sheridan : President's speech, Aug. 18, 1866, in reply to Hon. Reverdy Johnson, 93; manner of reporting it, 94; corrections by President's Secretary, 93. James O. Clephane: President's speech, Aug. 18, 1866, in reply to Hon. Reverdy Johnson, 94, 96 ; revision by President's Sec- retary, 94, 96, 97 ; verbatim report rewritten for Chronicle, 94, 95. Francis H. Smith: President's speech, Aug. 18, 1866, 96, 97; revision by President's Secretary, 97. William G. Moore : corrections of report of President's Speech, Aug. 18, 1866 97, 98 William N. Hudson : President's speech at Cleveland, Sept. 3, 1866, reported for Cleveland Leader, 100, 101, 102 ; cries of the crowd, 102, 103, 104. Daniel C. McEwen : President's speech at Cleveland, Sept. 3, 1866 104. 105 Everett D. Stark: President's speech at Cleveland, Sept. 3, 1866, reported for Cleveland Herald , 105) 106 SUPPLEMENT TO THE CONGRESSIONAL GLOBE. PROCEEDINGS OF THE SENATE SITTING FOE THE TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, On Articles of Impeachment exhibited by the House of Representatives. On Monday, February the 24th, 1868, the House of Representatives of the Congress of the United States resolved to impeach Andrew Johnson, President of the United States, of high crimes and misdemeanors, of which the Senate was apprised and arrangements were made for the trial. On Monday, the 3d of March, articles of impeachment were agreed upon by the House of Representatives, and on tlie 5th they were presented to the Senate by the managers on the part of the House, who were accompanied by the House, the grand in- quest of the nation, as a Committee of the Whole on the state of the Union. Mr. Bing- ham, chairman of the managers, read the arti- cles as follows : Articles exhibited by the House of Representatives of the United States, in the name of themselves and all the people of the United States, against Andrew John- son, President of the United States, in maintenance and support of their impeachment against him for high crimes and misdemeanors. Article I. Thatsaid Andrew Johnson, President of the United States, on the 21st day of February, in the year of our Lord 1868, at Washington, in the District of Co- lumbia, unmindful of the high duties of his office, of his oath of office, and of the requirement of the Con- stitution that he should take care that the laws be faithfully executed, did unlawfully and in violation of the Constitution and laws of the United States issue an order in writing forthe removal of Edwin M. £tanton from the office of Secretary for the Depart- ment of War, said Edwin M. Stanton Having been theretoforedulyappointed and commissioned, by and with the advice and consent of the Senate of the United States, as such Secretary, and said Andrew Johnson, President of the United States, on the 12th day of August, in the year of our Lord 1867, and during the recess of said Senate, having suspended by his order Edwin M. Stanton from said office, and within twenty days after the first day of the next meeting of said Senate, that is to say, on the 12th day of Decem- ber, in the year last aforesaid, having reported to said Senate such suspension, with the evidence and reasons for his action in the case and the n ame of the person designated to perform theduties of such office temporarily until the next meetingof theSenate.and said Senate thereafterward, on the 13th day of Jan- uary, in the year of our Lord 1868, having duly con- sidered the evidence and reasons reported by said Andrew Johnson for said suspension, and having re- fused to concur in said suspension, Whereby and. by force of the provisions of an act entitled "An act regulating the tenure of certain civil offices," passed March 2, 1867, said Edwin M. Stanton did forthwith resume the functions of his office, whereof the said Andrew Johnson had then and there due notice, and said Edwin M. Stanton, by reason of the premises, on said 21st day of February, being lawfully entitled 3 to hold said office of Secretary for the Department of War, which said order for the removal of said Edwin M. Stanton is in substance as follows, that is to say: Executive Mansion, Washington, D. C„ February 21, 1868. Sir: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication. You will transfer to Brevet Major General Lorenzo Thomas, Adj utant General of the Army, who has this day been authorized and empowered to act as Sec- retary of War ad interim, all records, books, papers, and other public property now in your custody and charge. Respectfully yours, ANDREW JOHNSON. Hon. Edwin M. Stanton, Washington, D. C. Which order was unlawfully issued with intent then and thereto violate the act entitled "An actreg- ulating the tenure of certain civil offices," passed March 2, 1867 ; and, with the further intent contrary to the provisions of said act, in violation thereof, and contrary to the provisions of the Constitution of the United States, and without the advice and consent of the Senate of the United States, the said Senate then and there being in sessi6n, to remove said Ed- win M. Stanton from the office of Secretary for the Department of War, the s£id Edwin M. Stanton be- ing then and there Secretary of War, and being then and there in the duo and lawful execution and dis- charge of the duties of said office, whereby said An- drew Johnson, President of the United States, did then and there commit, and was guilty of a high mis- demeanor in office. Article II. That on said 21st day of February, in the year of our Lord 1868, at Washington, in the District of Colum- bia, said Andrew Johnson, President of the United States, unmindful of the high duties of his office, of his oath of office, andin violationof the Constitution of the United States, and contrary to the provisions of an act entitled "An act regulating the tenure of certain civil offices," passed March 2, 1867, without the advice and consent of the Senate of the United States, said Senate then and there being in session, and without authority of law, did, with intent to violate the Constitution of the United States and the act aforesaid, issue and deliver to one Lorenzo Thomas a letter of authority in substance as follows, that is to say: Executive Mansion. Washington, D. C, February 21, 1868. Sir : Hon. Edwin M. Stanton having this day been removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will im- mediately enter upon the discharge of the duties per- taining to that office. Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property how in his custody and charge. Respectfully yours, ANDREW JOHNSON. To Brevet Major General Lorenzo Thomas, Adjutant General United States' Army, Washington, D, 0. then and there being no vacancy in said office of Sec- retary for the Department of War; whereby said Andrew Johnson, President of the United States, did then and there commit and was guilty of a high mis- demeanor in office. Article III. That said Andrew Johnson, President of the United States, on the 21st day of February, in the year of our Lord 1868, at Washington, in the District of Columbia, did commit and was guilty of a high misdemeanor in office, in this, that, without authority of law, while the Senate of the United States was then and there in session, he did appoint one Lorenzo Thomas to beSecretary forthe Department of War adinterim, without the advice- and consent of the Senate, and with intent to violate the Constitution of the United States, no vacancy having happened in said office of Secretary for the Department of War during the recess ofthe Senate, and no vacancy existing in said office at the time, and which said appointment, so made by said Andrew Johnson, of said Lorenzo Thomas, is in substance as follows, that is to say : Executive Mansion, Washington, D. C, February 21, 1868. Shi : Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War adinterim, and will imme- diately enter upon the discharge of the duties per- taining to that office. Mr. Stanton has been instructed to transfer fo you all the records, books, papers, and other public prop- erty now in his custody and charge. Respectfully yours. ANDREW JOHNSON. To Brevet MojorGeneral Lorenzo Thomas, Adjutant General United States Army, Washington, D. U. Article IV. That said Andrew Johnson, President of the Uni- ted States, unmindful of the high duties of his office and of his oath of office, in violation of the Constitu- tion and laws of the United States, on the 21st day of February, in the year of our Lord 1868, at Wash- ington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas, and with other persons to the House of Representatives unknown, with intent by intimidation and threats unlawfully to hinder and prevent Edwin M. Stanton, then and there the Secretary for the Department of War, duly appointed under the laws of the United States, from holding said office of Secretary for the Department of War contrary to and in violation of the Constitution of the United States, and of the provisions of an act entitled "An act to define and punish certain con- spiracies," approved July 31, 1861, whereby said An- drew John son. President of the United States, did then and there commit and was guilty of a high crime in office. Article V. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, on the 21st day of February, in the year of our Lord 1868, and on divers other days and times in said year, before the 2d day of March, A. D. 1868, at Washington, in the District of Colum- bia, did unlawfully conspire with one Lorenzo Thomas, and. with other persons to the House of Representatives unknown, to prevent and hinder the execution of an act entitled " An act regulating the tenure of certain civil offices," passed March 2, 1867, and in pursuance of said conspiracy did unlawfully attempt to prevent Edwin M. Stanton, then and there being Secretary for the Department of War, duly appointed and commissioned under the laws of the United States, from holding said office, whereby the said Andrew Johnson.President of the United States, did then and there commit and was guilty of a high misdemeanor in office. Article VI. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, on the 21st day of February, in the year of our Lord 1868, at Washington, in the Dis- trict of Columbia, did unlawfully conspire w-ith one Lorenzo Thomas by force to seize (> take, and possess the property of the United States in the Department of War, and then and there in the custody and charge of Edwin M. Stanton, Secretary for said Depa rtment, contrary to the provisions of an act entitled "An act to define and punish certain conspiracies," approved July 31, 1861, and with intent to violate and disregard an act entitled "An act regulating the tenure of cer- tain civil offices," passed March 2, 1867, whereby said Andrew Johnson, President of the United States, did then and there commit a high crime in office. Article VII. That said Andrew Johnson, President of the Uni- ted States, unmindful of the high duties of his office and of his oath of office, on the 21st day of February. in the year of our Lord 1868, at Washington, in the District of Columbia, did unlawfully conspire with SUPPLEMENT TO one Lorenzo Thomas with intent unlawfully to seize, lake, and possess the property of the United States in the Department of War, in the custody and charge of Edwin M. Stanton, Secretary of said Department, with intent to violate and disregard tho act entitled " An act regulating the tenure of certain civil offices," passed March 2, 1867, whereby said Andrew Johnson, President of tho Unitod States, did then and there commit a high misdemeanor in otlice. Article VIII. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, with intent unlawfully to control the disbursements of the moneys appropriated for the military service and for the Department of War, on the 21st day of February, in the year of our Lord 1868, at Washington, in the District of Columbia, did unlawfully and contrary to the provisions of an act entitled "An act regulating the tenure of certain civil offices," passed March 2, 1867, and in violation of the Constitution of tho United States, and without the advice and consent of the Senate of the United States, and while the Senate was then and there in session, there being no vacancy in the office of Secretary for the Department of War, with intent to violate and disregard the act aforesaid, then and there issue and deliver to one Lorenzo Thomas a letter of authority in writing, in substance as follows, that is to say : Executive Mansion, Washington, D. C, February 2\, 1868. Sir : Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Depart- ment of War, you are hereby authorized and empow- ered to act as Secretary of War ad interim, and will immediately enter upon tho discharge of tho duties pertaining to that office. Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public prop- erty now in his custody and charge. Respectfully yours, ANDREW JOHNSON. To Brevet Major General Lorenzo Thom as, Adjutant General United States Army, Washington, D. V. Whereby said Andrew Johnson, President of the United States, did then and there commit and was guilty of a high misdemeanor in office. • Article IX. That said Andrew Johnson, President of the Uni- ted States, on the 22d day of February, in the year of our Lord 1868, at Washington, in the District of Columbia, in disregard of tho Constitution and the laws of tho United States, duly enacted, as Com- mander-in-Chief of the Army of the United States, did bring before himself then and there William H. Emory, a major general by brevet in the Army of the United States, actually in command of the depart- ment of Washington and the military forces thereof, and did then and there, as such Commander-in-Chief, declare to and instruct said Emory that part of a law of the United States, passed March 2, 1867, entitled "An act making appropriations for the support of the Army for the year ending Juno 30, 1868, and for other purposes, "especially the second section thereof, which provides, among other things, that "all orders and instructions relating to military operations issued by the President or Secretary of War shall be issued through tho General of the Army, and, in case of his inability, through tho next in rank," was unconstitu- tional, and in contravention of the coin mission of said Emory, and which said provision of law had been theretofore duly and legally promulgated by general order for the government and direction of tho Army of the United States, as the said Andrew Johnson then and there well knew, with intent thereby to in- duce said Emory, in his official capacity as commander of the department of Washington, to violate the pro- visions of said act, and to tako and receive, act upon, and obey such orders as he, the said Andrew John- eon, might make and give, and which should not bo issued through the General of the Army of tho Uni- ted States, according to the provisions of said act, and with the further intent thereby to enable him, the said Andrew Johnson, to prevent the execution of an act entitled "An act regulating the tenure of certain civil offices," passed March 2, 1867, and to unlawfully prevent Edwin M. Stanton, then being Secretary for the Department of War, from holding said office and discharging tho duties thereof, whereby said Andrew Johnson, President of tho United States, did then and there commit and was guilty of a high misdemeanor in office. Article X. That said Andrew Johnson, President of the Uni- ted States, unmindful of the high duties of his office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to oxist and be maintained between the executive and legislative branchesof theGovernmentof the United States, designing and intending to set aside tho rightful authority and powers of Congress, did at- tempt to bring into disgrace, ridicule, hatred, con- tempt, and reproach the Congress of tho United States and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and le- gislative power thereof, (which all officers of the Government ought inviolably to preserve and main- tain,) and to excite tho odium and resentment of all the good people of tho United States against Con- gress and the laws by it duly and constitutionally enacted; and in pursuance of said design and in- tent, openly and publicly, and before divers assem- blages of the citizens of the United States convened intlivers parts thereof to meet and receive said An- drew Johnson as the Chief Magistrate of tho United States, did, on the 18th day of August, in the year of our Lord 1866, and on divers other days and times, as well beforo as afterward, make and deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Conaress as the laws of tho United Slates duly enacted thereby, amid the cries, jeers, and laughter of the multitudes then assembled and within hearing, which are set forth in tho several specifications hereinafter writ- ten, in substance and effect, that is to say: Specification First.— In this, that at Washington, in the District of Columbia, in the Executive Man- sion, to a committee of citizens who called upon the President of the United States, speaking of and con- cerning the Congress of the United States, said An- drew Johnson, President of the United States, here- tofore, to wit, on the 18th day of August, in the year of our Lord 1866, did, in a loud voice, declare in sub- stance and effect, among other things, that is to say : "So far as tho executive department of the Govern- ment is concerned, tho effort has been made to restore the Union, to hoal the breach, to pour oil into the wounds which were consequent upon the struggle, and (to speak in common phrase) to prepare, as the learned and wise physician would, a plaster healing in character and coextensive with the wound. Wo thought, and wo think, that we had partially suc- ceeded ; but as the work progresses, as reconstruction seemed to be taking place, and the country was be- coming reunited, we found a disturbing and marring element opposing us. In alluding to that element, I shall go no further than your convention and the distinguished gentleman who has delivered to me the report of its proceedings. I shall make no reference to it that I do not believe tho time and the occasion justify. • "We have witnessed in one department of the Gov- ernment every endeavor to prevent the restoration of peace, harmony, and Union. We have seen hang- ing upon the verge of the Government, as it were, a body called, or which assumes to be, the Congress of the United States, while in fact it is a Congress of only a part of the States. We have seen this Con- gress pretend to be for the Union, when its every step and acttended to perpetuate disunion and make a disruption of the States inevitable." * * * * " Wehave seen Congress gradually encroach step by step upon constitutional rights, and violate, day after day and month after month, fundamental principles of theGovernment. Wo have seen aCon- gress that seemed to forget that there was a limit to the sphere and scope of legislation. Wo have seen a Congress in a minority assume to exercise power which, allowed to be consummated, would result in despotism or monarchy itself." Specification Second. — In this, that at Cleveland, in the State of Ohio, heretofore, to wit, on the 3d day of September, in the year of our Lord 1866, before a public assemblage of citizens and others, said Andrew Johnson, President of thjjJJnited States, speaking of and concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among other things, that is to say : " I will tell you what I did do. I called upon your Congress that is trying to break up the Government." ********** "In conclusion, besidG that, Congress had taken much pains to poison their constituents against him. But what had Congress done? Have they done any- thing to restore the union of these States? No; on the contrary, they had done everything to prevent it ; and because he stood now where he did when the rebellion commenced he had been denounced as a traitor. Who had run greater risks or made greater sacrifices than himself? But Congress, factious and domineering, had undertaken to poison the minds of the American people." Specification Third. — In this, that at St. Louis, in the State of Missouri, heretofore, to wit, on the 8th day of September, in the year of our Lord 1866, before a public assemblage of citizens and others, said An- drew Johnson, President of the United States, speak- ing of and concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among other things, that is to say: "Go on. Perhaps if you had a word or two on the subject of New Orleans you might understand more about it than you do. And if you will go back,— if you will go back and ascertain tho cause of the riot at New Orleans, perhaps you will not be so prompt in calling out 'New Orleans.' If you will take up the riot at New Orleans and trace it back to its source or its-immediate cause, you will find out who was re- sponsible for the blood that was shed there. If you will take up the riot at New Orleans and traco it back to the Radical Congress you will find that tho riot at New Orleans was substantially planned. If you will take up the proceedings in their caucuses you will under- stand that they there knew that a convention was to be called which was extinct by its power having ex- pired; that it was said that the intention was that a new government was to be organized, and on the or- ganization of that government the intention was to enfranchise one portion of tho population, called the colored population, who had just been emancipated, and at the same time disfranchise white men. When you design to talk about Now Orleans you ought to understand what you are talking about. When you road the speeches that were made, and take up the facts on the Friday and Saturday before that con- vention sat, you will there find that speeches were made incendiary in their character, exciting that portion of the population, the black population, to arm themselves and prepare for tho sheddingofblood. You will also find that that convention did assemble in violation of law, and the intention of that conven- tion was to supersede the reorganized authorities in tho State government of Louisiana, which had been recognized by the Government of the United States ; and overy man engagedin that rebellion in that con- vention, with the intention of superseding and up- turning the civil government which had been recog- nized by tho Government of tho Unitod States, I say that he was a traitor to tho Constitution of the Um ted States and hence you find that another rebclho was commenced having its origin in the Radica Congress "** ****** "So much for the New Orleans riot. And thcr was the cause and the origin of the blood that wo shed- and every drop of blood that was shedisupoi their'skirts, and they are responsible tor it. I coult test this thing a little closer, but will not do it her to-night. But when you talk about tho causes am consequences that resulted from proceedings of tha kind, perhaps, as I have been introduced here, am you have provoked questions of this kind, though i does not provoke me, I will tell you afewwholcionn things that have been done by this Radical Congres in connection with New Orleans and the extensioi of the elective franchise. "I know that I have bean traduced and abused. ; know it has come in advance of me here, as elsewhere that I have attempted to exercise an arbitrary power in resisting laws that were intended to b< forced upon the Government; that I had exercisec that power: that I had abandoned the party thai elected me, and that I was a traitor, because I exer- cised the veto power in attempting and did arrest foi a time a bill that was called a 'Freedman's Bureau 1 bill; yes. that I was a traitor. And I have been tra- duced, I have been slandered, I have been maligned, I have been called Judas Iscariot, and all that. Wow, my countrymen here to-night, it is very easy to in- dulge in epithets; it is easy to call a man a Judas and cry out traitor; but when he is called upon to give arguments and fads he is very often found wanting. Judas Iscariot— Judas. There was a Judas and h« was one of the twelve apostles. Oh I yes, the twelve apostles had a Christ. The twelve apostles had a Christ, and he never could have bad a Judas unless he had had twelve apostles. If I have played the Judas, who has been my Christ that I have played the Judas with? Was it Thad. Stevens? Was it Wen- dell Phillips? Was it Charles Sumner? These are the men that stop and compare themselves with the Saviour; and everybody that differs with them in opinion, and to try and stay and arrest the diabolical and nefarious policy, id to be denounced as a Judas." *********** " Well, let me say to you, if you will stand by mo in this action ; if you will stand by me in trying to give tho people a fair chance, soldiers and citizens, to participate in these offices, God being willing, I will kick them out. I will kick them out just as fast as I can. "Let me say to you, in concluding, that what I have said I intended to say. I was not provoked into this, and I care not for their menaces, the taunts, and the jeers. I care not for threats. I do not intend to be bullied by my enemies nor overawed by my friends. But, God willing, with your help I will veto their measures whenever any of them come to mc." Which said utterances, declarations, threats, and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the Uni- ted States, did commit, and was then and there guilty of, a high misdemeanor in office. Article XI. That said Andrew Johnson, President of the Uni- ted States, unmindful of the high duties of his office and of his oath of office, and in disregard of the Constitution and laws of the United States, did here- tofore, to wit: on the 18th day of August, 1866, at tho city of Washington, in the District of Co- lumbia, by public speech, declare and affirm in sub- stance that the Thirty-Ninth Congress of the Uni- ted States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the same; but, on the contrary, was a Congress of only pnrt of the States, thereby denying and intending to deny that the legislation of said Congress was valid or obligatory upon him, the said Andrew Johnson, except in so far as he saw fit to approve the same, and also thereby denying and in- tending to deny the power of the said Thirty-ftintb Congress to propose amendments to the Constitution of the United States ; and, in pursuance of said dec- laration, tho said Andrew Johnson, President of the United States, afterward, to wit: on the 21st day of February, 1868, at the city of Washington, in theDis- tFict of Columbia, did unlawfully and in disregard of tho requirements of the Constitution, that hi should take care that thelaws be faithfully executed attempt to prevent the execution of an act entitled An act regulating the tcnuro of certain civil offices/ passed March 2, 1867, by unlawfully devising am contriving, and attempting to devise aDd contrive means by which he should prevent Edwin M. Stan ton from forthwith resuming the functions of th office of Secretary for the Department of War, not withstanding the refusal of the Senate to concur ii the suspension therefore made by said Andrew John son of said Edwin M. Stanton from said office o: bocretary for tho Department of War, and also b, further unlawfully devising and contriving, and at tempting to devise and contrive, means then am there to prevent the execution of an act entitle An act making appropriations for tho support o the Army for the fiscal year ending June 30, 1S6! and lor other purposes," approved March 2,1867, an also to prevent the execution of an act entitled "A net to provide for the more efficient governmento the rebel States," passed March 2.1S67; whereby th said Andrew Johnson, President of the Unite iptiites, did then, to wit: on the 21st dav of Februar; 1868, at the city of Washington, commit and wi guilty of a high misdemeanor in office. THE CONGRESSIONAL GLOBE. And the "House of Representatives, by protestation, saving to themselves the liberty of exhibiting at any time hereafter any further articles or other accusa- tion or impeachment against the said Andrew John- son, President of the United States, and also of reply- ing to his answers which he shall make unto the arti- cles herein proferrud against him, and of offering proof to the same and every part thereof, and to all and every other article, accusation, or impeachment which shall be exhibited by them, as tho case shall require, do demand that the said Andrew Johnson may be put to answer tho high crimes and misde- meanors in office herein charged against him, and thatsuch proceedings, examinations, trials, and judg- ments may be thereupon had and given as may be agrceablo to law and justice. The Senate, in its preparation for so mo- mentous an event, adopted rules of procedure and practice for the guidance of the court; and to accord with the conviction of the Chief Justice that the court should adopt its own rules, they were pro forma again adopted when the court met. They are as follows: Rules of Procedure and Practice in the Senate when eitting on the Trial of Impeachments. I. Whensoever the Senate shall receive notico from the House of Representatives that managers aro appointed on their part to conduct an impeachment against any person, and aro directed to carry articles of impeachment to the Senate, tho Secretary of the Senate shall immediately inform tho House of Rep- resentatives that the Senate is ready to receive the mnnagers for the purpose of exhibiting such articles of impeachment agreeably to said notice. ■ II. When tho managers of an impeachment shall be introduced at the bar of the Senate, and shall signify that they are re ilv to exhibit articles of im- peachment against any per on, the Presiding Officer of the Senate shall direct the Sergeant-at-Arms to make proclamation, who shall, after making procla- mation, rep eat the following words, viz: "All persons aro commanded to keep silence, on pain of imprison- ment, while the House of Representatives is exhib- iting to the Senate of the United States articles of impeachment against ;" after which the articles shall bo exhibited, and then the Presiding Officer of the Senate shall inform the managers that the Senate will take proper order on thesubject of the impeachment, of which due notice shall be given to the House of Representatives. III. Upon such articles being presented to the Sen- ate, tho Senate shall, at one o'clock afternoon of the day (Sunday excepted) following such presentation, or sooner if so ordered by tho Senate, proceed to the consideration of such articles, and shall continue in session from day today, (Sundays excepted,) after the trial shall commence, (unless otherwise ordered by the Senate.) until finaljudgment shall be rendered, and so much longer as may, in its judgment, be needful. Before proceeding to the consideration of the arti- cles of impeachment, the Presiding Officer shall ad- minister the oath hereinafter provided to the mem; hers of the Senate then present, and to the other members of the Senate as they shall appear, whose duty it shall be to take the same. IV. When tho Presidentofthe United States, or the Vice President of the United States, upon whom the powers and duties of the office of President shall have devolved, shall be impeached, the Chief Justice of the Supreme Court of the United States shall pre- side ; and in a case requiring the said Chief Justice to preside, notice shall be given to him by the Pre- siding Officer of the Senate, of the time and place fixed for tho consideration of the articles of impeach- ment, as aforesaid, with a request to attend; and the said Chief Justice shall preside over the Senate dur- ing the consideration of said articles, and upon the trial of the person impeached therein. V. The Presiding Officer shall have power to make and issue, by himself or by tho Secretary of the Sen- ate, all orders, mandates, writs, and precepts author- ized by these rules, or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide. VI. The Senate shall have power to compel tho attendance of witnesses, to enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way con- tempts of and disobedience to its authority, orders, mandates, writs, precepts, or judgments, and to make all lawful orders, rules, and regulations, which it may deem essential or conducive to the ends of justice. And the Sergeant-at-Arms, under the direction of the Senate, may employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, writs, and pre- cepts of the Senate. VII. The Presiding Officer of the Senate shall di- rect all necessary preparations in the Senate Cham- ber, and the presiding officer upon the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeach- ment, and all forms during the trial not otherwise specially provided for. The presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions; but the same shall, on the demand of one fifth of the members present, be decided by yeas and nays. VIII. Upon the presentation ofarticlesofimpeach- ment and the organization of the Senate as herein- before provided, a writ of summons shall issue to the accused, reciting said articles and notifying him to appear before the Senate upon a day and at a place to oe fixed by the Senate and named in such writ, and file his answer to said articles of impeachment, and to stand to and abide tho orders and judgments of the Senate thereon; which writ shall bo served by such officer or person as shall bo named in the pre- cept thereof such number of days prior to the day fixed for such appearance as shall be named in such precept, either by the delivery of an attested copy thereof to the person accused, or, if that cannot con- veniently be done, by leaving such copy at tho last known place of abode of such person or at his usual place of business, in some conspicuous place therein; or if such service shall be, in tho judgment of tho Senato, impracticable, notice to the accused to ap- pear shall bo given in sxich other manner, by public- ation or otherwise, as shall bo deemed just; and if the writ aforesaid shall fail of service in the manner aforesaid the proceedings shall not thereby abate, but further service may be made in such manner as tho Senateshall direct. If tho accused, after service, shall fail to appear, either in person or by attorney, on the day so fixed therefor as aforesaid, or, appear- ing, shall fail to file his answer to such articles of impeachment, tho trial shall proceed, nevertheless, as upon a plea of not guilty. If a plea of guilty shall be entered judgment maybe entei'cd thereon with- out further proceedings. IX. At twelve o'clock and thirty minutes afternoon of the day appointed for the return of the summons against the person impeached, the legislative and executive business of the Senate shall be suspended, and the Secretary of tho Senato shall administer an oath to the returning officer in the form following, viz: "I, , do solemnly swear that tho return made by me upon the process issued on the — — day of ,by the Senate of the United States, against , is truly made, and that I have performed such service as therein described; so help me God." Which oath shall be entered at large on the records. X. Tho person impeached shall then be called to appear and answer the articles of impeachment against him. If he appear, or any person for him, the appearance shall be recorded, stating particu- larly if by himself, or by agent, or attorney, naming the person appearing, and the capacity in which ho appears. If he do not appear, either personally or by a^ent or attorney, the same shall be recorded. XI. At twelve o'clock and thirty minutes after- noon of the day appointed for the trial of an im- peachment, the legislative and executive business of the Senate shall be suspended, and the Secretary shall give notice to the House of Representatives that the Senate is ready to proceed upon the im- peachment of , in the Senate Chamber, which Chamber is prepared with accommodations for the reception of the House of Representatives. XII. The hour of the day at which the Senate shall sit upon the trial of an impeachment shall bo (unless otherwise ordered) twelve o'clock m.; and when the hour for such sitting shall arrive, the Presiding Officer of the Senate shall so announce ; and thereupon the presiding officer upon such trial shall cause procla- mation to be made, and the business of the trial shall proceed. The adjournment of the Senate sit- ting in said trial shall not operate as an adjourn- ment of the Senate; buton such adjournment the Senate shall resume^ the consideration of its legis- lative and executive business. XIII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the game manner as the legislative proceedings of the Senate. XIV. Counsel for the parties shall be admitted to appear and be heard upon an impeachment. XV. All motions made by the parties or their counsel shall be addressed to the presiding officer, and if he, or any Senator, shall require it, they shall be committed to writing, and read at the Secretary's table. XVI. Witnesses shall be examined by one person on behalf of the party producing them, and then cross-examined by one person on the other side. XVII. If a^ Senator is called as a witness he shall be sworn and give his testimony standing in his place. XVIII. If a Senator wishes a question to be put to a witness, or to offer a motion or order, (except a motion to adjourn,) it shall be reduced to writing, and put by the presiding officer. XIX. At all times while the Senate is sitting upon the trial of an impeachment tho doors of tho Senate shall be kept open, unless the Senate shall direct the doors to be closed while deliberating upon its decisions. XX. All preliminary or interlocutory questions, and all motions, shall be argued for not exceeding one hour on each side, unless the Senate shall, by order, extend the time. XXI. The case, on each side, shall bo opened by one person. The final argument on the merits may be made by two persons on each side, (unless other- wise ordered by the Senate, upon application for that purpose.) and the argument shall be opened and closed on the part of the House of Representa- tives. XXII. On the final question whetherthe impeach- ment is sustained, the yeas and nays shall be taken on each article of impeachment separately; and if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two thirds of the members present, a judgment of acquittal shall be entered; but if the person accused in such articles of impeachment shall be convicted upon any of said articles by the votes of two thirds of the members present, the Senate shall proceed to pronounce judg- ment, and a certified copy of such judgment shall be deposited in the office of the Secretary of State. XXIII. All the orders anddecisions shall be made and had by yv.w and nays, which shall be untered on the record, and without dcb-ite, except when the doors shall bo closed for deliberation, and in that caso no member shall speak more than once on ono question, and for not more than ten minutes on an interlocutory question, and for not more than fif- teen minutes on tbe final question, unless by consent of the Senate, to be had without debate; but a mo- tion to adjourn may bo decided without the yeas and nays, unless they be demanded by one fifth of the members present. XXIV. Witnesses shall be sworn in the follow- ing form, namely: "You, , do swear (or affirm, as the case may be) that the evidence you shall give in tho case now depending between the United States and shall bo the truth, the whole truth, and nothing but tho truth: so help you God." Which oath shall be administered by the Sec- retary or any other duly authorized person. Form of subpoena to be issued on tho application of the managers of the impeachment, or of the party impeached, or of his counsel : To , greeting: You and each of you are hereby commanded to appear before the Senate of the United States, on the day of , at the Senate Chamber, in tho city of Washington, then and there to testify your knowledge in the cause which is before tho Senate, in which the House of Representatives have impeached . Fail not. Witness .and Presiding Officer of tho Senate, at the city of Washington, this dayof -, in the year of our Lord , and of the in- dependence of the United States tbe . Form of direction for the service of said subpoena: The Senate of the United States to greeting : You are hereby commanded to serve and return the within subpoena according to law. Dated at Washington, this day of , in the year of our Lord , and of the independence of the United States the ■. Secretary of the Senate. Form of oath to be administered to the members of tho Senate sitting in tho trial of impeachments: " I solemnly swear (or affirm, as the caso may be) that in all things appertaining to the trial of the im- peachment of , now pending, I will do impartial justice according to tho Constitution and laws : so help me God." Form of summons to be issued and served upon the person impeached: The United States of America, ss .- The Senate of the United States to -greeting .' Whereas the House of Representatives of the United States of America did, on tho day of , ex- hibit to tbe Senate articles of impeachment against you, the said , in the words following : [Hero insert tho articles/ And demand that you, the said - , should bo put to answer the accusations as set forth in said articles, and that such proceedings, examinations, trials, and judgments might be thereupon had as are agreeable to law and justice. You, tho said , are therefore hereby summoned to be and appear before the Senate of tho United States of America, at their Chamber, in the city of Washington, on the day of , at twelve o'clock and thirty minutes afternoon, then and there to answer to the said articles of impeach- ment, and then and there to abide by, obey, and perform such orders, directions, and judgments as the Senate of the United States shall make in the premises according to the Constitution and laws of the United States. Hereof you are not to fail. Witness , and Presiding Officer of the said Senate, at the city of Washington, this day of , in the year of our Lord , and of tho independence of the United States the . Form of precept to be indorsed on said writ of sum- mons: The United States op America, ss: The Senate of the United States, to ^greeting; You are hereby commanded to deliver to and leave with , if conveniently to be found, or, if not, to leave at his usual place of abode, or at his usual place of business, in some conspicuous place, a true and attested copy of the within writ of sum- mons, together with alike copy of this precept; and in whiebsooverway you perform the service let it be done at least days before tho appearance day mentioned in said writ of summons. Fail not, and make return of this writ of summons and precept, with your proceedings thereon indorsed, on or before tho appearance day mentioned in the said writ of summons. . Witness .and Presiding Officer of the Senate, at the city of Washington, this — — - day of , in the year of our Lord - -, and of the in- dependence-of the United States the - All process shall be served by the Sergeant-at-Arms of the Senate, unless otherwise ordered by the cour I . XXV. If the Senate shall at any time fail to sit for tho consideration of articles of impeachment on tho day or hour fixed therefor, the Senate may, by an order to be adopted without debate, fix a day and hour for resuming such consideration. The court was organized on Thursday, tbe 5th of March, the oath being administered to the Chief Justice of the United States by Asso- ciate Justice Nelson, and by the Chief Justice to the Senators present, except Mr. Wade, whose right to sit on the trial was challenged. On Friday, the 6th, at the close of the debate 6 SUPPLEMENT TO on the point suggested, the objection was with- drawn and the oath was administered. On Friday, the 13 th of March, the trial commenced, of which we give a detailed report. The de- bates on the preliminary proceedings appear in their order in the Congressional Globe. Friday, March 13, 1868. The Chief Justice entered the Senate Cham- ber and took the chair. The CHIEF JUSTICE, (to the Sergeant-at- Arms.) Make proclamation. The Sergeant- at- Arms. Hear ye 1 hear ye 1 All persons are commanded to keep silence while the Senate of the United States is sitting for the trial of the articles of impeachment ex- hibited by the House of Representatives against Andrew Johnson, President of the United States. Mr. HOWARD. Mr. President, I move for the order, which is usual in such cases, noti- fying the House of Representatives that the Senate is thus organized. The CHIEF JUSTICE. The Journal of the last day's proceedings will first be read. Mr. GRIMES. Mr. Chief Justice, there are several Senators to be sworn. The CHIEF JUSTICE. The first business is to read the Journal of the last session of the court. The Senators will be sworn in afterwards. The Secretary read the Journal of the pro- ceedings of the Senate sitting for the trial of impeachment of Andrew Johnson, President ofthe United States, on Friday, March 6, 1868. Mr. CONKLING. I move that the reading ofthe articles of impeachment in extenso, which I understand are entered on the Journal, be dispensed with. ' I understand that the other House is ready to be announced. The CHIEF JUSTICE. That suggestion will be considered as agreed to if no objection be made. The Secretary continued and concluded the reading ofthe Journal. Mr. HOWARD. If it be now in order, to save time I ask that the order which I sent to the Chair be passed by the Senate, informing the House of Representatives that the Senate is organized for the trial of the impeachment. The CHIEF JUSTICE. The Secretary will read the order submitted by the Senator from Michigan. The Secretary read as follows : Ordered, That the Secretary inform the House of Representatives that the Senate is in its Chamber, and ready to proceed with the trial of Andrew Johnson, President of the United States, and that seats are provided for the accommodation of the members. The order was agroed to. The CHIEF JUSTICE. The Sergeant-at- Arms will introduce the managers. The managers on the part of the House of Representatives appeared at the bar, were announced by the Sergeant-at-Arms, and con- ducted to the position assigned them. Managers — Hon. John A. Bingham, of Ohio ; George S. Boutwell, of Massachu- setts ; James F. Wilson, of Iowa ; John A. Logan, of Illinois; Thomas Williams, of Pennsylvania ; Benjamin F. Butler, of Mas- sachusetts ; Thaddeus Stevens, of Pennsyl- vania. Mr. GRIMES. Mr. Chief Justice, there are several Senators who have not yet been sworn as members of this court. I therefore move that the oath be administered to them. The CHIEF JUSTICE. The Secretary will call the names of Senators who have not yet been sworn. The Secretary called the names of Senators who were not previously sworn. Messrs. Edmunds, Patterson of New Hamp- shire, and Vickers, severally, as their names were called, advanced to the desk, and the prescribed oath was administered to them by the Chief Justice. The CHIEF JUSTICE. The Secretary of the Senate will read the return of the Sergeant- at-Arms to the summons directed to be issued by the Senate. The Chief Clerk read the following return appended to the writ of summons: The foregoing writ of summons, addressed to Andrew Johnson, President of the United btates, and the foregoing precept, addressed to me, were this day duly served on the said Andrew Johnson, 1 resi- dent ofthe United States, by delivering to and leav- ing with him true and attested copies of the same at the Executive Mansion, the usual place of abode ot the said Andrew Johnson, on Saturday, the 7th day of March instant, at seven o'clock in the afternoon of that day. 9 I 5 Vr G - in. o ■ '. Sergeant-at-Arms ofthe United States itenate. Washington, March 7, 1868. The Chief Clerk administered to the Ser- geant-at-Arms the following oath : " 1, SeorgoT. Brown, Sergeant-at-Arms of theSen- ato of the United States, do swear that the return made and subscribed by me upon the process issued on the 7th day of March, A. D. 1863, by the Senate of the United States against Andrew Johnson, f res- ident of the United States, is truly made, and that I have performed said service therein prescribed. So help me God." The CHIEF JUSTICE. The Sergeant-at- Arms will call the accused. The Sergeant-at-Arms. Andrew Johnson, President ofthe United States, Andrew John- son, President of the United States, appear and answer the articles of impeachment ex- hibited against you by the House of Repre- sentatives ofthe United States. Mr. JOHNSON. I understand that the President has retained counsel, and that they are now in the President's room attached to this wing of the Capitol. They are not ad- vised, I believe, of the court being organized. I move that the Sergeant-at-Arms inform them of that fact. The CHIEF JUSTICE. If there be no objection the Sergeant-at-Arms will so inform the counsel ofthe President. The Sergeant-at-Arms presently returned with Hon. Henry Stanbery, of Kentucky ; Hon. Benjamin R. Curtis, of Massachusetts ; and Hon. Thomas A. R. Nelson, of Tennessee ; who were conducted to the seats assigned the counsel ofthe President. Mr. CONKLING. To correct a clerical error in the rules or a mistake of the types which has introduced a repugnance into the rules, I offer the following resolution by direc- tion ofthe co mmitee which reported the rules: Ordered, That the twenty-third rule, respecting proceedings on trial of impeachments, be amended by inserting after the word " debate " the words "sub- ject, however, to tho operation of rule seven." If thus amended the rule will read : AH orders and decisions shall be made and had by yeas and nays, which "hall be entered on the record and without debate, subject, however, to the opera- tion of rule seven, except when the doors shall be closed, &c. The whole object is to commit to the pre- siding officer the option to submit a question without the call of the yeas and nays, unless they be demanded. That was the intention ori- ginally, but the qualifying words were dropped out in the print. The CHIEF JUSTICE. The question is on amending the rules in the manner proposed by the Senator from New York. The amendment was agreed to. The Sergeant-at-Avms announced the mem- bers of the House of Representatives, who entered the Senate Chamber preceded by the chairman ofthe Committee ofthe Whole House, (Mr. E. B. Washburne, of Illinois,) into which that body had resolved itself to witness the trial, who was accompanied by the Speaker and Clerk. The CHIEF JUSTICE, (to the counsel for the President.) Gentlemen, the Senate is now sitting for the trial of the President of the United States upon articles of impeachment exhibited by the House of Representatives. The court will now hear you. Mr. STANBERY. Mr. Chief Justice, my brothers Curtis and Nelson and myself are here this morning as counsel for the President. I have his authority to enter his appearance, which, with your leave, I will proceed to read : In the matter of the impeachment of Andrew Johnson, President of the United States. Mr. Chief Justice: I, Andrew Johnson, , President of the United States, having been served with a summons to appear before this honorable court, sitting as a court of impeach- ment, to answer certain articles ot impeach- ment found and presented against me by the honorable the House of Representatives ot the United States, do hereby enter my appearance by my counsel, Henry Stanbery, Benjamin R. Curtis, Jeremiah S. Black,Wilham M. Evarts, and Thomas A. R. Nelson, who have my war- rant and authority therefor, and who are in- structed by me to ask of this honorable court a reasonable time for the preparation of my answer to said articles. After a careful examination of the articles of impeachment and consultation with my coun- sel, I am satisfied that at least forty days will be necessary for the preparation of my answer, and I respectfully ask that it be allowed. ANDREW JOHNSON. The CHIEF JUSTICE. The paper will be filed. „ T . Mr. STANBERY. Mr. Chief Justice, I have also a professional statement in support of the application. Whether it is in order to offer it now or to wait until the appearance is entered your Honor will decide. The CHIEF JUSTICE. The^ appearance will be considered as entered. You may pro- ceed. Mr. STANBERY. I will read the state' ment: In the Matter of the Impeachment of Andrew Johnson, President of the United States. Henry Stanbery, Benjamin R. Curtis, Jere- miah S. Black, William M. Evarts, and Thomas A. R. Nelson, of counsel for the respondent, move the court for the allowance of forty days for the preparation of the answer to the arti- cles of impeachment, and in support of the motion make the following professional state- ment: The articles are eleven in number, involv- ing many questions of law and fact. We have, during the limited time and opportunity af- forded us, considered as far as possible the field of investigation which must be explored in the preparation of the answer, and the con- clusion at which we have arrived is that with the utmost diligence the time we have asked is reasonable and necessary. The precedents as to time for answer upon impeachments before the Senate, to which we have had opportunity to refer, are those of Judge Chase and Judge Peck. In the case of Judge Chase time was allowed from the 3d of January until the 4th of Febru- ary next succeeding to put in his answer, a period of thirty-two days ; but in this case there were only eight articles, and Judge Chase had been for a year cognizant of most of the articles, and had been himself engaged in pre- paring to meet them. In the case of Judge Peck there was but a single article. Judge Peck asked for time from the 10th to the 25th of May to put in his an- swer, and it was granted. It appears that Judge Peck had been long cognizant of the ground laid for his impeachment, and had been present before the committee ofthe House upon the examination of the witnesses, and had been permitted by the House of Representatives to present to that body an elaborate answer to the charges. It is apparent that the President is fairly en- titled to more time than was allowed in either of the foregoing cases. It is proper to add that the respondents in these cases were lawyers, fully capable of preparing their own answers, and that no pressing official duties interfered with their attention to that business; whereas the President, not being a lawyer, must rely on his counsel. The charges involve his acts, declarations, and intentions, as to all which his counsel must be fully advised upon consul- tation with him, step by step, in the prepara- tion of his defense. It is seldom that a case requires such constant communication between client and counsel as this, and yet such com- munication can only be had at such intervals as are allowed to the President from the usuai THE CONGRESSIONAL GLOBE. hours that must be devoted to his high official duties. We further beg leave to suggest for the con- sideration of this honorable court, that as counsel, careful as well of their own reputa- tion as of the interests of their client in a case of such magnitude as this, so out of the ordinary range of professional experience, where so much responsibility is felt, they sub- mit to the candid consideration of the court, that they have a right to ask for themselves such opportunity to discharge their duty as seems to them to be absolutely necessary. ■Henry Stanbery, B. R. Curtis, Jeremiah S. Black, 1 rr o William M. Evarts, / P er a - *■ Thomas A. R. Nelson, Of Counsel for the Respondent. March 13, 1868. Mr. Manager BINGHAM. Mr. President, I am instructed by my associate managers to suggest to the Senate that under the eighth rule adopted by the Senate for the government of this proceeding, after the appearance of the accused at its bar, until that rule be set aside by the action of the Senate a motion for continuance to answer is not allowed, the pro- vision of the rule being that if he appear he shall answer ; if he appear and fail to answer, the case shall proceed asuponthe general issue ; if he do not appear the case shall proceed as upon the general issue. The managers ap- peared at the bar of the Senate impressed with tbe belief that the rule meant precisely what it says ; and that in default of an appearance the trial would proceed as upon the plea of not guilty ; if upon appearance no answer should be filed, in the language of the rule the trial should still proceed as upon the plea of not guilty. Mr. CURTIS. Mr. Chief Justice, if the con- struction which the honorable managers have placed upon this rule be the correct one, the counsel of the President have been entirely misled by its phraseology. They have con- strued the rulein the light of other similar rules existing in courts of justice. For instance, in a court of equity over which your Honor in another place presides, parties are by a sub- poena required to appear on a certain day and answer the bill ; but certainly it was never un- derstood that they were to answer the bill on the day of the appearance. So it is in a variety of other legal proceedings ; parties are sum- moned to appear on a certain day, but the day when they are to plead is either fixed by some general rule of the tribunal or there is to be a special order in the particular case. Here we find a rule by which the President is required to appear on this day and "answer and '• abide." Certainly that part of the rule which relates to abiding has reference to future pro- ceedings and to the final result of the case. And so, as we have construed the rule, that part of it which relates to answering has reference to a future proceeding, which occurs in the ordi- nary course of justice, as I have stated, either under some general rule or by a special order of the court. We submit, therefore, as coun- sel for the President, that this interpretation of the rule which is placed upon it by the hon- orable managers is not the correct one. Mr. Manager WILSON. Mr. President, I desire to say on behalf of the managers that we do not see how it were possible for the eighth rule adopted by the Senate to mislead the re- spondentor counsel. That rule provides that — " Upon the presentation of the articles of impeach- ment and the organization of the Senate as herein- before provided a writof summons shall issue to the accused, reciting said articles, and notifying- him to appear before the Senate on a day and at a place to bo fixed by the Senate and named in such writ and file his answer to said articles of impeachment, and to stand to and abide the orders and judgments of the Senate thereon." The rule further provides that — "If the accused, after service, shall fail to appear, cither in person or by att irney, on the day so fixed therefor, as aforesaid, or appearing shall fail to file his answer to such articles of impeachment, the trial shall proceed neverthless as upon a plea of not guilty." The learned counsel, in the professional statement submitted to ihe Senate, refer to the cases of Judge Chase and Judge Peck. I pre- sume that in the examination of the records of those cases the attention of counsel was di- rected to the rules adopted by the Senate for the government of its action on the trial of those cases. By reference to the rules adopted by the Senate for the trial of the cases of Judge Chase and Judge Peck we find that a very material change has been made by the Senate in the adoption of the present rules. The third rule in the case of the trial of Judge Chase prescribed the form of summons, and required that on the day to be fixed the respondent should appear, and "then and there answer." The same rule was adopted in the Peck case. But the present rule adds to the rule of those cases the words to which I have called the attention of the Senate, that he shall appear "and file his answer to said articles of im- peachment," and that if, on appearing, he " shall fail to file his answer to such articles of impeachment, the trial shall proceed never- theless as upon a plea of not guilty." I submit, therefore, Mr. President, that the change which has been made in the rules for the government of this case must have been made for some good reason. What that rea- son may have been may be a subject of dis- cussion in this case hereafter ; but the change meets us upon the presentation of this motion ; and we therefore ask, on the part of the House of Representatives, which we are here repre- senting, that the rule adopted by the Senate for the government of this case may be en- forced. It is for the Senate to say whether the rule shall stand as a rule to govern the case, or whether it shall be changed ; but, standing as a rule at this time, we ask for its enforcement. Mr. STANBERY. Mr. Chief Justice, the objection taken by the honorable managers is so singular that in the whole course of my practice I have not met with an example like it. A case like this, Mr. Chief Justice, in which the President of the United States is arraigned upou an impeachment presented by the House of Representatives — a case of the greatest magnitude we have ever had — is, as to time, to be treated as if it were a case be- fore a police court, to be put through with railroad speed on the first day the criminal appears ! Where do my learned friends find a precedent for calling on the trial upon this day? It is in the language of their summons. They say, " We have notified you to appear here and answer on a given day. 1 ' We are here ; we enter our appearance ; but they ask, "Where is your answer?" As my learned brother [Mr. Curtis] has said, you have used precisely the language that is used in a sub- poena in chancery ; but who ever heard that when the defendant in a chancery bill enters his appearance he must come with his answer, ready to go on with the case, and enter upon the trial? We were summoned to appear and answer ; we have entered our appearance and stated that we propose to answer; we do not wish this case to go by default ; we want a reasonable time ; nothing more. Consider, if you please, that it is but a few days since the President has been served with this summons; that, as yet, all his counsel are not present. Your Honor will observe that of the five counsel who have signed this profes- sional statement two are not present and can- not be present to-day, and are not (at least, I am sure, one is not) in the city to-day. Not one of us, on looking at these rules, ever sus- pected that it was the intention to bring on the trial this day. And yet I understand the learned gentlemen who read these rules to so read them according to the letter that we must go on to-day. Now, let us see how it will do to read them all according to the letter. If the gentlemen are right, if we are here to an- swer to-day, and to go into the trial to-day, then this is the day fixed for the trial by your rules. Let us see whether it is. Rule nine provides : "At twelve o'clock and thirty minutes afternoon of the day appointed for the return of the summons against the person impeached," This is the return day; it is not the trial day. The letter answers the gentlemen. Ac- cording to the letter of the eighth rule they say " this is the trial day ; go on ; not a mo- ment's delay; file your answer and proceed to trial ; or without your answer let a general plea of not guilty be entered, and proceed at once with the trial." The ninth rule says this is the return day, not the trial day. Then the tenth rule says: "The person impeached shall then be called to appear and answer the articles of impeachment against him." That is the call made on the return day. The accused is called to appear and answer. He is here ; he appears ; he states his willing- ness to answer ; he only asks a reasonable time to prepare the answer. Then rule eleven speaks "of the day appointed for the trial." That is not this day. This day, the day which the gentlemen would make the first day of the trial, is, in your own rules, put down for the return day, and you must have some other day for the trial day to suit the convenience of the parties ; so that the letter of one rule answers the letter of another rule. But, pray, Mr. Chief Justice, is it possible that under these circumstances we are to be caught in this trap of the letter ? As yet there has not been time to prepare an answer to a single one of these articles. As yet the Presi- dent has been engaged in procuring his coun- sel, and all the time occupied with so much consultation as was necessary to enable us to fix the shortest period which in our judgment is necessary for the due preparation of his answer. Now, look back through the whole line of impeachments, even to the worst times, and where there was the greatest haste ; go back to English precedents, and English fair play always gave fair time. This is the first instance to be found on record anywhere, in which, upon the appearance day, the defendant was required to put in his answer and immediately proceed to the trial. Why, sir, we have not a witness summoned ; we hardly know what witnesses to summon until the pleadings are prepared. We are entirely at sea. 1 submit, Mr. Chief Justice, to the honor- able court that are to try this case, whether we are to be put through with this railroad speed? "Strike, but hear." Give us the opportunity that even in common civil cases is allowed to the defendant, hardly ever less than thirty days for his pleading and answer ; more often sixty. Give us time ; give us a reasonable time ; and then, with a fair hear- ing, we shall be prepared for that sentence, whatever it may be, that you shall pronounce. Mr. Manager BINGHAM. Mr. President, it was The CHIEF JUSTICE. Before counsel proceed, the Chief Justice desires to state to the Senate that he is somewhat embarrassed in the construction of the rule. The twenty- first rule provides that " the case on each side shall be opened by one person." He under- stands that as referring to the case made when the evidence is all in and the cause is ready for argument. The twentieth rule provides that — "All preliminary or interlocutory questions and all motions shall be argued for not exceeding one hour on each side, unless the Senate shall by order extend the time." Whether that limitation is intended to apply to the whole argument upon each side or to the argument of each counsel who may address the court is the question which the Chief Justice is at. a loss to solve. On the pending motion he has allowed the argument to proceed without attempting to restrict the number of speakers, and, unless the Senate order otherwise, he will proceed in that course. 8 SUPPLEMENT TO Mr. Manager BINGHAM. Mr. President, it was not my purpose when I raised the ques- tion, under the rule, to be decided by the Sen- ate, to touch in any way upon the merits of any application that might hereafter be made, after issue joined, for an extension of time for prep- aration for the trial. The only object I had in view, Mr. President, was to see whether the Senate was disposed to abide by its own rules, and by raising the question to remind Senators of what they do know, that in this proceeding they are a rule and a law to themselves. Neither the common law nor the civil law furnishes any rule whatever for the conduct of this trial save, it maybe, the rule which governs in mat- ters of evidence. There is nothing more clearly settled in this country, and in that country whence we derive our laws generally, than the proposition which I have just stated ; and hence the necessity that the Senate should prescribe rules for the con- duct of the trial; and, having prescribed rules, my associate managers and myself deemed it important to inquire whether those rules, upon the threshold of the proceeding, were to be disregarded and set aside. I may be pardoned for saying that I am greatly surprised at the hasty word which dropped from the lips of my learned and accomplished friend who has just taken his seat, [Mr. Stan- bery,] when he failed to discriminate between the objection made here and an objection that may hereafter be made to a motion for the continuance of the trial. When the learned gentleman spoke of the trial day, he seemed to forget that the trial day never comes until issue joined. Why, Mr. President, there is nothing clearer, nothing better known, I think, to my learned friend than this, that the making up of the issue before any tribunal of justice and the trial are very distinct transactions — perfectly distinct. A very remarkable case in the twelfth vol- ume of State Trials lies before me, wherein Lord Holt presided, on the trial of Sir Richard Grahme,ViscountPreston, and others, charged with high treason. In that case the accused appeared, as the accused by the learned gen- tlemen appears this morning, after the indict- ment presented in the court, and before plea asked for continuance. The answer that fell from the lips of the Lord Chief Justice was, we are not to consider the question of trial or the time of trial until plea be pleaded. Let me give his very words : " L. C. Holt. My lord, we debate the time of your trial too early: for you must put yourself upon your trial first by pleading." And when Lord Preston presses him again on the point Lord Chief Justice Holt responds : " My lord, wo cannot dispute with you concerning your trial till you have pleaded. I know not what you will say to it; for aught I know there may be no occasion for a trial. I cannot tell what you will plead; your lordship must answer to the indictment before we can enter into the debate of this matter." — 12 State Trials, 664. The eighth rule of the Senate, last clause, provides that if the party appearing shall plead guilty there may be no further proceedings in the case, no trial about it; nothing remains to be done but to pronounce judgment under the Constitution. It is time enough for us to talk about a trial when we have an issue. The rule is a plain one, a simple one. And I may be pardoned for saying that I fail to perceive anything in rules ten or eleven to which the learned counsel have referred that by any kind of construction can be supposed to limit the effect of the words in rule eight, to wit: " If the accused, after service, shall fail to appear, either in person or by attorney, on the day so fixed therefor as aforesaid, or appearing shall fail to file his answer, [on the day on which he is summoned to appear,] the trial shall proceed nevertheless as upon a plea of not guilty." When words are plain in a written law there is an end to all construction ; they must be followed. The managers so thought when they appeared at this bar. All they ask is the en- forcement of the rule, not a postponement of forty days, and at the end of that time to be met with a dilatory plea — a motion, if you please, to quash the articles, or a question rais- ing the inquiry whether this is the Senate of the United States. It seems to me, if I may be pardoned for making one further remark, that in prescribing by this rule that the summons, with a copy of the articles, should issue, to be returned on a day certain, giving, as in this case, six days in advance, it was intended thereby to require as well as to enable the party on the day fixed for his appearance, as the rule prescribes, to come to this bar prepared to make answer to the articles. Permit me to say further — what is doubtless known to every one within the hearing of my voice — that technical rules do in no wise con- trol or limit or fetter the action of this body ; and under the plea of " not guilty," as pro- vided in the rules, every conceivable defense that the party accused could maketo the articles here preferred can be admitted. Why, then, this delay of forty days to draw up an answer of not guilty? But what we desire to know on behalf of the House of Representatives, by whose order we appear here, is whether an answer is to be filed in accordance with the rule ; and, if it be not filed, whether the rule itself is to be enforced by the Senate which made it, and a plea of not guilty be entered for the accused. That is our inquiry. It is not my purpose to enter into any discussion upon the question of post- poning the day for the commencement of the trial. My desire is at present to see whether, under this rule, and by force of this rule, we can obtain an issue. The CHIEF JUSTICE. Senators, the coun- sel for the President submit a motion that forty days be allowed for the preparation of his answer. The rule requires that this, as other questions, shall be taken without debate by Senators. You who are in favor of that motion will say "ay." Mr. EDMUNDS. Upon that subject I sub- mit the following order : Ordered, That the respondent file his answer to the articles of impeachment on or before the 1st day of Aprilnext, and that the managers of the impeachment file their replication thereto within three days there- after, and that the matter stand for trial on Monday, April 6, 1868. Mr. MORTON. I move that the_ Senate retire to consult in regard to its determination. Mr. Manager BINGHAM. lam instructed by the managers respectfully to ask that the Senate shall pass upon the motion to reject under the eighth rule of this Senate until that rule be set aside the application to defer the dav of answer. The CHIEF JUSTICE. _ The motion of the counsel for the President is in order. The Chair regards the motion submitted by the Senator from Vermont [Mr. Edmunds] as in the nature of an amendment ; and the first question will be upon agreeing to the order submitted by him. Mr. CONKLING. What becomes of the motion of the Senator from Indiana? Mr. SUMNER. What was the motion of the Senator from Indiana? Mr. MORTON. That the Senate retire to consult in regard to its determination. Mr. SUMNER. That is the true motion. The CHIEF JUSTICE. The question is on the motion of the Senator from Indiana, that the court now retire for consultation. The motion was agreed to; and at three minutes before two o'clock the Senators, with the Chief Justice, repaired to the reception room of the Senate for consultation. At eight minutes past four o'clock the Sen- ators returned to the Senate Chamber, and the Chief Justice resumed the chair. The CHIEF JUSTICE. The Chief Justice is instructed to state to the counsel for the ac- cused that the motion made by them is over- ruled denied, and that the Senate has adopted an order, which will be read by the Secretary. The Secretary read as follows : Ordered, That the respondent file answer to the articles of impeachment on or before Monday, the 23d day of March instant. Mr. Manager BINGHAM. Mr. Prudent, I am instructed by the managers to submit to the consideration of the Senate a motion which I send to the desk to be read. The Secretary read as follows : The managers ask the Senate respectfully to adopt * Orrfei-X'That upon the filing of a replication by the managers on the part of the House of Represent- atives the trial of Andrew Johnson, President of the United States, upon the articles of impeachment ex- hibited by the House of Representatives shall pro- ceed forthwith. The CHIEF JUSTICE puf the question upon the order asked by the managers and declared that it appeared to be refused. Mr. SUMNER called for the yeas and nays, and they were ordered; and being taken, re- sulted— yeas 25, nays 26; as follows: YEAS— Messrs. Cameron, Cattell, Chandler, Cole, Conkling. Conness, Corbett, Drake, Ferry, Harlan, Howard, Morgan, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Stewart, Sum- ner Thayer. Tipton. Williams, Wilson, and Yates— 25. NAYS— Messrs. Anthony, Bayard, Buckalew, Da- vis, Dixon, Edmunds, Fessenden. Fowler, Freling- huysen, Grimes, Henderson, Hendricks, Howe, John- son, McCreery, Morrill of Maine, Morrill of Ver- mont, Norton, Patterson of Tennessee. Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, and Willey — 26. ABSENT— Messrs. Cragin, Doolittle, and Wade— 3. The CHIEF JUSTICE. The order asked by the managers is denied. Mr. SHERMAN. Mr. Chief Justice, I sub- mit the following motion : Ordered, That the trial of the articles of impeach- ment shall proceed on the 6th day of April next. Mr. WILSON. I move to amend that order by striking out "the 6th day of April" and inserting "the 1st day of April." Mr. Manager BUTLER. I should like to inquire of the President and the Senate if the managers in behalf of the House of Represent- atives have a right to be heard upon that motion? Mr. SUMNER. Unquestionably. The CHIEF JUSTICE. The Chair is of opinion that the managers have a right to be heard, and also the counsel for the accused. Mr. Manager BUTLER. Mr. President, and gentlemen of the Senate, however ungra- cious it may seem on the part of the managers acting for the House of Representatives, and thereby representing the people of the United States, to press an early trial of the accused, yet your duty to those who sent us here, rep- resenting their wishes, speaking in their pres- ence and by their command, the state of the country, the interests of the people, all seem to require that we should urge the speediest possible trial. Among the reasons why the trial should be put off, which the learned gentlemen who appear for the accused have brought to the attention of the Senate, are precedents of delay in the trials of the earlier days of the Repub- lic ; and we were told that " railroad speed " ought not to be used in this trial. Sir, why not? Railroads have affected every other busi- ness in the civilized world; telegraphs have brought places together that were thousands of miles apart. It takes less time to send to California and get a witness — it takes infinitely less time, if I may use so strong an expres- sion, to send a message for him — from Cali- fornia now than it took to send a witness from Philadelphia to Boston at the trial of Judge Chase. We must not shut our eyes to the fact that there are railroads and that there are tele- graphs, as bearing upon this trial. They give the accused the privilege of calling his coun- sel together instantly, of getting answers from any witness that he may have instantly, of bringing him here in hours where it once, and not long ago, took months ; and, therefore, I respectfully submit that it is not to be over- looked that railroads and telegraphs have changed the order of time. In every other business of life we recognize that change ; and why should we not in this? But passing from that, which is but an inci- dent and a detail of the trial, will you allow me, further, to suggest that the ordinary course THE CONGRESSIONAL GLOBE. 9 Of justice, the ordinary delays in court, the ordinary time given in ordinary cases for men to answer when called before tribunals of jus- tice, have no application to this case. The rules by which cases are heard and determined before the Supreme Court of the United States are not rules applicable to the case at bar; and for this reason, if for no other, when ordi- nary trials are had, when ordinary questions are examined at the bar of any court, there is no danger to the common weal in delay ; the Republic may take no detriment if the trial is postponed; to give the accused time injures nobody ; to grant him indulgence hurts no one, and may help one, and perhaps an innocent, man. But here the House of Representatives • have presented at the bar of the Senate, in the most solemn form, the Chief Executive officer of the nation. They say (and they desire your judgment upon their accusation) that he has usurped power which does not belong to him ; that he is at this very time breaking the laws solemnly enacted by you, the Senate, and those whopresenthim here, the Congress of the Uni- ted States, and that he still proposes so to do. Sir, who is the criminal — I beg pardon for the word — the respondent at the bar ? He is the Chief Executive of the nation ; and when I have said that, I have taken out from all ordi- nary rules this trial, because I submit with def- erence that here and now, for the first time in the history of the world, has any nation brought its ruler to the bar of its highest tribunal in a constitutional method, under the rules and forms prescribed by its Constitution ; and there- fore all the rules, all the analogies, all the like- ness to a common and ordinary trial of any cause, civil or criminal, cease at once, are si- lent, and ought not to weigh in judgment. Other nations have tried and condemned their kings and rulers, but the process has always been in violence and subversive of their Con- stitutions and framework of government, not in submission to and accordance with it. When I name the respondent as the Chief Executive, I say he is the Commander-in- Chief of your armies ; he specially claims that command,- not by force and under the limita- tions of your laws, but as a prerogative of his office and subject to his arbitrary will. He controls, through his subordinates, your Treas- ury. He commands your Navy. Thus he has all elements of power. He controls your for- eign relations. In any hour of passion, of prejudice, of revenge for fancied wrong in his own mind, he may complicate your peace with any nation of the earth, even while he is being arraigned as a respondent at your bar. And mark me, sir, may I respectfully submit that the very question here at issue this day and this hour is, whether he shall control beyond the reach of your laws, and Outside of your laws, the Army of the United States. The one greatest of all questions here at issue is, whether he shall be able, against law — setting aside your laws, setting aside the decrees of the Senate, setting aside the laws enacted by Congress, overriding the legislative power of the country, claiming it as an attribute of ex- ecutive power only, to control the great mili- tary arm of this Government, and control it if he chooses at his own good pleasure, its your ruin and the ruin of the country. Indeed, sir, do we not krTow, may we not upon this motion assume, the fact upon com- mon fame and the current history of events that the whole business of the War Depart- ment of this country pauses until this trial goes through? He will not recognize, as we all know, the Secretary of War, him whom this body has declared the legal Secretary of War, and whom Congress, under its power legiti- mately exercised, has determined shall be recognized as the legal Secretary of War. Do we not also know, that while he claims to have appointed a Secretary ad interim, he dare not recognize him ; and thus the entire business of the War Department is stopped. The Senate of the United States have confirmed the ap- pointment of many a gallant officer of the Army who, by law and by right, ought to have his duties and pay commence the day and the hour when his commission reaches him ; yet those commissions have been delayed weeks, and the proposition on his part is that they shall be delayed at least forty days longer — as long as it took God to destroy the world by a flood — and for what? In order that five very respectable, highly intelligent, very learned, and able lawyers may write an an- swer to certain articles of impeachment. Hav- ing failed in that, now the proposition is to delay more and more, while there is at least one department of the Government thrown into confusion and disorganization, as we are thus delaying. But, sir, this is the least of the mischiefs of delay. The great pulse of the nation beats perturbedly while even this strictly constitu- tional but highly and truly anomalous pro- ceeding goes on. It pauses fitfully when we pause, and goes forward when we go forward ; and the very question of national prosperity in this country arising out of the desire of men to have business interests settled, to have pros- perity return, to have the spring open as aus- piciously under our laws as it will under the laws of nature, depend upon our actions here and now. I say the very pulse of the country beats here, and, beating fitfully, requires us to still it by bringing this respondent to justice, from which God send him a good deliverance, if he so deserve, at the earliest possible hour, ay, the very earliest hour consistently with the preservation of his rights. Instead, therefore, of fixing a time now in advance when he shall be tried, (if you .will allow me respectfully to say as much,) giving him time, which he may be supposed to want for preparation of his trial, fix the trial at an early day, and then, if his counsel choose to draw analogies from the trials of criminal law or the civil law, let him, when he comes here, under his oath and under the certificate of his counsel, say that he can- not get ready to meet a given article, and if he shows due diligence then give him all the time he ought to have to fairly put before you the exact form and feature of everything he has done. But, I humbly submit, do not in advance presume that he cannot get ready until he comes and shows to the Senate some reason, upon his oath, why he may not be ready. Let every part of the case stand upon its own merits. If the respondent comes here and sa> s to the Senate, after he puts in his answer, " I am not ready for trial, because I cannot get a given witness," let him, as his counsel claims we ought to do, follow the ordinary rule and say to the Senate, "If I could get that witness he would testify thus, and thus, and thus;" and the managers would answer, "We will either produce him here at the bar when you call him, or we will admit that he will testify thus, and thus, and thus, and you shall have the entire benefit of the testimony ; for God forbid — and I speak with all rever- ence — that we shall deprive him of a single right or a single indulgence consistent with ftie public safety and speedy justice. There- fore, whenever any such motion is made, you, Senators, I respectfully submit, will be ready, able, and willing, desirous to meet it, and grant indulgence when a case is made out for indulgence. Allow me one other word. We ask no more of the Senate as against this defendant than what we are willing to deal to ourselves. The great, perhaps the determining, act upon which the respondent is here brought, to your bar was committed by him on the 21st of February. He knew it and all its consequences then as well and better than we could. The House of Representatives dealt with the action of the respondent on the 22d. On the 4th of March we brought before the Senate and to his notice what we claimed were the legal consequences of that act. We are now come here ready for trial of our accusation founded upon that act. We are here-instant for trial, pressing for trial de die in diem. Make the days as long as the judges of England made them when they sat twenty-two hours out of the twenty-four in the trial of great criminals, and we, the managers on behalf of the House of Representatives, God giving us strength, will still attend here at your bar every hour and every moment, your humble servitors, for the purpose of justice. We have had only from the 22d of February to now to make ready for the trial of the accusa- tion. He has had just as long. He knew at first more about this action of his than we could. He knows all about it now. He knows exactly what he has done, and why and how he has done it. We can only partly guess at all he has done from the part we see yet. We are willing to go to trial on behalf of the people of the United States, say with only these four- teen days' preparation. You have granted him seven more, say twenty-one in all, and we ask, after you have given him one third more time than we have had to prosecute, at least that he shall be held to meet us with the defense. Sir, I trust you will pardon me a single further suggestion. I hope hereafter no man anywhere will say that the charges upon which we have arraigned Andrew Johnson at this bar are either frivolous, unsubstantial, or of none effect, because five gentlemen of the highest respectability, skill, and legal acumen as coun- sel — I know one of them would not for his life say what he did not believe — have told us that the articles of impeachment were so grave and so substantial that it would take them forty days even to write an answer to them. The charges are, so grave, so momentous, so potent, that, with all their legal ability, forty days will be required to write an answer; and then, after they have had forty days in addition to ten already, giving them fifty days, they say they would need still further time for preparation to meet us on the trial of these charges. I may only humbly hope that I have made myself understood in this unprepared and hurried statement of some reasons which press on my associates and myself to urge forward this trial. You will see their force and the arguments which should accompany them much better than I can state them. If I have brought your minds (perhaps a little swerved by pity and clemency for so great an accused,) again to their true poise of judgment upon the ques- tion of the necessity for this country that jus- tice shall speedily be done upon the accused I have succeeded in all I could hope. If we are mistaken in all our accusations and the respondent is the great and good man he ought to be, and he shall go free, be H so ; the country will have quiet then. If you come to the other determination which we present and demand you shall do if it be proved, then be that so, and the country will have quiet. But upon this so great trial, I pray, let us not belittle ourselves with the analogies of the common law courts or the equity courts or the criminal courts, because nothing is so dan- gerous to mislead us. Let us deal with this matter as one wherein the life of the nation hangs trembling in the scale ; where the rights of the nation are pu t in the balance, and a trial is to be had upon the greatest question that ever yet engaged the attention of anybody, however learned or however wise, sitting in judgment. Mr. NELSON. Mr. Chief Justice, and gen- tlemen of the Senate: I have entered this Chamber as one of the counsel of the Presi- dent profoundly impressed with the idea that this is the most exalted judicial tribunal now upon earth. I have endeavored in coming here to divest my mind of the idea that we are to engage in political discussion, and to feel impressed with the thought that we appear before a tribunal the members of which are sworn as judges to try the great questions which have been submitted to their considera- tion ; not as mere party questions, but as the grand tribunal of the nation, disposed to dis- pense justice equally between two of the great- est powers, if I may so express myself, in tne land. I have come here under the impression that there is much force in the observation 10 SUPPLEMENT TO which the honorable manager made in regard to the forms of proceeding in this tribunal, that it is not to be governed by the iron and rigid rules of law, but that, seeking to attain jus- tice, it is disposed to allow the largest liberty in the progress of the investigation, both to the honorable managers on the part of the House of Representatives and to the counsel in behalf of the President of the United States. Impressed with the idea that this tribunal will discard in a great degree those forms and ceremonies which are known to the common law ; that it does not stand upon demurrers ; that it will not stand particularly upon the forms of evidence, or those technical rules which prevail in other courts, I have supposed that there was nothing improper in our making an appeal to this tribunal for time to answer the charges which have been preferred against the President of the United States ; and that, instead of tliat being denied, much more liber- ality would be extended by the Senate of the nation sitting as a court of impeachment than we could even expect upon a trial in one of the courts of common law. It is not my purpose, Mr. Chief Justice, to enter at this stage into a. discussion of the charges which are preferred here, though it would seem to be invited by one or two of the observations which were made by the honor- able manager, [Mr. Butleb.] I do not pro- pose at this stage of your proceedings to enter into any discussion of them. You are told, however, that it is right in a case of this kind to proceed with railroad speed ; and that in consequence of the great improvements which have been made in the country we can proceed much more rapidly in the investigation of a case of this kind than such a case could be proceeded with a few years ago. Nevertheless, the charges which are made here are charges of the gravest importance. The questions which will have to be considered by this hon- orable body are questions of the deepest and profoundest interest. They are questions in which not only the Representatives of the people are concerned, but the people them- selves have the deepest and most lasting in- terest in the result of this investigation. Ques- tions are raised here in regard to differences of opinion between the Executive of the nation and the honorable House of Representatives as to their constitutional powers and as to the rights which they respectively claim. These are questions of the utmost gravity, and ques- tions which in the view we entertain of them should receive the most deliberate considera- tion on the part of the Senate. I trust that I shall be pardoned by the Chief Justice and the Senators in making an allu- sion to a statute which has long been in force in the State from which I come. I only do it for the purpose of making a brief argument by analogy to you and the honorable body whom I am addressing. We have a statute in the State of Tennessee, which has long been in force, which provides that when a bill of in- dictment is found against an individual, and he thinks, owing to excitement or any other cause, he may not have a fair trial at the first term of the court, his case shall be continued until the next term. The mode of proceeding at law— and no man, I presume, in the United States is more familiar with it than the Chief Justice whom I have the honor of addressing on this occasion — is not a mode of railroad speed. If there is anything under the heavens that gives to judicial proceedings a claim to the consideration and the approbation of man- kind it is the fact that judges and courts hasten slowly in the investigation of cases that are presented to them. Nothing is done or pre- sumed to be done in a state of excitement, livery moment is allowed for calm and mature deliberation. The courts are in the habit of investigating casesslowlv, carefully, cautiously, and when they form their judgments and pro- nounce their opinions, and those opinions are published to the world, they meet the sanction ot'judieial minds and legal minds everywhere, and they meet the approbation and the confi- dence of the people before whom they are pro- mulgated. If this is and ever has been one of the proudest characteristics, if I may so ex- press myself, of the forms of judicial proceed- ings in our courts, how much more in an ex- alted and honorable body like this ; how much more in an assembly composed of some of the wisest and greatest men in the United States, Senators revered and honored by their coun- trymen, Senators who from their position are presumed to be free from reproach, who from their position are presumed to be calm in their deliberations and in their investigations — how much more in such a body as this ought we to proceed cautiously and ought every opportu- nity to be given for a fair investigation? Mr. Chief Justice, I need not tell you, nor need I tell many of the honorable Senators whom I address on this occasion, many of whom are lawyers, many of whom have been clothed in times past with the judicial ermine, that in the courts of law the vilest criminal who ever was arraigned in the United States has been given time for preparation, time for hearing. The Constitution of the country secures to the vilest man in the land the right not only to be heard himself, but to be heard by counsel ; and no matter how great his crime, no matter how deep may be the malignity of the offense with which he is charged, he is tried according to the forms of law ; he is allowed to have coun- sel ; continuances are granted to him ; if he is unable to obtain justice time is given to him, and all manner of preparation is allowed him. If this is so in courts of common law, that are fettered and bound by the iron rules to which I have adverted, how much more in a great tribunal like this, that does not follow the pre- cedents of law, but that is aiming and seek- ing alone to attain justice, ought we to be allowed ample time for preparation in refer- ence to charges of the nature which we have here ? How much more, sir, should such time be given us? We are told that the President acted in re- gard to one of the matters which is charged against him by the House of Representatives on the 21st of February, and that by the 4th of March — if I did not mistake the statement of the honorable manager — the House of Rep- resentatives had presented this accusation against the President of the United States ; and that, therefore, the President, who knew what he was doing, should be prepared for his defense. Mr. Chief Justice, is it necessary for me to remind you and honorable Senators that you can upon a page of foolscap paper pre- pare a bill of indictment against an individ- ual which may require weeks in the investiga- tion? Is it necessary for me to remind this honorable body that it is an easy thing to make charges, but that it is often a laborious and difficult thing to make a defense against those accusations? Reasoning from the analogy furnished by such proceedings at law, I earnestly maintain before this honorable body that suitable time should be given us to answer the charges which are made here. A large number of the«e charges — those of them connected with the President's action in reference to the Secre- tary of War — involve questions of the deepest importance. They involve an inquiry running back to the very foundation of the Govern- ment ; they involve an examination of the pre- cedents which have been set by different Ad- ministrations ; they involve, in short, the most extensive range of inquiry. The two last charges that were presented by the House of Representatives, if I may be pardoned for using the expression in the view which I enter- tain of them, open Pandora's box, and will cause an investigation as to the great differ- ences of opinion which have existed between the President and the House of Representa- tives, an inquiry which, so far as I can per- ceive, will be almost interminable in its char- acter. Now, what do we ask for the. President of the United States? The honorable manager corrected himself in the expression that he was a criminal. What do we ask in behalf of the President of the United States, the highest officer in this land? Why, sir, we ask simply that he shall be allowed time for his defense. And upon whose judgment is he to rely in re- gard to that? He must, in great part, rely upon the judgment of his counsel, those to whom he has intrusted his defense. We, upon our pro- fessional responsibility, have asserted, in the presence of this Senate, in the face of the na- tion and of the whole world, that we believe it will require the number of days to prepare the President's answer which we stated to the Senate in the paper which we submitted to the Senate. Such is still our opinion. And when these grave charges are presented are they to be rushed through the Senate sitting as a judi- cial tribunal in hot haste and with railroad speed, without giving to the President of the United States the opportunity to answer them, that same opportunity which you would give to the meanest criminal that ever was arraigned before the bar of justice in any tribunal in thjs or in the country from which we borrowed our law? I cannot believe, Mr. Chief Justice, that honorable Senators will hesitate for one mo- ment in granting us all the time that may be necessary to prepare our defense, and that may be necessary to enable them to decide as judges carefully, deliberately, conscientiously, and with a view of their accountability, not only to their constituents, but their accountability to pos- terity who are to come after us, for the names of American Senators are dear not only to those who sent them here, but they are names which are to live after the scenes of to-day shall have passed away. I have no doubt that hon- orable Senators, in justice to themselves and in justice to the great land which they repre- sent, will endeavor to conduct this investiga- tion in a manner that will stamp the impress of honor and justice upon them and upon their proceedings not only now, but in all time to come, when they shall be cited after you and I and all of us shall have passed away from the stage of human action. Mr. Chief Justice, this is an exalted tribu- nal. I say it in no spirit of compliment. I say it because I feel it. I feel that this is the most exalted tribunal that can be convened under the sun, a tribunal of Senators, honora- ble members, who are sent here to sit in judg- ment upon one of the gravest and greatest accusations that ever was made in the land. And I may say, in answer to an observation of the honorable manager on the other side, that I, for one, as an American citizen, feel proud that we are assembled here to-day and assembled under the circumstances which have brought us together. It is one of the first in- stances in the history of the world in which the ruler of a people has been presented by a por- tion of the Representatives of the people for trial before another branch of the law-making power sitting as a judicial tribunal. While that is so it is equally true that on the other hand the President, through his counsel, comes here and submits himself to the jurisdiction of this court, submits himself calmly, peacea- bly, and with a confident reliance on the jus- tice of the honorable Senate who are to hear his cause. Mr. Chief Jtlstice, I sincerely hope that the resolution which has been offered will meet the approbation of the honorable Senate. I hope that time will be given us, and that this proceeding, which in all time to come will he quoted as a precedent for others, will be con- ducted with that gravity, that dignity, that decorum which are fit and becoming in the Representatives of a free and a great people. Mr CONKLING. I wish to submit an amendment to the proposition pending in the nature of a substitute : Ordered, That, unless otherwise ordered by tho senate for cause shown, tho trial of the pending im- peachment shall proceed immediately alter replica- tion shall be filed. The CHIEF JUSTICE. The amendment submitted by the Senator from New York does THE CONGRESSIONAL GLOBE. 11 not appear to the Chair to be in order at pres- ent. The motion of the Senator from Ohio [Mr. Sherman] is that the Senate adopt the following order : Ordered, That the trial of the articles of impeach- ment shall proceed on the 6th day of April next. The Senator from Massachusetts [Mr. Wil- son] moves to amend it by striking out the word " sixth " and inserting " first." That is the present motion. Mr. WILSON. I propose to modify my amendment by saying Monday, the 30th of March. Mr. CONKLING. Does the Chair decide that my proposition is not in order? ' The CHIEF JUSTICE. The Chair does not conceive it to be in order at present. Mr. CONKLING. Then I beg to modify in this way : I move to amend the amendment of the Senator from Massachusetts by striking out the date which he inserts, whatever that date may be, and inserting in lieu thereof the ■words "immediately after replication filed, unless otherwise ordered by the Senate." The CHIEF JUSTICE. The Chair con- ceives that the amendment offered by the Sen- ator from New York is not in order. Mr. WILSON. For the purpose of bringing the motion made by the Senator from New York before the body I withdraw my amend- ment so that his amendment will be in order. Mr. CONKLING. Then I offer my original proposition as a substitute for the proposition of the Senator from Ohio. The CHIEF JUSTICE. The amendment of the Senator from New York will be read. The Chief Clerk. The amendment is to strike out all after the word " ordered" in the proposition of Mr. Sherman and to insert in lieu thereof: That, unless otherwise ordered by the Senate for cause shown, the trial of the pending impeachment shall proceed immediately after replication shall be filed. Mr. Manager BINGHAM. Mr. President, I am instructed by the managers to say that the proposition just suggested by the honorable Senator from New York [Mr. Conkling] is entirely satisfactory to the managers for the House, and to say further to the Senate that We believe it is in perfect accord with the pre- cedents in this country. The Senate will doubt- less remember that on the trial of Justice Chase, when a day was fixed for the answer, upon his own petition, verified by his affidavit, the Senate adopted an order which was sub- stantially the order as suggested by the amend- ment of the honorable gentleman from New York. I beg leave to read that order in the hearing of the Senate : "Ordered, That the 4th day of February next shall be the day for receiving the answer and proceeding with the trial of the impeachment against Samuel Chase." If nothing further had been said touching the original proposition we would have been content and satisfied to leave this question without further remark to the decision of the Senate ; but in view of what has been said by the counsel for the accused we beg leave to respond that we are chargeable with no inde- cent haste when we ask that no unnecessary delay shall interpose between the people and the trial of a man who is charged with having violated the greatest trusts ever committed to a single person ; trusts that involve the highest interests of the whole people; trusts that in- volve the peace of the whole country ; trusts that involve in some sense the success of this last, great experiment of representative gov- ernment upon the earth. We may be pardoned, further, sir, for saying that it strikes us somewhat with surprise, with- out intending the slightest possible disrespect to any member of this body, that any proposi- tion should be entertained for the continuance of a trial like this, when no formal application has been made by the accused himself. To be sure, a motion was interposed here to-day in the face of the written rule, order, and law of this body, for leave to file an answer at the end of forty days. The Senate has disposed of that motion, and in a manner, wo venture to say, satisfactory to the whole country, as it is cer- tainly satisfactory to the representatives of the people at this bar. Now, sir, that being dis- posed of, the Senate having determined the day on which answer shall be filed, we submit, with all respect to the Senate, that it is but just to the people of this country that we shall await the incoming of the answer and the replication thereto by the representatives of the people, and then see and know what color- able excuse can be offered, either by the ac- cused President in his own person or through his representatives, why this trial should be delayed a single hour. If he be innocent of the grave accusations prepared against him the truth will soon be ascertained by this enlightened body ; and he has the right, if the fact so appear, to a speedy deliverance, and the country a right to a speedy determination of this important question. If, on the other hand, he be guilty of these grave and serious charges, what man is there within this body or outside of this body ready to say that he should one day or hour longer disgrace the high position which has been held hitherto by some of the noblest and most illustrious of the land? We think that the executive power of this nation can only be reposed in the hands of men who are faithful to their great trust. The people so think. They have made that issue with the President of the United States at this bar ; and while we demand that there shall be no indecent haste, we, too, demand in the name of all the people, most respectfully,, that there shall be no unnecessary delay, and no delay at all until good cause is shown for delay in the mode and manner hitherto observed in pro- ceedings of this sort. Mr. JOHNSON. Mr. President, I ask that the resolution offered by the honorable mem- ber from Ohio shall be read. I did not hear it distinctly. The CHIEF JUSTICE. It will be reported. The Chief Clerk. The order, as submitted by the Senator from Ohio, is as follows : Ordered. That the trial of the articles of impeach- ment shall proceed on the 6th day of April next. The Senator from New York [Mr. Conk- ling] moves to amend by striking out all after the word " ordered," and inserting : That, unless otherwise ordered by the Senate for cause shown, the trial of the pending impeachment shall proceed immediately after replication shall be filed. Mr. JOHNSON. Mr. President, I rise for information. Is there any period within which the replication is to be filed ? There is nothing on the face of that order limiting the time within which the replication may be filed. If the managers propose to make that a part of the order to file the replication on the day the answer may come in, or on any specific day after the coming in of the answer, it would not, perhaps, be liable to objection ; but the ac- cused may well be in ignorance of the time when the trial will begin under the order as it stands. Mr. Manager BINGHAM. Will the hon- orable Senator allow me to suggest to him that we can only file the replication with the con- sent and after consultation with the House of Representatives ; and therefore the answer to his suggestion is that as soon as answer be made here according to the usage and practice in cases of this sort we will respectfully demand a copy of the answer that we may lay it before the House and report to this body as soon as the House will order us its replication. I have no doubt it will be done within one or two days after the answer is filed. Mr. JOHNSON. What I meant Mr. CONKLING. I rise to a. question of order. Reluctant as I am to make it, I ask for the enforcement of the eighteenth and twenty-third rules. The- CHIEF JUSTICE. No debate can be had. The Chair understood the Senator from Maryland as simply asking for an explanation from the managers. Mr. JOHNSON. What is the rule, Mr. President? The CHIEF JUSTICE. The Secretary will read the rule. Mr. JOHNSON. The honorable member from New York is mistaken in supposing that I rose to debate the question. I only rose for the purpose of inquiring what the question was. I suppose that is allowable. The CHIEF JUSTICE. Is the Senate ready for the question on the substitute proposed by the Senator from New York? Mr. DRAKE. On that question I ask for the yeas and nays. The yeas and nays were ordered ; and being taken resulted — yeas 40, nays 10; as follows : YEAS— Messrs. Anthony, Cameron, Cattell, Chand- ler, Cole, Conkling, Oonness, Corbett, Drake, Ed- munds, Ferry, Fessenden, Fowler, Frelinphuysen, Grimes, Harlan, Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Spraguo, Stewart, Sumner, Thayer, Tipton. Trumbull, Van Winkle, Willey, Williams. Wilson and Yates — 40. NAYS— Messrs. Bayard, Buckalew, Davis, Dixon, Hendricks, Johnson, McCrecry, Patterson of Ten- nessee, Saulsbury, and Vickers — 10. ABSENT— Messrs. Cragin, Doolittle, Norton, and Wade-4. So the amendment was agreed to. The CHIEF JUSTICE. Thequestion recurs on the order as amended. The Clerk will report the order. The Chief Clerk read it, as follows : Ordered, That, unless otherwise ordered by the Senate for cause shown, the trial of the pendiog im- peachment shall proceed immediately after replica- tion shall be filed. The order was agreed to. Mr. HOWARD. If there be no motion for the court on behalf of the honorable managers' of the House of Representatives, or on the part of the counsel for the accused, I move that the Senate sitting on the present impeach- ment adjourn to the 23d day of the present month, at one o'clock in the afternoon. I send an order to the Chair for that purpose. My motion is made subject to any action the managers may see fit to lay before us, or the counsel for the accused. I will not press it if they have anything to propose. The CHIEF JUSTICE. Have the mana- gers on the part of the House of Representa- tives anything to propose? Mr. Manager BINGHAM. Nothing further at present. The CHIEF JUSTICE. Have the counsel for the accused anything to propose ? Mr. CURTIS. Nothing. The CHIEF JUSTICE. Senators, the mo- tion is to adjourn the Senate sitting for the trial of this impeachment until the 23d of March. The motion was agreed to. Monday, March 23, 1868. At one o'clock p. m. the Chief Justice of the United States entered the Senate Chamber, escorted by Mr. Pomeroy, the chairman of the Senate committee heretofore appointed for that purpose, and took the chair. The CHIEF JUSTICE. The Sergeant-at- Arms will open the court by proclamation. The Sergeant-at-Arms. Hear ye, hear ye, hear ye : all persons are commanded to keep silence while the Senate of the United States is sitting for the trial of the articles of impeach- ment exhibited by the House of Representa- tives against Andrew Johnson, President of the United States. The managers of the impeachment on the part of the House of Representatives ap- peared at the door, and their presence was announced by the Sergeant-at-Arms. The CHIEF JUSTICE. The Managers will take the seats assigned to them by the Senate. The Managers accordingly took the seats pro- vided for them in the area of the Senate to the left of the Presiding Officer. The counsel for the President, Hon. Henry Stanbery, of Kentucky ; Hon. B. R. Curtis, of Massachusetts ; Hon. Thomas A. R. Nelson, of 12 SUPPLEMENT TO Tennessee; William M. Bvarts, Esq., of New York, and Hon. William S. Groesbeck, of Ohio, appeared and took the seats assigned to them, on the right of the Chair. The Sergeant-at-Arms announced the pres- ence of the House of Representatives; and the Committee of the Whole House, headed by Mr. E. B. Washburne, of Illinois, the chairman of the Committee of the Whole, and the Clerk of the House, entered the Chamber, and the members were conducted to the seats assigned them. The Secretary called the name of Mr. Doo- little, who had not heretofore been sworn, and the oath prescribed by the rules was ad- ministered to him by the Chief Justice. The CHIEF JUSTICE. The Secretary will read the minutes of the proceedings of the last sitting. The Secretary read the Journal of the pro- ceedings of Friday, March 13, of the Senate sitting for the trial of the impeachment of Andrew Johnson, President of the United States, on articles of impeachment. On the Journal of those proceedings occur the following entries as to the proceedings of the Senate on ihat occasion, when it had re- tired for deliberation : " The Senate, with the Chief Justice, having re- tired to their conference chamber, proceeded to con- sider the motion submitted by Mr. Edmunds ; and, " After debate, " On motion "by Mr. Drake to amend the motion submitted by Mr. Edmunds, by striking out all after the word * ordered,' and in lieu thereof inserting : "'Thatthercspondentfileanswer to the articles of impeachment on or before Friday, the 20th day of March instant/ "It was determined in the affirmative — yeas 28, nays 20. "On motion by Mr. Drake, "The yeas and nays being desired by onefifth of the Senators present, "Those who voted in the affirmative are — "Messrs. Cameron, Cattell, Chandler, Cole, Conk- ling, Conness, Corbett. Drake, Ferry, Harlan, How- ard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire. Pomevoy, Ram- sey. Sherman, Stewart, Sumner, Thayer, Trumbull, Willey, Williams, "Wilson, and Yates. " Those who voted in the negative are — "Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson* MeCreery, Morrill of Maine, Norton, Patterson of Tennessee, Saulsbury, Van Winkle, and Vickers. "So the amendment of Mr. Drake to the motion of Mr. Ed munds was agreed to. " On the question to agree to the motion of Mr. Edmunds, as amended, ." After debate, "On motion of Mr. Trumbull, that the Senate re- consider its vote agreeing to the amendment pro- posed by Mr. Drake to the motion of Mr. Edmunds, " It was determined in the affirmative— yeas 27, nays 23. "On motion of Mr. Drake, " The yeas and nays being desired by one fifth of the Senators present, " Those who voted in the affirmative are — "Messrs. Anthony, Bayard, Buckalew, Cattell, Corbett, Davis, Dixon, Edmunds, Fessenden, Fow- ler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, MeCreery, Morrill of Vermont, Morton, Norton, Patterson of Tennessee, Saulsbury, Sher- man, Sprague, Trumbull, Van Winkle, Vickers, and Willey. " Those who voted in the negative are — " Messrs. Cameron, Chandler, Cole, Conkling, Con- ness, Drake, Ferry, Harlan, Howard, Howe, Mor- gan, Morrili of Maine, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Williams, Wilson, and Yates. " So the Senate reconsidered its vote agreeing to the amendment of Mr. Drake to the motion of Mr. Edmunds; and, " The question recurring on the amendment of Mr. T)it v k f " On motion of Mr. Trumbull to amend the amend- ment of Mr. Drake, by striking out the words 'Fri- day, the 20th,' and inserting the words ' Monday, the 23d.' " It was determined in the affirmative; and, "On the question to agree to the amendment, as amended on the motion of Mr. Trumbull, " It was determined in the affirmative. "The question again recurring on the motion of Mr. Edmunds, as amended on the motion of Mr. Drake, as amended by Mr. Trumbull, in the follow- ing words : " ' Ordered, That the respondent file answer to the articles of impeachment on or before Monday, the 23d day of March instant,' " It was determined in the affirmative. " Thereupon, " The Senate returned to its Chamber." Mr. DAVIS. Mr. Chief Justice, I rise to make the same question to the Court which I made in the Senate, and I think that now is the appropriate time before the court has de- cided to take up the case. I therefore submit to the Court a motion in writing. The CHIEF JUSTi CE. The Secretary will read the motion. The Secretary read as follows : Mr. Davis, a member of the Senate and of the Court of Impeachment, from the State of Kentucky, moves the court to make this order: The Constitution having vested the Senate with the sole power to try the articles of impeachment of the President of the United States preferred by the House of Representatives, and having also declared that " the Senate of the United States shall be com- Eosed of two Senators from each State ohosenby the egislatures thereof;" and the States of Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Arkansas, Louisiana, and Texas having, each by its Legislature, chosen two Senators who have been and continue to be excluded by the Sen- ate from their seats, respectively, without any judg- ment by the Senate against them personally and in- dividually on the points of their elections, returns, and qualifications, it is Ordered, That a Court of Impeachment for the trial of the President cannotbo legally and constitu- tionally formed while the Senators from the States aforesaid are thus excluded from the Senate; and this case is continued until the Senators from these States are permitted to take their seats in the Sen- ate, subject to all constitutional, exceptions to their elections, returns, and qualifications severally. Mr. HOWARD. Mr. President The CHIEF JUSTICE. The rule does not admit of debate. Mr. HOWARD. Mr. President, I object to the receiving of the paper as not in order; Mr. CONNESS. Mr. President, I desire to submit a motion, which will cover the case, perhaps. I move that the paper be not re- ceived, upon which I call for the yeas and nays. Mr. HOWE. Mr. President, I rise to sub- mit a question of order. The CHIEF JUSTICE. The Senator from Wisconsin. Mr. HOWE. I submit if the motion offered by the Senator from Kentucky be in order. The CHIEFJUSTICE. The motion comes before the Senate in the shape of an order submitted by a member of the Senate and of the Court of Impeachment. The twenty-third rule requires that " all- the orders and decisions shall be made and had by yeas and nays, which shall be entered on the record, and without debate, subject, however, to the operation of rule seven." The seventh rule requires the Presiding Officer of the Senate to " submit to the Senate, without a division, all questions of evidence and incidental questions; but the same shall, on the demand of one fifth of the members present, be decided by yeas and nays. ' ' By amendment this rule has been applied to orders and decisions proposed by a member of the Senate under the twenty-third rule. The Chair rules, therefore, that the motion of the Senator from Kentucky is in order. Mr. CONNESS. Mr. President The CHIEF JUSTICE. No debate is allowed. Mr. CONNESS. Is the motion submitted by me in order in connection with it? The CHIEF JUSTICE. The chair thinks not. Several Senators. Let us have a square vote. Other Senators. Let us have the yeas and nays on the order proposed. The yeas and nays were ordered ; and being taken, resulted — yeas 2, nays 49 ; as follows : YEAS— Messrs. Davis and MeCreery— 2. NAYS — Messrs. Anthony, Buckalew, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Henderson, Hendricks, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Mor- ton, Norton, Nye, Patterson of Now Hampshire, Pat- terson of Tennessee, Pomeroy, Ramsey, Ross, Sher- man, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, van Winkle, Vickers, Willey, Williams, Wilson, and Yates— 49. ABSENT— Messrs. Bayard, Saulsbury, and Wade —3. The CHIEF JUSTICE. On the motion to adopt the order of the Senator from Kentucky, the yeas are 2, and the nays 49. The motion is lost. Are the counsel for the President ready to file their answer. Mr. STANBERY. Mr. Chief Justice, in obedience to the order of the honorable court, made atthe last session, that the answer of the President should be filed to-day, we have it ready. The counsel, abandoning all other en- gagements, some of us quitting our courts, our cases, and our clients, have devoted every hour to the performance of this duty. The labor has been incessant and exhaustive. We have devoted, as I say, not only every hour ordin- arily devoted to labor, but many required for necessary rest and recreation have been con- sumed in this work. It is a matter, Mr. Chief Justice, of profound regret to us that the hon- orable court did not allow us more time. Nevertheless we hope that the answer will be found in all respects sufficient within the law. Such as it is, we are now ready to read and file it. The CHIEF JUSTICE. The counsel will read the answer of the President. Mr. CURTIS proceeded to read the answer to the close of that portion relative to the first article of impeachment. Mr. STANBERY read that portion of the answer beginning with the reply to the second article to the close of the response to the ninth article. Mr. EVARTS read the residue of the answer. The answer is as follows : Senate of the United States, sitting as a Court of Impeachment for the trial of Andrew Johnson, President of the United States. The answer of the said Andrew Johnson, President of the United States, to the articles of impeachment exhibited against him by the House of Representatives of the United States. ANSWER TO ARTICLE I. For answer to the first article he says : that Edwin M. Stanton was appointed Secretary for the Department of War on the 15th day of January, A. D. 1862, by Abraham Lincoln, then President of the United States, during the first term of his Presidency, and was com- missioned, according to the Constitution and laws of the United States, to hold the said office during the pleasure of the President ; that the office of Secretary for the Department of War was created by an act of the First Con- gress in its first session passed on. the 7th day of August, A. D. 1789, and in and by that act it was provided and enacted that the said Sec- retary for the Department of War shall perform and execute such duties as shall from time to time be enjoined on and intrusted to him by the President of the United States, agreeably to the Constitution, relative to the subjects within the scope of the said Department ; and furthermore, that the said Secretary shall con- duct the business of the said Department in such a manner as the President of the United States shall, from time to time, order and in- struct. And this respondent, further answering, says that by force of the act aforesaid and by reason of his appointment aforesaid the said Stanton became the principal officer in one of the Ex- ecutive Departments of the Government within the true intent and meaning of the second sec- tion of the second article of the Constitution of the United States, and according to the true intent and meaning of that provision of the Constitution of the United States; and, in ac- cordance with the settled and uniform practice of each and every President of the United States, the said Stanton then became, and so long as he should continue to hold the said office of Secretary for the Department of War must continue to be, one of the advisers of the President of the United States, as well as^he person intrusted to act for and represent the President in matters enjoined upon him or in- trusted to him by the President touching the Department aforesaid, and for whose conduct in such capacity, subordinate to the President, the President is, by the Constitution and laws of the United States, made responsible. And this respondent, further answering, says he suc- ceeded to the office of President of the United States upon, and by reason of, the death of Abraham Lincoln, then President of the Uni- ted States, on the 15th day of April, 1865, and THE CONGRESSIONAL GLOBE. 13 the said Stanton was then holding the said office of Secretary. for the Department of War under and by reason of the appointment and commission aforesaid : and, not having been removed from the said office by this respond- ent, the said Stanton continued to hold the same under the appointment and commission aforesaid, at the pleasure of the President, until the time hereinafter particularly men- tioned ; and at no time received any appoint- ment or commission save as above detailed. And this respondent, further answering, says that on and prior to the 5th day of August, A. D. 1867, this respondent, the President of the United States — responsible for the conduct of the Secretary for the Department of War, and having the constitutional right to resort to and rely upon the person holding that office for advice concerning the great and difficult public duties enjoined on the President by the Con- stitution and laws of the United States— be- came satisfied that he could not allow the said Stanton to continue to hold the office of Secre- taryfor the Departmentof War without hazard of the public interest; that the relations be- tween the said Stanton and the President no longer permitted the President to resort to him for advice, or to be, in the judgment of the President, safely responsible for his conduct of the affairs of the Department of War, as by law required, in accordance with the orders and instructions of the President; and there- upon, by force of the Constitution and laws of the United States, which devolve on the Presi- dent the power and the duty to control the conduct of the business of that executive de- partment of the Government, and by reason of the constitutional duty of the President to take care that the laws be faithfully executed, this respondent did necessarily consider and did determine that the said Stanton ought no longer to hold the said office of Secretary for the De- partment of War. And this respondent, by virtue of the power' and authority vested in him as President of the United States, by the Constitution and laws of the United States, to give effect to such his decision and determin- ation, did, on the 5th day of August, A. D. 1867, address to the said Stanton a note, of which the following is a true copy : "Sir: Public considerations of a high character constrain me to say that your resignation as Secre- tary of War will be accepted." To which note the said Stanton made the following reply: War Department, Washington, August 5, 1867. Sir: Your note of this day has been received, stating that "publicconsiderationsof a high charac- ter constrain you" to say "that my resignation as Secretary of War will be accepted. " In reply I have the honor to say that public con- siderations of a high character, which alone have induced ine to continue at the head of this Depart- ment, constrain me not to resign the office of Secre- tary of War before the next meeting of Congress, Very respectfully, yours. EDWIN M. STANTON. This respondent, as President of the Uni- ted States, was thereon of opinion that, having regard to the necessary official relations and duties of the Secretary for the Department of War to the President of the United States, according to "the Constitution and laws of the United States, and having regard to the re- sponsibility of the President for the conduct of the said Secretary, and having regard to the permanent executive authority of the office which the respondent holds under the Consti- tution and laws of the United States, it was impossible, consistently with the public inter- ests, to allow the said Stanton to continue to hold the said office of Secretary for the De- partment of War ; and it then became the offi- cial duty of the respondent, as President of the United States, to consider and decide what act or acts should and might lawfully be done by him, as President of the United States, to cause the said Stanton to surrender the said office. This respondent was informed and verily believed that it was practically settled by the First Congress of the United States, and had been so considered and, uniformly and ingreat numbers of instances, acted on by each Con- gress and President of the United States, in succession, from President Washington to, and including, President Lincoln, and from the First Congress to the Thirty-Ninth Congress, that the Constitution of the United States con- ferred on the President, as part of the execu- tive power and as one of the necessary means and instruments of performing the executive duty expressly imposed on ljim by the Consti- tution of taking care that the laws be faith- fully executed, the power at any and all times of removing from office all executive officers for cause to be judged of by the President alone. This respondent had, in pursuance of the Constitution, required the opinion of each principal officer of the Executive Departments upon this question of constitutional executive power and duty, and had been advised by each of them, including the said Stanton, Secretary for the Department of War, that under the Constitution of the United States this power was lodged by the Constitution in the President of the United States, and that, consequently, it could be lawfully exercised by him, and the Congress could not deprive him thereof; and this respondent, in his capacity of President of the United States, and because in that ca- pacity he was both enabled and bound to use his best judgment upon this question, did, in good faith and with an earnest desire to arrive at the truth, come to the conclusion and opin- ion, and did make the same known to the hon- orable the Senate of the United States by a message dated on the 2d day of March, 1807, (a true.copy whereof is hereunto annexed and marked A,) that the power last mentioned was conferred and the duty of exercising it, in fit cases, was imposed on the President by the Constitution of the United States, and that the President could not be deprived of this power or relieved of this duty, nor could the same be vested- bylaw in the President and the Senate jointly, either in part or whole; and this has ever since remained and was the opinion of this respondent' at the time when he was forced as aforesaid to consider and decide what act or acts should and might lawfully be done, by this respondent, as President of the United States, to cause the said Stanton to surrender the said office. This respondent was also then aware that by the first section of "an act regulating the tenure of certain civil offices," passed March 2, 1867, by a constitutional majority of both Houses of Congress, it was enacted as follows : "That every personholdingany civil officeto which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly quali- fied, except as herein otherwise provided : Provided, That the Secretaries of State, of the Treasury, of War. of the Navy, and of the Interior, the Postmas- ter General, and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been ap- pointed, and one month thereafter, subject to re- moval by and with the advice and consent of tho Senate." This respondent was also aware that this act was understood and intended to be an ex- pression of the opinion of the Congress by which that act was passed, that the power to remove executive officers for cause might, by. law, be taken from the President and vested in him and the Senate jointly ; and although this respondent had arrived at and still retained the opinion above expressed and verily be- lieved, as he still believes, that the said first section of the last-mentioned act was and is wholly inoperative and void by reason of its conflict with the Constitution of the United States, yet, inasmuch as the same had been enacted by the constitutional majority in each of the two Houses of that Congress, this re- spondent considered it to be proper to examine and decide whether the particular case of the said Stanton, on which it was this respondent's duty to act, was within or without the terms of that first section of the act; or, if within it, whether the President had not the power, ac- cording to the terms of the act, to remove the said Stanton from the office of Secretary for the Department of War, and having, in his capacity of President of the United States, so examined and considered, did form the opin- ion that the case of the said Stanton and his tenure of office were not affected by the first section of the last-named a.ct. And this respondent further answering, says, that although a case thus existed which, in his judgment as President of the United States, called for the exercise of the executive power to remove the said Stanton from the office of Secretary for the Department of War, and although tljis respondent was of opinion, as is above shown, that under the Constitution of the United States the power to remove the said Stanton from the said office was vested in the President of the United States ; and although this respondent was also of the opinion, as is above shown, that the case of the said Stanton was not affected by the first section of the last- named act; and although each of the said opinions had been formed by this respondent upon an actual case, requiring him, in his ca- pacity of President of the United States, to come to some judgment and determination thereon, yet this respondent, as President of the United States, desired and determined- to avoid, if possible, any question of the construc- tion and effect of the said first section of the last-named act, and also the broader question of the executive power conferred on the Presi- dent of the United States, by the Constitution of the United States, to remove one of the principal officers of one of the Executive De-. partments for cause seeming to him sufficient ; and this respondent also desirjd and deter- mined that, if from causes over which he could exert no control, it should become absolutely necessary to raise and have, in some way, deter- mined either or both of the said last-named ques- tions, it was in accordance with the Constitution of the United States and was required of the President thereby, that questions of so much gravity and importance, upon which the legis- lative and executive departments of the Gov- ernment had disagreed, which involved powers considered by all branches of the Government, during its entire history down to the year 1867, to have been confided by the Constitution of the United States to the President, and to be necessary for the complete and proper execu- tion of his constitutional duties, should be in some proper way submitted to that judicial de- partment of the Government, intrusted by the Constitution with the power, and subjected by it to the duty, not only of determining finally the construction and effect of all acts of Con- gress, but of comparing them with the Consti- tution of the United States and pronouncing them inoperative when found in conflict with that fundamental law which the people have enacted for the government of all their ser- vants. And to these ends, first, that through the action of the Senate of the United States, the absolute duty of the President to substitute some fit person in place of Mr. Stanton as one of his advisers, and as a "principal subordinate officer whose official conduct he was respon- sible for and had lawful right to control, might, if possible, be accomplished without the neces- sity of raising any one of the.questions afore- said ; and, second, if this duty could not be so performed, then that these questions, or such of them as might necessarily arise, should be judicially determined in manner aforesaid, and for no other end or purpose this respond- ent, as President of the United States, on the 12th day of August, 1867, seven days after the reception of the letter of the said Stanton of the 5th of August, hereinbefore stated, did issne to the said Stanton the order following, namely : . Executive Mansion, Washington, Augustll, 1867. Sir : By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby suspended from offitje as Secretary of War, and will cease to exercise any and all functions pertaining to the same. You will at once transfer to General Ulysses S. Grant, who has this day been authorized and em- powered to act as Secretary of War ad interim, all 14 SUPPLEMENT TO records, books, papers, and other public property now in your custody and charge. Hon. Edwin M. Stanton, Secretary of War. To which said order the said Stanton made the following reply : War Department, Washington City, August 12, 1867. " Sir : Your note of this date has been received, informing me that by virtue of the powers vested in you, as President, by tho Constitution and laws of „ the Unitedjstates, I am suspended from office as Sec- retary of War, and will cease to exercise any and all iunctions pertaining to the same ; and also directing mo at once to transfer to General Ulysses S. Grant, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other public property now in my custody and charge. Under a sense of public, duty, I am compelled to denyyourright, under theConstitution and laws of tho United States, without the advice and consent of the Senate, and without legal cause, to suspend me from office as Secretary of War, or the exercise of any or all functions pertaining to the same, or without such advico and consent to compel me to transfer to any person the records, books, papers, and public property in my custody as Sec- retary. But inasmuch as tho Goneral commanding the armies of the United States has been appointed ad interim, anoxias notified me that he has accepted the appointment, I have no alternative but to submit, under protest, to superior force." To the President. And this respondent, further answering, says, that it is provided in and by the second section of "an act to regulatethe tenure of certain civil offices," that the President may suspend an officer from the performance of the duties of the office held by him, for certain causes therein designated, until the next meet- ing of the Senate and until the case shall be acted on by the Senate ; that this respondent, as President of the United States, was advised and he verily believed and still believes, that the executive power of removal from office confided to him by the Constitution as afore- said, includes the power of suspension from office at the pleasure of the President and this respondent, by the order aforesaid, did suspend the said Stanton from office, not until the next meeting of the Senate, or until the Senate should have acted upon the case, but by force of the power and authority vested in him by the Constitution and laws of the United States, indefinitely and at the pleasure of the President, and the order, in form afore- said, was made known to the Senate of the United States, on the 12th day of December, A. D. 1867, as will be more fully hereinafter stated. And this respondent, further answering, says, that in and by the act of February 13, 1795, it was, among other things, provided and enacted that, in case of vacancy in the office of Secretary for the Department of War, it shall be lawful for the President, in case he shall think it necessary, to authorize any per- son to perform the duties of that office until a successor be appointed or such vacancy filled, but not exceeding the term of six months; and this respondent, being advised and be- lieving that such law was in full force and not repealed, by an order dated August 12, 1867, did authorize and empower Ulysses S. Grant, General of the armies of the United States, to act as Secretary for the Department of War ad interim, in the form in which similar au- thority had theretofore been given, not until the next meeting of the Senate and until the Senate should act on the case, but at the pleasure of the President, subject only to the limitation of six months in the said last-men- tioned act contained ; and a copy of the last- named order was made known to the Senate of the United States on the 12th day of Decem- ber, A. D. 1867, as will be hereinafter more fully stated ; and in pursuance of the design and intention aforesaid, if it should become neces- sary, to submit the said questions to a judicial determination, this respondent, at or near the date of the last-mentioned order, did make known such his purpose to obtain a judicial decision of the said questions, or such of them as might be necessary. And this respondent, further answering, says, that in further pursuance of his intention and design, if possible to perform what he judged to be his imperative duty, to prevent the said Stanton from longer holding the office of Sec- retary for the Department of War, and at the same time avoiding, if possible, any question respecting the extent of the power of removal from executive office confided to the Pres- ident by the Constitution of the United States, and any question respecting the construction and effect of the first section of the said " act regulating the tenure of certain civil offices," while he should not, by any act of his, abandon and relinquish, either a power which he be- lieved the Constitution had conferred on the President of the United States, to enable him to perform the duties of his office, or a power designedly left to him by the first section of the act of Congress last aforesaid, this respond- ent did, on the 12th day of December, 1867, transmit to the Senate of the United States, a message, a copy whereof is hereunto annexed and marked B, wherein he made known the orders aforesaid and the reasons which had induced the same, so far as this respondent then considered it material and necessary that the same should be set forth, and reiterated his views concerning the constitutional power of removal vested in the President, and also expressed his views concerning the construc- tion of the said first section of the last-men- tioned act, as respected the power of the Pres- ident to remove the said Stanton from the said office of Secretary for the Department of War, well hoping that this respondent could thus perform what he then believed, and still be- lieves, to be his imperative duty in reference to the said Stanton, without derogating from the powers which this respondent believed were confided to the President, by the Con- stitution and laws, and without the necessity of raising, judicially, any questions respecting the same. And this respondent, further answering, says, that this hope not having been realized, the President was compelled either to allow the said Stanton to resume the said office and re- main therein contrary to the settled convictions of the President, formed as aforesaid, respect- ing the powers confided to him and the duties required of him by the Constitution of the United States, and contrary to the opinion formed as aforesaid, that the first section of the last-mentioned act did not affect the case of the said Stanton, and contrary to the fixed be- lief of the President that he could no longer advise with or trust or be responsible for the said Stanton, in the said office of Secretary for the Department of War, or else he was com- pelled to take such steps as might, in the judg- ment of the President, be lawful and necessary to raise, for a judicial decision, the questions affecting the lawful right of the said Stanton to resume the said office, or the power of the said Stanton to persist in refusing to quit the said office if he should persist in actually re- fusing to quit the same ; and to this end, and to this end only, this respondent did, on the 21st day of February, 1868, issue the order for the removal of the said Stanton, in the said first article mentioned and set forth, and the order authorizing the said Lorenzo F. Thomas to act as Secretary of War ad interim, in the said second article set forth. And this respondent, proceeding to answer specifically each substantial allegation in the said first article, says: He denies that the said Stanton, on the 21st day of February, 1868, was lawfully in possession of the said office of Secretary for the Department of War. He denies that the said Stanton, on the day last mentioned, was lawfully entitled to hold the said office against the will of the President of the United States. He denies that the said order for the removal of the said Stanton was unlawfully issued. He denies that the' said order was issued with intent to violate the act entitled " An act to regulate the tenure of cer- tain civil offices." He denies that the said order was a violation of the last-mentioned act. He denies that the said order was a viola- tion of the Constitution of the United States, or of any law thereof, or of his oath of office. He denies that the said order was issued with an intent to violate the Constitution of the United States or any law thereof, or this re- spondent's oath of office; and he respectfully, but earnestly, insists that not only was it issued by him in the performance of what he believed to be an imperative official duty, but in the performance of what this honorable court will consider was, in point of fact, an imper- ative official duty. And he denies that any and all substantive matters, in the said first article contained, in manner and form as the same are therein stated and set forth, do, by law, constitute a high misdemeanor in office, within the true intent and meaning of the Con- stitution of the United States. AXSWER TO ARTICLE II. And for answer to the second article this respondent says that he admits he did issue and deliver to said Lorenzo Thomas the said writing set forth in said second article, bearing date at Washington, District of Columbia, Feb- ruary 21, 1868, addressed to Brevet Major Gen- eral Lorenzo Thomas, Adjutant General United States Army, Washington, District of Colum- bia, and he further admits that the same was so issued without the advice and consent of the Senate of the United States, then in session, but he denies that he thereby violated the Constitution of the United States, or any law thereof, or that he did thereby intend to vio- late the Constitution of the United States, or the provisions of any act of Congress ; and this respondent refers to his answer to said first article for a full statement of the purposes and intentions with which said order was issued, and adopts the same as part of his answer to this article; and he further denies that there was then and there no vacancy in the said office of Secretary for the Department of War, or that he did then and there commit, or was guilty of a high misdemeanor in office, and this respondent maintains and will insist : 1. That at the date and delivery of said writ- ing there was a vacancy existing in the office of Secretary for the Department of War. 2. That, notwithstanding the Senate of the United States was then in session, it was law- ful and according to long and well established usage to empower and authorize the said Thomas to act as Secretary of War ad interim. 3. That, if the said act regulating the tenure of civil offices be held to be a valid law, no provision of the same was violated by the issu- ing of said order or by the designation of said Thomas to act as Secretary of War ad interim. AXSWER TO ARTICLE III. And for answer to said third article this respondent says that he abides by his answer to said first and second articles, in so far as the same are responsive to the allegations con- tained in the said third article, and, without here again repeating the same answer, prays the same be taken as an answer to this third article as fully as if here again set out at length; and as to the new allegation contained in said third article, that this respondent did appoint the said Thomas to be Secretary for the Department of War ad interim, this re- spondent denies that he gave any other au- thority to said Thomas than such as appears in said written authority set out in said article, by which he authorized and empowered said Thomas to act as Secretary for the Department of War ad interim; and he denies that the same amounts to an appointment and insists that it is only a designation of an officer of that Department to act temporaiily as Secre- tary for the Department of War ad interim until an appointment should be made. But, whetherthe said written authority amounts to an appointment or to a temporary authority or designation, .this respondent denies that iu any sense he did thereby intend to violate the Constitution of the United States, or that he thereby intended to give the said order the character or effect of an appointment in the constitutional or legal sense of that term. He further denies that there was no vacancy iu-said office of Secretary for the Department of War existing at the date of said written authority. THE CONGRESSIONAL GLOBE. 15 ANSWER TO ARTICLE IV. And for answer to said fourth article this respondent denies that on the said 21st day of February, 1868, at Washington aforesaid or at any other time or place, he did unlawfully conspire with the said Lorenzo Thomas, or with the said Thomas and any other person or persons, with intent by intimidations and threats unlawfully to hinder and prevent the said Stanton from holding said office of Sec- retary for the Department of War in violation of the Constitution of the United States or of the provisions of the said act of Congress in said article mentioned, or that he did then and there commit or was guilty of a high crime in office. On the contrary thereof, protesting that the said Stanton was not then and there lawfully the Secretary for the Department of War, this respondent states that his sole pur- pose in authorizing the said Thomas to act as Secretary for the Department of War ad in- terim was, as is fully stated in his answer to the sajd first article, to bring the question of the right of the said Stanton to hold said office, notwithstanding his said suspension and not- withstanding the said order of removal and notwithstanding the said authority of the said Thomas to act as Secretary of War ad interim, to the test of a final decision by the Supreme Court of the United States in the earliest practicable mode by which the question could be brought before that tribunal. This respondent did not conspire or agree with the said Thomas or any other person or persons to use intimidation or threats to hinder or prevent the said Stanton from holding the said office of Secretary for the Department of War, nor did this respondent at any time com- mand or advise the said Thomas or any other person or persons to resort to or use either threats or intimidation for that purpose. The only means in the contemplation or purpose of respondent to be. used are set forth fully in the said orders of February 21, the first addressed to Mr. Stanton and the second to the sa>d Thomas. By the first order the respondent notified Mr. Stanton that he was removed from the said office, and that his functions as Secre- tary for the Department of War were to termi- nate upon the receipt of that order, and he also thereby notified the said Stanton that the said Thomas had been authorized to act as Secre- tary for the Department of War ad interim, and ordered the said Stanton to transfer to him all the records, books, papers, and other public properly in his custody and charge ; and by the second order this respondent notified the said Thomas of the removal from office of the said Stanton, and authorized him to act as Secretary for the Department of War ad in- terim, and directed him to immediately enter upon the discharge of the duties pertaining to that office, and to receive the transfer of all the records, books, papers, and other public property from Mr. Stanton then in his custody and charge. Respondent gave no instructions to the said Thomas to use intimidation or threats to en- force obedience to these orders. He gave him no authority to call in the aid of the military or any other force to enable him to obtain pos- session of the office, or of the books, papers, records, or property thereof. The only agency resorted to or intended to be resorted to was by means of the said executive orders requir- ing obedience. But the Secretary for the De- partment of War refused to obey these orders, and still holds undisturbed possession and cus- tody of that Department, and of the records, books, papers, and other public property there- in. Respondent further states that, in execu- tion of the orders so by this respondent given to the said Thomas, he, the said Thomas, pro- ceeded in a peaceful manner to demand of the said Stanton a surrender to him of the public property in the said Department, and to vacate the possession of the same, and to allow him, the said Thomas, peaceably to exercise the duties devolved upon him by authority of the President. That, as this respondent has been informed and believes, the said Stanton per- emptorily refused obedience to the orders so issued. Upon such refusal no force or threat of force was used by the said Thomas, by au- thority of the President or otherwise, to en- force obedience, either then or at any subse- quent time. This respondent doth here except to the sufficiency of the allegations contained in said fourth article, and states for ground of excep- tion that it is not stated that there was any agreement between this respondent and the said Thomas, or any other person or persons, to use intimidation and threats, nor is there any allegation as to the nature of said intimi- dation and threats, or that there was any agree- ment to carry them into execution, or that any step was taken or agreed to be taken to carry them into execution, and that the allega- tion in said article that the intent of said con- spiracy was to use intimidation and threats is wholly insufficient, inasmuch as it is not al- leged that the said intent formed the basis or became a part of any agreement between the said alleged conspirators, and, furthermore, that there is no allegation of any conspiracy or agreement to use intimidation or threats. ANSWER TO ARTICLE V. And for answer to the said fifth article this respondent denies that on the said 21st day of February, 1868, or at any other time or times in the same year before the said 2d day of March, 1868, or at any prior or subsequent time, at Washington aforesaid or at any other place, this respondent did unlawfully conspire with the said Thomas, or with any other person or persons, to prevent or hinder the execution of the said act entitled "An act regulating the tenure of certain civil offices," or that, in pur- suance of said alleged conspiracy, he did un- lawfully attempt to prevent the said Edwin M. Stanton from holding said office of Secretary for the Department of War, or that he did thereby commit, or that he was thereby guilty of, a high misdemeanor in office. Respondent, protesting that said Stanton was not then and there Secretary for the Department of War, begs leave to refer to his answer given to the fourth article and to his answer given to the first article as to his intent and purpose in issuing the orders for the removal of Mr. Stan- ton and the authority given to the said Thomas, and prays equal benefit therefrom as if the same were here again repeated and fully set forth. And this respondent excepts to the suffi- ciency of the said fifth article, and states his ground for such exception, that it is not alleged by what means or by what agreement the said alleged conspiracy was formed or agreed to be carried out, or in what way the same was at- tempted to be carried out, or what were the acts done in pursuance thereof. ANSWER TO ARTICLE VI. And for answer to the said sixth article, this respondent denies that on the said 21st day of February, 1868, at Washington aforesaid, or at any other time or place, he did unlawfully conspire with the said Thomas by force to seize, take, or possess, the property of the United States in the Department of War, contrary to the provisions of the said acts referred to in the said article, or either of them, or with intent to violate either of them. Respondent, protest'-' ing that said Stanton was uot then and there Secretary for the Department of War, not only denies the said conspiracy as charged, but also denies any unlawful intent in reference to the custody and charge of the property of the Uni- ted States in the said Department of War, and again refers to his former answers for a full statement of his intent and purpose in the premises. ANSWER TO ARTICLE VII. And for answer to the said seventh article respondent denies that on the said 21st day of February, 1868, at Washington aforesaid, or at any other time and place, he did unlawfully conspire with the said Thomas with intent un- lawfully to seize, take, or possess the property of the United States in the Department of War with intent to violate or disregard the said act in the said seventh article referred to, or that he did then and there commit a high mis- demeanor in office. Respondent, protesting that the said Stanton was not then and there Secretary for the Department of War, again refers to his former answers, in so far as they are applicable, to show the intent with which he proceeded in the premises, and prays equal benefit therefrom, as if the same were here again fully repeated. Respondent further takes exception to the sufficiency of the allegations of this article as to the conspiracy alleged upon the same grounds as stated in the exception set forth in his answer to said article fourth. ANSWER TO ARTICLE VIII. And for answer to the said eighth article this respondent denies that on the 21st day of Feb- ruary, 1868, at Washington aforesaid, or at any other time and place, he did issue and deliver to the said Thomas the said letter of authority set forth in the said ^ighth article, with the intent unlawfully to control the dis- bursements of the money appropriated for the military service and for the Department of War. This respondent, protesting that there was a vacancy in the office of Secretary for the Department of War, admits that he did issue the said letter of authority, and he denies that the same was with any unlawful intent what- ever, either to violate the Constitution of the United States or any act of Congress. On the contrary, this respondent again affirms that his sole intent was to vindicate his authority as President of the United States, and by peace- ful means to bring the question of the right of the said Stanton to continue to hold the said office of Secretary of War to a final decision before the Supreme Court of the United States, as has been hereinbefore set forth ; and he prays the same benefit from his answer in the premises as if the same were here again re- peated at length. ANSWER TO ARTICLE IX. And for answer to the said ninth article the respondent states that on the said 22d day of February, 1868, the following note was ad- dressed to the said Emory by the private secre- tary of respondent : Executive Mansion, Washington, D. C, February 22. 1868. General: The President directs me to say that ho will be pleased to have you call upon him as early as practicable. Respectfully and truly yours, WILLIAM G. MOORE, United States Army. General Emory called at the Executive Man- sion according to this request. The object of respondent was to be advised by General Em- ory, as commander of the department of Wash- ington, what changes had been made in the military affairs of the department. Respondent had been informed that various changes had been made, which in nowise had been brought to his notice or reported to him from the De- partment of War or from any other quarter, and desired to ascertain the facts. After the said Emory had explained in detail the changes which had taken place, said Emory called the attention of respondent to a general order which he referred to and which this respondent then sent for, when it was produced. It is as follows : [General Orders No. 17.1 War Department. Adjutant General's Office, Washington, March 14, 1867. The following acts of Congress are published for the information and government of all concerned: II— Public— No. 85. An act making appropriations for the support of the Army for the year ending June 30, 1868, and for other purposes. Sec. 2. And be it further enacted, That the head- quarters of the General of the Army of the United States shall be at the city of Washington, and all orders andinstructions relating to military operations issued by the President or Secretary of War shall be issued through the General of the Army, and in case of his inability through the next in rank. The Gen- 16 SUPPLEMENT TO era! of the Army shall not be removed, suspended, or relieved from command or assigned to duty elsewhere than at said headquarters, except at his own request, without the previous apcroval of the Senate; and any orders or instructions relating to military oper- ations issued contrary to the requirements of this section shall be null and void: and any officer who shall.issuo orders or instructions contrary to the pro- visions of this section shall be deemed guilty of a misdemeanor in office ; and any officer of the Army who shall transmit, convey, or obey any orders or instructions so issued contrary to the provisions of this section, knowing thatsuch orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in any court of competent jurisdiction. **********.>• Approved March 2, 1867. ********--«*«1 By order of the Secretary of War. E. D. TOWNSEND, Assistant Adjutant General. Official: , Assistant Adjutant General. General Emory not only called the attention of respondent to this order, but to the fact that it was in conformity with a section contained in an appropriation act passed by Congress. Respondent, after reading the order, observed, "This is not in accordance with the Constitu- tion of the United States, which makes me Commander-in-Chief of the Army and Navy, or of the language of the commission which you hold." General Emory then stated that this order had met respondent's approval. Re- spondent then said in reply, in substance, "Am I to understand that the President of the United States cannot give an order but through the General-in-Chief, or General Grant?" General Emory again reiterated the statement that it had met respondent's approval, and that it was the opinion of some of the leading lawyers of the country that this order was constitutional. With some farther conversation, respondent then inquired the names of the lawyers who had given the opinion, and he mentioned the names of two. Respondent then said that the object of the law was very evident, referring to the clause in the appropriation act upon which the order purported to be based. This, according to respondent's recollection was the substance of the conversation had with General Emory. Respondent denies that any allegations in the said article of any instructions or declara- tions givert to the said Emory then or at any other time contrary to or in addition to what is hereinbefore set forth are true. Respondent denies that, in said conversation with said Emory, he had any other intent than to ex- press the opinions thengiven to the said Emory, nor did he then or at any time request or order the said Emory to disobey any law or any order issued in conformity with any law, or in- tend to offer any inducement to the said Emory to violate any law. What this respondent then said to General Emory was simply the expres- sion of an opinion which he then fully believed to be sound and which he yet believes to be so, and that is, that by the express provisions of the Constitution this respondent, as President, is made the Commander-in-Chief of the Armies of the United States, and as such he is to be respected, and that his orders, whether issued through the War Department or through the General-in-Chief, or by any other channel of communication, are entitled to respect and obedience, and that such constitutional power cannot be taken from him by virtue of any act of Congress. Respondent doth therefore deny that by the expression of such opinion he did commit or was guilty of a high misdemeanor in office; and this respondent doth further say that the said article nine lays no foundation whatever for the conclusion stated in the said article, that the respondent, by reason of the allegations therein contained, was guilty of a high misdemeanor in office. fn reference to the statement made by Gen- eral Emory that this respondent had approved of said act of Congress containing the section referred to, the respondent admits that his formal approval was given to said act, but ac- companied the same by the following message, addressed and sent with the act to the House of Representatives, in which House the said act originated, and from which it came to re- spondent : To the House of Rei>re»culatives: The act entitled "An act making appropriations for the support of the Army for the year ending June 30,1868, and for other purposes," contains provisions to which I must call attention. These provisions are contained in tho second section, which, in certain cases, virtually deprives tho President of his consti- tutional functions as Commander-in-Chief of tbe Army, and in the sixth section, which denies to ten States of the Union their constitutional right to pro- tect themselves, in any emergency, by means of their own militia. These provisions are out of place in an appropriation act, but I am compelled to defoat these necessary appropriations if I withhold my sig- nature from tho act. Pressed by these considera- tions, I feel constrained to return the bill with my signature, but to accompany it with my earnest pro- test against the sections which I have indicated. Washington, D. C, March 2, 1867. Respondent, therefore, did no more than to express to said Emory the same opinion which he had so expressed to the House of Repre- sentatives. ANSWER TO ARTICLE X. And in answer to the tenth article and speci- fications thereof the respondent says that on the 14th and 15th days of August, in the year 1866, a political convention of delegates from all or most of the States and Territories of the Union was held in the city of Philadelphia, under the name and style of the National Union Convention, for the purpose of main- taining and advancing certain political views and opinions before the people of the United States, and for their support and adoption in the exercise of the. constitutional suffrage, in the elections of Representatives and Delegates in Congress, which were soon to occur in many of the States and Territories of the Union; which said convention, in the course of its proceedings, and in furtherance of the objects of the same, adopted a "declaration of principles " and "an address to the people of the United States," and appointed a com- mittee of two of its members from each State and of one from each Territory and one from the District of Columbia to wait upon the Presi- dent of the United States and present to him a copy of the proceedings of the convention ; that on the 18th day of said month of August this committee waited upon the President of the United States at the Executive Mansion, and was received by him in one of the rooms thereof, and by their chairman, Hon. Reverdy Johnson, then and now a Senator of the United States, acting and speaking in their behalf, presented a copy of the proceedings of the convention, and addressed, the Presi- dent of the United States in a speech, of which a copy (according to a published report of the same, and as the respondent believes substan- tially a correct report,) is hereto annexed as a part of this answer, and marked Exhibit C. That thereupon, and in reply to the address of said committee by their chairman, this re- spondent addressed the said committee so waiting upon him in one of the rooms of the Executive Mansion ; and this respondent be- lieves that this his address to said committee is the occasion referred to in the first specifi- cation of the tenth article ; but this respondent does not admit that the passages therein set forth, as if extracts from a speech or address of this respondent upon said occasion, cor- rectly or justly present his speech or address upon said occasion, but, on the contrary, this respondent demands and insists that if this honorable court shall deem the said article and the said first specification thereof to contain allegation of matter cognizable by this honor- able court as a high misdemeanor in office, within the intent and meaning of the Constitu- tion of the United States, and shall receive or allow proof in support of the same, that proof shall be required to be made of the actual speech and address of this respondent on said occa- sion, which this respondent denies that said article and specification contain or correctly or justly represent. And this respondent, further answering the tenth article and the specifications thereof, says that at Cleveland, in the State of Ohio, and on the 3d day of September, in the year 1866, he was attended by a large assemblage of his fel- low-citizens, and in deference and obedience to their call and demand he addressed them upon matters of public and political consideration ; and this respondent believes that said occasion and address are referred to in the second spe- cification of the tenth article ; but this respond- ent does not admit that the passages therein set forth, as if extracts from a speech of this respondent on said occasion, correctly or justly present his speech or address upon said occa- sion ; but, on the contrary, this respondent de- mands and insists that if this honorable court shall deem the said article and the said second specification thereof to contain allegation of matter cognizable by this honorable court as a high misdemeanor in office, within the intent and meaning of the Constitution of the United States, and shall receive or allow proof in sup- port of the same, that proof shall be required to be made of the actual speech and address of this repondent on said occasion, which this respondent denies that said article and specifi- cation contain or correctly or justly represent. And this respondent, further answering the tenth article and the specifications thereof, says that at St. Louis, in the State of Missouri, and on the 8th day of September, in the year 1866, he was attended by a numerous assemblage of his fellow-citizens, and in deference and obe- dience to their call and demand he addressed them upon matters of public and political con- sideration ; and this respondent believes that said occasion and address are referred to in the third specification of the tenth article ; but tbi3 respondent does not admit that the passages therein set forth, as if extracts from a speech of this respondent on said occasion, correctly or justly present his speech or address upon said occasion ; but, on the contrary, this respon- dent demands and insists that if this honorable court shall deem the said article and the said third specification thereof to contain allegation of matter cognizable by this honorable court as a high misdemeanor in office, within the intent and meaning of the Constitution of the United States, and shall receive or allow proof in sup- port of the same, that proof shall be required to be made of the actual speech and address of this respondent on said occasion, which this respondent denies that the said article and spe- cification contain or correctly or justly repre- sent. And this respondent, further answering the tenth article, protesting that he has not been unmindful of the high duties of his office, or of the harmony or courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States, denies that he has ever in- tended or designed to set aside the rightful authority or powers of Congress, or attempted to bring into disgrace, ridicule, hatred, con- tempt, or reproach the Congress of the United States or either branch thereof, or to impair or destroy the regard or respect of all or any of the good people of the United States for the Congress or the rightful legislative power thereof, or to excite the odium or resentment of all or any of the good people of the United States against Congress and the laws by it duly and constitutionally enacted. This re- spondent further says that at all times he has, in his official acts as President, recognized the authority of the several Congresses of the United States as constituted and organized during his administration of the office of Presi- dent of the United States. And this respondent, further answering, says that he has, from time to time, under his con- stitutional right and duty as President of the United States, communicated to Congress his views and opinions in regard to such acts or resolutions thereof as, being submitted to him as President of the United States in pursuance of the Constitution, seemed to this respondent to require such communications ; and he has, from time to time, in the exercise of that free- dom of speech which belongs to him as a citi- zen of the United States, and, in his political relations as President of the United States to THE CONGRESSIONAL GLOBE. 17 the people of the United States, is upon fit occasions a duty of the highest obligation, ex- pressed to his fellow-citizens his views and opinions respecting the measures and proceed- ings of Congress ; and that in such addresses to his fellow-citizens and in such his com- munications to Congress he has expressed his views, opinions, and judgment of and concern- ing the actual constitution of the two Houses of Congress without representation therein of certain States of the Union, and of the effect that in wisdom and justice, in the opinion and judgment of this respondent, Congress, in its legislation and proceedings, should give to this political circumstance ; and whatsoever he has thus communicated to Congress or addressed to his fellow-citizens or any assemblage thereof, this respondent says was and is within and ac- cording to his right and privilege as an Ameri- can citizen and his right and duty as President of the United States. And this respondent, not waiving or at all disparaging his right of freedom of opinion and of freedom of speech, as hereinbefore or hereinafter more particularly set forth, but claiming and insisting upon the same, further answering the said tenth article, says that the views and opinions expressed by this respond- ent in his said addresses to the assemblages of his fellow-citizens, as in said article or in this answer thereto mentioned, are not and were not intended to be other or different from those expressed by him in his communications to Congress — that the eleven States lately in insurrection never had ceased to be States of the Union, and that they were then entitled to representation in Congress by loyal Represen- tatives and Senators as fully as the other States of the Union, and that, consequently, the Con- gress, as then constituted, was not, in fact, a Congress of all the States, but a Congress of only a part of the States. This respondent, always protesting against the unauthorized ex- clusion fherefrom of the said eleven States, nevertheless gave his assent to all laws passed by said Congress which did not, in his opinion and judgment, violate the Constitution, exer- cising his constitutional authority of returning bills to said Congress with his objections when they appeared to him to be unconstitutional or inexpedient. And, further, this respondent has also ex- pressed the- opinion, both in his communica- tions to Congress and in his addresses to the people, that the policy adopted by Congress in reference to the States lately in insurrection did not tend to peace, harmony, and union, but, on the contrary, did tend to disunion and the permanent disruption of the States, and that, in following its said policy, laws had been passed by Cengress in violation of the funda- mental principles of the Government, and which tended to consolidation and despotism ; and, such being his deliberate opinions, he would have felt himself unmindful of the high duties of his office if he had failed to express them in his communications to Congress or in his addresses to the people when called upon by them to express his opinions on matters of public and political consideration. And .this respondent, further answering the tenth article, says that he has always claimed and insisted, and now claims and insists, that both in his personal and private capacity of a citizen of the United States, and in the politi- cal relations of the President of the United States to the people of the United States, whose servant, underthe duties and reponsibilities of the Constitution of the United States, the President of the United States is and should always remain, this respondent had and has the full right, and in his office of President of the United States is held to the high duty, of forming, and on fit occasions expressing, opinions of and concerning tire legislation of Congress, proposed ot completed, in respecti of its wisdom, expediency, justice, worthiness,: objects, purposes, and public and political motives and tendencies ; and within and as a part of such right and duty to form, and on fit occasions to express, opinions of and con- SUPPLEMENT — 2. cerning the public character and conduct, views, purposes, objects, motives, and tendencies of all men engaged in the public service, as well in Congress as otherwise, and under no other rules or limits upon this right of freedom of opinion and of freedom of speech, or of respon- sibility and amenability for the actual exercise of such freedom of opinion and freedom of speech, than attend upon such rights and their exercise on the part of all other citizens of the United States, and on the part of all their public servants. And this respondent, further answering said tenth article, says that the several occa- sions on which, as is alleged in the several specifications of said article, this respondent addressed his fellow-citizens on subjects of public and political considerations were not, norwas anyone of them, soughtor planned by this respondent ; but, on the contrary, each of said occasions arose upon the exercise of a lawful and accustomed right of the people of the United States to call upon their public ser- vants and express to them their opinions, wishes, and feelings upon matters of public and political consideration, and to invite from such, their public servants, an expression of their opinions, views, and feelings on matters of public and political consideration ; and this respondent claims and insists before this houor- able court, and before all the people of the United States, that of or concerning this his right of freedom of opinion and of freedom of speech, and this his exercise of such rights on ail matters of public and political considera- tion, and in respect of all public servants or persons whatsoever engaged in or connected therewith, this respondent, as a citizen or as President of the United States, is not subject to question, inquisition, impeachment, or in- culpation in any form or manner whatsoever. And this respondent says that neither the said tenth article nor any specification thereof nor any allegation therein contained touches or relates to any official act or doing of this re- spondent in the office of President of the Uni- ted States or in the discharge of any of its constitutional or legal duties or responsibili- ties; but said article and the specifications and allegations thereof, wholly and in every part thereof, question only the discretion or propri- ety of freedom of opinion or freedom of speech, as exercised by this respondent as a citizen of the United States in his personal right and capacity, and "without allegation or imputation against this respondent of the violation of any law of the United States touching or relating to freedom of speech or its exercise by the citizens of the United States, or by this re- spondent as one of the said citizens or other- wise ; and he denies that by reason of any matter in said article or its specifications al- leged he has said or done anything indecent or unbecoming in the Chief Magistrate of the United States, or that he has brought the high office of the President of the United States into contempt, ridicule, or disgrace, or that he has committed or has been guilty of a high misdemeanor In office. ANSWER TO ARTICLE XI. And in answer to the eleventh article this respondent denies that on the 18th day of Au- gust, in the year 1866, at the city of Washing- ton, in the District of Columbia, he did, by pub- lic speech or otherwise, declare or affirm, in sub- stance or at all, that the Thirty-Ninth Congress of the United States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the same, or that he did then and there declare or affirm that the said Thirty-Ninth Congress was a Congress of only part of the States in any sense or mean- ing other than that ten States of the Union were denied representation therein ; or that he made any or either of the declarations or affirmations in this behalf, in the said article alleged, as denying or intending to deny that the legisla- tion of said Thirty-Ninth Congress was valid or obligatory upon this respondent, except so far as this respondent saw fit to approve the same ; and as to the allegation in said article, that he did thereby intend or mean to be un- derstood that the said Congress had not power to propose amendments to the Constitution, this respondent says that in said address he said nothing in reference to the subject of amend- ments of the Constitution, nor was the question of the competency of the said Congress to pro- pose such amendments, without the participa- tion of said excluded States, at the time of said address, in any way mentioned or con- sidered or referred to by this respondent, nor in what he did say had he any intent regarding the same, and he denies the allegation so made to the contrary thereof. But this re- spondent, in further answer to, and in respect of, the said allegations of the said eleventh arti- cle hereinbefore traversed and denied, claims and insists upon his personal and official right of freedom of opinion and freedom of speech, and his duty in his political relations as Presi- dent of the United States to the people of the United States in the exercise of such freedom of opinion and freedom of speech, in the same manner, form, and effect as he has in this be- half" stated the same in his answer to the said tenth article, and with the same effect as if he here repeated the same ; and he further claims and insists, as in said answer to said tenth article he has claimed and insisted, that he is not subject to question, inquisition, impeach- ment, or inculpation, in any form or manner, of or concerning such rights of freedom of opinion or freedom of speech or his said alleged exercise thereof. And this respondent further denies that, on the 21st day of February, in the year 1868, or at any other time, at the city of Washington, in the District of Columbia, in pursuance of any such declaration as is in that behalf in said- eleventh article alleged, or otherwise, he did unlawfully, and in disregard of the require- ment of the Constitution that he should take care that the laws should be faithfully exe- cuted, attempt to prevent the execution of an act entitled "An act regulating the tenure of certain civil offices," passed March 2, 1867, by unlawfully devising or contriving, or at- tempting to devise or contrive, means by which he should prevent Edwin M. Stanton from forthwith resuming the functions of Secretary for the Department of War ; or by unlawfully devising or contriving, or attempting to devise or contrive, means to prevent the execution of an act entitled "An act making appropriations for the support of the Army for the fiscal year ending June 30, 1868, and for other purposes," approved March 2, 1867, or to prevent the execution of an act entitled ' 'An act to pro- vide for the more efficient government of the rebel States," passed March 2, 1867. And this respondent, further answering the said eleventh article, says that he has, in his answer to the first article, set forth in detail the acts, steps, and proceedings done and taken by this respondent to and toward or in the matter of the suspension or removal of the said Edwin M. Stanton in m from the office of Secretary for the Department of War, with the times, mod^es, circumstances, intents, views, purposes, and opinions of official obligation and duty under and with which such acts, steps, and proceedings were done and taken ; and he makes answer to this eleventh article of the matters in his answer to the first article, per- taining to the suspension or removal of said Edwin M. Stanton, to the same intent and effect as if they were here repeated and set forth. And this respondent, further answering the said eleventh article, denies that by means or reason of anything in said article alleged this respondent, as President of the United States, did, on the 21st day of February, 1868, or'at any other day or time, commit, or that he was guilty of, a high misdemeanor in office. And this respondent, further answering the said eleventh article, says that the same and the matters therein contained do not charge or allege the commission of any act whatever by this respondent, in his office of President of the United States, nor the omission by this 18 SUPPLEMENT TO respondent of any act of official obligation or duty in his office of President of the United States ; nor does the said article nor the mat- ters therein contained name, designate, de- scribe, or define any act or mode or form of attempt, device, contrivance, or means, or of attempt at device, contrivance, or means, •whereby this respondent can know or under- stand what act or mode or form of attempt, device^ contrivance, or means, or of attempt at device, contrivance, or means, are imputed to or charged against this respondent, in his office of President of the United States, or in- tended so to be, or whereby this respondent can more fully or definitely make answer unto the said article than he hereby does. And this respondent, in submitting to this honorable court this his answer to the articles of impeachment exhibited against him, respect- fully reserves leave to amend and add to the same from time to time, as may become neces- sary or proper, and when and as such neces- sity and propriety shall appear. ANDREW JOHNSON. Henry Stanbery, B. R. Curtis, Thomas A. R. Nelson, William M. Evarts, W. S. Groesbeck, Of Counsel. Exhibit A. Message, March 2, 1867. To the Senate of the United States : I have carefully examined the bill to regu- late the tenure of certain civil offices. The material portion of the bill is contained in the first section, and is of the effect following, namely : That everyperson holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any suoh office, and shall become duly Qualified to act therein, is and shall bo entitled to hold such office until a successor shal i have been appointed by the President, with the advice and consent of the Senate, and duly qualified ; and that the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster Gen- eral, and the Attorn ey General, shall hold their offices respectively for and during the term of the President by whomthey may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate. These provisions are qualified by a reserva- tion in the fourth section, "that nothing con- tained in the bill shall be construed to extend the term of any office the duration of which is limited bylaw." In effect the bill provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law without the advice and consent of the Senate of the United States. The bill, in this respect, conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means a new one. That the power of removal is constitutionally vested in the President of the United States is a prin- ciple which has been not more distinctly de- clared by judicial authority and judicial com- mentators than it has been uniformly practiced upon by the legislative and executive depart- ments of the Government. The question arose in the House of Representatives so early as the 16th day of June, 1789, on the bill for estab- lishing an executive Department, denominated "The Department of Foreign Affairs." The first clause of the bill, after recapitulating the functions of that officer and defining his duties, had these words: "To be removable from office by the President of the United States." It was moved to strike out these words, and the motion was sustained with great ability and vigor. It was insisted that the President could not constitutionally exercise the power of re- moval exclusive of the Senate ; that the Fed- eralist so interpreted the Constitution when arguing for its adoption by the several States ; that the Constitution had nowhere given the President power of removal, either expressly or by strong implication ; but, on the contrary, had distinctly provided for removals from office by impeachment only. A construction which denied the power of removal by the President was further maintained by arguments drawn from the danger of the abuse of the power : from the supposed tendency of an exposure of public officers to capricious removal, to impair the efficiency of the civil service ; from the alleged injustice and hardship of displacing incumbents, dependent upon their official sta- tions, without sufficient consideration ; from a supposed want of responsibilty on the part of the President, and from an imagined defect of guarantees against a 'vicious President, who might incline to abuse the power. On the other hand, an exclusive power of removal by the President was defended as a true exposition of the text of the Constitution. It was maintained that there are certain causes for which persons ought to be removed from office without being guilty of treasou, bribery, or malfeasance, and that the nature of things demands that it should be so. "Suppose," it was said, "a man becomes insane by the visit- ation of God, and is likely to ruin our affairs : are the hands of Government to be confined from warding off the evil? Suppose a person in office not possessing the talents he was judged to have at the time of the appointment: is the error not to be corrected ? Suppose he acquire vicious habits and incurable indolence, or to- tally neglect the duties of his office, which shall work mischief to the public welfare : is there no wayto arrest the threatened danger? Suppose he become odious and unpopular by reason of the measures he pursues, and this he may do without committing any positive offense against the law : must he preserve his office in despite of the popular will? Suppose him grasping for his own aggrandizement and the elevation of his connections by every means short of the treason defined by the Constitution, hurrying your affairs to the precipice of de- struction, endangering your domestic tranquil- lity, plundering you of the means of defense, alienating the affections of your allies, and pro- moting the spirit of discord: must the tardy, tedious, desultory road, by way of impeachment, be traveled to overtake the man who, barely confining himself within the letter of the law, is employed in "drawing off the vital principle of the Government?' ' The nature of things, the great objects of society, the express objects of the Constitution itself require that this thing should be otherwise. To unite the Senate with the President " in the exerciseof the power," it was said, " would involve us" in the most serious difficulty. "Suppose a discovery of any of these events should take place when the Senate is not in session, how is the remedy to be applied? The evil could be avoided in no other way than by the Senate sitting always." In regard to the danger of the power being abused if exercised by one man, it was said "that the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impres- sions and opinions ;" that such a body is more likely to misuse the power of removal than the man whom the united voice of America calls to the presidential chair. As the nature of government requires the power of removal, it was maintained "that it should be exercised in this way by tire hand capable of exerting itself with effect, and the power must be con- ferred on the President by the Constitution as the executive officer of the Government." Mr. Madison, whose adverse opinion in the Federalist had been relied upon by those who denied the exclusive power, now participated in the debate. He declared that he had re- viewed his former opinions, and he summed up the whole ease as follows : "The Constitution affirms thattheexecutivopowcr is vested in the President. Are there exoeptions to this proposition? Yes, there are. The Constitution says that in appointing to office the Senate shall be associated with the President, unless in the case of inferior officers, when tho law shall otherwise direot. Have wo (that is, Congross) a right to extend this exception? I believe not. If tho Constitution has invested all exeoutive power in the President, I return to assert that tho Legislature has no right to diminish or modify his executive authority. The question now rcsolvesitselfintothisdB there powerofdisplacingOT executive power? I concoive that if any power whatever is in tho Executive it is in the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not quali- fied tho power of tho President in appointing to office by associating the Senate with him in that busi- ness, would it not bo clear that ho would have the right by virtue of his executive power to make such appointment? Should we be authorized, in defiance of that clause in the Constitution— the executiyo power shall be vested in tho President'— to unite the Senate with the President in the appointment to office? I conceive not. It is admitted [that we should not bo authorized to do this. I think it may bo dis- puted whether we have a right to associate them in removing persons from office, the one power being as much of an executive nature as the other; and the first is authorized by being excepted out of the gen- eral rule established by tho Constitution in these words : ' The executive power shall be vested in the President/ " The question thus ably and exhaustively argued was decided by the House of Repre- sentatives, by a vote of 34 to 20, in favor of the principle that the executive power of re- moval is vested by the Constitution in the Executive, and in the Senate by the casting vote of the Vice President. The question has often been raised in subsequent times of high excitement, and the practice of the Govern- ment has nevertheless conformed in all cases to the decision thus early made._ The question was revived during the admin- istration of President Jackson, who made, aa is well recollected, a very large number of re- movals, which were made an occasion of close and rigorous scrutiny and remonstrance. The subject was long and earnestly debated in tho Senate, and the early construction of the Con- stitution was nevertheless freely accepted as binding and conclusive upon Congress. The question came before the Supreme Court of the United States in January, 1839, ex park Herren. It was declared by the court on that occasion that the power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of the Government. This related, however, to the power of the President to remove officers appointed with the concur- rence of the Senate, and the greatquestion was whether the removal was to be by the President alone or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove where the tenure of the office was not fixed by the .Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment ; but it was very early adopted as a practical construction of the Con- stitution that this power was vested in the President alone, and such would appear, to have been the legislative construction of the Constitution, for in the organization of the three great Departments of State, War, and Treasury, in 1789, provision was made for the appointment of a subordinate officer by the head of the Department, who should have charge of the records, books, and papers appertaining to the office when the head of the Department should be removed from office by the President of the United States. When the Navy Depart ment was established, in the year 1798, pro- vision was made for the charge and custody of the books, records, and documents of the Department in case of vacancy in the office of Secretary, by removal or otherwise. It is not here said "by removal of the President," as it is done with respect to the heads of the other Departments ; yet there can be no doubt that he holds his office with the same tenure as the other Secretaries, and is removable by the President. The change of phraseology arose probably from its having become tie settled and well-understood construction of the Con- stitution that the power of removal was vested in the President alone in such cases, although the appointment of the officer is by the Presi- dent and Senate. (13 Peters, page 139.) Our most distinguished and accepted com- mentators upon the Constitution concur in the construction thus early given by Congress, and thus sanctioned by the Supreme Court. After a full analysis, of the congressional debate to TTT IE CONGRESSIONAL GLOBE. 19 which I have referred, Mr. .1 uslice Story comes to this conclusion : " After a most animated discussion, the vote finally taken in the House of Ropresen tatives was affirmative of tho power of removal in the President without any cooperation of the Senate by the vote of 34 members against 20. In the Senate tho clause in the bill a fann- ing the power was carriod by tho casting vote of the Vice President. That the final decision of this ques- tion so made was groatly influenced by the exalted character of the President then in office was assorted at the time, and has always been believed; yet the doctrine was opposed as well as supported by tho highest talent and patriotism of the country. Tho public have acquiesced in -this decision, and it con- stitutes perhaps the most extraordinary case in tho history of the Government of a power conferred by implication on the Executive by the assent of a bare majority of Congress which has not been questioned on many other occasions." The commentator adds: " Nor is this general acquiescence and silence with- out a satisfactory explanation." Chancellor Kent's remarks on the subject are as follows : " On the first organization of the Government it was made a question whether the power of removal in case of officers ap- pointed to hold at pleasure resided nowhere but in the body which appointed," and, of course, whether the consent of the Senate was not requisite to remove. This was the con- " struction given to the Constitution while it was pending for ratification before the State con- ventions by the author of the Federalist. But the construction which was given to the Con- stitution by Congress after great consideration and discussion was different. The words of the act (establishing the Treasury Department) Are, ' ' and whenever the same shall be removed from office by the President of the United States, or in any case of vacancy in the office, the assistant shall act." This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as a decisive authority in the case. It applies equally to every other officer of the Government appointed by the President whose term of duration is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive depart- ment ought to hold at the pleasure of the head of the department, because he is invested gen- erally with the executive authority, and the participation in that authority by the Senate was an exception to a general principle, and ought to be taken strictly. The President is the great responsible officer for the execution of t&e law, and the power of removal was inci- dental to that duty, and might often be requi- site to fulfill it. Thus has the important ques- tion presented by this bill been settled, in the language of the late Daniel Webster, (who, while dissenting from it, admitted that it was settled,) by construction, settled by the prac- tice of the Government, and settled by statute. The events of the last war furnished a practi- cal confirmation of the wisdom of the Consti- tution as it has hitherto been maintained in many of its parts, including that which is now the subject of consideration. When the war broke out rebel enemies, traitors, abettors, and sympathisers were found in every department of the Government, as well in the civil service as in the land and naval military service. They were found in Congress and among the keepers of the Capitol, in foreign missions, in each and all of the Executive Departments, in the judi- cial service, in the Post Office, and among the agents for conducting Indian affairs, and upon probable suspicion they were promptly dis- placed by my predecessor, so far as tbey held their offices under executive authority, and their duties were confided to new and loyal successors. No complaints against that power or doubts of its wisdom were entertained in any quarter. I sincerely trust and believe that no such civil war is likely to occur again. I cannot doubt, however, that in whatever form and on whatever occasion sedition can rise, an effort to hinder or embarrass or defeat the legitimate action of this Government, whether by preventing the collection of revenue or dis- turbing the public peace, or separating the States, or betraying the country to a foreign enemy, the power of removal from office by the Executive, as it has heretofore existed and been practiced, will be found indispensable. Under these circumstances, as a depository of the executive authority of the nation^ I do not feel at liberty to unite with Congress in revers- ing it by giving my approval of the bill. At the early day when the question was set- tled, and, indeed, at the several periods when it has subsequently been agitated, the success of the Constitution of the United States as a new and peculiar system of free representative government was held doubtful in other coun- tries, and was even a subject of patriotic appre- hension among the American people them- selves. A trial of nearly eighty years, through the vicissitudes of foreign conflicts and of civil war, is confidently regarded as having extin- guished all such doubts and apprehensions for the future. During that eighty years the peo- ple of the United States have enjoyed a meas- ure of security, peace, prosperity, and happi- ness never surpassed by any nation. It cannot be doubted that the triumphant success of the Constitution is due to the wonderful wisdom with which the functions of government were distributed between the three principal depart- ments — the legislative, the executive, and the judicial — and to the fidelity with which each has confined itself or been confined by the gen- eral voice of the nation within its peculiar and proper sphere. While a just, proper, and watchful jealousy of executive power constantly prevails, as it ought ever to prevail, yet it is equally true that an efficient Executive, capable, in the lan- guage of the oath prescribed to the President, of executing the laws within the sphere of executive action, of preserving, protecting, and defending the Constitution of the United States, is an indispensable security for tranquillity at home, and peace, honor, and safety abroad. Governments have been erected in many coun- tries upon our model. If one or many of them have thus far failed in fully securing to their people the benefits which we have derived from our system, it may be confidently asserted that their misfortune has resulted from their unfor- tunate failure to maintain the integrity of each of the three great departments while preserving harmony among them all. Having at an early period accepted the Con- stitution in regard to the executive office in the sense to which it was interpreted with the concurrence of its founders, I have found no sufficientgroundsin the arguments now opposed to that construction or in any assumed neces- sity of the times for changing those opinions. For these reasons I return the bill to the Sen- ate, in which House it originated, for the fur- ther consideration of Congress, which the Con- stitution prescribes. Insomuch as the several parts of the bill which I have not considered are matters chiefly of detail, and are based alto- gether upon the theory of the Constitution from which 1 am obliged to dissent, I have not thought it necessary to examine them with a view to make them an k occasion of distinct and special objections. Experience, I think, has shown that it is the easiest, as it is also the most attractive, of studies to frame constitu- tions for the self-government of free States and nations. But I think experience«has equally shown that it is the most difficult of all political labors to preserve and maintain such free constitu- tions of self-government when once happily established. I know no other way in which they can be preserved and maintained except by a constant adherence to them through the various vicissitudes of national existence, with such adaptations as may become necessary, always to be effected, however, through the agencies and in the forms prescribed in the original constitutions themselves. Whenever administration fails or seems to fail in securing any of the great ends for which republican government is'established, the proper course seems to be to renew the original spirit and forms of the Constitution itself. ANDREW JOHNSON. Washington, March 2, 1867. Exhibit B. Message to the Senate, December 12, 1807. To the Senate of the United States : On the 12th of August last I suspended Mr. Stanton from the exercise of the office of Sec- retary of War, and on the same day designated General Grant to act as Secretary of War ad interim. The following are copies of the Executive orders : Executive Mansion, Washington, August 12, 1867. Sie : By virtue of the power and authority vested in me, as President, by the Constitution and the laws of the United States, you are hereby suspended from office as Secretary of War, and will cease to exercise any and all functions pertaining to the same. You will at once transfer to General Ulysses S. Grant, who has this day been authorized' and empow- ered to act as Secretary of War ad interim, all rec- ords, books, papers, and other public property pow in your custody and charge. Hon. Edwin M. Stanton, Secretary c\f War. Executive Mansion, Washington, D. C August 12, 18G7. Sir: Hon. Edwin M. Stanton having been this day suspended as Secretary of War, you are hereby au- thorized and empowered to act as Secretaryof War ad interim, and will atonce enter upon tho discharge of the duties of the office. Tho Secretary of -War has been instructed to trans- fer to you all the records, books, papers, and other public property now in his custody and charge. General Ulysses S. Geant, Washington, V. C. The following communication was received from Mr. Stanton : War Department, Washington City, August 12, 1867. Sir : Your note of this date has been received in- forming me that by virtue of the powers and authority vested in you as President, by the Constitution and laws of the United States, 1 am suspended from office as Secretary of War, and will cease to exercise any and all functions pertaining to the same: and also directing me at once to transfer to General Ulysses S. Grant, who has this day been authorized and cm- powered to act as Secretary of War ad interim, all records, books, papers, and other public property now in my custody and charge. Under a sense of public duty I am compelled to deny your right, under the Constitution and laws of the United States, without the advice and consent of the Senate, and without legal cause, to suspend mo from office of Secretary of War, or the exercise of any or all functions pertaining to the sanie, or with- out such advice and consent to compel me to transfer to any person the records, books, papers, and publio property in my custody as Secretary. But, inasmuch as the General commanding tho armies of the United States has been appointed ad interim, and has notified me that hohas accepted tho appointment, I have no alternative but to submit, under protest, to superior force. To the President. The suspension has not been revoked, and the business of the War Department is con- ducted by the Secretary ad interim. Prior to the date of this suspension I had come to the conclusion that the time had arrived when it was proper Mr. Stanton should retire from my Cabinet. The mutual confidence and general accord which should exist in such a relation had ceased. I supposed that Mr. Stanton was well advised that his continuance in the Cabinet was contrary to my wishes, for I had repeatedly given him so to understand by every mode short of an express request that he should re- sign. Having waited full time for the volun- tary action of Mr. Stanton, and seeing no manifestation on his part of an iutention to resign, I addressed him the following note on tho 5th of August : Sir: Public considerations of a high character con- strain me to say that your resignation as Secretary of War will be accepted. To this note I received the following reply: War Department, Washington, August 5, 1867. Sir: Your note of this day has been received, stating that public considerations of a high charac- ter constrain you to say that my resignation us Sec- retary of War will be accepted. In reply, I have tho honor to say that public con- siderations of a high character, which alono have induced mo to continue at the head of this Depart • ment, constrain me not to resign tho office of Secre- tary of War before the next meeting of Congress. EDWIN M. STANTON, Secretary of War. This reply of Mr. Stanton was not merely a declination of compliance with the request for his resignation ; it was a defiance, and some- thing more. Mr. Stanton does not content himself with assuming that public cohsidera- 20 SUPPLEMENT TO tions bearing upon his continuance in office form as fully a rule of action for himself as for the President, and that upon so delicate a question as the fitness of an officer for contin- uance in his office, the officer is as competent and as impartial to decide as his superior who is responsible for his conduct; but he goes further and plainly intimates what he means by "public considerations of a high character;" and this is nothing less than his loss of confi- dence in his superior. He says that these pub- lic considerations have "alone induced me to continue at the head of this Department," and . that they " constrain me not to resign the office of Secretary of War before the next meeting of Congress." This language is very significant. Mr. Stan- ton holds the position unwillingly. He contin- ues in office only under a sense of high public duty. He is ready to leave when it is safe to leave, and as the danger he apprehends from his removal then will not exist when Congress is here, he is constrained to remain during the interim. What, then, is that danger which can only be averted by the presence of Mr. Stan- ton or of Congress ? Mr. Stanton does not say that "public considerations.of a high charac- ter" constrain him to hold on to the office in- definitely. He does not say that no one other than himself can at any time be found to take his place and perform its duties. On the contrary, he expresses a desire to leave the office at the earliest moment consistent with these high public considerations. He says in effect that while Congress is away he must remain, but that when Congress is here he can go. In other words he has lost confidence in the Presi- dent. He is unwilling to leave the War De- partment in his hands, or in the hands of any one' the President may appoint or designate to perform its duties. If he resigns, the President may appoint a Secretary of War that Mr. Stan- ton does not approve. Therefore, he will not resign. But when Congress is in session the President cannot appoint a Secretary of War which the Senate does not approve. Conse- quently, when Congress meets Mr. Stanton is ready to resign. Whatever cogency these "considerations" may have had upon Mr. Stanton, whatever right he may have had to entertain such con- siderations, whatever propriety there might be in the expression of them to others, one thing is certain — it was official misconduct, to say the least of it, to parade them before his superior officer. Upon the receipt of this extraordinary note I only delayed the order of suspension long enough to. make the necessary arrange- ments to fill the office. If this were the only cause for his suspension it would be ample. Necessarily it must end our most important official relations, for I cannot imagine a. degree of effrontery which would embolden the head of a Department to take his seat at the coun- cil table in the Executive Mansion after such an act. Nor can I imagine a President so for- getful of the proper respect and dignity which belong to his office as to submit to such intru- sion. I will not do Mr. Stanton the wrong to suppose that he entertained any idea of offer- ing to act as one of my constitutional advisers after that note was written. There was an interval of a week between that date and the order of suspension, during which two Cabinet meetings were held. Mr. Stanton did not pre- sent himself at either, nor was he expected. On the 12th of August Mr. Stanton was noti- fied of his suspension and that General Grant had been authorized to take charge of the Department. In his answer to this notifica- tion, of the same date, Mr. Stanton expresses himself as follows: "Under a Bense of publio duty I atn compelled to deny your right, under the Constitution and laws of the United States, without the advice and consent of the Senate, to suspend me from office as Secretary of War or the exercise of any or all functions pertain- ing to the same, or without such advice and consent to compel me to transfer to any person the records, hooks, papers, and publio property in my custody as Secretary . But inasmuch as the General command- ing the armies of the United States has been ap- pointed ud interim, and has notified me that ho has accepted the appointment, I have no alternative but to submit, under protest, to superior force. It will not escape attention that in his note of August 5 Mr. Stanton stated that he had been constrained to continue in the office, even before he was requested to resign, by consid- erations of a high public character. In this note of August 12 a new and different sense of public duty compels him to deny the Presi- dent's right to suspend him from office without the consent of the Senate. This last is the public duty of resisting an act contrary to law, and he charges the President with violation of the law in ordering hi3 suspension. Mr. Stanton refers generally to the "Con- stitution and laws of the United States," and says that a sense of public duty "under" these compels him to deny the right of the President to suspend him from office. As to his sense of duty under the Constitution, that will be considered in the sequel. As to his sense of duty under "the laws of the United States," he certainly cannot refer to the law which creates the War Department, for that expressly confers upon the President the unlimited right to remove the head of the Department. The only other law bearing upon the question is the tenure-of-office act, passed by Congress over the presidential veto, March 2, 1867. This is the law which, under a sense of public duty, Mr. Stanton volunteers to defend. There is no provision in this law which compels any officer coming within its provisions to remain in office. It forbids removals, butnot resignations. Mr. Stanton was perfectly free to resign at any moment, either upon his own motion, or in compliance with a request or ah order. It was a matter of choice or of taste. There was nothing compulsory in the nature of legal obligation. Nor does he put his action upon that impera- tive ground. He says he acts under a "sense of public duty," not of legal obligation, com- pelling him to hold on,, and leaving him no choice. The public duty which is upon him arises from the respect which he owes to the Constitution and the laws, violated in his own case. He is, therefore, compelled by this sense of public duty to vindicate violated law and to stand as its champion. This was not the first occasion in which Mr. Stanton, in discharge of a public duty, was called upon to consider the provisions of that law. That tenure-of-office law did not pass without notice. Like other acts it was sent to the President for approval. As is my custom, I submitted its consideration to my Cabinet for their advice upon the question, whether I should approve it or not. It was a grave question of constitutional law, in which I would of course rely most upon the opinion of the Attorney General and of Mr. Stanton, who had once been Attorn'ey General. Every member of my Cabinet advised me that the'proposed law was unconstitutional. All spoke without doubt or reservation, but Mr. Stanton's condemnation of the law was the most elaborate and emphatic. He referred to the constitutional provisions, the debates in Congress — especially to the speech of Mr. Buchanan, when a Senator — to the de- cisions of the Supreme Court, and to the usage from the beginning of the Government through every successive Administration, all concurring to establish the right of removal, as vested by the Constitution in the President. To all these he added the Weight of his own deliberate judg- ment, and advised me that it was my duty to defend the power of the President from usurp- ation and to veto the law. I do not know when a sense of public duty is more imperative upon a head of Department than Upon such an occasion as this. He acts then under the gravest obligations of law ; for when he is called upon by the President for advice it is the Constitution which speaks to him. All his other duties are left by the Constitution to be regulated.by statute ; but this duty was deemed so momentous that it is imposed by the Constitution itself. After all this I was not prepared for the ground taken by Mr. Stanton in his note of August 12. I was not prepared to find Mm compelled, by a new and indefinite sense of public duty under "the Constitution," to assume the vindica- tion of a law which, under the solemn oDhga- tions of public duty, imposed by the Constita; tion itself, he advised me was a violation of that Constitution. I make great allowance for a change of opinion, but such a change asthfc hardly falls within the limits of greatest indul- gence. Where our opinions take the shape of advice and influence the action, of others the utmost stretch of charity will scarcely justify us in repudiating them when they come to be applied to ourselves. But to proceed with the narrative. I was so much struck with the full mastery of the question manifested by Mr. Stanton, and was at the time so fully occupied with the prepar- ation of another veto upon the pending recon- struction act, that I requested him to prepare the veto upon this tenure-of-office bill. This he declined on the ground of physical disability to undergo, at the time, the labor of writing, but stated his readiness to furnish what aid might be required in the preparation of mate- rials for the paper. At the time this "subject was before the Cabinet it seemed to be taken for granted that as to those members of the Cabinet who had been appointed by Mr. Lin-' coin their tenure of office was not fixed by the. provisions of the act. I do not remember that the point was distinctly decided ; but I well recollect that it was suggested by one member of the Cabinet who was appointed by Mr. Lin- coln, and that no dissent was expressed. Whether the point was well taken or not did not seem to me of any consequence, for the unanimous expression of opinion against the constitutionality and policy of the act was so decided that I felt no concern, so far as the act had reference' to the gentlemen then present, that I would be embarrassed in the future. The bill had not then become a law. The limita- tion upon the power of removal was not yet imposed, and there was yet time to make any changes. If any one of these gentlemen had then said to me that he would avail himself of the provisions of that bill in case it became a law, I should not have hesitated a moment as to his removal. No pledge was then expressly given orrequired. But there are circumstances when to give an express pledge is not necessary, and when to require it is an imputation of pos- sible bad faith. I felt that if these gentlemen came within the purview of the bill it was, as to them, a dead letter, and that none of them wouldever take refuge under its provisions. I now pass to another subject. When, on the 15th of April, 1865, the duties of the presiden- tial office devolved upon me, I found a full Cabinet of seven members, all of them selected by Mr. Lincoln. I made no change. On the contrary, I shortly afterward ratified a change determined upon by Mr. Lincoln, but not per- fected at his death, and admitted his appointee, Mr. Harlan, in the place of Mr. Usher, who was in office at the time. The great duty of the time was to reestab- lish government, law, and order in the insur- rectionary States. Congress was then in re- cess, and the sudden overthrow of the rebellion required speedy action. This grave subjecthad engaged the attention of Mr. Lincoln in the last days of hrs life, and the plan according to which it was to be managed had been pre- pared and was ready for adoption. A lead- ing feature of that plan was that it should be carried out by the executive authority, for, so far as I have been informed, neither Mr. Lin- coln nor any member of his Cabinet doubted his authority to act or proposed to call an extra session of Congress to do the work. The first business transacted in Cabinet after I be- came President was this unfinished business of my predecessor. A plan or scheme of recon- struction was produced which had been pre- pared for Mr. Lincoln by Mr. Stanton, his Secretary of War. It was approved, and, at the earliest moment practicable, was applied in the form of a proclamation to the State of North Carolina, and afterward became the basis of action in turn for the other States. THE CONGRESSIONAL GLOBE. 21 Upon the examination of Mr. Stanton be- fore the impeachment committee he was asked the following question : "Did anyone of the Cabinet express a doubt of the power of the executive branch of the Government to reorganize State governments which had been in rebellion without the aid of Congress 1 " He answered: "None whatever. I had myself entertained no doubt of the authority of the President to takomeas- ures for the organization of the rebel States on the plan proposed during the vacation of Congress, and agreed in the plan specified in the proclamation in tho case of North Carolina." _ There is, perhaps, no act of my administra- tion for which I -have been more denounced than this. It was not originated by me ; but I shrink from no responsibility on that account, for theplanapproveditself to my own judgment, and I did not nesitate to carry it into execution. Thus far, and upon this vital policy, there was perfect accord between the Cabinet and myself, and I saw no necessity for a change. As time passed on there was developed an unfortunate difference of opinion and of policy between Con- gress and the President upon this same subject and upon the' ultimate basis upon which the reconstruction of these States should proceed, especially upon the question of negro suffrage. Upon this point three members of the Cabinet found themselves to be in sympathy with Con- gress. They remained only long enough to see that the difference of policy could not be rec- onciled. They felt that they should remain no longer, and a high sense of duty and pro- priety constrained them to resign their posi- tions. We parted with mutual respect for the sincerity of each other in opposite opinions, and. mutual regret that the difference was on points so vital as to require a severance of official relations. This was in the summer of 1866. The subsequent sessions of Congress developed new complications when the suffrage bill for the District of Columbia and the recon- struction acts of March 2 and March 23, 1867, all passed over the veto. It was in Cabinet consultations upon these bills that a difference of opinion upon the most vital points was developed. Upon these questions there was perfect accord between all the members of the Cabinet and myself, except Mr. Stanton. He stood alone, and the difference of 'opinion could not be reconciled. That unity of opin- ion which upon great questions of public policy or administration is so essential to the Executive was gone. I do not claim that the head of a Depart- ment should have no other opinions than those of the President. He has the same right, in the conscientious discharge of duty, to enter- tain and express his own opinions as has the President. What I do claim is that the Presi- dent is the responsibje head of the Administra- tion, and when the opinions of a head of De- partment are irreconcilably opposed to those of the President in grave matters of policy and administration there is but one result which can solve the difficulty, and that is a severance of the official relation. This, in the past history of the Government, has always been the rule ; and it is a wise one ; for such differences of Opinion among its members must impair the efficiency of any Administration. I have now referred to the general grounds upon which the withdrawal of Mr. Stanton from niy administration seemed to me to be proper and necessary ; but I cannot omit to state a special ground which, if it stood alone, would vindicate my action. The sanguinary riot which occurred in the city of New Orleans on the 30th of August, 1866, justly aroused public indignation and public inquiry, not only as to those who were engaged in it but as to those who, more or less remotely, might be held to responsibility for its occurrence. I need not remind the Senate of the effort made to fix that responsibility on the President. The charge was openly made, and again and again reiterated through all the land, that the President was warned in time but refused to interfere. By telegrams from the lieutenant governor, and attorney general of Louisiana, dated the 27th and 28th of August, I was advised that a body of delegates, claiming to be a consti- tutional convention, were about to assemble in New Orleans ; that the matter was before the grand jury, but that it would be impossible to execute civil process without a riot, and this question was asked : "Is the military to inter- fere to prevent process of court?" This ques- tion was asked at a time when the civil courts were in the full exercise of their authority , and the answer sent by telegraph, on the same 28th of August, was this : " Tho military will be expected to sustain, and not to interfere with tho proceedings of tho courts." On the same 28th of August the following telegram was sent to Mr. Stanton by Major General Baird, then (.owing to the absence of General Sheridan) in command of the military at New Orleans : Hon. Edwin M. Stanton, Secretary of War : A convention has been called with the sanction of Governor Wells, to meet hero on Monday. The Lieu- tenant Governor and city authorities think it un- lawful, and propose to break it up by arresting the delegates. I have given no orders on tho subject, but have warned the parties that I could not coun- tenance or permit such action without instructions to that effect from tho President. Please instruct me at once by telegraph. The 28th of August was on Saturday. The next morning, the 29th, this dispatch was re- ceived by Mr. Stanton at his residence in this city. He took no action upon it, and neither sent instructions to General Baird himself nor presented it to me for such instructions. On the next day (Monday) the riot occurred. I never saw this dispatch from General Baird until some ten days or two weeks after the riot, when, upon my call for all the dispatches, with a view to their publication, Mr. Stanton sent it to me. These facts all appear iu the testi- mony of Mr. Stanton before the Judiciary Com- mittee in the impeachment investigation. On the 30th, the day of the riot, and after it was suppressed, General Baird wrote to Mr. Stan- ton a long letter from which I make the follow- ing extracts: "Sir: I have the honor to inform you that a very serious riot occurrod here to-day. I had not been applied to by the convention for protection, but the Lieutenant Governor and the mayor had freely con- sulted with me, and I was so fully convinced that it was so strongly the intent of tho city authorities to preserve the peace, in order to prevent military in- terference, that I did regard an outbreak as a thing to be apprehended. The Lieutenant Governor had as- sured mo that even if a writ of arrest was issued by the court the sheriflf would not attempt to serve it without my permission, and for to-day they designed to sus- pend it. I inclose herewith copies of my correspond- ence with the mayor and of a dispatch which theLieu- tenant Governor claims to have received from the President. I regret that no reply to my dispatch to you of Saturday has yet reached me. General Sher- idan is still absent in Texas." The dispatch of General Baird of the 28th asks for immediate instructions, and his letter of the 30th, after detailing the terrible riot which had just happened, ends with the ex- pression of regret that the instructions which he asked for were not sent. It is not the fault or the error or the omission of the President that this military commander was left without instructions ; but for all omissions, for all errors, for all failures to instruct, when instruction might have averted this calamity, the President was openly and persistently held responsible. Instantly, without waiting tor proof, the delin- quency of the President was heralded in every form of utterance. Mr. Stanton knew then that the President was not responsible for this delinquency. The exculpation was in his power, but it was hot given by him to the pub- lic, and only to the President in obedience to a requisition for all the dispatches. No one regrets more than myself that Gen- eral Baird' s request was not brought to my notice. It is clear, from his dispatch and letter, that if the Secretary of War had given him proper instructions the riot which arose on the assembling of the convention would have been averted. There may be those ready to Bay that I would have given no instructions even if the dispatch had reached me in time ; but all must admit that I ought to have had the opportunity. The following is the testimony given by Mr. Stanton before the impeachment investigation committee as to the dispatch : " Question. Referring to the dispatch of tho 28th of July by General Baird, I ask you whether that dis- patch, on its receipt, was communicated? "Answer. I received that dispatch on Sunday fore- noon; I examined it carefully and considered the question presented ; I did not see that I could give any instructions different from the line of action which General Baird proposed, and made no answer to the dispatch. " Question. I see it stated that this was received at ten o'clock and twenty minutes p. m. Was that the hour at which it was received by you ? "Answer. That is tho date of its reception in the telegraph office Saturday night. I received it on Sunday forenoon, at my residence; a copy of the ■ dispatch was furnished to tho President several days afterward, along with all the other dispatches and communications on that subject, but it was not fur- nished bymo before thattime; I suppose it may have boen ten or fifteen days afterward. "Question. The President himself being in corres- pondence with those parties upon the same subject, would it not have been proper to have advised him of the reception of that dispatch? "Answer. I know nothing about his correspond- ence, and know nothing about any correspondence except this one dispatch. Wehad intelligenceof the riot on Thursday morning. The riot had taken place on Monday." It is a difficult matter to define all the rela- tions which exist between the heads of Depart- ment and the President. The legal relations are well enough defined. The Constitution places -these officers in the relation of his ad- visers when he calls upon them for advice. The acts of Congress go further. Take, for example, the act of 1789, creating the War Department. It provides that — "There shall be a principal officer therein, to bo called the Secretary for the Department of War, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of tho United States;" and furthermore, " the said principal officer shall conduct the business of the said Department in such manner as the Pres- ident of the United States shall from time to time order and instruct." Provision is also made for the appointment of an inferior officer by the head of the De- partment, to be called the chief clerk, " who, whenever saidprincipal officer shall be removed from office by the President of the United States," shall have the charge and custody of the books, records, and papers of the Department. The legal relation is analogous to that of principal and agent. It is the President upon whom the Constitution devolves, as head of the executive department, the duty to see that the laws are faithfully executed ; but as he can- not execute them in person he is allowed to select his agents, and is made responsible for their aots within just limits. So complete is this presumed delegation of authority in the re- lation of a head of Department to the Presi- dent that the Supreme Court of the United States have decided that an order made by a head of Department is presumed to be made by the President himself. The principal, upon whom such responsibil- ity is placed for the acts of a subordinate, ought to be left as free as possible in the matter of selection and of dismissal. To hold him to re- sponsibility for an officer beyond his control ; to leave the question of the fitness of such an agent to be decided for him and not by him ; to allow such a subordinate, when the President, moved by "public considerations of a high character," requests his resignation to as- sume for himself an equal right to act upon his own views of "public considerations," and to make his own conclusions paramount to those of the President — to allow all this is to reverse the just order of Administration, and to place the subordinate above the superior. There are, however, other relations hetween the President and a head of Department be- yond these defined legal relations which neces- sarily attend them, though not expressed. Chief among these is mutual confidence. This rela- tion is so delicate that it is sometimes hard to say when or how it ceases. A single flagrant act may aid it at once, and then there is no diffi- culty. Butconfidencemay be just as effectually destroyed by a series of causes too subtle for demonstration. As it is a plant of slow growth, 22 SUPPLEMENT TO So, too, it maybe slow in decay. Such has been the process here. I will not pretend to say what acts or omissions have broken up this relation. They are hardly susceptible of state- ment, and still less of formal proof. Never- theless no one can read the correspondence of the 5th of August without being convinced that this relation was effectually gone on both sides, and that, while the President was unwilling to allow Mr. Stanton to remain in his administra- tion, Mr. Stanton was equally unwilling to allow the President to carry on his administra- tion without his presence. In the great debate which took place in the House of Representa- tives in 1789, on the first organization of the principal Departments, Mr. Madison spoke as follows : " It is evidently the intention of the Constitution, that the First Magistrate should be responsible for the executive department. So far, thcretqre.as we do not make the officers who are to aid him in the duties of that department responsible to him, ho is not responsible to the country. Again, is there no danger that an officer, when he is appointed by the concurrence of the Senate, and his friends in that body, may choose rather to risk his establishment on the favor of that branch than rest it upon the dis- charge of his duties to the satisfaction of the execu- tive branch, which is constitutionally authorized to inspect and control his conduct? And if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and for want of efficacy, reduce the power of the President to a mere vapor, in which case his responsibility would be annibilated, and the expectation of it is unjust. The high executive officers joined in cabal with the Senate would lay the foundation of discord, and end in an assumption of tho executive power, only to be removed by a revolution of the Govern- ment." Mr. Sedgwick, in the same debate, referring to the proposition that a head of Department should only be removed or suspended by the concurrence of the Senate, uses this language : "But if proof be necessary, what is then the conse- quence? Why, in nine cases out of ten, where tho case is very clear to the mind of the President that the man ought to be removed, the effect cannot be produced, because it is absolutely impossible to pro- duce tho necessary ovidence. Aro the Senate to pro- ceed without evidence? Some gentlemen contend not. Then the object win be lost. Shall a man, under these circumstances, bcsaddlcd upon thePres- ident, who has been appointed for no other purpose but to aid the President in performing certain du- ties? Shall he be continued, I ask again, against the will of the President? If he is, where is the respon- sibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? With- out you make him responsible, you weaken and de- stroy tho strength and beauty of your system. What is to be done in cases which can only be known from a long acquaintance with tho conduct of an officer?" I had indulged the hope that upon the as- sembling of Congress Mr. Stanton would have ended this unpleasant complication according to the intimation given in his note of August 12. The duty which I have felt myself called upon to perform was by no means agreeable ; but I feel that I am not responsible for the controversy, or for the consequences. Unpleasant as this necessary change in my Cabinet has been to me, upon personal con- siderations, I have the consolation to be as- sured that, so far as the public interests are involved, there is no cause for regret. Salu- tary reforms have been introduced by the Sec- retary ad interim, and great reductions of ex- penses have been effected under his adminis- tration of its War Department, to the saving of millions to the Treasury. ANDREW JOHNSON. Washington, December 12, 1867. Exhibit C. Address to the President by Hon. lleoerdy Johnson, August 18, 1866. Mr. President : We are before you as a committee of the National Union Convention, which metin Philadelphia, on Tuesday, the 14th instant, charged with the duty of presenting you with an authentic copy of its proceedings. Before placing it in your hands, you will permit us to congratulate you that in the object for which the convention was called, in the enthusiasm with which in every State and Territory the call was responded to, in the un- broken harmony of its deliberations, in the unanimity with which the principles it has de- clared were adopted, and more especially in the patriotic and constitutional character of the principles themselves, we are confidentthat you and the country will find gratifying and cheering evidence that there exists among the people a public sentiment which renders an early and complete restoration of the Union as estab- lished by the Constitution certain and inevit- able. Party faction, seeking the continuance of its misrule, may momentarily delay it, but the principles of political liberty, for which our fathers successfully contended, and to secure which they adopted the Constitution, are so glaringly inconsistent with the condition in which the country has been placed by such misrule, that it will not be permitted a much longer duration. We wish, Mr. President, you could have witnessed the spirit of concord and brotherly affection which animated every member of the convention. Great as your confidence has ever been in the intelligence and patriotism of your fellow-citizens, in their deep devotion to the Union, and their present determination to reinstate and maintain it, that confidence would have become a positive conviction could you have seen and heard all that was done and said upon the occasion. Every heart was evidently full of joy, every eye beamed with patriotic animation ; despondency gave place to the as- surance that, our late dreadful civil strife ended, the blissful reign of peace, under the protection not of arms, but of the Constitution and laws, would have sway, and be in every part of our land cheerfully acknowledged and in perfect good faith obeyed. You would not have doubted that the recurrence of dangerous domestic insur- rections in the future is not to be apprehended. If you could have seen the men of Massa- chusetts and South Carolina coming into the convention on the first day of its meeting hand in hand, amid the rapturous applause of the whole body, awakened by heart-felt gratifica- tion at the event, filling the eyes of thousands with tears of joy, which they neither could nor desired to repress, you would have felt as every person present felt, that the time had arrived when all sectional or other perilous dissensions had ceased, and that nothing should be heard in the future but the voice of harmony proclaim- ing devotion to a common country, of pride in being bound together by a common Union, existing and protected by forms of government proved by experience to be eminently fitted for the exigencies of either war or peace. In the principles announced by the conven- tion and in the feeling there manifested, we have every assurance that harmony through- out our entire land will soon prevail. We know that, as in former days, as was eloquently de- clared by Webster, the nation's most gifted statesman, Massachusetts and South Carolina went "shoulder to shoulder through the Rev- olution," and stood hand in hand " around the administration of Washington, and felt his own great arm lean on them for support," so will they again, with like ■magnanimity, devo- tion, and power stand round your Adminis- tration, and cause you to feel that you may also lean on them for support. In the proceedings, Mr. President, which we are to place in your hands, you will find that the convention performed the grateful duty imposed upon them by their knowledge of your "devotion to the Constitution and laws and interests of your country," as illustrated by your entire presidential career, of declaring that in you they ' ' recognize a Chief Magistrate worthy of the nation and equal to the great crisis upon which your lot is cast;" and in this declaration it gives us marked pleasure to add, we are confident that the convention has but spoken the intelligent -and patriotic senti- ment of the country. Ever inaccessible to the low influences which often control the mere partisan, governed alone by an honest opinion of constitutional obligations and rights, and of the duty of looking solely to the true interests, safety, and honor of the nation, such a class is incapable of resorting to any bait for popu- larity at the expense of the public good. In the measures which you have adopted for the restoration of the Union the convention saw only a continuance of the policy which for the same purpose was inaugurated by your immediate predecessor. In his reelection by the people, after that policy had been fully indicated and had been made one of the issues of the contest, those of his political friends who are now assailing you for sternly pursuing it are forgetful or regardless of the opinions which their support of hisreelection necessarily involved. Being upon the same ticket with that much-lamented public servant, whose foul assassination touched the heart of the civilized world with grief and horror, you would have been false to obvious duty if you had not en- deavored to carry out the same policy; and, judging now by the opposite one which Con- gress has pursued, its wisdom and patriotism are indicated by the fact that that of Congress has but continued a broken Union by keeping ten ot the States in which at one time the in- surrection existed (as far as they could accom- plish it) in the condition of subjugated prov- inces, denying to them the right to be repre- sented, while subjecting their people to every species of legislation, including that of taxa- tion. That such » state of things is at war with the very genius of our Government, incon- sistent with every idea of political freedom, and most perilous to the peace and safety of thr country, no reflecting man can fail to believe. We hope, sir, that the proceedings of the convention will cause you to adhere, if possi- ble, with even greater firmness to the course which you are pursuing, by satisfying you that the people are with you, and that the wish which lies nearest to their heart is that a per- fect restoration of our Union at the earliest moment be attained, and a conviction that the result can only be accomplished by the meas- ures which you are pursuing. And in the dis- charge of the duties which these impose upon you we, as did every member of the conven- tion, again for ourselves individually tender to you our profound respect and assurance of our cordial and sincere support. With a reunited Union, with no foot but that of a freeman treading or permitted to tread our soil, with a nation's faith pledged forever to a strict observance of all its obligations, with kindness and fraternal love everywhere prevailing, the desolations of war will soon be removed ; its sacrifices of life, sad as they have been, will, with Christian resignation, be re- ferred to a providential purpose of fixing our beloved country on a firm and enduring basis, which will forever place our liberty and happi- ness beyond the reach of human peril. Then, too, and forever, will our Government chal- lenge the admiration and receive the respect of the nations of the world, and be in no danger of any efforts to impeach our honor. And permit me, sir, in conclusion, to add, that, great as your solicitude for the restoration of our domestic peace and your labors to that end, you have also a watchful eye to the rights of the nation, and that any attempt by an as- sumed or actual foreign power to enforce an illegal blockade against the Governmentor cit- izens of the United States, to use your own mild but expressive words, "will be disallowed." In this determination I am sure you will receive the unanimous approval of your fellow-citizens. Now, sir, as the chairman of this committee, and in behalf of the convention, I have the honor to present you with an authentic copy of its proceedings. The CHIEF JUSTICE. Senators, you havo heard the answer submitted by the counsel for the President of the United States. Those of you who are in favor of receiving and ordering this answer to be filed will say "ay," ana those who are of the contrary opinion will say "no." [Having put the question.] It is so ordered; the answer is received and will be filed. Mr. Manager BOUTWELL. Mr. President and gentlemen of the Senate, in behalf of the House of Representatives, and as directed by the Managers, I have the honor to request of the honorable Senate a copy of the answer filed THE CONGRESSIONAL GLOBE. 23 by Andrew Johnson, President of the United States, to the articles of impeachment presented against him by the House of Representatives, and to say that it is the expectation of the Man- agers that they will be able at one o'clock to- morrow afternoon, after consultation with the House, to present a fit replication to the answer filed. Mr. EVARTS. Mr. Chief Justice and Sen- ators, the counsel for the President think it proper, unless some objection should now be made, to bring to the attention of the honor- able court the matter of provision for the allow- ance of the time for preparation for the trial which shall be accorded to the President and his counsel after the replication of the House of Representatives to the answer of the Pres- ident shall have been submitted to this court. In the application, which was made on the 13th instant, for time for the preparation and sub- mission of the answer, as then presented to the court, we had included in our considera- tion of that time for which we so asked the expectation and intention of carrying on with all due diligence and at one and the same time the preparation of the answer and the prep- aration for the trial. The action of the court and its determination of the time within which the answer should properly be presented has obliged us, as may be well understood by this court, to devote our whole time and thought in this brief interval to the preparation of the answer ; and we have had no time to consider the various questions of law and of fact and of evidence and the forms and means of the production of the same which rest upon the responsibility and lie within the duty of coun- sel in all matters of forensic and judicial con- sideration. We, therefore, if the honorable court please, submit now a request that the President and his counsel may be allowed the period of thirty days after the filing of the repli- cation on the part of the House of Represent- atives to the answer of the President for prep- aration for the trial and before it shall actually proceed ; and I beg leave to send to the Chief Justice a written minute of that proposition signed by the counsel. The CHIEF J USTICE. It is notfor the pres- ent in order. The question before the Senate is the motion submitted on the part of the Mana- gers of the impeachment, that a copy of the answer be furnished to the House of Represent- atives, and that the House have time to file a replication. The motion of the Managers on the part of the House was agreed to. The CHIEF JUSTICE. The Chair will now receive any motion on the part of the counsel for the President. Mr. EVARTS. I now beg to ask for the action of this honorable court upon the pre- sentation in writing of a request for thirty days after the filing of the replication for the defense to prepare for the trial. The CHIEF JUSTICE. The Secretary will report the order asked on the part of the counsel for the President. The Secretary read as follows : To the Senate of the United States sitting as a Court of Impeachment : And now, on this 23d day of March, in the year 1868, the counsel for the President of the United States, upon reading and filing his an- swer to the articles of impeachment exhibited against him, respectfully represent to this hon- orable court that after the replication shallhave been filed to the said answer, the due and proper preparation of and for the trial of the cause will require, in the opinion and judgment of such Counsel, thata period of not less than thirty days should be allowed to the President of the Uni- ted States and his counsel for such prepara- tion, and before the said trial should proceed. HENRY STANBERY, B. R. CURTIS, THOMAS A. R. NELSON, . WILLIAM M. EVARTS, W. S. GROESBECK, Of Counsel. Mr. HOWARD. Mr. President, if it be in order I will now move that that application lie upon the table until the replication of the House of Representatives shall come in. Mr. Manager BINGHAM. Mr. President, before the vote is taken I ask leave to state that, if it be the pleasure of the Senate, the Managers on the part of the House are ready to consider this application now. The CHIEF JUSTICE. Senators, it is moved by the Senator from Michigan that the application on the part of the counsel for the President lie upon the table until the replica- tion shall be filed. Mr. HOWARD. I withdraw that motion for the moment if the Managers wish to be heard. The CHIEF JUSTICE. The Senator from Michigan withdraws his motion. Do the Man- agers desire to be heard? Mr. Manager LOGAN. Mr. President and Senators, I am instructed by the Managers on the part of the House of Representatives to resist the granting of this application, not on account of the time at which it is presented, but for the reason that it does not contain such matter as in our opinion will justify the Sen- ate in giving further time for preparation on the part of the respondent's counsel for the trial of this cause. We do not desire to force this trial any more rapidly than the necessities of the case demand, but desire that such rules as have heretofore been observed, or as would be observed in a court at law, may be adhered to in the testing of the sufficiency of this applica- tion. What reasons are given in the application here presented for the time to be extended? None more than that counsel shall have an opportunity to prepare themselves for oratori- cal displays before this august body. They have had the same opportunites that the Managers on the part of the House of Representatives have had for preparation. They can and will have the same during the whole progress of this trial. It is not stated that any witness who will prove any material fact is not present, or whose presence cannot any day be procured. It is not stated that delay is necessary for the procurement of records, documents, persons, or papers material or immaterial in this case. Why, then, Mr. President, grant further time when no good cause under the rule is shown? The answer herein filed admits the order of removal of the Secretary of War and the order appointing a Secretary ad interim. The Pres- ident knew what the law was when these orders were made, and knowing it violated it, for which violation we charge him with high mis- demeanors in office. In the many trials we have reported in this and other countries this application has no precedent. In the case of Judge Chase his application stated, in substance, that it was not in his power to obtain information respecting facts alleged against him to have taken place in Philadel- phia and Richmond, in time to prepare and put iii his answer and proceed to trial before the 6th day of March then next following ; and further that he could not get his witnesses or counsel nor prepare bis answer at the same time, disclaiming that this was done for delay. This application was sworn to by the respond- ent ; he was given time, and the facts show that his answer was filed and his trial had, and he acquitted in five days' less time than he swore it would take him to prepare for trial. In Judge Peck's case his application stated his difficulties in obtaining witnesses, the dis- tance they lived from Washington, the time it would require them to travel from St. Louis to Washington, the necessity for copying and obtaining records ; that four years had elapsed since the transpiring of the acts complained of against him. This application was also sworn to. If the learned counsel remember the trial of Queen Caroline before the Parliament of Great Britain, when time was granted for the procurement of evidence the learned attorney general then and there protested against this granting of time becoming a precedent for any future trial, this application being granted merely through courtesy to the queen, when witnesses were deemed absolutely necessary to protect, if possible, her reputation. This application differs in form and substance from any that our attention has been directed to, made by the counsel, sigued by themselves, and sworn to by no one. Mr. President, the rule in courts of law in applications for a continuance of the cause or the extension of time, is that reasons good and sufficient must be stated ; if for want of a witness or witnesses you must give the name or names, the residence, and what you expect to prove by said witness or witnesses, and that you know of no other witnesses present by whom you can prove the same facts, and also that you have used due diligence to procure the evidence. This application certainly does not come under that rule. No evidence is stated that is expected to be produced. The name of no witness is given that is expected to be subpoenaed. No distance is mentioned that must be traveled. No residence is mentioned. It is not stated that any attempt has been made to obtain any evidence or to even have wit- nesses subpoenaed. But, sir, for what is this application made, and upon what is it based? It is based upon no urgent necessity for time, that justice may be done in the premises, but merely indicates to the Senate that time is desired to examine authorities, to prepare argu- ments, and for naught else can we discover that it is made. Sirs, we insist, as Managers on the part of the House of Representatives and the people, that no more time shall be given in this case than is absolutely necessary to try it ; there is no necessity for the extension for counsel to prepare on either side ; none for the procure- ment of witnesses, as none has been asked on that ground. If time be now given on this ap- plication, perhaps when issue is joined and the time now extended elapses we maybe met by an affidavit asking more time for the procure- ment of witnesses in some distant part of the country. In my judgment time should not be granted for the trial of the President of the United States on any different application from that required to give time for the trial of the poorest and humblest citizen in the land ; he should be tried by the same rules and held amenable to the same laws that apply to any other citizen. Let it not be said that no harm may come to the country by postponement of this cause. If we are correct in our charges against him harm may come by a postponement. We have charged him with intentionally vio- lating the law ; we have charged him with obstructing the law. Our charges are of such a character as show him to be a dangerous per- son to remain the Chief Magistrate of the na- tion, inasmuch as he, instead of administering, obstructs the law. It is said that time would be given to an ordinary criminal to prepare his defense. I may be pardoned for saying that we, as the Managers on the part of the House and the country, consider the President a criminal, but not an ordinary one. We charge him us a criminal, and are bound to so consider him until, by the verdict of his triers, he shall be acquitted of all the articles herein presented. The learned counsel for the re- spondent do not agree with us in this ; nor do we ask the Senate to so adjudge until our charges are made good by competent testi- mony. The course in the case of ordinary criminals who commit crimes or misdemeanors is, or may be, different from the course in this case. But, sir, ordinary criminals are either arrested and put under bonds or imprisoned, that no further violations of law may be com- mitted by them during the pendency of their trial. But, sir, in this case the President, who is charged with violating the law, has the same power to act to-day and still trample the laws and the Constitution under foot that he had the day we charged him with having committed these high crimes and misdemeanors ; hence the reasons for not granting time in this case are stronger than could be urged in the case of an ordinary criminal. 24 SUPPLEMENT TO In the one case you would give time where no danger might arise from doing so ; but in this case danger to the people might arise, and hence the same reasoning does not operate in this that does in the case of an ordinary crim- inal; and we here enter our protest against any extension of time whatever in this case. What we desire is that the replication of the Managers may be filed to-morrow at one o' clock, and, then we may be permitted to state our case to the Senate acting as a court of im- peachment, and that we may follow it up with the evidence, and that the counsel for the re- spondent may then state their defense and pro- duce their evidence, and that on the issue thus made the court may decide as to the guilt or innocence of the party accused. This is what we ask, and this is what we have a right to expect. I presume no man will doubt that if an application of this kind were made to a court at law, the inquiry would be: "Have you issued your subpoenas; have you attempted to get your witnesses ; have you at- tempted to make any preparation to try the cause?' ' And if the counsel would answer that they had made no preparation whatever; that they had issued no subpoenas ; had made no attempt to procure witnesses or get ready for the trial of the cause, but merely desired time for thoughtand reflection, the application would certainly be denied. And against the granting of this, not made upon the oath of any person, not signed by the President, and merely intended for the benefit of counsel, we, the Managers, in the name of the House of Representatives and the whole people of this Republic, do most solemnly protest. Mr. EVARTS. Mr. President, I may be allowed very briefly to call the attention of this honorable court to the attitude of the cause before them, as we conceive it to be. Other courts, except such as are called for a special trial upon a special and limited authority, have established regulations guarding the rights of defendants, either in civil or in criminal pros- ecutions, with established terms of court and well recognized and understood habits of the conduct of judicial business. In our estimate of the course of this proceeding before this honorable court we have not yet arrived at a time when it was the duty of counsel or was at the charge of the accused to know or consider what the issues were upon which he was to prepare on his side or expect on the other the production of proofs. Beyond that, we feel no occasion to present by affidavit to this hon- orable court a matter so completely within its cognizance that our time to plead was fixed so as to offer us but eight working days for that duty of counsel. Obedient to the orders of the court, observant, as we propose at all times to be, of that public necessity and duty which require on the part of the President of the United States and his counsel, not less than on the part of the House of Representatives and its Managers, that dili- gence should be used, and that we his counsel should be withdrawn from all other professional or personal avocations, we yet cannot recog- nize in tne presence of this court that that is an answer to an application for reasonable time to consider and prepare, to subpoena and produce, in all things to arrange and in all things to be ready, for the actual procedure of the trial. Nor, with great respect to the hon- orable Managers in this great procedure, do we esteem it a sufficient answer to our desire to be relieved from undue pressure of haste upon ourpart that equal pressure of haste may have been used on the other. We do not so understand the question of the just and orderly protection of public interests as that this com- pensation for haste required from the defend- ant may be demanded by equal haste being necessary on the part of the prosecution. But, beyond this, the honorable Managers give us more professional credit than we are entitled to when they assume to say that our standard of our duty and our means and our needs for properly performing it are necessarily to be measured by theirs. Nor do they suffi- ciently attend, as I flay with great respect, to the position of the accused and his counsel in reference to the preparation of a defense with that which is occupied by the Managers and by the House of Representatives in reference to the explorations and the provision and the preparation of the accusation and of its evi- dence ; for during a very considerable period, with the coercive power of summoning wit- nesses and calling for papers which rightfully belongs to the House of Representatives, all this matter upon the one side and the other, to a certain extent, may have been actually ex- plored by them, and, as is known, to a very great extent, certainly has been. Now, if this honorable court will give the counsel for the President of the United States due respectin regard to the position in which we present ourselves, due respect to our state- ment, it will understand that up to this time the consideration of the degree and measure, of the means and occasions, for proof has not yet possibly received our practical and respon- sible attention, and that within the limits of this accusation, unless it shall be nan-owed more than we expect by the replication to be filed, there may be, there must be, a very con- siderable range of subjects and a very consid- erable variety of practical considerations that will need to come under the responsible judg- ment and for the responsible action of counsel. It would seem to me that we are placed thus far in the attitude of a defendant in a civil or in a public prosecution who upon the issue joined desires time to prepare for trial. The ordinary course in such a case is that as mat- ter of right, as matter of absolute and univer- sal custom, one is not required or expected to give any cause of actual obstruction and diffi- culty in reference to a continuance to what is the term of the court, doubtless in most cases to occur within a brief period after the issue is joined. This court having no such arrange- ment and no such possible arrangement of its affairs in advance, we are obliged at each stage of regular proceeding to ask your attention as ta what you will provide and consider in the particular case is, according to the general nature of the procedure and the understood attitude of both parties to it, a just and reason- able proposition to be made by us as to the time that should be allowed for the prepara- tion in all respects for this trial after the issue shall have been. joined. We do not ask any more time than in the interest of justice and duty under the actual circumstances of this case should be given to the poorest man in the country. The measure of justice and of duty has no respect whatever to poverty or station. The actual nature of the proceeding, the actual circumstances of the case are to furnish the rule for the exercise of whatever falls within the discretion of the court. If during the trial, on the part of the Managers, it should appear that, by accident or by any other just excuse, the attendance of a proper witness on their part was required, it would be the duty of this court, in the administration of justice, to allow proper time and delay for the production of the witness. And so, upon our part, if, fore- seen or unforeseen, such an occasion should arise, it would bea necessary duty of the court to take it into consideration and provide for it as the occasion arose. The proposition that we now make to the court, and, unless there is to be a departure from the general habit of all courts in such a predicament of a procedure, what we expect their action according to and upon is this : that after issue joined we should have a reasonable time before we should be considered as bound to be in the condition of preparation for the proceeding in the cause. Mr. Manager WILSON. Mr. President and Senators, the Managers on the part of the House of Representatives have determined, so far as may lie in their power, that this case shall not be taken out of the line of the prece- dents ; therefore it is that we will resist all applications for unreasonable delay. The counsel for the respondent who has just taken his seat might well, in view of the remarks which' he submitted, have waited until issue joined before presenting this motion ; but it 18 here, and we are prepared here and now to take the motion as we find it, and deal with it as its form and merit of substance require. It will be remembered that the nrst step taken by the counsel for the respondent on the 13th instant was in violation of the precedent established by the cases which have been tried by the Senate of the United States. Looking into the case of Judge Chase, we find that on the return day of the summons he appeared and made application for time to answer ; but he did not stop at this; he coupled with his motion for time to answer a request for time to prepare for his trial. He supported his appli- cation by his solemn affidavit stating that he could not possibly prepare his case for trial before the 6th day of the succeeding March, and therefore he asked an allowance of time for preparation for trial until the commence- ment of the next session of Congress, as the then session would expire on the 4th day of that month. In his application he disclosed the necessi- ties inducing his request, among which were the distances lying between the capital and the places where he was to ascertain the facts and circumstances necessary for his defense and to find the witnesses to support it. After due consideration the Senate overruled his ap- plication and required him to answer on the 4th day of the succeeding February, thus allow- ing him, both for answer and preparation, thirty days instead of eleven months, as prayed for in his motion. And what was the result in that case ? Why, that on the 1st day of March succeeding, four days before the time which he stated in his affidavit would be required for him to prepare for trial, the cause had been tried on such perfect preparation that it re- sulted in the acquittal of.the respondent. The Senate judged better than he of the difficulties of his case and of the time required to overcome them. So in the case of Judge Peck, when he appeared on the return day of the writ, it having been served on him but three days prior to the return, he made his joint application for time to answer and time to prepare for trial, and supported it by his solemn affidavit. He was granted the time he desired to prepare his answer when, by an adjournment of Congress, his case went over for trial until the next ses- sion But we have had no such course pursued in this case. On the return day of the summons, notwithstanding the rule of the Senate required on that day and at that time the filing of the answer, we were met first with an application for forty days' leave in which to prepare an answer. The honorable Senate allowed ten days ; and now, at the expiration of that time, we find a most elaborate answer presented by the counsel for the respondent ; and in it is embodied the strongest argument against any delay in this case that has come from any source or is known to any person ; and that is, that the respondent, by his answer, affirms as lying within his rightful powers under the Con- stitution, the right to do the very acts which we have charged against him at the bar of this Senate as criminal acts, and persists in his defiance of the laws and in the wickedness of the course which the Representatives of the people have challenged. That might not be a weighty consideration in an ordinary case. It might not weigh much if, instead of the present respondent, we had some other officer of the Government charged at the bar of the Senate with the offenses enumerated in the articles to which he has this day answered. But in this case it is of weight, and should have due consideration. Why is it of weight? Because the respondent has devolved on him not only the duty which rests upon the citizen to obey the law, but also the higher duty to execute the law, and is clothed by the Consti- tution of the country with the whole executive power of the nation, that he maybe enabled to discharge faithfully the duty thus imposed. He has not, in the judgment of the House of THE CONGKESSIONAL GLOBE. 25 Representatives, discharged this duty as his oath of office requires, but has disregarded the law and defied its authority. J?or his failure to discharge it, for his acts of positive trans- gression of the laws of the land, he is arraigned at the bar of the Senate, and presenting answer, justifies the acts which make up his grave offenses, claims the right to repeat and extend them, and now asks for time that he may fur- ther imperil the nation while he endeavors to make good his unlawful assumptions of power, in the meantime holding in his hands, under and by virtue of the Constitution, the executive power of the Republic. No provision having been made for its temporary surrender, he re- tains that power, disturbing the repose of the country and interfering with every interest of business and trade and commerce, by prolong- ing this unfortunate conflict between the two departments of the Government. Mr. President and Senators, we feel it to be our most solemn duty to urge upon you, in the name of the Representatives of the people, and of the people themselves, that speedy progress toward a conclusion of this case which shall guard the rights and the interests of the people, their laws and their government, and at the same time observe with reasonable care the rights belonging to the respondent. The pres- ent application for delay is without precedent in the cases heretofore tried by the Senate ; and were it not for the order adopted by this body on the 13th instant, which now must be regarded as a rule, this application could not be made, as that rule is the only thing which takes this case out of the line of precedents to which I have referred. It should have been coupled with the other motion made before the adoption of the rule, and the whole case so far as respects causes of delays in this proceeding disclosed at the threshold. The following order constitutes the rule to which I refer : "Ordered, That unless otherwise ordered by the Senate for cause shown, the trial of the pending im- peachment shall proceed immediately after replica- tion shall be filed." Now, I submit that the "cause shown" in this application is not such cause as will justify the Senate in the exercise of a sound discre- tion in granting the time which, has been asked for by the respondent to enable him to prepare for trial. It does not show cause of substance, and presents mere questions of convenience. Mr. HOWARD. Will the Manager please read that order again ? Mr. Manager WILSON. " Ordered, That unless otherwise ordered by the Senate. for cause shown, the trial of the pending impeach- ment shall proceed immediately after replica- tion shall be filed." It will be observed — the interruption sug- gests it to my mind — that in view of this rule the Senate cannot, with due regard, to its own action, grant this extension of time, because a sound discretion cannot be exercised under the rule and upon this application until issue be joined between the people and their Repre- sentatives and the respondent, though we waive thisobjection in the interest of the economy of time. But, as I have said, this application, considered now or at any other time, must be addressed to the sound discretion of the Senate, and it is for us to remember that a sound dis- cretion acts not without rule to guide it. The discretion to which such motions are addressed must be directed by law^ — "it must be gov- erned by rale, not by humor ; it must not be arbitrary, vague, and fanciful, but legal and regular." And I therefore deny that the application and the statements therein contained do or can convey to the mind of this Senate that view of .this case which must be presented by the respondent in order to justify you in saying, , upon the exercise of a sound discretion, that one hour's delay should be granted ; for there is nothing of a substantive character affecting the merits of the case disclosed upon which it can act. What is the application ? It is substantially that counsel have not had time to prepare and become familiar with the case, therefore they must be allowed opportunity to educate them- selves in the particular matter committed to their charge. I apprehend that that is not good cause upon which this Senate may act and grant the prayer of this present applica- tion. More than that, it will be observed that the respondent has been carefully kept out of this case on these motions. In all other cases in this country of which I have any knowledge, the respondent has asked in his own name, supporting his request by his affidavit, for de- lay of proceedings ; judges summoned from the bench and brought to this bar have pre- sented their petitions in person, supported by their solemn affidavits, and asked upon the facts stated by them, covering and disclosing all of the features of their cases, and unfolding their line of defense, a reasonable time in which to prepare answer and to prepare for trial. But it is not so here ; and we have to ask that while this case is thus kept out of the ordinary rule and uniform practice of former cases, the Senate will regard in some, degree the voice of the Representatives as presented by the Managers, and put this respondent upon his speedy trial, to the end that peace may be restored to the country by the healing efficacy of a determination of this prosecution — the restoration of harmony between the two con- tending departments of the Government, and to the further end that all things may again move on in this land as they were accustomed in the times before this unfortunate conflict and its disturbing results occurred. There- fore, Senators, in the name of the House of Representatives, and of the people in whose names they have acted in this behalf, we ask that this application, as it is now presented and considered, may be denied by the Senate. Mr. STANBERY. Mr. Chief Justice, on the 13th instant, when we entered our appear- ance, and when we supposed we had nothing to do but to enter our appearance and ask for time to answer, the honorable court made an order that we should have until the 23d, this day, to file- our answer. They gave to the Managers leave to file replication, without limiting them at all as to time, but provided that upon the filing of the replication the case should proceed to trial unless reasonable cause should be shown for further delay. Then the honorable court meant us to have time to pre- pare for trial if we reasonably showed that it was necessary. Now, what has happened, Mr. Chief Justice? What has been stated to this honorable court, composed in a great measure of members of the bar, by members of the bar that I hope have sufficient standing with this court to have some credit, at least, for professional state- ments made upon their honor? What have we stated ? That since we had this leave every hour and every moment has been occupied with the pleadings ; not an instant lost, not a counsel absent. We have refused all other . occupation ; we have devoted ourselves ex- clusively to this day and night, and I am sorry to be obliged to say two days sacred to other duty. There has been not a moment's delay. And how has this time been occupied, Mr. Chief Justice? Occupied, every instant of it, in the preparation of this answer. Allow me to say to the honorable court that it was not until fifteen minutes before we came here that our document was ready. Certainly it was intended on the 13th to give us time not merely to prepare our answer, but to prepare for that still more material thing, the trial. And now I hope I shall obtain credit with the honorable court when I say that we have been so pressed with this duty of making up the issue and preparing the answer that we have not had an opportunity of asking the President "What witnesses will you have?" Nay, we have been so pressed that to the com- munications which we have received from the honorable Managers in regard to admissions and to facilitate proof we have been obliged to say, in reply, " We have not, gentlemen, as yet, a moment's time to consider your com- munications." All we know of this case is that it refers to transactions not only here, but at Cleveland and St. Louis, at distant points. They have sent us a list of witnesses who are to come from these various places as to matters in regard to which they expect to make proof against us as to what was said and done at those places, and as' yet I do not know a single wit- ness whom the President wants to call in his defense. I know that he wants to call wit- nesses, but I have not yet had an opportunity of knowing who those witnesses are. We have not subpoenaed one. We do not know the name of any one except those who happen to live here whom we shall want, nor which of them. ... Now mark, all this time'the advantage that the honorable Managers have had over us. As I understand it, and I suppose it will not be denied, almost every day since they have been engaged in the preparation for the trial. Their articles were framed long ago. While we were engaged in preparing our answer they have been, as I understand, most industriously engaged in preparing the witnesses. Day after day wit- nesses have been called before them and testi- mony taken. We have had no such power ; we have had no such opportunity — not the slightest. We are here without any prepara- tion in the way of witnesses, without having had a moment to consult with our client or among ourselves. The gentlemen say that our anxiety is to pre- pare ourselves, whereas they are already pre- pared, completely prepared, so far as counsel need prepare themselves. I am very happy to, hear that they are. I should be very far from saying that I am equally prepared. I have had no time to look to anything else except this necessary and all-absorbing duty which we have just completed. Now, if the Senate say we shall go on when this replication comes in, which, I am told, is to come in to-morrow, they will put me in a position that I have never been in before in all my practice anywhere, with a client and a case and a formidable array against me, and yet not a witness summoned, not a, document prepared — all unarmed and defenseless. I beg this honorable court to treat us with some leniency, to give us time. If you cannot give us all we ask give us, at least, some time within which, by the utmost diligence, we can make that preparation we deem to be useful, and without which we are unsafe and unpre- pared. The gentlemen complain that we ought to have been ready on the 13th. They read against us a rule that that was the day fixed for not only. the appearance but the filing of the answer. What I They read out of a rule that old formula that has come down to us for fiv£ hundred years, the order to "appear and answer ' ' — the same language which was adopted at that early time when pleadings were ore tenus and by parol, when the defendant was called and answered immediately. But even our old independent and sturdy ancestors would not answer on that day, although they were to answer by word of mouth ; and we know that always they demanded time and always had time, "leave to imparl" a day to answer. We have preserved the same phraseology in our subsequent proceedings. The summons is still to a defendant ' ' You are hereby sum- moned to appear on such a day and answer;" but whoever supposed he was then to file his answer ?. What lawyer that ever wrote a dec- laration does not recollect the beginning of it, "The defendant was summoned to appear and answer;" and yet every lawyer knows that the time for "the defendant's answer has not yet come. Well, our answer has been presented. No day has yet peremptorily been fixed for trial. The Senate said to, us, "You shall go to trial when the replication is filed, provided you do not show good cause." The cause we show is, may it please *the honorable court, that we have not had one- moment's time to prepare for trial. 26 SUPPLEMENT TO Mr. HOWARD and Mr. Manager BING- HAM rose. The CHIEF JUSTICE. The Senator from Michigan. Mr. Manager BINGHAM. On the part of the Managers T beg to respond to what has just been said. Mr. HOWARD. I beg to call the attention of the President to the rules that govern the body. Mr. Manager BINGHAM. I will only say that we have used but thirty-five of the min- utes of the time allowed us under the rule. The CHIEF JUSTICE. The Chair an- nounced at the last sitting that he would not undertake to restrict counsel as to numher without the further order of the Senate, the rule not being very intelligible to him. He will state further that when counsel make a motion to the court the counsel who makes the motion has invariably the right to close the argument upon it. Several Senators. Certainly. Mr. Manager BINGHAM. Mr. President, with all respect touching the suggestion just made by the presiding officer of the Senate, I beg leave to remind the Senate, and I am instructed to do so by my associate Managers, that from time immemorial in proceedings of this kind the right of the Commons in Eng- land, and of the Representatives of the people in the United States, to close the debate has not been, by any rule, settled against them. On the contrary, in Lord Melville's case, if I may be allowed and pardoned for making reference to it, the last case, I believe, reported in England, Lord Erskine presiding, when the very question was made which has now been submitted by thepresiding officer to the Senate, one of the managers of the House of Com- mons arose in his place and said that he owed it to the Commons to protest against the im- memorial usage being denied to the Commons of England to be heard in reply to whatever might be said on behalf of the accused at the bar of the Peers. In that case the language of the manager, Mr. Giles, was : " My lords, it was not my intention to trouble your lordships with any observations upon the arguments you have heard ; and if Inowdo so, it is only for the sake of insisting upon and maintaining that right which the Commons contend is their acknowledged and undoubted privilege, the right of being heard after the counsel for the defendant has made his observations in reply. It has been invariably ad- mitted when required."— Safe Triah, vol. 29, p. 762; 44 to 46 George III, Lord Erskine "responded the right of the Commons to reply was never doubted or dis- puted." Following the suggestion of the learned gen- tleman who has just taken his seat, I believe that when that utterance was made it had been the continued rule in England for nearly five hundred years. In this tribunal, in the first case of impeach- ment that ever was tried before the Senate of the United States under the Constitution, (I refer to the case of Blount,) the Senate will see by a reference to it that although the ac- cused had the affirmative of the issue, although he interposed a plea to the jurisdiction, the argument was closed in the case by the man- ager of the House, Mr. Harper. (Wharton's State Trials of the United States, pp. 314-16.) When I rose, however, at the time the hon- orable Senator spoke, I rose for the purpose of making some response to the remarks last made for the accused; but as the presiding officer has interposed the suggestion to the Sen- ate whether the Managers can further reply I do not deem it proper for me to proceed further until the Senate shall pass upon this question. Mr. HOWARD. Mr. President, if the dis- cussion is closed on the part of the Managers, and the counsel Mr. Manager BINGHAM. I desire to have the question submitted. Mr. HOWARD. I was about to move that this motion be laid on the table. Mr. Manager BINGHAM. I desire, if the Senator from Michigan will excuse me, to be heard in response to what has just fallen from the lips of the counsel for the accused, but deem it my duty not to proceed without the consent of the Senate, inasmuch as the pre- siding officer has already suggested to the Sen- ate that the Managers could not be further heard; in other words, could not be permitted to make a final reply. The CHIEF JUSTICE. The motion of the Senator from Michigan is that Mr. Manager BOUTWELL. Mr. President, will the Chair pardon me? The CHIEF JUSTICE. Certainly. Mr. Manager BOUTWELL. This seems to the Managers, and to myself especially, a mat- ter of so much moment as to whether the Man- agers are to be heard finally Mr. HOWARD. Excuse me a moment. It was not my intention to cut off debate or discussion on the part of the Managers or the counsel for the accused; and so I announced. If there is any desire on the part of either to proceed with the discussion, I withdraw my motion to lay the order on the table. Mr. Manager BINGHAM. Now, Mr. Pres- ident, if it be the pleasure of the Senate Mr. JOHNSON. I ask for the reading of the twentieth rule. The CHIEF JUSTICE. The rule will be read. The Secretary read rule twenty, as follows : " 20. All preliminary or interlocutory questions, and all motions, shall bo argued for not exceeding one hour on each side, unless the Senate shall by order extend the time." Mr. Manager BINGHAM. We have used but thirty-five minutes of our time. Mr. GRIMES. What is the question? The CHIEF JUSTICE. Do the managers desire to proceed ? Mr. Manager BINGHAM. Yes, sir; with the President's leave. Mr. President and Senators: I deeply regret that the counsel for the accused have made any intimation here that question is made or intended to be made by the Managers touching the entire sincerity with which they act before this tribunal. I am sure that it was furthest from the purpose of my associates, as I know it was entirely foreign to any purpose of mine, to question for a moment their sincerity. The gentleman who took his. seat spoke of their having presented this application upon their honor. No man questions their honor ; no man who knows them will question their honor ; but we may be pardoned for saying that it is unusual, altogether unusual, on questions of this sort to allow continuances to be obtained upon a mere point of honor! The rule of the Senate, which was adopted on the 13th instant, is a rule well understood, and is in the lan- guage of the ordinary rule which obtains in courts of law ; that is to say, the trial shall proceed upon replication filed, except, for cause shown, further time be allowed. I submit that a question of this magnitude has never been decided upon a mere presenta- tion of a statement of counsel, in this coun- try or in any country. To speak more plainly, a motion for continuance arising on a question of this sort, I venture to say, has never been decided affirmatively upon such an issue on a mere statement of counsel. If Andrew John- son, the accused at this bar, has witnesses that- were not within the process of this court up to this day, but whose attendance he can hope to procure if time be allowed him, he can make affidavit before this tribunal that they are ma- terial and set forth in his affidavit what he expects to prove by them. I concede that upon such a showing there would be something upon which the Senate might properly act. But, sir, instead of that he throws himself back upon his counsel, and they make their statement here that they will require thirty days of time in which to prepare for trial. He sent these gentlemen to the bar of this tribu- nal on the 13th instant upon their honor to notify the Senate that it would require him forty days to prepare an answer. Now, he sends them back upon their honor to notify the Senate that it will require him thirty days to prepare for trial. I take it that the counsel for the accused have quite as much time for preparation if.this trial shall proceed to-mor- row as have the Managers on behalf of the House of Representatives, who are charged by the people with duties from day to day in the other end of the Capitol which they are not permitted to lay aside. But, sir, I think upon the answer made here this day by the President of the United States, unless very good cause be shown, and that, too, under the obligation of his own oath at the bar of this Senate, not another hour's contin- uance should be allowed him after the case shall have been put at issue. We ask leave to suggest to the Senate that we hoped on to-mor- row, by leave of the people's Representatives, to put this case at issue by filing a replication. That is all the delay we desire. The accused has had the opportunity for process ever since the 13th instant, at least. He is guilty of grave negligence in this behalf — I do not speak of the counsel ; I speak of the accused. If he had witnesses to subpoena why was he not about it? And yet, sir, not a single summons has been required by him under the rule'and order of the Senate to bring to its bar a single witness to testify in his behalf. He totally neglects the whole issue, and comes here with an attempt at a confession and avoidance of the matter presented by the House of Repre- sentatives, and tells this Senate and tells the country that he defies their power, trifling — I repeat it in the hearing of the Senate — trifling with the great power which the people for wise purposes have placed in the hands of their Representatives and their Senators in Congress assembled. Why, sir, what is this power of impeachment worth if the President of the United States, holding the whole executive power of the na- tion, is permitted, when arraigned at the bar of the Senate in the name of all the people and charged with high crimes and misdemeanors, in that he has. violated his oath, in that he has violated the Constitution of the country, in that he has violated the people's laws, and attempted by his violation of the laws to lay hands upon the people's Treasury ; what is this great defensive power reposed by the people in their Representatives worth if the President, upon a mere statement of his counsel, is per- mitted to postpone the further inquiry for thirty days, until he prepares to do— what? Until he prepares to make good his elaborate statement set forth in his answer, that the Constitution is but a cobweb in his hands, and that he defies your power to restrain him. I remember very well, sir, it suggested itself to me when I heard this discussion going on, the weighty words of that great man (Chan- cellor Kent) whose luminous intellect shed luster upon the jurisprudence of his country in the State of New York for more than a third of a century, which he wrote down in his Com- mentaries upon the laws, and which will live as long as our language lives, that to prevent the abuse of the executive trust — "The Constitution has rendered the President di- rectly amenable, by law, for maladministration. The n n »rS abl l} && a °y officer of Government is incom- nri^;Sil lth f tho , r . e .P n blioan theory as well as with the principles of retributive justice." * • * * If, then, neither the sense of duty, the force of pub- l lffl?f ??' nor tho toansitpry nature of the seat are sufficient to seoure a faithful d scharge of tho execu- tive trust, but the President will use , fhe .authority ™f his station to violate the Constitution or law of the land, the House of Representatives can arrest him in %i^£^t&:%£$$. powor ° f «- Faithful to the duty imposed upon us by our oaths as the Representatives of the people, we have interposed that remedy to arrest this man, and he comes to-day to answer, saying, I defy your impeachment ; by the executive power reposed m me under the Contitution' '- and I believe I quote almost the words of the answer laid before us-" by the executive power reposed in me by the Constitution, I claim in the presence of the Senate, I claim in the presence of the country, the power, with- out challenge, let, or hinderance, to suspend every executive officer of this Government at THE CONGRESSIONAL GLOBE. 27 my pleasure." I venture to say before the enlightened bar of public opinion in America, by these words incorporated in his answer, the President is as guilty of malfeasance and mis- demeanor in office as ever man was guilty of malfeasance or misdemeanor in office since nations began to be upon the earth. What ! That he will suspend all executive officers of this Government at his pleasure, not by force of the teuure-of-office act, to which he him- self refers, and which he says is void and of no effect, but by force of the Constitution of the United States ; and that, too, he adds, while the Senate of the United States is in session I What does he mean by it? Let the Senate answer when they come to vote on this propo- sition for the extension of time. Does he mean by it that he will vacate the executive offices and not fill them? Does he mean by it that your money appropriated by your laws for carrying on and administering the Government shall remain locked in the vaults of your Treas- ury, and shall not be applied as your law directs? Or does he mean by it that he will repeat what he has already done in the presence of the Senate, and in violation of the laws, that he will remove without the consent of the Senate, and he will appoint while the Senate is in session without its advice or consent, just such persons as will answer his own purposes? Is that what he means? If he does it is a very easy method of repealing the Constitution of the United States. The appointing power is " by and with the advice and consent of the Senate.^ ' The power to fill vacancies under the Constitution isin the President only as to such vacancies as may hap- pen during the recess of the Senate, and so the Constitution reads. But, according to the logic set out in this elaborate answer, to support which the President wishes thirty days of time for preparation, he is to vacate every execu- tive office of the United States at his own pleasure, in the presence of the Senate, without its consent while they are in session, and fill it at his pleasure ad interim even while they are trying him. If this be permitted, and if bis successors should follow his bad example, I ask the Senate to deliberate, to consider whether the time would not soon come, if that example were persisted in and followed, that not a single executive office in America would be filled by any man " by and with the advice and consent of the Senate;" but, on the con- trary, every such office would be filled without the advice or consent of the Senate. I admit, sir, it is a time-honored rule of the common law, the growth of centuries, the gathered wisdom of a thousand years, that the accused has the right to a speedy and an im- partial trial. I claim that the people also have a right to a speedy and impartial trial, and that the question pending here touches in some sort the right "of the people. In their name we demand here a speedy and impartial trial. If the President is not guilty, we ask in behalf of the country that he shall be declared not guilty of the offenses with which he stands charged. If it be the judgment of the Senate that he has power thus to lay hands upon the Constitution of the country and rend it in tatters in the presence of its custodians, the sooner that judgment is pronounced the better. In every view of this case, in the light of the answer to which we have listened, I feel myself justified in saying that the public interests de- mand that this trial shall proceed until, upon the solemn oath of the accused made at this bar, it shall appear that he cannot proceed on account of the absence of witnesses material to him, nor until he states what he expects to prove by them ; because I venture to say that he Can make no showing of that sort which we are not ready upon the spot to meet by saying we will admit that the witnesses will swear to his state- ment, and let him have the benefit of it. Nearly all the testimony involved in this issuers docu- mentary. Much of it is official. Enough of it, I might say, is official in its character to justify the trial to proceed without further inquiry into the facts. But be that as it may, although they did not request us to do so, although they had no right to demand it of us, we have taken pains to notify the counsel for the accused of the wit- nesses that we propose to call, the witnesses we have subpoenaed, so that they might prepare to meet them ; and it will occur to the Senate as this trial progresses that they have as much time for preparation by the end of that day when the case on the part of the Government of the United States shall be closed as we have. We make no boast of any superior preparation in this matter. We desire simply to discharge our duty as best we can. We assume no supe- riority to the counsel, as was intimated by the gentleman who last spoke, [Mr. Stanbery ;] but we desire simply to discharge our duty here and to discharge it promptly and to discharge it faithfully, and we appeal to the Senate to grant us the opportunity of doing so, so that justice may be done between the people of the United States and the President, that the Con- stitution of the United States which he has vio- lated may be vindicated, and that the wrongs which he has committed against an outraged and betrayed people may be speedily redressed. Mr. HENDERSON. Mr. President, I pro- pose an order which I send to the Chair. The CHIEF JUSTICE. The Secretary will read the order. The Chief Clerk read as follows : Ordered, That the application of the counsel for tho President to be allowed thirty days to prepare for tho trial of the impeachment be postponed until after replication filed. Mr. Manager BUTLER. Mr. President, I should like to call the attention of yourself and the Senate to the position in which that would place the Managers, and I beg to express the desire on the part of the Managers that this question of time shall be settled now. If a replication is needed at all, I think I can say for my associates that it will be the common and formal replication, the sic similiter of the profession, the simple joining issue upon this answer, and therefore for this purpose it may be considered as filed. We shall have to be ready at all hazards to- morrow to go on with this case, with the uncer- tainty of having the court or the Senate — I beg pardon for the word "court" — give thirty or more days' time in which the counsel may be prepared. In other words, we shall be obliged, under the high sense of duty which is pressing upon us, to get ready by day or by night, as the case may be, and then with entire uncertainty as to whether the Senate may or may not grant further time. I think I can say that upon this question we agree with the counsel for the defense that it is better for all that it be settled now. I know I speak for the Managers. I speak for the House of Representatives when I say it is better to have this point settled now. Our subpoenas are out ; our witnesses are being summoned. We want to know when to bring them here. Fix u day ; tell us when we can come here certain, and we will be here. That is all we desire, sir ; and therefore I trust gen- tlemen will fix at this time the hour and the day when this trial shall certainly proceed, the act of Providence preventing notwithstanding. The CHIEF JUSTICE. The question is on the order moved by the Senator from Missouri, [Mr. Henderson.] Mr. TRUMBULL. I ask for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted — -yeas 25, nays 28 ; as follows: YEAS— Messrs. Anthony, Buckalew, Cattell.Colo, Dixon, Doolittle, Edmunds, Fessenden, Fowler. Fre- linghuysen. Grimes, Henderson, Hendricks, John- son. McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Ross, Saulsbury, Sherman, Spraguo, Trumbull, Van Winkle, and Viekors— 25. NAYS— Messrs. Bayard, Cameron, Chandler, Conk- ling, Conness, Corbett, Cragin, Davis, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pome- roy, Ramsey, Stewart, Sumner, Thayer, Tipton, Wil- ley. Williams, Wilson, and Yates— 28. NOT VOTING-Mr. Wade-1. So the order proposed by Mr. Henderson was not agreed to. Mr. HOWARD. Mr. President, I uow move that the motion of the counsel for the accused do lie on the table. Mr. DRAKE. Mr. President, I rise to a question of order. The CHIEF JUSTICE. The Senator will state his question of order. Mr. DRAKE. That no motion to lay a proposition by the counsel for the defense, or one made by the Managers on the part of the prosecution, upon the table, can, under the rules of the Senate, be entertained, but that the' Senate must come to a direct vote upon the proposition. The CHIEF JUSTICE. The Chair is of opinion that the point of order is well taken, and that the motion of the Senator from Mich- igan, that the proposition of the counsel for the accused lie on the table, is not in order. Several Senators. Question, question. Mr. JOHNSON. Mr. Chief Justice, what is the question ? The CHIEF JUSTICE. The question is on the motion of the counsel for the accused, to be allowed thirty days for preparation. Mr. DRAKE. On that question I ask for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted — yeas 12, nays 41 ; as foHows: YEAS— Messrs. Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Saulsbury, and Vickers— 12. NAYS— Messrs. Anthony, Cameron, Cattell, Chand- ler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Henderson, Howard, Howe, Mor- gan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomcroy, Ram- sey, Ross, Sherman, Sprague, Stewart. Sumner, Thayer. Tipton, Trumbull.Van Winkle. Willey, Wil- liams, Wilson, and Yates — 41. NOT VOTING—Mr. Wade-1. The CHIEF JUSTICE. On this question the yeas are 12 and the nays are 41. So the appli- cation for thirty days for preparation is denied. _ Mr. SHERMAN. I move that the Senate sitting for this purpose adjourn until to-morrow at one o'clock. Mr. EVARTS. Mr. President Mr. SHERMAN. Certainly. I withdraw the motion. Mr. EVARTS. I now, Mr. Chief Justice and Senators, move, in behalf of the Presi- dent and in the name of his counsel, that he be allowed (upon the application which we have made and in which we have named thirty days as a reasonable time) a reasonable time after the replication shall have been filed, to be now fixed by the Senate in their judgment. Mr. JOHNSON. What time is that? Mr. STANBERY. Such time as the Senate shall fix. The CHIEF JUSTICE. The counsel will reduce his motion to writing. Mr. EVARTS. I will state it. I move that on the application we have made, in which we have named thirty days as a reasonable time, there now be allowed to the President of the United States and his counsel such reasonable time for preparation for trial, after the replica- tion shall have been filed, as shall now be fixed by the Senate. The CHIEF JUSTICE. The counsel will reduce his motion to writing. Does the Sen- atorfrom Ohiowithdraw his motion to adjourn? Mr. SHERMAN. Yes, sir; but after the motion is reduced to writing I will renew it. Mr. JOHNSON. Mr. Chief Justice, is the motion proposed to be submitted by one of the counsel for the President of the United States before the Senate now? The CHIEF JUSTICE. It is not before the Senate until it has been reduced to writing. Mr. JOHNSON. I thought it had been so reduced. The CHIEF JUSTICE. It has not. Mr. EVARTS. It is now. The CHIEF JUSTICE. The Clerk will report the order. The Chief Clerk read as follows : Thy counsel for tho President now move that there bo allowed for the preparation of the President of the United States for the trial, after the replication shall be filed and before tho trial shall beroquired to proceed, such reasonable time as shall now he fixed by tho Senate. 28 SUPPLEMENT TO Mr. JOHNSON. Mr. Chief Justice, is it in order to amend that motion? Several Senators. No, no. The CHIEF JUSTICE. It is in order to propose an answer to it ; not to amend it. Mr. JOHNSON, I move, then, Mr. Presi- dent, that ten days be allowed after filing the replication. . Mr. SHERMAN. I move that the Senate sitting as a Court of Impeachment adjourn until one o'clock to-morrow. The motion was agreed to ; and the Chief J ustice declared the Senate sitting for the trial of the impeachment of Andrew Johnson ad- journed until to-morrow at one o'clock. Tuesday, March 24, 1868. The Chief Justice of the United States en- tered the Senate Chamberat one o'clock p. m., escorted by Mr. Pomeroy, chairman of the committee heretofore appointed for the pur- pose, took the chair, and directed the Ser- geant-at- Arms to open the court by proclama- tion. The Sergeant- at- Arms. Hear ye 1 hear ye ! All persons are commanded to keep silence while.the Senate of the United States is sitting for the trial of the articles of impeachment exhibited by the House of Representatives against Andrew Johnson, President of the Uni- ted States. The CHIEF JUSTICE. The Secretary will read the minutes. The Secretary commenced to read the Jour- nal of yesterday's proceedings. Mr. JOHNSON. Mr. Chief Justice, I sub- mit to the Chair whether it is not advisable to Sostpone the reading of the Journal until the Eanagers and the counsel for the accused are present ? The CHIEF JUSTICE. The Sergeant- at-Arms informs the Chief Justice that the Managers are at the door ; and he has directed the Secretary to suspend the reading of the minutes. The counsel for the respondent, Messrs. Stanbery, Curtis, Evarts, Nelson, and Groes- beck entered the Chamber and took the seats assigned them. At five minutes past one o'clock the pres- ence of the Managers on the part of the House of Representatives was announced at the door of the Senate Chamber by the Sergeant-at- Arms. The CHIEF JUSTICE. The Managers will please to take their seats within the bar. The Managers were conducted to the seats provided for them. The members of the House of Represent- atives appeared at the door, headed by Mr. E. B. Washburne, chairman of the Com- mittee of the Whole House, and accompanied by the Speaker and Clerk. The CHIEF JUSTICE. The Secretary will now read the minutes. The Secretary read the Journal of the pro- ceedings of Monday, March 23, of the Senate sitting for the trial of the articles of impeach- ment exhibited by the House of Representa- tives against Andrew Johnson, President of the United States. The CHIEF JUSTICE. The Chair will lay before the Senate a resolution which has been received from the House of Representa- tives. The Secretary read as follows : In the House of Representatives, March 24, 1868. Resolved, That a message be sent to the Senate by the Clerk of the House, informingthe Senate that the Mouse ot Kopresentatives has adopted a replication to the answer of the President of the United States, to the articles of impeachment exhibited againsthim, and that the same will be presented to the Senate by the Managers on the part of the House. Attest: EDWARD McPHERSON, Clerk of the House of Mepreaentatwes. The CHIEF JUSTICE. The Senate will receive the replication of the Managers. Mr. Manager BOUTWELL. Mr. President and Senators, I am charged by the Managers with presenting the replicatioawhich has been adopted by the House of Representatives: In the House of Representatives, United States, March 24, 1868. Replication by the House of Representatives of the United States to the answer of An- drew Johnson, President of the United States, to the Articles of Impeachment exhibited, against him by the House of Representatives. The House of Representatives of the Uni- ted States have considered the several answers of Andrew Johnson, President of the United States, to the several articles of impeachment against him by them exhibited in the name of themselves and of all the people of the United States, and reserving to themselves all advan- tage of exception to the insufficiency of his answer to each and all of the several articles of impeachment exhibited against said Andrew Johnson, President of the United States, do deny each and every averment in said several answers, or either of them, which denies or traverses the acts, intents, crimes, or misde- meanors charged against said Andrew John- son in the said articles of impeachment, or either of them ; and for replication to said answer do say that said Andrew Johnson, President of the United States, is guilty of the high crimes and misdemeanors mentioned in said articles, and that the House of Repre- sentatives are ready to prove the same. SCHUYLER COLFAX, Speaker of the House of Representatives. Edward McPherson, Cleric of the House of Representatives. The CHIEF JUSTICE. The replication will be received by the Secretary and filed. Mr. JOHNSON. Mr. Chief Justice, I move that an authenticated copy of the replication be furnished to the counsel of the President. The motion was agreed to. _ The CHIEF JUSTICE. When the Senate sitting as a court of impeachment adjourned yesterday evening, a motion was pending on the part of the counsel for the President that such time should be allowed for preparation as the Senate might please to determine, and thereupon the Senator from Maryland [Mr. Johnson] submitted an order which will be read by the Secretary. The Secretary read as follows : Ordered. That the Senate proceed to the trial of the President, under the articles of impeachment exhibited against him at the expiration of ten days from this day, unless for causes shown to the con- trury. The -CHIEF JUSTICE. The question is on agreeing to the order. Mr SUMNER. Mr. President, I send to the Chair an amendment, to come in im- mediately after the word " Ordered," being in the nature of a substitute. The CHIEF JUSTICE. The Senator from Massachusetts moves to strike out all after the word " Ordered," and to substitute what will be read by the Secretary. The Secretary read as follows : Now that replication has been filed, the Senate, ti (t , el »i, ng * t? i ts . rulo J alread ? adopted, will proceed ^iL th ° () , tnaI - from , day , t0 da r (Sundays excepted) unless otherwise ordered on reason shown y/i " /X " i ' The CHIEF JUSTICE. The question is on the amendment by way of substitute Mr EDMUNDS. Mr. President, I move that the Senate retire to consider the pending question. ° Mr. SUMNER and others. No; no The CHIEF JUSTICE. It is moved by the Senator from Vermont that the Senate retire to consider the question arising upon the order moved by the Senator from Maryland and the substitute proposed by the Senator from Mas- sachusetts. [Having put the question.] The ayes appear to have it. Mr. CONKLING and Mr. SUMNER called for the yeas and nays, and they were ordered : and being taken, resulted— yeas 29, nays 23 : as follows : u T t E ^ S ~ M "? r3 - Anthony, Bayard, Buckalew, Cor- bett, Davis, Dixon, Doolittlo, Edmunds, Possenden l'owlor, Frchughuysen, Grimos, Henderson, Hend- ricks, Howe, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire. Patterson of Tennessee, Saulsbury, Sprague, Van Winkle, Viekers, Willey, and Wil- liams — 29. , ,_ _, NAYS— Messrs. Cameron, Cattell. Chandler, Cole, Conkling, Conness, Cragin, Drake, Ferry, Harlan, Howard, Morgan, Nye, Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Trum- bull, and Wilson— 23. NOT VOTING— Messrs. Wade and Yates— 2. The CHIEF JUSTICE. On this question the yeas are 29 and the nays are 23. So the motion is agreed to, and the Senate will retire for consultation. The Senate accordingly, at twenty-five min- utes past one o'clock, retired, with the Chief Justice, to their conference chamber. The Senate having been called to order in their conference chamber, The CHIEF JUSTICE stated the question to be on the amendment proposed by Mr. Sum- ner to the order submitted by Mr. Johnson. Mr. JOHNSON modified the order submitted by him so as to read : Ordered, That the Senate will commence the trial of the President upon the articles of impeachment exhibited against him on Thursday, the 2d of April. Mr. WILLIAMS submitted the following order : Ordered, That the further consideration of the re- spondent's application for time be postponed until the Managers have opened their case and submitted their evidence. Mr. CONKLING moved to amend the order- proposed by Mr. Johnson, by striking out "Thursday, the 2d of April," and inserting " Monday, the 30th of March instant." Mr. SUMNER called for the yeas and nays on this amendment, and they were ordered; and being taken, resulted— yeas 28, nays 24; as follows : YEAS— Messrs. Cameron, Cattell, Chandler. Cole, Oonkhng, Conness, Cragin, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont. Morton, Nye, Patterson of New Hamp- shire, Pomeroy, Ramsey. Ross, Stewart, Sumner, T toft, T, £ ton - Willey, Williams, and Wilson-28. ». J ?, A £ b ^ M !f? rs - Anthony, Bayard, Buckalew, Cor- bett, Davis, Dixon, Doolittle, Edmunds, Fessenden, -bowler, irelmghuysen. Grimes, Henderson, Hend- ricks, Johnson, McCreery, Norton, Patterson of Ten- nessee, Saulsbury. Sherman. Sprague, Trumbull. Van Winkle, and Viekers— 24. NOT VOTING-Messrs. Wade and Yatcs-2. So the amendment was agreed to. _ The CHIEF JUSTICE stated the next ques- tion to be upon the adoption of the order pro- posed by Mr. Williams, Mr. WILLIAMS called for the yeas and nays, and they were ordered ; and being taken, resulted— yeas 9, nays 42 ; as follows : YEAS— Messrs. Anthony, Chandler, Dixon, Grimos, and WUlianTs-G • Morgan - Patterson of Tennessee. tpU A £?T^ es i r ?■• Ba y ard - Buckalew, Cameron, Ca*. tfmV T&tl ™ 111 ^ 1 Con Sess. Cragin, Davis. Doo- httle, Drake, Edmunds, Ferry, Fessenden, Fowler. F„ re, M g P Uysen, 5 cnder5(m - Hendricks, Howe, John- Mn;^ n ° C TJ„ e 7' Morrill of Maine. Morriil of Vermont. Morton, Norton, Nye, Patterson of NewTIampshirel P n r mer0y • Q? ams ? y 'c Eoss ' Saulsbury, Sherman; faprague, Stewart, Snmner, Thayer Tintnn Trnm Yates-3; srs - Corbe ". Wade, and So the order proposed by Mr. Williams was not agreed to. The question recurring on the amendment proposed in the Senate Chamber by Mr Sum- NE M t0 Q^?xT d r^ su, ? mitted b y Mr - Johnson, Th' p2^ ER TT^i lldrew his amendment. Ihe CHIEF JUSTICE stated the question to be on the order proposed by Mr. Johnson, as amended, as follows : ^r% de D rf ' T ., hat tho Senate will commence the trial n rf r \ HB ^ PRI F KS moved t0 *™nd *• order by adding thereto the words, "and pro- ceed therein with all convenient dispatch, un- frial cr- " " ° f ^ e Senate fitting upon the trial of an impeachment." The amendment was adopted ; and the order, as amended, was agreed toT ' On motion of Mr. MORTON, the Senate . agreed to return to the Senate Chamber Ihe Senate returned to tho Chamber, and THE CONGRESSIONAL GLOBE. 29 the Chief Justice resumed the Chair at twenty- three minutes past three o'clock p. m. The CHIEF JUSTICE. The Chief Justice is instructed to inform the counsel for the re- spondent that the Senate has agreed upon an order in response to their application, which will now be read. The Chief Clerk read as follows : Ordered, That the Senate will commence the trial of the President upon the articles of impeachment exhibited against him, on Monday, the 30th of Maroh instant, and proceed therein with all convenient dis- patch, under the rules of the Senate sitting upon the trial of an impeachment. The CHIEF JUSTICE. Have the Managers on the part of the House anything further to propose 1 Mr. Manager BINGHAM. Mr. President, we have nothing further to propose. The CHIEF JUSTICE. Have the counsel for the respondent anything to propose ? [No response.] Mr. Manager BUTLER. Will the President allow me to^give notice to the witnesses on the part of the House of Representatives who are m attendance, that they must appear here at one o'clock on Monday, the 30th ? Mr. EDMUNDS. Half past twelve o'clock. The rules provide for half past twelve. Mr. Manager BUTLER. Half past twelve o'clock on Monday, the 80th. _ Mr. WILSON. I move that the Senate sit- ting for the trial of this impeachment adjourn until Monday next at half past twelve o'clock. The motion was agreed to. The CHIEF JUSTICE. The Senate sitting as a court of impeachment stands adjourned until half past twelve o'clock on Monday next, the 30th instant. Monday, March 30, 1868. At half past twelve o'clock p. m. the Chief Justice of the United States entered the Sen- ate Chamber, escorted by Mr. Pomerot, chair- man of the committee heretofore appointed for that purpose. The CHIEF JUSTICE. The Sergeant-at- Arms-will open the court by proclamation. The Sergeant- at- Akms. Hear ye I hear ye 1 hear ye 1 All persons are commanded to keep silence while the Senate of the United States is sitting for the trial of the articles of impeach- ment exhibited by the House ofL Represent- atives against Andrew Johnson, President of the United States. The President's counsel, Messrs. Stanbery, Curtis, Evarts, Nelson, and Groesbeck entered the Chamber and took the seats assigned to them. At twelve o'clock and thirty-five minutes p. m. the Sergeant-at-Arms announced the presence of the Managers of the Impeachment on the part of the House of Representatives, and they were conducted to the seats assigned to them. Immediately afterward the presence of the members of the House of Representatives was annouuced, and the members of the Commit- tee of the Whole House, headed by Mr. E. B. Washburne, of Illinois, the chairman of that committee, and accompanied by the Speaker and Clerk of the House of Representatives, en- tered the Senate Chamber and took the seats prepared for them. The CHIEF JUSTICE. The minutes of the last day's proceedings will now be read by the Secretary. The Secretary read the proceedings of the Senate sitting on Tuesday, March 24, 1868, for the trial of Andrew Johnson, President of the United States. The CHIEF JUSTICE. Gentlemen, Man- agers of the House of Representatives, you will now proceed in support of the articles of im- peachment, v Senators will please give their attention. Opening Argument of Mr. Butler, of Massa- chusetts, one of the Managers on the im- peachment of the President. Mr. President and Gentlemen of the Senate : The onerous duty has fallen to my fortune to present to you, imperfectly as I must, the several propositions of fact and law upon which the House of Representatives will endeavor to sustain the cause of the people against the President of the United States, now pending at your bar. The high station of the accused, the novelty of the proceeding, the gravity of the business, the importance of the questions to be presented to your adjudication, the possible momentous result of the issues, each and all must plead for me to claim your attention for as long a time as your patience may endure. Now, for the first time in the history of the world, has a nation brought before its high- est tribunal its chief executive magistrate for trial and possible deposition from office upon charges of maladministration of the powers and duties of that office. In other- times and in other lands it has been found that despot- isms could only be tempered by assassination, and nations living under constitutional govern- ments even have found no mode by which to rid themselves of a tyrannical, imbecile, or faithless ruler, save by overturning the very foundation and framework of the Government itself. And but recently, in one of the most civilized and powerful Governments of the world, from which our own institutions have been largely modeled, we have seen a nation submit for years to the rule of an insane king, because its constitution contained no method for his removal. Our fathers, more wisely founding our Gov- ernment, have provided for such and all similar exigencies a conservative, effectual, and practi- cal remedy by the constitutional provision that the " President, Vice President, and all civil officers of the United States shall be removed from office on impeachmentfor and conviction of treason, bribery, or other high crimes and misdemeanors." The Constitution leaves noth- ing to implication, either as to the persons upon whom, or the body by whom, or the tribunal before which, or the offenses for which, or the manner in which this high power should be exercised ; each and all are provided for by express words of imperative command. The House of Representatives shall solely impeach ; the Senate only shall try ; and in case of conviction the judgment shall alone be removal from office and disqualification for office, one or both. These mandatory provisions became necessary to adapt a well-known pro- cedure of the mother country to the institutions of the then infant Republic. But a single inci- dent only of the business was left to construc- tion, and that concerns the offenses or inca- pacities which are the groundwork of impeach- ment. This was wisely done, because human foresight is inadequate and human intelligence fails in the task of anticipating and providing for, by positive enactment, all the infinite gra- dations of human wrong and sin by which the liberties of a people and the safety of a nation may be endangered from the imbecility, cor- ruption, and unhallowed ambition of its rulers. It may not be uninstructive to observe that the framers of the Constitution, while engaged in their glorious and, I trust, ever-enduring work, had their attention aroused and their minds quickened most signally upon this very topic. In the previous year only Mr. Burke, from his place in the House of Commons in England, had preferred charges for impeach- ment against Warren Hastings, and three days before our convention sat he was impeached at the bar of the House of Lords for misbehavior in office as the ruler of a people whose num- bers were counted by millions. The mails were then bringing across the Atlantic, week by weelt, the eloquent accusations of Burke, the gorgeous and burning denunciations of Sheri- dan, in behalf of the oppressed people of India, against one who had wielded over them more than regal power. May it not have been that the trial then in progress was the determining cause why the framers of the Constitution left the description of offenses because of which the conduct of an officer might- be inquired of to be defined by the laws and usages of Par- liament as found in the precedents of the mother country, with which our fathers were as familiar as we are with our own ? In the light, therefore, of these precedents, he question arises, What are impeachable offenses under the provisions of our Constitu- tion? To analyze, to compare, to recon*iIe these precedents is a work rather for the closet than the forum. In order, therefore, to spare your attention, I have preferred to state the result to which I have arrived, and that you may see the authorities and discussions, both in this country and in England, from which we deduce our propositions, so far as applicable to this case, I pray leave to lay before you, at the close of my argument, a brief of all the precedents and authorities upon this subject in both coun- tries, for which I am indebted to the exhaustive and learned labors of hry friend, Hon. William Lawrence, of Ohio, member of the Judiciary Committee of the House of Representatives, in which I fully concur and which I adopt. We define, therefore, an impeachable high crime or misdemeanor to be one in its nature or consequences subversive .of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives, or for any improper purpose. ' The first criticism which will strike the mind on a cursory examination of this definition is that some of the enumerated acts are not within the common-law definition of crimes. It is but common-learning that in the English precedents the words "high crimes and mis- demeanors' ' are universally used ; but any mal- versation in office highly prejudicial to the public interest, or subversive of some funda- mental principle of government by which the safety of a people may be in danger, is a high crime against the nation, as the term is used in parliamentary law. Hallam, in his Constitutional History of England, certainly deduces this doctrine from the precedents, and especially Lord Danby, case 14, State Trials, 600, of which he says: "The Commons, in impeaching Lord Danby, Went a great way toward establishing the principle that no minister can shelter himself behind the throne by 6 leading obedience to the orders of his sovereign. '.q is answerable for the justice, the honesty, the utility of all measures emanating from the crown, as well as for their legality; and thus the executive administration is, or ought to be, subordinate in all greajt matters of policy to the superintendence and virtual control of the two Houses of Parliament." Mr. Christian, in his notes to the Commenta- ries of Blackstone, explains the collocation and use of the words ' ' high crimes and misdemean- ors" by saying: " When the words ' high crimes and misdemeanors, are used in prosecutions by impeachment the words 'high crimes' have no definite signification, but are used merely to give greater solemnity to the charge." A like interpretation must have been given by the framers of the Constitution, because a like definition to ours was in the mind of Mr. Madison, to whom more than to any other we are indebted for the phraseology of our Constitu- tion, for, in the First Congress, when discuss- ing the power to remove an officer by the President, which is one of the very material questions before the Senate at this moment, he us'es the following words : "The danger consists mainly in this: that the Pres- ident can displace from office a man whose merits require he should be continued in it. In the first place, he will be impeachable by the House for such an act of maladministration, for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust." Strengthening this view, we find that within ten years afterward impeachment was applied by the very men who framed the Constitution to the acts of public officers which under no common-law definition could be justly called crimes or misdemeanors, either high or low. Leaving, however, the correctness of our prop- osition to be sustained by the authorities we 30 SUPPLEMENT TO furnish, we are naturally brought to the con- , sideration of the method of the procedure and the nature of the proceedings in cases of im- peachment, and the character and powers of the tribunal by which high crimes and misde- meanors are to be adjudged or determined. One of the important questions which meets us at the outset is: is this proceeding a trial, as that term is understood so far as relates to the rights and duties of a court and jury upon an indictment for crime? Is it not rather more in the nature of an inquest of office ? The Constitution seems to have determined it to be the latter, because, under its provis- ions, the right to retain and hold office is the only subject that can be finally adjudicated ; all preliminary inquiry being carried on solely to determine that question, and that alone. All investigations of fact are, in some sense, trials, but not in the sense in which the word is used by courts. Again, as a correlative question : Is this body, now sitting to determine the accusation of the House of Representatives against the President of the United States, the Senate of the United States or a court? I trust, Mr. President and Senators, I may be pardoned for making some suggestions upon these topics, because to us it seems these are questions not of forms, but of substance. If this body here is a court in any manner as contradistinguished from the Senate, then we agree that many, if not all, the analogies of the procedures of courts must obtain; that the common-law incidents of a trial in court must have place; that you may be bound in your proceedings and adjudication by the rules and precedents of the common er statute law; that the interest, bias, or preconceived opinions or affinities to the party of the judges may be open to inquiry, and even the rules of order and precedents in courts should have effect; that the Managers of the House of Representa- tives must conform to those rules as they would be applicable to public or private prosecutors of crime in courts, and that the accused may claim the benefit of the rule in criminal cases, that he may only be convicted when the evi- dence makes the fact clear beyond reasonable doubt, instead of by » preponderance of the evidence. We claim, and respectfully insist, that this tribunal has none of the attributes of a judi- cial court as they are commonly received and understood. Of course this question must be largely determined by the express provisions of the Constitution, and in it there is no word, as is well known to you, Senators, which'gives the slightest coloring to the idea that this is a court, save that in the trial of this particular respondent, the Chief Justice of the Supreme Court must preside. But even this provision can have no determining effect upon the ques- tion, because is not this the same tribunal in all its powers, incidents, and duties, when other civil officers are brought to its bar for trial, when the Vice President (not a judicial officer) must preside ? Can it be contended for a mo- ment that this is the Senate of the United States when sitting on the trial of all other officers, and a court only when the President is at the bar, solely because in this case the Constitu- tion has designated the Chief Justice as the presiding officer? The fact that Senators are sitting for this purpose on oath or affirmation does not influ- ence the argument, because it is well under- stood that that was but a substitute for the obligation of honor under which, by the the- ory of the British constitution, the peers of England were supposed to sit in like cases. A peer of England makes answer in a court of chancery upon honor when a common per- son must answer upon oath. But our fathers, sweeping away all distinctions of caste, re- quired every man alike, acting in a solemn proceeding like this, to take an oath. Our Constitution holds all good men alike honor- . njjle and entitled to honor. The idea that this tribunal was a court seems to hare crept in because of the analogy to similar proceedings in trials before the House of Lords. Analogies have ever been found deceptive and illusory. Before such analogy is invoked we must not forget that the Houses of Parlia- ment at first, and latterly the House of Lords, claimed and exercised jurisdiction over all crimes, even where the punishment extended to life and limb. By express provision of our Constitution all such jurisdiction is taken from the Senate and " the judicial power of the United States is vested in one Supreme Court and such inferior courts as from time to time Congress may ordain and establish." We suggest, therefore, that we are in the presence of the Senate of the United States, convened as a constitutional tribunal, to in- quire into and determine whether Andrew John- son, because of malversation in office, is longer fit to retain the office of President of the United States, or hereafter to hold any office of honor or profit. I respectfully submit that thus far your mode of proceeding has no analogy to that of a court. You issue a summons to give the respondent notice of the case pending against him. You do not sequester his person — you do not require his personal appearance even ; you proceed against him and will go on to determine his cause in his absence, and make the final order therein. How different is each step from those of ordinary criminal procedure. A constitutional tribunal solely, you are bound by no law, either statute or common, which may limit your constitutional preroga- tive. You consult no precedents save those of the law and custom of parliamentary bodies. You are a law unto yourselves, bound only by the natural principles of equity and justice, and that salus populi suprema est lex. Upon these principles and parliamentary law no judges can aid you, and, indeed, in late years the judges of England in the trial of impeach- ment, declined to speak to a question of par- liamentary law, even at the request of the House of Peers, although they attended on them in their robes of office. Nearly five hundred years ago, in 1388, the House of Lords resolved, in the case of Belk- nap and the other judges, "That these matters, when brought before them, shall be discussed and adjudged by the course of Parliament, and not by the civil law, nor by the common law of the land used in other inferior courts." And that resolution, which was in contra- vention of the opinion of all the judges of England, and against the remonstrance of Richard II, remains the unquestioned law of England to this day. Another determining quality of this tribunal, distinguishing it from a court and the analogies of ordinary legal proceedings, and showing that it is a Senate only, is, that there can be no right of challenge by either party to any of its mem- bers for favor or malice, affinity, or interest. This has been held from the earliest times in Parliament even when that was the high court of judicature of the realm sitting to punish all crimes against the peace. In the case of the Duke of Somerset, (1 Howell's State Trials, page 621,) as early as 1551, it was held that the Duke of Northum- berland and the Marquis of Northampton and the Earl of Pembroke, for an attempt upon whose lives Somerset was on trial, should sit in judgment upon him against the objection of the accused because "a peer of the realm might not be challenged." Again, the Duke of Northumberland, (ibid., 1 State Trials, p. 765,) Marquis of North- ampton, and Earl of Warwick, being on trial for their lives, A. D. 1553, before the court of the Lord High Steward of England, one of the prisoners inquired whether any such per- sons as were equally culpable in that crime, and those by.whose letters and commandments he was directed in all his doings, might be his judges, or pass upon his trial at his death. It was answered that, " If any were as deeply to be touched as himself in that case, yet as long as no attainder of record were against them, they were nevertheless persons able in the law to pass upon any trial, and not to be challenged therefor, but at the prince's pleasure. Aeain, on the trial of Earls of Essex and Southampton {ibid., 1 State Trials, p. 1335) for high treason, before all the justices of Eng- land, A. D. 1600, the Earl of Essex desired to know of my Lord Chief Justice whether he might challenge any of the peers or no. Where- unto the Lord Chief Justice answered "No." Again, in Lord Audley's case (ibid., 3 State Trials, p. 402, A. D., 1631) it was questioned whether a peer might challenge his peers, as in the case of common jurats. It was answered by all the judges, after consultation, ' ' he might not." [This case is of more value because it was an indictment for being accessory to rape upon his own wife, and had no political influ- ence in it whatever.] The same point wag ruled in the Countess of Essex's case, on trial for treason. (Moore's Reports, 621.) In the Earl of Portland's case, A. D. 1701, (ibid., State Trials, p. 288,) the Commons objected that Lord Sommers, the Earl of Ox- ford, and Lord Halifax, who had been im- Eeached by the Commons before the House of ords for being concerned in the same acts for which Portland was being brought to trial, voted and acted with the House of Lords in the preliminary proceedings of said trial, and were upon a committee of conference in rela- tion thereto. But the lords after discussion solemnly resolved ' ' that no lord of Parliament, impeached of high crimes and misdemeanors, can be precluded from voting on any occasion, except on his own trial." In the trial of Lord Viscount Melville, A. D. 1806, (ibid., 29 State Trials, p. 1398,) some ob- servations having been made as to the possible bias of some portion of the peers, (by the counsel for defendant,) Mr. Wbitebread, one of the managers on the part of the Commons, answered as follows : " My lords, as to your own court, something has been thrown out about the possibility of a challenge. Upon such a subject it will not be necessary to say more than this, which has been admitted : that an order was given by the House of Commons to prose- cute Lord Melville in a court of law where he would have the right to challenge his jurors." * * * * "What did the noble viscount then do by the means of one of his friends?" * * * * "From the mouth of that learned gentleman came at lost the successful motion : 'that Henry, Viscount of Melville, be impeached of high crimes and misde- meanors/ I am justified, then, in saying that he is hereby his own option." * * * « "But, my lords, a challenge to your lordships 1 Is not every individual peer the guardian of his own honor?" ■ In the trial of Warren Hastings the same point was ruled, or, more properly speaking, taken for granted, for of the more than one hundred and seventy peers who commenced the trial but twenty-nine sat and pronounced the verdict at the close, and some of those were peers created since the trial began, and had not heard either the opening or much of the evidence; and during the trial there had been by death, succession, and creation, more than one hundred and eighty changes in the House of Peers, who were his judges. We have abundant authority also on this point in our own country. In the case of Judge Pickering, who was tried in March, 1804, for drunkenness in office, although undefended in form, yet he had all his rights preserved. This trial being postponed a session, three Senators — Samuel Smith of Maryland, Israel Smith of Vermont, and John Smith of New York— who had all been members of the House of Representatives, and thefe voted in favor of impeaching Judge Pickering, were Senators when his trial came off. _ Mr. Smith, of New York, raised the ques- tion, by asking to be excused from voting. Mr. Smith, of Maryland, declared "he would not be influenced from his duty by any false deli- cacy ; that he, for his part, felt no delicacy upon the subject ; the vote he had given in the other House to impeach Judge Pickering would have no influence upon him in the court ; his constituents had a right to his vote, and he would not by any act of his deprive, or consent THE CONGRESSIONAL GLOBE. 31 to deprive, them of that right, but would claim and exercise it.upon this as upon every other question that might be submitted to the Senate while he had the honor of a seat." A vote being had upon the question, it was determined that these gentlemen should sit and vote on the trial. This passed in the affirma- tive by a vote of 19 to 7, and all the gentlemen sat and voted on every question during the trial. On the trial of Samuel Chase before the Senate of the United States no challenge was attempted, although the case was decided by an almost strict party vote in high party times, and doubtless many of the Senators had formed and expressed opinions upon his conduct. That arbitrary judge, but learned lawyer, knew too much to attempt any such futile movement as a challenge to a Senator. Cer- tain it is that the proprieties of the occasion were not marred by the worse than anomalous proceeding of the challenge of one Senator to another, especially before the defendant had appeared. Nor did the managers exercise the right of challenge, although Senators Smith and Mitch- ell, of New York, were members of the Senate on the trial and voted not guilty on every ar- ticle, who had been members of the Hpuse when the articles were found, and had there voted steadily against the whole proceeding. Judge Peek's case, which was tried in 1831, affords another instance in point. The conduct of Judge Peck had been the subject of much animadversion and comment by the public, and had. been for four years pending before the Congress of the United States before it finally came to trial. It was not possible but that many of the Senate had both formed and expressed opinions upon Peck's proceedings, and yet it never occurred to that good lawyer to make objection to his triers. Nor did the managers challenge, al- though Webster, of Massachusetts, was a mem- ber of the committee of the House of Repre- sentatives to whom the petition for impeachment was referred, and which, after examination, reported thereon "leave to withdraw," and Sprague, of Maine, voted against the proceed- ings of the House, while Livingston, of Louis- iana, voted for them. All of these gentlemen sat upon the trial, and voted as they did in the House. A very remarkable and instructive case was that of Judge Addison, of Pennsylvania, in 1804. There, after the articles of impeach- ment were framed, the trial was postponed to another session of the Legislature. Meanwhile three members of the House of Representatives, who had voted for the articles of impeachment, were elected to the Senate and became the triers of the articles of impeachment of which they had solemnly voted the respondent to be guilty. To their sitting on the trial Judge Addison objected, but after an exhaustive argument his objection was overruled — 17 to 6. Two of the minority were the gentlemen who had voted him guilty, and who themselves objected to sitting on the trial. Thus stands the case upon authority. How does it stand upon principle ? In a conference held in 1691, between the Lords and Commons, on a proposition to limit the number of judges, the Lords made answer : "That in the ease of impeachments, which are the groans of the people, and tor the highest crimes, and carry with them a greater supposition of guilt than any other accusation, there all the lords must judge." There have been many instances in England where this necejBfljy, that no peer be excused from sitting on soon trials, has produced curi- ous results. Brothers have sat upon the trials of brothers, fathers upon the trials of sons and daughters, uncles upon the trials of nephews and nieces : no excuse being admitted. One, and a tnost peculiar and painful in- stance, will suffice upon this point to illustrate the strength of the rule. In the trial of Anne Bullen, the wife of one sovereign of England and the mother of another, her father, Xord Rochefort, and her uncle, the Duke of Norfolk, sat as judges and voted guilty, although one of the charges against the daughter and niece was a criminal intimacy with her brother, the son and nephew of the judges. It would seem impossible that in a proceed- ing before such a tribunal so constituted there could be a challenge, because, as the number of triers is limited by law, and asthere are not now, and never have been, any provisions, either in England or in this country, for sub- stituting another for the challenged party, as a talesman ia substituted in a jury, the accused might escape punishment altogether by chal- lenging a sufficient number to prevent a quo- rum, or the accuser might oppress the respond- ent by challenging all persons favorable to him until the necessary unanimity for conviction was secured. This proceeding being but an inquest of office, and, except in a few rare instances, alwayspartaking, more or less, of political con- siderations, andrequiringto be discussed, before presentation to the triers, by the coordinate branch of the Legislature, it is impossible that Senators should not have opinions and convic- tions upon the subject-matter more or less de- cidedly formed before the case reaches them. If, therefore, challenges could be allowed be- cause of such opinions, as in the case of jurors, no trial could go forward, because every intel- ligent Senator could be objected to upon one side or the other. I should have hardly dared to trouble the Senate with such minuteness of citation and argument upon this point, were it not that cer- tain persons and papers outside of this body, by sophistries drawn from the analogies of the proceedings in courts before juries, have en- deavored, in advance, to prejudice the public mind, but little instructed in this topi.:, because of the infrequency of impeachments, against the legal validity and propriety of the proceed- ings upon this trial. I may be permitted, without offense, further to state that these and similar reasons have prevented the Managers from objecting by challenge or otherwise to the competency of one of the triers of near affinity to the accused. We believe it is his right, nay, his duty to the State he represents, to sit upon the trial as he would upon any other matter which should come before the Senate. His seat and vote belong to his constituents, and not to himself, to be used according to his best judgment upon every grave matter that comes before the Senate. Again, as political considerations are involved in this trial, raising questions of interest to the constituents of every Senator, it is his right and duty to express himself as fully and freely upon such questions as upon any other, even to express a belief in the guilt or innocence of the accused, or to say he will sustain him in the course he is taking, although he so says after accusation brought. Let me illustrate. Sup- pose that after this impeachment had been voted by the House of Representatives the constituents of any Senator had called a public meeting to sustain the President against what they were pleased to term the " tyrannical acts of Con- gress toward him in impeaching him," and should call upon their Senator to attend and take part in such meeting, I do not conceive that it would or ought to be legally objected against him as a disqualification to sit upon this trial, upon the principles I have stated, if he should attend the meeting or favor the object, or if his engagements in the Senate prevented his leaving. I have not been able to find any legal objection in the books to his writing a let- ter to such meeting, containing, among other things, statements like the following : Senate Chamber, February 21, 1868. Gentlemen : My public and professional engage- ments will be such on the 4th of March that I am reluctantly compelled to decline your invitation to be present and address the meeting to be held in our city on that day. ******* That thePresidentof the United States has sincerely endeavored to preserve these (our free institutions) from violation I have no doubt, and I have, there- fore, throughout the unfortunate difference of opinion between him and Congress, sustained him. And this I shall oontinue to do as long as ho shall prove faith- ful to duty. With my best thanks for the honor you have done me byyour invitation, and regrotting that it is not in my power to accept it, I remain, with regard, your obedient servant, RBVERDY JOHNSON. We should have as much right to expect his vote on a clearly-proven case of guilty as had King Henry VIII to hope for the vote of her father against his wife. He got it. King Henry knew the strength of his case, and we know the strength of ours against this respondent. If it be said that this is an infelicity, it is a sufficient and decisive answer that it is the in- felicity of a precise constitutional provision, which provides that the Senate shall have the sole power to try impeachments, and the only security against bias or prejudice on the part of any Senator is, that two thirds of the Sena- tors present are necessary for conviction. To this rule there is but one possible excep- tion, founded on both reason and authority, that a Senator may not be a judge in his own case. I have thought it necessary to determine the nature and attributes of the tribunal before we attend to the scope and meaning of the accusation before it. The first eight articles set out in several dis- dinct forms the acts of the respondent in remov- ing Mr. Stanton from office, and appointing Mr. Thomas ad interim, differing in legal effect in the purposes for which and the intent with which either or both of the acts were done, and the legal duties and rights infringed and the acts of Congress violated in so doing. All the articles allege these acts to be in contravention of his oath of office, and in dis- regard of the duties thereof. If they are so, however, the President might have the power to do them under the law; still, being so done, they are acts of official miscon- duct, and, as we have seen, impeachable. The President has the legal power to do many acts which, if done in disregard of his duty, or for improper purposes, then the exer- cise of that power is an official misdemeanor. Ex. gr. : he has the power of pardon ; if ex- ercised in a given case for a corrupt motive, as for the payment of money, or wantonly par- doningall criminals, it would be a misdemeanor. Examples might be multiplied indefinitely. Article first, stripped of legal verbiage, al- leges that, having suspended Mr. Stanton, and reported the same to the Senate, which refused to concur in the suspension, and Stanton hav- ing rightfully resumed the duties of his office, the respondent, with knowledge of the facts, issued an order which is recited for Stanton's removal-, with intent to violate the act of March 2, 1867, to regulate the tenure of certain civil offices, and with the further intent to remove Stanton from the office of Secretary of War, then in the'lawful discharge of its duties, in contravention of said act, without the advice and consent of the Senate, and against the Constitution of the United States. Article two charges that the President, with- out authority of law, on the 21st of February, 1868, issued letter of authority to Lorenzo Thomas to act as Secretary of War ad interim, the Senate being in session, in violation of the tenure-of-office act, and with intent to violate it and the Constitution, there being no vacancy in the office of Secretary of War. Article three alleges the same act as done without authority of law, and alleges an intent to violate the Constitution. Article four charges that the President con- spired with Lorenzo Thomas and divers other persons, with intent, by intimidation and threats, to prevent Mr. Stanton from holding the office of Secretary of War, in violation of the Constitution and of the act of July 31, 1861. Article five charges the same conspiracy with Thomas to prevent Mr. Stanton's holding his office, and thereby to prevent the execution of the civil-tenure act. Article six charges that the President cort> spired with Thomas to seize and possess the property under the control of the War Depart- 32 SUPPLEMENT TO ment by force, in contravention of the act of July 31, 1861, and with intent to disregard the civil tenure-of-olfice act. Article seven charges the same conspiracy, with intent only to violate the civil tenure-of- office act. Articles three, four, five, six and seven, may all be considered together, as to the proof to support them. It will be shown that, having removed Stan- ton and appointed Thomas, the President sent Thomas to the War Office to obtain possession ; that having been met by Stanton with a denial of his rights, Thomas retired, and after con- sultation with the President Thomas asserted his purpose to take possession of the War Office by force, making his boast in several public places of his intentions so to do, but was pre- vented by being promptly arrested by process from the court. This will be shown by the evidence of Hon. Mr. Van Horn, a member of the House, who was present when the demand for possession of the War Office was made by General Thomas, already made public. By the testimony of Hon. Mr. Burleigh, who, after that, in the evening of the 21st of February, was told by Thomas that he intended to take possession of the War Office by force the following morning, and invited him up to see the performance. Mr. Burleigh attended, but the act did not come off, for Thomas had been arrested and held to bail. By Thomas boasting at Willard's Hotel on the same evening that he should call on Gen- eral Grant for military force to put him in pos- session of the office, and he did not see how Grant could refuse it. Article eight charges that the appointment of Thomas was made for the purpose of get- ting control of the disbursement of moneys appropriated for the military service and De- partment of War. In addition to the proof already adduced it will be shown that, after the appointment of Thomas, which must have been known to the members of his Cabinet, the President caused a formal notice to be served on the Secretary of the Treasury to the end that the Secretary might answer the requisitions for money of Thomas, and this was only prevented by the firmness with which Stanton retained posses- sion of the books and papers of the War Office. It will be seen that every fact charged in article one is admitted by the answer of the respondent; the intent is also admitted as charged ; that is to say, to set aside the civil tenure-of-office act, and to remove Mr. Stan- ton from the office of the Secretary for the Department of War without the advice and consent of the Senate, and, if not justified, contrary to the provisions of the Constitution itself. The only question remaining" is, does the respondent justify himself by the Constitution and laws ? On this he avers, that by the Constitution there is "conferred on the President, as a part of the executive power, the power at any and all times of removing from office all executive officers for cause, to be judged of by the Presi- dent alone, and that he verily believes that the executive power of removal from office con- fided to him by the Constitution, as aforesaid, includes the power of suspension from office indefinitely." Now, these offices so vacated must be filled temporarily, at least, by his appointment, be- cause government must go on ; there can be no interregnum in the execution of the laws in an organized Government; he claims, there- fore, of necessity, the right to fill their places with appointments of his choice, and that this power cannot be restrained or limited in any degree by any law of Congress, because, he avers, " that the power was conferred, and the duty of exercising it in fit cases was imposed on the President by the Constitution of the iUnited States, and that the President could not be deprived of this power or relieved of this duty, nor could the same be vested bylaw in the President and the Senate jointly, either in part or whole." This, then, is the plain and inevitable issue before the Senate and- the American people: Has the President, under the Constitution, the more than kingly prerogative at will to re- move from office and suspend from office indefi- nitely, all executive officers of the United States, either civil, military, or naval, at any and all times, and fill the vacancies with creatures of his own appointment, for his own purposes, without any restraint whatever, or possibility of restraint by the Senate or by Congress through laws duly enacted? The House of Representatives, in behalf of the people, join this issue by affirming that the exercise of such powers is a high misdemeanor in office. If the affirmative is maintained by the re- spondent, then, so far as the first eight articles are concerned — unless such corrupt purposes are shown as will of themselves make the exer- cise of a legal power a crime — the respondent must go, and ought to go quit and free. Therefore, by these articles and the answers thereto, the momentous question, here and now, is raised whether the presidential office itself (if it has the prerogatives and power claimed for it) ought, in fact, to exist as a part of the constitutional government of a free people, while by the last three articles the sim- pler and less important inquiry is to be determ- ined, whether Andrew Johnson has so con- ducted himself that he ought longer to hold any constitutional office whatever. The latter sinks to merited insignificance compared with the grandeur of the former. If that is sustained, then a right and power hitherto unclaimed and unknown to the people of the country is ingrafted on the Constitution, most alarming in its extent, most corrupting in its influence, most dangerous in its tend- encies, and most tyrannical in its exercise. Whoever, therefore, votes "not guilty" on these articles votes to enchain our free kititu- tions, and to prostrate them at the feet of any man who, being President, may choose to con- trol them. For this most stupendous arid unlimited pre- rogative the respondent cites no line and ad- duces no word of constitutional enactment; indeed he could not, for the only mention of removal from office in the Constitution is as a part of the judgment in case of impeachment, and the only power of appointment is by nom- ination to the Senate of officers to be appointed by their advice and consent, save a qualified and limited power of appointment by the Presi- dent when the Senate is not in session. Whence, then, does the respondent by his answer, claim to have derived this power? I give him the benefit of his own words, "that it was practi- cally settled by the First Congress of the Uni- ted States." Again, I give him the benefit of his own phrases as set forth in his messsage to the Senate of 2d of March, 1867, made a part of his answer: "the question was decided by the House of Representatives by a vote of 34 to 20, (in this, however, he is mistaken,) and in the Senate by the casting vote of the Vice President." In the same answer he admits that before he undertook the exercise of this most dangerous and stupendous power, after 6eventy-five years of study and examination of the Constitution by the people living under it, another Congress has decided that there was no such unlimited power ; so that he ad- mits that this tremendous power which he claims from the legislative construction oi one Congress by a vote of U to 20 in the House and a tie vote in the Senate has been denied by another House of more than three times the number of members by a vote of 133 to 37, and by a Senate of more than double the number of Senators by a vote of 38 to 10, and this, too, after he had presented to them all the arguments in its favor that he could find to sustain his claim of power. If he derives this power from the practical settlement of one Congress of a legislative con- struction of the constitutional provisions, why may not such construction be as practically set- tled more authoritatively by -the greater una- nimity of another Congress— yea, as we shall see, of many other Congresses? The great question, however, still returns upon us, whence comes this powqr? How derived or conferred ? Is it unlimited and un- restrained, illimitable and unrestrainable, as the President claims it to be ? In presenting this topic it will be my duty, and 1 shall attempt to do nothing more, to state the propositions of law and the authori- ties to support them, so far as they may come to my knowledge, leaving the argument and illustrations of the question to be extended in the close by abler and better hands. If a power of removal in the Executive is found at all in the Constitution it is admitted to be an implied ono, either from the power of appointment or because " the executive power is vested in the President." Has the executive power granted by the Con- stitution by these words any limitations? Does the Constitution invest the President with all executive power, prerogatives, privileges, and immunities enjoyed by executive officers of other countries — kings and emperors — without limitation ? If so, then the Constitution has been much more liberal in granting powers to the executive than to h.2 legislative branch of the Government, as that has only "all legis- lative powers herein granted [which] shall be vested in the Congress of the United States;" not all uncontrollable legislative powers, as there are many limitations upon that power as exercised by the Parliament of England, for example. So there are many executive powers expressly limited in the Constitution, such as declaring war, making rules and regulations for the government of the Army and Navy, and coining money. As some executive powers are limited by the Constitution itself, is it not clear that the words " the executive power is vested in ihe Presi- dent" do not confer on him all executive powers, but must be construed with reference to other constitutional provisions granting or regulating specific powers? The executive power of appointment is clearly limited by the words : "Ileshall nominate, and, by and withtheadvieeaod consent of the Senate, shall appoint, embassadors," * * * * "and all other officers of the Uni- ted States whoso appointments are not herein other- wise provided for, and which shall be established by law." It is not, therefore, more in accordance with the theory of the Constitution to imply the power of removal from the power of appointment, re- strained by like limitations, than to imply it solely as a prerogative of executive power and, therefore, illimitable and uncontrollable? Have the people" anywhere else in the Constitution granted illimitable and uncontrollable powers either to the executive or any other branch of the Government? Is not the whole frame of government one of checks, balances, and limit- ations? Is it to be believed that our fathers, just escaping from the oppressions of mon- archical power, and so dreading it that they feared the very name of king, gave this more than kingly power to the Executive, illimita- ble and uncontrollable, and that, too, by impli- cation merely? Upon this point our proposition is, that the Senate being in session, and an office, not an inferior one, within the terms of the Constitu- tion, being filled, the President has the implied power of inaugurating the removal only by nomination of a successor tothe Senate, which, when consented to, works ;ffl^full removal and supersedeas of the incumber Such has been, it is believed, the practice of the Government from the beginning down to the act about which we are inquiring. Certain it is that Mr. Web- ster, in the Senate in 1835, so assarted without conR-adiction, using the following language: appoint^ "JK'J?; Secretary of State and another be appo nted, the first goes out by the mere force of the appointment of the other, without any prerious act of removal whatever. And thisis thepracticoof the Government, and has been from the "first In a° the removals whU have been made they have generally THE CONGRESSIONAL GLOBE. 33 been effected simply by making other appointments. I cannot find a«oso to tho contrary. There is no such thing as any distinct official act of removal. I have looked into the practioe, and caused inquiries to be made in the Departments, and I do not learn that any such proceeding is known as on entry or record of the removal of an officer from office, and the Pres- ident would only act in such cases by causing sorao proper record or entry to bo made as proof of thofact of removal. I am aware that thore have been some cases in whichnotice has been sen t to persons in office that theirsorvices arc or will be, after agiven day, dis- pensed with. Thcso are usually cases in which tho ob- ject is, nottoinibrmthoincuinbentthatheisromoveu, hut. to tell him that a successor cither is, or by a day named will bo, appointed. If there bo any instances in which such notice Is given, without express refer- enccto the appointment of a successor, they are few; and oven in these such refcrcnoe must be implied, because in no ease is thore any distinct official act of removal, as I can find, unconnected with the act of appointment.' 7 This would seem to reconcile all the provis- ions of the Constitution, the right of removal being in the President, to be executed sub modo, as is the power of appointment, the ap- pointment, when consummated, making the removal. This power was elaborately debated in the First Congress upon the bills establishing a Department of Foreign Affairs and the War Department. The debate arose on the motion, in Committee of the Whole, to strike out, after the title of the officer, the words, "to be re- movable from office by the President of the United States." It was four days discussed in Committee of the Whole in the House, and the clause retained by a vote of 20 yeas to 34 nays, which seemed to establish the power of removal as either by a legislative grant or construction of the Constitution. But the triumph of its friends was short-lived, for, when the bill came up in the House, Mr. Benson moved to amend it by altering the second section of the bill, so as to imply only the power of removal to be in the President, by inserting that ' ' whenever the principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, the chief clerk shall, during such vacancy, have charge and custody of all records, books, and papers appertaining to the Department." Mr. Benson "declared he would move to strike out the words in the first clause, to be removable by the President, which appeared somewhat like a grant. Now, the mode he topk would evade that point and establish a legisla- tive construction of the Constitution. He also hoped his amendment would succeed in recon- ciling both sides of the House to the decision and quieting the minds of the gentlemen." After debate the amendment was carried, 30 to 18. Mr. Benson then moved to strike out the words "to be removable by the President of the United States," which was carried, 31 to 19 ; and so the bill was engrossed and sent to the Senate. The debates of that body being in secret ses- sion, we have no record of the discussion which arose on the motion of Mr. Benson establish- ing the implied power of removal ; bnt after very elaborate consideration on several suc- cessive days the words implying this power in the President were retained by the casting vote of the elder Adams, the Vice President. So this claimed " legislative settlement" was only established by the vote of the second exec- utive officer of the Government. Alaal most of our woes in this Government have come from Vice Presidents. When the bill estab- lishing the War Department came up the same words, "to be removable by the President," were struck out, on the motion of one of the opponents of the recognition of this power, by a vote of 24 to 22, a like amendment to that of the second section of the act establishing the Department of State being inserted. When, six years afterward, the Department of the Navy was established, no such recognition of the power of the President to remove was in- serted ; and as the measure passed by a strict party vote, 47 yeas to 41 nays, it may well be conceived that its advocates did not care to load it with this constitutional question when the executive power was about passing into other hands, for one cannot read the debates Supplement — 3. upon this question without being impressed with the belief that reverence for the character of Washington largely determined the argument in the First Congress. Neither party did or could have looked forward to such an execu- tive administration as we have this day. It has generally been conceded in subse- quent discussions that here was a legislative determination of this question, but I humbly submit that taking' the whole action of Con- gress together it is very far from being determ- ined. I should hardly have dared, in view of the eminent names of Holmes, Clay, Web- ster, and Calhoun, that have heretofore made the admission, to have ventured the assertion, were it not that in every case they, as do the President and his counsel, rely on the (irst vote in the Committee of the Whole, sustaining the words "to be removable by the President," and in no instance take any notice of the sub- sequent proceedings in the House by which those words were taken out of the bill. This may have happened because Eliot's Debates, which is the authority most frequently cited in these discussions, stops with the vote in com- mittee, and takes no notice of the further dis- cussion. Bat whatever may be the effect of this legislative construction the contempora- neous and subsequent practice of the Govern- ment shows that the President made no re- movals except by nominations to the Senate when in session, and superseding officers by a new commission to the confirmed nominee. Mr. Adams, in that remarkable letter to Mr. Pickering in which he desires his resignation, requests him to send it early in order that he may nominate to the Senate, then about to sit, and he in fact removes Mr. Pickering by a nomination. Certainly no such unlimited power has ever been claimed by any of the earlier Presidents, as has now been set up for the President by his most remarkable, ay, criminal answer. It will not have escaped attention that no determination was made by that legislative con- struction as to how the removal, if in the Pres- ident's power, should be made, which is now the question in dispute. That has been determ- ined by the universal practice of the Gov- ernment, with exceptions, if any, so rare as not to be worthy of consideration ; so tha we now claim the law to be what the practice has ever been. If, however, we concede the power of removal to be in the President as an implied power, yet we believe it cannot be successfully contended upon any authorities or constant practice of the Goverment that the execution of that power may not be regulated by the Con- gress of the United States under the clauso in the Constitution which "vests in Congress the power to make all laws which shall be neces- sary and proper for carrying into execution" "all powers vested by this Constitution in the Government of the United States or in any department or officer thereof. This power of regulation of the tenure of office, and the manner of removal, has always been exercised by Congress unquestioned until now. On the 15th of May, 1820, (vol. 3 Statutes-at- Large, p. 082,) Congress provided for the term of office of certain officers therein named to be four years, but made them removable at pleas- ure. By the second section of the same act Congress removed from office all the officers therein commissioned, in providing a date when each commission should expire. Congress has thus asserted a legislative power of removal from office ; sometimes by passing acts which appear to concede the power to the President to remove at pleasure, sometimes restricting that power in their acts by the most stringent provisions; sometimes conferring the power of removal, and sometimes that of appointment — the acts establishing the territorial officers being most conspicuous in this regard. Upon the whole, no claim of exclusive right over removals or appointments seems to have been made either by the Executive or by Con- gress. No bill was ever vetoed on this account Hntil now _ In 1818, Mr. Wirt, then Attorney General, giving the earliest official opinion on this ques> tion coming from that office, said that only where Congress had not undertaken to restrict the tenure of office, by the act creating it, would a, commission issue to run during the pleasure of the President; but if the tenure was fixed by law, then commission must con- form to the law. No constitutional scruples as to the power of Congress to limit the tenure of office seem to have disturbed the mind of that great lawyer. But this was before any attempt had been made by any President to arrogate to himself the official patronage for the purpose of party or personal aggrandize- ment, which gives the only value to this opin- ion as an authority. Since the Attorney Gen- eral's office has become a political one, I shall not trouble the Senate with citing or examin- ing the opinions of its occupants. In 1826 a committee of the Senate, consist- ing of Mr. Benton of Missouri, chairman, Mr. Macon of North Carolina, Mr. Van Buren of New York, Mr. Dickerson of New Jersey, Mr. Johnson of Kentucky, Mr. White of Tennes- see, Mr. Holmes of Maine, Mr. Hayne of South Carolina, and Mr. Findlay of Pennsylvania, was appointed to take into consideration the question of restraining the power of the Pres- ident over removals from office, who made a report through their chairman, Mr. Benton, setting forth the extent of the evils arising frond the power of appointment to, and removal from, office by the President, declaring that the Con- stitution had been changed in this regard, and that " construction and legislation have accom- plished this change," and submitted two amend- ments to the Constitution, one providing a direct election of the President by the people, and another "that no Senator or Represent- ative should be appointed to any place until the expiration of the presidential term in which such person shall have served as Senator or Representative," as remedies for some of the evils complained of; but the committee say that, " not being able to reform the Constitu- tion, in the election of President, they must go to work upon his powers, and trim down these by statutory enat:tments whenever it can be done by law and with a just regard to the proper efficiency of government, and for this purpose reported six bills — one, to regulate the public- ation of the laws and public advertisements ; another, to secure in office faithful collectors and disbursers of the revenues, and to displace defaulters — the first section of which vacated the commissions of " all officers, after a given date, charged with the collection and disburse- ment of the public moneys who had failed to account for such moneys on or before the 30th day of September preceding ; ' ' and the second section enacted that "at the same time a nomi- nation is made to fill a vacancy occasioned by theexercise of the President's power to remove from office, the fact of the removal shall be stated to the Senate, with a report of the rea- sons for which such officers may have been re- moved ; also a bill to regulate the appointment of postmasters ; and a bill to prevent military and naval officers from being dismissed the service at the ple&sure of the President, by in- serting a clause in the commission of such offi- cers that "it is to continue in force during good behavior," and " that no officer shall ever here- after be dismissed the service except in pursu- ance of the sentence of a court-martial, or upon address to the President from the two Houses of Congress." Is it not remarkable that exactly correlative measures to these have been passed by the Thirty-Ninth Congress, and are now the sub- ject of controversy at this bar? It does not seem to have occurred to this able committee that Congress had not the Eower to curb the Executive in this regard, ecause they asserted the practice of dismiss- ing from office " to be a dangerous violation of the Constitution." In 1830 Mr. Holmes introduced and dis- cussed in the Senate a series of resolutions which contained, among other things, "the 34 SUPPLEMENT TO right of the Senate to inquire, and the duty of the President to inform them, when and for what causes any officer has been removed in the recess." In 1835 Mr. Calhoun, Mr. South- ard, Mr. Bibb, Mr. Webster, Mr. Benton, and Mr. King of Georgia, of the Senate, were elected a committee to consider the subject of executive patronage, and the means of limit- ing it. That committee, with but one dissent- ing voice, (Mr. Benton,) reported a bill which provided in its third section " that in all nom- inations made by the President to the Senate, to fill vacancies occasioned by removal from office, the fact of the removal shall be stated to the Senate at the same time that the nomina- tion is made, with a statement of the reasons for such removal." It will be observed that this is the precise Bection reported by Mr. Benton in 1826, and passed to a setond reading in the Senate. After much discussion, the bill passed the Sen- ate, 31 yeas, 16 nays — an almost two-thirds vote. Thus it would seem that the ablest men of that day, of both political parties, sub- scribed to the power of Congress to limit and control the President in his removal from office. One of the most marked instances of the assertion of this power in Congress will be found in the act of February 25, 1863, provid- ing for a national currency and the office of Comptroller. (Statutes-at-Large, vol. 12, p. 665. ) This controls both the appointment and the removal of that officer, enacting that he shall be appointed on the nomination of the Secretary of the Treasury, by and with the advice and consent of the Senate, and shall hold his office for the term of five years, unless sooner removed by the President, by and with the advice and consent of the Senate. This was substantially reenacted June 3, 1864, with the addition that "he shall be removed upon reasons to be communicated to the Senate." Where were the vigilant gentlemen then, in both Houses, who now so denounce the power of Congress to regulate the appointment and removal of officers by the President as uncon- stitutional? It will be observed that the Constitution makes no distinction between the officers of the Army and Navy and officers in the civil service, so far as their appointments and com- missions, removals and dismissals, are con- cerned. Their commissions^ have ever run, "to hold office during the pleasure of the Pres- ident;" yet Congress, by the act of 17th July, 1862, (Statutes-at-Large, vol. 12, p. 596,) en- acted " that the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from the military service, either in the Army, Navy, Marine corps, or volunteer force in the United States service, any officer for any cause which, in his judg- ment, either renders such officer unsuitable for, or whose dismission would promote, the public service." Why was it necessary to authorize the Pres- ident so to do if he had the constitutional power to dismiss a military officer at pleasure ; and his powers, whatever they are, as is not doubted, are the same as in a civil office? The answer to this suggestion may be that this act was simply one of supererogation, only author- izing him todowhathewasempovveredalready to do. and therefore not specially pertinent to this discussion. But on the 13th of July, 1866, Congress en- acted "that no officer in the military or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect." What becomes, then, of the respondent's ob- jection that Congress cannot regulate his power of removal from office? In the snow-storm of his vetoes why did no flake light down on this provision? It concludes the whole question here at issue. It is approved ; approval signed Andrew Johnson. It will not be claimed, however, if the ten- ure-of-office act is constitutional, (and that question I shall not argue, except as has been done incidentally, for reasons hereafter to be stated,) that he could remove Mr. Stanton provided the office of Secretary of War comes within its provisions, and one claim made here before you, by the answer, is that that office is excepted bythe terms of the law. Ofcoursel shall not argue to the Senate, composed mostly of those who passed the bill, what their wishes and intentions were. Upon that point I can- not aid them, but the construction of the act furnishes a few suggestions. First, let us de- termine the exact status of Mr. Stanton at the moment of its passage. The answer admits Mr. Stanton was appointed and commissioned and duly qualified as Secretary of War under Mr. Lincoln in pursuance of the act of 1789. In the absence of any other legislation or action of the President he legally held his office during the term of his natural life. This con- sideration is an answer to every suggestion as to the Secretary holding over from one presi- dential terra to another. On the 2d of March, 1867, the tenure-of-office act provided, in substance, that all civil offi- cers duly qualified to act by appointment, with the advice and consent of the Senate, shall be entitled to hold such office until a, successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided, to wit : " provided that the Secre- taries shall hold their office during the term of the President by whom they may have been appointed, and for one month thereafter, sub- ject to removal by and with the advice and consent of the Senate." By whom was Mr. Stanton appointed? By Mr. Lincoln. Whose presidential term was he holding under when the bullet of Booth became a proximate cause of this trial ? Was not his appointment in full force at that hour? Had any act of the respondent up to the 12th day of August last vitiated or interfered with that appointment? Whose presidential term is the respondent now serving out ? His own or Mr. Lincoln's? If his own, he i3 entitled to four years up to the anniversary of the murder, because each presidential term is four years by the Constitution, and the regular re- currence of those terms is fixed by the act of May 8, 1702. If he is serving out the remain- der of Mr. Lincoln's term, then his term of office expires on the 4th of March, 1869, if it does not before. Is not the statement of these propositions their sufficient argument? If Mr. Stanton's commission was vacated in any way by the •'tenure-of-office act," then it musthave ceased one month after the 4th of March, 1865, to wit, April 4, 1864. Or, if the " tenure-of- office act" had no retroactive effect, then his commission must have ceased if it had the effect to vacate his commission at all on the passage of the act, to wit, 2d March, 1867 ; and, in that case, from that date to the present he must have been exercising his office in con- travention of the second section of the act, be- cause he was not commissioned in accordance with its provisions. And the President, by "employing" him in so doing from the2d March to 12th August, became guilty of a high mis- demeanor under the provision of the sixth section of said act ; so that if the President shall succeed in convincing the Senate that Mr. Stanton has been acting as Secretary of War against the provisions of the " tenure-of- office act," which he will do if he convince them that that act vacated in any way Mr. Stanton's commission, or that he himself was not serving out the remainder of Mr. Lincoln's presidential term, then the House of repre- sentatives have but to report another article for this misdemeanor to remove the President upon his own confession. It has been said, however, that in the dis- cussion at the time of the passage of this law observations were made by Senators tending to show that it did not apply to Mr. Stanton, because it was asserted that no member of the Cabinet of the President would wish to hold his place against the wishes of his chief, by whom he had been called into council ; and these arguments have been made the ground- work of attack upon a meritorious officer, which may have so influenced the minds of Senators that it is my duty to observe upon them to meet arguments to the prejudice of my cause. Without stopping to deny the correctness of the general proposition, there seems to be at least two patent answers to it. The respondent did not call Mr. Stanton into his council. The blow of the assassin did call the respondent to preside over a Cabi- net of which Mr. Stanton was then an honored member, beloved of its chief; and if the re- spondent deserted the principlesunder which he was elected, betrayed his trust, and sought to return rebels, whom the valor of our armies had subdued, again into power, are not those reasons not only why Mr. Stanton should not desert his post, but, as a true patriot, maintain it all the more firmly against this unlooked-for treachery? Is it not known to yon, Senators, and to the country, that Mr. Stanton retains this unpleas- ant and distasteful position, not of his own will alone, but at the behest of a majority of those who represent the people of this coun- try in both Houses of its Legislature, and after the solemn decision of the Senate that any at- tempt to remove him without their concurrence is unconstitutional and unlawful? To desert it now, therefore, would be to imi- tate the treachery of his accidental chief. But whatever may be the construction of the "ten- ure of civil office act" by others, or as regards others, Andrew Johnson, the respondent, is concluded upon it. He permitted Mr. Stanton to exercise the duties of his office in spite of it, if that office were affected by it. He suspended him under its provisions ; he reported that suspension to the Senate, with his reasons therefor in accord- ance with its provisions ; and the Senate, act- ing under it, declined to concur with him, whereby Mr. Stanton was reinstated. In the well-known language of the law, is not the re- spondent estopped by his solemn official acts from denying the legality and constitutional propriety of Mr. Stanton's position? Before proceeding further, I desire most earnestly to bring to the attention of the Sen- ate the averments of the President in his answer, by which he justifies his action iu attempting to remove Mr. Stanton, and the reasons which controlled him in so doing. He claims that on the 12th day of August last he had become fully of the opinion that he had the power to remove Mr. Stanton or any other executive officer, or suspend him from office and to appoint any other person to act instead "indefinitely and at his pleasure;" that he was fully advised and believed, as he still be- lieves, that the tenure of civil office act was unconstitutional, inoperative, and void in all its provisions ; and that he had then determ- ined at all hazards, if Stanton could not be otherwise got rid of, to remove him from office in spite of the provisions of that act and the action of the Senate under it, if for no other purpose, in order to raise for a judicial de- cision the question affecting the lawful right of said Stanton to persist in refusing to quit the office. Thus it appears that with full intent to resist the power of the Senate, to hold the tenure- of-office act void, and to exercise this illimit- able power claimed by him, he did suspend Mr. Stanton, apparently in accordance with the provisions of the act ; he did send the message to the Senate within the time pre- scribed by the act ; he did give his reasons for the suspension to the Senate, and argued them at length, accompanied by what he claimed to be the evidence of the official misconduct of Mr. Stanton, and thus invoked the action of toe Senate to assist him in displacing a high officer of the Government under the provisions of an act which he at that very moment be- lieved to be unconstitutional, inoperative, and void, thereby showing that he was willing to make use of a void act and the Senate of the THE! CONGKESSIOtfAL GLOBE 1 .. 35 United States as his tools to do that which he believed neither had any constitutional power to do. Did not every member of the Senate, when that message came in announcing the suspension of Mr. Stanton, -understand and believe that the President was acting in this case, as he had done in every other case, under the provisions of this act ? Did not both sides discuss the question under its provisions? Would any Senator upon this floor, on either side, so demean himself as to consider the question one moment if he had known it was then within the intent and purpose of the Pres- ident of the United States to treat the delib- erations and action of the Senate as void and of none effect if it3 decision did not comport with his views and purposes ; and yet, wnile acknowledging the intent was in his mind to hold as naught the judgment of the Senate if it did not concur with his own, and remove Mr. Stanton at all hazards, and as I charge it upon him here, as a fact no man can doubt, with the full knowledge also that the Senate understood that he was acting under the pro- visions of the tenure-of-office act, still thus deceiving them, when called to answer for a violation of that act, in his solemn answer, he makes the shameless avowal that ho did trans- mit to the Senate of the United States a "mes- sage wherein he made known the orders afore- said and the reasons which induced the same, so far as the respondent then considered it material and necessary that the same should be set forth." True it is, there is not one word, one letter, one implication in that mes- sage that the President was not acting in good faith under the tenure-of-office act and desiring the Senate to do the same. So the President of the United States, with a determination to assert at all hazards the tremendous power of removal of every officer, without the consent of the Senate, did not deem it " material or necessary" that the Senate should know that he had suspended Mr. Stanton indefinitely against the provisions of the tenure-of-office act, with full intent, at all hazards, to remove him, and that the solemn deliberations of the Senate, which the President of the United States was then calling upon them to make in a matter of the highest governmental eoncern, were only to be of use in case they suited his purposes ; that it was not " material or neces- sary" for the Senate to know that its high decision was futile and useless; that the Pres- ident was playing fast and loose with this branch of the Government — which was never before done save by himself. If Andrew Johnson never committed any other offense — if we knew nothing of him save from this avowal— we should have a full pic- ture of his mind and heart, painted in colors of living light, so that no man will ever mis- take his mental and moral lineaments here- after. Instead of open and frank dealing as becomes the head of a great Government in every rela- tion of life, and especially needful from the highest executive officer of the Government to the highest legislative branch thereof; instead of a manly, straightforward bearing, claiming openly and distinctly the rights which he be- lieved pertained to his high office, and yielding to the other branches, fairly and justly, those which belong to them, we find him, upon his own written confession, keeping back his claims of power, concealing his motives, covering his purposes, attempting by indirection and sub- terfuge to do that as the ruler of a great nation which, if it be done at all, should have been done boldly, in the face of day ; and jjponthis position he must stand before the Senate and the country if they believe his answer, which 1 do not, that he had at that time these intents and purposes in his mind, and they are not the subterfuge and evasion and after- thought which a criminal brought to bay makes to escape the consequences of his acts. Senators ! he asked you fortime in which to make his answer. You gave him ten days, and this is the answer he makes ! If he could do this in ten days, what should we have had if you had given him forty? You show him a mercy in not extending the time for answer. Passing from further consideration of the legality of the action of the respondent in re- moving Mr. Stanton from office in the manner and form and with the intent and purpose with which it has been done, let us now examine the appointment of Brevet Major General Lo- renzo Thomas, of the United States Army, as Secretary of War ad interim. I assume that it is not denied in any quarter that this ad interim appointment to this office is the mere creature of law, and if justified at all is to be so under some act of Congress. Indeed, the respondent in his answer says that in the appointment of General Grant ad in- terim he acted under the act of February 13, 1795, and subject to its limitations. By the act of August 7, 1789, creating the Department of War, (1 Statutes-at-Large, p. 49,) "in case of any vacancy" no provision is made for any appointment of an acting or ad interim Sec- retary. Inthatcasethe records and papers are to be turned over for safe keeping to the cus- tody of the chief clerk. This apparent omis sion to provide for an executive emergency was attempted to be remedied by Congress by the act of May 8, 1792, (1 Statutes, 281,) which provides "that in case of the' death, absence from the seat of Government, or sick- ness of the Secretary of State, Secretary of the Treasury, or of the Secretary of the War De- partment, or of any officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be law- ful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease." It will be observed that this act provides for vacancies by death, absence, or sickness only, whereby the head of a Department or any offi- cer init cannot performhis duty, but makes no provision for vacancy by removal. Two difficulties were found in that provision of law: first, that it provided only for certain enumerated vacancies ; and also, it authorized the President to make an acting appointment of any person for any length of time. To meet these difficulties the act of 13th February, 1795, was passed, (1 Statutes-at-Large, 415) which provides "in case of vacancy, whereby the Secretaries or any officer in any of the Depart- ments cannot perform the duties of his office, the President may appoint any person to per- form the duties for a period not exceeding six months." Thus the law stood as to acting appointments in all of the Departments (except the Navy and Interior, which had no provision for any per- son to act in place of the Secretary) until the 19th of February, 1863, when, by the second section of an act approved at that date, (12 Statutes,'646,) it was "provided that no person acting or assuming to act as a civil, military, or naval officer shall have any money paid to him as salary in any office which is not authorized by some previously existing law." The state of the law upon this subject at that point of time is thus: in case of death, absence, or sickness, or of any vacancy whereby a Secretary or other officer of the State, War, or Treasury Department could not perform the duties of the office, any person could be authorized by the President to perform those duties for the space of six months. For the Departments of the Interior and the Navy provision had been made for the appoint- ment of an assistant Secretary, but no provis- ion in case of vacancy in his office, and a re- striction put upon any officers acting when not authorized by law, from receiving any salary whatever. To meet those omissions and to meet the case of resignation of any officer of an executive Department, and also to meet what was found to be a defect in allowing the President to ap- point any person to those high offices for the, space of six months, whether such person hadi any acquaintance with the duties of the Depart- ment or not, an act was passed February 20, 1863, (12 Statutes, p. G56,) which provides, that, in case of the death, resignation, absence from the seat of Government, or sickness of the head of an executive Department of the Govern- ment, or of any officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be law- ful for the President of the United States, in case he shall think it necessary, to authorize the head of any other executive Department or other officerineilherof said Departments whose appointment is vested in the President, at his discretion to perform the duties of the said re- spective offices until a successor be appointed, or until such absence or inability shall cease. Therefore, in case of the death, resignation, sickness, or absence of a head of an executive Department, whereby the incumbent could not perform the duties of his office, the President might authorize the head of another executive Department to perform the duties of the vacant office ; and in case of like disability of any officer of an executive Department other than the head, the President might authorize an officer of the same Department to perform his duties for the space of six months. It is remarkable that in all these statutes from 1789 down, no provision is made for the case of a removal, or that anybody is empow- ered to act for the removed officer, the chief clerk being empowered to take charge of the books and papers only. Does not this series of acts conclusively dem- onstrate a legislative construction of the Con- stitution that there could be no removalof the chief of an executive Department by the act of the President save by the nomination and ap- pointment of his successor, if the Senate were in session, or a qualified appointment till the end of the next session if the vacancy happened or was made in recess? Let us now apply this state of the law to the appointment of Major General Thomas Secre- tary of War ad interim by executive order. Mr. Stanton had neither died nor resigned, was not sick nor absent. If he had been, under the act of March 3, 18G3, which repeals all inconsistent acts, the President was author- ized only to appoint the head of another exec- utive Department to fill his place ad interim. Such was not General Thomas. He was sim- ply an officer of the Army, the head of a bureau or department of the War Department, and not eligible under the law to be appointed. So that his appointment was an illegal and void act. There have been two cases of ad interim appointments which illustrate and confirm this position ; the one was the appointment of Lieu- tenant General Scott Secretary of War ad in- terim, and the other the appointment of Gen- eral Grant ad interim upon the suspension of Mr. Stanton, in August last. The appointment of General Scott was legal because that was done before the restraining act of March 2, 1863, which requires the detail of the head of another Department to act ad interim. The appointment of General Grant to take the place of Mr. Stanton during his suspension would have been illegal under the acts I have cited, he being an officer of the Army and not the head of a department, if it had not been authorized by the second section of the "ten- ure-of-civil-office act," which provides that in case of suspension, and no other, the President may designate "some suitable person to per- form temporarily the duties of such office until the next meeting of the Senate." Now, Gen- eral Grant was such "suitable person," and was properly enough appointed under that provision. This answers one ground of the defense which is taken by the President that he did not sus- pend Mr. Stanton under the "tenure-of-office 86 SUPPLEMENT TO act," but by his general power of suspension and removal of an officer. If the President did not suspend Stanton under the tenure-of-office act, because he deemed it unconstitutional and" void, then there was no law authorizing him to appoint General Grant, and that appointment was unauthorized by law and a violation of his oath of office. But the tenure-of-civil-office bill by its ex- press terms forbids any employment, authoriz- ation, or appointment of any person in civil offic.e where the appointment is by and with the advice and consent of the Senate, while the Senate is in session. If this act is constitu- tional, i. e., if it is not so far in conflict with the paramount law of the land as to be inoper- ative and void, then the removal of Mr. Stan- ton and the appointment of General Thomas are both in direct violation of it, and are de- clared by it to be high misdemeanors. The intent with which the President has done this is not doubtful, nor are we obliged to rely upon the principle of law that a man must be held to intend the legal consequences of all his acts. The President admits that he intended to set aside the tenure-of-office act, and thus contra- vene the Constitution, if that law was uncon- stitutional. Having shown that the President willfully violated an act of Congress, without justifica- tion, both in the removal of Stanton and the appointment of Thomas, for the purpose of obtaining wrongfully the possession of the War Office by force, if need be, and certainly by threats and intimidations, for the purpose of controlling its appropriations through its ad interim chief, who shall say that Andrew Johnson is not guilty of the high crime and misdemeanors charged against him in the first eight articles ? The respondent makes answer to this view, that the President, believing this civil tenure law to be unconstitutional, had a right t'o vio- late it, for the purpose of bringing the matter before the Supreme Court for its adjudication. We are obliged, in limine, to ask the atten- tion of the Senate to this consideration, that they may take it with them as our case goes forward. We claim that the question of the constitu- tionality of any law of Congress is, upon this trial, a totally irrelevant one ; because all the power or right in the President to judge upon any supposed conflict of an act of Congress with the paramount law of the Constitution is exhausted when lie has examined a bill sent him and returned it with his objections^. If then passed over his veto it becomes as valid as if in fact signed by him. The Constitution has provided threemetkods, all equally potent, by which a bill brought into either House may become a law: 1. By passage by vote of both Houses, in due form, with the President's signature; 2. By passage by vote of both Houses, iu due form, and the President's neglect to return it within ten days with his objections j 3. By passage by vote of both Houses, in due form, a veto by the President, a reconsidera- tion by both Houses, and a passage by two- thirds votes. The Constitution substitutes this reconsid eration and passage as an equivalent to the President's signature. After that he and all other officers must execute the law, whether in fact constitutional or not. For the President to refuse to execute a law duly passed because he thought it unconstitu- tional, after he had vetoed it for that reason, would, in effect, be for him to execute his veto and leave the law unexecuted. It may be said that he may do this at his peril. True ; but that peril is to be impeached for violating his oath of office, as is now being done. If, indeed, laws duly passed by Congress affecting generally the welfare of any consid- erable portion of the people had been com- monly, or, as a usage declared by the Supreme Court, unconstitutional, and therefore inopera- tive, there might seem to be some palliation if not justification to the Executive to refuse to execute a law in order to have its constitution- ality tested by the court. It is possible to conceive of so flagrant a case of unconstitutionality as to be such shadow of justification to the Executive, provided one at the same time conceives an equally flagrant case of stupidity, ignorance, and imbecility, or worse, in the Representatives of the people and in the Senate of the United States; but both conceptions are so rarely possible and absurd as not to furnish a ground of governmental action. How stands the fact? Has the Supreme Court so frequently declared the laws of Con- gress in conflict with the Constitution as to afford the President just ground for belief, or hope even, that the court will do so in a given instance? I think I may safely assert as a legal fact that since the first decision of the Supreme Court till the day of this arraignment no law passed by Congress affecting the gen- eral welfare has ever, by the judgment of that court, been set aside or held for nought because of unconstitutionality as the groundwork of its deeisions. In three cases only has the judgment of that court been influenced by the supposed conflict between the law and the Constitution, and they were cases affecting the court itself and its own duties, and where the law seemed to interfere with its own prerogatives. Touching privileges and prerogatives has been the shipwreck of many a wholesome law. It is the sore spot, the sensitive nerve of all tribunals, parliamentary or judicial. The first case questioning the validity of a law of Congress is Hayburn's, (2 Dallas, 409,) where the court decided upon the unconstitu- tionality of theactof March 23, 1792, (Statutes- at- Large, vol. 1, p. 244,) which conferred upon the court the power to decide upon and grant certificates of invalid pensions. The court held that such power could not be conferred upon the court as an original jurisdiction, the court receivingall its original jurisdiction from the provisions of the Constitution. This de- cision would be nearly unintelligible were it not explained in a note to the case in United States vs. Ferreira, (13 Howard, p. 52,) re- porting United States vs. Todd, decided Feb' ruary 17, 1794. We learn, however, from both cases the cause of this unintelligibility of the decision in Hay- burn's case. When the same question came up at the circuit court in New York the judges being of opinion that the law could not be executed by them as judges, because it was unconstitutional, yet determined to obey it until the case could be adjudicated by the whole court. They therefore, not to violate the law, did execute it as commissioners until it was repealed, which was done the next year. The judges on the circuit in Pennsylvania all united in a letter to the Executive, most humbly apologizing, with great regret, that their convictions of duty did not permit them to execute the law according to its terms, and took special care that this letter should accom- pany their decision, so that they might not be misunderstood. Both examples it would have been well for this respondent to have followed before he undertook to set himself to violate an act of Congress. The next case where the court decided upon any couflict between the Constitution and the law is Gordon vs. United States, tried in April, 1865, seventy-one years afterward, two justices dissenting, without any opinion being delivered by the court. The court here dismissed an appeal from the Court of Claims, alleging that, under the Constitution, no appellate jurisdiction could be exercised over the Court of Claims under an acL of Congress which gave revisory power to the Secretary of the Treasury over a decision of the Court of Claims. This decision is little satisfactory, as it is wholly without argument or authority cited. , ,, w . The next case is ex parte Uarlana, ia Wal- lace 333,) known as the Attorney s oath case', where the court decided, that an attorney was not an officer of the United States, and therefore might practice before that court with- out taking the test-oath. The reasoning of the court in that case would throw doubt on the constitutionality of the law of Congress, but the decision of the invalidity of the law was not necessary to the decision of the case, which did not command a unanimity in the court, as it certainly did not the assent of the bar. Yet in this case it will be observed that the court made a rule requiring the oath ta be administered to the attorneys in obedience of the law until it came before them in a cause duly brought up for decision. Tlie Supreme Court obeyed the law up to the lime it was set aside. They did not viojate it to make a test case. Here is another example to this respondent, as to his duty in the case, which he will wish he had followed, I may venture to say, when he hears the judgment of the Senate upon the impeachment now pending. There are several other cases wherein the validity of acts of Congress has been dis- cussed before the Supreme Court, but none where the decision has turned on that point. In Marbury vs. Madison (1 Cranch, 137) Chief Justice Marshall dismissed the case for want of jurisdiction, but took opportunity to deliver a chiding opinion against the adminis- tration of Jefferson before he did so. In the Dred Scott case, so familiar to the public, the court decided it had no jurisdic- tion, but gave the Government and the people a lecture upon their political duties. In the case of Fisher vs. Blight (2 Cranch, 358) the constitutionality of a law was very much discussed, but was held valid by the decision of the court. In United States vs. Coombs, (12 Peters, 72,) although the power to declare a law of Congress in conflict with the Constitution was claimed in the opinion of the court arguendo, yet the law itself was sustained. The case of Pollard vs. Hagan, (3 Howard, 212,) and the two cases, Goodtitle mi Kibbe, (9 Howard, 271,) Hallett vs. Beebe. (13 How- ard, 25,) growing out of the same controversy, have been thought to impugn the validity of two private acts of Congress ; but a careful examination will show that it was the opera- tion and not the validity of the acts which came in question aud made the basis of the decision. Thus it will be seen that the Supreme Court, in three instances only, have apparently, by its decision, impugned the validity of an act of Congress because of a conflict with the Con- stitution, and in each case a question of the lights and prerogatives of the court or its offi- cers has been in controversy. The cases where the constitutionality of an act of Congress has been doubted in the obiter dicta of the court, but were not the basis of decision, are open to other criticisms. In Marbury vs. Madison Chief Justice Mar- shall had just been serving as Secretary of State in an opposing Administration to the one whose acts he was trying to overturn as Chief Justice. In the Dred Scott case Chief Justice Taney — selected by General Jackson to remove the deposits because his bitter partisanship would carry him through where Duane halted and was removed— delivered the opinion of the court, whose obiter dicta fanned the flame of dissension which led to the civil war through which the people have just passed, and against that opinion the judgment of the country lias long been recorded. When exparte Garland was decided thecoun- try was just emerging from a conflict of arms the passions and excitement of which had found their way upon the bench, and some of the THE CONGRESSIONAL GLOBE. 37 judges, just coming from other service of the Government and from the bar, brought with them opinions. But I forbear. I am treading on dangerous ground. Time has not yet laid its softening and correcting hand long enough upon this decision to allow me further to com- ment upon it in this presence. Mr. President and Senators, can it be said that the possible doubts thrown on three or four acts of Congress, as to their constitution- ality, during a judicial experience of seventy- five years— hardly one to a generation — is a sufficient warrant to the President of the United States to set aside and violate any act of Congress whatever upon the plea that he believed the Supreme Court would hold it un- constitutional when a case involving the ques- tion should come before it, and especially one much discussed on its passage, to which the whole mind of the country was turned during the progress of the discussion, upon which he had argued with all his power his constitutional objections, and which, after careful reconsider- ation, had been passed over his veto ? Indeed, wilt you hear an argument as a Senate of the United States, a majority of whom voted for that very bill, upon its consti* tutionality in the trial of an executive officer for willfully violating it before it had been doubted by any court? Bearing upon this question, however, it. may be said that the President removed Mr. Stan- ton for the very purpose of testing the con- stitutionality of this law before the courts, and the question is asked, Will you condemn him as for a crime for so doing ? If this plea were a true one it ought not te avail ; but it is a subterfuge. We shall show you that he has taken no step to submit the question to any court, although more than a year has elapsed since the passage of the act. On the contrary, the President has recog- nized its validity and acted upon it in every department of the Government save in the War Department, and there except in regard to the head thereof solely. We shall show you he long ago caused all the forms of commis- sions and official bonds of all the civil officers of the Government to be altered to conform to its requirement. Indeed, the fact will not be denied — nay, in the very ease of Mr. Stanton, he suspended him under its provisions, and asked this very Senate, before whom he is now being tried for its violation, to pass upon the sufficiency of his reasons for acting under it in so doing according to its terms; yet, rendered reckless and mad by the patience of Congress under his usurpation of other powers and his disregard of other laws, he boldly avows in his letter to the General of the Army that he in- tends to disregard its provisions, and summons the commander of the troops of this Depart- ment to seduce him from his duty so as to be able to command, in violation of another act of Congress, sufficient military power to en- force his unwarranted decrees. The President knew, or ought to have known, his official adviser, who now appears as his counsel, could and did tell him, doubtless, that he alone, as Attorney General, could file an information in the nature of a quo warranto to determine this question of the validity of the law. Mr. Stanton, if ejected from office, was with- out remedy, because'a series of decisions has settled the law to be that an ejected officer can not reinstate himself either by quo warranto, mandamus or other appropriate remedy in the courts. If the President had really desired solely to test the constitutionality of the law or his legal right to remove Mr. Stanton, instead »t his defiant message to the Senate of the 21st of February, informing them of the removal, but not suggesting this purpose, which is thus shown to be an afterthought, he would have said, in substance : "Gentlemen of the Senate, in order to test the constitutionality of the law entitled 'An act regulating the tenure of certain civil offices!,' which I verily believe to be unconsti- tutional and void, I have issued an order of removal of B. M. Stanton from the office of Secretary of the Department of War. I felt myself constrained to make this removal lest Mr. Stanton should answer the information in the nature of a quo warranto, which I intend the Attorney General shall file at an early day, by saying that he holds the office of Secretary of War by the appointment and authority of Mr. Lincoln, which has never been revoked. Anxions that there shall be no collision or dis- agreement between the several departments of the Government and the Executive, I lay before the Senate this message, that the rea- sons for my action, as well as the action itself, for the purpose indicated, may meet your con- currence." Had the Senate received such a message the Representatives of the people might never have deemed it necessary to im- peach the President for such an act to insure the safety of the country, even if they had denied the accuracy of his legal positions. On the contrary, heissued a letterof removal, peremptory in form, intended to be so in effect, ordered an officer of the Army, Lorenzo Thomas, to take possession of the office and eject the incumbent, which he claimed he would do by force, even at the risk of inaugurating insurrection, civil commotion, and wac. Whatever may be the decision of the legal question involved, when the case Gome's before the final judicial tribunal who shall say that such conduct of the Executive under the cir- cumstances, and in the light of the history of current events and his concomitant action, is not in Andrew Johnson a high crime and mis- demeanor? Imagine, if it were possible, the consequence of a decision by the Senate in the negative — a verdict of not guilty upon this prop- osition. A law is deliberately passed with all the form of legislative procedure, is presented to the President for his signature, is returned by him to Congress with his objections, is thereupon reconsidered, and, by a yea and nay vote of three quarters of the Representatives of the peo- ple in the popular branch, and three fourths of the Senators representing the States in the higher branch, is passed again, notwithstanding the veto ; is acquiesced in by the President, by all departments of the Government conform- ing thereto for quite a year, no court having doubted its validity. Now its provisions are willfully and designedly violated by the Presi- dent with intent to usurp to himself the very powers which the law was designed to limit, for the purpose of displacing a meritorious officer whom the Senate just before had determ- ined ought not and should not be removed ; for which high-handed act the President is im- peached in the name of all the people of the United States by three fourths of the House of Representatives, and presented at the bar of the Senate, and by the same Senate that passed the law, nay, more, by the very Sen- ators who, when the proceeding came to their knowledge, after a redeliberation of many hours, solemnly declared the act unlawful and in violation of the Constitution ; that act of usurpation is declared not to be a high misde- meanor in office by their solemn verdict of not guilty upon their oaths. Would not such a judgment be a conscious self-abnegation of the intelligent capacity of the representatives of the people in Congress assembled to frame laws for their guidance in accordance with the principles and terms of their Constitution and frame of their Govern- ment? Would it not be a notification — an invitation rather — standing to all time to any bold, bad, aspiring man to seize the liberties of the peo- ple, which they had shown themselves incapa- ble of maintaining or defending, and playing the rdle of a Caesar or Napoleon here to estab- lish a despotism, while this the last and greatest experiment of freedom and equality of right in the4>eople, -following the long line of buried re- publics, sinks to its tomb under the blows of usurped power from which free representative Government shall arise to the light of a morn of resurrection never more, nevermore forever I Article nine charges that Major General Emory, being in command of the military de- partment of Washington, the President called him before him and instructed him that the act of March 2, 1867, which provides that all or- ders from the President ghall be issued through the General of the Army, was unconstitutional and inconsistent with his commission, with intent to induce Emory to take orders directly from himself, and thus hinder the execution of the civil-tenure act and to prevent Mr. Stanton from holding his office of Secretary of War. If the transaction set forth in this article stood alone we might well admit that doubts might arise as to the sufficiency of the proof. But the surroundings are so pointed and sig- nificant as to leave no doubt on the mind of an impartial man as to the intents and pur- poses of the President. No one would say that the President might not properly send to the commander of this department to make inquiry as to the disposition of his forces, but the question is, with what intent and purpose did the President send for General Emory at the time he did? Time, here, is an important element of the act. Congress had passed an act in March, 1807, restraining the President from issuing miHtary orders save through the General of the Army. The President had protested against that act. On the 12th of August he had attempted to get possession of the War Office by the removal* of the incumbent, but could only do so by appointing the General of the Army thereto. Failing in his attempt to get full possession of the office through the Senate, he had determ- ined, as he admits, to remove Stanton at all hazards, and endeavored to prevail on the General to aid him in so doing. He declines. For that the respondent quarrels with him, denounces him in the newspapers, and accuses him of bad faith and untruthfulness. There- upon, asserting his prerogatives as Commander- in-Chief, he creates a new military department of the Atlantic. He attempts to bribe Lieu- tenant General Sherman to take command of it by promotion to the rank of general by bre- vet, trusting that his military services would compel the Senate to confirm him. If the respondent can get a general by brevet appointed, he can then by simple order put him on duty according to his brevet rank and thus have a general of the Army in command at Washington, through whom he can trans- mit his orders and comply with the act which he did not dare transgress, as he had approved it, and get rid of the hated General Grant. Sherman spurned the bribe. The respondent, not discouraged, appointed Major General George H. Thomas to the same brevet rank, but Thomas declined. What stimulated the ardor of the President just at that time, almost three years after the war closed, but just after the Senate had rein- stated Stanton, to reward military service by the appointment of generals by brevet? Why did his zeal of promotion take that form and no other ? There were many other meritorious offi- cers of lower rank desirous of promotion. The purpose is evident to every thinking mind. He had determined to set aside Grant, with whom he had quarrelled, either by force or fraud, either in conformity with or in spite of the act of Congress, and control the military power of the country. On the 21st of February — for all these events cluster nearly about the same point of time — he appoints Lorenzo Thomas Secretary of War and orders Stanton out of the office. Stanton refuses to go ; Thomas is about the streets declaring that he will put him out by force, " kick him out." He has caught his master's word. On the evening of the 21st a resolution look- ing to impeachment is offered in the House. The President, on the morning of the 22d, "as early as practicable," is seized with a sudden desire to know how many troops there were in Washington. What for, just then? Was that all he wanted to know? If so, his Adjutant General could have given him the offi- 38 SUPPLEMENT TO cial morning report, which would have shown the condition and station of every man. But that was not all. He directs the commander of the department to come as early as practi- cable. Why this haste to learn the number of troops? Observe, the order does not go through General Grant, as by law it ought to have done. General Emory, not knowing what is wanted, of course obeyed the order as soon as possible. The President asked him if lie remembered the conversation which he had with him when he first took command of the department as to the strength of the garrison of Washington, and the general disposition of troops in the department. Emory replied that "he did distinctly;" that was last September. Then, after explaining to him fully as to all the changes, the President asked for recent changes of troops. Emory denied they could have been made without the order going through him, and then, with soldierly frankness, (as he evidently suspected what the President was after,) said by law no order could come to him, save through-the General of the Army, and that had been approved by the President and promulgated in a General Order No. 17. The President wished to see it. ]t was pro- duced. General Emory says: "Mr. Presi- dent, I will take it as a great favor if you will permit me to call your attention to this order or act." Why a favor to Emory? Because he feared that he was to be called upon by the President to do something in contravention of that law. The President read it and said: "This is not in accordance with the Constitu- tion of the United States, which makes me Commander-in-Chief of the Army and Navy, or with the language of your commission." Emory then said: "That is not a matter for the officers to determine. There was the order sent to us approved by him, and we were all governed by that order." He said, "Am I to understand, then, that the President of the United States cannot give an order but Ihrongh General Grant?" Gen- eral Emory then made the President a short speech, telling him that the officers of the Army had been consulting lawyers on the sub- ject, Reverdy Johnson and Robert J. Walker, and were advised that they were bound to obey that order. Said he, "I think it right to tell you the Army are a unit on this subject." After a short pause, "seeing there was noth- ing more to say," General Emory left. What made all the officers consult lawyers about obeying a law of the United States? What influence had been at work with them ? The course of the President. In his message to Congress in -December he had declared that the time might come when he would resist a law of Congress by force. How could Gen- eral Emory tell that in the judgment of the President that time had not come, and hence was anxious to assure the President that he could not oppose the law ? In his answer to the first article he asserts that he had fully come to the conclusion to remove Mr. Stanton at all events, notwith- standing the law and the action of the Senate ; in other words, he intended to make, and did make executive resistance to the law duly en- acted. The consequences of such resistance he has told us in his message : "Where an act has been passed according to the formsof the Constitution by the supreme legislative authority, and is regularly enrolled among the pub- lic statutes of the country, executive resistance to it, especially in times of high party oxciteineut, would bo likely to produce violent collision between the re- spective adherents of the two branches of tbe Gov- ernment. This would be simply civil war, and civil war must bo resorted to only as the last remedy for the worst evils." * * * * * * * '* It is true that cases may occur in which the Ex- ecutive would be compelled to stand on its rights, and maintain them, rogardless of all consequences. He admits, in substance, that he told Emory that the law was wholly unconstitutional, and, in effect, took away all his power as Commander- in-Chief. Was it not just such a law as lie had declared he would resist? Do you not believe that if General Emory had yielded in the least to his suggestions the President would have offered him promotion to bind him to his pur- poses, as he did Sherman and Thomas? Pray remember that this is not the case of one gentleman conversing with another on moot questions of law ; but it is the President, the Commander-in-Chief, "the fountain of all honor and source of all power," in the eye of a military officer, teaching that officer to dis- obey a law which he himself has determined is void, with the power to promote the officer if he finds him an apt pupil. Is it not a high misdemeanor for the Presi- dent to assume to instruct the officers of the Army that the laws of Congress are not to be obeyed? Article ten alleges that, intending to set aside the rightful authority and powers of Con- gress, and to bring into disgrace and contempt the Congress of the United States, and to de- stroy confidence in and to excite odium against Congress and its laws, he, Andrew Johnson, President of the United States, made divers speeches set out therein, whereby he brought the office of President into contempt, ridicule, and disgrace. To sustain these charges there will be put in evidence the short-hand notes of reporters in each instance, who took these speeches or ex- amined the sworn copies thereof, and one in- stance where the speech was examined and corrected by the Private Secretary of the Presi- dent himself. To the charges of this article the respondent answers that a convention of delegates, of whom he does not say, sat in Philadelphia for certain political purposes mentioned, and appointed a committee to wait upon the re- spondent as President of the United States ; that they were received, and by their chair- man, Hon. Reverdy Johnson, then and now a Senator of the United States, addressed the respondent in a speech, a copy of which the respondent believes from a substantially cor- rect report is made a part of the answer ; that the respondent made a reply to the address of the committee. While, however, he gives us in his answer a copy of the speech made to him by Mr. Reverdy Johnson, taken from a newspaper, he wholly omits to give us an au- thorized version of his own speech, about which he may be supposed to know quite as much, and thus saved us some testimony. He does not admit that the extracts from his speech in the article are correct, nor does he deny that they are so. In regard to the speech at Cleveland, he again does not admit that the extracts cor- rectly or justly present his speech ; but again he does not deny that they do so far as the same is set out. As to the speech at St. Louis, he does not deny that he made it — says only that he does not admit it, and requires, in;each case, that the whole speech shall be proved. In that, I beg leave to assure him and the Senate, his wishes shall be gratified to their fullest frui- tion. The Senate shall see the performance, so far as is in our power to photograph the scene by evidence, on each of these occasions, and shall hear every material word that he said. His defense, however, to the article is, that " he felt himself in duty bound to express opinions of and concerning the public character, con- duct, views, purposes, motives, and tendencies of all men engaged in the public service, as well in Congress as otherwise," "and that for anything he may have said on either of these occasions he is justified under the constitutional right of freedom of opinion and freedom of speech, and is not subject to question, inquisi- tion, impeachment, or inculpation in any man- ner or form whatsoever. ' ' He denies, however, that by reason of any matter in said article or its specifications alleged he has said or done anything indecent or unbecoming in the Chief Magistrate of the United States, or tending to bring his high office into contempt, ridicule, or disgrace. The issue, then, finally, is this: that those utterances of his, in the manner and form in which they are alleged to have been made, aud under the circumstances and at the time they were made, are decent and becoming the 1 res- ident of the United States, and do not tend to bring the office into ridicule and disgrace. We accept the issues. They are two : First. That he has the right to say what he did of Congress in the exercise of freedom of speech; and second, that what he did say in those speeches was a highly gentlemanlike and proper performance in a citizen, and still more becoming in a President of the United States. Let us first consider the graver matter of the assertion of the right to cast contumely upon Congress; to denounce it as a " body hanging on the verge of the Government ;" " pretend- ing to be a Congress when, in fact, it was not a Congress ;" "a Congress pretending to be for the Union when its every step and act tended to perpetuate disunion," " and make a disrup- tion of the States inevitable ;" "a Congress in a minority assuming to exercise power which, if allowed to be consummated, would result in despotism and monarchy itself;" " a Congress which had done everything to prevent the union of the States;" "a Congress factious and domineering;" "a Radical Congress which gave origin to another rebellion;" " a Congress upon whose skirts was every drop of blood that was shed in the New Orleans riots." You will find these denunciations had a deeper meaning than mere expressions of opinion. It may be taken as an axiom in the affairs of nations that no usurper has ever seized upon the Legislature of his country until he has familiarized the people with the possi- bility of so doing by vituperating and decrying it. Denunciatory attacks upon the Legislature have always preceded, slanderous abuse of the individuals composing it have always accom- panied, a seizure by a despot of the legislative power of a country. Two memorable examples in modern history will spring to the recollection of every man. Before Cromwell drove out by the bayonet the Parliament of England he and his partisans had denounced it, derided it, decried it, and defamed it, and thus brought it into ridicule and contempt. He villified it with the same name which — it is a significant fact — the parti- sans of Johnson, by a concerted cry, applied to the Congress of the United States when he com- menced his memorable pilgrimage and crusade against it. It is a si ill more significant fact that the justification madeby Cromwell and by John- son for setting aside the authority of Parliament and Congress respectively was precisely the same, to wit : that they were elected by part of the people only. When Cromwell, by his soldiers, finally entered the hall of Parliament to disperse its members, he attempted to cover the enormity of his usurpation by denouncing this man personally as a libertine, that as a drunkard, another as a betrayer of the liber- ties of the people. Johnson started out on precisely the same course, but forgetting the parallel, too early he proclaims this patriot an assassin, that statesman a traitor ; threatens to hang that man whom thG people delight to honor, and breathes out " threatenings and slaughter" against this man whose services in the cause of human freedom have made his name a household word wherever the language is spoken. There is, however, an appreciable difference between Cromwell and Johnson, aud there is a like difference in the results accom- plished by each. When Bonaparte extinguished the Legisla- ture of France he waited until, through his press and his partisans and by his own denun- ciations, he brought its authority into disgrace and contempt ; and when, finally, he drove the council of the nation from their chamber, like Cromwell, he justified himself by personal abuse of the individuals themselves as they passed by him. That the attempt of Andrew Johnson to overthrow Congress has failed is because of the want of ability and power, not of malignity and will. We are too apt to overlook the danger which may come from words: " We are inclined to THE CONGRESSIONAL GLOBE. 39 say that is only talk — wait till some act is done, and then it will be time to move. But words may be, and sometimes are, things — living, burning things, that set a world on lire." As a most notable instance of the power of words look at the inception of the rebellion through which we have just passed. For a quarter of a century the nation took no notice of the talk of disunion and secession which was heard in Congress and on the "stump" until in the South a generation was taught them by word, and the word suddenly burst forth into terrible, awful war. Does any one doubt that if Jackson had hanged Calhoun in 1832 for talking nullification and secession, which was embryo treason, the cannon of South Carolina against Fort Sumter would ever have been heard with all their fearful and deadly con- sequences? Nay, more ; if the United States officers,5enators, and Representatives had been impeached or disqualified from office in 1832 for advocating secession on the " stump," as was done in 1862 by Congress, then our sons and brothers now dead in battle or starved in prison had been alive and happy, and a peaceful solution of the question of slavery had been found. Does any one doubt that if the intentions of the respondent could have been carried out, and his denunciations had weakened the Con- gress in the affections of the people, so that those who had in the North sympathized with the rebellion could have elected such a minority even of the Representatives to Congress as, together with those sent up from the govern- ments organized by Johnson in the rebellious States, should have formed a majority of both or either House of Congress, that the Presi- dent would have recognized such body as the legitimate Congress, and attempted to carry out its decrees by the aid of the Army and Navy and the Treasury of the United States, over which he now claims such unheard-of and illimitable powers, and thus lighted the torch of civil war? In all earnestness, Senators, I call each one of you upon his conscience to say whether he does not believe by a preponderance of evidence drawn from the acts of the respondent since he has been in office that if the people had not been, as they ever have been, true and loyal to their Congress aud to themselves, such would not have been the result of these usurpations of power in the Executive? Is it indeed to be seriously argued here that there is a constitutional right in the President of the United States, who during his official life can never lay aside his official character to denounce, malign, abuse, ridicule, aud con- temn, openly and publicly, the Congress of the United States — a coordinate branch of the Government? It cannot fail to be observed that the Presi- dent (shall I dare to say his counsel, or are they compelled by the exigencies of their de- fense,) has deceived himself as to the grava- men of the charge in this article. It does not raise the question of freedom of speech, but of propriety and decency of speech and con- duct in a high officer of the Government. Andrew Johnson, the private citizen, as I may reverently hope and trust he soon will- be, has the full constitutional right to think and speak what he pleases, in the manner he pleases, and where he pleases, provided always he does not bring himself within the purview of the common law offenses of being a common railer and brawler or a common scold, which he may do, (if a male person is ever liable to commit that crime;) but the dignity of station, the pro- prieties of position, the courtesies of office, all of which are a part of the common law of the land, require the Presidentof the United States to observe that gravity of deportment, that fit- ness of conduct, that appropriateness of de- meanor, and those amenities of behavior which are a part of his high official functions. He stands before the youth of the country the exemplar of all that is of worth in ambition and all that is to be sought in aspiration ; he stands before the men of the country as the grave magistrate who occupies, if he does not fill, the place once honored by Washington ; nay, far higher and of greater consequence, he stands before the world as the representative of free institutions, as the type of man whom the suffrages of a free people have chosen as their chief. He should be the living evidence of how much better, higher, nobler, and more in the image of God is the elected ruler of a free people than a hereditary monarch, coming into power by the accident of birth; and when he disappoints all these hopes and all these expectations, and becomes the ribald, scurril- ous blasphemer, bandying epithets and taunts with a jeering mob, shall he be heard to say that such conduct is not a high misdemeanor in office? Nay, disappointing the hopes, causing the cheek to burn with shame, exposing to the taunts and ridicule of every nation the good name and fame of the chosen institutions of thirty million people, is it not the highest possible crime and misdemeanor in office; and under the circumstances is the gravamen of the charges. The words are not alleged to be either false or defamatory, because it is not within the power of any man, however high his official position, in effect to slander the Congress of the United States, in the ordinary sense of that word, so as to call on Congress to answer as to the truth of the accusation. We do not go in, therefore, to any question of truth orfalsity. We rest upon the scandal of the scene. We would as soon think, in the trial of an indict- ment against a termagant as a common scold, of summoning witnesses to prove that what she said was not true. It is the noise and disturb- ance in the neighborhood that is the offense, and not a question of the provocation or irrita- tion which causes the outbreak. At the risk of being almost offensive, but protesting that if so it is not my fault but that of the person whose acts I am describing, let me but faintly picture to you the scene at Cleveland and St. Louis. It is evening ; the President of the United States, on a journey to do homage at the tomb of anillustriousstatesman, accompanied by the head of the Army and Navy and Secretary of State, has arrived in the great central city of the continent. He has been welcomed by the civic authorities. He has been escorted by a procession of the benevolent charitable socie- ties and citizens and soldiers to his hotel. He has returned thanks in answer to address of the mayor to the citizens who has received him. The hospitality of the city has provided a banquet for him and his suite, when he is again expected to address the chosen guests of the city, where all things may be conducted in decency and order. While he was resting, as one would have supposed he would have wished to do from the fatigue of the day, a noisy crowd of nren and boys, washed and un- washed, drunk and sober, black and white, assemble in the street, who make night hideous by their bawling ; quitting the drawing-room, without the advice of his friends, the President of the United States rushes forth on to the balcony of the hotel to address what proves to have been a mob, and this he calls in his an- swer a " fit occasion on which he is held to the high duty of expressing opinions of and concerning the legislation of Congress, pro- posed or completed, in respect of its wisdom, expediency, justice, worthiness, objects, pur- poses, and public and political motives and tendencies." Observe now, upon this "fit occasion," like in all respects to that at Cleveland, when the President is called upon by the constitu- tional requirements of his office to expound " the wisdom, expediency, justice, worthiness, objects, purposes, and tendencies of the acts of Congress," what he says, and the manner in which he says it. Does he speak with the gravity of a Marshall when expounding con- stitutional law? Does he use the polished sentences of a Wirt? Or, failing in these, which may b'e his misfortune, does he, in plain, homely words of truth and soberness, endeavor to instruct the men and youth before him in their duty to obey the laws and to reverence their rulers, and to prize their institutions of government? Although he may have been mistaken in the aptness of the occasion for such didactic instruction, still good teaching is never thrown away. He shows, however, by his language, as he had shown at Cleveland, that he meant to adapt himself to the occasion. He has hardly opened his mouth, as we shall show you, when some one in the crowd cries,' "How about our British subjects?" The Chief Executive, supported by his Sec- retary of State, so that all the foreign relations and diplomatic service were fully represented, with a dignity that not even his counsel can appreciate, and with an amenity which must have delighted Downing street, answers: "We will attend to John Bull after awhile, so far as that is concerned." The mob, ungrateful, re- ceive this bit of "expression of opinion upon the justice, worthiness, objects, purposes, and pubiic and political motives and tendencies" of our relations with the kingdom of Great Britain as they fell from the honored lips of the President of the United States with laugh- ter, and the more unthinking with cheers. Having thus disposed of our diplomatic re- lations with the first naval and commercial nation on earth, the President next proceeds to express his opinion in manner aforesaid and for the purposes aforesaid to this noisy mob on the subject of the riots, upon which his answer says "it is the constitutional duty of the Pres- ident to express opinions for the purposes aforesaid." A voice calls out, "New Orleans! go on 1" After a graceful exordium the Pres- ident expresses his high opinion that a mas- sacre, wherein his pardoned and unpardoned rebel associates and friends deliberately shot down and murdered unarmed Union men with- out provocation, even Horton, the minister of the living God, as his hands were raised to the Prince of Peace, praying, in the language of the great martyr, " Father, forgive them, for they know not what they do," was the result of the laws passed by the legislative depart- ment of your Government in the words follow- ing, that is to say : "If you will tako up tho riot at New Orleans and trace it back to its source, or to its immediate causo, you will find out who was responsible for the blood that was shed thero. " If you tako up the riot a.t New Orleans and trace it back to the radical Congress" — This, as we might expect, was received by the mob, composed, doubtless, in large part of unrepentant rebels, with great cheers and cries of "bully." It was " bully"— if that means encouraging — for them to learn on the authority of the President of the United States that they might shoot down Union men and patriots, and lay the sin of murder upon the Congress of the United States ; and this was another bit of "opinion" which the counsel say it was the high duty of the President to express upon the justice, the worthiness, ob- jects, " purposes and public and political mo- tives and tendencies of the legislation of your Congress." After some further debate with the mob some one, it seems, had called out " traitor 1" The President of the United States, on this fitting, constitutional occasion, immediately took this as personal, and replies to it : " Now, my_ countrymon, it is very easy to indulge in epithets: it is very easy to call a man Judas, and cry out traitor, but when he is called upon togivo arguments and facts he is very often found wanting." What were the " facts that were found want- ing," which, in the mind of the President, pre- vented him from being a Judas Iscariot? He shall state the " wanting" facts in his own lan- guage on this occasion when he is " exercising his high constitutional prerogative :" '* Judas Iscariot I Judas 1 Th ere was a Judas once, one of the twelve apostles. Ohl yes, tho twelve apostles had a Christ. [A voice, 'and a Moses, too;' great laughter.] The twclvo apostles had a Christ, and he never could have had a Judas unless he had had thetwelve apostles. If I have played the Judas, who has been my ChristthatlhaveplavedtheJudaa with? Was it Thad. Stevens? Was it Wendell Phillips? Was it Chart.es Sumner ?" If it were not that the blasphemy shocks us 40 SUPPLEMENT TO we should gather from all this that it dwelt in the mind of the President of the United States that, the only reason why he was not a Judas was that he had not been able to find a Christ toward whom to play the Judas. It will appear thatthis bit of "opinion, "given in pursuance of his constitutional obligation, was received with cheers and hisses. Whether the cheers were that certain patriotic persons named by him might be hanged, or the hissing was because of the inability of the President to play the part of Judas for the reason before stated, I am sorry to say the evidence will not inform us. His answer makes the President say that it is his ''duty to express opinions concerning the public characters, and the conduct, views, purposes, objects, motives, and tendencies of all men engaged in the public service." Now, as "the character, motives, tendencies, purposes, objects, and views" of Judas alone had "opinions expressed" about them on this "fit occasion," (although he seemed to desire to have some others, whose names he men- tioned, hanged,) I shall leave his counsel to inform you what were the public services of Judas Iscariot, to say nothing' of Moses, which it was the constitutional duty and right of the President of the United States to discuss on this particularly fit occasion. But I will not pursue this revolting exhibi- tion any further. I will only show you at Cleveland the crowd and the President of the United States, in the darkness of night, bandying epithets with each other, crying, "Mind your dignity, Audy;" "Don't get mad, Andy;" "Bully for you, Andy." I hardly dare shock, as I must, every sense of propriety by calling your attention to the President's allusion to the death of the sainted martyr, Lincoln, as the means by which he attained his office, and if it can bejustified in any man, public or private, I am entirely mis- taken in the commonest proprieties of life. The President shall tell his own story : " There was, two years ago, a ticket before you for the Presidency. I was placed upon that ticket with % distinguished citizen now no more. [Voices, 'Its a pity;' 'Too bad;' 'Unfortunate.'] Yes, I know there are some who say "unfortunate.' Yes, unfor- tunate for some that God rules on high and deals in justice. [Cheers.] Yes, unfortunate. The ways of Providence are mysterious and incomprehensible, controlling all who exclaim 'unfortunate.'" Is it wonderful at all that such a speech, which seems to have been unprovoked and coolly uttered, should have elicited the single response from the crowd, " Bully for you ?" 1 go no further. I might follow this ad nau- seam. I grant the President of the United States further upon this disgraceful scene the mercy of my silence. Tell me now, who can read the accounts of this exhibition, and reflect thatthe result of our institutions of government has been to place such a man, so lost to decency and propriety of conduct, so unfit, in the high office of ruler of this nation, without blushing and hanging his head in shame as the finger of scorn and contempt for republican democracy is pointed at him by some advocate of monarchy in the Old World. What answer have you when an intelligent foreigner says, " Look I seel this is the culmination of the ballot unrestrained in the bauds of a free people, in a country where any man may aspire to the office of President. Is not our Government of a hereditary king or emperor a better one, where at least our sov- ereign is born a gentleman, than to have such a thing as this for a ruler ?' ' Yes, we have an answer. We can say this man was not the choice of the people for the President of the United States. Hewasthrown to the surface by the whirlpool of civil war, and carelessly, we grant, elected to the second place in the Government, without thought that he might ever lill the first. By murder most foul he succeeded to the Presidency, and is the elect of an assassin to that high office, and not of the people. "It was a grievous fault, and grievously have we answered it;" but let me tell you, advocate ef monarchy ! that our frame of government gives us a remedy for such a misfortune, which yours, with its divine right of kings, does not. We can remove him — as we are about to do — from the office he has disgraced by the sure, safe, and constitutional method of impeach- ment ; while your king, if he becomes a buf- foon, or a jester, or a tyrant, can only be displaced through revolution, bloodshed, and civil war. This, this, monarchist 1 is the crowning glory of our institutions, because of which, if for no other reason, our form of government claims precedence over all other governments of the earth. Article eleven charges that the President, having denied in a public speech on the 18th of August, 1866, at Washington, that the Thirty- Ninth Congress was authorized to exercise legislative power, and denying that the legis- lation of said Congress was valid or obligatory upon him, or that it had power to propose cer- tain amendments to the Constitution, did at- tempt to prevent the execution of the act enti- tled "An act regulating the tenure of certain civil offices," by unlawfully attempting to de- vise means by which to prevent Mr. Stanton from resuming the functions of the office of Secretary of the Department of War, notwith- standing the refusal of the Senate to concur in his suspension, and that he also .contrived means to prevent the execution of an act of March 2, 1867, which provides that all mili- tary orders shall be issued through the General of the Army of the United States, and also another act of the same 2d of March, com- monly known as the reconstruction act. To sustain this charge proof will be given of his denial of the authority of Congress as charged ; also his letter to the General of the Army, in which he admits that he endeavored to prevail on him by promises of pardon and indemnity to disobey the requirements of the tenure-of-office act, and to hold the office of Secretary of War against Mr. Stanton after he had been reinstated by the Senate ; that he chided the General for not acceding to his re- quest, and declared that had he known that he (Grant) would not have acceded to his wishes he would have taken other means to prevent Mr. Stanton from resuming his office ; his ad- mission in his answer that his purpose was from the first suspension of Mr. Stanton, August 12, 1807, to oust him from his office, notwith- standing the decision of the Senate under the act ; his order to General Grant to refuse to recognize any order of Mr. Stanton purporting to come from himself after he was so reinstated, and his order to General Thomas as an officer of the Army of the United States to take pos- session of the War Office, not transmitted, as it should have been, through the General of the Army, and the declarations of General Thomas that as an officer of the Army of the United States he felt bound to obey ihe orders of the Commander-in-Chief. To prove further the purpose and intent with which his declarations were made, and his denial of the power of Congress to propose amendments to the Constitution, and as one of the means employed by him to prevent the execution of the acts of Congress, we shall show he has opposed and hindered the pacifi- cation of the country and the return of the insurrectionary States to the Union, and has advised the Legislature of the State of Ala- bama not to adopt the constitutional amend- ment known as the fourteenth article, when appealed to to know if it was best for the Legis- lature so to do; and this, too, after that amend- ment had been adopted by a majority of the loyal State Legislatures, and after, in the elec- tion of 1806, it had been sustained by an over- whelming majority of the loyal people of the United States. I do not propose to comment further on this article, because, if the Senate shall have decided that all the acts charged in the preceding articles are justified bylaw, then so large a part of the intent and purposes with which the respondent is charged in this article would fail of proof that it would be difficult to say whether he might not, with equal impu- nity, violate the laws known as the reconstruc- tion acts, which, in his message, he declares "as pluinly unconstitutional as any that can be imagined." If that be so, why should he not violate them ? If, therefore, the judgment of the Senate shall sustain us upon the other articles, we shall take judgment upon this by confession, as the respondent declares in the same message thai he does not intend to exe- cute them. To the bar of this high tribunal, invested with all its great power and duties, the House of Representatives has brought the President of the United States by the most solemn form of accusation, charging him with high crimes and misdemeanors in office, as set forth in the several articles which I have thus feebly pre- sented to your attention. Now, itseemsneces- sary that I should briefly touch upon and bring freshly to your remembrance the history of some of the events of his administration of affairs in his high office, in order that the intents with which and the purposes for which the respondent committed the acts alleged against him may be fully understood. Upon the first reading of the articles of im- peachment the question might have arisen in the mind of some Senator, Why are these acts of the President only presented by the House when history informs us that others equally dangerous to the liberties of the people, if not more so, and others of equal usurpation of powers, if not greater, are passed by in silence ? To such possible inquiry we reply : that the acts set out in the first eight articles are but the culmination of a series of wrongs, malfeas- ances, and usurpations committed by the re- spondent, and therefore need to be examined in the light of his precedent and concomitant acts to grasp their scope and design. The last three articles presented show the perversity and malignity with which he acted, so that the man as he is known to us may be clearly spread upon record to be seen and known of all men hereafter. What has been the respondent's course of administration ? For the evidence we rely upon common fame and current history as suf- ficient proof. By the common law common fame, "si oriatur apud bonos et graves," was ground of indictment even ; more than two hundred and forty years ago it was determined in Parliament "that common fame is a good ground for the proceeding of this House, either to inquire of here or to transmit the complaint, if the House find cause, to the king or lords." Now, is it not well known to all good and grave men "bonos et graves" that Andrew Johnson entered the office of President of the United States at the close of the armed rebel- lion making loud denunciation, frequently and everywhere, that traitors ought to be punished and treason should be made odious ;. that the loyal and true men of the South should be fos- tered and encouraged ; and, if there were but few of them, to such only should be given in charge the reconstruction of the disorganized States ? Do not all men know that soon afterward he changed his course and only made treason odious, so far as he was concerned, by appoint- ing traitors to office and by an indiscriminate pardon of all who "came in unto him?" Who does not know that Andrew Johnson initiated, of his own will, a course of reconstruction of the rebel States which at the time he claimed was provisional only, and until the meeting of Congress and its action thereon? Who does not know that when Congress met and under- took to legislate upon the very subject of re- construction of which he had advised them in his message, which they alone had the consti- tutional power to do, Andrew Johnson last aforesaid again changed his course, and de- clared that Congress had no power to legislate upon that subject ; that the two Houses had only the power separately to judge of the quali- fications of the members who might be sent to each by rebellious constituencies, acting under State organizations which Andrew Johnson had called iuto existence by his \atejiat, the electors of which were voting by his permis- THE CONGRESSIONAL GLOBE. 41 sion and under his limitations? Who does not know that when Congress, assuming its right- ful power to propose amendments to the Con- stitution, had passed such an amendment, and had submitted it to the States as a measure of pacification, Andrew Johnson advised and counseled the Legislatures of the States lately in rebellion, as well as others, to reject the amendment, so that it might not operate as a law, and thus establish equality of suffrage in all the States and equality of right in the mem- bers of the Electoral College and in the num- ber of the Representatives to the Congress of the United States? Lest any one should doubt the correctness of this piece of history or the truth of this com- mon fame we shall show you that while the Legislature of Alabama was deliberating upon the reconsideration of the vote whereby it had rejected the constitutional amendment, the fact being brought to the knowledge of Andrew Johnson and his advice asked, he, by a tele- graphic message under his own hand, here to be produced, to show his intent and purposes, advised the Legislature against passing the amendment, and to remain firm in their oppo- sition to Congress. We shall show like advice of Andrew Johnson, upon the same subject, to the Legislature of South Carolina, and this, too, in the winter of 1867, after the actioiv of Congress in proposing the constitutional amend- ment had been sustains] in the previous elec- tion by an overwhelming majority. Thus we charge that Andrew Johnson, President of the United States, not only endeavors to thwart the constitutional action of Congress and bring it to naught, but also to hinder and oppose the execution of the will of the loyal people of the United States expressed, in the only mode by which it can be done, through the ballot-box, in the election of their Representatives. Who does not know that from the hour he began these his usurpations of power he everywhere de- nounced Congress, the legality and constitu- tionality of its action, and defied its legitimate powers, and, for that purpose, announced his intention^ and carried out his purpose, as far as he was able, of removing every true man from office who sustained the Congress of the United States? And it is to carry out this plan of action that he claims the unlimited power of removal, for the illegal exercise of which he stands before you this day. Who does not know that, in pursuance of the same plan, he used his veto power indiscriminately to prevent the passage of wholesome laws en- acted for the pacification of the country ; and when laws were passed by the constitutional majority over his vetoes he made the most determined opposition, both open and covert, to them, and, for the purpose of making that opposition effectual, he endeavored to array and did array, all the people lately in rebellion to set themselves against Congress and against the true and loyal men, their neighbors, so that murders, assassinations, and massacres were rife all over the southern States, which he en- couraged by his refusal to consent that a single murderer be punished, though thousands of good men have been slain ; and, further, that he attempted by military orders to prevent the execution of acts of Congress by the military commanders who were charged therewith. These and his concurrent acts show conclu- sively that his attempt to get the control of the military force of the Government, by the seiz- ing of the Department of War, was done in pursuance of his general design, if it were pos- sible, to overthrow the Congress of the United States ; and he now claims by his answer the right to control at his own will, for the execu- tion of this very design, every officer of the Army, Navy, civil, and diplomatic service of the United States. Ho asks you here, Senators, by your solemn adjudication, to confirm him in that right, to invest him with that power, to be used with the intents and for the purposes which he has already shown. The responsibility is with you ; the safeguards of the Constitution against usurpation are in yoilr hands; the interests and hopes of free institutions wait upon your verdict. The House of Representatives has done its duty. We have presented the facts in the constitutional manner ; we have brought the criminal to your bar, and demand judgment at your hands for his so great crimes. Never again, if Andrew Johnson go quit and free this day, can the people of this or any other country by constitutional checks or guards stay the usurpations of executive power. 1 speak, therefore, not the language of exag- geration, but the words of truth and soberness, that the future political welfare and liberties of all men hang trembling on the decision of the hour. A Brief of the Authorities upon the Law of Impeachable Crimes and Misdemeanors, prepared by Hon. William Lawuence, M. C, of Ohio; revised and presented by B. P. Butler, of Massachusetts, one of the Man- agers, as a part of his opening argument on the Impeachment of the President. In order to ascertain the impeachable char- acter of an act done or omitted reference must be had to the Constitution, expounded as it is by history, by parliamentary and common law. The provisions of the Constitution which relate to or illustrate the law of impeachment are these : "The IIouso of Representatives shall choose their Speaker and other officers, and shall have the sole power of impeachment." (Art. 1, see. 2.) "The Senate shall have the sole power to try all impeachments. When sitting for that purpose they shall be on oath or affirmation. When the President of the United States is tried the Chief Justico shall preside; and no person shall bo convicted without the concurrence of two thirds of the members present. "Judgment in cases of impeachment shall not extend further than to removal from office, and dis- qualification to hold and enjoy any offico of hpnor, trust, or profit under the United States; but the party convicted shall nevertheless be liableand sub- ject to indictment, trial, judgment, and punishment, according to law." (Art. 1, sec. 3.) "In case of the removal of the President from office, or of his death, resignation, or inability to dis- charge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide forthecaseof removal, death, resignation, or inability, both of the Presi- dent and Vico President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed or a President shall bo elected." (Art. 2, sec 1.) " Tho Presieont shall bo Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the a.ctunl service of tho United States; he may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices; and he shali have power to grant reprieves and pardons for offenses against tho United States, exceptin cases of impcachmont." (Art. 2. sec. 2.*) " The President, Vice President, and all civil offi- cers of the United States shall be removed from office on impeachment for, and conviction of. treason, bribery, or other high crimes and misdemeanors." (Art. 2, sec. 4.) "Tho trial of all crimes, except in cases of im- peachment, shall be by jury; and such trial shall be held in the Statcwhere the said crimes shall have bech committed ; but when notcommitted within any State the trial shall be at such place or places as the Congress may by law have directed." (Art. 3, sec. 2.) The convention which framed the Constitu- tion on the subject of impeachment "proceeded in the same manner it is manifest they did in many other cases ; they considered the object of their legislation as a lenown thing, having a previous definite existence. Thus existing, their work was solely to mold it into a, suit- able shape. They have giveu it to us, not as a, thing of their creation, but merely of their modification."^ * The clauses of tho Constitution which declare that a party impeached shall be " liable to indict- ment;" that "the trial of all crimes, except in cases of impeachment, shall bo byjury;" that tho Presi- dent sua 11 have power to grant "pardons for otfeiises against tho United States, exceptin casesof impeach- ment," are all either parts of or modifications of the British constitution; they recognize statutory and common law crimes as a portion, but not all, of the impeachable offenses here as they were and are in England. t Bayard on Blount's Trial, 264 ; and he added: " And therefore I shall insist that it remains as at common law, [parliamentary,] with tho variance only of tho positive provisions of the Constitution." (Wharton's State Trials, 264; Rawleon Constitution, 20U) " Tho Constitution" * * * * "refers In England a majority of the lords impeach, though, by common law, twelve peers must be present and concur.* Here the concurrence of two thirds of the members [of the Senate] present is requisite. In England the character and extent of the punishment are in the discretion of the lords. Here it cannot extend further than to removal from and disqualification to hold office. In England "all the king's subjects are im- peachable in Parliament."! Here, according to the received construction, "none are liable to impeachment except officers of the Govern- ment."; 1 : In England the lords are not sworn in try- ing an impeachment, but give their decision upon their honor. Here Senators act under the solemn sanction of an oath or affirmation. In England the crown is not impeachable. Here the President is. In England, impeachment may, to some ex- tent, be regarded as a mode of trial designed, inter alia, to punish crime, though not en- tirely so, since a judgment on an impeach- ment is no answer to an indictment in the king's bench. [| Here impeachment is only designed to remove unfit persons from office ; and the party convicted is subject to indict- ment, trial, and punishment in the proper courts. It is absurd to say that impeachment is here a mode of procedure for the punishment of crime,\ when the Constitution declares its object to be removal from and disqualification to hold office, and that "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law," for his " crimes." Subject to these modifications, and adopt- ing the recognized rule, that the Constitution should be construed so as to be equal to every to " * * * * " impeachment without defining it. It assumes the oxistenco " * * * * "and silently points us to English precedents for knowledge of dotails. Wc aro reminded of the statement" * * * * "that 'the Consti- tution is an instrument of enumeration and not of definition.'" (Professor Dwight, 6 Am. Law Reg., N. S., 257.) * 5 Comyn's Bigest, 308, Parliament h. t 2 Wooddcson's Lectures, 602. tin Chase's Trial Mr. Rodney "utterly disclaimed the idea that" any but ojjieera were liable to.impeach- ment. Wharton says, in reference to Blount's trial: "In a legal point of view all that this case decides is that a Senator of the Unite'd States who has been expel led from his seat is not, after such expulsion, subject to impeachment, and porhaps from this tho broader proposition may be drawn that none are liable to impeachment except officers of the Government, in tho technical sense, excluding thereby members of the national Legislature. Afterward, from the expul- sion of Mr. Smith, a Senator from Ohio, for connec- tion with Burr's conspiracy, instead of his impeach- ment, tho same implication arises." (Wharton's State Trials, 317, note.) In this case Mr. Bayard maintained " that allper- norm" * * * * "aro liable to impeach- ment;" that the Constitution does not define tho cases or describe tho persons designed as the objects of impeachment. "We aro designedly left to the regulations of the common [parliamentary] law." This view is confirmed by the fact that art, 2, sec. 4, im- peratively requires "removal from office" in case of tho President, Vice President, and officers, while art. 1, sec. 3, seems to admit of less punishment than this, and which must, therefore, apply to persons other than officers. (SoeWickliffe's argument, Peek's Trial, 300.) Tho constitution of New York of 1777 is said to have been the model from which the impeach- ment clauses of the Constitution of the United States were copied. (6 Am. Law Reg., N. S., 277.) That of New York limits impeachments to officers in terms; that of the United States does not. There may bo agents and others for whom impeachments would bo salutary. In England military and naval officers are im- peachable. If a military or naval officerhere should conspire with the President to overthrow Congress tho impeachment of both would be a necessary pro- tection, which it may bo doubted if tho Constitution intended to surrender. In such case a court-martial could not, against the President's will, remove from office; impeachmentalone would be effectual. (Whar- ton's State Trials, 290.) WFitzharris's Caee, 6 Am. Law Reg., N. S., 262. § " Impeachment is a proceeding purely of a polit- ical nature. It is not so much designed to punish the offender as to secure tho State. It touches neither his person nor his property, but simply divests him of his political capacity." (Bayard's Speech ou Blount's Trial; Wharton's State Trials, 263.) 42 SUPPLEMENT TO occasion ■which might call for its exercise, and adequate to accomplish the purposes of its framers, impeachment remains here as it was recognized in England at and prior to the adoption of the Constitution. These limitations were imposed in view of the abuses of the power of impeachment in English history.* These abuses were not guarded against in our Constitution by limiting, defining, or re- ducing impeachable crimes, since the same ne- cessity existed here as in England for the rem- edy of impeachment, but by other safeguards thrown around it in that instrument. It will be observed that the " sole power of impeach- ment " is conferred on the House, and the sole power of trial on the Senate by article one, sections two and three. These are the only jurisdictional clauses, and they do not limit impeachment to crimes or misdemeanors. Nor is itelsewhere so limited. Section four of arti- cle two only makes it imperative when "the President, Vice President, and all civil officers' ' are convicted "of treason, bribery, or other highf crimes and misdemeanors," that they shall be removed from office.! But, so far as the questions "now before the country are concerned, it is not material whether the words "treason, bribery, or other high crimes and misdemeanors" confer or limit jurisdiction, or only prescribe an imperative punishment as to officers or a class of cases, since every act which by parliamentary usage is impeachable is defined a "high crime or misdemeanor;" and these are the words of the British constitution which describe impeach- able conduct. || There may be cases appropri- ate for the exercise of the power of impeach- ment where no crime or misdemeanor has been committed. As these words are copied by our Constitu- tion from the British constitutional and parlia- * The earliest recorded instance of impeachment by the Commons at the bar of the House of Lords was in the reign of Edward III, (13713.) Before that time the Lords appeur to have tried both peers and commoners for great public offenses, but not upon complaints addressed to them by the Commons. During the nextfour reigns casesof regular impeach- ment were frequent; but no instances occurred in the reigns of Edward IV. Henry VII, Henry VIII, Edward VI, Queen Mary, and Queen Elizabeth. "The institution had fallen into disuse," (says Mr. Hallam, 1 Const. Hist., 357,) " partly from the loss of that control which the Commons had obtained un- der Richard II and the Lancasterian kings, and partly from the preference the Tudor princes had given to bills of attainder or of pains and penalties, when they wished to turn the arm of Parliament against an obnoxious subject." " Prosecutions, also, in the Star Chamber, during that time, were perpetually resorted to by the Crown for the punishment of State offenders. In the reign of James I the practice of impeachment was revived, and was used with great energy by the Commons, both as an instrument of popular power and for the furtherance of public justice. "Between the year 1620, when Sir Giles Mompes- son and Lord Bacon were impeached, and the revo- lution in 1688, there were about forty cases of im- peachment. In the reigns of William III, Queen Anne, and George I, there were fifteen; and in the reign of George II none but that of Lord Lovat, in 1746, for high treason. The last memorable cases arc those of Warren Hastings in 1788, and Lord Melville in 1805." (May on Parliament, 49, 50; Ingersoll's speech on Blount's Trial, Wharton's State Trials, 285; 4 Hatsell, yam/n.) t The word " high" applies as well to " misde- meanors" as to "crimes." (2 Chase's Trial, 383.) + On Chase's trial Mr. Rodney so argued; and so Wickliffe on Pock's trial, 309. In Blount's trial Mr. Ingersoll insisted that art. 2, sec. 4, designates " the extent of the power of impeachment both as to the offenses and the persons liable." (Wharton's State Trials, 289; see p. 99 per Harper.) |l 4 Hatsell's Precedents. 73-76. By the constitution of the State of Massachusetts the Senate is "to hear and determine all impeach- ments made by the House of Representatives against any officer or officers of tho Commonwealth for mis- conduct and maladministration in office." On tho trial of Judge Prescott in 1821, Mr. Blake in defense, referring to the words misconduct and mal- administration, said: "What, then, are the logal im- port and signification of these torms? We answer precisely tho same as of crimes and misdemeanors ,* that they are in every respect equivalent to the more familiar terms that are employed by tho constitution of Great Britain in its description of impeachable offences, subject only to the wholesome limitation which in this Commonwealth confines this extraordi- nary method of trial to the official misdemeanors of public functionaries." (Prescott's Trial, 117, 118.) mentary law, they are, so far as applicable to ourinstitntions and condition, to be interpreted not by English municipal law, but by the lex parliamentarian When, therefore, Blackstonef says that "an impeachment before the Lords by the Commons of Great Britain in Parliament is a prosecution of the already known and established law, and has been frequently put in practice," he must be understood to refer to the "established" parliamentary, not common municipal law, as administered in the ordinary courts, for it was the former that had been frequently put in practice. Whatever "crimes and misdemeanors" were the subjects of impeachment in England prior to the adoption of our Constitution, and as understood by its framers, are, therefore, sub- jects of impeachment before the Senate of the United States, subject only to the limitations of the Constitution. The framers of our Constitution, looking to the impeachment trials in England, and to the writers on parliamentary and common law, and to the constitutions and usages of our own States, saw that no act of Parliament or of any State Legislature ever undertook to define an impeachable crime. They saw that the whole system of crimes, as defined in acts of Parliament and as recognized at common law, was prescribed for and adapted to the ordinary courts. (2 Hale, PI. Crown, ch. 20, p. 150; (j Howell State Trials, 313, note.) They saw that the High Court of Impeach- ment took jurisdiction of cases where no in- dictable crime had been committed, in many instances, and there were then, as there yet are, "two parallel modes of reaching" some, but not all offenders: one by impeachment, the other by indictment. In such cases a party first indicted " may be impeached afterward, and the latter trial may proceed notwithstanding the indictment." { On the other hand, the king's bench held in Fitzharris's case that an impeachment was no answer to an indictment in that court. || The two systems are in no way connected, though each may adopt principles applicable to the other, and each may shine by the other's borrowed light. With these landmarks to guide them, our fathers adopted a Constitution under which official malfeasance and nonfeasance, and, in some cases, misfeasance, may be the subject of impeachment, although not made criminal by act of Congress, or so recognized by the common law of England or of any State of the Union. They adopted impeachment as a means of removing men from office whose miscon- duct imperils the public safety aud renders them unfit to occupy official position. All this is supported by the elementary writ- * Pennock vs. Dialogue, 2 Peters, 2-18. When foreign statutes are " adopted into our legislation the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts." ( United Stales vs. Jones, 3 Wash. C. C. R.. 209; Ex parte Hall, 1 Pick., 261; Sedgwick on Stat. p. 262, 426; Story on Const., sec. 797; Rawle on Const., 2000 Thisauthorsaysin reference to impeach- ments, "We must have recourse to the common law of England for the definition of them;" that is, to the common parliamentary law. (3 Wheaton, 610; 1 Wood, and Minot. 448.) The Constitution contains inherent evidence of this. By it "treason, bribery, and other high crimes and misdemeanors" are impeachable. " Treason" is defined in the Constitution; "bribery" is not: and it therefore means what the common lawhasdefined it. As the Constitution thus itself resorts to the com- mon and parliamentary law for the definition of its terms, tho words "high crimes and misdemeanors" are to be interpreted by tho same codes. They are as completely included as though every crime had been specifically named. Whatever by the common law was treason and which is not covered by the definition in the Constitution which defined it for the ordinary courts, is still impeachable crime so far as applicable to our institutions. t 4 Blackstono's Com., 260, road in Oxford 1759. He says, also: "It may happen that a subjeet intrusted with the administration of public affairs may infringe the rights of the people and be guilty of such crimes as the ordinary magistrate either dares not or cannot punish," that is, cannot punish because not falling within his jurisdiction. I Stafford's Trial, 7 Howard's Stale Trials.1297. II 6 Am. Law. Reg., N. S., 252. ers, both English and American, on parlia- mentary and common law ; by the English and American usage in cases of impeachment; by the opinions of the framers of the Constitu- tion ; by contemporaneous construction, all uncontradicted by any author, authority, case, or jurist, for more than three quarters of a century after the adoption of the Constitution. The authorities are abundant to show that the phrase "high crimes and misdemeanors," as used in the British and our Constitution, are not limited to crimes defined by statute or as recognized at common law.* Christian, who may be supposed to have understood the British constitution when he wrote, says: "When the words high crimes and misdemeanors are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge."')' Wooddeson,J whose lectures were read at Oxford in 1777, declared that impeachments extended to cases of which the ordinary courts had no jurisdiction. He says : "Magistratcsand officers" * * * * "may abuse their delegated powers to the extensive detri- ment of the community, and at the same time in a manner not properly cognizable before the ordinary tribunals." And he proceeds to say the remedy is by impeachment. English history presents many examples of this kind. I| * If an act to be impeachable must be indictable, . then it might be urged that every act which is indicta- ble must be impeachable. But this has never been pretended. As the Senate must, therefore, decide what acts are impeachable it cannot be governed by their indictable character. t Note to 4 Blackstcne, 5. X 2 Wooddeson's Lectures, 596. II See Comyn's Digest, tit. Parliament. "In 1388 there are several proceedings before the Lords against the Archbishop of York and other great officers and against several of the judges, for having given extra- judicial opinions and misinterpreting the law;" 4 Hatsel, 76; and in a note it is said the Lords de- termined that such cases "cannot be tried elsewhere than in Parliament, nor by any other law than the law and course of Parliament." * * * * It is elsewhere said, "such kind of misdeeds as Seculiarly injure the Commonwealth by the abuse of igh offices of trust are the most proper" * * * * "grounds for this kind of prosecutions. Thus" * * * * "if the judges mislead their sovereign by unconstitutional opinions, if any other magistrate attempt to subvert the fundamental laws or introduce arbitrary power." * * * * " So when a lord chancellor has been thought to put the S'-nl to an ignominious treaty ; a lord admiral to neglect the safeguard of the sea.; an embassador to betray his trust; a privy counselor to propound or support pernicious and dishonorable measures, &c, &c." (2 Wooddeson's Lectures, 602; lBlockstone. 257.) In the Virginia convention, Madison said, "If the President got up a treaty by surprise he would be impeached." (3 Eliot's Debates, 660, 516, 514, 496.) In Ohio, before it was settled that the courts had power to declare legislative acts unconstitutional, one judge of the supreme court and one president judge of the common pleas were tried on impeachments for the exercise of this power, and each escaped con- viction by only one vote. (20 Ohio Rep., Appendix, P.3-) The Duke of Suffolk was impeached for neglect of duty as an embassador ; the Earl of Bristol that he gave counsel against a war with Spain, whose king had affronted the English nation; the Duke of Buck- ingham that he, being admiral, neglected the safe- guard of the sea; Michael de la Pole that be. being chancellor, acted contrary to his duty; the Duke of Buckingham for having a plurality of office : and he whom the poet calls the 'greatest, wisest, meanest ot mankind,' for bribery in his office of lord chancel- lor; tho Lord Pinch for unlawful methods of enlarg- ing the iorcst, in his office of assistant to the justices on Eyre; the Earl of Oxford for selling goods to his own use captured by him as admiral without account- l?, g for , a, J teI H h „V > others." (Ingersoll's Speech on Blount's Trial, Wharton's State Trials, 291.) , Dr. Sacheverel was impeached for preaching an ™f roper sei mon. (Harper's Speech, Blount's Trial, Wharton, 301.) "Andrew Uorne, in his Mirror of Justice, men- tions many judges punished by King Alfred before the conquest for corrupt judgments." * * * * ''Ourstories mention many punished in the time of Edward I; our Parliament rolls of Edward Ill's time, ot Uiohard II s time for the pernicious resolu- (toiis given at Nottingham Castle, afford examples <■ J" k j n ,S- T In la ! er times, tho Parliament journals ot 18 and 21 Jac, the judgment of the ship-money in tho time ot Charles I questioned, and the particular judges impeached." (Vaugh.,139; cited in Appendix to Addison's (Pennsylvania) Trial.) Cases decided in England since the adoption of onr Constitution cannot limit the powers it confers. But no case can be found in England which limits im- peachment to crimes indietable by common law "or THE CONGRESSIONAL GLOBE. 43 Indeed, the word " misdemeanor" has a common-latOf a parliamentary j and a popular net of Parliament. The power of impeachment for offenses against the State has been distinctly and continuously maintained. The case of the Earl of Clarendon sustains this posi- tion. OnthelOth July,]663,the Earl of Bristol, with- out any action of the Commons, presented to the House of Lords "articles of high treason and other misdemeanors" against the Lord Chancellor. One was — "That being in places of high trust, &c, he hath traitorously and maliciously endeavored to alienate the hearts of his majesty's subjects from him bywords of his own." * * * * " That his majesty was inclined to popery, and had a design to alter the religion established in this kingdom." The statute 13, Charles II, chapter 1, provides that if any person shall maliciously affirm the king to be a heretic, a papist, or that he endeavors to in- troduce popery, every person shall be disabled to hold office, Ac. The Lords ordered the Chief Justice and judges to— "Consider whether the said charge hath been broughtin regularly and legally, and whether it may be proceeded in, and how, whether there be any treason in it or no." The judges reported that they did not consider the question whether the impeachment could bo pro- ceeded in or not if it came from the Commons, but as the statute of 1 Henry IV, chapter fourteen, provides that " all appeals of things within the realm shall "be tried and determined by the laws of the court," arti- cles of impeachment could not be preferred "by the said earl or any private person," that appeals meant "accusation by single persons." The judges then say: " That there was no treason in the charge, though the matters in it are alleged to be traitorously done. The great charge" * * * * "was that he did traitorously and maliciously to bring the king ' into contempt, and with an intent to alien the peo- plc's^affcctions from bim, say," &c. * * * * "And in like manner was most of the articles upon which the character of treason seemed to be fixed. I said that it is a transcendent misprision or offense to endeavor to bring the king into contempt, or to endeavor to alienate thepeoplo'saffectionsfrom him, but yet it was not treason" * * * * "We did not meddle with anything concerning ac- cusing him of misdemeanor." And so the Lords resolved, concurring in all these opinions, (6 Howard'a.State Trials, 318, 346.) The Commons afterward presented articles of im- peachment. November 16 r 1867, Sir R. Howard, in discussing the heads of charges in the Commons, *>aid : "Though common law has its proper sphere, it is not in this place— wo are in a higher sphere." November 11. The Commons resolved to impeach and notified the Lords, and demanded that Claren- don be sequestered from Parliament and committed, (6 Howell, 395.) The Lords refused until the articles should be pre- sented; and before the question was settled Claren- don escaped to the continent, and the statute 19 Charles II, chapter ten, of December 12, banished him. The Lords therefore decided nothing. Among the articles agreed on in the House were these : IX. That he introduced an arbitrary government in his majesty's plantations, and hath caused such as complained therof before his majesty and counsel to be long imprisoned for so doing. XI. That he advised and effected the sale of Dun- kirk to the French king, being part of his majesty's dominions, together with ammunition, artillery, and all sorts of stores there, and for no greater value than the said ammunition, artillery, and stores were worth. XVII. Thathe was a principal author of the fatal counsel of dividing the fleet about June, 1666. The case of the Earl of Orrery proves nothing as to t b ft law. November 25, 1669, a petition was presented in the House of Commons charging the Earl with — "Raising moneys by his own authority upon his majesty's subjects, defrauding the king's subjects of thoir estates. The money raised was for bribing hungry courtiers to come to his ends, and if the king would not he had fifty thousand swords to compel them." The earl answered in person and denied the charges. Then— "The question being propounded that a day be ap- pointed for the accusers to produce witnesses to make good the charge," * * * * "it was neg- atived— 121 to 118." It was then resolved — "That the accusation against the Earl of Orrery be left to be prosecuted at law." It never was prosecuted. (6 Howell, State Trials, 915.) Sir Adam Blair was impeached in 1690 by the Com- mons — " For dispersing [distributing] a seditious and trea- sonable paper, printed and entitled ' A declaration of King James II.'" On the question whether articles of impeachment should be preferred, Mr. Hawles said: "I do not think this to be a plain case of treason by statute 25 Edward III. I do say no court can judge this offense to be treason ; and that statute did plainly not bind the superior court of Parliament but tho inferior only. The proper way is to judge this high treason; and therefore I am for proceeding by Impeachment." And it was resolved to impeach of high treason. sense. In the parliamentary sense, as applied to officers, it means ''maladministration" or April 7, 1690, he was admitted to bail, and at the next session of Parliament he was discharged from bail. Here was a case in which there was clearly no trea- son under the statute, and yet the Commons resolved that he should be impeached and so far decided that he was guilty of an impeachable, though not an in- dictable crime, and which they called treason; adopt- ing the idea prevailing at the time as to constructive treason, but which might as well have been simply called an impeachable misdemeanor. (12 Howell, State Trials, 1213.) Thomas, Earl of Macclesfield, Lord High Chancellor of England, was tried in May, 1725, before the House of Lords, on articles of impeachment, charging that he— " In the office of chancellor did illegally and cor- ruptly insist upon and take of divers persons great sums of money in order to and before their admis- sion into their offices of master in chancery," to which ho appointed them. The answer was that the sums of money received were presents — "Reckoned among the ancient and known per- quisites" * * * * "and never before looked upon to be criminal ; " * * * * "that the giving or receiving a present on such occa- sion is not criminal in itself, or by the common law of the realm, and that there is not any act of Parliament whatsoever by which the same is made criminal or subject to any punishment or judgment." Replication that " the charge of high crimes and misdemeanors is true." In the argument it was insisted by the managers that the acts complained of violated the statutes of 5 and 6 Edward VI, chapter 16, against selling offices, and violated the oath prescribed by statute 12 Richard II. (Moor, 781, Stockwith & AVorth.) lint as a question of parliamentary law it was as- serted, and not controverted, that acts may be im- peachable which are not indictable by common law or act of Parliament. Mr. Sergeant Pengelly, May 21, 1725, said : "Your lordships are now exercising a power of judication reserved in the original frame of the Eng- lish constitution for the punishment of offenses of a public nature which may affect the nation, as well in instances where the inferior courts have no power to punishthe crimes committed by the ordinary rules of justice as in cases within the jurisdiction of the courts of Westminster Hall, where the person offending is by his degree raised above the apprehension of dan- ger from a prosecution carried on in the more usual course of justice, and whose exalted station requires the united accusation of all the commons of Great Britain by their representatives in Parliament. "This high jurisdiction may be exercised for the preservation of the rights of the Lords and Commons against the attempts of powerful evil ministers who depend upon the favor of the Crown; or it may be put in execution for the ease and relief of a good prince whose honor has been betrayed by a corrupt servant, and yet whose clemency makes him unwill- ing to punish; so that it becomes necessary for his faithful Commons t.o take into their care the protec- tion of such an offender. " Former reigns havo supplied your journals with many examples of the first kind. The present reign produces an instance of the latter sort, wherein the Commons bring before your lordships in judgment a peer offending with the greatest ingratitude against a most just and most merciful sovereign,-" (6 State Trials, (Hargrave,) 733.) And again it was said: "My lords, if the misdemeanors of which tho earl impeached stands accused were not crimes by the ordinary rules of law in inferior courts, as they have been made out to be, yet they would be offenses of a public nature against tho welfare of the subject and the common good of the kingdom, committed by the highest officer of justice and attended with so great and immediate loss to a multitude of sufferers, and as such they would demand the exerciso of the ex- traordinary jurisdiction vested in yonr judication for the public safety by virtue whereof your lordships can inflict that degree and kind of punishmentwhich no other court can impose." (Page 746; 6 State Trials, (Hargrave,) 477, London, 1777. Same case, 16 How- ell's State Trials, 823; and see 4 Campbell's Lord Chancellors, 536; 15 (sixth N. S.) American Law Re- gister, 266.) He was convicted. Lord Melville was impoached before the Lords in 1806 for that, as treasurer of the navy, he had used the public money for purposes of private gain, prior to and since the statute of June, 1785. (25 George III, chapter 31.) It was conceded that he had properly accounted for all money; thathe had properly paid all demands upon him as treasurer; that itkad oven been down to a certain period — " Irreproachable to those who exercised that office to make use of the public money wnich passed through their hands." (Asperne's Report, 6.) There was no complaint of any public act " against the welfare of the subject or the common good, or subversive of any fundamental principle of govern- ment. He could not, therefore, be impeached unless he was indictable at common law or had violated a statute, to do which is by the common law indict- able. The managers insisted that his conduct was an offense at common law, and since the statute of June, 1785, a violation of that act. (Aspernc's Re- port. 138.) He denied the charges. After hearing evidence questions were put to the judges: 1. Whether money issued trom the exchequer to "misconduct," not necessarily indictable,* not only in England, but in the United States.f the credit of tho treasurer of tho navy in the Bank of England may be lawiullydrawn therefrom by him for the purpose of paying bills actually drawn upon the treasurer, but not yet actually presented; and whether money so drawn may bo deposited with a banker until the payment of such bills, and for the purposo of paying them; or whether such acts are in law a crime or offense. Answer. The judges answered that such drawing and deposit of money were lawful and no crime. 2. Whether moneys issued from the exchequer to the credit of the treasurer of the navy in the Bank of England may be lawfully drawn then from by him to bo ultimately applied to navy services, but in tho meantime and until required for the purpose of being deposited with a private banker in the name and under the control of his (Melville's) privato clerk. Ansioer. The judges answered that if the object of drawing the money from tho Bank of England was to deposit it withaprivate banker it was not lawful, although intended to be and in fact ultimately ap- plied to naval service; but if so deposited bona fide as tho means or supposed means of more conven- iently applying the money to naval services the money may be lawfully drawn. 3. Whether it was lawful for the treasurer, before the statute 25 George III, chapter 31, (and especially as his salary had been augmented by the king's war- rantin full satisfaction of all wages, fees, and profits.) to apply money impressed to him for naval services to any other use whatever, public or private, and whether such application would have been a misde- meanor punishable by information or indictment. The judges answered it was not unlawful, so as?' to constitute a misdemeanor punishable by information or indictment. The form of these questions implies that Melville had not used the public money tor private purposes since the statute of 25 George III, chapter 31, and it was notat common law a misdemeanor to do so prior to the statute. The case was one not calling for any decision of the general question whether an act to be impeach- able must be indictable, nor was any such proposition discussed. The Lords decided he was not guilty. The first charge against Judge Humphreys was for advocating secession in a public speech, December 29, 1860, which was no crime by common or statute law, and yet he was impeached and removed. There was no rebellion then and no "confederate" gov- ernment. (4Cranch, 75; 1 Dallas, 35: 2 Wallace, jr., 139; 2 Bishop, Criminal Law, 1186-1204; 23 Boston Law Reporter, 597, 705; 1 Bishop* 514; Burr's Trial, Coombe's edition, 322. * " On tho 16th of October, 1667, tho House being informed that there have been some innovations of late in trials of men for their lives ami deaths, and in some particular cases restraints havo been put upon juries in the inquiries, this matter is referred to a com- mittee. On the 18th of November this committee aro empowered to receive information against the Lord Chief Justice Kelynge, for any other misdemeanors besides those concerning juries; and on the 11th of December, 1667, this committee report several resolu- tions against the Lord Chief Justice Kelynge, of ille- gal and arbitrary proceedings in his office. The first of these resolutions is that the proceedings of tho Lord Chief Justice^ in the cases now reported are innovations in the trial of men for their lives and liber- ties; and that he hath used an arbitrary and illegal power, which is of dangerous consequence to the lives and liberties of the people of England, and tends to the introducing of an arbitrary Government. The Lord Chief Justice hath undervalued, vilified, and contemned Magna Charta, the great preserver ot our lives, freedom, and property." (4 Hats el Prec, 113. cited 2 Chase's Trial. 461.) One of the resolves against Chief Justice Scroggs was, " That the discharging the grand jury by the Court of King's Bench in Trinity term last before they had finished their presentments was illegal, arbitrary, and a high misdemeanor." (4Hatsel, 127; 7 State Trials, 479.) "Misprisions which are merely positive are gene- rally denominated contempts or high misdemeanors, of which — " 1. Tliefirstandprincipalisthemaladministration of such high offices as arc in public trust and employ- ment. This is usually punished by the method of parliamentary impeachment." (4 Blackstone, 121.) t In Senate, July 8, 1797, it was " Resolved, That William Blount, esq., one of the Senators of the United States, having been guilty of a high misde- meanor, entirely inconsistent with his public trust and duty as a Senator, bo,and lie hereby is. expelled from the Senate of the United States." (Wharton's State Trials, 202.) He was not guilty of an indictable crime. (Story on the Constitution, sec. 799, note.) The offense charged. Judge Story remarks, "was not defined by any statute of the United States. It was an attempt to scducea United States Indian in- terpreter lrom his duty; and to alienate the affections and conduct of the Indians from the public officers residing among them." Blackstone says: "The fourth species of offenso more immediately against the king and Government aro entitled misprisions and contempts. Misprisions are, in the acceptation of our law, generally under- stood to be all such high offenses as are under tho degree ot capital, but nearly bordering thereon." * "Misprisions which arc merely positive are generally denominated contempts or high misdemeanors, of which the first and principal is the maladministration of suoh high offices as are in 44 SUPPLEMENT TO Demeanor is conduct, and he is guilty of mis- demeanor who misdemeans or misconducts. The power of impeachment, so far as the Pres- ident is concerned, was inserted in the Consti- tution to secure "good behavior," to punish 11 misconduct," to defend " the community against the incapacity, negligence, or perfidy of the Chief Magistrate," to punish " abuse of power," " treachery," " corrupting his elect- ors ;" or, as Madison declared, *' for any act which might be called a misdemeanor. ' ' * And public trust and employment. This is usually pun- ished by the method of parliamentary impeachment." (Vol. 4, p. 121.) (See Prescott's Trial, Massachusetts, 1821, pp. 79-80, 109, 117-20, 172-180, 191.) On Chase's Trial the defense conceded that "to misbehave or to misdemcan is precisely the same." (2 Chase's Trial, 145.) * From 2 Madison's Papers, 1153, &c. July 20, 1787. The following clause, relative to the President, being under consideration : "To be removable on impeachment and conviction for malpractice or neglect of duty. "Mr. Pincknoy moved to strike this out, and said, ' He ought not to be impeachable while in office' "Mr. Darce. If he be not impeachable while in office he will spara no efforts or moans whatever to get himself reelected. He considered this as an es- sential security for the good behaviob of the Exec- utive. "Mr. Wilson concurred. "Mr. Gouverncur Morris. He can do no criminal act without coadjutors, who may be punished. In case he should bo reelected that will he a sufficient !roof of his innocence. Besides, who is to impeach ? s the impeachment to suspend his functions ? If it is not the mischief will go on. " Colonel Mason. No point is of more importance than that the right of impeachment should be con- tinued. Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice? "Dr. Franklin was for retaining the clause as favorable to the Executive. History furnishes ono example only of a First Magistrate brought to public justice. Everybody cried out against this as uncon- stitutional. What was the practice before this in cases where the Chief Magistrate rendered himself obnoxious? Why, recourse was had to assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal where he should be unjustly accused. "G. Morris admits corruption and some few other offenses to be such as ought to be impeachable, but thought the cases ought to beenumerated and denned. " Mr. Madison thought it indispensable that some provision should be made for defending the com- munity against the incapacity, negligence^ or perfidy of the Chief Magistrate. The limitation of the period of his service was not a sufficient security, lie might lose his capacity after his appointment, lie might pervert his administration into a scheme of peculation or oppression. He might botray his trust to foreign Powers. * * * Incase of the Executive Magistrate, which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic. "Mr. Gerry urged the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the Chief Magistrate could do no wrong. # * # « * ***** "Mr. Randolph. The propriety of impeachments was a favorite principle with him. Guilt, wherever found, ought to bo punished. The Executive will have great opportunities of abusing his power, par- ticularly in time of war. "Gk Morris. The Executive ought to be impeach- able for treachery. Corrupting his electors and incapacity wore other causes of impeachment. For the latterhc should be punished notas a man, but as an officer, and punished only by degradation from his office. " The proposition was agreed to by a vote of eight States to two." September 8, 1787. (From 3 Madison's Papers, 1528.) "The clause referring to the Senate the trial of impeachment against the President for treason and bribery was taken up. " Colonel Mason. Why is the provision restrained to treason and bribery? Treason, as defined in the Constitution, will not reach many great and danger- ous offenses. Hastings is not guilty of treason. At- tempts to subvert the Constitution may not be trea- son as above defined. As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of im- peachments. "He moved to add after 'bribery' or 'maladmin- istration.' "Mr. Madison. So vague a term will be equiva- lent to a tenure during the pleasure of the Senate. "Colonel Mason withdrew 'maladministration' and substituted * other high crimes and misdemean- ors against the State.' "Agreed to, eight States to three. "Mr. Madison objected to thetrialof the President Mr. Madison afterward maintained that "the wanton removal of meritorious officers would subject him (the President) to impeachment, and removal from his own high trust."* The Constitution declares that "the judges, both of the Supreme and inferior courts, shall hold their commissions during good beha- vior." f By a public law every judge ia required to take an oath as follows : "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties in- cumbenton mo as judge, &c, according to the best of my abilities and understanding, agreeably to the Con- stitution and laws pf the United States. So help me God."t By another public law — the Constitution — the President is required to take an oath that he will "faithfully execute the office of Presi- dent of the United States, and will to the best of his ability preserve, protect, and defend the Constitution of the United States.' * These oaths are public laws defining duties, and a violation of them is an impeachable mis- demeanor, for Judge Blackstone says : " A crime or misdemeanor is an act committed, ©r omitted in violation of apublic law, either forbidding or commanding it."|| The Constitution contains inherent evidence, by the Senate, especially as he was to be impeached by the other branch of the Legislature; and for any act which might be called a misdemeanor. ThePrcs- ident, under these circumstances, was made improp- erly dependent. He wouldpreferthoSupremeCourt for the trial of impeachments." * * * * " Mr. Williamson thought there was more danger of too much lenity than of too much rigor." The subject of impeachment will also be found re- ferred to under the following dates in 1787, to wit: May 28, June 2, Juno 18, July 18, August 6, August 20, August 22, September 4, and September 17. The propositions submitted declared officers impeachable " for mal and corrupt conduct," " for treason, bribery, or corruption," "for treason or bribery." But the Constitution finally rejected all these limitations, and gave the largest power of impeachment known to parliamentary law so far as it relates to misde- meanors. * On the 16th June, 1789, en the bill to establish a Department of Foreign Affairs, Mr. Madison said in Congress: "Perhaps the grcatdanger" * # * * "of abuse in the executive power lies in the im- proper continuance of bad men in ofiice. But the power we contend for will not enable him to do this; for if an unworthy man be continued in office by an unworthy President, the House of Representatives can at any time impeach him, and the Senate can remove him whether the President chooses or not. The danger then censists merely in this: the Presi- dent can displace from office a man whose merits re- quire that he should be continued in it. What will be the motives which the President can feel for such abuse of his power and the restraints that operate to prevent it? In the first place, ho will be impeach- able by the House before the Senate for such an act of maladministration ; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust." (4 Eliot's Debates, 380.) t A statute of Henry VIII, providing for the ap- pointment of a. curt 09 rotulorum and clerk of the peace for the several counties of England, provides that the euntos shall hold his ofiice until - removed, and the clerk of the peace durante se bene gesserit. It recites that ignorant persons had got in by unfair means. And so is tho tenure of judges in England by the Declaration of Right. The tenure durante, d?c, was introduced to enable a removal to bo made for mis- behavior— (2 Chase's Trial, 337.) By act of 13 Wil- liam 3, c. 2, s. 3, tho commission of every judge runs " quamdiu se bene gcsscrit."—{2 Chase's Trial, 255, 336, 342, 386.) See p. 145 Peck's Trial, 427. where Buch- anan said: "Judges hold during good behavior — official misbehavior is impeachable. What is mis- behavior? We ore bound to prove that tho respond- ent has violated the Constitution or somo known law of the land. This was the principlo deduced from Chase's Trial in opposition to the principle" * * * * " that in order to render an officer impeach- able ho must be indictable." t Act of September 24, 1789,1 Stat. 76; Chase's Trial, 402. fl " At common law an ordinary violation of a public statute, even by one not in ofiice, though I ho statute in terms provides no punishment, is- an indictablo misdemeanor." (Bishop's MS. letter to a member of the Judiciary Committee, citing 1 Bishop Cr. Law, 3d ed., 187,535.) Tho term '* misdemeanor" covers every act of " mis- behavior," in the popular sense. "Misdemeanor in office and misbehavior in office mean the same thing," (7 Dane's Abridgement, 365.) Misbehavior, therefore, which is mere negation of "good behavior," is an ex press limitation of the office of a judge. (See North American Review for Octo- ber, 1862.) Alexander Hamilton, in discussing the judicial "tenure of good behavior," and the remedy in cases therefore, that as to judges they should be im- peaehablewhen their behavior is notgood— and the Senate are made the exclusive judges of what is bad behavior. The words "good behavior' are borrowed from the English laws and have been-construed there in a way to enlarge the scope of impeach- ment to a wide range. They were first intro- duced into an English statute to procure the removal of officers who, on trial, might prove too ignorant to perform their duties. These general views are sustained by the opinions of the framers of the Constitution, declared by themselves in convention, by Mad- son* in the Virginia convention of 1788, and by Alexander Hamiltonf in the Federalist, of "judiciary encroachments on the legislative au- thority" by pronouncing laws unconstitutional, says : "It may, in the last place, bo observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is. in reality, a phantom. Par- ticular misconstructions and contraventions of the will of the Legislature may now and then happen, but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect tho order of the political system. This may be in- ferred with certainty, from the general nature of the judicial power; from the objects to which it relates; from the manner in which it is exercised; from its comparative weakness; and from its total incapacity to support its usurpations by force. And the infer* ence is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legisla- tive body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone acomplete secu- rity. There never can be danger that the judges, by a series of deliberate usurpations on the authority of tho Legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the power to punish them for their pre- sumption by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argu- ment for constituting the Senate a court for the trial of impeachment." (Federalist, No. 81.) Impeachment is not merely nor necessarily pum- tive only, but it may, and often must be, protective. The safety of the public may demand its exercise in cases where there has been no intentional wrong but only a mistake of judgment. The Republic cannot bo suffered to perish or its great interests to be put in peril from any tender regard for individual feel- ings or errors, And Thomas Jefferson evidently held that judges were impeachable for assumptions of power. (Let- ter to Mr. Jarvis, September 28, 1820; and see Jack- son's veto message on the bank bill.) *"Were the President to commit anything so atrocious as to summon only a few States (to con- sider a treaty) he would be impeached and convicted, as a majority of the States wouldbe affected by Ms mis- demeanor, ," And again: " Mr. Madison, adverting to Mr. Mason's objection to the President's power of pardoning, said it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate, because numerous bodies were actuated more or less by passion, and might, in the moment of vengeance, forget humanity. It was an estab- lished practice in Massachusetts for the Legislature to determine in such cases. ' ' It was found, says he, that two different sessions, before each of which the question came, with respect to pardoning the delinquents of the rebellion, were governed precisely by different sentiments — the one would,. execute with universal vengeance and the other would extend general mercy. "There is one security in this case to which gen- tlemen may not have adverted: if the President be connected in any suspicious manner with any per- sons, and there be grounds to believe ho will shelter himself, tho House of Representatives can impeach him; thcy_ can remove him if found guilty; they can suspend him when suspected, and the power will de- volve on the Vice President. Should he bo suspected also ho may, likewise, be suspended till be be im- ncached and removed, and the Legislature shall make a temporary appointment. This is a great security." (Debates of the Virginia Convention, printed at the Enquirer Press for Richey, Worsley & Augustine Davis, 1803, pp. 353-4; 11 Howell, statute seven, 733.) tin the Federalist, No 65. he says : "The subject of its jurisdiction aro those crfFcnses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may. with peculiar propriety, be denominated political, as they relate chiefly to injuries dono immediately*- to the society itself." "What," it may be asked, "is the true spiritof the institution itself? Is it not designed as a method of national inquest into tho conduct of public men? If this bo the design of it who can so propcrlvbo the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that tho power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in ono branch of the legislative body; will not the reasons which iudicate tho proprioty of this arrange- "THE CONGRESSIONAL GLOBE. 45 who says that " several of the State constitu- tions have followed the example" of Great Britain. And up to that time the State con- stitutions had adopted the British system with only some modifications, but none of them recognizing the idea that impeachment was limited to indictable acts, but all affirming •'that the subjects of this jurisdiction were offenses of a rjolitical nature."* Some of these constitutions limited impeachment to 41 mal and corrupt conduct in office," or, as in the New York constitution of 1777, to " venal and corrupt conduct ia office/' while the Con- stitution of the United States discarded all these limitations and gave the power in the broadest terms. It is said this provision in the Constitution of the United States was copied from that of New York.f If so, the change of phraseology is significant. These general views are supported by the elementary writers, without exception, up to the last year. Curtis, in his History of the Constitution, J says: ** Although an impeachment may involve an in- quiry, whether a crime against any positive law lias been committed, yet it is not necessarily a trial for crime, nor is there any necessity, in tho caseof crimes committed by public officers, for the institution of any special proceeding for the infliction of the pun- ishment prescribed by the laws, since they, like all other persons, are amenable to the ordinary jurisdic- tion of the courts of justice, in respect of offenses ment strongly plead for an admission of the other branch of that body to a shara of the inquiry? The model from which the idea of this institution has been borrowed pointed outthat course to theconven- tion. Ia Great Britain itis the province of the House of Commons to prefer the impeachment and of the House of Lords to decide upon it. Several of tho State constitutions have followed the example. As well the latter as the former seem to have regarded the practice of impeachmonts us a bridle in the hands of the legislative body upon the executive servants of the Government. Is not this the true light in which it is to be regarded." To what extent this writer contemplated the exer- tion of this power is not left in doubt. In the succeed- ing number of the same commentary ho observes; "The convention might with propriety have medi- tated the punishment of tho Executive for a devia- tion from tho instructions of tho Senatoor a wantof integrity in the conduct of the negotiations commit- ted to him," clearly not statutory offenses. *Thus, in that of Virginia, established in 1776, is seen this provision: "The Governor, when heis out of office, aud others offending against the State, oithcr by maladministration, corruption, or other means, shall bo impeachable by the Houso of Delegates." In the same year, in the succeeding month, Delaware provided in her constitution that "the President when he is out of office, and eighteen months there- after, and all others offending against the State, either by maladministration, corruption, or other means, by which the safety of the Commonwealth may be endangered, shall be impeachable by the House of Assembly." So North Carolina two months later provided in her constitution : " The Governor and other officers offending against the State by violating any part of this constitution, maladminis- tration, or corruption may be prosecuted on tho im- peachment of the General Assembly, or presentment of the grand jury of any ooartof supreme jurisdiction in this State." The constitution of Connecticut is stated to contain a provision "to call to account for any misdemeanor and maladministration." That of New York pro- vides: "The power of impeaching all officers of the State for mal and corrupt conduct in their respective offices is vested in the representatives of the people in Assembly," and the trial is declared to bo for "crimes and misdemeanors." So, in the elaborate constitution of Massachusetts, the eighth article de- clares: "The Senate shall be a court with full au- thority to hear and determine all impeachments made by the House of Representatives against any officer or officers of the Commonwealth for misconduct and maladministration in their offices." Hence, it will be remarked, that in all of the State constitutions to which we have had access, formed prior to that of the United States, the impeachable offenses are of a nature which may with peculiar propriety be denom- inated " political." Ia neither of them are the sub- jects of impeachment mere "statutory offenses." This minute recurrence to the constitutions of several States will not be deemed inappropriate when it is remembered that they are no t only the most authentic evidence of the public sense of our country at an early period, but because, in the formation of the Federal Constitution, their provisions should have a con- trolling influence on the minds of their delegates to tho general convention, seeking to commend it to theiradoption by ingrafting into it parts of their own systems, and thus imparting to it the well-ascertained spirit and prudence of those who, if adopted, were to be its constituents." (From an able article by John C. Hamilton, Esq.) tVol. 6 Am. Law Reg. N. S. 277 J Wharton's- State Trials, 287. X Curtis's Hist, of Const. 200-1; 5 Eliot, 507-529. against positive law. The purposes of an impeachment lie wholly beyond the penalties of the statute or the cus- tomary law. The object of the proceeding is to ascer- tain whether cause exists for removing a public officer from office. Such a causo may be found in tho fact, that either in the discharge of his office, or aside from its functions, he has violated a law, or com- mitted what is technically denominated a crime. But a cause for removal from office may exist where no offense against positive law has been committed, as whero the individual has from immorality* or imbecility, or maladministration become unfit to exer- cise the office. The rules by which an impeachment is to bo dcterminod are theraforo peculiar, and are not fully embraced by those principles or provis- ions of law which courts of ordinary jurisdiction are required to administer." Selden says: "Upon complaints and accusations of the Com- mons tho Lords may proceed in judgmentagainstthe delinquent of what degree soever and what nature soever the offense be. For whero the Commons com- plain tho Lords do not assume to themselves trial at common law. Neithordo the Lords, at tho trial of a common impeachment by the Commons, deeedere de jure sua, (depart from their oton law.) For tho Commons are there instead of a jury, and the par- ties answer, andexamination of witnesses are to bo in their prcsonce, or they to have copies thereof; and judgment is not to bo given but upon their demand, which is instead of a verdict, so tho Lords do only judge, not try the delinquent/' (Selden's Judicature in Parliaments, London, 1681, p. 6.) Story says:* " Congress have unhesitatingly adopted tho con- clusion that no previous statute is necessary to au- thorize an impeachmentfor any official misconduct." * * * * "In the few, cases of impeach- ment which havo hitherto been tried ho one of tho charges has rested upon any statutable misdeinean- " The reasoning by which the power of the House of Representatives to punish for contempts (which are breaches of privilege and offenses not defined by any positivo laws) has been upheld by tho Supremo Court, stands upon similar grounds; for if the House had no jurisdiction to punish forcontempts until the acts had been previously defined and ascertained by positive law, it is clear that the process of arrest would be illegal." (Venn vs. Anderson, 6 Wheat., 204.) "In oxamining tho parliamentary history of im- peachments, it will be found that many offenses not easily definable by law, and many of a purely politi- cal character, have been deemed high crimes and misdemeanors worthy ol this extraordinaryremcdy."t "There are many offenses, purely political, which have been held to be within the reach of parlia- mentary impeachments, not one of which is, in the slightest manner, alluded to in our statute-books. And, indeed, political offenses aro of so various and complex a character, so utterly incapable of being defined or classified, that the task of positivo legis- lation would bo impracticable, if it were not almost absurd to attempt it. What, for instance, could positive legislation do in cases of impeachment like the charges against Warren Hastings, in 1788? Re- sort then must be had either to parliamentary prac- tice, and the common law, in order to ascertain what are high crimes and misdemeanors, or tho whole subject must bo left to the arbitrarydiscretion of the Senate for the time being. The latter is so incom- patible with the genius of our institutions that no lawyer or stateman would be inclined to counte- nance so absolute adepotism of opinion and practice, which might make that a crime at one time or in one person, which would be deemed innocent at another time or in another person. The only safe guide in such cases must be the common law." * * * * "Andhowevermuchitmay fallin with the political theoriesof certain statesmen and jurists to deny the existence of a common law belonging to and applicable to the nation in ordinary cases, no one has as yet been bold enough to assert that tho power of impeachment is limited to offenses positively defined in the statute-book of the Union, as impeach- able high crimes and misdemeanors."! •1 Story on Const., sec. 799. In a note he says: "It may be supposed that the first charge in the articles of impeachment against William Blount was a stat- utable offense; but on an accurate examination of tho act of Congress of 1796, it will be found not to have been so." tl Story an Const., .seo. ; numerous cases. Ho proceeds to cite 11 Story on Const., sec. 797. Rawle, in his work on the Constitution, says: M The delegation of important trusts affecting the higher interests of society is always from various causes liable to abuse. The fondness frequently felt for the inordinate extension of power, the influence of party and of prejudice, the seductions of foreign States, or the baser appetite for illegitimate emoluments, aro sometimes productions of what are not inaptly termed political offenses, (Federalist, No. 65,) which it would bedifficulttotakecognizanceof in the ordi- nary course of judicial proceeding. " The in volutions and varieties of vice are too many and too artful to be anticipated by positive law." (Rawle on Const™. 200.) "In general, those offenses which may be com- mitted equally by a private person as by a publio officer are not the subjects of impeachment." (lb., 204.) " Wo may perceive in thisschemo one useful mode of removing from office him who is unworthy to fill it, in eases where the people and sometimes tho Pres- Neither in Congress nor in any State has any statute been proposed to define impeach- able crimes : so uniform has been the opinion that none was necessary, even in those States, few in number, where common-law crimes do not exist. The assertion, "that* unless the crimj? is specifically named in the Constitution, im- peachments, like indictments, can only be in- stituted for crimes committed against the statu- tory law of the United States," is a view not yet a year old, which has not been held at any prior time, either in England or America. It would certainly seem clear that impeach- ments are not necessarily limited to acts in- dictable by statute or common law, and that it would be impossible for human prescience or foresight to define in advance by statute the necessary subjects of impeachments. The Constitution contemplated no such absurd im- possibility. It may be said there is danger in leaving to the Senate a power so undefined. It was because of this danger that the power has been limited as it is by the Constitution, and experience has shown that the limitations are more than sufficient. The whole system of common-law crimes, as it exists in England, and in almost every State of the Union, is the result of a judicial power equally undefined. The system of impeachment is to be governed by great general principles of right, and it is less probable that the Senate will depart from these, than that the whole Legislature would in the enactment of a law, or than caurts in estab- lishing the common law.f ident himself would be unablo to accomplish that object." (lb., 208.) Chancellor Kent, in discussing the subject of im- Eeachuient, says: "The Constitution has rendered im [the President] directly amenable by law for maladministration. Tho inviolability of any officer of the Government is incompatible with the repub- lican theory as well as with the principles of retribu- tive justice, "If the President will use the authority of his sta- tion to violate the Constitution or law of tho land, tho House of Rcpresontatives can arrest him in his career by resorting to the power of impeachment." (1 Kent's Com., 289.) * Vol. 6 Am. Law Reg., N. S., 269. f Tho Constitution has made the Senate, like tho House of Lords, sole judge of what the lawis, assum- ing their wisdom to be equal to that of the common law courts. (2 Halo's P. C, 276; Barclay's Digest,140; Constitution, article one, section three.) This is ne- cessarily so ; for though some statutory and common law crimes are impeachable, yet not all of them arc, and the Senate decides which are and are not. It is said if the impeachable crimes are not defined bylaw the power of impeachment will be undefined nnd dangerous. Tho power to determine impeachable crimes by the Scnato is no more undefined than the power of the common law courts to determine com- mon-law crimes. Impeachment is regulated by prin- ciples as well defined and permanently settled as the fundamental and eternal doctrines of right, reason, and justiee pervading the parliamentary jurispru- dence of civilized nations, and, like the common law, it has emerged from primeval errors and adapted itselfto an advanced civilization. Thedaugerof im- periling the safety of nations in measuring parlia- mentary law by the rule which defines wrongs to in- dividuals is infinitely greater than the evils which can flow from recognizing the law of impeachment as a parliamentary system resting upon its own solid foundations. The-rule which allows impeachments for indictable acts enables tholegislativedepartmentorthe Senate alone to declare trivial offenses impeachable while the parliamentary law limiting impeachable offenses to misdemeanors affecting the nation is less latitudin- arian and attended with less danger of abuse. When impeachment is employed to remove officers for will- ful violation of the Constitution or laws, for exercis- ing the powers of Congress, or the judiciary for per- forming acts affecting tho nation unauthorized by law, for refusing tp execute laws requiring that duty, for a perversion of lawful powers to accomplish un- conshtutional.objects — these are — "Offenses as tangible and as capable of being measured by fixed rules as any felony defined iu criminal laws." And this is as definite and no less latitudinarian than the common law itself, which is "tho perfec- tion of reason" as determined by courts. For even in England not all common-law offenses are impeach- able, but only such of them (along with others not indictable) as by parliamentary usage or popular sense rise to the dignity of "high" misdemeanors, and of this .the House of fcords arc the sole judges. (Peek's Trial, 10 Selden, Judicature in Parliaments. 0; 2 Hale's P. C, 275; Barclay's Digest. 140.) On the trial of Judge Prcscott, in Massachusetts, in 1821, Mr. Shaw said : " The security of our rights depends rather upon the general tenor and charac- ter than upon particular provisions of our Coustitu- 46 SUPPLEMENT TO The Constitution contains inherent evidence that the indictable character of an act does not define its impeachable quality. It enumerates the classes of cases in which legislative power may be exercised, and it defines the class of persons and cases to which the judicial power extends ; but there is no such enumeration of impeachable cases, though there is of persons. In England and some of the States the power of removal of officers by the Execu- tive, on the address or request of the Legisla- ture,* exists, but the Constitution made no provision for this as to any officer, manifestly because the power of impeachment extended to every proper case for removal. As to the President and Vice President there is this provision, that — "Congress may by law provide for the case of removal, death, resignation, or inability," * * * * "declaring what officer shall then act" * * * * "until the disability be removed or a Pres- ident shall be elected." (Art. 2, sec. 1.) It has already been shown that the framers of the Constitution regarded the power of im- peachment as a means of defending " the com- munity against the incapacity" of officers. This clause of the Constitution recognized the same view, article two, section one : "Congress may by law provide forthe case of" * * * • "inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed or a President shall be elected.' ' This and the power of impeachment are the only modes of getting rid of officers whose inability from insanity or otherwise renders them unfit to hold office, and whose every offi- cial act will necessarily be misdemeanor. As to the President and Vice President it was necessary to give Congress the power to des- ignate a successor, and so do determine the disability. As to all other officers the Consti- tution or laws define the mode of designating a successor, and it is left to the impeaching power to remove in cases of insanity or mis- demeanor arising from that or other cause. It cannot be supposed the whole nation must suffer without remedy if the whole Supreme Court or other officers should become utterly disabled from the performance of their duties. Such an occurrence is within the range of pos- sibility, if not probability. In our system it is utterly impossible to apply any test of common law or statutory criminality. The Supreme Court, without much considera- tion, has determined that the national courts have never been clothed with jurisdiction of common-law crimes.f tion. The love of freedom and justice so deeply engraven upon the hearts of the people and inter- woven in the whole texture of our social institutions, a thorough and intelligent acquaintance with their rights, and a firm determination to maintain them; in short, those moral and intellectual qualities with- outwhich social liberty cannot exist, and overwhioh despotism can obtain no control, those stump the character and give security to the rights of the free people of this Commonwealth." * * * * "But it has not been, and it cannot be, contended that, in its decisions and adjudications, this court is not governed by established laws. Thcso may be positive and express, or they may depend upon rea- soning and analogy. It would be idle to expect a rule applicable to every case in the text of the stat- ute-book. Laws are founded on certain general principles and the relations of men in society. It is the province of this court, as of all other judicial tribunals, to search out and apply these principles to the particular cases in judgment before them." (See 4 Howard's State Trials, 47, per Soldcn ; 6 Am. Law Reg., N. S., 264.) * Removal on the address of both Houses of Parlia- ment is provided for in the act of settlement, 3 Hal- lam, 262. In the convention which framed our na- tional Constitution, June 2, 1787, Mr. John Dickin- son, of Delaware, moved "That the Executivo be made removable hy the national Legislature on the request of a majority of the Legislatures of individual States." Delaware alone voted for this, and it was rejected. Impeachment was deemed sufficiently com- prehensive to cover every proper case for removal. t Tliereasonwliieh denies jurisdiction of common-law crimes to the courts of the United States docs not apply to impeachments. By the Constitution the trisil for crimes must be had in the State and district where committed. (Ar- ticle 6 Amendments.) By the judiciary act of Sep- tember 24, 1789, the Supremo Court is restricted to holdingscssions at Washington. (IStatutes-at-Large. 73.) By the Constitution the judioial power of the When the Constitution was adopted all the States recognized common-law crimes, and those added since do so, with few exceptions. But there is something peculiar to each and different from all others in its common-law crimes, growing out of the rulings of judges or its condition, and- in all statutes have made changes, so that no two States recognize the same crimes. The Constitution authorizes Congress 'J to provide for the punishment of counterfeiting the securities and current coin of the United States;" "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;" but nowhere declares they may define impeachable crimes, for the very good reason that common parlia- mentary law, subject, like the common law, to be molded to circumstances and adapted to times, had already sufficiently defined them. Congress cannot by any law abridge the right of the House to impeach or the Senate to try. When the Constitution confers on the House the "sole power of impeachment," and on the Senate "the sole power of trial," these are independent powers, not to be controlled by the joint opinion of the two Houses previously incorporated into a law.* Suppose such a law passed. It cannot be repealed over a veto except by a two-thirds vote in each House. Yet a majority may impeach; and, after the veto of a repealing law, can that majority be denied the constitutional privilege conferred on them ? "Treason, bribery, and other high crimes and misdemeanors " are, of course, impeach- able. Treason and bribery are specifically named. But "other high crimes and misde- meanors" are just as fully comprehended as though each was specified. The Senate is made the sole judge of what they are. There is no revising court. The Senate determines United States is vested in the Supreme Court and such inferior courts as Congress may establish. (Arti- cle 3, section 1 ; article 1, section 10.) It was held as early as 1812 that the circuit and dis- trict courts of the United States, being the " inferior courts" established by Congress, could exercise no common-law criminal jurisdiction. This doctrine was reaffirmed in 1816 by a divided court, and has never been authoritatively decided since. (United States vs. Hudson, 7 Cranch, 32; United States vs. Corlidge, 1 Whcaton, 415; 1 Galli's Reports, 488; United States vs. Lancaster, 2 McLean 's Reports. 431 ; Washington Circuit Court Reports, 84; United States vs. Ravara, 2 Dallas, 297 ; United States vs. Worrall, 2 Dallas, 384; United States vs. Maurice, 2 Brock., 96; United States vs. New Bedford Bridge, 1 Wood- bridge & Minot. 401 ; United States vs. Babeock, 4 McLean, 113-115.) This ruling has been disapproved by the ablest commentators on constitutional and criminal law — by Story and Rawle and Bishop and Wharton. (1 Bishop's Criminal Law, third edition, 163, [20;] act of Congress of September 24, 1789, sections 9-11; Statutes 1842, chapter 188, section 3; Du Ponceau on Jurisdiction.) The denial of common-law criminal jurisdiction in these inferior courts rests solely on the reasons that such tribunals being created not by the Constitution, but by act of Congress, they — " Possess no jurisdiction but what is given them by the power that creates them ;" and that — "There exists no definite criterion of distribution [of jurisdiction] between the district and circuit courts of the same distriot." And that common law — "Jurisdiction has not been conferred by any legis- lative act." And it is said that the Supreme Court alone — "Possesses jurisdiction derived immediately from the Constitution, and of which tho legislative power cannot deprive it." (7 Cranch, 33.) Where, therefore, a common-law jurisdiction is conferred by the Constitution on a court created by thatinstrument.it is one "of which the legislative power cannot deprive it." (7 Cranch, 33.) And this is precisely what the Constitution has done as to impeachments; it has created the tribu- nal for their trial — the Senate; it has given that body jurisdiction of all "crimes and misdemeanors" im- peachable by parliamentary usago, and no law can limit it. And this viow has been sustained by Story and Rawle and Kent, after and in view of the de- cisions referred to. (6 American Law Register, 656.) At the time the Constitution was adopted, and ever since in England and all tho original States of the Union, what is known as tho "common law" and " common-law crimes" existed, and yet exist, in ad- dition to crimes defined by statute; and this is so in all the States except Ohio, and perhaps two or three others. *"The Parliament oannot by auy act restrain the power of a subsequent Parliament." (4 Inst., 42; 5 Com. Dig., 301.) in the light of parliamentary law. Congress cannot define or limit by law that which the Constitution defines in two cases by enumera- tion and in others by classification, ana ot which the Senate is sole judge.* It has never been pretended that treason and bribery would not be impeachable if not made criminal by statute or so recognized by national common law. They are impeachable because enumer- ated. Other high crimes and misdemeanors are equally designated by classification. Suppose the Constitution had declared "that all persons committing 'treason, bribery, or other high crimes and misdemeanors' shall be punished by indictment in the courts of the United States," can it be doubted that every crime and misdemeanor recognized by the com- mon law would be the subject of indictment? "This would be by force of the Constitution employing the words crimes and misdemeanors ; for these are words known to the common law, and it is a universal principle of interpretation, acted on in all the courts, that a common-law term employed in conferring jurisdiction on courts is to bear its common-law meaning." Now, when the Constitution says that all civil officers shall be removable on impeach- ment for high crimes and misdemeanors, and the Senate shall have the sole power of trial, the jurisdiction is conferred, and its scope is defined by common parliamentary law.f The national courts do not take jurisdiction of common-law crimes, not because common- law crimes do not exist, but because their jurisdiction is only such as is expressly con- ferred on them, and no statute has conferred the jurisdiction. But in the District of Colum- bia, under national jurisdiction, common-law crimes and jurisdiction of them in the courts do exist. J In addition to this there are crimes exclu- sively of national jurisdiction and others ex- clusively of State cognizance. The murder of citizens in a State is not and cannot be made criminal by act of Congress where it is not per- petrated in the denial of a national right. The States alone provide for this and many other offenses. And in the States not recognizing *" The peers are judges of law as well as of fact." (2 Halo's P. C, 275; Barclay's Digest. 140.) They, therefore, are not governed by the indictable char- acter of an act. In fact, as the highest court, they make not only parliamentary law, but the law for the courts. (Rcgina vs. 0'Conn«ll.) t Impeachable misdemeanors arc determined by the Senate just as each House of Congress and tho courts having the jurisdiction to punish for contempts determine what acts or neglect constitute them. (7 Cranch, 320.) + " Common-law crimes do exist, they are indictable, and jurisdiction of them has existed in the courts of the United States for two thirds of a century in the District of Columbia." (1 Bishop on Criminal Law. section 167. [22:] Du Ponceau on Jurisdiction. 62-73; Kendall vs. United States, 12 Peters, 524-613 ; United Stats vs. Watkins, 3 Cranch, 441.) The highest authority on criminal law in this country says: "There must in reason and in legal principle be in those localities where State power is unknown com- mon-law crimes against the United States. Espe- cially this exception must in reason extend to all matters which concern our intercourse with foreign as well as to all local transactions beyond the terri- torial limits of tho several States. The law of na- tions and the law of the admiralty concerning both civil and criminal things would seem, therefore, to have been made United States common law." * * * * "And so the United States tribunal would appear to have common law cognizanco of offenses upon the high seas not defined by statutes, and of all other offenses within the proper cogni- zance of the criminal courts of a nation, committed beyond tho jurisdiction of any particular State." (1 Bishop on Criminal Law, section 165. [21.]) Tho act of Congress of February 27, 1801, extended and continued in force over tho District tho com- mon and statute law of Maryland, where common-law crimes existed, and organized a circuit court with the jurisdiction conferred on circuit courts of tho United States by section eleven of the act of Febru- ary 13, 1801. (2 United States Statutes-at-Largc, 92; 2 Statutes, 103-105, sections 1-3.) The criminal court organized by act of July 7, 1838, had the same criminal jurisdiction. (5 Statutes, 306.) The supremo court of the District, organized by act ot March 3, 18b3, has the same jurisdiction of tho prior courts thereby abolished. (12 Statutes, section 3.) I hat jurisdiction is conferred in these words: "That" • * * * "said courts" » 'shall have cognizance of all crimes rmzablo under the authority of the (2 Statutes, 92, act February 13, 1801.) and oflenses cognizable under the authority of the United States. " w At.,tnf nD o-> on »uj ia imi \ THE CONGRESSIONAL GLOBE. 47 common-law crimes they may omit to make homicide a penal offense as to Indians, ne- groes, or others, if the Legislature so determ- ine, in the absence of a law of Congress sim- ilar to the " civil rights" act.* If no act is impeachable which is not made criminal, then its criminality must depend — 1. On an act of Congress defining crimes; or, 2. On acts of State Legislatures defining crimes ; of, 3. On the definition of common-law crimes in the States ; or, 4. On the common-law crimes existing in England when the Constitution was adopted. It is quite clear that national law in some form must control it, since ' ' the United States have no concern with any but their own laws." t The national Government is complete in itself, with powers which neither depend on nor can be abridged by State laws. J. If, then, impeachment is limited to acts made criminal by a statute of Congress, an officer of the United States cannot be impeached, though he should go into the " Dominion of Canada" or the "republic of Mexico" and there stir up insurrection or be guilty of violating all the laws of the land ; or if he should go into a State and violate all of its laws. || If so, a high- way robber may be President, and he is exempt from impeachment I It is not possible that a position so mon- strous was intended by the framers of the Con- stitution. Nor can the criminal statutes or common law of the States limit or regulate national impeachable offenses. The fact that each State differs from all others in its laws renders this impossible. It never could have been designed to control the national power of impeachment by State laws, ever varying and conflicting as they are. J *Aot of April 9, 1866, 14 Stat., 27. t "It was said by one of the counsel that tho offense must be a breach either of the common law, a State law, or a law of the United States, and that no lawyer could speak of a misdemeanor but as an act violating some one of these laws. This doctrine surely is not warranted, for the Government of the United States have no concern with any but their own laws." ****** B u t as a me mber of tho House of Representatives, and acting as a man- ager of an impeachment before the highest court in the nation, appointed to try the highest officers of the Government, when I speak of a misdemeanor I mean an act of official misconduct, a violation of official duty, whether it be a proceeding against a positive law or a proceeding unwarranted By law." (Per Nicholson arguendo, 2 Chase's Trial, 340; per Rodney, 387.) t Weston vs. City Council of Charleston, 2 Peters, 449: McCulloch vs. Maryland, 4 Wheat., 316; Osborn vs. Bank of the United States, 9 lb., 738. | Mr. Rodney, in the argument of Chase's trial, said: "When gentlemen talkof an indictmentbeing a necessary substratum of an impeachment I should bo glad to be informed in what court it mustbe sup- ported. In the courts of the United States or in the State courts? If in the State courts, then in which of them ; or provided it can be supported in any of them, will the act warrant an impeachment? If an indictment must lie in the courts of the United States, in the long catalogue of crimes there are a very few which an officer might not commit with impunity. He might be guilty of treason against an individual State; of murder, arson, forgery, and perjury in various forms, without being amenable to the Federal jurisdiction, and unless he could be indicted before them ho could not be impeached." (2 Chase's Trial, 389.) The doctrine that nothing is impeachable unless in- dictable by act of Congress is impracticable. If only offences indictable by act of Congress are impeachable, tho President and all civil officers will escape impeachment for many of the highest crimes. Murder, arson, robbery, and other crimes committed in a State are indictable by State laws, but cannot be made so by act of Congress. fin the argument of Chase's trial Mr. Rodney said: "Are wo then to resort to the erring data of tho different States? In New Hampshire drunken- ness may be an indictable offense, but notin another State. Shall a United States judge be impeached and removed for getting intoxicated in New Hampshire, when he may drink as he pleases in other States with impunity? In some States witchcraft is a heinous offense, which subjects tho unfortunate person to indictment and punishment; in other States it is unknown as a crime. A great variety of eases might be put to expose tho fallacy of the principle, and to prove how improper it would be for this court to be governed by thepractice of the different Statos. The variation of such a compass is too great for it to bo relied on. This honorablo body must have a stand- ard of their own, winch will admit of no change or deviation." (2 Chase's Trial, 389.) If impeachments were limited in England to indictable offenses, as they never have been, it is manifest no such rule can be adopted here, for we have no uniform and single standard of the common law as there. And as the Supreme Court has determined that the common-law crimes do not exist in our national system, it cannot be supposed they are more applicable to the Senate than to our ordinary courts. We can, therefore, safely adopt the remark of "the great Selden" on the impeachment of Ratcliffe:* " It were betterf to examine this matter according to the rules and foundations of this House ;" that is, upon the great principles of parliamentary law adapted to our condition and circumstan- ces, as modified by the Constitution, giving it a construction equal to every emergency which may call its powers into exercise, and giving in its interpretation full effect in constitutional forms to the maxim it was designed to make effectual — " that the safety of the Republic is the supreme law.".']: If we adopt the test that an act to be im- peachable must be indictable at common law, the Constitution will be practically nullified on this subject. It is a rule of the common law " that judges of record are freed from all presentations whatever except in Parliament, where they may be punished for anything done by them in such courts as judges. "|| Bishop declares that at common law "the doctrine appears to be sufficiently established that legislators, the judges of our highest courts, and of all courts of record acting judi- cially, jurors, and probably such of the high officers of each of the governments as are in- trusted with responsible discretionary duties, are not liable to an ordinary criminal process, like an indictment, for their official doings, however corrupt." (1 Bishop's Crim. Law, 915 [362.]) "At common law an ordinary violation of a public statute by one not in office, though the statute in terms provides no punishment, is an indictable misdemeanor." (1 Bishop, 535 [187.]) And a similar violation by inferior officers was an indictable misdemeanor. "If a public officer intrusted with definite powers, to be exercised for the benefit of the community, wickedly abuses or fraudulently exceeds them, he is punishable by indictment, though no injurious effects result to any indi- vidual from his misconduct." (Whart. Crim. Law, sec. 2514.) " Whatever mischievously affects the person or property of another, or opeidy outrages de- cency, or disturbs public order, oris injurious to public morals, or is a breach of official duty, when done corruptly, is the subject of indict- ment." (Whart., sec. 3.) *Vol. 6 Am. Law Reg., N. S.,264; 4 Howard's State Trials, 47. + A minister is answerable for the justice, tho hon- esty, the utility of all measures emanating from the Crown, as well as for their legality; and thus the executive administration is, or ought to be, subordi- nate, in all great matters of policy, to the superin- tendence and virtual control of the two houses of Parliament. (2 Hallam's Const. History, 550.) t "It may be alleged that the power of impeach- ment belongs to the House of Representatives, and that with a view to the exercise of this power that House have the right to investigate the conduct of all public officers under the Government. This is cheerfully admitted. In such a case the safety of the Heimblic would be the supreme law ; and the power of the House in tho pursuit of this object would pene- trate into the most secret recesses of the executive department." (President Polk's Messago, Jour. Ho. Rep., 29th Cong., 1st ses.=., 693.) " Salus populisuprema lex .-" Broom'sLegal Maxims: Shunt's Trial, Whart. State Trials 300. per Blount; Prcscott's Trial, 181, per Shaw ; contra, Blake, 116. || 1 Hawkins, 192, ch. 73, sec. 6; 1 Salk.,396; 2 Wood- deson, 596, 355 ; Jacob's Law Die., tit. Judges; 12 Coke, 25-6; Hammond vs. Howell, 2 Mod., 218; Floyd vs. Barker, 12 Co., 23-5. "The doctrine which holds a judge exemptfrom a civil suit or indictment for any act done or omitted to be done by him sitting as a judge has a deep root in the common law," per Kent: Yates vs. Lansing, 5 Johns., 291; 9 lb.. 395; Cunningham vs. Bucklew, 8 Cow., 178; Peck's Trial, 492; 2 Chase's Trial, 389. But see the ruling of Chief Justice Shippen. referred to in Addison's (Pa.) Trial, 70; 1 Bishop on Crim. Law, 915 [302;] 4 Blackst., 121. It may be said the immunity of a judge from indictmentfor his official acts at commonlaw is placed on grounds of public policy, to secure his independence, and that it is the indictable char- acter of the act, if done by a private individual, which gives jurisdiction by impeachment. But even this proves that personal liability to an indictment is no test of impeachability. And in the nature of things official acts cannot be done by private individuals, so that the indict- able character of an act is no test of its im- peachability ; and no such test could have entered into the minds of the framers of the Constitution. It is a rule of interpretation that a law or an instrument is not to be construed so as to make its "effects and consequences" absurd, if its language may be fairly understood otherwise. To permit all acts to escape impeachment, unless indictable at common law,* would lead to consequences the most ruinous and absurd, j" If a judge should persistently hear the argu- ments of one party to causes privately and out * On tho trial of Chase Mr. Nicholson said: "You, Mr. President, as Vice-President of the United States, together with the Secretary of tho Treasury, the Chief Justice, and the Attorney General, as com- missioners of the sinkingfund, have annually at your disposal 88,000,000 for the purpose of paying tho national debt. If, instead of* applying it to this public use, you should divert it to another channel, or convert it to your own private uses, I ask if there is a man in the world who would hesitate to say that you ought to be impeached for this misconduct. And yet there is no court in this country in which you could be indicted for it. Nay, sir, it would amount to nothing more than a breach of trust, and would not be indictable underthe favorite common law. " If a judge should order a cause to be tried with eleven jurors only surely he might bo impeached for it, and yet I believe there is no court in which ho could bo indicted." (2 Chase's Trial, 339.) t On Chase's trial Mr. Rodney said .• " I think I can put" * * * * "striking oases of mis- conduct in a judge for which it must be admitted that an impeachment will lie, though no indictment [at common law] could be maintained." He puts the cases: if a judge at the time appointed for court "should appear and open the court, and, notwith- standing there was pressing business to be done, ho should proceed knowingly and willfully to adjourn it until the next stated period." * * * * ** Suppose he proceeded in the dispatch of business, and from prejudico against one party or favor to his antagonist he ordered on the trial of a cause, though legal ground for postponement." If when tho jury returned to the bar to give the verdict he should knowingly receive the verdict of a majority." ^ " Were a judge to entertain the suitors with a farce or a comedy instead of hearing their causes, and turn a jester or buffoon on the bench, I prcsumo he would subject himself to an impeachment. (2 Chase's Trial, 390.) Mr. Harper, for the defense, practically abandoned the idea that an indictable offense was necessary. He said : " There are reasons which appear to mo unan- swerable in favor of the opinion that no offense is impeachable unless itbe also the proper subject of an indictment." * * * _* "Icansupposecases where a judge ought to be impeached for acts which I am not prepared to declare indictable [at common law.] Suppose, for instance, that ajudgeshouldcon- stantly omit to hold court, or should habitually attend so short a time each day as to render it impossible to despatch the business." (2 Chase's Trial, 255.) Mr, Randolph said: "The President of the United States has a qualified negative on all bills passed by the two Houses of Congress." * * * * "Let us suppose it exercised indiscriminately on every act presented for his acceptance. This surely would bo an abuse of his constitutional power richly deserving impeachment; and yet no man will pretend to say it is an indictable offense." (2Chase's Trial, 452; Wick- liffe's argument on Peek's Trial, 311.) On Peck's trial, Mr. Wickliffo put additional eases: "Suppose a judge under the influenco of political feeling shall award to his favorite anew trial" * * * * * "againstknownlaw, would this be an indictable offense?" "Suppose a judge" * * * * "shall labor for two hours in abuse upon an unoffending citizen whom ho has dragged before him." (Peck's Trial, 310.) "If a head of a Department should divert his power and patronage for his personal or political aggran- dizement." (Id., 310.) On Peek's trial, Mr. Buchanan said: "Tho abuse of a power which has been given may bo as criminal as the usurpation of a power which has not been granted. Suppose a man to be indicted for an assault and battery. Ho is tried and found guilty; and the judge, without any circumstances of peculiar aggra- vation having been shown, fines him $1,000, and com- mits him to prison for a year. Now, although tho judge may possess the power to fine and imprison for this offense at his discretion, would not this punish- ment bo such an abuse of judicial discretion, and afford such evidence of tho tyrannical and arbitrary cxereiso of power as would justify the House of Rep- resentatives in voting an impeachment?" (Peck's Trial. 427.) 48 SUPPLEMENT TO of court the evil would become so intolerable in an officer holding for good behavior -that he should be removed. If the President should hold out promises of offices of honor and trust to the friends of Sen- ators to influence their votes the consequences. might be so pernicious and corrupting, espe- cially in an hour of national peril, when a single vote might decide the life of the Gov- ernment, that the safety of the Republic would demand i mpeachment. Such a President would violatehis oath faithfully to execute his duties. There are many breaches of trust not amount- ing to felonies, yet so monstrous as to render those guilty of them totally unfit for office. Nor is it always necessary that an act to be impeachable must violate a positive law. There are many misdemeanors, in violation of official oaths and of duty alike shocking to the moral sense of mankind and repugnant to the pure administration of office, that may violate no positive law.* The indiscriminate veto of all bills by the President, his retaining in office men subject to his removal, knowing them to be utterly inca- pable of performing the duties of their office, and other misdemeanors, would manifestly be proper subjects of an impeachment, for other- wise a wicked, corrupt, or incompetent foreign minister might embroil the nation in a war imperiling our existence, to avoid which im- peachment might be the only remedy. The impeachment trials in the United States may be said to have conclusively settled these questions, f The first case tried — that of William Blount, a Senator of the United States from Tennes- see — simply decided that none but civil officers cau be impeached, and thata Senator is not such civil officer. But the articles of impeachment — none of which charged a statutory crime, and some certainly no common-law offense — pro- ceeded upon the idea that acts were impeach- able;}: which were not indictable, so much so * " There are offenses for which an officer may be impeached, and against which there are no known positive laws. It is possible that the day may arrive when a President of the United States, having some great political object in view, may endeavor to influ- ence Congress by holding out threats or inducements to them. A treaty may be mado which the President, with some view, may be extremely anxious to have ratified. The hope of office majihe held out to a Senator; and I think it cannot be doubted that for this the President would be liable to impeachment, although there is no positive law forbidding it. Again, sir, a member of the Senate or of the House of ltep- rcsentatives may have a very dear friend in office, and the President may tell him unless you vote for my measures your friend shall bo dismissed. Where is the positive law forbidding this? Yet, where is the man who would be shameless enough to rise in the face of his country and defend such conduct, or be bold enough to contend that the President could not be impeached for it?" (Per Nicholson, 2 Chase's Trial. 339,341; see Peck's Trial, 309.) '"The abuse of a power given may be as criminal as the usurpation of a power not granted." (Per Buchanan on Peck's Trial, 427.) He supposes the case of ajudge having discretion- ary power to fine and imposing enormous and unneces- sary punishment. t Those before the Senate of the United States are the cases of— - 1. William Blount, a Senator of the United States, July 1797, to January 1798. (Wharton's State Trials, 200.) 2. John Pickering, districtjudge, New Hampshire, 1803-04. (Annals of Congress; 2 Hildreth's History, 618.) 3. Samuel Chase, nssociato justice of the Supremo Court United States, 1804-05. (Trial of Chase, by Smith & Lloyd. 2 vols.) 4. James Peck, district judge, Missouri, 1826, 1831. (Peck's trial, by Stansbury, 1 vol.) 5. West W. Humphreys, district judge of Tennes- see, 1862. (Congressional Globe, vols. 47, 48, 49, 2d session 37th Congress. See Report No. 44, 2d session 37th Congress, vol. 3, Reports of Committees.) X There were five articles— 1. That in 1797 Spain, owning the Floridas and Louisiana, was at war with England, and Senator Blount "did conspire and contrive to create, promote, and set on foot" * * * * "in theUnited States, and to conduct and carry on from thence a military hostile expedition against" * * * * "the Floridas and Louisiana" * * * * *' for the purpose of wresting the same from" Spain, and of conquering the same for Great Britain, in vio- lation of the obligations of neutrality of the United States. 2. That by the treaty of October 27,1795, theUnited States andSpain agreed to restrain Indian hostilities in the country adjacent to the Floridas, yet Blount, in 1797, " did conspire and contrive to excite the Creek that no objection was suggested on that ac- count. The next case is that of Judge Pickering,* who was convicted upon each of four several articles of impeachment before the Senate, and removed from office in March 1804. t This case and Cherokee Indians" in the United States to commence hostilities against the subjects and posses- sions in the Floridas and Louisiana, for the purpose of reducing the same to the dominion of" * * * * "Great Britain," in violation of the treaty, the obligations of neutrality and bis duties as Sen- ator. ,. 3. That Blount, in April, 1797, to accomplish his designs aforesaid, did " conspire and contrive to alien- ate the confidence of said Indian tribes" from the United States Indian agent, " and to diminish, im- pair, and destroy" his influence "with the said Indian tribes, and theirfriendly intercourse and understand- ing with him." _...., • 1 I. That Blount, in April. 1797, did conspire and contrive to seduce" an Indian interpreterof theUni- ted States with the Indians under a treaty between them and the United States "from bis duty, and to engage" him "to assist in the promotion and exe- cution of his said criminal intentions and conspira- cies." 5. That Blount, in April, 1797, 'did conspire and contrive to diminish and impair the confidence of said Cherokee nation in the Government of the Uni- ted States, and to create and foment discontents and disaffection among the said Indians toward the" * * * * "United States in relation to" ascer- taining and marking the boundary line between the lands of the Indians and of theUnited States in pur- suance of a treaty between them. * The articles charged — 1. That the surveyor of the district of New Hamp- shire did, in the port of Portsmouth, seize the ship Eliza for unlading foreign goods contrary to law, and the marshal of the district, on the 16th of October, 1802, by order of Judge Pickering, did arrest and de- tain said ship for trial, and the act of Congress of March 2, 1789, provides that such ship may, by order of the judge, be delivered to the claimant on giving bond to theUnited States, and on producing a cer- tificate from the collector of the district that the du- ties on the goods and tonnage duty of the Ship had been paid; yet Judge Pickering, with intent to evade the act of Congress, ordered the ship to be restored to the claimant without producing the certificate of payment of duties and tonnage duty. 2. That at the district court of New Hampshire, in November, 1802, the collector having libeled said ship because of said unlawful unlading of goods and prayed her forfeiture to theUnited States, yet Judge Pickering, with intent to defeat the just claims of the United States, refused to hear the testimony of wit- nesses produced to sustain the claim of the United States, and without hearing them did order and de- cree said ship to be restored to the claimant, contrary to law. 3. That the actof24th September, 1789, authorizes an appeal to the circuit court in such case, and the United States district attorney did claim an appeal from said decree, yet said judge, disregarding the law, intending to injure the revenues, refused to allow an appeal. 4-. That Judge Pickering being a man of loose mor- als and intemperate habits, on 11th and 12th Novem- ber, 1802. did appear on the bench of his court far the purpose of administering justice in a state of intoxi- cation produced by inebriating liquors, and did then and there frequently and in a most profane and in- decent manner invoke the name of the Supreme Being. (Annals of Congress of 1803- '4, page 319.) f 1. This caso was thus commented on during Peek's trial: "I admit that if the charge against a judge be merely an illegal decision or a question of property in a civil cause his error ought to be gross and pal- pable indeed to justify the inference of a criminal in- tention and to convict him upon an impeachment. And yet one case of this oharaeter occurred in our history. Judge Pickering was tried and condemned upon all the four articles exhibited against him, although the first three contaiaednoother charge than that ot making decisions contrary to law in a cause involving a mere question of property, and then re- fusing to grant the party injured an .appeal from his decision, to which he was entitled." (Per Buchanan, in Peck's Trial, 428.) Mr. Nicholson arguendo, (2Chase'sTrinl, 341,) in re- ferring to Pickering's case, says ho " was impeached for drunkenness and profane swearing on the bench, although there is no law of the United States for- bidding them. Indeed, I do not know that there is any law punishing either in New Hampshire, where the offense was committed. It was said by one of tho counsel that these were indictable offenses. I, how- ever, do not know where : certainly not in England. Drunkenness is punishable, thereby the ecclesiastical authority; but tho temporal magistrate never had any power over it until it was given by a statute of James I, and even then tho power was not to bo exercised by the courts, but only by a justice of the peace, as is now tho casein Maryland, where a small fine may bo imposed." Mr. Harper had said: "Habitual drunkenness in ajudge, and profane swearing in any person, arc in- dictable offenses, [at common law.] Andif they wer. C, February 21, 1868. Sir: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon the re- ceipt of this communication. You will transfer to Brevet Major General Lorenzo Thomas, Adjutant General of the Army, who has this day been authorized and empowered to act as Secre- tary of War ad interim, all records, books, papers, and other property now in your custody and charge. Respectfully yours. ANDREW JOHNSON. To Hon. Edwin M. Stanton, Washington, D. C. Executive Mansion, Washington, D. (J., February'!!, 1868. Sir: Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Depart- ment of War, you nre hereby authorized and em- powered to act as Secretary of W ar ad interim, and will immediately enter upon the discharge of the duties pertaining to that office. Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public prop- erty now in his custody and charge. Respecfully yours, ANDREW JOHNSON. To Brevet Major General Lorenzo Thomas, Adju- tant General United Statea Army, Washington, D. C. To these papers is appended this certificate : I t John W. Forney, Secretary of the Senate of the United States, do hereby certify that the foregoing is an extract from the Journal of tho Senate. This extract is made and certified under the au- thority of the act approved 8th August 1846, entitled "An act making copies of papers certified by the Secretary of the Senate and the Clerk of tho House of Representatives legal evidence." r -, Given under my hand, at Washington, this L L. a. J Utn day of jy; archt 18G8 _ J. W. FORNEY, Secretary of the Senate. I now offer an extract from the Journal of the Senate showing the action taken by the Senate on the message notifying that body of the re- 54 SUPPLEMENT TO moval of the Secretary of War and the appoint- ment of a Secretary of War ad! interim : In Executive Session, Senate of the United States, February 21, 1868. Whereas the Senate hare received and considered the communication of tho President stating that he had removed Edwin M. Stanton, Secretary of War, and had designated the Adjutant General of the Army to act as Secretary of War ad interim: There- tore, Resolved by the Senate of the United States, That under the Constitution and laws of the United States the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim. In Executive Session, Senate of the United States. February 21, 1868. Resolved, That the Secretary of tho Senate is herehy directed to communicate copies of the foregoing res- olution to the President of the United States, to tho Secretary of War. and to the Adjutant General of the Army of the United States. To these papers this certificate is attached : I, John W. Forney, Secretary of the Senate of the United States, do hereby certify that the foregoing are true extracts from tho Journal of the Senate. Theso extracts aremado and certified under the au- thority of the act approved 8th August. 1846, entitled "An act making copies of papers certified by the Sec- retary of the Senato and tho Clerk of the House of Representatives legal evidence." r T t Given under my hand at Washington, this 1 L - s - J 11th dayof March, 1868. J. W. FORNEY, Secretary of the Senate, I now offer an authenticated copy of the commission of Edwin M. Stanton as Secretary of War, and will here slate that this is the only commission under which we claim that he has acted as Secretary of War: Abraham Lincoln, President of the United States of America : To allwho shall see these presents, greeting : Know ye, that reposing special trust and confidence in tho patriotism, integrity, and abilities of Edwin M. Stanton, I have nominated, and by and with the advice and consent of the Senate do appoint, him to be Secretary of War of the United States, and do authorize and empower him to execute and fulfill the duties of that office according to law, and to hold the said office with all the powers, privileges, and emolu- ments to the same of right appertaining, unto him, the said Edwin M.Stanton, during tho pleasure of the President of the UnitedStates for the time being. In testimony whereof I have caused these letters to be made patent and the seal of the United States to be hereunto affixed. Given under my hand, at the city of Washington, the 15th day of January, in the year of our [l. s.] Lord 1862, and of the independence of the United States of America the eighty -sixth. ABRAHAM LINCOLN. By the President: WILLIAM II. SEWARD, Secretary of State. United States of America, Department of State. To all to whom these presents shall come, greeting : I certify that the document hereunto annexed is a true copy from the records of this Department. In testimony whereof I, William H.Seward, Secre- tary of State of the United States, have hereunto subscribed my name and caused the seal of the De- partment of Stato to bo affixed. Done at tho city of Washington this 21st day of March, A. D. 1868, and of the independence of [l. s.l the United States of America tho ninety- second. WILLIAM II. SEWARD. Mr. Manager BUTLER. Mr. President, will the Senate allow me to call in a witness, William J. McDonald, of Washington. Mr. Sergeant-at-Arms, is he in attendance? I do not know but that the Managers will have to ask that the witnesses be allowed to come on the floor of the Senate, because there will other- wise be some delay in calling them. I believe the Sergeant-at-Arms has given them a room. The CHIEF J USTICE. Unless the Senate otherwise orders, the witnesses will remain in their room until they are called. Mr. Manager BUTLER. I only spoke of the delay. The CHIEF JUSTICE. Mr. McDonald is present. The witnesses will stand on the left of the Chair when examined. Mr. Manager BUTLER. I move that this witness be sworn. The Secretary of the Senate administered the following oath to Mr. McDonald, and to each of the other witnesses as sworn : " You do swear that the evidence you shall give in the case now depending between the United States and Andrew Johnson shall be the truth, the whole truth, and nothing but the truth : so help you God." William J. McDonald, being sworn, was examined as follows : By Mr. Manager Butler : Question. State your name and office ? Answer. William J. McDonald, Chief Clerk of the Senate. Question, Will you look at that paper [ex- hibiting a paper] and read the certificate that appears to be signed by your name ? Answer. It is as follows : Office Secretary Senate United States, Washington. February 27, 1868. An attested copy of the foregoing resolution was left by nie at tho office of the President of the United States in the Executive Mansion, he not being pres- ent, about nine o'clock p. m. on the 13th of Jan- uary, 1868. w. j. Mcdonald. Chief Clerk Senate United States. Question. Is that certificate a correct one of the acts done? Answer. That is a correct certificate of the acts done. Question. And the paper was left, in accord- ance as that certificate states? Answer. Yes, sir. Mr. Manager BUTLER. I have nothing further to ask the witness. The CHIEF JUSTICE. Are there any ques- tions to be put on the part of the accused ? Mr. STANBERY and Mr. CURTIS. No, sir. Mr. Manager BUTLER. I ask Mr. Mc- Donald to take the stand again. Question. Will you read that certificate? [handing a paper to the witness.] Answer. It is — ■ Office Secretary Senate United States, Washington, February 27, 1868. An attested copy of the foregoing resolution was delivered by me into the hands of the President of the United States at his office in the Executive Man- sion about ten o'clock p. m. on the 21st. of February, 1868. , w. j. Mcdonald. Chief Clerk Senate United States. Question. Do you make the same statement as regards this service ? Answer. Yes, sir ; the same statement in regard to that. Mr. Manager BUTLER. We have nothing further to ask. Mr. STANBERY. Nothing on our part. Mr. Manager WILSON. The resolution to which the first certificate of Mr. McDonald refers is: In Executive Session, Senate of the United States, January 13, 1868. Resolved. That, having considered the evidence and reasons given by the President in his report of the 12th of December, 1868, for the suspension from the office of Secretary of War of Edwin M. Stanton, the Senate do not concur in such suspension. Attested : J. W. FORNEY, Secreta,-y. The resolution as to the service of which the other certificate relates : In Executive Session, Senate of the United States, February 21, 1863. Whereas the Senate have received and consid- ered tho communication of the President stating that ho has removed Edwin M. Stanton, Secretary of War, and designated the Adjutant General of the Army to act as Secretary of War ad interim : Therefore. Resolved by the Senate of the UnitedStates, That, under the Constitution and laws of the United States, the President has no power to remove the Secretary of War and designate aDy other officer to perform the duties of that office ad interim. Attest : J. W. FORNEY, Secretary. Mr. Manager BUTLER. We now call J. W. Jones as a witness. J. W. Jones sworn and examined. By Mr. Manager Butler : Question. Please state your name and posi- tion ? Answer. J. W. Jones, keeper of the sta- tionery. Question. An officer of the Senate ? Answer. Yes, sir. Question. Do you know Major General Lorenzo Thomas, of the United States Army, Adjutant General? Answer. I do, sir. Question. How long have you known him ? Answer. I have known him about six or seven years. Question. Were you employed by the Sec- retary of the Senate to serve a notice of the proceedings of the Senate upon him? Answer. I was. Question. Looking at that memorandum, [handing a paper to the witness] what day did you attempt to make the service ? Answer. The 21st of February. Question. What year? Answer. The present year. Question. Where did you find him ? Answer. I found him at Marini's Hall, at a masquerade ball. Question. Was he masked ? Answer. He was. Question. How did you know it was him ? Answer. I saw his shoulder-straps, and I asked him to unmask. Question. Did he so do ? Answer. He did, sir. Question. After ascertaining it was him, what did you do ? Answer. I handed him the resolution of the Senate. Question. About what time of the day or night? Answer. About eleven o'clock at night. Question. Did you make the service then? Answer. I did. Question. Have you certified the fact on that paper ? Answer. Yes, sir. Question. Is that certificate true? Answer. It is. Question. Will you Tead it ? Answer. Attached to this copy of the reso- lution is my certificate, in these words : An attested copy of the foregoing resolution was placed in my hands by the Secretary of the Senate to be delivered tp Brevet Majox General Lorenzo Thomas, Adjutant General of the United States Army, and the same was by me delivered into the hands of General Thomas about the hour of eleven o'clock p. hi. on the 21st day of February. J. W. JONES. Question. Is that certificate true ? Answer. It is, sir. No cross-examination. Mr. Manager WILSON. The document thus served is as follows : In Executive Session, Senate of the United States, February 21, 1868. Whereas the Senate have received and considered the communication of the President stating that he had removed Edwin M. Stanton, Secretary of War, and designated the Adjutant General of the Army to act as Secretary of War ad interim : Therefore, Resolved by the Senate of the United States, That, under the Constitution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office ad interim. Attest: J. W. FORNEY, Secretary. Mr. Manager BUTLER. I desire to call C. E. Creecy, of the Treasury Department. Charles E. Creeot sworn and examined. By Mr. Manager Butler : Question. What is your full name, and what is your official position, if any? Answer. Charles Eaton Creecy; I am clerk in charge of the appointments in the Treasury Department. Question. Will you look at the bundle of papers you have brought, in obedience to our subpoena, and give Me the form of commission which was used in the Treasury Department before the passage of the act of March 2, 1867? Answer. This is it ; [producing a paper.] Question. You produce this as such form? Answer. Yes, sir ; I do. Question. Was that the ordinary form, or one used without exception ? Answer. It was the ordinary form for the permanent commission. Mr. JOHNSON, and Mr. PATTERSON of Tennessee. We cannot hear one word. Mr. HOWARD. The witness must speak louder. Mr. JOHNSON. If his answer were re- peated by the counsel it would be better. Mr. Manager BUTLER. If it will not be considered improper, Mr. President, I will repeat the answer. THE CONGRESSIONAL GLOBE. 55 The CHIEF JUSTICE. The witness will speak for himself. Mr. EVARTS. We prefer that the witness should speak so as to be heard. Mr. Manager BUTLER. I have no desire to undertake the labor. The CHIEF JUSTICE, (to the witness.) Mr. Creecy, you will raise your voice and speak as loud as possible. The Witness. Yes, sir. Mr. Manager BUTLER, (to the witness.) What is your answer, then? loud enough to be heard. Mr. TRUMBULL. I think it would help us all to hear if the witness would stand further from the counsel. If he would stand on the other side of the Secretary's desk he would have to speak louder, and all could hear. The CHIEF JUSTICE. That would be bet- ter. Mr. Creecy, you willgo to the opposite side of the Secretary's desk. The witness changed his position to the other side of the desk, and subsequent witnesses were examined, standing at the Secretary's desk, to the right of the presiding officer. Mr. Manager BUTLER, (to the witness.) What is the answer to the question whether this is the ordinary form of commission used before March 2, 1867 ? Answer. That is the ordinary form. Question. For the class of appointments for which such commissions would be issued was there a.ny other form used before that time? Answer. I think that is the form for the permanent commission. Question. Will you now give me the form which has been used since in the Treasury Department ? [The witness produced a paper and handed it to Mr. Manager Butler.] Mr. STANBERY. Will the honorable Manager allow me to ask what is the object of this testimony ? Mr. Manager BUTLER. The object of this testimony is to show that prior to the passage of the act of March 2, 1867, known as the civil tenure-of-office bill, a. certain form of commission had been used in the practice of the Government, and issued by the President of the United States.; that after the passage of the civil tenure-of-office bill a new form was made conforming to the provisions of the ten- ure-of-office act, showing that the President acted in the Treasury Department under the tenure-of-office act as an actual and valid law. Is there any objection ? Mr. STANBERY. No, sir. Mr. Manager BUTLER, (to the witness.) I return the first paper you handed me. I see there are certain interlineations ; did you speak of the form before it was interlined, or subsequently, or both? Answer. This is the commission. The alter- ations in this commission show the changes that have been made to conform to the tenure- of-office bill. Question. There is a portion of that paper in print and a portion in writing. Do I un- derstand you that the printed portion was the form used before? Answer. Yes, sir. Question. And the written portion shows the changes? • Answer. Yes, sir. Question. Will you road with a loud voice so as to be heard the printed portion of the commission, theoriginal commission, the whole commission? Mr. CONNESS. Ithinkifthereadingshould be done by the Clerk, who is in the habit of reading, it would be very much better for the whole Senate. The CHIEF JUSTICE. The Secretary will read it. The Secretary read as follows : Andrew Johnson, , President of the United States of America: To all to whom these present" shall come, greeting : Know ye.thatreposingspeeial trust and confidence in the integrity, diligence, and discretion of , I have nominated, and by and with the advice ■«,nd consent of the Senatedoappoint him , and do authorize and empower him to execute and fulfill the duties of that office according to law, and to have and to hold the said office, with all the rights, privileges, and emoluments thereunto legally apper- taining unto him the said during the pleasure of the President of the United States for the time being. In testimony whereof I have caused these letters to bo made patent and the seal of the Treasury De- partment of the United States to bo hereunto affixed. Given under my hand at the city of Washington the — day of in the year of our Lord 18 — , and of the independence of the United States of America the — '-. , . By the President: Secretary of the Treasury. Question. Please state what was the altera- tion made of that printed form to conform to the provisions of the tenure-of-office act? Answer. The words "during the pleasure of the President of the United States for the time being" Mr. JOHNSON. We cannot hear. The Clerk had better read those words. The Secretary. • The words written are as follows: " Until a successor shall have been appointed and duly qualified." Mr. JOHNSON. What are the words stricken ou.t ? The Secretary. The words stricken out are " during the pleasure of the President of the United States for the time being." By Mr. Manager Butler : Question. Since' that- act has any other form of commission been used than the one as altered for such permanent appointments? Answer. No, sir. Question. Have you now a form of official bond for officers as used prior to the civil ten- ure- of- office, act? Ansioer. Yes, sir; [producing a paper.] Question. Has any change been made in that? Answer. No, sir. Question. Please give me, if you have it, a copy of the commissions issued for temporary appointments since the tenure-of-office act? Mr. STANBERY. Is the bond put in ? Mr. Manager BUTLER. It is. Mr. STANBERY. Will you have it read ? Mr. Manager BUTLER. No, unless you desire it. It is the common, ordinary form of bond. Mr. STANBERY. Let me see it. [The paper was handed to Mr. Stanbery, and read by him.] Mr. Manager BUTLER, (to the witness.) State whether the printed part of this paper was the part in use prior to the tenure-of- office act? Answer. It was. Mr. CURTIS. What is the paper? Mr. Manager BUTLER. The paper is the form of commission for temporary appoint- ments. Will the Secretary read it'.' The Secretary read as follows : The President of the United States of America, Toallto whom these presents shall come, greeting: Know ye, that reposing special trust and confidence in the integrity, diligence, and discretion of — , I do appoint him , and do authorize and empower him to execute and fulfill the duties of that office according to law, and to have and to hold the said office with all the rights, privileges, and emoluments thereunto legally appertaining, unto him the said ■ ■ , during the pleasure of the President of the United States for the time being, until the end of the next session of the Senate of the United States, and no longer. In testimony whereof I have caused these letters to be made patent, and the seal of the Treasury De- partment of the United States to be hereunto affixed. Given under my hand, at the city of Washington, this — day of , in the year of our Lord 18 — , and of the independence of the United States of America the . . By the President: Secretary of the Treasury. By Mr. Manager Butler : Question. Was any change made in that commission ? Answer. The alteration shows the change. Mr. Manager BUTLER. Read the altera- tion, Mr. Secretary. The Secretary. Strike out " during the pleasure of the President of the United States for the time being," and insert " unless this commission be sooner revoked by the Presi- dent of the United States for the time being." By Mr. Manager Butler : Question. Do you know whether before these changes were made the official opinion of the Solicitor of the Treasury was taken ? Answer. It was. Question. Have you that opinion? Ansioer. I have. Mr. Manager BUTLER. I withdraw the question as to the opinion on consultation. [To the witness. ] Do you know whether since the alteration of these forms any commissions have been issued signed by the President of the United States? Answer. Yes, sir. Question. As altered? Answer. Yes, sir. Question. It is suggested to me to ask you if the President had signed both forms — both the temporary and permanent forms as altered? Answer. Yes, sir. Question. . Now look at the paper which I send you [handing a paper] and say what is that paper? Answer. It is a commission issued to Mr. Cooper as Assistant Secretary of the Treasury. Question. Under what date? Answer. The 20th day of November, 1867. Question. Who was Assistant Secretary of the Treasury at the time of the issuing of that commission ? Answer. Mr. W. E. Chandler was one. Question. Do you happen to remember, as a matter of memory, whether the Senate was then in session? Answer. I think it was not. Question. State whether Mr. Cooper quali- fied and went into office under that first com- mission? Answer. He did not qualify under the first commission at all. Question. What is the paper I now send you? [Handing a paper.] Answer. It is authority from the President to Edmund Cooper to act as Assistant Secre- tary of the Treasury. Question. Read it.- Mr. EVARTS. Is the other considered as read, the one under which he did not qualify? Mr. Manager BUTLER. Yes, sir ; I meant so to consider it. Mr. EVARTS. How are we ever to know the contents if they are not read when pro- duced? Mr. Manager BUTLER. It is exactly the same form as the other that has been read. Mr. EVARTS. Then let it be so stated. We know nothing whatever about it. Mr. Manager BUTLER. I will hand that first paper to the counsel. [The paper was handed to the counsel for the President, examined by them, and returned.] Mr. Manager BUTLER. Do the counsel for the President desire to have the paper read? Mr. STANBERY. Certainly. Mr. Manager BUTLER. Very well. Let the Secretary read it. The Secretary read as follows : Andrew Johnson, President of the United States of A merica : To all who shall see these presents, greeting : Know ye, that reposingspecial trust andconfidence in the integrity and ability of Edmund Cooper, I do appoint him to be Assistant Secretary of the Treas- ury, and do authorizo and empower him to execute and fulfill the duties of that office according to law, and to have and to hold the said office, with all the powers, privileges, and emoluments- thereunto of right appertaining, unto him, the said Edmund Cooper, until the end of the next session of the Sen- ate of the United States, and no longer, subject to the conditions prescribed by law. In testimony whereof I have caused these letters to bo made patent, and the seal of the United States to be hereunto affixed. Given under my hand at the city of Washington, the 20th dayof November, in the year of our [l. s.] Lord 1867, and of the independence of the United States of America the ninety-second, ANDKEW JOHNSON. By the President: William H. Seward, Secretary of State. Mr. Manager BUTLER, (to the witness.) Now, will you pass to the Secretary the letter 56 SUPPLEMENT TO of authority of which you have spoken, and let it be read. The Secretary read as follows : Executive Department, Washington, December 2, 1867. Whereas a vacancy has occurred inthe office of Assistant Secretary of the Treasury of the United States, in pursuance olthe authority vested in me by the first section of the act of Congress approved Feb- ruary 13, 1795, entitled "An act to amend the act entitled ' An act makinff alterations in the Treasury and War Departments,' " Edmund Cooper is hereby authorized to perform the duties of Assistant Secre- tary of the Treasury until a successor bo appointed or such vacancy bo filled. ANDREW JOHNSON. By Mr. Manager Butler : Question. How did Mr. Chandler get out of office? Answer. lie resigned. Question, llaveyouacopyofhisresignation? Answer. 1 have not with me. Question. Can you state from memory (if it is not objected to) at what time his resignation took effect? Answer. I cannot. I think it was a day or two before this appointment or this authority was given to Mr. Cooper. Question. Will you have the kindness to pro- duce a copy of his resignation after you leave the stand ? Answer. I will try to do so. Cross-examined by Mr. Curtis : Question. Can you fix the date when the change in the form of permanent appoint- ments of which you have spoken first oc- curred ? Answer. 1 think it was aboutfour days after the passage of the tenure-of-office act. Question. With what confidence do you speak ? Do you speak from any recollection ? Answer. We obtained an opinion from the Solicitor of the Treasury on the subject. It was given on the Oth, and from that day we followed his opinion. Question. Then you would fix the date as the 6th of what month? Answer. The 6th of March, 1867. Hon. Burt Van Horn sworn and examined. By Mr. Manager Butler : Question. Will you state whether you were present at the War Department when Major General Lorenzo Thomas, Adjutant General of the United States, was there to make demand for the office, property, books, and records'? Answer. 1 was. Question. When was it? Answer. It was on Saturday, the 22d of Feb- ruary, 1808, I believe. Question. About what time in the day? Answer. Perhaps a few minutes after eleven o'clock. Question. Who were present? Answer. General Charles H. Van Wyck, of New York; General G. M. Dodge, of Iowa; Hon. Freeman Clarke, of New York ; Hon. j~. K. Moorhead, of Pennsylvania; Hon. Columbus Delano, of Ohio; Hon. W. D. Kelley, of Pennsylvania; Hon. Thomas W. Ferry, of Michigan, and myself. The Secre- tary of War, Mr. Stanton, and his son were also present. Question. Please state what took place. ' Answer. The gentlemen mentioned and my- self were in the office the Secretary of War usually occupies holding conversation ; Gen- eral Thomas came in ; I saw him coming from the President's ; he came into the building and came up stairs, and came into the Secretary's room first; he said, "Good morning, Mr. Secretary, and good morning gentlemen ;" the Secretary.replied-, "Good morning," and I believe we all did ; then began this conversa- tion as follows: [Referring to a printed dpeu- ment.] "I am Secretary of War ad interim, and am ordered by the President of the United States to take charge of the office;" Mr. Stan- Ion then replied, "I order you to repair to your room and exercise your functions as Adjutant General of the Army;" Mr. Thomas replied to this, "I am Secretary of War ad interim. and 1 shall not obey your orders; but I shall obey the orders of the President, who has ordered me to take charge of the War Office ;" Mr. Stanton replied to this as follows, "As Secretary of War I order you to repair to your place as Adjutant General;" Mr. Thomas re- plied, "I shall not do so;" Mr. Stanton then said in reply, "Then you may stand there if you please," pointing to Mr. Thomas, "but you cannot act as Secretary of War ; if you do, you do so at your peril;" Mr. Thomas replied to this, "I shall act as Secretary of War?" this was the conversation, I may say, in the Secretary's room. Question. What happened then? Answer. After that they went to the room of General Schriver, which is just across the hall, opposite the Secretary's room. Question. Who went first? Answer. I think, if I remember aright, that General Thomas went first, and was holding some conversation with General Schriver, which I did not hear. He was followed by Mr. Stanton, by General Moorhead, by Gen- eral Ferry, and then by myself. Some little conversation was had there, which I did not hear ; but after I got into the room, which was but a moment after they went in, however, Mr. Stanton addressed Mr. Thomas as follows, which I concluded was the summing up of the conversation had before Mr. CURTIS. No matter about that. The Witness. Mr. Stanton then said, "Then you claim to be here as Secretary of War and refuse to obey my orders V ' Mr. Thomas said, " I do, sir; I shall require the mails of the War Department to be delivered to me, and shall transact all the business of the War De- partment." That is the substance of the con- versation which I heard, and, in fact, the con- versation as I heard it entirely. By Mr. Manager Butler : Question. Did you make any memorandum of it afterward? Answer. I made it at the time. I had my memorandum in my hand. When the con- versation began I had paper and pencil and wrote it down as the conversation occurred, and after the conversation ended I drew it up from my pencil sketches in writing immediately in the office in the presence of the gentlemen who heard it. Question. What was done after that? Where did Thomas go? Answer. It was then after eleven o'clock, and my duties and the duties of the rest of us called us here to the House, and I left General Thomas in the room of General Schriver. Cross-examined by Mr. Staneert : Question. Will you please state what was your business in the War Department on that morning? Answer. Well, sir, I went there that morn- ing, I suppose, as other gentlemen did ; at least, I went there for the purpose of visiting the Secretary. I had no special public busi- ness. Question. Was there no object in the visit, except merely to see him ? Answer. Yes, sir; I had an object. The times were rather exciting at that moment, and I went, as much as anything else, to talk with the Secretary, to confer with him about public affairs. Question. Public affairs generally ? Answer. No, not public business particu- larly. Question. Whatpublic affairs were the object of the conference? Answer. Well, sir, the matter of the removal of Mr. Stanton. I felt an interest in that mat- ter, and of course was talking with him upon that subject. Question. Did you go with these other gen- tlemen whom you found there, or did you go there alone ? Answer. I think I did go in company with one or two of them. Question. With whom did you go in com- pany? Answer. I think I went with Mr. Clarke, of New York, and General Van Wyck. I am not certain that any others were with me. Question. When yon arrived at his room what was the hour? Answer. It was a little before eleven o clock. Question. Whom did you find there when you arrived? These other gentlemen whom you have mentioned? Answer. Not all of them. Question. Who were there when you arrived? Answer. I think General Moorhead was there for one ; I think Mr. Ferry was there ; I think Mr. Delano was there. Two or three others came in after I got there. Question. Do you know what their business was in the office that morning? Answer. No, sir. Question. Did they state any business? Answer. No, sir; they stated nobusinesstome. Question. All being there, the next thing was that General Thomas came into the room? Answer. After we had been there some moments. Question. You say that when that conversa- tion began between General Thomas and the Secretary you were ready to take notes ? Answer. I appeared to be ready. I had a large white envelope in my pocket, and I had a pencil also in my pocket ; and when the con- versation began it seemed to me that it might be well to note what was said. Question. Are you in the habit, generally, in conversations of that kind, of making mem- oranda of what is said? Answer. I do not know that I am, unless I deem it important to do so. Question. Did any one request you take memoranda? Answer. No, sir. Question. It was on your own motion? Answer. On my own responsibility, sup- posing I had a perfect right to do so. ■ Question. Undoubtedly. After the conver- sation was ended in the room with the Secre- tary, General Thomas, as I understand you, went out first? Answer. I think he did ; he went across the hall. Question. Who went with the Secretary from his room across the hall to where General Thomas had gone? Answer. I am not aware that any one went directly with him, but immediately after him, if not with him, General Moorhead and Mr. Ferry. Question. How long after General Thomas had left the office was it that the Secretary of War followed him ? Answer. But a moment or two ; perhaps two minutes. Question. Did he state, when he left, what was his object? Answer. I do not recollect that the Secretary stated anything. General Thomas was in the room talking. Question. Did he request any gentleman to go along with him? Answer. Not that I am aware of. Question. Did you go upon your own motion, or by agreement? Answer. I went upon my own motion. Question. All that were there did not go? Answer. I do not think they all went in. I think they did not all go in at that time. The two gentlemen named, I know, went in before me. Question. How long after the Secretary went did you go? Anstoer. Perhaps it was a minute. It was very soon. I followed the other two gentlemen very soon. Question. What had taken place between the Secretary and General Thomas before you arrived in the room, or had anything? Answer. I cannot say. They had some con- versation ; I cannot say what was said. Question. As you have given the conver- sation in your notes, it would seem as if it then began after you first got in? Answer. The conversation I have given be- gan after I got in. As I said before, I heard some talking; but I do not know what waa said. THE CONCESSIONAL GLOBE. 57 Question. You mean you heard some talk- ing before you got in there? Answer. Certainly. Question. Whose voices? Answer. I heard General Thomas's voice and Mr. Stanton's voice. They had some conversation. Question. But what that was you do not know ? Answer. I do not. Question. Then the conversation followed which you have detailed? Answer. Certainly. The first I heard when I went in was the question of Mr. Stanton, which I have stated, and the answer of Gen- eral Thomas. Question. Did you keep your notes with you and take your notes into that room? Answer. I had my envelope in my hand when I went in. Question. And your pencil? Answer. And my pencil. Question. Where is that envelope which you had at that time? Answer. I cannot say. I presume it was de- stroyed. The envelope was a large, long, white envelope that 1 put in my pocket with .letters. It wa« the only convenient thing I had at the time. I wrote on both sides of it, and then drew it off immedtateWon the Secretary's table. «£ Question. What did you do with that ori- ginal memorandum — the envelope ? Answer. I presume it is torn up and de- stroyed ; I do not know anything to the con- trary. , Question. When did you destroy it? Answer. That I cannot say ; perhaps very .soou after the conversation took place. Question. Why did you destroy it? Answer. I cannot say that it is destroyed ; but I have no knowledge of it now. I cannot say that it is destroyed ; perhaps it may be. I had no occasion to keep it. I supposed there was no occasion to keep it, because I had writ- ten the thing off, or rather, a young man wrote it. off at the table as I read it, and that is the same thing, I suppose, and I compared what he wrote after it was written with the notes, because I wanted to be particular in regard to it. Question. Is the document from which you have read here to-day a manuscript? Answer. No, sir; it is my testimony before the committee, which is an exact copy of the notes 1 took. Question. And those notes were written by some young man who was present? Answer. At my suggestion he took the pen, and I read to him, and then compared it, and found it word for word. Question. Where are those notes ? Answer. I do not know where they can be found. I did not suppose it important to keep the notes, because 1 had a copy of the notes before the committee and testified to it ex- actly. Question. A copy of what notes do you mean? Answer. I had the notes I took there. Question. You mean the notes written by that young man ? Answer. Yes, sir; I had them there. Question. What is his name? Who was he? Answer. One of the clerks there. I do not recollect what the young man's name was. I do not know that I ever knew his name. I did not ask him his name. I would know him iff saw him. Question. You preserved those notes until you testified ? Answer. Yes, sir. Question. How long after you testified did you preserve them ? Answer. I cannot say that I kept them any length of time after that. I thought it was of no covisequence. Question. How you disposed of the envelope, or how you disposed of those notes, you have no recollection? Answer. No, sir ; I cannot say what became of the envelope ; it may be in my papers some- where. Question. Have you made any search for them ? Ansiuer. No, sir; my attention has not been called to that before. Question. When you came back into the Secretary's room who suggested to you, or did you suggest the matter yourself, that the notes should be written out? How did that come to be ? Answer. It was upon my own motion. Question. Did you ask for a clerk? Answer. I had taken notes and proposed in the presence of the gentlemen who heard the conversation that they should see that I had them correct; and that was consented to by General Moorhead, Mr. Kelley, and others who were present. Question. Then you proposed to have them copied ? Answer. I proposed to have them drawn off. A young man was there ready to do it or willing to do it, and I asked him to write it out as I would read it to him from my notes. Question. Now, didanything else take place in General Schriver's room besides this talk that you have testified to ? Answer. Not that I am aware of; only, as I have said, I heard some voices in there ; but what was said I cannot say. Question. After you went in, while you were there? Answer. I think there was no conversation. Question. I did not ask you simply for con- versation, but what else took place? Answer. Nothing took place that I am aware of. Question. Who first left the room? Answer. After this conversation ? Question. Yes, sir. Answer. I cannot say whether I left it first or General Moorhead or Mr. Ferry. We were all there. I think we went out in a moment afterward. Question. Did' you leave Mr. Stanton there? Answer. Mr. Stanton was there when I went out- Question. Did you go into his room from there? Answer. I did, sir. Question. Did you leave Thomas there, also? Answer. Yes, sir. Question. How long did Mr. Stanton remain in Schriver's room? Answer. I cannot say, because as soon as I had this copied I left for the House. Question. Do you mean to say that ho did not come in while you were engaged in having the copy taken ? Answer. At the moment of making the copy ? I will not say that he came in while the copy was being taken or not. There was a "short time consumed in taking it. He might have done so, but I will not say. Question. Do you recollectwhether you saw him at all in his office after you had leftSchri- ver's room? Answer. I cannot swear positively that I did. I saw him after I left the room. The, doors were open. There are but a few feet from one room to the other. I saw him sitting in General Schriver's room. I will not swear positively that I saw him in his own office after I left that room. Question. What took place between, them afterward you do not know? Answer. No, sir. I do not know because I left. Question. Was there any friendly greeting or other circumstance took place at that time between the Secretary and General Thomas while you were in Schriver's room ? Answer. Well, sir, if there was, I did not see it. I do not know that there was while I was in. What happened before I cannot say. Question. Was the memorandum that you made on that envelope complete or abbre- viated ? Answer. The questions and answers as I have them were complete. Question. Was the copy, then, an exact transcript of the memorandum? Answer. It was merely questions and an- swers. The questions were short and the answers were short. Question. Did it exhibit the whole conver- sation ? Answer. I cannot say. I will not say that it did every word. I think it did not. I recol- lect one expression, for instance, that General Thomas made that I did not put down; I did not think it material. I can state it if the court desire it. It occurs to me now. It is one expression that was used. I can state it if the gentleman wishes. Question. All I want to know is whether it* completely covered the conversation? Answer. It covered ail the conversation of any importance. Question. That you thought important? Answer. At least what I wrote. I wrote down just as the questions were given and answered. I took all the conversation in sub- stance, and all of any account as it was had as the questions a-nd answers were given. Question. This conversation that you. took down in that way, did you take it down in short hand? Anstoer. No, sir ; I did not. Question. You wrote it out? Answer. I wrote it out. Question. Without abbreviation ? Answer. Without abbreviation. Question. Were there pauses in their conver- sation ? Did they pause to allow you to follow them? Answer. The conversation, as I said before, was very slow and deliberate. There was suf- ficient time for me to write these questions and answers, as they were short, as counsel can see. General Thomas said but very little. Question. Now, I will ask you if, in that con- versation, Mr. Stanton asked him if he wished him to vacate immediately, or would give him time to arrange his private papers ? Answer. Mr. Stanton? Question. Yes, sir; did Mr. Stanton ask Mr. Thomas whether he wished him to vacate immediately, or whether he would accord him (Stanton) time to arrange his private papers ? Answer. There was nothing said in that con- versation in reference to that. There were other conversations, I understand, at other times, at which such remarks were made, as I saw in the papers; but there was nothing of that kind said at that time in that conversation. The question of giving time and changing pa- pers did not come up in that conversation at all. Reexamined by Mr. Manager Butler : Question. You said, if I understood you, that there was a single remark of Thomas that you did not write down, that now occurred to you, in answer to the counsel for the President ; what was that remark? Answer. I said that in answer to his ques- tion whether I had sworn to all that he did say. I recollect now General Thomas saying he did not wish any " onpleasantness." I did not think it necessary to put that in my record. Question. Did he emphasize it in that " otpleasantness?" Answer. The gentlemen heard it, and it was spoken of afterward, but I did not think it was anything pertaining to this question; and perhaps some other little words were said now and then that did not amount to anything. Question. I must still ask you to give to the Senate with a little more distinctness whether it was the remark, saying, "I do not want any unpleasantness between us," or was it the use of what has almost become a technical term, that "there shall not be any onpleasant- ness?" Answer. Well, sir, I can only state what General Thomas said. Question. The emphasis is something. _ Answer. " Oiipleasantness" was the expres- sion used. By Mr. Staxdery: Question. This evidence is as to a* word ; I 58 SUPPLEMENT TO do not know its materiality ; but did he speak the word in the ordinary way ? Answer. He spoke it in the way I have mentioned. Question. Now give his expression? Answer. He said as he came in, in connec- tion with what I have said — I did not consider it material, and did not put it down — that he did not wish any "orapleasantness." Question. In what part of the conversation did that come in? Answer. Somewhere in the first part of the conversation ; it was in the first part. Question. Was it in the first part or after Stanton had ordered him to go to his room ? . Answer. I think it was before that — in the forepart of his conversation. Question. At the very beginning? Answer. Yes, sir; near the beginning. Question. Had you taken down anything before that was said? Answer. Yes, sir; the first thing he said was, "Good morning, Mr. Secretary," and "Good morning, gentlemen." Question. Did you take that down? Answer. I did, sir. Question. You thought that was material? Answer. I took it down. Question. Then next, after that, did he say he did not wish any unpleasantness? Answer. I cannot say that the next words he said after that were those. It was in the fore- part of the conversation. Question. But that you thought immaterial? Answer. I did not put it down ; I thought, perhaps, it was immaterial. It occurs to me now, as I know it excited something of a smile at the time he spoke it. Mr. Manager BINGHAM. As I understand it, the counsel are desiring to know of the wit- ness what he thought of the importance that ought to be attached to the word. I suppose it is not for the witness to swear what he thought about it. Mr. EVARTS. We are cross-examining as to the completeness or perfection of the wit- ness's memorandum. It certainly is material to know why he omitted some parts and inserted others. Mr. Manager BINGHAM. We will not press the objection. Mr. STANBERY. We have nothing further to ask of this witness. Hon. James K. Moorhead sworn and exam- ined. By Mr. Manager Butler : Question. I believe you are a member of the House of Representatives? Answer. I am. Question. We have learned from the testi- mony of the last witness that you were present at Mr. Secretary Stanton's office when General Thomas came in there to make some demand; will you state now in your own way, as well as you can, what took place there, assisting your memory, if you have any memorandum, as you please ? Answer. I will, sir. I was present at the War Department on Saturday morning, the 22d of February, I believe, and I understood that General Thomas was to be there to take possession of the Department that morning. I went from my boarding-house, which is Mrs. Carter's on the hill; 1 went to the War De- partment in company with Dr. Burleigh, who boarded there, a friend of Mr. Johnson's, who told me he had had a conversation with General Thomas the night before Mr. CURTIS. That is not material. The Witness. I was giving the reason why I went there. I was there, and General Thomas came in. The testimony of Mr. Van Hokn is correct as to what passed. I did not take any memorandum of the early part of the conversation ; but I would corroborate his statement Mr. CURTIS. That we object to. Mr. STANBERY. That wil] not do. The Witness, (continuing.) Until the point at which he said General Thomas went across to General Schriver's room. He did go there ; he was followed by Mr. Stanton, and Mr. Stan- ton asked me to go over there. After they got there Mr. Stanton put a direct question to Gen- eral Thomas, and asked me to remember it. He said, " General Moorhead, I want you to take notice of this and of the answer;" and that induced me to make a memorandum of it, which I think I have among my papers now. [The witness proceeded to search his papers.] It is very brief, and was made roughly, but so I thought I could understand and know what it meant myself, and I can explain it to any person. [Reading.] Mr. Stanton said, " Gen- eral Thomas, you claim to be here as Secre- tary of War, and refuse to obey my orders?" General Thomas replied, "I do, sir." After that had passed I walked to the door leading into the hall and I was called back, or from what I heard my attention was attracted so that I returned. Mr. Stanton then said, "General Thomas requires the mails of the Department to be delivered to him." General Thomas said : "I require the mails of the Department to be delivered to me, and I will transact the business of the office." I had not heard Gen- eral Thomas say this entirely and clearly, but Mr. Stanton repeated it in this way, and said : " General Thomas says 'I require the mails of the Department to be delivered to me, and I will transact the business of the office.' " I asked General Thomas if he had made use of those words. I asked him if he had stated this ; and he assented, and added : " You may make it as full as you please." That is all the memorandum I made, and I made that at the time and place. Cross-examined by Mr. Stanbery : Question. When you arrived at Mr. Stan- ton's office whom did you find there ? Ansiver. I did not make a memorandum of that, and I cannot tell exactly. There were a number of members of Congress there. When Mr. Van Horn was reciting the names, I re- cognized them as having been there, and I remember Judge Kelley in addition to the names mentioned. [Mr. Van Horn sitting in the Chamber said, ' ' 1 mentioned him. " ] Question. How long had you been at the office before General Thomas came in? Answer. I think 1 about half an hour. Question. Did you see him coming? Answer. Yes, sir; I saw him coming. The windbws opened out toward the White House, and it was announced by some person near the window that General Thomas was coming; and I, with some others, got up and looked out of the window and saw him coming along the walk, and we expected somewhat of a scene then. Question. When he came in, did he come in attended, or was he alone? Answer. He was alone. Question. Was he armed in any way? Answer. I did not notice any arms. Question. Side arms or others? Answer. I did not notice anything except what the Almighty had given him. Question. Now, state just what took place and what was said after he came in, according to your own recollection? Answer. I think I have stated it about as well as I can. When he came in he passed the compliments, "Good morning, Mr. Secre- tary;" and "Good morning, gentlemen ;" and I think Mr. Stanton asked him if he had any business with him. Question. Did Mr. Stanton return his salute? Answer. Yes, sir ; I think so. Question. Was Mr. Stanton sitting or stand- ing? Answer. During the time I was there he was doing both ; I cannot tell exactly what he was doing at the time General Thomas spoke to him, but he was down and up and walking around, sometimes sitting, sometimes standing. Question. Did he ask the General to take a seat ? Answer. I think not, sir. Question. Did he take a seat ? Answer. No, sir; he did not; he did not in that room. I think he took a seat when he went into General Schriver's room. Question. But he neither took a seat nor, as you recollect, was asked to take a seat? Answer. Not that I recollect. Question. After these good mornings passed what was the next thing? Answer. General Thomas said that he was there as Secretary of War ad interim; he was appointed by the President, and came to take possession. Question. Was there nothing said before that ? Answer. Not to my recollection. I took no memorandum of anything before that, and before what I have stated already. Question. Did I not understand you to say that Mr. Stanton, when he came in and the salutes were passed, asked him what business he had with him? Answer. Yes, sir ; and in reply to that he said what I have stated. I did not know you wished me to repeat what I had stated. I stated that. Question. In reply to that question of Mr. Stanton, what did Mr. Thomas say? Answer. He said he was there as Secre- tary of War ad interim, to take possession of the office. Mr. Sta^pn told him : "General Thomas, I am Secret^ of War ; you are the Adjutant General ; I order you to your room, sir." Question. He ordered him to his room? Answer. Yes, sir. Question. What was the reply? Answer. The reply was that he would not obey the order ; that he (Thomas) was Secre- tary of War ad interim. Question. What followed that ? Answer. I do not know that there was any- thing further. Very soon after that General Thomas retired over to General Schriver's room ; Mr. Stanton followed him and asked me to go over, and I have given you what occurred there. Question. After General Thomas left, did Mr. Stanton tell you why he wanted you to accompany him? Answer. No. Question. But he asked you to go with him ? Answer. Yes, sir. Question. Did you know where he was going ? Answer. I knew he was going over to that room. Question. Did you know he was going to have a further conversation with General Thomas? Answer. I expected so ; but he did not say so. Question. Did he ask any one else besides yourself to go ? Answer. I expect not. Question. Did any one else go besides your- self ? Answer. Mr. Van Horn and some other gen- tleman followed. Question. Did you get into the room as soon as Mr. Stanton? Answer. Immediately after him. Question. Did you get there before any con- versation began? Ansioer. 1 think about the time. I followed immediately, and there was no conversation of any marked significance until that which I have mentioned. Question. What was the conversation, sig- nificant or not, that took place between Mr. Stanton and General Thomas after you got into that room? Answer. I cannot recite it, because, as I told you, I did not take a memorandum of it, and it was not important enough to be impressed on my mind. I do not recollect. Question. But you have an impression that there was some? Answer. I think there was some— perhaps joking or something of that kind. They ap- peared to be in pretty good humor with-jeach other. Question. That is, the parties did not seem to be in any passion at all ? Answer. Not hostile. THE CONGRESSIONAL GLOBE. 59 Question. But in good humor ? Answer. Yes, sir. Question. Joking ? Answer, Yes, sir. Question. Do you recollect any of the jokes that passed ? Answer. No, sir. Question. Then who first commenced -the serious conversation in Schriver's room? Answer. Mr. Stanton, I think, asked this question. • Question. When the question was answered, as I understand, Mr. Stanton desired you to remember it? Answer. Yes, sir. Question. And then immediately you left the room ? Answer. Very shortly after. Question. Do you recollect anything said between them except that before you left the room ? Answer. No, sir ; I do not. Question. Did you get back to Mr. Stanton's room, or only into the ante-chamber or hall, and then return ? Answer. I had got back to Mr. Stanton's room, I think, or to the door. Question. What then induced you to return to General Schriver's room? Answer. I found there was some question asked there then that I thought was important, and I paid some attention to that, and I then went to hear what that was; and then Mr. Stanton told me that he wanted me to take notice of that. Question. That was as to the mails of the Department ? Answer. Yes, sir. Question. Anything further? Answer. Yes, sir ; what I read. There was, in addition to the mails of the Department, a statement that he was there as Secretary of War. Question. After that did you remain any longer in Schriver's room ? Answer. No, sir ; I think not. Question. Who came out first, Mr. Stanton or yourself ? Answer. I came out first and left Mr. Stan- ton there. Question. How long did Mr. Stanton remain there after you left? Ansioer. I think a very short time, for I left about that time to go to the Capitol. It was then getting on toward twelve o'clock ; and I left, and I know I did not get to the Capitol till after twelve o'clock. Question. Did all the company then leave? Answer. Most of them left. I think the members of the House all left. Question. Who stayed? Answer. I do not remember who stayed. There were a number of gentlemen there, though. Question. Who do you recollect was there, besides members of the House? Answer. I cannot call to mind now or give the name of a gentleman that was there, but I know there were others. Question. Were any other gentlemen there except the regular clerks of the Department at that time? Answer. Yes, sir ; others than clerks of the Department. Question. Were they military men or civil- ians? Answer. During some part of the morning there was a military man there. I believe during the time I was there I saw General Grant there. Question. At what time was he there? Answer. I think it was during that morning ; but I am not certain. I have been there a good many times, and I have seen him there at different times. Question. Was he there during either of these conversations that you have mentioned ? Answer. No, sir ; he was not present at the conversations. Question. Was it before or after the conver- sations that General Grant came inj Ansioer. I have stated that I was not distinct about the time, nor certain whether it was that morning or at another, but I rather think he was there during that morning. Question. Do you recollect any observation on the part of General Thomas to the effect that he wished no unpleasantness? Answer. I do not think I recollect his using that term. Question. Anything like it ? Ansioer. No, sir ; I do not. Question. Did there appear to be any un- pleasantness ? Answer. There did not ; General Thomas wanted to get in, I thought, and M ( r. Stanton did not want to go out. Question. But there was nothing offensive on either side? Answer. There was nothing very belliger- ent on either side. Question. Was there any joking in Mr. Stan- ton's room as well-as in Schriver's room? Answer. No, sir. Question. Any occasion for a laugh ? Answer. It was more stern in Mr. Stanton's room, as he once or twice ordered General Thomas to go to his room as a subordinate. Question. That was the only thing that looked like sternness? Answer. That was rather stern, I thought. Reexamined by Mr. Manager Butler: Question. The counsel for the President asked you if General Thomas was armed on that occasion : will you allow me to ask if on that occasion he was masked ? Answer. He was not, sir. Hon. Walter A. Burleigh sworn and ex- amined. By Mr. Manager Butler : Question. What is your name and position? Answer. My name is Walter A. Burleigh. At present I am a Delegate from Dakota Ter- ritory in the lower House of Congress. Question. Do you know Lorenzo Thomas, Adjutant General of the Army ? Answer. I do, sir. Question. How long have you known him? Answer. For several years ; I cannot say how many. Question. Have you been on terms of inti- macy with him? Answer. I have been. Question. He visiting your house, and you his? Answer. Yes, sir. Question. Do you remember an occasion when you had some conversation with Mr. Moorhead about visiting Mr. Stanton's office? Do you remember that you had such a conver- sation? Answer. I recollect going to the Secretary of War with Mr. Moorhead on the morning of the 22d of February last, I think. Question. Had you on the evening before seen General Thomas? Answer. I had. Question. Where?*, Answer. At his house. Question. What time in the evening ? Answer. In the early part of the evening ; I cannot name precisely the hour. Question. Had you a conversation with him? Answer. Yes, sir. Mr. STANBERY. Wait a moment, if you please. What is the relevancy of that to this inquiry ? I understand this is about a conver- sation of this witness with General Thomas. Mr. Manager BUTLER. The object is to show the intent and purpose with which Gen- eral Thomas went to the War Department on the morning of the 22d of February ; that he went with the intent and purpose of taking posses- sion by force ; that he alleged that intent and purpose; thatin consequence of that allegation Mr. Burleigh invited General Moorhead and went up to the War Office. The conver- sation which I expect to prove is this : after the President of the United States had ap- pointed General Thomas and given him direc- tions to take the War Office, and after he had made a quiet visit there on the 21st, on the evening of the 21st he told Mr. Burleigh that the next dav he was going to take possession by force. Mr. Burleigh said to him Mr. STANBERY. No matter about that. We object to that testimony. Mr. Manager BUTLER. You do not know what you object to if you do not hear what I offer. Mr. STANBERY. We object to it. Mr. CURTIS. We know sufficiently for the purpose of the objection. The CHIEF JUSTICE. The Chief Justice thinks the testimony is competent, and it will be heard unless the Senate think otherwise. Mr. DRAKE. I suppose, sir, that the ques- tion of the competency of evidence in this court is a matter to be determined by the Sen- ate and not by the presiding officer of the court. The question should be submitted, I think, sir, to the Senate. I "take exception to the presiding officer of the court undertaking to decide a point of that kind. The CHIEF JUSTICE. The Chief Justice is of opinion that it is his duty to decide pre- liminarily upon objections to evidence. If he is incorrect in that opinion it will be for the Senate to correct him. Mr. DRAKE. I appeal, sir, from the de- cision of the Chair, and demand a vote of the Senate upon the question. Mr. FOWLER. Mr. Chief Justice, I beg to know what your decision is? The CHIEF JUSTICE. The Chief Justice states to the Senate that in his judgment it is his duty to decide upon questions of evidence in the first instance,. and that if any Senator desires that the question shall then be sub- mitted to the Senate it is his duty to submit it. So far as he is aware, that has been the usual course of practice in trials of persons impeached in the House of Lords and in the Senate of the United States. Mr. DRAKE. My position, Mr. President, is that there is nothing in the rules of this Sen- ate sitting upon the trial of an impeachment which gives that authority to the Chief Justice presiding over the body. Mr. FESSENDEN. The Senator is out of order. Mr. JOHNSON. I call the honorable mem- ber from Missouri [Mr. Drake] to order. The question is not debatable in the Senate. Mr. DRAKE. I am not debating it ; I am stating my point of order. The CHIEF JUSTICE. The Senator will come to order. Mr. Manager BUTLER. If the President please, is not this question debatable? The CHIEF JUSTICE. It is debatable by the Managers and counsel for the defendant; not by Senators. Mr. ManaafrjSUTLER. We have the honor, Mr. 3*Saent and gentlemen of the Senate, to object to the ruling just attempted to be made by the presiding officer of the Senate ; and, with the utmost submission, but with an equal degree of firmness, we must insist upon our objection, because, otherwise, it would always put the Managers in the con- dition, when the ruling was against them, of appealing to the Senate as a parliamentary body against the ruling of the Chair. We have been too long in parliamentary and other bodies not to know how much disadvantage it is to be put in that position — the position, whether real or apparent, of appealing from the ruling of the presiding officer of the Senate. We are very glad that this question has come up upon a ruling of the presiding officer which is in our favor, so that we do not appear to be invidious in making the objection. Although it has fallen from the presiding officer that he understands that all the prece- dents are in the direction of his intimation of opinion, yet, if we understand the position taken, the precedents are not in support of that position. Lest I should have the misfor- tune to misstate the position of the presiding officer of the Senate, I will state it as I under- stand it, subject to his correction. 60 SUPPLEMENT TO I understand the position to be that pri- marily, as a judge in court would have the right to do, the presiding officer of the Senate claims the right to rule a question of law, and then if any member of the court chooses to object, it must be done in the nature of an appeal, as taken by one Senator just now. If I am incor- rect in my statement of the position of the pre- siding officer I beg to be corrected. The CHIEF JUSTICE. The Chief Justice will state the rule which he conceives to be applicable, once more. In this body he is the presiding officer; he is so in virtue of his high office under the Constitution. He is Chief Justice of the United States, and therefore, when the President of the United States is tried by the Senate, it is his duty to preside in that body; and, as he understands, he is there- fore the President of the Senate sitting as a court of impeachment. The rule of the Sen- ate which applies lo this question is the seventh rule, which declares that "the presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions." He is not required by that rule so to submit those questions in the first instance ; but for the dispatch of business, as is usual in the Supreme Court, he expresses his opinion in the first instance. If the Senate who constitute the court, or any member of it, desires the opinion of the Senate to be taken, it is his duty then to ask for the opinion of the court, Mr. Manager BUTLER. May I respect- fully inquire whether that would extend to a Manager ; whether a Manager would have the right to ask that a question of law should be submitted to the Senate? The CHIEF JUSTICE. The Chief Justice thinks not. It must be by the action of the court or a member of it. Mr. Manager BUTLER. Then this matter becomes of very important and momentous substance, because the presiding officer, who is not a member of the court, who has no vote in the court, as we understand it, except pos- sibly upona question of equal division, gives a decision on a question of law, it may be of the first importance, which, if made, precludes the House of Representatives from asking even that the Senate, who are the triers, shall pass upon it. Therefore if this is to be adopted as a rule our hands are tied ; and it was in order to get the exact rule that I have asked the presiding officer of the Senate to state, as he has kindly and fully stated, his exact position. The CHIEF JUSTICE. Mr. Manager, the Chief Justice has no doubt of the right of the honorable Managers to propose any question they see fit to the Senate, but it is for the Senate itself to determine how a question shall be taken. -f- t^ Mr. Manager BUTLER. * I understand the distinction. It is a plain one. The Managers may propose a question to the Senate, and the Chief Justice decides it, and we then cannot get the question we propose before the Senate unless through the courtesy of some Senator. I think I state the position with accuracy ; and it is the one to which we object. I again say, respectfully as we ought, but firmly, as we must. Now, how are the precedents upon this ques- tion ? Sorry I am to be obliged to deny the position taken by the presiding officer of the Senate, that the precedents in this country and England are with him. I understand that this question, as a question of precedents in Eng- land, has been settled many, many years, hun- dreds of years. Not expecting that it would arise here, I have not at hand at this moment all the books to which I could refer, but I can give a leading case where this question arose. If I am not mistaken, it arose in the trial of Lord Strafford, in the thirty-second year of the reign of Charles II. The House of Lords had a rule prior to the trial of Stratford, by which the Commons were bound to address the lord high steward as his grace or "my lord," precisely as the counsel for the re- spondent seem to think themselves obliged to address the presiding officer of this body as "Mr. Chief Justice." When the prelimi- naries of the trial of Strafford and the other popish lords were settled, the Commons ob- jected that, as a part of the Parliament of Great Britain, they ought not to be called upon through their managers to address any individual what- ever, and that their address should be made to the Lords in Parliament. A committee of conference between the Commons and Peers was thereupon had, and the rule previously adopted in the House of Lords was, after much consideration, rescinded, and a rule was re- ported and adopted in that trial, and it has obtained e'ver since in all other trials. The result of the conference is stated in this way : " On the 29th of November, 1680, it is agreed at the joint committee, upon the objection made by the Commons to oneoftbe rules laid down by the Lords, viz : ' That when the Commons should ask any ques- tions at the trial they should apply themselves to the lord steward, that the managers should speak to the Lords as a House, and say 'my lords, 1 and not to the lord high steward, and say 'my lord' or 'your grace.'" A reason being given that the lord high Steward was not a necessary part of the court, but only as Speaker of the House of Lords, and the Lords themselves were the only body of triers. When Lord Strafford came to the bar the Lords, conformably to this doctrine, on the 29th of November, 1G80, order — "That the Lord Strafford shall be directed to apply himself to the Lords, and not to the lord high stew- ard, as often as he shall havo occasion to speak at his trial." And from that day to the latest trial in Par- liament, which is the Earl of Cardigan case in 1841, the rule has been followed. Earl Car- digan being tried in the House of Lords, Lord Chief Justice Deuman presided upon that trial, and in that case, as in all the others, the body was universally addressed by counsel on all sides, by prisoner, by managers, by everybody, as "my lords," so that there should be no recog- nition of any superior right in the presiding officer over any other member of the assembly. Nor need I upon this matter of precedents stop here. In more than these cases this ques- tion his arisen. In Lord Macclesfield's case in 1724, if I remember aright, the point arose whether the presiding officer should decide an incidental question upon the trial ; but in every case Lord Chief Justice King referred all ques- tions wholly to the Lords, saying to the Lords " You may decide as you please." Again, when Lord Erskine presided on the trial of Lord Melville, which was a trial early in the century, conducted with as much care, regard, forms, and with the utmost preserva- tion of decency and order of the proceedings, the question was put to him whether he ruled points of law. and he expressly disclaimed that power ; saying in substance, on every ruling of an incidental question, " Unless any noble lord should think that this matter should be further considered in the Chamber of Parlia- ment, I will give my opinion," thereby always submitting the question to the lords in the first instance. Again, in Lord Cardigan's case, to which I have just referred, when a question of evidence arose as to whether a card on which the name of Harvey Garnett Tuckett was placed should be given in evidence, the question being whether the man's name was Harvey Garnett Phipps Tuckett or only Harvey Garnett Tuckett, but a question on which the whole trial finally turned when afterward the whole evidence was in, Lord Deuman, instead of deciding the question, submitted it to the Lords, as follows : "The inconvenience of clearing the House is so great that I should rather venture to propose that tho decision of this question, if your lordships should be called upon to decide it, had better be postponed." The question was not at that time pressed. And when the Attorney General of England made his argument upon the evidence Lord Denman arose and apologized to the House of Lords for having allowed him to argue, and said in substance he hoped this would not be drawn into a precedent iu criminal trials, but that he did not think it quite right for him to interfere and stop him. And when, finally, the Lords deliberated with closed doors upon the point taken, and Lord Denman gave an opinion to the Lords upon whether the proof sustained the indictments his lordship said : " If. my lords, tho present wore an ordinary case, trisd before one of the inferior courts, and the same objection had been taken in this stage to the proof of identity, the judge would consult his notes, and explain how far he thought the objection well founded, and I apprehend that the jury would at once return a verdict of acquittal. "Your lordships sitting in this High Court of Par- liament, unite the functions of both. I have stated my own views, as an individual member of the court, of the question by you to be considered, discussed, and decided. Though I have commenced the debate, it cannot be necessaryfor mcto disclaimthe purpose of dictating my own opinion, which is respectfully laid before you with the hope of eliciting those of the House at large. If any other duty is cast upon me, or if there is any more convenient course to be pur- sued. I shall be greatly indebted to any of your lord- ships who will be so kind as to instruct me in it. In the absence of any other suggestion, I venture to declare ray own judgment, grounded on the reasons briefly submitted, that the Earl of Cardigan is enti- tled to be declared not guilty." Now, then, in the light of authority, in the light of the precedents to which the presiding officer has appealed, in the light of reason, and in the light of principle, we are bound to object to this claim of power on the part of the Chief Justice. I say again it is not a mere question of form, for all mere forms we would waive ; but it is a question, of substance. It is a question whether the House of Represent- atives can bring, by their own motion, to the Senate a question of law, if the Chief Justice who is presiding chooses to stand between the Senate and the House and its prosecution. That is a question of vital importance, upon which, for the benefit of the people for all time hereafter, if it did not make any difference in this case, I would not yield one hair, because no jot or tittle of the rights of the people or of the House of Representatives, so far as I understand them, shall ever fall to the ground by any inattention or inadvertence or yielding of mine. Allow me to state again the proposition de- clared by the learned presiding officer, because to me it seems an invasion of the privileges of the House of Representatives. It is this : that when the House of Representatives pro- poses a question of law to the Senate' of the United States on the trial by impeachment of the President of the United States, the Chief Justice presiding in this as a court can stand between the House of Representatives and the Senate and decide the question ; and then, unless by the courtesy of some Senator who may be induced to make a motion for them, the House of Representatives, through its Mana- gers, cannot get that question of law decided by the Senate. I should be inclined to deem it my duty, and I believe my associate Managers will agree with me if we are put in that position, to ask leave to withdraw and take instruction from the House before we lay the rights of the House, bound hand and foot, at the feet of any one man, however high or good or just he maybe; for, as I respectfully bring to your attention, it is a question of most momentous consequence, although not so great, not of so much conse- quence now, when we have a learned, able, honest, candid, patriotic Chief Justice in the chair, as it may be hereafter. Let us look forward to the time which may come in the history of this nation when we get a Jeffries as lord high steward or Chief Justice. I want, then, that the precedent set in this good time, by good men, when everything isquiet, when the country is not disturbed, to be such as to hold any future Jeffries as did the precedents of old ; for this brings to my mind Jeffries' conduct on an exactly similar question, when he was held bound by the precedents of the House of Lords. In the trial of Lord Del- amere, Chief Justice Jeffries, being lord high steward, presiding, said to the earl as he came to plead — I give substance now, not words — ' My lord, you had better confess and throw yourself onj:he mercy of the king, your master ; THE CONGRESSIONAL GLOBE. 61 he is the fountain of all mercy, and it will be better for you so to do." The accused earl replied to him : "Are you, my lord, one of my judges, that give me such advice here on my trial for my death?" Jeffries, quailing before the indignant eye of the man whose rights he was interfering with, said : " No, I am notone of your judges; I only advise you as a friend." 1 desire the precedents fixed now in good time, as strong as they were before Jeffries's time, so that hereafter, when we get a Jeffries, if we ever have that misfortune, he shall be bound by them. We have had a Johnson in the presi- dential chair ; and we cannot tell who may get into the chair of the Chief Justice in the far future ; but, if we do- ever get a Jeffries in that chair, I want the precedent upon this point so settled now that it cannot be in any way dis- turbed, so as to hold him to the true rule as with hooks of steel. The CHIEF JUSTICE. The Chair will state the question for the consideration of the Senate. The horiorable Manager put a ques- tion to the witness. It was objected to on the part of the counsel for the President. The Chief Justice is of opinion that it is his duty to express his judgment upon that question, subject to having the question put upon the requisition of any Senator to the Senate. Are you ready for'the question? Mr. GR-IMES. The question is, whether the judgment of the Chief Justice shall stand as the judgment of the Senate? The CHIEF JUSTICE. Yes, sir. Mr. DRAKE. No, sir. I raise the ques- tion that the presiding officer of the Senate had no right to make a decision of that question. The CHIEF JUSTICE. The Senator is not in order. Mr. DRAKE. I wish that question put to the Senate, sir. The CHIEF JUSTICE. The Senator will come to order. Mr. CONKLING. Mr. President, I rise for information from the Chair. I beg to inquire whether the question upon which the Senate is about to vote is whether the proposed testi- mony be competent or not, or whether the presiding officer be competent to decide- that question or not? . The CHIEF JUSTICE. It is the last ques- tion, whether the Chair in the first instance may state his judgment upon such a question. That is the question for the consideration of the Senate. The yeas and nays will be called. Mr. CONKLING. Before the yeas and nays are called, I beg that the whole of the latter clause of the seventh rule -may be read for the information of the Senate. The CHIEF JUSTICE, (to the Secretary.) Read the rule. Mr. HOWARD. Read the whole of the rule. The Secretary read as follows : "VII. Tho Presiding Officer of the Senate shall direct all necessary preparations in the Senate Cham- ber, and the presiding officer upon the trial shall direct all the forms of proceeding while the Senate are sitting for tho purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. The presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions; but thesame shall, on the demand of one fifth of themem- bers present, be decided by yeas and nays." Mr. Manager BINGHAM. Mr. President, after consultation with my associate Managers, I ask leave to- make some additional remarks to the Senate before this vote be taken and to call the attention of Senators especially to rule seven to which the President made reference. We think ourselves justified in asking the Senate to consider that rule seven does not contemplate any departure from the long- established usage governing proceedings of this character ; in other words, that rule seven simply does provide that, " The presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions ; but the same shall, on the demand of one fifth of the members present, be decided by yeas and nays." We respectfully submit to the Senate, with all respect to the presiding officer, that his rule means no more than this : that if no question be raised by the Senators and one fifth do not demand the yeas and nays, it authorizes the presiding officer simply to take the sense of the Senate upon all such questions without a division, and there it ends. I beg leave further to say to the Senators, in connection jvith what has fallen already from my associate, that I look upon this question now involved in the'decision of the presiding officer as settled by the very terms of the Con- stitution itself. The Constitution of the United States, as the Senators will remember, pro- vides that the Senate shall have the sole power to try all impeachments. The expres- sion, "the sole power," as the Senate will doubtless agree, necessarily means the only power. It includes everything pertaining to the trial. Every judgment that must be made is a part of the trial, whether it be upon a pre- liminary question or a final question. It seems to me that the words were incorporated in the Constitution touching this procedure in im- peachment in the very light of the long con- tinued usage and practice in Parliament. It is settled, I beg leave to remind Senators, in the very elaborate and exhaustive report of the Commons of England upon the Lords' Jour- nals that the peers alone decide all questions of law and fact arising in such a trial. It is settled, in other words, that the peers alone are the judges in every case of the law and the fact; that the lord chancellor presid- ing is but a ministerial officer to keep order ; to present for the decision of the peers the various questions as they arise ; to take their judgment upon them ; and there his authority stops. And this doctrine is considered so well settled, I may be permitted to say further, (here speaking from recollection of that which 1 have, however, carefully examined,) that it is carried into the great text-books of the law and finds a place in the fourth Institute of Coke, wherein he declares that the peers are the judges of the law and fact, and conduct the whole proceedings according to the law and usage of Parliament. As I understand this question as it is pre- sented here, I agree with my associate that it is of very great importance, not only as touching the admissibility of evidence — for we certainly have no ground of complaint of the presiding officer for the ruling he made touching the admissibility of the evidence which we offer through this witness — but as touching every other question that can arise ; for example, questions that may involve the validity, legality, if you please, of any of the charges preferred in these articles. If such a ruling were asked here of the presiding officer, we submit that it is not competent for him to pronounce any judgment on the subject, that it is alone for the Senate to determine ; and they determine it simply for the reason, as I said before, that they have, the sole power to try all questions involved in the case. We stand, -then, upon what we believe has been the uniform practice touching this ques- tion in England, and we consider that the Pres- ident presiding now in the Senate has no more power over this question before the Senate than has the lord chancellor, when he presides over the deliberations of the peers, to decide any question. Being himself a peer, he has but his own vote. I do not think a case can be found wherein it was consented by the peers that the lord chancellor should give a decision in any case which is to stand as the judgment of the court without consulting the peers. That is the position that we assume, and we ask it to be understood and considered by the Senate. We- understand that the question upon which the vote of the Senate is to be had is, whether the Senate shall decide that the presiding offi- cer, himself not being a member of that body which is invested with the sole power to try impeachments, and therefore to decide all questions in the trial, can himself make a de- cision, which decision is to stand as the judg- ment of this tribunal unless reversed by a subsequent action of the Senate. That we understand to be the question that is submit- ted, and upon which the Senate is about to vote. Mr. Manager BUTLER. And that the Man- agers cannot raise the question. Mr. Manager BINGHAM. It is also sug- gested by my associate that there is also in- volved in the question the further proposition that the Managers, in the event of such decis- ion being made by the presiding officer, can- not call even for a review of that decision by the Senate. Mr. WILSON. I move that the Senate re- tire for the purpose of consultation. Several Senatohs. No, no. Mr. SHERMAN. Before that is done I desire to submit a question to the Managers in accordance with the rule. The CHIEF JUSTICE. Does the Senator from Massachusetts withdraw his motion ? Mr. WILSON. I withdraw it for a moment. Mr. SHERMAN. I send to the Chair a question. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read the question of Mr. Sher- man, as follows : I ask tho Managers what are the precedents in the cases of impeachment in tho United States upon this point? Did the Vice President, as Presiding Officer, decide preliminary questions, or did he sub- mit them in the first instance to the Senate ? Mr. Manager BOUTWELL. Mr. President and gentlemen of the Senate, I am very much indisposed to ask the attention of the Senate further. As a question concerning the rights of the House in this proceeding, it seems to me of the gravest character; and yet I can very well foresee that the practical assertion on all questions arising in a protracted trial of the principle which the Managers assert here in behalf of the House is calculated to delay the proceeding, and very likely at times to in- volve us in temporary difficulties. In what I say I speak with the highest personal respect for the Chief Justice who presides, being fully assured that in the rulings he might make upon questions of law and the admissibility of testimony he would always be guided by that conscientious regard for the right for which he is eminently distinguished. But I also foresee that if the Managers act- ing for the House in- the case now before the Senate and before the country, and acting, I may say, in behalf of other generations and of other men who unfortunately may be similarly situated in future times, should admit that the Chief Justice of the Supreme Court of the United States, sitting here as the presiding officer of this body for a specified purpose, and for a specified purpose only, has a right to de- cide, even as preliminary to the final judgment of the Senate, questions of law and evidence which in the end may be vital in the decision of this tribunal upon the question of the guilt or the innocence of the person arraigned, they would make a. surrender, in substance, of the constitutional rights of the House and the constitutional rights of the Senate sitting as the tribunal to try impeachments presented by the House of Representatives. With all defer- ence I maintain that the language of the Con- stitution, in these words : "When the President of theUnited States is tried the Chief Justice shall preside" — is conclusive without argument. He presides here not as a member of this body ; foe if that were assumed the claim would be in deroga- tion, nay, in violation, of another provision of the Constitution which confides to the Senate the sole power of trying all impeachments. I know of no language which could be used more specific in its character, more inclusive and exclusive in its terms. The language includes, as has here been maintained by Mr. Manager Botler in the opening argument, all the mem- bers of the Senate, ail the men chosen under the Constitution and representing the several States of the Union, whatever 'may be their 62 SUPPLEMENT TO qualities, whatever may be their capacities, whatever may be their interests, whatever may be their affiliation with or to the person ac- cused. The Senate sits in its constitutional capacity to decide under the Constitution the question of the guilt of the accused, with all the felicities and with all the infelicities which belong to the tribunal organized under and by virtue of the Constitution. We must accept it as it is, with no power to change it in any particular. So, also, the words of the Constitution are exclusive. With all deference I am forced to assert and maintain that these words exclude every other man, whatever his station, rank, position elsewhere, whatever his relations to this body under or by the Constitution. The Senate by the Constitution has the sole power to try all impeachments, and no person not of the Senate, and exercising the functions of a Senator in legislative and executive affairs, can in any way interfere to control or affect their decision or their judgment in the slightest.de- gree. Therefore, Mr. President, it must follow as a constitutional duty that the Senate, without advice, as a matter of right, must decide every incidental question which by any possibility can control the ultimatejudgmtnt of the Senate upon the great question of the guilt or innocence of the party accused. If under any circumstances the testimony of a witness proffered may be de- nied or may be admitted upon the judgment of any person or by any authority, except upon the judgment and authority of the tribunal before which we here stand, then a party accused and impeached by the House of Representatives maybe acquitted or he may be convicted upon any authority or opinion which is not in fact the judgment of the Senate itself. Upon this point I think there can finally be no difference of opinion. But, Mr. President, as one of the Managers, and without having had an opportunity to consult my associates on the point, and speak- ing, therefore, with deference to what may be their judgment or what might be the judgment of the House, I should be willing to proceed in the conduct of this case upon the under- standing that the right is here and now solemnly asserted by the Senate for themselves and as a precedent for all their successors that every question of law is to be'decided by the Senate without consultation with the presiding officer. I hold that the judgment must be exclusively with the Senate. Still I'am willing that in all these proceedings the presiding officer of the Senate shall give his opinion or his ruling, if you please to call it a ruling, upon questions incidental of law and evidence as they arise, unless some member of the Senate or the Man- agers or the counsel for the respondent should first desire the judgment of the Senate. I happen to have an extract from the record in the case referred to by my associate, and I will read it in the presence of the Senate. In the trial of Lord Melville, which is re- ported in the twenty-ninth volume of the State Trials, Lord Chancellor Erskine evidently acted upon this idea. Upon a question of the ad- missibility of testimony, it having been argued by the managers on one side and the counsel for the respondent on the other, Lord Erskine said : "If any noble lord is desirous that this subject should be a matter of farther consideration in tho Chamber of Parliament, it will be proper that he should now move to adjourn; if not, I have formed an opinion, and shall express it." To that theory of the administration of the duties ef the Chair with refereuce to the rights of the House of Representatives and to the rights of the respondent, for myself, I should not object; but I cannot conscientiously, even in this presence, consent to the doctrine as a matter of right that the presiding officer of the Senate is to decide interlocutory questions, and especially to decide them under such circum- stances that it will not be in the power of the Managers to take the judgment of the Senate upon the wisdom and justice of the decision. Mr. Manager BINGHAM. By leave of the Senate I desire to read in their hearing an abstract which I have made touching this ques- tion from the authorities to which I referred, and which I believe is accurate. I read first in the hearing of the Senate the abstract which was made from the report of the Commons of England upon the Lords Journals : " Relation of Judges, &c, to the Court of Parliament, " Upon examining into the course of proceeding in tho House of Lords, and into ihe relation which ex- ists between the peers on the one hand, and their attendants and assistants, the judges of the realm, barons of the exchequer of the coif, the king's learned counsel, and the civilians masters of the chancery on tho other, it appears to your committee that these judges and other persons learned in the common and civil laws are no integrant and neces- sary part of that court. Their writs of summons are essentially different ; and it does not appear that they or any of them have, or of right ought to have, a de- liberative voice, either actually or virtually, in the judgments given in the high court of Parliament. Their attendance in that court is solely ministerial ; and their answers toquestions put to them are notto be regarded as declaratory of the law of Parliament, but as merely consultory responses, in orderto fur- nish such matter (to be submitted to the judgment of the peers) as may be useful in reasoning by analogy, so far as the nature of the rules in the respective courts of the learned persons consulted shall appear to the peers to be applicable to the nature and cir- cumstances of the case before them, and not other- wise." — 8 Burke p. 42; Report on the Lords Journal ; Trial of Warren Hastings. In the volume of Burke here quoted the re- port is set out at length. ' I read further from the same report : " Jurisdiction of the Lords. "Your committee finds that in all impeachments of the Commons of Great Britain for high crimes and misdemeanors, before the peers in the high court of Parliament, the peers are not triers or jurors only, but by the ancient laws and constitution of this king- dom known by- constant usage are judges both of law and fact; and we conceive that the Lords are bound not to act in such a manner as to give rise to an opinion that they have virtually submitted to a division of their legal powers, or that, putting them- selves into the situation of mere triers or jurors, they may suffer the evidence in the cause to be produced or not produced before them, according to the dis- cretion of the judges of the inferior courts" — 8 Burke, p. 42: Report on the Lords Journals; Trial of War- ren Hastings. I read, also, the extract from fourth Institute to which I before referred : " It is by the laws and customs of Parliament that all weighty matters in Parliament moved concern- ing the peers of the realm, &c, ought to be determ- ined, adjudged, and discussed by the course of the Parliament, and not by the civil law, and yet by the common law of this realm used by the more inferior courts; for this reason the judges ought not to give any opinion in a matter of Parliament." — Fourth In- stitute, page 15. Mr. Manager BUTLER. Mr. President, there was a question asked by one member of the Senate as to the precedents. I have sent for the trial of Judge Chase, which I read from the third volume of Benton's Abridgment of the Debates of Congress. The rule in that case was in the following words : " All motions made by the parties or their counsel shall be addressed to the President of the Senate, and, if he shall require it shall be committed to writing, and read at the Secretary's table; and all decisions shall be had by yeas and nays, and without debate, which shall be entered on the records." In the course of the trial there arose this question : whether a Mr. Hay, a witness in the case, should use a certain paper to refresh his memory. "Mr. Harper here interrupted Mr. Hay, and said : 'The witness may refer to anything done by himself at the time the occurrence happened which hcrelates. But I submit it to the court how correct it is to refer to what was not done by him, or done at the time.' "The President asked Mr. Hay whether the notes were taken by him. "Mr. Hay. The statement was made by different persons. Some parts were made by myself, perhaps tho greater part; the rest by Mr. Nicholas and' Mr. Wirt. I believe I shall be able to state from it every material occurrence which took placo,at the time. "The President. Haveyouthepartsmaoebyyour- self separate? " Mr. Hay said he had not. " TuePresident then put the question, whether the witness should be permitted to use the paper; and the question being taken by yeas and nays, passed in the negative — yeas 16, nays 18." There, upon the question whether Mr. Hay should refresh his memory on the stand- by notes which were not made by himself, which was certainly an incidental question of law, the President, instead of undertaking to decide it in Chase's case, directly put the question to the court and had itdecidedin the first instance by yea or nay, not expressing any opinion whatever upon that question. We have nothing further to add. Mr. EVARTS. I rise, Mr. Chief Justice and Senators, to make but a single observa- tion in reference to a, position or an argument pressed by one of the honorable Managers to aid the judgment of the Senate upon the ques- tion submitted to it. That question we under- stand to be whether, according to the rules of this body, the Chief Justice presiding shall determine, preliminarily, interlocutory ques- tions of evidence and of law as they arise, subject to the decision of the Senate upon pre- sentation by any Senator of the question to them. The honorable Manager, Mr. Bo utwell, recognizing the great inconvenience that would arise in the retarding of the trial from this appeal to so numerous a body upon every in- terlocutory question, while he insists upon the magnitude and importance of the right de- termination, yet intimates that the Managers will allow the Chief Justice to decide, unless they see reason to object. On the part of the counsel for the President, I have only this to say: that we shall take from this court the rule as to whether the first preliminary deci- sion is to be made by the Chief Justice or is to be made by the whole body, and we shall not submit to the choice of the Managers as to how far that rule shall be departed from. Whatever the rule is we shall abide by it. But if the court determines that in the first instance the proper appeal is to the whole body on every interlocutory question, we shall claim as a mat- ter of right and as a matter of course that that proceeding shall be had. Mr. Manager BOUTWELL. That is con- ceded, Mr. President. We do not debate that point. Mr. WILSON. I renew my motion that the Senate retire for consultation. Mr. THAYER. On that motion I call for the yeas and nays. Mr. CAMERON. I hope we shall not retire. Several Senators. Debate is out of order. The CHIEF JUSTICE. The Senator is oat of order. Mr. CAMERON. Well, I only say that. The question being taken by yeas and nays, resulted — yeas 25, nays 25 ; as follows : , YEAS— Messrs. Anthony, Buckalew, Cole, Conness, Corbett, Davis, Dixon, Edmunds, Fowler, Grimes, Hendricks, Howe, Johnson, McCreery. Morrill of Maine, Morrill of "Vermont, Morton, Norton, Pat- terson of New Hampshire, Patterson of Tennessee, Pomeroy, Ross, Viekers, Williams, and Wilson — 25. NAYS— Messrs. Cameron, Cattell, Chandler, Conk- ling, Cragin, Doolittle, Drake, Ferry, Fessenden, Frelinghuysen, Henderson, Howard, Morgan, Nye, Ramsey, Saulsbury, Sherman, Sprague, Stewart, Su.raner, Thayer, Tipton, Trumbull, Van Winkle, and Willey— 25. NOT VOTING— Messrs. Bayard, Harlan, Wade, and Yates— 4. The CHIEF JUSTICE. On this question the yeas are 25 and the nays are 25. The Chief Justice votes in the affirmative. The Senate will retire for conference. The Senate, with the Chief Justice, thereupon (at seven minutes before three o'clock) retired to their conference room for consultation. The Senate having retired, Mr. SHERMAN submitted the following order : Ordered, That under the rules, and in accordance with the precedents in the United States in cases of impeachment, all questions other than those of order should be submitted to the Senate. After debate, Mr. HENDERSON moved to postpone the present question for the purpose of taking up for consideration the seventh rule, that he might propose an amendment thereto. Mr. CONNESS called for the yeas and nays on this motion, and they were ordered ; and being taken resulted — yeas 32, nays 18; as follows: YEAS— Messrs. Anthony, Bayard, Buckalew; Cam- eron, Cattell, Cole, Corbett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuy- sen, Henderson, Hendricks. Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hamp- shire, Patterson of Tennessee, Pomeroy, Ross, Sauls- bury, Spraeue, Trumbull, Van Winkle, Viekers, Wil- ley, and Williams^Sa. ' ! „ NAYS-'-Messra. Glwnr«er, Conkllng, Conness, THE CONGRESSIONAL GLOBE. 63 Drake, Perry, Howard, Howe, Morgan, Morrill of Maine, Morton, Nye, Ramsey. Sherman, Stewart, Sumner, Thayer, Tipton, and Wilson— 18. NOT VOTING— Messrs. Grimes, Harlan, Wade, and Yates— 4. So the motion to postpone "was agreed to. Mr. HENDERSON submitted the following resolution : Resolved, That Rule 7 be amended by substituting therefor the following : The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer on the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not othorwise specially provided for. And the presiding officer on the trial may rule all questions of evidence andincidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision ; or he may, at his option, in the first instance submit any such question to a vote of the members of the Senate. Mr. MORRILL, of Maine, moved to amend the proposed rule by striking out the words "which ruling shall stand as the judgment of the Senate." After debate, The amendment was rejected. Mr. SUMNER moved to amend the resolu- tion by adding thereto : That the Chief Justice of the United States, pre- siding in the Senate on the trial of the President of the United States, is not a member of the Senate, and has no authority, under the Constitution, to vote on any question during the trial, and he can pronounce decision only as the organ of the Senate, with its assent. After debate, Mr. SUMNER called for the yeas and nays on his amendment, and they were ordered ; and being taken, resumed — yeas 22, nays ,26 ; as follows: YEAS— Messrs. Cameron, Cattell, Chandler, Conk- ling, Conness, Corbett, Cragin, Drake, Howard, Mor- gan, Morrill of Maine, Morton, Nye, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Trum- bull. Williams, and Wilson— 22. NAYS— Messrs. Bayard, Buckalew, Cole, Davis, Dixon, Doolittlo, Edmunds, Ferry, Fessenden,Fow- ler, Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennes- see. Ross, Sherman, Sprague, Van Winkle, Vickers, and WilIey-26. NOT VOTING— Messrs. Anthony, Grimes, Harlan. Saulsbury, Wade, and Yates— 6. So the amendment of Mr. Sumner was re- jected. Mr. DRAKE moved to amend the resolu- tion by striking out all after the word "that" and inserting : • It is the judgment of the Senate that under the Constitution the Chief Justice presiding over the Seriate in the pending trial has no privilege of rul- ing questions of law arising thereon, but that all such questions should be submitted to a decision by the Senate alone. After debate, Mr. DRAKE called for the yeas and nays, and they were ordered; and being taken, resulted — yeas 20, nays 30; as follows: YEAS— Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Drake, Ferry, Howard, Howe, Morgan, Morrill of Maine, Morton, Nye, Ramsey, Stewart. Sumner, Thayer, Tipton, ajid Wilson— 20. NAYS— Messrs. Anthony, Bayard, Buckalew, Cor- bett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fes- senden. Fowler, Frelinghuysen. Henderson, Hend- ricks, Johnson, McCreery, Morrill of Vermont, Nor- ton, Patterson of New Hampshire, Patterson of Ten- nessee, Pomeroy, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, Willey, and Wil- liams — 30-. ■ NOT VOTING— Messrs. Grimes, Harlan, Wade, and Yates— 4. So the amendment was rejected. The question recurring on the rule proposed by Mr. Henderson, after debate, Mr. FERRY called for the yeas and nays, and they were ordered ; and being taken, re- sulted in — yeas 31, nays 19; as follows : YEAS— Messrs. Anthony, Bayard, Buckalew, Cam- eron, Corbett, Cragin. Davis, Dixon, Doolittle, Edmonds, Fessenden, Fowler, Frelinghuysen, Hen- derson, Hendricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Potterson-of Tennessee, Pomeroy, Ross, 'Saulsbury, Sherman, Sprague, Trumbull, Van Winkle* Vickers. Willey. and Williams-31. NAYS— Messrs. Cattell, Chandler, Cole, Conkling, Conness, Drakes Ferry. Howard, Howe, Morgan, Morrill of Maine, Morton, Nye. Ramsey, Stewart, Sumner, Thayer. Tipton, and Wilson — 19. NOT VOTING— Messrs. Grimes, Harlan, Wade, and Yates — 4. So the resolution submitted by Mr. Hen- derson was agreed to. Mr. SUMNER submitted the following reso- lution : Resolved, That the Chief Justice of the United States presiding in the Senate on tho trial of the President of the United States is not a member of the Senate, and has no authority -under the Consti- tution to vote on any question during the trial. Mr. HENDRICKS objected to the recep- tion of the proposition, as it did not relate to the matter on which the Senate had retired to confer ; and he moved that the Senate return to the Senate Chamber; which motion was agreed to. The Senate returned to its Chamber at eighteen minutes past six o'clock p. m. The CHIEF JUSTICE. The Senate has had under consideration the question before it when it retired, and has directed me to report the rule adopted, which will be read by the Secretary. The Secretary. The seventh rule, as now amended, reads : The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer on the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. And the presiding officer on the trial may rule all questions of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon ; in which case it shall be submitted to the Senate for decision, or he may, at his option, in the first instance submit any such question to a vote of the members of the Senate. The CHIEF JUSTICE. Gentlemen Man- agers on the part of the House of Represent- atives, you will please state your question. Mr. Manager BUTLER. Will you spare us a moment for consultation ? The chairman of the Managers is out. Mr. TRUMBULL. Mr. President, unless the Managers desire that we should continue now in session to take immediate action, I would propose that the Senate adjourn until half past twelve o'clock to-morrow. Mr. FERRY and others. The rules fix twelve o'clock. Mr. TRUMBULL. Very well ; until twelve o'clock. If the Managers desire to submit any particular action at this moment I will with- draw the motion ; if not, I insist upon it. Mr. WILLIAMS. I move, first, that the rules, as amended, be printed for the use of the Senate. The CHIEF JUSTICE. The Senator, from Oregon moves that the rules, as amended, be printed for the use of the Senate. The question being put, the motion was agreed to. Mr. TRUMBULL. I now renew my motion that the Senate, sitting as a court of impeach- ment, adjourn. Mr. Manager BUTLER. We have nothing to oppose to the motion. The CHIEF JUSTICE. Have the counsel for the President anything to propose? Messrs. Staxbery and Evarts indicated that they had not. The CHIEF JUSTICE. It is moved that the Senate, sitting as a court of impeachment, adjourn until to-morrow at twelve o'clock. The motion was agreed to ; and the Chief Justice declared the Senate, sitting as a court of impeachment, adjourned until to-morrow at twelve o'clock. Wednesday, April 1, 1868. The Chief Justice of the United States en- tered the Senate Chamber at five minutes past twelve o'clock and took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives appeared and took the seats assigned them. The counsel for the respondent also appeared and took their seats. The presence of the House of Representa- tives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. Washburne, the chairman of the committee, accompanied by the Speaker and Clerk, entered the Chamber, and were con- ducted to the seats provided for them. The CHIEF JUSTICE. The Secretary will read the minutes of the last day's proceedings. The Secretary read the Journal of the pro- ceedings of the Senate yesterday sitting for the trial of the impeachment. Mr. SUMNER. Mr. President, I send to the Chair an order which is in the nature of a correction of the Journal. The CHIEF JUSTICE. The Secretary will read the order proposed. The Secretary read as follows : It appearing from the reading of the Journal of yesterday that on a question where the Senate were equally divided the Chief Justice, presiding on the trial of the President, gave a casting vote, it is hereby declared that, in the judgment of the Senate, such vote was without authority under tho Constitution of the United States. Mr. SUMNER. On that question I ask for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted — yeas 21, nays 27; as follows: YEAS — Messrs. Cameron, Chandler, Cole, Conk- ling, Conness, Cragin, Drake, Howard, Howe, Mor- gan, Morrill of Maine, Morton, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Trumbull, Wil- liams, and Wilson — 21. NAYS — Messrs. Anthony, Bayard, Buckalew, Cor- bett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fes- senden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers. and Willey— 27. NOT VOTING— Messrs.Cattell.Harlan.Nye, Sauls- bury, Wade, and Yates— 6. So the proposed order was rejected. The CHIEF JUSTICE. Senators, during the proceedings yesterday a question was sub- mitted by the Managers on the part of the impeachment in relation to evidence, and that question was objected to by the counsel for the President. The Managers will now please to submit that question in writing. Mr. Manager Butler presented the ques- tion in writing at the Secretary's desk. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read the following question proposed to be put to the witness, Walter A. Burleigh : " You saidyesterday, in answer to my question, that you had a conversation with General Lorenzo Thomas on the evening of the 21st of February last. State if he said anything as to the means by which he in- tended to obtain, or was directed by the President to obtain, possession of the War Department? If so, state all he said as nearly as you can." Mr. STANBERY. We object, Mr. Chief Justice. The CHIEF JUSTICE. Do you desire to make any observations to the court? Mr. STANBERY. We do, sir. The CHIEF JUSTICE. The question will be submitted to the Senate. Mr. HOWARD. What is the question ? The CHIEF JUSTICE. The Secretary will read the question again. The Secretary again read the question. Mr. FRELINGHUYSEN. Mr. President, I desire to submit a question. The CHIEF JUSTICE. The Secretary will read, the question submitted by the Senator from New Jersey [Mr. Frelinghuysen] to the Managers. The Secretary read as follows : Do the Managers intend to connect the conversa- tion between the witness and General Thomas with the respondent? The CHIEF JUSTICE. Are the Managers prepared to reply to the question 1 Mr. Manager BUTLER. Mr. President, if the point is to be argued, with the leave of the Senate we will endeavor to answer that ques- tion in the argument. The CHIEF JUSTICE. It is to be argued. The honorable Manager will proceed, if he desires. Mr. STANBERY. We do not hear the answer. 64 SUPPLEMENT TO Mr. Manager BUTLER. The answer is, Mr. President, if you will allow me to repeat it, that, as I understand, the point raised is to be argued on the one side and the other, we will endeavor to answer the question submitted by the Senator from New Jersey in the course of our argument. Mr. TRUMBULL. _ Mr. President, I should like to hear the question read.again, as I think the answer to the inquiry of the Senator from New Jersey is in the question propounded by the Managers, as I heard it. The CHIEF JUSTICE. The Secretary will read the question again. Senators will please give their attention. The Secretary again read the question of Mr. Manager Butler. The CHIEF JUSTICE. Do the Managers propose to answer the question of the Senator from New Jersey? Mr. Manager BUTLER. If there is to be no argument, Mr. President, I will answer the question proposed. If there is to be an argu- ment on the part of the counsel for the Presi- dent, we propose, as a more convenient method, to answer the question in the course of our argument, because otherwise we might have to make an argument now. I can say that we do propose to connect the respondent with this testimony. The CHIEF JUSTICE. Senators Mr. STANBERY. Is it in order now, Mr. Chief Justice, for us to argue the question ? The CHIEF JUSTICE. If the counsel desire to submit any observations to the Sen- ate, they may do so. Mr. STANBERY. Mr. Chief Justice and Senators, we have at length reached the domain of law ; we are no longer to argue questions of mere form or modes of procedure, but have come at last to a distinct legal question, proper to be argued by lawyers and to be considered by lawyers. The question now, Mr. Chief Justice and Senators, is, whether any foundation is laid, either in the articles or in any testimony yet given, why the declarations of General Thomas should be used in evidence against the Presi- dent. General Thomas is not on trial ; it is the President, the President alone, and the testimony to be offered must be testimony that is bindiug upon him or admissible against him. It is agreed that the President was not pres- ent on the evening of the 21st of February, when General Thomas made these declara- tions. They were made in his absence. He had no opportunity of hearing them or contra- dieting them. If they are to be used against him, it is because they were uttered by some one speaking for him, who was authorized by him to make these declarations of his inten- tions and his purposes. Now, first of all, what foundation is iaid why the declarations of General Thomas as to what he intended to do, or what the President had authorized him to do, should be given in evi- dence against the President? It will be seen that by the first article the offense charged against the President is that he issued a cer- tain order to Mr. Stanton for his removal ; or- dering his removal, and adding that General Thomas was authorized to receive from him a transfer of the books, papers, records, and property in the Department. Now, the of- fense laid in that article is not as to anything that was done under it, but simply that in itself the mere issuing of that order is the gravamen of the offense charged. So much for the first article. What is the second ? That on the same day, the 21stof February, 1868, the President issued a letter of authority to General Thomas, and the gravamen there is the issuing of that letter of authority, not anything done under it. What next? The third article goes upon the same letter of authority, and charges the issuing of it to be an offense with intention to violate a certain statute. Then we come to the fourth article, which charges a conspiracy. Senators will observe that in the three first articles the evidence charged is issuing certain orders, nothing be- yond, as in violation either of the Constitution or of the act called the termre-ofoffice act. But by the fourth article the Managers proceed to charge us with an entirely new offense against a totally different statute, and that is a conspiracy between General Thomas and the President and other persons unknown, by "force" in one article, " by intimidation and threats" in another, to hinder and prevent Mr. Stanton from holding the office of Secretary of War, and that in pursuance of that conspir- acy certain acts were done which are not named, with intent to violate the conspiracy act of July, 1861. These are the only charges that have any relevancy to the question which is now put. I need not refer to the other articles, in which offenses are charged against the President arising out of his declarations to General Em- ory, the speeches made, one at the E.\ecutive Mansion in August, 18G6, another at Cleve- land on the 3d day of September, 1866, and another at St. Louis on the 8th of September, 1866. For the present they are out of the way. Now, what proof has yet been made under the first eight articles? The proof is simply, so far as this question is concerned, the pro- duction in evidence of the orders themselves. There they are' to speak for themselves. As yet we have not had one particle of proof of what was said by the President, either before or after he gave those orders or at the time that he gave those orders — not one word. The only foundation now laid for the intro- duction of this testimony is the production of the orders themselves. The attempt made here is, by the declarations of General Thomas, to show with what intent the President issued those orders; not by producing him here to testify what the President told him, bnt with- out having him sworn at all, to bind the Pres- ident bv his declarations not made under oath ; made without the possibility of cross-examin- ation or contradiction by the President himself; made as though they are made by the authority of the President. Now, Senators, what foundation is laid to show such authority, given by the President to General Thomas, to speak for him as to his intent, or even as to General Thomas's intent, which is quite another question. You must find the foundation in the orders themselves, for as yet you have no other place to look for it. Now, whatare these orders? That issued to General Thomas is the most material one; but, that I may take the whole, I will read also that issued and directed to Mr. Stanton him- self. He says to Mr. Stanton, by his order of February 21, 1868: "Sir: By virtueof thepowerand authorityvested in me as President by the Constitution and laws of the United States you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication. "You will transfer to Brevet Major General Lo- renzo Thomari, Adjutant General of tho Army, who has this day been authorized and empowered to act as Secretary of War ad interim, alt record*, books, papers, and other public property now in your custody and charge." So much for that. Then the order to Gen- eral Thomas of the same day is: Sir: Hon. Edwin M. Stanton having been this day removed from office as Secretary for tho Depart- ment of War, you are hereby authorized and em- powered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office. Mr. Stanton has been instructed to transfer to you all thoreeords, books, papers, and other public prop- erty now in his custody and charge. Respectfully, yours, ANDREW JOHNSON. To Brevet MajorGeneral Louknzo Thomas, Adjutant General United States Army, Washington, 1). C. There they are; they speak for themselves, orders made by the President to two of his subordinates ; an order directing one of them to vacate his office and to transfer the books and public property in his possession to another party, and the order to that other party to take possession of the office, receive a transfer of the books, and act as Secretary of War ad interim. Gentlemen, does that make them conspirators ? Is that proof of a conspiracy or tending to have «, conspiracy > Does that make General Thomas an agent of the 1 resi- dent in such a sense as that the President is to be bound by everything he says and everything he does even within the scope of his agency? If it makes him his agent, does this letter of authority, this written authority, authorize In in to do anything but that which he is commanded to do— go there and demand possession, go there and receive a transfer from the person ? Does it authorize him to use force? Does it authorize him to go beyond the letter and the meaning of the authority w'hich is given him? Not at all. Now, in the first place, it must be either on the footing of a conspiracy between General Thomas and the President or upon the footing of a direct agency, in which the President is the principal and General Thomas is the agent, that the declarations of General Thomas, either as coconspirator or as agent of a principal, acting within his authority, are to be admitted in evidence. I do not know any othergrouud upon which the learned Managers can glace the admissibility of this hearsay declaration, not under oath, by a party not on the record. I agree that when a proper foundation is laid by proof of a conspiracy in which A,-B, and C are concerned then the declarations of any one of the conspirators, made while the conspiracy is in process, made, too, in further- ance of the conspiracy, not outside of it, not in reference to any other unlawful act, but in reference to the very unlawful act agreed upon, maybe admitted. I concede that, under these circumstances, the declaration of any one con- spirator binds all his fellows, although made in their absense. So, too, 1 agree, Senators, that wjjen an agency is established, either by parol proof or by writing — and when established by writing that is the measure of the agency, and you cannot extend it by parol proof- when an agency is constituted either by parol proof or by writing to do a certain thing, the acts, and, under certain circumstances, the declarations of the agent, made in performance of that authority, not outside of it, but in per- formance of it, bind the principal. Now, I ask this honorable court where is there any evidence yet establishing anything like a conspiracy between the President and General Thomas? Where is there any proof yet establishing any agency between General Thomas aud the President, in which the Presi- dent was principal and General Thomas the agent, save this letter of authority? I do not admit that this letter of authority constitutes the relation of principal and agent at all. I do not admit that the President is to be bound by any declarations made by General Thomas on the footing that he is agent of the Presi- dent ; but if he were, if this were a case strictly of principal and agent, then I say this letter of authority gives no authority to Geueral Thomas to bind his principal beyond the express authority so given. The object of this proof, as we are told by the learned Manager, is to show that General Thomas declared that it was his intention and the intention of the President, in executing that authority, to use force, intimidation, and threats. Does the authority authorize any- thing of that sort, even if it were a case of prin- cipal and agent? Suppose a principal gives authority to his agent to go and take possession of a house of his in the occupation of a tenant, and to receive from that tenant the delivery of the house ; does it authorize the agent to go there mauuforii to commit an assault and bat- tery upon the tenant, to drive him out ci et armis, or even scarcely to use the moUiter manus ? I submit not. Is the principal to be made a criminal by the act of his agent acting simply under an authority which purports only to give a right of peaceable possession and of surrender by the consent of the party in possession ? Is the principal to be bound by any excess of authority used by his agent in executing it ; or is he, when the authority is in writing and does not authorize force to be bound by the declarations of the agent that THE CONGRESSIONAL GLOBE. 65 force will be used ? Which of us would ever be safe in giving any authority to an agent if we ai$ to be submitted to consequences like these ? But, Senators, this is not a question of prin- cipal and agent. What, I pray you, has the President done that he is held to be a conspira- tor or as a principal giving unlawful authority to an agent? Does the President appoint Gen- eral Thomas his agent in any individual capa- city to take possession of an office that belonged to him or of books and papers that were his property ? ^ Not at all. What is the nature of this order ? It is, according to the accustomed formula, the designation of an officer, an officer already known to the law, to do what? To exercise a public duty, -to perform the duties of apublic office. Is the person thusappointed by the President his agent? When he accepts his appointment does he act only under the instructions of the principal, and is he the agent of the principal to carry out a private purpose or to perform a private duty? Cer- tainly not. He at once becomes an officer of the lavvf with liabilities himself as a public officer, liable to removal, liable to impeach- ment, liable to indictment and prosecution for anything which he may do in violation of his duties as a public officer. Are all the officers of the United States who have been appointed just in this way the agents of the President ? When the President gives a commission, either a permanent one or a tem- porary one, to till a vaoaney or to fill an office during a disability, -are the persons so desig- nated and appointed his agents, and is he bound by everything they do? If they take a bribe, is it a bribe to him? If they commit an assault and battery, is it an assault and battery committed by him? If they exceed their au- thority, does he become liable?' Not at all. If third persons are injured by them in the exer- cise of the power which he has given, may those third persons go back upon the Presi- dent as the responsible party under the prin- ciple respondeat superior ? There is no ideaof principal and agenthere ; it is the case of onejpublic officer giving orders to another public officer. He clothes him, not with his authority, but with the authority of the law, and the public officer so appointed stands under an obligation of oath, not to the princi- pal, not to the President, but to the law itself; and if he does any act which injures a third person, or which violates any law, it is he that is responsible, not the President who has ap- pointed him. Senators, it seems to us that these con- clusions are inevitable. I shall scarcely trouble this honorable court, made up so largely of lawyers of the greatest eminence, with the citation of authorities upon a point so clear as this. I understand the learned Managers to say that they expect hereafter to connect the President with these declarations of General Thomas. Mr. Manager BUTLER. I believe I did not use the word " hereafter. ' ' Mr. STANBERY, Does the learned Man- ager say that he has heretofore done it ? Mr. Manager BUTLER. Ionly say now that I did not say "hereafter," Mr. STANBERY. You expect to do it, not that you have done it? I do not want to criti- cise the language of the gentleman nor to have mine criticised. What I understood the gen- tleman to say, in answer to the question put by a Senator, was that he did expect to show a connection. If he did not mean that he meant nothing : or he meant one thing and said an- other. It was to meet the abjection that as yet you have laid no foundation that the question was put to the learned Manager " do you ex- pect to lay a foundation;" and the answer was in the affirmative. Drawn out after one or two repetitions of the question, the honorable Man- ager tells us they expect to lay the foundation. Is that enough for the introduction of evidence which pr-ima facie' is inadmissible? Is that enough? It is not enough. I agree that there are exceptions in cases of Conspiracy, and, perhaps ( of agency, to the Supplement — 5. necessity v of the introduction of preliminary proof, laying the foundation before witnesses are called to state the declarations of a co- conspirator or of an agent. They are extreme cases and so put in the books, but no such ex- treme case is shown here. But we have heard no reason why we must in this case reverse the order of testimony and go into that which is prima facie inadmissible under the assurance that a foundation is hereafter to be laid. What prevents the gentlemen from laying that foundation? What prevents them from showifig a conspiracy in the first place? What prevents them from showing instructions out- side of this letter of authority to use force, intimidation, or threats? What reason is there? None whatever is stated. Is it a mat- ter merely at the option of counsel in the intro- duction of testimony to begin at the wrong end, to introduce what is clearly inadmissible without a foundation, and to say ' ' We will give you the superstructure first and the foundation last ?' ' Does that lie merely in the option of counsel ? Was such a thing as that ever heard ? None have ever heard it ; and I say, and such are the authorities, that it must be an extreme case, founded upon direct assurance upon the professional honor of counsel, before a court will allow testimony prima facie inadmissible to be admitted under the statement that here- after a proper foundation will be laid. Mr. Manager BUTLER. Mr. President, I must ask that the usual rule shall be enforced here; that if any authorities are to be cited by the counsel for the President they must be cited in their opening, so that we can have opportunity to reply to them, and not after I have replied have authorities cited. If there are none I will go on. The CHIEF JUSTICE. Such is the un- doubted rule. Mr. STANBERY. I think, Mr. Chief Jus- tice, I will allow this question to stand without the production of authorities. Mr. Manager BUTLER. Mr. President and Senators, the gravity of the question presented, being more than the mere decision of a given interrogatory, has induced the President's counsel to argue it at length, they seeing that largely upon this question and the testimony adduced under it upon one of the articles of this impeachment the fate of their client may depend. It is a grave question, and therefore I must ask the attention of the Senate and the presiding officer, as well as I may, to some considerations which determine it iu my mind. But before I do so I pray leave to sketch the exact status of the case up to the point at which the question is produced ; and I may say — I trust without offense — that the learned counsel for the President has entirely ignored that status.' I take for the evidence of it the prop- ositions put forwardin the answer of the Pres- ident, the papers that have been already ad- duced, and the testimony, so far as we have gone. It appears, then, that on or about the 12th day of August last past, possibly before the President conceived the idea of removing Edwin M. Stanton from office at all hazards, claiming the power and right to do so against the provisions of the act known as the tenure of civil office act, he undertook to suspend him under that act. Therefore the decision of this question, in one of its aspects, will decide the great question here at issue this hour. Is that act, up to this time, to be treated as a law of the land, as an aet of Congress valid and not to be infringed by any executive officer whatever ? Because, if it is a law, then the President ad- mits that he undertook to remove Mr. Stanton in violation of that law, and that he issued the order to General Thomas for that purpose, and only to violate it; and his palliation is that he meant to make a case for judicial decision, but to do so he intended to issue the order to Mr. Thomas, and Thomas was, under it, to act in violation of the provisions of that act. Am I not right upon this proposition? That being so, then we have him on his part intending to violate the law; we have him, then, issuing an order in violation of the law; we have him then calling to his aid, to carry out the violation of that law, an officer of the Army. Now, in the light of that position, what is the next thing we find ? We find that he issues an order to Lorenzo Thomas to take possession of the War Department. The learned counsel for the President says that that is an order in the usual form. I take issue with him. There are certain ear-marks about that order which show that it was not in the usual form. It has in it words of imperative command. It is not simply, "you are authorized and empowered to take possession of the War Department;" but it is "you will immediately" — all other things being laid aside, at once, whatever may oppose — "you will immediately enter upon the discharge of the duties of that office." Now, we must take another thing which appears in this case beyond all possibility of cavil, and that is, that the President knew at that time that Mr. Stanton from the first, to wit, on the 12th of August last, claimed the right not to be put out of that office, and when he went out he notified the President solemnly that he only went out in obedience to superior force. To get him out, the President author- ized to take possession the General of the Army of the United States ; and that, for all legal purposes and for all actual purposes, was equivalent to using the force of the whole Army of the United States to take possession of that office, because if the General of the Army thought that the order was legal, he, obeying the orders of his superior, when he was ordered to take possession by force, had a right to use the whole Army of the United States to enforce the President's order. Therefore, the Presi- dent was notified that Mr. Stanton only yielded his office at first to superior force ; and so he did wisely and patriotically, because if he had not yielded, a collision might have been brought which would have raised a civil war, which in the language of the late rebels and General Thomas, is an " onpleasantness" be- tween loyal and rebel men. The President knew that Mr. Stanton at first said, " I will only yield this office to superior force." Then Mr. Stanton having thus yielded it, the General of tha Army took possession, and on the action of the Senate the General vacated it in obedience to the high behest of the Senate, and Mr. Stanton was reinstated in it in obedience to the high behest of the Senate, and being there, he was still more fortified in his position than at first. If he would not yield it except to superior force on the 12th of August, 1867, do you be- lieve, Senators, is any man so besotted as to believe that the President did not know that Mr. Stanton, so reinstated, so fortified, meant to hold the office against everything but force ? The President had been notified that Stanton yielded only to the General of the Army ; wield- ing superior force he had seen Stanton put back by the high authority of the Senate ; he had seen Stanton sustained by a vote of the Senate, declaring that the attempt to remove him was illegal and unconstitutional ; and then, for the purpose of bringing this to an issue, the President of tie United States is- sued his order to General Thomas, another officer of the Army, "You will immediately enter upon the discharge of the duties of the War Office." What then? He had come to the conclusion to violate the law and take possession of the War Office ; he had come to the conclusion to do that against the law and in violation of the law ; he had sent for Thomas, and Thomas had agreed with him to do that by some means if the President would give him the order, and thus we have the agreement between two minds to do an un- lawful act ; and that, I believe, is the definition, of a conspiracy all over the world. Let me restate this. You have the determina- tion on the part of the President to do what had been declared to be, and is, an unlawful act; you have Thomas consenting ; and you have therefore an agreement of two minds to do an unlawful act ; and that makes a conspiracy, so 66 SUPPLEMENT TO far as I understand the law of conspiracy. So that upon that conspiracy we should rest this evidence under article seven, which alleges that — "Andrew Johnson" * * * * "did unlaw- fully conspire with one Lorenzo Thomas, with intent unlawfully to seize, tako, and possess the property of the United States in the Department of War in the custody and charge of Edwin M. Stanton." And also under article five, which alleges a like unlawful conspiracy not alleging that in- tent. Then there is another ground upon which this evidence is admissible, and that is upon the ground of principal and agent. Let us, if you please, examine that ground for a few mo- merits. The President claims by his answer here that every Secretary, every Attorney Gen- eral, every executive officer of this Govern- ment exists by his will, upon his breath only ; that they are all his servants only, and are re- sponsible to him alone, not to the Senate or Congress or either branch of Congress ; and he may remove them ' for such cause as he chooses ; he appoints them forsuch cause as he chooses ; and he claims this right to be illimit- able and uncontrollable, and he says in his message to you of December 12, 1867, that if any one of his Secretaries had said to him that he would not agree with him upon the uncon- stitutionality of the act of March 2, 1867, he would have turned him out at once. All this had passed into history, and Mr. Thomas knew that as well as anybody else. Now, then, what is the position and duties of a Secretary of War, whether ad interim or permanent? It is that he — " Shall perform and execute such duties as shall from time to time bo enjoined on or intrusted to him by the President of the United States agreeably to the Constitution" — Intrusted to him agreeably to the Constitu- tion. "Relative to military commissions, or to the land or naval forces, ships, orwarlike stores of tho United States, or such other matters respecting military or naval atFairs as tho President of the United States shall asdign to the said Department," * * * * "and that the said principal officer shall conduct the business of the said Department in such manner as the President of the United States shall from time to time order or instruct." Therefore, his commission is to do precisely as the President desires him to do about any- thing that pertains to the War Office, and he stands, then, as the agent of the principal — to do what ? He was authorized by the President to obtain possession of the War Office. Was he authorized to do anything else that we hear of up to that time? No. He was to obtain possession of the office. Now, what do we propose to show by this evidence? Having shown that Thomas was authorized to obtain possession of the office ; having shown that he had agreed with the President to obtain it ; having put in testimony that the two stood to- gether in the pursuit of one common object, the President wanting Thomas to get in, and Thomas wanting to get in, and both agreeing and concerting means together to get in, the question is whether, under every rule of law, we are not permitted to show the acts and declarations, however naked these declarations may be, of either oftthese two parties about the common object? And the very question presupposes that we are only to ask the declar- ations of Thomas about the common object. But the ease does not quite stop here, because we shall show that Thomas was then talking about to execute the common purpose. We asked Mr. Burleigh if he was a friend to General Thomas; he said yes; if they were intimate? yes; accustomed to visit backward and forward? yes. Governor Moohhead has already told you that Mr. Burleigh was a friend of the President. There needed somebody to aid in this enterprise; some moral support was wanted in this enterprise ; and we propose to show that General Thomas was endeavoring to get one of the members of the House of Rep- resentatives to support him in the enterprise, and was laying out the plan, and that he asked him to go with him the next morning and aid him in the enterprise, and be there aiding and abetting in the enterprise. Such is the testi- mony we propose to show, and that is one way in which we propose to connect the President with the joint enterprise. Such is the exact condition of things. Now, having shown a common object, whether a lawful or unlawful one would make no difference as to this point ; but, as I contend, a common, unlawful object, and hav- ing shown the two parties agreeing upon one thing, having shown the authority of one to the other to do an act, can we not put in the declarations of both parties in regard to that act? Do not the acts of one become the acts of the other ? Take the testimony we put in yesterday. Why did not my learned friends object to what Thomas said to Mr. Stanton when he demanded the War Office? The President was not there. To use the argu- ments of the learned counsel for the President, Thomas was not upon oath ; .he was acting in the President's absence. Why should we put in the act of Thomas there yesterday? It was because he was doing in relation to the thing itself. Mr. STANBERY. That was within the authority. Mr. Manager BUTLER. Ah! that was within the authority. How was it within the authority ? It was within the authority because the President had commanded him to take possession. Now, then, I want to showthe means by which he was to take possession. How was that to be done ? Why, they say (and only the gravity of the occasion prevents me from believing it a stupendous joke) we should show what he said by calling Thomas. On the trial of one conspirator call the other to show the conspiracy I Was that ever done in any court upon any question whatever, ex- cept one conspirator turns State's evidence or king's evidence, as it is called ? and Thomas, I believe, is not quite bad enough to do that yet. It was never done by intelligent counsel. These, then, are the foundations on which we stand. Now, what are the authorities for receiving these declarations? I hold in my hand Roscoe's Criminal Evidence, and I pro- pose to cite it upon this point : that we are not bound to put in all our evidence at once, and that, by the very acts and declarations of the conspirators themselves, we may prove the conspiracy: I read from page 390 : "Tho rule, says Mr. Starkie, that one man is not to be affected by the acts and declarations of a stranger, rests on the principles of the purest justice " — "Acts and declarations. of a stranger," you will observe — "and although the courts, in cases of conspiracy, have, out of convenience, and on account of the diffi- culty in otherwise proving the guilt of the parties, admitted the acts and declarations of strangers to be given in evidence, in order to establish the fact of a conspiracy, it is to be remembered that this is an inversion of the usual order, for the sake of conven- ience, and that such evidence is, in the result, mate- rial so far only as the assent of the accused to what has been done by others is proved."— 2 Stark. Ev. t 235, second edition. " It has since 1 - been held that the prosecutor may either prove the conspiracy which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy." And we have attempted to prove the con- spiracy in the same way. Again, the authority says : , "Where, therefore, a party met, which was joined by the prisoner tho next day, it was held, that di- rections given by one of the party on the day of their meeting, as to where they were to go, and for what purpose, were admissible, and the case was said to fall within Rex ve. Hunt, 3 B., and Aid.. 5i3l>, where evidence of drilling at a different place two days before, and hissing an obnoxious person, was held receivable." The answer of the learned counsel to the authority would be to say, "those were acts." I agree ; but declarations simply may be proof of such conspiracy. Now, then, if the Senate believe that we have shown any common pur- pose, which is all that is necessary, between the President and Thomas, then this authority which we find on page 393 is in point: ' " The cases in which after tho existence of a con- spiracy is established, and the pnrtioulnrdefendants have been proved to have been parties to it the acts 5 ^declarations of other conspirators £W £ «*™l in evidence against them, have already been con- sfdered (vide ante, pp. 76-80.) It seems to make no difference as to the admissibility oi this evidence, whether the other conspirators be .indicted or not, or tried or not; for the making of them codefend- ants would give no additional strength to their dec- larations as against others. That authority answers the argument of the learned counsel for the defendant when he says Thomas is not here on trial. No ; but his conspirator is, his master is, his principal is, and the fact that he is not present makes no difference on the question of evidence. The evidence is admissible because of the mutual agreement. To show that this doctrine stands upon the same ground, as well in civil cases as in crim- inal, f refer next to 2 Carrington and Payne, p. 232. This was an action of false imprison- ment against three certain defendants : "The plaintiff's counsel wished to give in evidence, that several weeks after all the defendants had locked the plaintiff up in the cage, the defendant. Court, said, 'I will take care that neither of the Wrights shall have a bed to lie on before the end of six months.' At the time this was said the other defendants were not present." These three men had engaged in locking a man up in jail, and weeks afterward one of the defendants made a declaration as to his purpose, and that was to oppress the party injured by keeping him locked up and putting him to bodily inconvenience. "Jervis, for tho defendants, objected that this dec- laration of the defendant, Court, ought not to be received in evidence, because it was made in the absence of the other defendants." ********** " Garrow, B. — I am of opinion that this declara- tion of tho defendant. Court, is evidence. It is ne- cessary that tho plaintiff should connect all the defendants as joint trespassers in the fact of impris- onment: and, having done so, I must receive in evi- dence anything that either of the defendants said relative to the trespass, though in the absence of the others. So much as to the law. On the hardship of the case I need only say that if the law were not so, a man going to do another an injury might proclaim his malice in tho market-place and yet shut out evi- dence of such malice from the consideration of the jury by only associating himself in the transaction with other persons a shade less guilty than himself; and persons may always avoid the declarations of the malice of their codefendants operating against them by taking care-not to be concernedin the doing of things which they cannot afterward justify." Is not this case precisely in point with ours, only a hundred times stronger? But I maybe answered that that is an English case. W ell, I have here a United States case, the case of the United States vs. Gooding, 12 Wheaton ; I shall read from pages 469 and 470. Let me state the case. One Gooding had fitted out at Baltimore aslaver called the General Winder — and I may say, in passing, a very proper name for it — and having fitted her out he sent her to the West Indies, and there being at the West Indies, before she started on her voyage to Africa, the captain undertook to tell a witness on what voyage she was going, where she was bound ; the evidence offered being : ■"That he. Captain Coit, was at St. Thomas while the General Winder was at ttuit island, iu September, 1^-4, and was frequently on board tho"vessel at that time ; that Captain Hill, the master of the vessel, then and there proposed to tho witness to engage ob board the General Winder as mate for the voyage then in progress, and described the sameto be a voy- age to the coast of Africa for slaves, and thence back to Trinidad de Cuba; that he offered to the witness seventy dollars per month, and five dollars per head for every prime slave which should be brought tb Cuba; that onthe witness inquiring who would see the crew paid iu the event of a disaster attending the voyage, Captain Hill replied, 'Uncle John,' moan- ing (as the witness understood) John Gooding, the defendant." The defendant being in Baltimore at that time. The first point taken in this case was that the act of hiring a man to be a mate was in the scope of his authority ; and the second point was that telling who would pay him was a declaration of one of the principals, of one of the conspirators, if you please, of one party engaged in a joint transaction with the other. Upon that the court say : "Those declarations and explanations arc as much within the scope of tho authority as the act of hiring itself. Our opinion of the admissibility of this evi- dence proceeds upon the ground that these were not tho naked declarations of the master, unaccompanied with his acts in that capacity, but declarations THE CONGRESSIONAL GLOBE. 67 "Wraplcd with proceedings for the objects of the voy- age, and while it was in proeress. Wegivenoopinion upon the point whether mere declarations uuder other circumstances would have been admissible." Now, let us see the condition of General Thomas. He had been on the 21st of Febru- ary ordered to take possession " immediately," at once. He bad gone to a friend of his, Mr. Burleigh, and wanted him to aid him in this object, He was hiring a mate, if you please, on that voyage, precisely within the case of Gooding. He was wanting somebody to aid him ; and he thereupon describes to Burleigh the voyage; that it was to be a slaver's voyage ; what he was to pay ; how it was to be received ; how he was to seize the slave ; or, in other words, how he is to seize the War Department ; and we offer to put these things in evidence by his declarations. I have but one authority more, and I will cease troubling the Senate upon this point. I read from 3 Greenleaf on Evidence, section ninety- three: " The evidence in proof of a conspiracy will gen- erally, from the nature of the cose, be 'circumstan- tial.' Though the common design is the essence of the charge, it is not necessary to prove that the de- fendants came together and actually agreed in terms to have that design and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object, often by the same means, one performingonepartand another another part of the same, so as to complete it with a view to the attainment of that same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object." Almost in the language of this authority the object was to get the War Department at all hazards. That is agreed ; that is in the Presi- dent's answer. It is there said to be a, high constitutional prerogative to do it I They had been notified that Stanton would hold it by force, as, thauk God, up to this hour, he has held it against these conspirators; and being notified that he would not deliver it except to force, they then started out to devise ways and means, and we shallshowyou, and by these very conversations with this very person, Thomas de- flared that if he had not been arrested by the intervention of the courts he would have used force on the morning when he was there, as has been shown. Now, are we, npon the trial of this issue, to be told that the President of the United States can employ men to go to do this, that, and the other, which is illegal, admitted to be illegal, unless the law is unconstitutional, and then turn back upon us and say, "Oh, you cannot put in what my agents said while they were pursuing this thing, while they were getting together means to execute my will." Let me illustrate for a moment. This is only to Bur- leigh. Suppose Thomas had gone to get the commander of this department, General Em- ory, with his forces. Suppose he had said to him, "I want you to come to-morrow to aid me and see me take this Department by force," could we not put that in? Is this objected to because he only asked Mr. Burleigh? If he kept asking men enough to go with him he would have had enough, as he thought he had, until the hand of the law was laid upon him. There- fore I respectfully answer the question put by the learned Senator that we have connected and do expect to connect the President with this by a series of acts, a series of declarations, a series of operations which will leave no doubt on the mind of any Senator what this purpose was. But we claim, further, that there is no doubt upon any man's mind what the-pnrpose was at that hour. I desire, in closing, simply to call your at- tention to the opening address of the Attorney General — I beg pardon, the learned counsel for the defendant ; he will pardon me, but I have been so accustomed to meet him in other relations that I sometimes forget. He says that we have now got to a question of law fit to be argued by lawyers to lawyers, implying that all other questions w 'ich have been argued before this high court, as he insists upon calling it, have not been fit to be argued either by lawyers cr to lawyers. It is for you to defend yourselves from that sort of imputation. I had supposed the great questions we had been arguing were not only fit to be argued by law- yers to lawyers, but by statesmen to statesmen, by the Representatives of the people to the Senators of the United States. And I insist that this question is not one to be narrowed down to the attorney's office, but is to be viewed in the light of the law and enlightened jurisprudence as it will be administered by the Senate of the United States. The question for you to determine is, will this evidence aid you, for you are both court and jury; this is not a case where the court rule one way and the jury may go another; but you are both court and jury — will this evi- dence enlighten you if you hear from this Sec- retary ad interim as to what he was doing and intending to do in this matter, joint enterprise of himself and the President. Will it enlighten you upon the judgment you are to render ? If it will not, then you will say so, and vote that it shall not be heard, and the people's case will not be brought before the Senate. If, on the contrary, it will enjighten you, then I re- spectfully and earnestly urge that it may be received. And in this we are fortunate in being sustained by the high authority of the presiding officer. I had supposed this ques- tion was ruled and settled yesterday, and hardly expected to debate it this morning. All I can say is, as the decision is made, however much I might have objected to the mode in which it was made, I respectfully submit stare decisus let the decision stand, in the language of the rule, as the judgment of the Senate. Mr. CURTIS. Mr. Chief Justice, I ask to have the question propounded by the honor- able Managers read. It is long, and consists of different parts, and I desire it to be dis- tinctly understood before I speak to it. The CHIEF J USTICE. The Secretary will read the question propounded fyy Mr. Manager Butleb to the witness. The Secretary read as follows : " You said yesterday, in answer to my question, that you had a conversation with General Lorenzo Thomas on the evening of the 21st of February last. State if he said anything as to the means by which be intended to obtain, or was directed by the Presi- dent to obtain, possession of the War Department. If so, state what he said as nearly as you can." Mr. CURTIS. Mr. Chief Justice and Sen- ators, you will observe that this question con- tains two distinct branches. The first inquires of the witness for declarations of General Thomas respecting his own intent. The second inquires of the witness for declarations of Gen- eral Thomas respecting directions given to him by the President. In reference to the first branch, that is, the separate and independent intent of Genera'l Thomas himself, I am not aware that its subject-matter is anywhere put in issue by the articles. General Thomas is not on trial. It is the President who is on trial. It is his iutentions or directions, the means, the unlawful means, which he is charged with having adopted and endeavored to carry into effect, which constitute criminality in those articles which relate at all to this subject; and therefore it seems to me that it is a sufficient objection to the first part of this question that it relates to a subject-matter wholly immaterial, and which, if proved by legitimate evidence, ought in no manner to affect the case of the President. The President is not charged here with any ill intentions or illegal -iutentions of General Thomas; he is charged here with his own illegal intentions ; with them alone can he be charged ; and therefore I respectfully sub- mit to Senators that that branch of the question which seeks to draw into this case evidence of the intentions of General Thomas, aside from instructions given to him or views communi- cated to him by the President himself, is utterly immaterial, and ought not to be allowed to be proved by any evidence, whether competent or incompetent. In the next place, I submit that the evidence which is offered to prove the intention of Gen- eral Thomas, if that fact were in issue here, and could, when proved, have any effect upon the President's case, is not of an admissible character. The intent of a party, as every lawyer knows, is a fact, and it is a fact to be proved by legal and admissible evidence, just as much as any other fact. It-is natural for a person not a lawyer to say that the true way to ascertain a man's intent is to take what he says is his intent; because intent is a state of mind, and when that is expressed that expres- sion is fit evidence of it. All that is true ; but inasmuch as it is not sworn evidence of it, in- asmuch as it is not given by the man when on the stand in the presence of the accused and with opportunity for cross-examination, it is no evidence at all, unless you can bring the case within one of the exceptions which exist in the law ; one of these exceptions, as has been said by my associate counsel, being the case of principal and agent ; the other the case of coconspirators. I do not propose to go over the argument which was so clearly and forcibly put, as it seems to me, by my associate, who opened it. I think Senators must have understood per- fectly well the grounds upon which it is our intention to rest this objection to the declara- tions of General Thomas so far as regards his own intent, that he was not the agent of the President, that he received from a superior officer an order to do a certain thing, and in no sense thereby became an agent of that superior officer, nor did that superior officer become accountable for the' manner in which he might carry out that order ; and that this is specially true when the nature of the order is nothing but the designation of one public officer to notify another public officer that he has been designated to discharge the duties of the office from which the latter has been removed ; in which case whatever this designated person may do he does on his own account and by force of his own views of how the authority is to be'earried out unless he has received some special instructions in regard to the mode of carrying them out. We submit, then, in the first place, that the intentions of General Thomas are immaterial, and the President cannot be affected by them ; and secondly, if they be material, they must be proved by sworn evidence, and not by hearsay statements. The other part, Senators, of the question appears to me to admit of even less doubt; and that part is attempting to inquire of the witness what was said by General Thomas re- specting directions or instructions given to him by the President, which presents the naked case of an attempt to prove an authority of an agent by the agent's own declarations. The question is whether the President gave instruc- tions to General Thomas in regard to the par- ticular manner or means by which this order was to be carried out. Upon its face the order is intelligible. We understand it to -be in the usual form. There is no allusion made to the exercise of force, threats, or intimidation of any kind. Now they propose to superadd to this written order, by means of the declarations of the agent himself, that he had an authority to use threats, intimidation, or force; and no lawyer will say that that can be done unless there is first lard the foundation for it by show- ing that the two parties were connected to- gether as coconspirators. I agree that if they could show a conspiracy between the President and General Thomas to which these declara- tions relate, then the declarations of one of them in reference to the subject-matter of that conspiracy would be evidence against the other. Now, what is the case as it stands here be- fore you, and as is asserted by the honorable Manager himself? He starts out with the proposition that the President in his answer has admitted his intention to remove Mr. Stan- ton from office. That, he says, was an illegal intention. That, he says, was an intention to be carried out by means of the order given to General Thomas; and when the President, he says, gave that order to General Thomas, and 68 SUPPLEMENT TO General Thomas accepted it and undertook to execute it, there was aa agreement between them to do an illegal act. What was the ille- gal act which thus far we have got what he calls a conspiracy to do ? It was to remove Mr. Stanton ; and, if that be contrary to the tenure-of-office act, that, when accomplished, may be an illegal act. But is that the illegal act which they are now undertaking to prove? Is that the extent of the conspiracy which they arenowundertakingtoshow? Notatall. They are passing altogether beyond that. They now undertake to say "We will show that he con- spired with General Thomas to remove Mr. Stanton by force, threats, or intimidation, and thus to commit a totally distinct crime under the conspiracy act." That is the conspiracy which they propose to show. Having shown only an agreement to remove Mr. Stanton, and starting with that agreement, which of course makes the entire limits of the conspiracy, as they call it, of which they have given evidence, all circumscribed within this intention merely to remove Mr. Stanton, they now graft on to that by a pure and mere assumption a conspir- acy to remove him by force ; and so, having proved a conspiracy to remove him without force, we will now give in evidence the declara- tions of these coconspirators to show a conspir- acy to remove him with force. I respectfully submit they have then traveled out of the limits of the conspiracy which they themselves pretend they have given any evidence of; and as soon as they get out of the limits of that conspiracy which they allege and say they have given some proof of, and advance to another and totally different conspiracy, namely, the conspiracy to turn out Mr. Stanton by force, then they must give some evidence of that other conspiracy before they can use the declarations of either of the partieB to it as evidence against the Pres- ident. But, Senators, I do not think this thing should be left here. It is an entire misconcep- tion of the relations of these two parties, the Commander-in-Chief and a subordinate officer, one receiving an order" from the other, under any circumstances which appear here, or which there is any evidence here tending to prove, to call it a conspiracy. The learned Manager has said: "If I show an agreement between two persons to do an unlawful act that is a con- spiracy, is it not?" It may be ; but when the Com mander-in- Chief gives an order to a subor- dinate officer to do an act, and the subordi- nate officer goes to do it, is that done by agree- ment between them ? Does it derive its force and character and operation from any agree- ment between them, any concurrence of their minds by which the two parties assent and agree together so as to accomplish something which without that assent and agreement could not be done ? Is it not as plain as day that military obedience is not conspiracy and can- not be conspiracy ? Is it not as plain as day that it is the duty of the subordinate officer when he receives an order from his commander to execute that order? My associate [Mr. Evarts] suggests to me that, as is a well-known fact, and will, no doubt, appear in the course of the proceedings, when General Grant received an order from the President to take this same place, he put it upon the ground of military obedience. Was that a conspiracy ? Senators, there can be no such thing as a conspiracy between the Com- mander-in-Chief and a subordinate officer, aris- ing simply from the fact that the Commander- in-Chief issues an order and the subordinate officer obeys it. Therefore I respectfully sub- mit that the honorable Managers have not only proved not even the conspiracy to remove Mr. Stanton without force, but they have offered no evidence here tending to prove any con- spiracy at all. It rests exactly where the written orders place it ; an order from a superior offi- cer to an inferior officer and an assent by him to execute that order. It has been said by the learned Manager in the course of his argument that we ought to have objected, if-we took this view of the case, to the declarations made by General Thomas when he went to the War Department on Sat- urday, the 22d of February. We could not make any objection to what he then said. It was competent evidence. He was there in pursuance of the order given to him by the President. He -vas doing what the President authorized him to do, namely, delivering one orderto Mr. Stanton, he being for that purpose merely the messenger of the President ; and, having executed that, to take possession under the other order. Of course he authorized him to demand possession, and he did demand it; but that demand was as much an act and aB capable of proof and proper to be proved as any other act. Therefore we could have taken no such exception ; it could not have come at all within the range of any of the objections which we now take. The learned Manager relies, also, on certain authorities which he has produced from the books. The first is a case stated in Roscoe's Criminal Evidence ; page 390, 1 think, he read from, showing that under some circumstances the acts of coconspirators, even before the person on trial had joined the conspiracy, may be proved, I see no difficulty in that. The first thing is to prove a conspiracy, which is a separate and independent fact, or may be wholly separate and independent from the evidence by which yon prove the other step, namely, that a particular person joined in it. In that case the Governmentundertook to show, in the first place, that there was a conspiracy. They proved it by the assembling together of a body of men for the purpose of military training, &c. Having proved that there was a conspiracy, they then took the necessary step to show that the accused on a subsequent day joined himself in that conspiracy. That was all regular and proper. If they will take the first step here and in support of their articles undertake to show by evidence a conspiracy between the President and General Thomas, when they have done that they may go on and give evidence of the declarations of one or both of thein to charge the other ; but until they do I submit that they cannot give such evidence. The case from 2 Carrington and Payne was a case of a joint act of three persons falsely imprisoning a fourth. There was the con- spiracy; there was the false imprisonment, the illegal act, done in pursuance of the con- spiracy ; and the court decided that a declara- tion made subsequent to the imprisonment as to what the intentions of the parties were and how they intended to carry it out would be admissible against the others, all of which falls easily within the same rule. ' The case from 12 Wheaton was one where the owner of a ship having authorized the master to fit out a vessel, the declarations of the master were given in evidence to show the object and intentions of the voyage. Unques- tionably, if he had made him his agent to carry on a slaving voyage he made him his agent to do all acts necessary to carry it out. What was the act that was given iu evidence? It was an attempt to engage a person to go on a slave- trading voyage in a subordinate capacity. In the course of that attempt he stated to him what the character and purposes of the voyage were ; but it was an act which he was engaged in, an act within the scope of his authority to carry on the voyage and to engage persons to assist him in doing so. This, also, falls easily within the scope of the principles upon which we rely. We submit, then, to the Senate that neither of these questions should be allowed to be put to this witness. I ought to say, and I am re- minded by one of my associates to say, that the statement by the honorable Manager that the answer of the President admits his intention to remove Mr. Stanton from office illegally and at all hazards is not true. The honorable Manager is mistaken if he has so read the an- swer. The answer distinctly says, in the first place, that the President believed, after the greatest consideration, that Mr. Stanton seas* was not within the tenure-of-office act} ..and the answer further says that he never author- ized General Thomas to employ threats, force, or intimidation, and if the honorable Manager refers to the answer as his evidence for one purpose he must take it as it stands. Mr. Manager BINGHAM. Mr. President and Senators, I had occasion to remafi yes- terday, upon the ruling of the presiding officer of the Senate, that the Managers on the part of the House had no cause of complaint touch- ing that ruling, which had relation to the intro- duction of this testimony. I said it, Senators, because I was assured when I did say it, that the ruling of the presiding officer stands upon all the authorities, English and American, and upon that point I challenge to-day any author- ity to call in question the ruling that the testi- mony this morning objected to, and ruled as admissible yesterday by the presiding officer, is not admissible. I have listened with due attention to the learned gentlemen who have argued in support of this objection. Admitting their premises, it might be but just to them to say that their conclusions follow ; but, Senators, I deny their premises. There is nothing in the record that justifies that they shall assume here, for the purposes of this question, that we are re- stricted, as wasintimated by the learned counsel for the President, to the article which alleges that this conspiracy was to be executed by force. There is nothing in this case, aa it stands before the Senate, that justifies the assumption that the Senate is to be restricted in the decision of this question to the other article which alleges that this conspiracy was to be exercised by threats and intimidation. There is nothing iu the question propounded by my associate to the witness which justifies the assumption made here that the witness is to testify that any force was to be employed at all, although, if he were so to testify, I claim upon the authorities, and upon all the author- ities, that the testimony is admissible. The Senate will notice that in article five there is no averment of force, there is no averment of threat or intimidation. There is simply an averment in article five of an unlaw- ful conspiracy entered into between the accused and Lorenzo Thomas to violate the tenure-of- office act. My associate was right upon all authority, and it is conceded, that if two or more agree together to violate a law of the land it is a conspiracy. That is the point we make here. In article five there is no aver- ment of force, nor is any needed ; there is no averment of threat or intimidation, nor is any needed ; but there is simply an averment of a conspiracy entered into between the accused and Lorenzo Thomas, and other persons un- known to the House of Representatives to pre- vent the execution of the tenure-of-office act. That act declares that a removal, appointment, or employment, made or had, contrary to the act, or an interference, if you please, with the provisions of the act and contrary to its require- ments, shall be a misdemeanor on the partof any man. Of course, if a combination be entered into between two or more to prevent its execution, that combination itself amounts to a conspiracy. The counsel have succeeded most admirably in divertiug the attention of Senators from the question which underlies the admissibility of this evidence, and which controls it. I refer now specifically to article five, upon which, among other articles, we claim this question arises which was not referred to by the counsel for the accused. " That said Andrew Jontison. President of the Uni- ted States, unmindful of the high duties of his office and of his oath of flffice, on the 21st day of February, in the year of our Lord 1868, and on divers other days and times in said year, before the 25tli dwy of March, in th« year of our Lord. 1868. at Washington, in tbe District of Columbia, did unlawfully conspire with one Lorenzo Thomas, and with other persons to the House of Representatives unknown, to hreventand hinder the execution of an act entitled "Anaot r«*a- THE CONGRESSIONAL GLOBE. 69 toting, tha t»nar« <*f certain civil offiem,." paasott March 2,1367. and in pursuance of said conspiracy, did unlawfully attempt to prevent Ijdwin M. Stan- ton, then nod fcfiere being Secretary for the Depart- ment of War, dulynppointed and commissioned un- der the laws of tho United States, from* holding said office, whereby the 'said Andrew Johnson, Presi- dent ef the United States, did then and there' com- mit and was guilty of a high misdemeanor ia office." Now, thetenure-of-officeaet, which is recited in this article, provides expressly that the per- son holding any civil office at the time of its enactment, who has theretofore been appointed by and with the advice and consent of the Senate — " And every person who Shall' hereafter be ap- IMMtted to anji such office, and: shall become duly qualified to act therein, is and shall be entitled to hold such ofiiee until a successor shall have been in like manner appointed' and duly qualified," That is to say, all such officers shall hold their office until a successor be appointed by and with the. adyipe and consent of the Senates The act then provides that the President of the United States shall, during the recess, of the Senate, not at any other tirne than during the recess of the Senate, in case he is satisfied that any officer ia " Guilty of misconduct in office or erime.or for any reason shall become incapable or legally disqualified to perform its duties, in such case, and in no other, the President may suspend suob officer and designate some suitable pgrsqn to perform temporarily the duties of such office until tho next meeting of the Sen>ate, and until tho case shall be acted upon by the Senate; and such person so diesignflttoedsball take the oaths and give the bonds required by law to bo taken and given by the person duly appointed to fill such office; and in such case it shall be the duty of the President, within twento d«ys after the first day of such next meeting of the Senate, to report to the Senato such suspension, with the evidence and rea- sons for his action in the ease, and the name of the person so; designated to perforaa; the duties of such office ; and if the Senate shall concur in such suspen- sion and advise and consent to the removal' of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by an.d with the advice and consent of the Senate, appoint. another person to such office. But if tho Senate shall refuse to concur in such suspension, such officer, so sus- pended, shall forthwith resume the functions of his office." The sixth seetien of the game aet provides : "That every removal, appointment, or employ- ment, made, had, ox exercised contrary, to the. pro- visions of this act, And the. making, signing, sealing, countersigning, or issuing of any com thission or letter of 'authority for or in respect to any such appoint- ment or employment, shall bie deemed-, and are hereby declared to be high misdemeanors. , The conspiracy entered into here between these two parties was tp prevent the execu- tion of this law, which is so plain that no. man can mistake it j nor can the President, in the presence of this tribunal, or Lorenzo Thomas either, shelter himself by the intimation that it was a military .order to a subordinate. Are we to be told in the presence of the Senate.that it is competent for the President of the United States either to shelter himself or any of his subordinates, -by issuing to-morrow a military order, either to Adjutant General Thomas or to any other officer of the Army of the United States, to disperse the Congress of the nation? This is ain afterthought, gentlemen of the Sen- ate. It is no miEtaiy order ; it is a letter of authority within the express words of the statute and in violation of it. The evidence is that Lorenzo Thomas accepted it and acted upon it. The evidence of his action upon it was given yesterday, and received by the Senate without objection. It is too late to raise the question of the competency of this testimony after there is evidence here tending to show a conspiracy to violate the plain letter of this law.. It is perfectly justifiable, I take it, in this tribunal for me to say further, and say it upon my own honor as one of the Managers on the part of the House, that we rely, not simply upon the declarations of Lorenzo Thomas to shame this purpose of the accused at your bar to disregard this statute, to violate its plain rjrovifiofls} that 4he officer thus affirmed by the Senate upon suspension shall forthwith eater upon the duties of his office, but we expect by the written confession of the accused himself to- show to this Senate this day, or as soon thereafter as we can he beard, that it was his declared, fixed purpose, in any event, to defy the authority of the Senate and prevent Stan- ton from resuming the functions of the office. There was no reference then made to the in- tervention of courts. The accused grasped the power in his own hands of repealing the law of the nation, of challenging the power of the nation to bring him to its bar to answer; and now, when we attempt to progress with the trial according to the known and estab- lished rules of evidence in all courts of jus- tice, we are met with the plausible and in- genious-r-more plausible and more ingenious than sound— remark of the learned counsel for the accused who has just taken his seat, that the declaration of one coconspirator oan- not be given in evidence against another as to his mode of executing it. I state it, perhaps, a little more strongly than- the counseL stated it, hut that was exactly the significance of his remark. I should like to know whence he derives any such authority. A declaration of a coconspirator made in the -prosecution of the conspiracy, I venture to say here upon all authority, is admissible, even as to the mode in which he would executeand carry out the common design— admissible not simply against himself, but admissible against his coconspirator, admissible against them, not to establish the original conspiracy, but, to prove the intent and purpose of the party to execute the conspiracy. The conspiracy is complete upon all authority whenever the agree- ment is entered into to violate the law, no matter whether an overt act is ever committed afterward in pursuance of it or not; but the overt acts that are committed afterward by any one of the conspirators in pursuance of the conspiracy are evidence against him, and against his coconspirators. That is precisely the ground uponr which the ruling was -made yesterday by the presiding officer of the court. That is the ground upon which we stand to-day. I quite agree with the learned counsel for the accused that the declaration of a purpose to do some act independent of the original design of the conspiracy, to commit some substantive, independent crime, is eyidenee against nobody but the party who makes it; but how can the Senate judge that such was the declaration of Thomas, when not one word has dropped from the lips of the witness as to how he intended to carry into effect this conspiracy, -which was to prevent the execution of this law, and which, in the Janguage of the accused, as we hope to show it here to the Senate, was determined upon by himself, in. whieh Lorenzo Thomas was in perfect accord with him, having volun- tarily entered upon this duty.? ■ He did not act that day, Senators, as Adjutant General ofthe United States. He acted as Secretary of War ad interim; go denominated himself in pres- ence of the Secretary ; and claimed that he was Secretary of War by virtue of a letter of author- ity which he carried upon his person. Now we are to be told thatbecause he is not on trial before this tribunal his declarations can- not be admitted in evidence, while the counsel themselves read the text going to show that if they were joined in the record, as he may be hereafter, in the event of a certain decision by this tribunal, his declarations would be clearly admissible. The Senate have it in their power, (and there is .authority for saying that,) sitting as a high court of impeachment, fo apply the reason of. the rule, although by the order of the proceed- ing at the common law a different condition of things might obtain in which alone it would apply. We cannot impeach Lorenzo Thomas at all, for the reason that he is not a civil officer of the Government. So we understand it. The power of the House of Eepresenta- tives does not extend beyond the President, Vice President, and other civil officers. To be sure he claims to be a civil officer ; and he is one, if the President of the United States •h^s power, by this combination with him, to repeal your statute and to repeal the Constitu- tion of the country. I have thus spoken on this question, Sena- tors, for the purpose of exposing the signifi- cance and importance which I know the coun- sel for the accused attaeh to it. It is not simply that they desire (I say it with all re- spect) that this testimony shall be ruled out ; but they desire in some sort, in some question- able shape, a judgment now, on the part of the Senate, upon the main question, whether Andrew Johnson is guilty of a crime, even though it be proved hereafter as charged. As I have intimated, it was his purpose to defy the final judgment*^ the Senate itself and the au- thority of the law which declares, if he does so defy it, his act shall be a high misdemeanor. That is what is to be signified by this decision of the Senate. It is not. simply the incompe- tency of this evidence that is looked for, but thre ' ld "iK officer on tho trial shall aircct all tho forms of proceeding while the Senate THE CONGKESSIONAL GLOBE. 71 axe sitting for the purpose of trying an iinpoaoh- ment, and all forms during the trial not otherwise specially provided for. ~And the presiding officer on the trial may rule all questions of evidence and inci- dental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal votebo taken thereon, in which case it shall be submitted to the Senate for decision; or he may, at his option, in the first instance, submit any such question to a vote of the members of the Senate." Mr. JOHNSON. The questions tliat I sub- mitted The CHIEF JUSTICE. Debate is not in order. Mr. JOHNSON. I am not about to debate. The questions that I submitted were not, as I think, heard by all the members of the Senate. I mean the questions which the honorable Managers thought it their duty to decline to answer. I ask that they be again read before the vote is taken. The CHIEF JUSTICE. The questions sub- mitted by the Senator from Maryland will be again read. Mr. Manager BOUT WELL. May the Man- agers be allowed to suggest that the Managers heard the questions and respectfully declined to answer them? It seems to the Managers, also, somewhat in the nature of an argument upon the questions involved. Mr. JOHNSON. Read the question. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read as follows: The honorable Managers are requested to say whether evidence hereafter will be produced to show — 1. That the President before the time when the declarations of Thomas which they propose to prove were made authorized him to obtain possession of the office by force, or threats, or intimidation, if ne- cessary; or, .?. If not, that the President had knowledge that iiich declarations had been made and approved of them. Several Senators. Question! Question 1 The CHIEF JUSTICE. Senators Mr. DRAKE. I call for the yeas and nays, and let us see if the Senate will not orderthem. The yeas and nays were ordered ; and being taken, resulted — yeas 39, nays 11 ; as follows : YEAS— Messrs. Anthony, Cameron, Cattell, Chand- ler, Cole, Conkling, Conness, Corbett.Cragin, Drake, Edmunds, Ferry, Fessenden. Fowler, Frelinghuysen, Grimes.Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermon t, Morton, Nye, Patter- son ofNew Hampshire, Pomeroy, Ramsey, Ross. Sher- man, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, and Wil- wri— 39." NAYS— Messrs. Bayard, Buekalew, Davis, Dixon, Doblittte, Hendricks, Johnson; McCrecry, Norton, Patterson of Tennessee, and Vickers — 11. NOT VOTING— Messrs. Harlan, Saulsbury, Wade, and Yates — 4. The CHIEF JUSTICE. On this question the yeas are 39, and the nays 11. So the Senate decides that the question proposed by Mr. Man- ager Butler shall be put to the witness. Hon. Walter A. Burleigh resumed the stand, and his examination was continued. By Mr. Manager Butler ;. Question. You said yesterday, in answer to my question, that you had a conversation with General Lorenzo Thomas on the evening of the 21st of February last. State if he said anything as to the means by which he intended to obtain or was directed by the President to obtain possession of the War Department? If so, state all he said, as nearly as you can ? Answer. On the evening of the 21st of February last, I learned that General Thomas had been* appointed Secretary of War ad in- terim, I think while at the Metropolitan Hotel. I invited Mr. Leonard Smith, of Leavenworth, Kansas, to go with me up to his house and see him. We took a carriage and went up. I found the General there getting ready to go out with his daughters to spend the evening at ■ some place of-amusement. I told him I would not detain him if he was going .out ; but he in- sisted on my sitting down, and I sat down for a few moments. I told him that I had learned he had been appointed Secretary of War. He Said he had ; that he. had been appointed that day, I think ; that after receiving his appoint- ment from the President he went to the War Office to show his authority or his appointment to Secretary Stanton , and also his order to take possession of the office ; that the Secretary re- marked to him that he supposed he would give him time to remove his personal effects or lus private papers, somethingto that effect; and reply was ' ' certainly. ' ' He said that in a short time the Secretary asked him if he would give him a copy of his order, and he replied " cer- tainly," and gave it to him. He said that it was no more than right to give him time to take out his personal effects. I asked him when he was going to assume the duties of the office. He remarked that he should take pos- session the next morning at ten o'clock, which would be the 22d ; and I think in that con- nection he stated that he had issued some order in regard to the observance of the day ; but of that I am not quite sure. I remarked, to him that I should be up at that end of the avenue the next day, and he asked me to come in and see him. I asked him where I would find him, and he said in the Secretary's room np-stairs. I told him I would be there. Said he, "Be there punctual at ten o'clock." Said I, "You are going to take possession to-morrow?" "Yes." Said I, "Suppose Stanton objects to it, resists." "Well," -said he, "I expect to meet force by force " or "use force." Mr. CONKLING. Repeat that. The Witness. • I asked him what he would do if Stanton objected or resisted. He said he would use force or resort to force. Said I, " Suppose he bars th,e doors?" His reply was, "I will break them down." I think that was about all the conversation that we had there at that time in that connection. By Mr. Manager Butler : Question. Did he say anything to you about being there at the time? Answer. He told me to be there at ten o' clock, if I came. Question. Was there anything said further in the conversation that you remember, by you to him, as to what purpose you would be there for? Answer. Well, to witness the performance ; to see him take possession of the office ; noth- ing more than that. Question. Were you up there at the office at any time before he assumed the duties of Sec- retary ad interim after he assumed the duties of Adjutant General? The Witness. At the Secretary's office? Mr. Manager BUTLER. At the Adjutant General's'office ? .. Answer. Yes, sir. I have frequently been there. Mr. CURTIS, (to Mr. Manager Butler.) Will you repeat the question? Mr. Manager BUTLER. The question is whether you were at the Adjutant General's office after General Thomas assumed the duties of Adjutant General and before he attempted to assume the duties of Secretary ad interim. You say you were. Answer. Yes, sir ; I was there several times ; I do not recollect how many ; but two or three times. Question. Did you hear him saying anything to the officers and clerks of the Department there as to what his intention was when he came in command ? Mr. EVARTS. That we object to. What date do you fix that inquiry as applying, to, Mr. Butler ? Mr. Manager BUTLER. I believe he was restored by the President to the Adjutant Gen- eral's office about a week', if I remember aright — you will correct me if I am wrong — before he was made Secretary ad interim ; and it was within that week that he made these declarations which I now offer. - Mr. EVARTS. Your inquiry, then, is for declarations made antecedent to the action of the President of which you have given evi- dence? Mr. Manager BUTLER. My inquiry is not for declarations. My inquiry is for attempts on his part to .seduee.the officers of the. War De- partment to his allegiance by telling them what he would do for them when he came in over them, precisely as Absalom sat at the gate of Israel and attempted to seduce the people from their allegiance to David,, the king, by telling them what he would do for them when he got to be king. [Laughter.] Mr. EVARTS. Do y^u propose that in your question, about Absalom? Mr. Manager BUTLER. No, sir ; I put that in my illustration. TLaTighter. ] The CHIEF JUSTICE. Do the counsel for the President object to the question? Mr. EVARTS. We object. Mr. Manager BUTLER. Shall I reduce it to writing? Xhe CHIEF JUSTICE. Yes, sir. Mr. EDMUNDS, (at three o'clock p. m.) I move that the Senate sitting .on this trial take a recess for fifteen minutes. The motion was agreed to. The CHIEF JUSTICE resumed the chair at three o'clock and fifteeu minutes, and called the Senate to order. Hon. Walter A. Burleigh's examination resumed : Mr. Manager BUTLER. With the Presi- dent's leave, I will withdraw the question I put for a moment, in order to put another which I think will not be objected to. [To the witness.] I observe, Mr. Burleigh — I did not observe at the moment, but I have observed since — that you did not answer one part of my first question to- day, which was, whether any- thing was said by Thomas at that conversation as to what orders he had received from the President? Mr. EVARTS. That is covered by our pre- vious objection. Mr. Manager BUTLER. Certainly; it is the same thing ; part of the same question. [To the witness. ] Will you answer? Answer. During the conversation General Thomas, after stating, in reply to my inquiry, that he would use force if necessary, stated that he had been required or ordered by the Pres- ident to take charge of the War Department, and he was bound to obey the President as his superior or superior officer. Question. Did that come in before or after he spoke of force in the conversation? Answer. It was in connection with the force, and it was repeated, also, in connection with the breaking of the door to which I have al- luded, I thought I mentioned it ; but perhaps I did not. Mr. Manager BUTLER. I now offer the question which was objected to. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read as follows : Qytealion. Shortly before this conversation about which you have testified, and after the President re- stored Major General Thomas to the office of Adju- tant General, if you know the fact that ho was so restored, were you present in the War Department and did you hear Thomas make any statements to the officers and clerks, or either of them, belonging to the War Office as to the rules and orders of Mr. Stanton or of the office which he, Thomas, would revoke, relax, or rescind in favor of such officers and employes when he had control of the affairs therein ? If so, state when, as near as you can, it was such conversation occurred, and state all he said as nearly as you can ? Mr. EVARTS. The counsel for the Presi- dent object, to that question as irrelevant and immaterial to any issue in this cause, and as not to be brought in evidence against the Pres- ident by any support given by the testimony already in, which would, under any ruling of this court, or on any principle of law, permit these declarations or statements of General Thomas made to the clerks of the War Depart- ment antecedent to the time of the issue of the orders by the President, which are in evi- dence, as to what he, Thomas, would do when he, Thomas, if at all, should become Secretary of War.- Mr. Manager BUTLER. Mr. President, I do not desire to argue this question, for the reason that I think it falls within the question last discussed. If Thomas, as was the ground- 72. SUPPLEMENT TO we put the last question upon, was a cocon- spirator with the President, how can either my learned friends on the other or the Senate know when that conspiracy commenced ? You will observe the question, carries with it this state of facts : Thomas had. been removed from the office of Adjutant General for many years under President Lincoln undojr the administration of Mr. Stanton of the War Office. That is a fact known to all men who know the history of the war. Just before he made him Secretary of War ad interim the President restored Thomas to the War Office as the Adjutant General of the Army. That was the first step to get him in condition to make a Secretary of War of him. That was the first performance of the Presi- dent, the first act in the drama. He had»to take a disgraced officer, and take away his dis- grace, and put him into the Adjutant General's office, from which he had been by the action of President Lincoln and Mr. Stanton suspended for years, in order to get a fit instrument on which to operate ; get him in condition. That was part of the training for the next stage. Having got him in that condition, he being suf- ficiently virulent toward Mr. Stanton for having suspended him from the office of Adjutant Ge'n : eral, the President then is ready to appoint him Secretary dtiinterim, which he does within two or three days thereafter. We charge that the whole procedure shows the conspiracy. Here is the taking up of this disgraced officer and restoring him to a position in the War Office when he was a known enemy of Mr. Stanton's, feeling aggrieved, undoubt- edly, that Mr. Stanton had deposed him, and putting him in there so that he might have some official station ; and then, after having done that, Mr. Thomas goes to seducing clerks to get them ready to receive him when he should be brought into the War Office itself as its head. Now, I propose to show his acts, the acts of one of these coconspirators, clus- tering about the point of time just before the period when he was going to break down the doors of this- office with crowbars and axes and force, as has been testified as he said he was, that he was trying to seduce the clerks and employes from their allegiance. We insist it is all a part of one transaction, and entirely comes within the ruling which has just been made. I believe I have stated the matter as the Managers desired I should. Mr. EVARTS. . The question which led to the introduction of this witness' statements of General Thomas's statements to him, of his in- tentions, and of the President's instructions to him, General Thomas, was based upon the claim that the order of the President of the 21st bfFebruary, upon Mr. Stanton forremoval, and upon General Thomas to take possession of the office, created and proved a conspiracy ; and that thereafter, upon that proof> decla- rations and intentions were to be given in evidence. That step has been gained, and, in the judgment of this honorable Gourt, in con- formity with the rules of law and of evidence. That being gained, it is similarly argued that if, on a conspiracy proved, you can introduce declarations made thereafter, by the same rule you can introduce declarations made thereto- fore ; and that is the only argument which is presented to the court for the admission of this evidence. So far as the statements of the learned Man- ager relate to the office, the position, the char- acter, and the conduct of General Thomas, it is sufficient for me to say that not one particle of evidence has been given in this cause bear- ing upon any one of those topics.. If General Thomas has been a disgraced officer ; if these aspersions, these revilings are just, they are not justified by any evidence before this court. Ani if, as riiatter of fact, applicable to the situation upon. which this proof is sought to be introduced, the former employments of General Thomas and the recent restoration of him to the active duties of Adjutant General ate pertinent, let them be proved j-.and. then we shall have at least the basis of fact of Gen- eral Thomas's previous relations to the War Department, to Mr.. Stanton, and to the office of Adjutant General. And, now, having pointed out to this honor- able court that the declarations sought to be given in evidence of General Thomas to affect the President with his intentions, are confess- edly of a period antecedent to the date to which any evidence whatever before this court brings the President and General Thomas in connection, I might leave it safely there. But what is there in the nature of the general proof sought to be introduced that should affect the President of the United States with any respon- sibility for these general and vagne statements of an officer of what he might or could or would do, if thereafter he should come into the possession of power over the Department? Mr. Manager BINGHAM. I desire to say a word or two in reply. I am willing to con- cede that any question beyond what may have been said by one who is shown to have entered into a conspiracy before the transaction is not admissible. I concede it, however, subject to this exception : that the Senate being the triers of the fact as well as of the law, will remember that the rule of evidence has been so extended on very similar occasions in courts of justice as to allow of declarations of this sort so shortly anterior to the time in which the conspiracy is shown to have been actually entered into to go to the jury and allow them to determine what weight ought to be attached to them. That is the principle upon which the question is put. It is qualified by the words "shortly before." Suppose it were within two or three days, and theactdoneonthepartof the coconspirator was an act tending to bring about the result sought to be accomplished by that which was after- ward mutually agreed upon between them ; is there any one here to doubt that it is evidence tending to show that beyond the facts, so far as they have been traced, some understanding, some arrangement was entered into, and, if you please, a voluntary one, on the part of the man who afterward became by solemn agree- ment a party to the conspiracy — a voluntary act committed on his part in order to commend him to the chief in the conspiracy itself. The general rule as stated in the book, Would admit, I am satisfied, of that latitude of construction. I read from Roscoe's Criminal Evidence, p. 88 : "The evidence in conspiracy is wider than, per- haps, in any other case, Other principles as weli as that under discussion tendinff to give greater latitude in proving this offense. Taken by themselves the acts of a conspiracy are rarely of an unequivocally guilty Character, and they can only be properly esti- mated when connected with-all the surrounding cir- cumstances. " Not only, ns in the case's before mentioned, may the acts and declarations of the prisoner himself on former occasions be admitted when referable to the point in issue, but also the acts and declarations of other persons" — Meaning, of course, en former occasions, supplying the ellipsis — "with whom he has conspired, may, if referable to the issue, be given in evidence against him." That is the general rule ; and yet I admit if it were so framed as not in probability to con- nect itself with the transaction, it ought not to be received; but the question is so restricted — and we do not stand here to claim it unless it falls out on the evidence that it is nearly con- nected in point of time with the operations of these parties — and the testimony itself man- ifestly, as is explained by the Manager on the part of the House who has put the question, indicates a desire and purpose on the part of Thomas to make his arrangements with the employes of the War Department. The CHIEF JUSTICE. The Chief Justice is of opinion that no sufficient foundation has been laid for the introduction of this testi- mony. He will submit the question to the Sen- ate with great pleasure, if any Senator desires it. The question is ruled to be inadmissible. Mr. HOWARD, Mr. President- Mr. Manager BUTLER. I respeotfaliy-r— The CHIEJ? JUSTICE. The Senator from Michigan. Does the Senator desire the ques- tion to be taken by the Senate ? Mr. HOWARD. Yes, Mr. President. Mr. Manager BUTLER. I was about rising to- ask the Senate if they would not relax the rule, and when the Managers on the part of. the House of Representatives and of the peo- ple have a question which they deem of con- sequence to their case allow that to be put to the Senate upon the motion of the House of Representatives. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read as follows: Question. Shortly before this conversation about which you have testified, and after the President re- stored Major General Thomas to the office of Adju- tant General, if you know the fact that he was so restored, were you present in the War Department, and did you hear Thomas make any statements to the officers and clerks, or either of them, belonging to the War Office, as to the rules and orders of Mr. Stanton or of the office which he. Thomas, would revoke, relax, or rescind in favor of such officers and etnployeswhehhehad control of the_ affairs therein? If so, state as near as you Can when it was such con- versation occurred, and state all he said as nearly as you can. The CHIEF JUSTICE. The question is, Shall the question proposed by Mr. Manager Butler be put to the witness ? Mr. HOWARD. On that question I ask for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted— yeas 28, nays 22 ; as follows : YEAS— Messrs. Anthony, Cameron, Cattell, Cband- 1 cr. Cole, Gonkling, Conness, Corbett, Cragifl, Drake, Henderson, Howard, Howe, Morgan, Morrill of Ver- mont, Morton, Nye. Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sprague. Stewart, Sumner, Thayer, Tipton, Trumbull, and Wilson— 28. NAYS — Messrs, Bayard, Buckalew, Davis. Dixon, Doolittle, Edmunds, Jerry, Fessendcn, Fowler, Fre- linghuysen. Grimes, Hendricks, Johnson, McCreery, Morrill of Maine. Nortonv Patterson of Tennessee, Sherman, Van Winkle, Vlokers, Wiflcy, and Wil- liams — 22.. . NOT VOTING-Messrs. Harla and Yates — '&. 'Ian, Saulsbury, Wade, The CHIEF JUSTICE. On this question the yeas are 28 and the nays 22. So the Sen- ate decides that the question shall be put to the witness. Mr. Manager BUTLER. With the leave of the President, I will put this question by por- tions. [To the witness.] Shortly before the conversation about which you have testified, and after the President restored Major General Thomas to the office of Adjutant General, if you know the fact that he was so restored, were you present in the War Department ? Answer. Yes, sir ; I was. By the Chief Justice : Question. Did you know the fact that he was so restored? Answer. He told me so. He was acting in the office. By Mr. Manager Bt/tlEr : Question. Did you hear Thomas make any statement to the officers and clerks, or either of them, belonging to the War Office, as to the rules and orders of .Mr. Stanton, or of the office, which he, Thomas, would revoke, re- lax, or rescind m favor of such officers and employes when he had control therein? If so, state when this conversation was as near as you can. Answer. Soon after General Thomas was restored to his position as Adjutant General I had occasion to go to his office to transact some business with him; and after transacting the business I invited him to take a short walk with me. The general remarked that he had made an arrangement — r- Mr. EVARTS. Mr. Butler, your question was "when?" Mr. Manager BUTLER, (to the witness.) When was this? Answer. Soon after General Thomas's res- toration to office as Adjntant General-. QuesUort,. How long before the time when he was appointed Secretary of War? Answer. I should think not more than a week or ten days. I have no definite means of knowing now. Question. Go on. Answer* He remarked to toe-- — Mr. EVARTS. Wait a moment, Mr. Wit' ness. I understood your question, Mr, Butler, allowed by the Senate, to refer to statements made by General Thomas at the War Office, as THE CONGRESSIONAL GLOBE. 73 heard by this witness, to clerks there of the ! Department. The witness is now proceeding to state what took place in a walk between him and General Thomas. , The Witness. No, sir ; we had not taken the walk. I am not in the habit of testifying before courts, and you will pardon me for a little latitude. Mt. Manager BUTLEE. He had not said that they took the walk. Mr. EVARTS. This, I understand, is. only inducement, Mr. Butler. Mr. Manager BUTLER. The inducement to the conversation. j The Witness. The General remarked to me that he had made an arrangement to have all of the heads or officers in. charge of the dif- ferent departments of the office come in with their clerks that morning, and he wanted to address them. He stated that the rules which had been adopted for the government of the clerks by Iiis predecessor were of a very arbi- trary character, and he proposed to relax them. I suggested to him that perhaps I had better go. Said he, "No; not at all; remain;" and I sat down, and he had some three or four offi- cers — four or five perhaps — come in, and each one brought in a room-full of clerks, and he made an address to each company as they came in, stating to them that he did not pro- pose to hold them strictly to the letter of the instructions; but when they wanted to go out they could go out, and when they wanted to come in they could come in; that he regarded them all as gentlemen, and supposed they would do their duty, and lie should require them to do their duty ; but so far as their little indulgences were concerned— I suppose such as going out across the street or something pf that kind — he did notproposeto interfere with them ; all he expected was that they would do their duty. I waited until he concluded, and we took the walk, and I came away. I re- marked tq^he General he would make a very fine politician. Question*. Did he say anything as to the character of the orders that existed before? Answer. He said that they were very harsh and arbitrary — nothing more than that, that I know of — and he proposed to relax them. Question. You have told us that you had known General Thomas for some time. Had he been off duty as Adjutant General of the Army for sometime before this? Answer. Yes, sir. Question. How long? Answer. I am not able to tell you ; some two or three years, I should think. Mr. STANBERY. Mr. Chief Justice, we object to this mode of {proving orders for re- moval., Mr. Manager BUTLER. I will not press it a hair." I will get the order. Mr. STANBERY. Especially do we object when it is said to disgrace an officer. We would rather see the proof than hear the assertion. Mr. Manager BUTLER. Does the gentle- man, when he makes the gesture accompanying those words mean my assertion, for I am going to prove it upon the oath of a witness. Mr. STANBERY. Is thegentlemanspeak- ing to me? What was. the question? Mr. Manager BUTLER. Whetheryou mean my assertion or the assertion of the witness? The CHIEF JUSTICE. This controversy does not appear to have any proper relation to the case on trial. Mr. Manager BUTLER,, (to the witness.) Bad he been away from the city, and not in the Adjutant General's office for a considerable period of time? Answer. Yes, sir; he had been sent South. Mr. STANBERY. That will not do. Mr. Manager BUTLER, (to the witness.) How lately had he returned to the office when he made this speech? , Answer. I am not able to say ; but a very few days. Question. Since you had the conversation a'bout breaking down the doors of the War Office by force have you. seen. General Thomas? Answer. Yes, sir; I have. Question. Were you called upon by the Man- agers to give your testimony in their room ? Answer. I was. Question. Did you do so? Answer. I did. Question. Was it taken down in short-hand ? Answer. I am not able to say how it was taken down. I did not see it. Question. After it was taken down after you gave it was General Thomas called in ? Answer. He told me he was to be called in. I did not see him go in. I saw him on the floor of the House, and he told me he had been sum- moned, and was going up as soon as some one came for him. Question, Did you see him after he had been up ? Answer. I did. Question. What did he tell you as to your testimony? Mr. EVARTS. That we object to. The CHIEF JUSTICE, (to the Managers.) The honorable Managers will reduce the question to writing. Mr. Manager BUTLER. I have heard the objection. I propose to show, if I am allowed, that Mr. Burleigh's testimony before the Man- agers, which I propose to put in his hand and identify in a moment, was read to General Thomas, containing exactly what he has testi- fied here, and General Thomas said it was all true and never informed Mr. Burleigh that it was not true. I do this by way of settling the question that there can be no mistake about it Mr. STANBERY. For what purpose ? The CHIEF JUSTICE. The Manager will reduce his question to writing, it being ob- jected to. Mr. Manager BUTLER. Well, I will not press it to take time by an argument. [To the witness.] Have you had any conversation since with him as to this conversation about which you have testified ? Answer. I have. Question. What has he said about it ? Mr. STANBERY, Mr. EVARTS, and Mr. CURTIS. That we object to. Mr. Manager BUTLER. I propose to put in subsequent declarations confirming exactly the declarations which have been allowed to be put in. I suppose I can put in the same dec- larations twice. The CHIEF JUSTICE. The question will be reduced to writing if objected to. Mr. Manager BUTLER. I will ask" a single question before that, so as to fix the date. [To the witness. ] When did you see him as near as you can recollect ? Answer. I have seen him nearly every day since then. Question. At any time did you have any conversation with him about this conversation as to which you have testified? Answer. I have had. Mr. EVARTS. You mean the conversa- tion with the clerks? Mr. Manager BUTLER. No', sir ; I mean the conversation about breaking down the doors of the War Office by force. The Witness. I have, sir. Mr. Manager BUTLER. Do you still ob- ject, gentlemen? Mr. STANBERY. Let us see your question. Mr. Manager BUTLER. I will put the question. The question is, at the time when you have seen him since has he restated to you any portion or all of that conversation about breaking dowa the doors of the War Office? Mr. EVARTS. That we object to as lead- ing, among other tilings. Mr. STANBERY. It is clearly a leading question. Mr. Manager BUTLER. I will put it in this form : Since the first conversation has he restated any portion of that conversation; and, if so, what portion ? Mr. STANBERY. We object to that -as leading. Mr. EVARTS. We object, if the court please, that the question should be what sub- sequent conversations he has had, if they are to be given in evidence. Mr. Manager BUTLER. Very well ; to save all objection, then, I will ask this question : What did he state to you, if anything, as to the conversation which be had previously had with you about breaking down the War Office? Mr. EVARTS. That we object to. Ask what conversations the witness has had with him since, if yon wish to give them in evi- dence. Mr. Manager BUTLER. I am content with- that, if that is not objected to. [To the wit- ness.] What conversations have you had with him on that subject since? Mr. EVARTS. That we object to as not admissible evidence. Mr. Manager BUTLER. Timeo Danaos et dona fermtes. I shall not alter my question again. The CHIEF JUSTICE. The question, being objected to, will be reduced to writing. Mr. Manager Butler reduced his ques- tion to writing, and read it, as follows : Question. Have you bad any conversation since the first one and since his appointment as Secretary of War ad interim with Thomas when he said anything about using force in getting into the War Office or in any way or manner reasserting his former conversation, and, if so, state what he said ? The CHIEF JUSTICE. Do the counsel object to that question ? Mr. EVARTS. We object to the question, if the court please. The CHIEF JUSTICE. Do yon desire to be heard in support of the objection ? Mr. EVARTS. Very briefly. The acts of the President and the acts of General Thomas, in pursuance of any authority from the Presi- dent or otherwise, have been given in evidence. That testimony is very limited. What occurred between General Thomas and Mr. Stanton at the War Office is the only measure and extent of evidence bearing upon the actual conduct either of the President, through his agent, or of the agent. It was allowed to give evidence of this appointee's declarations as to what he intended to do, and that evidence has been given. 'Now, statements after the action was complete as to whathis intentions were before cannot be at all material, for intentions not executed in the subsequent action certainly are not material. But thisis still more objection- able as being but an alleged repetition, after the transaction was complete, of what his in- tentions had been before or rather relative to what he said about what his intentions had been before. It is enough to prove what his inten- tions had been before under the latitude which has been allowed by the court to introduce that evidence, to wit, the declarations made to this witness ; but General Thomas's statements afterward as to what previously he, General Thomas, had stated as to what his intentions were is not admissible within any rules of evidence. Mr. Manager BUTLER. Mr. Chief Justice, I understand th« Senate by solemn decision have decided that Adjutant General Thomas, being Secretary of War ad interim, under the circumstances, was so far in conspiracy or in agreement with the President, was so far his servant or agent, that in the course of the pro- ceeding in which he was engaged his acts might be, and his declarations were, evidence. That decision, of course, covers all acts and all declarations. We have shown that on the night of the 21st of February General Thomas said: "I am going up to-morrowonorning with axes and forceysbiUs and bows, to go into the office, break open the door ; I am going in by force; I am going to obey my orders; I am going to obey the orders of the President; I am goinginwith force, and I am going to break down the doors if they are not opened to me." Then it is also in evidence that Mr. Thomas went.up the next morning, not at ten o'clock, but about half past eleven, in a much more 74 SUPPLEMENT TO mild and quiet manner than he had threatened over night to do. -, The argument will be raised by the counsel' for the President, _" This was mere talk of Mr. Thomas, because if he meant anything by it, or if the President had so ordered him, if it was serious really, why did he not the next morniDg go up there with force, either with the Maryland militia, or the Virginia militia, or Some other proper force with which Mr. Thomas should deal, or with a portion of the regular Army of the United States?" That is the argument; and as he did not, these declarations meant nothing. I want to show that afterwards Mr. Burleigh asked him, '.' General Thomas, I went up there to see the performance, and it did not come off according to -contract ; wfcat is the meaning of this ? you did not go and break in ; I wanted to see that go on ; I was going to stand by you," or words to that effect: "I went there to give you my countenance," or something like that; and thereupon Mr. Thomas said: " Well, the reason I did not was that I was arrested by the courts and held to bail, and I could not; I concluded it was not best to use force ; I did not dare do it." Is not that perfectly compe- tent to meet this argument of the counsel, and to show what prevented the outbreak of a civil war ; that it was not the President ; it was not his coconspirator; rt was not their malignity ~ nor want of it ; it was not their will or want of it; but it was the fortunate intervention of the tribunal of justice. That is the point upon which we propose to put in this question. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read the question, as follows: Queatian. Have you had any conversation since the first one and since his appointment as Secretary of War ad. interim — with Thomas — where he has said anything about using force in getting into the War Office, or in any way or manner reasserting the former conversation; and if so, state what he said? The CHIEF JUSTICE. Senators, the Chief Justice is of opinion that within the spirit of the decision just made by the Senate, this question is admissible. Does any Senator desire that the question shall be submitted to the Senate ? If not, the question will be put. Mr. Manager BUTLER, (to the witness.) Will you now state? Mr. Burleigh, you say you have had many conversations. I want to call your attention to one special conversa- tion Mr. CURTIS. I suppose the question should be put to him. Mr. Manager BUTLER, (to the witness.) Have you had any conversation since the first one and since his appointment as Secretary of War ad interim — with Thomas — wherein he said anything about using force in getting into the War Office, or in any way or manner reasserting the former conversation ; and if so, state what he said ? Answer. Some time in the fore part of last week I met General Thomas and we were talk- ing over this question ; it had become noised about; and he told me that the only thing that prevented his taking possession of the War Department that morning was his arrest by the United States marshal, who called on him at a very unusual hour, I think about the time he was getting out of bed. Question. You have stated what he said. Now say what you stated to him ? Give us the whole conversation as well as you can on that occasion 1 The Witness. This last occasion? Mr. EVARTS. That is not within your question. Mr. STANBERY. You are now asking fo» declarations of Mr. Burleigh. Mr. Manager BUTLER. I am asking for both parts of the conversation, which I never yet heard objected to in a court of justice. Mr. STANBERY. You ask for declara- tions of this witness. Mr. Manager BUTLER,' (to the witness.)' What you said to Thomas and he said to you, part of which you have just given us. The Witness. I do not now recollect the precise language which I used to him. It was, however, in connection'with my having gone up there, and that the feast to which I was invited or the performance did not come off; and he gave me as a reason for it that he was arrested by *he United States marshal and taken down before Judge Cartter's court, otherwise he should have gone in and taken possession of theoffice, as Tie told me he would. Question. When was this last conversation, as near as you can tell? Answer. I think it was about the first of last week. Cross-examined by Mr. Staneery: Question. Referring to the interview you had with General Thomas in the Adjutant Gen- eral's office prior to his appointment as Secre- tary of War, had you business there with him, as Adjutant General? Answer. I had bdsiness with the Adjutant General. lean statewhatit was, if you desire to know. Question. No. I do not care about that ; but you went there to see the Adjutant Gen- eral on business? Answer. Yes, sir. Question. And you say you had heard before that that General Thomas was restored to his office ? Answer. I think I had heard it the day be- fore, and I think I heard it from himself. Question. While you were there he sent for the heads of bureaus and their clerks, did he ? Answer. Yes, sir. Question. Whom first did he send for? Answer. I cannot name them now. In fact, I am not sufficiently familiar with their names to tell. Question. Who first came in? Answer. I am not able to say. General Williams was present. I do not know but that he came in first, and I do not know as he did. Question. Did he make an address to each head of bureau and his clerks or did he talk to them all together? Answer. Each one. Question. In succession ? Answer. Yes, sir. Question. How many addresses, then, did he make to separate assemblies? Answer. I think he made four or five. I did not count them, and jt was a matter that did not impress itself on my mind very much. Question.- Did he make the same address to all of them ? Answer. Very nearly the same. Question. Now, please to state what his address was to each of them that he made on that occasion ? Answer. I can only give it to you in a very vague manner. It was a matter that did not concern me very much. It was to state to them that he had come back and assumed the duties of the office ; that he was glad to see them ; that he proposed to relax somewhat the arbitrary rules ; perhaps he did not denominate them arbitrary rules ; he had to me before that ; that he did not wish to hold them up to so strict accountability in being there precisely at nine o'clock, and in not leaving without a written leave as he said had been the case before. He stated to them that he should expect them to discharge their duty, add if, they did that it was all he cared about. Question. When he said he had returned to his office what office did you understand him as returning to ? Answer. Adjutant General. Question. When he gave these orders to these heads of bureaus and'their clerks did you understand him to be giving orders as Adju- tant General ? Answer. I did not .understand him. to be giving orders at all, but it was a mere address. Question. Was he delivering an address then as Adjutant General? Answer. Certainly. Question. In reference to how he expected to carry on that office ? Answer. What he expected of them. Question. You do not mean that he sent for all tile employes in the War Department, do yon? Answer. I think he told me that he directed the head of every department connected with the Adjutant General's office to come. Question. But not those connected with the other offiees — those of the Commissary Gen- eral, the Quartermaster General, &c. Answer. No; only those that were under him. Question. When these heads of bureau re- ceived these orders, did they object that he had no right to give them such orders, or did they thank him for them ? Answer. I heard no objection. They con- gratulated him, a great many of them. Question. Was anything said about his giving them any other orders, or giving them to any other than his own officers, those under him as Adjutant General? Answer. I did notunderstandit in any other way. Question. Then did you hear or see anything improper at that time, and if you did let us know what it was ? Answer. I do not know that I am the judge of what is proper or not proper in the Adju- tant General's office. Nothing occurred that was very offensive to me. Question. Did anything occur that was at all offensive? Answer. No, sir. Samuel Wilkeson sworn and examined. By Mr. Manager Butler : Question. Do you know Lorenzo Thomas, AdjutantMjeneral of the United States' Army ? Answer. I do. Question. How long have you known him? ■Answer. Between six and seven years. Question. Have you had any conversation with him relative to the change in the War Department? If so, state as near as you can when it was and what it was in relation to that change. Answer. I had a conversation with him re- specting that change on the 21st day of Feb 1 ruary; Questions What time in the.day ? Answer. Between one andtwo'o'clock in the afternoon. Question. Where ? Answer. At the War Department, in his office. Question. State what took place at that in- terview? Mr. EVARTS. Do you propose this as cov- ered by the former ruling ? Mr. Manager' BUTLER. Entirely so, after he had his order. The Witness. I asked him to tell me what had occurred that morning between him and the Secretary of War in his endeavor to take possession of the War Department. He hesi- tated to do so till I told him that the town was filled with rumors of the change that had been made, of the removal of Mr. Stanton and the appointment of himself. He then said that since the affair had become public he felt re- lieved to speak to me with freedom about it. He drew from his pocket a copy, or rather the original, of the order of the President of the United States, directing him to take possession of the War'Department immediately. He told me that he had taken as a witness of his action General Williams, and had gone up into the War Department and had shown to Edwin M. Stanton the order of the' President, and had demanded by virtue of that order the posses- sion of the War Department and its. books and papers. He told me that Edwin M. Stanton, after reading the order, 'had asked him if he would allow to him sufficient time for him to', gather together his books,' papers, and other personal property and take them away with, him; that, he told him that he would allow to him all necessary time, to do so, and had then withdrawn from Mr. Stanton's room. > He further told me, that day being Friday, THE CONGRESSIONAL GLOBE. 75 that the next day would be what he called a dies non, being the holiday Of the anniversary of Washington's birthday, when he had directed that the War Department should be closed, that the day thereafter would be Sunday, and that on Monday morning he should demand possession of the War Department and of its property, and if that demand was refused or resisted he should apply to the General-in- Chief of the Army for a force sufficient to en- able him to take possession of the War Depart- ment ; and he added that he did not see how the General of the Army could refuse to obey his demand for that force. He then added that under the order that the President had given to him he "had no election to pursue any other course than the one that he indicated ; that he was a subordinate officer directed by an order from a superior officer, and that he must pursue that course. Question. Did you see him afterward and have conversation with him on the subject? Answer. I did. Question. When was that ? Answer. That evening. Question. Where? Answer. At Wil lard's Hotel. Question. What did' he say there ? Answer. He then said that he should the next day demand possession of the War De- partment, and that if the demand was refused or resisted he should apply to General Grant for force to enable him to take possession, and he also repeated his declaration' that he could not see how General Grant could refuse to obey that demand for force. Question. State whether these were earnest conversations or otherwise? Answer. Earnest conversations ! Question. Yes, sir, on his part. Answer, If you mean by earnestness that he meant what he said Question. Yes. Answer. They were in tliatsense earnest. Cross-examined by Mr. Evarts : Question. Are you connected with the press ? Answer... I am a journalist by profession. ■ Question. And have been for a great num- ber of years? Answer. A great number of years. Question. Living in Washington during the session of Congress for the most part ? Answer. 1 have for the last seven years lived in Washington in the winter. Question. You say that General Thomas told you that, under the order of the President, he did not see how he could do otherwise than he had stated. Mr. Manager BUTLER. Are you repeating the testimony of the witness ? Mr. EVARTS. Yes. Mr. Manager BUTLER. I understood him to say "under the orders of the President." Mr. EVARTS. I understood him to say " under the order." Mr. Manager BUTLER. That I wanted certain. The Witness. "Under the order," referring to the original? Mr. EVARTS. Paper? The Witness. The original paper. Question. Nothing else ? Answer. Nothing else. Mr. EVARTS, (to Mr. Manager Botler.) Now you are answered. Mr. Manager BUTLER. Entirely. Mr. EVARTS, (to the witness.) -So all the difference between the conversation on Friday night and Friday forenoon was that at nigtit he proposed to do what he did propose to do on Saturday, and in the forenoon conversation he proposed to do it on Monday? Answer. On Mono'ay. Question. Did you say anything further re- garding the expected holiday. Saturday, except that that would be a dies non 1 Answer. Nothing, sir. Question. No orders to that effect were re- ferred to? Answer. Pardon me ; he told me that he had issued an order to close the War Department on Saturday. Question. That he had himself? Anltwer. That he had himself issued an order to close the War Department on Saturday. Question. As Adjutant General? Answer 1 . He did not say whether he had done that as Adjutant General or as Secretary of War. Question. You did not understand anything about that? Answer. Tie simply told me he had issued' an order to close the War Department on'Sat- urday. Question. This was in the morning conver- sation? Answer. It was in the afternoon conversa- tion of Friday. Question. The one o'clock conversation? Answer. Yes, sir. Question. Did he tell you when, that order had been issued ? Answer. No, sir. Question. Did you know, from anything said in that conversation, when it had been issued? Answer. No, sir. Question. Did you know, from anything said in that conversation, by whom it had been issued other than that it was by him, General Thomas, in some capacity? Answer. No, sir. He told me that it had been issued, and he told me that on Friday. Question. So far as you know, or then un- derstood, it might have been issued by him as Adjutant General? Answer. I know.nothing about that. Reexamined by Mr. Manager Butler : Question. In either of these conversations, in connection with what he said, did he say whether he was Secretary of War, or did lie claim to be? Answer. Yes, sir ; he claimed to be Secretary of War. George W. Karsner sworn and examined. By Mr. Manager Butler : Question. What is your full name ? Answer. George Washington Karsner. Question. Of what place are you a citizen ? • Answer. Delaware.- Question^. What county? Answer. New Castle county. Question. Do you know Major General Lo- renzo Thomas ? Answer. Yes, sir. Question. How long have you known him. Answer. I have known him a great while ; I think I have known him since a short time after his graduation from West Point. Question. Was he originally from the same county with you? Answer. Yes, sir. Question. Did you see him in Washington somewhere about the 1st of March of this year? Answer. I think it was about the 9th of March I first recollect seeing him here. Question. When had you seen him prior to that time ? Answer. Not for several years. I cannot remember exactly when I last saw him before that. Question. Where did you see him in Wash- ington? Answer. I saw him in theTPresident' s House ; in the East Room of the President's House. Question. What time in the day or evening? Answer. It was, perhaps, a quarter past ten o'clock in the evening. Question. The evening of what day in the week; do you remember? Answer. I think it was on a Monday evening. Question. Was the President holding'a levee that evening? ' Answer. Yes, sir. Question. Did you have any conversation with him? Answer. Yes, sir. Question. Please state how the conversation began; what was said? Mr. EVARTS. With General Thomas? Mr. Manager BUTLER. With General Thomas. Answer. Well, it commenced by my ap- proaching him and mentioning that I was a Delawarean, and I supposed he, would recog- nize me, which I think he did, but could not remember my name. I then gave hitn my name, and told him I knew him a great many years ago, and knew his father and brother and all the family. I gave him my hand, and he talked. He said he was a Delaware boy, which I very well knew; and he asked me what we were doing in Delaware. I do not remember the answer I gave to him, but said I to him, "General, the eyes of Delaware are on you." [Laughter.] The CHIEF JUSTICE. Order; ! The Witness. I gave my advice to him. I toid him I thought Delaware would require him to stand lirm. "Stand firm, General," said I. He said he would, he was standing firm, and he would not disappoint his friends; and in two days, or two or three days, or a short time, he would kick that fellow out. [Laughter.] Question. Was anything further said? Answer. Yes ; there was something further said. I will try to recollect it. [A pause.] I repeated again to him what the desire, I pre- sumed, of Delaware would be, and he said I need not give myself any concern about that, he was going to remain iirm, and kick that fel- low out without fail. Question. When he said he would "kick that fellow out" did he in any way indicate to you to whom he referred? Answer. He did not mention any name. Question. The question was whether he indi- cated to whom he referred? Answer. Well, I think he referred to the Secretary of War. I did not have any doubt on my mind Mr. EVARTS. That was not the question. Mr. Manager BUTLER. It answers all I desire. The witness is yours, gentlemen. Cross-examined by Mr. Stanbery;- Question. You said you had known General Thomas many years before ? Answer. Yes, sir. Question. Please to state as near as you can recollect when you had seen General Thomas before this interview in the East Room. How many years was it since you- had seen him before '! Answer. I was in this city during the war, and perhaps I might have seen him then, but I am not certain. Question. What is the time that you are certain that you last saw him? Answer, it was a good many years ; I can- not remember how long it was. I eannot re- member the time. Question. Where? In Delaware or here? Answer. I think I saw him in New Castle at one time. Question. Before or after he went to West Point? Answer. Long since he left West Point; long since he was in the Army. Question. On what occasion was it at New Castle that you think you recollect seeing him ? " Answer. I saw him in the- street. I do not recollect that I had any conversation with him at New Castle. His father lived there, and his brother. Question. In which of the streets of New Castle'did you see him ? Answer. Well, there are not many streets in New Castle. [Laughter.] I saw him in the main street, I think. •• Question. What part of the street? Answer. It was not in the middle of it ; it was on the pavement, and I was -Standing by the court-house, to the best of my recollection. Question. You were standing by the court- house, and he was on the pavement? Answer. I think so. Question. Was he walking past or standing there ? 76 SUPPLEMENT TO Answer. I cannot recollect. Question. But you do recollect that one day being before the court-house you saw Thomas standing on the pavement? Answer. I was standing by the court-house. Question. How near? Answer. Within half the space of this room. Question. How far was he from you ? Answer. I think he was on the opposite side of the street. Question: On the other pavement? Answer. Yes ; I think so. As regards the time and whether I spoke to him or not I can- not tell. I saw him there. Question. That is what you recollect ; seeing him there that day. Was he standing or walk- ing? Answer. I presume be was walking. I do not recollect. Question. But you recollect seeing him there? Answer. Yes. Question. Can you not tell us whether he was standing or walking? Answer. Sometimes it is a little difficult for a person's memory to run that well. That has been several years ago, many years before the war. Question. When did you ever see him to speak with him ?. Answer. I used to speak to him a great many years ago when he would be at New Castle vis- iting his people. He married his wife in New Castle. Question. How many years and when ? That is the question. Answer. It is very difficult for me to answer how many years or when ; but I saw him there and I saw him in the city of Washington. Question. You now recollect that you saw him in the city of Washington ; a little while ago you could Dot recollect that? Answer. I think now I do recollect seeing him, but not to speak to him. He was an offi- cer, I was a citizen. Question. Whereabouts in Washington did you see him before this time ? Answer. I cannot tell that ; but I have seen him in Washington. I know him when I see him. Question. When, then, did you ever speak to hiui before this time 1 Name a time. Answer. Every time I would come within speaking distance of him I have spoken to him ; but to name a time I cannot. Question. You cannot answer when it was or where you ever spoke to him before? Answer. No, sir ; not particularly. Question. On this occasion did you come ftom Delaware to see General Thomas? Answer. No, sir ; I had other business in Washington. Question. Did you expect to see him or intend to see him ? Answer. Well, I wished to see the President of the United States, and I wished to see the Cabinet. I saw them all except General Thomas in the reception room. I then walked iato the East Room and I saw him there ; I went to him in the East Boom and spoke to him. Question. You wanted to see him as well as the rest of the Cabinet? Answer. Well, he was acting, the papers Stated, as a member of the Cabinet. Question. Whereabouts in the East Boom did you encounter him ? Answer. On the west side, I think, of the East Boom. Question. Was it near the door of exit? Answer. No, sir. Question. Near the center of the room ? Answer. I think it was. It was not the center of the room exactly, but somewhere in the center of the distance between that and the place of going out. Question. At that time was General Thomas apparently going out? Answer. No, sir. When I first saw him there he was very much engaged, speaking with a gentleman very earnestly, and I waited until he had leisure and then I approached him. Question. Did you know the gentleman he was speaking with ? Answer. No, sir. Question. But you had something to say to him. What did you intend to say to him when you found out that he was there? You say you went over to see him ; what did you intend to say to him ? Answer. Well, his being a Delawarean and I from the same State, I wanted to pass the compliments with him. I was glad to see him. I had no particular desire to see him on any business; but I just said to him what I have already stated. Question. You did not go there especially to say to him that thing, then, but only to see him? Answer. I was drawn there for the purpose of seeing Mr. Johnson, President of the United States; I had never seen him. Question.' After you had seen Mr. Johnson, and the other members of the Cabinet, I un- derstand you to say you then wanted to see General Thomas? Answer. I asked a friend with me where General Thomas was; said I, "I, do not see him." Question. Who was that friend that was with you ? Answer. It was John B. Tanner. Question. Where was he from? Answer. Washington. Question, Does he live here? Answer. Yes, sir. Question. Did you go with Tanner to that levee? Answer. Yes, sir. Question. And after you had seen the Presi- dent and Cabinet, you then asked him where you would find Thomas? Answer. No ; that was not the manner. Question. What was it? Answer. Said I, "I see them all but Gen- eral Thomas." I did not know the members oftheCabinetpersonally, but they were pointed out to me — Mr. Browning and all the Cabinet except Mr. Thomas. I think they were all present in the reception room. Question. And all were pointed out to you ? Answer. Yes, sir ; they were pointed out to me. Question. Having seen the President and having seen all the members of the Cabinet, then you asked wbere you could find General Thomas? Answer. No, sir. Question. What then? Answer. I did not ask where I could find him. Said I, "I miss General Thomas here ; he is not in this room." My friend said no, he was not in that room ; and when we left the reception room and came into the East Boom I saw him there. Question. Did you go with your friend Tanner from the reception room to the East Boom? Answer. Yes, sir. Question. Did he point out Thomas to you ? Answer. No, sir; I pointed him out myself. Question. What was the first thing you said to Thomas after he was through with his con- versation with the gentleman he was speaking to ; how did you first address him ? Answer. I have already stated that. Question, State it again. Answer. I addressed him as a Delawarean, knowing him to be so. I told him I was from Delaware. He said he was a Delaware boy himself. I knew that very well, and knew his family. Question. Did you shake hands with him ? Answer.. Yes, sir, Question. What followed when you told him that you were from Delaware ? Answer. As I before stated, he asked me how things were coming on in Delaware, how wa were all getting along or how we were coming on ; that was about the amount he asked me. Question. What was your answer? Answer. I do not recollect the answer I gave. Question. What was said next, if you do not recollect that answer? Answer. The next was, as I before stated, that I told him the eyes of Delaware were on him, and to stand firm : that was the language I addressed to him. Question. Was that all you said? Answer. Well, no ; I repeated, perhaps, some part of that or pretty much all. I repeated a portion of it, at any rate. Question. When you asked him to stand firm what was his reply ? Answer. He said he was standing firm. Question. What did you next say ? Answer. I told him the people of Delaware would expect it of him. He said they should not be disappointed. Question. What next? Answer. That he would stand firm ; and he then remarked that he would kick that fellow out in two or three days, or in a short time, or in a few days ; I cannot remember what his exact expression was. Question. Now, I ask you, Mr. Karsner, if this idea of kicking out did not first come from you ; whether you did not suggest it ? Answer. No, sir. Question. You did not ? Answer. No, sir. Question. You are sure of that? Answer. I have taken an oath here. Question. I ask you if you are sure of that? Answer. I am sure of that. Question. When he said he would kick hina out did you reply ? Answer. I do not know what I did reply just to that, for it was a pretty severe expres- sion. Question. What did you reply, severe or not ; what did you say to him ? Answer. I do not think I told him it would be all right even ; I do not think I did. Question. What did you tell him ? Answer. I said " I think Delaware will ex- pect something from you. ' ' [Great laughter. ] Question. Was that what you meant by the severe remark you made to him? The Witness. What do you mean ? Mr. STANBEBY. Was that the severe remark, " that Delaware expected he would do something?" ' The Witness. Delaware, I told him, would expect him to stand firm, and his conduct would be viewed by Delaware, or something to that effect. • Question. Was that the severe remark which you have said you made ? Answer. I did not make any severe remark. Mr. Manager BUTLEB. I think you mis- understood the witness, Mr. Stanbery. He said simply that it was a severe remark that General Thomas made. The Witness. Yes, sir ; that is what I in- tended to convey. Mr. STANBEBY, (to the witness.) Did the conversation stop there ? Answer. It was not a very long one. There might have been some few words said after that. Just before I left I renewed the desires of Delaware. [Laughter.] The CHIEF JUSTICE. Order! orderl By Mr. Stanbery: Question. How did you renew the desires of Delaware? Did you feel yourself author- ized to speak for Delaware? Answer. Oh, well, you know, when we get away from home we think a good deal of home, and are inclined to speak in behalf of our own State. Question. At that time were you in sympathy with the wishes of Delaware that he should do something in regard to the War Office? Mr. Manager BUTLEB. I object. Mr. STAN BEBY. What is the ground , of the objection? Mr. Manager BUTLEB. I do not think this is the proper mode of proving the sympathies of Delaware on this occasion; and, if it is, the sympathies of Delaware are a matter wholly immaterial to this issue. Mir. STANBEBY. We agree to that. The THE CONGRESSIONAL GLOBE. 77 question was as to the sympathies of the wit- ness. I will put the question in this form. [To the witness.] Was the line of conduct he spoke of taking that which suited you? Answer. I do not know whether it would or no. Question. Did you in that conversation give him any advice beyond standing firm what he should do ? Answer. No, sir; not any advioe further .than I have stated. Question. After you parted there to whom did you first communicate this conversation that you had had there with General Thomas? Answer. Well, I communicated it — if the question is right for me to answer Mr. STANBERY. Yes, sir; you will answer it. Answer. I communicated it to Mr. Tanner. Question. Your friend ? Answer. Yes, sir ; that night. Question. Whereabouts did you communi- cate that to Mr. Tanner? Answer. Going along the street. Question. Going away from there that night? Answer. Yes, sir ; if my memory serves me aright, I think I did that night. Question. To whom next? Answer. I cannot tell the next one exactly. Question. Do you mean to say you have no recollection now of telling anybody else but Tanner? Answer. Yes; I told several that same thing. I did not charge tty memory with the persons I told it to. Question. You told several that night, the next day, or when ? Answer. The next day. Question. In Washington ? Answer. Yes, sir. Question. What did you tell, and whom to? Answer. I say I cannot recollect precisely the persons I told it to. I told it to several. Question. Do you recollect any one besides Tanner/? Answer. Yes, I recollect a gentleman from Delaware. Question. What was his name? Answer. His name was Smith. [Laughter.] Question. What was the first name of that Mr. Smith? Answer. It was not John. [Great laughter. ] Question. What Was it, if you say you recol- lect it was not John? Answer. I think it was William. Question. Whereabouts did you see William Smith? Answer. In Washington. Question. Whereabouts? Answer. I saw him on the street. Question. Near the court-house ? Answer. No, sir. ■ Question. Whereabouts, then? Answer. I do not know where your court- house- is here. Question. Whereabouts in Washington did you see Smith ? Answer. I think it was on Pennsylvania avenue. Question. That is a, pretty long avenue. Whereabouts on the avenue? Answer. Not far from the National Hotel. Question. On the street? Answer. Yes, sir. Question. What did you tell William Smith ? Answer. I told William Smith just what I have told you. [Laughter.] Yes, sir, I told him just what I have sworn to here. Question. What part of Delaware was Wil- liam Smith from 7 Answer. He is from the banks of the Bran- dywine. [Great laughter.] Question. Which bank of the Brandywine does he live on ? Answer. I think he is on the east bank of the Brandywine, or northeast. Question. Does he live in town or country ? Answer. He lives in the country. He is a farmer. The CHIEF JUSTICE. The Chief Justice thinks that this examination is irrelevant, and should not be protracted. By Mr. Stanbery : Question. Mr. Karsner, when were you summoned before any committee in this mat- ter? Answer. I do not recollect the day. It was about the 13th, I think. Question. Did you remain in Washington from the 9th till the 13th ? Answer. Yes, sir. I was engaged in try- ing to get a mail route in Delaware to facili- tate post office matters, and I was detained here. I had engaged our Representative, Mr. Nicbolson, and his father was very ill at the time, and he was some time out of the House, which protracted my stay. Question. Have you remained here ever since. Answer. No, sir. Question. Do yon know at whose instance you were summoned ? Answer. No ; I cannot tell that exactly, at whose instance, what particular person had me summoned. I was summoned before the Man- agers of the House of Representatives, and ordered at a certain time to be at the judiciary apartment up stairs over the House of Repre- sentatives. Reexamined by Mr. Manager Butler : Question. You have been asked if you were summoned before the Managers. Did you testify there ? Answer. I did. Question. After you had testified there, was General Thomas called in? Answer. Yes, sir. Question. Was your testimony, as you have given it here, read over before him ? Mr. GROESBECK. We object to that. The Witness. Yes, sir. Mr. Manager BUTLER. Now, I propose to ask whether General Thomas was asked if that was true, and if he admitted upon his oath that it was true, all you have stated. Mr. CURTIS. We object to that, Mr. Chief Justice. Mr. Manager BUTLER. I think it is com- petent. Mr. CURTIS. We do not think they can support their witness by showing what a third person, General Thomas, said. The CHIEF JUSTICE, (to the Managers.) Do you press the question ? Mr. Manager BUTLER. I do press the question, Mr. Chief Justice, for this reason : upon an innocent and unoffending man there has been a very severe cross-examination within the duties of the counsel, undoubtedly — he did not mean to do more than his duty — attempting to discredit him here by that cross- examination as to a conversation. If that cross-examination meant anything, that is what it meant. Now, I propose to show that the co- conspirator here, Thomas, admitted the cor- rectness of this man's statements. This man was heard as a witness by the House of Repre- sentatives ; the Managers of the House of Rep- resentatives, having taken his testimony, not willing to do any injustice to General Thomas, brought General Thomas in and sat him down and on his oath put the question to him, is what this man says true? being the same then as he swears here, and General Thomas admitted it word for word. I think it is com- petent and do press it. Mr. CURTIS. Our view of it is, Mr. Chief Justice, that, having called Ibis witness and put him on the stand, they cannot show that he has, on a different occasion, told the same story. That is a plain matter, and I do not understand that that is the ground which they take. Mr. Manager BUTLER. We do not pro- pose that. Mr. CURTIS. Then they offer the declara- tions of General Thomas, not in reference to any conspiracy, not in reference to any agree- ment between himself and the President as to doing anything, not in reference to any act done pursuant to that conspiracy, but simply the declarations of General Thomas as to some- thing which General Thomas had said to this witness to supportthe credit of the witness. We object to that as incompetent. Mr. Manager BUTLER. Mr. President, having made the offer, and it being objected to, and it being clearly competent, if General Thomas is ever brought here to contradict it f will waive it. Mr. CURTIS. Very well. Mr. Manager BUTLER. Then we are through with the witness ; bat we must request him to remain in attendance until discharged. Mr. DOOLITTLE. Now, Mr. Chief Jus- tice, I move that the court adjourn until to- morrow at twelve o'clock. The CHIEF JUSTICE. It is moved by the Senator from Wisconsin that the Senate, sitting as a court of impeachment, adjourn until to- morrow at twelve o'clock. The motion was agreed to; and the Senate, sitting for the trial of the impeachment, ad- journed until to-morrow at twelve o'clock. Thursday, April 2, 1868. The Chief Justice of the United States en- tered the Senate Chamber at five minutes past twelve o'clock and took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives appeared and took the seats assigned them. The counsel for the respondent also appeared and took their seats. The presence of the House of Representa- tives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. Washburne, the chair- man of that committee, and accompanied by the Speaker and Clerk, entered the Senate Chamber, and were conducted to the seats provided for them. The CHIEF JUSTICE. The Secretary will read the minutes of the last day's proceedings. The Secretary read the Journal of the pro- ceedings of the Senate yesterday sitting for the trial of the impeachment. Mr. DRAKE. I send to the Chair and offer for adoption an amendment to the rules. The CHIEF JUSTICE. The Secretary will read the amendment. The Secretary read as follows : Amend rule seven by adding the following : Upon all such' questions the votes hall be without a division, unless the yeas and nays be demanded by one fifth of the members present orrequested by the presiding officer, when the same shall betaken. Mr. DRAKE. Please read the rule as it would be if amended. The Secretary read as follows : VII. The Presiding Officer of the Senate shall directall necessary preparations in theSenate Cham- ber, and the presiding officer on the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. And the presiding officer on the trial may rule all questions of evidence and incidental questions, which ruling shall stand as thejudgment of the Senate, unless some memberof the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted.to the Senate for decision; or he may, at his option, in the first instance, submit any snch question to a vote of the aiembers of tho Senate. Upon all such questions the vote shall be without a division, unless the yeas and nays be de- manded by one fifth of the members present or re- quested by the presiding officer, when the same shall be taken. Mr. HENDRICKS. I suppose that, being a change of a rule, stands over for one day. The CHIEP JUSTICE. If any Senator objects. Mr. HENDRICKS. Yes, sir; I do object. The CHIEF JUSTICE. It will lie over for one day. The Managers on the part of the House of Representatives will proceed with their evi- dence. Senators will please to give their atten- tion. Mr. Manager BUTLER. We propose now to call General Emory. 78 SUPPLEMENT TO Mr. STANBBRY. Before the Managers proceed with another witness we wish to recall for a moment Mr. Karsner, the last witness. Mr. Manager BUTLER. Mr. President, I submit that if Mr. Karsner is to be recalled, the examination and cross-examination having been finished on both sides, he must be re- called as the witness of the respondent, and the proper time to recall him will be when they put in their case. Mr. STANBERY. We wish to recall him but a moment to ask a question which, per- haps, would have been put if it had not been stopped yesterday.. The CHIEF JUSTICE. Is there any ob- jection to recalling the witness for the purpose of putting a single question to him? Mr. Manager B UTLER. Not if it shall not be drawn into a precedent. George W. Karsner recalled. By Mr. Stanbery: Question. Mr. Karsner, where did you stay that night of the 9th of March after you had the conversation with General Thomas? Answer. I stayed at the house of my friend, Mr. Tanner, in Georgetown. Question. What is the employment of Mr. Tanner? Answer. I believe he is engaged in one of the Departments here in Washington. Question.' In which one ? Answer. I think the War Department. Question. Do you recollect whether on the next morning you accompanied Mr. Tanner to the War Department ? Answer. 1 do not. Question. You do not recollect that? , Answer. I do not recollect whether I accom- panied him or not. Sometimes I did and some- times I did not. I had other business, and sometimes I was engaged in that and did not accompany him, and at other times I did ac- company him. Question. At any time did you go with him to the War Department and see Mr. Stanton in regard to your testimony? The Witness. I appeal to the court. _ The CHIEF JUSTICE. Answer the ques- tion. Answer. I saw Mr. Stanton. Several Senators, Louder; we cannot hear. The CHIEF JUSTICE.- Raise your voice so that you can be heard in the Chamber. By Mr. Stanbery: Questioji. You say you saw Mr. Stanton ? Answer. Yes, sir ; I saw Mr.' Stanton. Question. What did you see him about ? Answer. Nothing particular about ; only I was introduced to him. Question. Whom by ? Ansiver. By Mr. Tanner. Question. What was your object in seeing him? Answer. Well, I had seen all the great men in Washington, and I wished to see him. Question. That is your answer? Answer. Yes, sir. Question. In that conversation with Mr. Stanton was any reference made to your con- versation with General Thomas? Ansioer. I think there was. Question. Did you receive a note from Mr. Stanton at that time, a memorandum ? Answer. No, sir. Question. Did he give you any directions where to go? Answer. No, sir. Question. Did he speak about your being examined as a witness before the committee or that you should be? Answer. There was something said to that effect. Mr. STANBERY. That is all, sir. Mr. Manager BUTLER. That is all, Mr. Karsner. Hon. Thomas W. Ferry sworn and ex- amined. By Mr. Manager Butler : Question. Were you present at the War Office on the morning of the 22d of February when General Thomas came there? Answer. I was. Question. At the time when some demand was made? Ansioer. I was. Question. Will you state whether you paid attention to what was going on there, and whether you made any memorandum of it? Ansiver. I. did pay attention, and I believe I made a memorandum of the occurrences as far as I observed them. Question. Have you that memorandum? Answer. Yes, sir, [producing a paper. ] < Question. Will you please state, assisting your memory by that memorandum, what took place there, in the order as well as you can, and as distinctly as you can ? Answer. I believe, if my recollection serves me, that the memorandum covers it perhapsas distinctly as I could possibly state it. I wrote it immediately after the occurrence of the appearance of General Thomas, and perhaps it will state substantially and more perfectly than I could state from memory now what occurred. Question. Unless objected toyou may read it. Mr. STANBERY. We shall make no objec- tion. The witness read as follows : Wak Department. Washington City, February 22, 1868. In thepresence of Secretary Stanton, Judge Kelley, Mooehead, Dodge, Van Wyck.VanIIoen, Delano, and Freeman Clarke, at twenty-five minutes past twelve m., General Thomas, AdjutantGeneral, came into this Secretary of War Office, saying, "Good morning," the Secretary replying. "Good morning, sir." Thomas looked around and said, "I do not wish to disturb these gentlemen and will wait." Stanton said, "Nothing private here; what do you want.sir?" Thomas demanded of Secretary Stanton the sur- render of the Secretary of War Office. Stanton de- nied it to him, andordered him back tohis-own office as Adjutant General. Thomas refused to go. " I claim the office of Secretary of War, and demand it by order of the President." Stanton. " Ideny your authority to act, and order you back to your own office.'' Thomas. "I will stand here. I want no unpleas- antness in the presence of these gentlemen." Stanton. " You can stand there if you please, but you cannot act as Secretary of War. I ;: am Secretary of War. I order you out of this office \nd to yOur own." Thomas. "I refuse to go, and will stand hero." Stanton. " How are you to get possession ; do you mean to use force?" Thomas. " I do not caro to use force, but my mind is made up as to what I shall do. I want no un- pleasantness, though. I shall stay here and act as Secretary of War." Stanton. " You shall not, and I order you as your superior back to your own office." Thomas. "I will not obey you, but will stand here and remain here." Stanton. "You can stand there, as you please. I order you out of this office to your own. - 1 am Sec- retary of War, and your superior." Thomas then went into opposite room across hall (General Schriver's) and commenced ordering Gen- eral Schriver and General E. D. Townsend. Stan- ton entered, followed by Mooehead and Feeey, and ordered those generals not to obey or pay attention to General Thomas's orders; that ho denied his as- sumed authority as Secretary .of War ad interim, and forbade their obedience of his directions. "I am Secretary of War, and I now order you, General Thomas, out of this office to your own quarters." Thomas. "I will nofrgo. I shall discharge the functions of Secretary of War." Stanton. "You will not." Thomas. "I shall require the mails of tho War Department to bo delivered to me, and shall transact the business of the office." Stanton. "You shall not have them, and I order you to your own office." Mr. Manager BUTLER, (to the counsel for the respondent.) The witness is yours, gen- tlemen. Cross-examined by Mr. Stanbery : Question. Did the conversation stop there? Answer. So far as I heard. Question. You then left the office? Answer. I left in about fifteen or twenty minutes after that. I left General Thomas in General Schriver's room, and returned into the Secretary of War's room. Question. Did the Secretary return with you, or did he remain? Answer. He remained a few moments in General Schriver's room, and then returned to his own room. When I left, he was in his own room. Question. How early in the morning of the 22d did you get to the office of the Secretary of War? Answer. My impression is it was about a quarter past eleven in the morning. It was a little after eleven, at any rate. Question. Had you been there at all the night before t Answer. I had not. Question. Did you hear the orders given by General Thomas in Schriver's room ? Answer. Yes, sir. Question. Were you in Schriver's room at the time those orders were given? , Answer. I was at the threshold ; I had reached the threshold. I believe I was the first that followed Secretary Stanton. I believe I was the first and Mr. Moorhead second. William H. Emory sworn and examined. By Mr. Manager Butler : Question. .State your full name ? Answer. William Helmsley Emory. Question. What is your rank and command in the Army ? Answer. I am colonel of the fifth cavaJry, and brevet major general in the Army. My command is the department of Washington. Question. How long have you been in com- mand of that department? Answer. Since the 1st of September, 1867. Question. Soon after you went into com- mand of the department did you have any conversation with the President of the United States as to the troops in the department or their station ? Answer. Yes. Question. Before proceeding to give that conversation, will you state to the Senate the extent of the department of Washington, to what it extends, its territorial limits, I mean? Answer. The department of Washington consists of the District of Columbia, Mary- land, and Delaware, excluding Fort Delaware. Question. Stateaswellasyou can; ifyoucan- not give it all, give the substance of that con- versation which you had with the President when you first entered upon command ? Answer. It is impossible for me to give any- thing like that conversation. I can only give the substance of it., Itoccurred longago. He asked me about the location of the troops, ajid I told him the strength of each post, and as near as I can recollect the commanding officer of the post. Question. Goon, sir; if that is not all. Answer. That was the substance and im- portant part of the conversation. There was some conversation as to whether more troops should be sent here" or not. I recommended that there should be troops here, and called the President's attention to a report of Gen- eral Canby, my predecessor,. recommending that there should always be at the seat ot Government at least a brigade of infantry, » battery of artillery, aud a squadron of cavalry ; and some conversation, mostly of my own, was had in reference to the formation of a military force in Maryland that was then going on. Question. What military force? Answer. A force organized by the State of Maryland. Question. Please state as well as you can what you stated to the. President, in substance, relative to the formation of that military force. Answer.- I merely stated that I did not see the object of it, as near as I can recollect, and that I did not like the organization ; I saw no necessity for it. Question. Did you state what your objections were to the organization ? Answer. I think it is likely I did; but I can- not recollect exactly at this time what they were. I think it likely that I stated that they were clothed in uniform that was offensive to our people, some- portions of them ; and that they were officered by gentlemen who had been in the southern army. THE CONGRESSIONAL GLOBE. 79 Question. By the offensive uniform do you mean the gray? Answer. Yea, sir. Question. Do you remember anything else at that time ? Answer. Nothing. Question. Did you call upon the President upon your own thought or were you sent for at that time ? Answer. I was sent far. Question. When again did he send for you for any suoh purpose ? Answer. I think it was about the 22d of February. Question. In what manner did you receive the message? Answer. I received a note from Colonel Moore. Question. Who is Colonel Moore? Answer. He is the Secretary of the Presi- dent and an officer of the Army. Question. Have you that note? Answer. I have not. It may be in my desk at the office. Question. Did you produce that note before the committee of the House of Representa- tives ? Answer. I read from it. Question. Have yon since seen that note as copied in their proceedings? Answer. I have. Question. Is that a correct copy? .Answer. That is a correct copy. Mr. Manager BUTLER, (to the counsel for the respondent.) Shall I use it, gentlemen? Mr. CURTIS. Certainly. Mr. EVARTS. _ Use it, subject to the pro-, duction of the original. Mr. Manager BUTLER. If desired. I sup- pose it will not be insisted on. [Handing a printed paper to the witness. ] Will you r"ead it? The witness read as follows : Executive Mansion, Washington, D. C, February 22, 1868. General : The President directs mo to say that he will be pleased to have you call on him as early as practicable. Very respectfully and truly, yours, <" WILLIAM G. MOORE, United States Army. Question. How early did you call? Answer. I called immediately. Question. How early in the day? Answer. I think it was about midday. Question. Whom did you find with the Pres- ident, if anybody? Answer. I found the President alone when I first went in. Question. Will you have the kindness to state as nearly as yon can what took place there? Answer. I will try and state the substance ■ of it, but 'the words I cannot undertake to state exactly. The President asked me if I recollected a conversation he had had with me when 1 first took command of the department? I told him that I recollected the fact of the conversation distinctly. He then asked me what changes had been made. I told him no material changes, but such as had been made I could state at once. I went on to state that in the fall six companies of the twenty-ninth infantry had been brought to this city to win- ter; but as an offset to that four companies of the twelfth infantry had been detached to South Carolina on the request of the commander *of that district; that two companies of artillery that had been detached by my predecessor, one of> them for the purpose of aiding in putting down the Fenian difficulties, had been returned' to the command ; thatalthough the number of companies had been increased the numerical strength of the command was very much the same, growing out of an order reducing the artillery and infantry«ompanies from the max- imum of the war establishment to the mini- mum of the peace establishment. The Presi J dent said, " I do not refer to those changes." I replied that if he would state what changes he referred to, or who made the report of the changes, perhaps I could -be more explicit. He said, " I refer to recent changes, within a day o'r two," or something to that effect. 1 told him I thought I could assure him that no changes had been made; that under a recent order issued for the government of the armies of the United States, founded upon a law of Congress, all orders had to be transmitted through General Grant to the Army, and in like manner all orders coming from General Grant to any of his subordinate officers must necessarily come, if in my department, through me ; that if by chance an order had been given to any junior officer of mine it was his duty at once to report the fact. The President asked me, "What order do you refer to?" Ireplied, "To Order No. 17 of the series of 1867." He said," I would like to see the order," and a messenger was dispatched for it. At this time a gentleman came in who I supposed had busi- ness in no way connected with the business that I had in hand, and I withdrew to the further end of the room, and while there the messenger came with the book of orders and handed it to me. As soon as the gentleman had with- drawn!! returned to the President with the book in my hand, and said I would take it as a favor if he would permit me to call his attention to that order ; that it had been passed in an appro- priation bill, and I thought it not unlikely had escaped his attention. He took the order and read it, and observed, "This is not in conform- ity with the Constitution of the United States, that makes me Commander-in-Chief, or with the terms of your commission." Mr. HOWARD. Repeat his language, if you please. . The Witness. I cannot repeat it any nearer than I am now doing. Mr. CONKLING. Repeat your last answer louder, so that we may hear. Mr. JOHNSON. What he said. The Witness. What who said, the Pres- ident or me? Mr. HOWARD. The President. The Witness. He said, "This is not in conformity with the Constitution of the United States, which makes me Commander-in-Chief, or with the terms of your commission." I replied, "That is the order which you have approved and issued to the Army for our gov- ernment," or something to that effect. I can- not recollect the exact words, nor do I intend to quote the exact words, of the President. He said, "Am I to understand that the President of the United States cannot give an order except through the General of the Army." or "General Grant?" I said, in reply, that that was my impression, that that was the opinion that the Army entertained, and I thought upon that subject they were a unit. I also said, " I think it is fair, Mr. President, to say to you that when this order came out there was con- siderable discussion on the subject as to what were the obligations of an officer under that order, and some eminent lawyers were con- sulted — I myself consulted one — and the opin- ion was given to me decidedly and unequivo- cally that we were bound by the order, consti- tutional or not constitutional. ' ' The President observed that the object of the law was evident. Mr. Manager BUTLER. Before you pass from that, did yon state to him who the lawyers were who had been consulted? Answer. Yes. Question. What did you state on that sub- ject? Answer. Perhaps, in reference to that, a. part of my statement was not altogether cor- rect. In regard to myself, I consulted Mr. Robert J. Walker. Question. Statewhatyousaidtohim, whether correct or otherwise ? Answer. I will state it. I stated that I had consulted Mr. Robert J. Walker, in reply to his question as to whom it was I had consulted ; and I understood other officers had consulted Mr. Reverdy. Johnson. Question. Did you say to him what opinion b^d been reported from those consultations? Answer. I stated before that the lawyer*that I consulted stated to me that we were bound by it undoubtedly; and I understood from some officers, who I supposed had consulted Mr. Johnson, that he was of the same opinion. Question. What did the President reply to that? Answer. The President said " the object of the law is evident." There the conversation ended by my thanking him for the courtesy with which he had allowed me to express my own opinion. Question. Did you then withdraw? Answer. I then withdrew. Question. Did you see General Thomas that morning? Answer. I did not, that I recollect. I have no recollection of it; Question. (Handing a paper to the witness.) State whether that is an official copy of the order to which you referred? Answer. No, sir. It is only a part of the order. The order which I had in my hand, and which I have in my office, has the appro- priation bill in front of it. That is, perhaps, another form issued from the Adjutant Gen- eral's office; but it is the substance of one part of the order. Question. Is it so far as it concerns this matter ? Answer. So far as concerns this matter it is the same order; but it is not the same copy, or, more properly, the same edition. There are two editions of the order, one published with the appropriation bill, and this is a section of the appropriation bill, and probably has been published as a detached section. Qu'estion. Is that an official copy? Answer. , Yes, sir ; that is an official copy. Question. This, I observe, is headed " Order No. 15." 1 observed you said "No. 17." Do you refer to the same or different orders ? Answer. I refer to the same order, and I think Order No. 17 is the one containing the appropriation bill, the one I referred to, and the one I had in my hand, and, I think, the one that is on file in my office. That made the confusion in the first place. I may have said Order 15 or 17, but Order No. 17 embraces, I think, all the appropriation bill, and is the full order. Question. This is No. 15, and covers the second and third sections of that act? Answer. The sections are the same. Mr. Manager BUTLER, (to the counsel for the respondent. ) I propose to put this paper in evidence, if you do not object. Mr. EVARTS. Allow us to look at it. [The paper was handed to the counsel and examined.] Mr. STANBERY. We have no objection. Mr. EVARTS. We will treat that as equiv- alent to Order No. 17, unless some difference should appear. Mr. Manager BUTLER. There is no dif- ference, IJjelieve, and it is the same as is set out in the answer. Do you desire to have it read? Mr. JOHNSON. The Manager will read it, if he pleases. Mr. Manager BUTLER read as follows : [General Orders, No. 15.] Wak Department, Adjutant General's Office, Washington, March 12, 1868. _ Jhe following extract of an act of Congress is pub- lished for the information and government of all concerned : [Public— No. 85.] "An actmakingappropriationsforthe support of the Army for the year ending June 30, 1868, and for other purposes." *********** " Sec 2. And be it further enacted. That the head- quarters of the General of the Army of the United States shall be~at the city of Washington, and all or- ders and instructions relating to military operations I issued by the Presidentor Secretary of War shall be issued through the General of the Army, and, in case ofhisinability.throughthcnoxtin rank. The Gen- eral of the Army shall not bo removed, suspended, or relieved from command, or assltrncd to duty else- where thanat said headquarters, except at his own request, without the previous approval of the Sen- ate; and any orders or instructions relating to mili- tary operations issued contrary to the requirements of this section shall be null and void ; and any officer who shall issue orders or instructions contrary to the provisions of this section shall bo deemed guilty of a misdemeanor in office; and any officer of the Army 80 SUPPLEMENT TO who shall transmit, convey, or obey any orders or in- structions so issued contrary to the provisions of this section, knowing thatsuch orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in any court of competent jurisdiction. " SEa 3. And be it further enacted, That section three of thejoint resolution relative to appointments to the Military Academy, approved June 16, 1866, be, and the same is hereby, repealed/' **##*#**#* " Sec. 5. And be it further enacted. That it shall be the duty of the officers of the Army and Navy and of the Freedmen's Bureau to prohibit and prevent whipping or maiming of the person as a punishment for any Grime, misdemeanor, or offense, by any pre- tended civil or military authority in any State lately in rebellion until the civil government of such State shall have been restored, and shall have been recog- nized by the Congress of the United States. " Sec. 6. And be it further enacted. That all military forces now organized or in service in either of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi, and Texas, be forthwith disbanded, and that the fur- ther organization, arming, or calling into service of tho said militia forces, or any part thereof, ia hereby prohibited, under any circumstances whatever, until the same shall be authorized by Congress." ********** "Approved March 2, 1867." By order of the Secretary of War : E. D. TOWNSEND, Assistant Adjutant General. Official: E. D. TOWNSEND. Assistant Adjutant General. Question. You are still in command of trie department, as I understand? Answer. Yes, sir. Cross-examined by Mr. Stanbery: Question. The paper which you had and which was read by the President on that day was marked '■ Orders No. 17," was it? Answer. Fifteen or seventeen. Question. This is fifteen, is the other seven- teen? Answer. I think it was, but I will not be sure. Question. In that paper marked No. 17 was the whole appropriation act printed and set out, and was it in other respects like this? Answer. In other respects like that. There is- one thing I wish to state. The copy on file in my office contains the appropriation bill, and I may have confounded them. It is numbered seventeen. Question. And it is your impression that the paper read by you at the President's was the same you had ? Answer. That is my impression, although it may have been that now before you. I cannot say. Question. As I understand you, when the document No. 17 was sent to the officers of the Army there was a discussion among them, you said? Answer. Yes. Question. I see this document contains no construction of that act, but simplv gives the act for their information ; is that so? Answer. Yes, sir. Question. Upon reading the act, then, a dis- cussion arose among the officers of the Army? Answer. Yes. Question. As to its meaning, or what ? Answer. A discussion with a view of ascer- taining what an officer' s obligations were under that act. Question. You had received no instructions from the War Department or elsewhere except what are contained in that document itself? Answer. None whatever. Question. It left you, then, to construe tie act? Answer. Yes, sir. Question. Upon that you say that to settle your doubts you applied to an eminent lawyer? Answer. I had no doubt myself, but to satisfy the doubts of others. Question. You appliedto an eminent lawyer ? Answer. Yes, sir. Question. And that gentleman whom you applied to was Mr. Robert J. Walker? Answer. Yes, sir. Question. Was it he that advised you that you were bound to obey only orders coming through General Grant, whether it was con- stitutional or unconstitutional to send orders in that way ? Answer. The question of constitution was not raised ; it was only a question of whether we were bound by that order. Question. I understood you to say that the answer was ''constitutional or not constitu- tional," in your response to General Butlek. Answer. I made a mistake, then. The question was whether we were bound by it, and I should like to correct it. Mr. Manager BUTLER.. You may do »o. Mr. STANBERY. Certainly.. [To the witness.] You said in your former answer that the advice was that you were bound to obey it whether it was constitutional or not. Answer. Until it was decided. We had no right to judge of the Constitution — the officers had not. * Question. That was the advice you got? Answer. Yes, sir. Question. Until it was decided— decided by whom and where ? Answer. By the Supreme Court; and not only that, after the decision is made it must be promulgated to us in orders as null and void, and no longer operating. Question. When you said to the President that he had approved something, did you speak in reference to that Order No. 17 which con- tained the whole of the act? Answer. I did. Question. What did you mean to say — that he had approved the order, or had approved the act ? Answer. As far as we are concerned, the order and the act are the same thing ; and if you will observe, it is marked "approved." That means by the President. Question. What is marked "approved," the order or the act ? Answer. The act is marked "approved." The order contains nothing but the act, not a. word besides. Question. Then the approval that you re- ferred to was to the act ? Answer. I consider the act and the order the same. Question. But the word "approved" you speak of was to the act? Answer. Of course; but as far as we are con- cerned in the Army the act and the order are the same thing. Mr. Manager WILSON. Mr. President, we now offer a duly authenticated copy of General Emory's commission : The President 'of the United States: To all who shall see these presents, greeting : Know ye, that I do hereby confer on William H. Emory, of theArmy of the United States, by and with tho advice and consent of the Senate, tho rank of major general by brevet in said Army, to rank as such from the 13th day of March, in the year of our Lord 1865, for gallant and meritorious services at the battle of Cedar creek, Virginia; and I do strictly charge and require all officers and soldiers to obey and respect him accordingly; and he is to observe and follow such orders and directions from time to time as he shall receive from me or the future Presi- dent of the United States ©f America, and other offi- cers set over him according to law, and the rules and discipline of war. This commission to continue in force during the pleasure of the President of the United States for the time being, Given under my hand at the city of Washington, this 17th day of July, in the year of our Lord 1806, and of the ninety-first year of the independence of the United States. ANDREW JOHNSON. [Seal of the War Department.] By the President: EDWIN M. STANTON. Secretary of War. This is duly certified from the Department, the certificate being as follows : War Department, Adjutant General's Office, March 24, 1868. It appears from the records of this offioe that tho annexed document is a true copy of the original commission issued to Brevet Major General W. II. Emory, United States Army, from this office. E. D. TOWNSEND, Assistant Adjutant General. Be it known that E. D. Townsend, who has signed the foregoing certificate, is an assistant adjutant general of the Army of the United States, and that to his attestation as such full faith and credit are and ought to b* giv on. In tostiBfbny whereof I. E. M. Stanton. Secretary of War, have hereunto set my hand and ft s.l caused the seal of tho Department ot War of the United States of America to be affixed on this 2«n day of Ma«h, WoS.,^^ Secretary of War. We also offer the order assigning General Emory to the command of the department of Washington : [Special Orders, No. 426.] Headquarters Army of the United States, Adjutant General s Office. Washington, August 27, 18U7. [Extract.] 25. Brevet Major General W.H. Emory will forth- with relieve Brevet Major General Canby, in com- mand of the department of Washington, and by direction of the President is assigned to duty accord- ing to his brevet of major general while exorcising such command. By command of Genera. Grant: ^^^ Assistant Adjutant General. Official : E. D. TOWNSEND, Assistant Adjutant General. We now offer the order of the President, un- der which General Thomas resumed his duties as Adjutant General of the Army of the United States : Executive Mansion, Washington, D. C, February 13, 1868. General: I desire that Brevet Major. General Lorenzo Thomas resume his duties as Adjutant Gen- eral of the Army of the United Stntes. Respectfully, yours, ANDREW JOHNSON. General U. S. Grant, commanding Army of the Uni- ted States, Washington, D. C. It is the original order. I now offer the original letter of General Grant requesting the President to put in writ- ing a verbal order which he had given him prior to the date of this letter. Both the let- ter and the indorsement by the President are original. Mr. STANBERY. Allow us to look at it. Mr. Manager WILSON. Certainly. [The letter was handed to counsel, and after examination returned to the Managers.] Mr. Manager WILSON. I will read it : Headquarters Army of the United Statss, Washington, D. C, January 21, 1868. Sir: I have the honor very respectfully to request to have in writing tho orderwhich tho President gave me verbally on Sunday, the 19th instant, to disre- gard the orders of Hon. E.M.Stanton as Secretary of War until I knew from the President himself that they were his orders. I havo the honor to be, veryrespectfully.yourobe- dient servant, U. S. GRANT, General. His Excellency A. Johnson, President of the United States. Upon which letter is the following indorse- ment : Executive Mansiok, Washington, D. C, January 29, 1868. Andrew Johnson, President of the United States. In reply to request of General Grant of the 24th January, 1868. the President does so, as follows : As requested in this communication. General Grant is instructed in writing not to obey any order from the War Department assumed to be issued by the direction of the President, unless such order is known by the General commanding the armies o.f the Uni- ted States to havo been authorized bv the Executive. ANDREW JOHNSON. Mr. CAMERON. I should be glad to have that read by the Clerk. The CHIEF JUSTICE. The Secretary will read the order. The Secretary read the letter of General Grant and the indorsement last read by Mr. Manager Wilson. Mr. Manager WILSON. The next docu- ment which we produce is a letter written by the President of the United States to General Grant of date of February 10, 1868. It is the original letter, and I send it to counsel that they may examine it. [The letter was handed to the counsel for the President, and examined by them.] Mr. STANBERY. Mr. Chief Justice, U appears that this is a lett»r purporting to be » part of a correspondence between General Grant and the President. I ask the honorable Managers whether it is their intention to pro- duce the entire correspondence ? Mr. Manager WILSON. It is not our in- teution to produoe anything beyond this latter which we now offer. "THE CONGRESSIONAL GLOBE. 81 Mr. STAN BE BY. _ No other part of the correspondence but this letter? Mr. Manager WILSON. Thalia all we pro- pose now to offer. [The letter was returned to the Managers.] Mr. STANBERY. We wish the honorable Managers to state what is the purpose of in- troducing this letter? What is the object? What is the relevancy ? What does it relate to? Mr. Manager WILSON. I may state that the special object we have in view in the intro- duction of this letter is to Show the President's own declaration of his intent to prevent the Secretary of War, Mr. Stanton, resuming the duties of the office of Secretary of War, not- withstanding the action of the Senate on his case, and the requirement of the tenure-of- oliice bill. Do you desire it read ? Mr._ STANBERY. Certainly, if it is to come in. Mr. Manager WILSON. I ask the Secre- tary to read it. The CHIEF JUSTICE. The Secretary will read it. The Secretary read the letter, as follows: Executive Mansion, February 10, 1868. General: The extraordinary character of your letter of the 3d instant would seem to preclude any reply on my part; bup the manner in which publicity has been given to the correspondence of which that letter forms a part, and the grave questions which are involved, induce me to take this mode of giving, as a proper sequel to the communications which have passed between us, the statements of the live mem- bers of the Cabiuet who were present on the occa- sion of our conversation on the 14th ultimo. Copies of the letters which they have addressed to me upon the subject are accordingly herewith inclosed. You s r eak of my letter of the 31st ultimo as a re- iteration of the ■' many and gross misrepresenta- tions" contained in certain newspaper articles, and reassert the correctness of the statements contained in your communication of the 28th ultimo; adding— and here I give your own words — " any thingin yours in reply to it to the contrary notwithstanding/' When a controversy upon matters of fact reaches the point to which this has been brought, further assertion or denial between the immediate parties should cease, especially where, upon either side, it loses the character of the respectful discussion which is required by the relations in which the parties stand to each other, and degenerates in tone and temper. In such auase, if there is nothing to rely upon but the opposing statements, conclusions must be drawn from those statements alone, and from whatever intrinsic probabilities they afford in favor of or against either of the parties. 1 should not shrink from this test in this controversy; but, fortunately, it is not left to this test alone. There were five Cabinet officers present at the conversation, the detail of which, in my letter of the 28th ultimo, you allow yourself to say, contains "many and gross misrepresentations." These gen- tlemen heard that conversation and have read my statement. They speak for themselves, and I leave the proof without a word of comment. I deem it proper, before concluding this communi- cation, to notice some of the statements contained in your letter. ■ You say that a performance of the promises alleged to have been made by you to the President "would nave involved a resistance to law, and an inconsist- ency with the whole history of my connection with the suspension of Mr. Stanton." You then state that you had fears the President would, on the removal of Mr. Stanton, appoint some one in his place who would embarrass the Army in carrying out the recon- struction acts, and add: * "It was to prevent such an appointment that I ac- cepted the office of Secretary of War ad interim, and not for the purpose of enabling you to get rid of Mr. Stanton bymy withholding it from him in opposition tolaw, or, ntft doing so myself, surrendering itto one who wouid, as the statements and assumptions in your communication plainly indicate was sought." First of all, you here admit that from the very be- ginning of what you term "the whole history" of your connection with Mr. Stanton's suspension, you intended to circumvent the President. It was to carry out that intent that you accepted the appointment. This was in your mind at the time of your acceptance. It was not, then, in obedience to the order of your superior, as has heretofore been supposed, that you assumed the duties of the office. You knew it was the President's purpose to prevent Mr.S.tanton from resuming the office of Secretary of War; and you in- tended to defeat that purpose. You accepted the ofiice, not in the interest of the President, but of Mr. Stanton. If this purpose, so entertained by you, had been confined to yourself; if, when accepting the office, you had done so with a mental reservation to frustrate the President, it would have been a tacit deception. In the ethics of some persons such acourse is allowable. But you cannot stand even upon that questionable ground. The "history" of your con- nection with this transaction, as written by yourself, placesyou in a'differentpredicament.andshows that you not only concealed your design from the Presi- dent, but induced him to suppose that you would carry out his purpose to keep Mr. Stanton out of office, by retaining it yourself after an attempted restoration by the Senate, so as to require Mr, Stan- ton to establish his right by judicial decision. Supplement — 6. I now give that part of this "history," as written by yourself in your letter of the 28th ultimo: "Sometime after I assumed the duties of Secretary of War ad interim, the President tisked me my views as to the course Mr. Stanton would have to pursue, in case the Senate should not concur in his suspen- sion, to obtain possession of his office. My reply was, in substance, that Mr. Stanton would have to appeal to the courts to reinstate him, illustrating my posi- tion by citing the ground I had taken in the case of the Baltimore police commissioners." Now, at that time, as you admit in your letter of the 3d instant, you held the office for the very object of defeating an appeal to the courts. In that letter you say that in accepting the office one motive was to prevent the Presidentfrom appointing some other person who would retain possession, and thus make judicial proceedings necessary. You knew the Pres- ident was unwilling to trust the office with any one who would not, by holding it, compel Mr. Stanton to resort to the courts. You perfectly understood that in this interview, "sometime" after you ac- cepted theoffice, the President, not contentwithyour silence, desired an expression of your views, and you answered him that Mr. Stanton "would have to appeal to the courts." If the President had reposed confidence before he knew your views, and that confidence had been vio- lated, it might have been said he made a mistake; but a violation of confidence reposed after that con- versation was no mistake of his, nor of yours. It is the fact only that needs be stated, that at the date of this conversation you did not intend to hold the office with the purpose of forcing Mr. Stanton into court, but did hold it then, and had accepted it, to prevent that course from being carried out. In other words, you said to the President, "that is the proper course," and you said to yourself, "I have accepted this office and now hold it to defeat that course." The excuse you make in a subsequent par- agraph of that letter of the 28th ultimo, that after- ward you changed your views as to what would be a proper course, has nothing to do with the point now under consideration. The point is that before you changed your-views you had secretly determined to do the very thing which at last you did— surrender the office to Mr. Stanton. You may have changed your views as to the law, but you certainly did not change your views as to the course you had marked out for yourself from the beginning. I will only notice one more statement in yourletter of the 3d instant—that the performance of the prom- ises which it is allegedwere made by y oh would have involved you in the resistance of law. I know of no statute that would have been violated hadyou, car- rying out your promises in good faith, tendered your resignation when you concluded not to be made a party in any legal proceedings. You add : "lam in a measure confirmed in this conclusion by your recent orders directing me to disobey orders from the Secretary of War, my superior, and your subordinate, without having countermanded his au- thority to issue the orders I am to disobey." On the 24th ultimo you addressed a note to the President requesting in writing an order given to you verbally five days before to disregard orders from Mr. Stanton as Secretary of War until you "knew from the President himself that they were his orders." On the 29th, in compliance withyour request, I did give you instructions in writing "not to obey any orderfromthe War Department, assumed to be issued by the direction of the President, unless such order is known by the General commanding the armies of the United States to have been authorized by the Executive." There are some orders which a Secretary of War may issue without the authority of the President; there are others which he issues simply as the agent of the President, and which purport to be " by direc- tion" of the President. For such orders the Presi- dent is responsible, and he should therefore know and understand what they are before giving such "direction." Mr. Stanton states, in his letter of the 4th instant, which accompanies the published cor- respondence, that he "has had no correspondence with the President since the 12th of August last;" and he further says that since he resumed the duties of the office he has continued to discharge them "without any personal or written communication with the President;" and he adds, "no orders have been issued from this Department in the name of the President with my knowledge, and I have received no orders from him." It thus seems that Mr. Stanton now discharges the duties 6f the War Department without any refer- ence to the President, and without using his name. My order to you had only reference to orders "as- sumed to be issued by the direction of the President." It would appear from Mr. Stanton's letter that you have received no such orders from him. However, in your note to the President of the 30th ultimo, in which you acknowledge the receipt of the written order of the 29th, you say that you have been in- formed by Mr. Stanton that he has not received any order limiting his authority to issue orders to the Army, according to the practice of the Department, and state that " while this authority to the War De- partment is not countermanded, it will bo satisfac- tory evidence to me that any orders issued from the War Department by direction of the President are authorized by the Executive." - The President issues an order to you to obey no or- der from the War Department, purporting to be made " by the direction of the President," until you have referred it to him for his approval. You reply that you have received the President's order and will not obey it; but will obey an order purporting to be given by his direction, if it cornea from the War Department. Y,ou will not obey the direct order of the President, but will obey his indirect order. If, as yousay, there has been a practice in the War department to issue orders in the name of the President without his direc- tion, does not the precise order you have requited and have received change the practice as to the Gen- oral of the Army ? Could not the President counter- mand any such order issued to you from tb o War Department? If you should receive an order from that Department, issued in the name of the Presi- dent, to do a special act, and an order directly from the President himself not to dn the act, is there a doubt which you are to ob^y ? You answer the ques- tion when you say to the President, in your letter of the 3d instant, the Secretary of War is " my superior and your subordinate," and yetyourefusoobedience to the superior out of a deference to the subordinate. Without further comment upon the insubordinate attitude which you have assumed, I am at loss to know how you cun relieve yourself from obediauec to tho orders of tho President, who is made by the Con- stitution the Commander-in-Chief of the Army and Navy, and is therefore the official superior as well of the General of the Army as of the Secretary of War. Respectfully, yours, ANDREW JOHNSON. General U. S. Ge ant, Commanding Armies of the United States, Washington, D. G. [Several Senators had gone out during the reading of the letter.] Mr. Manager WILSON. We now The CHIEF JUSTICE. Before the honor- able Manager proceeds, he will wait until the seats of the Senators are filled. The Sergeant- at-Arms will inform Senators that their pres- ence is wanted. Several Senators having returned to the Chamber, The CHIEF JUSTICE. The honorable Manager may proceed. Mr. STANBERY. I ask the honorable Manager if he is done reading all that belongs to that letter. In that letter certain documents are referred to as explanatory of it. Do you propose to read those papers ? Mr. Manager WILSON". All has been- read which we propose to offer. Mr. STANBERY. You do not, therefore, propose to offer the papers, copies of which accompany that letter and which are referred to in it? Mr. Manager WILSON. I have stated to the counsel that we offered a letter of the Pres- ident of the United States. It has been read. We proposed to offer the letter ; we have of- fered it ; and it is in evidence. Mr. STANBERY. You do not now pro- pose to offer ■ Mr. Manager WILSON. The entire letter lino lippn rpfl.(i Mr. STANBERY. We do not understand that. We ask that the documents referred to be read with that letter. They accompany it, and are referred to in it and explain it. Mr. Manager WILSON. We offer nothing, sir, but the letter. Mr. STANBERY. Then%e object to it. Mr. Manager WILSON. If the counsel have anything to offer when they come to present their case we will then consider it. Mr. STANBERY. We ask it as a part of the letter. Suppose there were a postscript there, would you not read it? Mr. Manager WILSON. There is no post- script. That settles it. Mr. STANBERY. But .there is matter added to it. Mr. Manager WILSON. There is no matter added to it. The letter is there as written by the President. Mr. STANBERY. Mr. Chief Justice, we will take a ruling upon that point. On the first page of the letter the matter is referred to, which I will read : "General: The extraordinary character of your letter of the 3d Instant would seem to s>reclude any reply on my part; but the manner in which publicity lwis been given to the correspondence of which that letter forms a part and the grave questions which are involved induco me to take this mode of giving, as a propersequel to th.e communications which have passed between us, the statements of the five mem- bers of the Cabinet who were present on the occasion of our conversation on the 14th ultimo. Copies of the lotters which they -have addressed to me upon the subject are accordingly herewith inclosed." Again, he says : " There were five Cabinet officers present at the conversation, the detail of which, in my letter of tho 28th ultimo, you allow yourself to say, contains ' many and gross misrepresentations.' These gentlemen heard that conversation andhaveread my statement. They speak for themselves, and Heave the proof without a word of comment." 82 SUPPLEMENT TO That is an answer to the statement referred to and made a part of the letter. Mr. Manager WILSON. I suppose the counsel does not claim that this is not the let- ter complete. We propose to offer nothing beyond that, and this letter is in evidence. Mr. STANBERY. _ We wish to make the point, Mr. Chief Justice, that the gentlemen are now bound to produce those communica- tions as a part of that letter. The CHIEF JUSTICE. Do the counsel object to the introduction of the letter without the accompanying papers ? Mr. STANBERY. Certainly. Mr. Manager WILSON. I submit, Mr. President, that the objection comes too late, even if it would have been of force if made at the proper time. The letter has been sub- mitted and read, and is in evidence now. Mr. STANBERY. We assumed that you were going to read the whole of it. Mr. Manager WILSON. The whole of the letter has been read. The CHIEF JUSTICE. The Chief Justice is of opinion that the objection may now be taken. [To the counsel for the respondent.] Do you object to the introduction of the letter without the accompanying papers? Mr. STANBERY. We do, sir. Mr. EVARTS. Our point is that these in- closures form a part of the communication made by the President to General Grant; and we assumed that they would be read as a part of it when the letter was offered. Mr. Manager BINGHAM. We desire to state, Mr. President, that we claim that we are under no obligation by any rule of evidence whatever, in introducing a written statement of the accused, to give in evidence the state- ments of third persons referred to generally by him in that written statement. In the first place, their statements, we say, would not be evidence against the President at all. They would be hearsay. They, would not be the best evidence of what the parties affirmed. The matter contained in the letter of the Pres- ident shows that the papers, without producing them here, have relation to a question of fact between himself and General Grant, which question of fact, so far as the President is con- cerned, is affirmed in this letter by himself and for himself, and concludes him; and we insist that if forty members of his Cabinet were to write otherwise it could not affect this question. It concludes him ; it is his own declaration ; and the matter of dispute be- tween himself and General Grant, although it is referred to in^his letter, is no part of the matter upon which we rely in this accusation against the President. Mr. STANBERY and Mr. CURTIS. We rely upon it. Mr. Manager BINGHAM. Of course the gentlemen rely on it ; but they ask us to in- troduce matter which we say by no rule of evi- dence is admissible at all, and for the reason which I have stated already ; it is not the highest evidence of the fact. If we are to have the testimony of the members of this Cabinet about a matter of fact, and, as I said before, this letter discloses that it is a matter of fact, I claim that the highest evidence, so far as they are concerned, is not their unsworn letter, but is their sworn testimony ; and that by no rule of evidence is the letter admissible. I admit that if the letters, according to the statement here, showed a statement adopted by the Presi- dent himself in regard to the matter with which we charge him, it would be a somewhat different question, although it would not take it then entirely out of the rule of evidence ; but any- body can see by this reference that it is not the point at all. I venture to say that in these letters, when the gentlemen come to offer them in evidence here and we come to consider them, there is not a single statement of any Cabinet officer whatever that will in any manner qualify the confession of the President written upon the paper now read that his purpose was to prevent the execution of thetenure-of-office act and prevent the Secretary of War, after being confirmed by the Senate, and his suspension being non-concurred in, from entering upon forthwith and resuming, as that law requires, the duties of his office. That is the point of this matter. We introduce it for the purpose of showing the President's confession of his intent, and we say that in every point of light we can view it, for the reasons I have already stated, the letters referred to of the Cabinet ministers are foreign to the case, and we are under no obligation to introduce them, and in our judgment have no right to introduce them at all, being wholly irrelevant. Mr. EVARTS. Mr. President The CHIEF JUSTICE. Before you pro- ceed the counsel for the President will please to state their objection in writing. The objection was reduced to writing and sent to the desk. The CHIEF JUSTICE. The Secretary will read the objection made by the counsel for the President. The Secretary read as follows : The counsel for the President object that the letter is not in evidence in the case unless the honorable Managers shall also read the inelosures therein re- ferred to and by the letter made part of the same. Mr. STANBERY. Mr. Chief Justice, is the question now before your HonoT or before the court? The CHIEF JUSTICE. Before the body. Mr. STANBERY. Before the body? The CHIEF JUSTICE. Before the court. Mr. STANBERY. The Managers read a letter from the President to use against him certain statements that are made in it, and perhaps the whole ; we do not know the object. They say the object is to prove ascertain intent with regard to the exclusion of Mr. Stanton from office. In the letter the President refers to certain documents which are inclosed in it as throwing light upon the question and ex- plaining his own views. Now, I put it to hon- orable Senators : suppose he had copied these letters in the body of his letter, and had said just as he says here, "I refer you to these; these are part of my communication," could any one doubt that these copies, although they come from other persons, would be admis- sible? He makes them his own.- He chooses to use them as explanatory of his letter. He is not willing to let that letter go alone ; he sends along with it certain explanatory matter. Now, you must admit, if he' had taken the trouble to copy them himself in the body of his letter, they must be read. Suppose he attaches them, makes them a part, calls them " exhib- its," affixes them, attaches them to the letter itself by tape or seal or otherwise, must they not be read as part of the communication, as the very matter which he has introduced as explanatory, without which he is not willing to send that letter? Undoubtedly. Does the form of the thing alter it? Is he not careful to send the documents not in a separate pack- age, not in another communication, but en- closed in the letter itself, so that when the let- ter is read the documents must be read ? It seems to me there cannot be a question but that they must read the whole and not merely the letter ; for it was the whole that the Presi- dent sent to be read to give his views, and hot merely the letter unconnected with these doc- uments. Mr. Manager WILSON. Mr. President, the Managers do not care to protract this dis- cussion. We have received from the files of the proper Department a letter complete in itself, a letter written by the President and signed by the President, in which, it is true, he refers to certain statements made by mem- bers of the Cabinet touching a question of veracity pending between the President and General Grant. Now, we insist that that ques- tion has nothing to do with this case. Every- thing contained in the letter which can by any possibility be considered as relevant to the case -is tendered by offering the letter itself; and the statement of the President referring to the alleged inelosures shows that those inci- sures relate exelnsively to that question of veracity pending between himself and the General, and are in no wise connected with the issue pending between the President and the representatives of the people in this case. We are willing to submit this point without further discussion. The CHIEF JUSTICE. Does the honor- able Manager consider himself entitled to read an extract from the letter containing so much of it as would bear upon his immediate object without reading the whole letter? Mr. Manager WILSON. We read all there is of the letter. The CHIEF JUSTICE. That is not the question. Would the honorable Manager con- sider himself entitled to read so much of the letter as bore upon his immediate object with- out reading the whole? Mr. Manager AVILSON. I will state, in reply to the question propounded by the Pres- ident, that we, of course, expect to use the letter for any proper purpose connected with the issues of the case. The CHIEF JUSTICE. The Chief Justice will submit the objection to the consideration of the Senate. The Secretary will read the objection. The Secretary read as follows: The counsel for the Presidentobjectthat the letter is not evidencein the case unless the honorable Man- agers shall also read the inelosures therein referred to and by the letter made part of the same. Mr. CONKLING. Mr. President, may I ask a question? I call for the reading of the words in the letter relied upon now for this purpose. I send my question to the Chair in writing. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from New York. The Secretary read as follows: The counsel for the respondent will please read the words in tho letter relied upon touching inelosures. Mr. Staneeht read as follows : "General: The extraordinary character of your letter of the 3d instant would scemf to preclude any reply on my part: but the manner in which publicity has been given to tho correspondence of which that letter forms a part, and the grave questions which are involved, induce me to take this mode of giving, as a proper sequel to the communications which have passed between us, the statements of the five mem- bers of the Cabinetwho were present on the occasion of our conversation on the 14th ultimo. Copies of the letters which they have addressed to meupontho subject are accordingly herewith inclosed." The CHIEF JUSTICE. Senators, you who are of opinion"that the objection of the coun- sel for the President be sustained will say "ay" • Mr. CONNESS. I call for the yeas and nays. The yeas and nays were ordered. The CHIEF JUSTICE. Senators, you who are of opinion that the objection of the coun- sel for the President be sustained will answer "yea" as your names are called ; those of the contrary opinion will answer "nay." Mr. DRAKE. I ask for information, whether, if this objection is sustained, it has the effect of ruling out the letter as evidence altogether? The CHIEF JUSTICE. It has. Mr. ANTHONY. Mr. President, I would desire, if it is proper, that the question should be put in a different form ; that it should be an affirmative vote. The CHIEF JUSTICE. This is an affirm- ative form. Mr. CONNESS. I wish the Chair would state the question. The CHIEF JUSTICE. Senators, you who are of opinion that the objection of the coun- sel for the President be sustained will, as your names are called, answer "yea ;" thoseof the contrary opinion, "nay." If the yeas carry it the effect will be to exclude the evidence. If the nays carry it the effect will be to admit it. Mr. EVARTS. To exclude it, unless the inelosures are also offered, if our objection prevail. Mr. ANTHONY. Mr. President, perhaps I am rather dull, but I do not precisely under- stand the effect of the decision of this question. A negative vote admits the evidence I under- stand. THE CONGRESSIONAL GLOBE. 83 The CHIEF JUSTICE. It does. Mr. ANTHONY. And an affirmative vote excludes it. The CHIEF JUSTICE. Unless the in- closures are produced and read. Mr. HENDERSON. Mr. President, lis- tening to the question asked by the Senator from Rhode Island, I presume he desires to know whether the letter with the inclosures can afterward be read as evidence, even if the objection be sustained. The CHIEF JUSTICE. Undoubtedly it excludes the evidence only in the case that the inclosures be not read. Mr. HENDERSON. So I understand. The CHIEF JUSTICE, (to the Secretary.) Call the roll. The Secretary called the roll down to the name of Mr. Cameron. Mr. JOHNSON. Mr. Chief Justice, I do not think the question is understood. The CHIEF JUSTICE. The roll is being called. Mr. JOHNSON. The question is not un- derstood evidently. The CHIEF JUSTICE, (to the Secretary.) Proceed with the call. The call of the roll can- not be interrupted. The Secretary concluded the calling of roll, and the result was — yeas 20, nays 29 ; as fol- lows: YEAS — Messrs. Bayard, Conkling, Davis, Dixon, Doolittle, Fowler, Grimes, Henderson, Hendricks, Johnson, MeCreery, Morrill of Vermont, Norton, Patterson of Tennessee, Ross, Sprague, Trumbull, Van Winkle, Vickers, and Willey— 20. NAYS — Messrs. Anthony, Buckalew,- Cameron, Cattell, Chandler, Cole, < onness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Howard, Howe. Morgan, Morrill of Maine, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Thayer, Tipton, Wil- liams, and Wilson — 29. NOT VOTING — Messrs. Harlan, Morton, Sauls- bury, Wade, and Yates — 5. The CHIEF JUSTICE. On this question the yeas are 20 and the nays 29. So the- objection is not sustained. Mr. Manager WILSON. I now offer the letter in evidence, it having already been read. 1 now offer a copy of the letter of appointment of the President appointing Lorenzo Thomas Secretary of War ad interim, as certified to by General Thomas. I will, however, in the first place, submit it to the counsel for examination, [submitting the paper to the counsel for the respondent.] I call the attention of counsel to one thing in connection with that letter, and that is, we offer it for the purpose of showing that General Thomas attempted to act as Sec- retary of War ad interim, and that his signa- ture as such is attached to that copy. If we are not called upon to prove his signature, of course we shall not introduce any testimony for that purpose. Mr. CURTIS. Stop one moment, if you please. Let us look at this paper further. [The counsel for the respondent having ex- amined the paper returned it to the Managers.] Mr. STANBERY. We see that this is the copy Mr. Stanton requested. Read the in- dorsement if you please. Dr. Manager WILSON. Have you any ob- jection to its being read ? Mr. STANBERY. No ; we want it read. Mr. Manager WILSON. It is as follows : Executive Mansion, Washington, D. C, February 21, 1868. Sie : Hon. Edwin M. Stanton having been this day re*inoved from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will imme- diately enter upon the discharge of tho duties per- tainineito that office. Mr. Stanton hoS'been instructed to transfer to you all the records, books, papers, and other public prop- erty now in his custody and charge. Respectfully, yours, ANDREW JOHNSON. To Brevet MajorGeneralLoEENZO Thomas, Adjutant General United States Army, Washington, D. C. Official copy: Respectfully furnished to Hon. Edwin M. Stanton. L. THOMAS, Secretary of War ad interim. Mr. CURTIS. We want the indorsement lead. Mr. Manager WILSON. The indorsement is, " Received 2.10 p. m., February 21, 1SG8 ; present General Grant." Mr. EVARTS. That indorsement is whose? Mr. STANBERY. It is in the handwriting of Mr. Stanton. Mr. Manager WILSON. I do not know. Mr. STANBERY. Is that fact admitted? Mr. Manager BUTLER. It is in the hand- writing of Mr. Stanton. Mr. Manager WILSON. We next offer copies of the order removing Mr. Stanton and the letter of authority appointing General Thomas, with certain indorsements thereon, forwarded by the President to the Secretary of the Treasury for his information. [The document was handed to the counsel for the respondent', and afterward returned by them to the Managers.] ' Have the counsel for the respondent any objection to the introduction of that document? If not, I ask that it may be read by the Secretary. The CHIEF JUSTICE. The Secretary will read the paper. The Chief Clerk read as follows: [Copy.] Executive Mansion, Washington, D.C., February 21, 18G8. Sir: By virtue of the power and authority vested in mo as President by the Constitution and laws of the United Slates, you are hereby removed from office as Secretary for tho Department of War, and your functions as such will terminate upon receipt of this communication. You will transfer to Brovet Major General Lorenzo Thomas, Adjutant General of the Army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other public property now in your cus- tody and charge. Respectfully, yours. ANDE.EW JOHNSON. To Hon. E. M. Stanton, Washington, D. C. Official : W. G. MOORE. United States Army. [Copy.] Executive Mansion, Washington, D. C February 21,1868. Sie : Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to actas Secretary of VI ar ad interim .and will imme- diately enter upon the discharge of the duties per- taining to that office. Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public prop- crty.now in his custody and charge Respectfully, yours, ANDREW JOHNSON. To Brevet MajorGeneralLoEENZO Thomas, Adjutant General United States Army, Washington, D. V.' Official: W. G. MOORE, United States Army. February 21, 1868. Respectfully referred to tho honorable tho Secre- tary of the Treasury, for his information. By order of the President : W. G. MOORE, United States Army. Treasury Department, February 29, 1868. I certify the within to be true copies of the copies of orders of the President on file in this Department for the removal of Edwin M. Stanton from the offieo of Secretary for the Department of War and the ap- pointment of Lorenzo Thomas to be Secretary ad interim. H. McCULLOCH, Secretary of the Treasury. Mr. Manager BUTLER.»Mr. President, we have here now an official copy of General Orders No. 17, of which General Emory spoke, and we now offer it, so that there may be no mistake that this document and the one shown to him are the same so far as regards the point at issue. [The document was handed to the counsel for the respondent, and presently re- turned to the Managers.] Do you want it read? Mr. STANBERY. Oh, no. Mr. Manager BUTLER. Then we offer it without reading it. The document is as follows : [General Orders. No. 17.] War Department, Adjutant General's Office, Washington, March 14, 1867. The following acts of Congress are published for the information and government of all concerned : I. An act making appropriations for the support of tho Military Academy for tho year ending June 30. 1868. „ , II. An act making appropriations for the support of the Army for the year ending June 30, 1868. _ III. An act making appropriations for fortifica- tions for tho year ending June 30, 1868. I.-[ruBLic-No. 54.] An act making appropriations for the supportof the Military Academy for the fiscal year ending June 30, 1868, and for other purposes. Beit enacted by the Senate and House of Rrpresenta- tives of the United States of America in Congress as- sembled, That the following *uuiw be, and the same are hereby, appropriated, out of any money in the Treasury not otherwise appropriated, lurthesupport of tho Military Academy for the year ending th« 30th of June, 1868: For pay of officers, instructors, cadets, and musi- cians, $154,840. For commutation of subsistence, $5,050. For pay in lieu of clothing to officers' servants, $156. For current and ordinary expenses, §66.467. For increase and expense of library, £3,000. For expenses of Board of Visitors, $5,000. For forago for artillery and cavalry horses, 89,000. For horses for artillery and cavalry practice, £1,000. For repairs of oflicers' quarters. $5,000. For targets and batteries lor artillery practice, 8500. For furniture of cadets' hospital, $'200. For gas pipes, gasometers, and retorts, $600. For materials for quarters for subaltern officers, $5,000. For ventilating and heating the barracks and other academic buildings; improving the apparatus for cooking for the cadets; repairing the hospital build- ings, including the introduction of baths for thesick, tbo construction of water closets in the library build- ing, and new furniture for the recitation-rooms, 45-40.000. For purchase of fuel for cadets' mess-hall, $3,000. For the removal and enlargement of the gas-works. $20,000. For additional appropriations, for which estimates were not made last year: For eniargingcadct laundry, $5,000. For furniture for soldiers' hospital, $100. Forincreasingthcsupply ofwater. replacingmains, Su:, S15.000. For ice-house and additional store and servants' rooms, $7,500. F'or fire-pr v oof building for public offices, $15,000. For breast-high wall of water battery, $5,000. F'or permanent derrick on the wharf, $2,500. Sec. 2. And be it further enacted. That the cadets of the Military Academy bo entitled to the ration now received by the acting midshipmen at the Naval Academy, commencing at tho date of the approval of the law authorizing the same. Sec. 3. And be it ftlrtlier enacted. That hereafter tho assistant professor of Spanish shall receive thesamo pay and emoluments allowed to other assistant pro- fessors of the academy. Sec. 4. And be it further enacted, That no part ot the moneys appropriated by this or any other act shall bo applied to the pay or subsistence of any cadet from any State declared to be in rebellion against tho Government of the United States, appointed after the 1st day of January, 1867, until such State shall have been restored to its original relations to the Union. Approved February 28, 1867. II— [Public— No. 85.] An act making appropriations for the support of tho Army for the year ending June 30, 1868, and for other purposes. Be it enacted by the Senate and House of Representa- tives of the UnitedStatcs of America in Congress assem- bled. That the following sums be, and the same are hereby, appropriated, out of any money in tho Treas- ury not otherwise appropriated, for- the support of the Army for the year ending the 30th of June, 1868: For expenses of recruiting, transportation of re- cruits, and compensation to citizen surgeons for medical attendance, $300,000. For pay of the Army, $14,757,952. For commutation of officers' subsistence, $2,228,982. For commutation of forage for officers' horses. $104,600. For payments in lieu of clothing for officers' ser- vants, $276,978. For payments to discharged soldiers for clothing not drawn, $200,000. For contingencies of the Army, $100,000. Forartificial limbs forsoldicrsand seamen, $70,000. F'or Army medical museum, $10,000, For medical works for library of Surgeon General's office, $10,000. For expenses of Commanding General's office, $10,000. For repairs and improvements of armories and arsenals: For arsenal and armory at Rock Island, Illinois, $686,500. For the erection of a bridge at Rock Island, Illi- nois, as recommended by the chief of ordnance, $200,000: Provided, Thatthe ownership ofsaidbridge shall be and remain in tho United States, and the Rock Island and Pacific Railroad Company shall have the right of way over said bridge for all pur- poses of transit across the island and river, upon tho condition that the said company shall, before any money is expended by the Government, agree to pay and shall secure to the United States, first, half tho cost of said bridge, and second, half the expenses of keeping said bridge in repair; and upon guaranty- ingsaid conditions to the satisfaction of the Secretary of War, by contract or otherwise, the said company shall have thefree usoof said bridge for purposes of transit, but without any claim to ownership thereof. For Watcrvliet arsenal, West Troy, New York, $38,200. For current expenses of the ordnance service, $300,000. 84 SUPPLEMENT TO For Alleghany arsenal, Pittsburg, Pennsylvania, $d4,UUU. l?or Chainplain arsenal, at Vergennes, Vermont, $S00. For Columbus arsenal, Columbus, Ohio, $139,625. l'or Fort Monroo arsenal, Old Point Comfort, Vir- ginia, $6,000. For Fort Union arsenal. Fort Union, New Mexico, $10,000 For Frankford arsenal, Bridesburg, Pennsylvania, $30,000. For Kennebec arsenal, Augusta, Maine, $1,525. For Indianapolis arsenal, Indianapolis, Indiana, $169,625. For Leavenworth arsenal, Leavenworth, Kansas, $15,000. For New York arsenal, Governor's Island, New York, $1,200. For Pikesville arsenal, Pikesville, Maryland, $800. For tit. Louis arsenal, St. Louis, Missouri, $65,000. For Washington arsenal, Washington, District of Columbia, $50,000. For Watertown arsonal, Watertown, Massachu- setts, $21,667. p For the purchase of the Willard Sears estate, ad- joining the Watertown arsenal grounds, $49,700, or so much thereof as may be necessary; and the Secre- tary of War is hereby authorized to sell at public auction a lot of land belonging to the United States, situated in South Boston, if, in his opinion, thesame is not needed for the public service, and pay the pro- ceeds thereof into the treasury. Bureau of Refugees, Freedmen, and Abandoned Lands: For salaries of assistant commissioners, sub-assist- *ant commissioners, and agents, $147,500. For salaries of clerks, $82,800. For stationery and printing, $63,000. For quarters and fuel, $200,000. For commissary stores, $1,500,000. For medical department, 6500,000. For transportation, $800,000. For school superintendents, $25,000. For buildings for schools and asylums, including construction, rental, and repairs, $500,000. For telegraphing and postage, $18,000: Provided, That the Commissioner be hereby authorized to apply any balance on hand, at this date, of the refugees J and freedmen's fund, accounted for in his last annual report, to aid educational institutions actually incor- porated for loyal refugees and freedmen: And pro- vided further. That no agent or clerk not heretofore authorized bylaw shall receive a monthly allowance exceeding the sum of $200. Sec. 2. And be it farther enacted. That the head- quarters of the General of the Army 'of the United States shall be at the city of Washington, and all orders and instructions relating to military opera- tions issued by the President or Secretary of War shall be issued through the General of the Army, amis in case of his inability, through the next in rank. The General of the Army shall not be re- moved, suspended, or relieved from command, or assigned to duty elsewhere than at said headquar- ters, except at his own request, without the previous approval of the Senate; and any orders or instruc- tions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or in- structions contrary to tho provisions of this section Bhall be deemed guilty of a misdemeanor in office; and any officer of the Army who shall transmit, con- vey, or obey any orders or instructions so issued con- trary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprison- ment for not less than two nor more than twenty years, upon conviction thereof in any court of compe- tent jurisdiction. Sec. 3. And be it further enacted. That section three of the joint resolution relative to appointments to the Military Academy, approved June 16, 1866, be, and the same is hereby, repealed. Sec. 4. And be it further enacted, That the sum of $150,000 be, and the same is hereby, appropriated out of any moneys in the Treasury not otherwise appro- priated, to be disbursed by the Secretary of War, in the erection of fire-proof buildings at or near the city of Jeffersonville, in the State of Indiana, to bo used as storehouses for Government property. Sec. 5. Andbeit further enacted, Thatitshallbethe duty of the officers of the Army and Navy and of tho Freedmen's Bureau to prohibit and prevent whipping or maiming of tho person, as a punishment for any crime, misdemeanor, or offense, by any pretended civil or military authority in any State lately in re- bellion until the civil government of such State shall have been restored and shall have been recognized by the Congress of theUnited States. Sec. 6. And be it further enacted. That all militia forces now organized or in service in either of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi, and Texas be forthwith disbanded, and that tho fur- ther organization, arming, or calling into service of the said militia forces, or any part thereof, is hereby prohibited, under any circumstances whatever, until the same shall be authorized by Congress. Sec. 7. And be it furtlier enacted. That the paymas- ter general be authorized to pay, under such regula- tions as4he Secretary of War shall prescribe, in addi- tion to the amount received by them, for the travel- ing expenses of such California and Nevada, volun- teers as were discharged in New Mexico, Arizona, or Utah, and at points distant from the place or places of enlistment such proportionate sum according to the distance traveled as have been paid to the troops of other States similarly situated ; and such amount as shall be necessary to pay the same is hereby ap- propriated out of any moneys in the Treasury not otherwise appropriated. Approved March 2, 1867. III.-[Puelic-No. 86.] An act making appropriations for the construction, preservation, and repairs of certain fortifications and other works of defense for the fiscal year end- ing June 30, 1868. Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress as- sembled. That the following sums be, and they are hereby, appropriated out of any money in the Treas- ury not otherwise appropriated for the construction, preservation, and repair of certain fortifications and other works of defense for the year ending the 30th of June, 1868: For Fort Scammel, Portland, Maine, $50,000. For F'ort Georges, on Hog Isiand ledge, Portland, Maine, $50,000. For Fort Winthrop, Boston, Massachusetts, $50,000. l^r Fort Warren, Boston, Massachusetts, $50,000. For fort at entrance of New Bedford harbor, Mas- sachusetts, $30,000. For Fort Schuyler, Bast river, New York, $50,000. For Fort at Willett'sPoint, opposite Fort Schuyler, New York, $50,000. For fort on site of Fort Tompkins, Staten Island, New York, $50,000. For fort at Sandy Hook, New Jersey, $50,000. For repairs of Fort Washington, on the Potomac river, $25,000. For Fort Monroe, Hampton Roads, Virginia, $50,000. For Fort Taylor, Key West, Florida, $30,000. For Fort Jefferson. Garden Key, Tortugas, $50,000. l'or Fort Clinch, Amelia Island, Florida, $115,000. For fort at Fort Point, San F'rancisco Bay, Califor- nia, $50,000. For fort at Lime Point. California, $50,000. For fort at Alcatray Island, San Francisco Bay, California, $10n,000. ' For Fort Preble, Portland harbor, Maine, $50,000. For Fort McClary, Portsmouth harbor. New Hamp- shire, $50,000. ■ . For Fort Independence, Boston harbor, Massa- chusetts, $50,000. For survey of northern and northwestern lakes, $150,000. For Fort Montgomery, at the outlet of Lake Cham- plain, $25,000. For purchase and repair of instruments, $10,000. For purchase of sites now occupied and lands pro- posed to be occupied for permanent sea-coast de- fenses: Provided, That no such purchase shall be made except upon the approval of its expediency by tho Secretary of War and of the validity of the title by the Attorney General, $50,000. For purchase of sites now occupied by temporary sea-coast defenses: Provided.That no such purchase shall be made except upon the approval of its ex- pediency by the Secretary of War and of the validity of the title by the Attorney General, $25,000. For construction and repair of barracks and quar- ters for engineer troops at the depot of engineer supplies near St. Louis, Missouri, $20,000. l'or construction and repair of barracks and quar- ters for engineer troops at the depot of engineer sup- plies at Willett's Point, New York, $25,000. Sec. 2. And be it further enacted. That there shall not be over fifty per cent, of tho foregoing appropri- ations expended during the fiscal year ending 30th June, 1868, and the residue thereof shall not be ex- pended till otherwise ordered. Sec. 3. And be it further enacted. That, in order to determine the relative powers of resistance of the tjirret and thebroadside systems of iron-clad vessels of war, and whether or not our present heaviest guns are adequate to the rapid destruction of the heaviest plated ships now built, or deemed practicable on cither system, and whether or not our best stone forts will resist our heaviest guns, and, if not, what in- crease in strength, by adding either stone or iron or variation in form, is necessary to that end, tho Sec- retary of War and the Secretary of the Navy are hereby authorized to detail a joint board of not less than six competent officers, three from the Army and three from the Navy, whose duty it shall bo to construct and test, by firing upon them, such targets as they may deem necessary for the purposes above named. And tho Secretary of War and the Secretary of the Navy are hew-by authorized and directed to supply the board with such facilities for this purpose as they may require : Provided, It can be done from the unexpended funds and materials now at their disposal, the expenses to be homo equally by tho War and NavyDepartments, and from such funds at their disposal as the Secretary of War and tho Sec- retary of the Navy may designate respectively. Approved March 2, 1867. By order of the Secretary of War. E. D. TOWNSEND, ,. _ . , Assistant Adjutant General. Official : E. D. TOWNSEND, Assistant Adjutant General. George \V. Wallace sworn and examined. By Mr. Manager Butler : Question. What is your name and rank in the Army of the United States, if you have any? Answer. George W. Wallace, lieutenant col- onel of the twelfth infantry, commanding the garrison of Washington. Question. How long have you been in com- mand of the garrison of Washington? Answer. Since August last. Question. What time in August? The Answer. The latter part of the month, exact date I do not recollect. Question. State if at any time you were sent for to go to the Executive Mansion about the 23d of February last. Answer. On the22d of February I - received a note from Colonel Moore desiring to see me the following morning at the Executive Man- sion. Question. Who is Colonel Moore? Answer. He is on the staff of the President : an officer of the Army. Question. Does he act as Secretary to the President? Answer. I believe he does. Question. You received that note on the night of the 22d ; about what time at night? Answer. About seven o'clock in the evening. Question. Was any time designated when you should go? Answer. Merely in the morning. Question. Sunday morning ! Did you go ? Answer. I did. Question. At what time in the morning? Answer. About ten o'clock. Question. Did you meet Colonel Moore there ? Answer. I did. Question. What was the business ? Answer. He desired to see me in reference to a matter directly concerning myself. Question. How concerning yourself? Answer. Some time in December ray name had been submitted to the Senate for brevets. Those papers had been returned to the Exec- utive Mansion, and on looking over them he was under the- impression that my name had been set aside, and his object was to notify me of that fact in order that I might make use of influence, if I desired it, to have the matter rectified. Question. After that did he say anything about your seeing the President ? Answer. I asked him how the President was. He replied " Very well ; do you desire to see him," to which I replied " Certainly ;" and in the course of a few moments I was admit- ted into the presence of the Executive. Question. Was a messenger sent in to know if he would see you ? Answer. I am unable to answer. I had a conversation with Colonel Moore at the time. He notified him. Question. Did Colonel Moore leave the room where you were conversing with him until you went in to see the President? Answer. He left the room to bring out this package of papers. No other object that I am aware of. Question. Did he go into the office of the President where the President was for that purpose? Answer. Yes, sir; he passed in the same door I did. Question. And came out and brought a package and explained to you that your name appeared to be rejected and then you went in to see the President? Answer. I did. I went in at my own re- quest. Question. After you had passed the usual salutations what was the first thine he said to you ? Answer. The President asked me if any changes had been made in the garrison within a short time ; any movement of troops. Question. The garrison of Washington ? Answer. The garrison of Washington. Question. What did you tell him ? Answer. I replied that four companies of the twelfth infantry had been sent to the sec- ond military district on the 7th of January, and beyond that no other changes had been made. In doing so I omitted to mention another com- pany that I have since thought of. Question. Had he ever sent to you on such an errand before ? Mr. CURTIS and Mr. EVARTS. He did not send this time. A Mr. Manager BUTLER. Is that quite cer- tain ? THE CONGRESSIONAL GLOBE. 85 Mr. CURTIS. Yes ; it is proved. Mr. Manager BUTLER. Perhaps we shall see differently when we get through. [To the witness.] Did he ever get. you into his room, directly or indirectly, in order to put such a question as that before ? Mr. EVARTS. That we object to. It as- sumes that he was got in then. Mr. Manager BUTLER. If he was not got in, how was he there? Mr. EVARTS. This wftness has said that upon his inquiry how the President was the Private Secretary said "Would you like to Ifee him?"^ and the witness said "Certainly," and went into his room. If that is being got into his room, directly or indirectly, lam very much mistaken. Mr. Manager BUTLER. I assume one the- ory, Mr. President, and the counsel assume another. Mr. EVARTS. No ; I follow the testimony. I assume nothing. Mr. Manager BUTLER. I again say that I assume another theory upon the testimony, and I think the testimony was that he came there by the procurement of the President. I should so argue to the Senate if it become my opportunity to argue ; but, without pausing for that, I will ask this question. [To the wit- ness. ] Were you ever in that like position with regard to the President before you got there then ? Answer. Never. Question. Did he say to you anything upon this subject: "I asked the same question of your commander, General Emory, yesterday, and he told me tke same as you do'?" Answer. I do not understand the question. Question. Did he say to you that he had asked the same question the day before of General Emory, and got the same answer? Answer. No, sir. Question. Did he speak of it as a thing that he desired to know or a thing that he did know already ? Mr. EVARTS. What he did say is the question ? Mr. STANBERY. We object,_ Mr. Chief Justice, to that mode of examination-in-chief. That way of examining a witness is-altogether new to us. _ Mr. Manager BUTLER. I will not press it, sir. I always desire to waive whenever I can. [To the witness.] Was there anything more said ? Answer. Nothing more said on that subject. Question. On your part or his ? Answer. Neither. Question. Did you find out next day that you had not been rejected by the Senate ? Mr. STANBERY. What has that got to do with it? Mr. EVARTS. It is wholly immaterial. Mr. Manager BUTLER. Not at all. The President sends for an officer of the Army through his Secretary, andinforms him that the Senate has rejected him, and then having got him into his presence begins to inquire about the movement of troops when it was not true that he had been rejected. The Witness. If I used the word "rejected" in my testimony I was not aware of it. I do not know that that was the expression ; and when I come to reflect I think the language was that my name had been " set aside." Mr. Manager BUTLER. What made you change it? Mr. STANBERY. He did not change it. He said '' set aside" before. Mr. Manager BUTLER, (to the witness.) Do you say now that you did not understand that.you were rejected ? . Answer. That my name was set aside. My own view of the matter was that I had been rejected. Question. Jf that was your view why did you change the language just now from " rejected" to "set aside?" Mr. EVARTS. He did not change it. He oaid "set aside" before. It was you that changed it. Mr. Manager BUTLER. I understand what he says, perfectly. Mr. EVARTS and Mr. STANBERY. So do we. Mr. Manager BUTLER, (to the witness.) Why did you interrupt, sir, and say, " Well, I do not know that I did say 'rejected?' " The Witness. I have a perfect right, sir, I presume, to make use of such language as I think proper in my replies. Mr. Manager BUTLER. Undoubtedly. I also have a right to ask why do you use it ? I do not object to the right. I only want to know the reason. The Witness. My reason was to correct any misapprehension in regard to the expres- sion of Colonel Moore. My own view was that it amounted to a rejection; but he said " set aside ;" he used that language, I believe. Question. Did he make any difference be- tween "set aside" and "rejected" that you know of at that time? Answer. That is a question I never thought of. Question. You did not think of it at that time? Answer. No, sir. Question. Did he advise you to use influence with Senators to get yourself confirmed? Mr. STANBERY. What has that to do with the question — what Colonel Moore ad- vised him? Mr. Manager BUTLER. In order to show whether he understood that he was rejected, because there was no occasion to use influence with Senators if he did not understand that he was rejected. [To the counsel for the respond- ent.] Do you continue your objection? Mr. STANBERY. Certainly; but there is no use to continue it; you keep on asking the question in that way. [A pause.] Are you through with the witness, Mr. Manager? Mr. Manager BUTLER. I will let you know when I am, sir. [A pause.] I am now through with the witness. Mr. STANBERY. So are we. Mr. DRAKE. Mr. President, I move that the Senate take a recess for ten minutes. The motion was agreed to ; and the Senate resumed its session at two o'clock and forty- five minutes p. m. The CHIEF JUSTICE. The honorable Managers will proceed with their evidence. Mr. Manager WILSON. We now offer a certified copy of the order restoring General Thomas to the duties of the Adjutant Gen- eral's office. The CHIEF JUSTICE. Is there any ob- jection to the order? Mr. STANBERY. Has «ot that been put in before? Mr. Manager WILSON. No, sir ; this is the order of the General of the Army, issued in pursuance of the President's request, which we, put in before. The CHIEF JUSTICE. The Secretary will read the order. The Secretary read as follows : Headquarters Army of the United States, Washington, B. C., February 14, 1808. Sir: General .Grant directs me to say that the President of the United States desires you to resume your duties as Adjutant General of the Army. Very respectfully, yours, C. B. COMSTOCK. Erevet Brigadier General. A. A. G. D. G. General L. Thomas, Adjutant General. Official copy for Hon. E. M. Stanton, Secretary of War. L. THOMAS, Adjutant General. Adjutant General's Office, February li, 1868., William E. Chandler sworn and exam- ined. By Mr. Manager Butler : Question. Mr. Chandler, I believe you were once Assistant Secretary of the Treasury? Answer. I was, sir. Question. From what time to what time ? Answer. From June, 18G5, until the 30th of November, 1867. Question. While in the discharge of the duties of your office, did you learn the office routine of practice by which money was drawn from the Treasury for the use of the War De- partment? Answer. I did, sir. Question. Will you state the steps by which money could be drawn from the Treasury fqr the use of the War Department? Answer. By requisition of the Secretary of War upon the Secretary of the Treasury, which requisition passes through the accounting offices of the Department, and is then honored by the issue of a warrant signed by the Secretary of the Treasury, upon which the money is paid by the Treasurer of the United States. Question. Please "name the accounting offi- cers through whose offices it will pass. Answer. The Second Comptroller of the Treasury has the control of the War and Navy accounts. Several of the auditing officers pass upon war requisitions — the Second Auditor and the Third Auditor, and possibly others. Question. Please trace and give the offices, if you can, through which a requisition from the War Department for money would go, from one office to the other, until the money would get back to the War Office ? Answer. My attention has not been called to that subject until now, and I am not sure that I can state accurately the process in any given case. My impression, however, is that a re-! quisition from the Secretary of War would come to the Secretary of the Treasury, and pass from the Secretary's office to the office of the Second Comptroller of the Treasury for' the purpose of ascertaining whether or not the appropria- tion upon which the draft was to be made had, or had not, been overdrawn. The requisition would pass from the office of the Comptroller through the office of the Auditor, and thence back to the Secretary of the Treasury. There- upon, in the warrant room of the Secretary of the Treasury, a warrant for the payment of the money would be issued, which would also pass through the office of the Comptroller, being countersigned by him. Then it would pass into the office of the Register of the Treasury to be there registered, and thence to the Treasurer of the United States, who, upon this requisi- tion, would issue his draft for the payment of the money. This is substantially the process, although I am not sure that I have stated the different steps accurately. Question. Ought it not to go to the Second Auditor first? Answer. Quite possibly the requisition would first go to the Auditor. Question. The Second Auditor and then the Comptroller? Answer. The Second or Third Auditor, and then to the Comptroller. Question. Is there any method known to you by which the President of the United States or any other person can get money from the Treasury of the United States for the use of the War Department except through a requisition of the Secretary of War? Answer. There is not. Question. I now desire to ask you what is the course of issuing a commission to an offi- cer, say who has been confirmed by the Senate? What is the official routine in the Treasury Department? I suppose it is the same for all? Answer. A commission is prepared in the Department and signed by the Secretary. It is forwarded to the President and signed by him. It is then returned to the Treasury Department, where, in the case of a bonded officer, it is held until his oath and bond have beeu filed and approved ; in the case of an officer not required by law to give bond the commission is held until he qualifies by taking the oath. It is my impression that this is the usual form. There are some officers in the Treasury Department whose commissions are countersigned by the Secretary of State in- stead of by the Secretary of the Treasury. The Assistant Secretaries, for instance, have commissions which are countersigned by the Secretary of State and not by the Secretary of the Treasury. ^ Question. As I suppose the Secretary of the Treasury's own commission is? 86 SUPPLEMENT TO Answer. It issues from the office of the Sec- retary of State, I suppose. Question. On the 20th of November, 1807, was there any vacancy in the office of Assistant Secretary of the Treasury? Answer. There was not, sir. Question. Was there any vacancy up to the 30th of November? Answer. There was not. Question. Do you know Edmund Cooper? Mr. STANBERY. Will the honorable Manager allow me to ask what is the object of this testimony about Mr. Cooper? What is the purpose? Mr. Manager BUTLER. The object is to show that one of the ways and means described in the eleventh article by which the President proposed to get control of the moneys of the United States appropriated for the use of the War Department was, against law and without right, to appoint his Private Secretary Assist- ant Secretary of the Treasury. Mr. CURTIS. Is that all the answer? Mr. Manager BUTLER. I have answered so far. If you have any other question I shall be very glad to answer it. Mr. CURTIS. Is that the only answer you make to the question? Mr. Manager BUTLER. It is a sufficient answer, in myjudgment, for the time. Mr. EVARTS. What part of the eleventh article is this applicable to ? Mr. Manager BUTLER. Both the eighth and the eleventh articles. The eleventh article charges him with — " Unlawfully devisingand contriving, and attempt- ing to devise and contrive, means by which he should prevent Edwin M. Sl'anton from forthwith resuming the functions of the office of Secretary for the De- partment of War, notwithstanding the refusal of the Senate to concur, &c. ; and, also, by further unlaw- lully devising and contriving, and attempting to de- vise and contrive, means, then and there, to provent the execution of an act entitled 'An act making appropriations for the support of the Army for the fiscal year ending June 30, 1868, and for other pur- poses, ' approved March 2, 1807: and also to prevent t ho execution of an act entitled 'Affactto provide for the more efficient government of the rebel States, '• passed," &c. And in order to get the means of doing that, he wanted to control the purse as well as the sword, and he wanted his man, his Secretary, if in no warmer and closer relations to him, to be in the office of Assistant Secretary of the Treasury, the Assistant Secretary of the Treasury now by law being allowed to sign warrants. Mr. Manager BINGHAM and Mr. Manager WILSON. Then the eighth article. Mr. Manager BUTLER. Then, as my asso- ciates call to my attention, the eighth article charges that — "With intent unlawfully to control the disburse- ment of the moneys appropriated for the military service and for the Department of War, on the 21st day of February, in the year of our Lord 1808 " — He— "did, unlawfully and contrary to the provisions of an act," ress"may, by a vote of two thirds of each House, remove such disability. Sec. 4. The validity of the public debt ofthe Uni- ted States, authorized by law, including debts in- curred for payment of pensions and 'bounties for ser- vices in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obli- gation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obli- gations, and claims shall be held illegal and void. Sec. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. SCHUYLER COLFAX, Speaker of the House of Representatives. LA FAYETTE ST FOSTER, President of the Senate pro tempore. Attest : Edward McPherson, Clerk ofthe Mouse of Representatives. J. W. Forney, Secretary of the Senate. - [To which is appended the certificate of J. W. Forney, Secretary of the Senate, dated April 2, 1868, that the foregoing are true ex- tracts from the records of the Senate.] Charles A. Tinker's examination resumed. By Mr. Manager Butler : Question. You told us yesterday you were manager of the Western Union Telegraph office. Have you from that office what pur- ports to be a copy of a speech which was tele- graphed to the country or any portion of the country, as made by Andrew Johnson on the 18th of August, 1866; if so, produce it? Mr. DRAKE. I will state that we have not heard the question put by the honorable Manager. The CHIEF JUSTICE. The Manager will be good enough to repeat the question. Mr. Manager BUTLER. It is whether, being agent of the Western Union Telegraph Company, you have what purports to be a copy of a speech which was telegraphed over that line, made by Andrew Johnson on the 18th day of August, 1866; if so, produce it? Answer. I have the files of the Associated Press dispatches sent on that day, containing what purports to be a copy of the speech de- livered by the President. [Producing a roll of manuscript.] Question. From the course of business of the office are you enabled to state whether this was sent? Answer. It has the "sent" marks put upon all dispatches sent over the line. Question. And this is the original manu- script ? Answer. That is the original manuscript telegraphed. Question. By what association was this speech telegraphed ? Answer. By the Associated Press, by their agent in the city of Washington. Mr. CURTIS. We must- object to this, Gen- eral Butler. He says it has a mark on it. He does not say he put the mark on it, or that he knows that anything was done, thus far. Mr. Manager BUTLER, (to the witness.) Can you tell me, sir, to what extent over the country the telegraphic messages sent by the Associated Press go ? Answer. I suppose they go to all parts of the country ; I cannot state positively. They are telegraphed direct from Washington to New York, Philadelphia, and Baltimore, there addressed to the agents ofthe Associated Press, and from New York they are distributed through the country. Mr. Manager BUTLER, (to the counsel for the respondent.) The witness is yours, gen- tlemen. Mr. CURTIS. We will not detain you, Mr. Tinker. Mr. Manager BUTLER. You can step down for the present, Mr. Tinker ; but do not leave. James B. Sheridan sworn and examined. By Mr. Manager Butler: Question. Your whole name, Mr. Sheridan. Answer. James Bernard Sheridan. Question. What is your business ? Answer. I am a stenographer. Question. Where employed ? Answer. At present in New York city. Question. What was your business on the 18th of August, 1866? Answer. I was a stenographer. Question. State whether you reported a speech of the President on the 18th of August, 1866, in the East Room of the President's Mansion. Answer. I did. Question. Have you the notes taken at the time of that speech ? Answer. I have ; [producing a note-book containing short-hand notes.] Question. Did you take down that speech correctly as it was given ? Answer. I did, to the best of my ability. Question. How long experience have you had as a reporter ? Answer. Some fourteen years now. Question. Did you write out that speech at the time ? Answer. I wrote out a part of it. Question. Where? Answer. At the Presidential Mansion. Question. Who was present? Answer. There were several reporters pres- ent, Mr. Clephane, Mr. Smith. Question. What Clephane? Doyou remem- ber his first name ? Answer. James, I think, is his first name ? Question. What Mr. Smith? Answer. Francis H., I believe, is his name. Question. The official reporter of the House? Answer. At that time, I believe, he was con- nected with the House. Question. Who else ? Answer. I think Colonel Moore was in the room part ofthe time ; I do not know that he was in all the time. Question. What Colonel Moore ? Answer. The President's Private Secretary, William G. Question. After it was written out, what, if anything, was done with it? Mr. CURTIS. He says he wrote a part. Mr. Manager BUTLER. The part that you wrote out? Answer. I do not know. I think Mr. Moore took it. I was very sick at the time, and did not pay much attention to what was going on. Question. You think Mr. Moore took it? Answer. I think either he or Mr. Smith took it, as I wrote out my share of it. We divided it among us ; Mr. Clephane, Mr. Smith, and I wrote out the speech, I think. Question. Look at that manuscript, [hand- ing to the witness the manuscript produced by C. A. Tinker,] and see whether you recognize your hand-writing. The Witness, (having examined the manu- script. ) No, sir ; I do not recognize any of the writing here as mine. Question. Have you since written out from your notes any portion of the speech as you reported it ? Answer. I wrote out u couple of extracts from it. Question, (handing a paper to the witness.) Is that your writing? Answer. Yes, sir. Question. State whether what yon hold in your hand is a correct transcript of that speech made from your notes? Answer. It is. Question. When was that written? Answer. It was written when I appeared be- fore the Board of Managers. Question. Will you have the kindness to put your initials upon it? [The witness marked it "J. B. S."] Mr. Manager BUTLER, (to the counsel for the respondent.) The witness is yours, gen- tlemen. Mr. STANBERY. Have you got through with this witness? Mr. Manager BUTLER. I said the witness was yours, gentlemen. Mr. STANBERY. Is this all you expect of this witness? Mr. Manager BUTLER. AH at present, and we may never recall him. Cross-examined by Mr. Evarts : Question. You have produced a note-book of original stenographic report of a speech of the President? Answer. Yes, sir. Question. Is it ofthe whole speech? Answ'er. Ofthe whole speech. Question. Was it wholly made by you ? Answer. By me ; yes, sir. Question. How long did the speech occupy in the delivery? Answer. Well, I suppose some twenty or twenty-five minutes. Question. By what method of stenographic reporting did you proceed on that occasion ? Answer. Pitman's system of phonography. Question. Which is, as I understand, re- porting by sound, and not by sense ? Answer. We report the sense by the sound. 94 SUPPLEMENT TO Question. I understand you report by sound wholly? Answer. Signs. Question. And not by memory of or atten- tion to sense ? Answer. No good reporter can report unless he always pays attention and understands the sense of what he is reporting. Question. That is the very point I wish to arrive at, whether you are attending to the sound and setting it down in your notation, or whether you are attending to the sense and setting it down from your memory or attention to the sense ? Answer. Both. Question. Both at the same time ? Answer. Yes, sir. Question. Your characters are arbitrary, are they not? That is, they are peculiar to your art? Answer. Yes, sir. Question. They are not letters ? Answer. No, sir. Question. Nor words ? Answer. We have word signs. Question. But generally sound signs ? Answer. We have signs for sounds, just as the letters of the alphabet represent sounds. Question. But not the same ? Answer. No, sir. Question. This transcript that you made of a portion of your report for the use of the committee was made recently, I suppose '! Answer. Yes, sir ; a few weeks ago. Question. Now, sir, what in the practice of your art is the experience as to the accuracy of transcribing from these stenographic notes after the lapse of a considerable period of time? Answer. Perhaps I can illustrate better by the present case — this report which I made here — the extract I gave when I was called be- fore the Managers, as I had accompanied the President on his tour. I did not know what they wanted me for ; and when they told me to turn to this speech I did not even know that I had the notes of it with me ; but I turned to the speech, and found it there in the book, anil read off, as they requested I should, the extracts which the Managers for the prose- cution handed me, which I identified. Question. You read, then, from your sten- ographic notes? Answer. Yes, sir. Question. And it was taken down? Answer. The reporter of the Managers, I believe, took it down; but I afterward wrote it out for them. Question. You do not make a sign for every word ? Answer. Almost every word. "Of the' ' we generally drop, and indicate that by putting the two words closer together. Of course we have rules governing us in writing. Question. That is, you have signs which belong to every word excepting when you drop the particles? Answer. Yes, sir. Question. But not, as a matter of course, a sign that is the representative of a whole word? Answer. Yes, sir ; we have signs representing words. • Question. Some signs? Answer. Yes, sir. Question. For instance, for the word "juris- prudence," you have no one sign that repre- sents it? Answer. No, sir; I should write that "j-r-s-p." Question. And that is an illustration of your course of proceeding, is it cot? Answer. Yes, sir. Question. Are these letters that you thus use, or only signs that represent letters? -A-Thsuuc/r X gs sir Mr. EVARTS, (to the witness.) That is all. Mr. Manager BUTLER. That is all for the present ; remain within call. James 0. Clephane sworn and examined. By Mr. Manager Butler : Question. What is your business ? Answer. I am at present deputy clerk of the supreme court of the District of Columbia. Question. What was your employment on the 18th of August, 1866? Answer. I was then secretary to Governor Seward, Secretary of State. Question. Are you a phonographic reporter? Answer. I am. Question. How considerable has been your experience? Answer. Some eight or nine years. Question. Were you employed on the 18th of August, 1866, to make a report of the Pres- ident's speech in reply to Mr. Johnson? Answer. I was. I was engaged in connection with Mr. Smith for the Associated Press, and also for the Daily Chronicle at Washington. Question. Did you make a report? Answer. I did. Question. Where was this speech made? Answer. In the East Koom of the White House. Question. You say it was in reply to Mr. Johnson? Answer. It was in reply to Hon. Reveedy Johnson. Question. State partially who were present ? Answer. There were a great many persons present — the committee of the convention. I noticed among the prominent personages Gen- eral Grant, who stood beside the President during the delivery of the speech. Several reporters were present — Mr. Murphy, Mr. Sheridan, Mr. Smith, and some others. Question. Were any of the Cabinet officers present? Answer. I do not recollect whether any of them were present or not. Question. Did you report that speech? Answer. I did. Question. What was done with that report? State all the circumstances. Answer. With regard to the Associated Press report I will state that Colonel Moore, the President's Private Secretary, desired the priv- ilege of revising it before publication ; and, in order to expedite matters, Mr. Sheridan, Mr. Smith, and myself united in the labor of tran- scribing it; Mr. Sheridan transcribed one por- tion, Mr. Smith another, and I a third. After it was revised by Colonel Moore it was then taken and handed to the agent of the Asso- ciated Press, who telegraphed it throughout the country. Question. Look at that roll of manuscript lying before you and see if that is the speech that you transcribed and Moore corrected ? Answer, (having examined the manuscript produced by C. A. Tinker.) I will state here that I do not recognize any of my writing. It is possible I may have dictated to a long-hand writer on that occasion my portion, though I am not positive in regard to that. Question. Who was present at the time of the writing out? Answer. Mr. Smith, Mr. Sheridan, and Col- onel Moore, as far as I recollect. Question. Do you know Colonel Moore's handwriting ? Answer. I do not. Question. Did you send your report to the- Chronicle ? Answer. I would state that Mr. McFarland, who had engaged me to report for the Chroni- cle, was unwilling to take the revised report of the President's speech as made by Colonel Moore. He desired to have the speech as it was delivered, as he stated, with all its imper- fections, and, as he insisted upon my rewrit- ing the speech, I did so, and it was published in the Sunday Morning Chronicle of the 19th. Question. Have you a copy of that paper? Answer. I have not. Question. After that report was published in the Chronicle of Sunday morning, the 19th, did you see the report? Answer. I did, sir, and examined it very carefully, because I had a little curiosity to see how it would read under the circumstances, being a literal report, with the exception of a word, perhaps, changed here and there. Question. You say with the exception of a word changed here and there ; how ? Answer. Where the sentence was very awk- ward, and where the meaning was obscure, doubtless in that case I made u. 'change. I recollect doing it in one or two instances, though I may not be able to point them out just now. If I had my original notes I could do so. Question. With what certainty can you speak as to the Chronicle's report being an accurate one? . Answer. I think I can speak with certainty as to its being accurate, a literal report, with the exception that I have named, perhaps, a word or two here and -there changed in order to make the meaning more intelligible, or to make the sentence a little more round. Question. Will you give us an illustration of that change? Mr. EVAHTS. Some instance. Mr. Manager BUTLER. Yes, some instance. Mr. STANBERY Ho said he could not recollect. The Witness. I will state that my atten- tion was called to a particular instance; I think it was a day or two after. Some correspond- ent, learning that the Chronicle had published a verbatim report, had carefully scrutinized it — some correspondent who had listened to the delivery of the speech ; and he wrote to the Chronicle a complaint of its not being so, as, in one instance, there was an expression of "you and I has saw," or something of that sort, and that sentence, of course, was cor- rected in the report published in the Chroni- cle. It appeared in the note3 "you and I has saw," as this correspondent stated. By Mr. Manager Butler : Question. How was it corrected in the Chronicle? Answer. "You and myself have seen," or something to that effect ; I do not now remem- ber. Mr. Manager BUTLER. I am informed, Mr. President, there being two manuscripts, that Mr. Tinker has given me tbe one which was written out at length as a duplicate, and not the original, as I had supposed, and 1 shall have to ask to bring him on again. I have sent for him for that purpose. He will be here in a moment. This witness is yours, gentlemen, [to the counsel for the respondent.] Cross-examined by Mr. Evaris. Question. You acted upon the employment of the Associated Press ? Answer. Yes, sir ; in connection with Mr. Smith. Question. You were jointly to make a report, were you? Answer. We were to take notes of the en- tire speech, each of us, and then we were to divide the labor of transcribing. Question. Now, did you take phonographic notes of the whole speech ? Answer. I did. Question. Where are your phonographic notes? Answer. I have searched for them, but can- not find them. Question. Now, sir, at any time after you had completed the phonographic notes did you translate or write them out? Answer. I did. Question. The whole ? Answer. The whole speech. Question. Where is that translation or writ- ten transcript ? Answer. I do not know, sir. The man- uscript, of course, was left in the Chronicle office. I wrote it out for the Chronicle. Question. You have never seen it since, have you ? Answer. I have not. Question. Have you made any search for it? Answer. I have not. Question. And these two acts of yours, the phonographic report and the translation or writing out, are all that you had to do with the speech, are they ? THE CONGRESSIONAL GLOBE. 95 Answer. Yes, sir. Question. Now, you say that subsequently you read a printed newspaper copy of the speech in the Washington Chronicle ? Answer. Yes, sir. Question. When was it that you read that newspaper copy ? Answer. On the morning of the publication, August 19, Sunday morning. Question. Where were you when you readit? Answer. I presume I was at my room. I generally saw the Chronicle there. Question. And you there read it? Answer. Yes, sir. Question. From this curiosity that you had? Answer. Yes. I read it more carefully be- cause of that reason. Question. Had you before you your phono- graphic notes, or your written transcript from them? Answer. I had not. Question. And had not seen and have never seen them in comparison with the newspaper copy before you? Answer. No, sir. Reexamined by Mr. Manager Btjtlee: Question, (handing to the witness a bound volume of the Washington Daily Chronicle.) Have you before you a copy of the Sunday Morning Chronicle of the 19th of August, 1806? Answer. I have. Question. Look upon the page before you and see if you can find the speech as you re- ported it? Answer. I find it here, sir. Question. Look at that speech, look at it a little carefully, and tell me whether you have any doubt that that is a correct report, a ver- batim report of the speech of Andrew John- son on that occasion ; and if so, what ground have you for doubt? Mr. EVARTS. Mr. Chief Justice, we ob- ject to that as a mode of proving the speech. It is apparent that there is a report of this speech, and that it has been written out, and that is the best and most trustworthy evidence of the actual speech as made. In all legal proceedings we are entitled to that degree of accuracy and trustworthiness which the nature of the case admits ; and whenever evidence of that degree of authenticity is presented, then for the first time will arise the considera- tion of whether the evidence itself is com- petent and should be received. Now, it is impossible to contend, upon the testimony of this witness, as it stands at present, that he remembers the speech of the President so that he can produce it by recital, or so that he can say upon any memorandum of his own shown him (for none is shown) that from memory he cap say it is the speech. What is offered? The same kind of evidence, and that alone, which would grow out of some person who heard the President deliver the speech, and subsequently read in the Chronicle tire report of it, that he thinks that report was a true state- ment of the speech ; for this witness has told us distinctly that reading this speech from curiosity to see how it would appear when re- produced, without the ordinary guarantees of accuracy he had neither his original notes nor his written transcript, and he read the news- paper as others would read it, but with more care, from this degree of curiosity which he ~ had. If the true character of a production of this kind, as imputed to its author, is to be regarded as important, we insist that this kind of evidence concerning a newspaper report of it is not admissible. Mr. Manager BUTLER. Mr. President, if I understand there is no question of degree of evidence. We must take the business of the world as we find it, and must not burrow our- selves and insist that we have awoken up a hundred years ago. The art of stenography and stenographic writing and phonography has progressed to a point which makes us rely upon it in all the business of life. There is not a gentleman of this Senate who does not rely upon it every day. There is not more than one member of the Senate who in this trial is taking notes of the evidence. Why? Because you rely upon the busy fingers of the reporter who sits by my side to give you a transcript of it, upon which you must judge. Therefore, in every business of life, ay, in the very busi- ness of this court, we rely upon stenography. Now, this gentleman says that he made a stenographic report of that speech ; that that was jointly made up by himself, Mr. Sheridan, and Mr. Smith ; that his employer, not being satisfied with that joint report, which was the President's utterance distilled through the alembic of Colonel Moore's critical discrim- ination, he drew out with care an exact literal transcript under the chiding of his employer, and for a given purpose ; and that the next day, having curiosity to see what would be the difference, and how the President of the Uni- ted States would appear if put- to paper lite- rally, he examined that speech in the Chronicle, and then with the matter fresh in his mind, only a few hours intervening, with his atten- tion freshly called to it, he said then he knew that that was a correct copy ; that that was the correct speech. Now, the learned counsel say the manuscript is the better evidence. If there was any evi- dence that that manuscript had been preserved perhaps we might be called upon to produce it in some technicality of criticism of law as ad- ministered in a very technical manner. But who does not know the ordinary course of busi- ness, and, if that is to be disputed, I will ask the witness ; but who does not know that the ordi- nary course of business in a newspaper office, after such manuscripts are got through with, is to throw them into the waste-paper basket ; they are not preserved. Therefore I act upon that usual and ordinary and common under- standing of the business of life as all courts must act upon it. Then this is a question for the witness, and he testifies. The question that was objected to, the one we are discussing, is, looking at that report, from your knowledge of the re- port, having twice written it out, portions of it certainly, and from having seen it the next morning, with your curiosity awakened, can you tell the Senate whether that is a. correct report? Thereupon the learned counsel for the President gets up and says he cannot. How does the learned counsel for the President know that? How does he know that Mr. Cle- phaneisnot one of those gentlemen who, in his profession, having once read a speech can re- peat it the next day ? The difficulty is that I do not see how the objection arises. The question I put to the witness is a plain one. " Sir, there is what I say is a copy of that speech, is a transcript of that speech ; from your knowledge, having heard it, having written it down in short-hand, having written it once for correction by the President's Private Secretary, and then having rewritten it again from your notes for publica- tion in the Chronicle, and then having exam- ined it immediately after publication— from all these sources of knowledge can you say that that is a correct copy?" Thereupon the coun- sel for the President says you cannot? How does he know that the witness cannot repeat every word of it? The difficulty is the objection does not apply ; and I should have contented myself with this statement except that, once for all, I propose to put before the Senate, so as not ever to have to argue it again in the course of putting in this class of testimony, the argument as to stenographic reporting. Now, allow me to state, once for all, two authorities upon this point, because I am not going to take the time of the Senate with arguing these questions hereafter, for by doing so, I should play into the hands of this delay which has been so often attempted here. In 0' Connell's case, to prove his speeches on that great trial, the newspapers were introduced ; and no trial was ever fought with more sharpness or bitterness^newspapers were introduced containing Mr. O'Connell's speeches, or what purported to be his speeches, and the only proof adduced was that they had been properly stamped and issued from the office, and the court held that Mr. O'Connell, allowing those speeches to go out without con- tradiction for months, must be held to be responsible for them to the public. In the trial of James Watson, for high trea- son, reported in 32 State Trials, this question arose, and the question was whether a copy might be used, that copy made even of partially obliterated short-hand notes : " Mr. Attorney General, (to Mr. Dowling.) You state that you took in short-hand the address of Mr. Watson to the people? "I did." " Have you your short-hand notes here?" "I have." " Be so good as to read to my lords and the jury what it was he said?" "Mr. Wetherell. Pray, Mr. Short-hand Writer, when did you take that note?" " I took it on the 2d of December, in Spafields." " When did you copy it out?" " I copied it out the same evening." " Is that the copy you made that evening 1" " No ; it is not. This is the short-hand note I took, and this is a literal copy; theshort-hand note I took withapenoil, and in the crowd, and, perhaps, having been taken six months* back, it may be somewhat defaced: but I can read the short-hand note with a little difficulty, though certainly I could read the transcriptwith more ease ; Iwill read the short-hand note if it is wished." - " Mr. Justice Abbott. You made that transcript the same evening?" " I made this transcriptyosterday ; I made another transcript the samo evening." And he was allowed to read his transcript. While this authority is not exactly to the point of difference raised here, I say I put it in once for all upon the question, because I have heard a cross-examination as to the merits of Pit- man's system of short-hand writing as if we were to have it put in controversy here, that the whole system of stenography was an unavail- able means of furnishing information. There- fore my present proposition is the right to put this question : Mr. Witness, looking at that, can you tell me whether that is a correct tran- script of the speech made by the President? Mr. EVARTS. The learned Manager is quite correct in saying that I do not know but that this witness can repeat from memory the President's speech; and whenever he offers him as a witness so to do I will not object. It is entirely competent for a person who has heard a speech to repeat it under oath, he asserting that he remembers it and can do so, and when- ever Mr. Clephane undertakes that feat it is within the competency of evidence. What suc- cess he will have in it we shall determine when that experiment has been tried. That method of evidence from this witness is not attempted, but another form of trustworthy evidence is sought to be made competent ; that is, that by his notes, and through his transcript of those notes, he is able to present, under his present oath and belief in his accuracy and compe- tency as a reporter, this form of evidence. Whenever that is attempted we shall make no objection to that as trustworthy. But when the Managers seek to avoid re- sponsibility and accuracy through the oath of the witness applied in either form, and seek to put it, neither upon present memory nor upon his own memoranda, but upon the accuracy with which he has followed or detected inac- curacies in a newspaper report made the sub- sequent day, and thereupon to give credit and authenticity to the newspaper report upon his wholesale and general approval of it, then we must contend that the sacred right of free- dom of speech is sought to be invaded by over- throwing certainly one of the responsible and important protections of it ; and that the rule requiring the oath of somebody who heard and can remember, or, according to the rules of evidence, preserved the aids and assistances by which he presently in the court of justice may speak, should be adhered to. And we are not to be told that it is technical to maintain in defense of what has been regarded as one of the commonest and surest rights in any free country — freedom of speech, that whenever it is drawn in question it shall be drawn in ques- tion upon the surest and most faithful evidences. 96 SUPPLEMENT TO The learned Manager has said that you are farailiar, as a part of the daily routine of your congressional duties, with the habit of steno- graphic reporting and reproduction in the newspapers, and that you rely on it habitually ; and I may add rely on it habitually to be habitually misled. Correction is the first de- mand of every public speaker— correction and revision, in order that this apparatus, depend- ing upon the ear and the sudden strokes of the ready- writer, may not be the firm judgment against him of what was said by him. Now, when sedulously this newspaper has under- taken that no such considerations of accuracy shall beaiforded to the President of the United States in respect of this speech to be spread before the country, but that express orders shall be given that it shall be reported with all its imperfections Mr. Manager BUTLER. I pray correction, sir. I have not sedulously done that ; but offer it that the speech of the President's Pri- vate Secretary should not go before the country. Mr. EVAETS. The instructions of the editor were that it should be reported "with all its imperfections " as caught by the short- hand writer, without the opportunity of that revision which every public speaker at the hustings or in the halls of debate demands as a primary and important right. Whenever, therefore, Mr. Clephane shall rise and speak from memory the speech of the President here, swearing to its accuracy, or whenever he shall produce his notes and their transcript as in Watson's case, some foundation for the proof of the speech will have been laid. Mr. Manager BUTLER. Stand down, Mr. Clephane, for a moment. I will offer this directly. Now I will call Mr. Tinker. Charles A. Tinker recalled. The CHIEF JUSTICE. The witness states that he desires to make an explanation. He will make it. . The Witness. Yesterday when called upon the stand I was attending to my duties in charge of the telegraph office in the gallery ; I had not a. moment's notice that I was to be called. I then telegraphed to my office for the documents contained in packages that were there, which I had been previously examined about before the Managers. These documents were brought to me by a boy from the office, and I put them upon the stand. Last night when taken from the stand I deposited them in the office of the Sergeant- at-Arms, and this morning brought one of these packages upon the stand, and I opened it here, supposing it to be the one on which I was to be examined. As I saw that the reporters were in trouble about it, I thought I had made a mistake, and I consequently went to my office after Mr. Clephane came upon the stand, and I have now the speech of the Presi- dent telegraphed by the agent of the Asso- ciated Pr,ess on the 18th of August, 1866. Mr. STANBERY. Mr. Tinker, what docu- ment was that General Butler handed you? Answer. This is one of the documents. Mr. STANBERY. Is that the speech of the 18th of August at all? Answer. This is not the speech of the 18th of August. Mr. Manager BUTLER. That is the 22d of February speech, is it? [Laughter.] Mr. STANBERY. No matter what it is. The Witness. I have not looked to.see what this is. Mr. Manager BUTLER. You will find out what that document is in good time. Mr. STANBERY. You had better put it in "in good time." Mr. Manager BUTLER. It was simply a mistake. . [To the witness.] Now give me the document I asked for? The Witness Yes, sir. [Producing a roll of manuscript.] By Mr. Manager Butler : Question. Is this the document you supposed you were testifying about before? Answer. This is. Question. Do you give the same testimony about that that you did Mr. CURTIS and Mr. STANBERY. That will not do. Let us have his testimony about this. Mr. Manager BUTLER. Well, sir,_we will give all the delay possible. [To the witness.] Now, sir, will you tell us whether that was sent through the Associated Press? Answer. It bears the marks of having been sent, and is filed with their dispatches of that date. Question. Prom the course of business of your office, have you any doubt that it was so sent? Answer. None whatever. Mr. CURTIS. We object to that. If the witness can say it was sent from any knowledge he has, of course he will say so. He cannot reason on facts. Mr. Manager BUTLER, (to the witness.) After that speech was sent, if it was, did you see it published in the Associated Press reports ? Answer. I cannot state positively ; I think I did. Question. Was that brought to your office for the purpose of being transmitted, whether it was or not? Answer. I did not personally receive it; but it is in the dispatches of the Associated Press sent on that day. Mr. Manager BUTLER. That is all at present. Now we will recall Mr. Sheridan. James B. Sheridan recalled. By Mr. Manager Butler : Question, (handing to the witness the man- uscript last produced by Mr. Tinker. ) Now, examine thac manuscript and see whether you find any of your handwriting in it? Answer, (having examined the manuscript.) I see my writing here. Question. What is it you have there ? Answer. I have a report of the speed made by the President on the 18th of August. Question. In what y ear ? Answer. Eighteen hundred and sixty-six. Question. Have you ever seen Mr. Moore write ? Answer. A good many years ago, when he was reporter for the Intelligencer an-d I re- ported for the Washington Union, and we had seats together. Question. He was a reporter for the Intelli- gencer, was he ? Answer. Yes, sir. Question. Are there any corrections made in that report? Answer. Yes, sir. Question. Do you see any corrections there? Answer. Yes, sir. Question. Is that the manuscript which was prepared in the President's office? Answer. I think it is ; I am pretty certain it is. Question. Have you any doubt in your mind? Answer. Not the least. Question. Was the President there to cor- rect it ? Answer. No, sir. Question. Then he did notexercisethatgreat right of revision there, did he, to your knowl- edge. Answer. I did not see the President after he left the East Room. Question. Do you know whether Colonel Moore took any memoranda of that speech? Answer. I do not. There was quite a crowd there. I had no opportunity of observing. Question. Will you pick out and lay aside the portions that are in your handwriting? [The witness proceeded to do so.] _ Mr. Manager^ BUTLER. I will give you time to do that in a moment. [To the counsel for the respondent.] Anything further with this witness ? No response. Question. Do you think you have now all that are in jiour handwriting? Answer. Yes, sir. [Selecting certain sheets and handing them to Mr. Manager Butler.] Mr. EVAETS. We will now put a few questions. Cross-examined by Mr. Evarts : Question. You have selected the pages that are in your handwriting and have them before you. How large a proportion do they make of the whole manuscript? Answer. I can hardly tell. I have not ex- amined the rest. Question. Well, no matter ; was this whole manuscript made as a, transcript from your notes ? Answer. This part that I wrote out. Question. Was the whole ? Answer. No, sir. Question. The whole was not made from your notes? Answer. No, sir; Mr. Clephane wrote his part from his notes, and Mr. Smith from his. Question. Then it is only the part that you now hold in your hands that was produced from the original stenographic notes that you have brought in evidence here ? Answer. That is all. Question. Did you write it out yourself from your stenographic notes, following the latter with your eye, or were your notes read to you by another person? Answer. I wrote out from my own notes, reading my notes as I wrote. Question. Have you made any subsequent comparison of the manuscript now in your hands with your stenographic notes ? Answer. I have not. Question. When was this completed on your part? Answer. A very few minutes after the speech was delivered. Question. And what did you do with the manuscript after you had completed it? Answer. I hardly know. I sat at the table there writing it out. and I think Mr. Smith took it as I wrote out ; I am not certain about that. Question. That ended your connection with it? Answer. That ended my connection with it I left for New York the same night. Question. I desire that you should leave your original stenographic notes as part of the case subject to our disposal? Answer. Certainly. Mr. Manager BUTLER. Put your initials upon these papers. , The Witness. I will do so. [The notes were marked "J. B. S."] Mr. Manager BUTLER. One of my asso- ciates desires me to put this question which I suppose you have answered before : whether that manuscript which you have produced in your handwriting was a true transcript of your notes of that speech? Answer. It was. I will not say it was writ- ten out exactly as it was spoken. Question. What is the change,' if any? Answer. I do not know that there were any changes, but frequently in writing out we ex- ercise a little judgment. We do not always write out a speech-just as it is delivered. Question. Is that substantially a true version of what the President said ? Answer. It is undoubtedly. Francis H. Smith sworn and examined. By Mr. Manager Butler : Question. Are you the official reporter of the House of Representatives ? Answer. I am, sir. Question. How long have you been so en- Answer. In the position I now hold since the 5th of January, 1865. Question. How long have you been in the business of reporting? Answer. For something over eighteen years. Question. Were you employed, and if so by whom, to make a report of the President's speech in August, 1866? THE CONGRESSIONAL GLOBE. 97 Answer. I was employed at the instance of one of the agents of the Associated Press at Washington. Question. Who aided in that report? Answer. Mr. James 0. Clephane and Mr. James B. Sheridan. Question. Did you make such report? Answer. _I did. Question. Have you got your short-hand notes? Answer. I have. Question. Here? Ansioer. Yes, sir. Question. Produce them? Answer. I will do so, [producing a note- book.] Question. After you had made your short- hand report, what dill you do then ? Ansioer. In company with Mr. Clephane and Mr. Sheridan I retired to one of the offices in the Execute Mansion, and wrote out a portion of my notes. Question. What did the others do? Answer. The others wcote other portions of the same speech. Question. What was done with the portion that you wrote ? Answer. It was delivered to Colonel Moore, Private Secretary of the President, sheet by sheet as written by me, for revision. Question. How came you to deliver it to Colonel Moore? Answer. I did it at his request. Question. What did he do with it? Answer. He read it over and made certain alterations. Question. Was the President present while that was being done ? Answer. He was not. Question. Had Colonel Moore taken any memoranda of the speech, to your knowledge? Answer. I am not aware whether he had or not. Question. Did Colonel Moore show you any means by which he knew what the President meant to say, so that he could correct the speech ? Answer. He did not. He stated to me prior to the delivery of the speech that he desired permission to revise the manuscript, simply to correct the phraseology, not to make any change in any substantial matter. Question. (Handing to the witness the man- uscript, last produced by C. A. Tinker.) Will you look and see whether you can find any portion of the manuscript that you wrote out there ? Answer. I recognize some portion of it. Question. Separate it as quickly as you can. [The witness separated the sheets written by him.] Answer. I find what I wrote in two different portions of the speech. Question. Have you now got the portions, occurring, you say, in two different portions of the speech, which you wrote out? Answer. I have. Question. Are there any corrections on that manuscript? Answer. There are quite a number. Question. In whose handwriting, if you know? Ansioer. In the handwriting of Colonel Moore, so far as I see. Question. Have you written out from your notes since the speech? Answer. I have. Question, (handing a manuscript to the wit- ness.) Is that it? Ansioer. It is. Question. Is that speech as written out by you a correct transcript of your notes ? Answer, (-having examined the manuscript.) 1 1 is, with the exception of two important corrections, which I handed to the committee a day or two afterward. I do not see them here. Question. Do you remember What they were? Answer. In the sentence "I could express more by remaining silent and letting silence speak what I should and what I ought to say," Supplement — 7. I think the correction was " and letting silence speak and you infer," the words "you infer" having been accidentally omitted. The other I do not see ; it is the insertion of the word "overruling" before the words "unerring Providence." Cross-examined by Mr. Evarts : Question. Is the last paper that lias been shown you a transcript of the whole speech ? Answer. Of the entire speech. Question. And from your notes exclusively ? Answer. From my notes exclusively. Question. Have you any doubt that the tran- script that you made attheExecutive Mansion from your notes was correctly made? Answer. I have no doubt the transcript I made from my notes at the Executive Mansion was substantially correctly made. I remem- ber that, having learned that the manuscript was to be revised, I took the liberty of making certain revision myself as I went along, cor- recting ungrammatical expressions and chang- ing the order of words in sentences in certain instances, corrections of that sort. Question. Those two liberties, then, you took in writing out your own notes ? Answer. Yes, sir. Question. Have you ever made any exam- ination to see what changes you thus made ? Answer. I have not. Question. And you cannot now point them out? Answer. I cannot now point them out. Question. You have made a more recent transcript from your notes? Answer. Yes, sir. Question. Did you allow yourself the same liberties in that ? Answer. I did not. Question. That, then, you consider as the notes as they are ? Answer. A literal transcript of the notes as they are, and as they were taken. Question. Do you report by the same system of sound, phonography, as it is called, that was spoken of by Mr. Sheridan ? Answer. 1 hardly know what system I do report by. I studied short-hand when I was a boy. going to school, a system of phonography as then published by Andrews & Boyle, which I have used for my own purposes since then, and made various changes from year to year. Question. Can you phonographic reporters write out from one another's notes? Answer. I do not think auy one could write out my notes except myself. Question. Can you write out anybody else' s ? Answer. Probably not, unless written with a very great degree of accuracy and care. James O. Clephawe recalled. By Mr. Manager Butler : Question, (handing to the witness a part of the manuscript last produced by C. A. Tinker.) You have already told us that you took the speech and wrote it out. Is what I now hand you the manuscript$f your writing out? Answer. It is. Question. Has it any corrections upon it ? Answer. It has quite a number. Question. Who made those ? Answer. Ipresumethey were made by Colo- nel Moore. He took the manuscript as I wrpte it. I cannot testify positively as regards his handwriting. I am not sufficiently familiar with it. Question. Was that manuscript as you wrote it a correct copy of the speech as made ? Answer. I cannot say that I adhered as closely to the notes in preparing this report as I did in regard to the Chronicle. Question. Was it substantially accurate ? Answer. It was. Question. Did you in any case change the sense ? Ansioer. Not at all, sir ; merely the form of expression. ' Question. And the form of expression, why ? Answer. Oftentimes it tended tctobscure the meaning, and for that reason it was changed; or the sentence, perhaps, was an awkward one, and it was changed to -make it more readable. Cross-examined by Mr. Evarts : Question. What rules of change did you prescribe to yourself in the deviations you made from your phonographic notes-? Answer. As I have said, I merely changed the form of expression in order perhaps to make the meaning more intelligible or the sen- tence less awkward. Question. That is to say, when the meaning did not present itself to you as it should, you made it clearer, did you ? Ansioer. I will state, sir, Mr. Johnson is in the habit of using quite often Question. I do not ask you about Mr. John- son. What I asked you was this : When the meaning did not present itself to you as it should, you made it clearer? Ansioer. I do not know that I in any case altered the meaning. Question. But you made the meaning clearer? Answer. I endeavored to do so. Question. And you did, did you not ? Answer. I cannot say whether I succeeded or not. Question. That was one rule; what other rule of change did you allow yourself? Answer. No other. Question. No grammatical improvement ? Answer. Yes, sir; I may say, if you will allow me, that very often the singular verb was used where perhaps the plural ought to be. Question. You corrected, then, the gram- mar? Answer. Yes, sir ; in some instances. Question. Can you suggest any other rule of change? Answer. I cannot at the present time. William G. Moore sworn and examined. By Mr. Manager Butler : Question. What is your rank? Answer. I am a paymaster in the Army with the rank of major. Question. When were you appointed? Answer. On the 14th day of November, I860. Question. Did you every pay anybody. Answer. No, sir; not with Government funds. [Laughter.] Question. What has been your duty ? Answer. I have been on duty at the Exec- utive Mansion. Question. What kind of duty? Answer. I have been acting in the capacity of Secretary to the President. Question. Were you so acting before you were appointed ? Answer. I was. Question. How long had you acted as Sec- retary before you were appointed major ? Answer. I was directed to report to the President in person in the month of November, 18G5. Question. Had you been in the Army prior to that time? Answer. I had been a major and assistant adjutant general. Question. In the War Department ? Answer. Yes, sir. Question. Did you hear the President's speech of the 18th of August, 1866? Answer. I did. Question. Did you take any notes of it ? Answer. I did not. Question. [Placing the manuscript last pro- duced by Mr. C. A- Tinker before the witness.] Look at the manuscript which lies before you and see whether you corrected it. [The wit- ness proceeded to examine the manuscript.] I do not care whether you corrected it all ; did you correct any portion of it ? Answer. Yes, sir. Question. Where were the corrections made? Answer. In an apartment in the Executive Mansion. Question. Who was in the apartment when you made the corrections ? Answer. Messrs. Francis H. Smith, James 98 SUPPLEMENT TO B, Sheridan, James 0. Clephane, and, I think, Mr. Holland, of the Associated Press. Question. Had you any memorandum from the President by which to correct it? Answer. None, sir. Question. Do you claim to have the power of remembering, on hearing a speech, what a man says? Answer. I do not, sir. Question. Do you not know that the Presi- dent, on that occasion, had been exercising his great constitutional right of freedom of speech? _ The Witness. Will you repeat that ques- tion, if you please? Question. Did you not know that on that occasion the President had been exercising his great constitutional right of freedom of speech ? Mr. CURTIS. That puts a question of law to the witness, and I do not think it is admis- sible? Mr. Manager BUTLER. I am not asking a question of law, but a question of fact. [To the witness.] Did you not so understand it? Answer. I so understood it, sir. Mr. STANBERY. Then we are _ to un- derstand the fact that it was constitutional to exercise freedom of speech? Mr. Manager BUTLER. In the idea of the President and this witness, he thinks it is con- stitutional to exercise it in this way. It may be constitutional, but I think not decent. Mr. STANBERY. That is a matter of taste. By Mr. Manager Butler : Question. Now, then, sir, how dare you cor- rect the President's great constitutional right of freedom of speech without any memoran- dum to do it by ? Answer. It was an authority I assumed. Question. How came you to assume the au- thority to exercise this great constitutional right for the President? Answer. Well, that is a difficult question to answer. Mr. EVARTS. It ought to be a difficult one to ask. ' By Mr. Manager Butler : Question. Why should you assume the au- thority to correct his speech ? Answer. My object was, as the speech was an extemporaneous one, simply to change the language, and not to change the substance. Question. Did you change the substance anywhere? Answer. Not that I am aware of. Question. Are there not pages there where your corrections are the most of it? Answer. I am not aware of that fact. Question. Look and see if there is not a larger number of corrections on some pages? Answer f (after examining the manuscript.) In the hasty "examination that I have made I find no one page — perhaps there may be a single exception — where my writing predominates. There isa page in which several lines are erased : but whether or not I erased them I cannot say. Question. Do you know of anybody else that had anything to do with revising it? Answer. No, sir. Question. Did you do that revision by the direction of the President ? Answer. I did not, sir, so far as I can recol- lect. Question. He did not direct you ? Answer. No, sir. Question. Did you say to Mr. Smith then and there that you did it by the direction of the President? Answer. Not that I remember. Question. Do you mean to say that you made these alterations and corrections upon this very solemn occasion of this speech without any authority whatever? Answer. That is my impression. Question. After you made the revision did you show it to the President ? Answer. No, sir. Question. Did you ever tell him that you had taken that liberty with his constitutional rights ? Answer. I cannot recall the fact that I did. Question. What did you do with the manu- script? Answer. The manuscript, as it was revised, was handed, I think, to the agent of the Asso- ciated Press, who dispatched it from the office in order that it might be published in the after- noon papers. Question. Was it published in the papers? Answer. I think it was. Question. Have you any doubt of that? Answer. I cannot say positively, as I have not examined the papers. That wasthe object. Question. Was the speech — whether cor- rectly or not I do not ask — but was that speech, purporting to come from the President, pub- lished in the Associated Press dispatches? Answer. I do not know. I refer more to the city papers than to those to which the As- sociated Press furnished information. Question. Was the same speech published in the Intelligencer? Answer. The speech was published in the Intelligencer. Question. Is that newspaper taken at the Executive Mansion ? Answer. It is. Question. Was it at that time ? Answer. It was at that time. Question. Seen by the President? Answer. Yes, sir ; I presume it was. Question. Did he ever chide you, or say anything to you that you had done wrong in the correction, or had misrepresented him in this speech at all. Answer. He did not. Question. Even down to this day ? Answer. He has never chided or rebuked me for the correction of a speech. Question. Has he ever said there was any- thing wrong about it ? Answer. I have never heard him say so. No cross-examination. Mr. Manager BUTLER. I now propose, with your Honor's leave and the Senate's, to read the speech as corrected by Colonel Moore, unless that is objected to. If that is objected to, I propose to put in evidence the report of Mr. Smith, the Associated Press re- port, and the report of the Chronicle, reading one only. You are aware, sir, that the Presi- dent complains in his answer that we do not give the whole speech. We have now brought all the versions that we can conveniently of his whole speech, and if not objected to we will put them all in. Otherwise, I will only put in the extracts. Mr. EVARTS. What version do you now offer? Mr. Manager BUTLER. All, hoping to get the truth out of the whole of them. Mr. EVARTS. The speech as proved now by the witnesses, in the version which passed under Colonel Moore's eye? Mr. Manager BUTLER. I think I must ask that the objection, if any is to be taken to my offer, shall be put in writing. Mr. EVARTS. Before it is made ? Mr. Manager BUTLER." 1 No, sir ; as it is made. Mr. EVARTS. Well, the speech as proved in Mr. Smith's and Mr. Sheridan's copy we regard as in the shape of evidence, the accu- racy of the report to be judged of, there being competent evidence on the subject. The speech in the Chronicle we do not understand to be supported by any such evidence, and we shall object to that as not authentically proved. The speech in the Intelligencer, which seems to have been supported in the intent of the honorable Managers by proof of that newspaper being taken at the Executive Mansion, has not been produced, and has not been offered, as I un- derstand. Mr. Manager BUTLER. No. Mr. EVARTS. Therefore we dismiss that. The Chronicle speech, then, we consider not proved by authentic evidence submitted to the court. The stenographic reports in the two forms indicated we suppose have proof to sup- port them, which is competent, and enable the court under competent evidence to judge of their accuracy, their accuracy to be the subject of remark, of course, as the cause proceeds, and without desiring here to anticipate the dis- cussion as to whether any evidence concerning them (as we have excepted and objected in our answer to the tenth and eleventh articles) is admissible. Saving that for the purpose of discussion in the body of the case, we make no other objection to the reading of the speeches. Mr. Manager BUTLER. Do you want the whole of them read? We are content with one, the others being subject to be used by either party. Mr. EVARTS. Whichever version you put in evidence we wish read. Mr. Manager BUTLER. We put all ver- sions in evidence, and we will read one. Mr. EVARTS. We sfcould like to have the one read that you rely on. Mr. TIPTON. Mr. Chief Justice, I move that we now take a recess of fifteen minutes. Mr. TRUMBULL. Before that motion is put I wish to put it in the form of an adjourn- ment until three o'clock, that we may do some legislative business. ["No, no."] There is a rule that ought to be altered, and if the Sen- ator from Nebraska will allow me I will move that the court adjourn until three o'clock. The CHIEF JUSTICE. The Senator from Illinois proposes that the court adjourn until three o'clock. Mr. JOHNSON. What for? The CHIEF JUSTICE. The Senator from Illinois will state the object of the adjournment. Mr. JOHNSON. I think the honorable member did state the purpose, but I did not hear him. The CHIEF JUSTICE. The Senator from Illinois states that he desires an adjournment for the purpose of taking up a rule in legis- lative session. You who are in favor of ad- journing until three o'clock will say "ay, " the contrary opinion "no." The motion was not agreed to. The CHIEF JUSTICE. The question now is on the motion of the Senator from Nebraska, [Mr. Tipton.] Mr. DRAKE. I suggest an amendment to the motion of the Senator from Nebraska, that we take a recess for twenty minutes. The CHIEF JUSTICE. The Chair will put the question on the longest time first. . The motion is to take a recess for twenty minutes. The^ motion was not agreed to. The CHIEF JUSTICE. The question now recurs on the motion of the Senator from Ne- braska, to take a recess for fifteen minutes. The motion was agreed to ; and at the. ex- piration of fifteen minutes the Chief Justice resumed the chair, and called the Senate to or- der at two o'clock, and forty-five minutes p. m. Mr. GRIMES. I move that this court stand adjourned until Monday at twelve o'clock. Mr. CONNESS. 1 hope not. Mr. DRAKE. I ask for the yeas and nays upon that motion. The CHIEF JUSTICE. It is moved that the Senate adjourn until Monday at twelve o'clock, and on this question the yeas and nays are demanded. The yeas and nays were not ordered. Mr. DRAKE. The rule requires us to sit every day. Mr. JOHNSON. No; it does not. It is " unless otherwise ordered." The CHIEF JUSTICE. The question is on the motion to adjourn. Mr. SUMNER. The yeas and nays have been called for. The CHIEF JUSTICE. There was not a sufficient number rising to demand the yeas and nays, and they-were not ordered. Mr. SUMNER. Then there was a misap- prehension, if the Chair will pardon me. The CHIEF JUSTICE. The Chief Justice will put the question again on ordering the yeas and nays. The yeas and nays were ordered ; and being taken, resulted— yeas 19, nays 28 ; as follows : YEAS— Mossrs. Buckalow, Corbett, Davis, Dixon, Fessondcn, Fowlor, Grimes, Honderson, Hendricks, THE CONGRESSIONAL GLOBE. 99 Johnson, McCreery, Norton, Patterson of Tennessee, Ramsey, Saulsbury, Trumbull, Van Winkle, Viokers, and Wilson— 19. NAYS— Messrs Anthony, Cameron, Cattell. Chand- ler, Cole, Conkling, Conness, Cragin, Brake, Ed- munds, Ferry, Frelinghuysen, Howard, Howe, Mor- gan, Morrill of Maine, Morrill of "Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ross, Sprngue, Stewart. Sumner, Thayer. Tipton, Willey, and Williams— 28. NOT VOTING-Messrs. Bayard, Doolittle, Har- lan, Morton, Sherman, Wade, and Yates— 7. So the motion was not agreed to. Mr. Manager BUTLER. I now offer the version of the speech sworn to by Mr. Smith : Speech of the President of the United States* August 18, 1866. The President said : Mr. Chairman, and gentlemen of the committee:— Language is inadequate to express the emotions and feelings of this occasion; and perhaps I could ex- press more by remaining silent and letting silence speak, what I would and what I ought to say. I con- fess, though having had some experience in public life, having been before many public audiences — I con- fess the present occasion and audienoe is well calcu- lated, and not only well calculated, but has in fact, partially overwhelmed me. X have not language to express, or to convey, as I have said, in an adequate manner, the feelings and emotions produced by the present occasion. In listening to the address that your distinguished and eloquent chairman has just delivered, the proceedings of the convention, as they transpired, recur to my mind, and seemingly, that 1 partook here of the enthusiasm which seemed to pre- vail there. And upon the reception of the dispatch, sent by two distinguished members of that conven- tion, conveying in terms the scenes that have just been described, of South Carolina and Massachusetts arm in arm. marching into that convention giving evidence that the two extremes could come together, that they could peril in future, for the preservation of the Union, as they had in the past, when the ac- companying statement that in that vast assembly of distinguished, eloquent, and intellectual persons that were there, every face was suffused with tears — when I undertook to read the dispatch to one associated with me in office, I could not give utterance to the feelings it produced. (Applause.) I think wc may justly, conclude we are moving under proper inspirations ; I think I cannot be mis- taken that an unerring TProvidence is in this matter. Thenation is imperilled; it has just passed through a mighty, bloody and momentous ordeal ; and while we have passed through that we do not find ourselves free from difficulties and dangers that surround us. While our brave men have performed their duties in the field-officers and men— while they have won laurels that are imperishable, there are still greater and moreimportantdutiesyetto perform; and while we have had their cooperation in the field we want their support out of the field when we are trying to bring about peace. Every effort has been made, so far as the executive department of the Government was concerned to restore the Union; to heal the breach, to pour oil into the wound which had been inflicted, and — to speak in common phrase, to prepare, as the learned and wise physician would, a plaster that was co-ex- tensive with the wound and that was healing in its character. (Applause.) We think, or thought, we had partially succeeded; but as the work progressed, as reconciliation seemed to be restored and the country become united, we found a disturbing and. marring element of opposi- tion thrown in ; and in making any allusion to that, I shall make no more allusion than has been in the convention and by the distinguished gentleman who has placed the proceedings of the convention before me, — I shall make no more allusion than I think the times justify. We have witnessed -In one Depart- ment of the Government every effort, as it were, to prevent the restoration of peace, harmony and union; we have seen, as it were, hanging upon the verge of the Government, as it were, a body, calling or assuming to be the Congress of the United States, when it was but a Congress of a part of the States; we have seen Congress assuming to be for the Union when every step they took was to perpetuate disso- lution, and make disruption permanent. We have seen every step that has been taken, instead of bring- ing about reconciliation and harmony, has been legis- lation that took the character of penalties, retalia- tion and revenge. This has been the course; this has been the police of one department of your Gov- ernment. The humble individual who has been addressed here to-day, and now stands here before you, has been occupying another department of the Government. The manner of his getting there I shall not allude to now — suffice it to say, I was there by the Constitution of my country (applause,) and being there by the Constitution of my country, I placed my foot, upon the Constitution as the great rampart of civil and religious liberty (applause,) having been taught in early life, and having prac- ticed it through my whole career to vonerate, respect, and make the Constitution of my fathers, my guide through my public life. (Applause.) I know it has been said, and I must he permitted to indulge in this line, that the executive depart- ment of the Government, has been despotic and tyrannical. Why, let me ask this audience here to-day, and the distinguished gentlemen who stand around me: where is the vote I evergave,— where is the speech I ever made,— where is a single act of my whole public life but what has been arrayed against tyranny and against despotism? (Applause.) What position have I over occupied, what ground have I over stood upon, when I failed to advocate the amelioration and elevation of the groat mass of my countrymen ? (Applause.) So far as charges of that kind is concerned, it is simply intended to deceive and delude the public mind, that there is some one in power who is seek- ing to trample upon and pervert the principles of the Constitution by endeavoring to cover and delude the people so far as their own public acts are con- cerned. Ihavefeltit my duty, in vindication of the principles of the Constitution of my country, to call their attention to these proceedings; but when we go forward and examine who has been playing tyrant, and where has been the tyranny and despotism exer- cised, the elements of my nature, and the pursuits of my life, has not made me in my practice aggressive, nor in my feelings; but, my nature, rather on the contrary, is defensive; and having placed my feet, or taken my stand upon the broad principles of liberty and the Constitution, there is not enough power on earth to drive me from it. [Great Ap- plause.] Upon that broad platform I have taken my stand. I have not been awed, or dismayed, or intimidated by their words or encroachments; but I have stood there, in conjunction with patriotic spirits, sounding the tocsin of alarm that the citadel of liberty was encroached upon. [Applause.] I said on one occasion before, and I repeat now, that all that was necessary in this great struggle was here, in tho contest with tyranny and despotism, was for the struggle to be sufficiently audible that the great mass of the American people could hear the struggle that was going on, and when they under- stood and heard the struggle going on, and came up, and looked in, and saw who the contestants were, and understood about what that contest was, they would settle that question upon the side of the Con- stitution and principle. ["Good."] It has been said here te*day, my faith is abiding in the great mass of the people. It is, and in the darkest moment of the struggle, when the clouds seemed to bo the most lowering, my faith instead of giving way, loomed up as from the gloom of the cloud, through which I saw that all would be safe in the end. But tyranny, and despotism I We all know that tyranny and despotism even, in the language of Thomas Jefferson, can be exercised, and exercised more effectually, by many than one. Wo have seen Congress organized; we have seen Congress in its advance, step by step, has gradually been encroach- ing upon constitutional rights and violating the fun- damental principles of the Government, day after day, and month after month. We have seen a Congress that seemed to forget that there was a Constitution of the Constitution of the United States, that there was limits, that there was boundaries to the sphere or scope of legislation. We have seen Congress in a a minority, assume to exercise, and have exercised powers, if carried out and consummated, will result in despotism or monarchy itself. This is truth, and because I and others have seen proper to appeal to the country, to the patriotism and republican feel- ing of the country, I have been denounced ; slander after slander, vituperation after vituperation of the most virulent character, has made its way through the press. What then has been my sin? What has been your sin? What has been the cause of your offending? Because you dare stand by the Consti- tution of our fathers. [Applause.] I look upon the proceedings of this convention as being more importantthan any convention thatever sat in the UnitedStates. [Applause.] When I look at that collection of citizens coming together volun- tarily, and sitting ip council, with ideas, with prin- ciples and views, commensurate with all the States and coextensive with tho whole people; and when I contrast it with a collection of gentlemen who were trying to destroy the country, I look upon it as more important than any convention that has sat, at least, since 1787; and I think I may say hero too that in tho declarations that it has made, which are equally important with the Declaration of Independence it3elf; and I here, to-day, pronounce it a second declaration of independence. [Great applause.] In this connection, I may remark, when you talk about declarations of independence, there are a great many people in tho United States, who want to bo free, that cannot claim, exactly, and in fact, that they are free at this time. I may say that your address and the declarations made, are nothing more nor less than a reaffirmation of the Constitution of the United States. [Great applause.] Yes, I will go further, and say that the declarations that you have there made, and the princiules enunciated in that address, is a second proclamation of emancipation to the people of the UnitedStates [applause;] for in the promulgation, in the proclamation reaffirming these great truths, you have laid down a platform, a constitutional platform, upon which all can make common cause, and stand, rallying for the restora- tion of the States, and tho restoration of the Union without reference to whether they belong to this association, or this party or that party; but tho theory is, my country rises above party. Upon this common ground they can stand. [Applause.] How many are there in the United States, that now require to be free? They have got shackles upon their limbs and are bound, as tight as though they were in fact in slavery. Then, I repeat, it is a second proclamation of emancipation to the people of the United States, and fixes a common ground upon which all may stand. I have said more now, Mr. Chairman, and gentle- men of the committee, than I intended to have said; but, in this connection, and in conclusion, let me ask this intelligent audience, and committeo hero to-day, what have I or you to do, other than the promotion or advancement of tho common weal ? I am opposed to egotism— as much so as any one, but here, in acon- versational manner and in tho reception of the pro- ceedings of this convention, I must add, what have I to gain, consulting human ambition, more than I have gained, excepting one thing? My race is run. I have been placed hero by tho Constitution of the country; and I may say here, from tho lowest to A he highest position in tho Government, I have occu- pied. I passed through every single position frcm alderman in a village, to tho Presidency of the Uni- ted States ; and now, in standing before you, don't you think that all reasonable ambition should be gratified? If I wanted power, if I wanted to per- petuate my own power, and that of those who are around me, how easy would it have been for me to havo held the power placed in my hands. With the bill called the Freedmen's Bureau, and the Army placed at my discretion, [laughter and applausej I could have remained at the capital with fifty or sixty millions of appropriations, with the machinery to be worked by own hands, with my satraps and dependants in every township and civil district in the United States, where it might be neces- sary, with the Civil Rights bill coming along as an auxiliary [laughter] and all the other patronage of the Government, I could have proclaimed myself dictator. [""That's a fact."] My pride and my power is, if I havo any, to ocoupy that position which re- tains the power in the hands of the people. ["Good" and applause.] It is upon them I have always relied ; it is upon them I now rely. ["And they will not de- sert you either" — applause.] And I repeat, neither the taunts nor jeers of Congress, nor of a subsidized and culmin ating press can drive me from my p urpose. [Applause.] I acknowledge no superior but two, — my God, — the author of my existence, and the people of the Uni- ted States. [Applausej The one, I try to obey all His commands as best I can, compatible with mortal man; tho other, in a political and representative sense, the high bohestof the people has always been in strict respect, has always been obeyed by me. [Applause.] Mr. Chairman, I have said more than I intended to say. For the kind allusions mado in the address and in the resolutions or propositions adopted by your convention, I want to say to you that in this crisis, in this period of my public life, I prize that last resolution, more than all that has come to me. To have the endorsement of a convention, consti- tuted as that was, emanating spontaneously, from the great mass of tho people, I prize it above consid- "cration.and I trust and hope my future conduct will not cause the convention that adopted that to havo regretted tho assurance they have given. ["Very sure of it."] Before separating, and leaving you, gentlemen ono and all, committee and strangers, please accept my thanks for this kind manifestation of regard and re- spect that you have manifested, on this occasion, and to one that feels so little entitled to it, except upon the simple consideration of having performed his duty. I repeat again, as I have said in substance, that I have, and shall always continue to be guided by a conscientious conviction. That always gives mo courage. The Constitution I have made my guide. Then, accept my sincere thanks for this manifesta- tion of your approbation and regard. Mr. Manager BUTLER, having concluded the reading, continued : I do not propose, gen- tlemen, to read any more of these versions, but to leave them here for any correction that may be desired. Mr. ANTHONY. I offered an order in legislative session, and I do not know that it is proper to call it up at this time. If not, I should like to repeat it. The CHIEF J TJSTICE. The Chief Justice thinks it is not in order to call up any business transacted in legislative session. Mr. CONKLING, (to Mr. Anthony.) Offer it originally now. Mr. ANTHONY. Then I move that the presiding officer be authorized to assign a place upon the floor to the reporter of the Associated Press. Mr. CONKLING. A single reporter. The CHIEF JUSTICE. The Chief Justice thinks it is not in order to interrupt the busi- ness of the trial with such a motion. Mr. EVARTS. General Butler, will you allow us to ask what copies or versions of tho speech of August 18, 1866, you consider in- cluded in the testimony received ? One has been read. Mr. Manager BUTLER. I consider the two copies, one that Mr. Smith made, which has been read, and the corrected version, as the substantial copies. Mr. EVARTS. And no others? Mr. Manager BUTLER. I do not offer the Chronicle, not because it is not evidence, but because I have the same thing in Mr. Smith's report. Mr. EVARTS. Then it is only those two, and they will both be printed as part of tho evidence in the case ? Mr. Manager BUTLER. For aught I care. 100 SUPPLEMENT TO The other report offered in evidence — the one revised by Colonel Moore and published— is as follows : Mb. Chairman and Gentlemen op the Committee : Language is inadequate to express the emotions and feelings produced by this occasion. Perhaps I could express more bypermitting silence to speak and you to infer what I ought to say. I confess that, not- withstanding the experience I have had in public life, and the audiences I have addressed, this occasion and this assemblage are well calculated to, and do overwhelm me. Aa I have said, I have not language to convey adequately my present feelings and emo- tions. In listening to the address which your elo- quent and distinguished chairman has just delivered, the proceedings of the Convention, as they transpired, recurred to my mind. Seemingly I partook of the inspiration that prevailed in the Convention when I received a despatch sent by two of its distinguished members, conveying in terms the scene which has just been described of South Carolina and Massa- chusetts, arm in arm, marching into that vast assem- blage* and thus giving evidence that the two ex- tremes had come together again, and that for the future they were united as they had been in the past, for the # preservation of the Union. When the de- spatch informed me that in that vast body of men, distinguished for intellect and wisdom, every eye was suffused with tears on beholding the scene, I could not finish reading thedespatch to one associated with me in the office, for my own feelings overcame me. [Applause.] I think we may justly conclude that we are moving under a proper inspiration, and that we need not be mistaken that the finger of an Overruling and Uner- ring Providence is in this matter. The nation is in peril. We have just passed through a mighty, a bloody, a momentous ordeal, yet do not find ourselves free from the difficulties and dangers, that at first surrounded us. While our brave men have per- formed their duties, both officers and men (turning to General Grant, who stood at his right,) while they have won laurels imperishable, therearestill greater and more important duties to perform ; and while wo have had their co-operation in the fiold, we now need their support in our efforts to perpetuate peace. [Applause.] So far as the Executive Department of the government is concerned, the effort has been made to restore the Union, to heal the breach, to pour oil into the wounds which were consequent upon the struggle, and, to speak in common phrase, to prepare as the learned and wise physician would, a plaster, healing in character and co-cxtensivo with thewound. {Applause.] Wethought.andyetthink, that we had partially succeeded, but as the work progressed* as reconciliation seemed to be taking place, and the country becoming united, we found a disturbing and marring element opposing us. In alluding to that element I shall go no further than did your Convention and the distinguished gen- tleman who has delivered to me the repqrt of its pro- ceedings. I shall make no reference to it that I do not believe the time and the occasion justify. We have witnessed in one department of the govern- ment every effort, as it were, to prevent the restora- tion of peace and harmony in the Union. We have seen hanging upon tho verge of the government, as it were, a body called, or which assumes to be, the Congress of tho United States— but, in fact,, a Con- gress of only part of the States. Wc have seen this Congress assume and pretend to be for the Union, when its every step and act tended to perpetuate dis- union and make a disruption of the States inevitable. Instead of promoting reconciliation and harmony, its legislation has partaken of the character of penalties, retaliation, and revenge. This has been the course and the policy of one department of your govern- ment. The humble individual who is now addressing you stands the representative of anotherdepartment of the government. The manner in which he was called upon to occupy that position I shall not allude to on this occasion; suffice it to say that he is here under the Constitution of the country, and being here by virtue of its provisions, he takes his stand upon that charter of our liberties as the great rampart of civil and religious liberty. [Prolonged cheering.] Hav- ing been taught in my early life to hold it sacred; and having practiced upon it during my whole public career, I shall ever continue to reverence the Consti- tution of my Fathers and to make it my guide. [Hearty applause.] I know it has been said, and I must be permitted to indulge in this remark that the Execu- tive Department of thego vernment has been despotic and tyrannical. Let mo ask this audience of distin- guished gentlemen around me here to-day to point to a voto I ever gave, to a speech I ever made, to a single act of my whole public life, that has not been against tyranny and despotism. What position have I ever occupied, what ground have I ever assumed, where it can be truthfully charged that I failed to advocate the amelioration and elevation of the great masses of my countrymen? [Cries of "Never," and great applause.] So far as charges of that kind are concerned, I will gay that they aro simply intended to deceive and delude thepublic mind into the belief that there is some one in power who is usurping and trampling upon tho rights and perverting the principles of the Constitution. It is done by those who make such charges for the purpose of covering their own acts. ["That's so/' and applause.] I have felt it my duty, in vindication of principle and the Constitution of my country, to call the attention of my countrymen to these proceedings. When wo come to examine who has been playing the tyrant, by whom do we find that despotism has been exercised ? As to my- self, the elements of my nature, the pursuits of my life, have not made me, either in my feelings or in my practice, aggressive. My nature, on tho contrary, is rather defensive in its character ; but I will say that), having taken my stand upon the broad princi- ples of liberty and the Constitution, there is not power enough on earth to drive me from it. [Loud and prolonged applause.] Having placed myself upon that broad platform, I have not been awed, dismayed, or intimidated by eithor threats or encroachments, but have stood there, in conjunction with patriotic spirits, sounding the tocsin of alarm when 1 deemed the citadel of liberty in danger. [Great applause.] I said on a previous occasion, and repeat now, that all that was necessary in this great struggle against tyranny and despotism was, that the struggle should be sufficiently audible for the American people to hear and properly understand. They did hear, and looking on and seeing who tho contestants were and what that struggle was about, they determined. that they would settle this question on the side of the Constitution and of principle, [Cries of "/That's so," and applause.] I proclaim here to-day, as I have on other occa- sions, that my faith is abiding in the great mass of the people. In the darkest moment of this struggle, when the clouds seemed to be most lowering, my faith, instead of giving way, loomed up through the dark cloud far beyond— I saw that all would be safe in the end. My countrymen, we all know that, in tho language of Thomas Jefferson, "tyranny and despotism even can be exercised and exerted more effectually by the many than the one." We have seen a Congress gradually encroach, step by step, upon constitutional rights, and violate, day after day, and month after month, the fundamental prin- ciples of the Government. (Cries of "That's sol" and applause.) We have seen a Congress thatseemed to forget that there was a Constitution of the United States, and that there was a limit to the sphere and scope of legislation. We have seen a Congress in a minority assume to exercise powerswhich, if allowed to be carried out, would Jesuit in despotism or mon- archy itself. (Enthusiastic applause.) This is truth ; and because others as well as myself have seen proper to appeal to the patriotism and republican feeling of tho country we have been denounced in the severest terms. Slander upon slander, "vituperation upon vituperation, of the most villanous character, has made its way through the press. What, gentlemen, has been your and my sin? What ( has been the cause of our offending? I will tell you — J daring to stand by the Constitution of our fathers. [Approaching Senator Johnson.] I consider the proceedings of this convention, sir, as more import- ant than those of any convention that ever assem- bled in the United States. (Great applause.), When I look with my mind's eye upon that collection of citizens, coming together voluntarily, and sitting in council with ideas, with principles and views com- mensurate with all the States, and coextensive with the whole people, and contrast it with the collection of gentlemen who are trying to destroy the country, I regard it as more important than any convention that has sat at leastsince 1787. (Renewed applause.) I thinkl may say also that the declarations that were there made are equal with the Declaration of Inde- pendence itself, and I here to-day pronounce it a second Declaration of Independence. (Cries of "Glorious," and most enthusiastic and prolonged ap- plause.) Your address and declarations are nothing more nor less than areaffirmation of the Constitution of the United States. (Cries of "Good!" and ap- plause.) Yes, I will go further, and say that the declarations you have made, that the principles you have enunciated in your address, are a second procla- mation of emancipation to the people of the United States— (renewed applause) — for in proclaiming and reproelaiming these great truths youhave laid down a constitutional platform upon which all can make common cause, and stand united together for the res- toration of the States and the preservation of the Government without reference to party. The query only is the salvation of the country, for our country rises above all party considerations or influences. (Cries of "Good I" and applause.) How many are there in the United States that now require to be free?— they have the shackles upon their limbs, and are bound as rigidly as though they were in fact in slavery? I repeat, then, that your declaration is the second proclamation of emancipation to the people of the United States, and offers a common ground upon which all patriots can stand. (Applause.) Mr. Chairman and gentlemen : Let me, in this con- nection, ask you what have I to gain more than the advancement of the public welfare? I am as much opposed to the indulgence of egotism as anyone, but hero, in a conversational manner, while formally re- ceiving .the proceedings of this convention, I may be permittod again to ask, what have I to gain, consulting human ambition, more than I have gained, except in one thing? My race is nearly run. I have been placed in the high oftico which I occupy under the Constitu- tion of tho country, and I may say that I nave held, from lowest to highest, almost every position to which a man may attain in our Government. I have passed through every position, from an alderman of a vil- lage to the Presidency of the United States; and surely, gentlemen, this should bo enough to gratify a reasonable ambition. If I wanted authority, or if I wished to perpetuate my power, how easy would it have been to hold and wield that which was placed in my hands by tho measure called the "Freedmen's Bu- reau bill." (Laughter and applause.) With an army which it placed at my discretion I could have re- mained at the capital of the nation, and with fifty or sixty millions of appropriations at my disposal, with the machinery to be worked by my own hands, with my satraps and dependants in every town and village, and then with the "Civil Rights bill " follow- ing as an auxiliary— (laughter)— in connection with all the other applianoes of the Government, I could have proclaimed myself Dictator 1 ("That's true," and applause.) But, gentlemen, my pride and ambition have been to occupy that position which retains all power in the hands of the people. (Great cheering.) It w upon that I have always relied: it is upon that I rely now. (A voice— "And the people will not disappoint you.") And I repeat, that neither the taunts nor jeers of Congress, nor of a subsidised, calumniating press, can drive me from my purpose. (Great ap- plause.) I acknowledge no superior except my God, the author oi'wy existence, and the people of the United States. (Prolonged and enthusiastic cheer- ing.) For the one, I try to obey all His commands as best I can compatible with my poor humanity; for the other, in apolitical and representative sense, the high behests of the people hare always been re- spected and obeyed by me. (Applause.) Mr. Chair- man, I have said more than I intended to say. For the kind allusions to myself contained in your ad- dress and in the resolutions adopted by the conven- tion, let me remark that, in this crisis, and at this period of my public life, I hold above all price, and shall ever recur with feelings of profound gratifica- tion to the lastresolution containing the indorsement of a convention emanating spontaneously from the great mass of the people. I trust and hope that my future action may bo such that you and the conven- tion that you represent may not regret the assurance of confidence you have expressed. ("Wo are sure of it.") Before separating, my friends, one and all, committee and strangefs, please accept my Sincere thanks for the kind manifestations of regard and respect you have exhibited on this occasion. Ire- peat that I shall always continue to be guided by a conscientious conviction of duty, and that always gives me courage, under tho Constitution, which I have made my guide. William _N. Hudson sworn and examined. By Mr. Manager Butler: Question. What is your business? Answer. I am a journalist by occupation. Question. Where is your home? Answer. In Cleveland, Ohio. Question. What paper do you have charge of? Answer. The Cleveland Leader. Question. Where were you about the 3d or 4th of September, 1866? Answer. I was in Cleveland. Question. What was your business then? Answer. I was then o»e of the editors of the Leader. Question. Did you hear the speech that Pres- ident Johnson made there from the balcony of a hotel? Answer. I did. Question. Did you report it? Answer. I did, with the assistance of another reporter. Question. Who is he? Answer. His name is Johnson. Question. Was your report published in the paper the next day? Answer. It was. Question. Have you a copy?. Answer. I have. Question. Will you produce it? [The witness produced a copy of the Cleve- land Leader of September 4, 1866.] Question. Have you your original notes ? Answer. I have not. Question. Where are they ? Answer. I cannot tell. They are probably destroyed. Question. Have you the report in the paper of which you are the editor, which was pub- lished the next day? Answer. I have the report which I have sub- mitted. Question. What can you say as to the accu- racy of that report? Answer. It is not a. verbatim report, except in portions. There are parts of it which are verbatim, and parts are synapsis. Question. Does the report distinguish the parts which are not verbatim from those which are? Answer. It does. Question. Is all put in that Mr. Johnson did say ? Mr. EVARTS. He says not. By Mr. Manager Butler : Question. Is anything left out which John- son said? Answer. Yes. Mr. EVARTS. Do you mean the President or reporter Johnson ? Mr. STANBERY. Whom do you mean by Johnson? Mr. EVARTS. There was another John- son mentioned. THE CONGRESSIONAL GLOBE. 101 Mr. Manager BUTLEE. Not on this occa- sion. Mr. EVARTS. Yes, reporter Johnson. Mr. Manager BUTLER. I mean Andrew- Johnson " last aforesaid. " Answer. The report leaves out some por- tions of Mr. Johnson's speech; states them in synoptical form. Question. Is there anything putin there that he did not say? Answer. There are words used which he did not use, in stating the substance of what lie said. There is nothing substantially stated that he did not state. Question. When was that report prepared by yourself? Answer. It was prepared on the evening of the delivery of the speech. Question. Did you see it after it was printed ? Answer. I did. Question. Did you examine it? Answer. I did. Question. Now, sir, what can you say as to the accuracy of the report wherever the words are professed to be given? Answer. To the best of my remembrance it is accurate. Question. You now believe it to be accu- rate? Answer. I do. * • Question. How far do you say it is accurate where substance is professed to be given? Answer. It gives the substance — the sense without the words. Question. Taking the synoptical part and the verbatim part, does the whole give the sub- stance of what he said on that occasion ? Answer. It does. Question. By way of illustration of what I mean, take this part: "Haven't you got the court? Haven't you got the Attorney General ? Who is your Chief Justice ?" Is that the synop- tical part or is that the verbatim part? Answer. That is part of the verbatim report. Mr. Manager BUTLER, (to the counsel for the respondent. ) I propose now, gentlemen, to put this in evidence. Mr. EVARTS. We will cross-examine him before you put the paper in evidence. Mr. Manager BUTLER. Yes, sir. Cross-examined by Mr. Evabts : Question. Mr. Hudson, was this newspaper that you edited and for which you reported of the politics of the President or of the opposite opinion? Answer. It was Republican in politics. Question. Opposite to the views of the Pres- ident, as you understood them? Answer. It was. Question. At what time was this speech made? Answer. On the 3d of September, 1866. Question. At what hour of the day? Answer. About nine in the evening. Question. It commenced then? Ansioer. It commenced. Question. When did it conclude ? Answer. I think about a quarter before ten. Question. And was there a large crowd there? Answer. There was. Question. Of the people of Cleveland? Answer. Of the people of Cleveland and sur- rounding towns. Question. Was this baleony from which the President spoke also crowded ? Ansioer. Yes. Question. And where were you ? Answer. I was upon the balcony. Question. What convenience or arrangement had you for taking notes ? Answer. I took my notes upon my knee as I sat. Question. Where did you get light from ? Answer. From the gas above. Question. At what time that evening did you begin to write Out your notes? Answer. To the best of my remembrance about eleven o'clock. Question. And when did you finish ? Answer. Between twelve and one. Question. And When did it go to press ? Answer. About three o'cloekinthe morning — between three and four. Question. Did you write the synoptical parts from your notes, or from your recollection of the drift of the speech ? Answer. From my notes. ■Question. You added nothing, you think, to the notes? Answer. Nothing^. Question. But yoti did not produce all that was in the notes ? Is that it? Answer. I did not. Question. You omitted wholly some parts that were in your notes, did you not 1 Answer. 1 endeavored to give the substance of all the President said. Question. You mean the meaning, do you not? Answer. The meaning. Question. As you understood it? Answer. As I understood it. Question. That is the drift of it ? Ansioer. Exactly. Question. That is what you mean exactly. You think you meant to give the drift of the whole that you did not report verbatim ? Answer. Yes. Question. Did you not leave out any of "the drift?" Answer. Not intentionally. Question. But actually ? Answer. Not to my remembrance. Question. Have you ever looked to see ? Answer. I have not compared the speech with any full report of it. Question. Nor with your notes ? Answer. I did subsequently compare the speech with my notes. Question. Do you mean this drift part? Answer. I mean to say that I compared the speech as reported here with my notes. Question. I mean the part that is synoptical ; did you compare that with your notes ? Answer. I did. Question. When? Answer. On the next day, and I have had occasion to refer to it several times since. Question. When did your notes disappear? Answer. In the course of a few weeks. They were not preserved at all. Question. Are you sure, then, that you ever compared it with your notes after the immedi- ately following day ? Answer. I arm Question, Did you destroy your notes inten- tionally? Answer. I did not. Question. Where are they ? Answer. I cannot tell. Question. In regard to the part of the speech which you say you reported verbatim, did you at any time, after writing it out that night, compare the transcript with the notes ? Answer. I did. Question. For the purpose of seeing that it was accurate ? Answer. I did. Question. When was that ? Answer. That was on the next day. Question. With whose assistance? Answer. I think without assistance, to the best of my remembrance. Question. Did you find any changes neces- sary? Answer. There were typographical errors in the reading of the proof. There were no material errors. Question. But were there no errors in your transcript from the notes ? Answer. I may have misapprehended the question. I did not compare my manuscript transcript; I compared the speech as printed. Question. With what ? Answer. With my notes. Question. That was not my question ; but you say you did compare the speech as printed with your notes, and not with your transcript? Answer. Not with the transcript. Question. Did you find that there were no errors in the print as Compared with the ori- ginal notes ? Answer. There were some typographical errors. Question. No others ? Answer. No others to the best of my remem- brance. Question. Not a word? Ansioer. I remember no others. Question. Were there any others? Answer. Not that I remember. Question. Are you prepared to say that you observed in comparing your printed paper of that morning with your phonographic notes that the printed paper was absolutely accurate? Answer. My notes were not phonographic. Question. What are they? a Answer. They were made in writing. Question. Written out in long-hand? Answer. Yes. Question. Do you mean to say, sir, that you can write out in long-hand, word for word, a speech as it comes from the mouth of a speaker? Answer. I mean to say that in this instance I did parts of the speech. Question. Then you did not even have notes that were verbatim except for part of the speech ? Ansioer. That was all. Question. And then you made your synopsis or drift as it went along? Answer. Yes. Question. How and upon what rule did you select the parts that you should report accu- rately and those of which you should give ' ' the drift?" Answer. Whenever it was possible to report accurately and fully, I did so. When I was unable to keep up with the speaker I gave the substance as I could give it. There were times during the speech when, owing to the slowness with which the speaker spoke and the interrup- tions, a reporter was able to keep up writing in long-hand with the remarks of the President. Question. Then that is your report of his speech? Answer. It is. Question. Not by the aid of phonography or short-hand? Answer. No. Question. Did you abbreviate or write in full the words that you did write? Answer. I abbreviated in many instances. Question. Do you remember that? Answer. I do. Question. Can you give us an instance of one of your abbreviations that is now written out here in full? Answer. I cannot. Question. You cannot regall one ? Answer. I cannot. Question.- Now, sir, without any printed paper before you, how much of President Johnson's speech, as made at Cleveland on the 3d of September, can you repeat? Answer. I can repeat none of it. Question. None whatever ? Answer. Verbatim, none. Question. Do you think you could give " the drift" of some of it-? Answer. I think I might. Question. As you understand it and remem- ber it? Answer. Yes, sir. Question. Do you mean to be understood that you wrote down one single sentence of the President's speech, word for word, as it came from his mouth ? Answer. I do. Question. Will you point out anywhere any such sentence? Answer. The sentences which were read by the Manager were written out word for word. Question. Those three questions which he read ? Now, do you mean to say that any ten consecutive lines of the printed report of your newspaper you wrote down in long- hand, word for word, as they came from the President's mouth ? Answer. I cannot tell how much of it I wrote 102 SUPPLEMENT TO down at this distance of time. It is my im- pression, however, that there were as much as that, and more. Question. Can you say anything more than this, that you intended to report as nearly as you could and as well, under the circumstances, without the aid of short- hand faculty, what the President said ? Answer. I can say, in addition to that, that there are parts of this speech which were re- ported as he said them. Question. From present memory? Answer. From memory of the method in which those notes were taken. Question. What parts can you so state ? As to all that purports to be verbatim are you ready so to swear? Answer. I cannot swear that it is the abso- lute language in all cases. I can swear that it is an accurate report. Question. What do you mean by an accurate report, and not an absolute report? Answer. I mean to say a report which gives the general form of each sentence as it was uttered, perhaps varying iu one or two words occasionally. Question. I asked you just now if you could say any more than that you intended to report as well as you could under the circumstances in which you were placed and without the aid of short-hand faculty? Answer. I can say in addition to that, that there are portions of this which are reported verbatim. Question. Now, I wan t you to tell me whether all that purports to be verbatim is, in your mem- ory and knowledge, accurately reported ? Answer. It is accurately reported ; I should not say with absolute accuracy. Question. The whole ? Answer. Yes, sir. Question. Now, in regard to the portion of the speech that you did not profess to report verbatim, what assurance have you that you did not omit some part of the speech? Answer. There are portions which are not given with entire fullness; but the substance and meaning in all cases I intended to give. Question. What assurance have you that some portions of the speech are not omitted entirely from your synoptical view? Answer. I was able to take notes of nearly every sentence uttered by the President, and I am confident that I did not fail to take notes of at least any paragraph of the report, Question. Any paragraph of the speech ! That is to say, you are confident that nothing that would have been a paragraph after it was printed was left out by you ? Answer. Yes, sir. Question. He did not speak in paragraphs, did he? Answer. Of course not. Question. You are sure you did not leave out what would be the whole of a paragraph ; did you leave out what would be half of a paragraph ? Answer. I endeavored to state the substance of the President's remarks on each subject which he took up. Question. That is the result; that you in- tended to state the substance of his remarks on each subject that he took up ? Answer. Yes, sir. Question. And you supposed that you did so ? Answer. Yes, sir. Question. Now, was this synoptical report that you wrote out anything but your original notes that you wrote out that night? Answer. Condeused from them. Question. Condensed from your original notes? Answer. Yes, sir. Question. That is to say, your original synop- tical view, as written down, was again reduced in a shorter compend by you that night? Answer. The part of the speech so reported. Question. And still you think that in this last analysis you had the whole of the Presi- dent's speech? Answer. I endeavorc4 to state his meaning. Question. Now, can you pretend to say, sir, that in respect to any of that portion of your report it is presented in a shape in which any man should be judged as coming from his own mouth? ■ Mr. Manager BUTLER. Stop a moment. I object to the question. Mr. EVARTS. It is as a test of his accuracy. Mr. Manager BUTLER. You may ask him how accurate ; I do not object to that ; but whether he thinks the man should be judged upon it is not a proper question. Mr. EVARTS. I ask him .if he professes to state in this synoptical portion of the printed speech made by him it is so produced as to be properly judged as having come from the mouth of the speaker? The Witness. I can only say that it gives, to the best of my belief, a fair report of what was seen. Question. In your estimate? Answer. In my estimate. Question. And view? Answer. And belief. Question. You spoke of a reporter John- son, who took part as I understand you, iu this business ; what part did he take ? Answer. He also took notes of the speech. Question. But independently from you ? Answer. Independently of me. Question. But the speech as printed iu your paper was made from your notes, not from his ? Answer. From mine with the assistance of his? Question. Then you brought his in also ? Answer. Yes, sir. Question. You condensed and mingled the reporter Johnson's report and your own, and produced this printed result? Answer. I did. Question. What plan did Johnson proceed with in giving the drift or effect of the Presi- dent's speech? Do you know? Answer. Johnson took as full notes as possible. Question. As possible for him? Answer. As full notes as possible for him of the President's speech. Question. How much of this report, or how much of this analysis or estimate of what the President said was made out of your notes and how much out of Johnson's? Answer. The substance of the report was made from my notes, the main portion of it. Question. What as to the rest ? Answer. Wherever Mr. Johnson's notes were fuller than mine I used them to correct mine. Question. Was that so in many instances ? Answer. That was not so in a majority of instances. Question. But in a minority? Answer. In a minority. Question. A considerable minority? Answer. Considerable. Question. Did Johnson write long-hand, too? Answer. »Yes. Question. What connection had Johnson with you or the paper? Answer. He was the reporter of the paper. Question. Was there no phonographic re- porter to take down this speech? Answer. There was none for our paper. There were reporters present, I believe, for other papers, but I cannot swear to that of my own knowledge. Mr. EVARTS. We submit upon this, Mr. Chief Justice Mr. Manager BUTLER. Wait for a moment. I have not yet got through with the witness. Mr. EVARTS. Go on, sir. Reexamined by Mr. Manager Butler : Question. You have been asked, Mr. Hud- son, about the crowd and about the manner in which you took the speech ; were there con- siderable interruptions? Answer. There were. Question. Were there considerable pauses by the President from step to step in his speech? Answer. There were; and necessary pauses. Question. Why " necessary?" Answer. Because of the interruptions of the crowd. Question. Was the crowd a noisy one ? Answer. It was. Question. Were they bandying back and forth epithets with the President ? Mr. EVARTS. We object to that. The question is what was said. Mr. Manager BUTLER. I do not adopt that question. 1 will repeat my question whether epithets were thrown back and forward between the President and the crowd. Mr. EVARTS and Mr. CURTIS. We object to the question. The proper question is what was said. Mr. Manager BUTLER. That is your question. Mr. EVARTS. The question as put is lead- ing and assuming a state of facts. It is asking if they bandied epithets. Nobody knows what "bandying" is, or what "epithets" are. Mr. Manager BUTLER, (to the witness.) Do you know what bandying means, Mr. Wit- ness? Do you. not know the meaning of the word? Mr. CURTIS. I suppose our objection is first to be disposed of, Mr. Chief Justice. Mr. Manager BUTLER. I wanted to see whether, in the first place, I had got an intel- ligible English word. However, I withdraw the question. [A pause.] My proposition is this, sir; it is not to give language Mr. EVARTS. There is no objection if you have withdrawn your question. Mr. Manager BUTLER. I have not. I have only withdrawn the question as to the meaning of a word which one of the counsel for the President did not understand. I was about, sir, stating the question. In Lord George Gor- don's case, when he was upon trial, as your honor will remember, the cries of the crowd were allowed to be put in evidence as cries, though it was objected that they could not be put in evidence. But that question precisely is not raised here because I am now upon the point, not of showing what was said, not re- peating language, but of showing what was said and done by way of interruption. I am following the line of cross-examination which was opened to me. It was asked what inter- ruptions there were; whether there was a crowd there; how far he was interrupted ; how far he was disturbed. If the President stopped in the midst of a speech to pat back an epi- thet which was thrown to him from the crowd, and if the crowd was answering back aud he replying, if they were answering backward and forward, a man could very well write down iu long-hand what he had just said. Mr. EVARTS. The witness stated that there were interruptions. Mr. Manager BUTLER. And I am follow- ing that up. Mr. EVARTS. That is the only point of your inquiry. Mr. Manager BUTLER. I asked the na- ture of them to know whether they would bo likely to disturb a speaker and make him pause. Mr. EVARTS. The question- to which we objected was, •' Was there a bandying of epi- thets backward and forward between the-Pres- ident and the crowd?" The CHIEF JUSTICE. The honorable Manager will be good enough to reduce his question to writing. Mr. Manager BUTLER. I will not stop to do it in that form ; but I will put it in another shape. [To the witness.] What was said by the crowd to the President, and what was said by the President to the crowd? Answer. The President was frequently in- terrupted by cheers, by hisses, and by cries apparently from those opposed to him in the crowd. Mr. Manager BUTLER, (to the witness.) You have the right to refresh your memory by any memorandum which yon have, or copy of memorandum made at the time. THE CONGRESSIONAL GLOBE. 103 Mr. EVARTS. Not a copy. Mr. Manager BUTLER. Yes, sir, any copy of a memorandum which you know is a copy made at the time ; and state, if you please, what kind of epithets passed. [The witness, placing a newspaper before him, was about to read therefrom.] Mr. EVARTS. We do not regard the news- paper as a memorandum made at the time. Mr. Manager BUTLER. He may refer to it. Mr. EVARTS. Our objection is that it is not a memorandum. Mr. Manager BUTLER. We may as well have that settled at once, if it is to be done. When a man says, "I wrote down the best I could, and put it in type within four hours of that time, and I know it was correct, for I examined it," I insist that on every rule of law in every court where any man ever practiced that is a memorandum by which the witness may refresh his recollection. The CHIEF JUSTICE. Do the counsel for the President object to the proof of the loss of the original notes? Mr. EVARTS. We do not on this question. This witness is to speak by his recollection if he can ;• if he cannot he is allowed to refresh it by the presence of a memorandum which he made at the time. Mr. Manager BUTLER. We deny that to be the rule of law. It may be by any memo- randum which was correct at the time to his knowledge. On this point I am not without authority. In Starkie on Evidence is a refer- ence to a case in 2 Adolphus and Ellis, 210, where it was said: " In many cases, such as where an agent has been employed to make a plan or map and has lost the items of actual adineasu^ment, all he can state is that the plan or map is correct, and has boen con- structed from materials which he knew at the time to be true." He has then a right to use the map or plan which he made afterward, having lost his field- notes, to refresh his memory, saying he knew them to be true. If the witness puts down these cries at the time and these interruptions and these epithets, and he is willing to state that he knows them to be true, because he copied them off from his original notes, which he has not now, he has a right to refresh his memory by that copy. I read again from Starkie : " If the witness be correct in that which he posi- tively states from present recollection, namely, that at a prior time ho had a perfect recollection, and having that recollection, truly stated it in the docu- ment produced in writing, though its contents are thus but mediately proved, must be true." Mr. EVARTS. Tf he presently recollects. Mr. Manager BUTLER. The question now is upon his using that memorandum to refresh that recollection. We cannot be drawn from the point. The CHIEF JUSTICE. The honorable Manager will please reduce his question to writing. Mr. Manager BUTLER, having reduced the question to writing, read it as follows: Question. I desire to refresh your recollection from any memorandum made by you at or near the time which you have, which you know to be correct, and from that state what was said by the crowd to the President and what he said to tho crowd ? Mr. EVARTS. 'That question I do not object to. Mr. Manager BUTLER, (to the witness.) Look at the memorandum and go on. Mr. EVARTS. That is not a memorandum ; it is a newspaper. The CHIEF JUSTICE, (to the witness.) Is tLat a memorandum made by you at the time? The Witness. This is a copy of a memo- randum made by me at the time. The CHIEF J USTICE. Are the notes f-om which you made that memorandum lost? The Witness. They are. The CHIEF JUSTICE. You may look at it unless there is some objection on the part of some Senator. Mr. JOHNSON. Mr. Chief Justice, I do not understand the question asked by the Manager. Mr. Manager BUTLER. I do not under- stand the counsel for the President as ob- jecting. Mr. JOHNSON. I am not objecting at all ; I only want to know what the question is. The CHIEF JUSTICE. It is inquired on the part of the Managers what interruptions there were, and the witness is requested to look at a memorandum made at the time in order to refresh his memory. Of that mem- orandum he has no copy, but he made one at the time, and it is lost. The Chief Justice rules that he is entitled to look at a paper which he knows to be a true copy of that mem- orandum. If there is any objection to that ruling, the question will be put to the Senate. Mr. Manager BUTLER, (to the witness.) Go on now, sir, beginning at the beginning. The Witness, (with a newspaper before him. ) The first interruption of the President by the crowd occurred on his referring to Mr. EVARTS. Mr. Chief Justice, we un- derstand the ruling of the court, to which of course we submit, that the witness is allewed to refresh himself by looking at a memorandum, made at the time, which this is considered equivalent to, and thereupon, state from his memory, thus refreshed, what occurred. He must swear from memory refreshed by the memorandum, and not by reading the memo- randum. Mr. Manager BUTLER. He may read the memorandum to refresh his memory and then testify. Mr. EVARTS. Yes, sir ; but not to read it aloud to us. The CHIEF JUSTICE, (to the witness.) Look at the memorandum and then testify. Mr. Manager BUTLER. You may read it if you please. The Witness. The first interruption of the President occurred when he referred to the name of General Grant. He said that a large number in the crowd desired to see General Grant, and to hear what he had to say, where- upon there were three cheers given for General Grant. The President went on, and the next interruption occurred when he spoke of his visit, and alluded to the name of Stephen A. Douglas, at which there were cheers. The next serious interruption occurred at the time that the President used this language : " I was placed upon that ticket, "the ticket for the Presidency, " with a distinguished citizen now no more ;" whereupon there were cries, "It's a pity:" " Too bad ; " " Unfortunate. " The President proceeded to say, ' ' Yes, I know there are some who say "unfortunate." Mr. EVARTS and Mr. CURTIS. That will not do. Mr. Manager BUTLER. What was then done by the crowd? The Witness, (consulting the newspaper.) The President went on to say that it was unfor- tunate for some that God rules on high and deals in justice, and there were then cheers. Mr. EVARTS. Mr. Chief Justice, the point made by the learned Manager was this, that in following his examination of this witness, in order to prove that he had times and chances to write out in long-hand what tho President had said, he could show that there were in- terruptions of space. That is the whole matter as I understand it, and now he is reading the President's speech,which is not yet in evidence, nor permitted to be given in evidence, as a part of the question whether there were interrup- tions or not to allow him to write it out. Mr. Manager BUTLER. He is, I under- stand, not giving the President's speech, but he is giving such portions only as show where the interruptions come in, because he has skipped long passages. Now, when we com- pare these interruptions with that which he took accurately, we shall see how he had time to take verbatim certain portions of the speech. We go on unless stopped. The CHIEF JUSTICE, (to the witness.) The witness will look at the memorandum, and then testify as well as he can from his present recollection. Mr. Manager BUTLER, (to the witness.) Go on, sir, from where you left off. The Witness. The next interruption oc- curred where the President remarked that if his predecessor had lived Mr. EVARTS. The question is of the in- terruption and its duration and form, not of its being when the President said this or that, or what he said. Mr. Manager BUTLER. I beg your par- don. I put the question, and it was expressly said there was no objection to it, " What-jdid the President say to the crowd and what did the crowd say to the President?" That was not objected to, but it was said, "That is what we want." I put it in writing, and the writing is on the desk, that I want what the crowd said to the President and what the President said to the crowd. That was not objected to. [To the witness.] Go on, sir. The Witness. When this remark was made the crowd responded "Never," " Never," and gave three cheers for the Congress of the Uni- ted States. The President went on : "I came here as I was passing along, and having been called upon for the purpose of .exchanging views and ascertaining if we could " The CHIEF JUSTICE. Mr. Manager, do we understand that this witness is to read the speech ? Mr. Manager BUTLER. No, sir ; he is not reading the speech ; he is skipping whole para- graphs, whole pages of it almost; it is only where the interruptions come in. [To the wit- ness.] Now just read the last words before the interruptions come in, if you please, which will bring out all we want, and that will save all trouble. The Witness. When the President re- marked that he came here for the purpose of ascertaining, if he could, who was wrong and responsible, the erowd said: "You are, and there were long-continued cries. The President inquired, later in the speech, who could place his finger upon any act of the President's devi- ating from right, whereupon there were cheers and counter-cries of "New Orleans" long continued ; and that cry was repeated, fre- quently breaking the sentences of the President into clauses, and at the close of each sentence it was of some length. At the same time there were cries, "Why don't you hang Jeff. Davis?" The President responded, "HangJeff. Davis!" Then there were shouts and cries of " D own with him," and there were other cries of "Hang Wendell Phillips." ThePresidentasked," Why don't you hang him?" There were answers given, " Give us an opportunity?" The Presi- dent went on to ask: "Haven't you got the court? Haven't you got the Attorney Gen- eral? Who is your Chief Justice, who has re- fused to sit on his trial ?" He was then inter- rupted by "groans and cheers." He went on to speak of calling upon Congress, "that is trying to break up the Government" Mr. STANBERY. Stop. Mr. Manager BUTLER, (to the witness.) Well, sir, state what took place then ? The Witness. When he said, " I called upon your Congress, that is trying to break up the Government " there were cries of " A lie " from the crowd, hisses, and voices cried "Don't get mad," and the President responded "lam not mad." There were then hisses. After a sentence or two there were three more cheers given for Congress. Then after another sen- tence voices cried "How about Moses? " Question. What next? Answer. The next interruption I find noted here Mr. EVARTS. That is not what you are to testify to ; not what you find there, but what you remember. Mr. Manager BUTLER. The question is whether after seeing it you can remember it to tell it to us ? Answer. The next interruption, I remember, was a cry of "Yes," when the President in- quired " Will you hear me." These cries were 104 SUPPLEMENT TO taken up and were repeated sometimes for several minutes. There was all this time great confusion, cheers by the friends of the President, and counter-cries by those apparently opposed to him. The President repeated his question asking if the people wouldhear him for his cause and for the Constitution of his country, and there were again cries "Yes, yes," " Go on." He proceeded in the next sentence to inquire whether in any circumstances he ever violated the Constitution of the country, to which there were cries in response of " Never, never," and counter-cries. The interruptions continued. \Vl»eu Mr. Seward' s name was mentioned there was a voice " God bless him," and cheers for Mr. Seward. He said that he would bring Mr. Seward before the people, show them his gap- ing wounds and bloody garments and'ask who was the traitor. There were cries of "Thad. Stevens," when the President asked "Why don't you hang Thad. Stevens and Wendell Phillips?" and there were cheers and hisses. The President proceeded to say that, having fought traitors at the South, he would fight them at the North, when there were cheers and hisses, and there were also cries, when the President said that he would do this with the help of the people, "We won't give it." The interruptions continued in the shape of cheers and hisses and cries of the same sort throughout the speech. Question. Were those cries and cheers and hisses continued so as to make the interruption go on for some time? Answer. Frequently for several minutes. Question. In that time would you be enabled to get up with him and get your report out? Answer. I was able to make during most of these a verbatim report of what the Presi- dent said. Re-cross-examined by Mr. Evarts : Question. You made a memorandum at the time of these interruptions? Answer. I did. Question. Of these cries and hisses? Answer. I did. Question. And while you were doing that you could catch up with reporting the Presi- dent's speech, could you? Answer. Yes, sir. Question. Now, sir, have you not in every statement that you have made of these inter- ruptions read from that newspaper before you? Answer. I have read from the newspaper some. I think that every one was in the news- paper. Question. Are you not, quite sure of it ? Answer. I will not be positive. Question. Not positive but that you remem- ber some that are not in the newspaper ? Answer. Possibly. Question. Have you forgotten any that were in the newspaper? Answer. No. I have not given all that occurred in the newspaper. Question. Without that newspaper, do you recollect any of those interruptions ? Answer. I do. Question. All of them ? Answer. I should not be able to give all of them without the aid of the memorandum. Question. Did you not make a full report of these interruptions on your notes? Answer. I did. Question. Of all that the crowd said ? Answer. Not of all that they said. Question. Why not of all that they said? Answer. Of all that I was able to catch. Question. All that you could put down ? Answer. Yes. Question. You got all that you could put down, and you left out some of what they said because you had not time to put it down ; and yet you were catching up with the President? Answer. I gave my first attention to report- ing the President. Whatever time I had for putting down cries besides that I did so. By Mr. Senator Grimes : Question. I desire the witness to specify the particular part of the report, as published, which was supplied by the reporter Johnson ? Answer. It is impossible for me to do that at this time. Mr. Manager BUTLER. If the Senator will allow me, I will ask the witness whether any special part of the report itself was sup- plied by Johnson or whether it was only cor- rected by Johnson's notes? The AVitness. The report was made out from my notes, corrected by Mr. Johnson's notes. I cannot say whether there were entire sentences from Mr. Johnson's notes or not. By Mr. Manager Butler: Question. I will ask you whether there can be such practice in reporting as to enable a person by long- hand to make out a substantially accurate report? Mr. EVARTS. To that we object. \ou can ask whether this witness by his practice can do it, not whether other people can do it. Mr. Manager BUTLER, (to the witness.) Have you had such practice ? Answer. I have had considerable practice in reporting in this way, and can make out a sub- stantially accurate report. . [The witness, at the request of the honorable Manager, put his initials on the newspaper to which he had referred, the Cleveland Leader of September 4, 1866.] Daniel C. McEwen sworn and examined. By Mr. Manager Butler: Question. What is your profession? Answer. Short-hand writer. Question. How long has that been your pro- fession? Answer. For about four or five years, I should judge. Question. Were you employed in Septem- ber, 1866, in reporting for any paper? Answer. I was. Question. What paper? Answer. The New York World. Question. Did you accompany Mr. Johnson and the presidential party when they went to lay the corner-stone of a monument in honor of Mr. Douglas? Answer. I did. Question. Where did you join the party ? Answer. I joined the party at West Point, New York. Question. How long did you continue with the party? Answer. I continued with them till they ar- rived at Cincinnati, on their return. Question. Did you go professionally as a reporter ? Answer.- 1 did. Question. Had you accommodation in the train as such? Answer. I had. Question. The entree of the President' a car ? Answer. I had. Question. Were you at Cleveland? Answer. I was. Question. Did you make a report of his speech at Cleveland from the balcony ? Answer. I did. Question. How, phonographically or steno- graphically? Answer. Stenographically. Question. Have you your notes? Answer. I have. Question. Here? Answer. Yes', sir. Question. Produce them. [The witness produced a memorandum-book.] Have you, at my request, copied out those notes since you have been here ? Answer. I have. Question, (exhibiting a manuscript to the witness.) Is that the copy of them? Answer. It appears to be. Question. Is that an accurate copy of your notes ? Answer. It is. Question. How accurate u. report of the speech is your notes ? Answer. My notes are, I consider, very ac- curate so far as I took them. Some few sen- tences in the speech were interrupted by con- fusion in the crowd, which I have indicated in making the transcript, and the parts about which I am uncertain I inclose in brackets. Question. Where you have not inclosed in brackets, how is the transcript? Answer. Correct. Question. Was your report published ? Answer. I cannot say. I took notes of the speech, but owing to the lateness of the hour- it was eleven o'clock or after— it was impossi- ble for me to write out a report of the speech and send it to the paper which I represented. Therefore I went to the telegraph office after the speech was givenand dictated some of my notes to other reporters and correspondents, and we made a report which we gave to the agent of the Associated Press, Mr. Gobright. Question. Did the agent of the Associated Press accompany the presidential party for a purpose ? Answer. Yes, sir. Question. Was it his business and duty to forward reports of speeches ? Answer. I supposed it to be. Question. Did you so deal with him ? Answer. I did. Question. Have you put down the cheers and interruptions of the crowd or any portion of them ? . Answer. I have put down a portion of them. It was impossible to take them all. Question. State whether there was a good deal of confusion and noise there ? Answer. There was a great deal of it. Question. Exhibition of ill-feeling and tem- per? Answer. I thonght there was. Question. On the part of the crowd? Answer. On the pai*»of the crowd. Question. How on the part of the Presi- dent? Answer. He seemed a little excited. Question. Do you remember anything said there to him by the crowd about keeping his dignity ? Answer. I have not it in my notes. Question. Do you remember it? Answer. I do not remember it from hearing. Question. Was anything said about not get- ting mad? Answer. Yes, sir. Question. Did the crowd caution him not to get mad? Answer. The words used were, "Don't get mad, Andy." Question. Was he then speaking in consider- able excitement or otherwise? Did he appear considerably excited at that moment when they told him not to get mad? Mr. EVARTS. That is not any part of the present inquiry, which is to verify these notes, to see whether they shall be in evidence or not. Mr. Manager BUTLER. I understand ; but I want to get as much as I can from memory and as much as I cau from notes, and both together will make a perfect transcript of the scene. Mr. EVARTS. But the present inquiry, I understand, is a verification of notes, when- ever that is abandoned and you go by memory let us know it. Mr. Manager BUTLER. The allegation is that it was a scandalous and disgraceful scene. The difference between us is that the counsel for the President claim the freedom of speech and we claim the decency of speech. We are now trying to show the indecency of the occa- sion. That is the point between us, and the surroundings are as much part of the occasion as what was said. Mr. EVARTS. I understand you regard the freedom of speech in this country to be limited to the right of speaking properly and discreetly. Mr. Manager BUTLER. Oh, no. I regard freedom of speech in this country the freedom to say anything by a private citizen in a decent manner. Mr. EVARTS. That is the same thing. Mr. Manager BUTLER. Oh no. THE CONGRESSIONAL GLOBE. 105 Mr. BVARTS. Andfkoisthejudgeofthe decency ? Mr. Manager BUTLER. The court before whom the man is tried for breaking the laws of decency. Mr. EVARTS. Did you ever hear of a man being tried for freedom of speech in this coun- try? Mr. Manager BUTLER. No ; but I have seen two or three women tried ; I never heard of a man being tried for it before. [Laugh ter.] [To the witness.] I was asking you whether there was considerable excitement in the manner of the President at the time he was cautioned by the crowd not to get mad? Answer. I was not standing where I could see the President. I did not notice his man- ner j I only heard his tone of voice. Question. Judging from what you saw and heard ? Answer. I did not see the President. Question. What you heard ? Answer. He seemed excited ; I do not know what his manner is from personal acquaintance when he is angry. Mr. Manager BUTLER, (to the counsel for the respondent.) The witness is yours, gen- tlemen. Mr. EVARTS. Do you propose to offer this report of the speech ? Mr. Manager BUTLER. I do. Mr._ EVARTS. Very well; then I will cross- examine the witness. Cross-examined by Mr. Evarts : Question. Did you report the whole ,of the President's speech? Answer. No, sir. The hour was late and I left shortly before the close ; I do not know how long before he closed his speech. Question. So your report does not profess to be of the whole of the speech? Answer. No, sir. Question. From the time that he commenced till the point at which you left off did you report the whole of his speech? Answer. No, sir. Certain sentences were broken off by the interruptions of the crowd, as I before stated. Question. But aside from the interruptions, did you continue through the whole tenor of the speech till the point at which you jeft? Answer. I did. Question. Did you make a report of it word for word as you supposed ? Answer. Yes, sir; as I understood the speech. Question. And did you attempt to include, word for word, the interruptions of the assem- blage ? Answer. I did. I took what appeared to be the principal exclamations of the crowd ; I could not hear all of them. Question. When did you make the copy or transcript that you produce here ? Answer. I made that about two weeks since, after I was summoned before the Managers of the impeachment, and gave evidence concern- ing the speech there. Question. Can you be as accurate or as con- fident in a transcript made after a lapse of two years as if it had been made presently, when the speech was fresh ? Answer. I generally find that when a Speech is fresh in my mind I read the notes with more readiness than when they become old ; but as to the accuracy of the report I think I can make as accurate a transcript of the notes now as at that time. Question. When you transcribe after the lapse of time you have nothing to help you except the figures that are before you in your notes ? Answer. That is all, with me. Question. Are you not aware that in phono- graphic reporting there is frequent obscurity in the haste and brevity of the notation ? Answer. There sometimes is. By Mr. Manager Butler : Question. I observe that the eounsel on the other side asked for the politics of the Leader. May I ask you for the politics of the World? Answer. I have understood them to be Dem- ocratic. Everett D. Stark sworn and examined. By Mr. Manager Butler : Question. What is your profession? Answer. I practice law now. Question. What was your profession in Sep- tember, 1860? Answer. I practiced law then. Question. Where? Answer. In Cleveland. I may say I was formerly a short-hand reporter, and do more or less of it now in law business. Question. Did you report the speech of An- drew Johnson, President of the United States, from the balcony of the Cleveland Hotel on the night of the 3d of September, 1866 ? Answer. Yes, sir. Question. For what paper? Answer. For the Cleveland Herald. Question. Did you take it in short-hand ? Answer. I did. Question. Was it written out by you and„ published ? Answer. It was. Question. Was it published as written out by you? Answer. Yes, sir. Question. Have you your short-hand notes? Answer. I have not. Question. Are they in existence? Answer. I suppose not. I paid no attention to them. I suppose they were thrown in the chip-basket. Question. Did you ever compare the printed speech in the Herald with your notes for any purpose, or with the manuscript? Answer. I did with the manuscript that night. That is, I compared the slips of proofs that were furnished with the copy as I took it from the original notes. Question. How did it compare ? Answer. It was the same. Question. Were the slips of proofs the same as the paper published the next day? Answer. Just the same with such typograph- ical corrections as were made there. Question. Have you a copy of the paper ? Answer. I have. Question. Will you produce it? [The wit- ness produced a copy of the Cleveland Herald of September 4, 1866.] Can you now state whether this is a substantially accurate report in this paper of what Andrew Johnson said the night before ? Answer. Yes, sir; it is generally. There are some portions there that were cut down, and I can point out just where those places are. Question. By being" cut down" do you mean the substance given instead of the words ? Answer. Yes, sir. Question. Does it appear in the report which are substantial and which are the verbatim parts ? Answer. Not to any other person than my- self, as I can tell from my recollection. Question. Can you point out that which is substantial, and that which is accurate in the report? The Witness. Do you wish me to go over the whole speech for that purpose? Mr. Manager BUTLER. I will for the pres- ent confine myself to such portions as are in the articles. If my learned friends want you to go over the rest they will ask you. The Witness. Commencing a little before where the specification in the articles of im- peachment begins, I can read just what Mr. Johnson said at that point. Question. Do so. Answer, (reading.) " Where is the man liv- ing, or the woman, in the community, that I have wronged, or where is the person that can place their finger upon one single hair- breadth of deviation from one single pledge I have made, or one single violation of the Con- stitution of the country? What tongue does he speak? What religion does he profess? Let him come forward and place his finger upon one pledge I have violated." There there was some interruption by the crowd, and various remarks were made, of which I have noted one, because only one did Mr. Johnson pay any attention to, and that was a voice that cried "Hang Jeff. Davis." The President said, "Hang Jeff. Davis? Hang Jeff. Davis ? Why don't you ?" There was then some ap- plause and interruption, and he repeated " Why don't you'/" and there was again applause and interruption; and the President went on, " Have not you got the court? Have not you got the court," repeating it twice. "Have not you got the Attorney General? Who is your Chief Justice — and that refused to sit upon the trial?" There was then interruption and applause, and he went on to say: "I am not the prosecuting attorney ; I am not the jury; but I will tell you what I did do : I called upon your Congress that is trying to break up the Government" At that point there was interruption and confusion, and there may have been words there uttered by the President that I did not hear, but I think not. " Yes, did your Congress order hanging Jeff. Davis?" and then there was confusion and applause. And then the President went on to say, "But let prejudices pass," and so on. Question. Will you now come toward the conclusion of the other point mentioned in the specifications, and state whether you reported that accurately ? Answer. Commencing a little before where the specification is of the speech he said: " In bidding you farewell here to-night, I would ask you with all the pains Congress has taken to calumniate and malign me, what has Con- gress done? Has it done anything to restore the Union of the States ? But, on the contrary, has it not done everything to prevent it ? And because I stand now as I did when the rebellion commenced I have been denounced as a traitor. My countrymen, here to-night, who has suffered more than I? Who has run greater risk? Who has borne more than 1 1 But Congress, factious, domineering, tyrannical Congress, has undertaken to poison the minds of the American people and create a feeling against me" — so far Mr. Johnson's words, and I con- cluded the sentence here in this fashion — " in consequence of the manner in which I have distributed the public patronage." These were not Mr. Johnson's words, but contained in a summary way the reasons that he gave just at that point for his action. Mr. EVARTS, (to the Managers.) Do you propose to offer this report of the Cleveland speech also ? Mr. Manager BUTLER. I propose to read one and offer all, so that the President may have the privilege of collating them in order to have no injustice done him as to what he said. Mr. EVARTS. We do not claim any priv- ileges of that kind ; on the contrary, we pro- pose to object to all of them that they are not properly proved. Mr. Manager BUTLER. Certainly. I ob- served that the President objected in his an- swer that we did not put in all he said, and I mean to' do the best I can in that regard now. Mr. EVARTS. That is exactly what we desire, if anything is to come in. Now, I will proceed with the witness. Cross-examined by Mr. Evarts : Question. You have u, newspaper report here? Answer. I have. Question. And that is all you have ? Answer. That is all the memorandum! have. Question. The only memorandum is the newspaper report? Answer. The newspaper report. Question. What is the date of the news- paper ? Answer. September 4, 1866. Question. Did you make a stenographic report of the whole of the President's speech? Answer. I did with one exception. 106 SUPPLEMENT TO Question. What exception is that? Answer. It was a part of what he said about the Freedmen's Bureau. Somewhere about the commencement of, I should say, the latter half of his speech by time, he went somewhat into details and figures which I omitted to take down. Question. Did you write out your notes in full? Answer.. No, sir. Question. You never did that? Answer. I never did that. Question. And you have not now either the notes or any transcript of them? Answer. Only this. Question. You have got a newspaper ; I un- derstand that. Now, did you prepare for the newspaper the report that is there contained ? Answer. I did. Question. And you prepared it on the plan of some part verbatim and some part condensed? Answer. Yes, sir. Question. What was your rule of condensa- tion and the motive of it. Answer. I had no definite rule that I can give. The reason why I left out a part of what he said of the Freedmen's Bureau was Question. That was not condensed at all, was it? Answer. That part was not taken. That I did take was somewhat condensed. Question. I am only asking about what you did take, not what you did not take. What was your rule in respect to what you put verbatim into your report and what you condensed ? How did you determine which parts you would treat iu one way or the other ? Answer. Well, sir, perhaps I was influenced somewhat by what I considered would be a little more spicy or entertaining to the reader. Question. In which interest, that of the Pres- ident or his opponents? Answer. Well, I do not know that. Question. Which side were you on ? Answer. I was opposed to the President. Question. But you do not know which you thought the interest was you selected the spicy part for ? Answer. I was very careful of those parts that occasioned considerable excitement or •interest in the crowd, in his hearers, to take them down carefully, as he said them. Question. The parts that the crowd were most interested in you thought you would take down carefully? Answer. With more particularity. Question. And the parts that they were inter- ested in, as you observed, were those that they made the most outcry about? Was it not so ? Answer. Yes, sir ; partially so. Question. That was your judgment and guide? Answer. Considerably. Question. Now, in regard to the condensed part of your report, are you able to say that there is a single expression in that portion of your report which was used by the President, so that the words as they came from his mouth were there set down? Answer. No, sir ; I think it is not thexiase in those particular points that I condensed. I did so by the use, in some part, of my own words. Question. And for compression of space, did you not? Answer. Yes, sir; primarily. Question. Was not your rule for condensa- tion partly when you had got tired of writing out? Answer. No, sir. Question. Not at all ? Answer. One reason was it was getting on between three and four o'clock, and I was directed to cut down toward the last, and I did so more toward the last than I did in the earlier parts of the speech. Question. In order to be ready for the press ? Answer. In order to be ready for the morn- ing press. Mr. BVARTS. We object to this report as a report of the President's speech. Mr. Manager BUTLER, (to the witness.) Mark it with your initials and leave it on the table. [The witness marked with his initials "B. D. S." the copy of the Cleveland Herald referred to by him.] I forgot to ask you what are the politics of the Herald. . The Witness. It was at that time what we called "Johnson Republican." Some called it "Post Office Republican." The editor of the Herald had the post office at that time. Mr. Manager BUTLER. I propose now, sir, to offer as the foundation, as the one upon which I rely, the Leader's report as sworn to by Mr. Hudson, the first witness as to this speech. Mr. EVARTS. That we object to ; and the grounds of objection, made manifest doubtless to the observation of the Chief Justice and the Senators, are greatly enhanced when I find that the managers are in possession of the original minutes of a short-hand reporter of the whole speech and his transcript made therefrom and sworn to by him. We submit that to substitute for this evidence of the whole speech, upon this mode of authentication, the statement of „Mr. Hudson upon the plan and theory as testi- fied to by him, is contrary to the first princi- ples of justice in evidence. He has not said how much is his and how much is the reporter Johnson's, and it is in considerable part con- densed, a statement of "drift," determined by circumstances, not of the President's utter- ance. The same objection will be made if this second or Cleveland Herald report is pre- sented. Mr. Manager BUTLER. I do not propose to argue the question. Suppose we were try- ing any other case for substantive 'words, would not this be a sufficient proof? I do not propose to withdraw the other report of Mr. McEwen. I propose to put it in, subject to comment, to be read if these gentlemen desire it read, and the other report, so that we may have all three reports : the Post office report, the Republican report, and the Democratic report. A natural leani ig makes me lean to this particular report as the one which I mean shall be the standard report, because it is sworn to expressly by the party as having been writ- ten down by himself, published by himself, and corrected by himself, and I am only surprised that there should be objection to it. Mr. EVARTS. Nothing can better mani- fest, Mr. Chief Justice, the soundness of our objection than the statement of the Manager. He selects by preference a report made by and through the agency of political hostility, and on the plan of condensation, and on the method of condensing another man' s notes, the amount and quality relatively not being discerned, in- stead of a sworn report by a phonographer who took every word and brings his original notes transcribed and brings his transcrip- tion and swears to their accuracy ; and here deliberately, in the face of this testimony as to what was said, thus authentically taken and authentically preserved and brought into court to be verified, the honorable Manager proposes to present, as of the speech in its pro- duction, the notes framed and published in the motive, and with the feeling and under the in- fluence and in the method, that has been stated. We object to it as evidence of the words spoken. Mr. Manager BUTLER. If, Mr. President and Senators, I had not lived too long in this world to be astonished at anything, I should have been surprised at the tone in which this proposition is argued. Do I keep back from these gentlemen anybody's report? Do I not give them all reports — everything I can lay my hand on ? Am I obliged to go into the enemy's camp? Shall I not use the report of my friends and not of my enemies, and then give them an opportunity of having the reports of my ene- mies to correct that of my friends? Is all virtue, all propriety in the Democratic report? Can that never be wrong ? At one time I think President Johnson, if I remember, would not like to have had me put in the " World's" re- port of him ; and when they changed exactly I do not know. I have#ffered this report— why ? Because this is the fullest complete report. The reason why I did not rely upon Mr. Mc- Ewen' s report is that he testified on the stand that he got tired and went away and did not re- port the whole speech ; but this is a report of the whole speech, and the only report which purports to beareportofthe wholespeech. Mr. Stark' s report, as he says, left out aportion. Mr. McEwen expressly swear she left out a portion. Hence I cannot put them in, or if I offered to do so I should be met with the objection, "You do not put in the whole speech." I do choose the report which the witness swears is a complete report of the speech except so far as he synopsized ; and then, so far as the other two reports go, I bring them in here to correct it, so that the President shall take no detri- ment. Oh> how he stickles now for exactness 1 The President was willing that Mr. Moore should make a speech for him on the 18th of August, and that went out. Now, then, here are three reports, representing the three un- fortunate divisions of opinion on this question ; and we offer them all to the counsel. We say which we prefer, and then he almost berates us, as much as his courtesy will allow him to do, because we choose our friends, and I am glad to say not his. The question is not of competency but of weight of evidence, and has simply been argued so. [Mr. Evarts rose.] I ask that there may be a decision. I think I have the close sometimes, sir. Mr. EVARTS. Not on our objection. Mr. Manager BUTLER. I beg your par- don ; it is on my offer. Mr. EVARTS. Our objection. Mr. Manager BUTLER. No ; my offer. The CHIEF JUSTICE. Do the counsel desire to be heard further ? Mr. Manager B UTLER. Does not the pre- siding officer think we have the close ? The CHIEF JUSTICE. The counsel for the respondent have not exhausted their hour. Mr. Manager BUTLER. Have we got to keep on in order to get the close until we oc- cupy our whole hour ? The CHIEF JUSTICE. The rule of the Senate is that each side shall have an hour. Mr. Manager BUTLER. Be it so. I can even get on with that rule. Mr. EVARTS. Discredit is now thrown upon the most authentic report, first by an observation that it omits a part of the speech, and secondly by a suggestion that it has but Democratic responsibility. There you have it fairly and squarely, that it is not on the accu- racy of phonography nor on the honesty of transcriptiou, but on the color of the mind through which the President's speech is to be run, and by double condensation reproduced to the tone and the temper of a party print. There is precisely that condensation in the first original notes of Mr. Hudson, and condensa- tion then from those notes into the space that the newspaper takes, and is offered confess- edly on the principle of selection which the learned Managers have adopted of preferring what they consider a friendly report. Mr. Chief Justice and Senators, I have read neither of them. I did not know before that the ques- tion of whether the authenticity of stenography was reliable depended upon the political opin- ions of the stenographer. We submit that there is no proper evidence ; there is no living wit- ness that by memory can produce the Presi- dent's speech, and there is no such authentica- tion of notes in any case but Mr. McEwen's that makes the published speeches evidence. Mr. Manager BUTLER. I shall not debate the matter further. I rise simply to say that I have made no such proposition. I think this is an accurate report so far as we have put it into the articles. It is an accurate report, a sworn accurate report, and by a man whom we can trust and do trust. The others, we think, are just as accurate perhaps ; that we do not go into ; we simply put them forward, so that if there is any change the President may have the benefit of it. He comes in here in his answer and says that we will not give him the THE CONGRESSIONAL GLOBE. 107 full benefit of all be said ; and then, when we take great pains here to bring everybody that ma'de a report that we can hear of in this case and we offer them all, ho says we must take a given one. To that we answer we take the one that has the whole speech. And now I will test the question : if the gentlemen will agree not to object to McEwen's report, be- cause it is not a report of the whole speech, I will take that. Mr. EVARTS. We will not make that objection. Mr. Manager BUTLER. Very good; put it in then. The CHIEF JUSTICE. The honorable Manager then withdraws his proposition to read the Cleveland Leader? Mr. Manager BUTLER._ No, sir; I am going to read this and put in both the others as evidence, with your leave. I will take this as the standard copy. Mr. HOWARD. Mr. President, if the Man- agers have no objection to it, I desire to move that the trial be postponed until to-morrow at the usual hour, for the purpose of enabling the Senate to transact some business. Mr. CONKLING and others. Let us finish this matter. f the soldier they come forward with a proposition— to do what? To give to the soldier hfty dollars ($50) bounty if he has served two (2) years, one hundred dollars ($100) if he has served three (3) years. Now mark this. Thecoloredman thatseivcd twoyearscangethisonehundred($100)dollarsbounty, but the white man must serve three for his. But that is not the point. While they were tick- ling and attempting to please the soldier by giving him tilty ($50) dollars for two (2) years services they took it in to their head to give somebody else a bounty, not of fifty ($50) dollars for two years services— now, attention I as I want to make an impression on your m ;nds of the facts— When, the brave boy who has tollowed his gallant Officer, who slept on tho tented field, who.perilled his life, shed his blood and left his limbs behind him, he can get fifty ($50) dollars bounty it ho has served two years, but the Member of Con- gress who never smelt gunpowder can get four thous- and dollars ($4,000) extra pay (Loud Cheers) That is a true picture my countrymen of what has trans- pired in the past. Fellow citizens you are all famil- iar with tho work of restoration ; you know that ever THE CONGKHSSIONAL GLOBE. 115 since the rebellion collapsed everything has been done that could be dono by the Exeoutive department of tho Government — in fact, all has been done except the admission of the members of the eleven States that went into rebellion, but having laid down their alms, abolished slavery, repudiated their debts and sent loyal representatives, everything has been dono except the admission of the representatives which all the States are constitutionally entitled to. When you examine the Constitution of the United states you will find that you cannot refuse to any state its suffrage in the Senate (They have never been out) That's so I and I have always said they could not go out (oheers) and that being so they are entitled to their equal suffrage in the United States Senate, and no power has the right or can deprive them of it without violating the Constitution of the United States. And the same argument applies to the Rep- resentatives in the House. It used to be said that when the states refused to send their representatives that that was secession, a breaking up of the Union. Now the Radical party have turned round and say that the States are not entitled to representation in Congress. That is tosay they are dissolutionistsand their position nowisto porpetuato the dissolution of the Union and that too while they deny the right of representation they impose on them taxation — a principle upon which in the revolution your fathers resisted the power of Great Britain. We deny the right of taxation without representation — this is one of the great principles of ourgovernment. (Cheers.) Let the government be restored, let peace be restored. Many years I have labored for and I am for it now. I deny this doctrine-of seoession come from whatever quarter it may, whether from the North or South. I am opposed to it. I am for the Union of these states for the thirty six stars representing thirty six states remaining where thoy are. I am for the Constitu- tion as our fathers have made it and handed it down to us and if it is altered or amended let it be done in the mode appointed for it by that instrument itself and in no other. I am for the restoration of peace. Let mo ask this peoplo here tonight if we have not shed enough blood. Let me ask this people hero to- night, are you prepared to go into, to gointo, another civil war? (No.) Let me ask this people here to- night : are they prepared to set Man upon man and in the name of God lift up his band against the throat of his brother? Are you prepared to see our fields again laid waste our commorce and business sus- pended and all trade stopped? Are we prepared to see this land that gave a brother birth, drenched in a brothers blood? I am one of those who beliove that a man May sin and that a man May repent and sometimes that having sinned & having reponted it makes him a better man than before, (Cheers.) I know it has been said that I have exercised the pardoning power. Yes, I have (cheers) And Ireckon I have pardoned more men than any other man living on the habitable globe. Yes, I turned forty- seven thousand of our men, who were engaged in this struggle, who were in prison with the arms we captured — I turned them loose. Large numbers have applied for pardons and thus I have grantedpardons to some. But by some I am attempted to be held responsible for doing wrong. Yes, there are some who stayed at home and did not go into the field who call out about blood and punishment and making treason odious and all that (Laughter) who never smelled gunpowder on the other side. Yes they would condemn and they would hang and torture and all tbVt und they that make the comparison — but if I havo erred I have erred' on mercys side and some of these croakers assume to setup that they are better than the Saviour of mankind, himself— a kind of over righteousness — thinking they are better than anybody-else and are always wanting to do the Deity's work, thinking they can do better than he can. Yes.theSaviourcameandfoundinan sentenced and under the law but when they repented he said "let them live." Instead of putting them to death hewent upon and was there painfullynailed by those unbelievers that I have spoken of and there shed his blood and died that you and I might live. Will you execute and put to death eight million of peo- ple ? It is an absurdity and is impracticable even if it were right, but it is a violation of all law human and divine. (Hang Jeff Davis.) Ybu call on Judge Chase to hang Jeff. Davis ; will you? (Laughter.) I am not the court, I am not the Jury nor the Judge. Before the case comes to me, and all other cases, it would have to come as a case or application for pardon. That is the only way cases can come before me. Why don't Judge Chase, Chief Justice of the United States— in whosedistrict he is— why don't he try him? But perhaps I can answer the question, and as sometimes people will be facetious and indulge in repartee, I might ask you a question — why dont you hang 'fluid Stevens and Wendell Phillips? [Hisses, Laughter, and Cheers.] I say that a traitor at one end of the line is as bad as a traitor at the other. 1 know men on some occasions who repeat sayings that have been placed in their mouths by their superiors, who have not the courage to come forward and say themselves, but havetheirunderstrapporscomoforward. I know there are some who talk about the elective franchise for which they wanted to overturn the Government of Louisiana, who say, " We must make contracts and send men to these oolored people and manage their affairs for them, and yet say they are compe- tent to go to Congress and and manage affairs of state. Before you commence throwing your stones you ought to be able to say that you dont live in glass houses. Then why all this clamor ? Dont you see, my countrymen, it is a question of power and being in power it is their object to perpetuate their §ower. Hence when you turn any of them out of thee they talk about " bread and butter." Yes_, it is the most perfect and complete bread and butter party that -has ever appeared in this government, and hence when you make an offer to take n single pieoe out of their mouths how they clamor. The man who has stayed at home four or fivo or six years and grown fat and indulged in all the emoluments of office and grown rich, when you talk about turn- ing one of them out it is " proscription," and heneo it is one of the objects of the Congress of the United States to pass a law preventing the Executive from turning any one out. (Turn them all out.) Hence, dont you see what the policy was to be. Howwero the people to get hold of the offices. The idea of rotation in office of the days of Madison and Jefferson Bceins to bo lost sight of; bul my belief is that when one set of men havo been in long enough it is time somebody else should have a turn. How are these men to be turned out? (Kick them out) How is this to be done unless you can reach them through the Exeoutive. Congress proposes to pass laws to keep them in. How is this to be done unless it is by the President of the United States. Well let me say to you, if you will stand by mo in vindication of the constitution of the United States in trying to give the soldiers and people a chance, I will kick them out as fast as I can (Loud cheers). I care not for the menaces, for the taunts, the jeers, the threats. I don't intend to be bullied by my enemies or even overawed by my friends but God being willing with your help I will veto every measure of theirs whenever they come before me. I place myself on the ram- parts of the constitution and when I see the enemy approaching so long as I have eyes to see or ears to hear or a tongue to sound the alarm so help me God I will do it and call for you to the rescue (Loud cheers). I tell you here to-night that the constitution of the country has been encroached upon, the citadel of liberty is being endangered (Go in Andj; I) Come up to the work and protect your constitution as the palladium of our civil and religious liberty for it is the ark of our safety. Yes let mo ask you to cling to the constitution in this great struggle for freedom as the shipwrecked mariner clings to the plank in the night when the tempest flows around him. So' far as my public life is concerned the people of Mis- souri know that my efforts have been in that direc- tion which would elevate the great masses of the peoplo. Where is the speech or vote of mine but what has always had a tendency to elevate the great masses of the people and when they talk about tyranny or despotism where is one act of Andrew Johnson's that has encroached upon the rights of a freeman. But because I have stood upon the outworks of freedom and have sounded an alarm hence all this detraction that has been heaped upon me. Then in conclusion here to-night I hand over the nag of your country with thirty-six stars upon it. I hand over the constitution of your country with the charge and responsibility of preserving it intact. I hand over to you to-night the great circle of these states. I hand them over to you, the people; I must I have always trusted the people. The great questions which pertain to your interest I hand them over to you with the charge to preserve them as men who can rise above party & come around the altar of a com- mon country & with faces upturned to heaven swear by him and all shall sink into the dust but that the constitution shall be preserved. Let us stand up' for the Union of these States, let us fight the enemies of the government come from whatever quarter they may. You understand what my position is — no tyr- anny — and with you to-nfght, I leave the Union in your hands with the confidence I have always had that the people will redress all wrongs and set the government right. Then gentlemen of this great city of the Western States in bidding you farewell I leave all in your charge and thank you greatly for tho cordial welcome you have given me to your city (Loud cheers). JOSEPH A. DEAR. Robert S. Chew sworn and examined. By Mr. Manager Butler : .Question. You are employed in the State Department? Answer. I am. Question. In what capacity ? Answer. Chief clerk. Question. Is it part of your duty to super- vise and know the commissions issued. Answer. The duty devolves particularly upon the commission elerk of the Department to prepare all commissions. The commission is first made out by a clerk who is called the com- mission clerk of the Department. It is brought to me, and by me sent to the President. When returned with the President's signature it is submitted by_ me to the Secretary of State, who countersigns it. It then goes to the com- mission clerk for the seal to be affixed. Question. Then, when it does not belong. to your Department, where does it "go— when it is not a commission of an officer in your De- partment? Answer. To the Treasury. Question. That is to say, if I understand, the commissions of officers in the Treasury are prepared at your Department ? Answer. Yes, sir ; of a portion of the officers of the Treasury. Question. Such as whom ? Answer. Such as Comptrollers, Auditors, Treasurers, Assistant Treasurers, officers of the Mint, Commissioner of the Revenue. Question. Secretary and Assistant Secretary? Answer. Yes, sir. Question. Then, after being prepared, they are sent to the Treasury ? Answer. Yes, sir. Question. Those that belong there? Answer. Yes, sir. Question. Those belonging to your office are issued from your office ? Answer. From the Department of State. Question. Now, will you have the kindness to tell us whether, after the passage, of the civil tenure act, any change was made in the com- missions of the officers of your Department to conform to that act? Answer. There was. Question. What was that change? Tell us how the commission ran in that regard before and how it has been since? Answer, (referring to forms.) The form of the old commission was "during the pleasure of the President of the United States for the time being." Those words have been stricken out, and the words "subject to the conditions prescribed by law" inserted. Question. Does that apply to all commis- sions? Answer. That applies to all commissions. Question. When was that done? Ansioer. Shortly after the passage of the tenure-of-office act. Question. About how soon, if you can tell us, one month or ten days ? Answer. I cannot say exactly, but when the first case came up, making it necessary for the commission clerk to prepare a commission, he applied for instructions under that act. Question. Was the subject then examined in the Department? Answer. It was. Question. Was this change made after that examination or before ? Answer. After the examination. Question. Was it made by the direction of the Secretary or not? Answer. The case was submitted by the Sec- retary to the legal examiner, and upon his opin- ion the change was made. Question. By order of the Secretary? Ansioer. I think so. Question. You print the form of your com- missions on parchment by copper-plate, do you not? Answer. Yes, sir. Question. Wasthe copper-plate then changed to make all forms ? Answer. It was. Question. For the various kind of commis- sions? Answer. Yes, sir. Question. Have you blank forms of the vari- ous kinds of commissions issued by your Department? Answer. I have. [Producing a number of blank forms.] Question. Prior to the passage of the act of the 2d of March, 1867, being the tenure of civil-office act, were all the commissions issued to hold office ' ' during the pleasure of the Pres- ident forthe time being?" Weretheyall issued in that form ? Answer. They were all issued in that form. Question. Since this change have all com- missions been issued in the changed form 1 Answer. They have been. Question. Have such changed commissions been signed by the President? Answer. They have been. Question. Has there been, down to to-day, any other change than the one you have stated ? Answer. None at all, that I am aware of. Question. Has any commission whatever for any officer been sent out from your Department since the passage of the act, except in this changed form ? Answer. I am not aware of any. Question. Could there have been, except by accident, without your knowing it? Answer. Not unless by accident. Mr. Manager BUTLER, (to the counsel for the respondent.) I now propose, gentlemen, 116 SUPPLEMENT TO to offer these, forms in evidence, but I will not read them unless you desire. Mr. STANBEHY. You will allow us to ask some questions first, I suppose. Mr. Manager BUTLER. Certainly. Cross-examined by Mr. Stanbery: Question. Mr. Chew, as I understand you, the old form contained this clause, "said officer to hold and exercise the office, during the pleasure of the President of the United States for the time being." That was the old form ? Answer. Yes, sir. Question. And I understand you that the words "during the pleasure of the President of the United States for the time being" are now left out, and the words " subject to the conditions prescribed by law" are inserted? Answer. Yes, sir. Question. Have you ever changed one of your plates or forms so as to introduce in place of what was there before these words, "to hold until removed by the President, with the consent of the Senate?" Answer. No, sir. Question. You never have? Answer. We never have. Question. Let me ask you if any commission has been issued to a head of Department differ- ent from those that you issued before the ten- ure-of-office act? Has any commission since that act been issued to a head of Department ? Answer. I am not aware of any. I brought no forms of commission to a head of Depart- ment, and did not examine that question. Question. Have you a separate plate for the commission of a head of Department? Answer. I cannot answer that question. Question. But you recollect no instance in" which any change has been made there? Answer. I do not. By Mr. Manager Butler : Question. Has there been any commission issued to a head of Department since March 2, 1867? Answer. I do not recollect at this moment, Mr. Manager BUTLER. Then, of course, there is no change. Mr. STANBERY. Of course not; that is what we have proved. Mr. Manager BUTLER, (to the witness. ) Hand to the Clerk all the forms you have brought with you. We offer them in evidence. The forms offered in evidence are as follows : Temporally Commission of Deputy Postmaster — Old -Form. In the form now used, the words in brackets are omitted, and the words " subject to the conditions prescribed by law" inserted. the said ■ , for the term of - President of the United States of America: To all who shall see these presents, greeting: Know ye, that, reposing special trust and confi- dence in the integrity, ability, and punctuality of , I do appoint deputy postmaster , and do authorize and empower him to execute and fulfill the duties of that office according to law; and to have and to hold the said office, with all the powers, privileges, and emoluments to the same of right appertaining unto him the said [dur- ing the pleasure of the President of the United States for the time being, and] until the end of the next session of the Senate of the United States, and no longer. In testimony whereof I have caused these letters to be made patent, and the seal of the United States to be hereunto affixed. Given under my hand, at the city of Washington, the — day of , in the year of our Lord T -j one thousand eight hundred and , and L b *- i of the independence of the United States of America the . By the President: Secretary of State. New Form Permanent Postmaster — No Form of old Commission in the Department. President of the United States of America : To all who shall see these presents, greeting : Know ye, that, reposing special trust and confi- dence in the integrity, ability, and punctuality of , I have nominated, and by and with the advice and consent of the Senate do appoint, deputy postmaster , and do authorize and em- power him to execute and fulfill the duties of that office according to law ; and to have and to hold the said office, with all the powers, privileges, and emol- uments to the same of right appertaining unto him, .subject to the conditions prescribed by law. In testimony whereof I have caused these letters to be made patent, and the seal of the United States hereunto affixed. . Given under my hand, at tbe city of Washington, the — day of , in the year of our Lord r _ i one thousand eight hundred and , and ol LL - . S * J the independence of the United States ot America the . By the President: Secretary of State. [Postmasters are appointed for four years. The words "unless the President of the United States for the time being should be pleased sooner to revoke and determine this commis- sion," are now omitted, and the words "sub- ject to the conditions prescribed by law" inserted.] New Form Temporary Commission of Marshaland At- torney. In Commissions of Marshal "diligence" is used instead of " learning." President of the United States of America : To all who shall see these presents, greeting : Know ye, that reposing special trust and confidence in the integrity, ability, and learning of. — ; . I do appoint him to be Attorney of the United States for the , and do authorize and empower him to execute and fulfill the duties of that office according to law; and to have and to hold the said office, with all the powers, privileges, and emoluments thereunto legally appertaining unto him, the said , [until the end of the next session of the Senate of the United States, and no longer;] subject to the condi- tions prescribed by law. In testimony whereof I have caused these letters to be made patent, and the seal of the United States to be hereunto affixed. Given under my hand, at the city of Washington, the — day of , in the year of our Lord r T „ -r one thousand eight hundred and , and of ih. a.j tQfl i n (j e p en( i ence f the United States of America the . By the President: Secretary of State. [Old form: " During the pleasure of the President of the United States for the time being, and until the end of the next session of the Senate of the United States and no longer, ' ' instead of the words in brackets in the above form.] 'New Form — Permanent Marshals and Attorneys. President of the United States of America.: To all who eltall see these presents, greeting : Know ye, that, reposing special trust and confi- dencein the integrity, abil ity, and- = . I have nominated, and, by and with the advice and consent of the Senate, do appoint him of the United States in and for the , and do au- thorize and empower him to execute and fulfill the duties of that office according to law;" and to have and to hold the said office, with all the powers, priv- ileges, and emoluments to the same, of right apper- taining unto him, the said for the term of '■ — , subject to the conditions prescribed by law. In testimony whereof I have caused these letters to bo made patent, and the seal of the United States to be hereunto affixed. ( Given under my hand, at the city of Washington, the — day of , in the year of our Lord r 1 one thousand eight hundred and , and of ll. a. j j. Qe independence of the United States of America the . By the President: Secretary of State. [This commission is used for attorneys and marshals. The term of service is four years. The words "unless the President of the Uni- ted States for the time being should be pleased to revoke and determine this commission" are now stricken out, and the words u subject to the conditions prescribed by law" are in- serted.] Form of Commission for Judges. Ansioers for per- manent or temporary. President of the United States of America : To all who shall see these presents, greeting ; Know ye, that reposingspecial trust and confidence in the wisdom, uprightness, and learning of , I do authorize and empower him to oxo- cute and fulfill the dutios of that office according to the Constitution and laws of the United States, and to hfcve andtoholdthesaid office with all the powors, priviloges, and emoluments to the same of right ap- pertaining unto him the said . In testimony whoreof I have caused these letters to be made patent, and the seal of the United States to be hereunto affixed. , _ „ „. ,. . Given under my hand, at the city of Washington, the - day of , in the year of our Lord [l. s.] , and of the independence of the United States of America the . ^ By the President: Secretary of State. [In case of judges of Territories the words " subject to the conditions prescribed by law," are inserted. This commission is used for judges of the Supreme Court of the United States, judges of district courts and Territo- ries, and is .temporary or permanent, as the case may be.] Form of New Commission of Secretaries of Legation used either in the recess or session of the Senate. President of the United States of America : -, greeting : To- Reposing special trust and confidence in your in- tegrity, prudence, andability, I do appoint (ornomi- nate) secretary of the legation of the United States of America , authorizing you, hereby, to do and perform all such matters and things as to the said place or office doth appertain, oras may be duly given you in charge hereafter, and the same to ■ hold and exercise, subject to the conditions pre- scribed by law. In testimony whereof I have caused the Beal of the United States to be hereunto affixed. Given under my hand, at the city of Washington, the — day of , in the year of our Lord one r -i thousand eight hundred and , and of the LL. S.J independence of the United States of America the . By the President: Secretary of State. [The "words during the pleasure -of the President of the United States for the time being" were formerly used.] Old Temporary Consular Commission. The President of the United States of America : To all who shall see these presents, greeting: Know ye, that reposing special trust and confi- dence in theabilitiesandintegrity of ,Ido appoint him consul of the United States of America and such other parts as shall be nearer thereto than to the residence of any other consul or vice consul jf the United States, within the same allegiance ; and do authorize and empower him to have and to hold the said office, and to exercise and enjoy all the rights, preeminences, privileges, and authorities to the same of right appertaining, [during the pleasure of the Pres- ident of the United States for the time being, and] until the end of the next session of the Senate of the United States, and no longer, he demanding and re- ceiving no fees or perquisites of office whatever which shall not be expressly established by some law of the United States. And I do hereby enjoin all captains, masters, and commanders of ships and other vessels, armed or unarmed, sailing under the flag of the said States, as well as all other of their citizens, to acknowl- edge and consider him, the said , accord- ingly. And I do hereby pray and request , gov- ernors andofficers, to permit the said fully and peaceably to enjoy and exercise the said office without giving, or suffering to be given unto him, any molestation or trouble; but, on the contrary, to afford him all proper countenance and assistance; I offer- ing to do the same for all those who shall, in like manner, beTecommendcd to me by . In testimony whereof I have caused these letters to be made patent, and the seal of the United States to be hereunto affixed. Given under my hand, at the city of Washington, the — day of , in the year of our Lord one [L. 8.] thousand eight hundred and - , and of the independence of the United States of America the . By the President: Secretary of State. [The words in brackets have been omitted since the passage of the tenure-of-office acts.] New Permanent Consular Commissions. Tlie President of the United States of America: To all who shall see these presents, greeting : Know ye, that reposing special trust and confi- dence in the abilities and integrity of — ■-. I have nominated, and by and with the advice and consent of the Senate do appoint, him, ,of the United States of America and such other parts as shall be nearer thereto than to the residence of any other consul or vice consul of the United States within the same allegiance ; and do authorize and empower him to have and to hold the said office, and to exercise and enjoy all the rights, pre- eminences, privileges, and authorities to the same of right appertaining, subject to the conditions pre- scribed by law; the said demanding and receiving no fees or perquisites of office what- ever which shall not be expressly established by some law of the United Stated. AuU such matters and things as to the said place or office doth appertain or as may be given you in charge hereafter, and the said office to hold and exercise [during the pleasure of the President of the United States for the time being.] In testimony whereof I have caused the seal of the United States to be hereunto affixed. Given, under my hand at the city pf, Washington the — day of , in the year of our Lord one r _ -i thousand eight hundred and , and of tho LL. s.J j n( j e p eI1 dence of the United States of America the . By the President: . Secretary of State. [If used as a temporary commission, the words used "in place of those in brackets are "until the end of the next session of the Sen- ate of the United States, and.no longer."] Examination of Robert S. Chew resumed. By Mr. Stanbery: Question. Mr. Chew, how long have you been Chief Clerk? Answer. Since July, I860. Question. How long have you been in -the Department of State? Answer. Since J uly, 1834. Question. That is, you have been there thirty-four years? Answer. Ye,s, sir. Question. Jn all that time before this change did commissions run in this way " during the pleasure of the President?" Answer. They did. By Mr. Manager Butler : Qxtestion, (handing a written paper to the witness.) I suppose you know Mr. Seward's handwriting? Ansioer. I do. Question. Is the letter I have just shown you signed by him ? Answer. It is. Mr. Manager BUTLER, (to the counsel for the respondent.) I offer now, gentlemen, a list prepared by the Secretary of State, Mr. Seward, and sent to the Managers, of all the appointments and removals as they appear in the State Department of officers from the be- ginning of the Government, Mr. STANBERY and Mr. CURTIS. Of all officers? Mr. Manager .BUTLER. Of heads of De- partments. It is accompanied with a letter simply describing the list which I will read, as mere inducement. Mr. CURTIS. We have no objection. Mr. Manager BUTLER. I will read it : Department of State, Washington, March 26, 1868. Sik: In reply to the note which you addressed to me on the 23d instant, in behalf of the House of Representatives in the matter of the impeachment of the President, I have the-.honor to submit here- with two schedules, A and B. Schedule A presents a statement of all removals of the heads of Departments made by the President of the United States during the session of the Senate, so far as thesame can be ascertained from the records of this Department. Schedule B contains a statement of all appoint- ments of heads of Departments at any time made by the President without the advice and consent of the Senate, and whilo the Senate was in session, so far as the same appears upon the records of the De- partment of State. I have tho honor to be, very respectfully, yourobe- ■dient servant, WILLIAM H. SEWARD. Hon. John A. Bingham, Cliairman. Schedule A. List of removals of heads of Departments made by the President at any time during the session of the Senate: Timothy Pickering, Secretary of State, removed May 13, 1800. That is the whole of schedule A. Then comes Schedule B. List of appointments of heads of Departments made by the President at any time during the session of the Senate: Timothy Pickering, Postmaster General, June 1, 1794. Samuel L. Southard, Acting Secretary of the Treas- ury, January 26, 1829. Asbury Dickins, Acting Secretary of the Treasury, March 17, 1832. John Robb, Acting Secretary of War, June 8, 1832, and July 16, 1832. ■ McClintoek Young, Acting Secretary of the Treas- ury, June 25, 1831. Mahlon Dickcrson, Acting Secretary of War, Jan- uary 19, 1835. C. A. Harris, Acting Secretary of War, April 29, 1836. Asbury Dickins, Acting Secretary of State, May 19, 1836. C. A. Harris, Acting Secretary of War, May 27, 1836. McClintoek Young, Acting Secretary of the Treas- ury, May 11, 1842, and June 30,1842, and March 1,1843. John Nelson, Acting Secretary of State adinterim, February 29, 1844. McClintoek Young, Acting Secretary of the Treas- ury, May 2, 1844. Nicholas P. Trist, Acting Secretary of State, March 31,1846. McClintoek Young, Acting Secretary of tho Treas- ury, December 9, 1847. John Apple ton, Acting Secretary of Stato, April 10, 1848. Archibald Campbell, Acting Secretary of War, May 26, 1848. John McGinnis, Acting Secretary of tho Treasury, Juno 20, 1850. Winfield Scott, Acting Secretary of War adinterim, July 23, 1850. William S. Derrick, Acting Secretary of State, De- cember 23, 1850, and February 20, 1852. William L. Hodge, Acting Secretary of the Treas- ury. February 21, 1852. William Hunter, Acting Sccrotaryof State, March 19, 1852. William L. Hodge, Acting Secretary of the Treas- ury, April 26. 1852. William Hunter, Acting Secretary of Stato, May 1, 1852. William L. Hodge, Acting Secretary of the Treas- ury, May 24, 1852, and June 10, 1852. William Hunter, Acting Secretary of State, JulyG, 1852. John P. Kennedy, Acting Secretary of War, August 19, 1852. William L. Hodge, Acting Secretary of the Treas- ury, August 27, 1852, and December 31, 1852, and Jan- uary 15, 1853. William Hunter, Acting Secretary of State, March 3, 1853. Archibald Campbell, Acting Secretary of War, Jan- uary 19, 1857. Samuel Cooper, Acting Secretary of War, March 3, 1857. Philip Clayton, Acting Secretary of the Treasury, May 30, 1860. Isaac Toucey, Acting Secretary of the Treasury, December 10, 1860. Thomas A. Scott, Acting Secretary of War, August 2, 1861. George Harrington, Acting Secretary of the Treas- ury, December 18, 1661. F. W. Seward, Acting Secretary of State, January 4, 1862, and January 25, 1862, and February 6, 1862, and April 9, 1862. George Harrington, Acting Secretary of the Treas- ury. April 11, 1862, and May 5, 1862. William Hunter, Acting Secretary of State, May 14, 1862. George Harrington, Acting Secretary of the Treas- ury, May 19, 1862. F. W. Seward, Acting Secretary of State, June 11, 1862, and June 30, 1862. George Harrington, Acting Secretary of the Treas- ury, January 8, 1863. J?. W. Seward, Acting Secretary of State, Decem- ber 23, 1863, and April 11, 1864. George Harrington, Acting Secretary of the Treas- ury, April 14, 1864, and April 27, 1864, and June 7, 1864, and June 30, 1864. F. W. Seward, Acting Secretary of State, January 4, 1865, and February 1, 1865. George Harrington, Acting Secretary of the Treas- ury, March 4, 1865. William E. Chandler, Acting Secretary of the Treas- ury, December 20, 1865. F. W. Seward, Acting Secretary of Stato, May 15, 1866. William E. Chandler, Acting Secretary of the Treas- ury, December 20, 1866. John T. Hartley, Acting Secretaryof theTreasury, September 16, 1867, and November 13, 1867. F. W. Seward, Acting Secretary of State, March 11, 1868. Mr. CONKLING. I beg to ask what is the title of the last schedule which has just been read. Will the Manager read it again ? Mr. Manager BUTLER. " List of appoint- ments of heads of Departments made by the President at any time during the session of the Senate." [To the witness.] You told us, Mr. Chew, how long you had been in the State Department. How long was that? Answer. I was appointed in July, 1834. Question. We see by' the list that there have been certain appointments of Acting Secre- taries of State ; tell us under what circum- stances they were made ? Mr. STANBERY. We must ask that that question be repeated. Mr. Manager BUTLER. I will repeat the question.. [To the witness.] There are in the list certain acting appointments, like those of Mr. Hunter, Mr. Appleton, and Mr. F. W. Seward. I do not ask the authority under which they were made ; but I ask the circum- stances under which they were made ? What was the necessity for making them— the ab- sence of the Secretary or otherwise ? Answer. The absence of the Secretary. Question. Since 1834, in the thirty- four years you have been there, has there been any appointment of Acting Secretary except on account of the temporary absence of the Sec- retary, to your knowledge? Answer. I do not recall any at this time. Question. By whom were those acting ap- pointments made ? Answer. They were made by the President or by his order. Question. That is exactly what I want to 118 SUPPLEMENT TO know. Did the letter of authority in most of these cases — take Hunter's case and Apple- ton's case, for example — proceed from the head of the Department or from the Presi- dent? Mr. EVARTS. We object that the papers must be produced if their form is to be con- sidered as material. Mr. Manager BUTLER. I am not asking for form ; I am asking for fact. Mr. EVARTS. That is the fact, as we sup- pose — what the authority or the form of au- thority was. Mr. Manager BUTLER. I am asking now from whence and by whom issued ; whether the letter, whatever may be its form, came di- rectly from the head of the Department to the Chief Clerk, Mr. Hunter, or to Mr. Appleton, who was the chief clerk, I believe — whether it came directly from the head of the Depart- ment or from the President. Mr. EVARTS. The objection we make is that the letter of authority shows from whom it came, and is the best evidence of from whom it came. Mr. Manager BUTLER. Suppose it should happen to turn out that there was not any letter ? Mr. EVARTS. Then you would be in a situation where you could prove it by some other evidence. The question is in regard to letters of authority. Mr. Manager BUTLER. I am asking from whom the authority proceeded, because I do not know now to whom to send to ask to pro- duce the letter until I find out who wrote it. The CHIEF JUSTICE, (to the witness.) Were any authorities given except in writing and by letter? The Witness. Only in writing. Mr. Manager BUTLER. I again say, sir, that I am not able to know whom to send Jo until I can ask from whom those letters came. That is competent always. The CHIEF JUSTICE. You can ask where the papers are : where these writings are pre- served ? Mr. Manager BUTLER. Well, I am in- clined, may it please your Honor, to put this question, with the leave of the presiding offi- cer. [To the witness.] From whom did these letters of which you speak come ? Mr. CURTIS and Mr. EVARTS. That we object to. The CHIEF JUSTICE. The honorable Manager will reduce his question to writing. Mr. Manager BUTLER. What I propose to ask is whether any of the letters of author- ity this witness has mentioned came from the Secretary of State or from any other officer. If he says they all came from the President that will end the inquiry. If he says they all came from the Secretary of State then I may want to send for them. I really cannot un- derstand the objection. The CHIEF JUSTICE. Do the counsel for the President object to that question ? Mr. EVARTS. We object to proof of the authority sought to be proved, except by the Eroduction of the writing by which the witness as stated that in all cases it is evidenced. If it is sought to be proved who made a manual delivery of a paper where manual delivery was made to this witness, this witness can speak concerning that, and give such information as pertains to that ; but he can go no further. Mr. Manager BUTLER. I am not now proving the authority ; I am proving the source of authority. I am endeavoring to find out from which source of authority these letters came. If they came from the President, that is one thing, and then I can apply there, if I choose, for them ; whereas if they came from the Secretary of State, that is another thing, and then I can apply there. I am asking, in the usual course of examination, as I under- stand the examinations of witnesses, whence certain papers came ; were they the papers of the Secretary of State or were they the papers of the President? That does not put in their effect. Mr. CURTIS. Do you mean to inquire who signed the letters of authority ; is that your inquiry? Mr. Manager BUTLER. I mean to inquire precisely whether the letter of authority came from the Secretary or from the President. Mr. CURTIS. Do you mean by that who signed the letter, or do you mean out of whose manual possession it came into this geritle- man's7 Mr. Manager BUTLER. 1 mean, sir, who signed the letter, if you put it in that form. Mr. CURTIS. That we object to. Mr. Manager BUTLER. I do not do that for the purpose of proving the contents of the letter, but for the purpose of identification of tlio letter. Mr. CURTIS. The signature is as much a part of the letter and its contents as anything Mr. EVARTS. Is this offered to prove who signed the letter ? We say the paper itself will show who signed it. Mr. Manager BUTLER. The difficulty is that unless I talk an hour these gentlemen are determined that I never shall have the reply on my proposition. My proposition is not to prove the authority, nor to prove the signa- ture, but it is to prove the identity of the paper ; and it is not to prove that it was a letter of authority, because Mr. Seward signed it, for instance, but it is to prove whether I am to look for my evidence in a given direction or in another direction. If the witness says that Mr. Seward signed it, for example, I should have no right to argue to the Senate that, therefore, it was the authority of Mr. Seward ; but I am desirous, if I can, to ascertain whether it is worth while for me to go any further than to argue this question ; and the objection seems to me over-sensitiveness. The CHIEF JUSTICE. The Secretary will read the question propounded by the honorable Manager. The Secretary read as follows : Question. State whether any of the letters of author- ity which you have mentioned caro£ from the Secre- tary of State or from what other officer? The CHIEF JUSTICE. "Came from the Secretary of State."- Do I understand you to mean signed by him? Mr. Manager BUTLER. I am not anxious upon that part of it, sir. I am content with the question as it stands. The CHIEF JUSTICE. _ The Chief Justice conceives that the question in the form in which it is put is not objectionable, but Mr. Manager BUTLER. I will put it, then, with the leave of the Chief Justice: The CHIEF JUSTICE. The Chief Justice was about to proceed to say that if it is intended to ask the question whether these documents of which a list is furnished were signed by the Secretary, then he thinks it is clearly incom- petent without producing them. Mr. Manager BUTLER. Under favor, Mr. President, I have no list of these documents ; none has been furnished. The CHIEF JUSTICE. Does notthe ques- tion relate to the list which has been furnished? Mr. Manager BUTLER. It relates to the people whose names have been put upon the list ; but I have no list of the documents at all. I have only a list of the facts that such appointments were made, but I have no list of the letters, whether they came from the Presi- dent or from the Secretary or from anybody else. The CHIEF JUSTICE. In the form in which the question is put the Chief Justice thinks it is not objectionable. If any Senator desires to have the question taken by the Sen- ate he will put it to the Senate. [To the Managers, no Senator speaking.] You can put the question in the form proposed. Mr. Manager BUTLER, (to the witness.) State whether any of the letters of authority which you have mentioned came from the»Sec- retary of State, or from what other officer. Mr. CURTIS. I understand the witness is not to answer by whom they were sent. I believe I have Mr. Manager BUTLER, this witness. . The CHIEF JUSTICE. The Chief Justice will instruct the witness. [To the witness.] You are not to answer at present by whom these documents were signed. You may say from whom they came. The Witness. They came .from the Pres- ident. By Mr. Manager Butler : Question. All of them? Answer. Such is the usual course. I know of no exception. Question. Do you know of any letter of authority for the Chief Clerk acting as Secre- tary of State which did not come from the President? Answer. I do not. Question. Will you upon your return to the office examine if there is any and report to me ? Answer. I will. By Mr. Stanbert: Question. Mr. Chew, I see by this list only one instance of the removal by the President of a head of Department during the session of the Senate, and that was an early one, May 13, 1800. You know nothing yourself about the circumstances of that removal? Answer. Not at all. Question. You do not know whether that officer had refused to resign when requested, or not? Answer. I do not. Question. In your knowledge since you have been in the Department of State in the last thirty-four years, do you know of any in- stance in which a head of Department when he has received a request from the President to resign, has refused to resign ? Mr. Manager BUTLER. Stop a moment ; I object to that. The CHIEF JUSTICE. Do the counsel for the President press the question ? Mr. STANBERY. Not now, sir. We have the records. By Mr. Stanbekt: Question. Have you examined the records of the Department to ascertain under what circumstances it was that President Adams re- moved Mr. Pickering from the head of the State Department in 1800 while the Senate was in session ? Answer. I have not. By Mr. Manager Butler : Question. Do you know that he was removed while the Senate was in session of your own knowledge? Answer. I do not. Mr. STANBERY, (to the Managers.) You have proved it, gentlemen, yourselves. Mr. Manager BUTLER. I now offer, sir, from the ninth volume of the works of Johjj Adams Mr. STANBERY. There you will find it, I guess. Mr. Manager BUTLER. I offer from the ninth volume of Little & Brown's edition of 1854 of the works of John Adams by his grand- son, Charles Francis Adams,, what purport to be official letters from Timothy Pickering, Sec- retary of State, to John Adams, President, and from John Adams to him. Is there any objection to my reading them? Mr. JOHNSON. Will you state the page, Mr. Manager? Mr. Manager BUTLER. Pages 53, 54, 55. I offer these printed copies as the best evidence of official letters of that date, it is so long ago. We have not been able to find any record of them thus far, but we are still in search. Is there any objection? Mr. STANBERY. Not at all. Mr. Manager BUTLER. Then I will read them: Sir: As I perceive a necessity of introducing a change in the administration of the office of State, I think it proper to make this communication of it to the present Secretary of State, that he may have an opportunity of resigning, if he chooses. I should wish the day on which his resignation is to take place to be named by himself. I wish for artanswer to this letter on or before Monday morning, because the THE CONGRESSIONAL GLOBE. 119 nomination of a successor must bo sent to the Senate as soon as they sit. With esteem, I am, sir, your most obedient and humble servant, JOHN ADAMS. To T. Pickering, Secretary of State. T. PleJcerino, Secretary of State, to John Adams. Department or State, Philadelphia, 12 May, 1800. Sir : I have to acknowledge the receipt of your letter : dated last Saturday, stating that, " as you perceive a necessity of introducing a change in the administration of the offico of State, you think it proper to make this communication of it to the pres- ent Secretary of State, that he may have an oppor- tunity of resigning if ho chooses;" and that "you would wish the day on which his resignation is to take place to be named by himself." Several matters of importancce in the office, in whioh my agency will be useful, will require my dili- gent attention until about the close of the present quarter. I had, indeed, contemplated a continuance in office until the 4th of March next, when, if Mr. Jefferson was eleoted President, (an event which, in your conversation with me last week, you considered as certain,) I expected to go out, of course. An ap- prehension of that event first led me to determine not to remove my family this year to the city of Washington; because to establish them there would oblige me to incur an extraordinary expense which I had not the means of defraying; whereas, by sep- arating myself from myfamily, and living there cigbt or nine months with strict economy, I hoped to save enough to meet that expense, should the occasion occur. Or. if I then went out of office, that saving would enable mo to subsist my family a few months longer, and perhaps aid me in transporting them into the woods, where I had land, though all wild and un- productive, and where, like my first ancestor in New England, I expected to commence a settlement on bare creation. I am happy that I now have this re- source, and that those most dear tome have fortitude enough to look at the scene without dismay, and even without regret. Nevertheless, after deliberately re- flecting on the overture you have been pleased to make to me, I do not feel it to bo my duty to resign. I have the honor to be, &c, TIMOTHY PICKERING. Philadelphia, 12 May, 1800. Sir; Divers causes and considerations, essential to the administration of the Government, in my judg- ment, requiring a change in the Department of State, you arc hereby discharged from any further service as Secretary of State ? JOHN ADAMS, President of the United States. To Timothy Pickering. Now, will the Senate allow the Executive Journal of the Senate, of May 12, 1800, to be brought up, by which we propose to show that at the same hour, on the same day, Mr. Adams, the President, sent a nomination to the Senate? Mr. STANBBRY. Do I understand the Manager to say, " the same hour?" Do you expect to prove it? Mr. Manager BUTLER. I should think, when we come to look at the correspondence, that I am wrong; I think the sending to the Senate was a little previous. [Laughter.] Mr. STANBERY. You do? Mr. Manager BUTLER. I do. Mr. STANBERY. And you expect to prove that? Mr. Manager BUTLER. I do. [After a pause. ] I have not yet heard a decision upon the question whether I am to have the Jour- nal. Mr. STANBERY. Certainly ; we have no objection. Mr. Manager BUTLER. It is the Executive Journal, and I suppose it cannot be brought in unless the Senate directs it. I will say it is not printed. Mr. SHERMAN. Mr. President, I move that the Journal be furnished for that purpose. I suppose there will be no objection. The motion was agreed to. Charles E. Creecy re-called. By Mr. Manager Butler : Question. You have been sworn once in this case ? Answer. Yes, sir. Question, (handing a paper to the witness.) You have told us that you were appointment clerk in the Treasury. Are you familiar with the handwriting of Andrew Johnson. Answer. I am. Question. Is that his handwriting? Answer. It is. Question.. Did you pr.oduce this letter from the archives of the Treasury to-day in obe- dience to a summons? Answer. I did. Mr. Manager BUTLER. Mr. President and Senators, it will be remembered that the answer of the President to the first article says, in words : " And this has ever sinoc remained, and was the opinion of this respondent at the time when he was forced as aforesaid to consider and decide what act or aots should and might lawfully be done by this respondent, as President of the United States, to cause the said Stanton to surrender the said offico." "This respondent was also aware that this act"— The tenure-of-wvil-office act — • " was understood and intended to be an expression of the opinion of the Congress by which that act was passed, that the power to remove executive officers for cause might, by law, be taken from the President and vested in him and the Senate jointly; and although this respondent had arrived at and still retained the opinion above expressed and verily believed, as he still believes, that the said first sec- tion of the last-mentioned act was and is wholly inoperative and void by reason of its conflict with tho Constitution of the United States." *%%%&*%*%* * " And this respondent, further answering, says, that it is provided in and by the second section of 'An act to regulate tho tenure of certain civil offices,' that the President may suspend an officer from the performance of tho duties of the office held by him, for certain causes therein designated, until the next meeting of the Senate and until the case shall bo acted on by the Senate; that this respondent, as President of the United States, was advised, and he verily bolioved and still believes, that the oxecutivo power of removal from office confided to him by the Constitution as aforesaid includes the power of sus- pension from office at the pleasure of the President ; and this respondent, by the order aforesaid, did sus- pend the said: Stanton from office, not until the next meeting of tho Senate, or until the Senate should have acted upon the case, but by force of the power and authority vested in him by the Constitution and laws of the United States, indefinitely and at the pleasure of the President. Now, the second section of the act regulat- ing the tenure of certain civil offices provides: "That when any officer appointed as aforesaid, excepting judges of the United States courts, shall, during a recess of the Senate, be shown by evidence satisfactory to the President to be guilty of miscon- duct in office or crime, or for any reason shall be- come incapable or legally disqualified to perform its duties, in such case, and in no other, the President may suspend such officer and designate some suitable person to perform temporarily tho duties of such office until the next meeting of tho Senate, and until tho case shall be acted upon by tho Senate." The eighth section provides : "That whenever the President shall, without the advice and consent of the Senate, designate, author- ize, or employ any person to perform tho duties of any office, he shall forthwith notify the Secretary of the Treasury thereof." It will be seen, therefore, Mr. President and Senators, that the President of the United States says in his answer that he suspended Mr. Stanton, under the Constitution, indefi- nitely and at his pleasure. I propose, now, unless it be objected to, to show that that is false under his own hand, and I have his letter to that effect, which, if there is no objection, I will read, the signature of which was identified by C. E. Creecy. [The letter was handed to the counsel for the respondent.] Mr. STANBERY. We see no inconsistency with that part of the act, certainly. Mr. Manager BUTLER. That was a ques- tion I did not put to you. I asked you if you had any objection. . Mr. STANBERY. I tell you we see no inconsistency, much less falsehood, in that letter. Mr. Manager BUTLER. To that I answer the falsehood is not in the letter, but it is in the answer. Mr. Manager Butler thereupon read the letter, as follows : Executive Mansion, Washington, D. C„ August 14, 1867. Sir: In compliance with the requirements of the eighth section of the act of Congress of March 2, 1867, entitled "An act regulating the tenure of cer- tain civiloffiees,"youare hereby notified that on the 12th instant Hon. Edwin M. Stanton was suspended from office as Secretary of War and General Ulysses S. Grant authorized and empowered to act as Secre- tary of War ad interim. I am, sir, very respectfully, yours, ANDREW JOHNSON. To Hon. Hugh McCulloch, Secretary of the Treasury. I wish to call attention again, because it may have escaped the attention of some Sen- ators Mr. CURTIS. We object to the gentleman arguing the question. Mr. STANBERY. It is time certainly we should know what all this discussion means. What question is now before the Senate? What is your question ? Let us know whether we have any objection ; how it is that this state- ment is made. Mr. Manager BUTLER. I am endeavor- ing to show, sir, that while the President says he did not suspend Mr. Stanton under the tenure-of-office act, and that he had come to the conclusion that he had the right to suspend him before August 12, 1867, without leave of the tenure-of-office act, and without leave of the Senate, yet, acting under the eighth section of the act to which he refers in his letter, he expressly says in that letter that he did suspend him under this act. Mr. STANBERY. We understand all that. Mr. CURTIS. He does not say any such thing. We do not object to the honorable Manager offering his evidence ; we object to his arguing upon the effect of the evidence at this stage. Mr. Manager BUTLER. I have argued nothing, sir, except to read the law. The CHIEF JUSTICE. Gentlemen Man- agers, theExecutive Journal is now here. Mr. Manager BUTLER. I now produce the Executive Journal of the Senate. Mr. JOHNSON. Of what date ? Mr. Manager BUTLER. Monday, May 12, 1800. May 9 is the last previous date of execu- tive session : " Monday, May 12, 1800. "The following written messages were received from the President of tho United States by Mr. Shaw, his Secretary: "Gentlemen of the Senate: " I nominate tho Honorable John Marshall. Esq., of, Virginia, to be Secretary of State, in place of the Honorable Timothy Pickering, Esq., removed. "The Honorable Samuel Dexter, Esq.., of Massa- chusetts, to be Secretary of the Department of War, in the place of the Honorable John Marshall, nomi- nated for promotion to the office of State. "JOHN ADAMS. "United States, May 12, 1800." " Gentlemen of the Senate: "I nominate William H. Harrison, of the North- western Territory, to be Governor of the Indiana Territory. JOHN ADAMS. "United States, May 12, 1800." " Gentlemen of the Senate : "I nominate Israel Ludlow, of the Northwestern Territory, to be Register of the Land Office at Cin- cinnati. " James Findlay," &c. Then follows a long list of nominations : " Gentlemen of the Senate: "I nominate Seth Lewis, Esq., of Tennessee, to bo Chief Justice of the Mississippi Territory, in tho place of William McGuire, Esq., resigned. "JOHN ADAMS. "United States, May 12, 1800." " The messages were read. " Ordered, That they lie for consideration." " Tuesday, May 13, 1800. "The Senate proceeded to consider the message of the President of tho United States of the 12th instant, and the nominations contained therein, of John Marshall and Samuel Dexter, to office, where- upon, " Resolved, That they do advise and consent to tho appointments agreeably to tho nomination. " Ordered, That the Secretary lay this resolution beforethe President of tho United States." Mr. STANBERY. Will you please to read where it appears there, at what hour, what time of day, that was done ? Mr. Manager BUTLER. I have not under- taken to state the hour. I stated directly to the Senate, in answer to you, that I thought that the letter went to the Senate with the nomi- nation, and I believed it would appear from an examination of the whole case that the nomination of a successor went to the Senate prior to the letter going to Mr. Pickering. Mr. STANBERY. The honorable Manager will allow me to say he said he expected to prove it. Mr. Manager BUTLER. The Senate heard what I said. I said I expected it would appear from the whole matter, exactly using that phrase. I am quite sure I know what I said. 120 SUPPLEMENT TO But, however, as it was the duty of John Adams to send it first to the Senate, I presume he did his duty and sent it first to the Senate before he sent it to Pickering. I mean to say further, that it being all done on the same day, it must be taken to be at the same time in law. But another piece of evidence I adduce is, that he asked Pickering to send in his resignation because it was necessary to send a successor to the Senate as soon as they sat, which he did. The CHIEF JUSTICE. Do the honorable Managers require the Executive Journal any further? Mr. Manager BUTLER. No further. Mr. STANBERY. We have a certified copy of it. [The Journal was returned to the Secretary's office.] Ciiarles E. Creeot recalled. By Mr. Manager Butler : Question, (submitting papers to the witness.) Upon receipt of that notification by the Presi- dent of the United States that he had sus- pended Mr. Stanton according to the provis- ions of the civil tenure-of-office act, what was done? Answer. A copy of the executive communi- cation was sent to the Treasurer, First Comp- troller, First Auditor, Second Auditor, and Third Auditor. Question. Have you the letters of transruis- sal there? Answer. I have. Question. Will you have the kindness to read them ? Answer. Here is one : Treasury Department, August 15, 1867. Sir: In accordance with the requirements of the eighth section of an act entitled " An act regulating the tenure of certain civil officers," I transmit here- with a copy of a letter from the President notifying this Department of the suspension of lion. E. *M. Stanton from the office of Secretary of War and the authorizing of General Ulysses S. Grant to. act as Secretary of War ad interim. I am, very respectfully, HUGH MoCULLOCII, Secretary of the Treasury. B. W. TAYLOR, esq., First Comptroller, &c. The same letter was sent to the others. Question. Are those officers the proper accounting and disbursing officers of the De- partment? Answer. They are for the War Department. Question. Then, if I understand you, all the disbursing officers of the Treasury for the War Department were notified in pursuance of the Mr. CURTIS. We object to that. Mr. EVARTS. That is a question of law. Mr. Manager BUTLER. Were thereupon notified? Answer. Yes, sir. Question. Were you there to know of this transmission ? Answer. Yes, sir. Question. Did you prepare the papers ? Answer. Yes, sir. Question. Did you prepare them in pursu- ance of any other act of Congress except the civil tenure-of-office act? Answer. No, sir. Mr. Manager BUTLER. That is all. [A pause.] Mr. CONNESS. I was going to move u, recess; but if the witness is to be cross-exam- ined now Mr. STANBERY. That will answer. I can wait until the recess. Mr. HOWARD. Let the examination of this witness be finished. Mr. Manager BUTLER. I can say to the Senate that we shall reach within a few min- utes a'place to rest. The CHIEF JUSTICE. Does the Senator from California withdraw his motion ? Mr. CONNESS. I understand the' counsel to wish a recess at this time. I move a recess for fifteen minutes. The CHIEF JUSTICE. The honorable Manager informs the Senate that he expects to close his evidence within a short time. Mr. Manager BUTLER. I expect to close it with certain exceptions which I shall name. Mr. CONNESS. There appears to be a difference of opinion ; I only desire to repre- sent the wishes of the body. I think we had better have a recess. The CHIEF JUSTICE. How long? Mr. CONNESS. I move that the Senate take a recess for fifteen minutes. The motion was agreed to ; and the Chief Justice resumed the chair at fifteen minutes to three o'clock, and called the Senate to order. Mr. CONNESS. There seem to be but few Senators present and I move that the Senate adjourn. Mr. SUMNER. No; I hope not. Mr. CONNESS. If there is any chance of getting them in, I will withdraw the motion. Mr. SUMNER. The better motion would be a call of the Senatp. Mr. CONNESS. That is not in order. Mr. CURTIS. Mr. Chief Justice, it is sug- gested to me by my colleagues The CHIEF JUSTICE, Is the motion with- drawn ? Mr. CONNESS. I will withdraw it at present. Mr. CURTIS. It is suggested now by my colleagues that I should make known to the Senators that it is our intention, if the testi- mony on the part of the prosecution should be closed to-day, as we suppose it will be, to ask the Senators to grant to the President's coun- sel three day's in which to prepare anu arrange their proofs, and enable themselves to proceed with the defense. We find ourselves in a con- dition in which it is absolutely necessary to make this request, and I think, and my col- leagues agree with me in that The CHIEF J USTICE. The Chief Justice suggests to the counsel that it would be better to postpone that matter until the Senate is full. Mr. CURTIS. The reason why I thought of making it known at this moment, Mr. Chief Justice, was that I was under the apprehension that there might be some motion for an ad- journment, which might in some way interfere with this application, when it/would not be in order for me to present it after such a motion to adjourn. ' Mr. Manager BOUTWELL. Mr. President and Senators, in the schedule "B," offered a short time since from the State Department, the first name that appears among those ap- pointed during the session of the Senate is that of Timothy Pickering, wh'o from that record appears to have been appointed Postmaster General on the 1st day of June, 1794. We think it a proper time to. call the attention of counsel for the respondent to the statutes which we suppose explain the nature of that proceeding. This is the only .appointment of the head of a Department which appears from this record as having been made during the session of the Senate. The statutes are first a statute of the 22d of September, 1789, in which it is provided "that there shall be appointed a Postmaster General ; his powers and salary, and the compensation to the assistant or clerk and deputies which he may appoint, and the regulations of the Post Office shall be the same as they last were under the resolutions and ordinances of the late Con- gress. ' ' And it was provided in the second sec- tion " that this act shall continue in force until the end of the next session of Congress, and no longer. ' ' Showing that it was merely a con- tinuance of the post office system that existed under the Continental Congress. Mr. JOHNSON. Will the Manager give the date of that act ? • Mr. Manager BOUTWELL. That act was passed on the 22d of September, 1789. On the 4th day of August, 1790, the Congress passed a supplementary brief act in these words: "Thattheact passed the last session of Congress intituled An actfortho temporary establishmcntof the Post Office be, and the same hereby is, continued in force until the endof the next session of Congress, and no longer." Which was a continuance of the continental system of post office arrangement. On the 3d day of March, 1791, Congress passed another act: "That the act passed the first session of Congress intituled 'An act for the temporary establishment of the Post Office,' be, and thosame is hereby, continued in full force until the end of the next session of Con- gress, and no longer." On the 20th day of February, 1792, Congress passed an act making various arrangements in regard to the administration of the post office and establishing certain post routes : and it is provided in that act : "That the act passed the last session of Congress intituled 'An act to continuo in force for a limited time an act entitled "An act for the temporary es- tablishment of the Post Office,'" bo, and the same is hereby, continued in full force until the 1st day of June next, and no longer." This act from which I now read did not con- tain any provision for the establishment of a Post Office Department -as a branch of the Government, but the last section provided : "That this act shall be in force for the term of two years from the said 1st day of June next, and no longer." Which would continue this provisional post office system until the 1st day of June, 1794. On the 8th -day of May, 1794, the Congress passed an act covering the whole ground of the post office system, and in that act they provided for the establishment, at the seat of the Government of the United Slates, of a Gen- eral Post Offiee, and that there should be "one Postmaster General," which is the first act which provides for the appointment of a Post- nraster General ; and then there were all the provisions in regard to the details of the office. The last section of this act which was passed on the 8th day of May, 1794, declared : " That this act shall be in force from the 1st day of June next." Which was the day on which the provisional post office department which was the contin- uance of the continental system terminated. That day was Sunday ; but on that day General Washington, who was then President, thought fit, although the Senate was nominally in ses- sion, and although it was Sunday, to make the appointment of Timothy Pickering, as Post- master General. I suppose it will appear from the Journal of the Senate that he was immedi- ately nominated to the Senate and confirmed. This fully explains the nature of the appoint- ment of Mr. Pickering who is, as appears from this record, the only person who was made the head of a Department by an ap- pointment during the session of the Senate. Mr. Manager WILSON. Mr. President, I wish to call the attention of counsel for the respondent to an entry on the Executive Jour- nal of the Senate of the 10th of May, 1800, also of the 12th of May, 1800, and the 13th, showing that the Senate at that time met at an earlier hour than twelve o'clock. On page 93 of the Journal.of the Senate for May 10, 1800, it is entered : " The Senate adjourned to eleven o'clock on ilou- day morning." On Monday morning, May 12, 1800, the Senate met, and the manner of adjournment is as follows : " Afterthe consideration of the executive business, the Senate adjourned to eleven o'clock to-morrow morning." — Page 94. " Tuesday, May 13, 1800. " Tho Sonate met in pursuance of said adjourn- ment at eleven o'clock." Mr. Manager BINGHAM. Mr. President and gentlemen of the Senate, we offer in evi- dence several executive messages of the Pres- ident of the United States, of dates respectively December 10, 1867; December 17, 18G7 ; again, December 16, 1867 ; the fourth January 13, 1868, and the fifth December 19, 1867. [The messages communicate information of the suspension of John H. Patterson from the office of assessor of internal revenueTor the fourth district of Virginia ; of Charles Lee Moses from the duties of counsel at Brunai, Borneo; -of John H. Anderson from the office of collector of internal revenue for the fourth district of Virginia ; of Charles H. Hopkins, THE CONGRESSIONAL GLOBE. 121 assessor of internal revenue for the first dis- trict of Georgia, and of John B. Lowry, post- master at Danville, Virginia.] Mr. Manager BINGHAM. I also offer in evidence, Mr. President and Senators, the communication of the Secretary of State ac- companying one of the messages just presented, in which, under date of December 19, 1867, h'e thus addresses the President of the United States : " Sir: In compliance with the provisions of section two of the act regulating the tenure of certain civil offices, passed March 2, 1867, I have the honor to report that Charles Lee Moses, United States con- sul at Brunai, Borneo, was, during the recess of the Senate, suspended from the functions of his office, and thatOliver B.Bradford, consular clerk atShang- hae, was appointed to fill the place temporarily." I suppose I need not read all the details. We offer in evidence all these messages, with the accompanying papers, as received by the Senate from the President. Mr. Manager BUTLER. I believe now, sir, that I may inform the Senate that the case on the part of the House of Representatives is substantially closed. There may be a witness or two, who are on their way here, which we shall ask on Monday morning leave to put in. Their testimony is substantially cumulative, not very material ; and it is possible that we may have left out a piece or two of documentary evidence in the nature of public documents. Until we can examine carefully all the testi- mony to see that we have omitted nothing we should not like to preclude ourselves from offering that. But with these immaterial ex- ceptions, and I trust they will turn out to be no exceptions at all, we have closed the case on the cart of the House of Representatives.- Mr. CURTIS. Mr. Chief Justice, the coun- sel for the President take no exception to what is now proposed by the honorable Managers. It seems to us quite reasonable that they should have opportunity to look over the ground and ascertain whether anything has been omitted, and also if they find that witnesses come here before the next session, whose testimony will be in the nature of cumulative evidence, we shall take no exception to that. I now desire to submit, Mr. Chief Justice, to the Senate a motion on behalf of the Presi- dent's counsel, that when this court adjourns it adjourn until Thursday next, to allow to the counsel of the President three working days to enable them to collect, collate, and arrange their proofs so as to present the de- fense to the Senate with as little delay as prac- ticable, and so as to make that consecutive and proper impression which really belongs to it. We have been wholly unable to do this during the progress of the trial, and before the trial was begun we had no time whatever to apply to this purpose. We think we can assure the Senate that it will very little, if at all, protract the trial, because certainly those gentlemen of the Senate who have been in the habit of practicing law are quite aware of the fact that more time is frequently consumed in the in- troduction of evidence for the want of having it properly arranged and presented than would have been consumed if the proper efforts had been made outside before the trial was begun. We think, therefore, that we can assure the Senate that a large part, and perhaps all, of this time will be saved if this indulgence can be granted to the President's counsel. We do not expect to adduce alarge amount of oral testimony or a great number of witnesses, but we have a very considerable amount of documentary evidence which we have thus far not been able to collate and arrange, and some portions which we have reason to suppose exist we have not yet been able to search out or find. We request, therefore, that this post- ponement may take place. Mr. CONNESS. The rules forbid Senators to make any explanations in the nature of de- bate. I therefore .submit a motion, which is that when the Senate adjourn, or rather that the Senate sitting as a court of impeachment, shall adjourn until Wednesday next at twelve o'clock, which is the time that, in my judg- ment, should meet the wants of the counsel for the respondent. Mr. JOHNSON. Mr. Chief Justice, if it is in order, I move to amend the motion made by the honorahle member from California by in- serting "Thursday" instead of" Wednesday." Mr. Manager BUTLER. Is that motion debatable by the Managers ? The CHIEF JUSTICE. It is not. Mr. HOWARD. Mr. President, may I in- quire what is the question ? The CHIEF JUSTICE. The Senator from California moves that the Senate sitting as u, court of impeachment adjourn until Wednes- day next. The Senator from Maryland moves to amend by substituting "Thursday" for " Wednesday." Senators, you who are in favor of agreeing to that motion will say "ay;" those of the contrary opinion "no." [The ques- tion being taken.] The-ayes have it. Mr. CAMERON. I call for the yeas and nays. [No, no.] Mr. Manager BUTLER. I understood, Mr. Chief Justice, and I desire to The CHIEF JUSTICE. The question recurs upon the motion of the Senatorfrom California as amended by the motion of the Senator from Maryland, that the Senate adjourn until Thurs- day next, and upon this question no debate is in order. Mr. Manager BUTLER. That question is not debatable by the Managers? The CHIEF J USTICE. The Chief Justice thinks not. Mr. SUMNER. On that I ask for the yeas and nays. The yeas and nays were ordered. Mr. CONKLING. I rise for information. I wish to inquire whether the Managers want to submit some remarks upon this motion for delay? Tbe CHIEF JUSTICE. The question is upon the motion to adjourn, Mr. CONKLING. Yes, sir. My purpose is to find out, as influencing my vote, whether they wish the motion disposed of, to the end that they may make some remarks, or not. I presume the Senator from California does not intend to cut them off. Mr. Manager BUTLER. I had, Mr. Presi- dent, desired to make a remark or two, and understood it was in order. Mr. ANTHONY. I understand that the motion is not that the Senate shall now ad- journ, but that when the Senate does adjourn it shall adjourn to meet on Thursday. Several Senators. That is it. Mr. CONKLING. That is certainly de- batable. The CHIEF JUSTICE. Will the Senator from California be good enough to state his motion? Mr. CONNESS. If the Chair will allow me to state it I will do so. The Chair submitted the question on the amendment before I was aware of it;' else I desired to accept the sugges- tion of Senators around me. to make it Thurs- day in place of Wednesday. What I desired, in other words, was to meet the concurrence of the Senate generally. The CHIEF JUSTICE. Will the Senator from California allow the Chief Justice to ask if his motion is a motion that the Senate, when it adjourns Mr. CONNESS. That was not the form of the motion. I began to make it in that way, but subsequently gave it the other form. Mr. CAMERON. Now I desire The CHIEF JUSTICE. No debate is in order on the motion to adjourn. Mr. CAMERON. I am not going to debate it. I want to ask the gentlemen Managers whether they will not be. prepared to go on with this case on Monday ? I can see no reason why the other side should not be as well pre- pared. Messrs. Managers BINGHAM and BUT- LER. We are ready. The CHIEF JUSTICE. Order. Mr. CAMERON. Mr. President, my ques- tion is The CHIEF JUSTICE. No debate is in order. The Senatorfrom Pennsylvania is out of order. Mr. CAMERON. I think if yon will allow me The CHIEF JUSTICE. No debate is in order on a motion to adjourn. Mr. CAMERON. I am notgoing to debate it, your Honor; but I have risen to ask the question whether the Managers will be ready to go on with this case on Monday ? Mr. Manager BINGHAM and other Man- agers. We will be. Mr. SUMNER. I wish to ask a question, also. I wish to know if the honorable Man- agers have any views to present to the Senate sitting now on the trial of this impeachment to aid the Senate in determining this question of time ? On that I wish to know the views of the honorable Managers. The CHIEF JUSTfCE. The Chief Justice is of opinion that, pending the question of adjournment, no debate is in order from any quarter. It is a question exclusively for the Senate. Senators, you who are in favor of the adjournment of the Senate sitting as a court of impeachment until Thursday next will, as your names are called, answer "yea;" those of the contrary opinion "nay." The Secre- tary will call the roll. The question being taken by yeas and nays, resulted — yeas 37, nays 10 ; as follows : YEAS — Messrs. Anthony, Bayard, Buckalew, Cat- tell, Conness, Corbett, Cragin, Davis, Dixon, Ed- munds, Ferry, Fowler. Frelinghuysen, Grimes, Hen- derson, Hendricks. Howard, Howe, Johnson, Mc- Creery, Morrill of Maine, Morrill of Vermont, Nor- ton, Nye, Patterson of New Hampshire, Patterson of Tennessee, itamsey, Ross, Saulsbury. Sherman, Sprague, Tipton. Trumbull, Van Winkle, Vickcrs, Willey. and Williams— 37. NAYS — Messrs. Cameron, Chandler, Cole, Conk- ling, Drake, Morgan, Pomeroy, Stewart, Sumner, and Thayer — 10. NOT VOTING— Messrs.Doolittlc. Fessenden, Har- lan. Morton, Wade, Wilson, and Yates— 7. The CHIEF JUSTICE. On this question the yeas are 37 and the nays are 10. So the Senate, sitting as a court of impeachment, stands ad- journed until Thursday next at twelve o'clock. Mr. Manager BUTLER. I should like to give notice that all the witnesses may be dis- charged who have been summoned here on the part of the House of Representatives. Thursday, April 9, 1868. The Chief Justice of the United States entered the Senate Chamber at twelve o'clock and took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives appeared and took the seats assigned them. The counsel for the respondent also ap- peared and took their seats. The presence of the House of Represent- atives was next announced, and the members of the House, as in the Committee of the Whole headed by Mr. E. B. Washburne, the chair- man of that committee, and accompanied by the Speaker and Clerk, entered the Senate Chamber, and were conducted to the seats pro- vided for them. The CHIEF JUSTICE. The Secretary will read the minutes of the last day's proceedings. The Secretary proceeded to read the Journal of the proceedings of the Senate, sitting for the trial of the impeachment, on Saturday, April 4, 1868, but was interrupted by Mr. JOHNSON. Mr. Chief Justice, 1 move that the further reading of the Journal be dis- pensed with. The CHIEF JUSTICE. If there be no objection the further reading of the Journal will be dispensed with. The Chair hears no objection. Gentlemen Managers on the part of the House of Representatives, have you any further evidence to introduce ? Mr. Manager BUTLER. We have a single witness, I believe. The CHIEF JUSTICE. The Managers will proceed with their evidence. 122 SUPPLEMENT TO Mr. H. Wood sworn and examined. By Mr. Manager Butler : Question. Where was your place of residence before the war? Answer. Tuscaloosa, Alabama. Question. Did you serve in the Union Array during the war? Answer. I did. Question. Prom what time to what time? Answer. Prom July, 1861, to July, 1865. Question. Some time in September, 1866, did you call upon President Johnson, presenting him testimonials for employment in the Gov- ernment service? Answer. I did. Question. What time was it in 1866 ? Answer. The 20th or 21st day of September. Question. How do you fix the time? Answer. Partially from memory, and par- tially from the journal of the Bbbitt House. Question. How long Before that had he re- turned from his trip to Chicago, to the tomb of Douglas? Answer. My recollection is that he returned on the 15th or 16th. I awaited his return in this city. Question. Did you present your testimonials to him? Answer. I did. Question. Did he examine them ? Answer. Part of them. Question. What then took place between you ? Mr. STANBERY. What do you propose to prove, Mr. Manager? Mr. Manager BUTLER. What took place between the President and this witness. Mr. STANBERY. Has it anything to do with this case? Mr. Manager BUTLER. Yes, sir. Mr. STANBERY. Under what article ? Mr. Manager BUTLER. As to the intent of the President in the several articles. Mr. STANBERY. To do what? Mr. Manager BUTLER. To oppose Con- gress. [To the witness.] Will you go on, sir? What did he say? Answer. He said my claims for Government employment were good, or worthy of atten- tion ; I will not fix the words. Question. What next ? Answer. He inquired about my political sentiments somewhat, noticing that I was not a political man or not a politician. I told him I was a Union man, a loyal man, and in favor of the Administration ; that I had confidence in Congress and in the Chief Executive. He then asked me if I knew of any differences be- tween himself and Congress. I told him I did ; that I knew some differences on minor points. He then said: "They are not minor points.'' Question. Go on, sir? Answer. And the "influence" or "patron- age" — I am notsure which — "of these offices shall be in my favor." That was the mean- ing. Question. Were those the words ? Answer. I will not swear that they were the words. Question. ' ' Shall be in my favor. ' ' What did you say to that ? Answer. I remarked that under those con- ditions I could not accept an appointment of any kind, if my influence was to be used for him in contradistinction to Congress, and re- tired. Cross-examined by Mr. Stanbery: Question. Do you know a gentleman in this city by the name of Koppel ? Answer. I do, sir. Question. Have you talked with him since you have been in the city ? Answer. I have called on him when I first came in the city ; I have seen him frequently. Question. Did you tell Mr. Koppel yesterday morning that all you could say about the Presi- • dent was more in his favor than against him ? Answer. I did not, sir. Question. Did you tell Mr. Koppel that when you were brought up to be examined since you arrived in this city there was -an attempt to make you say things which you would not say ? Answer. I did not, sir. I might, in explana- tion of that question, say that there was a mis- understanding between the Managers and a gentleman in Boston in regard to an expression that they supposed I could testify to, but that I could not. Question. Have you been examined before this time since you came into this city? Answer. By whom? Question. Have you been examined before, by any one? Ansicer. I have. Question. Under oath? Answer. Yes, sir. Question. Who first by? Answer. By the Managers of the impeach- ment. Question. Was your testimony taken down? Answer. It was. Question. Were you examined or talked to by any one of them before your examination under oath ? Answer. I had an informal interview with two of them before I was examined. I could hardly call it an examination. Question. Which two of them, and where? Answer. By Governor Boutwell and Gen- eral Butler. Question. When? Answer. Monday of this week. Question. Did you say to Mr. Koppel that since you have been in the city a proposition was made to you that, in case you would give certain testimony it would be for your ben- efit? Answer. I did not, sir. Reexamined by Mr. Manager Butler : Question. Who is Mr. Koppel? Answer. Mr. Koppel is an acquaintance of mine on the avenue — a merchant. Question. Whatsortof merchandise, please? Answer. He is a manufacturer of garments — a tailor. [Laughter.] Question. Do you know any sympathy be- tween him and the President? Answer. I have always supposed that Mr. Koppel was a southern man in spirit. He came from Charleston, South Carolina, here — ran the blockade. Question. Do you mean that as an answer to my question of sympathy between the Pres- ident and him? Answer. Yes, sir. Question. The counsel for the President has asked you if you told Mr. Koppel that you had been asked to say things which you could not say, or words to that effect. In explanation or answer of the question you said there was a misunderstanding which you explained to Mr. Koppel. Will you have the kindness to tell us what that misunderstanding was which you explained to Mr. Koppel? Mr. STANBERY. We do not care about that. Mr. Manager BUTLER, (to the counsel for the respondent.) You put in a part of the con- versation. I have a right to the whole of it. Mr. STANBERY. Wo did not put it in at all — -only a certain declaration. Mr. Manager BUTLER. A certain declara- tion out of it, that is a part of the conversation. Mr. STANBERY. Go on in your own way. Mr. Manager BUTLER, (to the witness.) I will ask, in the first place, did you explain the matter to him ? Answer. I did. Question. Tell us what the misunderstand- ing was which you explained to him in that conversation ? Answer. I think, sir, a gentleman from Bos- ton wrote you that the President asked me if I would give twenty-five per cent, of the pro- ceeds of any office for political purposes. I told you that I did not say so ; the gentleman in Boston misunderstood me. The President said nothing of the kind to me. I explained that to Mr. Koppel. he probably having mis- understood it. Question. Did you explain where the misun- derstanding arose? Answer. I told him that I supposed it must have occurred in a conversation between the gentleman in Boston and myself. Question. In regard to what? Answer. In regard to the twenty-five per cent. Question. Where did that arise ? Mr. STANBERY. What about all that? Mr. Manager BUTLER. I am getting this conversation between Mr. Koppel and this man. Mr. STANBERY. Not at all. You are speaking about another transaction. Mr. Manager BUTLER. No ; I am asking you if you explained to Mr. Koppel where the idea came from that you were to give twenty- five per cent. Mr. EVARTS. We object, Mr. Chief Jus- tice. The witness has stated distinctly that nothing occurred between the President and himself, and it is certainly quite unimportant to this court what occurred between this wit- ness and another gentleman in Boston. Mr. Manager BUTLER. I pray judgment again upon this. The other side seek to put in the conversation between a tailor down in Pennsylvania avenue or somewhere else and this witness. I want the whole of that conver- sation. I supposed, from the eminence of the gentleman who asked the question, that the con- versation between Mr. Koppel, the tailor, and this witness, was put in for some good purpose ; and, if it was, I want the whole of it. Mr. EVARTS. The fact is not exactly a,s is stated by the learned Manager. In the priv- ilege of cross-examination the counsel for the President asked this witness distinctly whether he had said so and so to a Mr. Koppel. The witness said that he had not, and then volun- teered a statement that there might have been some misunderstanding between Mr. Koppel and himself upon that subject, or some misun- derstanding somewhere. Our inquiries did not reach or ask for or bring out the misunderstand- ing. But, passing that point, we stand here dis- tinctly to say that everything which relates to any conversation or interview between the Pres- ident and this witness, whether as understood or misunderstood, has been gone through, and the present point of inquiry and further testi- mony is as to the ground of misunderstanding between this witness and some interlocutor in Boston, and we object to its being heard. Mr. Manager BUTLER. Which he explained to Mr. Koppel, is the point. Mr. EVARTS. That makes no difference. Mr. Manager BUTLER. Having put in a part of Mr. Koppel's conversation, whether voluntarily or not, I have the right to the whole of it. I will explain to the gentlemen that I wish to show that the misunderstanding was not that the President said the twenty-five per cent, was to be given, but one of his friends. There is where the misunderstanding arose. Do the gentlemen still object? Mr. STANBERY and Mr. EVARTS. Of course we object. It has nothing to do with the case. Mr. Manager BUTLER. I will not press it further. That is all, Mr. Wood. Foster Blodgett sworn and examined. By Mr. Manager Butler : Question. Were you an officer of the United States at any time ? Answer. Yes, sir. Question. Where? Answer. In Augusta, Georgia. Question. Holding what office ? Answer. Postmaster. Question. When did you go into the exercise of the duties of that office? Answer. I was appointed on the 25th day of July, 1865. Question. Have you your commission or appointment? Ansioer. I have. [Producing it.] I took charge on the 16th day of September, 1865._ Question. Did you receive another commis- sion ? THE CONGRESSIONAL GLOBE. 123 Answer. Yes, sir. Question. Have you that here ? Answer. Yes, sir. [Producing it.] Mr. Manager BUTLER, (to the counsel for the respondent, handing them the first commission. ) Gentlemen, here is the appoint- ment of Mr. Blodgett from the President in the recess of the Senate. [To the witness.] Is this your other commission? Answer. Yes, sir. Question. After you were confirmed by the Senate? Answer. Yes, sir. Mr. Manager BUTLER. "To have and to hold for- the term of four years from the day of the date hereof unless the President of the United States for the time being shall be pleased sooner to revoke, to determine the commission." This was on the 27th day of July, 1866, issued by the President. [The commission was handed to the coun- sel for the President] Question. Were you suspended from office? Answer. Yes, sir. Question. Have you a copy of the letter of suspension? Answer. No, sir ; I have not a copy of it. It is down with the Committee on Post Offices. Question. Among the records of the Senate? Answer. Yes, sir. Question. When was that ? Answer. On the 3d of January, 1868. Question. Have you examined to see whether your suspension and the reasons therefor have been sent to the Senate ? Answer. It has been reported to me by the chairman of the Post Office Committee that it had not been sent in. Question. Can you learn that it has been sent in ? Answer. I have learned that it has not been sent in. Mr. Manager BUTLER. I suppose Sena- tors can make this certain from their own records, to which we have not access. Mr. STANBERY. Of course, we know all about it. Mr. Manager BUTLER. I supposed, sir, you did know all about it. [To the witness.] Has any action been taken on your suspension, except simply that you were suspended? Answer. None that I know of. No cross-examination. Mr. Manager BUTLER. I ask counsel for the President if they desire to be served with notice to produce the original of that letter ? [Handing to the counsel a copy of a letter.] Mr. STANBERY, (having examined the papers.) I see no objection to that. We do not want to put you to the necessity of mere formal proof. Read it. Mr. Manager BUTLER read as follows : WAR Department, Adjutant General's Office, Washington, February 21, 1868. Sin : I have the honor to report that I have deliv- ered the communication addressed by you to Hon. Edwin M. Stanton, removing him from office of Sec- retary of the War Department, and also to acknowl- edge the receipt of your letter of this date authoriz- ing and empowering me to act as Secretary of War adinterim. I accept this appointment with gratitude for the confidence reposed in me, and will endeavor to discharge the duties to the best of my ability. I have the honor to be, your obedient servant, L. THOMAS, Adjutant General. To his Excellency Anhrew Johnson, President of the United States. Mr. Manager BUTLER. I am instructed, Mr. President, by the Managers to give notice that wie will ask of the Senate to allow to be put in this case proper certificates from the records of the Senate to show that no report of the reasons for the suspension of Mr. Blod- gett has ever been sent to the Senate in con- formity with the law. The CHIEF JUSTICE. Those can be put in at any time. Mr. Manager BUTLER. Yes, sir. We close here. Mr. STANBERY. I will ask the honorable Manager under what article this case of Mr. Blodgett comes? Mr. Manager BUTLER. In the final dis- cussion I have no doubt the gentlemen who close the case will answer that question to the entire satisfaction of the learned gentleman. Mr. STANBERY. _ I have no doubt of that myself, but the question. ia whether we are to be put to the trouble of answering it. That is the point I want to understand. The CHIEF JUSTICE. The counsel for the President must know that when the Sen- ate has made an order for furnishing to the Managers the certificates which they desire, and they are presented, the introduction of them can then be objected to. At present there is no question before the court. Mr. STANBERY. My question is to the gentleman under what article this case of Mr. Blodgett comes. The CHIEF JUSTICE. The Managers of the House of Representatives state that the evidence on their part, with the exception first indicated, is closed. Gentlemen of counsel for the President, you will proceed with the defense. Mr. CURTIS, of counsel for the respondent, rose and said: Mr. Chief Justice, I am here to speak to the Senate of the United States sitting in its judicial capacity as a court of impeachment, presided over by the Chief Jus- tice of the United States, for the trial of the President of the United States. This state- ment sufficiently characterizes what I have to say. Here party spirit, political schemes, fore- gone conclusions, outrageous biases can have no fit operation. The Constitution requires that here should be a "trial," and as in that trial the oath which each one of you has taken is to administer "impartial justice according to the Constitution and the laws," rlie only appeal which I can make in behalf of the Pres- ident is an appeal to the conscience and the reason of each judge who sits before me. Upon the law and the facts, upon the judicial merits of the case, upon the duties incumbent on that high officer by virtue of his office, and his honest endeavor to discharge those duties, the President Tests his defense. And I pray each, one of you to listen to me with that patience which belongs to a judge for his own sake, which I cannot expect to command by any efforts of mine, while I open to you what that defense is. The honorable Managers, through their asso- ciate who has addressed you, [Mr. Butler,] has informed you that this is not a court, and that, whatever may be the character of this body, it is bound by no law. Upon those sub- jects I shall have something hereafter to say. The honorable Manager did not tell you, in terms at least, that here are no articles before you, because a statement of that fact would be in substance to say that here are no honor- able Managers before you ; inasmuch as the only authority with which the honorable Man- agers are clothed by the House of Represent- atives is an authority to present here at your bar certain articles, and, within their limits, conduct this prosecution; and, therefore, I shall make no apology, Senators, for asking your close attention to these articles, one after the other, in manner and form as they are here presented, to ascertain, in the first place, what are the substantial allegations in each of them, what is the legal operation and effect of those allegations, and what proof is necessary to be adduced in order to sustain them ; and I shall begin with the first, not merely because the House of Representatives, in arranging these articles, have placed that first in order, but because the subject-matter of that article is of such a character that it forms the foundation of the first eight articles in the series, and enters materially into two of the remaining three. What, then, is the substance of this first article ?. What, as the lawyers say, are the gravamenina contained in it? There is a great deal of verbiage — I do not mean by that un- necessary verbiage — in the description of the substantive matters set down in this article. Stripped of that verbiage it amounts exactly to these things : first, that the order set out in the article for the removal of Mr. Stanton, if executed, would be a violation of the tenure- of-office act ; second, that it was a violation of the tenure-of-office act ; third, that it was an intentional violation of the tenure-of-office act; fourth, that it was a violation of the Con- stitution of the United States ; and fifth, was by the President intended to be so. Or, to draw all this into one sentence which yet may be intelligible and clear enough, I suppose the substance of this first article is that. the order for the removal of Mr. Stanton was and was intended to be a violation of the tenure-of- office act, and was intended to be a violation of the Constitution of the United States. These are the allegations which it is necessary for the honorable Managers to make out in proof to support that article. Now, there is a question involved here which enters deeply, as I nave already intimated, into the first eight articles in this series, and mate- rially touches two of the others ; and to that question I desire in the first place to invite the attention of the court. That questionis, whether Mr. Stanton's case comes under the tenure-of- office act. If it does not, if the true construc- tion and effect of the tenure-of-office act when applied to the facts of his case excludes it, then it will be found by honorable Senators when they come to examine this and the other arti- cles that a mortal wound has been inflicted upon them by that decision. I must, there- fore, ask your attention to the construction and application of the first section of the tenure-of- office act. It is, as Senators know, but dry work ; it requires close, careful attention and reflection ; no doubt it will receive them. Al- low me, in the first place, to read that section : "That- every person holding any official office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is and shall bo entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided." Then comes what is '• otherwise provided :" "Provided. That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney Genera], shall hold their offices respectively for and during the term of the President by whom they may havo been appointed, and for one month thereafter, sub- ject to removal by and with the advice and consent of the Senate" Here is a section, then, the body of which applies to all civil officers, as "well to those then in office as to those who should thereafter be appointed. The body of that section contains a declaration that every such officer "is," that is, if he is now in office, " and shall be," that is, if he shall hereafter be appointed to office, entitled to hold until a successor is appointed and qualified in his place. That is the body of the section. But out of this body of the section it is explicitly declared that there is to be excepted a particular class of officers " ex- pect as herein otherwise provided." There is to be excepted out of this general description of all civil officers a particular class of offi- cers as to whom something is "otherwise pro- vided;" that is, a different rule is to be an- nounced for them. The Senate will perceive that in the body of the section all officers, as well those then hold- ing office as those thereafter to be appointed, are included. The language is : "Every person holding any civil office to which he has been appointed," * * * * "and every person who shall hereafter be appointed," * * * * "is and shall be entitled," &c- It affects the present; it sweeps over all who are in office, and come within the body of the section; it includes by its terms as well all those now in office as those who may be here- after appointed. But when you come to the proviso the first noticeable thing is that this language is changed; it is not that "every Secretary who now is, and hereafter may be, in office shall be entitled to hold that office' ' by a certain rule which is here prescribed ; but the proviso, while it fixes a rule for the future only, makes no declaration of the present right of one of this class of officers, and the queslion 124 SUPPLEMENT TO whether any particular Secretary comes within that rule depends on another question, whether his case comes within the description contained in the proviso. There is no language which expressly brings him within the proviso; there is no express declaration, as in the body of the section, that "he is, and hereafter shall be, entitled" merely because he holds the office of Secretary at the time of the passage of the law. There is nothing to bring him within the proviso, I repeat, unless the description which the proviso contains applies to and includes his case. Now, let us see if it does. "That the Secretaries of State, &c, shall hold their offices respectively for and during the term of the President by whom they may have been appointed." The first inquiry which arises on this lan- guage is as to the meaning of the words " for and during the term of the President." Mr. Stanton, as appears by the commission which has been put into the case by the honorable Managers, was appointed in January, 1862, during the first term of President Lincoln. Are these words, "during the term of the Presi- dent," applicable to Mr. Stanton's case? That depends upon whether an expounder of this law judicially, who finds set down in it as a part of the descriptive words "during the term of the President," has any right to add "and any other term for which he may afterward be elected." By what authority short of legisla- tive power can those words be put into the statute so that "during the term of the Presi- dent" shall be held to mean "and a*iy other term or terms for which the President may be elected ?' ' I respectfully submit no such judi- cial interpretation can be put on the words. Then, if you please, take the next step. "During the term of the President by whom he was appointed." At the time when this order was issued for the removal of Mr. Stan- ton was he holding "during the term of the President by whom he was appointed?" The honorable Managers say yes, because, as they say, Mr. Johnson is merely serving out the resi- due of Mr. Lincoln's term. But is that so under the provisions of the Constitution of the United States? I pray you to allow me to read two clauses which are applicable to this ques- tion. The first is the first section of the second article : "The executive power shall be vested in a Presi- dent of the United States of America. He shall hold his ofliee during the term Of four years, and, together with the Vice President, chosen for the same term, bo elected, as follows." There is a declaration that the President and the Vice President is each respectively to hold his office for the term of four years; but that does not stand alone ; here is its qualification : " In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President." So that although the President, like the Vice President, is elected for a term of four years, and each is elected -for the same term, the President is not to hold his office absolutely during four years. The limit of four years is not an absolute limit. Death is a limit., A " conditional limitation," as the lawyers call it, is imposed on his tenure of office. And when, according to this second passage which I have read, the President dies, his term of four years for which he was elected, and during which he was to hold, provided he should so long live, terminates, and the office devolves on the Vice President, For what period of time ? For the remainder of the term for which the Vice President was elected. And there is no more propriety, under these provisions of the Con- stitution of the United States, in calling the time during which Mr. Johnson holds the office of President after it was devolved upon him a part of Mr. Lincoln's term tharf there would be propriety in saying that one sovereign who succeeded to another sovereign by death holds a part of his predecessor's term. The term assigned to Mr. Lincoln by the Constitution was conditionally assigned to him. It was to last four years if not sooner ended ; but if sooner ended by his death, then the office was devolved on the Vice President, and the term of the Vice President to hold the office then began. I submit, then, that upon this language of the act it is apparent that Mr. Stanton's case cannot be considered as within it. This law, however, as Senators very well know, had a purpose ; there was a practical object in the view of Congress ; and, however clear it might seem that the language of the law when applied to Mr. Stanton's case would exclude that case, however clear that might seem on the mere words of the law, if the purpose of the law could be discerned, and that purpose plainly required a different interpretation, that differ- ent interpretation should be given. But, on the other hand, if the purpose in view was one re- quiring that interpretation to which I have been drawing your attention, then it greatly strengthens the argument; because, not only the language of the act itself, but the practical object which the legislature had in view in using that language demands that interpreta- tion. Now, there can be no dispute concerning what that purpose was, as I suppose. Here is a peculiar class of officers singled out from all others and brought within this provision. Why is this? It is because the Constitution has pro- vided that these principal officers in the several Executive Departments may be called upon by the President for advice "respecting" — for that, is the language of the Constitution — " their several duties" — not, as I read the Con- stitution, that he may call upon the Secretary of War for advice concerning questions aris- ing in the Department of War. He may call upon him for advice concerning questions which are a part of the duty of the President, as well as questions which belong only to the Department of War. Allow me to read that clause of the Constitution, and see if this be not its true interpretation. The language of the Constitution is, that — " He [the President] may require the opinion in writing of the principal officer in each of the Ex- ecutive Departments uponany subject relating to the "duties of their respective offices." As I read it, relating to the duties of the offices of these principal officers, or relating to the duties of the President himself. At all events, such was the practical interpretation put upon the Constitution from the beginning of the Government ; and every gentleman who listens to me who is familial', as you all are, with the political history of the country, knows that from an early period of the administration of General Washington his Secretaries were called upon for advice concerning matters not within their respective Departments, and so the practice has continued from that time to this. This is one thing which distinguishes this class of officers from any other embraced within the body of the law. But there is another. The Constitution undoubtedly contemplated that there should be Executive Departments created, the heads of which were to assist the President in the ad- ministration of the laws as well as by their advice. They were to be the hands and the voice of the President ; and accordingly that has been so practiced from the beginning, and the legislation of Congress has been framed on this assumption in the organization of the De- partments, and emphatically in the act which constituted the Department of War. That provides, as Senators well remember, in so many words, that the Secretary of War is to discharge such duties of a general description there given as shall be assigned to him by the President, and that he is to perform them under the President's instructions and directions. Let me repeat, that the Secretary of War and the other Secretaries, the Postmaster Gen- eral and the Attorney General, are deemed to be. the assistants of the President in the per- formance of his great duty to take care that the laws are faithfully executed ; that they speak for and act for him. Now, do not these two views furnish the reasons why this class of officers was excepted out of the law ? They were to be the advisers of the President; they were to be the immediate confidential assist- ants of the President, for whom he was to be responsible, but in whom he was expected to repose a great amount of trust and oontidence ; and therefore it was that this act has connected the tenure of office of these Secretaries to which it applies with the President by whom they were appointed. It says, in the description which the act gives of the future tenure of office of Secretaries, that a controlling regard is to be had to the fact that the Secretary whose tenure is to be regulated was appointed by some par- ticular President; and during the term of that President he shall continue to hold his office; but as for Secretaries who are ■ in office, not appointed by the President, we have nothing to say ; we leave them as they heretofore have been. I submit to Senators that this is the natural, and, having regard to the character of these officers, the necessary conclusion, that the tenure of the office of a Secretary here de- scribed is a tenure during the term of service of the President by whom he was appointed; that it was not the intention of Congress to compel a President of the United S.tates to continue in office a Secretary not appointed by himself. We have, however, fortunately, not only the means of interpreting this law which I .have alluded to, namely, the language of the act, the evident character and purpose of the act, but we have decisive evidence of what was in- tended and understood to be the meaning and effect of this law in each branch of Congress at the time when it was passed. In order to make this more apparent and its just weight more evident allow me to state, what is very familiar, no doubt, to Senators, but which I wish to recall to their minds, the history of this proviso, this exception. The bill, as Senators will recollect, originally excluded these officers altogether.. It made no attempt, indeed it rejected all attempts, to pre- scribe a tenure of office for them, as inappro- priate to the necessities of the Government. So the bill went to the House of Representa- tives. It was there amended by putting the Secretaries on the same footing as all other civil officers appointed with the advice and consent- of the Senate, and, thus amended, came back to this body. This body disagreed to the amendment. Thereupon a committee of conference was appointed, and that com- mittee, on the part of the House, had for its chairman Hon. Mr. Schenck, of Ohio, and on the part of this body Hon. Mr. Williams, of Oregon, and Hon. Mr. Sherman, of Ohio. The committee of conference came to an agree- ment to alter the bill by striking these Secre- taries out of the body of the bill and inserting them in the proviso containing the matter now under consideration. Of course when this report was made to the House of Representa- tives and to this body it was incumbent on the committee charged with looking after its inten- tions and estimates of the public necessities in reference to that conference — it was expected that they would explain what had been agreed to, with a view that the body itself, thus under- standing what had been agreed to be done, could proceed to act intelligently on the matter. Now, I wish to read to the Senate the ex- planation given by Hon. Mr. Schbnck, the chairman of this conference on the part of the House, when he made his report to the House concerning this proviso. After the reading of the report, Mr. Schenck said : " I propose to demand the previous question upon the question of agreeing to the report of the commit- tee of conference. But boforedoingso.I will explain to the Houso the condition of the bill and the decis- ion of theconforenee committee upon»it. Itwill be remembered that by the bill as it passed the Sonate it was provided that the concurrence of the Senate should be required in all removals from office, except in the case of the heads of Departments. Thellouse amended the bill of the Senate so as to extend this requirement to the heads of Departments as well as to other officers. "The committee of conference have agreed that the Sonate shall accept the amendment of the House. But, inasmuch as this would compel the President to keep around him heads of Departments until tho end of his term, who would hold over to another term, THE CONGRESSIONAL GLOBE. 125 a compromise was made by which a further amend- ment is added to this portion of the bill, so that the term of office of the heads of Departments shall ex- pire with the term of the President who appointed them, allowing those heads of Departments one month longer, in which, in case of death orotherwise, other heads of Departments can be named. This is the whole effect of the proposition reported by the committee of conference; it is, in fact, an acceptance by tho Senate of the position taken by tho House." — Congressional Globe, Thirty-Ninth Congress, second session, p. 1340. Then a question was asked, whether it would be necessary that the Senate should concur in all other appointments, &c.; in reply to -which Mr. Schenck said: " That is the case. But their terms of office"— That is, the Secretaries' terms of office — "are limited, as they are not now limited by law, so that they expire with the term of service of the President who appoints them, and one month after, in-case of death or other accident, until others can be substituted for them by the incoming President." — Ibid. Allow me to repeat that sentence : " They expire with the term of service of tho Pres- ident who appoints them, and one month after, in case of death or other accident." In this body, on the report being made, the chairman, Hon. Mr. Williams, made an ex- planation. That explanation was in substance the same as that made by Mr. Schenck in the House, and thereupon a considerable debate sprang up, which was not the case in the House, for this explanation of Mr. Schenck was accepted by the House as correct, and un- questionably was acted upon by the House as giving the true sense, meaning, and effect of this bill. In this body, as I have said, a con- siderable debate sprang up. It would take too much of your time and too much of my strength to undertake to read this debate, and there is not a great deal of it which I pan select so as to present it fairly and intelligibly without reading the accompanying parts ; but I think the whole of it may fairly be summed up in this statement: that it was charged by one of the honorable Senators from Wisconsin that it was the intention of those who favored this bill to keep in office Mr. Stanton and certain other Secretaries. That was directly met by the honorable Senator from Ohio, one of the members of the committee of conference, by this statement : " I do not understand the logic of the Senator from Wisconsin. He first attributes a purpose to the com- mittee of conference which I say is not true. I say that the Senate have not legislated with a view to any persons or any President, and therefore he com- mences by asserting what is not true. We do not legislate in order to keep in the Secretary of War, the Secretary of the Navy, or the Secretary of State."— Ibid., p. 1516. Then a conversation arose between the hon- orable Senator from Ohio and another honor- able Senator, and the honorable Senator from Ohio continued thus: "That the Senate had no such purpose is shown by its vote twice to make this exception. That this pro- vision does not apply to the present case is shown by the fact that its language is so framed as not to apply to tho present President. The Senator shows that himself, and argues truly that it would not prevent tho present President from removing the Secretary of War, the Secretary of the Navy, and the Secretary of State. And if I supposed that either of these gen- tlemen was so wanting in manhood, in honor, as to hold his place after the politest intimation by the President of the United States that hi3 services were no longer needed, I certainly, as a Senator, would consent to his removal at any time, and so would we all."— Aid., p. 1516. I read this, Senators, not as expressing the opinion of an individual Senator concerning the meaning of a law which was under dis- cussion and was about to pass into legislation. I read it as the report ; for it is that in effect — the explanation, rather, of the report of the committee of conference appointed by this body to see whether this body could agree with the House of Representatives in the frame of this bill, which committee came back here with a report that a certain alteration had been made and agreed upon by the committee of conference, and that its effect was what is above stated. And now I ask the Senate, looking at the language of this law, looking at its purpose, lookingatthe circumstances under which it was passed, the meaning thus attached to it by each of the bodies which consented to it, whether it is possible to hold that Mr. Stan- ton'scase is within the scope of thattenure-of- office act? I submit it is not possible. I now return to the allegations in this first article ; and the first allegation, as Senators will remember, is that the issuing of the order which is set out in the article was a violation of thetennre-of-officeact. It is perfectly clear that that is not true. The tenure-of-office act in its sixth section enacts "that every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act," &c, shall be deemed a high misdemeanor. "Every removal contrary to the provisions of this act." In the first place no removal has taken place. They set out an order.. If Mr. Stanton had obeyed that order there would have been a removal ; but, inasmuch as Mr. Stanton disobeyed that order, there was no removal. So it is quite clear that, looking to this sixth section of the act, they have made out no case of a removal within its terms ; and, therefore, no ease of violation of the act by' a removal. But it must not only be a removal, it must be "contrary to the provisions of this •act;" and, therefore, if you could hold the order to be in effect a removal, unless Mr. Stanton's case was within this act, unless this act gave Mr. Stanton a tenure of office and pro- tected it, of course the removal, even if it had been actual instead of attempted merely, would not have been " contrary to the provisions of the act," for the act had nothing to do with it. But this article, as Senators will perceive on looking at it, does not allege simply that the order for the removal of Mr. Stanton was a violation of the tenure-of-office act. The hon- orable House of Representatives have not, by this article, attempted to erect a mistake into a crime. I have been arguing to you at con- siderable length, no doubt trying your patience thereby, the construction of that tenure-of- office law. I have a clear idea of what its construction ought to be. Senators, more or less of them who have listened to me, may have a different view of its construction, but I think they will in all candor admit that there is a question of construction ; there is a question what the meaning of this law was ; a question whether it was applicable to Mr. Stanton's case ; a very honest and solid question which any man could entertain, and therefore I re- peat it is important to observe that the honor-' able House of Representatives have not, by this article, endeavored, to charge the Presi- dent with a high misdemeanor because he had been honestly mistaken in construing that law. They go further and take the necessary step. They charge him with intentionally miscon- struing it; they say, "Which order was un- lawfully issued with intention then and there to violate said act." So that, in order to maintain the substance of this article, without which it was not designed by the House of Representatives to stand and cannot stand, it is necessary for them to show that the Presi- dent willfully misconstrued this law ; that hav- ing reason to believe and actually believing, after the use of due inquiry, that Mr. Stanton's case was within the law, he acted as if it was not within the law. That is the substance of the charge. What is the proof in support of that allega- tion offered by the honorable Managers? Sen- ators must undoubtedly be familiar with the fact that the office of President of the United States, as well as many other executive offices, and to some extent legislative offices, call upon those who hold them for the exercise of judg- ment and skill in the construction and appli- cation of laws. It is true that the strictly judi- cial power of the country, technically speaking, is vested in the Supreme Court and such infe- rior courts as Congress from time to time have established or may establish. But there is a great mass of work to be performed by execu- tive officers in the discharge of their duties, which is of a judicial character. Take, for instance, all that is done in the auditing of accounts ; that is judicial whether it be done by an auditor or a comptroller, or whether it be done by a chancellor; and the work has the same character whether done by one or by the other. They must construe and apply the laws ; they must investigate and ascertain facts ; they must come to some results compounded of the law and of the facts. Now, this class of duties the President of the United States has to perform. A case is brought before him, which, in his judgment, calls for action ; his first inquiry must be, what is the law on the subject? He encounters, among other things, this tenure-of-office law in the course of his inquiry. His first duty is to construe that law ; to see whether it applies to the case ; to use, of course, in doing so, all those means and appliances which the Consti- tution and the laws of the country have put into his hands to enable him to come to a correct decision. But after all, he must decide in order either to act or to refrain from action. That process the President in this case was obliged to go through, and did go through ; and he came to the conclusion that the case of Mr. Stanton was not within this law. He came to that conclusion, not merely by an examination of this law himself, but by resorting to the ad- vice which the Constitution and laws of the coun- try enable him to call for to assist him in com- ing to a correct conclusion. Having done so, are the Senate prepared to say that the conclu- sion he reached must have been a willful mis- construction — so willful, so wrong, that it can justly and properly, and for the purpose of this prosecution, effectively be termed a high misdemeanor? flow does the law read ? What are its purposes and objects? How was it un- derstood here at the time when it was passed? How is it possible for this body to convict the President of the United States of a high mis- demeanor for construing a law as those who made it construed it at the time when it was made? I submit to the Senate that thus far no great advance has been made toward the conclusion either that the allegation in this article that this order was a violation of the tenure-of- office act is true, or that there was an intent on the part of the President thus to violate it. And although we have not yet gone over all the allegations in this article, we have met its "head and front," and what remains will be found to be nothing butincidentaland circum- stantial, and not the principal subject. If Mr. Stanton was not within this act, if he held the officeofSecretaryfort.be Department of War at the pleasure of President Johnson as he held it at the pleasure of President Lincoln, if he was bound by law to obey that order which was given to him, and quit the place instead of being sustained by law in resisting that order, I think the honorable Managers will find it ex- tremely difficult to construct out of the broken fragments of this article anything which will amount to a high misdemeanor. What are they? They are, in the first place, that the President did violate, and intended to violate, the Constitution of the United States by giv- ing this order. Why? They say, as I under- stand it, because the order of removal was made during the Session of the Senate ; that for that reason the order was a violation of the Constitution of the United States. I desire to be understood on this subject. If I can make my own ideas of it plain, I think nothing is left of this allegation. In the first place, the case, as Senators will observe, which is now under consideration, is the case of a Secretary of War holding during the pleasure of the President by the terras of his commis- sion; holding under the act of 1789, which created that Department, which, although it does not affect to confer on the President the power to remove the Secretary, does clearly imply that he has that power by making a pro- vision for what shall happen in case he exer- cises it. That is the case which is under con- sideration, and the question is this : whether under the law of 1789 and the tenure of office created by that law, designedly created by that law, after the great debate of 1789, and 126 SUPPLEMENT TO whether under a commission which conforms to it, holding during the pleasure of the Pres- ident, the President could remove such a Secretary during the session of the Senate. Why not? Certainly there is nothing in the Constitution of the United States to prohibit it. The Constitution has made two distinct provisions for filling offices. One is by nom- ination to the Senate and confirmation by them and a commission by the President upon that confirmation. The other is by commissioning an officer when a vacancy happens during a recess of the Senate. But the question now before you is not a question how vacancies shall be filled ; that the Constitution has thus provided for ; it is a question how they may be created and when they may be created — a totally dis- tinct question. Whatever may be thought of the soundness of the conclusion arrived at upon the great debate in 1789 concerning the tenure of office, or concerning the power of removal from office, no one, I -suppose, will question that a conclu- sion was arrived at ; and that conclusion was that the Constitution had lodged with the Pres- ident the power of removal from office inde- pendently of the Senate. This may be a de- cision proper to be reversed ; it may have been now reversed ; of that I say nothing at present ; but that it was made, and that the legislation of Congress, in 1789 and so on down during the whole period of legislation to 1867 pro- ceeded upon the assumption, express or im- plied, that that decision had been made, nobody who understands the history of the legislation of the country will deny. Consider, if you please, what this decision was. It was that the Constitution had lodged this power in the President ; that he alone was to exercise it ; that the Senate had not and could not have any control whatever over it. If that be so, of what materiality is it whether the Senate is in session or not ? If the Sen- ate is not in session, and the President has this power, a vacancy is created, and the Con- stitution has made provision for filling that vacancy by commission until the end of the next session of the Senate. If the Senate is in session, then the Constitution has made provision for filling a vacancy which is created by a nomination to the Senate ; and the laws of the country, as I am presently going to show you somewhat in detail, have made provisions for filling it ad interim without any nomina- tion, if the President is not prepared to make a nomination at the moment when he finds the public service requires the removal of an officer. So that if this be a case within the scope of the decision made by Congress in 1789, and within the scope of the legislation which fol- lowed upon that decision, it is a case where, either by force of the Constitution the Presi- dent had the power of removal without con- sulting the Senate, or else the legislation of Congress had given it to him ; and either way neither the Constitution nor the legislation of Congress had made it incumbent on him to consult the Senate on the subject. I submit, then, that if you look at this matter of Mr. Stanton's removal just as it stands on the decision in 1789 or on the legislation of Congress following upon that decision, and in accordance with which are the terms of the commission under which Mr. Stanton held office, you must come to the conclusion, with- out any further evidence on the subject, that the Senate had nothing whatever to do with the removal of Mr. Stanton, either to advise for it or to advise against it ; that it came either under the constitutional power of the Presi- dent as it had been interpreted in 1789 or it came under the grant made by the Legislature to the President in regard to all those Secre- taries not included within the tenure-of-office bill. This, however, does not rest simply upon this application of the Constitution and of the legislation of Congress. There has been, and we shall bring it before you, a practice by the Government, going back to a very early day, and coming down to a recent period, for the President to make removals from office when the case called for them, without regard to the fact whether the Senate was in session or not. The instances, of course, would not be numerous. If the Senate was in session the President would send a nomination to the Senate saying, "A B in place of C D, re- moved ;" but then there were occasions, not frequent, I agree, but there were occasions, as you will see might naturally happen, when the President, perhaps, had not had time to select a person whom he would nominate, and when he could not trust the officer then in possession of the office to continue in it, when it was necessary for him by a special order to remove him from the office wholly independent of any nomination sent in to the Senate. Let me bring before your consideration for a mo- ment a very striking case which happened recently enough to be within the knowledge of many of you. We were on the eve of a civil war ; the War Department was in the hands of a man who was disloyal and unfaithful to his trust ; his chief clerk who, on his removal or resig- nation, would come into the place, was believed to be in the same category with his master. Under those circumstances the President of the United States said to Mr. Floyd, "I must have possession of this office;" and Mr. Floyd bad too much good sense or good manners or something else to do anything but resign ; and instantly the President put into the place Gen- eral Holt, the Postmaster General of the United States at the time, without the delay of an hour. It was a time when a delay of twenty-four hours might have been of vast practical consequence to the country. There are classes of cases arising in all the Departments of that charac- ter followed by that action ; and we shall bring before you evidence showing what those cases have been, so that it will appear that so long as officers held at the pleasure of the President and wholly independent of the advice which he might receive in regard to their removal from the Senate, so long, whenever there was an occasion, the Presidentusedthepower, whether the Senate was in session or not. I have now gone over, Senators, the con- siderations which seem to me to be applicable to the tenure-of-office bill, apd to this allega- tion which is made that the President know- ingly violated the Constitution of the United States in the order for the removal of Mr. Stanton from office while the Senate was in session ; and the counsel for the President feel that it is not essential to his vindication from this charge to go further upon this subject. Nevertheless, there is a broader view, of this matter, which is an actual part of the case, and it is due to the President it should be brought before you, that I now propose to open to your consideration. The Constitution requires the President of the United States to take care that the laws be faithfully executed. It also requires of him, as a qualification for his office, to swear that he will faithfully execute the laws, and that, to the best of his ability, he will pre- serve, protect, and defend the Constitution of the United States. I suppose every one will agree that so long as the President of' the Uni- ted States, in good faith, is endeavoring to take care that the laws be faithfully executed, and in good faith and to the best of his ability is preserving, protecting, and defending the Constitution of the United States, although he may be making mistakes, he is not committing high crimes or misdemeanors. In the execution of these duties the Presi- dent found, for reasons which it is not my province at this time to enter upon, butwhich will be exhibited to you hereafter, that it was impossible to allow Mr. Stanton to continue to hold the office of one of his advisers, and to be responsible for his conduct in the manner he was required by the Constitution and laws to be responsible, any longer. This was intimated to Mr. Stanton, and did not produce the effect which, according to the general judgment of well-informed men, such- intimations usually produce. Thereupon the President first sus- pended Mr. Stanton and reported that to the Senate. Certain proceedings took place which will be adverted to more particularly presently. They resulted in the return of Mr. Stanton to the occupation by him of this office. Then it became necessary for the President to con- sider, first, whether this tenure-of-office law applied to the case of Mr. Stanton ; secondly, if it did apply to the case of Mr. Stanton, whether the law itself was the law of the land, or was merely inoperative because it exceeded the constitutional power of the Legislature. I am aware that it is asserted to be the civil and moral duty of all men to obey those laws which have been passed through all the forms of legislation until they shall have been de- creed by judicial authority not to be binding; but this is too broad a statement of the civil and moral duty incumbent either upon private citizens or public officers. If this is the meas- ure of duty there never could be a judicial decision that a law is unconstitutional, inas- much as it is only by disregarding a law that any question can be raised judicially under it. I submit to Senators that not only is there no such rule of civil or moral duty, but that it may be and has been a high and patriotic duty of a citizen to raise a question whether a law is within the Constitution of the country. Will any man question the patriotism or the propriety of John Hampden's act when he brought the question whether "ship money'' was within the Constitution of England before the courts of England ? Not only is there no such rule incumbent upon private citizens which forbids them to raise such questions, but, let me repeat, there may be, as there not unfre- quently have been, iustances in which the highest patriotism and the purest civil and moral duty require it to be done. Let me ask any one of you, if you were a trustee for the rights of third persons, and those rights of third persons, which they could not defend themselves by reason, perhaps, of sex or age, should be attacked by an unconstitutional law, should you not deem it to be your sacred duty to i-esist it and have the question tried ? And if a private trustee may be subject to such a duty, and impelled by it to such action, how is it possible to maintain that he who is a trustee for the people of powers confided to him for their protection, for their security, for their benefit, may not in that character of trustee defend what has thus been confided to him ? Do not let me be misunderstood on this subject. I am not intending to advance upon or occupy any extreme ground, because no such extreme ground has been advanced upon or occupied by the President of the United States. He is to take care that the laws are faithfully executed. When a law has been passed through the forms of legislation, either with his assent or without his assent, it is his duty to see that that law is faithfully executed so long as nothing is required of him but min- isterial action. He is not to erect himself into a judicial court and decide that the law is unconstitutional, and that therefore he will not execute it ; for, if that were done, manifestly there never could be a judicial decision. He would not only veto a law, but he would refuse all action under the law after it had been passed, and thus prevent any judicial decision from being made. He asserts no such power. He has no such idea of his duty. His idea of his duty is that if a law is passed over his veto which he believes to be unconstitutional, and that law affects the interests of third persons, those whose interests are affected must take care of them, vindicate them, raise questions concerning them, if they should be so advised. If such a law affects the general and public interests of the people the people must take care at the polls that it is remedied in a consti- tutional way. But when, Senators, a question arises whether a particular law has cut off a power confided to him by the people through the Constitution, and he alone can raise that ques- tion, and he alone can cause a judicial decision to come between the two branches of the Gov- ernment to say which of them is right, andafter THE CONGRESSIONAL GLOBE. 127 duo deliberation, with the advice of those who are his proper advisers, he settles down firmly upon the opinion that such is the character of' the law, it remains to be decided by you whether there is any violation of his duty when he takes the needful steps to raise that ques- tion and have it peacefully'decided. Where shall the line be drawn? Suppose a law should provide that the President of the United States should not make a treaty with England or with any other country? It would be a plain infraction of his' constitutional power, and if an occasion arose when such a treaty was in his judgment expedient and necessary it would be his duty to make it ; and the fact that it should be declared to be a high misdemeanor if he made it would no more relieve him from the responsibility of acting through the fear of that law than he would be relieved of that responsibility by a bribe not to act. Suppose a law that he shall not be Com- mander-in-Chief in part or in whole — a plain case, I will suppose, of an infraction of that provision of the Constitution which has con- fided to him that command ; the Constitution intending that the head' of all the military power of the country should be a civil magis- trate, to the end that the law may always be superior to arms. Suppose he should resist a statute of that kind in the manner I have spoken of by bringing it to a judicial decision? It may be said these are plain eases of ex- press infractions of the Constitution; but what is the difference between a power conferred upon the President by the express words of the Constitution and a power conferred upon the President by a clear and sufficient impli- cation in the Constitution ? Where does tire power to make banks come from ? Where does the power come from to limit Congress in as- signing, original jurisdiction to the Supreme „Court of the United States, one of the cases referred to the other day? Where do a mul- titude, of powers upon which Congress acts come from in "the Constitution except by fair implications? Whence do you derive the power, while you are limiting the tenure of office, to confer on the Senate the right to pre- vent removals without their consent? Is that expressly given in the Constitution, or is it an implication which is made from some of its provisions? I submit it is impossible to draw any line of duty for the President simply because a power is derived from an implication in the Consti- tution instead of from an express provision. One thing unquestionably is to be expected of the President on all such occasions, that is,that he should carefully consider the question ; that he should ascertain that it necessarily arises ; that he should be of opinion that it is necessary to the public service that it should be decided ; that he should take all competent and proper advice on the subject. When he has done all this, if he finds that he cannot allow the law to operate in the particular case without abandon- ing a power which he believes has been oonfided to him by the people, it is his solemn conviction that it is his duty to assert the power and obtain a judicial decision thereon. And although he do.es not perceive, nor do his counsel perceive, that it is essential to his defense in this case to maintain this part of the argument, neverthe- less, if this tribunal should be of that opinion, then before this tribunal, before all the people of the United States, and before the civilized world, he asserts the truth of this position. I am compelled now to ask your attention, quite briefly, however, to some considerations which weighed upon the mind of the Presi- dent and led him to the conclusion that this was one of the powers of his office which it was his duty, in the manner I have indicated, to endeavor to preserve. The question whether the Constitution has lodged the power of removal with the Presi- dent alone, with the President and Senate, or left it to Congress to be determined at its will in fixing the tenure of offices, was, as all Sen- ators know, debated in 1789 with surpassing ability and knowledge of the frame and neces- sities of our Government. Now, it is a rule long settled, existing, I sup- pose, in all civilized countries, certainly in every system of law that I have any acquaint- ance with, that a contemporary exposition of a law made by those who were competent to give it a construction is of very great weight ; and that when such contemporary exposition has been made of a law, and it has been followed by an actual and practical construction in ac- cordance with that contemporary exposition, continued during a long period of time and applied to great numbers of cases, it is after- ward too late to call in question the correctness of such a construction. The rule is laid down, in the quaint language of Lord Coke, in this forrcf: "Great regard ought, in construing a law, to be paid to the construction which the sages who lived about the time or soon after it was made put upon it, because they were best ablo to judge of the inten- tion of the makers at the timo when thelaw was made. Contemporaniaexpoeitioeatfortiiiaimainleyem," I desire to bring before the Senate in this connection, inasmuch as I think the subject has been frequently misunderstood, the form taken by that debate of 1789 and the result which was attained. In order to do so, and at the same time to avoid fatiguing your attention by looking minutely into the debate itself, I beg leave to read a passage from Chief Justice Marshall's Life of Washington, where he has summed up the whole. The writer says-, on page 102 of the second volume of the Phila- delphia edition : " After an ardent discussion, which consumed sev- eral days, the committee divided, andthe amendment was negatived by a majority of thirty-four to twenty. The opinion thus expressed by the House of Repre- sentatives. did not explicitly convoy their sense of the Constitution. Indeed, the express grant of the power to the President rather implied a right in the Legislature to give or withhold it at their dis- cretion. To obviate any misunderstanding of the principle on which the question ha.d been decided Mr. Benson moved in the House, when the report of tho Committee of the Whole was taken up, to amend the second clause in the bill so as clearly to imply the power of removal to be solely in the President. He gave notice that if he should succeed in this he would move to strike out the words which had been the subject of debate. If those words continued, he said, the power of removal by the President might hereafter appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability ; when he was well satisfied in his own mind that it was by fair construction fixed in the Constitution. The motion was seconded by Mr. Madison, and both amendments were adopted. As the bill passed into a law, it has ever been con- sidered as a full expression of the sense of tho Legis- lature on this important part of the American Con- stitution." Some allusion has been made to the fact that this law was passed in the Senate only by the casting vote of the Vice President ; and upon that subject I beg leave to refer to the life of Mr. Adams by his grandson, volume one of his works, pages 448 to 450. He here gives an account, so far as could be ascertained from the papers of President Adams, of what that debate was, and finally terminates the subject in this way: "These reasons," that is, the reasons of Vice President Adams — " Were not committed to paper, however, and can therefore never be known. But in their soundness it is certain that he never had the shadow of a doubt." I desire leave, also, to refer on this subject to the first volume of Story's Commentaries -on the Constitution, section four hundred and eight, in support of the rule of interpretation which I have stated to the Senate. It will there be found that it is stated by the learned com- mentator that a contemporaneous construction of the Constitution made under certain cir- cumstances, which he describes, is of very great weight in determining its meaning. He says : "After all the most unexceptionable source of col- lateral interpretation is from the practical exposition of tho Government itself in its various departments upon particular questions discussed and settled upon their own single merits. These approach the nearest in their own nature to judicial expositions, and have the same general recommendation that belongs to the latter. They are decided upon solemn argument, pro renata, upon a doubt raised, upon a lis mota, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action in tho midst of jealous interests, and by men capable of urging or repelling the grounds of argument from their exquisite genius, their comprehensive learn- ing, or their deep meditation upon the absorbing topic. How light, compared with these means of in- struction, are the private lucubrations of the closet or, the retired speculations of ingenious minds, intent on theory or general views, and unused to encounter a practioal difficulty at every step 1" On comparing the decision made in 1789 with the tests which are here suggested by the learned commentator, it will be found, in tho first place, that the precise question was under discussion ; secondly, that there was a deep sense of its importance, for it was seen that the decision was not to affect a few cases lying here and there in the course of the Government, but that it would enter deeply into its practical and daily administration ; and in the next place the determination was, so far as such determination could be entertained, thereby to fix a system for the future ; and in the last place the men who participated in it must be admitted to have been exceedingly well qualified for their work. There is another rule to be added to this which is also one of very frequent application, and it is that a long-continued practical appli- cation of a decision of this character by those to whom the execution of a law is confided is of decisive weight. To borrow again from Lord Coke on this subject, " Optirmis legum interpret consuetudo" — "practice is the best interpreter of law." Now, what followed this original decision ? Prom 1789 down to 1867 every President and every Congress partici- pated in and acted under the construction given in 1789. Not only did the Government so con- duct, but it was a subject sufficiently discussed among the people to bring to their considera- tion that such a question had existed, had been started, had been settled in this manner, had been raised again from time to time, and yet, as everybody knows, so far from the people interfering with this decision, so far from ever expressing in any manner their disapprobation of the practice which had grown up under it, not one party nor two parties but all parties favored and acted upon this system of Govern- ment. Mr. EDMUNDS, (at two o'clock and twenty-five minutes p. m.) Mr. President, if agreeable to the honorable counsel, I will move that the Senate take a recess for fifteen minutes. The motion was agreed to. The Chief Justice resumed the Chair at fifteen minutes to three o'clock, and called the Senate to order. Mr. MOEEILL, of Vermont, (after a pause.) I move that the Senate do now adjourn — I see that most of the Senators are away — and on that motion I ask for the yeas and nays. The yeas and nays were ordered. Mr. CONKLING. What is the motion ? I did not hear it. The CHIEF JUSTICE. The motion is to adjourn until to-morrow at twelve o'clock, and upon that motion the yeas and nays are ordered. The question being taken by yeas and nays, resulted — yeas 2, nays 35 ; as follows : YEAS— Messrs. McCreery, and Patterson of Ten- nessee — 2. NAYS— Messrs. Buckalew, Cattell, Chandler, Cole, Conkling. Corbett, Cragin, Davis, Dixon, Dooiittle, Drake, Ferry, Fessenden, Frelinghuysen, Grimes, Henderson, Hendricks, Howard, Howe, L Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Pomeroy. Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Van Winkle, Vickers, Willey, and Yates— 35. NOT VOTING— Messrs. Anthony, Bayard. Cam- eron, Conness, Edmunds, Fowler, Harlan, Norton, Nye, Patterson of New Hampshire,, Ramsey, Sauls- bury, Sprague, Trumbull, Wade, Williams, and Wil- son— 17. So the Senate refused to adjourn. The CHIEF JUSTICE. The counsel for the President will proceed with the argument. Mr. CURTIS. Mr. Chief Justice and Sen- ators, when the Senate adjourned I was asking its attention to the fact that this practical in- terpretation was put upon the Constitution in 1789, and that it had been continued with the concurrence of the legislative and executive branches of the Government down to 1867, 128 SUPPLEMENT TO affectiDg so great a variety of interests, em- bracing so many offices, so well known not merely to the members of the Goverment them- selves, but to the people of the country, that it was impossible to doubt that it had received their sanction as well as the sanction of the executive and the legislative branches of the Government. This is a subject which has been heretofore examined and passed upon judicially in very numerous cases. I do not speak now, of course, of judicial decisions of this particular question which is under consideration, whether the Constitution has lodged the power of re- moval in the President alone, or in the Presi- dent and Senate, or has left it to be a part of the legislative power ; but I speak of the judi- cial exposition of the effect of such a practical construction of the Constitution of the United States originated in the way in which this was originated, continued in the way in which this was continued, and sanctioned in the way in which this has been sanctioned. There was a very early case that arose soon after the organization of the Government, and which is reported under the name of Stuart us. Laird, in 1 Cranch's Reports, 299. It was a question concerning the interpretation of the Constitution concerning the power which the Congress had to assign to the judges of the Supreme Court circuit duties. From that time down to the decision in the case of Cooley vs. The Port Wardens of Philadelphia, reported in 12 Howard, 315, a period of more than half a century, there has been a series of decisions upon the effect of such a contemporaneous construction of the Constitution, followed by such a practice in accordance with it; and it is now a fixed' and settled rule, which, I think, no lawyer will undertake to controvert, that the effect of such a construction is not merely to give weight to an argument, but to fix an interpretation. And accordingly it will be found by looking into the books written by those who were conversant with this subject that they have so considered and received it. I beg leave to refer to the most eminent of all the commentators on American law, and to read a Tine or two from Chancellor Kent's Lectures, found in the first volume, page 310, marginal paging. After considering this sub- ject, and, it should be noted in reference to this very learned and experienced jurist, con- sidering it in an unfavorable light, because he himself thought that as an original question it had better have been settled the other way, that it would have been more logical, more in conformity with his views of what the prac- tical needs of the Government were, that the Senate should participate with the President in the power of removal, nevertheless he sums it all up in these words : "This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as of decisive authority in the case. I tap plies equally to every other officer of the Govern- ment appointed by the President and Senate whose term of duration is not specially declared. Itis sup- ported by the weighty reason that the subordinate officers in the executive department ought to hold at tho pleasure of the head of that department, be- cause he is invested generally with the executive authority, and every participation in that authority by the Senate was an exception to a general princi- ple, and ought to bo taken strictly. The President is the great responsible officer for the faithful execu- tion of the law, and the power of removal was inci- dental to that duty, and might often be requisite to fulfill it." This, I believe, will be found to be a fair expression of the opinions of those who have had occasion to examine this subject in their closets or as a matter of speculation. Jn this case, however, the President of the United States had to consider not merely the general question where this power was lodged, not merely the effect of this decision made in 1789, and the practice of the Government under it since, but he had to consider a par- ticular law, the provisions of which were before him, and might have an application to the case upon which. he felt called upon to act; and it is necessary, in order to do justice to the Pres- ident in reference to this matter, to see what tho theory of that law is and what its opera- tion is or must be, if any, upon the case which he had before him ; namely, the* case of Mr. Stanton. During the debate in 1789 there were three distinct theories held by different persons in the House of Representatives. One was that the Constitution had lodged the power of re- moval with the President alone ; another was that the Constitution had lodged that power with the President, acting with the advice and consent of the Senate ; the third was that the Constitution had lodged it nowhere, but had left it to the legislative power, to be acted upon in connection with the prescription of the tenure of office. The last of these theories was at that day held by comparatively few persons. The first two received not only much the great- est number of votes but much the greatest weight of reasoning in the course of that debate ; so much so that when this subject came under the consideration of the Supreme Court of the United States, in the case of ex parte Hennan, collaterally only, Mr. Justice Thompson, who delivered the opinion of the court on that occasion, says that it has never been doubted that the Constitution had lodged the power either in the President alone or in the Presi- dent and Senate — certainly an inaccuracy; but then it required a very close scrutiny of the debates and a careful examination of the few individual opinions expressed in that debate, in that direction, to ascertain that it ever had been doubted that, one way or the other, the Constitution settled the question. Nevertheless, as I understand it — I may be mistaken in this — but, as I understand it, it is the theory of this law which the President had before him, that both these opinions were wrong ; that £be Constitution has not lodged the power anywhere ; that it has left it as an incident to the legislative power, which inci- dent may be controlled, of course, by the Legislature itself, according to its own will; because, as Chief Justice Marshall somewhere remarks, (and it is one of those profound re- marks which will be found to have been carried by him into many of his decisions.) when it conies to a question whether a power exists the particular mode in which it may be exercised must be left to the will of the body that pos- sesses it; and, therefore, if this be a legisla- tive power, it was very apparent to the Presi- dent of the United States, as it had been very apparent to Mr. Madison, as was declared by him in the course of his correspondence with Mr. Coles, which is, no doubt, familiar to Sen- ators, that if this be a legislative power the Legislature may lodge it in the Senate, may retain it in the whole body of Congress, the two Houses of Congress, or may give it to the House of Representatives. I repeat, the Pres- ident had to consider this particular law ; and that, as I understand it, is the theory of that law. I do not undertake to say it is an un- founded theory; I do not undertake to say that it may not be maintained successfully ; but I do undertake to say that it is one which was originally rejected by the ablest minds that had this subject under consideration in 1789 ; that whenever the question has been started since it has had, to a recent period, very few advo- cates; and that no fair and candid mind can deny that it is capable of being doubted and disbelieved after examination. It may be the truth, after all; bat it is not a truth which shines with such clear and certain light that a man is guilty of a crime because he does not see it. The President not only had to consider this particular law, but iie had to consider its con- stitutional application to this particular case, supposing the case of Mr. Stanton to be, what I have endeavored to argue it was not, within its terms. Let us assume, then, that his case was within its terms; let us assume that this proviso, in describing the cases of Secretaries described the case of Mr. Stanton ; that Mr. Stanton, having been appointed by President Lincoln in January, 1862, and commissioned to hold during the pleasure of the President, by force of this law acquired a right to hold this office against the will of the President down to April, 1869. Now, there is one thing which has never been doubted under the Con- stitution, is incapable of being doubted, allow me to say, and that is, that the President is to make the choice of officers. Whether having made the choice, and they being inducted into office, they can be removed by him alone, is another question. But to the President alone is confided the power of choice. In the first place, he alone can nominate. When the Sen- ate has advised the nomination, consented to the nomination, he isnot bound to commission the officer. He has a second opportunity for consideration, and acceptance or rejection of the choice he had originally made. On this subject allow me to read from the opinion of Chief Justice Marshall, in the case of Marbury vs. Madison, where it is expressed more clearly than I can express it. After enumerating the different clauses of the Constitution which bear upon this subject, he says : "These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct opera- tions : "1. The nomination. This is the sole act of tho President, and is completely voluntary. "2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and eon- sent of the Senate. "3. The commission. To grant a commission to a person appointed might, perhaps, be deemed a duty enjoined by the Constitution. ' He shall.' says that instrument, 'commission all the officers of the Uni- ted States.' " — 1 Cranch, 155. He then goes into various considerations to show that it is not a duty enjoined by the Con- stitution ; that it is optional with him whether he will commission even after an appointment has been confirmed, and he says: *" The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the ad- vice and consent of the Senate concurring with his^ nomination, has been made, and the officer is ap- pointed."— Jbid„ 157. The choice, then, is with .the President. The action of the Senate upon that choice is an advjsory action only at a particular stage after the nomination, before the appointment or the commission. Now, as I have said be- fore, Mr. ' Stanton was appointed under the law of 1789, constituting the War Department, and in accordance with that law he was com- missioned to hold during the pleasure of the President. President Lincoln had said to the Senate, "I nominate Mr. Stanton to hold the office of Secretary for the Department of War during the pleasure of the President." The Senate had said, "We assent to Mr. Stanton's holding the office of Secretary for the Depart- ment of War during the pleasure of the Presi- dent." What does this tenure-of-oflice law say, if it operates on the case of Mr. Stanton ? It says Mir. Stanton shall hold office against the will of the President, contrary to the terms of his commission, contrary to the law under which he was appointed, down to the 4th of April, 1869. For this new, fixed, and ex- tended term, where is Mr. Stanton's commis- sion? Who has made the appointment? Who has assented to .it? It is a legislative commis- sion; it is a legislative appointment; it is as- sented to by Congress acting in its legislative capacity. The President has had no voice in the matter. The Senate, as the advisers of the President, have had no voice in the mat- ter. If he holds at all, he holds by force of legislation, and not by any choice made by the President, or assented to by the Senate. And this was the case, and the only case, which the President had before him, and on which he was called to act. Now, I ask Senators to consider whether, for having formed an opinion that the Consti- tution of the United States had lodged this power with the President — ah opinion which he shares with every President who has pre- ceded him, with every Congress which has pre- ceded the last; an opinion formed on the grounds which I have imperfectly indicated; an opinion which, when applied to this par- THE CONGRESSIONAL GLOBE. 129 iicular case, raises the difficulties which I have indicated here, arising out of the fact that this law does not pursue either of the opinions which were originally held in this Govern- ment, and have occasionally been started and maintained by those who are restless under its ailministration; an opinion thus supported by the practice of the Government from its origin down to his own day, is he to be impeached for holding that "opinion? If not, if he might honestly and properly form such an opinion under the lights which he had, and, with the aid of the advice which we shall show you he received, then isjie to be impeached for acting upon it to the extent of obtaining a judicial decision whether the executive department of the Government was right in its opinion, or the legislative department was right in its opinion? Strangely enough, as it struck me, the honor- able Managers themselves say, "No; he is not to- be impeached for that." I beg leave to read a passage from ,the argument of the honor- able Manager by whom the prosecution was opened: " If the President had really desired solely to test the constitutionality of the law or his legal right to remove Mr. Stanton, instead of his defiant message to the Semite of the 21st of February, informing them of the removal, but not suggesting this purpose, which is thus shown to be an afterthought, he would have said, in substance : ' Gentlemen of the Senate, in order to test the constitutionality of thelaw entitled "An act regulating the tenure of certain civil offices," which I veriJy believe to be unconstitutional and void, I have issued an ord r of removal of B. M. Stanton from theomce of Secretary of the Department of War. I felt myself constrained to make this removal lest Mr. Stanton should answer the information in the'uature of a quo warranto, which I intend the Attorney General shall file at an early day, by saying that he holds the otfioe of Secretary of War by the appointment and authority of Mr. Lincoln, which has neverbeen revoked. Anxious that there shall be no collision or disagreement between the several departments of the Government and the Executive, I lay before the Senate this message, that the reasons for my action, as well as the action itself, for the pur- pose indicated, may meet your concurrence.' " Thus far are marks of quotation showing the communication which the President should have obtained from the honorable Manager and sent to the Senate in order to make this matter exactly right. Then follows this : "Haa the Senate received such a message the Bep- resentatives of the people might never have deemed it necessary to impeach the President for such an act to insure the safety of the country, even if they had denied the accuracy of his legal positions." So that it seems that it is, after all, not the removal of Mr. Stanton but the manner in which the President communicated the fact of that removal to* {he Senate after it was made. That manner is called here the "defiant mes- sage" of the 21st of February. That is a ques- tion of taste. I have read the message as you all have read it. If you can find anything in it but what is decorous and respectful to this body and to all concerned your taste will differ from mine. But whether it be a point of man- ners well or ill taken, one thing seems to be quite clear : that the President is not im- peached here because he entertained an opinion that this law was unconstitutional ; he is not impeached here because he acted on that opin- ion and removed Mr. Stanton ; but he is im- peached here because the House of Represent- atives considers that this honorable body was addressed by a " defiant message," when they should have been addressed in the terms which the honorable Manager has dictated. I now come, Mr. Chief Justice and Sena- tors, Jo another topic connected with this mat- ter of the removal of Mr. Stanton and the action of the President under this law. The honorable Managers take the ground, among others, that whether upon a true construction of this tenure-pf-office act Mr. Stanton be within it, or even if you should believe that the President thought the law unconstitu- tional and had a right, if not trammeled . in some way, to try that question, still by his own condjict and declarations the Presidents they phrase it, is estopped. He is nqt to be per- mitted hereto assert the true interpretation of this law ; he is not to be permitted to allege that his purpose was to raise a question con- cerning its constitutionality ; and the reason is SUPPLEMBNT — 9. that he has done and said certain things. All of us who have read law books know that there is in the common law a doctrine called rules of estoppel, founded, undoubtedly, on good reason, although, as they are called from the time of Lord Coke, or even earlier, down to the present day, odious, because they sliut out the truth. Nevertheless there are circum- stances when it is proper that the truth should be shut out. What are the circumstances? They are where a question of private right is involved, where on a matter of fact that pri- vate right depends, and where one of the parties to the controversy has so conducted himself that he ought not in good conscience to be allowed either to assert or deny that mat- ter of fact. But did any one ever he^r of an estoppel on a matter of law? Did any one ever hear that a party had put himself into such a condition that when he came into a court of justice even to claim a private right, he could not ask the judge correctly to construe a statute, and insist on the construction when it was arrived at in ' his, favor? Did anybody ever hear, last of all, that a man was convicted of crime by reason of an estoppel under any 'system of law that ever prevailed in any civilized State? That the President of the United States should be impeached and removed from office, not by reason of the truth of his case, but because he is estopped from telling it. would be a specta- cle for gods and men. Undoubtedly it would have a place in history, which it is not neces- sary for me to attempt to foreshadow. There is no matter of fact here. They have themselves put in Mri Stanton's commission, which shows the date of the commission and the terms of the commission ; and that is the whole matter of fact which is involved. The rest is the construction of the tenure of the tenure-of-office act and the application of it to the" case, which they have thus made them- selves; and also the construction of the Con- stitution of the United States, and the abstract public question whether that has lodged the power of removal with the President alone, or with the President and Senate, or left it to Congress. I respectfully submit, therefore, that the ground is untenable that there can be an estoppel by any conduct of the President, who comes here to assert not a private right, but a great public right confided to the office by the people, in which, if anybody is estopped, the people will be estopped. The President never could do or say anything which would put this great public right into that extraor- dinary predicament. But what has he done? What are the facts upon which they rely, out of which to work this estoppel, as they call it? In the first place, he sent a message to the Senate on the 12th of December, 1867, in which he informed the Senate that he had suspended Mr. Stanton by a certain order, a copy' of which he gave; that he had appointed General Grant to exer- cise the duties of the office ad interim by a certain other order, a copy of which he gave ; and then he entered into a discussion in which he showed the existence of this question, whether Mr. Stanton was within the tenure-of- office bill, the existence of the other question, whether this was or was not a constitutional law ; and then he invoked the action of the Senate. There was nothing misrepresented. There was nothing concealed which he was bound to state. If is complained of by the honorable Manager's that he did not tell the Senate that if their action should be such as to restore Mr. Stanton practically to the posses- sion of the office he should go to law about it. That is the complaint : that he did not tell that to the Senate. It may have been a possible omission, though I rather think not. I rather think that that good taste which is so prevalent among the Managers, and which they sp insist upon here, would hardly dictate that the Presi- dent should have held out to the Senate some- thing which might possibly have been construed into a threat upon that subject. He laid the case before the Senate for their action ; and now, forsooth, they say he was too deferential to this law, both by reason of this conduct of his, and also what he did upon other occasions to which I shall presently advert. Senators, there is no inconsistency in the President's position or conduct in reference to this matter. Suppose this case: a party who has a private right in question submits to the same tribunal in the same proceeding these questions: first, I deny the constitutionality of the law under which the right is claimed against me; second, I assert that the true interpretation of that law will not affect this right which is claimed against me; third, I insist that, even if it is within the law, I make a case within the law — is there any inconsist- ency in that? Is not that done every day, or something analogous to it, in courts of justice? And where was the inconsistency on this occa- sion? Suppose the President had summed up the message which he sent to the Senate inthis way: "Gentlemen of the Senate, I insist, in the first place, that this law is unconstitutional; I insist, in the second place, that Mr. Stanton is not within it; I respectfully submit for your consideration whether, if it be a constitutional law and Mr. Stanton's case be within it, the facts which I present to you do not make such a case that you will not advise me to receive him back into office." Suppose he had summed up in that way, would there have been any inconsistency then? And why is not the substance of that found in this message? Here it is pointed out that the question existed whether the law was unconstitutional; here j£.is pointed out that the question existed whether Mjj. Stanton was within the law; and then the President goes on to submit for the consideration of the Sen- ate, whom he had reason to believe, and did believe, thought the law was constitutional, though he had no reason to believe that they thought Mr. Stanton was within the law, the facts to be acted upon within the law, if the case was there. It seems the President has not only been thus anxious to avoid a collision with this law ; he has not only on this occasion taken this means to avoid it, but it seems that he has actually in some particulars obeyed the. law; he has made changes in the commissions, or rather they have been made in the departments, and, as he has signed the commissions, I sup- pose they must be taken, although his atten- tion does not appear to have been called to the subject at all, to have been made with his sanc- tion, just so far, and because he sanctions that which is done by his Secretaries, if he does not interfere actively to prevent it. He has done not merely this, but he has also in several cases — four cases, three collectors and one consul, I think they are — sent into the Senate notice of suspension, notice that he had acted under this law and suspended these officers. This objection proceeds upon an en- tire misapprehension of the position of the President and of the views which he has of his own duty. It assumes that because, when the emergency comes, as it did come in the case of Mr. Stanton, when he must act or else abandon a power which he finds in the partic- ular instance it is necessary for him to insist upon in order to carry on the Government; that, because he holds that opinion he must run a muck against the law, and take every possible opportunity to give it a blow, if he can. He holds no such opinion. So long as it is a question of administrative duty merely he holds that he is bound to obey the law. It is only when the emergency arises, when the question is put to him so that he must answer it, " Can you carry on this department of the Government any longer in this way?" ' ' No. " " Have you power to carry it on as the public service demands?" "Ibelieve I have." Then comes the question how he shall act. But whether a consul is to be suspended or removed, whether a defaulting collector is to be suspended or removed, does not involve the execution of the great powers of the Government. It may be carried on ; he may be of opinion with less advantage ; he may be of opinion not in accord- ance with the requirements of the Constitution, 130 SUPPLEMENT TO but it may be carried on without serious embar- rassment or difficulty. Until that question is settled he does not find it necessary to make it — settled in some way, by some person who has an interest to raise and have it settled. I wish to observe, also, (the correctness of which observation I think the Senate will agree with) that these changes which have been made in the forms of the commissions really have nothing to do with this subject ; for instance, the change is made in the Depart- ment of State, " subject to the conditions pre- scribed by law." That is the tenure on which I think all commissions should originally have run, and ought to continue to run. It is gen- eral enough to embrace all. If it is a con- dition prescribed by law that the Senate must consent to the removal of the incumbent be- fore he is rightfully out of office, it covers that case. If the tenure-of-office bill be not a law of the land because it is not in accordance with the Constitution, it covers that case. It covers every case necessarily from its terms, for every officer does, and should, and must hold sub- ject to the conditions prescribed by law — not necessarily a law of Congress, but a law of the land — the Constitution being supreme in that particular. There is another observation, also, and that is, that the change that was made in the De- partment of the Treasury — "until a successor be appointed and qualified" — has manifestly nothing whatever to do with the subject of re- moval. Whether the power of removal be vested in the President alone, or vested in the President by-$nd with the advice and consent of the Senate, this clause does not touch it. It is just as inconsistent with removal by the President with the consent of the Senate as it is inconsistent with the removal by the Pres- ident alone. In other words, it is the general tenure of the office which is described, accord- ing to which the officer is to continue to hold ; but he and all other officers hold subject to some power of removal vested somewhere, and this change which has been made in the com- mission does not declare where it is vested, nor has it any influence on the question in whom it is vested. I wish to add to this, that there is nothing, so far as I see, on this subject of estoppel, growing out of the action of the President, either in sending the message to the Senate of the 12th of December, or in the changes in the commissions, or in his sending to the Sen- ate notices of suspensions of different officers, which has any bearing whatever upon the tenure-of-office act as affecting the case of Mr. Stanton. That is a case that stands by itself. The law may be a constitutional law ; it may not only be a law under which the President has acted in this instance, but under which he is bound to act, and is willing to act, if yoa please, in every instance ; still, if Mr. Stanton is not within that law, the case remains as it was originally presented, and that case is, that, not being within that law, the first article is entirely without foundation. I now, Mr. Chief Justice, have arrived at a point in my argument when, if it be within the pleasure of the Senate to allow me to suspend it, it will be a boon to me to do so. I am un- accustomed to speak in so large a room, and it is fatiguing to me. Still, I would not tres- pass at all upon the wishes of the Senate if they desire me to proceed further. Mr. JOHNSON. I move that the court adjourn until to-morrow at twelve o'clock. The motion was agreed to ; and the Sen- ate, sitting for the trial of the impeachment, adjourned. Friday, April 10, 1868. The Chief Justice of the United States entered the Senate Chamber at twelve o'clock and took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives appeared and took the seats assigned them. The counsel for the respondent also appeared and took their seats. The presence of the House of Representa- tives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. Washburne, the chair- man of that committee, and accompanied by the Speaker and Clerk, entered the Senate Chamber, and were conducted to the seats pro- vided for them. The CHIEF JUSTICE. The Secretary will read the minutes of the last day's proceed- ings. The Secretary read the Journal of yester- day's proceedings of the Senate sitting forthe trial of the impeachment. The CHIEF JUSTICE. Senators will please to give their attention. The counsel for the President will proceed with the argument. Mr. CURTIS. Mr. Chief Justice and Sen- ators, among the points which I accidentally omitted to notice yesterday, was one which seems to me of sufficient importance to return, and for a few moments to ask the attention of the Senate to it. It will best be exhibited by reading from Saturday's proceedings a short passage. In the course of those proceedings Mr. Manager Butlek said : "It will be seen, therefore, Mr. President and Sen- ators, that the President of the United States saysih his answer that he suspended Mr. Stanton under the Constitution, indefinitely and at his pleasure. I pro- pose, now, unless it be objected to, to show that that is false under his own hand, and I have his letter to that effect, which, if there is no objection, I will read, the signaturo of which was identified by C. B. Creecy." Then followed the reading of the letter, which was this : Executive Mansion, Washington, D. C, August 14, 1867. Sir: In compliance with the requirements of the eighth section of the act of Congress of March 2, 1867, entitled "An act regulating the tenure of cer- tain civil offices," you are hereby notified that on" the 12th instant Hon. Edwin M. Stanton was suspended from office as Secretary of War and General Ulysses S. Grant authorized and empowed to act as Secre- tary of War ad interim. I am, sir, very respectfully, yours, ANDREW JOHNSON. This is the letter which was to show, under the hand of the President, that when he said in his answer he did not suspend Mr. Stanton by virtue of the tenure-of-office act that state- ment was a falsehood. Allow me now to read the eighth section of that act: "That whenever the President shall, without the advice and consent of the Senate, designate, author- ize, or employ any person to perform the duties of any office he shall forthwith notify the Secretary of the Treasury thereof; and it shall be the duty of the Secretary of thoTreasury thereupon to communicate such notice to all the proper accounting and disburs- ing officers of his Department." The Senate will perceive that this section has nothing to do with the suspension of an officer and no description of what suspensions are to take place ; but the purpose of the sec- tion is that if in any case the' President, with- out the advice and consent of the Senate, shall, under any circumstances, designate a third person to perform temporarily the duties of an office he is to make a report of that designa- tion to the Secretary of the Treasury, and that officer is to give the necessary information of the event to his subordinate officers. The sec- tion applies in terms to and includes all cases. It applies to and includes cases of designation on account of sickness or absence or resigna- tion or any cause of vacancy, whether tempo- rary or permanent, and whether occurring by reason of a suspension or of a removal from office. And, therefore, when the President says to the Secretary of the Treasury, "I give you notice that I have designated General Thomas to perform the duties ad interim of Secretary of War," he makes no allusion, by force of that letter, to the manner in which that vacancy has occurred or the authority by which it has been created ; and hence, instead of this letter showing, under the President's own hand, that he had stated a falsehood, it has no reference to the subject-matter of the power or the occasion of Mr. Stanton's re- moval. Mr. Manager BUTLER. Read the second section, please ; the first clause of it. Mr. CURTIS. What did the Manager call Mr. Manager BUTLER. Read the first clause of the second section of the act, which says that in no other case except when he sus- pends shall he appoint. Mr. CURTIS. The second section provides: " That when any officer appointed as aforesaid, excepting judges of the United States courts shall, during a recess of the Senate, be shown by satisfac- tory evidence," &c. The President is allowed to» suspend such an officer. Now, the President states in his an- swer that he did not act under that section. Mr. Manager BUTLER. That is not read- ing the section. That is not what I desired. Mr. CURTIS. I am aware that is not read- ing the section, Mr. Manager. You need not point that out. It is a very long section, and I do not propose to read it. Mr. Manager BUTLER. The first half a dozen lines. Mr. CURTIS. This section authorizes the President to suspend in cases of crime and other cases which are described in this section. By force of it the President may suspend an officer. This eighth section applies to all cases of temporary designations and appointments, whether resulting from suspensions under the second section, whether arising from tempo- rary absence or sickness or death or resigna- tion; no matter what the cause may be, il for any reason there is a temporary designation of a person to supply an office ad intenm notice is to be given to the Secretary of the Treasury ; and therefore I repeat, Senators, that the sub- ject-matter of this eighth section and the letter which the President wrote in consequence of it has no reference to the question under what authority he suspended Mr. Stanton. I now ask the attention of the Senate to the second article in the series; and I will begin as I began before, by stating what the sub- stance of this article is, what allegations it makes, so as to be the subjects of proof, and then the Senate will be prepared to see how far each one of these allegations is supported by what is already in the case, and 1 shall be enabled to state what we propose to offer by way of proof in respect to each of them. The substantive allegations of this second article are that the delivery of the letter of authority to General Thomas was without authority of law; that it was an intentional violation of the tenure-of-office act; that it was an intentional violation of the Constitution of the Uuited States ; that the delivery of this order to Gen- eral Thomas was made with intent to violate both that act and the Constitution of the Uni- ted States. That is the substance of the sec- ond article. The Senate will at once perceive that if the suspension of Mr. Stanton was not a violation of the tenure-of-office act in point of fact, or, to state it in other terms, if the case of Mr. Stanton 4s not within the act, then his removal, if he had been removed, could not be a violation of the act. If his case is not within the act at all, if the act does not apply to the case of Mr, Stanton, of course his removal is not a violation of that act. If Mr. Stanton continued to hold under the commission which he received from Presi- dent Lincoln, and his tenure continued to be under the act of 1789, and under his only com- mission, which was at the pleasure of the Presi- dent, it was no violation of the tenure- of-otiice act for Mr. Johnson to remove, or attempt to remove, Mr. Stanton ; and therefore the Senate will perceive that it is necessary to come back again, to recur under this article, as it will be necessary to recur under the whole of the first eight articles, to the inquiries, first, whether Mr. Stanton's case was within the tenure-of-office act; and secondly, whether it was so clearly and plainly within that act that it can be at- tributed to the President as a high misdemeanor that he construed it not to include his case. But suppose the case of Mr. Stanton is within the tenure-of-office act, still the inquiry arises, THE CONGRESSIONAL GLOBE. 131 whether what was done in delivering this letter of authority to General Thomas was a violation of that act ; and that renders it necessary that I should ask your careful attention to the gen- eral subjects-matter of this act and the partic- ular provisions which are inserted in it in reference to each of those subjects. Senators will recollect undoubtedly that this law, as it was finally passed, differs from the bill as it was originally introduced. The law relates to two distinct subjects. One is re- moval from office, the other subject is appoint- ments of a certain character made under cer- tain circumstances to fill offices. It seems that a practice had grown up under the Government that where a person was nominated to the Sen- ate to fill an office, and the Senate either did not act on his nomination during their session or rejected the nomination, after the adjourn- ment of the Senate and in the recess it was considered competent for the President by a temporary commission to appoint that same per- son to that same office ; and that was deemed by many Senators, unquestionably by a majority, and I should judge from reading the debates by a large majority of the Senate, to be an abuse of power — not an intentional abuse. But it was a practice which had prevailed under the Government to a very considerable extent. It was not limited to very recent times. It had been supported by the opinions of differ- ent Attorneys General given to different Presi- dents. But still it was considered by many Senators to be a departure from the spirit of the Constitution, and a substantial derogation from the just power of the Senate in respect to nominations for office. That being so, it will be found on an examination of this lawthatthe first and second sections of the act relate ex- clusively to removals from office and temporary suspensions in the recess of the Senate ; while the third section and several of the following sections, to which I shall ask your particular attention, relate exclusively to this other sub- ject of appointments made to office after the Senate had refused to concur in the nomina- tion of the person appointed. Allow me now to read from the third section : "That the President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation" — I pause here to remark that this does not include all cases. It does not include any case of the expiration of a commission. It includes simply death and resignation, not cases of the expiration of a commission during the recess of the Senate. Why these were thus omitted I do not know ; but it is manifest that the law does not affect to, and in point of fact does not, cover all cases which might arise belong- ing to this general class to which this section was designed to refer. The law goes on to say — "That the President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session thereafter. And if no appoint- ment, by and with the. advice and consent of the Senate, shall be made to such office so vacant or tem- porarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emoluments attached thereto, until thesameshall be filled by appointment thereto, by and with the advice and consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other pfficer'as may by law exercise such powers and duties in case of a vacancy in such office." Here all the described vacancies in office occurring during the recess of the Senate and tlje failure to fill those vacancies in accord- ance with the advice of the Senate are treated as occasioning an abeyance of such offices. That applies, as I have said, to two classes of cases, vacancies happening by reason of death or resignation. It does not apply to any other vacancies. The next section of this law does not relate to this subject of filling offices, but to the sub- ject of removals : "That nothing in this act contained shall be con- strued to extend the term of any office the duration of which is limited by law." The fifth section is : "That if any person shall, contrary to the provis- ions of this act, accept any appointment to or em- ployment in any office, or shall hold or exercise, or attempt to hold or exercise, any such office or em- ployment, ho shall be deemed, and is herebydeolared to be, guilty of a high misdemeanor, and, upon trial and conviction thereof, he shall be punished there- for by a fine not exceeding $10,000, or by imprison- ment," &e. Any person who shall, " contrary to the pro- visions of this act," accept any appointment. What are the "provisions of this act" in respect to accepting any appointment? They are found in the third section of the act put- ting certain offices in abeyance under the cir- cumstances which are described in that sec- tion. If any person does accept an office which is thus put into abeyance, or any employment or authority in respect to such office, he comes within the penal provisions of the fifth section ; but outside of that there is no such thing as accepting an office contrary to the provisions of the act, because the provisions of the act, in respect to filling offices, extend no further than to these cases ; and so, in the next sec- tion, it is declared : " That every removal, appointment, or employ- ment made, had, or exercised contrary to the pro- visions of this act, and the making, signing, scaling, countersigning, or issuing of any commission or let- ter of authority for or in respect to any such appoint- ment or employment, shall be deemed, and are hereby declared to be, high misdemeanors," &c. Here, again, the making of a letter of authority, contrary to the provisions of the act, can refer only to those cases which the act itself has described, which the act itself has prohibited ; and any other cases which are outside of such prohibition, as this case mani- festly is, do not come within its provisions. The stress of this article, however, does not seem to me to depend at all upon this question of the construction of this law, but upon a totally different matter, which I agree should be fairly and carefully considered. The im- portant allegation of the article is that this letter of authority was given to General Thomas enabling him to perform the duties of Secretary of War ad interim without authority of law j that I conceive to be the main inquiry which arises under this article, provided the case of Mr. Stanton and his removal are within the tenure-of-office bill at all. I wish first to bring to the attention of the Senate the act of 1795, which is found in 1 Statutes-at-Large, page 415. It is a short act, and I will read the whole of it : "That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secre- tary of the Department of War, or of any officer of either of the said Departments, whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective-offices until a successor be appointed or such vacancy be filled: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months." This act, it has been suggested, may have been repealed by the act of h ebruary 20, 1863, which is found in 12 Statutes-at-Large, pages 656. This also is a short act, and I will tres- pass on the patience of the Senate by reading'it : " That in case of the death, resignation, absence fromtheseat of Government, or sickness of the head of any executive Department of the Government, or of any officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their re- spective offices, it shall be lawful for the President of the United States, in case he shall think it neces- sary, to authorize the head of any other executive Department, or other officer in eitherof said Depart- ments whose appointmentisvestedinthePresident, at his discretion, to perform tho duties of th« said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease : Provided, That no one vacancy shall be sup- plied in manner aforesaid for a longer term than six months." These acts, as the Senate will perceive, al- though they may be said in some sense to relate to the same general subject-matter, con- tain very different provisions, and the later law contains no express repeal of the other. If, therefore, the later law operates as a repeal, it is only as a repeal by implication. It says in terms that " all acts and parts of acts incon- sistent with this act are hereby repealed." That a general principle of law would say if the statute did not speak those words. The addition of those words adds nothing to its re- pealing power. The same inquiry arises under them that would arise if they did not exist, namely, how far is this later law inconsistent with the provisions of the earlier law ? There are certain rules which I shall not fatigue the Senate by citing cases to prove, because every lawyer will recognize them as settled rules upon this subject. In the first place there is a rule that repeals by implication are not favored by the courts. This is, as I understand it, because the courts act on the assumption or the principle that if the Legislature really intended to repeal the law they would have said so ; not that they necessarily must say so, because there are re- peals by implication ; but the presumption is that if the Legislature entertained a clear and fixed purpose to repeal a former law they would be likely at least to have said so ; and, therefore, the rule is a settled one that repeals by implication are not favored by the courts. Another rule is that the repugnancy between the two statutes must be clear. It is not enough that under some circumstances one may pos- sibly be repugnant to the other. The repug- nancy, as the language of the books is, be- tween the two must be clear, and if the two laws can stand together the . latter does not impliedly repeal the former. If Senators have any desire to recur to the authorities on this subject, they will find a sufficient number of them collected in Sedgwick on Statute Law, page 126. Now, there is no repugnancy whatsoever between these two laws that I can perceive. The act of 1795 applies to all vacancies, how- ever created. The act of 1863 applies only to vacancies, temporary or otherwise, occasioned by death a-nd resignation ; removals from office, expiration of commissions, are not included. The act of 1795 applies only to vacancies ; the act of 1863 to temporary absences or sickness. The subject-matter, therefore, of the law is different; there is no inconsistency between them; each may stand together and operate upon the cases to which each applies; and therefore I submit that, in the strictest view which may ultimately be taken of this subject, it is not practicable to maintain that the later law here repealed altogether the act of 1795. But, whether it did or not, I state again what I have had so often occasion to repeat before, is it not a fair question, is it a crime to be on one side of that question and not on the other? Is it a high misdemeanor to believe that a cer- tain view taken of the repeal of this earlier law by the later one is a sound view? I submit that that would be altogether too stringent a rule even for the honorable Managers them- selves to contend for; and they do not, and the House of Representatives does not, contend for any such rule. Their article alleges as matter of fact that there was a willful intention on the part of the President to issue this letter to General Thomas without authority of law ; not on mistaken judgment, not upon an opinion which, after due consideration, lawyers might differ about; but by reason of a willful inten- tion to act without authority ; and that, 1 sub- mit, from the nature of the case, cannot be made out. The next allegation in this article to which I desire to iuvite the attention of the Senate isj that the giving of this letter to General Thomas during the session of the Senate was a viola- tion of the Constitution of the United States. That will require your attentive consideration. The Constitution, as you are well aware, has provided for two modes of filling offices. The one is by temporary commissions during the recess of the Senate when the vacancy hap- pens in the recess ; the other is by appoint- ment with the advice and consent of the Sen- ate, followed by a commission from the Presi- dent ; but it very early became apparent to those who administered tho Government that 132 SUPPLEMENT TO cases must occur to which neither of those modes dictated by the Constitution would be applica- ble, but which must be provided for ; cases of temporary absence of the head of a Depart- ment the business of which, especially during the session of Congress, must, for the public interest, continue to be administered ; cases of sickness, cases of resignation or removal, for the power of removal, at any rate in that day, was held to be in the President; cases of resignation or removal in reference to which the President was not, owing to the sudden- ness of the occurrence, in a condition imme- diately to make a nomination to iill the office, or even to issue a commission to fill the office, if such vacancy occurred in vacation ; and therefore it became necessary by legislation to supply these administrative defects which ex- isted and were not provided for by the Consti- tution. And accordingly, beginning in 1792, there will be found to be a series of acts on this subject of filling vacancies by temporary or ad interim authority ; not appointments, not fill- ing vacancies in offices by a commission in the recess of the Senate, nor by a commission signed by the President in consequence of the advice and consent of the Senate ; but a mode of designating a particular person to perform temporarily the duties of some particular office which otherwise, before the office can be filled in accordance with the Constitution, would re- main unperformed. These acts are one of May 8, 1792, section 8, (1 Statutes-at- Large, p. 281;) Februaryl7, 1795,(1 Statutes-at-Large, p. 415 ;) and the last in February 20, 1863, (12 Statutes-at-Large, p. 656.) The Senate will observe what particular diffi- culty these laws were designed to meet. This difficulty was the occurrence of some sudden vacancy in office or some sudden inability to perforin the duties of an office ; and the inten- tion of each of these laws was, each being ap- plied to some particular class of cases, to make provision that notwithstanding there was a vacancy in the Office, or notwithstanding there was a temporary disability in the officer without a vacancy, still the duties of the office should be temporarily discharged. That was the pur- pose of these laws. It is entirely evident that these temporary vacancies are just as liable to occur during the session of the Senate as dur- ing the recess of the Senate; that it is just as necessary to have a set of legislative provisions to enable the President to carry on the public service in case of these vacancies and inabili- ties during the session of the Senate as during the recess of Senate ; and, accordingly, it will be found, by looking into these laws, that they make no distinction between the sessions of the Senate and the recesses of the Senate in ref- erencetothesetemporaryauthorities. " When- ever a vacancy shall occur" is the language of the law — "whenever there shall be a death or a resignation or an absence or a sickness." The law applies when the event occurs that the law contemplates as an emergency; and the particular time when it occurs is of no conse- quence in itself, and is deemed by the law of no consequence. In accordance with this view, Senators, has been the uniform and settled and frequent practice of the Government from its very earliest date, as I am instructed we shall prove, not in any one or two or few instances, but in great numbers of instances. That has been the practical construction put upon these laws from the time when the earliest law was passed in 1792, and it has continued down to this day. The honorable Managers themselves read a list a few days since of temporary appoint- ments during the session of the Senate of heads of Departments, which amounted in number, if I counted them accurately, to up ward of thirty ; and if you add to these the cases of officers below the heads of Depart- ments the number will be found, of course, to be much increased ; and, in the course of ex- hibiting this evidence, it will be found that, although the instances are not numerous, for they are not very likely to occur in practice, yet instances have occurred on all fours with the one which is now before the Senate, where there has been a removal or a suspension of an officer, sometimes one and sometimes the other, and the designation of a person has been made at the same time temporarily to discharge the duties of that office. The Senate will see that in practice such things must naturally occur. Take the case, for instance, of Mr. Floyd, which I alluded to yes- terday. Mr. Floyd went out of office. His chief clerk was aperson believed to be in sympathy with him and under his control. If the third section of the act of 1789 was allowed to op- erate the control of the office went into the hands of that clerk. The Senate was in ses- sion. The public safety did not permit the War Department to be left hi that predicament for one hour, if it could be avoided, and President Buchanan sent down to the Post Office De- partment and brought the Postmaster General to the War Department, and put it in his charge. There was then in this body a sufficient num- ber of persons to look after that matter ; they felt an interest in it ; and consequently they passed a resolve inquiring of President Bu- chanan by what authority he had made an appointment of a person to take charge of the War Department without their consent, without a nomination to them, and their advising and consent to it; to which a message was sent in answer containing the facts on this subject, and showing to the Senate of that day the propri- ety, the necessity, and the long-continued prac- tice under which this authority was exercised by him ; and giving a schedule running through the time of General Jackson and his two im- mediate successors, I think, showing great num- bers of ad interim appointments of this char- acter, and to those, as I have said, we shall add a very considerable number of others. I submit, then, that there can be no ground whatever for the allegation that this ad interim appointment was a violation of the Constitu- tion of the United States. The legislation of Congress is a sufficient answer to that charge. I pass, therefore, to the next article which I wish to consider, and that is not the next in number, but the eighth ; and I take it in this order because the eighth article, as I have an- alyzed it, differs from the second only in one particular ; and therefore, taking that in con- nection with the second, of which I have just been speaking, it will be necessary for me to say but a very few words concerning it. It charges an attempt unlawfully to control the appropriations made by Congress for the military service, and that is all there is in it except what is in the second article. Upon that, certainly, at this stage of the case, I do not deem it necess vry to make any observations. The Senate will remember the offer of proof on the part of the Managers de- signed, as was stated, to connect the President of the United States, through his Private Sec- retary, with the Treasury, and thus enable him to use unlawfully appropriations made for the military service. The Senate will recollect the fate of that offer, and that the evidence was not received ; and therefore it seems to me quite unnecessary for me to pause to com- ment any further upon this eighth article. I advance to the third article, and here the allegations are, that the President appointed General Thomas ; second, that he did this without the advice and consent of the Senate ; third, that he did it when no vacancy had hap- pened in the recess of the Senate ; fourth, that he did it when there was no vacancy at the time of the appointment ; and fifth, that he committed a high misdemeanor by thus inten- tionally violating the Constitution of the Uni- ted Slates. I desire to say a word or two upon each of these points ; and first we deny that he ever appointed General Thomas to an office. An appointment can be made to an office only by the advice and consent of the Senate, and through a commission signed by the President, and bearing the great seal of the Government. That is the only mode in which the appoint- ment can be made. The President, as I have said, may temporarily.commission officerswhen vacancies occur during the recess of the Sen- ate. That is not an appointment. It is not so termed in the Constitution. A clear distinc- tion is drawn between the two. The Presi- dent also may, under the acts of 1795 and 1863, designate persons who shall temporarily exercise the authority and perform the duties of a certain office when there is a vacancy; but that is not an appointment. The office is not filled by such a designation. Now, all which the President did was to issue a letter of authority to General Thomas, authorizing him ad interim to perform the duties of Sec- retary of War. In no sense was this an ap- pointment. It is said it was made without the advice and consent of the Senate. Certainly it was. How can the advice and consent of the Senate be obtained to an ad interim authority of this kind under any of these acts of Congress? It is not an appointment that is in view. It is to supply temporarily a defect in the administra- tive machinery of the Government. If he had gone to the Senate for their advice and consent he must have gone on a nomination made by him of General Thomas to this office, a thing he never intended to do, and never made any attempt to carry into effect. It is said no vacancy happened in the recess. That I have already considered. Temporary appointments are not limited to the temporary supply of vacancies happening in the recess of the Senate, as I have already endeavored to show. It is said there was no vacancy at the time the act was done. That is begging the ques- tion. If Mr. Stanton's case was not within the tenure-of-office act, if, as I have so often repeated, he held under the act of 1789, and at the pleasure of the President, the moment he received that order which General Thomas carried to him there was a vacancy in point of law, however he may have refused to per- form his duty and prevented a vacancy from occurring in point of fact. But the Senate will perceive these two letters were to be de- livered to General Thomas at the same time. One of them is an order to Mr. Stanton to vacate the office ; the other is a direction to General Thomas to take possession when Mr. Stanton obeys the order thus given. Now, may not the President of the United States issue a letter of authority in contemplation that a vacancy is about to occur ? Is he bound to take a technical view of this subject, and have the order creating the vacancy first sent and delivered, and then sit down at his table and sign the letter of authority afterward? If he expects a vacancy, if he has done an act which in his judgment ,is sufficient to create a vacancy, may he not, in contemplation that that vacancy is to happen, sign the necessary paper to give the temporary authority to carry on the duties of the office? Last of all, it is said he committed a high misdemeanor by intentionally violating the Constitution of the United States when he gave General Thomas this letter of authority. If I have been successful in the argument I have already addressed to you you will be of opinion that in point of fact there was no vio- lation of the Constitution of the United States by delivering this letter of authority, because the Constitution of the United States makes no provision on the subject of these temporary authorities, and the law of Congress has made provision equally applicable to the recess of the Senate and to its session. Here, also, I beg leave to remind the Senate that if Mr. Stanton's case does not fall within the tenure-of-office act, if the order which the President gave to him to vacate the offico was a lawful order and one which he was bound to obey, everything which is contained in this article, as well as in the preceding articles, fails. It is impossible, I submit, for the hon- orable Managers to construct a case of an intention on the part of the President to vio- late the Constitution of the United States out of anything which he did in reference to the THE CONGRESSIONAL GLOBE. 133 appointment of General Thomas, provided the order to Mr. Stanton was a lawful order and Mr. Stanton was bound to obey it. I advance now, Senators, to a different class of articles, and they may properly enough, 1 suppose, be called the conspiracy articles, because they rest upon eharges of conspiracy between the President and General Thomas. There are four of them, the fourth, fifth, sixth, and seventh in number as they stand. The fourth and the sixth are framed under the act of July 31, 1801, which is found in 12 Statutes- nt-Large, page 284. The fifth and seventh are framed under no act of Congress. They allege an unlawful conspiracy, but they refer to no law by which the acts charged are made unlawful. The acts charged are called unlawful, but there is no law referred to and no case made by thearti- cles within any law of the United States that is known to the President's counsel. I shall treat these articles, therefore, the fourth and sixth together, and the fifth and seventh to- gether, because I think they belong in that order. In the first place, let me cousider the fourth and sixth, which charge a conspiracy within this act which I have just mentioned. It is necessary for me to read the substance of this law in order that you may see whether it can have any possible application to this case. It was passed on the 31st of July, 1861, as a war measure, and is entitled, " An act to define and punish certain conspiracies." It provides — " That if two or more persons within any State or Territory of the United States shall conspiro to- gether to overthrow or to put down or to destroy by force the Government of the United States, or to levy war against the United States, or to oppose by force the authority of the Government of the United States; or by force to proven t,hinder, or delay the execution of any law of the United States; or by force to seize, take, or possess any property of the United States against the will or contrary to the authority of the United States; or by force, or in- timidation, or threat to prevent any person from accepting or holding any^ office or trust or place of confidence under the United States." These are the descriptions of the offenses. Th*e fourth and sixth articles contain allega- tions that the President and General Thomas conspired together by forcej intimidation, and threats to prevent Mr. Stanton from continu- ing to hold the office of Secretary for the De- partment of War ; and also that they conspired together by force to obtain possession of prop- erty belonging to the United States. These are the two articles which I suppose are de- signed to be drawn under this act ; and these are the allegations which are intended to bring the articles within it. Now, it does seem to me that the attempt to wrest this law to any bearing whatsoever upon .this prosecution is one of the extraordinary things which the case contains. In the first place, so far from having been designed to ap- ply to the President of the United States or to any act he might do in the course of the execu- tion of what he believed to be his duty, it does not apply to any man or any thing within the District of Columbia at all. "If two or more persons within any State or Terri- tory of the United States." Not.within the District of Columbia. This is a highly penal law, and an indictment, found in the very words of this act charging things to have been in. the District of Columbia and returned into the proper court of this District, I will undertake to say, would not bear a gen- eral demurrer, because there is locality given to those things made penal by this act of Con- gress. It is made applicable to certain portions of the country, but not made applicable to the District of Columbia. But not to dwell upon that technical view of the matter, and on which we should not choose to stand, let us see what is this case.. The President of the United States is of opin- ion that Mr. Stanton holds the office of Secre- tary for the Department of War at hispleasure. He thinks so, first, because he believes the case of Mr. Stanton is not provided for in the tenure-of-office act, and no tenure of office is secured to him. He thinks so, secondly, be- cause he believes that it would be judicially decided, if the question could be raised, that a law depriving the President of the power of removing such an officer at his pleasure is not a constitutional law. He is of opinion that in this case he cannot allow this officer to con- tinue to act as his adviser and as his agent to execute the laws if he has lawful power to re- move him ; and under these circumstances he gives this order to General Thomas. I do not view this letter of authority to Gen- eral Thomas as a purely military order. The service which General Thomas was invoked for is a civil service ; but, at the same time, Senators will perceive that the person who gave the order is the Commander-in-Chief of the Army ; that the person to whom it was given is the Adjutant General of the Army ; that the subject-matter to which the order re- lates is the performance of services essential to carry on the military service ; and, there- fore, when such an order was given by the Commander-in-Chief to the Adjutant General respecting a.subject of this kind, is it too much to say -that there was invoked that spirit of mili- tary obedience which constitutes the strength of the service? Not that it was a purely mil- itary order; not that General Thomas would have been subject to a court-martial for dis- obeying it ; but that as a faithful Adjutant General of the Army of the United States, interested personally and professionally and patriotically to have the duties of the office of Secretary for the Department of War performed in a temporary vacancy, was it not his duty to accept the appointment unless he saw and knew that it was unlawful to accept it? I do not know how, in fact, he personally consid- ered it; there has been no proof given on the subject ; but I have always assumed — I think Senators will assume — that when the distin- guished General of the Army of the United States, on a previous occasion, accepted a sim- ilar appointment, it was under views of propri- ety and duty such as those which I have now been speaking of ; and how and why is there to be attributed to General Thomas, as a cocon- spirator, the guilty intent of designing to over- throw the laws of his country, when a fair and just view of his conduct would leave him en- tirely without reproach ? And when you come, Senators, to the other coconspirator, the President of the United States, is not the case still clearer. Make it a -case of private right, if you please; put it as strongly as possible against the President in order to test the question. One of you has a claim to property ; it may be a disputed claim ; it is a claim which he believes may prove, when •judicially examined, to be sound and good. He says to AB, "Go to C D, who is in posses- sion of .that property ; I give you this order to him to give it up to you ; and if he gives it up take possession." Did. anybody ever imagine that that was a conspiracy ? Does not every lawyer know that the moment you introduce into any transaction of this kind the element of a claim of right all criminal elements are purged at once ; and that this is always true between man and man where it is a simple assertion of private right, the parties to which are at liberty either to assert them or forego them, as they please? But this was not such a case ; this was a case of public right, of pub- lic duty, of public right claimed upon consti- tutional grounds and upon the interpretation of the law which had been given to it by the law-makers themselves. How can the Presi- dent of the United States, under such circum- stances, be looked upon by anybody, whether he may or may not be guilty or not guilty of other things as a coconspirator under this act? These articles say that the conspiracy between the President and General Thomas was to em- ploy force, threats, intimidation. What they have proved against the President is that he issued these orders, and that alone. Now, on the face of these orders, there is. no apology for the assertion that it was the design of the President that anybody at any time should use force, threats, or intimidation. The order is to Mr. Stanton to deliver up possession. The order to General Thomas is to receive posses- sion from Mr. Stanton when he delivers it up. No force is assigned to him ; no authority is given to him to apply for or use any force, threats, or intimidation. There is not only no express authority, but there is no implication of any authority to apply for or obtain or use anything but the order which was given him to hand to Mr. Stanton ; and we shall offer proof, Senators, which we think cannot fail to be satisfactory in point of fact, that the Presi- dent from the first had in view simply and solely to test this question by the law ; that if this was a conspiracy it was a conspiracy to go to law, and that was the whole of it. We shall show you what advice the President re- ceived on this subject, what views in concert with his advisers he entertained, which, of course, it is not my province now to comment upon ; the evidence must first be adduced, then it will be time to consider it. The other two conspiracy articles will require very little observation from me, because they contain no new allegations of fact which are not in the fourth and sixth articles, which I have already adverted to ; and the only dis- tinction between them and the others is that they are not founded upon this conspiracy act of 1861 ; they simply allege an unlawful con- spiracy, and leave the matter there. They do not allege sufficient facts to bring the case within the act of 1861. In other words, they do not allege force, threats, or intimidation. 1 shall have occasion to remark upon these articles when I come to speak of the tenth ar- ticle, because these articles, as you perceive, come within that category which the honor- able Manager announced here at an early period of the trial; articles which require no law to support them ; and when I come to speak of the tenth article, as I shall have occasion to discuss this subject, I wish that my remarks, so far as they may be deemed applicable, should be applied to these fifth and seventh articles which I have thus passed over. I shall detain the Senate buta moment upon the ninth article, which is the one relating to the conversation with General Emory. The meaning of this article, as I read it, is that the President brought General Emory before him- self as Commander-in-Chief of the Army for the purpose of instructing him to disobey the law, with an intent to induce General Emory to disobey it, and with intent to enable himself unlawfully and by the use of military force through General Emory, to prevent Mr. Stan- ton from continuing to hold office. Now, I submit that, not only does this article fail of proof in its substance as thus detailed, but that it is disproved by the witness whom they have introduced to support it. In the first place, it appears clearly from General Emory's statement that the President did notbringhim there for any purpose connected with this appropriation bili affecting the command of the Army, or the orders given to the Army. This subject General Emory introduced him- self, and when the conversation was broken off it was again recurred to by himself asking the President's permission to bring it to his at- tention. Whatsoever was said upon that sub- ject was said not because the President of the United States had brought the commander of the department of Washington before him for that purpose, but because, having brought him there for another purpose, to which I shall allude in a moment, the commanding General chose himself to introduce that subject and converse upon it, and obtain the President's views upon it. In the next place, having his attention called to the act of Congress and to the order under it, the President expressed precisely the same opinion to General Emory that he had -pre- viously publicly expressed to Congress itself at the time when the act was sent to him for his signature ; and there is found set out in his answer on page 32 of the official report of these proceedings what that opinion was ; that he considered that this provision interfered with Ilia constitutional right as the Commander-in- 134 SUPPLEMENT TO Chief of the Army ; and that is what he said to General Emory. There is not even prob- able cause to believe that he said it for any other than the natural reason that General Emory had introduced the subject, had asked leave to call his attention to it, and evidently expected and desired that the President should say some- thing on the subject ; and if he said anything was he not to tell the truth ? That is exactly what he did say. I mean the truth as he ap- prehended it. It will appear in proof, as I am instructed, that the reason why the President sent for General Emory was not that he might endeavor to seduce thai, distinguished officer from his allegiance to the laws and the Con- stitution of his country, but because he wished to obtain information about military movements which he was informed upon authority which he had a right to and was bound to respect might require his personal attention. I pass, then, from this article, as being one upon which I ought not to detain the Senate, and I come to the last one, concerning which I shall have much to say, and that is the tenth article, which is all of and concerning the speeches of the President. In the front of this inquiry the question pre- sents itself: What are impeachable offenses under the Constitution of the United States? Upon this question learned dissertations have been written and printed. One of them is annexed to the argument of the honorable Manager who opened the cause for the prose- eution. Another one on the other side of the question, written by one of the honorable Man- agers themselves, may be found annexed to the proceedings in the House of Representatives upon the occasion of the first attempt to im- peach the President. And there have been others written and published by learned jurists touching this subject. I do not propose to vex the ear of the Senate with any of the prece- dents drawn from the Middle Ages. The framers of our Constitution were quite as familiar with them as the learned authors of these treatises, and theframers of our Constitution, as I conceive, have drawn from them the les- son which I desire the Senate to receive, that these precedents are not fit to govern their conduct on this trial. In my apprehension, the teachings, the re- quirements, the prohibitions of the Constitu- tion of the United States prove all that is necessary to be attended to for the purposes of this trial. I propose, therefore, instead of a search through the precedents which were made in the times of the Plantagenets, the Tudors, and the Stuarts, and which have been repeated since, to come nearer home and see what provisions of the Constitution of the United States bearon this question, and whether they are not sufficient to settle it. If they are it is quite immaterial what exists elsewhere. My first position is, that when the Constitu- tion speaks of "treason, bribery, and other high crimes and misdemeanors" it refers to, and includes only, high criminal offenses against, the United States, made so by some law of the United States existing when the acts com- plained of were done ; and I say that this is plainly to be inferred from' each and every pro- vision of the Constitution on the subject of impeachment. ■'Treason" and "bribery." Nobody will doubt that these are here designated high crimes and misdemeanors against the United States, made such by the laws of the United States, which the framers of the Constitu- tion knew must bo passed in the nature of the Government they were about to create, be- cause these are offenses which strike at the exixtence of that Government — "other high crimes and misdemeanors." Noscitur a sociis. High crimes and misdemeanors ; so high that they belong in this company with treason and bribery. That is plain on the face of the Con- stitution ; in the very first step it takes on the subject of impeachment. " High crimes and misdemeanors" against what law ? There can be no crime, there can be no misdemeanor without a law, written or unwritten, express or implied. There must be some law ; other- wise there is no crime. My interpretation of it is that the language "high crimes and mis- demeanors" means "offenses against the laws of the United States." Let us see if the Con- stitution has not said so. The first clause of the second section of the second article of the Constitution reads thus : "The President of the United States shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." " Offenses against the United States " would include " cases of impeachment," and they might be pardoned by the President if they were not excepted. Then cases of impeachment are, according to the express declaration of the Constitution itself, cases of offenses against the United States. Still, the learned Manager says that this is not a court, and that, whatever may be the character of this body, it is bound by no law. Very different was the understanding of the fathers of the Constitution on this subject. Mr. Manager BUTLER. Will you state where it was I said it was bound by no law? Mr. STANBERY. " A law unto itself." Mr. Manager BUTLER. "No common or statute law ' ' was my language. Mr. CURTIS. I desire to refer to the sixty- fourth number of the Federalist, which is found in Dawson's edition, on page 453: "The remaining: powers which the plan of the Convention allots to the Senate, in a distinct capa- city, are comprised in their participation with the Ex- ecutive in the appointment to offices, and in their judicial character as a court for thetrialof impeach- ments, as in tho business of appointments theExecu- tive will be the principal agent, the provisions relat- ing to it will most properly be discussed in the examination of that department. Wewill therefore conclude this head with a view of the judicial character of tho Senate." And then it is discussed. The next position to which I desire the attention of the Senate is, that there is enough written in the Consti- tution to prove that this is a court in which a judicial trial is now being carried on. "The Senate of the United States shall have the sole powerto try all impeachments." "When the President is tried the Chief Justice shall preside." The trial of all crimes, except in case of impeachment, shall be by jury. This, then, is the trial of a crime. You are the triers, presided over by the Chief Justice of the United States in this particular case, and that on the express words Of the Constitution. There is also, according to its express words, to be an acquittal or a conviction on this trial for a crime. "No person shall be convicted without the concurrence of two thirds of the members present." There is also to be a judgment in case there shall be a conyiction. "Judgment in cases of impeachment shall not ex- tend further than removal from office and disquali- fication to hold any office of honor, trust, or profit under the United States." Here, then, there is the trial of a crime, a trial by a tribunal designated by the Constitu- tion in place of court and jury, a conviction, if guilt is proved, a judgment on that convic- tion, a punishment inflicted by the judgment for a crime ; and this on the express terms of the Constitution itself. And yet, say the honora- ble Managers, there is no court to try the crime and no law by which the act is to be judged. The honorable Manager interrupted me to say that he qualified that expression of no law ; his expression was "no common or statute law." Well, when you get out of that field you are in a limbo, a vacuum, so far as law is concerned, to the best of my knowledge and belief. I say, then, that it is impossible not to come to the conclusion that the Constitution of the United States has designated impeachable offenses as offenses against the United States, that it has provided for the trial of those offenses, that it has established a tribunal for the purpose of trying them, that it has directed the tribunal in case of conviction to pronounce a judgment upon the conviction and inflict a punishment. All this being provided for, can it be maintained that this is not a court, o that it is bound by no law? But the argument doeB not rest mainly I think, upon the provisions of the Constitu tion concerning impeachment. It is, at anj rate, vastly strengthened by the direct pro hibitions of the Constitution. " Congress shal pass no bill of attainder or ex post facto law." According to that prohibition of the Constitu- tion, if every member of this body sitting fn its legislative capacity and every member of the other body sitting in its legislative capacity, should unite in passing a law to punish an acl after the act was done, that law would be a mere nullity. Yet what is claimed by the hon- orable Managers in behalf of members of this body? As a Congress you cannot create a law to punish these acts if no law existed at the time they were done ; but sitting here as judges, not only after the fact but while the case is on trial, you may individually, each one of you, create a law by himself to govern the case. According to this assumption the same Con- stitution which has made it a bill of rights of the American citizen, not only as against Con- gress but as against the Legislature of every State in the Union, that no ex post facto law shall be passed — this same Constitution has erected you into a body and empowered every one of you to say aut inveniam aut faciam viam : if I cannot find a law I will make one. Nay, it has clothed every one of you with im- perial power ; it has enabled you to say, sic volo, sic jubeo, stat pro ratione voluntas : I am a law unto myself, by which law I shall govern this case. And, more than that, when each one of you before he took his place here called God to witness that he would ad- minister impartial justice in this case accord- ing to the Constitution and the laws, he meant such laws as he might make as ho went along. The Constitution, which had prohibited any- body from making such laws, he swore to ob- serve ; but he also swore to be governed by his own will ; his own individual will was the law which he thus swore to observe ; and this spe- cial provision of the Constitution that when the Senate sits in this capacity to try an im- peachment the Senators shall be on oath meant merely that they shall swear to follow their own individual wills ! I respectfully submit this view cannot consistently and properly be taken of the character of this body or of the duties and powers incumbent upon it. Look for a moment, if you please, to the other provision. This same search into the English precedents, so far from having made our ancestors who framed and adopted the Constitution in love with them, led them to put into the Constitution a positive and abso« lute prohibition against any bill of attainder. What is a bill of attainder? It is a case before the Parliament where the Parliament make the law for the facts they find. Each legislator (for it is in their legislative capa- city they act, not in a judicial one) is, to use the phrase of the honorable Managers, " a law unto himself;" and according to his discre- tion, his views of what is politic or proper under the circumstances, he frames a law to meet the case and enacts it or votes in its enactment. According to the doctrine now advanced bills of attainder are not prohibited by this Constitution; they are only slightly modified. It is only necessary for the House of Representatives by » majority to vote an impeachment and send up certain articles and have two thirds of this body vote in favor of conviction, and there is an attainder ; and it is done by the same process and depends on identically the same principles as a bill of attainder in the English Parliament. The individual wills of the legislators, instead of the conscientious discharge of the duty of the judges, settle the result. I submit, then. Senators, that this view of the honorable Managers of the duties and powers of this body cannot be maintained. But the attempt made by the honorable Man agers to obtain a conviction upon this tentl article is attended with some pecnliaritie: THE CONGRESSIONAL GLOBE. 135 which I think it ia the duty of the counsel to the President to advert to. So far as regards the preceding articles, the first eight articles are framed upon allegations that the President broke a law. I suppose the honorable Man- agers do not intend to carry their doctrine so far as to say that unless you find the President did intentionally break a law those articles are supported. As to those articles there is some law unquestionably, the very gist of the charge being that he broke a law. You must find that the law existed; you must construe it and apply it to the case ; you must find his crim- inal intent willfully to break the law, before the articles can be supported. But we come now to this tenth article, whioh depends upon no law at all, but, as I have said, is attended with some extraordinary peculiarities. The complaint is that the President made speeches against Congress. The true state- ment here would be much more restricted than that; for although in those speeches the Pres- ident used the word "Congress," undoubtedly he did not mean the entire constitutional body organized under the Constitution of the Uni- ted States ; he meant the dominant majority in Congress. Everybody so understood it; everybody must so understand it. But the complaint is that he made speeches against those who governed in Congress. Well, who are the grand jury in this case? One of the parties spoken against. And who are tire try- ers? The other party spoken against. One would think there was some incongruity in this ; some reason for giving pause before tak- ing any very great striae in that direction. The honorable House of Representatives sends its Managers here to take notice of what? That the House of Representatives has erected itself into a school of manners, selecting from its ranks those gentlemen whom it deems most competent by precept and example to teach decorum of speech ; and they desire the judg- ment of this Dody whether the President has not been guilty of indecorum, whether he has spoken properly, to use the phrase of the hon- orable Manager. Now, there used to be an old-fashioned notion that although there might be a difference of taste about oral speeches, and, no doubt, always has been and always will be many such differences, there was one very important test in reference to them, and that is whether they are true or false ; but it seems that in this case that is no test at all. The honorable Manager, in opening the case, finding, I suppose, that it was necessary, in some manner, to advert to that subject, has done it in terms which I will read to you : " The words are not alleged to be either false or defamatory, because it is not within the power of any man, however high his official position, in effect to slander the Congress of the United States, in the ordinary sense of that word, so as to oall on Con- gress to answer as to the truth of the accusation." Considering the nature of our Government, considering the experience which we have gone through on this subject, that is a pretty lofty claim. Why, if the Senate please, if you go back to the time of the Plantagenets and seek for precedents there, you will not find so lofty a claim as that. I beg leaVe to read from two statutes, the first being 3 Edward I, ch. 34, and the second 2 Richard II, ch. 1, a short passage. The statute, 3 Edward I, ch. 34, after the pre- amble, enacts — "That from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or tho great men of the realm ; and he that doeth so shall be taken and kept In until he hath brought him into CQurt which was the first author of the tale." The statute 2 Richard II, c. 1, s. 5, enacted with some alterations the previous statute. It commenced thus : "Of devisors of false news and of horrible and false lies of prelates, dukes, earls, barons, and other nobles and great men of the realm; and also of the chan- cellor, treasurer, clerk of tho privy seal, steward of the king's house, justices of the one bench or of the other, and of other great officers of the realm." The great men of the realm in the time of Richard II were protected only against "horri- ble and false lies," and when we arrive in the course. of our national experience during the waT with France and the administration of Mr. Adams to that attempt to check, not free speech, but free writing, Senators will find that although it applied only to written libels it contained an express section that the truth might be given in evidence. That was a law, as Senators know, making it penal by written libels to excite the hatred or contempt of the people against Congress among other offenses ; but the estimate of the elevation of Congress above the people was not so high but that it was thought proper to allow a defense of the truth to be given in evidence. I begleave to read from this sedition act a part of one section and make a reference to another to support the correctness of what I have said. It is found in Statutes- at-Large, page 596: " That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, utter- ing, or publishing any false, scandalous, and mali- cious writing or writings against tho Government of the United States, or cither'House of tho Congress of the United States, or the President of the United States, with intent to defame the said Government, or either House of tho said Congress, or the said Pres- ident, or to bring them, or either or any of them the hatred of tho good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein," &c. Section three provides — " That if any person shall be prosecuted under this act for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defense the truth of the matter contained in the publication charged as a libel. And the jury who shall try tho causeshall have a right to determine the law and the fact, under the direction of the court, as in other cases." In contrast with the views expressed here, I desire now to read from the fourth volume of Mr. Madison's works, pages 542 and 547, passages which, in my judgment, are as mas- terly as anything Mr. Madison ever wrote, upon the relations' of the Congress of the Uni- ted States to the people of the United States in contrast with the relations of the Govern- ment of Great Britain to the people of that island ; and the necessity which the nature of our Government lays us under to preserve freedom of the press and freedom of speech : "The essential difference between tho British Gov- ernment and the American Constitution will place this subjeot in the clearest light. "In tho British Government the danger of en- croachments on tho rights of the people is under- stood to be confined to tho Executive Magistrate. Tho Representatives of the people in the Legislature are only exempt themselves from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the Exec- utive. Hence it is a principle that tho Parliament is unlimited in its powor, or, in their own language, is omnipotent. Hence, too, all the ramparts for protect- ing the rights of the people— such as their Magna Charta, their Bill of Rights, &c— are not reared against the Parliament, but against the royal pre- rogative. They are merely legislative precautions against.Executive usurpations. Under such a Gov- ernment as this, an exemption of the press from pre- vious restraint, by licensors appointed by the king, is all the freedom that can bo secured to it. " In the United States the case is altogether differ- ent. The people, not tho Government, possess the absolute sovereignty. Tho Legislature, no less than tho Executive, is under limitations of power. En- croachments are regarded as possible from tho one as well as from the other. Hence, in the United States, the great and essential rights of the 4 people are secured against legislative as well as against ex- ecutive ambition. They are secured, not. by laws paramount to prerogative, but by constitutions par- amount to laws. This security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, as in Great Britain, but from legislative restraint also ; and this exemption, to be effectual, must be an exemption not only from tho previous inspection of Hoenses, but from the subsequent penalty of laws." One other passage on page 547, which has an extraordinary application to the subject now before you : "1. The Constitution supposes that the President, the Congress, and each of its Houses may not dis- charge their trusts, either from defect of judgment or other causes. Hence they are all made responsi- ble to their constituents at the returning periods of election; and the President, who is singly intrusted with very great powers, is, as a further guard, sub- jected to an intermediate impeachment. "2. Should it happen, as the Constitution supposes it may happen, that either of these branches „of the Government may not have duly discharged its trust, it is natural and proper that, according to the cause and degree of their faults, they_ should bo brought into contempt or disrepute, and incur the hatred of thepeoplo. "3. Whether it has, in any case, happened that the proceedings of either or all of those branches evince such a violation of duty as to justify a contempt, a disropute, or hatred among tho people, can only be determined by a free examination thereof, and a free communication among the people thereon. "4. Whenever it may have actually happened that proceedings of this sort are chargeable on all or either of the branches of the Government, it is the duty, as well as right, of intelligent and faithful citi- zens to discuss and promulge them freely, as well to control them by the censorship of the public opin- ion as to promote a remedy according to tho rules of the Constitution. And it cannot be avoided that those who are to apply tho remedymust feel, in some degree, a contempt or hatred against the transgress- ing party." These observations of Mr. Madison were made in respect to the freedom of the press. There were two views entertained at the time when the sedition law was passed concerning the power of Congress over this subject. The one view was that when the Constitution spoke of freedom of the press it referred to the com- mon-law definition of that freedom. That was the view which Mr. Madison was controverting in one of the passages which I have read to you. The other view was that the common- law definition could uot be deemed applicable, and that the freedom provided for by the Con- stitution, so far as the action of Congress was concerned, was an absolute freedom of the press. But no one ever imagined that freedom of speech, in contradistinction from written libel, could be restrained by a law of Congress ; for whether you treat the prohibition in the Constitution as absolute in itself or whether you refer to the common law for a definition of its limits and meaning the result will be the same. Under the common law no man was ever punished criminally for spoken words. If he slandered his neighbor and injured him, he must make good in damages to his neighbor the injury he had done ; but there was no such thing at the common law as an indictment for spoken words. So that this prohibition in the Constitution against any legislation by Con- gress in restraint of the freedom of speech is necessarily an absolute prohibition ; and there- fore this is a case not only where there is no law made prior to the act to punish the act, but a case where Congress is expressly pro- hibited from making any law to operate even on subsequent acts. What is the law to be ? Suppose it is, as the honorable Managers seem to think it should be, the sense of propriety of each Senator ap- pealed to. What is it to be ? The only rule I have heard — the only rule which can be an- nounced — is that you may require the speaker to speak properly. Who are to be the judges whether he speaks properly? In this case the Senate of the United States on the presentation of the House of Representatives of the United States ; and that is supposed to be the freedom of speech secured by this absolute prohibition of the Constitution. That is the same free- dom of speech, Senators, in consequence of which thousands of men went to the scaffold under the Tudors and the Stuarts. That is the same freedom of speech which caused thousands of heads of men and of womeu to roll from the guillotine in France. That is the same freedom of speech which has caused in our day more than once "order to reign in Warsaw." The persons did not speak prop- erly in the apprehension of the judges before whom they were brought. Is that the freedom of speech intended to be secured by our Con- stitution ? Mr. Chief Justice and Senators, I have to detain you but a very short time longer, and that is by a few observations concerning the eleventh article, and they will be very few, for the reason that the eleventh article, as I un- derstand it, contains nothing new which needs any notice from me. It appears by the official copy of the articles which is before us, the printed copy, that this article was adopted at a later period than the preceding nine articles, and I suppose it has that appearance, that the honorable Managers, looking over the work SUPPLEMENT TO they had already performed, perhaps not feel- ing perfectly satisfied to leave it in the shape in which it then stood, came to the conclusion to add this eleventh article, and they have com- pounded it out of the materials which they had previously worked up into the others. In the first place, they said, here are the speeches ; we will have something about them, and ac- cordingly they begin by the allegation that the President at the Executive Mansion, on a certain occasion, made a speech, and without giving his words, but it is attributed to him that he had an intention to declare that this was not a Congress within the meaning of the Constitution; all of which is denied in his answer, and there is no proof to support it. The President, by his whole course of conduct, has shown that he could have entertained no such intention as that. He has explained that fully in his answer, and I do not think it necessary to repeat the explanation. Then they come to the old matter of the removal of Mr. Stanton. They say he made this speech denying the competency of Con- gress to legislate, and following up its intent he endeavored to remove Mr. Stanton. I have sufficiently discussed that, and I shall not weary the patience of the Senate by doing so any further. Then they say that he made this speech and followed up its intent by endeavoring to get 1 possession of the money appropriated for the military service of the United States. I have said all I desire to say upon that. Then they say that he made it with the intent to obstruct what is called the law "for the bet- ter government of the rebel States," passed in March, 1867, and in support of that they have offered a telegram to hun from Governor Par- sons and an answer to that telegram from the President, upon the subject of an amendment of the Constitution, sent in January before the March when the law came into existence, and, so far as I know, that is the only evidence which they have offered upon that subject. I leave, therefore, with these remarks, that article for the consideration of the Senate. It must be unnecessary for me to say any- thing concerning the importance of this case, not only now but, in the future. It must be apparent to every one, in any way connected with or concerned in this trial, that this is and will be the most conspicuous instance which ever has been or can ever be expected to be found of American justice or American injustice, of that justice which Mr. Burke says is the great standing policy of all civilized States, or of that injustice which is sure to be discovered and which makes even the wise man mad, and which, in the fixed and immutable order of God's providence, is certain to return to plague its inventors. Mr. CONNESS, (at two o'clock and twenty minutes p. m.) Mr. President, I move that the court take a recess for fifteen minutes. The motion was agreed to ; and the Chief Justice resumed the chair at twenty-five min- utes to three o'clock. The CHIEF J DSTICE. Senators will please resume their seats and give their attention. Gentlemen of counsel for the President, you will please proceed with the defense. Mr. STANBERY. We will call General Thomas first. Lokekzo'Thomas sworn and examined. By Mr. Stanbeuy: Question. General Thomas, will you state how long you have been in the service? Answer. I went to West Point in the year 1819. I entered the Military Academy in Sep- tember of that year, and was graduated July 1, 1823, and appointed second lieutenant of the fourth infantry. I have been in the' Army since that date. Question. What is your present rank in the Army ? Answer. I am adjutant general of the Army, with the rank of brigadier general, and major general by brevet. Question. When was your brevet conferred ? Answer. I really forget. I would have to refer to the Army Register for that. Question. Can you recollect the year? Answer. Yes, sir; it was after I returned from one of my southern trips. Question. During the war? Answer. Yes, sir. Question. Toward the close of it? Answer. Toward the close of it. I was first made a colonel, as adjutant general, on the 7th of March, when Colonel Cooper went out. Question. When were you first appointed adjutant general? 'Answer. On the 7th of March, 1861. Question. On what service were you during the war, generally? Give us an idea of your service. Answer. During the administration of the War Department by General Cameron I was on duty as adjutant general in the office. I accompanied him on his western trip to Mis- souri and to Kentucky and returned'with him. Then, after that, after making that report, he left the Department, and Mr. Stanton was ap- pointed. I remained in the Department some time after Mr. Stanton was appointed, several months. The first duty he placed me on from the office — at any rate as one of the duties — he sent me down on the James river to make ex- changes of prisoners of war under the arrange- ment made'by General Dix with the rebels. Mr. Manager BUTLER. To what point is this evidence? Mr. STANBERY. To bring around the reason why there was the interruption in the Adjutant General's business, and how long it continued and when he returned. It will be through in a moment. [To witness.] What was the next service? Answer. During the war I was sent once or twice — three times, perhaps — to Harrisburgto organize volunteers' and to correct some irreg- ularities there ; not irregularities exactly, but in order to put regiments together, skeleton regiments. I was sent there and ordered to bring them together — once at Philadelphia and twice, at Harrisburg. I was sent to Harrisburg also about the time that Lee was invading Maryland and Pennsylvania; but my principal duty was down on the Mississippi river. Question. What was the duty there? Answer. Threefold. The first was'to inspect the armies on the river in that part of the country. The second was to look into cotton lands. Mr. Manager BUTLER. Will not that ap- pear better by the order? The Witn'ess. I have it. Mr. STANBERY. The orders are here, but it will take a great while to introduce them. Mr. Manager BUTLER. Very well. Mr. STANBERY. I will ask him nothing but what he has performed. [To the witness.] What was the third duty? Answer. To take charge of the negro popu- lation and to organize them as troops. Question. Were you the first officer who organized negro regiments? Answer. No, sir. Question. Who was prior to you ? Answer. I think that General Butler had organized some in New Orleans. Some were •organized before. I took charge. I was sent down on the Mississippi and in the rebellious States, and I had charge of all of them there. Question. What number of regiments were organized" under your care ? Answer. I organized upwards of eighty thousand colored soldiers. The particular number of regiments I do not recollect, because they were numbered some with those in New Orleans and some with those in the East. Question. After that service was performed what was the next special duty you were detailed on ? Answer. I returned to this city after I heard of the surrender of Lee. I was then on my way up the river. I came to Washington. The next duty I was placed upon was to make an inspection of the Provost Marshal General's office throughout 'the country, first at Wash- ington, and then throughout the loyal States. I performed that service. Question. What next? Ansioer. My last service was, I was ordered throughout the United States to examine the national cemeteries undera law passed by Con- • gress. That duty I have performed ; but my report is not yet in. It is very voluminous. Those are the dtaties- that I have performed. Question. Did those duties fall under your proper duties as adjutant general; and in what capacity ? Answer. Perfectly so. As adjutant gen- eral I am ex officio inspectorof the Army, and these duties are germane to it. Question. This duty of inspection of the cemeteries was the last special duty that you have been calLed upon to perform? Answer. Yes, sir. Question. When did you return from having performed that last special duty? Answer. I came to Washington on three different occasions. I would come here and then would go back. Question. When did you return from this last duty or this last detail upon the national cemetery business ? Answer., I do not think I can give the pre- cise date ; but it was about the close of last year. Question. Toward the clo3e of the year 1867 ? Answer. Yes, sir. Question. You say you had then completed this last duty or service? Answer. 1 had visited every State where the cemeteries were. The only ones I have not visited are two very small ones near this city. I left them to the last. Question. You were then ready to make your report ? Answer. Yes, sir ; I was writing it out and would have had it ready if it had not been for the interruption of this court. It is nearly completed. Question. You have not since been detailed upon any other special service except about this War Department? Answer. No, sir; I was engaged in making this report and I continued on that duty until I was placed in charge of the Adjutant Gene- ral's office. Question. At what date were you returned to your Adjutant General's office ? Answer. The President sent for me and gave me a note to General Grant dated the 13th of February. General Grant's note to me in an- swer to that, putting me in charge, was dated the next day — the 14th. Question. Who had occupied your office dur- ing your absence? Answer. General E. D. Townsend, Assist- ant Adjutant General. Question. Your assistant? Answer. My first assistant with the rank of colonel. Question. Then you never lost your position as adjutant general? Ansioer. Never. Question. Did you apply to the President to restore you? Answer. I spoke"to the President on two or three occasions, some months ago, stating that when I got through this particular business I should like to have charge of my office. He knew what my 'wishes were; but on this occa- sion I did not mention it to him. Mr. Manager BUTLER. Stop » moment. I wish to object in limine to any conversation between this person and the President. Mr. STANBERY. This is his application to the President that I am trying to prove, to be restored to his duty as Adjutant General. Mr. Manager BUTLER. 1 do not object to that fact ; -but I do not want this conversation. Mr. STANBERY. I do not want any con- versation now. [To the witness. ] You applied once or twice to him before to restore you ? Answer. I stated that that was my wish. Question. On the 13th of February you re- ceived the order which you had requested before restoring you to your position? THE CONGRESSIONAL GLOBE. 137 Answer. Yes, sir. It was not a note to me; it was a note to General Grant. Question. But that note restored-you to your position? Anstoer. Yes, sir. Question. When, after that, did you seethe President, anoVwhat did he say to you or did you say to him between that time and the time you received your order on the 21st? Answer. On one occasion I went over to take him some resignations Question. After you had been restored to your office? Answer. Yes, ' sir ; some resignations that Mr. Stanton gave me which were on his table. Question, fo take over? Answer. Yes, sir. Question. Was that the first occasion on which the President spoke to you about taking possession of the War Office? Mr. Manager BUTLER. _ Stop a moment. I object to that question : it is leading, and s6 grossly leading, in my judgment, that it is almost intentional. " Was that the first occa- sion he spoke to you "—assuming that he had spoken. Mr. STANBERY. He did speak afterward, we know. Mr. Manager BUTLER. How do we know ? Mr. STANBERY. We will come to it in another'way. [To the witness.] Do you rec- ollect what occurred on the 21st of February ? Anstoer. Yes, sir. I thought your question was anterior to that. Mr. STANBERY. It was. What happened in the War Office on the morning of the 21st of February in regard to closing the office on the succeeding day, the 22d ? Answer. Toward twelve o'clock I went up myself and asked Mr. Stanton, then Secretary of War, if I should close the office the next day, the 22d of February, and he directed me to (jo it. I issued such a circular and sent it around to the different Departments. Question. Was that an order made by you as adjutant general? Answer. Yes, sir; by his order. Question. Was that before you had seen the President that day? Answer. Yes, sir. Questidn. Now, what too'k place after yOu had issued that order? Answer. Very soon after I had issued it I received a note from Colonel Moore, the Pri- vate Secretary of the President, that the Presi- dent wished to see me.- I immediately went over to the White House, and saw the Presi- dent. He came out of his library with two com- munications in his hand. Question. He came out with two papers in his hand? Answer. Yes, sir. He handed them to Col- onel Moore to read. They were read to me. Question,. Read aloud? Answer. Read aloud. One was addressed to Mr. Stanton, dismissing him from office, and directing him to turn over the books, papers, &c, pertaining to the War Department. The other was addressed to me, appointing me Sec- retary of War ad interim, and stating that Mr. Stanton had been directed to transfer the office to me. Question. Was that the first time you saw those papers, or either of them? Answer. The first time. Question. You had no hand whatever in writing those papers or dictating them ? Answer. Nothing whatever. Mr. Manager BUTLER. Excuse me ; that is very leading again. Mr. STANBERY. Well. [To the witness.] What was said by the President at that time to you or by you to the President? Mr. Manager BUTLER. Do you propose to put in conversations Mr. STANBERY. I do. Mr. Manager BUTLER. Between this party and the President? Mr. STANBERY. Right there, certainly. [Handing him the papers. J Mr. E VARTS. Which they putin evMer/ce. Mr. Manager BUTLER. I will not inter- pose the objection here, sir. By Mr. Stanbery: Question. What, then, was said between you and the President? Answer. He said he was determined to sup- port the Constitution and the laws, and he de- sired me to do the same. [Laughter.] Mr. Manager BUTLER. I do not object. The Witness. I told him I would. By Mr. Staijbery : Question. What further took place -or was said ? Answer. He then directed me to deliver this paper addressed to Mr. Stanton to him. Question. Was that all ? Did you then leave? Answer. I told him that I would take an rifficer in my department with me to see that I delivered itand note whatoccurred, and I stated that 1 would take General Williams. ■Question. Who is General Williams ? Answer. One of the assistant adjutants gen- eral in my department on duty there. Question. You told' the President you would take him along to witness the transaction? Answer. Yes, sir. Question. What did you do then ? Answer. I went over to the War Depart- ment, went into one of my rooms, and told General Williams I wished him to go with me ; I did not say for what purpose. 1 told him I wanted him to go with me to the Secretary of War and note what occurred. Question. Without telling him what it was you intended? Answer. I did not tell him anything about it. I then went to the Secretary's room and handed him the first paper. Question. When you say the first paper, which was that? Answer. The paper addressed to him. Question. What took place then? Did he read it? Answer. He got up when I came in, and we bade good morning to each other, and I handed him that paper, and he put it down on the corner of his table and sat down. Presently he got up and opened it and read it, and he then said, "Do you wish me to vacate the office at once, or will you give me time to re- move my private property?" I said, "Act your pleasure." Question. Did he say what time he would require? Answer. No, sir; I did not ask him. Ithen handed him thepaper'addressed to me, which he read, and he asked me to give him a copy. Question. What did you say? Answer. In the meantime General Grant came in, and-I handed itto him. General Grant asked me if that was for him. I said no ; merely forhis information. I promised a copy, and I went down. Question. Down where? To your office? Answer. Into my own room. Question. Your own room is below that of the Secretary; on the first floor? Answer. Below General Schriver's room ; the one opposite the Secretary's. Question. It i3 on the lower floor? Answer. Yes, sir. Question. You went down and made a copy of the order? Answer. I had a copy made, which I certi- fied as Secretary of War ad interim. I took that up and handed it to him. He then said, "I do not know whether I will obey your instructions or whether I will resist them." Nothing more passed of any moment, and I left. Question. Was General Grant there at the second interview ? Answer. No, sir. Question. The Secretary was alone then ? Answer. He was alone. His son may have been there, because he was generally in the room. Question. Did General Williams go up with you the second time? Answer. No, sir. Question. What time of the'day was this? Answer. I think it was about twelve o'clock that I went up to see the Secretary, and this was just after I came down and wrote the order — it was toward one o'clock, I suppose. Question. It was immediately after you had written the order to close the office? Answer. Yes, I got the note immediately after from Colonel Moore. Question. Was that all that occurred between you and the Secretary on that day, the 21st? Answer. I think it was. [After a pause.] No, no ; I was confounding the 22d with the 21st. Question. What further? Answer. I went into the other room and he was there, and 1 said that I should issue orders as Secretary of War. He said that 1 should not; he would countermand them, and he turned to General Schriver and also to General Townsend, who were in the room, and directed them not to obey any orders coming from me as Secretary of War. By Mr. Manager Butler: Question. Do I understand that this was the 21st? Answer. I think it was the 21st. By Mr. Stanbery: Question. The 22d or 21st? Answer.. The 21st, I think. What brings it to my mind is, he wrote a note which he handed me prohibiting me from acting on the subject. Question. Have you got that note? Answer. I think I gave it to you. I have some here; probably it may be among them. I will look. The note is dated February 21; I know that. Question, (presenting a paper to the wit- ness.) See if that is the order that he then gave you ? Answer. That is it. Question. I see the body of it is not in Mr. Stanton's handwriting? Answer. He dictated it to General Town- send. That is his handwriting. A copy was made of it, and Mr. Stanton signed it, and handed it to me. Question. Will you read it, if you please? Answer. ' ' War Department, Washington city, February 21, 1868 Mr. Manager BUTLER. Stop a moment, if you please. Let us see that paper. [The paper was thereupon handed to the Managers and examined by them.] Mr. Manager BUTLER. We have no ob- jection. Mr. STANBERY, (to the witness.) Now read it, if you please, General. The witness read as follows : AVak Department, "Washington City, February 21, 1868. Sir: I am informed that you presume to issue or- ders as Secretary of War ad interim. Such conduct and orders arc illegal, and you are hereby commanded to abstain from issuing any orders other than hi your capacity as Adjutant General of the Army. Your obedient servant, EDWIN" M. STANTON, Secretary of War. Brovct Major General L. Thomas, Adjutant General. Question. Did you see the President after that interview ? Answer. I did. Question. What took place? Mr. Manager BUTLER. I object now, Mr. President and Senators, to the conversation between the President and General Thomas. Up to this time I did not object, as you ob- served, upon reflection, to any orders or direc- tions which the President gave, or any conver- sation had between the President and General Thomas at the time of issuing the commission. But now the commission has been issued ; the demand has been made ;ithas been refused; and a peremptory order given to General Thomas to mind his own business and keep out of the War Office has been put in evidence. Now, I suppose that the President, by talking with General Thomas, or General Thomas, by talk- ing with the President, cannot put in his own declarations for the purpose of making evi- dence in favor of himself. The Senate has already ruled by solemn vote, and in conso- nance, I believe, with the opinion of the pre- 138 SUPPLEMENT TO siding officer, that there were such evidence of common intent between these two parties as to allow us to put in the acts of each to bear upon the other ; but I challenge any authority that can be shown anywhere that, in trying a man for an act before any tribunal, whether a judi- cial court or any other body of tryers, testi- mony can be given of what the respondent said in his own behalf, and especially to his servant, and a fo,rtiori to his coconspirator. A conspiracy being alleged, can it be that the President of the United States can call up any officer of the Army, and, by talking to him after the act has been done, justify the act which has been done? The act which we complain of was the removal of Mr. Stanton and the appointment of Mr. Thomas. That has been done ; that is, if he can be removed at all. I understand the argu- ment just presented to us by the learned counsel who is absent, after having delivered his argu- ment, is, that there was no removal at all, and no appointment at all. Then, of course, if there was not, there has not been anything done ; we might as well stop here. Assuming, however, the correctness of another part of his argument, to wit, that the only power of removal remained in the President or in the President and the Senate ; assumingthat to be true, and therefore that he could not be quite right in his idea that the question of removal depended upon Mr. Stanton's legs in walking out, because everything had been done but that ; assuming that that portion of his argu- ment is the better one we insist that there was a removal, there was an appointment, and that is the a,ct at any rate which is being inquired about.; for whatever the character of that act is there is the end, be it better or worse. But after that act I mean to say that Mr. Thomas cannot make evidence for himself by foing and talking with the President, nor the 'resident with Mr. Thomas. Even supposing that the act was as innocent a thing as a con- spiracy to get up a lawsuit, after the conspir- acy had taken place and it had eventuated in the act, then they could not put in their decla- rations. True, there is not much evidence of any such conspiracy, because I should suppose that if the President meant to conspire with anybody to get up a lawsuit he would have conspired with his Attorney General and not his Adjutant General. He is a queer person with whom to make a conspiracy to get up a lawsuit. But even a thing so innocent as that, after it was done, could not be ameliorated, defended, altered, or changed by the declara- tions of the parties, one to the other. There- fore, in limine, I must object ; and I need not go any further now than object to any evidence of what the President says, which is not a part of the thing done, a part of the res gestce, any conversation which takes place after the thing done, after the act of which we complain. Mr. STANBBRY. Mr. Chief Justice, if I understand the case as the gentleman supposes it to be now, the whole case depends upon the removal of Mr. Stanton. Mr. Manager BUTLER. I have not said any such thing. I do not know what you under- stand. Mr. STANBERY. You say the transaction stops with issuing the order for his removal. Mr. Manager BUTLER. That transaction stops. Mr. STANBERY. Does not your conspir- acy stop ? Does not your case stop ? That is the question. Mr. Manager BUTLER. No. Mr. STANBERY. I agree myself that your case stops with that order, because I agree with what now seems to be the view taken by the honorable Manager, that that did in fact remove Mr. Stanton per se. If it did, it was the law that give it that effect ; for there is no question about a removal merely in fact, no question about an actual ouster by force here ; but it is a question of a legal removal, and that we are upon ; and I now understand the hon- orable Manager to say that that order, accord- ing to his judgment, effected a legal removal, and it was not necessary for Mr. Stanton's legs to move him out of office; he was already out by the order. If Mr. Stanton was out by the order, the learned Managers are also out by the order, for then it must be a legal order, making a legal removal, not a forcible, illegal ouster. But, says the learned Manager, the transac- tion ended in giving the order and receiving the order, and you are to have no testimony of what was said by the President or General Thomas except what was said just then, be- cause that was the transaction ; that was the res gestce. Does the learned gentleman forget his testimony? Does he forget how he at- tempted to make a case ? Does he forget, not what took place in the afternoon between the President and General Thomas that we are now going into, but what took place that night? Does he forget what sort of a case he attempts to make against the President, not at the time when that order was given, nor before it was given, nor in the afternoon of the 21st, but under his conspiracy counts, the Managers have undertaken to give in evidence that on the night of the 21st General Thomas declared that he was going to enter the War Office by force ? That is the matter charged as illegal ; and the articles say that the conspiracy between General Thomas and the President was that the order should be executed by the exhibition of force, intimidation, and threats, and to prove that what has he got here? The decla- rations of General Thomas, not made under oath, as we propose to have them made, but his mere declarations, when the President was absent and could not contradict him — not, as now, under oath, and all the conversation when the President was present and could contra- dict or might admit. The honorable Manager has gone into all that to make a case against the President of conspiracy ; and not merely that, but proves the acts and declarations of General Thomas on the 22d ; and not only that, but as late as the 9th of March, at the presidential levee brings a witness, with the eyes of all Delaware upon him, [laughter,] and proves by that witness, or thinks he has proved, that on that night General Thomas also made a declaration involving the Presi- dent in this conspiracy, as a party to a con- spiracy still existing to keep Mr. Stanton out of office. Now, how are we to defend against these declarations made on the night of the 21st or the 22d, and again as late as the 9th of March ? Does not the transaction run through all that time ? How is the President to defend himself if he is allowed to introduce no proof of what he said to General Thomas after the date of the order? May he not call General Thomas? Is General Thomas impeached here as a co- conspirator? Is his mouth shut by a prosecu- tion? Not at all. He is free as a witness — brought here and sworn. Now, what better testimony can we have to contradict this alleged conspiracy than the testimony of one of the alleged conspirators ; for if General Thomas did not conspire, certainly the President did not conspire. A man cannot conspire by himself. And now we contradict by this testimony, and have a right to contradict by this testimony, what was stated on the night of the 21st. Here is an interview on the afternoon of the 21st. We want to show that notonlyat twelve o'clock on the day when he received the order the President gave him no instructions, no orders, and made no agreement to use force ; but that at the subsequent meeting in the afternoon of that day, when General Thomas returned to Teport to the President that Mr. Stanton re- fused to surrender the office, the President still gave no directions and entered into no conspir- acy of force ; and that accordingly on the night of the 21st, when General Thomas spoke of his own intentions, he had no authority to speak for the President ; and he did not profess to speak for him. It is in this point of view, if the court please, that it seems to me this is the very best testi- mony we can give, and the most legal and admissible. It is not after the transaction is ended ; it is not after the proof on the other side is ended as to the conspiracy; but it is long before the time when, according to their proof, the conspiracy ceased. In that point of view, we claim that it is perfectly legal. Mr. Manager BUTLER. Mr. President, I think I must have made myself very illy un- derstood if what I said has been fairly met or attempted to be met by the learned counsel. This is my objection : not that they shall not prove by Mr. Thomas that he did not say what we proved that he said to Mr. Burleigh ; he will be a bold man to say he did not say it, however ; not that they shall not prove that he did not say what he proved we said to Mr. Karsner, although I should think my learned friend had had enough of Mr. Karsner ; not that they shall not show any fact -which is competent to be shown ; but the proposition I make as a legal proposition, (and it has not been met nor touched by the argument,) is that it is not competent to show that Mr. Thomas did not say to Mr. Bcbleigh that he meant to use force, by proving what was said between Mr. Thomas and the President ; that the President cannot put in his declaration ; and I challenge again a law book to be brought in before this Senate — common low, parlia- mentary law, constitutional law, statute law, or "law unto ourselves" — any law that was ever heard of in which any such proposition was ever held. It never was held, sir. Go to your own reading} tell me of the case where after we show that a man has done an act, which act is complained of, when he is on trial for that act, he can bring his servant, his co- conspirator, and show what he said to his servant and his servant to him, in order to his justification. What thief could not defend himself by that, what murderer could not de- fend himself by that — show what he said, the one to the other, and the other to the one after the thing has happened, after the act has been done? Now, it is said, as though this case was to be carried on by some little snap-catch of a word, that I said there was a removal, and, therefore, I must have said it wa8 a legal removal. I say there never was a legal removal of Mr. Stanton. There was an act of removal so far as the President of the United States could exercise the power, so far as he could do it, so far as he is criminally responsible for it, so far as he must be held to every intendment of the consequences of it as much as though Mr. Stanton had gone out in obedience to it; because who is the President ? He is the Chief Executive, and has the Army and the Navy, and has issued an order to one officer of the Army to take possession. But, Senators, I am not now insisting that the President shall not ask Mr. Thomas, " Sir, did you conspire ?" I am content they shall ask hi m that and I will ask him in return, ' ' Did you conspire with the President ; did you do this, or did you do that?" But my proposition is, that they cannot put in what the President said to Thomas, or what Thomas said to the President after ha had given th« order. The learned counsel says " Why these gentlemen Managers have put in what Mr. Thomas said all along, and what the President said all along. ' ' I understand that; so we can. It is the com- monest thing in all courts of justice where I have seen cases tried — and where I have not the books are all one way upon that matter — it is the commonest thing on earth to put in the confession of a criminal made clear down to- the time of the trial, down to the hour of the trial. Is it not ? If he makes a confession the moment the officer is bringing him and putting him into the dock, it may be used against him. But who ever heard that it gave the prisoner the right to introduce what he said to his asso- ciate, what he said to his servant, what he said to his neighbor, after the act was done, be the act whatever it may ? It is said you must allow him to put this in because the President cannot defend himself THE CONGKESSIONAL GLOBE. 139 otherwise. He has all the facts to defend him- self with. What I mean to say is that he shall not defend himself by word of mouth. I do not claim that the conspiracy was made between the 21st of February and the 9th of March. I claim that it was made before that time ; and I think we shall be able, before we get through, to convince everybody else of it. I claim that we find certain testimony of it between these two dates. Now, understand me. I do not object to asking Mr. Thomas what he said to Mr. Bur- leigh, what he said to Mr. Wilkeson, what he said to Mr. Karsner, what he said to anybody, where we have put in what he said ; but I do object to his putting in any more of the Presi- dent's declarations after the act done. I do not want any more such exhibitions as this. When a simple order is given by the President to his subordinate, a very harmless thing, quite in common course, it is given to him with a flourish of trumpets. "Now, I want you to sustain the Constitution and laws;" and the officer says, "I will sustain the Constitution and the laws." Do we not understand what all that was done for? It was a part of the defense got up there at the time ; a declaration made to be put in here before you or before some court. Nobody can doubt what that was for. Did he ever give any other order to Thomas or any other officer and say: " Now, sir, here is a little order, and I want you to sustain the Constitution and laws ; I am going to sustain the Constitution and laws, and you must sus- tain the Constitution and laws;" and then solemnly for that officer to say, " I will sus- tain the Constitution and the laws." Did you ever hear of that in any other case? Why was it done in this case ? It was done for the purpose of blinding whatever court should try the case, in order that it might be put in as a justification. " Oh I I did not mean to do anything but sustain the Constitution and the laws, and I said so at the time." That decla- ration was put in out of the usual and ordinary course, and it is to prevent any more of that sort of declarations got up, manufactured by this criminal at the time when he was going into his crime and after the crime was com- mitted, that I make the objection. Under such circumstances to give him the opportu- nity to manufacture testimony in this way never was heard of in any court of justice. Mr. EVARTS. Mr. Chief Justice and Sen- ators, if the crime, as it is called, of the Presi- dent of the United States was complete when this written order was handed by him to Gen- eral Thomas and received by General Thomas, why have the Managers occupied your attention with otherand later proceedings in his behalf of the removal of Mr. Stanton? The first, the only act in regard to that removal which the Managers introduced, was of the 22d of Feb- ruary, aud the presentation of General Thomas, and then with the purpose, as it was said, of forcibly ejecting Mr. Stanton from the office of Secretary of War. That is the act — that is the fact — that is the res gestce on which they stand ; and it was by the combination of the delegate from Dakota invited to attend and take part in that act where the force was sought to be brought into this case in the intention of the President of the United States ; and then the evidence connecting the intention of the Presi- dent of the United States with this act, this fact, this res gestce of the 22d was drawn from the hearsay evidence of what General Thomas had said, and upon the pledge of the Managers that they would connect the President with it. And now, in the presence of a court of jus- tice and in the Senate of the United States, the Managers of the House of Representa- tives, speaking "in the name of all the people of the United States," object when we seek to show what did occur befween the President and General Thomas up to the time of the only act and fact they introduced on the 22d by hear- say evidence of General Thomas's statements of what he meant to do. They sought to im- plicate the President in the intended force to be used by that hearsay testimony upon the pledge that they would connect the President with it ; and we offer the evidence that we said in the first instance should have been brought here under oath of this agent or actor himself to prove what the connection of the President was. When that hearsay has been let in, sec- ondary evidence, and we undertake to show by the oath of the actor, the agent, the officer, what really occurred between him and the President of the United States, they say that is of no consequence, that is no part of the res gestce, and that is no part of evidence show- ing what the relation between the parties was. Why, Mr. Chief Justice and Senators, if the learned Managers had objected that General Thomas was not to be received as a witness because he was a coconspirator, a eocrim- inal, some of the observations of the learned Manager might have some application ; but that is not the aspect, and that is not the claim in which the matter is presented to your no- tice. It is that General Thomas being a com- petent witness to speak the truth here as to whatever is pertinent to this case is not to be permitted to say what was the agency, what was the instruction, what was the concomitant observation of the President of the United States that attended every interview antece- dent to the time which they have put i n evidence. So, too, they have sought to give evidence of intent, gathered from a witness who over- heard what General Thomas said, pertinent, as they supposed, on the 9th of March, and that is upon the idea that General Thomas had been empowered by the President to say or do something that made his statements perti- nent to commit the President. Now, if they can show, through General Thomas, by hear- say, what they claim is to implicate the Presi- dent in intent, running up to the 9th of March, we can prove by General Thomas, up to any date in respect to which they offered evidence, all that did occur between the President and himself, in order that if there be connection that may be made accurate and precise, and if there be no connection that disconnection be made absolute and complete. Mr. Manager BINGHAM. Mr. President and Senators, I desire, to the right under- standing of this controversy, that the question to which my associate Manager objected may be reported by the Secretary. The CHIEF JUSTICE. The counsel will please reduce the question to writing. The question was reduced to writing, and read as follows : What occurred between the President and your- self at that second interview on the 21st? Mr. Manager BINGHAM. The Senators will notice that the attempt is now made for the first time in the progress of this trial, aud I think is made here for the first time in the presence of any tribunal of justice in this coun- try by respectable counsel, to introduce in the defense of an accused criminal his own declar- ations made after the fact. Before this second interview referred to in the question, the crime charged in the first article, if crime it be, was committed and complete. The time has not yet come, Senators, for the full discussion of thequestion, whether it was a crime for Andrew Johnson, on the 21st day of February, 1868, with intent to violate the act regulating the tenure of certain civil offices, to issue an order for the removal, as averred in the first article — not "removing" as the counsel stated, but " for the removal of" — the Secretary of War from the Department of War not only in con- travention of the express terms of that act itself, but in defiance of the action of the Senate then had upon the suspension under the same law, by the same President, of the same Secretary, and whereof he had notice. For myself, I stand ready, as the learned counsel has seen fit to make the challenge in this stage of the case, to say that if the tenure-of-office act be a valid act, the attempt to remove in con- travention of the provisions of that act which declares a removal to be a misdemeanor, is itself a misdemeanor, not simply at common law, but by the laws of the United States. I am not surprised that this utterance was made at this stage of the case ; for the learned coun- sel who closed his elaborate and exhaustive argument in the defense had ventured upon the bold declaration here in the presence of the Senate, that an attempt to commit a misde- meanor, made such by the laws of any sover- eignty upon the earth, was not itself a crime consummated by the very attempt, and itself a misdemeanor. I pass -that question now ; with all respect I say it ought not to have been referred to in this discussion. The only question before the Sen- ate is whether it is competent for an accused criminal, high or low, official or unofficial, President or private citizen, after the fact charged against him, to make evidence for him- self by his own declarations either to a co- conspirator or to anybody else. That is all the point there is involved in this question ; and I reiterate what was said, doubtless after due re- flection, by my associate Manager, that there is not an authority fit to be brought into a court of justice but denounces the proposition as hearsay and violative of the rules of law. Why justice itself is impotent if evidence is to be made by every criminal violator of the law for himself, after the fact, by his own declarations. I am amazed at the declaration of counsel that the Senate have admitted hearsay in behalf of the prosecution. Senators upon reflection can assent to no such proposition. The decla- ration of coconspirators made in the prosecu- tion of the common purposes or common design, never was held to be hearsay evidence. On the contrary, it is primary evidence, and in the language of one of our own courts, in most instances, it is the only evidence which the nature of the case ever admits of. It rests upon the simple proposition of the law which addresses itself to the common judgment and the common sense of mankind that what one man does by another he does himself. If the President conspired with Lorenzo Thomas to violate the laws of this country, and by his written Iet'er of authority sent him forth to violate the law, he made him his agent, and in the language of the law, whatever Lorenzo Thomas did in the prosecution of that agree- ment to do an unlawful act between himself and the President, is evidence not simply against himself, but against his principal. It is the law of this country and of every other country where the common law is ob- served ; it is a question no longer open for dis- cussion, and I may add that the question that is raised here is one that is not open for dis- cussion, for I venture to say that every text- book that treats of the law of evidence declares that the declarations of an accused after the fact are never admissible upon his own motion. All that is said at any one given time when any part of what is said on that occasion has been admitted for the prosecution, is admis- sible. But that is not the question before the Senate at all. This is -a. subsequent conver- sation between himself and his coconspirator after his crime was complete, after he had sent forth his letter of authority to Thomas, after he had issued the order for the removal of Stanton, after the demand had been made by Thomas for the surrender of the office. On the evening of the 21st day of February there is a conversation between these coconspirators, confessedly conspirators if your law be valid, upon their own answer before the Senate, in order to exculpate themselves. I say to Sena- tors that it is trifling with justice, trifling with that justice which was this day invoked in your presence, to allow any man to make evidence in this manner for himself after the fact. How easy it was for him to say to Mr. Thomas that night when he found that inquiry was being made in the Capitol touching this criminal agreement between them, " Why, Mr. Thomas, our only object is peacefully a-nd quietly to appeal to the courts of justice ;" "Why, Mr. Thomas, you must not touch the hair of the head of the Secretary of War;" "Why, Mr. Thomas, we both have the pro- 140 SUPPLEMENT TO foundest respect for the decision of the Senate this day made, notice of which has been served upon us ;" " Why, Mr. Thomas, we both recog- nize the obligations of the tenare-of-office act ;" " Why, Mr. Thomas, it is farthest from our in- tention to violate the act at all. " Sir, the law declares that if the order was unlawful, the unlawful intent laid in the averment is proved by the fact itself, and he can never disprove it by his declarations. Why, then, introduce them here? Why trifle with justice here in this way? The rule has been settled in every case that has ever been tried in the Senate of the United States heretofore, that the general rules of evidence according to the common law govern the proceedings. If there is an exception to be found to that in any of the rulings of the Senate in trials of this kind hitherto, I challenge its production. The CHIEF JUSTICE. The Secretary will read the question once more. The Secretary read as follows : What occurred between the President and your- self at that second interview on the 21st. The CHIEF JUSTICE. The question is, is the question just read admissible? Mr. DRAKE. On that I ask for the yeas and nays. The yeas and nays were ordered ; and being ta.ken, resulted — yeas 42, nays 10; as follows: YEAS— Messrs. Anthony, Bayard, Buckalew, Cat- tell, Cole, Conklinpr, Corbett, Davis, Dixon, Dooiittle, Edmunds, Ferry, Fossenden, Fowler, Frelinghuysen, Qriines, Henderson, Hendricks, Howe, Johnson. Mc- Creory, Morgan, Morrill of Maine, Morrill of Ver- mont, Morton, Norton, Patterson of Now Hampshire, Patterson of Tennessee, Pomeroy, Ross, Sherman, Spraguc, Stewart, Sumner, Tipton, Trumbull, Van Winkle. Vickers, Willey, Williams, Wilson, and Yates— 42. NAYS— Messrs. Cameron, Chandler, Conness, Cra- crin, Drake, Harlan, Howard, Nye, Ramsey, and Thayer— 10. NOT VOTING— Messrs. Saulsbury and Wade— 2. So the Senate determined the question to be admissible. The CHIEF JUSTICE. The question will be read to the witness. The Secretary read the question, as follows : What occurred between the President and your- self at that second interview on the 21st. The Witness. I stated to the President that I had delivered the communication, and that Mr. Stanton gave this answer: "Do you wish me to vacate at once or will you give me time to take away my private property?" and that I replied "act your pleasure." I then said that after delivering the copy of the letter to him he said: " I do not know whether I will obey your instructions or resist them." This I mentioned to the President, and his answer was : " Very well; go and take charge of the office and perform the duties." By Mr. Stanbery: Question. Was that all that passed ? Answer. That is about all that passed at that time. Question. What time in the afternoon was that? Answer. This was immediately after giving the second letter to Mr. Stanton. Mr. Manager BUTLER. We withdraw all objection to that conversation. ["Laughter. 1 Mr. STANBERY. Whether you do or not it is in. The withdrawal is ex post facto. [To the witness.] Was this before or after you got Stanton's order? Answer. It was after. Question. Did you see Stanton again that afternoon? Answer. I did not. Question. Or the President? Answer. Not after I left him this time. Question. What first happened to you the next morning? Answer. The first thing that happened to me next morning was the appearance at my house of the marshal of the District, with an assist- ant marshal and a constable,, and he arrested me. Question. What time in the morning was that ? Answer. About eight o'clock, before I had my breakfast. The command was to appear forthwith. I asked if he would permit me to see the President; I simply wanted to inform him that I had been arrested. To that he kindly assented, though he Baid he must not lose sight of me for a moment. I told him certainly I did not wish to be out of his sight. He went with me to the President's and went into the room where the President was. I stated that I had been arrested, at whose suit I did not know Mr. Manager BUTLER. Stop one moment. Does the presiding'officer.understand the ruling to go to this, to allow what occurred the next day to be brought in? The CHIEF JUSTICE. The Chief Justice so understands it. Mr. STANBEEY. Go on, General. The Witness. He said "Very well, that is the place I want it in — the courts." He ad- vised me then to go to you, and the marshal permitted me to go to your quarters at the hotel. I told you that I had been arrested and asked what I should do Mr. Manager BUTLER. Wait a moment. Mr. E.VARTS. I suppose it is no great matter about that. Mr. STANBERY, (to the Managers.) Is that part of the conspiracy? [Laughter.] Mr. Manager BUTLER. I have no doubt of it. [Laughter.] Mr. STANBERY, (to the witness.) Did you go to court? Answer. I was presented by the marshal to Judge Cartter. Question. What happened there? Answer. Judge Cartter Mr. Manager BUTLER. I object. Mr. STANBERY. Were you held to bail or anything of that kind? Answer. I was required to give bail in $5,000. Question. And then discharged from cus- tody? Answer. I was then discharged ; but there is one point that I wish to state if it is admis- sible; I do not know whether it is or not. I asked him distinctly what that bail meant Mr. Manager BUTLER. Stop. Mr. STANBERY. Do you mean that you asked the judge? The Witness. Yes ; I asked the judge what it meant. He said Mr. Manager BUTLER. Stop. Does your Honor allow that? Mr. STANBERY. That is another part of the case, and we will come to that after a while. [To the witness.] How long did you remain there? Answer. I suppose it took altogether per- haps an hour, because friends came in to give the bail. I had nobody with me, not even a lawyer. Question. After you were admitted to bail, did you go again to the War Department that day? Answer. I did. Question. That was the 22d? Answer. I am speaking of the 22d ; but I think this other matter is important to me. Mr. Manager BUTLER. I will withdraw the objection if the witness thinks it important to him. Mr. STANBERY. Very well ; go on with the explanation you wished to make. The Witness. I asked the judge what it meant. He said it was simply to present myself there at half past ten the following Wednesday. I then asked him if it suspended me from any of my functions. He said no, it had nothing to do with them. That is the point I want to state. By Mr. Stanbery : Question. When did you next go to the War Department that day? Answer. I wentimmediately from there, first stopping at the President's on my way, and stating to him that I had given bail. He made the same answer, "Very well; we want it in the courts." I then went over to the War Office and found the east door locked. This was on the 22d the office was closed. I asked the I messenger for my key. He told me that he had not got it; the keys had all been taken away, and my door was locked. I then went up to Mr. Stanton's room, the one that he occu- pies as an office, where he receives. I found him there with some six or eight gentlemen, some of whom I recognized, and I understood afterward that they were all members of Con- gress. They were all silting in a semi- ellipsis, the Secretary of War at the apex. I came in the door. I stated that I came in to demand the office. He refused to give it to me. and ordered me to my room as Adjutant General. I refused to obey. 1 made the demand a second and a third time. He as often refused and as often, ordered me to my room. He then said, "You may stand there; stand as long as you please. ' ' I saw nothing further was to be done, and I left the room and went into Gen- eral Schriver' s office, sat down and had a chat with him, he being an old friend. Mr. Stan- ton followed me in there, and Governor Mook- head, member of Congress from Pittsburg. He told Governor Mookiiead to note the conver- sation, and I think he took notes at a side table. He asked me pretty much the same questions as before. Question. State what he did ask? Answer. Whether I insisted upon acting as Secretary of War and should claim the office. I gave a direct answer, "Yes ;" and I think it was at that time I caid I should also require the mails. I said that on one occasion, and I think then. I do not know whether it is on the memorandum or not. Then there was some little chat with the Secretary himself. Question. Between you and the Secretary? Answer. Between me and the Secretary. Question. Had these members of -Congress withdrawn then ? Answer. Yes, sir. Question. Now, tell us what happened be- tween you and the Secretary after they with- drew. Answer. I do not recollect what first oc- curred; but I said to him, "the next time you have me arrested" — for I had found out it was at his suit I was arrested ; I had seen the paper Mr. Manager BUTLER. Stop a moment. I propose, Mr. President, to object to the con- versation between the Secretary and General Thomas at a time which we have not put in, because we put in only the'eonversation while the other gentlemen were there. This is some thing that took place after they had withdrawn. Mr. STANBERY. What is the difference; they did not stay to hear the whole. The CHIEF JUSTICE. It appears to have been immediately afterward and part of the same conversation. Mr. STANBERY. The same conversation went right on. Mr. Manager BUTLER. Will General Thomas say it waslhe same conversation? The Witness. Mr. Stanton turned to me and got talking in a familiar manner. Mr. Manager BUTLER. Go on, then, sir. The Witness. I said "The next time you have me arrested, please do not do it before I get something to eat. ' ' I said I had had noth- ing to eat or drink that day. He put his hand around my neck, as he sometimes does, and ran his hand through my hair, and turned around to General Schriver and said, " Schri- ver, you have got a bottle here ; bring it out." [Laughter.] By Mr. Stanbery: Question. What then took place ? Answer. Schriver unlocked his case and brought out a small vial, containing, I sup- pose, about a spoonful of whisky, and stated at the same time that he occasionally took a little for dyspepsia. [Laughter.] Mr. Stan- ton took that and poured it into a tumbler and divided it equally a*nd we drank it together.' Question.- A fair division ? Answer. A fair division, because he held up the glasses to the light and saw that they each hadabout the same, and we each drank. [Laugh- ter.] Presently a messenger came in with a THE CONGRESSIONAL GLOBE. 141 bottle of whisky, a full bottle ; the cork was drawn, and he and I took a drink together. "Now," said he, "this, at least, is neutral ground." [Laughter.] Question. Was that all the force exhibited that day ? Ansioer. That was all. Question. Have you ever at any time at- tempted to exercise any force to get into that office? Answer. At no time. Question. Have you ever had any instruc- tions or directions from the President to use force, intimidation, or threats at any time? Mr. Manager BUTLER. Wait. "At any time?" That would bring it down to to-day. I supposed the ruling did not come down to to-day. Any time prior to the 21st or 22d of February I am content with your inquiring about, but I still must object to patting in what was said yesterday. Mr. STANBERY. On the 9th of March you say it still continued. Mr. Manager BJDTLER. The 9th of- March? Mr. STANBERY. Then we will inquire prior to the 9th of March. Mr. Manager BUTLER. I have said nothing about that. I say the 9th of March is just as bad as it would be to-day. I object to any time after the act. He was impeached on the 22d of February, and I suppose got up his case after that. _ Mr. EVARTS. We have a right to nega- tive up to the point at which you have given any positive evidence, which is the 9th of March. Mr. Manager BUTLER. We have given no evidence of what the President has said or the instructions that came from the President. We have given evidence of what Mr. Thomas has said, and that is entirely a different thing. You may ask him if he said so to Mr. Karsner ; but if there is anything in any rule of law, if law is to be held at all, this testimony cannot be put in. Mr. EVARTS. Mr. Chief Justice, the point, if anything, by which Mr. Karsner was allowed to speak of the interview "between General Thomas and himself of the 9th of March was that General Thomas's statements then made might be held to be either from something that had been proved on the part of the Managers, or from something that would beproved»on the part of the Managers, a committal of thg Pres- ident. Now, certainly, under the ruling that has been made, as well as under the necessary principles of law and justice, the President is entitled to negative, through the witness who knows, anything that proceeded from him, the witness, as brought in testimony here, having been authorized by anything that occurred be- tween the President and himself. Mr. Manager BUTLER. I do not propose to argue further. If it is not self-evident to everybody, no argument can make it plainer. I simply object to a question, which is this : "What have been the directions of the Pres- ident down to the 9th of March," after he had been impeached ? Because, if he can put them in down to the 9th of March, he can down to to-day ; and to prove that Mr. Karsner did not say a thing to Mr. Thomas they offer to prove that the President did not say a thing to Mr. Thomas. Mr. EVARTS. That is notthe point. The point is not that we can show affirmatively every conversation, but negatively we can show up to and including the date concerning which they have given anything in evidence by which they claim to implicate the President, that he up to that time had never given any instruc- tions or declarations justifying the use of force. It is of the 9th of March they have given evidence that this witness then meant presently, infutv.ro, to kick Mr. Stanton out ; and now we propose to show that up to that conversation the President of the United States had never given authority or directions of any kind to use force. Mr. Manager BUTLER. How does that prove that Mr. Thomas did not say so ? Mr. EVARTS. It does not prove it in the least. It only proves that he said it without authority of the President of the United States, which is the whole point on your point of proving thatjie said it all. Mr. Manager BINGHAM. In other words, Mr. President, I desire to say the proposition now is for the witness to swear to conclusions, not to what the President did say, not to what the President did do, but to his conelusion that all he said and all he did did not authorize him to use force. The CHIEF JUSTICE. The counsel for the President will reduce the question to writing, if they press it. The question being reduced to writing was read, as follows : Did tho President, at any time prior to or includ- ing the 9th of March, authorize or direct you to UBe foroe. intimidation, or threats to get possession of tho War Office? The CHIEF JUSTICE. The Chief Justice will submit' this question to the Senate. Sen- ators, you who are of opinion that the question is admissible will say "ay," and those of the contrary opinion will say "no." The question being put, was decided to be admissible. Mr. STANBERY. Answer the question now, General. The Witness. Read it, if you please. The Secretary read the question, as follows : Did the President at any time prior to or includ- ing the 9th of March authorize or direct you to use force, intimidation, or threats to get possession of the War Office? The Witness. He did not. By Mr. Stanbery : Question. Now please state what conversa- tion you had with Mr. Burleigh on the night of the 21st of February? Answer. He came to my house and asked me in reference to this matter of my being ap- pointed Secretary of War. I told him 1 was appointed, and I mentioned what occurred between Mr. Stanton and myself, and I think it was that which led him to ask me "What are you going to do?" Mr. Stanton having said he did not know whether he would obey my instructions or resist them. There are two persons I spoke with. To one I said, that if I found my door locked, or if I found the War Office locked, I would break open the door; and to the other I said I would call upon Gen- eral Grant for force. I have got them mixed up; I do not know which expression I used to Mr. Wilkeson, but one to him and the other to Dr. Burleigh. I made use of both ex- pressions that evening however, one to Mr. Wilkeson and one to Dr. Burleigh ; I do not suppose it makes any difference which. Their testimony shows that better than mine. Mr. Burleigh asked me what time I was going to the War Office. I told him I would be there about ten o'clock the next day. This was the night of the 21st I was talking to him. The conversation was a short one ; he very soon left me, saying he would call again. I think he said he would come up to the War Office the next morning. Question. Did you ask him to go ? Answer. I did not. I think he said he would come and see the fun, or something of that kind. Question. What was the conversation you had with Mr. Karsner on the 9th of March? Answer. I would Kke to describe that. Question. What do you know of Mr. Kars- ner? Answer. I knew nothing about him whatever until I had seen him then. If I had been asked the question, I should have said I had never seen him, though my attention was once called to the fact that I did once see him in the spring of 1827, when I happened to be »t home with a severe spell of sickness. I did see him on that occasion. I suppose there were circumstances brought it to my mind. Question. What took place at the Presi- I dent's? '* Answer. It was toward the end of the Pres- ident's reception, and I was walking with Gen- eral Todd, and was about going out of the door when I found that this person rushed forward and seized me by the hand. I looked surprised, because I did not know him. He mentioned his name, butl could not recollect it. I understood him to say that he was from New Castle, my native village. He certainly used both those words; but he says he did not; it is possible he did not, as he says he only stated that he was from New Castle county. I may be mis- taken ; I do not want to do him injustice. He said he knew my father and my brother, and that he had known me forty years before. I suppose that would have been about the time I spoke of; but I have no recollection of it at all. He held on to my hand. I was surprised at the man's manner, because he came up to me as if I had been an intimate relation of his for years. Mr. Manager BUTLER. Stop a moment. I suppose this is a little improper to give his surprises. Tell us what was done and stated Mr] STANBERY. Go on, General. The Witness. I tried to get away from him, and he then said — he was a Delawarean — " The eyes of all Delaware are upon you, [laugh- ter,] and they expect you to stand fast." I said : " Certainly I shall stand fast," and I was about leaving when he seized my hand again and asked me a second time the same ques- tion, saying he expected me to stand fast. Said I: "Certainly 1 will stand fast." I was smiling all the time. I got away from his hand a second time, and he seized it again and drew me further in the room and asked the same question. I was a little amused, when I raised myself up on my toes in this way [stand- ing on tiptoes] and said: "Why, don't you see I am standing firm ?" Then he put this in my mouth: "When are you going to kick that fellow out," or something of thatkind. "Oh," said I, "we will kick him out by and by." Question. Are you certain the " kicking out " came from him? Answer. Yes, sir — oh yes. [Laughter.] I want to say one thing. I did not intend any disrespect to Mr. Stanton at all. On the con- trary, he has always treated me with kindness, and I would do nothing to treat him with dis- respect. Question. Had you ever any idea of kicking Mr. Stanton for any purpose. Answer. No, sir. Question. How came you to use the word at all? Answer. Because it was put in my mouth. Question. Did you say it seriously or in * jocular way? Ansioer, (smilingly.) I was very glad to get away ; I went out at once. Cross-examined by Mr. Manager Butler : Question. Did I understand you to say that there had been no unkind feelings between you and Mr. Stanton ever? Answer. No., sir ; I do not think there ever had been any unkind feeling. Question. Or difference of opinion ? Answer. There was a difference of opinion, I suppose. Question. Did you not believe that he sent you away from the office of Adjutant General in order to have General Townsend carry on that office? Ansioer. I do not. Question. You do not so believe? Answer. No, sir. Question. You have not done anything in the Adjutant General's office as the head of that department for how many years up to the 13th of February last ? Answer. I was a short time absent, as I told you, on the James river making exchanges with the rebel commissioner ; but on my re- turn I always went to my office. The first time, perhaps, that I was detached was, I think, on the 23d day of — I ought, to have said I had gone three or four times up to Pennsylvania. Mr. Manager BUTLER. Please answer my question. You ought to do that. Since what 142 SUPPLEMENT TO time, up to the 13tli day of February had you done anything in your office as adjutant gen- eral of the Army, not acting inspector general ? Answer. I was in the Adjutant General's office— I have got the date here, if you will let me refer to it Mr. STANBERY. Certainly; refer to your papers. The Witness, (producing papers.) These are my original instructions to go down on the Mississippi river. Mr. Manager BUTLER. I do not care for the precise date. Can you not tell me the month? Answer. I would rather give you the precise date. IJjave it— the 25th day of March, 1863. Question. From that time until the 13th of February, 1868, have you ever conducted the business of the Adjutant General's office? Answer. The 14th was the date. Question. Up to the 13th will do for me ? Answer. No, sir. Question. Have you always been sent upon outside inspecting duty? Answer. Yes. Question. Had you been recommended by Mr. Stanton to be retired ? Answer. That I cannot say. I was recom- mended by General Grant to be retired, and that communication went to Mr. Stanton, and Mr. Stanton took it to the President, as I under- stood. What he said to the President I do not know. Question. The President overruled General Grant's recommendation for your retiracy ? Answer. The President did not set me aside. Question. He overruled that recommenda- tion, did he not? He did not have you retired in pursuance of that recommendation, did he ? Answer. He did not. Question. Did you ever ask Mr. Stanton to restore you to office? Answer. No ; I did not. Question. If there was a kindly feeling with him all the time he was a friend of yours, and you would not harm a hair of his head, cer- tainly not kick him, why did you not ask him ? Answer. I knew perfectly well that the ser- vices, especially this one that I referred to, were very important, and I knew he said him- self that I was the only one who could do the work, and therefore he sent me. Question. But while you knew the service you were sent on was so important, and you were the only man to do it, you did ask John- son, and why did you not ask Stauton, to re- store you ? Answer. I did not suppose he wanted me in the office, though there was no unkind feeling. Question. Only he did not want you there? Answer. I do not suppose he did. Question. It was perfectly kindly, except that he did not want you about? Answer. I suppose so. I was in the habit of going to his office whenever I was hera ; I did it many a time, and he has asked me to do certain things in his office there. Mr. Manager BUTLER. You have an- swered all. Now, General Thomas, when did you first receive the intimation from the Pres- ident that you were to be made Secretary of War? Answer. The President sent for me on the 18th of February. Question. Three days before you got the order, was it? Answer. Yes, sir. Question. Have you ever stated that you had an intimation that you would be appointed Secretary of War earlier than that? Answer. I must now refer to a paper which I suppose you have. When I was asked before one of the committees when I first got an inti- mation I supposed they were referring to my going in the Adjutant General's office, but I never had an intimation before the 18th of February that the President had any idea of making me Secretary of War. Question. Now, ii you will pay attention to my question, General Thomas, and answer it you will oblige me. My question was, whether you ever stated to anybody that you got such an intimation before that time? Answer. Not to my knowledge, unless it was before that committee, as I tell you, the two things were mixed up. » Question. Did you not swear that before the committee? Answer. I afterward made a correction on that paper. Question. Excuse me; I did not ask you what corrections you made ; I asked you what you swore to ? Answer. I swore that I had received an inti- mation, but I found that it was not so, and I had a right to correct my testimony. Question. You were asked, then, before the committee, not the Managers ? Answer. I am not speaking of the Managers, but of the committee. Question. You were asked before a commit- tee of the House when you received the first intimation. How early did you swear that to be, whether it was by mistake or otherwise ? ' Answer. The intimation that I received that I would probably be put in the Adjutant Gen- eral's office must have been made some two weeks before the occurrence, perhaps. Question. I ask now, and I want you again to pay attention to my question Answer. I know your question. Question. How early did you swear that you received an intimation that you would be made Secretary of War? Answer. I should like to divide those two tilings. I told you that I corrected my evi- dence. Question. I am dividing them ; now I am getting to what you swore to first ; by and by I will come to the correction, perhaps. I have divided them. Now answer my question: what did you swear to first before you took advice? Mr. STANBERY. "Took advice!" Mon- strous ! The Witness. I swore that I received an intimation — I think an intimation from Colonel Moore. Question. I did not ask you who you re- ceived it from ; I asked the time when ? Answer. I can-not tell the time ; I do not know it. Question. What time did you swear it was? Answer. I say I do not know; I suppose two or three weeks : I cannot say. Question. Did you receive it from Colonel Moore, the Military Secretary ? Answer. Receive what? Question. The intimation that you were to be made Secretary of War? Answer. No. Question. Did you so testify? Answer. I suppose not, because I tell you the two cases were in my mind. I think I have answered it distinctly enough. The hon- orable Manager is trying to mix two things, when I am trying to separate them. Question. Now, sir, did you not know or believe you were to be made Secretary of War before you received that order of the 21st of February ? Answer. No, sir. Question. Did you not believe you were ? Answer. The 18th, I said. Question. Now listen ,to the question and answer it. That will be better. I ask you if you did not know you were to be made Secre- tary of War before you received that order of the 21st — know- or believe? Answer. " Know " positive, no. Question. Did you not believe you were to be? . Answer. I thought I would be, because it had been intimated to me. Question. Intimated to you by the President himself? Answer. Yes, sir. Question. Did you tell him whether you would be glad to take the office ? Answer. I told him I would take it ; I would obey his orders. Question. What made you tell him that you would obey his orders ? Answer. Because he was my Commander-in- Chief. Question. Why was it necessary to tell him you would obey his orders? Answer. I do not know that there was any particular necessity in it. Question. Why should you say to him, when he asked you to be Secretary of War, that you would, and would obey his orders? Answer. Certainly, as Secretary of War. Question. Why did you feel it necessary in your own mind to say that you would obey his orders ? Answer. I do not know that it was particu- larly necessary. Question. Why did you do it ? Answer. It was a very natural reply to make. Question. Tell me any other time, when you were appointed to an office, that you told the appointing power you would obey the orders ? Mr. E VARTS. It does not appear he was appointed at any other time. Mr. Manager BUTLER. Does it not? [To the witness.] Have you not been appointed adjutant general? Answer. Certainly ; I am adjutant general. Question. At any other time, when you were appointed to office, tell me whom you told that you would obey the orders ? Answer. I do not know that I told any one. The other appointments I got in the ordinary course. Question. Then this was an extraordinary appointment? Answer. Certainly it was ; I never had one of that kind before. [Laughter.] Question. And so extraordinary that you thought it necessary to tell the President be- fore you got it that if he would give it to you you would obey his orders ? Answer. I did not say any such thing. Question. You did so tell him? Answer. I did tell him so. Question.. And you thought it was proper so to tell him? ' . Answer. Certainly. Question. What orders did you expect to receive that you found it necessary to tell him you would obey them? Answer. I did not know that I was to expect to receive any particular order. Question. Then, before you got the appoint- ment y.ou told him you would obey the order. This was on the 18th? Answer. Yes. Question. You got a note from Colonel Moore to go to the President's, you say, on the 21st? Answer. Yes, sir. Question. Were you sent for on,the 18th? Answer. Yes. Question. Sent for by Colonel Moore? Answer. Yes, sir. Question. And you went up there? Answer. Yes. Question. And the President told you ho thought of making you Secretary of War? Answer. Yes. Question. And you told him you would be very glad to be made Secretary of War, and would obey his orders ? Answer. I did not say I would be very glad. Question. That you would accept it? Answer. The President said that he thought of making me Secretary of War, but that he would consider of the matter. Question. And you answered to that that you would accept it and obey his orders, did you? Answer. The time that I said I would obey his orders was when I got the appointment. Question. Oh! that was the time? Answer. The other was an intimation from him. Question. You said this about obeying his orders at the time you got the appointment? Answer. Yes. Question. What did you say on tho 18th, when the President said he thought of making you Secretary of War? Answer. He did not say positively he was going to make me so. THE CONGRESSIONAL GLOBE. 143 Question. He said he was considering it? Answer. He said he was considering of it. Question. What did you say then ? Answer. I do not recollect that I said any- thing in particular. Question. Anything in general — anything at all? Answer. I do not know that I did. Question. You neither thanked him nor in- timated in any form that you would or would not take it ? Answer. No. Question. Then you want to take it back now? Answer. I do not want to take back anything I have said. Question. Do you not? I understood you to say that you told him on the 18th you would obey his orders ? Answer. I meant to say on the 21st, when he gave me the appointment. Question. Therefore, you want to take it back as to the 18th ? Answer. Certainly. Question. Then you do want to take back anything ? Mr. EVARTS. He has already corrected it by stating that you misunderstood him. Mr. Manager BUTLER. If he did, then he stated what was not correct ; for I did not mis- understand him. Mr. EVARTS. He has already made that correction, but you misunderstood him. Mr. Manager BUTLER. I was competent to hear the correction he made. I am perfectly competent to hear it without any assistance. [To the witness.] Now, General Thomas, on the 21st again you were sent for? Answer. Yes. Question. Between the 18th and 21st did you go to your friend Stanton and tell him that you thought of taking his place ? Answer. No, sir. Question. Were you in the War Office? Answer. I was there generally every day. Question. On the 21st you were sent for again by Colonel Moore, were you not? Answer. Yes, sir. Question. By a note ? Answer. A note. Question. He came in person ? Answer. A note. Question. Have you that note? Answer. I do not know whether I have or not. I gave one note to the counsel. One I mislaid. Question. Do you think Mr. Stanbery has got it? Answer. I think he took one of them. Mr. Manager BUTLER. We will pass that while the gentlemen are hunting it up. Mr. EVARTS. We have none- of the 21st. The Witness. Then I have mislaid it. By Mr. Manager Butler : Question. You got a note to go to the Pres- ident's? Answer. I got a note to go to the President's. Question. Did you know for what purpose ? • Answer. I did not. Question. Did you suspect ? Answer. I had no suspicion at all. Question. Did you not have some belief of what you were going there for ? Answer. I had not. Question. And you went over ? Answer. I went over, of course. Question. You went into the President's room, and he was coming out of the library, you say? Answer. I went into the council room, and he came out of the library with Colonel Moore. Question. Fetching two papers ready written? Answer. Yes, sir. Question. Now, please state to me exactly, in order, what was first said and what was next said by each of you. The President is coming out with two papers in his hand: what next? Answer. I think the first thing he did was to hand them to Colonel Moore and tell him to read them. Question. Whatnext? They were read then? Answer. They were read and handed to me. Question. What then ? Answer. He said : "I shall uphold the Con- stitution and the laws, and I expect you to do the same." I^aid certainly I would do it, and I would obey his orders ; that is the time I used that expression. Question. Let me see if I have got it ex- actly. He came out with the two papers ; handed them to Colonel Moore; Colonel Moore read them. He then said: "I am going to uphold the Constitution and the laws, and I want you to do the same ;" and you said, " I will, and I will obey your orders?" Answer. I did. Question. Why did you put in you would obey his orders just then? Answer. Isupposeitwasverynatural, speak- ing to my Commander-in-Chief. Question. What next was said then ? Answer. He told me to go over to Mr. Stan- ton and deliver the paper addressed to him. Question. Which you did so ? Answer. I did. Question. In the manner you have told us ? Answer. Yes, sir. Question. At this first interview before you left the building Mr. Stanton gave you the letter which you have put in here, did he ? Answer. After I delivered him the second one, the one to me, dated the 21st instant. Question. Before you left the building he gave you that paper ? Answer. Yes, sir ; that was when he was sitting in Schriver' s room. Question. Then you knew that he did not mean to give up the office ? Answer. I did. Question. You so understood fully? Answer. Certainly. Question. You went back and reported that to the President, did you ? Answer. Yes, sir. Question. Did you report to him that Stan- ton did not mean to give up that office ? Answer. I reported to him exactly what Stanton had said. Question. Did he ask you what you thought about it, whether he was going to give it up or not? Answer. He did not. Question. Did you tell him what you thought about it ? Answer. I did not. Question. You reported facts to him. You reported the same facts that had made an im- pression on your mind that Stanton was not going to give up the office ? Mr. EVARTS. You are assuming what facts he stated. You are assuming that he stated something. Mr. Manager BUTLER. I beg pardon. I assume nothing. [To the witness.] I ask did you report the same facts to the President which had made the impression on you mind that Stanton did not mean to jjive up the office ? Answer. I reported these facts — his conver- sation with me. Question. Did you show him the letter? Answer. I did not. Question. Did you not tell him about the letter ? Answer. I did not. Question. Why not ? Answer. I did not suppose that it was ne- cessary. Question. Here was a letter ordering you to Mr. STANBERY. We object to your argu- ing it with the witness. Ask your question. Mr. Manager BUTLER. Wait till the ques- tion is out, and if you have any objection state it. Do not interrupt me. Mr. STANBERY. We object to argument now ; that is all. Mr. Manager BUTLER, (to the witness.) You had a letter which alleged on its face that your action was illegal, and which convinced you, as you say, with other facts Mr. STANBERY. Mr. Chief Justice, we ask that that question be reduced to writing. Mr. Manager BUTLER. I shall never be able to reduce it to writing if you do not stop interrupting me. I will put the question now once more. [To the witness.] You had a letter from Mr. Stanton which, together with other facts that had happened, convinced you that Stanton meant not to give up the office. Now, sir, with that letter in y'Sur pocket, why did you not report it to your chief? Answer. I did not suppose it was necessary. I reported the conversation that I had said I would give orders, and he said he would counter- mand them and that he gave those orders to both General Schriver and General Townsend. Question. Then did you tell the President that Mr. Stanton had given orders to Schriver and Townsend not to obey you ? Answer. I think I did. Question. Have you any doubt about that in your own mind? Answer. I do not think I have any doubt of that. Question. Afterthatlunderstandyouto say, he said, ' ' Very well, go on and take possession of the office?" Answer. He did so. Question. Was anything more said? Answer. I think not at that time. Question. You went away ? Answer. Yes, sir. Question. About what time in the day was this on the-21st? Answer. I closed the office about twelve o'clock. I suppose I was absent at the Presi- dent's a short time for it took but a short time. I imagine it was about one o'clock. Question. You mean you closed the office a9 Adjutant General, by your order as Adjutant General about twelve o'clock? Answer. Yes, sir; by order of the Secretary of War, at twelve o'clock. Question. After that you went to the Presi- dent and got your own order as Secretary of War? Answer. Yes, sir. Question. And after that you came down to Mr. Stanton.and had a conversation with him, got a letter, and went back to the President's? Answer. Yes, sir. Question. What time in the afternoon was it when you went back to the President's? Answer. I think I can call it to mind in this way : the time was noted when I had this con- versation that Hon. Mr. Moorhead took down ; ' I think it was ten minutes past Mr. Manager BUTLER. That was the next day. The Witness. Oh I You are speaking of the 21st? Question. Was Moorhead there on the 21st ? Answer. No, sir. Question. I am speaking of the 21st? Answer. I went down and had the copy made, and as soon as the clerk made it I cer- tified it, and then I took it up, and then went to the President's. Question. What time in the day was it? That is all I desire. Answer. I suppose it must have been be- tween one and two o'clock, perhaps nearer two than one. Question. Did you see the President again that day ? Answer. Not after I paid this visit. Question. Then after he told you to go and take possession of the office you did not see the President? Was it Mr. Wilkeson or Mr. Burleigh that you first told about taking pos- session of the office? Answer. Wilkeson. Question. Where was that? Answer. I think it was in my own office first. Question. About how long after you left the President's? Answer. I am not certain whether it was before or after, as Wilkeson came there to see me. Question. You do not know whether it was before or after that? Answer. I do not recollect whether it was 144 SUPPLEMENT TO before I went over to the President's or after. I think it was before, however. Question. You told Mr. Wilkeson, he tells us, that you meant to call on Genera,! Grant for a military force to take possession of the office? Answer. Yes. _ [j Question. Did you mean that when you told it, or was it merely rhodomontade? Answer. I suppose I did not mean it, for it never entered my head to use force. Question. You did not mean it ? Answer. No, sir. Question. It was mere boast, brag ? Answer. Oh, yes. Question. How was that ? Speak as loud as you did when you began. Answer. I suppose so. Question. Very well, then. You saw Wil- keson that evening again, did you not, at Wil- lard's Hotel? Answer. I think I saw him there for a few moments. ■ Question. Did you again tell him you meant to use force to get into the office? Answer. That I do not recollect. I stated it to him once I know. Question. Can you not tell whether you bragged to him again that evening? Answer. I did not brag to him. Question. Did you not tell him at Willard's that you meant to use force to get into that office ? Answer. Either at my office or Willard's, one of the two. Question. You have already said you told it to him at your office? Answer. I do not think I told it to him more than once. Question. Suppose that he testifies that you told it at Willard's to him ; was that brag then ? Answer. It would have been the same — yes. Question. You saw Burleigh that evening? Answer. At my own house. Question. Did you tell him that you meant to use force? Answer. I think the expression I used to him was that if I found my doors locked I would break them open. Question. Did he not put the question to you in this form substantially: '• What will you do if Stanton will not go out ;" and did you not answer, " We will put him out?" Answer. I dare say I did. Question. Do you not know you did? Answer. I dare say I did ; I am not certain. Question. Didhenotthensay, "Butsuppose the doors are barred ;" and did you not then say, " I will batter them down," or "We will batter them down?" Answer. Yes, sir. Question. Was that brag? Answer. No, sir. At that time I felt as if I would open the doors if they were locked against me. Question. Then you had got over bragging at that time, had you? Answer. 1 suppose so. Question. Do you not know whether you had or not? Answer. When I had this conversation with Mr. Burleigh I felt precisely as I said to him. Question. At that time you really meant to go in and break down the door? Answer. If it was locked, yes. Question. And really meant to use force ac- cording as you said you would ? You meant what you said, did you not? Answer. I meant what I said. Question. Do you mean to say that Mr. Burleigh has not properly put before the Sen- ate what you did say ? Answer. I do not pretend to say so. He would recollect the conversation better than I. Question. And whatever you said to him you meant in good, solemn earnest? Answer. I suppose so. Question. No rhodomontade there? You had got over playfulness with Wilkeson about writing to Grant entirely, had you not? Answer. Yes; because I had got home' and had time to think the matter over. Question. And having got over the playful part of it, and thinking the matter over, you had come to the conclusion to us,e force ; and having come to that conclusion, why did you not? Answer. Because I reflected that it would not answer. Question. Why not answer ? Answer. It would produce difficulty, and I did not want to bring it on. Question. What kind of difficulty? Answer. I supposed bloodshed. Question. And what else? Answer. Nothing else. Question. Then by difficulty you mean blood- shed, do you say? Answer. If I had used force I suppose I would have been resisted with force, and blood might have been shed. That is my answer. Question. What time did you leave Burleigh or did Burleigh leave you? Answer. It was after night when he came ; the visit was a very short one. Question. About what time, did he leave? Answer. I do not recollect exactly ; eight or nine o'clock, I suppose. Question. Immediately after he left did you go to a masquerade ball? Answer. Yes, sir. Question. How late did you stay? Answer. I stayed until about the time of — I suppose it was toward midnight. Question. After? Answer. I cannot be positive of that. About midnight, I presume. Question. How soon was it after Burleigh left before you left for the ball? Answer. I think it was aboutnine o'clock or along about half past nine or somewhere there. It was after Burleigh left. Question. Did you see anybody but your own family between the time Burleigh left and the time you started for the ball? Answer. Yes. Question. Who ? Answer. A little girl living next door, who was going with my daughter to the masquerade ball. Question. A young lady ? Answer. Yes, sir. Question. You did not discuss this matter with her, I take it ? Answer. I did not. Question. Did you discuss it with anybody after you left Burleigh or Burleigh left you until you got to the ball ? Answer. I did not. I saw no person to dis- cuss it with. Question. And you did not discuss it at the ball? Answer. I did not. Question. And a masquerade ball — I do not know, but I put it interrogatively — is not a good place for contemplation of high ministe- rial official duties, is it? Answer. No ; it is not. Question. You did not contemplate your offi- cial duties there, did you ? Answer. I went there, I say, to take charge of two little girls. .That was all. Question. And to throw off care, as we all have a right to do? Answer. No, sir ; I did not go with any such purpose. I had promised them some days before. Question. You went with them? Answer. I went with them to take charge of them. I went in my present dress. [The uni- form of a major general.]" Question. And when you came home you went to bed immediately ? Answer. I did. Question. How early in the morning — how long had you been up before this marshal came ? Answer. I generally rise about seven, unless when I go to market. I get up earlier then. Question. How early did you get up this morning, having been out a little late the night before? Answer. I got up at seven o'clock; that * my usual hour. Question, Did the marshal come immedi- ately ? Answer. The marshal came there about eight o'clock. Question. Before you could get any break- fast? Answer. Before I had my breakfast. Question. Did you consult anybody on this question between the time of getting up and the time the marshal came ? Answer. I did not. Question. Now, sir, beforethis the last you said to anybody on this question was that yon told Burleigh in solemn earnest you were §oing to use force, and then, almost imme- iately, you went to a ball ; from the ball you came home and went to bed ; got up, and saw nobody until the marshal came. Whep_did you change your mind from this solemn de- termination to use force, although it might bring on bloodshed? Answer. I changed it after I had made use of this to Burleigh, undoubtedly. Question. I know you did after. When? Answer. I suppose very soon. Question. I did not ask you what your sup- position is. I asked you when you changed your mind. Answer. I do not know. Question. When do you first remember hav- ing changed your mind? Answer. I do not know. Question. What is the first remembrance that you have of a different purpose? Answer. I do not know. You are asking now as to a point of time. Question. No ; I am asking no point of time. You have now a different purpose in your mind, have you not, from what you told Burleigh? Answer. I have. Question. You must have obtained that pur- pose some time. When did you change the purpose? The first time you remember you had a different purpose ? Answer. I certainly changed it before I was arrested, and that was at eight o'clock on the morning of the 22d. Question. How do you fix that so certainly? Answer. Because on the 22d I had determined not to do so. Question. What time on the 22d? Answer. Before I was arrested, undoubtedly. Question. Why "undoubtedly?" Answer. I may have thought it over in bed before I got up. Question. Will you swear that you did, and that you changed your purpose then ? Answer. I cannot tell the precise moment when I changed my purpose. Question. Did you not tell Mr. Burleigh that the reason why you did not carry out your purpose was the cause of your arrest? Answer. I did not. Question. Did you tell him anything to that effect? Answer. No. Question. Had you any conversation on that subject with him ? Answer. 1 did not see Dr. Burleigh after that, I do not think,. Question. He testified that within a week of the time he was on the stand you told him that the reason why you did not carry out the purpose which you had told him you would of using force, was that you were arrested? Answer. He must have misunderstood me then, because the arrest had nothing to do wiLh it. Question. And you did not tell him that? Answer. I think not. Question. Do you know not? Answer. I will not say I know not; but I am pretty certain I did not. Question. What makes you certain you did not tell him so? Answer. Because I had made up my mind not to use forceat nil. Question. Were yon not asked by the board THE CONGRESSIONAL GLOBE 145 of Managers, on the 13th of March, after hav- ing heard Burleigh's testimony read, whether it was not true, and did you not say it was all true? Answer. Yes, sir ; I did. I said that both his and Wilkeson's was true, because what they testified to I said I had no doubt was the fact. Question. Now, why do you say Burleigh's testimony is not true when he says that you told him that the arrest was the cause of your change? Answer. That I do not think I told him. Question. And the only reason you have for thinking you did not tell him is that you think you must have come to the conclusion before you were arrested? Answer. I did ; certainly. Question. But you cannot tell us when you did come to that conclusion from any act of memory of yours? Answer. Not the particular moment. Mr. MORRILL, of Maine. If the parties are willing to pause here, as it is now five o'clock Several Senators. Get through with this witness. Mr. MORRILL, of Maine. I would move an adjournment, not otherwise. Mr. Manager BUTLER. We shall be wholly under the direction of the Senate. We have no objection on our part. The CHIEF JUSTICE. The Senator from Maine moves Mr. MORRILL, of Maine. I do not make the motion unless it suits the convenience of parties. Mr. Manager BUTLER. I will gp on. [To the witness.] Now, then, General Thomas, when you came to the solemn conclusion to use force after solemnly thinking of the matter, did you believe in your own mind you were carrying out the President's orders ? Answer. No ; quite the reverse. Question. Then when you came to that con- clusion you believed you were going to do it against his orders, did you ? Answer. Not in accordance with them, cer- tainly. Question. Then, although you had told him the day before that you would obey his orders, you came to a determination to do quite the reverse, did you? Mr. STAN BERY. He has not said that. Mr. Manager BUTLER. I am asking him if he did. The Witness. Repeat that question. By Mr. Manager Butler: Question. You say that you came to the sol- emn determination to use force, and you meant to do it, quite in reverse of the President's orders? Answer. I said no such thing. Question. Hear the question. The day be- fore when you received your appointment you told him yon would obey his orders ? Anhwer. I did. Question. The first act that you came to a solemn conclusion about was that you pro- posed to act the very reverse of his orders ? Answer. I did not say that was in reverse of his orders. I said that was my idea ; if I was resisted I could resist in turn. Question. Did you mean to do that act in obedience to the President's orders or against them? -Answer. Not in obedience to the President's orders, for he gave me no orders. Question. You mean to say that you had come to a solemn resolution on your own re- sponsibility to initiate bloodshed? Answer. I said that I would, if I found the doors locked, break them down, and I after- ward said that when I came to think of the matter I found that a difficulty might occur, and I would not be the means of bringing about bloodshed. That is what I say. Question. Did you think you were justified in doing what you came to tho conclusion to do by the President's order? Supplement — 10. Answer. I would have been justified as my own act. Question. Did you believe you were so justi- fied by the President's order? Answer. No ; not by the President's order — by the appointment which he gave me, yes. Question. The appointment he gave you? Answer. I had a right then to go and take possession of that office. Question. By force? Answer. In any way I pleased. Question. At your pleasure, by force. Now, did you ever ask the Pi'esidentwhat you should do? Answer. I did not. Question. Did you not ever suggest to him that Stanton would resist? Answer. I reported to, him from day to day that every time 1 asked him he refused. Question. Anything but the refusal? Answer. The refusal was the only thing. Question. Did you ever suggest to hiui that Stanton would resist? Answer. Resist by force ? Question. Yes, sir. Answer. No ; I said he refused. Question. Did you not understand in your own mind that he would so resist? Answer. I did not know what means he would take. Question. I did not ask what you knew. Did you not in your own mind believe he would resist? Answer. Yes. Question. Had you any doubt of it? Answer. I had not. Question. Did you not know that, if you got in at all, you must get in by force ? Answer. Yes. Question. Did you ever report to the Presi- dent, your superior, that you came to the con- clusion that you could not get in, if you got in at all, except by force? Answer. I said no such thing to him. Question. Why did you not report to him the conclusion you came to? Answer. I did not think it necessary at all. Question. You reported to him every time Stanton refused? Answer. Yes. Question. But you did not think it necessary to report to him that you could not get the office without resistance ? Answer. No. Question. And you never asked his advice what you should do ? Answer. No. Question. Nor for his command ? Answer. No. Question. Nor orders in any way ? Answer. No. He merely told me to go on and take possession of the office, without stating how I was to do it. " Question. And how many times over did he keep telling you that, as you reported to him? Answer. I think I had three interviews with Mr. Stanton. Question. One Friday? Answer. One Saturday, one Monday, and one Tuesday ; I think four. Saturday was the time I made the demand. Question.. Each time when you made the demand on Mr. Stanton he refused ? Answer. Yes, sir. Question. Each time you reported it to the President? Answer. Yes, sir. Question. During all the time you were cer- tain he would not give up except by force ? Answer. I was certain he would not give up ; he was going to keep it. Question. And, thinking it important to re- port each time his refusal, you never asked the President how you should get possession of the office? Answer. I never did. Question. Nor never suggested to him that you could not get it except by force ? Answer. I suggested to him that the true plan would be, in order to get possession of the papers, to call upon General Grant Question. Leave the papers— the office I am talking about? Answer. The papers are the thing. You cannot carry on an office unless you have what is inside of it. Question. I did not ask how you can carry on an office. I ask if you ever reported to him anything more than Mr. Stanton's refusal? Answer. I never did. Question. You never asked how you were to get possession of the building? Answer. No. Question. Now, let me come to the matter of papers. Did you afterward hit upon a scheme by which you might get possession of the papers without getting possession of the building ? Answer. Yes, sir. Question. And that was by getting an order of General Grant? Mr. EVARTS. He has not stated what it was. By Mr. Manager Butler: Question. Did you write such an -order? Answer. I wrote the draft of a letter ; yes, and gave it to the President. Question. Did you sign it? Answer. I signed it. Question. And left it with the President for his Answer. For his consideration. Question. When was that ? Answer. The letter is dated the 10th of March. Question. That was the morning after you told Karsner you were going to kick him out ? Answer. That was the morning after. Question. And you carried that letter? Answer. I had spoken 10 the President be- fore about that matter. Question. You did not think any bloodshed would come of that letter? Answer. None at all. Question. And the letter was to be issued as your order? Answer. Yes. Question. And before you issued that order, took that away to get hold of the mails or papers, you thought it necessary to consult the President? Answer. I gave that to him for his consid- eration. Question. You did think it necessary to consult the President, did you not? Answer. I had consulted him before. Question. Either before or after, you thought it necessary? Answer. It was merely carrying out that consultation. Question. When you thought of getting pos- session of the mails and papers through an order as Secretary of War you thought it ne- cessary to consult the President; but you did not think any bloodshed would come from that, did you ? Answer. No, I did not ; it was a peaceable mode. Question. When you were about taking a peaceable mode in issuing your order you con- sulted him? When you had come to the con- clusion to run the risk of bloodshed you did not consult him ? Is that so ? Answer. I did not consult him. Question. Did the President ever give at any of these times any other answer than "Go on, and get possession?" Answer. No ; not in reference to the office. Question. Did he ever chide you in any way for any means that you were employing ? Answer. Never.» Question. Did he ever find fault that you were doing it differently from what you ought to do? Answer. No. Question. Did he ever remark to you in any way about declarations of force until after these impeachment proceedings began ? ■ 146 SUPPLEMENT TO Answer. No. Question. They were published and noto- rious, were they not? Have you acted as Sec- retary of War ad interim since? Answer. I have given no order whatever. Question. That may not be all the action of a Secretary of War ad interim. Have you acted as Secretary of War ad interim 1 Answer. I have, in other respects. Question. What other respects? Answer. I have attended the councils. Question. Cabinet meetings, you mean ? Answer. Cabinet meetings. Question. Have you been recognized as Sec- retary of War ad interim ? Answer. I have been. Question. Continually? Answer. Continually. Question. By the President and the other members of the Cabinet? Answer. Yes, sir. Question. Down to the present hour? Answer. Down to the present hour. Question. All your action as Secretary of War ad interim has been confined, has it not, to attending Cabinet meetings ? Answer. It has. I have given no order whatever. Question. Have you given any advice to the President? You being one of his constitu- tional advisers, have you given him advice as to the duties of his office, or the duties of yours ? Answer. The ordinary conversation that takes place at meetings of that kind. I do not know that I gave him any particular advice. Question. Did he ever call you in ? Answer. He has asked me if I had any busi- ness to lay before him several times. Question. You never had any ? Answer. I never had any except the case of the note I proposed sending to General Grant. Question. I want to inquire a little further about that. He did not agree to send that notice, did he ? Answer. When I first spoke to him about it I told him what the mode of getting possession of the papers was, to write a note to General Grant to issue an order calling upon the heads of bureaus, as they were military men, to send to me communications designed either for the President or the Secretary of War. That was one mode. Question. What was the other mode you suggested? Answer. The other mode would be to require the mails to be delivered from the city post office. Question. And he told you to draw the order? Answer. No ; he did not. Question. But you did? Answer. I did it of myself, after having this talk? Question. Did he agree to that suggestion of yours ? Answer. He said he would take it and put it on his own desk. He would think about it. Question. When was that? Answer. On the 10th. Question. Has it been lying there ever since as far as you know ? Answer. It has been. Question. He has been considering ever since on that subject? Answer. I do not know what he has been doing. Question. Has he ever spoken to you or you to him about that order since ? Answer. Yes. Question. When? Answer. I may have mentioned it one day at the council, and he said we had better let the matter rest until after* the impeachment. I think that was it. Question. Until after the impeachment trial was over? So it is resting there awaiting this trial, as you understand ? Answer. Yes^ sir. Question. Not to be brought up till then ? Answer. I so understand. Question. With the exception of that, attend- ing those meetings has been your entire busi- ness as Secretary ad interim 1 Answer. Yes, sir. Question. Now, has he ever asked you to know where the troops were about Wash- ington ? Answer. He never did. Question. Or whether there had been any changes of troops? Answer. He never did. Question. You tell us you attended a mas- querade ball that night. Did you keep the President advised of where you were ? Answer. I did not. Question. Did you tell Colonel Moore where you were? Answer. I did not. Question. Did you tell him where you were going? Answer. I think not — no. Question. You are pretty sure about that? Answer. He might have known I was going to th e masquerade ball. I had procured tickets for my children some days before. Question. Did the President in any of these interviews with you, his Cabinet counselor, his constitutional adviser, ever suggest to you that he had not removed Mr. Stanton ? Answer. Never. He always said that Mr. Stanton was out of office ; he took that ground at once? Question. Were you not somewhat surprised when you heard Mr. Curtis say here yesterday that he was not removed? Answer. I do not know anything about that. Question. Did he ever tell you that you were not appointed? Answer. No. Question. Have you not always known you were appointed ? Answer. Yes. Question. Has he not over* and over again told you you were appointed ? Answer. No ; not over and over again. Question. But two or three times ? Answer. I do not know that it has come up at all. He may have done it two or three times. Question. He never suggested to you from the day he gave you that paper, when he was going to support the Constitution and the laws, down to to-day, he never intimated to you that you were not appointed regularly as Secretary of War, did he ? Answer. No. Question. And that he had not appointed you. Answer. No. Question. Nor none of the Cabinet, his con- stitutional advisers say, "You are not ap- pointed, General ; you are only here by suffer- ance?" None of them ever said that, did they? Answer. None of them ever said that to me. Question. Tellus, if you can, what you meant when you told the President you were going to uphold the Constitution and the laws ? Answer. Why, to be governed by the Con- stitution and the laws made in pursuance thereof, of course. Question. You were going to be governed by the Constitution and the laws made in pursu- ance thereof. Did you include in that the tenure-of-office bill? Answer. Yes, sir ; so far as it applied to me. Question. You were going to uphold the Constitution and that particular law ; you had that in your mind at the time, had you not ? Answer. Not particularly in my mind at the time. Question. You did not make any exception of that? Answer. No ; I made no exception ; you have got my language. Question. Has not the President given you directions about other things than taking pos- session of the War Office? Answer. He has told me on several occa- sions what he wanted. He wanted to get some nominations sent up here. They were on the Secretary's table, on Mr. Stanton stable. Question. And he could not get them? Answer. He did not get them. Question. Well, he could not? Answer. I do not say that. Question. What did he tell you, whether he could or could not get them ? Answer. I do not know whether he could or could not. I could not get them. Question. And he could not as far as you know? Answer. I do not know that he could not. Question. And he complained to you ? Answer. He did not complain to me, but he said that cases were lying over, and some of them military cases, that ought to be disposed of. I mentioned it to Mr. Stanton twice that the President wanted those nominations and he said he would see to it. This was while I was acting as Adjutant General, not as Secre- tary of War. By Mr. Stanbery: Question. Did he send them to the Presi- dent? Answer. He did not, to my knowledge. By Mr. Manager Butleb : Question. Now, at any other of these times, when he has given you directions, has he ever told you he was going to uphold the Constitu- tion and the laws? Answer. No ; I think not. Question. Did he ever tell you he was going to uphold the Constitution and the laws? Answer. That is the only time that conver- sation occurred between us. Question. Can you give any reason why both of you should come to the conclusion that the Constitution and the laws wanted upholding about that time? Answer. No. Question. What had happened to the Con- stitution and the laws, or was about to hap- pen, that required you both to uphold them? Answer. 1 do not know that anything was about to happen. Question. Well, what had happened? Answer. Nothing had happened. Question. Why did he so solemnly tell you there, upon this occasion, that he was going to uphold the Constitution and laws, and why did ytou say, " I will uphold the Constitution and laws?" Answer. Why, it was the most natural thing in the world. He made the remark to me. Question. Now, about Mr. Karsner, and I will not trouble you much further. Were you examined before the Managers about Mr. Karsner' s testimony? Answer. It was read to me there. Question. As taken down from his lips ? Answer. 1 suppose so. Question. Was it not substantially almost exactly as he gave it here ? Answer. I do not know how he gave it here exactly. Question. Did not you hear him ? Ansioer. There was one point in it I did not agree to. Question. Did you hear him give it here ? Answer. Partially. I could not hear all where I was sitting. Question. As it was read over to you there, were you not asked in Karsner' s presence if there was anything that he said that was not true? Answer. That question was asked me and I answered yes. Question. What did you say it was he said that was not true ? Answer. I think he testified here Question. No ; there ? Answer. I do not know there. I am speak- ing now of a portion of the testimony here. Question. You told me you did not hear here, and theraikre I confine my question to what occurred before the Managers. Keep your mind, if you can, to the time when you were before the Managers. Did you not sit down before the Managers and there have Mr. Kars- THE CONGRESSIONAL GLOBE. 147 ner's testimony read over to you in his pres- ence? Answer. It was read over, but not at my instance at all. It was read to me, and I was asked if it was correct, and I said "Yes." Question. You were asked if it were correct and you said "Yes." Did you object that any single word was not correct? Answer. I did not object to any word. I objected to his manner. Question. How could you see his manner on paper? Answer. You asked him to get up and show it. Question. Then, after you got there, when that was read over to you, did you say, " I did not say 'kicking;' Karsner said 'kicking' to me." Did you say that? Answer. No ; I did not. Question. Then did you not say, when asked for any explanation, that it was playful; was not that the only explanation you gave? Answer. I said it was playful on my part. Question. Was not that the only explanation you gave before the Managers? Answer. I do not recollect; I suppose it was, though. Question. Was not Mr. Karsner then called up and asked whether it appeared playful to him? Answer. Yes ; he was. Question. And did not he testify to you that it was not playful at all, but that you seemed to be very earnest? Answer. Yes ; he did. Question. And did he not illustrate your earnestness by the way you brought yourself down? Answer. That is one point where I say he was mistaken. He applied that to the time I said we would kick him out. He applied it to that, which was not the case. It was the third time he asked me to standfirm ; then I straight- ened myself up in that way. Question. And you think he applied it to the time you were to kick him out? Answer. Yes, sir. Question. Did you object then that you your- self did not use the words " Kick him out?" Answer. No ; I did not. I said it was in answer to a question from him. I have had time to think that matter over after I was called up there, and I have gone over the whole in my own mind after I got home. Question. That was the 13th of March you were asked before us, was it not? Mr. E VARTS. Allow me to ask if you will allow us to have a copy of the testimony to which you are now referring — Mr. Karsner' s testimony before the Managers. Mr. Manager BUTLER. With great pleas- ure. I gave it to Mr. Stanbery when Mr. Karsner was here. Mr. SHERMAN. I was about to make a motion to adjourn. Mr. Manager BUTLER. I am about through. I will be through in a minute. [To the wit- ness.] Upon your reinstatement in office as adjutant general did you address the clerks ? Answer. I did make a short address to each section of them. I sent for the officers in charge and told them I would like to see the clerks. Question. Was that within three days of the time you were appointed Secretary of War ad interim ? Answer. It was between the time I was re- instated as adjutant general and the time I was appointed Secretary of War; I do not recollect what particular day. Mr. Manager BUTLER, (to the counsel for the respondent.) The witness is yours, gentle- men. Mr. STANBERY. We will ask some ques- tions. Mr. HENDERSON. Mr. President, I move that the Senate sitting as a court do now ad- journ. The motion was agreed to ; and the Sen- ate sitting for the trial of the impeachment adjourned. Saturday, April 11, 18G8. The Chief Justice of the United States en- tered the Senate Chamber at twelve o'clock and five minutes p. m., and took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives appeared and took the seats assigned them. The counsel for the respondent also ap- peared and took their seats. The presence of the House of Representa- tives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. Washburne, the chair- man of that committee, and accompanied by the Speaker and Clerk, entered the Senate Chamber and were conducted to the seats pro- vided for them. The CHIEF JUSTICE. The Secretary will read the minutes of the last day's proceedings. The Secretary read the Journal of yester- day's proceedings of the Senate sitting for the trial of the impeachment. The CHIEF JUSTICE. Gentlemen of counsel for the President, you will proceed with your evidence. Mr. Manager BINGHAM. Mr. President, before the counsel for the accused proceed, I desire to say that the Managers wish to move the Senate for such change of rule twenty-one of the proceedings in this trial as will allow the Managers and the counsel for the President to be heard on the final argument, subject to the provision of the rule as it stands that the argu- ment shall be opened and closed by the Man- agers on the part of the House. Mr. SHERMAN. I should like to have the proposition repeated. I could not hear it dis- tinctly. The CHIEF JUSTICE. The honorable Manager will please reduce his proposition to writing. Mr. Manager BINGHAM. I will. [After writing the proposition.] Mr. President, I desire to read the motion as reduced to writing. Mr. CONKLING-. I beg to statethat the voice of the Manager is entirely inaudible here. Mr. Manager BINGHAM. "The Managers move the Senate to so amend rule twenty-one as to allow such of the Managers as desire to be heard, and also such of the counsel for the Presi- dent as desire to be heard, to speak on the final argument, subject to the provision of the rule that the final argument shall be opened and closed by the Managers on the part of the House." The CHIEF JUSTICE. Senators, it is moved by the Managers on the part of the House of Representatives, that the twenty-first rule be so modified as to allow as many on the _part of the Managers and as many on the part of the counsel for the President to be heard as may see fit to address the Senate in the final argument. Mr. POMEROY. Mr. President, as that is in the nature of a resolution, under our gen- eral rule it should lie over one day for consid- eration. The CHIEF JUSTICE. The Chief Justice was about to observe that the proposition re- quired some answer on the part of the Senate, and that it would be proper for some Senator to make a motion in respect to it. Mr. BUCKALEW. I move that the reso- lution be laid over for consideration until to-morrow. The CHIEF JUSTICE. It goes over, of course, if there be objection. Mr. EDMUNDS. I would inquire of the Chair whether the twenty-first rule does not now provide by its terms that this privilege may be extended to the Managers and the counsel if the Senate so order ; and I would therefore inquire whether any amendment of the rule be necessary if the Senate should desire to extend that privilege ? The CHIEF JUSTICE. Certainly not. It is competent for any Senator to move such an order ; but the Chair has yet heard no motion to that effect. Mr. FRELINGHUYSEN. Mr. President, I make the motion that the order be adopted. It of course is not necessary that it should lie over, as it is provided for in the rule that this order may be adopted. Mr. POMEROY. I have no objection to taking the vote now, if it is desired. I do not care to have it lie over to another day. The CHIEF JUSTICE. The Senator from New Jersey will please reduce his order to writing. Mr. SHERMAN. If it is in order, I will move that the twenty-first rule be relaxed so as to allow three persons on each side to speak under the rule, instead of two. The CHIEF JUSTICE. That motion will be in order as an amendment to the order pro- posed by the Senator from New Jersey. Mr. SHERMAN. I withdraw it for the pres- ent to allow the vote to be taken on that. The order proposed by Mr. Frelinghuysen having been reduced to writing and sent to the desk — The CHIEF JUSTICE. The Secretary will read the order proposed by the Senator from New Jersey. The Secretary read as follows : Ordered, That as many of the Managers and of tho counsel for tho respondent be permitted to speak on the final argument as shall choose to do so. The CHIEF JUSTICE. That order will be considered now unless objected to. Mr. HOWARD. Mr. President, I hope that order will be laid over until the next day's session The CHIEF JUSTICE. If objected to, it will lie over. Mr. HOWARD. I object. Mr. TRUMBULL. An objection does not carry it over, does it? The CHIEF JUSTICE. The Chair thinks it does. Mr. TRUMBULL. It does not change the rule. The rule provides for this very thing being done, if the Senate choose to allow it. Mr. CONKLING. Mr. President, may I inquire under what rule of the Senate thus organized it is that this motion lies over upon the objection of a single Senator? The CHIEF JUSTICE. The Chief Justice in conducting the business of the court adopts for his general guidance the rules of the Senate sitting in legislative session as far as they are applicable. That is the ground of his decision. Mr. CONKLING. The reason for my in- quiry was this : the very rule we are discuss- ing provides that a certain thing shall happen "unless otherwise ordered;" and I supposed that a motion otherwise to order was always in order. The CHIEF JUSTICE. It is competent for the Senator from New York to appeal from the decision of the Chief Justice. Mr. CONKLING. Oh, no, sir; I merely made the point by way of suggestion to the Chair. Mr. JOHNSON. Mr. Chief Justice, I ap- peal to the honorable member from Michigan to withdraw The CHIEF JUSTICE. No debate is in order. Mr. JOHNSON. I am not about to debate it, sir. If they are to have an opportunity of addressing the Senate they ought at once to know it on both sides. The CHIEF JUSTICE. Gentlemen of counsel for the President, you will please to proceed with the defense. Lorenzo Thomas — examination continued. Mr. STANBERY. General Thomas wishes to. make some explanatory statements. The Witness. I wish to correct my testi- mony yesterday in one or two particulars. I read a letter signed by Mr. Stanton addressed to me on the 21st of February. The date mis- led me ; I did not receive a copy of that letter until the next day after I had made the demand for the office. The Secretary came in and 148 SUPPLEMENT TO handed me the original, and my impression is that I noted on that original its receipt. It was then handed to General Townsend, who made the copy that I read here, and handed it to me. I had it not until after the demand on the 22d of February. By Mr. Stanbery: Question. Then, when you saw the President on the afternoon of the 21st you had not yet received that letter from Mr. Stanton? Answer. I had not. Question. You then stood upon the interview which you referred to ? Answer. I did. The next correction I want to make is that I am made to say here that the President told me "to take possession of the office." His expression was " take charge of the office." Question. Are you certain that that was his expression? • Answer. Positive. I was asked if I could give the date of my brevet commission. I do not know whether it is important or not, but I have it here. Question. What is the date? Answer. The brevet of major general 13th of March, 1865. Question. Upon whose recommendation was that? Who first suggested it? Answer. Mr. Stanton gave it to me. Question. Did you ask him for' it or did he volunteer it? Mr. Manager BUTLER. That is not in the nature of correction or of explanation. Mr. STANBEEY. He could not get it yes- terday. It was an omitted fact, and he passed it until he could get his commission. Mr. Manager BUTLER. Very good. By Mr. Stanbery : Question. How was it — asked for or volun- tarily tendered? Answer. He had more than once said he intended to give it to me, and on this occasion, when I came from some important duty, I said that the time had arrived when I ought to have this commission. He said "certainly," and gave it to me at once. I do not think he ever intended to withhold it. There is another point I want to state. When I was before the committee, or the honorable Managers, General Butler asked the clerk, I think it was, for the testimony of Dr. Burleigh. He said he had it not, that it was at his home. I do not know whether I said or he said, " It makes no difference." He asked me a num- ber of questions in reference to that. I as- sented to them all. I never heard that testi- mony read. Question. You never heard Dr. Burleigh' s testimony read? Answer. No, sir ; nor do I recollect the par- ticular questions, except that they were asked me and I assented. I said that Dr. Burleigh, no doubt, would recollect the conversation bet- ter than I. By Mr. Manager Butler: Question. General Thomas, how many times yesterday did you answer that the President told you each time to "take possession of the office?" Answer. I have not read over my testimony particularly. I do not know how many times. Question. Was that untrue each time you said it? Answer. If I said so it was. " Take charge ' ' were the words of the President. Question. Have you any memorandum by which you can correct that expression? If so, produce it. Answer. I have no memorandum with me here ; I do not know that I have any. Question. Have you looked at one since you were on the stand ? Answer. I have not. Question. How can you tell better to-day than you could yesterday.? Answer. Because I read that evidence as recorded. Question. You gave it yesterday yourself? Answer. I did. Question. And you could know better what it was by reading it than when you testified ' to it? Answer. Yes, sir. Question. And you are sure the word was " charge " each time ? Answer. ' ' Take charge of. " Question. And then the throe times when you reported to him that Stanton would not go out, refused to go out, each time he Baid, " Take charge of the office?" Answer. He did. Question. Was your attention called at the time he said that to the difference between taking "charge" of the office and taking "pos- session" of it? Answer. My attention was not called to it. Question. How, then, do you so carefully make that distinction now in your mind? Answer. Because I know that that was his expression. I have thought the matter over. Question. You have always known that that was his expression, have you not? Answer. Yes. Question. And you have thought the matter over? Answer. Yes. Question. Well, then, how could you make such a mistake yesterday? Answer. I think the words were put into my mouth ; I do not recollect distinctly. Question. The same as Karsner put in about the "kicking out?" Answer. Yes. Question. And you are rather in the habit, are you, when words are put into your mouth, of using them? Answer. I am not always in the habit. Question. Why was yesterday an exception ? Answer. I do not know why it was an ex- ception. Question. I want to ask you another ques- tion on another subject which was omitted yesterday ? Answer. Certainly. Question. After you and Karsner were sum- moned here as witnesses, did you go and quar- rel with him? Answer. I had some words with him in the room here adjoining. Question. Did you call him a liar and a per- jurer ? Answer. I did. Question. You called him a liar and perjurer, did you? Answer. I think I did both ; I certainly did call him a liar. Question. And a perjurer ? Answer. I think it is probable I did ; but the "liar," I know. Question. You knew that he and you both were in the witness-room waiting to be called? Answer. I was here. Question. And you knew he was here for. that purpose ? Answer. I presume I did ; yes. Question. And while he was there you un- dertook to talk with him about his testimony ? Answer. I stated to him in the two instances ; I will give them to you Question. Just answer my question, sir; I have not asked you what you said. I only ask you this question, whether you undertook to talk with him about his testimony ? Answer. I do not know who introduced the conversation. It was certainly not I, I do not think, for he was there some time before I spoke to him. Question. Did you speak first or he? Answer. That I do not recollect. Question. Now, then, did you tell him that he was a liar and a perjurer at that time ? Answer. I did tell him he was a liar, and I may have said he was a perjurer. Question. Did you offer violence to him? Answer. I did not. Question. Did you speak violently to him? Answer. I did not, except in that way. Question. Were you then in full uniform as now? Answer. As I am now. Question. There is another question I want to ask you which was omitted. Do you still intend to take charge or possession of the office of Secretary of War ? Answer. I do. Question. Have you said to any person within a few days, "We'll have that fellow," mean- ing Stanton, " out, if it sinks the ship?" Answer. Never. Question. Did you say so to Mr. Johnson ? Answer. I did not. Question. Anything to that effect ? Answer. Not that 1 have any recollection of. Question. Do you know whether you did or not? Answer. What Mr. Johnson do you mean? Question. Mr. B. B. Johnson. Answer. There was a Mr. Johnson came to see me at my house in reference to another matter, and we may have had some conversa- tion about this. Question. When was it that that Mr. John- son came to your house to see you about another matter ? Answer. That I hardly recollect. Question. About how long ago ? Answer. I am trying to recollect now. He came to me about the business Question. Never mind what his business was. When was it? Answer. But I want to call it to mind. I have a right to do that, I think. Question. But not to state it? Answer, I took no note of the time, and I can hardly tell. It was recently, not very long ago. Question. Within two or three days ? Answer. No, sir ; before that time. Question. Within a week? Answer. I think it is more than a week. Question. Let me give you the date — on Fri- day, a week ago yesterday ? Answer. I cannot give the date. I do not know it. Question. Was it longer than that? Answer. Well, I did not charge my memory with it. It was a familiar conversation we had. Question. Were you joking then? Answer. Certainly. Question. Oh, joking? Answer. Yes. Question. Did you, jokingly or otherwise, say these words: "and we'L have Stanton out of there if we have to sink the ship?" Answer. I have no recollection of making use of that expression. Question. Did you make use of one equiva- lent to that in substance? Answer. I have no recollection of it. Question. Have you such a recollection of what you say as to know whether you did or not? Answer. I have not. I would rather he would testify himself; he kn ows it better than I. I cannot recollect all the conversation I had. Question. Do you deny that you said so? Answer. I cannot deny it, because I do not know that I did. Question. You sayyou would rather he would testify; and I will .try to oblige you in that re- spect ; but if you did say so, was it true or merely more brag? Answer. You may call it as you please; brag, if you say so. Question. I do not want to put words into your mouth ; what do you call it? Answer. I do not call it "brag." Question. What was it? Answer. It was a mere conversation, what- ever it may have been. Question. Did you mean what you said, or did you say what you did not mean? Answer. I did not mean to use any violence against Mr. Stanton to get him out of office. Question. What did you mean by the expres- sion "We'll have him out if it sinks the ship?" Ansioer. I have said I do not know that I used that expression. Question. You have told me also that Mr. THE CONGRESSIONAL GLOBE. 149 Johnson can tell better. I am assuming now you did say it? Mr. EVARTS. That you have no right to do. Mr. Johnson has not said so yet. Mr. Manager BUTLER. This witness does not say that he did not say so. Mr. EVARTS. That is another matter. You have not proved it yet. The Witness. I cannot say. He was there on official business in reference to an officer dismissed from the Army. Question. Official business? Answer. I mean business connected with an officer dismissed from the Army. Question. Then you were joking on this sub- ject? Answer. Certainly. Question. Did you ever see Mr. Johnson before ? Answer. I have no recollection. It is possi- ble I may have seen him. Question. Have you seen him since ? Answer. I have not to my knowledge. Question. Now, here was a stranger who called on you on official business, business pertaining to your office? Answer. No, sir. Question. OlEcial business about getting a man reinstated who had been dismissed? Answer. Yes. Question. Very good. He called upon you on business connected with the Army ? Answer. That had nothing to do with my office. Question. Now, did you go to joking with him, a total stranger, in this way ? Answer. I knew him as the lawyer employed by Colonel Belger to get him reinstated, and Colonel Belger sent him to me. Now you have got it. Question. Was he a stranger to you 1 Answer. I think he was. Question. Now, then, being a stranger, hav- ing that fixed, will you answer did you go to joking with this stranger on such a subject ? Answer. Certainly. We had quite a familiar talk when he was there. He sat with me for some time. Question. And that is the only explanation you can give of that expression? Answer. That is sufficient, 1 think. Question. Whether it is sufficient or not somebody else will judge ; is it the only one you can give ? , Answer. It is the only one I do give. Question. And it is the only one you can give? Answer. Yes. Question. A single word now upon another subject : did anybody talk with you about your testimony since you left the stand ? Answer. Since I left the stand? Question. Yes; since yesterday? Answer. Well, I suppose I have talked with a dozen persons. Question. Such as whom ? Answer. Several persons met me and said they were very glad to hear my testimony. We did not enter into any particulars about it. I have been met to-day jocularly about taking an equal, drink with the Secretary of War by two or three persons. I have talked in my own family about it. Question. Has anybody talked to you about these points, or have you talked to anybody about these points where you have changed your testimony? Answer. I came here this morning and saw the Managers, and told them wherein I wanted Mr. Manager BUTLER. The Managers ! You do not mean that quite? Mr. EVARTS. The counsel for the Presi- dent. The Witness. I saw the counsel for the Pres- ident, and told them I wished to make correc- tions. By Mr. Manager Butlek : Question. You did not mean the Managers ; you meant the counsel 1 Answer. I meant the counsel; these gen- tlemen sitting here, [pointing to the counsel for the President.] Question. That you had a perfect right to do. Had you talked with anybody before that about these points? Answer. Yes. Question. Whom? Answer. General Townsend this morning. Question. The Assistant Adjutant General? Answer. Yes. Question. Anybody else? Answer. About these points? Question. Exactly. Answer. No. Question. Are you sure ? Answer. I have said no. I am sure. Question. Now, sir, did you not receive a letter from Mr. Stanton, whether a copy or not, on the 21st of February? Answer. I did not. Question. You said that he gave you the original, and the date is noted. Have you seen that original? Answer. Since? Question. Yes. Answer. I "have not. Question. The date was noted on that ori- ginal. When was that original given you? Answer. The one I read here on the 22d? Question. I did not ask you, "the one you read here" — the original ; when was that given you? Answer. On the 22d. Question. Did you have more than one paper given you ? Answer. That was handed to me, and then it was handed to General Townsend, who made a copy, and the Secretary gave me the copy which I read here. The other paper I have not seen. Question. And that was the 22d 1 Answer. On the 22d, dated the 21st. Question. Prepared, then, the day before? Answer. I suppose so. It has the date of the day before. Question. Then do you mean to take all back that was said in the room of Mr. Schriver about your not going on with the office or their not obeying you on the afternoon of the 21st? Answer. Oh, yes ; it was the 22d, because General Townsend was not there on the 21st. Question. Then on the 21st there was nothing said about his not obeying you? Answer. 1 think not. Question. Nothing said to Schriver about not obeying you ? Answer. I think not. Question. Then there was nothing said about not obeying you on the 21st at all? Answer. I think not. Question. And you never reported to the President that Stanton would not obey you on the 21st ? Answer. I reported to the President the two conversations I had with him. Question. What were the two ? The one in Schriver's room seems to have gone out. What were the two ? Mr. EVARTS. There were two besides that, Mr. Butler. Mr. Manager BUTLER. The witness will tell me. Mr. EVARTS. But you said it was not so. Mr. Manager BUTLER. I did not. I said that one seemed to have gone out. Mr. EVARTS. One of the conversations. That was not one. of the two. Mr. Manager BUTLER. I do not know that. The Witness. General Schriver did not hear either of these conversations. Question. Then on the 21st there was no such conversation that you testified to ? , Answer. Not in reference to that letter — no. Question. Was there any conversation at all as to General Townsend's not obeying you, or General Schriver's not obeying you, on the 21st? Answer. None. Question. Then what you told us yesterday, that you reported that to the President and got his answer to that, all that was not so, was it? Answer. All that was not so. Question. Now, upon another matter. When you were examined before the committee Answer. Which committee? Question. The committee Answer. I have been examined twice. I only want to know. Question. The committee of the House, not the Managers. You were asked this question : " Did you make any report to the President on Friday of what had transpired," and did you not answer in these words : " Yes, sir ; I saw the President and told him of what had oc- curred." He said, "Well, go along and administer the Department." When I stated what had occurred with Mr. Stanton, he said to me, " You must just take possession of the Department and carry on the business." Did you so swear before the committee? The witness not replying-*- Question. Let me give you the words again? Answer. I thoughtyou were waitingfor some- body else. I say, as I said before, the words were : "Take charge " Question. That is not the question. Answer. What is the question ? Question. The question is this : in answer to a question which 1 will read again to show you that the words were not put in your mouth, in these words, "Did you make any report to the President on Friday of what had transpired," did you not answer in these words, "Yes, sir ; I saw the President, and told him of what had occurred." He said* " Well, go along and ad- minister the Department." And did you not proceed to state, " When I stated what had occurred with Mr. Stanton, he said ' You must just take possession of the Department and carry on the business.' " Now, sir, did you swear that ? That is the only thing I asked you. Answer. If that is there I suppose I swore to it. I want to make one statement, though. Question. Was it true ? Answer. No ; the word used was the other. Mr. Manager BUTLER. That is all. The Witness. I wish to make one state- ment in reference to that very thing. I think I ought to do it. I was called there hastily. There were a good many events that had trans- pired. I requested on two occasions that committee to let me wait and consider, and they refused, would not let me do it, pressed me with questions all the time. By Mr. Manager Bdtler : Question. How was that ? Answer. When I was called before that com- mittee on the evening of — - Mr. Manager BUTLER. February 26. The Witness. On the evening of the day of my trial. I went there after getting through with that trial. I on two occasions requested them to postpone the examination until next morning, or until I could go over the matter. That was not allowed me. Question. Did you make any such request? Answer. I did twice. Question. Of whom did you make it? Answer. To those who were there. Question. Who was there ? Answer. I think the committee was pretty full. Question. The committee on preparing the articles of impeachment were there? Answer. Yes, sir. Question. That committee you mean, and the committee was full? Answer. I do not know whether Mr. Stevens was there. He was there a portion of the time. I do not know whether he was there at this particular time. Question. And you tell the Senate now on your oath that you requested the committee to give you time to answer the questions, and they refused you ? Answer. I requested that it might be deferred until the next morning, when I could have an opportunity to go over in my own mind those things. It was not granted. There was no refusal given, but I was still pressed with questions. 150 SUPPLEMENT TO Then there is another matter I want to speak about — when I came to correct that testimony. There are two things there that are confounded in reference to dates ; the first part of it, the date of my appointment as Adjutant General and that of my appointment as Secretary of War ad interim — I supposed they were asking me in reference to the former, and that is the reason those two questions got mixed up. Then when I went there to correct my testimony I wished to do it. I read it over and found that some of it was not in English, and I thought there was something taken down, and I believe there was, that I did not say. They would not per- mit me to correct the manuscript, but 1 put something at the bottom just in a hasty way. I suppose it is on that paper, [pointing to a manuscript in the hand of Mr. Manager But- lek.] I do not know. Question. I wili come to that. Now, then, have you got through with your statement? Answer. I have. Question. Very well, then, you will answer me a few questions. Did you not come and ask to see your testimony as it was taken down by that committee ? Answer. I went to the clerk and saw him. Question. Did he give you the report which I hold in my hand ? Answer. He was not in ; and I came the next day, the second day, and he handed it to me ; and twice he went, I think, to some mem- ber of the committee, I do not know who. I said I wished to correct it ; I wanted to make it at least decent English in some respects ; but I was informed that I could not correct the manuscript, that I might Question. He reported to you that you might make any corrections in writing? Answer. Yes, sir. Question. Then, did you read the whole testi- mony over? Answer. I think I did ; I am not certain about that. Question. Do you not know you did ? Answer. No ; I do not know that I did. Question. What were you there for? Answer. I came there to correct the first part of it particularly, and that was the reason I went there. I took it for granted that the rest was correct. Question. You did not want to correct any other portion of it? Answer. No. Question. And the first part of it only re- ferred to the mistake in the time about your being made Adjutant General or being made Secretary of War ? Answer. It had reference to the notification given me more particularly ? Question. By the President? Answer. I had stated the notification Question. The notification by the President to be Secretary of War or Adjutant General that was mixed? Answer. That was mixed. Question. That was what you wanted to cor- rect? Answer. I stated that I received that notifi- cation from Colonel Moore. Colonel Moore did give me the notification that I would prob- ably be put back as Adjutant General, but he did not as Secretary of War. Question. That was what you wished to cor- rect? Answer. That was the principal correction I wished to make. Question. And you did not want to correct anything else? Answer. If there was anything wrong, I did. My corrections are there, whatever they may be. I suppose that is the paper. Question. You then went over your testi- mony, did you not, and corrected such portions as you pleased? Answer. Oh, I had full privilege to do that, of course. Question. And wrote out here portions of two sheets which are in your handwriting, are they not, of corrections? [Showing the pages to the witness.] Answer. Yes, sir, I corrected in my own handwriting. Question. And signed it "L. Thomas, Ad- jutant General?" Answer. Yes, sir. There are not two sheets, however. There is one sheet and a little more. Question. I said portions of two sheets. Now, sir, having read over your testimony and attempted to correct it, did you correct any- thing in this portion in which you are reported as saying that the President ordered you to go forward and take possession and administer the office? Answer. I do not think I made any such correction as that. Question. You have sworn that that was not true. Why did you not correct it ? Answer. I have said so because I know his expression. Question. Why did you not correct it before ? Answer. Well, I have thought the matter over. By Mr. Stanbery : Question. General Thomas, I find a report of your testimony as given yesterday, as you gave it originally, on the examination as to the first interview with the President, which I will now read to you and see whether it is correctly reported : "Question. What occurred between the President and yourself at the second interview on the 21st of February ? " Witness. I stated to tho President that I had delivered tho communication, and that ho gave this answer. " Mr. Staneekt. What answer? "Witness. The answer, 'Do you wish mo to va- cate at once, or will you give mo time to tafeo away my private property,' and that I answered, ' at your pleasure.' I then stated that, after delivering the copy of the letter lo him, ho said, 'I do not know whether I will obey your instructions or resist them.' " The Witness. I said "act your pleasure." Mr. STANBERY. Now, the point of your answer I wish to bring to your attention is this : " This I mentioned to tho President. His answer was, ' Very well ; go on and tako charge of the office and perform the duty.' " Did you say that? Answer. I said that. Question. It was in the cross-examination that this "possession" came out, was it not? Answer. Yes, sir. By Mr. Manager Butler : Question. Then you mean to say that in an- swer to Mr. Stanbery you put it all right yes- terday, and in the answer to me you got it all wrong? Answer. In reference to your examination. Mr. STANBERY. We will see how your examination was by and by. We shall want General Thomas as to what took place on the trial after we put in the record. Mr. Manager BUTLER. Call him in at any time ; we shall always be glad to see him. [Laughter.] General Thomas. Thank you, sir. William T. Sherman sworn and examined. By Mr. Stanbert: Question. General Sherman, were you in Washington last winter ? Answer. I was. Question. What time did you arrive here ? Answer. About the 4th of December last. Question. How long did you remain here ? Answer. Two months. Question. Till the 4th of February, or about that time? Answer. Until about the 3d or 4th of Feb- ruary. Question. On what business had you come? Answer. I came as a member of the Indian peace commission by adjournment. Question. Any other business at that time? Answer. At that time no other business. Subsequently, by order, I was assigned to a board of officers organized under the'laws of Congress to submit articles of war and regu- lations for the Army. Question. At what date was that assign- ment? Answer. I could procure the order, which would be perfect evidence of its date ; but I must now state that it was within ten days of my arrival here ; about ten days. Question. About ten days after your arrival Her© ? Answer. About the middle of December that order was issued. Question. Then you had a double duty? Answer. I had a double duty for a few days. Question. During that time, from the 4th of December until the 3d or 4th of February, had you several interviews with the President? Answer. I had. Question. Did you see him alone, when there was no person present but the President and yourself? Answer. Yes, sir. Question. Did you see him also in company with General Grant? Answer. I saw him in company with Gen- eral Grant once, and I think twice. Question. Had you several interviews with him in relation to the case of Mr. Stanton ? Answer. I had. Mr. Manager BINGHAM. Mr. President, we desire, without delaying the Senate, to re- spectfully submit our objections here again, without desiringto argue it. We believe it our duty, as the representatives of the House, to object Mr. STANBERY. Object to what? Mr. Manager BINGHAM. That the decla- rations of the President touching any matter involved in this issue, not made at the time when we have called them out ourselves, are not competent evidence, and desire to submit the point, if such is the pleasure of the Senate, to the ruling of the presiding officer. Mr. STANBERY. Allow me to come to some question that we can get started upon. This is introductory. Mr. Manager BINGHAM. I understand it so. Mr. STANBERY. You will soon see what our object is with General Sherman. There will be no mistake about it when we come to it. Mr. Manager BINGHAM. I understand the object is to call out conversations with the President The CHIEF JUSTICE. At present no such question has been asked. Mr. STANBERY. Now we will come to the point very quick. [To the witness.] Gen- eral, while you were here, did the President ask you if you would take charge of the office of the Department of War in case of the re- moval of Mr. Stanton ? Mr. Manager BUTLER. I object to the question, and ask that it be reduced to writing. The CHIEF JUSTICE. The counsel will reduce the question to writing. Mr. STANBERY. Do you object because it is leading or because of the substance of it ? Mr. Manager BUTLER. I object to it for every reason. Mr. STANBERY. Then I will put it in a form Mr. Manager BUTLER. I beg your pardon; put it in writing. Mr. STANBERY. I will lay a foundation first. [To the witness.] At what time were those interviews? Have you a memorandum ? The Witness, (consulting his memoranda.) The interview with General Grant and the President, do you refer to ? Mr. STANBERY. No ; any interview. I will ask you a question that will relieve you, perhaps. Had you interviews with the Presi- dent before Mr. Stanton came back to the office, while General Grant was yetinit? The Witness. Yes, sir ; of a social nature entirely, before that time. Question. Had you interviews with him after that? Answer. I had. Question. How long after that; after Mr. Stanton came back? Answer. The day following, I think. Question. Were you and the President alone at that interview the day after? Answer. General Grant was also present? Question. What did that interview relate to? THE CONGRESSIONAL GLOBE, 151 Answer. The removal Mr. Manager BUTLER. Stop a moment. Do not get it in indirectly. Meet the question man fashion, please. Mr. STANBERY. What did it relate to? Mr. Manager BUTLER. That gives the sub- stance of it. I object. Meet the question. Mr. STANBERY, (to the witness.) Did it relate to the occupation of the War Depart- ment by Mr. Stanton ? The Witness. It did. Question. Now, what was it? Mr. Manager BUTLER. Stop a moment. We object. We ask that it be put in writing. By Mr. Stanbery : Question. What conversation passed between you and the President ? Mr. Manager BUTLER. Excuse me. I asked to have the question in writing. Shall I have it? I have three times attempted, and each time failed. The CHIEF JUSTICE. The counsel will please reduce the question to writing. The question, having been reduced to writ- ing, was handed to and read by the Secretary, as follows : In that interview what conversation took place be- tween the Prosident and you in regard to the removal of Mr. Stanton? Mr. Manager BUTLER. To that we object. I suppose we can agree on the day. That must have been the 14th of January last. On the 13th Mr. Stanton was reinstated ; and the 14th, if it was the day after, would be the date. Mr. STANBERY, (to the witness.) Can you give us the day of that conversation, Gen- eral? The Witness. Yes, sir. [Consulting amem- orandum.] Accordingto a memorandum which I hold Mr. Stanton reentered on the possession of his office of Secretary of War on Tuesday, the 13th. Monday was the 12th, Tuesday the 13th. The conversation occurred on Wednes- day, the 14th of January. The CHIEF JUSTICE. _ The Chief Justice thinks the question admissible within the prin- ciple of the decision made by the Senate relating to a conversation between General Thomas and the President ; but he will put the question to the Senate, if any Senator desires it. Mr. CONNESS. On that I ask for a vote and for the yeas and nays. The yeas and nays were ordered. Mr. Manager BUTLER. We should like to hear the grounds on which the offer is made stated. Mr. STANBERY. The Managers ask me to state the grounds upon which we expect this testimony Mr. Manager BUTLER. No, sir. Mr. STANBERY. What, then? Mr. Manager BUTLER. I ask you simply for the ground on which you put it — not the testimony ; the grounds on which you can put in any possible declaration, not the declara- tion itself. Mr. STANBERY. This ground: we ex- pect to prove by General Sherman _ Mr. Manager BUTLER. I object, sir. I have not asked that. Mr. STANBERY. Is it not admissible to say what we expect to prove? Mr. Manager BUTLER. No, sir ; that is to get before the court, Mr. Chief Justice Mr. STANBERY. ' ' Get before the court 1 ' ' Mr. Manager BUTLER. Get before the court orthe Senate — that I should fall into bad habits sometimes is not wonderful, [laughter] — it is to get before the Senate the testimony by statements of the counsel. The question wholly and solely is whether the declarations of i he President can be given in evidence. What those declarations are, in my judgment, it would be improper to state and unprofes- sional to state, because that is begging the whole question and attempting to get them before the Senate and the country by the re- cital of the counsel. That never is permitted. The sole question is, whatever the declarations are, if any possible declaration can be compe- tent at that time. If the declaration asked for can be competent you may assume that any possible conversation can be competent, and then we will assume that this Mr. STANBERY. Exactly ; then you come to the point. Mr. Manager BUTLER.. That this can be, and therefore there is no occasion to state what it is. Mr. STANBERY. Take it in that way, any possible declaration can be evidence. Do you propose to argue this ? Mr. Manager BUTLER. We do not want to argue it. Mr. STANBERY. We do. Mr. Manager BUTLER. If the Senate will vote that it is competent we cannot alter it by argument. Mr. STANBERY. Mr. Chief Justice and Senators, the testimony which we expect to elicit from General Sherman I look upon as vital upon the question of intent, as testimony we are entitled to have upon legal grounds perfectly well settled and perfectly unanswer- able. I can say now in argument, I presume, what I expect to prove. "If, " says the hon orable Manager, ' ' any declarations you choose to call out are admissible, you may make them as strong as you please — imagine any that you please — and still no declaration of the Presi- dent made on that 14th of January can be admitted here ! " Now, first of all, what is the issue here? Let the Managers speak for themselves. I first read from the honorable Manager who opened this case, at page 94 of his argument. Mr. Manager BUTLER. You read from page 94 of the record, not of the argument. Mr. STANBERY. The Manager said : " Having shown that the President willfully vio- lated an act of Congress, without justification, both in the removal of Stanton and the appointment of Thomas, for the purpose of obtaining wrongfully the possession of the War Office by force, if need be, and certainly by threats and intimidations, for the pur- pose of controlling its appropriations through its ad interim chief, who shall say that Andrew Johnson is not guilty of the high crime and misdemeanors charged against him in the first eight articles ?" Again, on page 109, speaking of the orders of removal : "These and his concurrent acts show conclusively that his attempt to get tho control of the military force of the Government, by the seizing of the De- partmontof War, was done in pursuance of his gen- eral design, if it were possible, to overthrow the Congress of the United States; and he now claims by his answer the right to control at his own will, for tho execution of this very design, every oflicer of tho Army, Navy, civil, and diplomatic service of tho United States." Again, on page 99 : " Failing in his attempt to get full possession of the office through the Senate, he had determined, as he admits, to remove Stanton at all hazards, and endeavored to prevail on tho General to aid him in so doing. He declines. For that the respondent quarrels with him, denounces him in tho newspapers, and accuses him of bad faith and untruthfulness. Thereupon, asserting his prerogatives as Commander- in-Chief, ho creates anew military department of the Atlantic. Ho attempts to bribe Lieutenant General Sherman to take command of it by promotion to the rank of general by brevet, trusting that his military services would compel tho Senate to confirm him. " If the respondent can get a general by brevet appointed, he can then by simple order put him on duty according to his brevet rank and thus have a general of the Army in command at Washington, through whom he can transmit his orders and com- Ely with the act which he did not daro transgress, as e had approved it, and get rid of tho hated Goneral Grant. Sherman spurned the bribe. Therespondent, not discouraged, appointed Major General George H. Thomas to the samo brevet rank, but Thomas declined. " What stimulated the ardor of the President just at that time, almost three years after the war closed, but just after the Senate had reinstated Stanton, to reward military service by tho appointment of gene- rals by brevet? Why did his zeal of promotion take that form and no other? There were many other meritorious officers of lower rank desirous of promo- tion. The purpose is evident to every thinking mind. Ho had determined to set aside Grant, with whom he had quarreled, either by force or fraud, either in conformity with or in spito of the act of Congress, and control the military power of the country. On the 21st of February— for all these events cluster nearly about tho same point of time— he appoints Lorenzo Thomas Secretary of War and orders Stan- ton out of the office. Stanton refuses to go; Thomas is about the streets declaring that he will put him out by force, ' kick him out.' " But, still more closely to the point, we will come to the testimony of intent, on page 251. This is upon the introduction of the case of Mr. Cooper. To show the intent of the Presi- dent, the learned Managers have gone back to the fall of 1867, and begin their proof with an intention commenced in the fall, carried along, says the honorable Manager, to the very date of the 21st of February, of the appointment of Thomas. Most of the proof, he says, ' ' clusters about that time," but it begins, he says, in the fall; and he calls Chandler to prove what? That Cooper was inducted into office by the President, being his own Private Secretary, for the purpose of carrying out what? His inten- tion to get his own man first into the War Office to control the requisitions there, and then to get his own man into the Treasury De- partment to meet those requisitions and to pay them, and thereby control the purse as well as the sword of the nation. "The only question"— says the learned Manager — "is. is this competent, if we can show it was ono of tho ways and means? The difficultythat rests in the minds of my learned friends on the other side is that they cluster everything about the 21st of February, 1868. They seem to forget that the act of the 21st of February, 1868, was only the culmination of a purpose formed long before, as in the President's answer he sets forth, to wit: as early as the 12th of August, 1867 "********** " To carry it out there are various things to do. He must get control of tho War Office ; but what good does that do if he cannot get somebody who shall be his servant, his slave, dependent on his breath, to answer the requisitions of his pseudo officer whom he may appoint; and therefore he began when? Stanton was suspended, and as early as the 12th of December he had got to put that suspension and the reasons for it before tho Senate, and he knew it would not live there one moment after it got fairly consid- ered. Now he begins. What is the first thing he does ? ' To get somebody in the Treasury Depart- ment that will mind me precisely as Thomas will, if I can get him in the War Department.' That is the first thing; and thereupon, without any vacancy, ho must make an appointment. The difficulty that we find is that we aro obliged to argue our case step by step upon a single point of evidence. It is ono of the inlelicities always of putting in a case that sharp, keen, ingenious counsel can insist at all steps on im- paling you upon a point of evidence; and therefore I have got to proceed a little further. "Now, our evidence, if you allow it to come in is, first, that he made this appointment; that this fail- ing, he sent it to the Senate, and Cooper was re- jected. Still determined to have Cooper in, he ap- pointed him nd interim, precisely as this ad interim. Thomas was appointed, without law and against right. We put it as a part of the whole machinery by which to get hold, to get, if he could, his hand into the Treasury of the United States, although Mr. Chandler has just stated thero was no way to get it except by arequisition through the War Department ; and at the same moment, to show that this was part of tho same illegal means.we show you that although Mr. McCulloch, the Secretary of the Treasury, must have known that Thomas was appointed, yet the Pres- ident took pains — we havo put in the paper — to servo on Mr. McCulloch an attested copy of the appoint- ment of Thomas ad interim, in order that he and Cooper might recognize his warrants." That is what they put in. They have got that testimony for that purpose, as they say, to show the intent of the President, began, they say, as early as the 12th of August, 1867, progressed in by the appointment of Cooper in the fall of 1867, going all through the sub- sequent time until it "culminated" on the 21st of February by at last finding the proper tool to do this work in the War Office. He was looking, according to the argument, for a proper tool — for a servant — for one who would do his bidding, and, forsooth, after a search, he found the very man in what the Manager has called " a disgraced officer." Now, Mr. Chief Justice and Senators, and especially those of you who are lawyers, what case are they attempting to make against the President? Not simply that he did certain acts that would make him criminal, but that he did these acts mala fide, with an unlawful intent and criminal purpose. They do not prove that purpose, or attempt to prove it, by any positive testimony j but they say, " we prove certain facts from which we raise a pre- sumption that that was the purpose." It is upon proof, founded on presumption, and such proof is admissible, that the gentlemen rest the essential part of their case ; that is to say, the criminal intent. They prove certain acts that may be criminal or stand indifferent, ac- cording to the intent of the party. Then they prove certain other acts and declarations which, 152 SUPPLEMENT TO as_ they say, raise the presumption that the thing done, the order given, the appointment made, was made with that criminal intent laid, and they say, " we not only show that crim- inal intent then, but," they say, "it was conceived months before," and that all the machinery was put in motion, and that the President, from the 12th of August, 1867, was pursuing that intent, looking for tools, agents to carry out that intent, and it did not culmi- nate until the 21st of February, 1868, although the gentleman says most of the facts happened to cluster about that period, but not all of them. This being so, Senators, what is the rule to rebut this presumption of intention? When a prosecution is allowed to raise the presump- tion of guilt from the intent of the accused, by proving circumstances which raised that pre- sumption against him, may he not rebut it by proof of other circumstances which show that ne could not have had such a criminal intent ? Was anything ever plainer than that? Why, consider what a latitude one charged with crime is allowed under such circum- ■ stances. Take the case of a man charged with Eassing counterfeit money. You must prove is intent; you must prove his scienter ; you must prove circumstances from which a pre- sumption arises ; did he know the bill was counterfeit. You may prove that he had been told so ; prove that he had seen other money of the same kind, and raise the intent in that way. Even when you make such proof against him arising from presumptions, how may he rebut that presumption of intent from circum- stances proved against him ? In the first place, by the most general of all presumptions, proof of good character generally. That he is al- lowed to do to rebut a presumption — the most general of all presumptions, not that he did what was right in that transaction, not that he did certain things or made certain declara- tions about the same time which explained that the intent was honest, but going beyond that through the whole field of presumptions, for it is all open to him, he may rebut the pre- sumption arising from proof of express facts by the proof of general good character, rais- ing the presumption that he is not a man who would have such an intent. Mr. Manager BUTLER. We do not object to that proof. Mr. STANBERY. You do not ! Mr. Manager BUTLER. Put iu his good Mr. STANBERY. Such a general thing as that I And yet you object to this ? Mr. Manager BUTLER. Put in his good character, and we will take issue on that. Mr. STANBERY. Now, what evidence is a defendant entitled to who is charged with crime where it is necessary to make out an intent against him where the intent is not posi- tively proved by his own declarations, but where the intent to be gathered by proof of other facts, which may be guilty or indifferent according to the intent. What proof is allowed against him to raise this presumption of intent ? Proof of those facts from which the'mind itself infers a guilty intention. But while the pros- ecution may make such a case against him by such testimony, may he not rebut the case by exactly the same sort of testimony? If it is a declaration that they rely upon as made by him at one time, may he not meet it by declarations made about the same time with regard to the same transaction ? Undoubtedly. They can- not be too remote ; I admit that ; but if they are about the time, if they are connected with the transaction, if they do not appear to have been manufactured, then the declarations of the defendant from which the inference of inno- cence would be presumed are, under reason- able limitations, just as admissible as the dec- larations of the defendant from which the pros- ecution has attempted to deduce the inference of criminal purpose. Now let us look at the authorities on this point. In the trial of Hardy, reported in State Trials, volume twenty- four, page 1066, Mr. Erskine, who defended Hardy, called a Mr. Daniel Stuart as a witness. The case is so fully in point that 1 will read from it pretty largely : "Mr. Erskine. I call back this gentleman only for the purpose of asking him one question, which I could not with propriety ask hiin before; you stated, in your former examination, your personal acquaintance with the prisoner at the bar, and your transactions with him beforo ; did your ever hear him state what his plan of reform was? "Yes, I have; he always stated it to bo tho Duke of Richmond's plan, universal suffrage and annual Parliaments. " Was that said to you publicly, or in theprivacy of confidence? " It was said publicly. And he sold me some copies of the Duke of Richmond's letter. " Mr. Attorney General. I really must object to this sort of examination. " Mr. Erskine. Then I will not defend this question. I am persuaded your lordships will not refuse to the unfortunate man at the bar that evidence which has been received for every prisoner, under similar cir- cumstances, from the earliest times of our history to the present moment. I am sorry to consume the time of the court, but if I am called upon I will re- peat to your lordships, verbatim, from the State Trials, various questions, upon similaroccasions, put bydif- ferent prisoners, by consent of all the judges, all the attorney generals and solicitorgenerals, andcounsel for the Crown. I only wish to know whether the question is objected to or not. " Mr. Attorney Genera/: It is. " Mr. Erskine. I will proceed, and I have much more pleasure in doing it from the manner in which the attorney general conducted himself recently, be- cause the moment that itwas stated as a proceeding which, we thought, might be serviceable to the pris- oner, and consistent with the rules of evidence, he instantly acceded to its production ; therefore, inde- pendent of satisfying your lordships, if I can satisfy my learned friend that wo are in tho regular course, I am persuaded he would be sorry himself that this prisoner should be deprived of the advantage which all others have enjoyed." Then this great advocate proceeds to give the cases from the State Trials upon the point that I am now considering — the declarations of a prisoner as evidence of his intent, whether it were unlawful or lawful, in the matter as to which he is charged. I read from page 1068 : "Now, what is the present case ? The prisoner is charged with the overt acts, which I need not repeat, because we are so well acquainted with the nature of them." We are charged with overt acts in issuing this order. "But he is not charged with tho commission of those acts as substantive acts, but he is charged with having in his mind the wicked and detestable pur- pose of aiming at the destruction of the king, to put down and bring the king to death, and that in the fulfillment of that most detestable imagination he did tho specific acts charged upon the record." As we are charged here with intent, not to put down the king, but to put down Congress, and our detestable acts are to put a tool in the War Department to control the requisitions, and another tool in the Treasury Department to get hold of the money. Mr. Erskine continues: "That is to say, that he agreed to assemble a con- vention to be held which was not held— that he con- spired to hold it, for the purpose of subverting the rule and authority of the country, and not thai alone, but that he consented to hold such convention, which convention, in his mind, was to accomplish the pur- Sose of the subversion of the Government, and that odid agree to assemble that convention for the pur- pose of that subversion in fulfillment, not that the other is the consequence of it. but in fulfillment of the detestable purpose of compassing the king's death. "Here, then, the intention of the mind is the ques- tion which the jury have to try ; and I think I may appeal to what passed in the court on Saturday, that I did not seek to lay down other rules of evidence than those that have been most recently stated, and those that have been determined in ancient times." Now he comes to the cases: "The counsel for Lord George Gordon were the present Lord Konyon, lord chief justice of the king's bench, and myself, who have now the honor to speak to tho court; and I was permitted to ask the Rev. Erasmus Middleton (the first witness, and there- fore his examination fell to me as junior in the case) these questions — I should tell your lordships, to make it more intelligible, that the great objeot was to see what intention Lord George Gordon had, which could be collected only from what passed before — 'Did you, at any of these numerous meetings of this Protestant Association, which you attended from the timo Lord George Gordon became president of that society,' (which was two years before,) ' till the29th of May ' " — That was the "culmination" of Lord George Gordon's conduct: — "till the 29th of May ; did you ever hear Lord George Gordon, in his public speeches in that associa- tion, make use of any expressions which showed any disloyal or unconstitutional intentions in him ?" " Not in the least," says the witness ; " the very reverse." Now, continues Erskine : " Now. compare this with the question I am going to ask ; a cunning, artful man might stand up in a Protestant association, and hold iorth great proles- sionswhen he meant thecoutrary ; but no man who reposes confidence in the bosom ol a friend, building himself upon the honor and honesty, of his lnend, when he tells him what his object is, will deceive him. Good Godl if I were to ask people, did not Mr. Hardy, in the Corresponding Society, say that the Duke oi'Richmond'splan was his object, he might say it there, for the purpose of its afterwards being given in evidence, that he had publicly avowed that; if that may be asked, how is it possible to oppose the other? The examination then goes on: "Did all his speeches, delivered as president, meet with your approbation; and did it appear to you that his views were the same as those of the whole associated body?' 'Quite so.' 'Did you ever hear Lord George Gordon make use of any expressions as if he meant to repeal this bill by force of arms?' Not in the least.' 'Were the meetings open?' and so on." Again : "The next case I shall state is that of my Lord Russell, who was indicted for compassing the king's death, and the overt act was consulting to raise rebellion and to seize the king's guards. In his defense he called many persons of quality to speak to his affection toward the Government, and his de- testation of risings against it— I will pause here a minute. Why, a man might have a great deal of affection to the Government in the year 1780 and might change upon the subject, but yet the criminal law of England looks out industriously to see how it can interfere in favor of liberty and life, not try- ing how it can shut out the light, but how it can let it shine in ; even that question, which I do not think one of the strictest, was suffered to bo let in, because Dr. Burnet had had a long acquaintance with Lord Russell, and Lord Russell might not have conceived the purpose of rebellion till a short time before ; bat I shall ask as to the time when they say this man's mind was full of this conspiracy"— As we do here — the time of this intent ; no other time — "but I shall ask, as to the time when they say this man's mind was full of conspiracy, so horrible in its nature, what were the sentiments which he was pouring into the bosom of his friend as the object of all these societies? '"Doctor Burnet,' (says Lord Russell J 'if you please to give some account of my conversation?' Doctor Burnet says: 'I have had the honor to be known to my Lord Russell several years, and he hath declared himself with much confidence to me, and he always, upon all occasions, expressed himself against all risings.' Now, this is not character to say that Lord Russell was a quiet, peaceable man ; no, this is evidence of conversation; my Lord Russell declared it so ; therefore it is not that you are to raise a prob- ability upon the subject by the general nature of a man's character, or what you think of him ; but it shall be allowed to witnesses to say what the person trying has expressed, because it raises an intrinsic improbability of his being guilty of the crime im- puted to him. Doctor Burnet says: ' lie always ex- pressed himself against all risings; and when he spoke of some people that would provoke to it he expressed himself so determined against that matter I think no man could do more.' " Now, what we expect to prove is, that, so far from there being any intent on the part of the President to select a tool to take possession of that War Office, he asked first the General of the Army, Grant, and when he failed him, who next? The next most honored soldier that we have, Sherman. He was a tool ! It was the President's purpose, they say, to put a tool there ! That was his intent, to find a man who could take a bribe, by brevet perhaps, and, having found such a man as that, put him there! They say he did find such a man in Thomas, "a disgraced officer." Well, if that was his intent in the fall ; if with that intent he put Cooper in the Treasury, it must have been with that intent he would put Sherman in the War Office. Before he thought of Thomas at all, before he thought of any subordinate, he took one of the most honored officers of the land, and said to him : " Come now, take this office; you are fit to be my tool — take this office, not to carry it on as you carried on this great war, not to remain a trusted and honor- able man, but to become my subordinate and my tool!" Will the gentleman say that the President at that time had an intent to seize upon the requisitions of that Department, to get a man there who would send an improper requisition over to the Treasury, as he got a man in the Treasury, as they say, to honor an improper requisition — that the President had put him there to drive Congress out of these Hallsy-and that he intended to put Sherman there to become his tool ? Would the gentle- man dare to say that 1 Would the President, in THE CONGRESSIONAL GLOBE. 153 the first place, have dared to make such a prop- osition to such a man as General Sherman? Gentlemen of the Senate, if you are to raise a presumption that the President intended to carry out an unlawful purpose by appointing Cooper, that he intended to carry out the same unlawful purpose by appointing Thomas, how does it happen that you do not give him the benefit of the presumption arising from his attempt to get such a man as General Sher- man, that could not be made a tool of? And yet this is all to be shut out from the defense of the President 1 In the cases that I have put, the case, for instance, of Lord George Gordon, who was indicted for a treasonable speech made on a certain day — I forget the date — before, a cer- tain association, he was allowed to go into proof running through a period of two years before that in meetings of that same associa- tion, that, instead of encouraging risings or in- surrections, he had set his face against them. A.11 that was admitted, although it was begun two years prior to the declaration for which he was indicted, and, indeed, more than two years before, certainly not clustering about the same time, not during the time when they say the intent arose, but long prior to that time, when in fact his intent may have been honest ; for in two years a man may change his intent. They might have said at that time, " You have gone too far back ; the question is as to your intent at the time of the transaction, as to your intent at the time when we have given evidence against you. " Lord George Gordon went back two years behind that. We stop within the time which they have fixed themselves. We do not ask to give any testimony as to the President's intent before the acts which they have brought forward to raise a presumption of guilt against him. They began in the fall of 1867 with the ap- pointment of Cooper, as they say. This is in the subsequent winter, when Sherman is here, right in the middle of this transaction. The President, as they say, had this intent all along before the act had culminated ; that is, had ended, had reached its consummation — all that time, they say, the bad intent was in the President's mind, and they use every cir- cumstance they can against him to raise the presumption that he intended to carry it out. Now, we want to show his acts and his decla- rations during that time to dissipate this idea that the President had any unlawful intent, to show that he was not seeking after a tool, but seeking for an honest, honorable, high-minded soldier — to do what? That which was unlaw- ful? No ; but to do that which the President thought belonged to him. We will show you that he asked General Sherman if he would take that office upon the removal of Mr. Stan- ton, and then said to General Sherman — — Mr. Manager BUTLER. That is not allow- able. Mr. STANBERY. What! that I cannot state what we are going to prove ? I insist on it as a right. Mr. Manager BUTLER. I insist that it is never done in any court. Mr. STANBERY. If the Senate choose to stop me I will stop; but I hope I shall be allowed to state what I expect to prove. I have been too long at the bar not to know that I have that right. The gentleman may answer my argument, but I hope he will not stop it. Mr. Manager B DTLER. If you look at the book you hold in your hand you will find that Erskine stopped the Attorney General in pre- cisely the same case from which yon have quoted, and said, "You must not read a letter." Mr. STANBERY. "Must not read a let- ter!" I am not reading a letter; I am stating what I expect to prove, and the gentleman takes me up. He does not understand where he is or where I am. He puts an intent into my mind that I have not got, as he seems to have the very good faculty of putting intents into every man's mind. We expect to show that the President not only asked General Sherman to take this position, but told him then distinctly what his purpose was, and that was to put that office in such a situation as to drive Mr. Stanton into the courts of law. Mr. Manager BUTLER. This is wholly unprofessional and improper. Mr. STANBERY. I will judge of that. Erskine in this argument introduces a great many cases, which it would take too long to read ; but finally the question which he put was allowed to be put and was answered ; and I understand the decision in Hardy's case has gone into the text-books as law. But it was not necessary to have Hardy's case. I will ask any lawyer who has ever tried a case where the question was the intention, and where the case made against his client was of facts from which a presumption of intention was pretended to be raised by the prosecution, may he not show contemporaneous acts, acts covering the same time as those used against him, declarations within the same time with those used against him ; may he not be allowed to resort to these to rebut the criminal intention, and to show that his intention was fair, honest, and legal? Un- doubtedly such is the law ; and it is upon this ground that we ask the introduction of the tes- timony of General Sherman. Mr." Manager BUTLER. Mr. President, Senators, I was quite willing to put this case to the judgment of both lawyers and laymen of the Senate without a word of argument ; and I only speak now to "the lawyers," be- cause the learned counsel for the President emphasizes that word as though he expected some peculiar advantage from speaking to the lawyers of the Senate. All the rules of evi- dence are founded upon the good sense of man- kind, as experience in the courts of law has shown what is most likely or unlikely to elicit truth, and they address themselves just as well to the layman as they do to the lawyer. There is no gentleman in the Senate, nay, there is no gentleman anywhere, that cannot understand this question of evidence ; and if the plain rules of fair judgment and fair examination are applied to it, as I doubt not they will be, there can be no difficulty in the matte?. I agree that I labor, not under any weight of the argument that has just been put for- ward against me, but labor under the weight of the opinion of the presiding officer, who, deciding without argument, has told the Sen- ate that in his opinion this came within the previous ruling, which I suppose to be the rul- ing of yesterday. If it did I should not for a moment have troubled the Senate, because I have long since learned, however they may be against mc, to bow to the decisions of the tri- bunal before which I am. But this is entirely another and a different case. In order to understand it let us see what is the exact question. The exact question is "In that interview," to wit, on the 14th of January, "what conversations took place be- tween the President and you in regard to the removal of Mr. Stanton?" "What conversa- tion ;" it does not ask for acts now ; pray, gen- tlemen, keep the distinction. " What conver- sation took place between you ?" is the question , and upon that the Senate will vote. Now, how is this attempted to be supported? I agree that the first part of the argument made by the learned Attortiey General was the very best one he ever made in his life, because it consisted mostly in reading what I had said. [Laughter.] He put the question, and I have a right to say so, I trust, without any immodesty, because he adopted all I said as his own, which is one of the highest compliments I ever had paid to me. I thought it was a good argu- ment, Senators, when 1 made it to you ; I hoped it would convince you that it was right ; but it failed. If it can be any better now in the mouth of the Attorney General I desire to see the result. I was arguing about putting in the President's act in appointing Mr. Cooper. I tried in every way 1 could to get it before you ; I tried to show you that you ought to permit me to do so ; but by an almost solid vote you said I should not. I said, " I can prove the intent." My argument failed to convince you. Will it do any better when read by the musical voice of my friend from Ohio? I think not. Of course you will allow me to have so much selfgratulation as still to say that I think it ought to have convinced you. I only bow to the fact that it did not. But the point was there that I was attempt- ing to prove, not a declaration of Mr. John- son, but his act in putting in Cooper; here they ask for conversations. We failed ; the Senate decided that we could not put in any act except such as was charged in the articles. We do not charge in the articles an attempt to bribe, or use as a tool, the gentleman who is on the stand, for whom we all have so high a respect. I do not think that we have that ap- preciation of him. Whatever appreciation the President mighthave, we never had that. What do we charge? We charge that he used the man whom we saw on the stand here before as atool, and judge yeon your conscienceswhether he is not on his appearance here a fit instru- ment. Judge ye ! Judge ye ! You have seen him — a weak, vacillating, vain old man, just fit to be pampered by a little pride to do things which no man and no patriot would dare do. Why, let me call your attention for a moment to him. On this stand here yesterday he was going on to say that his conversation was play- ful to Karsner, playful to Wilkeson ; but when he saw that that was not so, that that did not put him in a dignified position, he swung back to the truth and told us he meanfrto have force to the shedding of blood. Mr. EVARTS. He said exactly the con- trary. Mr. Manager BUTLER. I do not under- stand the gentleman. Mr. EVARTS. He said exactly the con- trary. Mr. Manager BUTLER. He said that he had made up his mind to use force to tha shedding of blood. Mr. EVARTS. No ; to break a door ; but when he thought of shedding blood he retracted his opinion. Mr. Manager BUTLER. And he remained of that mind until the next morning. Mr. EVARTS. No ; he did not say that. Mr. Manager BUTLER. What he found at the masquerade ball or elsewhere to change his mind he has not told us ; nor can he tell us when he changed his mind. Am I not right? But I pass from that ; I am only calling the attention of the Senate to the distinction be- tween the two. Now, then, how is this attempted to be sup- ported ? The learned gentleman from Ohio says what? Hesays "in a counterfeiter'scase we have to prove the scienter." Yes, true; and how? By showing the passage of other counterfeit bills? Yes; but, gentlemen, did you ever hear, in a case of counterfeiting, the coun- terfeiter prove that he did not know the bill was bad by proving that at some other time he passed a good bill? Is not that the proposi- tion ? We try the counterfeit bill, which we have nailed to the counter, of the 21st of Feb- ruary ; and, in order to prove that he did not issue it, he wants to show that he passed a good bill on the 14th of January. It does not take a lawyer to understand that. That is the proposition. We prove that a counterfeiter passed a bad bill: 1 am following the illustration of my learned opponent. Having proved that he passed a bad bill, what is the evidence he pro- poses ? That at some other time he told some- body else, a good man, that he would not pass bad money, to give it the strongest form; and you are asked to vote it on that reason. I take the illustration. Is there any authority brought for that ? No. What is the next ground ? The next is that it is in order to show Andrew Johnson's good character. If they will put that in testimony I will open the door widely. We shall have no objection whenever they offer that. 1 will take all that is said of him by all good and loyal men, whether for probity, patriotism, or 154 SUPPLEMENT TO any other matter that they choose to put in issue. But how do they propose to prove good character ? _ By showing what he said to a gen- tleman. Did you ever hear of good character, lawyers of the Senate ; laymen of the Senate, did you ever hear a good character proved in thatway? A man's eharacteris in issue. Does he call up one of his neighbors and ask what the man told him about his character? No ; the general speech of people in the commu- nity, what was publicly known and said of him, is the point, and upon that went Hardy's case. Now, then, lawyers of the Senate, I have never seen before cited in the course of an argument on the law the speeches of counsel. I thought it was not within the common usage of the profession. Am I not right, lawyers of the Senate ; and yet page after page of the argument of Mr. Erskine, who was going forward in every way that he could to save the life of his client, has been cited here to the Senate to govern them as a precedent. A more unprofessional act I never knew. Mr. STANBERY. Mr. Chief Justice, I must ask the gentleman to cease these state- ments of "unprofessional" matter. I read — 1 wish the gentleman to attend to what I say now — I read only so much of the argument of Brskine as showed the application of the cases which I read from Brskine's speech. That was all. Mr. Manager BUTLER. I attended with care to what was said ; I had the book in my hand and followed the gentleman ; the argu- ment of the counsel only was read ; and now, to show the application of that particular case, let me ask what the question there was. The question was, what were the public declara- tions of Mr. Hardy? He was accused of having made a speech and made a series of speeches which were held to be treasonable. Then the question was, what was his charac- ter as a loyal man, and upon that the discus- sion arose from which citations have been made ; and when the discussion finally termi- nated, gentlemen of the Senate, what was the question ? I read from page 1096 of the twenty-fourth volume of the State Trials : " Did you before the time of this convention being held, which is imputed to Mr. Hardy, ever hear from hiui what his objects were — whether he has at all mixed himself in that business ? " I have very often conversed with him, as I men- tioned before, about his plan of reform; ho always adhered to the Duke of Richmond's plan, and said that will be the plan that will be adopted in the end. I disagreed with him aboutthat, and that occasioned it more particularly to be marked in my memory; we disputed about it, and he always obstinately adhered to it, and stated that to be the object of the society, and his whole object. " Was this said in the confidence of private regard or in public company, where it might be said osten- tatiously ? " I was never in public company with him ; he and another person wore with mo one night, and I have had long and frequent conversations with him upon the subject. " From all that you have seen of him, what is his character for sincerity and truth? " I have every reason to believe him to be a very sincere, simple, honest man. " Mr. Attorney General. If this had been stated at first to be the question meant to be asked, I do not see what possible objection I could have to it." And if they will ask General Sherman or anybody else what is Andrew Johnson's char- acter for sincerity and truth I will not object, I assure you. That was the whole question about which the dispute arose in Hardy's case ; and the Attorney General finally said "if I hud known that was what you are after I never should have objected." Whatwas Lord George Gordon's case? This is an illustration of the difficulty of reading from the arguments of counsel, whether they are made here by me or made by Lord Brskine in regard to Gordon's trial. We are on one side when we are arguing our cause, and we are apt to get our minds somewhat biased. What was Lord George Gordon's case? Lord George Gordon was accused of treason in leading a mob of Protestants against the House of Parliament ; and there, in order to show his intention, there were allowed to be put in evidence against him the cries of the mob made publicly and orally as part of the res gestoe. To meet that, what was the defense? The defense was the insan- ity of Lord George Gordon, and upon that de- fense, and upon the whole case they went into the widest possible range. Let the gentlemen on the other side come in and prove — which is the best defense they have got — that Andrew Johnson is insane, and we shall then go into all his conversations to see whether he talked or acted like a sane man, on which idea in that case the defense went into Lord George Gor- don's acts and sayings, but in no other way. Then, what is the next thing that is said about this? They then go into Lord William Rus- sell's case. Lord Russell's case was one of those so eloquently denounced by th« gentle- man who opened for the President yesterday as one of those cases occurring under the Plan- tagenets andTudors which he would not appeal to for authority. They do drink at our fount- ain sometimes. They have got back now to those cases which they would lay aside yester- day. They have come back to them to-day ; but what was there? The whole question was, what was Lord William Russell's character for loyalty. The question asked the witness was, what was his character for loyalty, to which the reply was " Good. " Then he was asked ' ' How long have you known him ?" and he replied ' ' I have known him some time." Then came the question "Did you ever hear him express him- self against the king and against the Govern- ment?" to which the answerwas "No;" and then followed the question, "Did you ever hear him express himself in favor of insurrection ?' ' and the answerwas "No." That is precisely as every lawyer here has heard the question of character inquired into. The question is "What is the character of such a man for truth 1'\ The witness says ' ' Good. ' ' That is not putting in hearsay. That is to get a nega- tive. In that case they were not asking for what Lord Russell said, but they were offering to prove that he did not say anything that was treasonable, not what he did say ; and that was upon the question of his good character. Let me call your attention to the other point upon which this is pressed, and that seems to be the strong point of the case, because my friend said as he opened it ' 'this is very vital, ' ' hoping, I suppose, that by possibility he might in some way be able to fright you from your propriety. If it is a very vital matter you will pardon me for arguing it at some length. Mr. STANBERY. Will the learned Man- ager allow me one moment ? In regard to Mr. Hardy's case, he has fallen into an error in reading the question, which was not the one at all I was upon. He read as to general char- acter. Mr. Manager BUTLER. To that I say I have fallen into no such error. Mr. STANBERY. One moment, if you please. Mr. Manager BUTLER. No ; I cannot allow you to interpolate for the purpose of stating that I did not cite correctly. Mr. STANBERY. One moment for a cor- rection. Mr. Manager BUTLER. I cannot spare a moment, sir. Mr. STANBERY. I wish to-show only that the very question was put and answered under the decision of the court in that case. Mr. Manager BUTLER. Allow me to say that I read the only question that was put and directly after it was allowed to be put Mr. STANBERY. I shall have to leave it to my associate. Mr. Manager BUTLER._ Certainly. If you will turn to the case you will find it, sir. I be- gan with "Mr. Daniel Stuart examined by Mr. Brskine," and I read from there to where the attorney general said, " If this had been stated at first to be the question meant to be asked, I do not see what possible objection I could have to it." I read from where the court decided down to where the question was put and an- swered, and to what the attorney general said about it. Therefore I made no mistake. I am not in the habit of reading a portion and leav- ing out a portion of a man's speech, and then commenting upon it. Now, Senators, what is the other point ; and it is the only one I feel any trouble about 1 That is that some gentlemen may think that this question comes within the decision of yesterday. Yesterday we objected to the President's declaration after we said the conspiracy bad culminated. It was claimed that they had a right to put in what he said when Thomas reported back to him, and the Senate decided that it should be put in ; but now they propose to go a month prior to that time and they propose to go over a space of time where we offered evidence to prove the President's bad intent, and the Senate of the United States ruled it out. I allude to Cooper's case. We offered to prove that in December he put Cooper in, and what Cooper was doing in order to show the President's bad intent; and the Senate of the United States, upon the offer of the Representatives of the people of the United States, ruled that out ; and now the gentlemen propose to go on and show what the President said to General Sherman. One argument which I used to appeal to prejudice is that I stated that the President was seeking for tools. I said so ; but, at the same time, I said that he never found one in General Sherman. What I mean to say, and ■what will appear to you and the country, is that he was seeking for somebody by whom he might get Mr. Stanton out ; some gentleman of the Army. First he tried Grant ; then he wanted to get General Sherman in, so that when General Sherman, not wanting the cares of office upon him for a moment, ready to get rid of them at any time, should resign and leave, so as to get rid of it, as he doubtless would, he could then put in somebody else. He went along ; he began with Grant, and he went down through Grant and down through Sherman and George H. Thomas, and down, down, until he struck Lorenzo Thomas, and then he found the man who could be put in. Now, the gentlemen propose to offer to prove that he did not find a tool in General Sher- man, in order to satisfy the Senate that he did not* find one in Thomas 1 Do these two things hold together ? Does one belong to the other? Because he did not find a tool, a proper man to be made an ad interim Secre- tary, and to sit in his Cabinet as an ad inte- rim Secretary, in General Sherman, does that prove that therefore he did not find a proper man in Thomas ? But, then, look at the vehicle of proof. What is the vehicle of proof ? They do not propose to prove it by his acts. When they are offered I shall be willing to let them go in. Let them offer any act of the President about that time, either prior or since, and I shall not object, although the Senate ruled out an act in Cooper's case. But how do they propose to prove it ? " What conversations took place between the President and you ?' ' I agree, gentlemen of the Senate — I repeat it even after the criti- cisms that have been made — that you are a law unto yourselves. You have a right to receive or reject any testimony. All the common law can do for you is, that being the accumulation of the experience of thousands of years of trial, it may afford some guide to you ; but you can override it. You have no right, however, to override the principles of justice and equity, and to allow the case of the people of the Uni- ted States to be prejudiced by the conversa- tions of the criminal they present at your bar, made in his own defense before the acts done, which the people complain of. That I may, I trust, without offense say ; because there is a law that must govern us at any and all times, and the single question is — I did not mean to trouble the Senate with it before, and never will again on this question of conversation — what limit is there ? If this is allowable you may put in his conversations with everybody ; you may put in his conversations with news- paper reporters — and he is very free with those if we are to believe the newspapers. If he has a right to converse with General Sherman about THE CONGRESSIONAL GLOBE, 155 tliis case and put that in, I do not see why he has not a right to converse with Mack, and John, and, Joe, and J. B., and J. B. S., and T. R. S., and X. L. W., or whoever he may talk with, and put all that in. I take it there is no law which makes a con- versation with General Sherman any more competent than a conversation with any other man. And where are you going to stop in this trial? Go on thus and they will get the forty, the sixty, the ninety, the one hundred days — more than the forty they first asked, by simply calling everybody with whom the President has had conversation ; for I believe I may say with- out offense that'he is understood to be a great conversationalist, and on this principle they may introduce proof of all that he has said to everybody else about that time about the case ; and if we may believe report, we are to hav*e reporters and everybody else with whom the President has engaged in conversation. Allow me to say one thing further. Gentle- men of the Senate, I said in your hearing to the learned counsel that I did not think it right for him to state what he expected to prove; and in order to prevent his stating it I said he might imagine any possible conversation. I objected to it, because he thereby gets before the court, before the court and jury, before the court and the country, a supposition that he could prove that thing. That is what it is done for; it is an argument to the prejudice ; and I thought it then unprofessional, and I state that in that very book which he held in his hand in Hardy's case the attorney general of England offered to read a letter found in Hardy's pos- session and he began to read it. Erskine ob- jected, and said "You must not read it until it is allowed to go in evidence. ' ' Said he, "I want the court to understand what is in the letter. It cannot be read for that purpose. Argue from its situation, argue from where it was found, argue from who signed it, what its per- tinency or relevancy is ; but you cannot read the letter and put it in before the court and jury until after it is ruled to be in evidence." The gentleman in his practice — I charge it upon him here — has seen hundreds of times a court stop counsel and say, "Hand it tome; hand the paper up to me ; you must not read it until after it is ruled upon." I objected all that I could, but an aggregate body like this of course could not stop him if he chose to go on. Now, what was said after he had argued it? He said he wanted to show that the President had tried to get this officer of the Army to take the War Department, so that he could get Stanton out. That is what we charge, that he would take anybody, do anything, to get Stanton out. That is the very thing we charge. Hewouldbeglad to get General Sherman toaidhim. He would have been glad to get General Grant. Failing in him he tries General Sherman. Failing in him he tries Major General George H. Thomas, the hero of Nashville. He failing, he is willing then even to take Lorenzo Thomas to get Stan- ton out. What for? The late Attorney Gen- eral has said the purpose was to drive Stanton into the courts. The President knew, or his counsel knew, that Stanton could not go into the courts to get back again. There is no proper process. Let them state the process, if they can, by which Mr. Stanton was to be reinstated in office. I think they will find it as difficult to show to the Senate such a process as they will to show that where a general law applies to the States and Territories of the United States it does not apply to the District of Columbia. It will be as difficult and fully as troublesome to show the one as the other. Now, the simple question comes back to us, and it is the only one on which you are to rule, Are the conversations of the President with General Sherman evidence? If the conversa- tions with him are evidence, is not every con- versation that the President has had atany time with anybody evidence in this case? Where is the distinction ? Mr. EVARTS. Mr. Chief Justice and Sen- ators, some incidental questions, partly of pro- fessional propriety, have arisen and been dis- cussed at some length by the learned Manager. Let me read from page 165 of the record of this trial on the question of stating what is intended to be proved. We objected to certain testimony, and then this occurred : "Mr. Manager Butler. The object is to show the intent and purpose with which General Thomas went to the War Department on the morning of the 22d of February; that he went with the intent and purpose of taking possession by force; that he alleged that intent and purpose ; that in consequence of th at alle- gation Mr. Burleigh invited General Moorhead and went up to the War Office. The conversation which I expect to prove is this: after the President of the United States had appointed General Thomas and given him directions to take the War Office, and after he had made a quiet visk there on the 21st, on thoevening of the21st hetold Mr. Burleigh that the next day he was going to take possession by force. Mr. Burleigh said to him _ "Mr. Stanbery. No matter about that. Wo ob- jeot to that testimony. "Mr. Manager Butler. You do not know what you object to if you do not hear what I offer. Mr. Manager BUTLER. Read on : "We object to it," and I stopped. Mr. EVARTS. I have read what I have read, sir. Mr. Manager BUTLER. But stopped a little short. Mr. EVARTS. I have read what I have read. Now, sir, we come to the impropriety of my learned associate's having drawn atten- tion to the pertinency of what appeared in argument and in the citation of authorities upon the trial of Hardy, and whether that question was pertinent to this or not. Now, I understand the question which was there dis- cussed related exactly to the introduction of conversations between the accused and the witness produced to prove them, antecedent to the period of the alleged treason ; and it all resulted in this, on page 1090 of 24 State Trials: "Lord Chief Justice Eyre, You may put the question exactly as you propose. I confess I wished by in- terposing to avoid all discussion, because I consider what we are doing, and whom we havo at that bar, and in that box, who aro suffering by every mo- ment's unnecessary delay in such a case as this. " Mr. Ershine. I am suretho jury will excuseit; I meant to set myself right at this bar ; this is a very public place. " Mr. Daniel Stuart examinod by Mr. Erskine." The question was put exactly as he pro- posed: " Did you before the time of this conversation being held, which is imputed to Mr. Hardy, ever hear from him what his objects were — whether he has at all mixed himself in that business? " I have very often conversed with him." And then he goes on to state the conversa- tions. Now, Mr. Chief Justice and Senators, I come to the merits of this question of evidence. This is a very peculiar case. Whenever evidence is sought to be made applicable to it, it is a crime of the narrowest dimensions and of the must puny proportions ; it exists for its com- pletion and for its guilt, for its enormity and for its claim to punishment, upon the delivery of a written paper by the President to General Thomas, to be communicated to the Secretary of War ; and that offense, in those naked pro- portions, if contrary to a valid law and if done with intent which makes it criminal under that law, the Congress in the enactment which makes it indictable has permitted to be pun- ished by a fine of six cents and no more ! That is the naked dimension of the mere technical statutory offense, and that is included within the mere act of the delivery of apaper unat- tended by any grave public considerations of guilt and of consequence that should attend it to bring it into judgment here. When we come to evidence, I say thus puny are the propor- tions of the offense and thus limited the range to which the defendant is permitted to call witnesses. But when we come to the magnifi- cence of the accusation, as found on page 75, italicised by the Managers, we will see what it is: "We define, therefore, an impeachable high crimo or misdemeanor to be one in its natureor consequences subversive of some fundamental or esientialprinciple of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act commit- ted or omitted,^ or, without violating a positive law, by the abuse of discretionary powers from improper mo- tives, or for any improper purpose." Without any violation of law, an act maybe done in abuse of discretionary authority with improper motives or for an improper purpose ; and thus the widest possible range is opened to this inquiry on the part of the accusation, to bring within the range of guilt the President of the United States. But further, the claim is that it is a mistake, on the whole, to think that it is a question of guilt or of innocence, but, in the phrase of the learned Managers, " Is it not rather more in the nature of an in- quest of office;" and then, on page 77 : "We suggest, therofore, that wo are in the pres- ence of the Senate of the United States, convened as a constitutional tribunal, to inquire into and de- termine whether Andrew Johnson, because of mal- versation in office, is longer fit to retain the office of President of the United States." At page 97 we come a little more definitely to matter bearing upon this question, and I beg the attention of Senators to this : "It may bo said that the President removed Mr. Stanton for the very purpose of testing the constitu- tionality of this law before the courts, and the ques- tion is asked, Will you condemn him as for a crimo for so doing? If this plea were a true one it ought not to avail: but it is a subterfuge. We shall show you tnat he has taken no step to submit the question to any court, although more than a year has elapsed since the passage of the act." Then, at page 108, we are told : "Upon the first reading of the articles of impeach- ment the question might have arisen in the mind of some Senator, Why are these acts of the President only presented by the House when history informs us that others equally dangerous to the liberties of the people, if not more so, and others of equal usurp- ation of powers, if not greater, are passed by in silence? "To such possiblo inquiry we reply : that the acts set out in the first eight articles are but the culmi- nation of a series of wrongs, malfeasances, andusurp- ations committed by the respondent, and therefore need to bo examined in the light of his precedent and concomitant acts to grasp their scope and de- sign." And then common fame and current history are referred to, and confirmed by a citation of cases two hundred and forty years old from the British reports, to show that they are good ground for you to proceed upon in your ver- dict. Bringing, then, this to a head, the hon- orable Manager says: "Who does not know that from the hour he began these his usurpations of power ho everywhero de- nounced Congress, the legality and constitutionality of its action, and defied its legitimate powers, and, for that purpose, announced his intentions and car- ried out his purpose, as far as he was able, of remov- ing every true man from office who sustained the Congress of the United States? And it is to carry out this plan of action that he claims the unlimited power of removal, for the illegal exercise of which ho stands before you this day." These are the pretensions and these the dimensions of public inculpation of the Chief Magistrate of this nation which are of such grave import. From their intent and design, from their involving the public interests and the fundamental principles of the Government, they are worthy of this greattribunal' s attention, and of a judgment that deposes him from his office and calls upon the people for a reelec- tion. All the eleven articles are upon trial, and if this evidence be pertinent under any of them it is pertinent and admissible now. And now I should like to look first to the ques- tion of the point of time as bearing upon the admissibility of this evidence. Under the eleventh article the speech of the 18th of Au- gust, 1866, is alleged as laying the foundation of the illegal purposes that culminated in 1868, to point the criminality, that is what made the subject of accusation in that article. Proof, then, of the speeches of 1866 is made evidence under this article eleven, that imputes not criminality in making the speech, but in the action afterward pointed by the purpose of the speech. So, too, a telegram to Governor Parsons, in January, 1867, is supposed to be evidence as bearing upon the guilt completed in the year 1868. So, too, the interview between Wood, the office-seeker, and the President of the United States, in September, 1866, is supposed to bear in evidence upou the question of intent in the 156 SUPPLEMENT TO consummation of the crime alleged to have been completed in 1868. I apprehend, there- fore, that on the question of time this inter- view between General Sherman and the Presi- dent of the United States, in the very matter of the public transaction of the President of the United States changing the head of the War Department, which was actually com- pleted _ in February, 1868, is near enough to point intent and to show honest purpose, if these transactions, thus in evidence, are near enough to bear upon the same attributed crimes. There remains, then, only this consideration, whether it is open to the imputation that it is a mere proof of declarations of the President concerning what his motives and objects were in reference to his subsequent act in the re- moval of Stanton. It certainly is not limited to that force or effect. Whenever evidence of that mere character is offered that question will arise to be disposed of; but as a part of the public action and conduct of the President of the United States in reference to this very office, and his duty and purpose in dealing with it, and on the very point, too, as to whether that object was to fill it by unwar- rantable characters tending to a perversion or betrayal of the public trust, we propose to show his consultations with the Lieutenant General of the armies of the United States to induce him to take the place. On the other question of whether his efforts are to create by violence a civil war or blood- shed, or even a breach of the peace, in the re- moval of the Secretary of War, we show that in this same consultation it was his desire that the Lieutenant General should take the place in order that by that means the opportunity might be given to decide the differences be- tween the .Executive and Congress as to the constitutional powers of the former by the courts of law. If the conduct of the Presi- dent in relation to matters that are made the subject of inculpation, and of inculpation through motives attributed through designs supposed to be proved, cannot be made the subject of evidence, if his public action, if his public conduct, if the efforts and the means that he used in the selection of agents are not to be received to rebut the intentions or presumptions that are sought to be raised against him, well, indeed, was my learned asso- ciate justified in saying that this is a vital ques- tion. Vital in the interests of justice, I mean, rather than vital to any important considera- tions of the cause. Vital undoubtedly on the merest principles of common justice, that when the Chief Magistrate of the nation is brought under inculpation from a series of charges of this complexion and of this com- prehension, and when the motives are assigned, when the presumptions and innuendoes are alieged which I have treated of, that he shall not be permitted, in the presence of this great council sitting upon his case and doing justice to him as an individual, but more, sitting in this case and doing justice in respect to his office of President of the United States, doing justice to the great public questions proposed to be affected by your judgment — whether the chosen head of the nation shall be deposed from authority by the action of this court com- posed of a branch of the Congress, and the people resorted to again through the mode of election for a new Chief Magistrate. I appre- hend that this learned court of lawyers and lay- meu will not permit this "fast and loose" game of limited crime for purposes of proof and unlimited crime for purposes of accusation, that they will not permit this enlargement and contraction, phrases sometimes replaced by a more definite and shorter Saxon description. Mr. SPEAGUE, (at twenty minutes before three o'clock.) I move that the Senate take a recess for fifteen minutes. The motion was agreed to; and the Chief Justice resumed the chair at five minutes to throe o'clock. The CHIEF JUSTICE. Senators will please to give their attention. The counsel for the President will proceed. [After a pause.] Do the counsel for the President desire to be heard further? Mr. CURTIS. No, Mr. -Chief Justice. Mr. Manager WILSON. Mr. President, I shall claim the attenlion of the Senate but for a few minutes. My principal purpose is to get before the minds of Senators the truth in the Hardy case as it fell from the lips of the chief justice, when he passed upon the question which had been propounded by Mr. Erskine and objected to by the attorney general. The ruling is in these words: " Lord Chief Justice Eyre. Mr. Erskine, I do not know whether you can bo content to acquiesce in the opinion that we are inclined to form upon the sub- ject, in which we go a certain way with you. Noth- ing is so clear as that all declarationswhick apply to facts, and even apply to the particular ease that is charged, though the intent should make a part of that charge, arc evidence against a prisoner and are not evidence for him, because the presumption upo'fi which declarations are evidence is, that no man would declare anything against himself unless it were true ; but every m.in, if he was in a difficulty, or in the view to any difficulty, would make decla- rations for himself. Those declarations, if offered as evidence, would be offered, therefore, upon no ground which entitled them to credit. That is the general rule. But if the question be — as I really think it is in this ease, which is my reason now for interposing — if the question be, what was the politi- cal speculative opinion which this man entertained touching a reform of Parliament, I believe we all think that opinion may very well be learned and discovered by the conversations which he has held at any time, or in any place. " Mr. Erskine. Just so, that is my question; only that I may not get into another debate, I beg your lordship will hear me a few words. " Lord Chief Justice Eyre. I think I have already anticipated a misapprehension of what I am now stating, by sayiDg that if the declaration was meant to apply to a disavowal of the particular charge made against this man that declaration could not be re- ceived: as, for instance, if he had said to some friend of his. When I planned this convention I did not mean to use this convention to destroy the king and his Government, but I did mean to get, by means of this eonv-ention, the Duke of Richmond's plan of reform — that would fall within the rule I first laid down; that would be a declaration, which being for him, he could not be admitted to make, though the law will allow a contrary declaration to have been given in evidence. Now, if you take it so, I believe there is no difficulty." And upon that ruling the question was changed as road by my associate Manager, and correctly read by him, and all that followed this ruling of the chief justice and the sub- sequent discussion was read by my associate Manager. The lord chief justice further said : " You may put the question exactly as you pro- pose." That is after discussion had occurred subse- quent to the ruling of the chief justice to which I have referred, and in which a change in the character of the original question was disclosed. "I confess I wished by interposing to avoid all discussion, because I consider what we are doing, and whom we have at that bar, and in that box; who are suffering by every moment's unnecessary delay in such a cause as this. "JMV. Erskine. I am sure the jury will excuse it ; I meant to set myself right at this bar; this is a very public place." Then follows the question — " Mr. Daniel Stuart examined by Mr. Erskine. " Did you before the tioio of this convention being held, which is imputed to Mr. Hardy, ever hear from him wha this objects were, whethor ho has at all mixed himself in that business? *' I have very often conversed with him, as I men- tioned before, about his plan of reform ; he always adhered to the Duke of Richmond's plan." And which declaration Mr. FESSENDEN. Is that the answer? Mr. Manager WILSON. That is the answer. And which declaration came within the excep- tion to the rule laid down by the chief justice. The final question was then put : " From all that you have seen of him, what is his character for sincerity and truth ? "I have every reason to believe him to be a vory sincere, simple, honest man," To which the attorney general said : " If this had been stated at first to the question meant to be asked I do not see what possible objec- tion I could have to it." Mr. FESSENDEN. Does not that remark apply to both questions ? Mr. Manager WILSON. That remark ap- plies to the last question. The remark was made after the last question was put ; but, as I understand it, the two questions are substan- tially the same, and are connected, and the remark of the attorney general applied to both, as the first was but the basis, the inducement to the last. Mr. FESSENDEN. They were put con- secutively 1 Mr. Manager BUTLER. Nothing between. One was inducement to the other. Mr. Manager WILSON. Now, what is the question which has been propounded by the counsel on the part of the President to Gen- eral Sherman ? It is this : " In that interview what conversation took place between the President and you in' regard to the re- moval of Mr. Stanton 1" Now, I contend that that calls for just such declarations on the part of the President as fall within the rule laid down by the chief justice in the Hardy case, and, therefore, must be excluded. If this conversation can be ad- mitted, where are we to stop ? Who may not be put upon the witness-stand and asked for conversations had between him and the Presi- dent, and at any time since the President en- tered upon the duties of the presidential office, to show the general intent and drift of his mind and conduct during the whole period of his official existence? Ami if this be competent and may be introduced, may it not be followed by an- attempt here to introduce conversations occurring between the President, his Cabinet, and General Grant, by way of inducing this Senate, under pretense of merely defending the respondent, to try a question of veracity between the General of the Army and the President of the United States ? The inter- view out of which that question sprung oc- curred about the same time that this one did ; and I suppose the next offer will be to put in the conversation between the President, his several Secretaries, Cabinet officers, and the General of the Army, in order that the pre- ponderance of testimony (considered numeri- cally, at least,) submitted here in this trial may weigh down the General of the Army, he being no party concerned in this proceeding. Such an offer may meet us at the next step, because it was a conversation which transpired about that time. Mr. Manager BUTLER. Only the day be fore. Mr. Manager WILSON. Yes ; only the day before. We certainly must insist upon the well known and long established rule of evi- dence being applied to this particular objec- tion, for the purpose of ending now and for- ever, so far as this ease is concerned, these attempts to put in evidence the declarations of the President, made, it may be, for the purpose of meeting an impeachment by such weapons of defense. It is offered to be proved now, as the coun- sel inform us, that the President told General Sherman that he desired him to accept an ap- pointment of Secretary for the Department of War to the end that Mr. Stanton might be driven to the courts of law for the purpose of testing his title to that office; and, inasmuch as the counsel have referred to the opening argument of my associate Manager, and seem to delight in reading therefrom, let me read a brief paragraph or two from that opening ap- plying to this pretended purpose of the Presi- dent of driving the Secretary of War to the courts to test his title. On that occasion the Manager said : "The President knew, or ought to have known, his official ndviser, who now appears as his counsel, could and did tell him, doubtless, that he alone, as Attorney General, could file an information in the nature of a quo warranto to determine this question of the validity of the law. "Mr. Stanton, if ejected from office, was without remedy, because a series of decisions has settled the law to be that an ejected officer cannot reinstate himself either by quo warranto, mandamus, or other appropriate remedy in the courts." The counsel refrain from noticingthis answer to the President's assertion so often made that he was only endeavoring to manufacture a law- suit and get a case into the courts ; and I am led to believe that the purpose was not the harm- THE CONGRESSIONAL GLOBE. 157 leas one of getting the Lieutenant General of the Army into the position of Secretary of War, by way of enabling the respondent to secure a judicial decision of the contested question to which the President and Secretary Stanton were parties, but for the purpose of getting possession, as we have charged, of that Depart- ment for his, the respondent's, own purposes, and putting Mr. Stanton in a position where he could not get into court and secure a judg- ment upon his title to that office — not,. I beg counsel to remember, not that we charge that the President believed or expected that he could make a tool of General Sherman ; but that he might oust Mr. Stanton from the actual possession of his office by getting General Sher- man to accept it, and thus putting Stanton in a position where he could not have his claim to the office tested ; and further expecting and believing, doubtless, that General Sherman would not long desire to occupy the position ; and when he might ask to be relieved from the thankless position, to escape from the never- ending political contests ot this city, then the Adjutant General of the Army, or some other person equally pliant, could be put into the place vacated by General Sherman. The Pres- ident did not succeed in that effort. General Sherman declined the position tendered, and, as has been said, the respondent wandered on down with his offer t>f place and power until he came to Adjutant General Thomas. Then he found the person who was willing to under- take this work, who was willing to use force, as he declared, to get possession of that office, and obey the orders of the President ; and now, with that proof of the President's criminal acts and intents in and before the Senate, it is proposed by his counsel to make apparent his innocence and effectuate his defense by giving in evidence his own declarations at a time not embraced in anyof the former rulings of the Senate. If a case can be defended in this way, no civil officer of the United States can ever be convicted on impeachment ; and if the same rule should apply in the courts of justice, no criminal will ever be convicted for any offense therein. If the officer or the criminal may make his own defense by his own declarations, he will always have one which will meet his case and work his acquittal. I do not desire longer to detain the Senate by prolonging this discussion. I am willing to let this objection rest upon the authority pro- duced by the learned counsel for the Presi- dent, for under it, and by force of it, the tes- timony now offered must be excluded. The CHIEF JUSTICE. Senators, the Chief Justice has expressed the opinion that the ques- tion now proposed is admissible within the vote of the Senate of yesterday. He will state briefly the grounds of that opinion. The ques- tion yesterday had reference to a conversation between the President and General Thomas after the note addressed to Mr. Stanton was written and delivered, and the Senate held it admissible. The question to-day has reference to a conversation relating to the same subject- matter, between the President and General Sherman, which occurred before the note of removal was written and delivered. Both ques- tions were asked for the purpose of proving the intent of the President in the attempt to re- move Mr. Stanton. The Chief Justice thinks that proof of a conversation shortly before a transaction is better evidence of the intent of an actor in it than proof of a conversation shortly after the transaction. The Secretary will call the roll. Mr. DRAKE. Will the Chief Justice be so kind as to state the question submitted to the Senate and about to be voted on ? The CHIEF JUSTICE. The Secretary will read the question. The Secretary read as follows : Question. In thatinterviewwhat conversation took place between the President and you in regard to the removal of Mr. Stanton ? The CHIEF JUSTICE. Upon this ques- tion the yeas and nays have been demanded, and have been ordered. Senators, you who are of opinion that the question is admissible will, as your names are called, answer yea; those of the contrary, nay. The question being taken by yeas and nays, resulted — yeas 23, nays 28 ; as follows : YEAS— Messrs. Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morgan, Norton, Patterson of Tennessee. Ross, Spraeue, Sumner, Trumbull, Van Winkle, Vickers, and Willey— 23. NAYS— Messrs. Cameron, Cattell, Chandler, Conk- ling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Henderson, Howard, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Stewart, Thayer, Tipton, Williams, Wil- son, and Yates — 28. NOT VOTING— Messrs. Howe, Saulsbury, and Wade— 3. So the question was ruled to be inadmissible. Mr. STANBERY,- 'f»o the witness. )_ Gen- eral Sherman, in any of the conversations of the President while you were here, what was said about the department of the Atlantic? Mr. Manager BUTLER. Stay a moment. I submit that that falls within the ruling just made. They cannot put in these declarations. The CHIEF JUSTICE. _ The counsel will reduce his question to writing. Mr. STANBERY. I will vary the question. The question was reduced to writing and sent to the desk. The CHIEF JUSTICE. The Secretary will read the question : The Secretary read it, as follows : What do you know about the creation of the de- partment of the Atlantic ? Mr. Manager BUTLER. We have no objec- tion to what General Sherman knows about the creation of the department of the Atlantic, provided he speaks of knowledge and not from the declarations of the President. All orders, papers, his own knowledge, if he has any, if it does not come from declarations, we do not object to. Although we do not see how this is in issue, if the presiding officer will instruct the witness, as in the other case, to separate knowl- edge from hearsay, we shall make no objection. I have no doubt the general knows the dis- tinction himself. I desire to ask do these gen- tlemen ask for the President's declarations under this? The CHIEF JUSTICE. Do the counsel for the President ask for the President's declara- tions? Mr. STANBERY. I may misunderstand the honorable Managers, but I understood them to claim that the President created the depart- ment of the Atlantic as apart of his unlawful intent by military force to oust Congress, or something of that kind. Do I understand the gentleman to abandon all claim in regard to the department of the Atlantic? Mr. Manager BUTLER. I am not on the stand, Mr. President. When I am I will an- swer questions to the best of my ability. The presiding officer asked the learned counsel a question. If the presiding officer does not want an answer, that is another matter. The question put was, do you ask for the Presi- dent's declarations, and thereupon the counsel undertakes to quiz me. The CHIEF JUSTICE. The counsel for the President will be good enough to state whether in this question they include state- ments made by the President. Mr. STANBERY. _ Not merely that ; what we expect to prove is in what manner the de- partment of the Atlantic was created ; who denned the bounds of the department of the Atlantic ; what was the purpose for which the department was arranged. The CHIEF JUSTICE. Is this conversa- tion subsequent to the time of the removal or attempted removal ? Mr. STANBERY. I do not know whether it was subsequent. It was about the time Mr. EVARTS. Prior. Mr. STANBERY. Prior to the time, I believe. The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate. Mr. Manager BUTLER. I do not see that there is any question. I stated The CHIEF JUSTICE. The Secretary will read the question. The Secretary read it, as follows : What do you know about the creation of the de- partment of the Atlantic? Mr. Maimger BUTLER. I suppose a de- partment can only be created by an order. The CHIEF JUSTICE. Does the honor- able Manager object to the question as put? Mr. Manager BUTLER. [ object to the question altogether; but, if it is to be put at all, I want it expressly, carefully guarded, not to put in any declarations or any information learned from the President. The CHIEF JUSTICE. The Chief Jus- tice will submit the question to the Senate, whether the question shall be put. The question being put, it was determined in the negative. So the Senate ruled the question was inadmissible. Mr. STANBERY, (to the witness.) I will ask you this question, General Sherman : did the President make any application to you respecting the acceptance of the duties of Sec- retary of War ad interim % Did he make a proposition to you — not a declaration — but did he make an offer to you ? Mr. Manager BUTLER. Have you the question in writing? Mr. STANBERY. Yes, sir, [handing it to Mr. Manager Botleb.] Now, we propose to prove an act, not a declaration. Mr. Manager BUTLER. I am instructed, Mr. President, to object to this, because an application cannot be made without being either in writing or in conversation, and then either would be the written or oral declaration of the President, and it is entirely immaterial to this issue. Mr. EVARTS. Mr. Chief Justice and Sen- ators, the ground, as we understand it, upon which the offer, in the form and to the extent in which our question which was overruled sought to put it, was overruled, was because it proposed to put in evidence declarations of the President as if statements of what he was to do or what he had done. We offer this present evidence as executive action of the President at the time and in the direct form of a proposed devolution of office then presently upon Gen- eral Sherman. Mr. Manager BUTLER. To that we simply say this is not the way to prove executive action. Anything done by the Executive we do not object to. Applications made in a closet cannot be put in, whether in the form of declarations or otherwise. Mr. STANBERY. Of course, Mr. Chief Justice and Senators, if we offer to prove the actual appointment of General Sherman to be Secretary of War ad interim, we must produce the paper, the executive order. That is not what we are about to offer now, for the proffer was not accepted. What we offer now is, not a declaration, but an act; a thing proposed by the President to General Sherman, uncon- nected, if you please, with any declaration of any intention. Let the act speak for itself. Mr. Manager BUTLER. Verbal or written ? Mr. STAN BER Y. Verbal. Would i t have been any better if it had been in writing by a note? Is it a question under the statute of frauds that you must have it in writing, a thing that can only be made in writing, and is not good when made by parol ? What we are upon now we have not discussed at all. It is an act ; a thing proposed ; an office tendered to a party, unaccompanied by any declaration at all. " General Sherman, will you take the position of Secretary of War ad interim?" Is not that an act? Is that a declaration merely of intention ? Is not that the offer of the office ? We claim that it is ; and we say, therefore, it does not come within the question of declara- tions at all. He is not declaring anything aboui it ; he is not saying what his intention is ; but he is doing an act. "Will you take this office, General? I offer, it to yon." That is the question. Let us have that act in, and then let it speak for itself, whether it makes for us or makes against us. 158 SUPPLEMENT TO Mr. Manager BUTLER. I propose only to claim my right to close the discussion just to call the attention of the Senate to this. Sup- pose he did offer it, what does that prove? Suppose he did not offer it, what does that prove? If you mean to deal fairly with the Senate, and not get in a, conversation under the guise of putting in an act, what does it prove ? It would rather prove in our favor that he_was trying to get General Sherman to take this office in order to get out Stanton. And if it was the mere act I should not object perhaps. The difficulty is, while it is not within the statute of frauds, I think it is within everything but the statute. I think it is an attempt under the guise of an act to get in a conversation. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read as follows : Did the President make any application to you respecting your acceptance of the duties of Secretary of War ad interim ? The CHIEF JUSTICE. The Chief Justice will put the question to the Senate. The question being put was determined in the affirmative. So the Senate decided the question to be admissible. By Mr. Stanbery. Question. Answer the question, if you please, General Sherman ? The Witness, (to the Secretary.) Will you read it again, sir? The Secretary read the question, as follows : Did the President make any application to you respecting your acceptance of the duties of Secretary of War ad interim f Answer. The Presidenttendered me the office of Secretary of War ad interim on two occa- sions ; the first was on the afternoon of Janu- ary 25 and the second on Thursday, the 30th of January. Question. Mr. Stanton was then in office, was he ? Answer. Mr. Stanton was then in office as now. Question. Was any one else present? Answer. I think not, sir. Mr. Moore may have been called in to show some papers, but I think was not present when the President made me this tender. To both of them — shall I go on ? Mr. STANBERY. There is no objection. Answer. To both of them I replied in writ- ing. My answer to the first is dated on the 27th of January ; my answer to the second is dated on the 31st of January. Question. Did you receive any communica- tion in writing from the President on that subject ? Answer. I did not. Question. What was the date of your first letter? Answer. The 27th. Question. Is that the letter to the President or to General Grant ? Answer. According to my notes, the letter to the President ; and I think my notes are correct, for I took them from my record-book this morning. The second letter I know to be dated the 31st, also taken from the same rec- ord-book. Question. Now, referring to the time when the offer was first made to you by the Presi- dent, did anything further take place between you in reference to that matter. Besides the tender by him and the acceptance or non- acceptance by you, what took place concomi- tant with that act? Mr. Manager BUTLER. I suppose you mean to except the answer? Mr. STANBERY. I ask in reference to that very thing as concomitant with the act. Mr. Manager BUTLER. We object, for the very plain reason that this is now getting in the conversations again. Mr. STANBERY. You have got the act. Mr. Manager BUTLER. Ah, yes, Senators ; I call your attention to the manner in which this case is tried. I warned you that if you let in the act they would attempt to get in the declaration under it. That was the opening wedge. Now, they say they have got in the act and they are going for the declaration, to see if by chance they cannot get around your ruling. Mr. EVARTS. What is your proposition now to the Senators ? Mr. Manager BUTLER. My proposition is, objecting to this evidence, that the evidence is incompetent and is based upon first getting in an act which proved nothing and looked to be immaterial, so that it was quite liberal for Sen- ators to vote it in, but that liberality is taken advantage of to endeavor to get by the ruling of the Senate and put in declarations which the Senate has ruled out. Mr. EVARTS. The tender of the War Office by the Chief Executive of the United States to a general in t)fr position of General Sherman is an executive act, and as such has been admitted in evidence by this court. Like every other act thus admitted in evidence as an act, it is competent to attend it by whatever was expressed from one to the other in the course of that act to the termination of it. And on that proposition the learned Manager shakes his finger of warning at the Senators- of the United States against the malpractices of the counsel for the President. Now, Senators, if there be anything clear, anything plain in the law of evidence, without which truth is shut out, the form and features of the fact permitted to be proved excluded, it is this rule that the spoken act is a part of the attending qualifying trait and character of the act itself. Mr. Manager BUTLER. To that I answer, Senators, that here was an immaterial act — mark, an act wholly immaterial. The only qualification that could be put in would be the answer, perhaps, of General Sherman ; that is not offered ; but the offer is to put in an incom- petent conversation as explaining an immate- rial act. What is the proposition put forward here? It is that the Executive can make offers of office to any man in the country, general or other, and then put in the fact that he made the offer of the office, and, as illustrative of that fact, put in everything he said about it. That is the proposition. I did not use the word "malpractice" about that proposition; but it is a most remarkable proposition. He makes an act himself, insists upon putting it in, and then says, "I have got in the act; now you must let me explain it." He could have saved himself the explanation by keeping the act out. But that is the proposition ; and I un- dertake — no ; it is not worthy of words or as- severation. A criminal on trial puts in his act, presses it in, and then says, "I have got the act in ; now I must show what I said about it in order to explain that act." It argues itself. The CHIEF JUSTICE. _ The counsel will reduce their question to writing. The counsel for the respondent reduced the question to writing and presented it to Mr. Manager Botlek. Mr. Manager BUTLER, having read the question, passed it up to the Secretary's desk, saying : I assume that it asks for conversations. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read the question, as follows: At the first interview at which the tender of the duties of the Secretary of War ad interim was made to you by the President did anything further pass between you and the President in reference to the tender or your acceptance of it? Mr. Manager BDTLER. The President will ask the counsel whether they expect, under that, to put in the declarations of the Presi- dent or the conversations of the President? The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate as it is proposed. Mr. DRAKE. On that question I ask for the yeas and nays. The yeas and nays were ordered. Mr. ANTHONY. _ Let the question be read. The Secretary again read the question. The question being taken by yeas and nays, resulted — yeas 23, nays 29 ; as follows : YEAS— Messrs. Anthony, Ba"yard, Buckal«w> Cole, Davis, Dixon, Doolittle, Eessenden. Fowler, grimes, Hendricks, Johnson. McCrcery, Morgan, Norton, Patterson of Tennessee, Ross, SpraBue Sumner, Trumbull, Van Winkle, Vickers, and Willey— 23. NAYS— Messrs. Cameron, Cattell, Chandler, Conk- ling. Conness, Corbett. Cragin, Drake, Edmunds, Ferry, Frelinahnysen, Harlan, Henderson, Howard, Howe. Morrill of Maine, Morrill of Vermont, Mor- ton, Nye. Patterson of Now Hampshire, Pomeroy, Ramsey, Sherman, Stewart, Thayer, Tipton, Williams, Wilson, and Yates— 29. NOT VOTING— Messrs. Saulsbury and Wade— 2. So the Senate decided the question to be inadmissible. By Mr. Staxbery : Question. Now, the second interview, Gen- eral Sherman ; when did you say that was? Answer. The second interview, wherein he offered me that appointment, was on the 30th of January. Question. In that interview did he again make an offer to you to be Secretary of War ad interim ? Answer. Very distinctly, sir. Question. At that interview was anything said in explanation of that offer? Mr. Manager BINGHAM and Mr. Manager BUTLER. We object. Mr. EVARTS. The same ruling, of course. Mr. STANBERY. I only want it to be ruled out, if you object to it. Let us have the ruling upon it. Mr. Manager BUTLER. I would ask the presiding officer whether that does not exactly fall within the ruling just made ? Mr. EVARTS. We understand that it does, Mr. Butler, and have so stated to the Chair. We have asked our question, and we take the ruling of the court against it. By Mr. Stanbery: Question. In these conversations did the President state to you that his object was to take the question before the courts? Mr. Manager BINGHAM and Mr. Manager BUTLER. Stop a moment. We object to that. The CHIEF JUSTICE. The counsel will please reduce their question to writing. Mr. Manager BUTLER. I suppose they do not propose Mr. STANBERY. We have a right to offer it. Mr. Manager BINGHAM. We have a right to object to it. Mr. STANBERY. That we understand perfectly. We may state what we propose to prove. Mr. Manager BUTLER. But then, Mr. President, the courts sometimes say, after they have ruled a question, that it is not within the proprieties of the trial to offer the same thing over and over again. It is sometimes done in a court for the purpose of taking a bill of exceptions, or a writ of error on the rulings. If the counsel say that that is the purpose here, we shall not object, because they ought to preserve their rights in all forms. But supposing this to be the court of last resort, if court at all, there can be no proper occasion over and over for throwing themselves against the rulings. Mr. STANBERY. I do not understand that the ruling was upon this specific question. It was the general question, what was said, that was ruled out those times. I want to make the specific question now to indicate what we desire to prove. I now put the specific question whether in any of those interviews the Presi- dent said what was his intention in regard to making the question at law ? I have not put that question before. Mr. Manager BUTLER. And, Mr. Presi- dent, my remarks were in reply to the distinct admission of the counsel that the question came within the ruling and that he expected it to be ruled out, but still intended to make the offer. Mr. EVARTS. That was the previous question. Mr. Manager BUTLER. Oh, no: this last one. Mr. EVARTS. No; you are mistaken about it. Besides, Mr. Chief Justice and THE CONGRESSIONAL GLOBE. 159 Senators, although there is no review by any court of your determinations of interlocutory or of final questions, yet, as the learned Man- agers know, it is entirely competent to bring to the notice of the court that is to pass upon the question in the final judgment the evidence Uiat is supposed to be admissible, in order that it may be, as it is always if properly originated, a matter of argument, that the case is to be disposed of on the ground as if it were admitted ; and that we have a right to do, and not be limited to abstractions in the determination of these questions. The CHIEF JUSTICE. The counsel for the President will please reduce their question to writing. Mr. EVARTS. And the difference we make between this specific question and the general question which has been excluded, and in re- gard to which we do not propose to trouble the Senate further, is, that when a general conver- sation cannot be admitted, if the objection be applicable, and it has been successfully made here, then to exclude a conclusion on a definite point the specific question may be put. The CHIEF JUSTICE._ The counsel will reduce their question to writing. The question being reduced to writing, it was handed by the counsel for the respondent to Mr. Manager Butler, and after inspection, handed by him to the Secretary. Mr. Manager BUTLER. I object, Mr. Pres- ident, to the question, both as leading in form, outrageously so, and incompetent under the previous rulings. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read the question as reduced to writing, as follows : In either of these conversations did the President say to you that his object in appointing you wasthat ho might thus get the question of Mr. Stanton's right to the office before the Supreme Court ? The CHIEF JUSTICE. Senators, you who are of opinion that the question just read Mr. HOWARD. I ask for the yeas and nays on that question. The yeas and nays were ordered. The CHIEF JUSTICE. Senators, you who are of opinion that the question just read is admissible will, as your names are called, an- swer yea. Those of the contrary opinion will answer nay. The Secretary will call the roll. Mr. Manager BUTLER. Let the question be again read. The CHIEF JUSTICE. The Secretary will read the question again. The Secretary read as follows : In either of these conversations did the President say to you that his object in appointing you was that he might thus get the question of Mr. Stanton's right to the office before the Supreme Court? Mr. DOOLITTLE. Mr. Chief Justice, I do not know that I understood the ground of objection of the Managers. Mr. Manager BUTLER. As outrageously leading and utterly incompetent and entirely against the ruling of the Senate. The CHIEF JUSTICE. The Secretary will call the roll. The Secretary proceeded with and con- cluded the calling of the roll. Mr. JOHNSON, (who had not voted.) I ask for the reading of the question. I did not hear it distinctly, and that was the reason I declined to vote. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read as follows : In either of these conversations did the President say to you Mr. JOHNSON. That will do, sir. I vote in the negative. Mr. DAVIS, (who had first voted in the affirmative.) Mr. Chief Justice, the question is leading. I vote in the negative. The result was announced — yeas 7, nays 44 ; as follows: YEAS— Messrs. Anthony, Bayard, Fowler, Mc- Creery, Patterson of Tennessee, Ross, and Vickers— 7. NAYS — Messrs. Buckalew, Cameron, Cattell, Chandler. Cole, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Doolittlo, Drake, Edmunds, Ferry. Fessenden, Frelinghuysen, Grimes, Harlan, Hender- son, Hondrioks, Howard, Howo, Johnson, Morsan, Morrill of Maine, Morrill of Vermont, Morton, Nor- ton, Nye, Patterson of Now Hampshiro, Pomeroy, Ramsey, Sherman. Spraguo, Stewart, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates— 44. NOTi VOTING— Messrs. Saulsbury. Sumner, and Wade-3. So the question was decided to be inadmis- sible. Mr. STANBERY. Mr. Chief Justice and Senators, this- question undoubtedly has been overruled upon matter of form at least. I now propose to change the form of it. I do not want to be thrown out upon a mere technicality. I therefore change it. Mr. Manager BUTLER. Let me see it. Mr. STANBERY handed the question as written by him to Mr. Manager Butler. Mr. Manager BUTLER. Mr. President and Senators, the question as presented to me is : Was anything said at that conversation by the President as to any purpose of getting -the question of Mr. Stanton's right to the offico before tho courts? Now, Mr. President and Senators, this is the last question precisely, without the leading part of it, I so understand. Now, then, I un- derstand it to be a very well settled rule of trials that where a counsel deliberately puts a question leading in form, and has it passed upon, he cannot afterward withdraw the lead- ing part and put the same question without it. Sometimes this rule has been relaxed in favor of very young counsel, [laughter,] who did not know what a leading question was, but not otherwise. I have seen very young men make mistakes by accident, and I have known the courts to let them up and say, " We will not hold the rule, if you made an accident." Mr. President, I call your and the Senate's attention to the fact that I three times over objected to the last question as being outrage- ously leading, and I did it so that there should be no mistake ; yet the counsel for the Presi- dent went on and insisted not only on not withdrawing it, but on putting the Senate to the delay of having the yeas and nays taken. If I had not called their attention to it I agree that perhaps the rule might not be enforced ; but I called their attention to it. They are five gentlemen of the oldest men in the profes- sion, to whom this rule waswell known. They chose to submit to the Senate a tentative ques- tion, and now they propose to try that over again, keeping you voting on forms of ques- tions until your patience is wearied out. That is what they may do. I had the honor to say to the Senate a little while ago that all the rules of evidence are founded upon good sense, and this rule is founded on good sense. It would do no harm in the case of this witness; but the rule is founded on this proposition : that counsel shall not put a leading question to a witness, and thus instruct him what they want him to say, and then have it overruled and withdraw it, and put the same question in substance, because yon could al- ways instruct a witness in that way. Of course, that was not meant here, because I assume it would do no harm in any form, and the coun- sel would not do it ; but I think the Senate should hold itself not to be played with in this way. If you choose to sit here and have the yeas and nays called, I can sit here as long as anybody. Mr. STANBERY. Mr. Chief Justice, this is quite too serious a business that we are en- gaged in, and the responsibility is too great, the issues are too important, to descend to the sort of controversy that would be introduced here. The gentleman says I am an old lawyer, long at the bar. I hope I never have disgraced the position. I hope I am not in the habit of making factious opposition before any court, high or low, especially not before this body, which has treated us with so much courtesy. But the learned Manager intimates here that I have deliberately put a leading question,_ re- sorting to the low tactics of an Old Bailey court, for the purpose of getting time and mak- ing factious opposition, I scorn any such imputation. Leading questions ! Undoubtedly the pre- vious question was leading ; but was it intend- ed to be leading, intended to draw General Sherman out to say something that otherwise would not be said ? The learned Manager says Oh no, it was not intended, so far as General Sherman is concerned, to be a leading question ; but so far as the counsel is concerned the pur- pose was to put it in that form that the counsel might have another opportunity of putting it in a legal form, thus insinuating that deliberately that question was manufactured in a leading form, knowing that it would be rejected on account of form, for the purpose of getting ten or fifteen minutes of time in order to put it in a proper form ! Leading questions ! Will the honorable Man- ager please to read over the record of this case and see hundreds of leading questions put by him again and again. We got tired of object- ing to them. I must be permitted to disclaim any such intention as this. This is a matter of great importance to us. We deem it to be so. The interests of our client are in our hands, to defend him the best way we can. We wish it to appear what we desire to prove and what we are anxious to prove. We do not want to make any more argument upon it. We submit it to the judgment of the Senate. We put the question as to the matter which we seek to prove, that it may appear what it is that we seek to prove, to use every effort in our power, not factiously but honor- ably, properly, not to argue again and again the same point, but simply to have the oppor- tunity of having our questions put before the Senate and decided. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read as follows : Was anything said at that conversation by the President as to any purpose of getting the question of Mr. Stanton's right to tho office before tho courts? Mr. EVARTS. We desire to alter the first phrase by striking out the words " at that con- versation," and inserting "at either of these interviews," so as to cover the same ground as before. The CHIEF JUSTICE. The question will be so modified. The Secretary will read the question as modified. The Secretary^read as follows : Was anything said at either of those interviews by tho President as to any purpose of getting the ques- tion of Mr. Stanton's right to the office before the courts? The CHIEF JUSTICE put the question on the admissibility of this question ; and it was determined in the negative. Mr. HENDERSON. I desire to ask a question of the witness, and I send it to the desk in writing. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Missouri. The Secretary read as follows : Did the President, in tendering you the appoint- ment of Secretary of War ad interim, express the obj eot or purpose of so doing ? Mr. Manager BINGHAM. Mr. President, we must object to that question, as being within the ruling already settled by the court, and submit it to the Senate. It is both leading and incompetent. The CHIEF JUSTICE. The Chief Jus- tice will submit the question to the Senate. Senators, you who are of the opinion that the question proposed by the Senator from Mis- souri Messrs. DOOLITTLE and THAYER called for the yeas and nays ; and they were ordered. Mr. DRAKE. I ask for the reading of the question again. The Secretary again read the question pro- pounded by Mr. Henderson. Mr. DOOLITTLE. Mr. Chief Justice, I have risen for the purpose of moving that the Senate go into consultation on this important question ; but, as I see that there may not be time to-night to go into consultation, I move that the court adjourn until Monday at twelve o'clock. ["No!" "No!"] 160 SUPPLEMENT TO The CHIEF JUSTICE. The question is on the motion of the Senator from Wisconsin, that the Senate, sitting as a court of impeach- ment, adjourn until Monday at twelve o'clock. The motion was not agreed to. The CHIEF JUSTICE. The question re- curs on the admissibility of the question pro- posed by the Senator from Missouri, [Mr. Henderson.] Senators, you who are of opin- ion that the question is admissible and should be put to the witness will, as your names are called, answer yea ; those of the contrary opinion will answer nay. The Secretary will call the roll. The question being taken by yeas and nays, resulted — yeas 25, nays 27 ; as follows : YEAS— Messrs. Anthony, Bayard, Buokalew, Da- vis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, MeCreery, Morrill of Maine, Morton, Norton, Patterson of Tennessee, Ross. Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, and Willey — 25. NAYS— Messrs. Cameron, Cattell, Chandler, Cole, Coiakling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frclinghuysen, Harlan, Howard, Howe, Mor- gan, Morrill of Vermont, Nye, Patterson of New Hampshire, Porneroy, Ramsey,Stewart.Thayer, Tip- ton, Williams, Wilson, and Yates— 27. NOT VOTING— Messrs. Saulsbury and Wade— 2. So the question proposed by Mr. Hender- son was decided to be inadmissible. Mr. TRUMBULL, (athalf-pastfouro'clock.) I move that the Senate, sitting as a court of impeachment, adjourn until Monday at twelve o'clock. Mr. STEWART, Mr. SUMNER, and Mr. TPIAYER called for the yeas and nays, and they were ordered ; and being taken, resulted — yeas 25, nays 27 ; as follows : YEAS— Messrs. Bayard, Buokalew, Cameron, Cat- tell, Corbett, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hend- ricks, Howe. Johnson, MeCreery, Morton. Norton, Patterson of Tennessee, Ramsey, Sprague, Trumbull, Von Winkle, and Vickers— 25. NAYS — Messrs. An thony.Cbandl or, Cole, Conkling, Conness, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Morgan, Morrill of Maine, Morrill of Ver- mont, Nye, Patterson of New Hampshire, Pomeroy, Boss, Sherman, Stewart, Sumner, Thayer, Tipton, Willev, Williams, Wilson, and Yates— 27. NOT VOTING— Messrs. Saulsbury and Wade— 2. So the Senate refused to adjourn. Mr. Manager BUTLER, (to the counsel for the respondent. ) Have you anything further with this witness, gentlemen? Mr. STANBERY. I propose to put a ques- tion, which I will send to the Managers. The question was sent in writing to Mr. Manager Butler. Mr. Manager BUTLER. The question pro- posed is : At either of those interviews was anything said in reference to the use of threats, intimidation, or force to get possession of the War Office, or the contrary ? We object for the reason that it is leading, and the substance of it has been voted upon at least three times. Mr. EVARTS. Do you say it is leading? Mr. STANBERY. I do notunderstand that it is leading. Mr. Manager BUTLER. We do not care much about the "leading" point. Mr. EVARTS. You do not object to it as leading ? Mr. Manager BUTLER. No, sir. The CHIEF JUSTICE. The question will be read by the Secretary. The Secretary read as follows : At either of these interviews was anything said in reference to the use of threats, intimidation, orforce to get possession of the War Office, or the contrary ? The CHIEF JUSTICE put the question on the admissibility of the question ; and it was determined in the negative. After a pause — The CHIEF JUSTICE. Have the counsel for the President any further questions ? Mr. STANBERY. We are considering, Mr. Chief Justice, whether there is any other question we have to put to General Sherman. Mr. ANTHONY, fat four o'clock and thirty- seven minutes p. m.) I move that the Senate, sitting as a court of impeachment, do now adjourn. Mr. Manager BUTLER. Let us finish with this witness. The CHIEF JUSTICE put the question on the motion to adjourn, and declared that it appeared to be agreed to. Mr. DRAKE called for the yeas and nays ; and they were ordered. Mr. CONKLING. I beg to inquire whether the Managers mean to cross-examine this wit- ness. Mr. Manager BUTLER. Not at all, if we can only get the other side through with him. Mr. CONKLING. I thought they were through with him. Mr. Manager BUTLER. No ; they will not finish with him. The CHIEF JUSTICE. The Secretary will call the roll. The Secretary called the name of Mr. An- thony, and he responded. Mr. THAYER. Mr. President, I rise for information. I desire The CHIEF JUSTICE. The roll is being called, and no debate is in order. Mr. THAYER. I desire to inquire what we are voting on ? The CHIEF JUSTICE. On a motion to adjourn. Mr. THAYER. I did not hear what the counsel for the defense said in regard • The CHIEF JUSTICE. Debate is not in order. The Secretary will proceed with the call. The Secretary concluded the callof the roll, and the result was announced — yeas 20, nays 32 ; as follows : YEAS— Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Edmunds, Fowler, Grimes, Hen- derson, Hendricks, Howe, Johnson, MeCreery, Mor- ton, Norton, Patterson of Tennessee, Trumbull, Van Winkle, and Vickers— 20. NAYS— Messrs. Cameron. Cattell, Chandler, Cole, Conkling, Conness. Corbett. Cragin, Drake. Ferry, Fessenden, Frelinghuysen, Harlan, Howard, Morgan, Morrill of Maine, Morrill of Vermont, Nye, Pat- terson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tip- ton, Willey, Williams, Wilson, and Yates— 32. NOT VOTING— Messrs. Saulsbury and Wade— 2. So the Senate refused to adjourn. Mr. STANBERY. Mr. Chief Justice, I will state to the Managers and to the Senate that under these rulings we are not now pre- pared to say that we have any further ques- tions to put to General Sherman ; but it is a matter of so much importance that we desire to be allowed to recall General Sherman on Monday if we deem it proper further to ex- amine him. Mr. Manager BUTLER. We are very de- sirous that the examination of this witness should be closed, if possible Mr. Manager BINGHAM. Oh, no ; we have no objection. Mr. HOWE. I move that the Senate, sitting as a court, adjourn. The motion was agreed to ; and the Senate, sitting for the trial of the impeachment, ad- journed until Monday next at twelve o'clock. Monday, April 13, 1868. The Chief Justice of the United States entered the Senate Chamber at twelve o'clock and five minutes p. m., and took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives appeared and took the seats assigned them. The counsel for the respondent also ap- peared and took their seats. The presence, of the House of Represent- atives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. Washburne, the chair- man of that committee, and accompanied by the Speaker and Clerk, entered the Senate Chamber, and were conducted to the seats pro- vided for them. The CHIEF JUSTICE. The Journal of the last day's proceedings will be read by the Secretary. The Secretary proceeded to read the Journal of the proceedings of the Senate sitting for the trial of the impeachment on Saturday last; but was interrupted at fifteen minutes past twelve o'clock. Mr. STEWART. I move that the further reading of the Journal be dispensed with. The CHIEF JUSTICE. If there be no ob- jection, the further reading of the Journal will be dispensed with. The Chair hears no objec- tion. Before the counsel for the President proceed, the Chief Justice will state that on Saturday last the Senator from New Jersey [Mr. Frelixmiuysen] had submitted a motion for an order to remove the limit fixed by Rule 21 as to the number who may participate in the final argument of the cause. That order is before the Senate unless objected to. Mr. SUMNER. Mr. President, I send to the Chair an amendment to that order to come in at the end : Provided, That the trial shall proceed withoutany further delay or postponement on this account. The CHIEF JUSTICE. The order which is proposed by the Senator from New Jersey will be read. The Secretary. The order is as follows: Ordered, That as many of the Managers and of the counsel for the President be permitted to speak on the final argument as shall choose to do so. It is proposed to amend the order by adding the following proviso : Provided, That the trial shall proceed without any further delay or postponement on this account. Mr. FRELINGHUYSEN. I accept the amendment of the Senator from Massachu- setts* The CHIEF JUSTICE. The question wiU be on the order as modified. Mr. Manager WILLIAMS. Mr. President, with your leave, and yours, gentlemen of the Senate, before taking the vote on this question, and in default of any remarks in support of the motion submitted by the honorable Managers on the part of the House, I feel constrained to ask your indulgence for a word or two, not so much in the way of argument or remonstrance as for the purpose of inviting your attention to the precedents in cases of this sort. It has pleased the Senate to adopt a. rule limiting the discussion upon the final argument of this case to two counsel on each side ; and this I may say is in conformity with the rule which I believe prevails almost universally in ordinary cases in the trial of all civil actions, and in the t§ial of indictments in the criminal courts, even though those cases may be of very small magnitude, and concern the public at large to none, or but a very trifling extent. I am not here to contest the right of this tribu- nal sitting as a court, or of any other judicial tribunal, to impose such reasonable limitations upon the freedom of speech as the interests of justice may require, or as may be necessary to facilitate its proper administration. I admit that time is legitimate consideration ; but in the text of Magna Charta, comes, I think, after justice: " we will not sell, we will not deny, we will not delay right or justice." It struck me, however, that the effect of this rule was to create a condition of things which was calculated, in some degree, to embarrass the gentlemen who have been sent here to eon- duct, this case on the part of the House and the people. The House, acting upon its discretion and upon a full consciousness of the import- ance of this case, has devolved this responsi- ble task upon seven of its members. ■ In this particular, although the case is one without a precedent, they certainly have not deviated from the ordinary rule. I know no cases in which the number has been less than five. There are many, I think, where it has amounted to as much as eleven. The effect, however, of this rule will then be to exclude from the de- bate upon this question — I mean the final debate, and I take that to be really and sub- stantially the onlyimportantone — at least four of the Managers appointed by the House. If time were a matter of importance — and I am now willing to admit that it is, as the House THE CONGRESSIONAL GLOBE. 161 concedes in its proceedings here, in the arti- cles which it has presented, and in the whole conduct of its Managers, as exhibited before you — it would have seemed to me, that while a reasonable limitation would be proper it would, perhaps, have relieved us to some extent and enabled all the Managers to perform what they might conceive to be their duties as im- posed upon them by the House of Represent- atives, if this honorable body had undertaken to say how much time, or, in other words, how many hours, the public convenience and the interests of the State would allow them to give to the prosecution in this case. In that event the time allowed could have been divided and apportioned among the Managers, and that would have been in conformity with the terms of the rule in regard to interlocutory motions where an hour has been assigned to each side, and the privilege left to members of saying by whom the several questions may be discussed. If the rule had been modified in this way the Managers, as 1 have observed, would have been relieved, because they could then ■ have dis- tributed the several parts among themselves. It struck me, however — and I rose merely for the purpose of calling your attention to the precedents — that the rule was an unusual one. It did not meet the approbation of the Managers in the first instance; and when, as they did, under a sort of compulsion imposed upon iheni, distribute the parts in this drama, if I may be allowed to call it so, they directed their chairman to make this application. It has been postponed ; it is now made, and is now before you. They thought the rule was unusual. I think they all shared in that opinion. I have taken very little time myself to look into the precedents; but since the motion has been made I have thought it was my duty so to do, and I desire to state now to this honorable Senate what is the resnltin ordinary eases ; and this, I think, will not be considered one of that description. There have been but five cases within our history of impeachments before the Senate of the United States. The first of them was the case of Blount, which was tried, I think, in the year 1798. That was the impeachment of a Senator; it went off upon a collateral question, which was as to the fact whether a member of the Senate was an officer impeachable under the Constitution. The next case was the case of Judge Pickering, of New Hampshire. The charge there was drunkenness. The defense put in — if there can be said to have been a de- fense put in regularly, where the respondent did not appear by counsel — was insanity. That question was tried in advance ; it was ruled against him; and thereupon, upon the motion of the members of the House, at the special instance and upon the special order of the House itself, to whom, I believe, the question was then referred, the case was submilted with- out argument, and a judgment rendered against the defendant. The third case was that of Justice Chase. There the number of managers was seven. They were all heard except one, and yet the number of arguments made was equal to the number of managers, because the default of that one, if it was a default, was supplied by two speeches from Mr. Randolph, the chair- man, who opened the case and closed it. The next case was that of Judge Peck. There the number of managers was five. They all participated in the argument. In none of these cases does there seem to have been — I may be mistaken, and stand sub- ject to correction if I am wrong — any ques- tion as to the right of the House to be heard, if it desired, through all its managers. If there was any discussion then, or any rule adopted on the subject at that or any other time, members of the Senate who have participated in the framing of these rules must be of course aware of it, and will be able to make the answer in their votes. There, however, as I have already remarked, the course was the same as in the case of .Justice. Chase. The last case was the case of Judge Hum- SnPPLEMETSTT 1 1 phreys. That took place at the commence- ment of the war. There there was no appear- ance, and of course no defense, and a sort of judgment was taken by default, something, perhaps, in the nature of a judgment of out- lawry. It seems, then, that in the only two cases that have been contested in this country before this Senate, the rule has been that all the managers appointed by the House should be allowed to participate in the discussion. How is it elsewhere ? I have not chosen to go beyond the waters to look into the prece- dents ; but there is one case in British history which is familiar to all of us, which is asso- ciated, I may -say, with the school-boy recol- lection ofevery man in this nation, of every man, indeed, who is familiar with our language, a case made memorable, I suppose, mainly, not by the peculiar interest which it involved, but by the fact that it was illustrated by the splendid genius of some of the greatest men that Eng- land has ever produced. It was not because Warren Hastings was the Governor General of Bengal — that was a small matter, held. I believe, by the grace of the British East India Com- pany — but because such men as Edmund Burke and Richard Brinsley Sheridan were among the managers. It was such men as those who made the case an epoch in parliamentary history. It may be said, however, that there was an- other reason for it, and that was its long dura- tion. It continued, I believe, for as long a period as seven years. I beg Senators to under- stand that I do not quote it as an authority on that point ; but I think it will be remembered by all of them that the labor of argumentation was distributed among all the managers, the articles being numerous, complicated, and elab- orate, though I suppose that the fact of all the managers participating had nothing to do pos- sibly with the prolongation of the time. And now, in view of these precedents, I would desire to ask how does the present case compare with them? Is it an ordinary one? Why, it dwarfs them all into absolute nothing- ness. There is nothing in the world's history that compares with this. It makes an epoch in history, and therefore I may well say that you are making history to-day. And therefore, too, I think it is, that upon questions of this sort you should so rule as to show to posterity that you do properly appreciate the magnitude of the interests involved. Senators, I feel myself the difficulty of realizing its magnitude. I know how hard it is for us, even, who are the actors in this great drama, to rise to the height of this great argument. Why, what is the case? That of a judge of the Supreme Court or of the dis- trict court of the United States ? That of a custom-house officer? No. It is the case of the Chief Magistrate of a great people, of an empire reaching from ocean to ocean, and com- prehending within its circumference forty mil- lions of free, intelligent, thinking people, who are looking upon your doings and waiting in breathless suspense for your verdict. That is the case now before you ; and if, in the ease of a judge of the Supreme Court — 'and from my habitual respect for that tribunal, I would not be understood to speak disparagingly of the position — or if in the case of a judge of the district court, it was thought improper to im- pose any limitations, where the number of managers was the same as now, what shall be said of the application in a case like this of a rule which prevails, as I have already remarked, in all the courts, even in the most indifferent causes ? It can only be accounted for in one way: either that the case was of small conse- quence, or that it was so plain that the judges required no professional research and no argu- ment to aid them. And now I desire only to say in conclusion, in order that I may not "be misunderstood, that in the remarks which I have made I have not been moved by any considerations that were personal to myself. I have lived long enough to outlive the time when the ambition to be heard is felt by men ; I have lived too long, at all events, to think it worth while to press an argument upon an unwilling judge, whatever may be the reasons by which he may be in- fluenced, whether he may regard the case as : too clear a one, or whether he may consider it as so unimportant as not to be entitled to a reasonable amount of time. I do not know, if yon relax this rule, whether I shall be per- sonally able to take advantage of it or not. That, will depend upon my strength ; that will depend again upon the feeling that I may have as to the necessity of anything additional to what may be said by others. 1 felt it, however, to be my duty to enter my protest — and I do it most respectfully — against what maybe drawn into a precedent hereafter. If in a case like this the argument may be limited to two, how will it be when another suprem e j udge is arraign ed be lore another Senate for high crimes and misdemean- ors? I take it for granted that, measuring things by their comparative proportions, another Sen- ate would feel authorized to reduce the number of counsel to one; and if it came to a district judge or a custom-house officer I do not know whether they might not feel authorized to deny that privilege altogether. Mr. Manager STEVENS. Mr. Chief Jus- tice, I have but a word to say, and that is of very little importance. I do not expect to be able, if allowed, to say many words upon this subject. There is one single article which I am somewhere held responsible for for introducing, and a single article only, which 1 wish to argue at a very brief length ; but i desire that my colleagues should have full opportunity to ex- ercise such liberty as they deem proper in the argument. I have no objection myself — I do not speak for my colleagues — if the Senate choose to limit our time, to their doing so, and fixing it at what they think reasonable, what one gen- tleman here would occupy, for I find they oc- cupy three days sometimes here, lam willing to allow the Senate to fix the time and let the Managers, those who are not already expected to speak in conclusion, to divide that time among themselves. However, sir, this is a mere suggestion. I merely wish to say that I trust some further time will be given, as there are two or three subjects on which for a short time, perhaps an hour or three quarters of an hour, some of us may be anxious to give the reasons why we were so pertinacious in the House in insisting upon their introduction after the House had reported leaving them out. I confess I feel in that awkward position that I owe it to myself and to the country to give the reasons why I insisted with what is called obstinacy in intro- ducing one of the articles ; but I am willing to be confined to any length of time which the Senate may deem proper. What I have to say I can say very briefly. Indeed, I cannot say it at any great length if I would. I merely make this suggestion, and beg the pardon of the Senate for having obtruded thus long upon their time when they ought to proceed. The CHIEF JUSTICE. Do the counsel for the President desire to submit any remarks to the Senate? Mr. SHERMAN. Mr. President, I submit an amendment, which I desire to be added to the order as it stands. The CHIEF JUSTICE. The amendment will be read by the Clerk. Mr. FREL1NGHUYSEN. Mr. President, before the amendment of the Senator from Ohio is submitted, I desire, if I am at liberty, to modify the resolution somewhat by adding a further proviso that only one counsel on the part of the Managers shall be heard in the close. It was not the purpose of the resolution to change the rule, excepting as to the num- ber who should speak. The CHIEF JUSTICE. The Secretary will read the order as modified by the Senator from New Jersey. The Secretary. The order, as modified by the mover, now reads: Ordered, That as many of the Managers and of the counsel for the President be permitted to speak on the final argument as shall choose to do so : Provided, 162 SUPPLEMENT TO Thatthe trial shall proceed without any farther delay or postponement on this account: Ana provided fur- ther. That only one Manager shall be heard in the close. The amendment of the Senator from Ohio [Mr. Suekman] is to add : But the additional time allowed by this order to each side shall not exceed three hours. Mr. Manager BOUTWELL. Mr. President and Senators, I am very unwilling myself to make any remarks upon this resolution, because I am so situated, upon the judgment of the Managers, that it is a delicate matter for me to do so ; and had it not been for the qualification made by the honorable Senator from New Jersey I should have said nothing. But if the Senate will consider that in the case of Judge Peck, after the testimony was submitted to the Senate, it was first summed up by two man- agers on the part of the House; that then the counsel for the respondent argued the cause of the respondent by two of their number, and that then the case was closed for the House of Representatives by two arguments made by the managers ; if the Senate will consider that in the trial of Judge Chase the argument on the part of the House of Representatives and of the people of the United States was closed by three managers after the testimony had been submitted and the arguments in favor of the respondent had been closed ; if they will con- sider that in the trial of Judge Prescott, in Massachusetts, (which I venture to say in this presence was one of the most ably conducted trials in the history of impeachments, either in this country or in Great Britain, on the part of the managers sustained by Chief Justice Shaw and on the part of the respondent by Mr. Web- ster.) that two arguments were made by the managers of the House of Representatives on the part of the House and on the part of the people of that Commonwealth after the case of the respondent had been closed both upon the evidence and upon the argument, I think it needs no further illustration to satisfy this tri- bunal that the cause of the people, the cause of the House of Representatives, if this case should be opened to full debate on the part of the five gentlemen who represent the respond- ent here, ought not to be left to the close of a single individual. Mr. JOHNSON. Mr. Chief Justice, I ask for the reading of the order as moved by the mover, and as proposed to be modified by the member from Ohio. The Secretary read the order as modified by Mr. Frelinghuysen, and the amendment of Mr. Sherman. Mr. STANBERY. Mr. Chief Justice and Senators, we hope this extension of time will not be an injury to us in disguise. We have neither asked it nor objected to it ; it comes from the opposite side to have more counsel than are already assigned by the rules which have been adopted. We make no objection ; no objection if all seven of my learned friends argue this case ; but as I understand the amend- ment offered by the Senator from Ohio, it is that in the final argument, as to which as yet there is no limitation of time, but only of the number of counsel, the provision as to the addition of counsel shall be amended by a pro- viso that the additional time shall not be more than three hours. The time already is indefi- nite. The rule fixes only the number of counsel, not the time that they shall occupy. As yet the Senate have not said that in the final summing up, or indeed in the opening which we have had, counsel shall be limited as to time. I do not know in what position we should be if this amendment of the Senator from Ohio is adopted. Three hours in addition to what ? Three hours in addition to a time that is made indefinite by the rule ! I cannot understand it. I only call the attention of the Senate to it that there may be no misunderstanding here- after ; and as to that matter of a limit as to time, I hope we may say that not one of us has any idea of lengthening out time for any pur- pose of delay. I think the Senate can have enough confidence in us to know that when we are through we will stop ; that we will only take as much time as in this great case we may deem to be necessary. I know if we go beyond that we shall lose the attention of the court. Not an instant do we mean to speak after we have concluded what is material to us in the case. If we attempt to take time beyond that for something out of the case we shall very soon see, Senators, in the expression of your faces, that you are not listening to us with attention. For one I can say, and I think I can speak for my learned associates, that we' shall not take a moment more than we consider neces- sary ; every moment necessary for thecase, not a moment unnecessarily in our best judgment as to how we are to present the case. 1 know it is the custom of courts to limit the time of counsel — they must do it — in their ordinary business. It is done in the Supreme Court of the United States ; but when there is an im- portant case even before that court which limits each argument of counsel to two hours gen- erally, whenever the court is asked in an im- portant case to enlarge the time, they do it and give four hours. On one occasion I had myself two entire days for an argument in that court ; but that case, important as it was, has no sort of comparison with the case now before you. Counsel, when they are limited to an exact time, are embarrassed by it. It is a rule that keeps our attention continually on the clock and not on the case ; we are afraid to begin and follow up an argument for fear we shall exhaust too much time on that and will be caught by the punctual hour before we come to other im- portant matters. Now, I hope it is not neces- sary to suggest that counsel are not here to use unnecessary time, who have a reputation to sustain before the world and before this Senate. 1 beg them not to decide this question upon any idea that we have abused the liberty which is or may be accorded to us. Mr. SHERMAN. Mr. President, I will withdraw my amendment, as I see there will be difficulty in 'discriminating between those who are limited by time and those who are not. The CHIEF JUSTICE. The Senator from Ohio withdraws his amendment. The ques- tion recurs on the order proposed by the Sen- ator from New Jersey, as modified by him. Mr. Manager BUTLER. I do notrise, sir, to debate this question, but simply to ask the counsel for the President, while they do not ask for this, whether they desire it? I should like to know whether they desire this exten- sion? They may think that they would not ask it, but the question is whether they would wish it, because if they do not wish it it would make a very decided impression on my mind as to whether it should be granted. I want to say here, however, Mr. President, that I speak without prejudice to anybody, because, from the very kind attention I have received from the Senate in the opening argument, which, unfortunately, fell upon me, 1 do not, in any event, under any relaxation of the rule, pro- pose to trespass a single moment in the clos- ing argument upon the attention of the Senate, but to leave it to the very much better argu- mentation of my associates. Therefore I speak wholly without any ■wish upon my own part except that such argumentation may be had as shall convince the country that the case has been fully stated on the one side and the other. Mr. SUMNER. Mr. President, I should like to have the resolution reported. The CHIEF JUSTICE. The Secretary will read the resolution again. The Secretary read as follows : Ordered, That a's many of the Managers and of the counsel for the President be permitted to speak on the final argument as shall choose to do so : Provided, That the trial shall proceed without any further de- lay or postponement on this account: And provided further. That only one Manager shall be heard in the close. Mr. SUMNER, Mr. President, I move to strike out the last proviso and insert the sub- stitute which I send to the Chair. The CHIEF JUSTICE. The Secretary will read the amendment proposed by the Senator from Massachusetts. The Secretary. It is proposed to strike out the last proviso in the following words : And provided further. That onlyono Managershall be heard in the close. And in lieu thereof to insert : And provided. That according to tho practice in cases of impeachment the several Managers who speak shall close. Mr. CONKLING. I beg to ask an answer from the counsel forthe President to theques- tion propounded by Mr. Manager Butler. Mr. EVARTS. I was rising, Mr. Chief Justice and Senators, to say a word in refer- ence to this question when the Senator from Massachusetts sent up an amendment to the Clerk. Itwill not be in thepowerof thecoun- sel for the President, if the rule shall now be enlarged, to contribute the aid of more than two additional advocates in behalf of the Pres- ident. The rule was early adopted and known to us, and the arrangement of the number of counsel was accommodated to the rule. Be- , yond that we have nothing to say. If the rule shall be enlarged, all of us will with pleasure take advantage of the liberality of the Senate. In regard, however, to the arrangement of six against four as would then be the odds which we should need to meet, we naturally might feel some interest, particularly if it is a proposition to be entertained by the court that all of our opponents should speak after we had got through and we should hear nobody to reply to before we made our arguments. The last speech hitherto has been made in behalf of the President ; but if there is any value in debate whatever, it is that when it begins and is of controversy between two sides each as fairly as may bo should have an opportunity to know and reply to the argument of the other. Now, the present rule, very properly as it seems to us, and wholly in accordance with the custom in all matters of forensic debate, thus disposes of the matter by requiring that the Managers shall open by one of their num- ber, and the two counsel for the President allowed to speak and make their reply, and then the second Manager appearing in that behalf to close. So, too, if the number should be enlarged, it would seem, especially if there should be the disparity of six against four, an equal and equally just arrangement should be made in the distribution of the arguments of the Managers and of the counsel. Beyond that, we have nothing to say. The CHIEF J UST1CE. Senators, the ques- tion is on the amendment proposed by the Sen- ator from Massachusetts. Mr. WILLIAMS. Mr. President, I move to lay the order and the amendment upon the table, with a view of having a test vote as to whether the original rule shall or shall not be changed. Mr. DRAKE. I raise a question of order, Mr. President, that in this Senate, sitting for the trial of an impeachment, there is no au- thority for moving to lay any proposition on the table. We must come to a direct vote, I think, one way or the other. Mr. HOWARD. Debate is out of order. The CHIEF JUSTICE. The Chief Justice cannot undertake to limit the Senate in respect to its mode of disposing of a question ; and as the Senator from Oregon [Mr. Williams] an- nounced his purpose to test the sense of the Senate in regard to whether they will alter the rule at all the Chief Justice conceives his mo- tion to be in order. Mr. WILLIAMS. I ask for the yeas and nays on the motion. The yeas and nays were ordered, and taken. Mr. ANTHONY. My colleague [Mr. Sprague] has been called away by a summons to attend the bedside of a friend with whom he has held the most intimate relations for twenty years, and who sent a request by tele- graph that he would come aud see him before he died. I make this explanation, as, under no ordinary circumstances would he have been absent from the service of the Senate even for a single day, under these circumstances. THE CONGRESSIONAL GLOBE. 163 The result was announced — yeas 38, nays 10 ; as follows : YEAS— Messrs. Buokalew, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Brake, IMtnunds, Ferry, Fessenden, Harlan, Hen- derson, Hendricks, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nor- ton, Patterson of New Hampshire, 1'omeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Van Winkle.Vickers, Williams, Wilson, andYates— 38. NAYS— Messrs. Anthony, Davis, Dixon, Doolittle, Fowler, Grimes, McCreery, Patterson of Tennessee, Trumbull, and Willey— 10. NOT VOTING— Mossrs. Bayard, Frelinghuysen, Nye, Saulsbury, Sprague, and Wade— 6. So the order, with the pending amendment, was laid on the table. The CHIEF JUSTICE. Gentlemen of counsel for the President, you will proceed with the defense. William T. Sherman's examination con- tinued. By Mr. Stanbery: Question. After the restoration of Mr. Stan- ton to the War Office upon the vote of the Senate, did you form an opinion as to whether the good of the service required another man in that office than Mi\ Stanton ? Mr. Manager BUTLER. Stay a moment. We object. Will you reduce the question to writing? The CHIEF JUSTICE. The counsel for the President will please reduce the question to writing. Mr. STANBERY. I am perfectly willing to do so, though I can hardly be called to do so at the request of the learned Manager. I made a similar request to him more than once, and it was never complied with. The CHIEF JUSTICE. The rule requires that it be done. Mr. Manager BUTLER. I beg a thousand pardons. Whenever it was intimated by the Chief Justice it was done. It is not a matter of kindness ; it is a matter of rule. Mr. STANBERY. Mr. Chief Justice, my impression was that that rule applied to a question put by a Senator, not to the questions of counsel. Otherwise we should never get through. It is a question put by a Senator that must be in writing. I may be mistaken, however. The CHIEF JUSTICE. The Secretary will read the rule. The Secretary read Rule 15, as follows : "XV. All motions made by the parties or their counsel shall be addressed to the presiding officer, and if ho or any Senator shall require it, they shall bo committed to writing and read at the Secretary's table." The CHIEF JUSTICE. The counsel will please reduce their question to writing. The question was reduced to writing. The CHiEF JUSTICE. The Secretary will read the question proposed by the counsel for I he President. The Secretary read as follows : Question. After the restoration of Mr. Stanton to office did you form an opinion whether the good of the service required a Secretary of War other than Mr. Stanton; and if so, did you communicate that opinion to the President? Mr. Manager BINGHAM. Mr. President and Senators, we desire to state very briefly to the Senate the ground upon which we object to this question. It is that matters of opinion are never admissible in judicial proceedings, but in certain exceptional cases, cases involv- ing professional skill, &c. ; it is not necessary that I should enumerate them. It is not to be supposed for a moment that there is a member of the Senate who can entertain the opinion that a question of the kind now presented is competent under any possible circumstances in any tribunal of justice. It must occur to Senators that the ordinary tests of truth cannot be applied to it at all; and in saying that, my remark has no relation at all to the truthful- ness or veracity of the witness. There isnoth- ing upon which the Senate could pronounce any judgment whatever. Are they to decide a question upon the opinions of forty or forty thousand men what might be for the good of the service? The question involved here is a violation of the laws of the laud. It is a ques- tion of fact that is to be dealt with by witnesses ; and it is a question of law and fact that is to be dealt with by the Senate. Now, this matter of opinion may just as well be extended one step further, if it is to be allowed at all. After giving his opinion of what might be requisite to the public service, the next thing in order would be the witness's opinion as to the obligations of the law, the restrictions of the law, the prohibitions of the law. We cannot suppose that the Senate will entertain such a question for a moment. It must occur to the Senate that by adopting such a rule as this it is impossible to see the limit of the inquiry or the end of the investigation. If it be competent for this witness to deliver this opinion, it is equally competent for forty thou- sand other men in this country to deliver their opinions to the Senate; and then, when is the inquiry to end ? We object to it as utterly incompetent. Mr. STANBERY. Mr. Chief Justice and Senators, if ever there was a case involving a question of intention, a question of conduct, a question as to acts which might be criminal or might be indifferent according to the intent of the party who committed them, this is one of that class. It is upon that question of intent (which the gentlemen know is vital to their case, which they know as well as we know they must make out by some proof or other) that a great deal of their testimony has been offered, whether successfully or not I leave the Senate to determine; but with that view much of their testimony has been offered and has been in- sisted upon. That is, it has been to show with what intent did the President remove Mr. Stanton. They say the intent was against the public good, in the way of usurpation, to get possession of that War Office and drive out a meritorious officer, and put a tool, or as they say in one of their statements a slave s in his place. Upon that question of conduct, Senators, what now do we propose to offer to you ? That the second officer of the Army — and we do not propose to stop with him — that this high officer of the Army, seeing the complication and diffi- culty in which that office was, by the restora- tion of Mr. Stanton to it, formed the opinion himself that for the good of the service Mr. Stanton ought to go out and some one else take the place. Who could be a bettor judge of the good of the service than the distinguished officer who is now about to speak? But the gentlemen say what are his opinions more than another man's opinions, if they are merely given as abstract opinions? We do not intend to use them as abstract opinions. The gentlemen did not read the whole question. It is not merely what opinion had you, General Sherman ; but having formed that opinion, did you communicate it to the President, that the good of the service required Mr. Stanton to leave that Department; and that in your judg- ment, acting for the good of the service, some other man ought to be there. This is no declaration of the President we are upon now. This is a communication made to him to regulate his conduct, to justify him, indeed to call upon him to look to the good of the service, and to be rid, if possible, in some way of that unpleasant complication. Any one can see there was a complication there that must in some way or other be got rid of ; for look at what the Managers have put in evi- dence! It appears by Mr. Stanton's own statement that from the 12th of August, 1867, Mr. Stanton has never seen the President, has never entered the Executive Mansion, has never sat at that board where the President's legal advisers, the heads of Departments, are bound to be under the Constitution. Will they say that the relations between him and the President had got to that pitch that Mr. Stanton was unwilling to go there lest he might not be admitted? He never made that attempt ; but that is not all : Mr. Stanton says deliberately on the 4th of March in his com- munication to the House of Representatives, when he sent tha correspondence between the President and General Grant, ; 'I have not only not seen the President, but I have had no offi- cial communication with the President since the 12th of August, 1867." How is the Army to get along with that sort of thing? How is the service to be benefited in that way? Cer- tainly it is for the benefit of the service that the President should have there some one with whom he can advise as to what is to be done in regard to the Army. But what has the Secretary of War become ? One of two things is inevitable: he is running the War Department without any advice or consultation with the President or he is doing nothing. Ought that to be the position of a Secretary of War? The President could not get out of that difficulty. He might have got out of it, perhaps, by humbling himself before Mr. Stanton, by sending him a note of apology that he had ever suspended him. By humbling himself to his subordinate it might, have been that Mr. Stanton would have forgiven him. Would you ask him to do that, Senators? _ Now, when you are looking to motives, when you consider the provocations that the President has had, when beyond that you see the necessities of the public service placed in that situation that no longer can there be any communication between the Secretary of War and the President, is it fit that the public service should be carried on in that way, just to enable the Secretary of War to hold on to his office and become a mere locum tenens? Then, when you are considering the conduct, the intentions, and the matter that is in the mind of the President to get rid of Stanton — undoubtedly he had that matter in his mind — when you find that he has been advised, not only as we propose to prove, by General Sher- man himself, that the good of the service required that that difficulty should be ended, but that General Sherman, as I shall under- take to prove, communicated also the opinion of General Grant to the very same point, and when, as I tell you, we shall follow it up by the agreement of these two distiuguished gen- erals to go to Mr. Stanton and to tell him that, for the good of the service, he ought to resign, as he had intimated when the Presi- dent first suspended him that he would resign, the Senate being here to take care that the President get no improper man there— now, when you are trying the President for his in- tentions, whether he acted in good faith or bad faith, Senators, will you shut out from him the advice that he received from these two dis- tinguished officers, and will you allow the Managers still to say that he acted without advice, that he acted for the very purpose of removing u. faithful officer and getting in his place some tool or slave of his? When it was said to him that there should be a change for the benefit of the service, can you not extend to him so much charity as to believe that he would be impressed by the opinions of these two distinguished generals? They say they did not intend to make themselves parties to the controversy, but they saw, as things stood there, that either the President must go out or Mr. Stanton. That was the character of it. It is with this view that we offer this testi- mony, and I trust this is not to be ruled out. Mr. Manager BUTLER. Mr. President, Senators, I foresaw if we did not remain long enough in session, which the late hour of the night on Saturday warned us not to do, to fin- ish this witness, so that only the usual rule of recalling would be enforced, that the struggle would be renewed again in some form to-day to get in the declarations of the President or declarations to the President; and now the proposition is to ask General Sherman whether he aid not form an opinion that it was neces- sary that Mr. Stanton should be removed. Mr. STANBERY. I did not say "remove." Mr. Manager BUTLER, (to the Secretary.) Allow me to have the question. I believe I am correct. [Obtaining the question.] Whatisit? Whether the good of the service required} a Seo- retary of War other than Mr. Stanton, and if so did you not oommunioate that Qpi.uioQ.to the President 164 SUPPLEMENT TO Of course there could not be any other Sec- retary of War but Mr. Stanton, unless Mr. Stanton resigned or was removed. It would be a good deal more to the purpose to ask him whether he communicated that opinion to Mr. Stanton, if it may be put in at all, because Mr. Stanton could have resigned. Mr. EVARTS. We will follow it up with that. Mr. Manager BUTLER. Quoitsque tandem abutere nostra patientia ? I am not able to say to what extent you will go in offers ; but I am very glad we are told that is to be done and these tentative experiments are to go on, for what purpose, Senators, you will judge'; cer- tainly for no legal purpose. Now, itis said that it is necessary to put this in, and the argument is pressed that was used on Saturday, " We must show that, or we cannot defend the Pres- ident." Well, if you cannot defend the Pres- ident without another breach of the law for his breach of the law, I do not see any necessity for his being defended. You are breaking the law to defend him, because you are putting in testimony thathas no relevancy, no pertinency, no competency under the law. After you have let this come in, Senators, if you can do so, will you allow me to ask General Sherman whether he did not come to an equally firm opinion that it was for the good of the service, or for the good of the country, that Johnson should be removed? The learned Attorney General says that he came to the opinion that this complication, as he called it, should be broken up. I think most of us came to that conclusion — but how ? General Sherman might think it was by removing Mr. Stanton ; Gen- eral Grant might think it was by removing Johnson. The House of Representatives have thought that the complication could be broken up by the removal of Johnson. Are you going to put in General Sherman's opinion to coun- terbalance the weight of the opinion of the House of Representatives? Again, will the next question be put to Gen- eral Sherman whether if he thought it was bet- ter to remove Stanton and put in Thomas, that would be a good change for the good of the service; or shall we be allowed on another arti- cle to show that General Sherman did not think it was a good plan to put in Thomas, and so convict the President of a wrong intent, be- cause General Sherman thought Thomas was a bad man, and, therefore, the President is guilty if he put him in ? Because General Sherman thought that Mr. Stanton was a bad man, there- fore it was for the good of the service to put Stanton out, and therefore the President is inno- cent in putting him out — that seems to be the proposition. Can we go into this region of opin- ion? I speak wholly without reference to the wit- ness, lam now speaking wholly upon the general principle of opinions of men. That will send us into another region of inquiry which we do not want to go into. If this testimony comes in, we shall then have to ask General Sherman what were your relations with Mr. Stanton.? Have you had a quarrel with him ? Did yon not think it would be better for the service if you could get rid of your enemy? Was not that the thing ? Was there not an unfortunate difficulty between you? If you allow this opinion to go in, you cannot prevent our going into the various considerations which would make this opinion of little value. It is that kind of inquiry into which I have no desire to enter, and I pray this Senate not to enter for the good of the country and for the integrity of the law. That is the next question we shall have to ask, what were the grounds of your opinion? Again, we shall have to go further. We shall have to call as many men on the other side as we can. If General Sherman is put in here as an expert, we shall have to call Gen- eral Sheridan and General Thomas — I mean George H. Thomas always — and General Meade, and other men of equal experience, to say whether upon the whole they did not think it was for the best to keep Mr. Stanton in, and whether they communicated their onin- ions to the President and to Mr. Stanton. But I think nothing can more clearly demonstrate the fact that this cannot be evidence. If it is put on the ground that he is an expert as an Army officer, then we have Army officers, if not quite as expert, yet as much experts in the eye of the law as he is, and the struggle will be here on which side would be the most of them. There is another purpose on which this is put in. t It is said it is put in to show that the President had not a wrong intent. There has been a great deal said here about intent which, I think, deserves a word of comment, as though the intent has got to be proved by somebody that the President told he had a wrong intent. That seems to be the proposition as put for- ward, that you have to bring some direct proof, some man who heard the President say he had a bad intent, or something equivalent to that. The question before you is, did Mr. Johnson break the law of the land when he removed Mr. Stanton? If he did break the law of the land when he removed Mr. Stanton, what then? Then the law supplies the intent, and says that no man can do wrong intending right. That illustrates this question in another view ; be- cause suppose it is for the good of the service and it is demonstrated that it is best for the good of the service that Mr. Stanton should be put cut, does that justify the President in break- ing the law of the land to get him out? Does that aid his intent? Shall you do evil that good may gome? Can you do that under any state of circumstances? The question is not whether it was best to have Mr. Stanton out. Upon that question Senators may be divided in opin- ion. There may be many men, for aught I know or aught I care, there may be Senators who think that it would be best to have Stan- ton out; but that is not the question at all. Admit it, the question is, is it best to break the law of the land by the chief executive offi- cer in order to get him out? Is it best to strain the Constitution and the laws in order to get him out? However much he may desire to do it the fact that the Secretary is a bad officer does not give the President a right to do an illegal thing to get him out? See where you are coming, Senators. It is this, that it is a justification for the President or any other executive officer to break the law of the land if he can show that he did what he thought was a good thing by doing it. I am aware that the executive office, if I go to history, has been carried on a little upon that idea. Let me illustrate : you Senators and the House of Representatives agreeingtogether as the Congress of the United States passed a law that no man should hold office in the southern States that could not take the oath of loyalty ; and I am aware that the President of the United States — he ought to have been im- peached for it — boldly put men into office who could not take that oath in the South, and paid them their salaries, and justified it before the Senate and the House of Representatives on the ground that he thought he was doing the best for the service to do it — a breach of the law which, if the House and the country had had time to follow him in the innumerable things he has done, would and ought to have been presented as ground for impeachment. It is one of his crimes. And now he comes here and before the Senate of the United States, says, " Well, I got advice that such a man was not a good officer, and, therefore, I broke the law to put him out, and that is my excuse." Is it an excuse? But one other thing to which I wish to call your attention, because you have heard it here over and over again, is this: it is said that Mr. Stanton has not had a seat in that board, that, Cabinet council, since the 12th of August last. Whose fault was that? He attended every meeting up to within a week of the 12th of August. He did his duty up to within a week of the 12th of August. He was notified that suspension was coming. He was then suspended until the 13th of January ; and when he came bnck into the office it was not for the President to humble himself, but it was for him to notify him as the head of a De- partment to come and take his seat if he so desired ; but that notice never came. It was not for him to thrust himself upon the Presi- dent, but it was for him to go when he under- stood his presence would be agreeable. But that is put forward here as though this Government could not go on without a Cab- inet board ; and the learned counsel has just told us that it is a constitutional board. Upon that I want to take issue, once for all, Sen- ators, it is an unconstitutional board. There is not one word in the Constitution about a Cabinet or a board. Jeremy Bentham said, years ago, that a board was always a shield, and there has been an attempt in some of the later Presidents to get these boards around them to shield them in their acts as a board. The Constitution says that the principal officers of the Departments may be called upon in their respective offices, in regard to their duties, to give opinions in writing to the President ; and the earlier Presidents called upon their Cab- inet officers for opinions in writing. I have on my table here an opinion that Thomas Jef- ferson gave to Washington, about his right to appoint embassadors, in writing. They are not to be a board, not to sit down and consult, not to have Cabinet councils. That is an as- sumption of executive power that has grown up little by little from the cabinets of the Old World. These heads of Departments were given to the President as aids, and not as a shield ; and he now will attempt to shield himself, perhaps, under their advice and under their action. It is not mere form. The opin- ion in writing was required by the Constitu- tion—why? Because the framers of the Con- stitution well knew that there were Cabinet councils, and from the initials of a Cabinet council in England came that celebrated word "cabal," which has been the synonym of all that was vile in political combination from that day to this ; and knowing that, it would seem almost with prescience that they required not that there should be verbal consultations semi- weekly by which things might be arranged and by which a secret conclave might be held, but that there should be what? That there should be written opinions asked and given, so that they might be known of all men ; so that the President could not say, "Why, I got this advice from my Cabinet counselor," unless he showed it in writing, and so that the Cabinet counselor should not say that he failed to give this advice, because the President might show it in writing. Think of this Cabinet and what it has got to be ! Picture to yourselves, Sen- ators, President Johnson and Lorenzo Thomas in Cabinet consultation to shield the President I If Lorenzo Thomas was rightly appointed, then of course he can go into Cabinet consultation. If they have a right to put in consultation one Cabinet officer they have a right to put in an- other. If they have a right to put in the opinion of the Attorney General, who, by the way, is not by the law a Cabinet officer in the sense in which it is said a head of a Depart- ment is — if they have a right to put in the opinion of one head of a Department they have a right to put in another ; if a permanent, then a temporary Cabinet officer ; if a tempo- rary head of a Department, then an ad interim one. I find no dereliction of duty on the part of Mr. Stanton in this ; nothing showing that the AVar Department could not go on. Let them show that the President has ever done according to the Constitution, asked Mr. Stan- ton any opinion in writing as to the duties of his Department, or that he has ever sent an order to him which he disobeyed ; and that will be pertinent, that will show a reason ; but I pray the Senate not to let us go into the region of opinion. I have taken this much time, Senators, be- cause I think we save time by taking it, if we come to the right decision to-day to keep out this range of opinion. This case is to be tried by your opinion ; not upon your opinion as to whether Stanton is a good or a bad officer, but THE CONGRESSIONAL GLOBE. 165 upon the opinion that, whether good or bad, the President broke the law in removing him, and must take the consequences of that breach of the law. It is said here that he broke it in order to get into court. I agree that if his counsel are correct he is in court, and in a court where he will have the full benefit of having the law settled forever. Mr. Evarts rose. Mr. CONKLING. Before the counsel pro- ceeds I beg to submit a question, which I send to the desk in writing. The CHIEF JUSTICE. The question pro- pounded by the Senator from New York will be read. The Secretary read as follows : Question. Do the counsel for the respondent offer at this point to show by the witness that he advised the President to remove Mr. Stanton in the manner adopted by the President, or merely that he advised thoPresident to nominate for the action of the Senate some person other than Mr. Stanton? Mr. STANBERY. We do not propose either. We propose simply to show that he gave his opinion that for the good of the ser- vice somebody else ought to be there. Mr. Manager BUTLER. Without regard to the mode ? Mr. STANBERY. We do not propose to show that he advised him about the mode of removal ; but we propose to show this opinion communicated to the President. Mr. EVARTS. Mr. Chief Justice and Sena- tors, I do not propose, upon this question of evi- dence, to discuss the constitutional relations of the President of the United States to his Cabinet, nor to anticipate in the least the consideration of the merits of this case, as they shall finally be the subject of discussion. If the accusations against the President of the United States upon which he is on trial here, and judgment upon which must result in his deposition from his great office and a call upon the people of the United States to choose his successor, turn wholly upon the mere question of whether the Presi- dent has been guilty of a formal violation of a statute law, which might subject him to a six cents' fine or a ten days' imprisonment, if he were indicted for it — if that is the measure and the strength (as, when it comes to question of evidence, is constantly urged upon you) of this accusation, I think that the honorable Manager who so eloquently and warmly pressed upon you the consideration that Warren Has- tings's trial was nothing to this was a little out of place. If they will make it just as it would be if the President had been indicted under the civil- tenure act, when he could have been found guilty or innocent under the circum- stances of the act, and then the punishment could have been made appropriate to the cir- cumstances of its actual formal technical in- fraction, we could understand that trial; and that is open to the House of Representatives or to any informer at any time. On the con- trary, through hours and pages of eloquence, the mere act and fact of the removal of Mr. Stanton is made the circumstance or corpus delicti upon which, in respect of its motives, its purposes, its tendencies, its results, the "high crime," in the constitutional sense of that term, which would call for a removal from office of the Chief Magistrate by reason of some grave public interest being injured, is made the topic of argument and of proof. Now, Mr. Chief Justice and Senators, you cannot fail to see that General Sherman is not called here as an expert to give an opinion whether Mr. Stanton is a good Secretary of War or not. He is not called here as an expert to assistyour judgment in determining whether or no it was for the public interest that Mr. Stanton should be removed, in the sense of determining whether this form of removal was legal or not. He is introduced here as the second in command over the armies of the United States, and to show an opinion on his part, as a military man and in that position, that the military service required for its proper conduct that a Secretary should take the place of Mr. Stanton whose relations to that service and to the Commander-in-Chief were not such as those of Mr. Stanton were, that that opinion was communicated to the President. We shall enlarge the area by showing that it was shared in by other competent military authority. And, now, if a President of the United States, when brought under trial before a court of impeachment upon impeachment, is not at liberty in his defense to show that the acts which are brought in question as against the public interest and with bad motives, and to obstruct laws, and to disturb the public peace, acts wantonly done, recklessly done, violently done, were proper and necessary in the judg- ment of those most competent to think, most competent to advise, most responsible to the country in every sense for their opinions and their advice, what can he show? Is it not proper for him to prove that, furnished with those opinions and supported by those opin- ions, (whether, in fact, which is yet to be de- termined, he adopted a mode that was unjus- tifiable or not; and whether you shall adjudge the mode to be criminal or not, is not now important,) he acted in such a manner that the motives and the objects which he had in view were of the public service, and for the public service, and based upon the intelligent and responsible opinion and advice of those in whom the service and the community gen- erally had, and upon the best foundations, the most abiding confidence. Now, Senators, reflect; you are taking part in a solemn transaction which is to effect, in your unfavorable judgment, a removal of the Chief Magistrate of the nation for some offense that he has committed against the public wel- fare with bad motives and for an improper pur- pose ; and we offer to show you that upon con- sultations and deliberations and advice from those wholly unconnected with any matters of personal controversy and any matters of politi- cal controversy, and occupying solely the posi- tion of duty and responsibility in the military service of the country, he acted and desired' to accomplish this change. We cannot prove everything in a breath ; nor is it a criticism on testimony justly to exclude it, that it does not in itself prove all ; but if it shall be/followed, as it will be, by evidence of equal authority and weight and by efforts of the President, or au- thority to make efforts given by the President to secure a change in the control of this office which the military service of the country thus demanded, we shall have shown you by an absolute negative that this intention, this mo- tive, this public injury, so vehemently, so pro- fusely imputed in the course of the arguments, so definitely charged in the articles,' had no foundation whatever. Mr. Manager BINGHAM. Mr. President and Senators, after the very pertinent ques- tion that was propounded by one of the Sena- tors to the counsel for the President had beeu put, nothing more would have been said by the Managers but for the argument that has since been interposed. The suggestion made by the honorable Senator shows the utter incom- petency and absurdity of the proposition that is presented here now : that was whether you proposed to ask of the witness that he formed the opinion and expressed it to the Executive that he ought to remove the Secretary of War in the mode and manner that he did remove him or attempt to remove him. Is there any one here bold enough to say that if he had formed the opinion against the legality of the proceeding and had so expressed himself to the President it would be competent for us to introduce any such matter here as a mere mat- ter of opinion to prove intent or to prove any- thing else against the President. But, apart from that, the reason chiefly why I rose to reply to the utterances of the gentle- man who has just taken his seat is this : he intimates here the extraordinary opinion for himself that the trial in a court of justice of a beggar arrested in your streets for a. crime punishable with six cents of fine or, perchance, five hours' imprisonment, is subject to a very different rule of evidence and of administrative justice from that which prevails and applies when you come to prosecute the Chief Magistrate of the nation. The American people will enter- tain no opinions of that sort ; nor will their Senators. We have the same rule of justice and the same rule of evidence for the trial of the President of the United States and for the trial of the most defenseless and the weakest of all our citizens. Mr. EVARTS. Will the honorable Manager allow me to say that the only illustration I used was of an indictment against the Chief Magis- trate of the Union on trial before a police court ? Mr. Manager BINGHAM. I supposed my- self that when the gentleman made use of the remark he intended certainly to have the Sen- ate understand that there was a different rule of evidence and of administrative justice in the prosecution of an indictment in a court where the penalty might be six cents from that which applied in the prosecution of the President before the Senate. Mr. EVARTS. When the issues are differ- ent the evidence will be different. It does not depend on the dignity of the defendant. Mr. Manager BINGHAM. It is very diffi- cult to see how the gentleman can escape from the position which he has assumed here before the Senate by making the remark that he sup- posed the President to be prosecuted. It is a very grave question in this country whether the President can be prosecuted in the courts of the United States for an indictable offense before he is impeached. It has been incorpo- rated in your Constitution that after he has been impeached and removed he may be in- dicted and prosecuted for the crime. I do not, however, stop to argue that question now. I do not care who is prosecuted upon an indict- ment, whether the President or a beggar, the same rule of evidence applies to each. I do not care who is impeached, whether it be the President of the United States or the lowest civil officer in the service of the United States before the Senate, the same rule of evidence obtains, and the common-law maxim applies that where an offense is charged which is un- lawful in itself, and it is proved to have been committed, (as alleged in every one of these articles, and established, I say, by the proof as to all of them,) the law itself declares that the intent was criminal, and it is for the accused to show justification. That is the language of the books. I so read it in the volume lying before me, the third of Greenleaf. I do not stop to delay the Senate by reading the words further than I have recited them, that where the act is unlawful the intent is established by the proof of the fact that he did commit the unlawful act. As I intimated be- fore, that being the rule of evidence as to the intent, which was very adroitly suggested as the reason for asking this extraordinary ques- tion, this kind of testimony could be of no avail unless, indeed, we were to have the opinion of the Lieutenant General as to the legality of the act. I remarked before — and upon that remark I stand — that the question of the legality of the President's conduct is not to be settled oy the opinions of any witness called at this bar ; it is to be settled by the judgment of this Senate ; and it is to be settled by the judgment of the Senate to the exclusion of every other tribunal on the earth, for it is so written in your Con- stitution. Intents are not to be proved in any conceivable form or shape by the opinions of any number of witnesses about the legality of an act. The law and the judges of the law will determine whether the act was unlawful ; and opinions, though ever so often formed and expressed by a third person, cannot make an unlawful act a legal or a lawful act, and cannot get rid of the intention which the law says necessarily follows the commission of an unlawful act. Well, say the gentlemen again, the President was taking the advice of honored and honor- able gentlemen in the public service. The Constitution, as the Senate well know, indi- cates who shall be the President's advisers in such a case as this of the removal of the head 166 SUPPLEMENT TO of a Department. That Constitution expressly declares _ that he may appoint, and thereby necessarily remove, the present incumbent by and with the advice and consent of the Senate. The tenure-of-office act, following the Consti- tution, provided further that he may for suffi- cient reasons to him appearing suspend the incumbent and take the advice of the Senate, laying the facts before the Senate, with the evidence upon which he acted, whether the suspension should be made absolute. The President did take the advice of the Senate ; he did suspend this officer whose removal he undertakes to prove now by individual opin- ions the public service requires. He sent no- tice of that suspension to the Senate. The Senate, as his constitutional adviser, acted upon it. They gave him notice that they advised him not to attempt any further inter- ference with the Secretary for the Department of War. They gave*him notice that under the law he could not go a step further. He there- upon falls back upon his assumed right, and undertakes to defy the Constitution, to defy the tenure-of-office act, to defy the Senate, and to remove the Secretary of War, and appoint another in his place without the ad- vice and consent of anybody except such as he chose to call into his councils ; and now he undertakes to justify by having them swear to their opinions. We protest against it in the name of the Constitution ; we protest against it in the name of the laws enacted in pursuance of the Constitution ; and we protest against it in the name of that great people whom we this day represent, and whose rights have been out- rageously betrayed, and are now being auda- ciously defied -before this tribunal. The CHIEF JUSTICE. The Secretary will read the question. The Secretary read as follows : Question. After the restoration of Mr. Stanton to office dirt you form an opinion whether the good of the service required a Secretary of War other than Mr. Stanton ; and if so, did you communicate that opinion to the President? The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate. Mr. CONNESS called for the yeas and nays, and they were ordered ; and being taken, re- sulted — yeas 15, nays 85 ; as follows : YEAS — Messrs. Anthony, Bayard. Buckalew, Dixon, Doolittle, Fowler, Grimes, Hendricks, John- son, McCrcery, Patterson of Tennessee, Ross, Trum- bull. Van Winkle, and Vickers — 15. NAYS— Messrs. Cameron, Cattoll, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Drake, Edmunds, Ferry, Fcssendcn, Frelinghuysen, Harlan, Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Stewart. Thayer, Tipton, Willey, Williams, Wilson, and Yates— 35. NOT VOTING— Messrs. Saulsbury, Sprague, Sum- ner, and Wade— i. So the question was decided to be inadmis- sible. Mr. JOHNSON. Mr. President, I send to the Chair a question. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Maryland. The Secretary read as follows : Did you a.t any time, and when, before the Presi- dent gave tho order for the removal of Mr. Stanton as Secretary of War, advise the President to appoint some other person in tho place of Mr. Stanton ? Mr. Manager BUTLER. To that we have the honor to object as being leading in form, and not only in form bad, but being covered by the vote just taken. _ Mr. EVARTS. I suggest, Mr. Chief Jus- tice, that the objection of a question being leading in form cannot be made when it is put by a member of the court. I have never un- derstood that such an objection could be made. It imputes to the court the idea of putting words into the witness's mouth to lead him. Mr. Manager BUTLER. I do not know, Mr. President Mr. DAVIS. Mr. Chief Justice, I suggest whether the Managers or the counsel for the defense can interpose any objection to a ques- tion made by a member of the court? The CHIEF JUSTICE. The Chief Justice thinks that any objection to the putting of a question by a member of the court must come from the court itself. Mr. Manager BUTLER. Whenever that question arises, the Managers wish to be heard upon it. Mr. DRAKE. I object to the putting of the question. The CHIEF JUSTICE. The only mode in which an objection to the question can be decided properly is to rule the question admis- sible or inadmissible; and that is for the Sen- ate. The question of the Senator from Mary- land has been proposed unquestionably in good faith, and it addresses itself to the witness in the first instance, and it is for the Senate to determine whether it shall be answered by the witness or not. Senators, the question is whether the question propounded by the Sena- tor from Maryland is admissible. Mr. HOWE. Mr. President, I should like to have the question read again. I did not understand it. The CHIEF JUSTICE. The Secretary will read the question propounded to the witness by the Senator from Maryland. The Secretary read as follows : Question. Did you at any time, and when, before the President gave the order for the removal of Mr. Stanton as Secretary of War, advise the President to appoint some other person than Mr. Stanton? Mr. DRAKE. On that question I ask for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted — yeas 18, nays 32; as follows: YEAS — Messrs, Anthony, Bayard, Buckalew, Dixon, Doolittle, Edmunds, Fcssenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Trumbull, Van Win- kle, and Vickers — 18. NAYS— Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Drake, Ferry, Frelinghuysen, Harlan, Howard, Howe, Mor- gan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pome- roy, Ramsey, Sherman, Stewart, Thayer, Tipton, Willey, Williams, Wilson, and Yates— 32. NOT VOTING— Messrs. Saulsbury, Sprague, Sum- ner, and Wade — 4. So the Senate decided the question to be inadmissible. Mr. STANBERY. We have nothing fur- ther to ask of General Sherman. Mr. Manager BINGHAM. We have noth- ing to ask of General Sherman. The CHIEF JUSTICE. The Chief Justice desires to ask whether the counsel for the President will require General Sherman again at all? To this question no response was made ; but Mr. Stanbery and Mr. Manager Butler each engaged in conversation with the witness. Mr. COLE, (at two o'clock and fifteen min- utes p. ra.) I move that the Senate take a recess for fifteen minutes. The motion was agreed to ; and the Chief Justice resumed the chair at half past two o'clock, and called the Senate to order. The CHIEF JUSTICE. Gentlemen counsel for the President, please proceed with your evidence. R. J. Meigs sworn aud examined. By Mr. Stanbery : Question. What office do you hold ? Answer. I am clerk of the supreme court of the District of Columbia. Question. Were you clerk of that court in February last? Answer. Yes. Question. Have you with you the affidavit and warrant under which Lorenzo Thomas was arrested ? Answer. I have. [Producing some papers.] Question. Are these the original papers? Answer. The original papers. Question. Did you affix the seal of the court to the warrant? Answer. I did. Question. On what day? Answer. On the 22d of February last. Question. At what hour of the day ? A nswer. It was between two and three o' clock in the morning of that day? Question. At what place ? Answer. At the clerk's office, where the seal IS. Question. Did you sit up in that office all night? Answer. No, sir. Question. Who brought th at warrant to you ? Answer. I do not know the gentleman who brought it ; he said he was a member of Con- gress, Mr. Pile, of Missouri. Question. He announced himself as Mr. Pile, of Missouri? Answer. Yes, sir. Question. He then brought that warrant to you at your house at that hour in the morning? Answer. Yes, sir. Question. And you went then to the clerk's office? Answer. I went to the clerk's office aud affixed the seal and attested it. Question. To whom did you deliver the war- rant? Answer. To Mr. Pile, if that was the gen- tleman. I did not know him, and do not know him now. Question. The marshal was not there at that time? Answer. No, sir. Mr. Manager BUTLER. May I ask to what article this applies ? Mr. STANBERY. What article ! It does not apply to any article. It applies very con- clusively to some of your proof, and it applies very much to our ansnter, as you will find when we are a little further along in the case. [To the witness.] Have you the warrant here? Answer. Yes, sir, I have. Question. Did he bring the affidavit upon which the warrant was founded, or did you get that afterward ? Answer. I believe all the papers he gave me. I think so ; but I am not sure of it. I cannot recollect. Mr. STANBERY. We propose to read these papers, gentlemen, [handing the warrant and affidavit to the Managers.] Mr. Manager BUTLER, (having examined the papers.) I understand, Mr. President, that the counsel for the President offer the affi davit and warrant in evidence. Before coming to them, I should like to ask a question or two of the witness. I suppose that is our right. Mr. STANBERY. About the papers or what? Mr. Manager BUTLER. About the thing you have been examining in regard to. Mr. EVARTS. That is all we have been examining about. Mr. Manager BUTLER. I propose to exam- ine about the proof you have already put in. Mr. STANBERY. We are through with the witness as soon as we get the papers. You can take him now and cross-examine him. Mr. Manager BUTLER. Very well. Cross-examined by Mr. Manager Butler : Question. You say you affixed the seal about two o'clock in the morning of the 22d of Feb- ruary? Answer. Between two and three o'clock in the morning. Question. Were you called upon to get up and go to the office to do that ? Answer. I was. Question. In cases where great crimes have been committed, and it is necessary to stop the further progress of crime, you have been ac- customed to do that, I suppose ? Answer. I do not know of any case where that was necessary to prevent a crime. I have done the same thing in habeas corpus eases, and in one replevin case I remember. Question. Where it is a matter of conse- quence you do these things when called upon ? Anstoer. Certainly. Question. It is nothing unusual foryou to do it in such cases ? Answer. It cannot be said to be unusual. I would do it at any time. By Mr. Stanbery: Question. Have you often been called upon in the course of your experience at night? THE CONGRESSIONAL GLOBE. 167 Answer. Only three times, and this is one of them. Question. Do you know what became of this extreme case ? What was done with this criminal? Answer. I was not present at the examina- tion. Mr. STANBERY, (to the Managers.) Are you through with the papers? Mr. Manager BUTLER. I am through with the papers. Mr. STANBERY. Very well. Mr. Manager BUTLER. I have the honor to object, Mr. President, to the warrant and affidavit of Mr. Stanton being received as evi- dence in this cause. I do not think Mr. Stan- ton can make testimony against the President by any affidavit that he can put in, or for him by any proceedings between him and Lorenzo Thomas. I do not think the warrant is rele- vant to this case in any form. The fact that Thomas was arrested has gone in, and that is all. To put in the affidavit upon which he was arrested certainly is putting in res inter alios. It is not a proceeding between Thomas and the President ; but this is between Thomas and Stanton, and in no view is it either perti- nent or relevant to this case or competent in any form, so far as I am instructed. Mr. EVARTS. Mr. Chief Justice and Sen- ators, the arrestof General Thomas wasbrought into testimony by the Managers and they ar- gued, I believe in their opening, before they had proved it, that that was what prevented General Thomas using force to take possession of the War Office. We now propose to show what that arrest was in form and substance by the authentic documents of it, which are the war- rant and the affidavit on which it was based. The affidavit, of course, does not prove the facts stated in it ; but the proof of the affidavit shows the fact upon which, as a judicial found- ation, the warrant proceeded. We then pro- pose to follow the opening thus laid, of this proceeding, by showing how it took place and how efforts were made on behalf ot General Thomas by habeas corpus to raise the question for the determination of the Supreme Court of the United States in regard to this act. Mr. Manager BUTLER. I understand, Mr. President, that if this affidavit goes in at all, it is then evidence of all that it states, if the gentlemen have a right to put it in. Mr. EVARTS. 1 said otherwise ; but you can have your own conclusion. We do not admit it to be so. Mr. Manager BUTLER. . That is my con- clusion, and that is what we should claim ; and I think nothing more clearly shows that it can- not be evidence than that fact. This was not an attempt of the President to get this matter before the court ; it was an attempt of Mr. Stanton to protect himself from violence which had been threatened in two instances before. This was late at night. Mr. Stanton, we can easily judge from the evidence, was informed that night of the threats made to Burleigh, the threats made to Wilkeson, and the threats made at Willard's Hotel, and being informed of them he did not know at what hour this man might bring his masqueraders upon "him, and thereupon he took care to protect himself at the earliest possible hour. But how that can relieve the President from crime, how that shows that he did or did not commit the act complained of, because Stan- ton arrested Thomas or Thomas arrested Stan- ton, is more than I can conceive. Suppose Stanton had not arrested Thomas, would it show that the President is not guilty here ? Sup- pose he did arrest him, does it show that he is guilty here ? Is it not merely, in the language of the law, well known to every lawyer in the Senate, res inter alios acta — things done be- tween other parties than the parties to this record. We only adverted to the arrest in putting in Thomas's declaration to show what effect it had on his mind. Mr. EVARTS, It has already been put in proof by General Thomas that before he went to the court upon this arrest he saw the Presi- dent and told him of his arrest, and the Presi- dent immediately replied "that is as it should be;" or "that is as we wish it to be, the ques- tion in the court." Now, I propose to show that this is the question that was in the courts, to wit : the question of the criminality of a per- son accused and this civil-tenure bill. And I then propose to sustain the answer of the President, and also the sincerity and substance of this his statement already in evidence, by showingthat this proceeding, having been com- menced as it was by Mr. Stanton against Gen- eral Thomas, was immediately taken hold of as the speediest and most rapid mode, through a habeas corpus, in which the President or the Attorney General, or General Thomas acting in that behalf, would be the actor, in order to bring at once before this court, the supreme court of the District, the question of the valid- ity of his arrest and confinement under an act claimed to be unconstitutional, with an imme- diate opportunity of appeal to the Supreme Court of the United States then in session, from which at once there could have been ob- tained a determination of the point. Mr. Manager BUTLER. And whenever that is proposed to be shown I propose to show that Mr. Thomas was discharged on. the motion of his own counsel from arrest by the judge. Mr. EVARTS. • Very well; that is after- ward ; we will see about that ; we will prove our case; you can prove yours.' Mr. Manager BUTLER. Admit this and the Senate will be traveling into the question of the various facts taking place in another court ; and I have not yet heard any of the learned counsel say that this did not come within the rule of res inter alios acta — things done between others than parties to the record. Mr. EVARTS. I did not think it neces- sary. Mr. Manager BUTLER. That may be a very good answer ; but, whether it is necessary or not, is it not so? Is there a lawyer any- where who does not understand that, and who does not know that the proceedings between two other persons after a crime is committed, never yet were offered in evidence to show that a crime was not committed. It is said that the President was glad to get this matter before a court. Did he see that affidavit? No. Did he know what was in it? No. All he knew was that his man was car- ried into court on some process which the man himself, Thomas, did not even know what it was. He was simply arrested. Mr. Thomas himself did not see the affidavit at that time, did not know anything of the matter except that he was taken by the marshal. He had never seen the paper on the evidence here ; he did not even know for what he was arrested. All he knew was that he was arrested for some- thing or other ; whether it was for being at the masquerade ball the night before, masked, or what it was he could not tell; he does not pre- tend to have told here in evidence; but when he said to the President, "they have arrested me" — for which of his virtues or for which of his crimes nobody knew — he did not, he does not say that he ever saw any paper in any form ; but he simply went to the President and told him "I am arrested." And what, then, did the President say? "That is where I want you to be, in court." I should have thought he wanted him anywhere else except in the War Office ; and that is all the testimony shows so far. Now, they propose to put in Mr. Stanton's affidavit. It is exceedingly good reading, gen- tlemen of the Senate, and sets forth the case with great luminousness. It shows the terror and alarm of the good citizens of the District of Columbia when at night men who are known to be men of constancy and steadfastness, men representing, important districts in Congress, felt it was their duty to call upon the chief justice of the supreme court of this District to interpose, felt that it was their duty to call up the venerable clerk of that court in the dead of night to get a warrant, and felt that it was their'duty to take immediate means to prevent the consummation of this crime. It shows the terror and alarm which the unauthorized, ille- gal, and criminal acts of this respondent had thrown this city into at that hour. Undoubt- edly all that is in the affidavit; undoubtedly all that can be shown ; and then, thank God, we have before the Senate and the people of America this appeal to the laws by Mr. Stan- ton, which this criminal respondent never undertook, either before or since, although furnished with all the panoply of legal attack and defense in the Attorney General. He never brought his quo warranto; he never brought any process ; he never took any step of himself, nor had he for a year. All that will appear doubtless, and we should be glad to have it in, provided it did not open us into regions of unexplored and uncertain, diffuse and improper evidence, opening entirely new issues. If you are ready to go into it I am ; but I say it does not belong to this case. I think we can make quite as much out of it as they can, but it is no portion of this case. It is not the act of the President ; it has noth- ing to do with the President; the President never saw these papers upon any evidence here ; and what Mr. Thomas did, and what Mr. Stan- ton did, they themselves must stand by. Mr. STANBERY. I believe our hour has not expired, and I wish upon this matter to address, Mr. Chief Justice, a few words to the Senate. Senators, there are two grounds upon which we ask the admission of this testimony. First of all, there are already in evidence the decla- rations of the President that he made this re- moval to bring the question of that law to the consideration of the courts. That is already iu evidence, and as to that the Managers say it is all pretense, all a subterfuge. Mr. Manager BUTLER. Where in evidence ? Mr. STANBERY. Among other things in a place that I need not refer to now, the speech of the honorable Manager who opened the case. Mr. Manager BUTLER. If you will take my speech as evidence I am very glad. That is the best evidence. Mr. STANBERY. Not, except as a last resort, for anything. The gentleman has re- peated that this is all pretense of asking to get into the courts, that it is a subterfuge, an after- thought, a mere scheme on the part of the President to avoid the consequences of an act done with another intention than that. Again, what sort of a case have the Managers at- tempted to make against the President upon his intentions with regard to the occupation of the War Office by Thomas ? They have sought to prove that the intentions of the President were not to get it bylaw but to get it by intim- idation, threats, and force ; they have gone into this themselves to show the intent of the President, and how ? They have given the declarations of Thomas as to his purpose of using threats, intimidation, or force, and claim that those declarations bind the President, and you, Senators, have admitted them against the President. The mere declarations of Thomas as to his intention to enter the office by force and intimidation are to be considered the dec- larations of the President, and as evidence of his intent. Oh! say the gentlemen, that thing was stopped by this prosecution ; the prompt arrest of General Thomas next morning was the only thing that defeated the accomplish- ment of the purpose that was in the mind of the President and in the mind of General Thomas. Mr. Manager BUTLER. I did not say so. Thomas said so. Mr. STANBERY. Thomas said sol The Senate will bear me witness who said so, who called that a subterfuge, and who called that a pretense ! We wish to show what was this proceeding got up at midnight, as the learned Manager says, in view of a great crime just committed or about to be committed ; got up under the most pressing necessity, with a judge, as we will show, summoned from his bed at an early hour on that winter morning, 168 SUPPLEMENT TO the 22d of February, at two o'clock — a judge brought from the bench, such was the urgent and pressing necessity, either pretended or real, on the part of Mr. Stanton to avoid the use of force and intimidation to remove him from that office. We shall show that having had him arrested, held to bail in $5,000, the time of the trial or further hearing of this great criminal having been fixed for the next Wednesday, all this being done on the prior Saturday, when he got there on that day it turned out thus : "Why we have got no crim- inal at all ; General Thomas is just as good a citizen as we have in this community." Gen- eral Thomas's counsel say to the court, "He is surrendered ; he is in custody; and we do that for the purpose of moving a habeas corpus. ' ' As soon as that purpose was announced, all at once this great criminal and this great crim- inal act immediately disappear, and the judge says, "This is all nothing at all that we have had against you, General Thomas ; we do not even want to ask you to give bail; on the con- trary, 1 dismiss you." And the counsel for Mr. Stanton, who were there on that morning, and who had seen this great criminal punished, or, at any rate, put under bonds for good be- havior, expressly consent to what? Not merely that he shall be put at large under bonds; not merely that he shall give bonds for his good behavior, but that he shall be absolutely dis- charged and go free, just as if there was no prosecution at all; not bound over to the next term of the court, but totally discharged, and, as we shall show you, discharged for the very purpose of preventing what was then in prep- aration, the presentation of a habeas corpus, that the case might be got immediately to the Supreme Court of the United States, then in session, the only ready way in which the ques- tion could be brought before the courts and decided for any purpose of any value. Sen- ators, is that, too, to be excluded? I trust not. Mr. Manager BUTLER. I did not mean to trouble the Senate again ; but one or two state- ments of fact have been made to which, I think, I must call your attention. First, it is said that Mr. Thomas was discharged wholly. That depended upon the chief justice of that court. If you are going to try him by impeach- ment, wait until alter we get through with this case. Onetrialatatiraeis sufficient. Ishetobe tried because he did not do his duty under the circumstances? Neither Mr. Stanton, nor your Honor, nor anybody else has any right to judge of the act of that court until he is here to de- fend himseW, which the chief justice of the supreme court of the District of Columbia is amply able to do. Then there is another point which I wish to take into consideration. It is said that Thomas had become a good citizen. 1 have not agreed to that. I do not believe anybody else has ; but he himself testifies that the fight was all out of him the next morning after this process, and they put in then that he agreed to remain neutral. Then there was no occasion to hold him any longer. He took a drink to seal the neutrality. Do they not remember the testi- mony that on the next morning after this he and Stanton took a drink and agreed to remain neutral, and they held up the glasses and said, " This is neutral ground now?" What was the use of holding him any further? Mr. STANBERY. That is, he took a drink with the great criminal! . Mr. Manager BUTLER. He took a drink with the President's tool; that is all. The thing was settled. The poor old man came and complained that he had not had anything to eat or drink, and in tender mercy to him Mr. Stanton gave him something to drink ; and he says that from that hour, if he had not before, he has never had an idea of force. What, then, was the use of holding him? Now, I wish to call the attention of the Sen- ate to another statement of fact, and that is, that they did not hold him to keep the peace. Why, the next morning he was told that he was not held to keep the peace. He said that here to the Senate upon his oath, and he in- sisted upon putting it in; I objected, but he said it was necessary for him to make that point, and then I yielded that he might do it. He said to the Senate that the judge told him, "This does not interfere in any way with your duties as Secretary of War." • But there is stili another thing. This uncon- stitutional law has been on the statute-book since a year ago last March. The learned Attorney General of the United States stands before me. Where is the writ of quo warranto which it was his duty to file? Mr. STANBERY. I will show it to you right away, as soon as I get through this testimony. Mr. Manager BUTLER. Then it will be the first exhibition that has ever been made to any court in the United States of it, if it is shown to me. I suppose it has been prepared since as part of this defense. Where is the quo warranto filed in any court, Judge Cart- ter's court, or anybody else's court? Where is the proceeding taken? He— I put it to him as a lawyer, dare he deny it? — he is the only man in the United States that could file a quo loorranto, and he knows it. He is the only man who could initiate this proceeding, and he knows it. And yet it was not done; and still he comes here and talks aboutputting in the quarrels between Mr. Stanton and Mr. Thomas over this matter. They are res inter alios, I say again — things done between others — and they have nothing more to do with this case, and hardly as much as the fact which the President with his excellent taste, and the excellent taste of his counsel, drew out here against my objection, that Mr. Stanton when this man Thomas claimed that he was fainting for want of his breakfast and his drink, gave him a drink. The CHIEF JUSTICE. The counsel will please reduce their question to writing. Mr. STANBERY. It is the affidavit, if the court please, that we offer in evidence. The CHIEF JUSTICE. What does the affidavit relate to ? Mr. STANBERY. It is that upon which the warrant was issued — the affidavit by Mr. Stanton, and the warrant for the arrest of Thomas founded on that affidavit. We offer the two papers. Mr. EVARTS. To be followed by the other proof which we have stated. The CHIEF JUSTICE. The Chief Justice thinks the affidavit upon which the arrest was made is competent testimony, as it relates to a transaction upon which Mr. Thomas has already been examined, and as it may be ma- terial to show the purpose of the President to resort to a court of law. He will be happy to put the question to the Senate if any member desires it. (No Senator being heard to speak.) Read the affidavit. Mr. Manager BUTLER. Does your Honor understand that the affidavit is admitted? The CHIEF JUSTICE. Yes, sir. Mr. Manager BUTLER. I heard one Sen- ator ask for the question to be put. The CHIEF JUSTICE. Does any Senator ask the question to be put? Mr. CONNESS. I asked that the question be put, and I now ask for the yeas and nays upon it. The yeas and nays were ordered. Mr. HOWARD. I wish the question might be read. We do not fully understand it. The CHIEF J USTICE. The Chair will state that the counsel for the President propose to put in the affidavit upon which the arrest of General Thomas was made on the morning, I think, of the 22d of February. Mr. JOHNSON. It is impossible to decide without knowing what the paper is. The CHIEF JUSTICE. Will the counsel state what they propose to prove in writing? Mr. EVARTS. I will read the affidavit. Mr. Manager BUTLER. We object to that. Then it is in. The CHIEF JUSTICE. Objection is made to reading the affidavit. If the counsel will state what they propose to prove in writing it will be better. Mr. STANBERY. We propose to offer an affidavit made by Mr. Stanton on the night of the 21st or morning of the 22d of February. The CHIEF JUSTICE. You wiil state it in writing. The proposition haviag been reduced to writing, „ The CHIEF JUSTICE. The Secretary will read the proposition of the counsel for the President. The Secretary read as follows : We offer a warrant of arrest of General Thomas, dated Fobruary 21, 1868, and the affidavit on which tho warrant issued. , The CHIEF JUSTICE. Senators, you who are of opinion that the evidence proposed to be offered by the counsel for the President is admissible, will, as your names are called, answer yea; those of the contrary opinion, nay. The Secretary will call the roll. The question being taken by yeas and nays, resulted— yeas 34, nays 17 ; as follows: YEAS. — Messrs. Anthony, Bayard, Buckalew, Cat- tell, Cole, Corbett, Cragin, Davis, Dixon, Doolittle, Fcssenden, F'owler, Frelingbmsen, Griincs, Hen- derson, Hendricks, Johnson, McCrecry, Morrill of Maine, Morrill of Vermont. Morton, Norton, Pat- terson of New Hampshire, Patterson of Tennessee, Pomeroy, ltoss, Sheruiau, Sumner, Trumbull, Van Winkle, Visiters, Willey, Williams, and Yates— 3-1. NAYS. — Messrs. Cameron, Cuaiidler, Conkling, Connoss. Drake, Edmunds, Ferry, Harlan. Howard, Howe, Morgan, Nye, llamsey, Stewart, Tbajer, Tip- ton, and Wilson — 17. NOT VOTING. — Messrs. Saulsbury, Sprague, and Wade-3. So the Senate decided that the offer of the counsel should be admitted. Mr. EVARTS. I will read the papers. The affidavit is: To Hon. Davih K. Caktteb. Chief Justice of the Su- preme Court for the JJintrict of Columbia : Comes Edwin M. Stanton, of the city of Washing- ton, ia the said District, and upon oath says that on the 21st day of February, A. D. 1863, be, the said Edwin M. Stanton, duly held the office of Secretary for the Department of War, under and according to the Constitution and laws of the United States; that he had, prior to said 21st day of February, A. D. 1868, been duly nominated and appointed to thesaidoiiico of Secretary of War by tho President of tbe United States, and that his said nomination had been sub- mitted in due form of law to the Senate of the Uni- ted States, and his said nomination had been duly assented to and confirmed by and with the udAiceof the Senate; and he, the said Edwin M. Stanton, bad duly accepted said office, and taken out and sub- scribed all tho oaths required by law. upon bis in- duction into said office, and was in the actual posses- sion of said office and pcrformingthe duties thereof on said 21:-t day of February, A. D. 1808. and he had never resigned said office, or been legally dismissed therefrom, and he claims that he does now legally hold saidoffica, and is entitled to all the rights, priv- ileges, and powers thereof. And the said Edwin M. Stanton on oath further states that on said 21st day of February, 18(38, in tho city of Washington atoresaid, Andrew Johnson, Pres- ident of the United States, made and issued an order in writing under his hand, with intent and purpose of removing him, the said Edwin M. Stanton, iVoin tho said office of Secretary for tho Department of War, and authorizing and empowering Lorenzo Thomas, Adjutant General of tho Army of the United States, to act as Secretary of War ad interim, and directing him, the said Thomas, to immediately enter upon tho discharge of the duties pertaining to that office. And your affiant further states that tho said pretended order of removal of him from the said office of Sec- retary ot War is wholly illegal and void ami contrary to the express provisionsot an act duly passed by tho Congress of the United States on thc2dduy of March, A. D. 1867, entitled" An act regulating tho tcuuroof certain civil offices." And your affiauton oath fur- ther states that the said Lorenzo Thomas did, on said 21st day of February, A. D. 1868, iu said city of Wash- ington, accept the said pretended appointment as Secretary of War ad interim, and on tho same day left with your affiant a copy of the said pretended order of the President removing your affiant as Secre- tary ot War, and appointing the said Lorouzo Thomas Secretary of War ad interim, certiiied by the said Lorenzo Thomas under his own hand as Secretary of War ad interim. And on the same ^lst day of Feb- ruary, A. D. 1868, in the city of Washington afore- said, the said Lorenzo Thomas delivered to your affiant the said pretended order of Andrew Johnson, with intent to cause your affiant to deliver tu him, the said Thomas, all the records, books, papers, and other public property now in his(the affiant's) cas- tody and charge as Secretary of War. And your affiant further states on oath, and that he is informid and behoves that the said Thoinashas, in said city of Washington and District atoresaid, exercised and attempted to exercise tho dutiesof Secrotaryof War, and to issue orders as such, and your affiant is also informed and believes that the said Lorenzo Thomas gives out and threatens that he will foroibly remove your complainant from the buildiug and apartments of the Secretary of War in the War Department, and forcibly take the possession and control thereof under THE CONGRESSIONAL GLOBE. 169 his said pretended appointment by the President of the United States ad (Secretary of War ad interim. And your auhint alleges that the appointment, under which the said Thomas claims to act, and to hold a.nd perforin the duties of Secretary of War, is wholly unauthorized and illegal, and that the said Thomas, by accepting such appointuiont, and there- under exercising and attempting to exercise the duties of Secretary of War, lias violated the provis- ions of the fifth section of tho act above referred to, and thereby has boen guilty of a high misdemeanor, and subjected himself to the pains and penalties pre- scribed in said tilth section against any person com- mitting such offense. Whereupon your affiant prays that a warrant may be issued against Lorenzo Thomas, and that be may be thereupon arrested and brought before your Honor and theroupou that he may bo dealt with as the law and justice in such case appertains. EDWIN M. STANTON. Sworn and subscribed before me this 21st day of February, A. D. 1868. 1>. K. CARTTER, Chief- Justice. Sworn to and subscribed belore me by Edwin M. Stanton at the city of Washington, in the District of Columbia, this22d day of February, 186S. D. IC. CARTTER, Chief Justice. The warrant is dated the 22d of February, 1868. Mr. STANBERY. First the 21st and then the 22d. It is dated before twelve o'clock, and then after twelve o'clock. Mr. E VAHTS. It is sworn to twice, once on the 21st and once on the 22d. The warrant is as follows: United States of America, District of Columbia, bb. — To David S. Gooding, United States marshal for the District of Columbia: I, David K. Cartter, Chief Jus- tice of the supreme court of the Listi-icf of Colum- bia, hereby commandyou to arrest Lorenzo Thomas of said District forthwith, and that you have the said Lorenzo Thomas before me at the chambers of the said supreme courtin thecity of Washington, forth- with, to answer to the charge of a high misde- meanor in this, that on the 21st day of February, 1868, m the District of Columbia, he did unlawfully accept the appointment of tlie office of Secretary of War ad interim, and did then and there unlawfully hold and exercise and attempt to hold and exercise tho said office contrary to the provisions of the act entitled "An act regulating the tenure of certain civil offices,'* passed March 2, 1867, and hereof fail not but make duo return. Given under my hand and seal of said court this r , -i 22d day of February, 1868. lL - S ' J . D. K. CARTTER, Chief Justice of the Supreme Court of tlie District of Columbia, Attest: R. J. MEIGS, Clerk. The marshal's return is as follows : Washington City, D. C, February 22, 1868. The within writ came to hand at seven o'clock a. m., and was served by me on the said Lorenzo Thomas at eight o'clock a. in., and I now return tuis writ and bring him before Chief Justice Cartter at nine o'clock a. m. of to-day. DAVID S. GOODING, United States Marshal, D. C. By Mr. Stanbery: Question. Mr. Meigs, I perceive this is » judge's warrant at chambers? Answer. Yes, sir. Question. Are you in the habit of keeping any record further than filing the papers, or did you make any record further than filing the papers of that proceeding? Answer. When the recognizance was exe- cuted, that was put upon the docket of the court. You will see that the warrants are marked with a number. Question. The recognizance of bail? Answer. As soon as that is done the cases are all put upon the docket of the court in order that it may appear how, the defendant is discharged, or what becomes of him. Question. Well, has this defendant been discharged? Mr. Manager BUTLER. Stay a moment. That will appear by the record. The Witness. Yes; that will appear by the record. By Mr. Stanbery: Question. Have you a record of the discharge also? Answer. The docket shows that. Question. Is that the docket of the judge or the docket of the court? Answer. The docket of the court. Question. Does the judge return the case into court? Answer. The recognizance of course is re- turned into court. Question. I am not speaking of the recogni- zance ; I am speaking of this case ? Answer. The recognizance was taken upon that case, and was returned into court, and was entered upon the docket of the court. Question. You make no record of these papers ? Answer. No; no record of those papers. They are filed, and constitute a part of the record of the case at court. Question. Have you got your docket with you ? Answer. No, sir. The subpoena did not require it to be brought, and of course it was not brought. Mr. STANBERY, (to the Managers.) We will have the docket if you require it, gentle- men. Do you want that formal matter? Mr. Manager B UTLER. A little more than that. Mr. STANBERY. Do you want us to pro- duce Mr. Manager BUTLER. I do not want anything, except 1 shall object to any incom- petent testimony. Mr. STANBERY. You can take this wit- ness. Mr. Manager BUTLER. That is all, Mr. Meigs. Mr. STANBERY. Mr. Meigs, will you bring this docket that contains this entry ? Answer. Yes, sir. Mr. Manager BUTLER, (to the witness.) A single word. Will you not extend the rec- ord as far as you can, and bring us a certified copy of this case as it will appear after being extended? Mr. STANBERY. Call Mr. Clephane. Mr. JOHNSON, (sending a question to the desk.) Mr. Chief Justice, I desire to put a ques- tion to General Sherman. He is in the room, I believe. The CHIEF JUSTICE. The Secretary will read the question. To whom does the Sen- ator from Maryland address it? Mr. JOHNSON. General Sherman. He is in the court, I understand. William T. Sherman recalled. The Secretary read the question of Mr. Johnson, as follows : When the President tendered to you the office of Secretary of War ad interim on the 27th of January, 1868, and on the 31st of the same month and year, did he, at the very time of making such tender, state to you what his purpose in so doing was? Mr. Manager BINGHAM. We object to the question as being within the ruling of the Senate, and incompetent. The CHIEF J USTICE. The Chief Justice will submit that question to the Senate. Mr. DRAKE. Upon that question I ask for the yeas and nays. The yeas and nays were ordered. The CHIEF JUSTICE. Senators, you who are of opinion that the question proposed by the honorable Senator from Maryland is admissible, will, as your names are called, answer yea ; those of a contrary opinion, nay. Mr. JOHNSON. Before the roll is called I ask that the question be read again. The Secretary again read the question. The question being taken by yeas and nays, resulted — yeas 26, nays 22; as follows: YEAS— Messrs. Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Fowler, Fre- linghuyscn, Grimes, Henderson, Johnson, MoCreery, Morrill of Maine, Mom-ill of Vermont, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, and Willey— 26. NAYS— Messrs. Cattell, Chandler, Conkling, Con- ness, Corbett, Cragin, Drake, Edmunds, Ferry, Har- lan, Howard. Howe, Morgan, Nye, Pomeroy, Ram- sey, Stewart. Thayer, Tipton, Williams, Wilson, and Yates— 22. NOT VOTING— Messrs. Cameron, Hendricks, Pat- terson of New Hampshire, Saulsbury, Sprague, and Wade-6. The CHIEF JUSTICE. On this question the yeas are 20 and the nays 22. So the ques- tion is admitted and will be put to the witness. The Secretary will read the question again. The Secretary read the question to the wit- ness, as follows : When the President tendered to you the office of Secretary of War ad interim on the 27th of January, 1868 and on the 31st of the same month and year, did he, at the very time of making such tender, state to you what his purpose in so doing was ? The Witness. He stated to me that his purpose Mr. Manager BUTLER. Stay a moment. The question, Mr. Chief Justice, was whether he did state, not what he stated. We want to object to what he stated. Mr. E VARTS. Answer yes or no, General. Answer. Yes. The CHIEF JUSTICE. The witness an- swers that he did. By Mr. Stanbery: Question. What purpose did he state? Mr. Manager BINGHAM. To that vte object. Mr. Manager BUTLER. The counsel had dismissed this witness, and he is not to be brought back, on a question of the court, for the purpose of counsel opening the case again. The CHIEF JUSTICE. The Chief Justice thinks it is entirely competent for the Senate to recall any witness. Mr. Manager BUTLER. I have not ob- jected to the Senate recalling a witness. The CHIEF JUSTICE. The Senate has decided that the question shall be put to the witness. That amounts to a recalling of him, and the Chief Justice is of opinion that the witness is bound to answer the questions. Does any Senator object? Mr. Manager BUTLER. We understand that the only question he has been recalled for has been answered. Mr. EVARTS. We have asked another question. Mr. JOHNSON. I propose to add to it— I thonghtmy question included that — if the Pres- ident did, what did he state that his purpose was? Mr. Manager BINGHAM. To that we ob- ject ; and we ask the Senate to consider that the last clause suggested now by the honorable Senator from Maryland, " And what did the President say," is the very question which the Senate this day did solemnly decide adversely to i ts being put, and it so decided on Saturday ; in short, the last clause now put to the witness by the honorable Senator from Maryland is, What did the President say? making the Pres- ident's declarations evidence for himself when they are not called out by the Government. It was suggested by my associate in argument on Saturday that if that method were pursued in the administration of justice, and the declara- tions of the accused were made evidence for himself at his pleasure, the administration of justice would be impossible in any court. Mr. DAVIS. I rise to a question of order. The CHIEF JUSTICE. " The Senator from Kentucky. Mr. DAVIS. It is that one of the Managers has no right to object to a question propounded by a member of the court. Mr. Manager BUTLER. We might as well meet that question now. Mr. Manager BINGHAM. I desire to say on that subject, if I may be allowed to do so, without trespassing The CHIEF JUSTICE. The honorable Manager will wait one moment. When a mem- ber of the court propounds a question it seems to the Chief Justice that it is clearly wilhin-the competency of the Managers to object to the question being put and state the grounds for that objection, as a legal question. It is not competent for the Managers to object to a mem- ber of the court asking a question ; but after the question is asked, it seems to the Chief Justice, that it is clearly competent for the Managers to state their objections to the ques- tions being answered. Mr. CONNESS. I ask that the question now put be reduced to writing. The CHIEF JUSTICE. The Clerk has it reduced to writing. It will be read. The Secretary read it, as follows : If ho did, state what he said his purpose was? Mr. CONNESS. Do I understand that to be a part of, or an addition made to the other question ? 170 SUPPLEMENT TO Mr. JOHNSON. Part of the same question. The CHIEF JUSTICE. It must be re- garded at present as an independent question. Mr. CONNESS. And therefore I ask that the independent question be reduced to writing. It has nothing to do with the other. The CHIEF JUSTICE. The Chief Justice understands the question which has just been read by the Clerk to be the question. Mr. CONNESS. Then I call for its reading again. The CHIEF JUSTICE, (to the Secretary.) Read the question. The Secretary read as follows : If ho did, state what he said his purpose was? Mr. CONNESS. "Did" what? Mr. DRAKE. I would inquire for informa- tion, Mr. President, whether, in order to test the introduction of that question, it is neces- sary that a Senator should object to its being put? Mr. EDMUNDS. No ; the Chief Justice has decided that it is not. Mr. DRAKE. Very well. The CHIEF JUSTICE. The Chief Justice has said that it does not seem to him compe- tent for the Managers or the counsel to object to a question being put by a Senator ; but after it has been put, the question whether it shall be answered must necessarily depend upon the judgment of the court, and either the counsel for the President or the honorable Managers are quite at liberty to address any observations they see fit to the court upon that point. Several Senators. That is right. Mr. JOHNSON. Certainly ; I do not doubt ihat. Mr. Manager BINGHAM. Upon that state- ment I may be pardoned for saying our only purpose is to object to the answer being taken by the Senate to the question, and not to ob- ject to the right of the honorable gentleman from Maryland to offer his question. Mr. JOHNSON. I so understand. Mr. Manager BINGHAM. And that is the question that is before the Senate. The ques- tion that we raise before the Senate is, that it is incompetent for the accused to make his own declarations evidence for himself. The CHIEF JUSTICE. The Chief Justice has already said upon a former occasion that he thinks that, for the purpose of proving the intent, this question is admissible ; and he thinks, also, that it comes within the rule which has been adopted by the Senate as a guide for its own action. This is not an ordinary court, but it is a court com posed largely of law- yers and gentlemen of great experience in the business transactions of life, and they are quite competent to determine upon the effect of any evidence which may be submitted to them ; and the Chief Justice thought that the rule which the Senate adopted for itself was founded on this fact ; and in accordance with that rule, by which he determined the question submitted on Saturday, he now determines this question in the same way. Mr. DRAKE. I ask for a vote of the Senate upon the question. The CHIEF J CJSTICE. The Secretary will read the question. Mr. Manager BUTLER. I only want to ask a single question. The Chief Justice un- derstands this, as does the board of Managers, as I understand, to be precisely the same ques- tion that was ruled upon on last Saturday even- ing, when the Chief Justice ruled. Mr. Manager BINGHAM. And this morn- ing, too. The CHIEF JUSTICE. The Chief Justice does not say that. What he does say is, that it is a question of the same general import, to show the intent of the President during these transactions. The Secretary will read the ques- tion again. Mr. JOHNSON. I ask that both questions be read, the first and the second, taken in con- nection with each other. The witness has an- swered the first. The CHIEF JUSTICE. The Secretary will read the original question, and then he will read the present question before the Senate. The Secretary. The first question was : When tho President tendered to you the office of Secretary of War ad interim on tho 27th of Janu- ary, 1868. and on tho 31st of the same month and year, did he, at the very time of making such ten- der, state to you what his purpose in so doing was ? The witness having answered this, the ques- tion now is: If he did, state what he said his purpose was ? The CHIEF JUSTICE. Senators, you who are of opinion that the question just read, "if he did, state what he said his purpose was," is admissible, and should be put to the wit- ness, will, as your names are called, answer yea ; those of a contrary opinion, nay. The Secretary will call the roll. Mr. HOWE. Before I vote upon the ad- missibility of this answer, I wish, if there is any regular mode of doing so, to ascertain the state of the record upon another point ; and that is, whether the fact that this office was tendered to the witness on the stand was a fact put in by the defense or by the prosecution. My own recollection is not very distinct about it, and I am not sure that I am right. The CHIEF JUSTICE. The Chief Justice must remind the Senator that no debate is in order unless there be a motion to retire for conference. Mr. E VARTS. I may be permitted, as coun- sel, to state that it was put in by the defense. Mr. Manager BINGHAM. It was put in by fjip flPTPTI^P Mr. EVARTS. I have so stated. Mr. Manager BINGHAM. I wish it to be understood distinctly. Mr. HOWE. The Chief Justice will allow me to remark that putting a question to ascer- tain the state of the record was entering into debate by no manner of means. The CHIEF JUSTICE. It maybe, however. Mr. HOWE. It may not be. The CHIEF JUSTICE. The Secretary will call the roll. The question being taken by yeas and nays, resulted — yeas 26, nays 25; as follows: YEAS— Messrs. Anthony, Bayard, Buckalew, Cole, Corbett, Davis, Dixon, Doolittle, Fessenden, Fow- ler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, and Willey- 26. NAYS— Messrs. Cameron, Cattell. Chandler, Conk- ling, Conness, Cragin, Drake, Edmunds, Ferry, Har- lan, Howard, Howe, Morgan, Morrill of Maine, Mor- rill of Vermont, Nye, Patterson of New Hampshire, Pomeroy. Ramsey, Stewart, Thayer, Tipton, Wil- liams, Wilson, and Yates — 25. NOT VOTING— Messrs. Saulsbury, Sprague, and Wade-3. So the question propounded by Mr. John- son was held to be admissible. The Witness. May I take the question in my hand? [The question was handed to the witness and examined by him.] The first question was as to "both occasions." [The previous question was handed to the witness and examined by him.] Mr. EVARTS. It covers both occasions. The Witness. The conversations were long and covered a great deal of ground; but I will endeavor to be as precise to the point as pos- sible. The President stated to me that the relations which had grown up between the Secretary of War, Mr. Stanton, and him- self Mr. Manager BUTLER. Stay a moment. I must again interpose, Mr. President. The question is simply what the President stated his purpose was, and not to put in his whole Mr. JOHNSON. That is all that is asked. This is preliminary to that. Mr. CURTIS. That is all he is going to answer. Mr. Manager BUTLER. I pray that that may be submitted to the Senate, whether they will have the whole of the long conversation, which is nothing to the purpose. Mr. Manager BINGHAM. His purpose in offering General Sherman a commission. Mr. Manager BUTLER. Yes, sir. Mr. JOHNSON. That is it. The Witness. I intended to be very pre- cise and very short; but it appeared to me necessary to state what I began to state, that the President told me that the relations be- tween himself and Mr. Stanton, and between Mr. Stanton and the other members of the Cabinet, were such that he could not execute the office which he filled as President of the United States without making provision ad interim for that office ; that he had the right under the law ; he claimed to have the right, and his purpose was to have the office admin- istered in the interest of the Army and of the country; and he offered me the office in that view. He did not state to me then that his purpose. was to bring it to the courts directly; but for the purpose of having the office admin- istered properly in the interest of the Army and of the whole country. Mr. STANBERY. On both occasions, General, or the other occasion? The Witness. I asked him why lawyers could not make a case ; that I did not wish to be brought as an officer of the Army into any controversy. Mr. CONKLING. Will you not repeat that last answer, General ? The Witness. I asked him why lawyers could not make a case, aud not bring me, or an officer, into the controversy. His answer was that it was found impossible, or a case could not be made up; but, said he, "If we can bring the case to the courts it would not stand half an hour." I think that is all that he stated to me then. By Mr. Stanbery : Question. On either occasion ? Mr. JOHNSON. That is my question. The Witness. The conversation was very long and covered a great deal of ground Mr. Manager BUTLER. I object to this examination being renewed by the counsel for the President. Mr. STANBERY. There were two occa- sions. Has the witness got through both? That is the question. Mr. Manager BUTLER. Whatever may be the pretense under which it is to be renewed, I hold that, according to the due order of trials, it ought not to be allowed. Let us see how it is to be done, Mr. President. The counsel dismissed this witness and he was gone, and he is brought back at the request of one of the judges, and that judge Mr. STANBERY. I must interrupt the learned Manager to say that we did not dismiss him. On the contrary, both sides asked to retain him. the learned Manager saying at the time that he wanted to give him a private ex- amination. Mr. Manager BUTLER. To that I must interpose a denial. I have asked for no private examination. I say the counsel dismissed him from the stand, dismissed him as a witness in this case from the stand. Then he is called back by one of the judges. In any court that anybody ever practiced in before, or in any tribunal, when that is done and a question is put by a judge, that never yet opened the case to have the witness examined by the counsel who had dismissed him. Mr. JOHNSON. I ask for the reading of the question. I think I asked him to answer as to both of the occasions when the office was tendered to him. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Maryland. The Secretary. The witness having an- swered "yes" to the previous question, the question is, " State what he said his purpose was ?" The CHIEF JUSTICE. Nothing is more usual in courts of justice than to recall wit- nesses for further examination, especially at the instance of one of the members of the court. It is very often done at the instance of counsel. It is, however, a matter wholly within the discre- tion of the court ; and if any Senator desires it the Chief Justice will be happy to put it to THE CONGRESSIONAL GLOBE. 171 the court, whether the witness shall be further examined. If not Mr. WILLIAMS. I ask for the opinion of the court on that subject, whether the counsel can renew the examination of this witness and go beyond the question propounded by a mem- ber of the court. The CHIEF JUSTICE. The counsel will please reduce the question they propose to put to writing. The question having been reduced to writing was sent to the Secretary's desk, and read as follows : Havo you answered as to both occasions ? The CHIEF JUSTICE. The question is objected to, and the decision of the question will determine whether the counsel can put any further questions to the witness. Mr. EVARTS. We may be heard upon that, I suppose. The CHIEF JUSTICE. Certainly. Mr. EVARTS. The question, Senators, whether a witness may be recalled is a ques- tion of the. practice of courts. It is a practice almost universal, unless there is a suspicion of bad faith, to permit it to be done, and it is always in the discretion of the court. In special circumstances, where collusion is sus- pected between the witness and counsel for wrong purposes adverse to the administration of justice, a strict rule may be laid down. Whatever rule this court in the future shall lay down as peremptory, if it be that neither party shall recall a witness that has been once dis- missed from the stand, of course will be oblig- atory upon us ; but we are not aware that anything has occurred in the progress of this trial to intimate to counsel that any such rule had been adopted, or would be applied by this court. Mr. Manager BUTLER. Mr. President, on Saturday this took place: this question was asked : " In that interview" — That is, when the offer was made — " what conversation took place between the Pres- ident and you in regard to the remoyal of Mr. Stan- ton?" That question was offered to be put, and after argument, and upon a solemn ruling, twenty-eight gentlemen of the Senate decided that it could not be put. That was exactly the same question as this, asking for the same con- versation at the same time. Then certain other Eroceedings were had, and after those were ad the counsel waited some considerable time at the table in consultation, and then got up and asked leave to recall this witness this morn- ing for the purpose of putting questions. The Senate gave that leave and adjourned. This morning they recalled the witness and put such questions as they pleased, and we spent as many hours, as you remember, in doing that. On Saturday they had got through with him, except that they wanted a little time to con- sider whether they would recall him ; they did recall him this morning, and after getting through with him the witness was sent away. Then he was again recalled to enable one of the judges to put a question, to satisfy his mind. Of course, he was not acting as coun- sel for the President in so doing; that could not be supposed possible. He wanted to satisfy his mind. Mr. JOHNSON. What do.es the honorable Manager mean ? Mr. Manager BUTLER. I mean precisely what I say, that it cannot be supposed possibly that he was acting as counsel for the President. Mr. JOHNSON. Mr. Chief Justice, if the honorable Manager means to impute that in anything I have done in this trial I have been acting as counsel, or in the spirit of counsel, he does not know the man of whom he speaks. 1 am here to discharge a duty ; and that I pro- pose to do legally. And permit me to say to the honorable Manager that I know what the law is as well as he does, and it is not my pur- pose in any way to depart from it. Mr. Manager BUTLER. Again I repeat, so that my language may not be' misunderstood, that it is not to be supposed that he was acting as counsel for the President. Having put his question and satisfied his mind of something that he wanted satisfied, something that he wanted to know, how can it be that that opens the case to allow the President's counsel to go into a new examination of the witness ? How do they know, if he is not acting as counsel for the President, and there is not some under- standing between them, which I do not charge — how can the President's counsel know that his mind is not satisfied? He recalled the witness for the purpose of satisfying his own mind, and only for that reason. I agree it is common to recall witnesses for something that has been overlooked or forgotten ; but I appeal to the presiding officer that while— and I never have said otherwise— -a member of the court who wants to satisfy himself by putting some question may recall a witness for that purpose, it never -is understood that that having been done the case was opened to the counsel on either side to go on and put other questions. The court is allowed to put the question, be- cause it is supposed that the judge wants to satisfy his mind on a particular point. After the judge has satisfied his mind on that partic- ular point then there is to be an end, and it is not to open the case anew. I trust I have answered the honorable Senator from Mary- land that I meant no imputation. I was putting it right the other way. Mr. JOHNSON. I am satisfied, Mr. Chief Justice ; and I only rise to say that I did not know that the counsel proposed to ask any question, and I agree with the honorable Man- ager that they have no right to do any such thing. Mr. EVARTS. Mr. Chief Justice, one mo- ment will, I mink, show that Mr. Manager BINGHAM. Will the gen- tleman from New York yield to me a single moment, without pretending to interrupt him? Mr. President, I desire, on behalf of the Man- agers, here, so that there may be no possible misunderstanding about it, to disclaim, once for all, that it was either intended by my asso- ciate, who has taken his seat, or is intended by the Managers, at any time, or in any way to question the right and the entire propriety of any Senator recalling any witness and putting any question to him that he sees fit. We im- pute no improper motives to any Senator for doing so ; and we wish it distinctly understood that it is furthest from our purpose. But we recognize his perfect right to do so and the entire propriety of it. Mr. EVARTS. A moment's consideration, I think, will satisfy the Senate, Mr. Chief Jus- tice, that the question is not precisely of our right to recall the witness, but the question of right, if it be important to be discussed — and it may be in some futur^ applications of the rule — is, that when the court have introduced, by their right of questioning, new matter of evidence that had previously been excluded, then the counsel upon either side are not obliged to leave that portion of the evidence incom- plete ov without cross-examination ; for some piece of evidence might be drawn out that, as it stood, nakedly, it would be prejudicial to oue side or the other, prejudicial to the side whose witness was recalled, if you please; and certainly it would be competent, in the ordi- nary rules of examination, that the counsel should be permitted to place the whole of the fact and the truth — within the proper rules of evidence, of course — before the court. . Mr. WILLIAMS. If I may be allowed to state, I do not, of course, object, under the decision made by the Senate, to a full answer to the question propounded by the Senator from Maryland ; but my objection is made upon the ground that the Senate has repeat- edly decided that the conversations of the President were not admissible in evidence, and the witness having answered the question of the Senator from Maryland, it is not com- petent for the counsel for the President to pro- ceed to examine him upon that point, because it is contrary to the decision already made. The CHIEF JUSTICE. The Secretary will again read both the questions, so that the Senate may understand precisely what is before it. The Secretary. The first question was as follows : When the President tendered to you the office of Secretary of War ad interim on the 27th of January, 1808, and on the31stof thosamemonth and year, did he, at the very time of making such tender, state to you what his purpose in so doing was 7 The witness having answered "yes," the next question was : State what he said his purpose was. The question now is : Have you answered as to both occasions ? Mr. JOHNSON. That is not my question. Mr. STANBERY. That is mine; and I want to say one word as to that. Notwith- standing the honorable Senator from Maryland has put this question, he has put it about our client and our case. They belong to us. He has put it so that a new door is opened that was closed to us before, and the court has gone into that new evidence that was a sealed book to us, about which we could neither examine nor cross-examine. That which was closed to us by the decision of the court on Saturday is now opened by the question of the Senator to-day. Now, I understand the doctrine contended for to be that we must take that answer, for better or worse, to a question we did not put. Now, Senators, if in that answer the matter had been condemnatory of the President ; if the Senator had got as an answer that the President told the witness expressly that he intended to violate any law ; that he was acting in bad faith ; that he meant to use force, I am told the doctrine here now is, "inasmuch as it was brought out by a Senator, not by your- selves, although it is fatal testimony to your client, you cannot cross-examine him one word about it." It is not testimony of our asking. Suppose it had been brought out by the Man- agers, could we not cross-examine. Suppose it is brought out by a Senator, does that make it any more sacred against the pursuit of truth and the sacred right of cross-examination? Does the doctrine of estoppel come here, that wherever any question is answered upon the interrogatory of a Senator you must take that answer, without ahy opportunity to contradict the witness or to cross-examine the witness ; that that sacred right cannot be exercised '■ that we are estopped not by our own aet, not by testimony we have called out, but we are estopped by the act of another, and shut out from the pursuit of truth, because a Senator has put 'the question and the answer to that question is condemnatory of our client ? I say the moment that door is opened and new testi- mony introduced in the cause we have a right to cross-examine the witness ; a right to ex- plain it if we can, to contradict it if we can, to impeach the very witness who testifies to it if we can. Every weapon that a defendant has in pursuit of truth as to testimony against him is put into our hands the moment such a question is put and such a question is answered. Mr. Manager BINGHAM. Mr. President, I think Senators cannot fail to have observed the most extraordinary remarks that have just fallen from the lips of the honorable counsel for the President. It is perfectly apparent to intelligent men, whether on the floor of the Senate or in these galleries, that they have attempted, through this witness, to obtain the mere naked declaration of the accused to rebut the legal presumption of his guilt arising from his having done an unlawful act. I am not surprised at the feeling with which the honorable gentleman has just discussed this question. If I heard aright the testimony which fell from the lips of the witness, the Lieutenant General, it was testimony that ut- terly disappointed and confounded the coun- sel for the accused. What was it? Nothing was said, said the witness, in the first conver- sation about an appeal to the courts, and finally this was said, that it was impossible to make up a case by which to appeal to the courts. These declarations of the President, 172 SUPPLEMENT TO standing in that form, are not satisfactory to the counsel. They are brought out, to be sure, upon the question of the honorable gentleman from Maryland ; but they are not satisfactory to the counsel ; and now he tells the Senate that he has the right to cross-examine. To cross-examine whom, sir? To cross-examine his own witness. To cross-examine him for what purpose? "In search of the truth 1" Well, he is in pursuit of the truth under diffi- culties. The witness has already sworn to matter of fact that shows the naked, bald fal- sity of the defense interposed here by the Pres- ident in his answer, that his only purpose in violating the law was to test the validity of the law in the courts. Why did not he test the validity of the law in the courts? It will notdoto sayto the Senateof the United States that he has accounted for it in telling this wit- ness that the case could not be made up. The learned counsel who has just taken- his seat is too familiar with the law of this country, too familiar with the absolute adjudication of this very case in the Supreme Court, to venture to indorse for a moment this utterance of his cli- ent made to the Lieutenant General that it was impossible to make up a case. I stand here and assert what the learned counsel knows right well, that all that was need- ful to make up a case was for the President of the United States to do just what he did do in the first instance, to issue an order directing Mr. Stanton to surrender the office of Secretary for the Department of War to " Lorenzo Thomas, whom he had that day appointed Secretary of War ad interim," and to sur- render all the records of the office to him, to surrender the property of theoffice to him, and upon the refusal of the Secretary of War to obey his command through his Attorney General, who now appears as his attorney in the trial and defense of this case, to sue out a writ of quo warranto. That is the law which we un- dertake to say is settled in this cc;?e, notwith- standing his statement to the witness whom they have called here. It is settled in the case of Wallace vs. Anderson, as the Senate will recollect, reported in 5 Wheaton, page 291. The opinion of the court, from which no dissent was expressed by any member of the bench, was delivered by Chief Justice Marshall, and I will read the opinion : "Mr. Chief Justice Marshall delivered the opinion of tho court, that a writ of quo warranto could not be maintained except at the instance of tho Govern- ment; and as this writ was issued by a private indi- vidual, without the authority of the Government, it could not be sustained, whatever might be the right of the prosecutor or of the person claiming to exer- cise tho office in question. The information must, therefore, be dismissed." That power was not employed by the Ex- ecutive through the Attorney General. Let him answer in some other way than by these declarations, sought to be reached through a cross-examination of their own witness, why he did not follow up his illegal order for the removal of Stanton and for the appointment of Lorenzo Thomas as Secretary of War ad interim by illegally suing out his writ of quo ■warranto and trying the question in the courts. But, gentlemen Senators, there is something more than thatin this case — and I desire merely to refer toitinpassing — thatthe question which the gentlemen raise here in argument now is, in substance and in fact, whether, having violated the Constitution and laws of the United States, in the manner shown by the testimony here, beyond question, they cannot at last strip the people of the power which they retained to themselves by impeachment — to hold such malefactors to answer before the Senate of the United States, to the exclusion of the in- terposition of every other tribunal of justice upon God's footstool. What has this question to do with the final decision of the case before the Senate? I say if your Supreme Court sat to-day in judgment upon this question it has no power and can have none over this Sen- ate. The question belongs to the Senate, in the language of the Constitution, exclusively. The words are that "the Senate shall have the sole power to try all impeachments." The sole or only power to try impeachments includes the power to try and determine every question of law and fact arising in a case of im- peachment. It is in vain that the decision of the Supreme Court or of the circuit court or of the district court or of any court outside of this is invoked for the decision of any question arising in this trial between the people and their guilty President. We protest, then, against a speech that has been made here in this matter. We protest, also, against the attempt here to cross- examine their own witness and get rid of the matter already stated so truthfully and so fairly by the witness, which clearly makes against their client and strips him of every feather, and leaves him naked for the avenging hand of justice to reach him without let or hinderance. Mr. EVARTS. Mr. Chief Justice and Sen- ators, I shall enter into no discussions irrele- vant to this matter ; but we cannot consent to have matters so misrepresented. My learned associate, arguing upon a hypothetical case as to the injustice of the rule sought to be laid down when it should happen that the evidence was injurious to a party, that he should be re- stricted from cross-examination undertook, by way of argument, to influence the opinion of the Senate. It had not the remotest applica- tion, and, as must have been apparent to every intelligent observer, was not connected in the least with the actual evidence given. The evi- dence given, if it is agreeable to the Managers, is extremely satisfactory to us presenting the very point of the inquiry of the Lieutenant General to the President why the lawyers could not make up a case without bringing in an ad interim appointment. The answer of the Presi- dent was that it could not be done, but when on the effect of an adinterim appointment the mat- ter was brought up, the case would not stand half an hour, agreeing with Mr. Manager But- ler in his hypothetical case in the note that he wrote for the President to send to the Senate : "I felt myself constrained to make this re- moval lest Mr. Stanton should answer the information in the nature of a quo warranto, which I intend the Attorney General shall file at an early day, by saying that he holds the office of Secretary of War by the appointment and authority of Mr. Lincoln which has never been revoked." Mr. Manager BINGHAM. Mr. President, I desire, in response to the gentleman's re- marks, very briefly to state to the Senate that instead of bettering his client's case he has made it worse by his attempt to explain this declaration of the President to the witness that it was impossible to make up a case without an acZinferimappointment. I agree and stated myself in the remarks which 1 made before, that it was necessary that he should issue his order of removal as he did issue it, and that it was necessary he should issue his order of appointment to Lorenzo Thomas or somebody else as Secretary of War ad interim, as he did issue it ; but now how does the case stand ? Had he not made an ad interim appointment six months before this conversation with the Lieutenant General? Had he notmade an ad interim appointment in August, 1867, of Gene- ral Grant? Ah I says the gentleman, he only suspended Mr. Stanton then under the tenure- of-office act, and therefore the question could not very well be raised. I have ho doubt that will be the answer of the counsel; it is all the answer they can make ; but gentlemen Sena- tors, how does such au answer stand with the corrupt answer put in here by the President that he did not make that suspension under the tenure-of-office act but under the Constitution of the United States, and by virtue of the pow- ers vested in him by that Constitution? He cannot play "fast and loose" in this way in the presence of the Senate and the people of this country. Why did he not issue out his writ of quo warranto in August when he had his appoint- ment of Secretary ad interim, casting your statute aside, going into courts, forestalling the power of the people to try him by impeach- ment for this violation of law, for this unlaw- ful act, which by the law of every country where the common law obtains, carries the criminal intent with it on its face, and which he cannot talk from the record by any false statement, nor swear from the record in any shape or form by any mere declarations of his own. One word more, and I have done with this matter. They got in evidence of what he told Thomas, and now they want to contradict that evidence. After the refusal of the office to him by Stanton, after Stanton refused to obey Thomas's orders, after he had ordered Thomas to go to his own place, and Thomas refused to obey his orders and declared himself Secretary and his purpose to control the office, to take possession of the records, and seize upon its mails, you have had offered here by this defense the declarations of the accused to Thomas when he went back and reported to him this refusal "Go on, take possession of the office;" not "I am going to appeal to the courts," not" Go to the Attorney General for a writ of quo war- ranto;" there was no intimation of that sort then ; but that declaration of the accused to Lorenzo Thomas on the night of the 21st of February after he had committed this crime against the laws and Constitution of his coun- try is to be got rid of here to-day by his dec- laration at another time, that they are seeking after now, to the Lieutenant General. We are not trying the President here for having offered the Lieutenant General an ap- pointment of Secretary ad interim, or an abso- lute appointment either. We are trying the President here for issuing an order, in violation of law, for the removal of Mr. Stanton and another letter of authority, in violation of the law, directing Lorenzo Thomas to take pos- session of the War Department, its records, and its property, and to discharge the func- tions of the office of Secretary of War ad interim, in utter contempt of the Constitution, of his own oath of office, of the statutes of the United States, and of the solemn decision of the Senate. And these gentlemen come here to get rid of this matter in this way by cross- examining, tousetheir own word, their own wit- ness, because, after failing to get anything from him themselves, and the Senate having suc- ceeded in getting words from him that do not suit their purpose, they seek to get rid of the whole matter by a further examination. Mr. DAVIS. Mr. Chief Justice,! ask for information if the question propounded by the honorable Senator from Maryland has been fully answered? The CHIEF JUSTICE. The Senator from Kentucky will reduce his question to writing. Mr. DAVIS. I do not propose The CHIEF JUSTICE. The rule requires that the question shall be reduced to writing. Mr. DAVIS. I do not propound any ques- tion to the witness at all. I merely make the suggestion to the Chief Justice whether the question, as drafted by the honorable Senator from Maryland, has been fully answered by the witness or not? The CHIEF JUSTICE. It is impossible for the Chief Justice to reply to that question. The witness only can reply. The Witness. Where is my answer? Mr. TRUMBULL. I ask is there not a question pending? Mr. DAVIS.. I ask that the question be The CHIEF JUSTICE. The Chief Jus- tice will explain the position of the matter to the Senate. The Senator from Maryland de- sired that the following question should be put to the witness, (General Sherman :) " When the President tendered to you the office of Sec- retary of War ad interim on the 27th of Janu- ary, 1868, aad on the 31st of the same month and year, did he, at the very time of making such tender, state to you what his purpose in so doing'was?" To that question the witness replied, "he did" or "yes." That answer having been given, the Senator from Mary- land propounded the further question, "The witness having answered yes, will he state THE CONGRESSIONAL GLOBE. 173 what he said his purpose was?" The witness having made an answer to that question either partial or full, the Chief Justice is unable to decide which, the counsel for the President propose this question: "Have you answered as to both occasions?" That is the same question which the Senator from Kentucky now proposes to the Chief Justice, and which he is unable "to answer. The Senator from Oregon [Mr. Williams] objects to the ques- tion proposed by the counsel for the President upon the ground that General Sherman having been recalled at the instance of a Senator, and having been examined by him, he cannot be examined by counsel for the President. The Chief Justice thinks that that is a matter en- tirely within the discretion of the Senate, but that it is usual, under such circumstances, to allow counsel to proceed with their inquiries relating to the same subject-matter. Mr. WILLIAMS. Mr. President, I with- draw my objection to this question. When the question was orally put I understood it to be another and different question. I am willing a. full answer shall be given to the question propounded by the Senator from Maryland, but object to new questions. The CHIEF JUSTICE. The Secretary will read the question, and the witness will answer. The Secretary. The question is, "have you answered as to both occasions?" The Witness. I should like to hear my answer as far as it had gone. Mr. JOHNSON. I move that the reporter read the answer. The CHIEF JUSTICE. That will be done. Mr. J. J. Murphy, one of the official report- ers of the Senate, read the previous answer of the witness from the short-hand notes, as follows : " I intended to be very precise and very short ; but it appeared to me necessary to state what I began to state, that the President told me that tbe relation? between himself and Mr. Stanton, and between Mr. Stanton and the other members of the Cabinet, were such that he could not execute the office which he filled as President of the United States without mak- ing provision ad interim for that office ; that he had the right under the law ; ho claimed to have the right; and his purpose was to have the office admin- istered in the interest of the Army and of the coun- try ; and he offered me the office in that view. He did not state to mc then that his purpose was to bring it to the courts directly; but for the purpose of hav- ing the office administered properly in the interest of the Army and of the wholo country. "Mr. Stanbery. On both occasions. General, or the other occasion? " Tho Witness. I asked him why lawyers could not make a case; that I did not wish to be brought as an officer of the Army into auy controversy." "Mr. Conkling. Will you not repeat that last answer, General?" "Tho Witness. I asked him why lawyers could not make a case, and not bring mc, or an omcor.into the controversy? His answer was, that it was found impossible, or a case could not bo made up; 'but,' said he, * if we can bring tho case to the courts, it would not stand half an hour.' I think that is all that he stated to mo then." Mr. DRAKE. Now read the pending ques- tion. The Secretary. The question is: "Have you answered as to both occasions." The Witness. The question first asked me seemed to restrict me so close to the purpose that I endeavored to confine myself to that point alone. On the first day or the first inter- view in which the President offered me the appointment ad interim he confined himself to very general terms, and I gave him no defi- nite answer. The second interview, which was on the afternoon of the 30th, not the 31st, was the interview during which he made the points which I have testified to. In speaking he referred to the constitutionality of the bill known as the civil tenure-of-offiee bill, I think, or the tenure of civil-office bill; and it was the constitutionality of that bill which he seemed desirous of having tested, and which, he said, if it could be brought before the Supreme Court properly, would not stand half an hour. We also spoke of force. I first stated that if Mr. Stanton would simply retire, although it was against my interest, against my desire, against my personal wishes, and against my official wishes, I might be willing to undertake to administer the office ad interim. Then ho supposed that the point was yielded ; and I made this point, " Suppose Mr. Stanton do not yield?" He answered, "Oh! he will make no objection ; you present the order, and he will retire." I expressed my doubt and here- marked, " I know him better than you do ; he is cowardly." I then begged to be excused from giving him an answer to give the 'subject more reflection, and I gave him my final an- swer in writing. I think that letter, if you insist upon knowing my views, should come into evidence, and not parol testimony taken up; but my reasons for declining the office were mostly' personal in their nature. Mr. JOHNSON. Mr. Chief Justice, with the permission of the Senate I desire to correct a, mistake of fact. I thought General Sher- man said the 31st, but it is the 30th of Janu- ary, and therefore 1 desire to have that correc- tion made in my written question. The CHIEF JUSTICE*. If there be no ob- jection that correction will be made. The 30th will be substituted for the 31st in the record of the question of the Senator from Maryland. Mr. HENDERSON. I desire to ask the witness a question which I send to the Chair in writing. The CHIEF JUSTICE. The Secretary will read the question of the Senator from Missouri. The Secretary read as follows : Bid the Prosident, on either of the occasions al- luded to, express to you a fixed resolution or determ- ination to remove Stanton from his office? The Witness. If by removal is meant a re- moval by force, he never conveyed to my mind such an impression ; but he did most unmis- takably say that he could have no more inter- course with him in the relation of President and Secretary of War. Mr. HOWARD. I wish to put a question to the witness. I send it to the Chair. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Michigan. The Secretary read as follows : . You say the President spoke of force. What did he say about force ? The Witness. I inquired, "Suppose Mr. Stanton do not yield, what then shall be done?" " Oh," said he, " there is no neces- sity of considering that question ; upon the presentation of an order he will simply go away," or "retire." Mr. HOWARD. Is that afull answer to the question? The Witness. I think it is, sir. Mr. HENDERSON. Mr. President, I de- sire to submit another question. I send it to the desk. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Missouri. The Secretary read as follows : Did you give any opinion or advice to the Presi- dent on either of those occasions in regard to the legality or propriety of an ad interim appointment; and if so, what advice did you give, or what opinion did you express to him ? Mr. Manager BINGHAM. Mr. President, we must object to that. Mr. Manager BUTLER. It has been over- ruled once to-day. I suppose the Senate means to adhere to some rule. The CHIEF JUSTICE. Do the honorable Managers object to the question being an- swered ? Mr. Manager BINGHAM and Mr. Manager BUTLER. We do. The CHIEF JUSTICE. The Chief Justice will put the question to the Senate whether the question proposed by the Senator from Mis- souri is admissible and should be put to the witness. The question being put, was determined in the negative. So the question propounded by Mr. Hender- son was decided to be inadmissible. Mr. STANBERY. If no other questions are sought to be put to General Sherman, I believe we are through with him. The CHIEF JUSTICE. Do the honorable Managers desire to put; any questions? Mr. Manager BUTLER. I did not know that the counsel for the President had anything to do with this examination. Mr. STANBERY. I have said we are through. We do not propose to argue that point. The CHIEF JUSTICE. Gentlemen, Gen- eral Sherman desires to know if you are through with him on both sides? Mr. Manager BINGHAM. We may desire to recall the Lieutenant General to-morrow. The Witness. I have a summons to appear before your committee to-morrow. Mr. EVARTS. We must insist, Mr. Chief Justice, that the cross-examination must be finished before the witness is allowed to leave the stand. Mr. Manager BINGHAM. We do not pro- pose to make any cross-examination at pres- ent. Mr. EVARTS. No cross-examination "at present I" We insist that the cross-examina- tion must be made now, if it is to be made at all. The CHIEF JUSTICE. Undoubtedly that is the rule. Mr. Manager BINGHAM. We submit that the gentlemen themselves on Saturday made an appeal for leave to recall the witness ; and for myself, and as I understood it to be for my associate Managers, I made no objection. It is for the Senate to determine whether we shall recall him to-morrow. Mr. EVARTS. We have no desire to be strict about these rules, but we desire that they shall be equally strict on both sides. The CHIEF JUSTICE. Undoubtedly the general rule is that if the Managers desire to cross-examine they must cross-examine be- fore dismissing the witness ; but that will be a question for the Senate when General Sherman is recalled. Mr. Manager BUTLER. This witness has not been called now by the counsel, and there- fore we do not cross-examine at present about the matter inquired of by the court. The court's questions are all very well ; we can- not interfere with those ; we do not propose to do so. We will take our own course in our own way. Mr. EVARTS. Very well. Mr. Manager BUTLER. And let you know what it is when we get ready. R. J. Meigs recalled. By Mr. Stanbery : Question. Have you the docket of the supreme court of the District with you now ? Answer. I have. Question. Will you read the docket entries in the ease of the United States vs. Lorenzo Thomas ? Mr. Manager BUTLER. Is that evidence ? I have no belief that the docket entry of a court, until the record is made up, is anything more than v. minute from which the record may be extended. I directed that the record should be extended in this case for the use of the Senate. Mr. STANBERY. It is not a case in which any record was made, as the witness has already told us ; but it was a proceeding be- fore a judge at chambers, and the only entry on the books is the entry on the docket. The CHIEF JUSTICE. The witness will proceed, unless the question be objected to. Mr. Manager BUTLER. I have objected. Mr. Manager BINGHAM. We must object to the evidence as incompetent. The CHIEF JUSTICE. The counsel for the President will please state in writing what they propose to prove. The offer of the counsel for the President was reduced in writing in the form of a ques- tion to the witness, as follows : Have you got the docket entries as to the dispo- sition of the case of the United States vs. Lorenzo Thomas, and if so will you produce and read them? The CHIEF JUSTICE. The Chief Justice thinks that this is a part of the same transac- tion, and is competent evidence ; but he will SUPPLEMENT TO put the question to the Senate if any Seuator desires it. [After a pause.] The witness will answer the question. The Witness. The examining magistrate or the judge took ihe recognizance of General Thomas for his appearance on a subsequent day, and when that recognizance was taken it was put on the docket of the court, because there might be a scire facias upon it on one supposition, and there might be an indictment. Therefore it was put upon the docket of the court. Mr. STANBBRY. Read the docket entries. The Witness. The case is numbered 5711. "The United States t>s. Lorenzo Thomas: _ " Warrant for his arrest issued by Hon. Chief Jus- tice Cartter. on the oulhof E. M. Stanton, to answer the charge of high misdemeanor, in that ho did un- law;uily accept the appointment of the office of Sec- retary of War ad interim, February 22, ]868. "Warrant served by the marshal February 22, 18S8. " Recognizance for his appearance on the 26th instant, February 22, 1868. "Discharged by Chief Justice Cartter, on the mo- tion of the defendant's aounscl, February 26, 1868." Mr. STANBERY. That is all. The CHIEF JUSTICE. Do the honorable Managers desire to cross-examine this witness? Mr. Manager BUTLER. We have nothing to ask of this witness, sir. Mr. JOHNSON. I move that the court adjourn. Mr. STEWART. On that motion I call for the yeas and nays. The CHIEF JUSTICE. The Senator from Maryland moves that the Senate, sitting as a court of impeachment, adjourn until to-mor- row at twelve o'clock. On this question the yeas and nays are asked for. The yeas and nays were not ordered, one fifth of the Senators present not sustaining the call. The question being put on the motion to adjourn, there were, on a division — ayes 24, noes 18; and the Senate, sitting for the trial of the impeachment, adjourned until to-mor- row at twelve o'clock. Tuesday, April 14, 1868. The Chief Justice of the United States entered the Senate Chamber at twelve o'clock and five minutes p. m., and took the chair. The usual proclamation having been made by ihe Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives appeared and took the seats assigned them. The counsel for the respondent, with the ex- ception of Mr. Stanbery, also appeared and took their seats. The presence of the House of Representa- tives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. Washburne, the chairman of that committee, and accompanied by the Speaker and Clerk, entered the Senate Cham- ber, and were conducted to the seats provided for them. The CHIEF JUSTICE. The Secretary will read the Journal. Mr. STEWART.^ I move that the reading of the Journal be dispensed with. The CHIEF JUSTICE. If there be no objection the reading of the Journal will be dispensed with. The Chair hears no objection. Mr. S QMNER. I send to the Chair an order. The CHIEF JUSTICE. The Secretary will read the order. The Secretary read as follows: Ordered, In answer to the motion of the Managers, that, under the rule limiting the argument to two on asido unlessothcrwise ordered, such otherManagers and counsel as choose may print and file arguments at any time before the argument of the closing Man- ager. The CHIEF JUSTICE. If there be no objection the order will be considered now. Mr. CONNESS. I object, Mr. President. The CHIEF JUSTICE. Objection is made. The order will lie over for one day. Mr. SUMNER. I beg leave most respect- fully to inquire under what rule such an objec- tion can be made. The CHIEF JUSTICE. The Chief Jus- tice stated on Saturday that in conducting the business of the court he applied, as far as they were applicable, the general rules of the Sen- ate. This has been done upon several occa- sions, and when objection has been made orders have been laid over to the next day for con- sideration. Mr. SUMNER. Of course it is not for me to argue the question ; but I beg to remind the Chair of the rule under which this order is moved. The CHIEF JUSTICE. It will lie over. Gentlemen of counsel for the President, you will please proceed with the defense. Mr. EVARTS. Mr. Chief Justice and Sen- ators, it is our misfortune to be obliged to state to the court that since the adjournment yester- day, and not coming to our knowledge until just before we came into court this morning, our associate, Mr. Stanbery, is prevented by illness, which confines him, wholly from attend- ing upon the court to-day. I have seen him, and have learned the opinion of his physician that he will undoubtedly, in expectation, be able to resume his duty within forty-eight hours, and there may be some hope that he will be able to do so by to-morrow. In the suddenness of thisknowledge to us, and in the actual arrange- ment in reference to the proofs, it would be very difficult forus, and almost impossible with any proper attention to the justice of the case, to proceed to-day ; and we suppose thatan in- dulgence, at least for the day, would lessen the chance of longer procrastination. The gentle- men of the Senate and the Chief Justice will be so good as to bear in mind that much of the matter to be produced in evidence is within the personal knowledge of our associate, Mr. Stanbery, and not within our own, and we have to say that the conduct of the proofs has been accorded to him. It is, of course, not pleasant for us, and not pleasant for Mr. Stanbery especially, that such an occasion as this should arise for the intro- duction of personal considerations ; but in our best judgment we can only present it to the court in the aspect that I have named, and sub- mit it to their discretion whether the facility and the indulgence that may be needed on our part should be limited to this day or whether it should extend over the two days that we suppose would assure the restoration of Mr. Stanbery to health. I saw Mr. Stanbery last evening, and, although he had been a little affected by a cold which he had contracted, I supposed him to be, as he supposed himself to be, in a condition of health that would permit him to go on as usual ; and it was only as we were preparing to come to court this morning that he himself was obliged to submit to the confinement of his physician and to inform us of his situation. Mr. DRAKE. Mr. President, I would ask a question of the counsel for the defense. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Missouri. The Secretary read the question, as follows: Cannot the day be occupied by counsel for tho re- spondent in giving in documentary evidence ? Mr. EVARTS. It cannot, as we understand the situation of the proofs and our duty in re- gard to them. Mr. HOWE. Mr. President, I move that the Senate, sitting as a court of impeachment, adjourn until to-morrow at twelve o'clock. The motion was agreed to. The CHIEF JUSTICE. The Senate, sitting as a court of impeachment, stands adjourned until to-morrow at twelve o'clock. Wednesday, April 15, 1868. The Chief Justice of the United States took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives and the counsel for the respondent, except Mr. Stan- bery, appeared, and took the seats assigned them respectively. The members of the House of Represent- atives, as in Committee of the Whole, pre- ceded by Mr. Washburxe, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were conducted to the seats provided for them. The CHIEF JUSTICE. The Secretary will read the Journal of yesterday's proceedings. The Secretary read the Journal of yester- day's proceedings of the Senate sitting for the trial of the impeachment. The CHIEF JUSTICE. The first business in order is the consideration of the order sub- mitted by the Senator from Massachuetts [Mr. Sdmnek] yesterday. Mr. S QMNER. I should like to have it reported. The CHIEF JUSTICE. The Secretary will read the order. The Secretary read as follows: Ordered, In answer to the motion of the Managers, that, under the rule limiting the argument to two on a side, " unless otherwise ordered," such other Man- agers and counsel as choose may print and file argu- ments at any time before the argument of the closing Manager. The CHIEF JUSTICE. The question is on agreeing to the order. Mr. EDMUNDS. I move to amend the order so that it will read, "May print and file arguments at any time before the argument of the opening Manager shall be concluded," in order that the counsel for the defense may have an opportunity to see what arguments they are to reply to. Mr. SUMNER. I have no objections to that. Mr. JOHNSON. I ask for the reading of the order as proposed to be amended. The CHIEF JUSTICE. The Secretary will read the order. The Secretary. The order submitted reads as follows : Ordered, In answer to the motion of the Managers, that, under tho rule limiting the argument to two on a side, unless otherwise ordered, such other Man- agers and counsel as choose may print and file argu- ments atany time before the argument of the closing Manager. It is proposed to strike out the words "ar- gument of the closing Manager" and insert "argument of the opening Manager shall be concluded." Mr. EVARTS. Mr. Chief Justice, may we be allowed to make a suggestion in reference to this order? The CHIEF JUSTICE. Certainly. Mr. EVARTS. The amendment offered and accepted places, I suppose, the proper re- striction upon the arguments to be furnished in print on the part of the Managers. That puts the matter in proper shape, I suppose, as regards the printed briefs that may be put in on the part of the Managers ; that is to say, that they shall be filed before we make our re- ply. On our part, however, it would be proper that we should have the liberty of filing the briefs at any time before the closing Manager makes his final reply, as a part of our new briefs may be in reply to the new briefs that are put in on the part of the prosecution. Mr. Manager BINGHAM. Mr. President and Senators, I desire to say, in regard to the remark which has just been made by the hon- orable gentleman on behalf of the accused, that it would seem, if the order be entered as he suggests, that additional arguments made by counsel on behalf of the President need not be filed until the close of the arguments on behalf of the accused made orally to the Senate, the repliantonbehalfofthe Congress of the United States and of the people would have no oppor- tunity to see those arguments not delivered, and therefore could not reply to them. I would suggest that the order as it stands is right. It gives the counsel for the President the oppor- tunity to review what may be filed before they argue, and it gives the counsel for the people the opportunity to review before he argues whatever may be filed here on behalf of the President. THE CONGRESSIONAL GLOBE. 175 Mr. EVARTS. Undoubtedly there are in- conveniences in this enlargement of the rule, however applied ; but there seems to be an equality in -requiring each side to furnish its arguments in time to have replying counsel answer them ; and the same rule upon my sug- gestion would be applied to us that by this present amendment is applied to the Managers for the impeachment, for they are not required to file their additional briefs except at the very moment that they close their oral argument, and then we are obliged to commence our oral argument. Mr. NELSON. Mr. Chief Justice and Sen- ators, I desire to say on this motion that it was agreed between the counsel for the President that the three of our number who have hitherto managed the case should take upon themselves the continuous management and the argument of the case before the Senate. In consequence of theimputation made by the Managers, that we desired unnecessarily to consume the time of the Senate, those of us who, under this arrange- ment, had not intended to argue the cause did not intend, either by ourselves or through others, to make any application to the Senate for an enlargement of the rule ; but, inasmuch as that application has been made in behalf of the Managers, I desire to say to the Senate that if we are permitted to argue the cause I think it would be more fair to the two counsel who did not expect to argue the case to permit us to make an extemporaneous argument be- fore the Senate. We have not made any prep- aration whatever in view of written arguments. We suppose, though we do not know how the fact is, that the Managers on the part of the House, who have had this subject before them for a much longer period than we have had, are much more familiar with this subject and are better prepared with written addresses than we are, so that if the rule is to be extended I respectfully ask the Senate to allow us to ad- dress the Senate in such mode, either oral or written, as we may desire. I beg leave to say to the Senate that while I do not, speaking for myself, expect to be able to interest the Senate as much as the learned gentlemen to whom the management of the cause has been hitherto confided on the part of the President, yet, as I reside in the President's own State, as I have practiced my profession in his town, the town of his domicile, for the last thirty years, and as he saw proper to ask my services in his be- half, and as I fully concur with him in the leading measures of his Administration I de- sire, if I am heard at all, to be heard in the mode which I have suggested. Mr. CONNESS. I offer the following as a substitute for the order now pending. The CHIEF JUSTICE. The Secretary will read the substitute proposed by the Senator from California. The Secretary read it, as follows : Strike out all after the word " ordered" and insert : That the twenty-first rule be so amended as to allow as many of the Managers and of the counsel for the President to speak on the final argument as shall choose to do so : Provided, That not more than four days on eachsideshall be allowed; but the Managers shall make the opening and the closing argument. Mr. DRAKE. On that question I ask for the yeas and nays. The yeas and nays were ordered. Mr. Manager BOUTWELL. I should like to have the substitute read once more. The CHIEF JUSTICE. The Secretary will read the proposed substitute. The Secretary again read it. The CHIEF JUSTICE. Does the honor- able Manager desire to address the Senate? Mr. Manager BOUTWELL. No, sir. The CHIEF JUSTICE. The question is on the substitute proposed by the Senator from California. The Question being taken by yeas and nays, resulted" — yeas 19, nays 27; as follows : YEAS— Messrs. Cameron, Conness, Gragin, Dixon, Doolittle, Fowler, Harlan, Henderson, Hendricks, McCreery, Patterson of Tennessee. Ramsey. Sherman, Stewart. Trumbull, Van Winkle, Willey, Wilson, and Yates— 19. NAYS— Messrs. Anthony. Buckalew, Cattell.Chand- ler, Colo, Conkling, Davis, Drake. Edmunds, Ferry, Frelinghuysen, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Patter- son of New Hampshire, Pomeroy, Ross, Saulsbury, Sumner, Thayer, Tipton, Vickers, and Williams— 27. NOT VOTING— Messrs. Bayard, Corbett, Fessen- den, Grimes, Norton, Nye, Sprague, and Wade — 8. So the substitute was rejected. Mr. DOOLITTLE. Mr. Chief Justice, I prefer altogether oral arguments to these printed ones, and I submit the following as a substi- tute, understanding that there are six Man- agers on the part of the House and four counsel for the respondent. ["Order!" "Order!"] I have drawn an order which — ["Order!" " Order 1"] The CHIEF JUSTICE. Order! There can be no debate. Mr. DOOLITTLE. Which I ask to have The CHIEF JUSTICE. The Secretary will read the amendment proposed by the Senator from Wisconsin. The Secretary read as follows: Strike out all after the word "ordered" and in- sert: That upon the final argument two Managers of the Houso open, two counsel for the respondent reply; that two other Managers rejoin, to be followed by two other counsel for the respondent; and they, in turn, to be followed by two other Managers of the House, who shall conclude the argument. Mr. DRAKE. I move the indefinite post- ponement of the whole proposition, together with the substitute. The CHIEF JUSTICE. The Senator from Missouri moves the indefinite postponement of the order and the proposed substitute. Mr. SUMNER. Let us have the yeas and nays on that. The yeas and nays were ordered ; and .being taken, resulted — yeas 34, nays 15; as follows: YEAS — Messrs. Anthony. Buckalew, Chandler, Cole, Conkling. Conness. Corbett, Davis, Dixon, Drake, Edmunds, Ferry, Fessenden, Grimes, Harlan, Henderson, Hendricks, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Mor- ton, Patterson of New Hampshire, Pomeroy, Ross, Saulsbury, Sherman, Stewart, Thayer, Tipton, Wil- liams, and Yates — 34. NAYS— Messrs. Cameron, Cattell, Crauin, Doo- little, Fowler, Frelinghuysen, McCreery, Patterson of Tennessee, Ramsey, Sumner, Trumbull, Van Winkle, Vickers. Willey, and Wilson— 15. NOT VOTING— Messrs. Bayard, Norton, Nye, Sprague, and Wade— 5. So the order and substitute were indefinitely postponed. Mr. FERRY. I now submit an order on which I desire action. The CHIEF JUSTICE. The Secretary will read the order proposed by the Senator from Connecticut. The Secretary read as follows : Ordered, That tho twelfth rule be so modified as that the hour of the day at which the Senate shall sit upon the trial now pending shall be, unless other- wise ordered, at eleven o'clock forenoon; and that there shall be a recess of thirty minutes each day commencing at two o'clock p. m. The CHIEF JUSTICE. This order is for present consideration unless objected to. The CHIEF JUSTICE put the question, and declared that the noes appeared to have it. Mr. THAYER, Mr. DRAKE, and others called for' the yeas and nays, and they were ordered ; and being taken, resulted — yeas 24, nays 26 ; as follows : YEAS— Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Ramsey, Sherman, Stewart, Sumner, Thayer, Williams, and Wilson— 24. NAYS— Messrs. Anthony, Bayard, Buckalew, Da- vis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson. McCreery, Morton, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy. Ross, Saulshury, Tipton, Trum- bull. Van Winkle, Vickers, Willey, and Yates— 26. NOT VOTING— Messrs. Norton, Nye, Sprague, and Wade — 4. So the order was rejected. The CHIEF JUSTICE. Gentlemen of coun- sel for the President, please proceed with the Mr. EVARTS. Mr. Chief Justice and Sen- ators, although I am not able to announce, as I should be very glad to do, that our associate, Mr. Stanbery, had, according to his hopes, been able to come out to day, yet I am happy to say that he is quite convalescent, and cannot be long interrupted from giving the proper atten- tion to the proper conduct of the case. Under these circumstances, and from a desire to do whatever we may properly do in advancing the trial of the cause, we propose, with the per- mission of the court, to proceed to-day in putting in the documentary evidence, which will take a very considerable time, and prob- ably we shall not wish to be called upon to proceed with any oral testimony until to-mor- row, when we shall be happy to do so. Mr. C URTIS. Mr. Chief Justice, we desire to bring before the Senate the nomination sent by the President of the United States to the Senate on the 21st of February, as I am in- structed, of Hon. Thomas Ewing for the office of Secretary for the Department of War. We wish the executive clerk to be instructed to produce that, in order that we may put it in evi- dence. Mr." CONKLING. Mr. President, I beg to say that counsel is entirely inaudible here. Mr. CURTIS. My request, Senators, was that the executive clerk might be instructed to bring in and exhibit herein evidence the nom- ination sent by the President of the United States under the date of the 21st of February last, as I am instructed, the nomination of Hon. Thomas Ewing for the place of Secretary for the Department of War. The CHIEF JUSTICE. The Chief Justice is informed by the Secretary that the injunction of secrecy has not been removed from this proceeding. It will be necessary that it should be removed. Mr. JOHNSON. Does that apply to a nomination ? Mr. EDMUNDS. I ask unanimous consent to say, if I am permitted, on that point The CHIEF JUSTICE. If there be no objection, the Senator can proceed by unani- mous consent. Mr. EDMUNDS. I desire to say that under the new rules the fact of a nomination being made, it is provided, shall not be a secret com- munication, and hence I think there can be no impropriety in ordering the production of the paper. Mr. CURTIS. I was so instructed on inquiry, and supposed no motion to remove the injunc- tion of secrecy was necessary. Mr. SHERMAN. Mr. Chief Justice, if a motion is necessary, I will move that the execu- tive clerk be sworn as a witness in the case. Mr. EDMUNDS. With the consent of the Chief Justice I will read the fortieth rule, recently adopted : "All information or remarks concerning the char- acter or qualifications of any porson nominated by the President to office shall be kept a secret. But the fact that a nomination has been made shall not be regarded as a secret." The CHIEF JUSTICE. The executive clerk will be sworn. D. W. C. Clarke sworn and examined. By Mr. Curtis : Question. Will you state what documentyou have before you ? Answer. 1 have the original nomination by the President of Thomas Ewing, sen., to be Secretary for the Department of War. Question. Will you please to read it ? Answer. The witness read as follows : To tile Senate of the United States : I nominate Thomas Ewing, sen., of Ohio, to be Secretary for the Department of War. ANDREW JOHNSON. Washington, D. C, February 22, 1868. Question. On what day was that actually received by you ? Answer. On the 22d of February. Mr. CURTIS. Now, I desire to put in evi- dence, Mr. Chief Justice, a copy of the message of the President of the United States to the Senate of the United States, which bears date on the 24th of February, 1868. I have the printed copy, which is the authorized copy. I suppose it will not be objected that we have not obtained it from the proper source ? Mr. Manager BUTLER. The nrere vehicle 176 SUPPLEMENT TO of proof, Mr. President, will not be objected to; but the proof itself will be, for a very plain reason. It was after the President was im- peached by the House, and, of course, itisliis declaration attempted to be put in. A declara- tion by him, after he was impeached, whether made to the Senate or anybody else, it seems to us, cannot be evidence. Theexact order of time, if it may not be in the mind of Senators, was this: on the 21st of February a resolution was offered to the House of Representatives looking to the im- peachment of the President, bringing it before the House ; on the 22d it was acted upon and actually voted. Impeachment was actually voted on the 22d. Then intervened Sunday, the 23d. Any message sent on the 24th, there- fore, must have been known to the President to have been after the impeachment. Mr. CURTIS. It will be remembered that the honorable Managers put in evidence in the course of their proceedings a resolve passed by the Senate to which this message is a-response ; so that the question is whether the honorable Managers can put in evidence a resolve of the Senate transmitted to the President of the United States in reference to the removal of Mr. Stanton, and the Senate will refuse to re- ceive the reply which the President made to that resolve. That is the question which is now before the court. Mr. Manager BUTLER. I have only to say, Mr. President, that that is an argument to the prejudice, and not to the law. Suppose he offers his answer here to-day, is that to be re- ceived as evidence? This message is said to be the answer to the resolve of the Senate. I pray you to remember that our learned friends insist that the rules of law should govern. Will they dare to say to the Senate that they ever heard of a case where, after indictment of the criminal, the respondent was allowed to put in evidence his statement of his defense? If so, when is that right to cease? We put in the resolve because it was a part of the transaction of removing Mr. Stanton, made before the im- peachment was determined upon. We cannot put in his declarations down to to-day. That fs a familiar rule of law. They cannot. I only ask the Senate to consider of it as a precedent hereafter, as well as being a great wrong upon the people, that after they indict, if you use that word, after they impeach an officer, then he can send in a message which shall be taken as evidence for him. Mr. EVARTS. Mr. Chief Justice and Sen- ators, the learned Manager asks whether we dare do something. We have not been in the habit of considering the measure for the con- duct of forensic disputations to be a question of daring. We are not in the habit of applying such epithets to opponents, nor hitherto of re- ceiving them from them. The measure of duty of counsel to the law and the facts is the meas- ure we shall strive to obey, and not the measure of daring, if for no other reason for this: that on the rule of law and fact and evidence we might, perhaps, expect sometimes a superior- ity, but on the measure of daring, never. Now, this question arises thus: isthelearned Manager entirely right in saying that the im- peachment was voted on the 22d ? The 22d was Saturday, and, unless I am mistaken, the vote was not taken until Monday. Mr. Manager BUTLER. I was entirely right — on Saturday. The vote was taken on the 22d of February. Mr. EVARTS. That is, that articles should be brought in. The articles, however, were not voted until the 24th. Mr. Manager BUTLER. The articles could not be prepared until some time afterward. Mr. EVARTS. I am merely stating a fact, notcomplaining. They werefound soon enough. Now, it is said that because the vote that im- peachment should proceed was taken on the 22d that impairs the credit or the admissibility of the piece of evidence that is laid before the Senate. My learned associate has distinctly told the situation of the matter. Perhaps both of those transactions were public at the time, or were made public soon afterward. This message, the injunction of secrecy in respect to which has been removed, might be within the range of recourse on the'one side or the other for argument, and for the knowledge of the court. But our learned opponents have put in the language of the resolution of the Senate. Exactly what bearing that has as part of the res gestce of the removal of Mr. Stanton which had taken place so far as the criminality of the President was concerned before this resolution was passed by the Sen- ate it was not easy to see. It was, however, received as proper evidence. The one reason that we did not consider it objectionable was that we supposed, as a matter of course and of right, that this message, which is an answer to that resolution, upon the introduction of the topic by the resolution being offered in evidence, would be admissible in itself. We submit, therefore, that on every principle, both of law and of discretion, if it may be so said, in regard to the completeness of the record upon the point, this message of the President should be allowed to be read and given in evidence. Mr. Manager BUTLER. I simply desire to call the attention of the Senate to the fact that whether it is a matter of daring or professional knowledge, neither of the counsel has stated any possible precedent. I desire also to call the attention of the Senate to the fact, so that the counsel may never be in doubt hereafter, what was the legal effect of the resolution of the Senate in our minds, that we put in that resolution to show that, notwithstanding the resolution of the Senate served on the Presi- dent at eleven o'clock at night on the night of the 21st, he still went on and treated this Lorenzo Thomas as Secretary, and took him into his Cabinet consultation, and Lorenzo Thomas was recognized after that by him as the Secretary ad interim, and after that Lorenzo Thomas was breathing out his own designs to take possession of the office by force. It- was in order to show that the President of the United States was determined to disobey the law of the land, that it was known to him — the Senate served it upon him for the purpose of having him know it, and did not leave it to the slow channels of communication in print, but served a certified copy on him to stay his hand, and he refused to stay his hand. Now, can it be that a prepared argument after that, and after he was impeached by the House of Representatives, can be put in evi- dence? One ounce of action on his part in obedience to the law and the resolution of the Senate would have been a great deal better than pages of argument; but there was none. The gentlemen will not use the word "dare," for they would dare do all that good lawyers would dare do in favor of their client, but I will say the gentlemen have not shown a single legal position upon which this can stand. The CHIEF JUSTICE. The counsel for the President will please put in writing what they propose to prove. g Mr. Manager BUTLEIi, We have sent the Clerk to look at the House Journal to correct us if we are wrong. Mr. EVARTS. It will delay the question, then, somewhat. Mr. Manager BUTLER. The report of the committee was made on the 22d. All of us were of opinion that the resolution was passed on the 22d. We think we are right ; but we will make that certain. After the lapse of a few minutes — Mr. Manager BUTLER. We find, Mr. President, on examination, the state of the record is this •. that on the 21st of February a resolution was proposed for impeachment and referred to a committee; on the 22d the com- mittee reported, and that was debated through the 22d and into Monday, the 24th, and the actual vote was taken on Monday, the 24th. Mr. EVARTS. Late in the afternoon — five o'clock in the afternoon ; so that I was right in the fact. Is there any further objection made now? Mr. Manager BUTLEII. Certainly. Mr. Manager BINGHAM. I desire to state the reasons why we insist upon this objection. The House of Representatives, as appears by the Journal which has now been furnished us, on the22d of February, through its committee, reported " that Andrew Johnson be impeached of high crimes and misdemeanors." The dis- cussion proceeded on that day. On the day preceding, however, the 21st of February, it appeared that the Senate of the United States, as is already in evidence from the Journal of the Senate itself, proceeded to consider an- other message of the President of the United States, in which he had reported to the Senate that he had removed from the Department of War Edwin M. Stanton, then Secretary of War, by the previous action of the Seuate. The Senate having refused to concur in the suspen- sion, refused to acquiesce in the reasons as- signed by the President under the tenure of- office act. Having given the President notice thereof, the President thereupon proceeds, alter this notice, to remove him and to appoint a Secretary of War ad interim, in direct contra- vention of the express words of the act itself and of the action of the Senate. On that day, the 21st of February, the Senate, it seems, con- sidered the action of the President in this mat- ter of removal and in this matter of appoint- ment of the head of a Department in direct contravention of the prohibitions of existing law and of the action of the Senate under it. and the notice which it had served on the President. On that night, as the record also shows, the 21stof February, 1868, the Senateof the United States passed a resolution recitiug the action of the President in the premises, to wit, his removal of the Secretary of War, his appoint- ment of a Secretary ad interim, and declaring by solemn resolve that under the Constitution and laws of the United States the President had no power to make the removal or to make the appointment. That was the action of the Senate, which has been given in evidence here in support of the prosecution. Itwas all con- cluded, as the Senate will notice from what I have said, on the 21st and 22d of February, 1868. My impression is that the notice was served on the night of the 21st, but, that [ may not make a mistake in this matter, I say it was not served later than the 22d day of February. Now, what takes place? Here is a present- ment made on the 21stor22d day of February, 1868, against this President before the grand inquest of the nation, and he seeks to put in a declaration made after presentment made, which is certainly tantamount to a warrant for his arrest, for from that moment he was within the power of the people. Although he fted to the remotest ends of the earth he could never stop for a moment the progress of this inquiry to final judgment, although personal process never reached him. It is so provided in the text of your Constitution. It is to be challenged by no man. After these proceedings had been thus insti- tuted, two days after the fact of the action of the Senate and three days after the fact of his commission of the crime, he enters upon the task of justifying himself before the nation for a violation of its laws, for a violation of its Constitution, for a violation of his oath of office, for his defiance of the Senate, for his defiance of the people, by sending a message to the Senate of the United States on the 24th day of February, 1808. What is it, Senators? Is it any more than a volunteer declaration of the criminal, after the fact, in his own be- half? Does it alter the case in law? Does it alter the case in the reason or judgment of any man living, either within the Senate or out of the Senate, that he chose to put his dec- laration in his own defense in writing? The law makes no such distinctions. I undertake to assert it here, regardless of any attempt to contradict my statement, that there is no law that enables any accused criminal, after fhe fact, to make declarations, either orally or in writing, either by message to the Senate or a speech to a mob, to acquit himself or to affect THE CONGRESSIONAL GLOBE. 177 in any manner his criminality before the tri- bunals of justice, or to make evidence which shall be admitted under any form of law upon his own motion to justify his own criminal conduct. I do not hesitate to say that every author- ity which the gentlemen can bring into court regulating the rule of evidence in procedures of this sort is directly against the proposition, and for the simole reason that it is a written declaration made by the accused voluntarily, after the fact, in his own behalf. I read for the information of the Senate the testimony touch- ing this fact of the service of the notice of the action had by the Senate upon the conduct of the President whereof he stands acccused be- fore the Senate. It is as follows. On page 109 of the trial Mr. McDonald testified : " An attested copy of the foregoing resolution was delivered by me into the hands of the President of the United States at his offico in the Executive Man- sion atten o'clook p. m. on the 21st of February, 1868." . On the 24th of February, three days after- ward, he volunteers a written declaration which he now proposes to make evidence in his own behalf before this tribunal of justice. Of course it is evidence for no purpose whatever, except for the purpose of exculpating him from the criminal accusation preferred against him. It is for no other purpose. Senators will bear with me while I make a further remark. The proposition is to intro- duce his whole message, not simply what he says for himself, not simply the arguments that he chooses to present in the form of a written declaration, in vindication of his criminal con- duct, in violation of the clearest arid plainest provisions of law, and in direct defiance of the action of the. Senate and of the notice it had served on him on the night of the 21st of Feb- ruary ; but the Senate will bear with me when I say, what they do know, that this message reports the declarations of third persons, and of course the Senate are asked to accept these, too, as evidence in the trial of the accused at their bar. He reports in this message the declarations of third persons whom he has pleased to call his " constitutional advisers." He states their opinions. Without giving their language he gives the conclusions, and those conclusions are to be drawn before the Senate as matter of evidence, I beg leave to say here, in the pres- ence of the Senate, that there is no colorable excuse for the President or for his counsel coming before the Senate to say to them, whether it be communicated in his written message or otherwise, that he has any right to attempt to shelter himself for a violation of the laws of the country under the opinions of any member • of his Cabinet. The Constitution never vested his Cabinet counselors with any such authority, as it never vested the Presi- dent with authority to suspend the laws or to violate the-laws or to disregard the laws or to make appointments in direct contravention of (he laws, and in defiance of the final action of the Senate acting in express obedience to the requirement of the law. Mr. Manager BUTLER, (after examining the message. ) You are right. He reports the opinion of his Cabinet. Mr. Manager BINGHAM. I was aware that I was right. There is no colorable excuse for this proceeding. I say it with all respect to the learned counsel, and I challenge now the production of authority from any respectable court that ever allowed any man, high or low, official or unofficial, to introduce his own dec- larations, written or unwritten, made after the fact, in his defense. That is the point I take here. I beg the pardon of the Senate for having detained them so long in the statement of a proposition so simple, and the law of which is so clearly settled running through centuries. I submit the question to them. Mr. EVARTS. Mr. Chief Justice and Sen- ators^* — Mr. Manager BUTLER. Do we ever have the close hers? Mr. EVARTS. I dare say you have ; but I Rttppt.umii'wt — 1 9 also have the opportunity to speak. No ques- tion arises of my irregularity, I take it. Mr. Manager BINGHAM. No, no.« Mr. EVAHTS. Mr. Chief Justice and Sen- ators, the only apology that the learned Man- ager has made for the course of his remarks is the consumption of your time, and yet he has not hesitated to say, and again to repeat, that there is not a color of justification for the attempt of the President of the United States to defend himself or for the efforts that his counsel make. Mr. Manager BINGHAM. Will the gentle- man allow me to correct him ? I do not think the gentleman, intends to misrepresent me here. Mr. EVARTS. I do not misrepresent you. Mr. Manager BINGHAM. I did not say, then, if the gentleman pleases, that there was no colorable excuse for the President to at- tempt to defend himself or for his counsel to defend him. I did not say that. Mr. EVARTS. It all comes to the same thing. Everything that is attempted upon our view or line of the subject in controversy, un- less it conforms to the preliminary view that the learned Managers choose to throw down, is regarded as outside of the color of law or of right on the part of the President or his coun- sel, and so it is repeatedly charged. Now, if the crime was completed on the 21st of February, which is not only the whole basis of this argument of the learned Managers, but of every other argument upon the evidence that I have had the honor of hearing from them, I should like to know what application or relevancy the resolution passed by the Sen - ate on the 21st of February, after the act of the President, had been completed, and after that act had been communicated to the Sen- ate, has on the issue of whether that act was right or wrong? And if the fact that it is an ex- pression of opinion relieves the testimony from the possibility of admission, what was this but an expression of the opinion of the Senate of the United States in the form of a resolution regarding a past act of the President? There could be, then, no single principle of the law of evidence upon which this fact put in proof in behalf of the Managers could be admitted, ex- cept as a communication from this branch of the Government to the President of the United States of its opinion concerning the legality of his action : and in the same line and in immediate reply the President communicates to the Sen- ate of the United States, openly and in a proper message, his opinions concerning the legality of the act. What would be thought of the Gov- ernment that, in a criminal prosecution, by way of inculpating a prisoner*, should give in evidence what a magistrate or a sheriff had said to him concerning the crime imputed, and then shut the mouth of the prisoner as to what he had said then and there in reply? Why, the only possibility, the only argument for affecting the prisoner with criminality for what had been said to him, was that, unreplied to, it might be construed into admission or sub- mission ; and to say that the prisoner, when told "You stole that watch," could not give in evidence his reply, "It was my own watch, and I took it because it was mine," is precisely the same proposition that is being applied here by the learned Managers to this communica- tion back and forth between the Senate and the President. Mr. Manager BUTLER. A single word, Mr. President, upon that proposition. I think if any sheriff should say to a thief, "Sir, whose watch is that?" and the thief could not make a reply until four days afterward, after he was indicted, a written statement, then, as to whose watch it was, and putting in what his neighbors said about it, would never be received. I take the illustration ; it is a good one, an excellent illustration. A sheriff says to a prisoner, " Where did you get that watch ?" Four days afterward — after he has been in jail, after the indictment is being found against him, and while the court is in session, he sends an an- swer to the sheriff and says that answer must be given in evidence, and not only that, but he puts in that answer what everybody else said, what four or five men said to him, as is the case in this, message. He is not content with putting in his own answer, but he puts in the view of the Cabinet. Now, we object. If they will fetch the Cabinet here and let us cross- examine them and find out what they meanl when they gave him any advice, and how they came to give it to him, and under what cir cumstances they gave it to him, we shall have a different reply to make to that. But at pres ent we do not want them to put in (to carry Out the parallel) what, after he got into jail and consulted with the prisoners in the same room, he says was his answer, and what the prisoners who were with him said about it. Mr. EVARTS. Mr. Chief Justice and Sen- ators, every case is to be regarded according to its circumstances, and you will judge whether a communication from you to the President of the United States, communicated to him on the 22d of February Mr. Manager BUTLER. The 21st. Mr. EVARTS. I understood you to say that you could not say that. Mr. Manager BUTLER. Ten o'clock at night on the 21st. Mr. EVARTS. You got at it then. You did not have it before. Mr. Manager BINGHAM. I read it. Mr. EVARTS. Ten o'clock at night on the 21st the communication was sent to him. The Senate was not in session on the 22d, as I am informed, more than an hour, it being a holi- day, and this message sent in on Monday, Sun- day intervening, is not an answer according to the ordinary course of prompt and candid treaty between the Senate and President concerning a matter in difference, or an answer to impu- tation communicated to him. As for the simile of the President being in prison, we have removed that by showing that he was not impeached until five o'clock in the afternoon of Monday the 24th ; and as to the simile that the Cabinet were his fellow-prisoners in the same cell, the answer is that they have not been impeached at all. But we do not pursue these trivial illustrations. The matter is within the intelligence of the court, and must be dis- posed of by it. Mr. Manager BINGHAM. Mr. President and Senators, I desire to say, once for all, to the Senate that I have said no word, and in- tend to say no word, during the progress of this trial, that justifies the assertion of counsel for the President that I deny his right to make a defense either in person or by his counsel. What I insist upon here, and ask the Senate to act upon, is that he shall make a defense pre- cisely as unofficial citizens of the United States make defenses, according to the law of the land and not otherwise ; that he shall not after the commission of crime manufacture evidence in his own behalf, either oral or written, by his own declaration, and incorporate in it, too, the declarations of third persons and throw it upon the court as testimony. It has never been allowed in any respectable court in this country upon any occasion. When men stood upon trial for their lives they never were permitted after the fact to manufacture testimony by their own declarations, either written or un- written, and on their own motion introduce it in the courts of justice. I have another word or two to say in the light of what has dropped from the lips of the coun- sel. He has evaded most skillfully the point I took occasion to make in the hearing of the Sen- ate, that here is an attempt to introduce not only the written declarations of the accused in his own behalf after the fact, but the declarations of third persons, not under oath, and their conclusions reported in this message of the 24th of February, 1868. I venture to say that a proposition of the extent of this never was made before in any tribunal of justice in the United States where any man stood accused of crime, not simply to give his own declara- tions, but to report the declarations of third persons in his own behalf and throw them be- fore the Senate as testimony. 178 SUPPLEMENT TO One other remark. The gentleman seems to think that the President had a right to send a message to the Senate of the United States which" should operate as evidence. I concede .that the President of the United States has the right under the Constitution to communicate from time to time to the two Houses of Con- gress such matters as he thinks pertain to the public interest ; and if he thinks that is of the public interest he may do so ; but I deny that there is any colorable excuse (I repeat those words here) for intimating that the President of the United States, charged with the commis- sion of crime on the 21st of February, 1868, and proved guilty, I undertake to say, by his written confession , to the satisfaction of every intelligent and unprejudiced mind in and out of the Senate in this country, could proceed to manufacture a defense three days after the fact in the form of a message. That is the point I make on the gentleman here. He says "What importance, then, doyou attach to the action of the Senate." We attach precisely this importance to it: that the law of the land enjoined upon the Presi- dent of the United States the duty to notify the Senate of the suspension of this officer and the reasons therefor, and the evidence upon which he made the. suspension. The law of the land enjoined upon the Senate the duty to act upon the report of the President so made, together with his reasons and the evidence which he adduced, and come to a decision. In pursuance of the requirement of the second section of the tenure-of-office act the Senate of the United States, by an almost unanimous decision, came to the conclusion that the rea- sons furnished by the President and the evi- dence adduced by him for the suspension of the Secretary of War were insufficient, and in accordance with that law the Senate non-con- curred in the suspension. The law expressly provides that if they concur they shall notify the President. The law, by every intendment, provides that if they non-concur they shall notify the Secretary of War that he may, in obedience to the express requirement of the act, forthwith resume the functions of the office from which hehas been suspended. They did give him that notice. Why should they not notify the Executive that he may know with whom to communicate, and not be longer communicating with the Secretary of War ad interim, General Grant, who had been appointed, in accordance with the provisions of the act, Secretary of War ad interim in August," 1867? The gentleman, I trust, is answered as to the importance and propriety of introducing this evidence ; but there was further reason for it, to leave the President without excuse before the Senate and before the people for persisting in his unlawful attempt, in violation of the law of the land, to execute the duties of the office of the Secretary of War through another person than Edwin M. Stanton. It was his business to submit to the final decision of that arbiter con- stituted by the tenure-of-oflficeactto decide the question whether the suspension should become absolute or whether it should be rejected. But here is a man defying the action of the Senate, defying the express letter of the law, that the Secretary of War, in whose suspen- sion they had refused to concur, should forth- with resume the functions of that office, pro- ceeding with his conspiracy with Thomas to remove him and to confer the functions of this office upon another, regardless of the action of the Senate, regardless of the law regulating the tenure of civil offices, regardless of the Constitution, regardless of his oath, regard- less of the rights of the American people; and he winds up. the farce and the defiant guilt of which he stands convicted by act before the Senate with his written declaration, which is of no higher authority than his oral declara- tion, made three days after the fact, and asks the Senate to receive it as evidence. The CHIEF JUSTICE. There is, perhaps, Senators, no branch of the law in which it is more difficult to lay down precise rules than that which relates to evidence of the intent with which an act is done. In the present case it appears that the Senate, on the 21st of February, passed a resolution, which I will take the liberty of reading: " Wheroasthe Senate have received and considered the communication of the President stating that he has removed Edwin M. Stanton, Seoretary of War, and had designated the Adjutant General of the Army to act as Secretary of War ad interim : There- " Resolved by the Senate of the United States, That under the Constitution and laws of the United States the President has no power to remove the Secretary of War,.and to designate any other officer to perform the duties of the office ad interim." That resolution was adopted on the 21st of February, and was served, as the evidence before you sho*s, on the evening of the same day. The message which is now proposed to be in- troduced was sent to the Senate on the 24th day of February. It does not appear to the Chief Justice that the resolution of the Senate called for an answer, or that there was any call upon the President to answer from the Senate itself; and therefore he must regard the mes- sage which was sent to the Senate on the 24th of February as a vindication of the President's act addressed by him to the Senate ; and it does not appear to the Chief Justice to come within any of the rules which have been applied to the introduction of evidence upon this trial. He will, however, take pleasure in submitting the question to the Senate if any Senator desires it. [After a pause. ] If no Senator desires that the question be submitted to the Senate, the Chief Justice rules the evidence to be inad- missible. Mr. CURTIS. Mr. Chief Justice, we wish to put in evidence a table which has been com- piled in the office of the Attorney General, which will be found to be, I believe, a con- venience in the progress of the trial in the ex- amination of the documentary evidence which will be put in. Mr. DRAKE. Mr. President, we cannot hear the honorable counsel. Mr. CURTIS. I will endeavor to make myself heard. The CHIEF JUSTICE. If Senators will observe the rules of the Senate, and the gen- tlemen who are in the Chamber and the persons in the galleries will abstain from conversation, it will be much easier to hear the counsel. Mr. CURTIS. I will read the headings of thistable,sothat the nature of its contents may be perceived. It excludes all military aiid naval officers, all judges of the constitutional judiciary of the United States, all judges of the Court of Claims, all officers whose appoint- ment is vested in the President alone, the heads of Departments, or the courts of law, and all public ministers, consuls, and other agents of foreign intercourse. They are excluded, and with these exceptions "the following is an approximate list of all other executive and territorial offices of the United States now and heretofore established by statutory designation, with their respectivestatutory tenures." Then follows the list of officers the table con- tains. In the first place the date of the act of Congress by which the office was created, the volume and page of the Statutes-at- Large, and next comes the name or title of the office. The fourth column shows whether the tenure of the office was for a definite term. Then there is an- other column showing whether it was for a term definite "unless sooner removed," thefirstcol- uuin being for a definite term without any qual- ification whatever, the second column being for a term definite unless sooner removed, the third column for a term indefinite and not expressly during pleasure, and the fourth for a term in- definite, but expressly "during pleasure." Mr. Manager BUTLER. Before you put that in we wish to object. Mr. CURTIS. One moment. The names of the offices are given, and then there are carried out in these columns what tenure be- longs to each of them. Of course this is not offered as strictly evidence, but it has been compiled as a .table which it will be found very convenient to refer to in argument, but which it would be necessary to consult and turn over a great number of statutes of the United States in order to make use of or arrive at these re- sults. Here they are all brought under the eye, and we desire to have the table printed so that it may be used in argument by counsel on all sides. Mr. Manager BUTLER. I observe, Mr. President and Senators, that there is one im- portant column missing in this table, if it is to have any effect on anybody's mind, and that is a column showing whether the Senate was or was not in session at the, time any one of these officers was removed. Mr. CURTIS. It has nothing to do, allow me to say, Mr. Manager, with removals at all. It is the tenure of office merely. It has no bear- ing on any question of removal. It merely gives the statute tenures of these different offices; and there are no facts here stated ; everything is derived from the statutes. All that is in the table is derived from the statutes of the United States. Mr. Manager BUTLER. The difficulty that we find is that this is proposed to be made a portion of the evidence. It may be printed and appended to the argument of either gentleman or sent as argument to the table of any Sena- tor — precisely as (if I may use it as an illus- tration) I sent my brief — as an abstract from the laws ; but to offer it in evidence and to have it printed except in that way is what we object to. The reason for the objection must be ob- vious. Who has any surety that this is correct? The commissions are not kept by the Attorney General. They are in the Department of State. Mr. EVARTS. This has nothing to do with commissions. Mr. Manager BUTLER. Then this is a mere abstract of tire laws ? . Mr. EVARTS. That is what we have stated exactly. Mr. Manager BUTLER. Put it, then, in your argument. Why should yonr abstract of the laws be put in evidence any more than any- body else's? The difference is this : if either of my friends on the other side under their hand and upon their examination put in their brief an abstract of law I should believe that the law was exactly as it purports to be ab- stracted. But they do not claim that they have examined this table— that this is their work. It is done in the Attorney General's office. Now, I have not so much confidence in every- body in the Attorney General's office that I am willing to take his abstract of laws and have it put in these solemn proceedings. If Mr. Binckley, for instance, the Assistant Attorney General, should prepare any paper of this sort. I should look it over a great while before I should give it great weight, and, I think, the country would from their knowledge. If Mr. Stanbery, if either of the learned gentlemen before me, will examine this and say that from their examination it is correct, and they make it a part of their argument, I am content ; but until that is done I object to its going in evi- dence. Until that is done I object, and, as my associate says, we shall object then. It is not evidence in any form. Mr. EVARTS. Mr. Chief Justice and Sen- ators, there is but a word to be said on this subject. It imparts into the case no primary evidence. It can be verified by oath as being correctly or honestly made up, if that is re- quired. We upon our professional credit pre- sent it as in our belief a correct statement in a tabular form of the distribution of the statu- tory provisions concerning the tenure of office that are in force under the Government of the United States. Mr. Manager BUTLER. Allow me, without interrupting the gentleman, here to ask whether he has examined it so as to know of his own knowledge that it is so, because that will make a great difference to lny'mind. _ Mr. EVARTS. So presenting it, the ques- tion is, whether you will receive it as the pro- per and necessary tabular introduction to the documentary evidence concerning these differ- ent classes of offices in respect to the condact of the Government in filling or in vacating the THE CONGRESSIONAL GLOBE. 179 places. We did not expect an objection to be made, least of all upon so vague a notion as Mr. Binckley's political character, which we are not prepared to defend, and he is not pres- ent to defend himself. We submit it to the Senate. They can treat it, if you please, as a presentation by us now presently of the distri- bution of the offices of the United States ac- cording to statute, in order to introduce our practical and actuallegal testimony appropriate to each class. It is submitted to the discretion of the Senate. Mr. Manager BOUTWELL. Mr. President and Senators, this paper, upon examination, does not show that any person was ever ap- pointed to office or was removed from office. Mr. EVARTS. So we have stated, over and over again, that it comes out of the statutes bodily. Mr. Manager BOUTWELL. Then I am utterly unable to see how it can be regarded as testimony upon any issue that is before this tribunal. Mr. TRUMBULL. Mr. President, I move that the paper be printed as a part of the pro- ceedings of the Senate. Mr. EVARTS. That is all we desire. The CHIEF JUSTICE. It will bo neces- sarily printed, having been offered by the counsel for the President. The Chair will put the ques- tion, however. You who are of opinion that the paper be printed will say "ay;" those of contrary opinion will say " no." The motion was agreed to. The table thus ordered to be printed is as follows: Exclusively of all Military and Naval Officers; all Judges of the constitutional Judiciary of the United States ; all Judges of the Court of Claims; all Officers whose appointment is vested in the President alone : the Heads of Departments or the courts of law; and all public Ministers, Consuls, and other agents of foreign intercourse ; the following is an approximate list of all other Executive and Territorial Officers of the United States now and heretofore, by statutory designation, with their respective statutory tenure, namely : Date of act creating the office. Statutes- at-Large. Name or Title of Office. S 13 V > *j o "SB "* a a 11* ft Remarks. September 2, 1789.. March 3, 1857 March 14. 1864 September 2, 1789... September 2. 1789... September 2, 1789... August 6, 1846 March 3, 1863 September 2, 1789... February 20. 1863... March 14, 1864 May 8. 1792 February 23, 1795.... April 25,1812 March 3. 1817 March 3, 1817 March 3, 1817 March 3, 1817 July 2, 1836 March 3. 1817 May 29, 1830 March 3. 1849 June 3. 1864 July 1,1862...:. March 3, 1863 July 31, 1789 and March 2, 1799 March 2, 1799 March 3, 1809 May 10, 1800 May 10, 1800 September 24, 1789. September 24, 1789. September 24, 1789. March 1, 1823 May 28. 1830 March 3, 1851 March 3, 1863 July 1,1862 July 1. 1862 April 2, 1792..... and . January 18,, 1837 January 18, 1837 January 18, 1837 January 18, 1837 January 18, 1837 March 2. 1799 March 2, 1799 March 3, 1845 July 16, 1798 July 27. 1789 M»ch 3, 1853 July 4, 1864 July 4, 1864 July 11. 1862 August 7, 1789 August 7. 1789 August 7, 1789 March 26,1804 and March 3, 1805 March 3. 1805.. March 3, 1805.. March 3, 1805.. April 7. 1798 May 7, 1800 January 11, 1805.. February 3, 1809.. June 4, 1812 June 4, 181 2 June 4, 1812 March 2, 1819 March 2, 1819 March 2, 1819 , 65 220 26 65 65 65 59 761 65 6561 28/ 280 419 716 80 366 414 395 99 432 725 29-| 627 J 627 536 75 73 92 87 93 735 409 629 276 433. 433 246] 153J 133 133 133 133 700 700 794 6% 29 212 386 386 531 53 53 53 283~> 33l] 331 331 331 550 59 309 514 744 744 746 494 494 495 Secretary of the Treasury Assistant Secretary of tho Treasury., Additional Assistant Secretary of the Treasury- Comptroller Auditor Treasurer Assistant Treasurers Assistant Treasurers Register of Treasury Assistant Register .' Commissioner of the Revenue do. Purveyor of Public Supplier Commissioner of General Land Office Second Auditor Third Auditor Fourth Auditor Fifth Auditor Sixth Auditor Second Comptroller Solicitor of tho Treasury Commissioner.of Customs Comptroller of Currency Commissioner of Internal Revenue Deputy Commissioner of Internal Revenue. /Naval officer \ Collector of customs .'. do. Surveyor of customs Navy agent .... Receiver of public moneys for lands... Registerof Land Office District attorneys Marshals Attorney General Appraisers (for certain ports) Additional appraiser (for New York).. General appraiser Cashier of internal revenue Assessors of internal revenue Collectors of internal revenue /Director of Mint (Treasurer of Mint do. Assayer of Mint ■. 'Melter and refiner of Mint Chief coiner of Mint Engraver of Mint Captain revenue cutter , Lieutenants revenue cutter Engineers revenue cutter Directors of marine hospitals Secretary of State Assistant Secretary of State Commissioner of immigration Superintendent of immigration Judges and arbitrators under treaty of April 7. 1862 Governor of Northwest Territory Secretary of Northwest Territory Judges of Northwest Territory Governor of Territory of Orleans and Territory of Louisiana Secretary of Territory of Orleans and Territory of Louisiana Judges of Territory of Orleans and Territory of Louisi- ana > District attorney of Territory of Orleans and Territory of Louisiana Marshal of Territory of Orleans and Territory of Louisiana.. Officers for Territory of Mississippi Officers for Territory of Indiana Officers for Territory of Michigan Officers for Territory of Illinois. Governor of Territory of Missouri Secretary of Territory of Missouri Judges of Territory of Missouri. Governor of Arkansas Territory Secretary of Arkansas Territory Judges of Arkansas Torritory do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do.' do. do. do. do. do. do.. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. _ do. do. . do. - . do. . do. do. - do. do. do. do. do. This office was discontinued by act of April 8, 1802; reestablished by act of July 24. 1813; and finally abolished by act of December 23, 1817. Abolished by act of March 23, 1812. By act of May 15. 1820. 3 Statutes, 582, theso offices are limited to a term of four years, and the incumbents are declared to be removable therefrom at pleasure. Removable at pleasure. do. Tenure "during good behavior.' 180 SUPPLEMENT TO STATEMENT— Continued, Date of act creating the office. March 3, 1817 March 3, 1817 March 30, 1822 "..„, March 30, 1822 March 30, 1822 March 30, 1822 ;, March 30, 1822 March 3, 1825 April 20, 1836 April 20, 1836 April 20, 1836 April 20,1836 September 9, 1850 September 9, 1850. September 9, 1850 September 9, 1850 September 9, 1850 September 9, 1850 September 9, 1850 September 9, 1850 September 9, 1850 June 12, 1838 June 12, 1838 June 12, 1838 June 12, 1838 August 14, 1848 August 14, 1848 August 14. 1848 August 14, 1848 March 3, 1849 March.3, 1849 March 3, 1849 March 3, 1849 March 2, 1853 March 2, 1853 March 2, 1853 March 2, 1853....: May30,l854„ May 30, 1854 May 30, 1854 May 30, 1854 May 30, 1854 May 30, 1854 May 30, 1854 May 30, 1854 May 30, 1854 February 24, 1863 February 24, 1863 February 24, 1863 February 24, 1863 February 24, 1863 February 28, 1861 February 28, 1861 febriiary28,1861 ebruary 28, 1861 March 2, 186i: March 2, 1861 March 2, 1861 March 2, 1861 : March 2, 1861 March 2, 1861 March 2, 1861 March 2, 1861 March 3, 1863 March 3, 1863 March 3, 1863 March 3, 1863 May 26, 1864 May 26, 1864 May 26. 1864 May 26, 1864 May 26, 1864 May 18, 1796 March 3, 1803 April 29, 1816 March 3, 1823 March 3, 1831 June 12, 1838 September 27, 1850. March 3, 1851 and March 3, 1853 July 17, 1854 July 22, 1854. July 22, 1854. February 21, 1855... February 28, 1861... March 2, 1861 March 2, 1861 March 3, 1817 May 26, 1864 July 4, 1836 March 2, 1861 July 9, 1832 April 16, 1818 April 16, 1818 March 3, 1819 March 3, 1819 May 6, 1822 June 30, 1834 June 30. 1834 March 3, 1837 June 5, 1850 June 5, 1850 Stalntes- at-Large. Name or Title of Office. 372 8 655 656 656 656 126 11 11 13 14 447 448 449 450 450 453 453 455 456 236 236 237 238 324 324 326 327 404 404 406 406 173 173 175 176 278 278 2-90 281 281 284 284 286 287 665 665 172 172 174 175 239 240 241 242 210 210 212 213 809 12 809 12 811 12 812 13 86 13 86 13 88 13 89 13 89 1 464 2 233 3 325 3 755 4 492 6 243 9 496 9 617) 10 244 f 10 306 10 808 10 309 10 611 12 176 12 214 12 244 3 375 13 R9 5 117 12 246 4 564 3 428 3 428 3 514 3 519 3 683 4 735 4 735 5 183 9 437 9 437 Governor of Alabama Territory Secretary of Alabama Territory Governor of Florida Territory Seoretary of Florida Territory Judges of Florida Territory District attorneys of Florida Territory Marshals of Florida Territory .'„.'„ Keepers of archives of Florida Territory!."! Governor of Wisconsin Territory Secretary of Wisconsin Territory Chief justice and associatejiidges. ........ Attorney and marshal.....: Governor of Territory of New Mexico.'..'."'.'.'.!!!!!'.!!! Secretary of Territory of New Mexico Chief justice and associate justices.^... Attorney for Territory of New Mexico Marshal for Territory of New Mexico Governor of Utah Territory Secretary of Utah Territory !!!!!!!!!!!!!!.!! Chief and associate justices ! Attorney and marshal .'.'..!" Governor of Iowa Territory !!! Secretary of Iowa Territory !...!!!!!.!!!! Chief and associate justices !.!!.!!!! Attorney and marshal ! Governor of Oregon Territory...!!!!!! Secretary of Oregon Territory .....!!!!!!!!!!!!'!"' Chief and associatejustices.. Attorney and marshal ;!!. " Governor of Minnesota Territory...!!.!!!! Secretary of Minnesota Territory...! Chief and associate justices.' ." : !! Attorney and marshal !!!!!."!! Governor of Washington Territory..!.! Secretary of Washington Territory.... Chief and associate justices. Attorney and marshal Governor of Nebraska Territory....." Seoretary of Nebraska Territory Chief and associate justices Attorney for Nebraska Territory .' Marshal for Nebraska Territory 1 Governor of Kansas Territory... Secretary of Kansas Territory !!!!!!!!!! Chief and associate justices.' "" Attorney and marshal '."[ Governor of Arizona Territory..!!!!!.!!!!!!!!!!!!!.! Secretary of Arizona Territory... Judges for Arizona Territory !!!!" Attorney and marshal Surveyor general of Arizona Territory!.!! Governor of Colorado Territory Secretary of Colorado Territory ;, Chief and associate justices Attorney and marshal Governor of Dakota Territory....!!!.!. Secretary of Dakota Territory !'. Chief and associate justices Attorney and marshal Governor of Nevada Territory !" Secretary of Nevada Territory .!!!!!!!! Chief and associate justices ! Attorney and marshal !!!!!!!! Governor of Idaho Territory Secretary of Idaho Territory !!...!!!!!!!! Chief and associate justices !!!!!!!!!'.! Attorney and marshal !!!!!!!!!!!!'!!' Governor of Montana Territory -...!!!!!!!!!!!! Secretary of Montana Territory !!.!!!!!! Chief and associate justices "" Attorney for Montana Territory .!!! Marshal for Montana Territory Surveyor general Surveyor of land south of Tennessee ! Surveyor for Territories of Illinois and Missouri'.' Surveyor for Territory of Florida Surveyor goneral for Louisiana Surveyor for Territory of Wisconsin Surveyor general for Territory of Oregon !!!!!! Surveyor general for California S ■a ■s •o do. Surveyor general for Washington Territory Surveyor general for N«.w Mexico Surveyor general for Kansas and Nebraska- Surveyor General for Utah Territory... SurVeyor General for Colorado Territory Suryoyor Goneral for Nevada Territory.. Surveyor General for Dakota Territory Surveyor for North Mississippi Territory Surveyor General for Montana Territory Commissioner pf Patents ; Bxaminer-in-chief of patents !.!...! Commissioner of Indian Affairs. ....!..'.!!!!' Superintendent of Indian trade Indian agents Indian agent !.'!!!..!!..'!!! Indian agent.. „. !!.!!!!!!!!!!!!!!!!*.'.!! Superintendent of Indian Affairs J!!!!!..'.'!' Superintendent of Indian Affairs Indian agents Indian agents ; Superintendent of Indian Affairs.!! .'!!!!!.'.'.' Indian agents do. do. do. do. do. do. do. do. do. do. do. do. do. do. s-o I n X O O do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. dj. do. do. do", do. do. do. do. do. do. do. do. do. dj. do. do. do. do. do. do. do", do. do. do. do. do. do. do. do. do. do. .STS Si do. do. do. do. do. do. do. do. do. do. do. do. do. !do. do. do. do, do. do. do. do. do. do. do. do. do. do. do. do. do. do. do, do. do. ■»■ Remarks. Act vests' appointment in the Presi- dent alone. Tenure " during good behavior." And until suoeessor qualified . And until successors Qualified. And until successors qualified. THE CONGRESSIONAL GLOBE. 181 STATEMENT— Continued. Date of act creating the office. StatuteS- at-Lttrgei Nanio o'r" title of Ofltcei J « •a 1 13 u o St •-a a 8 is ° «v, as a u • lis Soft a> ^ &o ■^ O o «^3 Z a .g-t a? • ° ~. p a 3 Kemarka. a 3 'o > 9 9 10. 10 11 11 12 12 12 12 13 13 4 4 5 5 1 9 3 10 12 1 1 1 1 1 1 2 4 5 10 1 12 12 1 1 10 11 12 12 12 5 5 5 5 5 5 9 12 12 13 13 13 4 5 10 12 12 13 14 12 13 14 12 13 12 2 9 2 12 10 11 13 12 13 9 586 586-7 3 700 81 185 113 130 130 489 39 40 622 779 187 369 597 3 341 324 30. 387 70 178 218 234 357 733 593 102 87 255 553 282 510 49 280 012 30 766 766 766 109 109 no 111 111 111 395 369 656 468 508 508 7741 147' 11 382 f 7701 382 J 434 287 431 74 376 12 403 1071 229/ 107 651 1090 42 195 1451 323/ 631 Superintendent of Indian do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. ao. • do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. do. See act February 27, 1851, See Oct February 27, 1851. Abolished, act— Abolished by aot of March 3, 1817. For four years, " unless sooner re- moved by the President." -" Shall hereafter be appointed," &c. Abolished by act of*- Abollshcd by set of— February 27, 1851 March 3, 1852 Superintendent of Indian March 3, 1855......; August 18, 1856 March 3, 1857 Superintendent of Indian Indian agents Juno 25, 1880 Superintendent of Indian February 8, 1801 i Julyl, 1862.-. April 8, 1864 Superintendent of Indian Indian agents j April 8, 1864...........;.. March 2. 1833 Commissioner of Pensions' Commissioner of Pensions Commissioner of Pensions Commissioner of Pensions Commissioner of Pensions Commissioner of Pensions Commissioner of Pensions. March 3, 1835 r March 3, 1837 March 4, 1840 January 19, 1849. April 29, 1816 Superintendent of Public ] Commissioner of Agrifinltri May 15, 1862, «,.... September 22, 1789... August 4, 1790 Postmaster General" Postmaster General Postmaster Gcnoral Postmaster General Postmaster General Postmaster General' Postmaster General Postmaster General. February 20, 1792,,. May 8, 1794 ; March 2, 1799...... April 30, 1810 Marck3, 1825 July 2, 1836 : March 3, 1853 Assistant Postmaster Secretary of the Nib Assistant Secretary c Genoi April 30,1798 July 31, 1861.... July 5, 1862.. Chiefs of Bureaus in Navy August 7, 1789 May 8, 1792 Accountant of War Depar Solicitor Court of Claims... February 24, 1855 ; Assistant solicitor Court of Solicitor Court of Claims- March 3, 1863 March 3, 1863 Assistant solicitor Court of Deputy solicitor Cohrt of C Principal clerk public land Principal clerk of private '. Principal clerk of Surveys Recorder of General Land Claims March 3, 1863..., July 4, 1836 s July 4, 1836 July 4< 1836. July 4, 1836 Office..... July 4, 1836 July 4, 1836 Secretary to sign Land Pat March 3 1849 March 14, 1862 .. Assistant Secretary of the Solicitor of War Departme Solicitor of Navy Departm Commissioner Freedmen's Assistant Commissioners o February 20, 1863 March 2, 1865 ., March 3, 1865 March 3, 1865 March 3, 1835 February 13, 1837 July 3, 1852 Superintendents, treasurers, and other officers of April 21, 1862 March 3, 1863 July 4, 1864 March 2, 1867 August 3, 1861 February 20, 1865 Assistant Secretary of Wai Second Assistant Secretary Commissioners to revise st Commissioners Emaucipati Warden of jail, District of Commissioners to codify la Justices of peace for Distr Register of wills, District t Register of deeds, District Commissioner (reciprocity Commissioner, dhief astr carry into effect treaty o] Commissioner (Hudson Ba: Commissioners under treat Commissioner California L of War June 27, 1866 April 16,1862 ..... on. District of Columbia..... February 19, 1864 May 20. 1862 ws, District of Columbia February 27, 1801...... May 17, 1848 February 27, 18(31 February 14, 1863 Treaty June 5, 1854... August 11, 1856 onomer and surveyor to June 15, 1846 June 27, 1864 February 20, 1861 Jdne 30, 1864 Match 3, 1851.. Mr. CURTIS. Mr. Chief. Justice, we now desire to pat in evidence rather in a more formal manner than has been done heretofore, although the substantial facts have been brought before the Senate, we believe, by the honorable Managers themselves, the proceedings which took place at the time of the removal of Mr. Pickering by Mr. Adams', accompanied by a certificate that the letters to and from various persons between the. 29th of June, 1799, and the 1st of May, 1802, have been for many years missing from the files of the Department of State. The correspondence itself', therefore, cannot be produced from the originals, or from copies of the originals, but no doubt they are correct, as those letters were read the other day by the honorable Managers from a volum e of Mr. Adams' s works. They are the same letters. The letters are not here ; they are not in the Department ; but they are printed in that volume and Were read from the volume the other day. Mr. Manager BUTLER. _ Wait a moment. We are not certain about this. [After an ex- amination of the documents offered in evi- dence;] Do I understand the counsel for the President to say that these papers show any- thing different from what was shown by the \Itin n. ^^rs ? ' Mr. CURTIS. No. I stated that in substance the matter was now before the Senate, but we wanted the formal documents to be put in. Mr. Manager BUTLER. The only difficulty I find is this : that you do not put in all ; you do not put in what was done on the 12th of May as well as the 13th of May, 1800. Mr. CURTIS. We put in what there is here. Mr. EVARTS. You have already put in the other. Mr. Manager BUTLER. Very good. Mr. CURTIS. We offer these documents from the Department of State. Mr. Manager BUTLER. Very well. The documents thus offered in evidence are as follows : United States op America, Departm cnt of State : To all to whomtheae presents shall come, greeting : I certify that the document hereunto annexed is a 182 SUPPLEMENT TO yjj' true copy, carefully examined and compared with the original resolutionof the Senate, dated 13th May, 1800, and filed in this Department, confirming John Marshall, of Virginia, to be Secretary of State, and Samuel Dexter, of Massachusetts, to be Secretary of the Department of War. In testimony whereof I. William H. Seward, Sec- retary of State of the United States, have here- unto subscribed my name and caused the seal of the Department of State to bo affixed. Done at the city of Washington this 5th day of r i March, A. D. 1868, and of the independence 1 • °" J of the United States of America the ninety- second. WILLIAM H. SEWARD. United States of America, In Senate, May 13, 1800. The Senate proceeded to consider the message of the President of the United States of the 12th instant, a$id the nominations, contained therein, of (The Hon. John Marshall, esq., of Virginia, to be Secretary of State, in the place of the Hon. Timothy Pickering, esq., removed. The Hon. Samuel Dexter, esq., of Massachusetts, to be Secretary of the Department of War, in the place of the Hon. John Marshall, nominated for pro- motion to the office of State. Whereupon. . Resolved, That they do advise and consent to the appointments agreeably to the nominations respect- ively. Attest : SAMUEL A. OTIS, Secretary. The CHIEF JUSTICE. The executive clerk of the Senate desires to correct a state- ment made in respect to the nomination of Mr. Ewing. Mr. Clarke will make the cor- rection, i D. W. C. Clarke recalled. The Witness. I stated in my examination that the nomination of Mr. Ewing was brought to the Senate on the 22d of February. I did so in consequence of a memorandum which I found at the bottom of my sheet. I find, by investigation since, that I made that memo- randum from the fact that it was brought to the Senate Chamber on the 22d of February by Mr. Moore, but the Senate was not in ses- sion, and he returned with it to the Executive Mansion. He brought it up with one other message and the message of the President in relation to the removal of Mr. Stanton on the 24th, and it was then submitted to the Senate. By Mr. Curtis : Question. I want to see if I correctly under- stand you. I understand your statement now to be that Colonel Moore brought it and de- livered it to you on the 22d, but the Senate had adjourned? Answer. No, sir. He brought it up on the 22d; he did not deliver it to me. Question. He brought it? Answer. He brought it on the 22d, but the Senate was not in session, and he took it back to the Executive Mansion. Question. And on the 24th he returned, and then it was formally brought in? Answer. That is it. By Mr. Manager Butler : \ Question. How do you know that'he brought it here; of your own knowledge? Answer. Only by the information of Colonel Moore. Question. Then all you have been telling us is what Colonel Moore told you? Answer. Yes, sir ; that is, all in regard to the nomination. Mr. Manager BUTLER. Very well, sir; we do not want any more of Colonel Moore's information from you. Mr. CURTIS. We will call Colonel Moore. William G. Moore recalled. By Mr. Curtis : Question, (handing to the witness the mes- sage nominating Thomas Ewing, sen., as Sec- retary of War.) What is the document you hold in your hand? Answer. The nomination to the Senate of Thomas Ewing, sen., of Ohio, to be Secretary for the Department of War. Question. Did you receive that from the President of the United States ? Answer. I did. Question. On what day ? Answer. On the 22d day of February, 1868. Question. About what hour in the day ? Answer. I think it was after twelve o'clock. Question. And before what hour ? Answer. And before one. Question. Between twelve and one? Answer. Between twelve and one. Question. What did you do with it? Answer. By the direction of the President I brought it to the Capitol to present it to the Senate. Question. About what time did you arrive here? Answer. I cannot state definitely, but I pre- sume about a quarter past one. Question. Was the Senate then in session, or had it adjourned? Answer. It had, after a very brief session, adjourned. Question. What did you do with the docu- ment, in consequence? Answer. I returned with it to the Executive Mansion, after a visit to the House of Repre- sentatives. Question. Were you apprised before you reached the Capitol that the Senate had ad- journed? Answer. I was not. Question. What did you do with the docu- ment subsequently? Answer. I returned with it to the Executive Mansion, after having visited the House of Representatives. Question. Was anything more done with the document by you, and if so, when, and what did you do? Answer. I was directed by the President on Monday, the 24th day of February, 1868, to return and deliver it to the Senate. Question. What did you do in consequence? Answer. I obeyed the order. Cross-examined by Mr. Manager Butler : Question. Was that open and as it is now, or in a sealed envelope, when you took it? Answer. In a sealed envelope. Question. Did you put it in yourself ? Answer. I did not. Qkestion. Did you see it put in ? Answer. I did not. Question. How do you know what was in the envelope ? Answer. It was, I believe, the only message I brought that day ; I gave it to the clerk, who sealed it and handed it to me. Question.- And then did you unseal it again at all ; or did you examine it to see what was in it until you left it here on the 24th? Answer. I did not, to my recollection. Question. Did you show it to anybody here in the House on that day ? Answer. No, sir ; it was sealed. Question. Have you spoken this morning with Mr. Clarke here upon this subject ? Answer. He asked me upon what date I had delivered the message. I told him the 24th. Mr. CURTIS. I how offer in evidence, Mr. Chief Justice, a document which I desire to be read by the Clerk. Mr. Manager BUTLER. Allow me to see it before it is read. Mr. CURTIS. Certainly. [The document was handed to Mr. Manager Butler and examined by him.] Mr. Manager BUTLER. We have no ob- jection. The CHIEF JUSTICE. The Secretary will read the document. The Secretary read as follows : United States op America, Department of State: To all to whom these presents shall come, greeting : I certify that the document hereunto annexed is a true copy, carefully examined and compared with the original record of this Department, authorizing "John Nelson, Attorney General, to discharge the duties of Secretary of State ad interim until a suc- cessor to A. P. Upshur shall be appointed," and that this appointment was made during thesession of the Senate. I further certify that the confirmation by the Sen- ate of John C. Calhoun to succeed Mr. Kelson is a true copy of tho original filed in this Department. In testimony whereof I, William H. Seward, Sec- retary of Stato of the United States, have hereunto subscribed my name and caused the seal of the De- partment of State to be affixed. Done at the city of Washington the 6th day of r. „ 1 April, A. D. 1868, and of the independence of \_u. a. j £j 10 rj n it e( i. States of America the ninety- second. WILLIAM H. SEWARD. The Hon. John Nelson, Attorney General of the United States, will discharge the duticsof Secretary of State ad interim until a successor to the Hon. A. P. Upshur shall be appointed. Tho Department of State will be put in to mourning for the death of the Hon. Abel P. Upshur, late Sec- retary of State; and all foreign envoys and minis- ters of the United States, and otherofficers connected with the Department of State, whether at home or abroad, will wear the usual badges in token of grief and respect for his memory, during the period of thirty days from the time of receiving this order. February 29, 1844. JOHN TYLER, In Senate of the United Status, March 6, 1844. Resolved, That the Senate advise and consent to the appointment of John C. Calhoun, of South Caro- lina, to be Secretary of State in place of Abel P. Up- shur, deceased, agreeably to the nomination. Attest: ASBURY DICKINS. Secretary. Mr. CURTIS. I now offer in evidence another document, which I also wish to be read by the Clerk after it has been inspected. [The document was handed to the Managers.] Mr. Manager BUTLER. We have no ob- jection to this. The CHIEF JUSTICE. The Secretary will read the document. The Secretary read as follows : United States of America, Department of State: To all to whom these presents shall come, greeting : I certify that the document hereunto annexed is a true copy, carefully examined and compared with tho original record of this Department, authorizing Winfield Scott to act as Secretary of War ad interim, during the vacancy occasioned by the resignation of George W. Crawford, and that this appointment was made during the session of the Senate. I further certify that the confirmation by.the Sen- ate of Charles M. Conrad as Secretary of Wartflsuc- ceed General Scott is a true copy of the original filed in this Department. In testimony whereof I, William H. Seward, Sec- retary of State of the United States, have hereunto subscribed my name and caused the seal of the De- partment of State to be affixed. Done at the city of Washington this 6th day of [L. Sj April, A. D. 1868, and of the independence of the United States of America the ninety- second. WILLIAM H. SEWARD. I hereby appoint Major General Winfield Scott to act as Secretary of War ad interim during the va- cancy occasioned by the resignation of the Hon. George W. Crawford. MILLARD FILLMORE. July 23, 1850. [Extracts In Executive Session, Senate of the United States, August 15, 1850. Resolved, That the Senate advise and consent to the appointment of the following named persons agreeably to their nominations respectively : Charles M. Conrad, of the State of Louisiana, to be Secretary of War. Attest: ASBURY DICKINS. Secretary. Mr. CURTIS. I now offer in evidence three papers, all of which relate to the same trans- action. I have put them in an envelope, so that they may be kept together. [The papers were handed to the Managers and examined by them.] Mr. Manager BUTLER, (selecting one of the papers. ) We object to this memorandum. We do not object to the other papers. The memo- randum of Mr. Browning is not any better than anybody else's memorandum. Mr. CURTIS. It merely states a fact which appears by a comparison of the date of the commission with the date of the ad interim appointment. It is immaterial. Mr. Manager BUTLER. Very good. We have no objection to the other papers. The CHIEF JUSTICE. The Secretary will read the documents. Mr. CURTIS. We offer those which are not objected to. The Secretary read the documents,as follows: Department op the Interior, Washington, D. C, April 7, 1868. I, 0. H. Browning, Secretary of the Interior, do hereby certify that the annexed paper ir a true copy from the records of this Department. In testimony whereof I have hereunto subscribed r, a l my name and caused the seal of tho Depart- ■ " ment to be affixed the day and year abovo written. O. H. BROWNING, Secretary of the Interior. THE CONGRESSIONAL GLOBE. 183 [Copy.] Executive Mansion, Washington, January 10, 1861. I hereby appoint Moses Kclley to be acting Secre- tary of the Interior until other arrangements can be made in the premises. JAMES BUCHANAN. Mr. Manager BUTLER. May I ask the counsel if they have any record there of what became of the.Seeretary of the Interior at the time this acting appointment was made, whether he had resigned or ran away, or what? Mr. CURTIS. I am not informed. I can- not speak either from the record or from recol- lection. There was a commission sent up which has not yet been read. The Secretary read as follows : United States of America, Department of State : To all to whom these presents shall come, greeting: I oertify that the document hereunto annexed is a true copy, carefully examined and compared with the original record in this Department. In testimony whereof I, William H. Seward, Sec- retary of State of the United States, have hereunto subscribed my name and caused the seal of the De- partment of State to be affixed. Done at the city of Washington this 6th day of April A. 1)., 1868, and of the independence of 1l. S.I the United States of America the ninety-sec- ond. WM. H. SEWARD. Abraham Lincoln, President of the United States of America : To all who shall see these presents, greeting: Know ye, that reposing special trust and confidence in the patriotism, integrity, and abilities of Caleb B. Smith, of Indiana, I have nominated, and by and With the advice and consent of the Senate do ap- point, him to be Secretary of the Interior of the United States, and do authorize and empower him to execute and fulfill the duties of thatoffioe accord- ing to law. And tb have and to hold the said office with all the powers, privileges, and emoluments thereunto of right appertaining unto him. the said Caleb B. Smith, during the pleasure of the President of the United States for the time being. In testimony whereof I have caused these letters to be made patent and the seal of the United States to bo hereunto affixed. Given under my hand, at the city of Washington, the 5th day of March, in the year of our Lord [l. S.] 1861, and of the independence of the United States of America the eighty-fifth. ABRAHAM LINCOLN. By the President: William H. Seward, Secretary of State. Mr. CURTIS. I now offer in evidence a document which relates to the removal from office of the collector and appraiser of mer- chandise at the city of Philadelphia, and also a copy of the commissions issued to their suc- cessors. [The documents were handed to the Man- agers and examined by them.] Mr. Manager BUTLER. Our objection to this, Mr. President, is that this is not an act of any President or any person having author- ity to discharge officers. What is offered is a letter of one McClintock Young, acting Secre- tary of the Treasury, directed to the appraiser in Philadelphia, in which he recites a fact. That is what is offered in evidence — the act of McClintock Young, acting Secretary of the Treasury — which he writes to the collector of customs at Philadelphia, asking him to hand a letter to Richard Coe, Esq., saying that he is directed to say that he does not want his services any longer. I do not see how it bears on this issue. The fact that somebody was commissioned we do not object to ; but we do object to this letter of acting Assistant Secre- tary McClintock Young. Mr. CURTIS. Do you want evidence of the fact that he was acting Secretary? Mr. Manager BUTLER. No, sir; I have that fact among these commissions of my own. Mr. CURTIS. The documents are certified regularly by the Secretary of the Treasury as coming from the records of that Department. The documents themselves consist of two let- ters signed by McClintock Young, who it is admitted was the acting Secretary of the Treas- ury at the time when he signed these letters. We offer them in evidence to show acts of re- moval of these Treasury officers, the appraiser and the collector in Philadelphia, by the act of McClintock Young, acting Secretary of the Treasury, who says that he proceeds "by the direction of the President." Mr. Manager BUTLER. The difficulty we find is not removed. It is an attempt by McClintock Young, acting Secretary of the Treasury, to remove an officer by reciting that he is directed by the President so to do. If this is evidence, we have to go on and try the ques- tion of the right of McClintock Young to do this act, to see whether an appraiser is one of the ''inferior officers" that a Secretary of the Treasury may remove, or the President may remove without the advice and consent of the Senate ; we have to go into a new series of in- vestigations. It is not an act of the President ; it is not an act of the head of a Department ; and it is remarkable as the only case that can be found of the kind so far as we know; and if it was evidence at all, it would rather prove the rule by being the exception. Mr. CURTIS. I understand it to be admit- ted that McClintock Young was the acting Secretary of the Treasury. Mr. Manager BUTLER. Yes, sir ; I have his appointment. Mr. CURTIS. I take this act of his, there- fore, as if it had been done by a Secretary of the Treasury. Mr. Manager BUTLER. Yes, sir. Mr. CURTIS. He says that he proceeds by the order of the President, and I take it to be well settled judicially and practically that where ever the head of a Department says he acts by the order of the President he is presumed to tell the truth, and it requires no evidence to show that he acts by the order of the President. No such evidence is ever preserved, no record is ever made of the direction which the Presi- dent gives to one of the heads of Departments, as I understand, to proceed in a transaction of this kind. But when a head of a Department says ' ' by order of the President I say so and so" all courts and all bodies presume that he tells the truth. The CHIEF JUSTICE. The Chief Justice thinks that this evidence is admissible. The act of a Secretary of the Treasury is the act of the President unless the contrary be shown. He will pat the question to the Senate, how- ever, if any Senator desires it. [After a pause. ] The evidence is admitted. Do you desire to have it read ? Mr. CURTIS. If you please, your Honor. The Secretary read as follows : United States of Amerika, Treasury Department, April 7, 1868. Pursuant to the act of Congress of the 22d of Feb- ruary, 1849, 1 hereby certify that the annexed are true and correct copies from the records of this De- partment of the commissions issued to Richard Coe and Charles Francis Breuil, as appraisers of mer- chandise for the port of Philadelphia, in the State of Pennsylvania. In witness whereof I have hereunto set my hand and caused the seal of the Treasury Depart- [l. s.] ment to be affixed on the day and year first above written. H. McCULLOCH, Secretary of the Treasury. Mr. CURTIS. It is only necessary to give the dates of those commissions ; you need not read them at large. The Secretary. The commission of Rich- ard Coe is dated the 25th day of June, 1841 ; the commission of Charles Francis Breuil is dated the 30th day of August, 1842. Mr. CURTIS. Now read the letters. The Secretary read as follows : Treasury Department, August 17, 1842. Sir : I am directed by the President to inform you that your services as appraiser of merchandise for the port of Philadelphia are no longer required. I am, very respectfully, &c, . McCLINTOCK YOUNG-, Acting Secretary of the Treasury. Richard Coe, Appraiser of Merchandise, Philadelphia. Treasury Department, AugustVl, 1842. Sir: I have to request that you will deliver the inclosed letter to Richard Coe, Esq., appraiser at Philadelphia. I am, ko., . McCLINTOCK YOUNG, Acting Secretary of the Treasury. Collector of the Customs, Philadelphia. Mr. CURTIS. I now offer in evidence documents from the Navy Department. [The documents were handed to the Man- agers for examination. 1 Mr. STEWART, (aftwo o'clock and fifteen minutes p. m.) I move that the Senate take a recess for fifteen minutes. Mr. SUMNER. I move an amendment to that, that business be resumed forthwith after the expiration of fifteen minutes. The CHIEF JUSTICE. The Chief Justice, before putting the question on that amendment, begs leave to remind Senators how extremely difficult it is to resume the business of the Sen- ate unless the Senators are present. The Chief Justice will put the question on the amend- ment. The amendment was rejected. The CHIEF JUSTICE. The question now is on the motion of the Senator from Nevada. The motion was agreed to. The CHIEF JUSTICE resumed the chair at the expiration of fifteen minutes, but there not being many Senators present business was not resumed till two o'clock and forty-five minutes p. m.,when the Chief Justice said: Senators will please give their attention. Counsel for the President will proceed with the defense. Mr. Manager BUTLER. At the adjournment I was about objecting to the papers offered from the Navy Department. The ground of my objec- tion is this : the certificate appended does not certify them to be copies of records from the Navy Department, but simply certifies "that the annexed is a true statement from the rec- ords of this Department" signed by " Edgar T. Welles, chief clerk," and then there is an attestation that he is chief clerk. Then the heading of the paper is "memoranda," so that the paper is not an official copy of the record, but is a statement made up by the chief clerk of the Navy Department of certain matters which he has either been asked or volunteered to do ; and the difficulty about it is that it is informal, and they leave out here many of the things which are necessary to ascertain what bearing this has on the case. For instance, Thomas Eastln, Navy agent at Pensacola, it is stated, was, on the 19th of December, 1840, dismissed by direction of the President for failing to render his accounts and Purser So-and-So was ordered to take his place. It does not appear what then was done, whether the Senate 1 was in session and whether the President sent at the same mo- ment an appointment to the Senate. All that appears is that on the 29th of April, 1841, the President appointed Jackson Morton, Navy agent at Pensacola. He might have sent in Jackson Morton's name at the very moment that he dismissed this man. Nov, constat ; it does not appear at all. I only put this as an illustration. These are not copies of records, but they are certified to be a statement made up from the records by somebody not under oath, and who has no right to make statements, and they are wholly illusory. Occasionally there are memoranda in pencil upon these papers made by other persons. Mr. CURTIS. We can apply India-rubber there, and that would remove that objection. Mr. Manager BUTLER. Yes, sir. The difficulty is not so much what is stated here as what is left out. Everything is left out that is of value to the understanding of this case. Here are memoranda made up from the records that A B was removed, but the circumstances under which he was removed', who was nomin- ated in his place, and when that person was nominated do not appear. It only appears that somebody was appointed at Pensacola. Mr. JOHNSON. Are the dates given, Mr. Manager? Mr. Manager BUTLER. The dates are given in this way : it is stated that on the 19th of December, 1840, a person is removed, and then on the 6th of January one Johnston was informed that he had been appointed. He must have been nominated and gone through the Senate and been confirmed in the mean- time. Non constat but that he was nominated . at this very moment; and if he was nominated at the very moment the other man was re- moved, the value of it is gone as a precedent. Then Johnston was lost on the voyage, and on the 29th of April, 1841, another man was 184 SUPPLEMENT TO appointed; but the whole value, I say, is gone because they have not given us the record; they have only given us memoranda, and it is so stated, "memoranda of records." Who has any commission to make memoranda from the records for evidence before the Senate? And then in the certificate the word "copies" is stricken out, and the words are written in : " A true statement of the records " — a state- ment such as Mr. Edgar T. Welles chooses to make, or such as anybody else chooses to make. I never heard before that anybody had a right to come and certify memoranda of records, and put it in as evidence. That is one paper. , Then the next paper, although it purports to contain true copies of records from the office, consists of nothing but letters about the ap- pointment and removal of officers, Navy agents again ; but being so removed and appointed only a portion of the correspondence is given us. When the nominations were sent in is not given us. I do not mean to say that my friends on the other side chose to leave anything out ; but whoever prepared this for them has chosen to leave out the material facts whether the Senate was in session, or whether other names were sent in. Now, the question is if you are going to take excerpts from the records. I want to call the attention of the Senate still further to the fact that all the officers who are covered by these papers they have offered are appointed under the act of May 15, 1820, for four years. That act provided that : *' Alt district attorneys, collectors of the customs, naval officers and surveyors of the customs, Navy agents, receivers of public moneys for lands, regis- ters of the land offices, paymasters in the Army, the apothecary general, the assistant apothecaries gen- eral, and the commissary general of purchases, to be appointed under the laws of the United States, shall be appointed for the term of four years, but shall be removable from office at pleasure." So that their very tenure of office settles it that they are removable "at pleasure," so en- acted by the law which creates them : and now the gentlemen are going to show that under 'jhat, in some particular instances, officers were removed at pleasure, but not to show how they were removed, the manner of their removal, and then to attempt to show that by memo- randa made by Edgar T. Welles, certified by Gideon Welles to be chief clerk. Is that evi- dence? Mr. CURTIS. I understand the substance of the objections made to these documents to be two. The first is that these are only mem- oranda from the records and not copies, not full and formal copies from the records. It is said that it is not proper to adduce in evidence such statements of the results shown by the records ; that instead of giving a table contain- ing the name of the officer, the office which he held, the day when removed, and the person by whose order he was removed there should be an extended copy of the entire act and all the papers relating to it. Well, in the first place, I wish the Senate to call to mind that the only document of this character relating to removals from office which has been put in by the honorable Managers is a document from the Department of State, which contains ex- actly this memorandum of facts: "Schedules. "List of appointments of heads of Departments made by the President at any time during the ses- sion of the Senate: "Timothy Pickering, Postmaster General, June 1, 1794. "Samuel L. Southard, Acting Secretary of tho Treasury, January 26. 1823." And so on. That is, it ia a list extracted out of the records in the Department of the Sec- retary of State containing the names of the officers, the offices they held, the date when they were removed, and the authority by which they were removed. Mr. JOHNSON. How is it certified? Mr. C CJRTIS. It is simply certified by the Secretary of State himself. Mr. Manager BUTLER. In what language? Mr. CURTIS. This is a copy which I hold in my hand, and I am not prepared to say how it is certified ; but it is in evidence, and can be seen. I think it will be found to be simply a letter from the Secretary of State saying that there were found on the records of his Depart- ment these facts, not any formal certificate of extracts from the records. If, however, the Senate should think that it is absolutely neces- sary, or, under the circumstances of this case, proper to require these certified copies of the entire acts, instead of taking the names, dates, and other particulars from the records in the form which we have thought most convenient, and which certainly takes up less time and space than the other would, we must apply for and obtain them. If there is a technical diffi- culty of that sort it is one which we must remove. Mr. JOHNSON. Will the counsel state what the act of Congress is which makes these certificates evidence ? Mr. CURTIS. There are several acts of Congress ; but in regard to the Navy Depart- ment, if I recollect aright, it is in effect that copies of the records and extracts from the records may be certified. I think that is the law. The substantial objection which the learned Manager undertook to state was that this paper which we now offer would be illusory, and the reason is, because, although it shows the name of the officer, the office he held, the fact of his removal, and the date of the removal, it does not show whether the Senate was then in session, and it does not show what the Presi- dent did in connection with or in consequence of that removal in the form of a nomination to the Senate. How can the records of the De- partment of the Navy show those facts? They appear here on your records, and we propose when we have closed the offer of this species of proof to ask the Senate to direct its proper officer to make a certificate from its records of the beginning and end of each session of the Senate from the origin of the Government down to the present time. That is what we shall call for at the proper time, and that will supply that part of the difficulty which the gentleman suggests. The other part of the difficulty which he suggests is, that it does not appear that the President did not fill up these removals by immediate nominations when they were made during the session of the Senate. It does not appear either way. If he desires to argue that the President did fill them up by immediate nominations, he will find the nomin- ations and put them in undoubtedly. The records of the Navy Department, from which this statement comes, can furnish no informa- tion on that subject, and therefore it is not defective in that particular. Mr. Manager BUTLER. The counsel for the President, I think, judge well, that when they can find that we have taken any particu- lar course that must be the right course and the one they Ought to follow. We certainly accept that as being the very best exposition of the law so far as we are concerned. But the difficulty is this: we offer testimony sometimes that is not objected to ; and I asked my learned friends, I think, in the case referred to, whether they objected to that evidence, and they made no objection. If they had, I might have been more formal ; but that does not meet the diffi- culty quite. The difficulty I find is that they go to the wrong sources of evidence. Evidence of the removal and appointment of officers and the affixing of the seal to commissions is to be sought for only in the State Department. No officer who is removed or appointed by and with the advice and consent of the Senate, who holds his commission under that tenure, can be appointed or can be removed without all the circumstances appearing in the State De- partment; and there is the place they should go for this evidence. If they would go to the State Department, they would get it all; they would find out when he was appointed, when he was removed, when his successor was ap- pointed, when he was nominated, and every- thing precisely as they have in the case of Mr. Pickering. Mr. CURTIS. Does tho honorable Manager understand that under the laws of the United States all these officers must be commissioned by the Secretary of State, and that the facts appear in his Department, including the officers under the Interior, the Treasury, the War, and the Navy Departments? Mr. Manager BUTLER. With the Bingle exception of the Treasury, I do. Mr. CURTIS. I do not. Mr. Manager BUTLER. I do so understand it, and it will so appear, I think. But at any rate when the gentleman takes these commis- sions he will find that the commissions all emanate with the seal of the United States and the signature of the Secretary of State upon thorn. The testimony that he offers is not the commissions of these officers ; and to show that that is the fact I onlyappeal to his own papers here. Instead of sending us the commissions of these officers, what is the evidence of the appointment? Navy Department, March 24, 1838. Sir: The President of the United States, by and with the advice and consent of the Senate, having appointed you Navy agent for four years from the 22d of March, 1838, I have the pleasure to inclose herewith your commission, dated the 24th of March, 1838 I am, respectfully, yours, M. DICKEBSON. Leonard Jarvis, esq., Navy Agent, Boston. The evidence that they give us of the ap- pointment is a letter of the Secretary, reciting the fact of the commission. If they had gone to the State Department they would hare foun d the record of the commission. Why I com- plain of it, and that is all the reason I complain of it, is that again it is illusory. If it was a mere matter of form I would not care about it. If my friend will tell me that they will put in the exact dates when these parties were nominated I shall have no objection ; bat tbey place either upon the Senate or upon me the burden of going to the records and looking up these dates and looking up the evidence to control their evidence. That is to say, the Senate allow them to put in memoranda of part of a transaction, and put upon the Man- agers of the House of Representatives the burden of going and looking up the rest of it. I say it is not right to do so ; that where they put in the transaction they ought to put in the whole record of the transaction, and then we can all see exactly what the transaction was. Mr. President, I have so much respect for my learned friends that whenever they state a matter of law as they stated it to the learned Senator from Maryland, that extracts from records might be certified, I am almost afraid to object ; but I beg leave to read from Bright- ly's Digest, the seventeenth section, on page 267, although it is a very bad practice to read from digests : '* All books, papers, documents, and records in the War, Navy, Treasury, and Post Office Departments, and t he Attorney General's office, may be copied and certified under seal in the same manner as those in the State Department may now by law be, and with the same force and effect, and the said Attorney Gen- eral shall Cause a seal to be made and provided for his office, with such device as the President of the United States shall approve." Mr. JOHNSON. What is the date of that act? Mr. Manager BUTLER. That act is dated February 22, 1849. Mr. JOHNSON. Thank you, sir. Mr. Manager BUTLER. And that act refers to the act of September 15, 1789, which pro- vides : " That all copies of records and papers in the office of the Department of State, authenticated under the seal of thoaaid Department, shall bo evidence equally as the original record or paper." I have not seen any statute which gives any right to certify extracts of records. If these were extracts of entire records they would do ; but these are memoranda; that is, the gloss, the interpretation, the collation, the diegetis of the clerk of that Department of the records. The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate. The Chief Justice put the question, and de- clared that the noes appeared to have it. Mr. SHERMAN. I call for the yeas and THE CONGRESSIONAL GLOBE. 185 nays. 1 think proof of this kind ought not to be kept out on a technical ground, Mr. HENDRICKS. I wish to inquire whether the objection on the part of the Managers re- quires that the entire documents relating to the subject in the Departments shall be produced ; whether the objection goes upon that proposi- tion? The CHIEF JUSTICE. The rule requires that u question asked by a Senator shall be reduced to writing. Mr. HENDRICKS. The question I asked was for information of the Managers them- selves, whether the objection goes upon the ground that the documents are not certified in 'ull? _ The CHIEF JUSTICE. If there be no ob- jection, the Senator from Indiana can put his question. Otherwise, the rule requires that it snail be in writing. Mr. Manager BUTLER. I did not under- stand the question. The CHIEF JUSTICE. The Senator from Indiana will repeat his question. Mr. HENDRICKS. The question which I wished answered by the Managers was whether it be required, in the progress of this trial, that the records shall be given in full so far as they relate to any particular question? Mr. Manager BUTLER. That is what we desire, or, otherwise, it sets us to looking up the same record. Mr. CONKLING. I wish to put a question to the counsel for the respondent, whieh I am reducing to writing, and will have prepared in a single moment. The CHIEF JUSTICE. The counsel will please reduce their proposition to writing. Mr. CONKLING. I beg the counsel for the respondent to answer the question which I send to the Chair. The CHIEF JUSTICE. The Secretary will read the question pr6posed by the Senator from New York. The Secretary read as follows : Do the counsel for the respondent rely upon any statute other than that referred to 1 Mr. CURTIS. I am not aware that there ig any other statute bearing on it. By ex- tracts from the records — of course I do not mean that any officer was authorized to state what he believed the substance of a record to be — I meant that he might extract out of the record a particular document. Mr. CONKLING. Provided it was a copy _ so far as it went. Mr. CURTIS. Provided it was a copy so far as it went. In that same connection, perhaps, I ought to state, Mr. Chief Justice and Senators, that we do not offer these documents as copies of the records relating to the cases which are named in the documents themselves. They are documents, as I stated at the beginning, of a similar character to that which the Man- agers put in, containing the substance of each case, the name, the date, the office, the fact of removal. It is true as the honorable Man- ager has said that, when he offered that he asked us if we objected. We said no ; for we knew it would take, perhaps, weeks to make out all those records in full. Mr. EDMUNDS. With permission, I should like to make an oral inquiry, to save time, of counsel. _ The CHIEF JUSTICE. If there be no ob- jection the Senator from Vermont will put his inquiry without reducing it to writing. Mr. EDMUNDS. I desire to know whether this is offered as touching any question or final conclusion of fact, or whether it is offered merely as giving us a history of practice under the statutes with a view to the law? Mr. CURTIS. Entirely for the last purpose. Mr. Manager BUTLER. After the state- ment of counsel, that this does not go to any issue of fact, but only of practice under the law, we have no objection to it. The CHIEF JUSTICE. The objection on the part of the Managers is withdrawn. If there be no objection on the part of the Sen- ate the evidence will be admitted. Mr. CURTIS. I wish there should be no misapprehension. This document goes to matters of fact ; but those matters of fact are matters of practice under the law, which I sup- posed was what the Senator meant. Mr. EDMUNDS. That is what I under- stood. Mr. Manager BUTLER. Then, if it is proof of matter of fact, we object that it is not proper evidence. Mr. CURTIS. Very well. The CHIEF JUSTICE. Gentlemen of coun- sel for the President, have you reduced your proposition to writing? Mr. CURTIS. Yes, sir. The CHIEF JUSTICE. , The Secretary will read the proposition. Mr. HOWARD. I desire to ask a question of the learned counsel for the accused. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Michigan. Mr. EVARTS. Before that question is read, perhaps it may be of service that I should ask attention to what I have turned to in the record, and that is the letter of the Secretary of State which, at page 351 of the record, introduced the schedule that was put in evidence by the Managers. Mr. JOHNSON. What is the schedule? Mr. EVARTS. Of heads of Departments. Mr. Manager Butler said: " It is accompanied with a letter simply describing the list, which I will read, as mere inducement. "Mr. C-;aTis. We have no objection. "Mr. Manager Butler. I will read it: "Department of State, " Washington, March 26, 1868. " Sir : In reply to the note which you addressed to me on the 23d instant, in behalf of the House of Rep- resentatives in thematter of the impeachmentof the President, I have the honor to submit herewith two schedules, A and B. " Schedule A presents astatement of all removals of the heads of Departments made by the President of the United States during the session of the Sonate so far a^ the same can be ascertained from the records of this Department. "Schedule B contains a statement of all appoint- ments of heads of Departments at any time made by the President without the advice and consent of the Senate, and whiletho Senatewas in session, so far as the same appears upon the records of the Department of State. "I have the honor to be, very respectfully, your obedient servant, WILLIAM H. SEWARD,. " Hon. John A. Bingham, Chairman." Then follows the list, the production of the documents of which would have occupied a considerable length of time. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Michigan. The Secretary read as follows: Do the counsel regard these memoranda as legal evidence of the practice of the Government, and are they offered as such ? Mr. CURTIS. The documents I offer are not full copies of any record. They are, there- fore, not strictly and technically legal evidence for any purpose. They are extracts of facts from those records. Allow me, by way of illus- tration, to read one, so that the Senate may see the nature of the document: " Navv Agency at New Yorlc. "1864, June 20. Isaac Henderson was, by direction of the President, removed from the office of Navy agent at New York, and instructed to transferto Pay- master John D. Gibson, of United States Navy, all the public funds and other property ill his charge." We do not offer that as technically legal evi- dence of the fact that is there stated; but having in view simply to prove, not the case of Mr. Henderson, with its merits and the causes of his removal, &c, all of which would ap- pear on the records, but the practice 6t the Government under the laws of the United States ; instead of taking from the records the entire documents necessary to exhibit his whole case, we have taken the only fact which is of any importance in reference to this inquiry. If the Senate consider that they must adhere to the technical rule of evidence, we must go to the records and have the records copied in full, and of course, for the same reason, read in full. Mr. Manager BOUTWELL. The honor- able counsel for the respondent must see that if they do not prove a case they do not prove any practice. The first thing to be done in order to prove a practice is to prove one or more cases going to show what the practice is. But the vital objection to this testimony which is now offered is, if my examination of it is thorough and accurate, that it relates to a class of officers who are and were, at the time the transactions spoken of in this memoranda oc- curred, under a special provision of law by which they were created, which takes them entirely out of the line of precedents for the purpose of this trial. That is the vital objec- tion to the introduction of this testimony. A* I have read the papers hastily, they all relate to Navy agents and officers who were created by a statute of the year 1820, and in that statute a tenure of office was established for the officers so created — four years, remova- ble at pleasure ; and it is not necessary for me to go into any statement here of the reasons whieh likely controlled the Congress of the United States in 1820, which led them to make that provision. But having made that provis- ion, created these officers, removable at pleas- ure, a practice shown by facts, few or many, does not tend in any degree to enlighten this tribunal upon the issues on which they are now called to pass, because these officers were Cre- ated by a special statute, had a special tenure, and by that tenure were made removable at the pleasure of the President ; and in various cases undoubtedly the President of the United States, acting in conformity to that statute, has removed those officers. Unless the coun- sel for the respondent are prepared to say that in this file of papers which they now submit there is evidence to show that a practice has prevailed relating to officers not enumerated in the statute of 1820, then I say it is but a waste of the time of this tribunal, knowing what those papers contain, and knowing what the statute is, to permit the introduction of any testimony showing a practice which, if prevail- ing and admitted, does not enlighten us at all upon the matters in issue here. Mr. CURTIS. This objection, Mr. Chief Justice and Senators, has reference to the merits of this case and to the weight and effect which the evidence is to have, if it be admitted. We may have been under an entire misapprehen- sion as to the views of the honorable Managers who are conducting this prosecution respecting those merits ; but unless we have been under such a misapprehension we have supposed they meant to attempt to maintain that even if Mr. Stanton at the time when he was removed held at the pleasure of the President, even if he was not within the tenure-of-office act, still, inasmuch as the Senate was in session, it was not competent for the President to remove him ; and, secondly, that although Mr. Stanton might have been removed by the President, not being within the tenure-of-office act, his place could not be even temporarily supplied by an order to General Thomas, because the Senate was in session, and there could be, therefore, no ad interim appointment made. It is with a view to meet that that we introduce this practice of the Government. It is with a view to show that when the President had the right to remove, it mattered not whether the Senate was in session or not, that right might be exer- cised, and that if that right should be exer- cised, it mattered not whether the Senate was in session or not, he might make an ad interim appointment. If the learned Managers will concede all those grounds to us, if they will agree that the sole question here is whether Mr. Stanton's tenure of office was fixed by that act, arid if it was not fixed by that act, that the President might remove him during the session of the Senate, and might lawfully make an ad interim appointment during the session of the Senate, then we do not desire to put in this evidence. Mr. SHERMAN. I should like to aak the honorable Managers a simple question. 186 SUPPLEMENT TO The CHIEF JUSTICE. If no objection be interposed, the Senator from Ohio will put his question without reducing it to writing. Mr. SHERMAN. It is whether the papers now offered in evidence contain the date of appointment and the character of the office? Mr. EVABTS. That is a question which you put to us. Mr. JOHNSON, (to Mr. Sherman.) You 3aid "Managers." Mc SHERMAN. I beg pardon. Mr. Manager BUTLER. And to that we say that they only contain the date of the re- moval, but do not give us the date of the nom- ination, which may have been weeks and months before the date of appointment, as nobody knows better than the Senate. That is the trouble about it. Mr. CURTIS. These documents are the records of the Navy Department. Allow me to read once more, to give you an illustration of what they contain : "Navy Agency at New York. "1864. JuneW. Isaac Henderson was, by direction of the President, removed from the omco of Navy agent at New York, and instructed to transfer to Paymaster John D. Gibson, United States Navy, all the public funds and other property in his charge." That is the character of the document. Mr. JOHNSON. Does it give the date? Mr. CURTIS. It gives the date of the removal. The CHIEF JUSTICE. The counsel for the President propose to offer in evidence two documents from the Navy Department, exhib- iting the practice which has existed in that Department in respect to removals from office. To the introduction of this evidence the hon- orable Managers object. The Chief Justice thinks that the evidence is competent in sub- stance, but that the question of form is entirely subject to the discretion of the Senate, and of the Senate alone. The whole question, there- fore, is submitted to the Senate. Senators, you who are of opinion that this evidence should be received will, as your names are called, answer yea ; those Of the contrary opinion, nay. The question being then taken by yeas and nays, resulted — yeas 36, nays 15; as follows: YEAS — Messrs. Anthony, Bayard, Buekalew, Cole, Conkliner, Corbett, Davis, Dixon, Doolittle, Edmunds, Perry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks. Howe. Johnson, McOreery, Morrill of Maine, Morrill of Vermont, Morton, Pat- terson of New Hampshire, Patterson of Tennessee, Boss, Saulsbury. Sherman, Stewart, Sumner, Trum- bull, Van Winkle, Vickers, Willey, Wilson, and Yates— 36. NAYS — Messrs. Cameron, Cattell, Chandler, Con- ness, Cragin, Drake, Harlan. Howard, Morgan, Nye, Porneroy, Ramsey, Thayer, Tipton, and Williams — 15. NOT VOTING— Messrs. Norton, Sprague, and Wade-^3. So the evidence was admitted. Mr. CURTIS. Unless the honorable Man- agers desire those documents to be read at length we do not insist upon it on our part. Mr. Manager BUTLER. We do not desire it. Mr. CURTIS. Very well ;_ but I suppose they will be printed. ["Certainly."] The documents thus offered in evidence are as follows : United States Navy Department, April 9, 1868. I hereby certify that the annexed are true state- ments from the records of this Department, EDGAE T. WELLES, Chief Clerk. Be it known that Edgar T. Welles, whose name is signed to the above certificate, is now and was at the time of so signing, ohief clerk in the Navy Depart- ment, and that full faith and credit aro due to all hjs official attestations as such. In testimony whereof, I have hereunto subscribed my name and caused the seal of the Navy Department of the United States to be affixed r. ,, I at the city of Washington, this 9th day of Li " "•' April, in the year of our Lord 1868, and of the independence of the United States the ninety- second. G. WELLES. Secretary of the Navy, Navy Agency at Pensacola. Thomas Eastin, Navy agent at Pensacola, was on 19th December, 1840, dismissed by direction of the President. On the same day Purser Dudley Walker, United States Navy, was instructed until otherwise directed to act as Navy agent in addition to his duties as purser of the yard and station. January 5, 1841. George Johnston was informed that he had been appointed, by and with the advice and consent of the Senate, Navy agent at Pensacola from December 28, 1840. Johnston, it appears, was lost on the passago to April 29', 1841. The President appointed Jackson Morton Navy agent at Pensacola. Navy Agency at Boston. February 1, 1838. Purser John N. Todd. United States Navy, was directed to assume the duties of Navy agent for tho port of Boston and continue in the jperformance thereof until further orders from the Department, ^ -,_.., „ February 1, 1838. D. D. Brodhead, Navy agent, Boston, was informed that his requisition for $10,000 had been received a.nd the amount remitted to John N. Todd, purser of the Boston station, who had been directed to discharge the duties of Navy agent until further orders. The Department alluded to reported embarass- ments of his private affairs, and as the legal term of his appointment would shortly expire, stated that it felt compelled, under the circumstances of the case, to suggest to him the propriety of tendering at this time his resignation as Navy agent. March 3, 1838. Daniel D. Brodhead, late Navy agent at Boston, was requested to pay over to John N. Todd, acting Navy agent at Boston, tho amount of public funds remaining in his hands as Navy agent. Daniel D. Brodhead, having, in a letter dated Bos- ton, February 28, 1838, tendered his resignation as Navy agent, it was acknowledged and accepted by the Department, March 5, 1838. March 2A, 1838. Leonard Jarvis was informed of his having been appointed by the President, by and with the advice and consent of the Senate, Navy agent for the port of Boston from March 22, 1838, and John N. Todd was instructed to pay over to him the amount of public funds in his hands as acting Navy agent. Navy Agency at New York. June 20, 1864. Isaac Henderson was, by direction of the President, removed from the office of Navy agent at New York, and instructed to transfer to pay- master John D. Gibson, United States Navy, all the public funds and other property in his charge. Navy Agency at Philadelphia. December 26,1864. James S. Chambers was removed from the office of Navy agent at Philadelphia, and instructed to transfer to paymaster A. E. Watson, United States Navy, all tho public funds and other property in his charge. United States Navy Department, April 9, 1868. I hereby certify that the annexed are true copies from tho records of the Department. EDGAR T. WELLES, Chief Clerk. Be it known that Edgar T. Welles, whose name is signed to the above certificate, is now, and was at the time of so signing, chief clerk in the Navy De- partment, and that full faith and credit are due to all his official attestations as such. In testimony whereof, I have hereunto subscribed my name, and caused the seal of the Navy Department of the United States to be affixed, r, „ i at the city of Washington, this 9th day of LL. S.J A prl \ t j n the year of Lord 1868, and of the independence of theUnited States, theninety- second. G. WELLES, Secretary of tile Navy. Navt Department. December 19, 1840. Sir: The painful duty devolves upon me of in- forming you that having failed to render and settle your accounts as reqired by law atfd tho frequent calls of the Department, the President has directed that you be dismissed the service of the United States. You will, therefore, upon the receipt of this com- munication, consider your functions as Navy agent at Pensacola to have ceased. * Until the arrival of your successor. Purser Dudley Walker has been directed to act as Navy agent, to whom you will turnover the funds, books, and papers belonging to the agency at Pensacola. I am, respectfully, &c, J. K. PAULDING. Thomas Eastin, esq., late Navy Agent, Pensacola. Navy Department, December, 19, 1840. Sir: I have directed 89,881 to be remitted to you, being the amount of your requisition of the 1st No- vember. You will, until otherwise direoted, act as Navy agent at Pensaoola, in addition to your duties as purser of the yard and station. A further remittance of $5,000 will be made to you for the use of the United States steamer Warren. I am* respectfully, &c., J. K. PAULDING. Purser, Dudley Walker, Care Commodore A. J. Dallas, Navy-yard, Pensacola. Navy Department, January 5, 1841. Sir: The President of the United States, by and with the advice and consent of the Senate, having 1 appointed you Navy agent for the port of Pensaoola, West Florida, for four years, from the 28th Decem- ber, 1840, Ihave the pleasure to inclose herewith your commission, dated the 5th of January, 1841. 1 am, respectfully, &c, J. K. PAULDING. George Johnston, esq., Navy Agent, Washington. Navy Department, April 'IX 1841. Sir: The President of the United States having appointed you Navy agent for the portof Pensacola, West Florida, I have the pleasure to inclose herewith your commission. I inclose to you also a blank bond, which you will execute with at least two sureties, in tlie_ sum of $30,000, to be approved by the United States judge or district attorney for the district in which you reside, aiid return to this Department as soon as practicable. I am, respectfully, Sec, ^^ E BAmER _ Jackson Morton, esq., Navy Agent, Pensacola. Navy Department, July 16, 1841. Sib : The President of the United States, by and with the advice and consent of the Senate, having appointed you Navyagentfor the port of Pcnsacoja, Florida, from the29th of April, 1841,1 have the pleas- ure to inclose herewith your commission. I am, respectfully, &c, «.„„,,— ^.^^.^^ GEORGE E. BADGER. Jackson Morton, esq.. Navy Agent, Pensacola, Navy Department, October 2, 1841. Sir: Jackson Morton. Esq., Navy agent for Pensa- cola, has apprised the Department of his intention to proceed immediately to that place to enter on the discharge of his duties. ' Upon his arrival you will transfer to hiin all the moneys and property belonging to the agency, and take his receipt for the same, which will be a suffi- cient voucher in the settlement of your accounts in the office of the Fourth Auditor. I am, respectfully, &c. J. D. SIMMS, Acting Secretary of the Navy. Purser D. Walker, Acting Navy Agent, Pensacola. Navy Department, February 1, 1838. Sir: Your requisition for $10,000 has been received, and theamqunt remitted to John N.Todd; purser of the Boston station, who has been directed to dis- charge the duties of Navy agent until further orders. The Department regrets that the reported embar- rassment of your private affairs, and thecondition of the banks in Boston, particularly that'in which you have kept your public accounts, renders this coarse necessary. As the legal term of your appointment will shortly expire, tho Department feels compelled, under the circumstances of the case, to suggest to you the pro- Sriety of tendering at this time your resignation as [avy agent. ■ I am, very respectfully, your obedient servant. M. DICKERSON. D. D. Brodhead, esq.. Navy Agent, Boston. Navy Department, February 1, 1838. Sir: I have this day authorized to be remitted to you $10,000 under i>ay and Sub. — This remittance is made to you with a view to your assumption of the duties of Navy agent for the port of Boston, in addition to your present duty, which you will do on receipt of this, and continue in the Eerformance thereof until further orders from the 'epartment. I am, respectfully, your obedient servant. M. DICKERSON- , John N. Todd. Purser, United States Navy-yard, Boston. Boston, February 28, 1838. Sir: Some time since I received a letter from you stating that PurserTodd was charged^with tho duties of Navy agent in my place, and giving the reasons of the Department therefor, Without concurring in the opinions of the Department, but solely to relieve it and the Government from any supposed responsi- bility or embarrassment in relation to my position, I have thehonorto tendcryou myresignation asNavy agent for this port, believing that you a-s well as all others having official business with me can bear tes- timony that I havp faithfully and satisfactorily per- formed all my duties as a public officer. I have the honor to be. with great respect, your obedient servant, DANIEL D. BRODHEAD. Hon. M. Dickerson, Secretary of the Navy, Washington, D. C. Navy Department, MarchZ, 1838. Sir: I request that you will pay over to John N. Todd, acting Navy agent at Boston, the amount of public funds remaining in your hands as Navy agent, for which his receipt will be to you a sufficient voucher. When I last saw you you assured me that I should hear from you in twenty-four hours. I regret very much being left in the condition I am as to the Navy agent at Boston. I am, very respectfully, your obedient servant, M. DICKERSON. Daniel D. Brodhead, late Navy Agent, Boston. Navy Department, March 5, 1838, Sir : Your letter of tho 28th ultimo, resigning your office of Navy agent for the port of Boston* has been received, and your resignation is accepted. I am, very respectfully, your obedient servant, ^ ^ ^ M. DICKERSON. D. D. Brodhead, esq., late Navir Agent, Boston. Navy Department, March 24, 1838. Sir: Leonard Jarvis, Esq., of Boston, has been appointed Navy agent for that port in place of D. D. THE CONGRESSIONAL GLOBE. 187 Brodhead, resigned. You will therefore pay ovor to Mr. Jarvia th o amount of publio money in your hands as acting Navy agent, and his roceipt will bo to you a proper vouoher in the settlement of your accounts. bo muoh of your requisition of the 13th instant as has boon approved will be remitted to the new agent with as little-delay as practicable. I am, very respectfully, your obedient servant, M. DICKERSON. John N. Todd, esq., Acting Navy Agent, Boston. Navy Department, March 24, 1838. Sib: You having been appointed Navy agent for the port of Boston, I have this day authorized to bo remitted to you $53,614 51, under various heads of ap- propriations, being the amount of the requisitions of the acting Navy agent of the 13th instant, so far as the same were approved. The aoting Navy agent, Purser John N. Todd, has peon instructed to pay over to you the public money in his hands as agent. Instructions with regard to your duties as Navy agont will be transmitted to you by the Fourth Aud- itor of the Treasury. I am, very respectfully, your obedient servant, M. DICKERSON. Leonard Jarvis, esq., Navy Agent, Boston. Navy Department, March 24, 1838. Sir: The President of the United States, by and with the advioe and consent of tho Senate, having appointed you Navy agent for four years from tho 22a of March, 1838, I havo tho pleasure to inclose horowith your commission, dated the 24th of March, 1838. I am, respectfully, yours, M. DICKERSON. Leonard Jarvis, Esq., Navy Agent, Boston. i Navy Department, June 20, 1864. Sir: By direction of the President of the United States, you are hereby removed from the office of Navy agent at New York, and you will immediately transfer to Paymaster John D. Gibson, paymaster United States Navy, all tho public funds and other property in your chargo. Very respectfully, GIDEON WELLES, Secretary of the Navy. Isaac Henderson, Esq., Navy Agent, Neio York. Navy Department, June 20, 1864. Sir : Yo« are hereby relieved from the inspection jf provisions and clothing at tho Brooklyn navy- yard, and will at once assume the duties usually ap- pertaining to the office of Navy agent atthe city of Now York. Mr. Henderson has been instructed to turn over to you thcpublic funds and other property in his pos- session, for which you will receipt to him. You will not permit him to remove from tho office any of tho books, papers, or vouchers, until thefurther order of tho Department, but you will allow him to place in the office an agent (should he desire to do so) to pro- tect his interests and see that the books and papers necessary to the settlement of his accounts are not used in a manner to destroy their value as vouchers. You will be careful to do nothing to affect in any way tho liability of Mr. Henderson or his sureties to the Government. The chief of the Bureau of Provisions and Cloth- ing will explain to you in person the views of tho Department. Very respectfully, GIDEON WELLES, Secretary of the Navy. Paymaster John D. Gibson, United States Navy, Brooklyn, New York. Navy Department, December 26, 1864. Sir : By direotion of the President of the United States you aro hereby removed from the office of tho Navy agent at Philadelphia, and you will immedi- ately transfer to Paymaster A. E. Watson, United States Navy, all the public funds and other property in your charge. Very respectfully. GIDEON WELLES, Secretary of the Navy. James S. Chambers, Esq., Navy Agent, Philadelphia. Navy Department, December 26, 1864. SIB: Mr. James S. Chambers, Navy agent, Phila- delphia, has been instructed to turn over to you the public funds and other Government property in his possession, for whiehyou willreceiptto him, and you will at once assume the duties usually appertaining to the office of Navy agent. You will not permit Mr. Chambers to removo from the office any of the books, papers, or vouchers until tho further order of the Department, but you will allow him to placo in tho offico an agent (should he desire to do so) to >roteefc his interests and see that the books and •apcr3 necessary to the settlement of his accounts tre not used in a manner to destroy their value as vouchers. You will be careful. to d« nothing to affect in any way the liability of Mr. Chambers or his sure- ties to the Government. Should Mr. Chambers reserve a portion of the funds in his possession to meet outstanding checks, the Assistant Treasurer has been requested not to honor Them unless indorsed by you as correct. You will pee that they have been given for actual Government dues. Your offioe will bo kept open at least during tho ordinary banking hours in Philadelphia. Very respectfully, GIDEON WELLES, Secretary of the Navy. Paymaster A. E. Watson, UnitedStates Navy, Philadelphia. Mr. CURTIS. There is one other docu- ment from the Navy Department which I sup- pose is not distinguishable from those that have just been admitted. It purports to be a list of all civil officers of that Department appointed for four years underthe statute of May 15, 1820, and removable from office at pleasure, who were removed as indicated, their terms of office not having expired. Then comes a list giving the name of the officer, the date of his original appointment, the date of his removal, and by whom removed, in a tabular form. Mr. JOHNSON. Does it give the date of the appointment of his successor? Mr. CURTIS. No ; there is nothing said about his successor. It is merely the act of removal of the officer. [The document was presented to the Man- agers and examined by them.] Mr. Manager BUTLER. We only want to call the attention of the Senate to the fact that it does not contain a very material thing which our schedule contains, to wit : a statement whether the Senate was or was not in session. Mr. CURTIS. We shall get that in another form. Mr. Manager BUTLER. Nor who was nom- inated in the place. The CHIEF JUSTICE. The evidence is admitted unless there be some objection. The document is (with the same attestation from the Navy Department as the two preceding ones) as follows : Civil Officers Appointed for Four Years under the Statute of May 15, 1820, and " Removable from Office at Pleasure 1 ' who were removed as indicated, their terms of office not having expired. NAVY AGENTS. Names. R. Swartout Amos Bihney James Beatty Miles King J. M. Sherburne N. Ampry George Harrison John Lai gh ton John Thomas R. C.Wetmoro I. V. Browno S. McClellan William B. Scott Joseph Hale S. W. Smith Walker Anderson George Layall 0. H. Lsrdd William Hind man B. D. Wright E. 0. Perrin William Elinn N. F. Ammidown H. G. S. Key H. P. Wardell William Badger William F. Russell A. E. Smith .«. Isaac Henderson J. S. Chambers Date of original appointment. 17 October, 1818 Not known 17 May, 1810 27 March, 1816.; 25 June, 1828 31 October. 1827 21 November, 1799. 27 April, 1830 11 October, 1833..... 18 March, 1841 20 September. 1841. 31 August, 1841 8 October, 1848 19 Juno, 1846 8 July, 1846 3 July, 1848 13 March, 1849 28 Juno, 1852 28 June, 1852 10 August, 1850 28 August, 1850 1 April. 1858 8 February, 1859.... 27 February, 1860... 20 May, 1858 20 May, 1858 27 June, 1860 16 December, 1857.. 19 July. 1861 19 July, 1861 Term. 4 years. 4 years. 4 years. 4 years.. 4 years.. 4 years.. 4 years. 4 years.. 4 years.. 4 years., 4 years.. 4 years. 4 years.. 4 years.. 4 years.. 4 years.. 4 years.. 4 years.. 4 years.. 4 years.. 4 years.. 4 years.. 4 years.. 4 years.. Date of removal. 18 March, 1827 6 May, 1826 3 March, 1829 4March.l829 1 July, 1829 11 July, 1829 3 March, 1833 29 April, 1841 31 August, 1841 1 July. 1844 1 April, 1845 8 April, 1845 5 June, 1849 27 June, 1849 27 June, 1849 24 September, 1849.. 1 November, 1850... 5 April, 1853 5 April, 1853 12 April, 1853 28 May. 1853 10 April, 1861 12 April, 1861 16 April, 1861 18 April, 1861 1 May, 1861 6 May, 1861 2 May, 1861 20June,1864 26 December, 1864... By whom re- moved. The Tho Tho The The Tho The Tho The Tho The The The The Tho The The The Tho The The The Tho The Tho The The Tho Tho Tho President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. President. Prosident. [Mr. Curtis sent a large mass of documents to the Managers to be examined.] The CHIEF JUSTICE. Will the counsel state what he proposes to offer? Mr. CURTIS. These are documents from the Department of State showing the removal of officers not only during the session of the Senate but during the recess, and covering all cases of vacancy, the purpose of the evidence being to show the practice of the Government coextensive with the necessity that arises out of the different cases — death, resignation, sick- ness, absence, removal. It differs from the schedule which has been put in by the learned Managers, which covered certain heads of Departments only, because that applies only to removals during the session of the Senate. It includes that, but it includes a great deal more matter. Mr. Manager BUTLER. I have prepared for myself the same list. In order that the Senate may see exactly what the character is, and may judge then how far this may be com- petent, I call the attention of the Senate to one, the first one that opens — -not by any man- ner the first in order, but the first one that happens : I hereby appoint C. A. Harris to perform the du- tiesof acting Secretary of War during the temporary absenco of the Secretary for the Department of War. ANDREW JACKSON. May 27, 1836. Now I will turn over to the next page : I hereby authorize and appoint Aaron 0. Dayton, chief clerk of the Department of State, to discharge the duties of Secretary of State during tho temporary absence of that officer from the seat of Government. M. VAN BUREN. Mr. Manager BINGHAM. What is the date ? Mr. Manager BUTLER. June 28, 1837. Again : I authorize J. L. Martin, chief clerk of the De- partment of State, to perform the duties of Secretary of State during the absence of that officer from the seat of Government. MARTIN VAN BUREN. That is dated October 16, 1840. Again : I appoint John Boyle, chief clerk of the Navy Department, acting Secretary of the Navy, to per- form, during the absence of the Secretary of the Navy, the duties of Secretary of the Navy Depart- ment. ANDREW JACKSON. Washington City, July 5, 1834. ■ There are but two exceptions in all these cases to the form I have given, in various modes of expression. Mr. CURTIS. I suppose it is not a question now what is to be the effect of the evidence ; but do you object to it ? Mr. Manager BUTLER. We object to it for any purpose. It is handed to me as a mass, and I want to state what it is, and then I will tell you what I object to ; I cannot do so be- fore. I have now given youall the forms with two single exceptions. The first exception is that frequently the language of the letter of ap- pointment, like the one I have read, has been given to cover possible contingencies. For instance, Asbury Dickens is appointed to act as Secretary of the Treasury, " when the Sec- retary shall be absent," looking to the future, expecting that he would be absent on such a day. Then there are three other cases, one a case in President Monroe's time, where he appointed an acting Secretary, reciting the act of 1792. There is one in John Quincy Adams's, time, re- citing the act of 1792. There is one in Gene- ral Jackson's time, reciting that the appoint- SUPPLEMENT TO ment was under the act of 1792. These are the only three in all this list that reoite the act under which they are made. All the others are temporary, are in cases of death or tem- porary absences from the seat of Government coming within the exact terms of the law of 1792 or 1796. I have stated what these cases are. Now, the simple question is — I am not going to argue it— will the Senate permit a series of acts, done under the law, and exactly in conformity with the law of 1792 and 1795, reciting, where they recited any law, the act of 1792, to be intro- duced as evidence upon the trial of a ease for an act which is in violation of the act of March 2, 1867, and in violation of the act of February 20, 1863. Does it throw any light — that is to say, is there such a practice of the Government shown by this as throws any light upon the question now in hearing? It goes to the coun- try, it goes to the Senate, that here are a large lot of appointments. True; but these appoint- ments are in conformity with the law, reciting the law when they recite any law at all, and always reciting the exact circumstances to which the law applies. Now, are these to gO in for the purpose of justifying what is admit- ted in the answer to be a breach of the law, if the law is constitutional 7 Mr. CURTIS. I do not wish to reply, Mr. Chief Justice. I take it for granted that the Senate will not settle any question as to the merits of this case under the acts of Congress when we are putting in evidence. The CHIEF JUSTICE. The Chief Justice thinks that the evidence is admissible within the decisions already made. Of the value of it, when admitted, the Senate will judge. If any Senator desires the question to be put to the Senate the Chief Justice will be happy to put it. [After a pause.] The evidence is admitted. Mr. CURTIS. We do not desire to have these documents read. They are very volum- inous and will take time, and it is quite unne- cessary to read them, we think, or have them read. The documents thus offered in evidence are attested by the Secretary of State in the usual form to be copied from the records of his Department, and contain the letters of author- ity, designation, or appointment in the follow- ing cases : On the 23d of November, 1819, Christopher Vanderventer, chief clerk of the War Depart- ment, was authorized by President Monroe, under the act of May 8, 1792, to perform the duties of Secretary of War during the illness of John C. Calhoun, Secretary for that De- partment. On the 7th of March, 1825, President J. Q. Adams appointed Samuel L. Southard, Secre- tary of the Navy, to perform the duties of Secretary of War, that office having become vacant, until the vacancy should be filled. On the 26th of January, 1829, President J. Q. Adams appointed Samuel L. Southard, Secretary of the Navy, under the authority conferred by the act of May 8, 1792, to per- form the duties of Secretary of the Treasury until a successor shouldbe appointed to Richard Rush, Secretary of the Treasury, he being un- able to perform his duties by severe illness, or until the inability should cease. On the 4th of March, 1829, President Jack- son appointed James A. Hamilton to take charge of the Department of State until Gov- ernor Van Buren should arrive in the city. On the 24th of April, 1829, President Jack- son appointed Asbury Dickins Secretary of the Treasury until the return of Mr. Ingham to the city. On the 7th of July, 1829, President Jackson appointed William B. Lewis acting Secretary of War during the absence of the Secretary. On th| 8th of July, 1829, President Jackson appointed Richard H. Bradford to take charge of the Navy Department and perform the duties thereof in the absence of the Secretary of the Navy. On the 19th of August, 1829, President Jackson appointed William B. Lewis Acting Secretary of War during the absence of the Secretary of War. On the 7th of November, 1829, • President Jackson appointed J. G. Randolph to perform the duties of Secretary of War until the return of the Secretary, John H. Eaton, he being absent. On the 12th of June, 1830, President Jack- son authorized Philip G. Randolph to act as Secretary of War while John H. Eaton, the Secretary, should be absent. On the 8th of March, 1831, President Jack- son authorized Philip G. Randolph to act as Secretary of War during the confinement of the Secretary by sickness. On the 19th of March, 1831, President Jack- son authorized John Boyle, chief clerk of the Navy Department, to act as Secretary of the Navy during the necessary absence of Mr. Branch, the Secretary, from the duties of the Department. On the 12th of May, 1831, President Jack- son authorized John Boyle to take charge of the office of Secretary of the Navy and perform its duties until a successor to Mr. John Branch, the Secretary, who had notified the President that he should leave the city " this day," could be appointed, and arrive and take charge of the office. On the 16th of June, 1831, President Jackson authorized John Boyle, chief clerk of the Navy Department, to act as Secretary of the Navy during the absence from the seat of Govern- ment of Levi Woodbury, the Secretary. On the 18th of June, 1831, President Jack- son authorized Philip G. Randolph, chief clerk in the War Office, to discharge the duties of that office until a successor to Major Eaton should be appointed. On the 21st of June, 1831, President Jack- son appointed Asbury Dickins, chief clerk of the Treasury Department, to perform the duties required by law of the Secretary of the Treasury until the arrival of Mr. McLane, ap- pointed successor to Mr. Ingham. On the 20th of July, 1831, President Jack- son appointed Roger B. Taney, Attorney General, to take charge of the Department of War "on the 21st instant, and execute the duties thereof until the arrival of Governor Cass." On the 10th of August, 1831, President Jack- son authorized John Boyle, chief clerk of the Navy Department, to act as Secretary of the Navy in the absence of the Secretary, Levi Woodbury, from the seat of Government. On the 10th of August, 1831, President Jack- son appointed Daniel Brent, chief clerk of the Department of State, to -act as Secretary of State during the absence of the Secretary from the seat of Government. On the 12th of September, 1831, President Jackson authorized Roger B. Taney, Attorney General, to act as Secretary of War during the absence from the seat of Government of Gov- ernor Cass. On the 13th of September, 1831, President Jackson appointed Louis McLane, Secretary' of the Treasury, to take charge of the War De- partment during the absence of Governor Cass, Secretary, and Roger B. Taney, acting Secre- tary. Onthe 18th of October, 1831, President Jack- son authorized Asbury Dickins, chief clerk of the Treasury Department, to perform the duties of Secretary of the Treasury during the absence of the Secretary. On the 18th of October, 1831, President Jackson authorized Levi Woodbury, Secretary of the Navy, to take charge of the Department of War and perform the duties of Secretary of War during the absence of the Secretary of War. On the 17th of March, 1832, President Jack- son authorized Asbury Dickins, chief clerk of the Treasury Department, to take charge of that Department and perform the duties of Secretary of the Treasury during the indispo- sition of Mr. McLane. Onthe 8th of June, 1832,-President Jacksoft authorized John Robb, chief clerk of the War Department, to perform the duties -of Secre- tary of War during the absence of the Secre- tary. On the 16th of July, 1832, President Jackson appointed John Robb, chief clerk of the War Department, to act as Secretary of War during the absence of the Secretary. On the 21st of July, 1833, President Jackson appointed Daniel Brent, chief clerk of the : De- partment of State, to exercise the duties and perform the functions of Secretary of State "in the event of the absence from the seat of Government of the Secretary during the pres- ent summer or approaching autumn, and dur- ing the continuance of such absence." On the 23d of July, 1832, President Jackson appointed John Boyle to discharge the duties of Secretary of the Navy "in the absence of the Secretary at any time between this date and the 1st of October next." On the 18th of July, 1833, President Jackson authorized Asbury Dickins, chief clerk of the Treasury Department, to perform the duties of Secretary of the Treasury in case of the absence from the seat of Government or sick- ness of the Secretary. On the 8th of November, 1832, President Jackson authorized Asbury Dickins, chief clerk of the Treasury Department, during the absence of the Secretary of the Treasury, to perform the duties of that office. On the 12th of November, 1832, President Jackson authorized John Robb, chief clerk of the War Department, to act as Secretary of War during the absence of the Secretary. Onthe 0th of May, 1833. President Jackson appointed Asbury Dickins, chief clerk of the Treasury Department, to perform the duties of Secretary of the Treasury in the absence of that officer from the seat of Government. On the 6th of May, 1833, President Jackson appointed John Robb acting Secretary of War during the absence of the Secretary. On the 18th of May, 1833, President Jack- son authorized Louis McLane, Secretary of the Treasury, to perform the duties and func- tions of Secretary of State during the absence of Edward Livingston from the seat of Gov- ernment. On the 29th of May, 1833, President Jack- son authorized Asbury Dickins, chief clerk of the Treasury Department, to perform the duties of Secretary of the Treasury for and during the absence of that officer from the seat of Government. On the 5th of June, 1833, President Jackson authorized Daniel Brent, chief clerk in the Department of State, to act as Secretary of State duringthe absence of the Secretary from the seat of Government. On the 6th of June, 1833, President Jackson appointed John Robb to be acting Secretary of War during the absence of the Secretary. On the 5th of June, 1833, President Jackson appointed John Boyle to be acting Secretary of the Navy " during the absence at any time within the present year of the honorable Levi Woodbury." Onthe 13th of June, 1833, President Jackson appointed Daniel Brent to perform the duties of Secretary of State if the Secretary should " be at any time indisposed or absent from the seat of Government." Onthe 10th of August, 1833, President Jack- son authorized Asbury Dickins, " should the Secretary of State be sick or absent from the seat of Government before my return to Wash- ington," to perform the duties during such sickness or absence. On the 28th of September, 1883, President Jackson appointed John Robb acting Secre- tary of War in the absence of the Secretary. On the 11th of November, 1833, President Jackson authorized Asbury Dickins, chief clerk of the Department of State, to perform the duties of Secretary of State during the absence of the Secretary from the seat of Government. On the 25th of June, 1834, President Jack- THE CONGRESSIONAL GLOBE. 189 •Bta authorized McClintock Young to take charge of the Department of the Treasury until a successor to Mr. Taney, resigned, should be appointed. On the 5th of July, 1834, President Jackson appointed John Boyle, chief clerk of the Navy Department, to be acting Secretary of the 'Navy during the absence of the Secretary. On the 8th of July, 1834, President Jackson authorized Asbury Dickins, chief clerk of the Department of State, to perform the duties of Secretary of State in case of the death, absence from the seat of Government, or sickness of the Secretary of State " during my absence." On , President Jackson authorized John Forsyth to discharge the duties of Secre- tary of War during the absence of the Secre- tary. On the , President Jackson au- thorized M. Dickerson to discharge the duties of Secretary of War during the absence of the Secretary. On the 8th of May, 1834, President Jackson appointed Mahlon Dickerson acting Secretary of War during the absence of the Secretary. On the 11th of October, 1834, President Jackson appointed Asbury Dickins, chief clerk of the Department of State, to act as Secretary of State during the absence of that officer from the seat of Government. On the 19th of January, 1835, President Jackson authorized Mahlon Dickerson, Secre- tary of the Navy, to perform the duties of Secretary of War during the illness of that officer. On the 2d of May, 1835, President Jackson authorized Asbury Dickins to perform the duties of Secretary of State during the absence of Mr. Forsyth from the seat of Government. On the 7th of May, 1835, President Jackson appointed John Boyle, chief clerk of the Navy- ■ Department, to act as Secretary of the Navy during the absence of Mr. Dickerson from the seat of Government. On the 18th of May, 1835, President Jack- son appointed Carey A. Harris to act as Sec- retary of War during the absence of the Sec- retary. On the 6th of July, 1835, President Jackson appointed Asbury Dickins to act as Secretary of State during the absence of Mr. Forsyth. On the 1st of July, 1835, President Jackson designated McClintock Young to perform the duties of Secretary pf the Treasury f ' at any periods of absence by the present Secretary during the ensuing months." ' On the 31st of August, 1835, President Jack- son authorized Asbury Dickins to act as Sec- retary of State during the absence of Mr. For- syth from the seat of Government. On the 28th of September, 1835, President Jackson authorized Asbury Dickins to act as Secretary of State during the absence of Mr. Forsyth from the seat of Government. On the 20th of October, 1835, President Jackson empowered McClintock Young to per- form the duties of Secretary of State " while the present Secretary is absent from the city of Washington." On the 23d of October, 1835, 0. A. Harris was appointed by President Jackson to act as Secretary of War during the temporary ab- sence of the Secretary. On April 29,, 1836, C. A. Harris was ap- pointed by President Jackson to act as Secre- tary of War during the temporary absence of the Secretary. On the 27th of May, 1836, President Jackson authorized C. A. Harris to act as Secretary of War during the temporary absence of the Secretary. On the 7th of July, 1836, President Jackson empowered Asbury Dickins, chief clerk of the Department qf State, to act as Secretary of State "in case of the death, absence from the seat of Government, or inability of the Secre- tary during my absence from the seat of Gov- ernment." On the 9th of July, 1836, President Jackson appointed John Boyle, chief clerk of the Navy Department, to discharge the duties of Secre- tary of the Navy during the absence of Mahlon Dickerson, Secretary, from the seat of Gov- ernment. On the 18th of July, 1836, President Jackson authorized C. A- Harris to act as Secretary of War during the temporary absence of that officer fpom the seat of Government. On the 8th of September, 1836, President Jackson authorized C. A. Harris to act as Secretary of War during the temporary ab- sence of that officer from the seat of Govern- ment. On the 5th of October, 1836, President Jack- son authorized C. A. Harris to act as Secre- tary of- War during the temporary absence of that officer from the seat of Government. On the 25th of October, 1836, President Jack- son authorized Benjamin F. Butler, Attorney General, to act as Secretary of War, that office having become vacant, until the vacancy should be filled. On the 28th of June, 1837, President Van Buren authorized Aaron 0, Dayton, chief clerk of the Department of State, to discharge the duties of Secretary of State during the temporary absence of that officer from the seat of Government. On the 20th of October, 1837, President Van Buren authorized McClintock Young to dis- charge the duties of Secretary of the Treasury "whtnever that officer may be absent from the seat of Government." On the 27th of October, 1837, President Van Buren authorized John Boyle, chief clerk of the Navy Department, to act as Secretary of the Navy during the absence of the Sec- retary. On the 21gt of July, 1838, President Van Buren authorized John Boyle, chief clerk of the Navy Department, to act as Secretary of the Navy during the absence of the Sec- retary. On the 1st of July, 1838, President Van Buren authorized MeC. Young to act as Sec- retary of the Treasury during the absence of the Secretary, and in case of the illness or absence of Mr. Young, Samuel McKean to perform the duties. On the 21st of July, 1838, President Van Buren authorized Aaron Vail, chief clerk of the Department of State, to discharge the func- tions of Secretary of State "in the event of the absence of the Secretary from the seat of Government." On the 6th of October, 1838, President Van Buren authorized John Boyle, chief clerk of the Navy Department, to act as Secretary of the Nayy during the absence of the Secretary. On the 24th of April, 1839, President Van Buren authorized McClintock Young to per- form the duties of Secretary of the Treasury during the absence of the Secretary. On the 8th of June, 1839, President Van Buren authorized Aaron Vail, chief clerk of the State Department, to act as Secretary of State during the absence of the Secretary from the seat of Government. On the 15th of June, 1839, President Van Buren authorized McClintock Young to aot as Secretary "in the event of the sickness or ab- sence "of Levi Woodbury between this date and the 10th of October next." On the 28th of August, 1840, President Van Buren authorized J. L. Martin, chief clerk of the Department of State, to perform the duties of Secretary of State during the absence of that officer from the seat of Government. On the 16th of October, 1840, President Van Buren authorized J. L. Martin, chief clerk of the Department of State to perform the duties of Secretary of State during the absence of that officer from the seat of Government. On the 3d of March, 1841, President Van Buren appointed McClintock Young, chief clerk of the Treasury Department, to perform temporarily the duties of Secretary of the Treasury until a successor to Mr. Woodbury, resigned, should be sworn into office according to law. On the 19th of March, 1841, President Har- rison appointed John D. Sitnms acting Secre- tary of the Navy during the absence of the Secretary from the seat of Government. On the 27th of April, 1841, President Tyler appointed Daniel Fletcher Webster, chief clerk of the Department of State, to perform the duties of Secretary of State in the absence of that officer from the seat of Government. On the 13th of September, 1841, President Tyler appointed McClintock Young to perform the duties of Secretary of the Treasury until a successor to Mr. Ewing, late Secretary, should be appointed, qualified, and enter upon the dis- charge of the duties of head of the Treasury Department. On the 20th of October, 1841, President Tyler appointed William S. Derrick to perform the duties of acting Secretary of State during the absence of Daniel Fletcher Webster, "now performing those duties," from the seat Of Government. On the 30th of October, 1841, President Tyler appointed McClintock Young acting Sec- retary of the Treasury. On the 14th of December, 1842, President Tyler appointed McClintock Young to perform the duties of Secretary of the Treasury during the absence of Hon. Walter Forward from the city of Washington. On the 30th of June, 1842, President Tyler appointed McClintock Young to perform the duties of Secretary of the Treasury during the absence of Hon. Walter Forward from the city of Washington. On the 20th of July, 1842, President Tyler appointed McClintock Young to perform the duties of Secretary of the Treasury during the sickness of Hon. Walter Forward. On the 1st of November, 1842, President Tyler appointed McClintock Young to perform the duties of Secretary of the Treasury during the absence of Hon. Walter Forward from the city of Washington. On the 1st of March, 1843, President Tyler appointed McClintock Young to act as Secre- tary of the Treasury until a successor to Mr. Forward should be appointed and enter upon the discharge of his duties. On the 7th of June, 1842, President Tyfer appointed McClintock Young to perform the duties of Secretary of the Treasury " during the absence of the Secretary after the 8th in- stant. ' ' On the 9th of May, 1843, President Tyler appointed Hugh S. Legare to act as Secretary of State until a successor to Mr. Webster, late Secretary of State, should be appointed, quali- fied, and enter on the discharge of the duties. On the 8th of June, 1843, President Tyler appointed William S. Derrick to perform the duties of Secretary of State during the absence of Mr. Legare, acting Secretary. On the 24th of June, 1843, President Tyler appointed Abel P. Upshur Secretary of State ad interim until a successor should be ap- pointed. On the 31st of May, 1843, President Tyler appointed Samuel Hume Porter acting Secre- tary of War during the absence of the Secre- tary. On the 17th of August, 1843, President Tyler appointed William S. Derrick acting Secre- tary of State during the absence of A. P. Up- shur from the seat of Government. On the 28th of August, 1843, President Tyler (John C. Spencer, Secretary of the Treasury, "intending to be absent from the seat of Government on and after the 29th in- stant for two weeks") appointed McClintock Young to act as Secretary of the Treasury " during such period, should the Secretary be so long absent." On the 29th of February, 1844, President Tyler appointed John Nelson, Attorney Gen- eral, Secretary of State ad interim u^til a suc- cessor to Mr. Upshur should be appointed. On the 2d of May, 1844, President Tyler appointed McClintock Young to perform the duties of Secretary of the Treasury until a sue- 190 SUPPLEMENT TO cesser to J. C. Spencer should be appointed and qualified. On the 28th of September, 1844, President Tyler appointed Richard K. Crall6 acting Sec- retary of State during the absence of 'John C. Calhoun from the seat of Government. On the 2d of April, 1845, President Polk appointed John Y. Mason, Attorney General, to be Secretary of State ad interim during the temporary absence of James Buchanan, Sec- retary of that Department, from the seat of Government. On the 4th of August, 1845, President Polk appointed John Y. Mason, Attorney General, to be acting Secretary of State during the tem- porary absence of Mr. Buchanan from the seat of Government. On the 31st of March, 1846, President Polk appointed Nicholas P. Trist to be acting Sec- retary of State during the absence of Mr. Buchanan from the seat of Government. On the 2d of September, 1846, President Polk appointed Nicholas P. Trist to be acting Secretary of State during the absence of Mr. Buchanan from the seat of Government. On the 7th of October, 1846, President Polk appointed McClintock Young to perform the duties of Secretary of the Treasury during the absence from the city of Robert J. Walker, Secretary of the Treasury. On the 4th of March, 1847, President Polk appointed Nicholas P. Trist acting Secretary of State during the absence of Mr. Buchanan from the seat of Government. On the 31st of March, 1847, President Polk appointed Nicholas P. Trist acting Secretary of State during the absence of Mr. Buchanan from the seat of Government. On the 4th of August, 1847, President Polk appointed William S. Derrick to be acting Sec- retary of State during the absence of Mr. Bu- chanan from the seat of Government. On the 22d of June, 1847, President Polk appointed John Y. Mason, Secretary of the Navy, to be acting Secretary of State during the absence of Mr. Buchanan, " to take effect the 28th instant." On the 21st of July, 1847, President Polk appointed McClintock Young to perform the duties of Secretary of the Treasury during the absence from the seat of Government of Rob- ert J. Walker, " he intending to be absent after the 22d instant." On the 15th of October, 1847, President Polk appointed McClintock Young to perform the duties appertaining to the office of Secre- tary of the Treasury during the absence of Robert J. Walker. On the 9th of December, 1847, President Polk appointed McClintock Young to perform the duties appertaining to the office of Secre- tary of the Treasury during the sickness of Robert J. Walker. On the 10th of April, 1848, President Polk appointed John Appleton, chief clerk of the State Department, to be acting Secretary of State during the absence of the Secretary from the seat of Government. On the 26th of May, 1848, President Polk appointed Archibald Campbell, chief clerk of the War Department, to be acting Secretary of War during the temporary absence of the Sec- retary from the seat of Government. On the 17th of August, 1848, President Polk appointed McClintock Young to act as Secre- tary of the Treasury during the temporary absence of Secretary Walker from the seat of Government. On the 2d of September, 1848, President Polk appointed Isaac Toucey Attorney Gen- eral, to act as Secretary of State during the temporary absence of the Secretary. On the 2d of September, 1848, President Polk appointed John Y. Mason, Secretary of the Navy, to act as Secretary of War during the temnorary absence of the Secretary. On the 20th of November, 1848, President Polk appointed Isaac Toucey acting Secretary of State during the temporary absence of Mr. Buchanan from the seat of Government. On the 6th of March, 1849, President Taylor appointed McClintock Young to act as Secre- tary of the Treasury until a successor to Mr. Walker should be duly appointed. On the 8th of March, 1849, President Taylor appointed Reverdy Johnson, Attorney General, to act as Secretary of War during the tempo- rary absence of the Secretary from the seat of Government. On the 1st of October, 1849, President Taylor appointed William S. Derrick, chief clerk of the Department of State, to act as Secretary of State in the absence of the Secretary. On the 8th of October, 1849, President Tay- lor appointed John D. McPherson acting Sec- retary of War during the temporary absence of Mr. Crawford "for the ensuing ten days." On the 20th of June, 1850, President Taylor appointed John McGinnis, chief clerk of the Treasury Department, to act as Secretary of the Treasury during the absence of the Secretary from Washington. On the 23d of July, 1850, President Pill- more appointed Major General Winfield Scott Secretary of War ad interim during the vacancy occasioned by the resignation of George W. Crawford. On the 4th of October, 1850, President Pill- more appointed William S. Derrick, chief clerk of the State Department, to be acting Secretary of State during the temporary absence of Mr. Webster from the seat of Government. • On the 23d of December, 1850, President Fillmore appointed William S. Derrick, chief clerk of the State Department, to be acting Secretary of State, during the temporary ab- sence of Mr. Webster from the seat of Govern- ment. On the 1st of March, 1851, President Fill- more appointed William L. Hodge to be acting Secretary of the Treasury ad interim during the illness of the Secretary. On the 31st of March, 1851, President Fill- more appointed William S. Derrick, chief clerk of the Department of State, to be acting Secre- tary of State during the absence of Mr. Web- On the 10th of May, 1851, President Fill- more appointed William S. Derrick, chief clerk of the Department of State, to be acting Secre- tary of State during the absence of Mr. Web- On the 13th of May, 1851, President Fill- more appointed C. M. Conrad, Secretary of War, to be acting Secretary of the Navy ad interim, during the absence of the Secretary. On the 16th of June, 1851, President Fill- more appointed William L. Hodge, Assistant Secretary, to act as Secretary of the Treasury during the absence of the Secretary. On the 20th of June, 1851, President Fill- more appointed William S. Derrick, chief clerk of the Department of State, to be acting Secretary of State during the temporary ab- sence of Mr. Webster. On the 11th of July, 1851, President Fill- more appointed Charles M. Conrad, Secretary of War, to act as Secretary of the Navy during the temporary absence of Mr. Graham from the seat of Government. On the 14th of July, 1851, President Fill- more appointed William S. Derrick, chief clerk of the Department of State to be acting Secretary of State during the absence of Mr. Webster. On the 4th of August, 1851, President Fill- more appointed W. A. Graham, Secretary of the Navy, to be acting Secretary qf War dur- ing the temporary absence of Mr. Conrad. On the 4th of August, 1851, President Fill- more appointed William L. Hodge to act as Secretary of the Treasury during the absence of the Secretary. On the 3d of August, 1851, President Fill- more appointed W. A. Graham, Secretary of the Navy, to be acting Secretary of the In- terior during the absence of Secretary A. H. H. Stuart from the city. On the 13th of September, 1851, President Fillmore appointed William A. Graham, Sec- retary of the Navy, to act as Secretary of War during the absence of that Secretary. On the 13th of September, 1851," President Fillmore appointed William L. Hodge acting Secretary of the Treasury during the absence of the Secretary. On the 22d of September, 1851, President Fillmore appointed- Major General Winfield Scott acting Secretary of War during the tem porary absence of the Secretary. On the 25th of September, 1851, President Fillmore appointed John J. Crittenden, Attor- ney General, to perform the duties of Secre- tary of State until the return to the seat of Gov- ernment of Daniel Webster, Secretary of State. On the 26th of November, 1851, President Fillmore appointed William L. Hodge to act as Secretary of the Treasury until the return of Secretary Corwin. On the 20th of February, 1852, President Fillmore appointed William S. Derrick, chief clerk of the Department of State, acting Sec- retary of State in the absence of Mr. Webster. On the 21st of February, 1852, President Fillmore appointed William L. Hod-ge to be acting Secretary of the Treasury in the ab- sence of Secretary Corwin. On the 1st of March, 1852, President Fill- more appointed William L. Hodge acting Sec- retary of the Treasury in the absence of Sec- retary Corwin. On the 19th of March, 1852, President Fill- more appointed William Hunter acting Sec- retary of State in the absence of Mr. Webster. On the 26th of April-, 1852, President Fill- more appointed William L. Hodge acting Sec- retary of the Treasury duringthe indisposition of Secretary Corwin. On the 2d of November, 1850, President Fillmore appointed Charles M. Conrad. Secre- tary of War, to act as Secretary of the Navy during the absence of that Secretary. On the 1st of May, 1852, President Fillmore appointed William Hunter to act as Secretary of State in the absence of Mr. Webster. . On the 19th of May, 1852, President Fill- more appointed William A. Graham, Secretary of the Navy, to act as Secretary of War in the absence of Mr. Conrad. On the 24th of May, 1852, President Fill- more appointed William L. Hodge to act as Secretary of the Treasury in the absence of Secretary Corwin. On the 10th of June, 1852, President Fill- more appointed William L. Hodge to act as Secretary of the Treasury in the absence of Secretary Corwin. On the 6th of July, 1852, President Fillmore appointed William Hunter, chief clerk of the Department of State, to act as Secretary of State in the absence of Mr. Webster. On the 19th of August, 1852, President Fill- more appointed John P. Kennedy acting Sec- retary of War during the absence of Secretary Conrad. On the 27th of August, 1852, President Fill- more appointed William L. Hodge acting Secretary of the Treasury in the absence of Secretary Corwin. On the 2d of September, 1852, President Fillmore appointed Charles M. Conrad, Secre- tary of War, to be acting Secretary of State in the absence of Mr. Webster. On the 4th of October, 1852, President Fill- more appointed William L. Hodge to be act- ing Secretary of the Treasury, Mr. Secretary Corwin being unable by sickness to perform the duties of the office. On the 28th of October, 1852, President Fillmore appointed William L. Hodge acting Secretary of the Treasury in the absence of Mr. Corwin. On the 31st of December, 1852, President Fillmore appointed William L. Hodge to act as Secretary of the Treasury during the sickness of Mr. Corwin. On the 15th of January, 1853, President Fillmore appointed William L. Hodge to act as Secretary of the Treasury during the sick- ness of Mr. Corwin. • THE CONGRESSIONAL GLOBE. 191 On the 3d of March, 1853, President Fill- more appointed William L. Hedge to act as Secretary of the Treasury in the absence of Mr. Corwin. Mr. CURTIS. I now offer documents from the Department of the Postmaster General. They are all in one envelope, (sending some . papers in an envelope to the ManagersT) The CHIEF JUSTICE. The counsel will state the nature of the documents. Mr. CURTIS. They are documents which show the removals of postmasters during the session of the Senate and ad interim appoint- ments to fill the places. I believe they are all of that character, though I am not quite sure. Some of them I know are. Mr. Manager BUTLER. They are exactly of the same kind that the Senate has just admitted. Mr. CURTIS. I should like to have those read. They are short. The CHIEF JUSTICE. The Secretary will read the documents. The Secretary read as follows: I hereby appoint St. John B. L. Skinner to be act- ing First Assistant Postmaster General ad interim in place of Horatio King, now acting Postmaster Gen- eral under tho law. JAMES BUCHANAN. Washington, February 8, 1831. Post Office Department. ■Washington, D. C, April 7, 1868. I, Alexander W. Randall, Postmaster General of the United States of America, certify that the fore- goingis a true copy of the original order on file in this Department, together with extracts from the records in said case. In testimony whoreof I have hereunto sot my hand and caused tho seal of the Post Office Depart- r. „ -i ment to bo affixed at the General Post Office 1 M-J in the city of Washington the day andy ear above written. ALEX.'W. RANDALL, Postmaster General. New Orleans Post Office, Orleans Parish, Louisiana, June 29, 1860. Samuel F. Marks, Postmaster: Let this office be placed temporarily in the hands of a special agent of the Department, to bo appointed by the Postmas- ter General, in place of Samuel F. Marks, removed. JAMES BUCHANAN. Hon. Joseph Holt, Postmaster General. June 29, 1860. Instructions sent to D. P. Blair, special agent, to take possession of the office and remove Deutzel, chief clerk. D. P. Blair held the office from 9th July to Sep- tember 4, 1860. Defalcation of the late Postmaster of New York City. (Ex. Doe. No. 91, Thirty-Sixth Congress, First Ses- sion, House of Representatives.) Letter of Postmaster General Holt, transmitting report in reply to resolution of the House of the 5th June, 1860. Order of the President. Washington, May 10, 1860. New York Post Office, New York county. New York State— Isaac V. Fowler, Postmaster; $75,000 bond. Let this office be placed temporarily in the hands of a special agent of the Post Office Department, to be appointed by the Postmaster General, in place of Isaac V. Fowler, removed. JAMES BUCHANAN, Hon. Joseph Holt, Postmaster General. H. St. George Oitfutt, Special Agent. ;sB» Seo printed report for further proceedings. January 21, 1861. Milwaukee Post Office, Wisconsin, Milwaukee county— Mitchell Steever, postmaster, (failed to pay draft.) Let this office bo placed temporarilyin the hands of a special agent of the Post Office Department, to bo appointed by the Post Office Department. JAMES BUCHANAN. January 25, 1861. D. M. Bull, special agent, took charge 6th Feb- ruary, 1861. and subsequently handed over the same to W. A. Bryant, special agent, who remained in charge up to 31st March, 1861. I hereby appoint St. John B. L. Skinner, now act- ing First Assistant Postmaster. General, to be acting Postmaster General ad interim in place of Hon. Montgomery Blair, now temporarily absent. ABRAHAM LINCOLN. Washington, September 22, 1862. [Each of these documents is attested by Post- master General Randall according to the form before given.] Mr. CURTIS. I now offer in evidence, reading from the published Executive Docu- ments of the Senate, volume four, second ses- sion, Thirty-Sixth Congress, page one, a mes- sage of President Buchanan to the Senate in respect to the office of Secretary for the De- partment of War, and the manner in which he had filled that office in place of Mr. Floyd, and accompanying that messageis alist ofthe names of those persons, as shown by the records of the Department of State, who had discharged the duties of officers of the Cabinet by appoint- ment made in the recess, and those confirmed by the Senate, as well as those acting ad interim, or simply acting. This list is printed as an appendix to the message, and was sent into the Senate. I wish that message to be Mr. Manager BUTLER. The difficulty that I find with this message, Senators, is, that it is the message of Mr. Buchanan, and cannot be put in evidence any more than the declara- tion of anybody else. We should like to have Mr. Buchanan brought here under oath, and to cross-examine him as to this. There are a great many questions I should like to ask him about his state of mind at this time ; whether he had that clearness of perception just then of his duties which would make his messages evidence. But there is a still further objec- tion, and that is, that most of the message is composed of the statements of Mr. "J. S. Black" — Jeremiah S. Black — who refused to have anything to do with this case anyhow. [Laughter.] And I do not think that the state- ments of those gentlemen, however respect- able, are to be taken here as evidence. They may be referred to as public documents, per- haps, but I do not think they can be put in as evidence. How do we know how correctly Mr. Black made up this list or his clerks ? Are you going to put in his statements. of what was done, and put it upon us or yourselves to examine to see whether they are not all illu- sory and calculated to mislead ? I do not care to argue it any further. Mr. JOHNSON. What is it offered for? Mr. CURTIS. I only wish the Senate to understand the purpose with which we offer this, and that will be, as I view it, argument enough. We offer it for the purpose of show- ing the practice of the Government. This is an act done by the head ofthe Government in connection with the. Senate of the United States. We offer to show that act as a part of the practice of the Government. Mr. Manager BUTLER. The practice of the Government 1 L object, once for all, to the practice of this Government being shown by the acts of James Buchanan and Jeremiah S. Black. If you choose to take it, I have no objection. The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate. Sena- tors, you who are of opinion that the evidence just offered shall be received will please say ay; those of the contrary opinion, no. [Put- ting the question.] The ayes appear to have it — the ayes have it. The evidence is admitted. Mr. CURTIS. The message is short, and I desire it to be read. The Secretary read as follows : Message from the President of the United States in answer to a resolution of the Senate respecting the vacancy in the office of Secretary of War. To the Senate of the United States : In compliance with the resolution of the Senate, passed on the 10th instant, requesting mo to inform that body, if not incompatible with the public in- terest, "whether John B.Floyd, whose appointment as Secretary of War was confirmed by the Senate on the 6th of March, 1857, still continues to hold said office, and if not, when and how said office became vacant; and further to inform the Senate how and by whom the duties of said office are now discharged: and if an appointment of an acting or provisional Secretary of War has been made, how, when, and by what authority it was so made, and why the fact of said appointment has not been communicated to the Senate," I have to inform the Senate that John B. Floyd, the late Secretary of the War Department, resigned that office on the29th day of Deoember last, and that on the 1st day of January instant Joseph Holt was authorized by mo to perform the duties of the said office until a successor should be appointed or the vacancy filled. Under this authority the duties ofthe War Department have been performed by Mr. Holt from the day last mentioned to the present time. The power to oarry on the business of the Govern- ment by means of a provisional appointment when a vacancy occurs is expressly given by tho act of February 13, 1795, which enacts " that in ease of va- oancy in tho office of Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or any officer of either of the said Departments, whose appointment is not in the head thereof.whercby they cannot perform thedutics of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of tho said respective offices until a successor be appointed or such vacancy be filled : Provided. That no one vacancy shall bo supplied, in manner aforesaid, for a longer period than six months." It is manifest that if the power which this law gives had been withheld the public interest would frequently suffer very serious dotriment. Vacancies may occur at any time in tho most important offices which cannot be immediately and permanently filled in a manner satisfactory to tho appointing power.- It was wise to make a provision whioh would enable the President to avoid a total suspension of businoss in the interval, and equally wise so to limit the execu- tive discretion as to prevent any serious abuse of it. This is what the Cramers of the act of 1795 did, and neither the policy nor the constitutional validity of their law has been questioned for sixty-five years. The practice of making such appointments, whether in a vacation or during the session of Con- gress, has been constantlyfollowedduring every Ad- ministration from the earliest period ofthe Govern- ment, and its perfect lawfulness has never, to my knowledge, been questioned or denied. Without going back further than the year 1829, and without taking into the calculation any but tho chief officers pf the several Departments, it will be found that provisional appointments to fill vacancies wore made to thenum- ber of one hundred andseventy-nine.fromthecom- mencement of General Jackson's administration to the close of General Pierce's. This number would probably be greatly increased if all the cases whioh occurred in the subordinate offices and bureaus wore added to thecount. Some of them were made while the Senate was in session ; some which were made in vacation were continued in force long after the Senate assembled. Sometimes the temporary officer was the commissioned head of another Department, some- times a subordinate in thesamo Department. Some- times the affairs of the Navy Departmenthave been directed ad interim by a commodore, and those ofthe War Department by a general. In most, if not all, of the cases which occurred previous to 1852 it is be- lieved that the c impensation provided bylaw for the officer regularly commissioned waspaidtotheperBOn who discharged the duties ad interim. To give the Senate a more detailed and satisfactory view of tho subject I send the accompanying tabular statement certified by the Secretary of State, in which the in- stances are all set forth in which provisional, as well as permanent, appointmentsweremadeto thehighest executive offices froml829 nearly to the present time, with their respective dates. It must beallowed that these precedents, so numer- ous and so long continued, are entitled to great re- spect, since wc can scarcely suppose that thewise and eminent men by whom they were made could have been mistaken on a point which was brought to their attention so often. Still less can it be supposed that any of them willfully violated the law or the Consti- tution. The lawfulness of the practice rests upon the exi- gencies of the public service, which require that the movements of the Government shall not be arrested by an accidental vacancyin oneof the Departments; upon an act of Congress expressly and plainly giving and regulating the power; and upon long and unin- terrupted usage of the Executive, which has never been challenged as illegal by Congress. This answers the inquiry of the Senate so far as it is necessary to show *' how and by whom tl)e duties of said office are now discharged." Nor is it neces- sary to explain further than I have don e " how, when, and by what authority" the provisional appointment has been made. But the resolution makes the addi- tional inquiry " why the fact of said appointment has not been communicated to the Senate." I take it for granted that the Senate did not mean to call for tho reasons upon which I acted in per- forming an executive duty, nor to demand an account of the motives which governed me in an act which the law and the Constitution left to my own discre- tion. It is sufficient, therefore, for that part of the resolution to say thata provisional or temporary appointment like that in question is not required by law to be communicated to theSenate, and that there is no instance on record where such communication ever has been made. JAMES BUCHANAN. Washington, January 15, 1861. United States of America, Department of State : To all to whom these presents shall come, greeting : I certify that the document hereunto annexed con- tains a correct list, duly examined and compared with the record in this Department, of those persons who have been commissioned by the President of the United States as heads of Departments, during the recess of the Senate, as confirmed by that body, as acting ad interim or merely acting, from March 4, 1829, to December 20, I860, both inclusive. In testimony whereof I, J. S. Black, Secretary of State of the United States, have hereunto subscribed my name and caused the seal of the Department of State to be affixed. Done at the city of Washington, this 15th r I day of January, A. D. 1861, and of the inde- 1 " J pendence ofthe United States of America the eighty-fifth. J. S. BLACK. 192 SUPPLEMENT TO 4 list of the names of those persons, as shown by the records of the Department of State, who discharged the duties of officers of the Cabind* whether by appointment made in recess and those confirmed by the Senate, as well as those acting ad interim or simply acting. Names. Under President Jackson. James A. Hamilton Martin V*n Buren Samuel L\ Ingham John Macpherson Berrien.. John Branch William T. Barry John H. Eaton Asbury Dickins , "William B.Lewis Richard H. Bradford William B.Lewis J. G. Randolph Philip G.Randolph J. G. Randolph John Boyle John Boyle Edward Livingston Levi Woodbury John Boyle Philip G. Randolph Asbury Dickins Roger B.Taney Lewis Cass , Roger B. Taney Louis McLane John Boyle Daniel Brent Roger B.Taney , Louis McLane Asbury Dickins Levi Woodbury Asbury Dickins John Robb John Robb Daniel Brent „ John Boyle Asbury Dickins Asbury Dickins John Robb John Bqylc John Robb Asbury Dickins Louis McLane Asbury Dickins Louis McLane William J. Duane Daniel Brent.... ^ John Robb John Boyle : Daniel Brent Asbury Dickins Roger B.Taney John Robb Peter V. Daniel Asbury Dickins Benjamin F. Butler McClintoek Young John Forsyth Levi Woodbury Mahlon- Dickerson John Boyle Asbury Dickins Benjamin F. Butler John Forsyth , Mahlon Dickerson Mahlon Dickerson Asbury Dickins Mahlon Diekerson Amos Kendall Asbury Dickins ..,., John Boyle Carey C. Harris Asbury Dickins McClintoek Young Asbury Dickins Asbury Dickins McClintoek Young Carey C. Harris Carey C. Harris Asbury Dickins Carey C. Harris Asbury Dickins John Boyle C, A. Harris C. A. Harris B. F. Butler.. B.F.Butler.. Under President Van Buren,. Joel R. Poinset A.'O. Dayton .McClintoek Young... John Boyle James K. Paulding .. Felix Grundy... John Boyle McClintoek Young .. Aaron Vail.... McClintoek Young . Aaron Vail MeCHptock Young . Henry D. Gilpin John M. Nues J..L. Martin J. L-. Martin McClintoek Young., J, L.Martin... Office. Secretary of State. Secretary of State Secretary of the Treasury... Attorney General Secretary of the Navy Postmaster General Secretary of War Secretary of the Treasury.. . Secretary of War Secretary of the Navy Secretary of War ,...., Secretary of War , Secretary of War Secretary of War Secretary of the Navy Secretary of the Navy ,.. Secretary of State Secretary of the Navy........ Secretary of the Navy Secretary of War Secretary of the Treasury... Attorney General , Secretary of War Secretary of War Secretary of the Treasury... Secretary of the Navy Secretary of State , Secretary of War Secretary of War Secretary of the Treasury... Secretary of War Secretary of the Treasury... Secretary of War Secretary of War .- Secretary of State Secretary of the Navy Secretary of the Treasury... Secretary of the Treasury... Secretary of War Secretary of the Navy Secretary of War Secretary of the Treasury... Secretary of State , Secretary of the Treasury... Secretary of State Secretary of the Treasury... Secretary of State Secretary of War Secretary of the Navy Secretary of State.... Secretary of State Secretary of the Treasury... Secretary of War Attorney General :. Secretary of State Attorney General Secretary of the Treasury... Secretary of State Secretary of the Treasury.., Secretary of the Navy Secretary of the Navy........ Secretary of State Secretary of War, Secretary of War Secretary of War Secretary of War Secretary of State Secretary of War Postmaster General Secretary of State... Secretary of the Navy Secretary of War „... Secretary of State Secretary of the Treasury- Secretary of State Secretary of State Secretary of the Treasury- Secretary of War Secretary of War Secretary of State Secretary of War Secretary of State Secretary of the Navy Secretary of War Secretary of War Secretary of War , Secretary of War Secretary of War Secretary of State Secretary of the Treasury- Secretary of the Navy Secretary of the Navy Attorney General Secretary of the Navy Secretary of the Treasury - Secretary of State Secretary of the Treasury.. Secretary of State Secretary of the Treasury.. Attorney General Postmaster General Secretary of State Secretary of State Secretary of the Treasury .. Secretary of State Date of appointment. March 4, 1829 March 6, 1829..- March 6, 1829 March 9, 1829 March 9, 1829 March 9, 1829 March 9, 1829 April 24,1829 July 7, 1829 July 8, 1829 August 19, 1829 November 7, 1829 June 12, 1830. ..„ March 8. 1831 March 19,1831 May 12,1831 May 24, 1831 May 23, 1831 June 16, 1831 June 18. 1831 .... June 21, 1831 July 20, 1831 August 1, 1831 July 20, 1831 August 8, 1831.. August 10, 1831 August 10, 1831 September \%, 1831.. September 13, 1831... October 18, 1831 October 18, 1831 March 17, 1832. June 8. 1832 July 16, 1832. July 21, 1832. July 23, 1832 July 18. 1832 November 8, 1832..... November 12. 1832.... March 28, 1833 May 6, 1833 May 6, 1833 May 13, 1833 May 29. 1833 May 29, 1833 May 29, 1833 June 5, 1833 June 6, 1833 June 5, 1833 June 13, 1833. August 10, 1833 September 23, 1833... SeDtembcr28.1833... October 22, 1833 November 11, 1833... November 15, 1833.... June 25, 1834 Juno 27, 1834 June 27, 1834 June 30. 1834 July 5, 1834... July 8, 1834 .'. No date No dato No date October 8. 1834 October 11, 1834 January 19. 1835 May 1, 1835 May 2, 1835 May 7, 1835 May 18, 1835 July 6, 1835 July 1,1835 August 31, 1835 September 28, 1835.. October 20, 1835 .. . . October 23. 1835 April 29, 1836 May 19, 1836 May 27, 1836 July 7, 1836 July 9, 1836 July 18, 1836 September8, 1836.... October 25, 1836. March 3, 1837 March 7, 1837 June 28, 1837 October 20, 1837 ... October 23, 1837 ... June 25. 1838 July 5. 1838 July 21, 1838 JuiylO. 1838 July 21. 1838 April 24, 1839 Juno 8, 1839 Juno 15, 1839 January 11, 1840.. May 19, 1840 August 26, 1840.... October 16. 1840... March 2. 1841 March 2, 1841 Character of appointment. ActiDg. Regular. Regular. Regular. Regular. Regular. Regular. Acting. Acting. Acting. Acting. -Actjng. Acting. Acting. Acting. Acting. Regular. Regular. Acting. Ad interim. Ad interim. Regular. Regular. Acting. Regular. Acting. Acting, Acting. Acting, Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Regular. Regular. Acting. Acting. Acting. Acting. Acting. Regular. Acting. Regular. Acting. Regular. Ad interim. Regular. Regular, Regular. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Regular, Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting, Acting. Ad interim. Regular. Regular. Acting. Acting. Acting. Regular. Regular. Acting. Acting. Acting. Acting. Acting. Acting. Regular. Regular. Acting. Acting. Ad jnterint. Acting. THE CONGRESSIONAL GLOBE. 193 STATEMENT— Continued. Namos. Office. Date of appointment. Character of appointment. Under Presidents Harrison and Tyler, March 5, 1841 Regular. Regular. Regular. Regular. Regular. Regular. Aetin?. Acting. Ad interim. Regular. Regular. Regular. Regular. Regular. Regular. Acting. Acting. Acting. Acting. Acting. Acting. Ad interim. Rcguhir. Regular. Acting. Ad interim. Acting. Ad interim. Acting. Acting. Regular. Regular. Regular. Acting. Ad interim. Regular. Regular. Regular. Regular. Ad interim. Regular. Regular. Regular. Regular. Regular. Regular. Regular. Acting. Acting. Acliug. Acting. Regular. Acting. Regular. Acting. Acting. Acting. Acting. Act'Hg. Actiug. Acting. Acting. Acting. Regular. Acting. Acting 1 . Ad interim. Regular. Regular. Regular. Regular. Regular. Regular. Regular. Acting. Acting. Acting. Acting. Ad interim. Regular. Regular. Regular. Regular. Regular. Regular. Regular. Acting. Acting. Actiug. Acting. Acting. Acting. Acting. Acting. Acting. * Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. March 5, 1841 J.lllM B'll Secretary of War March 5, 1841 Secretary of the Navy March 5, 1841 Attorney General March 5, 1841 Postmaster General March 6, 1841 Secretary of the Navy March 9. 1841., Daniel F. Webster April 27, 1841 Secretary of the Treasury Septomber 13, 1841 September 13, 1841 Secretary of the Navy September 13, 1841 Charles A. Wickliffe Postmaster General September 13, 1841 September 13, 1841 Secretary of War September 13, 1841 October 12, 1841 Secretary of War Willinin S. Derrick Secretary of State October 20, 1841 Secretary of the Treasury October 30, 1841 Secretary of the Treasury May 14, 1842 Secretary of the Treasury June 30, 1842 Secretary of the Treasury July 20, 1842 Secretary of the Treasury November 1, 1842 March 1, 1843 Secretary of the Treasury March 3, 1843 March 8. 1843 Secretary of the Treasury June 8, 184* Secretary of State May 9, 1843 Wiiliain S. Derrick Secretary of State June 8, 1843 Abel P. Upshur Secretary of State Juno 24, 1843 Secretary of War May 31, 1843 Secretary of State AuguatlT, 1843 Attorney General July 1 1813 Secretary of State July 24, 1843 Secretary of the Navy July 21, 1S43 Secretary of the Treasury August 28, 1843 John Nelson .'. Secretary of State February 29, 1844 Secretary of the Navy February 15, 1844 William Wilkins Secretary of War February 15, 1844 : John Y. Mason Secretary of the Navy March 14, 1844 John C. C illioun Secretary of State March 6, 1844 McCliutock Young May 2, 1844 George M. Bibb June 15, 1844 Under President Polk. Secretary of State , March 6, 1845 Robert J. Wnlkcr March 6, 1845 March 6, 1845 Postmaster General March 6, 1845 Secretary of the Navy March 10, 1845 Secretary of State April 2. 1845 August 4, 1845 N. P. Trioc Secretary of State March 31, 1846 N. P. Trist September 2, 1846 John Y, Muson Secretary of the Navy September 9, 1846 McClintock Young October 7, 1846 , Nathan Clifford Attorney General N. P. Trist Secretary of State March 11, 1847..... N. P. Trist Secretary of State March 31, 1847 June 2-8, 1847 Secretary of the Treasury July 21, 1847 Secretary of State August 4, 1847 Secretary of the Treasury October 15, 1847 December 9, 1847 April 10, 1848 May 26, 1848 June 21, 1848 Secretary of -State September 2, 1848 Secretary of War September 2, 1848 November 20, 1848 Under Presidents Taylor and Fillmore. March G, 1849 John M. Clavton March 7, 1849 William M. Meredith March 8, 1849 March 8, 1849 March 8, 1849 Postmaster General March 8, 1849 March 8, 1849 March 8, 1849 March 8. 1819 October 1, 1849 October 8, 1849 June 20, 1850 .-. Winiield Scott,. July 2i. 1850 Nathan P. Hall. Postmaster General July 23, 1850 July 23, 1850 July 22, 1850 W. A. Graham Secretary of the Navy July 22, 1850 July 22, 1S50 Charles M. Conrad... August 15, 1850 September 12,1850 W. IS Derrick Allen A.Hall W S Derrick W L Hodge March 11, 1851 W S Derrick W S Derrick May 10, 1851 C M Conrad May 15, 1851 W L Hod^e June 16, 1851 July 11, 1851 July 14, 1851 August 4, 1851 W L Hodge W A Graham August 4, 1851 September 13, 1851 September 13, 1851 September 22, 1851 Supplement — 1 3 . 194 SUPPLEMENT TO STATEMENT— Continued. Names. Office. J. J. Crittenden W. L. Hodge..., W. S. Derrick W. L. Hodge W. li. Hodge William Hunter William L. Hodgo C. M. Conrad William Hunter C. M. Conrad William L. Hodge William L. Hodge William Hunter John P. Kennedy John P. Kennedy W. L. Hodge Samuel D.Hubbard C. M. Conrad W. L. Hodge W. L. Hodge Edward Everett W. L. Hodge W. L. Hodge William Hunter W. L. Hodge Under President Pierce. W. L. Marcy James Gutbrie Robert McClelland Jefferson Davis J. C. Dobbin James Campbell Caleb Cushing P. G. Washington J. C. Dobbin A. D. Mann P. G.Washington A. D. Mann P. G. Washington William Hunter Archibald Campbell P. G.Washington Archibald Campbell P. G. Washington Samuel "Cooper William Hunter P. G.Washington Archibald Campbell Archibald Campbell Samuel Cooper Under President Buchanan. Lewis Cass Howell Cohb Jacob Thompson John B. Floyd : Isaac Toucey Aaron V.Brown J. S. Black Philip Clayton John Appleton Philip Clayton Philip Clayton John Appleton Joseph Holt Philip Clayton William R. Drinkard Philip Clayton Philip Clayton Philip Clayton William H. Trescott Philip Clayton Philip Clayton Philip Clayton Philip Clayton Isaac Toucey Philip F. Thomas W. Hunter J. S. Black Edwin M. Stanton 7. Secretary of State Secretary of the Treasury.. Secretary of State Secretary of the Treasury .. Secretary of the Treasury.. Secretary of State Secretary of the Treasury.. Secretary of the Navy Secretary of State Secretary of the Navy Secretary of tho Treasury.. Secrotary of the Treasury- Secretary of State Seoretary of the Navy Secretary of War Secretary of the Treasury- Postmaster General Secretary of State Secrotary of the Treasury. . Secretary of the Treasury- Secretary of State Secretary of the Treasury- Secretary of the Treasury - Secretary of State Secretary of the Treasury- Secretary of State Secretary of the Treasury - Secretary of the Interior... Secretary of War Secretary of the Navy Postmaster General Attorney General Secretary of the Treasury- Secretary of War Secretary of State Secretary of the Treasury - Secretary of State Secretary of the Treasury- Secretary of State Secretary of War Secretary of the Treasury- Secretary of War Secretary of the Treasury - Secretary of War Secretary of State Secretary of the Treasury- Secretary of War Secretary of War Secretary of War Secretary of State Secretary of the Treasury- Secretary of the Interior... Secretary of War Secretary of the Navy Postmaster General Attorney General Secretary of the Treasury- Secretary of State Secretary of the Treasury - Secretary of the Treasury- Secretary of State Postmaster General Secretary of the Treasury- Secretary of War Secretary of the Treasury. . Secretary of the Treasury .. Secretary of the Treasury- Secretary of State Secretary of the Treasury- Secretary of the Treasury - Secretary of the Treasury - Secretary of the Treasury- Secretary of tho Treasury .. Seoretary of the Treasury- Secretary of State Secretary of State Attorney General Date of appointment. September 25, 1851.. November 26, 1851.. February 20, 1852— February 21, 1852— March 1,1852 March 19, 1852 April 26, 1852 November 2, 1850.... May 1,1852 May 19, 1852 May 24, 1852 June 10, 1852 July 6, 1852 July 22, 1852 August 19, 1852 August 27, 1852 August 31, 1852 September 2, 1852... October4,1852 October 28, 1852 November 6, 1852,.. December 31, 1852- Januaryl5, 1853 March 3, 1853 March 3, 1853 March 7. 1853 March 7, 1853 March 7, 1853 March 7, 1853 March 7, 1853 March 7. 1853 March 7, 1853 July 11, 1853 July 11, 1853 July 29, 1853 September 23, 1853- September 28, 1853- April 12, 1854 August 21, 1854 August 29, 1854 October 5. 1854 October 30, 1854 May 5. 1855 May 26, 1855 July 21, 1855 August 6, 1855 October 9, 1855 January 19, 1857 March 3, 1857 March 6, 1857 March 6, 1857 March 6, 1857 March 6, 1857 Maroh 6, 1857 March 6, 1857 March 6, 1857 April 23, 1857 June 1,1857 June 28, 1858 July 13, 1858 August 20, 1858 March 14, 1859 April 26, 1859 July 5, 1859 July 26, 1859 August 30, 1859 May 30, 1860 June 26, 1860 July 27, 1860 October 6. 1860 October 22, 1860 November 26, 1860.. December 10, 1860... Decemher 12, I860- December 13, 1860- Docember 13, I860.. December 20, 1860- Character of appointment. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Regular. Acting. Acting. Regular. Acting. Acting. Acting. Regular. Acting. Acting. Ad interim. Acting. Regular. Regular. Regular. Regular. Regular. Regular. Regular. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Regular. Regular. Regular. Regular. Regular. Regular. Regular. Acting. Acting. Acting. Acting. Acting. Regular. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Ad interim. Regular. Acting. Regular. Regular. Mr. CURTIS. I now desire to move for an order on the proper officer of the Senate to furnish, so that we may put into the case, a statement of the dates of the beginning and end of each session of the Senate, including, of course, its executive sessions as well as its legislative, from the origin of the Government down to the present time. That will enable us, by comparing those dates with these facts which we put into the case, to see what was done within and what was done without the session of the Senate. The CHIEF JUSTICE. The Chief Justice is of opinion that that is an application which can only be addressed to the Senate in legisla- tive session. If the court desire it he will vacate the chair in order that the President pro tempore may take it. Mr. CURTIS. I would state, Mr. Chief Justice, that we have now concluded our doc- umentary evidence as at present advised ; we may possibly desire hereafter to offer some additional evidence of this character, but as we now understand it we shall not. Mr. JOHNSON. Mr. Chief Justice, I move that the Senate, sitting as a court of impeach- ment, adjourn until to-morrow at twelve o'clock. The motion was agreed to ; and the Sen- ate sitting for the trial of the impeachment adjourned. Thursday, April 16, 1868. The Chief Justice of the United States took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives and the counsel for the respondent, except Mr. Stan- bery, appeared and took the seats assigned them respectively. The members of the House of Representa- tives, as in Committee of the Whole, pre- ceded by Mr. E. B. Washburxe, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were con- ducted to the seats provided for them. The CHIEF JUSTICE. The Secretary will read the Journal of yesterday's proceedings. The Secretary proceeded to read the Jour- nal, but was interrupted by Mr. SHERMAN. I move that the reading of the Journal be dispensed with. The CHIEF JUSTICE. If there be no ob- jection the reading of the Journal will be dis- pensed with. There beisg no objection, it is so ordered. Mr. SUMNER. Mr. President, I send to the Chair a declaration of opinion to be adopted THE CONGRESSIONAL GLOBE. 195 by the Senate as an answer to the constantly recurring questions on the admissibility of testimony. The CHIEF JUSTICE. The Secretary will read the paper submitted by the Senator from Massachusetts. The Secretary read as follows : Considering the character of thia proceeding, that it is a trial of impeachment before the Senate of the United States, and not a proceeding by indict- ment in an inferior court; * Considering that Senators are, from beginning to end, judges of law as well as fact, and that they are judges from whom there is no appeal; Considering that the reasons for tho exclusion of evidence on an ordinary trial where the judge re- sponds to the law and the jury to the fact are not applicable to suoh a proceeding; Considering that, according to parliamentary usage, which is the guide in all such cases, there is on trials of impeachment a certain latitude of inquiry and a freedom from technicality; And considering, finally, that already in tho course of this trial thero have been differences of opinion as to the admissibility of evidence; Therefore, in order to remove all such differences and to hasten the dispatch of business, it is deemed advisable that all evidence offered on either side not trivial or obviously irrelevant in nature shall be re- ceived without objection, it being understood that the same when admitted shall be open to question and comparison at the bar in order to determine its competency and value, and shall be carefully sifted and weighed by Senators in the final judgment. Mr. CONNESS. Mr. President, I move to lay that paper on the table, and on that motion I ask for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted — yeas 33, nays 11; as follows: YEAS— Messrs. Buckalew.Camoron, Cattell, Chand- ler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Fesson- den, Frelinghuysen, Harlan, Howard, Howe, John- son, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Saulsbury, Stewart, Thayer, Tipton, Williams, and Yates— 33. NAYS— Messrs. Anthony, Fowler, Grimes, Morton, Patterson of Tennessee, Sherman, Sumner, Van Win- kle, Vickers, Willey, and Wilson — 11. NOT VOTING— Messrs. Bayard, Henderson.Hend- ricks, McCreery, Norton, Nye, Ross, Sprague, Trum- bull, and Wade— 10. So the proposition was laid upon the table. The CHIEF JUSTICE. Gentlemen of counsel for the President, you will please pro- ceed with the defense. Mr. EVARTS. Mr. Chief Justice and Sen- ators, I am not able to announce the recovery of Mr. Stanbery, but I think had not the weather been so entirely unfavorable he would have been able to be out, perhaps, to-day. He is, however, convalescent, but, nevertheless, the situation of his health and proper care for his complete recovery prevents us from having much opportunity of consultation with him during the intervals of the sessions of this court. We shall desire to-day to proceed with such evidence as we think properly we can pi'oduce in his absence, and may occupy the session of the court with that evidence during the usual hours of its sitting. We shall not desire to protract, however, the examinations with any such object or view, and if before the close of the ordinary period of the session we should come to that portion of the testimony in which we regard Mr. Stanbery's presence as indis- pensable we shall submit that to the discretion of the court. Mr. CURTIS. Mr. Chief Justice, I desire to offer in evidence two documents received this morning from the Department of State of a character, I believe, entirely similar to some of those which were received yesterday. They are in continuation chronologically of what was put in yesterday, and merely complete the series. Mr. Manager BUTLER. Under the decision of yesterday we do not object. We understand them to be the same thing. You do not desire them read, I suppose. Mr. CURTIS. No, I do not desire them read. Mr. JOHNSON. State what they are. Mr. CURTIS. They are a continuation of the documents put in yesterday, so as to bring the evidence of the practice down to a more recent period. The documents thus offered in evidence are attested by the Secretary of State in the usual . form to be copied from the records of his De- partment, and contain the letters of authority, designation, or appointment in the following cases : On the 11th of July, 1853, President Pierce appointed Peter G. Washington to take charge of the Treasury Department " during the ex- pected absence of the Secretary of the Treasury from the seat of Government." On the 11th of July, 1853, President Pierce appointed James C. Dobbin to be acting Sec- retary of War in the absence of Jefferson Davis. On the 29th of July, 1853, President Pierce appointed A. Dudley Mann, Assistant Secre- tary of State, to be acting Secretary of State during the temporary absence of Secretary W, L. Marcy from the seat of Government. On the 23d of September, 1853, President Pierce appointed Peter G. Washington to dis- charge the duties of Secretary of the Treasury during the absence of Secretary Guthrie from the seat of Government. On the 28th of September, 1853, President Pierce appointed A. Dudley Mann, Assistant Secretary of State, to be acting Secretary of State during the temporary absence of Mr. Marcy from the seat of Government. On the 12th of April, 1854, President Pierce appointed Peter G. Washington to discharge the duties of Secretary of the Treasury during the temporary absence of Secretary Guthrie from Washington. On the 21st of August, 1854, President Pierce appointed William Hunter to perform the duties of Secretary of State during the absence of Mr. Marcy from the seat of Government. On the 29th of August, 1854, President Pierce appointed Archibald Campbell to be acting Secretary of War during the absence of the Secretary from the seat of Government. On the 5th of October, 1854, President Pierce appointed Peter G. Washington to discharge the duties of Secretary of the Treasury during the absence of Secretary Guthrie from Wash- ington. On the 30th of October, 1854, President Pierce appointed Archibald Campbell, chief clerk of the War Department, to be acting Secretary of War during the temporary absence of the Secretary. On the 3d of May, 1855, President Pierce appointed Peter G. Washington to discharge the duties of Secretary of the Treasury during the absence of Secretary Guthrie from Wash- ington. On the 26th of May, 1855, President Pierce appointed Colonel Samuel Cooper, United States Army, acting Secretary of War, during the temporary absence of the Secretary from the seat of Government. On the 21st of July, 1855, President Pierce appointed William Hunter, Assistant Secretary of State, to perform the duties of Secretary of State, Mr. Marcy being absent from the seat of Government. On the 6th of August, 1855, President Pierce appointed Peter G. Washington to discharge the duties of Secretary of the Treasury during the absence of Secretary Guthrie from Wash- ington. On the 9th of October, 1856, President Pierce appointed A. Campbell, acting Secre- tary of War, during the temporary absence of the Secretary. On the 19th of January, 1857, President Pierce appointed Archibald Campbell, acting Secretary of War, during the temporary ab- sence of the Secretary. On the 3d of March, 1857, President Pierce appointed Colonel Samuel Cooper, Adjutant General of the Army, to be acting Secretary of War. On the 23d of April, 1857, President Bu- chanan appointed Philip Clayton to discharge the duties of Secretary of the Treasury during the absence from Washington of Secretary Cobb. On the 1st of June, 1857, President Bu- chanan appointed John Appleton to be acting Secretary of State during the absence of Sec- retary Cass from the seat of Government. On the 28th June, 1858, President Buchanan appointed Philip Clayton to perform the duties of Secretary of the Treasury during the absence of Secretary Cobb from Washington. On the 13lh of July, 1858, President Bu- chanan appointed Philip Clayton to discharge the duties of Secretary of the Treasury during the absence from Washington of Secretary Cobb. On the 20th of August, 1858, President Bu- chanan appointed John Appleton, Assistant Secretary of State, to discharge the duties of Secretary of State during the absence of Sec- retary Cass from Washington. On the 26th of April 1859, President Bu- chanan appointed Philip Clayton to act as Secretary of the Treasury during the tempo- rary absence of the Secretary of the Treasury. On the 5th of July, 1859, President Bu- chanan appointed William K. Drinkard to be acting Secretary of War during the absence of the Secretary from his office. On the 26th July, 1859, President Buchanan appointed Philip Clayton to act as Secretary of the Treasury during the temporary absence of Secretary Cobb from Washington, "from and after the 1st of August." On the 30th of August, 1859, President Bu- chanan appointed Philip Clayton to act as Sec- retary of the Treasury during the absence of Secretary Cobb from Washington. On the .30th August, 1859, President Bu- chanan appointed Philip Clayton to act as" Sec- retary of the Treasury during the absence from Washington of Secretary Cobb. On the 30th May, 1860, President Buchanan appointed Philip Clayton to. act as Secretary of the Treasury during the absence from Wash- ington of Secretary Cobb. On the 26th June, 1860, President Buchanan appointed William H. Trescott to discharge the duties of Secretary of State during the absence of the Secretary of State from Wash- ington. On the 27th July, 1860, President Buchanan appointed Philip Clayton to discharge the duties of Secretary of the Treasury during the absence of Secretary Cobb from Washington. On the 6th October, 1860, President Bu- chanan appointed Philip Clayton to discharge the duties of Secretary of the Treasury during the absence of Secretary Cobb from Washing- ton. On the 22d of October, 1860, President Bu- chanan appointed Philip Clayton to discharge the duties of Secretary of the Treasury dur- ing the absence of Secretary Cobb from Wash- ington. On the 26th of November, 1860, President Buchanan appointed Philip Clayton to dis- charge the duties of Secretary of the Treasury during the sickness of Secretary Cobb. On the 13th of December, 1860, President Buchanan appointed William Hunter, chief clerk of the Department of State, to act as Secretary of State until an appointee should be regularly commissioned. On the 10th of December, 1860, President Buchanan, by virtue of the act of Congress approved February 13, 1795, authorized Isaac Toucey, Secretary of the Navy, to perform the duties of Secretary of the Treasury, "now vacant by the resignation of Howell Cobb," until a successor should be appointed and the vacancy filled. On the 2d of August, 1861, President Lin- coln appointed Thomas A. Scott to act as Sec- retary of War during the temporary absence of Secretary Cameron from the seat of Gov- ernment. On the 8th of August, 1861, President Lin- coln appointed George Harrington to discharge the duties of Secretary of the Treasury during the temporary absence from Washington of Salmon P. Chase. On the _27th of August, 1801, President Lin- coln appointed Frederick W. Seward, Assistant Secretaryof State, to be acting Secretary of State during the temporary absence from the seat of Government of William H. Seward. On the 3d of September, 1861, President 196 SUPPLEMENT TO Lincoln appointed George Harrington to act as Secretary of the Treasury during the absence of S. P. Chase from Washington. On the 26th of September, 1861, President Lincoln appointed William L. Hodge to be acting Secretary of the Treasury daring the absence of the Secretary, "commencing from the 27th instant." On the 2d of November, 1861, President Lincoln appointed George Harrington to dis- charge the duties of Secretary of the Treasury during the absence of Salmon P. Chase from Washington. On the 4th of November, 1861, President Lincoln appointed FrederickW. Seward, Assist- ant Secretary of State, to be acting Secretary of State during the temporary absence of Wil- liam H. Seward from the seat of Government. On the 13th of November, 1861, President Lincoln appointed George Harrington to dis- charge the duties of Secretary of the Treasury during the absence of S. P. Chase from Wash- ington. On the 18th of December, 1861, President Lincoln appointed George Harrington to dis- charge the duties of Secretary of the Treasury during the absence of S. P. Chase from Wash- ington. On the 4th of January, 1862, President Lin- coln, " pursuant to the act of Congress in such case made and provided," the Secretary of State being absent from the seat of Govern- ment, appointed Frederick W. Seward, Assist- ant Secretary, to be Secretary of State. On the 28th of January, 1862, the Secretary of State being absent from the seat of Govern- ment, President Lincoln, "pursuant to the authority in such case provided," authorized Assistant Secretary F. W. Seward to act as Secretary of State. On the 6th of February, 1862, the Secretary of State being absent from the seat of Govern- ment, President Lincoln, " pursuant to the authority in such case provided," authorized Assistant Secretary F. W. Seward to act as Secretary of State. On the 9th of April, 1862, the Secretary of State being absent from the seat of Govern- ment, President Lincoln, "pursuant to the authority in such case provided," authorized Assistant Secretary F. W. Seward to act as Secretary of State. On the 11th of April, 1862, President Lin- coln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of Salmon P. Chase from Wash- ington. On the 5th of May, 1862, President Lincoln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of Salmon P. Chase from Washington. On the 14th of May, 1862, the Secretary of State being absent from the seat of Govern- ment, President Lincoln authorized William Hunter, chief clerk of the Department of State, to perform the duties of Secretary until his return. On the 19th of May, 1862, President Lincoln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of Salmon P. Chase from Washington. On the 11th of June, 1862, President Lincoln authorized Frederick W. Seward, Assistant Secretary of State, to discharge the duties of Secretary of State, the Secretary of State being absent from the seat of Government. On the 30th of June, 1862, President Lincoln authorized Frederick W. Seward, Assistant Secretary of State, to discharge the duties of Secretary of State, the Secretary of State being absent from the seat of Government. On the 27th of August, 1862, President Linr coin authorized Frederick W. Seward, Assistant Secretary of State, to discharge the duties, of Secretary of State, the Secretary of State being absent from the seat of Government. On the 8th of January, 1863, President Lin- coln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of the Secretary, Salmon P. Chase. On the 13th of March, 1863, President Lin- coln appointed George Harrington to discharge the duties of Secretary of the Treasury daring the absence of the Secretary, Salmon P. Chase. On the 18th of April, 1863, President Lin- coln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of the Secretary, Salmon P. Chase. On the 27th of April, 1863, President Lin- coln, the Secretary of State being absent, ap- pointed William Hunter, chief clerk of the Department of State, to perform the duties of Secretary of State until the return of the Sec- retary. On the 21st of May, 1863, President Lincoln appointed George Harrington to perform the duties of Secretary of the Treasury during the absence of the Secretary, Salmon P. Chase. On the 25th of May, 1863, President Lincoln, the Secretary of State being absent, authorized Frederick W. Seward, Assistant Secretary, to discharge the duties of Secretary of State. On the 27th of July, 1863, President Lincoln appointed George Harrington to act as Secre- tary of the Treasury during the absence of the Secretary, Salmon P. Chase. On the 15th of August, 1863, President Lin- coln, the Secretary of State being absent, authorized Frederick W. Seward, Assistant Secretary, to act as Secretary of State. On the 10th of October, 1863, President Lin- coln appointed Lucius E. Chittenden to dis- charge the duties of Secretary of the Treasury during the absence of Salmon P. Chase, Sec- retary. On the 2d of November, 1863, President Lincoln, the Secretary of State being absent, authorized Frederick W. Seward, Assistant Secretary, to act as Secretary of State. On the 23d of December, 1863, President Lincoln, the Secretary of State being absent, authorized Frederick W. Seward, Assistant Secretary, to act as Secretary of State. On the 11th of April, 1864, President Lin- coln, the Secretary of State being absent, authorized Frederick W. Seward, Assistant Secretary, to act as Secretary of State. On the 14th of April, 1864, President Lin- coln appointed George Harrington to dis- charge the duties of Secretary of the Treasury during the absence of the Secretary, Salmon P. Chase. On the 27th of April, 1864, President Lin- coln appointed George Harrington to dis- charge the duties of Secretary of the Treasury during the absence of Secretary Salmon P. Chase. On the 7th of June, 1864, President Lincoln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of Secretary Salmon P. Chase. On the 30th of June, 1864, President Lin- coln authorized George Harrington, Assistant Secretary of the Treasury, to perform all and singular the duties of Secretary of the Treasury until a successor to Mr. Chase, resigned, should be commissioned, or until further order. On the 11th of July, 1864, President Lincoln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of William P. Fessenden, Secre- tary. On the 30th of July, 1864, President Lin- coln appointed George Harrington to dis- charge the duties of Secretary of the Treasury during the absence of Secretary Fessenden. On the 29th of August, 1864, President Lin- coln authorized Frederick W. Seward, Assist- ant Secretary of State, to discharge the duties of Secretary of State during the absence of the Secretary, W. H. Seward. On the 26th of September, 1864, President Lincoln authorized Frederick W. Seward, Assistant Secretary of State, to discharge the duties of Secretary of State during the absence of the Secretary, W. H. Seward. On the 17th of October, 1864, President Lin- coln appointed George Harrington to act as Secretary of the Treasury during the absence of Secretary Fessenden. On the 4th of November, 1864, President Lincoln authorized William Huntei - , chief clerk of the Department of State, to act as Secretary of State until the return of the Secretary, he being absent. On the 4th of January, 1865, President Lin- coln authorized Frederick W. Seward, Assist- ant Secretary of State, to act as Secretary of State " during the present temporary absence of William H. Seward." On the 1st of February, 1865, President Lin- coln authorized Frederick W. Seward, Assist- ant Secretary of State, to discharge the duties of Secretary of State during the absence of William H. Seward. On the 4th of March, 1865, President Lincoln authorized George Harrington, Assistant Sec- retary of the Treasury, to perform the duties of Secretary of the Treasury until a successor to Mr. Fessenden should be commissioned and qualified or until further order. On the 10th of April, 1865, President Lincoln authorized Frederick W. Seward, Assistant Sec- retary of State, to discharge the duties of Secre- tary of State during the illness of William H. Seward. On the 15th of April, 1865, President John- son appointed William Hunter to perform the duties of Secretary of State until otherwise ordered, Secretary Seward being sick. On the 26th of July, 1865, President John- son appointed William Hunter to be acting Secretary of State in the absence of William H. Seward. On the 15th of August, 1865, President John- son authorized William Hunter to discharge the duties of Secretary of State in consequence of the absence of the Secretary from the seat of Government. On the 29th of September, 1865, President Johnson appointed William E. Chandler, Assist- ant Secretary of the Treasury, to perform the duties of Secretary of the Treasury daring the absence of Secretary McCulloch. On the 4th of October, 1865, President John- son authorized William Hunter, chief clerk of the Department of State, to discharge the duties of Secretary of State until the return of the Secretary, he being absent. On the 6th of November, 1865, President Johnson appointed William E. Chandler to dis- charge the duties of Secretary of the Treasury during the absence of Secretary McCulloch. On the 20th of December, 1865, President Johnson appointed William E. Chandler to dis- charge the duties of Secretary of the Treasury during the absence of Secretary McCulloch. On the 20th of December, 1865, President Johnson appointed William E. Chandler to dis- charge the duties of Secretary of the Treasury during the absence of Secretary McCulloch. On the 30th of December, 1865, President Johnson authorized William Hunter to dis- charge the duties of Secretary of State, the Secretary being absent. On the 15th of May, 1866, President John- son authorized F. W. Seward, Assistant Secre- tary of State, to discharge the duties of Secre- tary of State, the Secretary being absent: On the 4th of August, 1866, President John- son appointed William E. Chandler to dis- charge the duties of Secretary of the Treas- ury during the temporary absence of Secretary McCulloch. On the 10th of August, 1866, President Johnson authorized Henry Stanbery, Attorney General, to discharge the duties of Secretary of State during the absence of that Secretary. On the 18th of September, 1866, President Johnson authorized Frederick W. Seward, Assistant Secretary of State, to discharge the duties of Secretary of State during the illness of William H. Seward. On the 5th of October, 1866, President John- son authorized Frederick W. Seward, Assist- ant Secretary of State, to discharge the duties of Secretary of State during the illness of William H. Seward. On the 29th of October, 1866, President Johnson authorized William Hunter, Second Assistant Secretary of State, to discharge the duties of Secretary of State during the ab- sence of William H. Seward. THE CONGRESSIONAL GLOBE. 197 On the 5th of November, 1866, President Johnson authorized William E. Chandler to perform the duties of Secretary of the Treasury during the temporary absence of Secretary McCulloch. On the 20th of December, 1866, President Johnson authorized William E. Chandler to perform the duties of Secretary of the Treasury during the temporary absence of Secretary McCulloch. On the 23d of April, 1867, President John- son authorized Frederick W. Seward, Assist- ant Secretary of State, to act as Secretary of State during the absence of William H. Seward. On the 1st of June, 1867, President John- son authorized F. W. Seward, Assistant Sec- retary of State, to act as Secretary of State during the absence of Secretary W. H. Seward. On the 23d of July, 1867, President John- son authorized William Hunter, Second As- sistant Secretary of State, to discharge the duties of Secretary of State during the absence of William H. Seward. On the 16th of September, 1867, President Johnson authorized John F. Hartley to dis- charge the duties of Secretary of the Treasury during the temporary absence of Secretary McCulloch. On the 9th of October, 1867, President John- son authorized Frederick W. Seward, Assist- ant Secretary of State, to discharge the duties of Secretary of State during the absence of the Secretary, W. H. Seward, from the seat of Government. On the 13th of November, 1867, President Johnson appointed John F. Hartley to dis- charge the duties of Secretary of the Treasury during the absence of Secretary McCulloch "at any time in the month of November, 1867." On the 11th of March, 1868, President John- son appointed F. W. Seward, Assistant Sec- retary of State, to discharge the duties of Secretary of State during the absence from the seat of Government of Secretary W. H. Seward. Mr. CURTIS. I will now put in evidence, so that it may be printed in connection with this documentary evidence, statements fur- nished by the Secretary of the Senate under the order of the Senate, one showing the beginning and ending of each legislative ses- sion of Congress from 1789 to 1868; and the other being a statement of the beginning and ending of each special session of the Senate from 1789 to 1868. Mr. Manager BUTLER. We have no ob- jection. The CHIEF JUSTICE. The evidence is received. The documents are as follows : Statement of the beginning and ending of each Legis- lative Session of Congress, from 1789 to 1868. Congress. Session-. Began. 1st 1st March 4, 1789.. Jan. 4, 1790 Deo. 6, 1790 Oot. 24, 1791.... Nov. 5, 1792.... Deo. 2, 1793 Nov. 3, 1794.... Deo. 7, 1795 Deo. 5, 1796 May 15, 1797... Nov. 13. 1797... Dee. 3, 1798 Deo. 2, 1799,. Nov. 17, 1800... Dee. 7, 1801 Deo. 6, 1802,, Oot. 17, 1803 Nov. 5, 1804 Dee. 2, 1805 Deo. 1, 1806 Oot. 26, 1807 Nov. 7, 1808 May 22, 1809... Nov. 27, 1809... Deo. 3, 1810 Nov. 4, 1811 Nov. 2, 1812 May 24, 1813.... Deo. 6, 1813 Sept. 19, 1814... Deo. 4, 1815.. Deo. 2, 1816,, Doc. 1,1817 Nov. 16. 1818... Doc. 6, 1819 1st 2d 1st 3d 2d 1st 2d 2d 3d 1st 3d 2d 4th 1st 4th 2d 5th 1st 5th 2d 5th....: 3d 6th 1st 6th. ... 2d 7th 7th 1st 2d 8th 1st 8th 2d 9th 1st 9th 2d 10th 1st 10th 2d lltb.... 1st 11th 2d 11th .. 3d 12th 1st 12th 2d 13th 13tli 1st 2d 13th 3d 14th 14th 1st 2d 15th 1st 15th 2d 16th 1st Ended. Sept. 29, 1789. Aug. 12, 1790. March 3, 1791. May 8, 1792. March 2, 1793. Juno 9, 1794. March 3, 1795. June 1, 1796. March 3, 1797. July 10, 1797. July 16, 1798. March 3, 1799. May 14, 1800. March 3. 1801. May 3, 1802. March 3, 1803. March 27, 1804. March 3, 1805. April 21, 1806. March 3, 1807. April 25, 1808. March 3, 1809. June 28, 1809. May 1, 1810. March 3, 1811. July 6, 1812; March 3. 1813. Aug. 2. 1813. . April 18, 1814. March 3, 1815. April 30, 1816. March 3, 1817. April 20, 1818. March 3, 1819. May 15, 1820. STATEMENT-Continued. Congress. Session. Began. Ended. 16th 2d Nov. 13, 1820... Deo. 3, 1821 Dec. 2, 1822 Dec. 1, 1823 Deo. 6, 1824 Deo. 5, 1825 Dec. 4, 1826 Dec. 3, 1827, Dee. 1, 1828 Dec. 7, 1829 Dec. 6, 1830 Dec. 5, 1831 , Deo. 3, 1832 Dec. 2, 1833,, Dec. 1, 1834 Dec. 7, 1835 Deo. 5, 1836 Sept. 4, 1837.... Dec. 4, 1837., Dec. 3, 1838 Dec. 2, 1839 Dec. 7, 1840 May 31.1841... Dec. 6, 1841, . Dec. 5, 1842 Dee. 4, 1843 Dec. 2, 1844 Dee. 1, 1845 Dec. 7, 1846 Dec. 6, 1847,, Dec. 4,1848,, Dec. 3,1849 Dec. 2. 1850 Deo. 1,1851 Deo. 6, 1852 Dec. 5, 1853 Deo. 4, 1854 Dec. 3, 1855, Aug. 21, 1856... Deo. 1, 1856 Dec. 7, 1857 Dec. 6, 1858 Deo. 5, 1859 Dec. 3, 1860 July 4, 1861 , Dec. 2.1861,. Deo. 1, 1862 , Deo. 7, 1863 Deo. 5, 1864 Dec. 4, 1865 Dec. 3, 1866 March 4, 1867.. Deo. 2, 1867 , March 3, 1821. 17th 1st May 8, 1822. March 3. 1823. 17th 2d 18th 1st May 27, 1824. March 3, 1825. 18th. „ 2d 19th 1st... May 22. 1826. March 3, 1827. 19th 2d 20th 20th 1st 2d May 26, 1828. March 3, 1829. 21st 21st 1st 2d.... May 31, 1830. March 3, 1831. 22d 1st.. July 16, 1832. March 2, 1833. 22d 2d 23d 23d 1st 2d June 30, 1834. March 3, 1835. 24th 1st.... July 4, 1836. 24th 2d.. March 3, 1837. 25th 1st Oct. 16, 1837. 25th 2d July 9, 1838. 25th 3d.... March 3, 1839. 26th 1st July 21, 1810. 26th 2d March 3, 1841. 27th 1st . Sept. 13, 1841. Aug. 31, 1842. 27th 2d 27 th 3d March 3, 1843. 28th 1st June 11, 1844. 28th 2d. March 3, 1845. 29th 1st Aug. 10, 1816. March 3, 1847. 29th 2d.. 30th 1st. Aug.14, 1848. March 3, 1849. 30th 2d 31st 1st.... Sept. 30, 18:0. March 3, 1851. 31st 2d 32d 1st... Aug. 31, 1852. March 3, 1S53. 32d 2d... 33d 1st Aug. 7, 1854. 33d 2d March 3, 1855. 34th r.... 1st Aug. 18, 1856. 34th 2d Aug. 30. 1856. March 3, 1857. 34th 3d.... 35th 1st... June 14, 1858. 35th 2d. March 3, 1859. 36th 36th 1st 2d Juno 25, 1860. March 2 1861. 37th 1st.... Aug. 6. 1861. July 17, 1862. 37th 2d 37th 3d.... March 3. 1863. 38th 1st 2d July 4, 1864. 38th March 3, 1865. 39th 1st July 25, 1866. 39th 2d March 2, 1867. 40th 40th 1st 2d Dec. 2, 1867. Office Secretary op the Senate, April 16, 1868. I certify that the foregoing statement is correct as appears by the records of the Senate. J. W. FORNEY, Secretary. Statement of the Beginning and Ending of each Special Session of the Senate from 1789 to 1868. Begun. Ended. March 4. 1797 March 4, 1797. March 4, 1801 .'....March 5, 1801. March 4, 1809 March 7, 1809. March 4, 1817 March 6, 1817. March 4, 1825 March 9, 1825. March 4. 1829 March 17, 1829. March 4, 1837 March 10, 1837. March 4. 1841 March 15, 1841. March 4. 1845 March 20, 1845. March 5, 1849 March 23, 1849. March 4, 1851 March 13, 1851. March 4, 1853 April 11, 1853, March 4, 1857 March 14, 1857. June 15.1858 June 16,1858. March 4, 1859 March 10, 1859. June 26, 1860 June 28. 1860. March 4, 1861 March 28.1861. March 4, 1863 March 14, 1863. March 4, 1865 March 11, 1865. April 1,1867 April 20,1867. Office Secretary of the Senate, April Id, 1868. I certify that the foregoing statement is correct as appears by tho records of the Senate. J. W. FOKNEY, Secretary. Mr. CURTIS. The Sergeant-at-Arms will now please call Walter S. Cox. Walter S. Cox sworn and examined. By Mr. Curtis : Question. State what is your residence and what is your profession? Answer. I reside in Georgetown, in this Dis- trict. I am a lawyer by profession. Question. How long have you been in the practice of the law? Answer. Some twenty years, I think. Question. In this city? Answer. Yes, sir. Question. In what courts? Answer. In the courts of this District and, most of the time, in the Supreme Court of the United States. Question. Were you connected profession- ally with the matter of General Thomas before the criminal court of this District or before a magistrate? Answer. I was. Question. When and under what circum- stances did your connection with that matter begin ? Answer. On Saturday, the 22d of Febru- ary Mr. Manager BUTLER. Stop a moment, please. If I heard the question correctly, the inquiry put to the witness was, when andunder what circumstances did your connection with the case of Thomas before the Supreme Court, or the chief justice of the District, commence? Mr. CURTIS. That was the question in substance. Mr. Manager BUTLER. To that we must object. It is impossible to see how the employ- ment of Mr. Cox to defend Mr. Thomas can have anything to do with this case. It stands in this way : we put in that Mr. Thomas said that if it had not been for the arrest he should have taken the War Office by force as he had threatened. The defense then produced the warrant and affidavit and the record of his acquittal. I do not propose to argue it ; but 1 ask the attention of the Senate to the ques- tion whether the employment of Mr. Cox by Mr. Thomas as counsel, the circumstances under which he was employed, and the dec- laration of Mr. Thomas to his counsel, can be put in evidence under any rule, even the one which the Senate has just voted should not be the governing rule of this body — the exception to evidence as too trivial — if it were not legally incompetent? Mr. CURTIS. I understand the objection to be that we cannot show that General Thomas employed Mr. Cox as his counsel ; that we can- not show declarations made by Mr. Thomas to Mr. Cox as his counsel. We do not propose to prove either of those facts. If the gentleman will wait long enough to see what we do pro- pose to prove, he will see that that objection is not applicable. [To the witness.] Will you now state, sir, when, and by whom, and under what circumstances you were employed in that matter? Mr. Manager BUTLER. Stop one moment. I object. The question is, when, and by whom, and under what circumstances this gentleman was employed? If he was employed by the President that is worse than the other, in my judgment, as a legal proposition. I desire that the question be put in writing that we may have a ruling upon it ; or, to save time, if the learned counsel will put in exactly what he proposes to prove by this witness we can meet the whole of it. The CHIEF JUSTICE. The Chief Justice sees no objection to the question as an intro- ductory question, but will submit it to the Sen- ate if it is desired. [After a pause, to the wit- ness.] You can answer the question. Answer. On Saturday, the 22d of February, a messenger called at my house with a carriage and stated that Mr. Seward desired to see me immediately Mr. Manager BUTLER. I object to the declarations of any person there. The CHIEF JUSTICE, (to the witness.) You need not state anything that Mr. Seward said to you. The Witness. Nothing was said by Mr. Seward. The messenger stated further that he was directed to take me immediately to the President's House. I accompanied him to the President's House and found the President and General Thomas there alone. By Mr. Curtis : Question. At what hour or about what hour? Answer. At about five o'clock in the after- noon. After I was seated the President stated Mr. Manager BUTLER. Stop a moment. I object to the statement of the President at five o'clock in the afternoon. [Laughter.] The CHIEF JUSTICE. Will the counsel for the President state the object of this tes- timony ? 198 SUPPLEMENT TO Mr. CURTIS rose. Mr. Manager BUTLER. We desire that that may be put in writing, Mr. Chief Justice. The CHIEF JUSTICE. The offer to prove will be put in writing if any Senator requires it. Mr. EDMUNDS. I ask that the offer to prove may be put in writing, that we may all understand precisely what the question is. The CHIEF JUSTICE. The counsel will please put what they propose to prove in writing. The offer was reduced to writing and sent to the desk. The CHIEF JUSTICE. The Secretary will read the proposition. The Secretary read as follows : We offer to prove that Mr. Cox was employed pro- fessionally by the President, in the presence of Gen- eral Thomas, to take such iegal proceedings in the case that had been commenced against General Thomas as would be effectual to raise judicially the Suestion of Mr.- Stanton's legal right to continue to old the office of Secretary for the Department of War against the authority of the President, and also in reference to obtaining a writ of quo warranto for the same purpose; and we shall expect to follow up this proof by evidence of what was done by the, wit- ness in pursuance of the above employment. Mr. EDMUNDS. Mr. President, I should like to ask an oral question, if there be no objection. The CHIEF JUSTICE. If there be no objection the Senator from Vermont will ask his question. Mr. EDMUNDS. I wish to ask at what date this interview is alleged to have taken place ? Mr. CURTIS. The 22d of February. Mr. Manager BUTLER. This testimony is liable to two objections, if not more, but two sufficient, Mr. President and Senators. The first is that after the act done, and after the matter was in course of impeachment, was in proceeding before the House, an,d after Mr. Stanton had, to protect himself, made an affi- davit that he expected to be turned out of his office by force, the President sent, as is pro- posed to be proved, for Mr. Cox, the witness, and gave him certain directions. It is alleged that those directions were that he should pre- pare a quo warranto. I had supposed that such a quo warranto was to be filed by the Attorney General, if at all, but that that pro- cess had substantially gone out of use, and an information in the nature of a writ of quo war- ranto would have been the proper proceeding, and that information must be exhibited by the Attorney General. Now, then, let us see just here how the case stands. The President had told General Sher- man that the reason why he did not apply to lawyers, and why he took Army officers into this trouble, was that it was impossible to make up. a case. One of the Senators asked him to repeat that answer, and he repeated it. The President said to him, "I am told by the law- yers that it is impossible to make up a case." . After he had been told that, and after he had been convinced of that, he still went on to makethe removal, andhe undertakes to show to you here that he made the removal to make up a case which he himself declared was impossi- ble to be made up. It is apparent that no case would by possibility have got into court except for the declarations and the threats of this offi- cer Thomas to turn by force Stanton out of the War Office. That having been done, he sends for a very proper counsel, as I have no doubt the Senate will be quite convinced be- forewe get through. Hesendsfor averyproper counsel for Mr. Thomas, and having got him there he undertakes then to make up a case for the Senate, before which he was to be brought by impeachment. Now they say they expect to prove that the President wanted a case made up to go to the courts, and that in pursuance of that Mr. Cox so acted. Mr. Cox cannot be allowed to testify to that for another reason. They themselves have put in the record (which imports absolute verity and cannot be contradicted by parol or other evi- dence) that General Thomas was dismissed upon the motion of his counsel. Upon the motion of his counsel the case was dismissed. Therefore we object, in the first place, that this declaration of the President to his lawyer after the fact and after he was in process of being impeached for that fact, shall not be put in evidence in view of the circumstances. We object, then, that what was done in court shall not be proved except by the record, which I believe there is no lawyer in the Senate, and no layman either, will ever believe for a moment can be allowed. Then we object further on this matter that this whole proceeding was between other parties in the court. There is no evidence from the record, so far as it has been put in here, (and the whole record is put in,) that the President went into that court and asked to have that case carried on, that he showed his hand, or that he made himself apparent. He does not appear upon the record. He does not appear as employing counsel. It looks as though it was the case of General Thomas, and the court dealt with it as the case of General Thomas. If the President had gone and asked that the case might be decided as a great constitu- tional question, non constat but that the court would have decided it ; but they did not do so. All that appears on the record is that this gen- tleman or some other appeared as counsel for General Thomas; and the question was one whether General Thomas should be held under bonds or whether, under the circumstances, he was likely to appear and answer further when the grand jury sat, it being then found that there was no danger from his personal action by violence. Mr. EVARTS. Mr. Chief Justice and Sen- ators, I will first notice some of the suggestions made by the learned and honorable Manager that seem to us not to have any particular bear- ing upon the question of evidence now submit- ted to you, but which may be noticed. He says that the Attorney General alone can iustitute a quo warranto. The Attorney Gen- eral has by law no official function in any court except the Supreme Court of the United States, and a quo warranto proceeding would need to be commenced in the court of the District. A quo warranto proceeding, as has heretofore been contended on the part of the Managers, and in regard to which no dispute has arisen, can only be made, it is supposed by them; on the part of the Government, and not on the part of the officer who has been detruded from office. That is one thing; but the question whether that action of the Government can be taken in any court only by the Attorney Gen- eral is quite a different matter, and it might appear that if this adhesion of the Attorney General, or his approval that the proceeding should be taken by the professional advisers employed to that end, was necessary, we should be able to produce that proof. Now, it is said that after the President told General Sherman that it was impossible to make up a case it is now impossible for us to show that he did attempt to make up a case. This is, I suppose, a new application of the doctrine of estoppel. It is impossible for us to see any other appropriateness in it. But the fact is simply this: that when, in advance of the official action of the President to or towards the removal of Mr. Stanton, and when General Sherman was asked to receive from the Chief Executive the authority to discharge the duties of this office ad interim, and when General Sherman was revolving in his own mind his duty as a citizen and as a friend and servant of the Government and sought to in- quire why this matter which the President desired to test and to have his presence in the controversy to enable him to test it could not be tested by the lawyers alone, without bring- ing in a deposit of the ad interim authority in any officer, the President replied that it was impossible to make up a case except by such executive action as should lay the basis for judicial interference and determination. Then, in advance, the President did not anticipate the necessity of being driven to this judicial controversy, because, in the alternative of General Sherman's accepting this trust thus reposed in him, the President expected the retirement of Mr. Stanton, and thus by that acquiescence no need would arise for further controversy in court or elsewhere. That is the condition of the proof as it now stands before the Senate, or as we upon it shall contend that it now stands in the judgment of the Senate, in regard to what occurred between the President and General Sherman. We have already seen in proof that General Thomas received from the President on the 21st of February this designation to take charge of the office from Mr. Stanton if he retired, and his report to the President in the first instance of what was regarded as an equiva- lent to an acquiescence by Mr. Stanton in this demand of the office and its surrender to the charge of General Thomas. It has then been shown in evidence that General Thomas was arrested on the morning of the 22d, and that before he went into court he communicated that fact to the President and received the Pres- ident's response that that was as they wished it should be, to have the matter in court. Now, we propose to show that on the after- noon of the same day, the matter then being in court, (and which the President had said was according to his desire, always supposing that there was not a retirement which rendered further controversy and trouble unnecessary to the parties and the country,) the President did take it up as his controversy between the Con- stitution and the law, to be determined by the highest judicial tribunal of the country by the most rapid method that the law and competent advisers as to the law should permit. And we are met by the novelty of objection that when the matter to be proved is not the state of the record between the United States and General Thomas in that criminal complaint, but the state of facts as regards the action and pur- pose of the President of the United States in attempting to produce before the tribunals of the country for solemn judicial determination the matter in controversy, as the record of the criminal charge made and dismissed does not contain the name and action of the President of the United States, in this behalf we cannot show what did occur and what was the action of the President. The learned Manager says it does not ap- pear by the record that the President made this his controversy and attempted these ob- jects and pursued this purpose. Certainly it does not ; and if any lawyer can see how and why and in what possible method of applica- tion in the record of a prosecution of General Thomas by the United States for an infraction criminally of the civil tenure-of-office bill the action of the President should appear we might, perhaps, be precluded by some of these suggestions and arguments ; but still the mat- ter would be wholly aside from the real point of inquiry here. Now, Mr. Chief Justice and Senators, we are not to be judged by the measure of the proof that we are able to offer through this witness, as regards the effect and value of the entire evidence bearing upon this point as it shall be drawn from this witness and from other witnesses and from other forms of testi- mony. We stand here definitely, and so as not to be misunderstood on this proposition, that when the alternative, not expected by the President, of the resistance of Mr. Sta,nton to this form of resignation or retirement de- manded or removal claimed, whatever you choose to call it, was presented, so that he was obliged to find resources in the law, which he had contemplated as a thing greatly to be de- sired but impossible without the antecedent proceedings upon which a proper footing could be gained in the courts, he then did, with such promptness and such decision and such clear and unequivocal purpose as will be indicated in the evidence, assume immediately that ser- vice and that duty ; and it will appear that the opportunity thus presented to him for a more rapid determination than a quo warranto or an information in the nature of a quo warranto would permit being seized, it was prevented by THE CONGRESSIONAL GLOBE. 199 the action of Mr. Stanton, the prosecutor, and of the court upon the movements of the prose- cution to get the case out of court as frivo- lous and unimportant in its proceeding against General Thomas, and becoming formidable and offensive when it gave an opportunity for the President of the United States by habeas corpus to get a prompt decision of the Supreme Court of the United States ; and then to show that, this opportunity being thus evaded, the Presi- dent proceeded as he might with instructions that the only other recourse of judicial determ- ination by an information in the nature of quo warranto was resorted to. Mr. Manager BUTLER. Mr. President, I am very glad for an opportunity afforded me by the remarks of the learned counsel for the President to deal a moment with the doctrine of estoppel. I premise that an argument has been founded to the prejudice of my_ cause by a use of remarks which I made, to which I want to call the attention of the Senate, as bearing upon what is the doctrine of estoppel which is put forward here now by the counsel who has justsat down. I will not be long. Iprayyou, Senators, to remember that I have never re- ferred to this argument, although it has been a sort of vade mecum with the counsel of the defense ever since it was delivered. When I was discussing the obloquy thrown upon Mr. Stanton about his deserting his office I said these words : " To desert it now, therefore, would be to imitate the treachery of his acoidcntal Chief. But whatever maybe the construction of the ' tenure-of-civil-office act' by others, or as regards others, Andrew Johnson, the respondent, is concluded upon it. " Ho permitted Mr. Stanton to exercise the duties of his office in spite of it, if that office were affected by it. He suspended him under its provision; here- ported that suspension to the Senate with his reasons therefor in accordance with its provisions: and the Senate, acting under it, declined to concur with him, whereby Mr. Stanton was reinstated. In the well- known language of the law, is not the respondent estopped by his solemn official acts from denying the legality and constitutional propriety of Mr. Stanton's position?" That is all I said. I never said, nor intended to say, nor do the words honestly bear out any man in assuming that I said that the Pres- ident was estopped from trying his case before the Senate of the United States and showing the unconstitutionality of the law, as was ar- gued in the opening and as has been more than once referred to since. I said that, as between him and Mr. Stanton, Mr. Stanton's position was such that he was estopped from denying the legal propriety of that position or the constitutional propriety of it ; and there- upon it was argued that I clahned on behalf of the Managers of the House of Representatives that the President was estopped from trying his case or denying the constitutionality of the law here ; and we have had a learned argu- ment, starting from Coke and brought down- ward, to show that the doctrine of estoppel did not apply to the law. Who ever thought it did? I think there is only one point where the doctrine of estoppel should apply, Sen- ators, in this case, and that is that counsel should be estopped from misrepresenting the argument of their opponents and then making an argument to the prejudice of them. That is an application of the doctrine of estoppel that I want carried out through this trial. I have not said that the President was estopped from showing that he attempted to put this man forward as his counsel by his dec- laration to General Thomas. I have only said that the fact that he spoke to Sherman and said to him, " It is impossible to make up a case," shows that he should not be allowed, after the fact, to attempt, if possible, to get up a defense by calling this counsel in. It is asked what lawyer could suppose that it would appear of record that the President of the United States was engaged in this con- • troversy? Fair dealing, honesty of purpose, uprightness of action, frankness of official po- sition, would have made it apparent. The President of the United States, if he employed counsel for Mr. Thomas in this case, should have sent his counsel into court, and they should have there said, " Mr. Chief Justice, we are here appearing at the instance of the President of the United States for the purpose of trying a great constitutional question which he has endeavored to raise here, and for that purpose we want to get a decision of the Su- preme Court of the United States." If then the chief justice of this District had refused to hear that case, there might be some ground for the harsh word " evasion ' ' which the coun- sel has applied to him, for he says the question was evaded. By whom ? It must have been by the chief justice of this District, for he alone made the decision. He says that Mr. Stanton had this case so conducted as to evade this decision. The record of the court shows that this man Thomas was discharged on the mo- tion of his counsel. If they had not moved that he be discharged I venture to say he would not have been discharged ; certainly there is no evidence that he would have been, and it is not to be supposed that he would have been. Now they have put in the fact that he was discharged at the motion of his own coun- sel, and they come back to us and tell us — what? That they want to show through Mr. Cox that the chief justice evaded this point, for nobody else made that decision. If you allow Mr. Cox to come in and say what the President told him, if you can put in his dec- larations made to Mr. Cox, then I suppose we shall next have his declarations made to Mr. Merrick and Mr. Aiken, and all that class of counsel whom the President brings about him ; and having got them in, we shall have to bring before you the chief justice to give his account of the matter, and we shall have to get up a side-bar issue here to try whether the proceed- ings in the supreme court of this District were regular or otherwise. It is — I will not say de- signedly — but artistically contrived for the pur- pose of leading us away from the issue. We are to go to some other issue and some other point, and I never have heard in any court such a proposition. A single word, now, about this matter of quo warranto. A reasonable degree of frankness on this question, I think, as it is a very plain one to lawyers, would not harm anybody. I undertake to say that every lawyer knows that an information in the nature of a quo warranto cannotbe prosecuted, except in the name of the Attorney General, for any public office ; and if any case can be found and shown in this coun- try where it has been prosecuted differently I will beg my friend's pardon, and that is a thing I should not like to do upon this question. Do they say that this quo warranto, whether by Cox or by Stanbery, has ever been presented to any court ? No ; not at all. Has anybody ever heard of that writ of quo warranto until it becomes a necessity for this defense? Ay, and until I put it into that opening speech, which has taught my friends so much, if I may take their continual reference to it? Up to that time had we ever heard of a quo warranto from any source ? Has it ever been said here until since that time ? Never, never. I will not object to any writ of quo warranto, or in- formation in the nature o£ & quo warranto, filed in any court from a justice of the peace up to the Supreme Court of the United States, if they will show it was hied before the 21st day of February, or prepared, or that it has been filed since, until this man was impeached. But I want that to come from the record and not from the memory of Mr. Cox. You may say, Senators, that I am taking too much time upon this matter ; but it is really aiding you, because if you open this sort of declaration from the President he can keep the trial going from now until next July, ay, and from next July until the following March, precisely as his defenders in the House of Rep- resentatives threatened they would if we car- ried on this impeachment. "Forewarned, forearmed," Senators. His defenders in the House of Representatives when we were argu- ing this matter — it has gone into history — said, " You may impeach him, but if you do we will make you take all the forms, and his official life will be ended before you can get through the forms of impeachment ; we will protract ittill next March." That was the threat, and then, in pursuance of that threat, although your summons required him to file his answer on the day of appearance, as every other summons did, he came into this Senate and asked for forty days. He got ten. He then first asked for delay, so that forty-three days have been expended since he ought to have filed his an- swer by the order, and thirty-three since he actually filed it, and of those but six on the part of the Managers have been expended in the trial, and but a part of six have been ex- pended on the trial by the counsel for the defense ; and the rest, twenty-odd working days, with the whole country pausing while this is going on, with murders going on through the southern country in every State unrebuked, twenty odd days have been used up in lenity to him and his counsel, and now we are asked to go into entirely a side-bar issue. It is neither relevant, in my judgment, nor competent under anylegai rule, and if it were here it could have no effect. Mr. FERRY. Mr. President, I desire to put a question to the counsel for the President. I send it to the Chair. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Connecticut. The Secretary read it, as follows : Do the counsel for the President propose to contra- dict or vary the statement of the docket entries pro- duced by them to the effect that General Thomas was discharged by Chief Justice Cartter on the mo- tion of the defendant's counsel ? Mr. CURTIS. Mr. Chief Justice, I will re- spond to the question of the Senator that the counsel do not expect or desire to contradict anything which appears on the docket entries. The evidence which we offer of the employ- ment by the President of this professional gentleman for the purposes indicated is en- tirely consistent with everything that appears on the docket. This is evidence, not of dec- larations, as the Senators must perceive, but of acts, because it is well settled, as all law- yers know, that there may be verbal acts as well as other bodily acts, and a verbal act is as much capable of proof as a physical act of a different quality or character. Now, an em- ployment for a particular purpose of an agent, whether professional or otherwise, is an act, and may always be proved valeat quantum by the only evidence of which it is susceptible, namely, what was said by the party in order to create that employment, and that is what we desire to prove on this occasion. The dismissal of General Thomas, which has been referred to, and which appears on the docket, was entirely subsequent to all these proceedings, and we shall showthat that motion was made and that dismissal took place after it had become certain in the mind of Mr. Cox and his associate counsel that it was of no use further to follow or endeavor to follow these proceedings. As to the argument, or rather the remarks, which have been addressed by the honorable Manager to the Senate, I have nothing to say. It does not seem to me, however pertinent thev may be, that they require any reply. Mr. Manager WILSON, Mr. President, I beg the indulgence of the Senate for a moment, and I must ask the members of this body to pass upon what we regard to be the real ques- tion involved in the objection which has been interposed to the testimony now offered by the counsel from the respondent. On the 21st day of February, 1868, the Presi- dent of the United States issued an order re- moving Edwin M. Stanton from the office of the Secretary for the Department of War. Ou that same day he issued a letter of authority to Lorenzo Thomas directing him to take charge of the Department of War and to discharge the duties of the office of Secretary of War ad in- terim. The articles, based upon a violation of the tenure-of-office act, are founded upon these two acts of the President on the 21st day of February. The counsel for the respondent 200 SUPPLEMENT TO now propose to break the force of those acts and that violation of the law by showing that on the 22d day of February, after the fact, the President employed an attorney to raise in the courts the question of the constitutionality of the tenure-of-office act. Now, I submit to this honorable body that no act, no declaration of the President made after the fact can be introduced for the purpose of explaining the intent with which he acted. And upon this question of intent let me direct your minds to this consideration : the issuing of the orders referred to constitute the body of the crime with which the President stands charged. Did he purposely and willfully issue an order to remove the Secretary of War ? Did he pur- posely and willfully issue an order appointing Lorenzo Thomas Secretary of War ad interim ? If he did thus issue the orders the law raises the presumption of guilty intent, and no act done by the President after these orders were issued can be introduced for the purpose of rebutting that intent. The orders themselves were in violation of the terms of the tenure- of-office act. Being in violation of that act, they constitute an offense under and by virtue of its provisions, and the offense thus being I established must stand upon the intent which controlled the action of the President at the time that he issued the orders. If, after this subject was introduced into the House of Rep- resentatives, the President became alarmed at the state of affairs, and coucluded that it was best to attempt by some means to secure a decision of the court upon the question of the constitutionality or unconstitutionality of the tenure-of-office act, it cannot avail him in this case. We are inquiring as to the intent which controlled and directed the action of the Presi- dent at the time the act was done ; and if we succeed in establishing that intent, either by proof or by presumption of law, no subsequent act can interfere with it or remove from him the responsibility which the law places upon him because of the act done. Mr. EVARTS. Mr. Chief Justice and Sen- ators, we have here the oft-repeated argument that the crime against the act of Congress was complete by the papers drawn and delivered by the President; that the law presumes that those papers were made with the intent that appears on their face, which, it is alleged, is a violation of that act; and as that would be enough in an indictment against the President of the United States to affect him with a pun- ishment, in the discretion of the judge, of six cents line, so by peremptory necessity it be- comes in this court a complete and perfect crime under the Constitution, which must re- quire his removal from office, and that any- thing beyond the intent that the papers should accomplish what they tend to accomplish is not the subject of inquiry here. Well, it is the subject of imputation in the articles; it is the subject of the imputation in the arguments; it is the subject, and the only subject, that gives gravity to this trial, that there was a purpose of injury to the public interest and to the pub- lic safety in this proceeding. Now, we seek to put this prosecution in its proper place on this point, and to show that our intent was no violence, no interruption of the public service, no seizure of the military appropriations, nothing but the purpose by this movement either to procure Mr. Stanton's retirement, as was desired, or to have the necessary footing for judicial proceedings. If this evidence is excluded, then, when you come to the summing up of this cause, you must take the crime of the dimensions and of the completeness that is here avowed, and I shall be entitled before this court and before this country to treat this accusation as if the article had read that he issued that order for Mr. Stanton's retirement, and that direction to General Thomas to take charge ad interim, with the intent and purpose of raising a case for the decision of the Supreme Court of the United States between the Constitution and the act of Congress ; and if such un article had been produced by the House of Representatives and submitted to the Senate it would have been a laughing stock of the whole country. The gentlemen shall not make their argu- ments and escape from them at the same breath. I offer this evidence to prove that the whole purpose and intent of the President of the United States in his action in reference to the occupancy of the office of Secretary of War had this extent and no more : to obtain a peaceable delivery of that trust from one hold- ing it at pleasure to the Chief Executive, or, in the absence of that peaceable retirement, to have a case for the decision of the Supreme Court of the United States ; andif the evidence is excluded you must treat every one of these articles as if the intent were limited to an open averment in the articles themselves that the intent of the President was such as I propose to prove it. Mr. Manager BUTLER. I desire, Mr. Chief Justice, simply to read an authority to settle the question as to a quo warranto. I read from 5 Wheaton's Reports, page 291, the case of Wallace vs. Anderson : "Error to the Circuit Court of Ohio. "This was an information for a quo warranto, brought to try the title of the defendant to the office of principal surveyor of the Virginia military bounty lands north of the river Ohio, and between the rivers Seioto and Little Miami. The defendant had been appointed to the office by the State of Virginia, and continued to exercise its duties until the year 1818, during all which time his official acts were recog- nized by the United States. In that year he was re- moved by the Governor and council of Virginia, and the plaintiff appointed in his place. The writ was brougbt, by consent of parties, to try the title to the office, waiving all questions of form and of jurisdic- tion." ********* "Mr. Chief Justice Marshall delivered the opin- ion of the court, that a writ of quo warranto could not be maintain^! except at the instance of the Gov- ernment; and as this writ was issued by a private individual, without the authority of the Govern- ment, it could not be sustained, whatever might bo the right of the prosecutor or of the person claiming to exercise the office in question. The information must therefore be dismissed. " Judgment reversed." Mr. CURTIS. I wish to remark, Mr. Chief Justice, in reference to that authority, that it is undoubtedly the law in this District and, so far as I know, in all the States, and certainly is the law in England, that there can be no writ of quo warranto, or information in the nature of such a writ, except in behalf of the public. But what officer is to represent the public, in whose name the information is to be filed, of course depends upon the particular statutes applicable to the case. These statutes, as lawyers know, differ in the different States. Under the laws of the United States all proceed- ings in behalf of the United States, in the cir- cuit and district courts, are taken by the district attorneys in their own names; all proceedings in behalf of the United States in the Supreme Court are taken by the Attorney General in his name. In all cases of these public pro- ceedings they are in the name and in behalf of the United States. What particular officer shall represent the United States depends on the court where the proceeding is had. Now, in reference to Mr. Cox, we expect to show an application by Mr. Cox to the district attorney to obtain his signature to the proper information and the obtaining of that signature. The CHIEF JUSTICE. Senators, the coun- sel for the President offer to prove that the witness, Mr. Cox, was employed profession- ally by the President, in the presence of Gen- eral Thomas to take such legal proceedings in the case that had been commenced against General Thomas as would be effectual to raise judicially the question of Mr. Stanton's legal right to continue to hold the office of Secre- tary for the Department of War against the authority of the President, and also in refer- ence to obtaining a writ of quo warranto for the same purpose, and they state that they ex- pect to follow up this proof by evidence of what was done by the witness in pursuance of the above employment. The first article of impeachment, which may, perhaps, for this purpose, be taken as a sample of the rest re- lating to the same subject, after charging that "Andrew Johnson, President of the United States," in violation of the Constitution and laws, issued the order which has been so frequently read for the removal of Mr. Stanton, proceeds : "Which order was unlawfully issued with intent then and there to violate the act entitled 'An act rcgulatiug the tenure of certain civil offices,' " &e. The article charges, first, that the act was done unlawfully, and then it charges that it was done with intent to accomplish a certain result. That intent the President denies, and it is to establish that denial by proof that the Chief Justice understands this evidence now to be offered. It is evidence of an attempt to employ counsel by the President in the pres- ence of General Thomas. It is the evidence so far of a fact; and it may be evidence also of declarations connected with that fact. This fact and these declarations, which the Chief Justice understands to be in the nature of facts, he thinks are admissible in evidence. The Senate has already, upon a former occasion, de- cided by a solemn vote that evidence of the decla- rations by the President to General Thomas and by General Thomas to the President, after this order was sent to Mr. Stanton, were admissible in evidence. It has also admitted evidence of the same effect, on the 22d, of- fered by the honorable Managers. It seems to me that the evidence now offered comes within the principle of those decisions ; and, as the Chief Justice has already had occasion to say, he thinks that the principle of those decisions is right, and that they are decisions which are proper to be made by the Senate sitting in its high capacity as a court of impeachment, and composed, as it is, of lawyers and gentle- men thoroughly acquainted with the business transactions of life and entirely competent to judge of the weight of any evidence which may be submitted. He therefore holds the evidence to be admissible, but will submit the question to the Senate, if desired. Mr. DRAKE. I ask a vote upon the ques- tion, sir, by yeas and nays. The yeas and nays were ordered ; and being taken, resulted — yeas 29, nays 21 ; as follows : YEAS — Messrs. Anthony, Bayard, Buckalew, Cor- bett. Davis, Dixon, Doolittle, Fessenden, Fowler, Fre- linehuysen. Grimes, Hendricks, llowe. Johnson, Mc- Creery, Morrill of Maine. Mortou, Norton, Patterson of New Hampshire, Patterson of Tennessee, Koss, Saulsbury, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickcrs, and Willey — 'J.9. NAYS— Messrs. Cameron, Cattell, Chandler, Conk- ling, Cragin, Drake, Edmunds, Ferry. Harlan, How- ard, Morgan, Morrill of Vermont. Nye, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates — 21. NOT VOTING— Messrs. Cole, Conness, Henderson, and Wade — 4. So the Senate decided the evidence offered by the counsel for the President to be admissible. Mr. CURTIS, (to the witness.) Will you now answer what occurred between the Presi- dent, General Thomas, and yourself on that occasion? Answer. In referring to the appointment of General Thomas as Secretary of War ad in- terim the President stated that Mr. Stantou had refused to surrender possession of the Department to General Thomas, and that he desired the necessary legal proceedings to be in- stituted without delay to test General Thomas's right to the office and to put him in possession. I inquired if the Attorney General was to act in the matter, and whether I should consult with him. He stated that the Attorney General had been very much occupied in the Supreme Court and had not had time to look into the authori- ties, but that he would be glad if I would con- fer with him. I promised to do so, and stated that I would examine the subject immediately, and soon after took leave. Question. When you left did you leave the President and General Thomas there? Answer. 1 did. Question. About what time in the day was it that you left? Answer. I do not suppose I was there more than twenty minutes. I left home about five o'clock, I think, in a carriage. I was admitted immediately. Question. State now anything which you did THE CONGRESSIONAL GLOBE. 201 subsequently in consequence of this employ- ment? Mr. Manager BUTLER. Does the presiding officer rule that anything that Mr. Cox did afterward tends to show the President's in- tent? The CHIEF JUSTICE. The Chief Justice considers it within the principle of the ruling of the Senate. The Witness. After reflecting upon tlie sub- ject, supposing that the President's desire was to have the questions in controversy Mr. Manager BUTLER. I take it the wit- ness's suppositions are not to go in, are they, Mr. President ? The CHIEF JUSTICE, (to the witness.) State what was done? Mr. CURTIS. In view of which he was acting. Mr. Manager BUTLER. I never heard of any man's supposition being put in before. The Witness. I came to the conclusion that Mr. Manager BUTLER. Now, your ".con- clusions! " The witness is asked what did he do, not what his conclusions were. Mr. CURTIS. That is an act for a lawyer, a pretty important act for a lawyer, to come to •a conclusion. Mr. Manager BUTLER. It may or may not be. The Witness. I am stating what course I determined to pursue. ' Mr. Manager BUTLER. What the witness did is the only thing inquired about, and I wish him kept to that. Mr. CURTIS. One thing was that he came to a conclusion. I want to know what that was. Mr. Manager BUTLER. I object to the conclusion, and should like to have the ruling of the presiding officer upon that. The WItsess. On Monday Mr. Manager BUTLER. I wish to have that settled. The CHIEF JUSTICE. The Chief Justice has no doubt that the witness may state his con- clusions ; but he will put the question to the Senate if desired. [After a pause, to the wit- ness.] Go on. The Witness. The proceeding by quowar- ranto being a very tedious one, which could not be brought to a conclusion within even a year, and General Thomas having been arrested for a violation of the tenure-of-office aot, I thought the best mode of proceeding was in the lirst instance Mr. Manager BUTLER. I object now to his thoughts. Stop somewhere, The CHIEF JUSTICE, (to the witness.) State your conclusions. The Witness. I determined then to proceed in the first instance in the case of General Thomas. I had a brief interview with the Attorney General on Monday morning. By Mr. Curtis : Question. To proceed how? Answer. To proceed before the examiuing judge in that case (as I was about to explain) if the case was in proper condition for it, by applying to the Supreme Court of the United States for a writ of habeas corpus, so that the Supreme Court, upon the return of the writ, could examine and see whether Mr. Manager B UTLER. These are not acts that are now being given, Mr. President. They are thoughts and conclusions and reasonings of this party, what he would do if something else happened. I object. The CHIEF JUSTICE. The Chief Justice supposes that the counsel employed by the President may state what course he pursued, and why he pursued it. Mr. Manager BUTLER. You think he can put in his own determinations and reasonings? The CHIEF JUSTICE. In reference to that matter, yes. Mr. Manager BUTLER. I would like the judgment of the Senate upon that. The CHIEF JUSTICE. The counsel will please put the question they address to the wit- ness in writing, if any Senator desires the judg- ment of the Senate ; if not, the witness will proceed. Mr. THAYER. I ask Mr. HOWARD. I ask that the question may be reduced to writing, so that we may un- derstand it. The CHIEF JUSTICE. The counsel will reduce their question to writing. The question propounded to the witness by the counsel for the respondent was read, as follows: State what conclusions you arrived at as to the proper course to be taken to accomplish the instruc- tion given you by the President. Mr. Manager BUTLER. That is not what I objected to, Mr. President, and asked to have a ruling upon. Conclusions I did not object to. I objected to his putting in his thoughts and his reasonings by which he came to his conclusions. What he did was one thing, what he thought, and what he determined, and what he wished, and what he hoped depend so much on the state of his mind, whether he was loyally or disloyally disposed to the Government, that I do not think it competent. The CHIEF JUSTICE. The Chief Justice will direct the witness to confine himself to the conclusions to which he came and the steps which he took. The Witness. Having come to the con- clusion, then, that the most expeditious way of raising the questions in controversy before the Supreme Court was to apply for a writ of habeas corpus in case General Thomas's case was in proper shape for that, I had a brief interview with the Attorney General on Mon- day morning, and this course met with his ap- proval. I then proceeded to act in conjunction with the counsel whom General Thomas had engaged to act in his defense in the first instance. By Mr. Curtis : Question. Who was that? Answer. Mr. Merrick, of Washington. In order, however, to procure a writ of habeas corpus from the Supreme Court of the United States it was necessary that the commitment should be made by a court, and not by a judge at chambers or a justice of the peace, whereas General Thomas had been arrested and par- tially examined before one of the justices of the supreme court of the District of Columbia at chambers, and had been held to appear for further examination on Wednesday the 26th of February. On Wednesday the 26th the criminal court was opened, if I recollect aright, the chief, justice presiding, and he an- nounced that he would then proceed to the examination of the case against General Thomas. Mr. Manager BUTLER. I have the honor to object now, Mr. President, to any proceed- ings of any description in court being proved other than by the record of the court. Mr. CURTIS. I ask the witness to state what he did in court. It may have resulted in a record, or it may not have resulted in a record. Until we know what he did we can- not tell whether it would result in a record or not. We do not know that it ever got into a court where there could be a record. It may have been an ineffectual attempt to get it into a court where there could be a record. Mr. Manager BUTLER. Now, I call the attention of you, Mr. President and the Sen- ators, to the ingenuousness of that speech. The witness has exactly testified that the court had opened and was going on to say what was done in court, what Chief Justice Cartter an- nounced in court, in the criminal court. Mr. CURTIS. If the honorable Manager will give way for a moment, I say — I intended to be so understood before — that here was the chief justice of the District sitting in a magis- terial capacity; he also, as Mr. Cox has said, was there holding the criminal court. Now, we desire to prove that there was an effort made by Mr. Cox to get this case transferred from the chief justice in his capacity of a magis- trate into and before the criminal court, and we wish to show what Mr. Cox did in order to obtain that. Mr. Manager BUTLER. Now, then, I again say that we have found that we have got into court and the record has been produced here. The witness himself has said that Chief Justice Cartter announced that he was going to open the court. Now, if the Senate want to try Chief Justice Cartter, and whether he has done rightly or wrongly, I only desire that he should have counsel here to defend him. I never before heard the proceeding of a court or a magistrate sitting in a case undertaken to be proved in a tribunal where he was not on trial by the declarations of the counsel of the crimi- nal who got beaten, or who succeeded, either. The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate. Coun- sel will please reduce the question to writing. The question having been reduced to writing was read by the Secretary, as follows: What did you do toward getting out a writ of habeas corpus under tho employment of the Presi- dent? Mr. Manager BUTLER. That is not the question we have been debating at all. I wish the proprieties of the place would allow me to characterize that as I think it ought to be ; but that was not the question we were debating. I made an objection, Mr. President, that the witness should not state what took place in court, and now they put a general question which evades that. Mr. EVARTS. Our general question is intended to draw out what took place in court. Mr. Manager BUTLER. Then we object. Mr. EVARTS. Very well ; that we under- stand. We do not wish to be characterized about it, though. The CHIEF JUSTICE. Senators, you who are of opinion that the question is admissi- ble Mr. GRIMES called for the yeas and nays ; and they were ordered. Mr. HOWE. I wish to have the question reported again. The Secretary read the question, as follows: "What did you do toward getting out a writ of habeas corpus under the employment of the Presi- dent? Mr. Manager BUTLER. I wish that the statement of counsel may be added to that, "this being intended to ask what the witness did in court." Mr. EVARTS. It covers what he did every- where, which includes "in court." Mr. Manager BUTLER. That is another change. Mr. EVARTS. No change whatever. The question has been read three times. It is intended to call out what the witness did toward getting out u writ of habeas corpus, and it covers what he did in court, which was the very place to do it. Mr. CURTIS. If any change or addition is to be made to the question we do not wish to have any equivocation about the word " court," because that may have a double meaning. What was done or attempted to be done was before the magistrate ; wemeant by that in the court. Mr. Manager BUTLER. A judge or magis- trate sitting judicially, which is the court for all purposes. Mr. CURTIS. " Sitting judicially," but not as a court. The CHIEF JUSTICE. The Secretary will read the question once more. The Secretary read as follows : What did you do toward getting out a writ of habeas corpus under the employment of the Presi- dent? The Secretary proceeded to call the roll. Mr. SHERMAN. Mr. Chief Justice, I de- sire to state that my friend from Missouri [Mr. Henderson] is sick and unable to attend in his place in the Senate to-day. He wished me to make that announcement. The call of the roll having been concluded, the result was announced — yeas 27, nays 23 ; as follows : YEAS— Messrs. Anthony, Bayard, Buokalew, Davis, Dixon, .Doolittle, Fessenden, Fowler, Frolinghuysen, 202 SUPPLEMENT TO Grimes, Hendricks, Johnson, McCreery, Morrill of Maine Morgan, Norton, Patterson of Now Hamp- shire, Patterson of Tennessee, Ross, Saulsbury, Sher- man, Sprague, Sumner, Trumbull, Van Winkle, Vickers, and Willey— 27. NAYS— Messrs. Cameron, Cattell, Chandler, Conk ling, Conness, Cragin, Drake, Edmunds, Ferry, Har- lan, Howard, Howe, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates— 23. NOT VOTING-Messrs.Cole, Corbett, Henderson, and Wade — i. So the Senate decided the question to be admissible. Mr. CURTIS, (to the witness.) State now, Mr. Cox, what you did in order to obtain a writ of habeas corpus, pursuant to the instruction of the President ? Answer. When the chief justice announced that he would proceed as an examining judge to investigate the case of General Thomas, and not as holding court, our first application to him -was to adjourn the investigation into the criminal court then in session, in order to have the action of that court. After some little dis- cussion this request was refused. Our next effort was to have General Thomas committed to prison, in order that we might apply to that court for a habeas corpus, and upon his being remanded by that court, if that should be done, we might follow up the application by one to the Supreme Court of the United States ; but the counsel who represented the Government, Messrs. Carpenter and Riddle, applied to the judge then for a postponement of the exam- ination — — Mr. Manager BUTLER. Stop a moment. Does this also include what was done by the other people there ? The CHIEF JUSTICE. It is an account of the general transaction, as the Chief Justice conceives, and comes within the rule. The witness will proceed. The Witness. The chief justice having indicated an intention to postpone the exam- ination, we directed General Thomas to de.- cline giving any bail for further appearance and to surrender himself into custody, and an- nounce to the judge that he was in custody, and then presented to the criminal court an application for a writ of habeas corpus. The counsel on the other side objected that Gen-, eral Thomas could not put himself into cus- tody, and they did not desire that he should be detained in custody. The chief judge also declared that he would not restrain Gen- eral Thomas of his liberty and would not hold him or allow him to be held in custody. Sup- posing that he must either be committed or finally discharged, we then claimed that he be discharged, not supposing that the counsel on the other side would consent to it, and sup- posing that would bring about his commitment, and that we should then have an opportunity of getting a habeas corpus. They made no objection, however, to his final discharge, and accordingly the chief justice did discharge him. Immediately after that I went, in com-, pany with the counsel whom he had employed, Mr. Merrick, to the President's House, and reported our proceedings and the result to the President. He then urged us to proceed Mr. Manager BUTLER. Stay a moment. Shall we have another interviewwiththePres- idantput in, Mr President? The CHIEF JUSTICE, (to the witness.) What date was this? The Witness. On the 26th, immediately after the proceeding before the judge. Mr. CURTIS. We propose to show that, having made his report to the President of the failure of this attempt, he then received from the President other instructions upon this sub- ject to follow up the attempt in another way. Mr. Manager BINGHAM. Do I under- stand—I ask for information of the counsel — that this interview with the President was on the 26th ? The Witness. It was. Mr. Manager BINGHAM. Two days after he was impeached by the House of Representa- tives ? Mr. CURTIS. Yes. Mr. Manager BINGHAM. Two days after he was presented here ? Mr. CURTIS. Yes. Mr. Manager BINGHAM. And you are asking for the President's declarations after he was arraigned here for this crime to prove his innocence ? We ask the vote of the Senate on it. Mr. CURTIS. We do not ask for declara- tions, Mr. Manager ; we ask for acts. Mr. Manager BINGHAM. Acts consisting in words two days after his arraignment at this bar. We ask the vote of the Senate on the question. Mr. YATES. Mr. President, I ask for the vote of the Senate on this question. The CHIEF JUSTICE. The Chief Justice thinks this evidence incompetent. The declar- ations of parties Mr. EVARTS. Mr. Chief Justice, will you allow us to say a word ? The CHIEF JUSTICE. Certainly. Mr. EVARTS. If it is to turn on that point, which has not been discussed in imme- diate reference to this question, we desire to be heard. The offer which the Chief Justice and Senators will remember was read, and upon which the vote of the Senate was taken for admission, included the efforts to have a habeas corpus proceeding taken, and also the efforts to have a quo warranto. The reasons why, and the time at which, and the circum- stances under which the habeas corpus effort was made, and its termination, have been given. Thereupon the efforts were attempted at the quo warranto. It is in reference to that that the President gave these instructions. We suppose it is covered by the ruling already made. Mr. Manager BUTLER. A single word, sir. The witness has informed the court that it was not done before because such a proceed- ing could not be brought to a decision under a year. The President was going to be impeached in the course of ten or fifteen days, and so he started a proceeding, if we are to believe this offer, which was to have a, conclusion a year hence ! The CHIEF JUSTICE. The Chief Justice may have misapprehended the intention of the Senate ; but he understands their ruling to be in substance this : that acts in respect to the attempt and intention of the President to ob-. tain a legal decision, commencing on the 22d of February, may be pursued to the legitimate termination of that particular transaction ; and, therefore, the Senate has ruled that Mr. Cox, the witness, may go on and testify until that particular transaction came to a close. Now, the offer is to prove conversations with the President after the termination of that effort in the supreme court of the District of Colum- bia. The Chief Justice does not think that is within the intent of the previous ruling; but he will submit the question to the Senate. Senators, you who are of the opinion that this testimony should be received will please say "ay ;" those of the contrary opinion, "no." [Putting the question.] The question is determined in the negative. The evidence is not received. Mr. CURTIS, (to the witness.) _ Mr. Cox, after you had reported to the President in the manner you have already stated, did you take any further step, did you do any further act in reference to raising the question of the consti- tutionality of the tenure-of-ofHce act? Mr. Manager BUTLER. Wait. If what the President did himself, after he was im- peached, after the 26th of February, cannot be given in evidence, I do not see that what his counsel did for him maybe. That is only one step further. Mr. EVARTS. We may at least be allowed to put the question, Mr. Chief Justice. Mr. Manager BUTLER. The question was put and I objected to it. Mr. EVARTS. It has not been reduced to writing. The CHIEF JUSTICE. The counsel for the President will reduce their question to writing. The question having been reduced to writing was read by the Secretary, as follows : After you had reported to the President the result of your efforts to obtain a writ of habeas cormn, did you do any act in pursuance of the original instruc- tions you had received from the President on.Satur- day, to test tho right of Mr. Stanton to continue In the office ; and if so, state what the acts were ? The CHIEF JUSTICE. The Chief Justice thinks that this question is inadmissable within the last vote of the Senate ; but will put the question to the Senate if any Senator desires it. Mr. DOOLITTLE. Mr. Chief Justice, I should like to have that question put to the Senate ; I think it a different one The CHIEF JUSTICE. No debate is al- lowable. Does the Senator desire the vote of the Senate on the question ? Mr. DOOLITTLE. Yes, sir. The CHIEF JUSTICE. The question will be read again. The Secretary read the last question put by the counsel for the respondent. Mr. SHERMAN. Now, I should like to have-the fifth article read. The CHIEF JUSTICE. The article of the impeachment, the reading of which is called for by the Senator from Ohio, will be read. The Secretary read article five, as follows : , " That said Andrew Johnson, President of the Uni- ted States, unmindful of the high duties of his office and of his oath of office, on the 21st day of February, in tho year of our Lord 1868, and on divers other days and times in said year, before the 2d day of March, in the year of our Lord 1868, at Washington, in tho District of Columbia, did unlawfully conspire with ono Lorenzo Thomas, and with other persons to tho House of Representatives unknown, to prevent and hinder the execution of an act entitled 'An act regu- lating the tenure of certain civil offices/ passed March 2, 1867, and in pursuance of said conspiracy did unlawfully attempt to prevent Edwin M. Stanton, then and there being Secretary for the Department of War, duly appointed and commissioned under tho laws of the United States from holding said office, whereby the said Andrew Johnson, President of tho United States, did then and there commit and was guilty of a high misdemeanor in office." The CHIEF JUSTICE. The Chief Justice will inquire of the counsel for the President whether they understand the question to be applicable to that article ? Mr. EVARTS. We certainly do. _ The CHIEF JUSTICE. Is it asked with a view to obtain evidence bearing upon that article of the impeachment? Mr. EVARTS. Yes, any article whatever that indicates as part of his intent or within any tim e alleged to be with an unlawful purpose ; we propose to show the lawful and, peaceful purpose. Mr. HOWE. Mr. President, if proper I should like to have the first question "addressed to the witness on the stand read again. The CHIEF JUSTICE. The question upon which the ruling has just taken place ? Mr. HOWE. No, the offer to prove. I should like to have that read again. The CHIEF JUSTICE. The offer which was made by the counsel, and which the Sen- ate admitted, will be read by the Secretary. The Secretary read as follows : We offer to prove that Mr. Cox was employed pro- fessionally by the President in the presence of Gen- eral Thomas, to take such legal proceedings in the case that had been commenced against General Thomas as would be effectual to raise judicially the question of Mr. Stanton's legal right to contiuuo to hold the office of Secretary for the Department of War against the authority of the President, and also in reference to obtaining a writ of quo warranto for the samo purpose and wc shall expect to follow up this proof by evidencp of what was done by tho wit- ness in pursuance of the above employment. ■ The CHIEF JUSTICE. The discussion and the ruling of the Chief Justice in respect to that question was in reference to the first article of the impeachment. Nothing had been said about the fifth article in the discussion, so far as the Chief Justice recollects. The question is now asked with reference to the fifth article and the intent alleged in that article to con- spire. The Chief Justice thinks it is admissi- ble with that view under the ruling upon the first offer. He will, however, put the question to the Senate if any Senator desires it. Mr. CONNESS. The vote of the Senate is The CHIEF JUSTICE. The Senator from THE CONGRESSIONAL GLOBE. 203 California asks for the vote of the Senate. Senators, you who are of the opinion that the question is admissible, and shall be put to the witness, will say ay Mr. HOWARD called for the yeas and nays ; and they were ordered. Mr. JOHNSON. I ask for the reading of the fifth article. I was not in when it was read. The Secretary read the fifth article, as fol- lows: "That said Andrew Johnson, President of the United States, unmindful of the high duties of his office, and of his oath of offioe, on the 21st day of February.in theyearof our Lord 1868, and on divers other days and times in said year, before the 2d day of March, in the year of our Lord 1868, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas, and with other persons to the House of Representatives unknown, to prevent and hinder the execution of an act entitled *An act regulating the tenure of certain civil offices,' passed March 2, 1867; and in pursuance of said conspiracy did unlawfully attempt to provent Edwin M. Stanton, then and there being Secretary for the Department of War, duly appointed and commissioned under the laws of the United States, from holding said office, whereby the said Andrew Johnson, President of the United States, did then and there commit, and was guilty of a high misdemeanor in offioe." The CHIEF JUSTICE. The Secretary will # now read the question proposed to be put to the witness. The Secretary read as follows : After you had reported to the President the result of your efforts to obtain a writ of habeas corpus, did you do any other act in pursuance of the original instructions you had received from the President on Saturday to test the right of Mr. Stanton to continue in the office; and, if so, state what the acts were? The question being taken by yeas and nays, resulted — yeas 27, nays 23 ; as follows : YEAS — Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hend- ricks, Howe, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of New Hampshire, Pat- terson of Tennessee, Boss, Saulsbury, Sherman, Spiague, Sumner, Trumbull, Van Winkle, Viokers, and Willey— 27. NAYS — Messrs. Cameron, Cattell, Chandler, Conk- ling, Conness, Cragin, Drake, Edmunds, Ferry, Fre- Mnghuysen, Harlan, Howard, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates— 23. NOT VOTING— Messrs. Cole, Corbett, Henderson, and Wade — 4. So the question was decided to be admissible. Mr. CURTIS, (to the witness.) Now you may state it, Mr. Cox. The Witness. On thesameday orthenext, I forget which, I prepared an information in the nature of a quo warranto. I think a de- lay of one day occurred in the effort to procure certified copies of General Thomas's commis- sion as Secretary of War ad interim, and of the order to Mr. Stanton. I then applied to the district attorney to sign the information in the nature of a quo warranto, and he declined to do so without instructions or a request from the President or the Attorney General. This fact was communicated to the Attorney Gen- eral and the papers were sent to him. We also jave it as our opinion to him that it would not ue Mr. Manager BUTLER. Stop. We object lo the opinion given by these gentlemen to the Attorney General as tending to show the Pres- ident's motives or intent. Mr. CURTIS. We do not insist upon it if he other side object. [To the witness.] You an now proceed to state anything that was ione after this time. The Witness. Nothing was done after this time by me. The papers were returned to me recently. Mr. CURTIS, (to the Managers.) The wit- ness is now yours, gentlemen, for cross-exam- ination. Mr. CONNESS. I move that the Senate ;ake a recess for fifteen minutes. The motion was agreed to ; and at the expi- ation of the recess the Chief Justice resumed ,he chair and called the Senate to order. Walter S. Cox cross-examined. By Mr. Manager Butler : Question. You stated that you had been ; racticing law here in Washington some twenty i ears ? Answer. Yes, sir. Question. Here all the time? Answer. Always. Question. Was any other counsel associated with you by the President? Answer. No, sir; not to my knowledge. Question. Were you counsel in that case for the President or for General Thomas? Answer. I considered myself counsel for the President. Question. Did you so announce yourself to Chief Justice Cartter? Answer. I did not. Question. Then you appeared before him as counsel for Thomas? Answer. I did in that proceeding. Question. And he did not understand in any way, so far as you know, that you were desir- ing to do anything there on behalf of the Pres- ident? Answer. I had mentioned the fact to Judge Cartter privately, out of court, that I had been sent for and directed to take charge of or insti- tute proceedings. Question. As counsel for the President? Answer. Yes, sir ; that I had been sent for by the President. Question. But did you tell him that you were coming into his court as counsel for the Pres- ident? Answer. I did not. I do not know whether, when I told him, I had then determined to pro- ceed in that way. Question. In any of the discussions or your action before the court did you inform either the court or the counsel on the other side that you desired to have the case put in train so that you could get a decision of the Supreme Court of the United States? Answer. I do not think I did. Question. Had either the court or the coun- sel any means of knowing that that was your purpose or the President's purpose, so far as you were concerned? Answer. In no other way than from our application for the habeas corpus upon our announcement of General Thomas's surrender into custody, so far as I am advised. Question. Nothiug only what they might infer ? Answer. Precisely. Question. They might infer that ? Answer. I had no conversation with them before the result. Question. I am not speaking now of conver- sations with counsel outside of the court, but I am speaking of proceedings in court ? Answer. Precisely so. Question. And so far as the proceedings in court were concerned — and I ask for nothing else — there was no intimation, direct or in- direct, that there was any wish on the part of the President or the Attorney General to make a case to test the constitutionality or the pro- priety of any law ? Answer. There was none that I remember in the presence of the judge on the bench acting at that time — no other than private informa- tion. Question. Your private information to the judge I have not asked for. Was there any in court to the counsel who appeared on the other side? Answer. None. Question. Then, so far as you know, the counsel on the other side could only treat this as a question of the rights of personal liberty of Mr. Thomas? [No answer.] Well, sir, it being your desire to have that question tested, and as you, appearing for the Government, could do so by consent of the prosecutor, why did you not speak to the prosecutor's counsel and ask to have it put in train for that ? Answer. Because I did not think they would consent to it. We did not desire to let them know our object at the time. Question. Then, as I understand you, you concealed your object from them ? Answer. We rather did, I think. Question. Then they acted as they did act, whether rightly or wrongly, under that conceal- ment, did they? Answer. They seemed to divine the object before we got through and to endeavor to defeat it. Question. And they only seemed to divine it from the course they took. That is the only reason they had for seeming to divine it ? Answer. Yes, sir. Question. You say you prepared the papers for an information in the nature of a quo war- ranto ? Answer. Yes, sir. Question. On what day was that? Answer. That was either on Wednesday, the 26th, or the next day. Question. The 26th or 27th of February? Answer. Yes, sir ; I think it was the 27th. Question. That was after the President was impeached ? Answer. Yes, sir. Question. Did you see the President between the time that you reported to him and the time when you prepared this paper? Answer. I did not. Ihave never seen him since. Question. You prepared that paper and car- ried it to the Attorney General, did you not ? Answer. First, to the district attorney, or rather, I spoke to him without presenting the paper. Question. You spoke to him and he said he must have some order from the Attorney Gen- eral or the President before he could act ? Answer. Yes, sir. Question. And then you went to the Attor- ney General? Answer. I did not go in person ; I sent the papers. Question. Did you send a note with them ? Answer. I do not remember. Question. You simply sent the papers ? Answer. I sent a message, either written or verbal ; I do not know which. Question. By whom ? Answer. I think by Mr. Merrick or Mr. Bradley ; I cannot now say which. Question. What Bradley ? Ansioer. Joseph H. Question. The elder or younger ? Answer. The elder. Question. Was he concerned in the matter? Answer. He appeared in court with ns merely as an adviser, as a friend of General Thomas. Question. Joseph H. Bradley appeared in the courts of the District? Answer. He did not appear in his character as attorney of the court. He appeared in per- son, not in the character of an attorney. Question. He appeared in person, but did not appear as an attorney? Answer. Yes, sir. Question. Did he say anything? Answer. Nothing to the court or to the judge. Question. Is this Mr. Bradley the same man who was disbarred? Answer. The same. Question. So that he could not appear. Now, since you sent those papers to the Attorney General, have you ever received them back? Answer. I have. Question. When? Answer. A few days ago. Question. By " a few days ago' ' when do you mean ? Since you have been summoned as a witness? Ansioer. I think not — just before, I believe. Question. Just before ? Answer. I believe so. Question. Preparatory to your being sum- moned as a witness? Answer. Not that I am aware of. Question. After or before this case was opened ; before or after the trial began? Answer. After. Question. How long after. Answer. I cannot say. I think it was four or five days ago, as near as I can come to it. Question. Had you any communication with the Attorney General about them between the time you sent them and the time when you received them ; I do not ask what the commu- 204 SUPPLEMENT TO nication was ; I only ask the fact whether you had any communication? Answer. None in person. Question. Had you any in writing? Answer. No, sir. Question. Then you had none in any way, if you had none either in person or in writing? Answer. Yes, sir ; through Mr. Merrick, to whom it was more convenient to see him than it was to me. Question. So you can only know by what Mr. Merrick said ? Answer. That is all. Question. Of that I will not ask you ; you say the papers were returned to you. Where are they now? Answer. I have them in my pocket. Question. Were they not returned to youfor the purpose of your having them when you should be called as a witness ? Do you not so understand it? Answer. No, sir; they came with a message? Question. How soon before you were sum- moned? Answer. Not more than a day or two, I think. Question. On the same day? Answer. I think a day or two before ; I am not very sure. Question. To your knowledge have those papers, up to the hour in which we are speak- ing, been presented toany judge of any court? Answer. They have not. Question. Up to the hour that we are speak- ing have you been directed either by the Attor- ney General or the President to present that application to any judge of any court? Answer. The papers came to me with a direc- tion that Mr. Merrick and myself should use our discretion. Question. They came with a written message? Answer. No ; a verbal one, through Mr. Merrick to me, or rather it was communicated to him, and by him to me. Question. But Mr. Merrick, if I understand you, was not associated with you in this pro- ceeding as counsel for the President, because I asked you if the President had any other counsel? Answer. He was not, as I understood it ; he was counsel for General Thomas. Question. Was this a movement on the part of General Thomas? The Witness. Which movement? Mr. Manager BUTLER. This movement for an information in the nature of a quo warranto ? Answer. It was not. It would be on the part of the United States on his relation. Question. On the relation of General Thomas? Answer. Yes, sir. Question. Now, sir, have you received in writing, or verbally to yourself, any directions, either from the President or the Attorney Gen- eral, to file those papers? Answer. No positive directions. Question. Any positive or unpositive from him to you ? Answer. Not immediately. Question. I do not mean through Mr. Mer- rick ? Answer. The only communication I received was through him. Question. Now, sir, if you please, state from whom did Mr. Merrick bring you a direction or communication? Answer. From the Attorney General. Question. Who 1 Dse names, if you please. Answer. The Attorney General, Mr. Stan- bery. Question. Five days ago 1 Mr. Stanbery resigned as Attorney General, we have heard, some fortnight ago or more. How could it come to you from the Attorney General five days ago? Answer. I mean Mr. Stanbery. Question. You have never receivedany direc- tion, even through Mr. Merrick, fromtheAttor- ney General, but some sort of direction from the President's counsel, through Mr. Merrick? Answer. All I received was Question. Excuse me; just hear my question? The Witness. Repeat it, if you please. Mr. Manager BUTLER. Have you received any communication, through Mr. Merrick or anybody else, from the Attorney General of the United States — not the resigned Attorney Gen- eral of the United States? Answer. I have not from any other person than Mr. Stanbery. Question. And you have not received any from him, either verbally or otherwise, while he was Attorney General? Answer. I have not. Question. When you sent in the papers was he then Attorney General? Answer. I believe so. Question. Will you not think, and make yourself certain on that point ? Answer. I do not know when he resigned. If you can inform me when that was 1 can answer. Question. And the resignation made no difference in your action, so that you do not remember it? Answer. I do not think he could have re- signed at that time. I am very sure that the papers were sent .to him within two or three days after the discharge of General Thomas. Question. And were returned by him to you four or five days ago ? Answer. I cannot be precise as to that — five or six days, or four or five days. Question. Long after he resigned, at any rate? Answer. I believe it was. Question. So that when you told us that Mr. Merrick had brought a communication from the Attorney General you meant from Mr. Stanbery? Answer. I did. Question. And you have received no com- munication from the President or from the Attorney General as to what should be done with those proceedings? Answer. No, sir. Question. Then, so far as you know, since you have prepared those papers, there has not been any direction or any effort from the Pres- ident or the Attorney General — leaving out Mr. Stanbery, for he is not Attorney General now — from the President or the Attorney General to have anything done with those papers ? Answer. There has been no direction, and there has been no Question. Communication ? Answer. Communication to me since the papers were forwarded to the office of the Attorney General. Question. Now, sir, we will go to the court for a moment. Did not Mr. Merrick or your- self make the motion to have Mr. Thomas dis- charged ? Answer. We did. Question. Had he not been in custody under his recognizance up to the time of that motion ? Answer, We claimed that he was, but the other side denied it. Question. And to settle that question you moved his discharge? Answer. Yes, sir. Question. And that was granted? Answer. It was. Question. Did you make that motion? Answer. I did. Question. So that, in fact, General Thomas was discharged by the court from custody on the motion of the President's counsel? Mr. CURTIS. He has not said "from custody." The Witness. Discharged from further attendance. By Mr. Manager Butler : Question. Excuse me. If he was not dis- charged from custody, what was he discharged from? Answer. He was discharged from the com- plaint or from any further detention or exam- ination, I suppose. Question. From "further detention!" He could not be detained without being in custody ? Answer. Not very well. Mr. Manager BUTLER. I thought not, when I was interrupted by the learned counsel on that point. The Witness. He was discharged from the complaint, I presume. Question. Then I will repeat the question at the point at which I was interrupted : whether, in fact, Mr. Thomas was not discharged from custody, from detention, from further being held to answer upon that complaint, by the motion of the President's counsel? Answer. He was. Question. Now, then, was that information signed by any Attorney General, past, current, or to come, so far as you know? Answer. It was not. Richard T. Merrick sworn and examined. By Mr. Curtis : Question. Where do you reside? Answer. In Washington city. Question. And what is your profession? Answer. I am a lawyer by profession. Question. How long have you been in that profession ? Answer. Nineteen or twenty years, or over. In 1847 I was admitted. Question. Wereyou employed professionally in any way in connection with the matter of General Thomas before Chief Justice Cartter? Answer. I was employed by General Thomas on the morning of the 22d of February, to con- duct the proceeding instituted against him, and which brought him before Chief Justice Cartter. Question. In the course of that day, the 22d of February, did you have an interview, in company with General Thomas or otherwise, with the President of the United States? Answer. After the action taken by the Chief Justice on the case sitting at chambers on the morning of the 22d, at the instance of General Thomas, I went to the President's House for the purpose of taking to the President the affi- davit and the bond filed by General Thomas, and communicating to the President what had transpired in regard to the case. Question. Did you communicate to him what had transpired ? Answer. I did. Mr. Manager BUTLER. I did not under- stand what the question was. Mr. CURTIS. The question is, did he com- municate to the President what had transpired in regard to the case ? Mr. Manager BUTLER. I submit, Mr. President, that that is wholly immaterial. The Senate ruled in the President's acts^'in employing Mr. Cox as his counsel. Those were his acts. But what communication took place between him and Mr. Merrick, who very frankly tells us here he was employed by Gen- eral Thomas as his counsel, I think cannot be evidence. The CHIEF JUSTICE. The Chief Justice thinks the evideuce is cumulative only, aud is admissible. He will put the question to the Senate if any Senator desires it. The counsel will reduce their question to writing. Mr. Manager BUTLER. Upon the whole I will not press the objection. The CHIEF JUSTICE. The objection is withdrawn. Mr. CDRTIS, (to the witness.) State whether you communicated to the President, in the presence of General Thomas, what had transpired in reference to the case? Answer. My recollection is that I communi- cated what had transpired to the President in the absence of General Thomas in the first in- stance, for he was not at the Executive Man- sion when I called ; but during the interview General Thomas arrived, and the same com- munication was again made in a general con- versation, in which the Attorney General, Mr. Stanbery, the President, General Thomas, and myself participated. Question. 1 wish now you would state whether, either from the President himself, or from the Attorney General in his presence, you received any instructions or suggestions as to the course THE CONGRESSIONAL GLOBE. 205 to be pursued by you in reference to General Thomas's case? Mr. Manager BUTLER. Stay a moment. By Mr. Curtis : Question. In the first place you may fix, if you please, the hour of the day when this occurred on the 22d? The Witness. The Manager signified to me to stop. Mr. Manager BUTLER. What date was it? The Witness. The 22d of February. By Mr. Cuims: Question. Now, the hour of the day, as near as you eau fix it? Answer. I think the proceedings before Chief Justice Cartter at chambers took place between ten and half past ten o'clock ; to the best of my recollection about ten o'clock. Immediately after they terminated, (and they extended through only a very brief period, for it was simply to give a bond,) I ordered copies of the papers to be made, and as soon as they were made I took them to the Executive Man- sion. I think it occupied probably from thirty minutes to an hour to make the copies, and my impression is that I reached the Executive Mansion by noon. Question. Now, you can answer the residue of the question, whether you received either from the President himself, or the Attorney General in the presence of the President, any directions or suggestions as to the course to'be taken by you as counsel in that case? Mr. Manager BUTLER. Do you ask now for the conversations? Mr. CURTIS. I ask for suggestions or directions to this gentleman. 1 do not go outside of those. Mr. Manager BUTLER. I think those are conversations, and I do not think they can be put in. This was not employing, as was the other case, a counsel to do anything; but it was giving directions as to how Thomas's counsel should try his case. Mr. CURTIS. 1 suppose it depends en- tirely upon what was said. They might amount to verbal acts, as they are called in the books ; and if this gentleman so received and acted upon them I suppose they then pass out of the range of mere talk or declarations. The question is whether he received instruc- tions or suggestions from the President or the Attorney General. Mr. Manager BUTLER. It will be per- ceived that the difficulty is this : it is not a mere question of the difference between acts and declarations, although declarations make it a remove further off; but my proposition is that the President's acts in directing General Thomas"s counsel to defend General Thomas, his client, not being employed by him, the President, cannot be evidence, whether re- garded as acts or as declarations. That is all. Mr. EVART8. It does not follow that these instructions were to defend Mr. Thomas. The point of the inquiry is that the instructions were to make investigations in this proceeding whether steps could be taken in behalf of the President. You cannot anticipate what the answer is to be by the objections. We offer to show that the Attorney General, in the pres- ence of the President, after this report of the situation that was opened by the existence of this case of General Thomas, gave certain directions to this gentleman of the profession in reference to grafting upon that case the means of having a habeas corpus. Mr. Manager BUTLER. I do not propose to argue it. The statement of it is enough. General Thomas's lawyer goes to the Presi- dent; the President has no more right to direct General Thomas's lawyer than he has to direct me ; and thereupon they do not offer even the declarations of the President, but they offer now the declarations of the President's lawyer, Attorney General Stanbery, and you are asked to allow his counsel to put his declarations as part of this defense. If that is allowed to go in no argument on earth can be of any avail. The CHIEF JUSTICE. The counsel will please reduce their question to writing. The offer of proof was reduced to writing and sent to the desk. The CHIEF JUSTICE. The Secretary will read the question propounded by the counsel for the President. The Secretary read as follows : We offer to prove that about the hour of twelve noon, on the 22d of February, upon the first commu- nication to the President of the situation of General Thomas's case, the President, or the Attorney Gen- eral in his presence, gave tho attorneys certain direc- tions as to obtaining a writ of habeas corpus for the purpose of testing judicially tho right of Mr. Stanton to continue to hold the office of Secretary of "War against the authority of the President. The CHIEF JUSTICE. _ The Chief Justice thinks this evidence admissible within the rule already determined by the Senate. He will submit the question to the Senate if any Sen- ator desires it. [After a pause.] The witness may answer the question. The Witness. I should like to have the question read. Mr. CURTIS. The question is, whether the President, or the Attorney General in his pres- ence, gave you any instructions in respect to proceedings to obtain a writ of habeas corpus to test the right of Mr. Stanton to hold the office of Secretary contrary to the will of the President? Answer. The Attorney General, upon learn- ing from me the situation of the case, asked if it was "possible in any way to get it to the Supreme Court immediately. I told him I was not prepared to answer that question. He then said: "Look at it and see whether you can take it up to the Supreme Court immedi- ately upon a habeas corpus and have a decision from that tribunal." I told him I would. Question. Subsequent to this time did you come in communication with any gentleman acting as counsel for the President in reference to this matter, and who was that gentleman, if any? Mr. JOHNSON. What is the question? We did not hear it. Mr. CURTIS. The question is, whether, subsequent to this time, he came into commu- nication with any other legal gentleman acting as counsel for the President, and who he was? Answer. I examined the question as re- quested by the Attorney General, and on the evening or afternoon of the 22d, and I think within two or three hours after I had seen him, I wrote him a note. Mr. Manager BUTLER. We will not have the contents of that note unless it is ruled in. The Witness. I paused, sir, that you might object. By Mr. Curtis : Question. Stating the result of that examin- ation ? Answer. Stating the result of that examina- tion. Mr. Manager BUTLER. Whatever was in that note, you will not state it. The Witness. That was all the contents. Mr. Manager BUTLER. Nothing will be stated unless the Senate rules it in. By Mr. Curtis : Question. You wrote him a note on this subject? Answer. I wrote him a note on this subject, and on the following Monday or Tuesday, this being Saturday, I met Mr. Cox, who was the counsel of the President, as I understood, and in consultation with him I communicated to him the conclusions to which I had arrived in the course of my examination on the Saturday previous, and we, having come to the same conclusion, agreed to conduct the case together in harmony with a view of accomplishing the contemplated result of getting it to the Supreme Court on a habeas corpus. Question. State now anything which you and Mr. Cox did for the purpose of accom- plishing that result? Answer. Having formed our plan of pro- ceeding, we went into court on the day on which, according to the bond, General Thomas was to appear before Judge Cartter at cham- bers. Mr. JOHNSON. What day was that ? The Witxess. That was, I think, on Wednes- day, the 26th, if I am not mistaken. Shall I state what transpired? Mr. CURTIS. Yes, so far as it regards your acts. Mr. Manager BUTLER. I respectfully sub- mit once again, Mr. President, that the acts of General Thomas's counsel under the direction of the Attorney General, after the President was impeached, cannot be put in evidence. The Witness, (to counsel.) Will you allow me to make a correction ? Mr. CURTIS and Mr. EVARTS. Certainly. The Witness. You asked when I next came in contact with any one representing the Pres- ident. I should have stated that on Tuesday night, by appointment, 1 had an interview with the Attorney General upon the subject of this case and the proceedings to be taken on the following day. Mr. Manager BUTLER. I do not see that that alters the question, which 1 desire may be reduced to writing, if it is ever to be done, be- fore I argue it ; because I have argued one or two questions here, and then another question appeared whenitcame to be reduced to writing. The CHIEF JUSTICE. The counsel "will please reduce their question to writing. The question was reduced to writing, and read by the Secretary, as follows: What, if anything, did you and Mr. Cox do in refer- ence to accomplishing tho result you have spoken of? Mr. Manager BUTLER. Does that include what was done in court? Mr. CURTIS. It includes what was done by the chief justice as a magistrate or in court, if it is so termed. Mr. Manager BUTLER. I suppose that that must be termed a court. Mr. EVARTS. It is the same question which was put to the other witness. Mr. Manager BUTLER. No ; it is another person. The CHIEF JUSTICE. Does the Manager object to the question as proposed ? Mr. Manager BUTLER. Yes, sir. The CHIEF JUSTICE. The Chief Justice thinks it is competent, but he will put the question to the Senate if any Senator desires it. [After a pause, to the witness. ] Answer the question. The Witness, (to the Secretary.) Read me the question. The Secretary read the question. The Witness. To answer that question it is necessary that I should state what transpired before the judge at chambers and in court on Wednesday ; for all that we did was done to accomplish that result. Mr. CURTIS. Go on. The Witness. Shall I state it ? Mr. CURTIS. Yes. Answer. We went into the room in the City Hall in which the criminal court holds its ses- sion in the morning. Chief Justice Cartter was then holding the term of the criminal court, and the criminal court was regularly opened. After some business in the criminal court was discharged the chief justice announced that he was ready to hear the case of General Thomas. The question was then suggested whether it was to be heard in chambers or before the court. The chief justice said he would hear it as at chambers, the criminal court not having then been adjourned. The case was thereupon called up. The counsel appearing for Mr. Stanton or for the Govern- ment, Messrs. Carpenter and Riddle, moved that the case be continued or postponed until the following day on the ground of the absence of one or two witnesses, I think, and on the additional plea of Mr. Carpenter's indisposi- tion. To that motion, after consulta'.ion with my associate, Mr. Cox, and Mr. Joseph H. Bradley, who appeared in person as advisory counsel for General Thomas, I rose and ob- jected to the postponement, stating that I was constrained to object, notwithstanding the plea of personal indisposition, to which I always yielded ; but I objected now for the reason that this was a case involving a question of great 206 SUPPLEMENT TO public interest, which the harmonious action of the Government rendered it necessary- should be speedily determined. I elaborated the view. Mr. Carpenter replied, representing that there could be no detriment to the public service, and he earnestly urged the court to a postponement. The chief justice thereupon said— I think-he remarked that it was the first time he knew of a case in which the plea of a personal indisposition of counsel was not ac- ceded to by the other side, that it was generally sufficient, and went on to remark upon the motion further in such a manner that I con- cluded he would continue the case until the following day ; and as soon as we saw that he would continue the case until the following day we brought forward a motion that it be then adjourned from before the chief justice at chambers to the chief justice holding the criminal court. That question was argued by counsel, and overruled by the court. Mr. JOHNSON. By the court? The Witness. By the judge at chambers, not by the court. I then submitted to the judge Mr. Manager BUTLER. Mr. President, I wish it simply understood, that I may clear my skirts of this matter, that this all goes in under our objection, and under the ruling of the presiding officer. The CHIEF JUSTICE. It goes in under the direction of the Senate of the United States. [To the witness.] Proceed, sir. The Witness. We then announced to the judge that General Thomas's bail had sur- rendered him, or that he was in custody of the marshal, and the marshal was advancing to- ward him at the time. I think that Mr. Brad- ley or Mr. Cox handed me, while on my feet, and while I was making that announcement, the petition for a habeas corpus, which, I then presented to the criminal court, which having opened in the morning, had not yet adjourned, and over which Chief Justice Cartter was pre- siding. I presented the habeas corpus to the criminal court. Mr. CURTIS. The petition? The Witness. The petition for a habeas corpus to the criminal court, representing that General Thomas was in custody of the mar- shal, and asked that it should be heard. Mr. Manager BUTLER. Was that petition in writing ? The Witness. That petition was in writing, I believe. As I said, it was handed to me by one of my associates, and if my recollection serves me aright I have seen the petition since, and it was not signed. When handed to me General Thomas and Mr. Bradley were sitting immediately behind me, and after reading it I laid it down, and I believe it was taken up by some of the reporters and not regained for half an hour. By Mr. Ccrtis : Question. Well, sir, after you had read it what occurred ? Answer. After I had read it a discussion arose upon the propriety of the petition and the regularity of the time, in regard to the time of its presentation. The counsel upon the other side contended that General Thomas was not in custody, and that it was a remarkable case — 1 remember that expression, I think, of Mr. Carpenter's — for an accused party to insist upon putting himself in jail or in custody. We contended that he was in custody. The chief justice ruled that he was not in custody at all, and that he did not purpose to put him in cus- tody. The counsel upon the other side further stated that they desired neither that he should be put in custody nor that he should give bond, because they were certain, from his character and position, that he would be here to answer any charge that might be brought against him. The chief justice replied that, in view of the statements made by the counsel, he should neither put him in custody nor demand bond, and was himself satisfied there was no necessity for pursuing either course. We then remarked, " If he is not in custody and not under bond he is discharged." I think some one said, " He is then discharged ; " and thereupon, in order that there might be a decision in refer- ence to the alternatives presented of his being placed in custody or discharged upon the rec- ord, we moved for his discharge in order to bring up the question officially of his commit- ment. He was thereupon discharged. Mr. CURTIS. I believe that is all we wish to examine Mr. Merrick upon. Cross-examined by Mr. Manager Butler : Question. Were you counsel, Mr. Merrick, for Surratt ? Answer. I was, sir. Question. Was Mr. Cox? Answer. He was not. Question. Was Mr. Bradley, who was advis- ory counsel in this proceeding? Answer. He was. Question. When you got to the Executive Mansion that m'orning Thomas was not there, you tell us ? Answer. I think not. That is my recollec- tion. Question. Did you learn whether he had been there ? Answer. I do not recollect whether I did or not. Had I so learned I probably should have recollected it. Question. Did you not learn that Thomas was then over at the War Department? Answer. I do not recollect that I did, and think I did not. Question. Did you not learn when he re- turned that he had come from the War Depart- ment? Answer. I do not recollect. Mr. Manager BUTLER. I will not tax your want of recollection any further. [Laughter.] Edwin 0. Perrin sworn and examined. By Mr. Evarts : Question. Where do you reside ? Answer. I reside on Long Island, near Ja- maica. Question. How long have you been a resi- dent of that region ? Answer. I have been a resident of Long Island over ten years. Question. Previous to that time where had you resided? Answer. Memphis, Tennessee. Question. Are you personally acquainted with the President of the United States ? Answer. lam. Question. And for how long a time have you been so personally acquainted with him? Answer. I knew Mr. Johnson in Tennessee for several years before I left the State, having met him more particularly upon the stump in political campaigns, I being a Whig and he a Democrat. Question. And has that acquaintance con- tinued until the present time ? Answer. It has. Question. Were you in the city of Washing- ton in the month of February last? Answer. I was. Question. And for what period of time ? Answer. I came here, I think, about the 1st day of February, or near that time, and re- mained until about the 1st of March or last of February. Question. During that time were you at a hotel or at a private residence ? Answer. At a private boarding-house. Question. Did you have an interview with the President of the United States on the 21st of February ? Answer. I did. Question. Alone, or in .company with whom ? Answer. In company with a member of the House of Representatives. Question. Who was he ? Answer. Mr. Selye, of Rochester, New York. Question. How did it happen that you made this visit ? Mr. Manager BUTLER. I pray judgment on that. Mr. EVARTS. It is merely introductory. It is nothing material. You have no ground to object, as the answer will show. Mr. Manager BUTLER. Very well. The Witness. Mr. Selye said that while he knew the President he never had been form- ally presented to him ; and understanding that I was a friend of the President, and well acquainted with him, he asked me if I would not go up with him to the President's and in- troduce him. By Mr. Evaets : Question. When did this occur? Answer. On the 20th. Question. The day before ? Answer. The day before — on the 20th. Question. Your visit, then, on the 21st was on this inducement? Answer. I made the appointment for the next day. I informed Mr. Selye that it was Cabinet day, and it would be no use to go un- til after two o'clock, as we probably would not be permitted to enter, and appointed two o'clock, at his rooms in Twelfth street, to meet him for that purpose. Question* You went there, and you took up Mr. Selye? Answer. I went to Mr. Selye' s room. He called a carriage, and we got in and drove to the President's house, a little after two o'clock, or perhaps nearly three. I did not note the hour. Question. Did you have any difficulty in get- ting in ? Answer. We had. Mr. Kershaw, the usher at the door, when I handed him Mr. Selye's card and mine, said that the President had some of his Cabinet with him yet, and no one would be admitted. I told him I wished that he would go in and say to the President or say to Colonel Moore, with my compliments Mr. Manager BUTLER. Excuse me; are you going to put in Colonel Moore ? Mr. EVARTS. It is no matter; we are only getting at the fact how he got in. [To the witness.] Was the fact that Mr. Selye was a member of Congress mentioned? Answer. That was mentioned that Mr. Selye was a member of Congress. Question. And so you got in ? Answer. And so we got in. Question. When you went up-stairs ; and were you immediately admitted, or otherwise ? Answer. We were up-stairs then when this took place ; in the ante-room near the President's reception-room. Question. Very well ; then you went in after awhile ? Answer. Yes, sir ; we went in. Question. Was the President alone when you went in? Answer. He was alone. Question. Anddidyou introduce Mr. Selye? Answer. I introduced Mr. Selye. Question. As a member of Congress ? Answer. As a member of Congress from the Rochester district. Question. Before this time had you heard that any order for the removal of Mr. Stanton had been made? Answer. I had heard nothing of it. Question. Nor had Mr. Selye, so far as you know ? Answer. He had not. I found him lying down when I got to his room, about two o' clock, and he complained of being unwell. Question. So far as you know, he had heard nothing of it? Answer. So far as I know, he had heard nothing of it. Question. Did you then hear from the Presi- dent of the removal of Mr. Stanton ? Mr. Manager BUTLER. Stay a moment. We feel it our duty to object to the state- ment of the President to this person or Mr. Selye or anybody else, declarations made to parties in the country generally. There can be no end to this kind of evidence ; everybody may be brought here. Where are we to stop, if there is to be any stop ? If not, the time of the country will be consumed in hearing every conversation between the President and every person that he chooses to introduce. Mr. EVARTS. If the evidence is proper THE CONGRESSIONAL GLOBE. 207 the time to have considered about the public interest was when the trial was commenced or promoted. We are not to be excluded from a defense because it takes time to put it in. Of course it would be more convenient to stop a cause at the end of the prosecution's case and save the time of the country or of the court. We are reducing to writing our offer. Mr. Manager BUTLER. The question simply is what waa said between the President and Mr. Selte and Mr. Perrin. That is the ques- tion that I had the honor to object to. Mr. EVARTS. We are reducing it to form in order that it may be passed upon. The offer, having been reduced to writing, was read by the Secretary, as follows : Wo offer to prove that the President then stated that he had issued an order for the removal of Mr. Stanton and the employment of General Thomas to perform the duties ad interim ; that thereupon Mr. Perrin said " Supposing Mr. Stanton should oppose the order ;" the President replied " There is no danger of that, for General Thomas is already in the offioe." He then added, "It is only a temporary arrange- ment; I shall send in to the Senate at once a good name for the office." Mr. Manager BUTLER. I find it, Mr. President and Senators, my duty to object to this. There is no end to declarations of this sort. The admission of those to Sherman and to Thomas was advocated on the ground that the office was tendered to them and that it was a part of the res gestce. This is mere narra- tion, mere statement of what he had done and what he intended to do. It never was evidence and never will be evidence in any organized court, so far as any experience in court has taught me. I do not see why you limit it. If Mr. Perrin, who says that he has heretofore been on the stump, can go there and ask him questions, and the answers can be received, why not anybody else ? If Mr. Selye could go there why not everybody else ? Why could he not make declarations to every man, ay, and woman, too, and bring them in here, as to what he intended to do and what he had done to instruct the Senate of the United States in their duties sitting as a high court of impeach- ment? Mr. EVARTS. Mr. Chief Justice, I am not aware that the credit of this testimony is at all affected by the fact that Mr. Perrin has been engaged in political canvasses, nor do I suppose that it assists us in determining whether this should be admitted, because a declaration might be made even to a female. The ques- tion, then, is, whether the declaration, at this time and under these circumstances, of the President's intent in what he had done was and is proper to be heard. It will be observed that this was an interview between the President of the United States and a member of Congress, one of " the grand inquest of the nation," holding, therefore, an official duty and having access, by reason of his official privilege, to the person of the President ; that at this hour of the day the President was in the attitude of supposing, upon the report of General Thomas, that Mr. Stanton was ready to yield the office, desiring only the time necessary to accommodate his private convenience, and that he then stated to these gentlemen, "I have removed Mr. Stanton and appointed General Thomas ad interim," which was their first intelligence of the occur- rence; that upon the suggestion, " Will there not be trouble or difficulty?" the President answered (showing thus the bearing on any question of threats or purpose of force as to be imputed to him from the declarations that General Thomas was making at about the same hour to Mr. Wilkeson) that there was no occasion for or "no danger of that as General Thomas was already in." Then, as to the motive or purpose entertained by the President at the time of this act of providing anybody that should control the War Department or the military appropriations, or by combination with the Treasury Department suck the public funds, or to have, though I regret to repeat the words as used by the honorable Manager, a tool or a slave to carry on the office to the detriment of the public service, we propose to show that at the very moment he asserts, ' ' This is but a temporary arrangement; I shall at once send in a good name for the office to the Senate." Now, you will perceive that this bears upon the President's condition of purpose in this matter, both in respect to any force as threat- ened or suggested by anybody else being imputable to him at this time, and upon the question of whether, this appointment of Gen- eral Thomas had any other purpose than what appeared upon its face, a nominal appointment, to raise the question of whether Mr. Stanton would retire or not, and determined, as it seemed to be for the moment, by the acquies- cence of Mr. Stanton, was then only to be maintained until a name was sent into the Senate, as by proof hitherto given we have shown was done on the following day before one o'clock. Mr. JOHNSON. Mr. Chief Justice, I ask that the question be read. The CHIEF JUSTICE. The proposal of the counsel for the President will be read. The Secretary read as follows : We offer to prove that the President then stated that he had issued an order for the removal of Mr. Stanton and the employment of Mr. Thomas to per- form the duties ad interim r * that thereupon Mr. Per- rin said, "Supposing Mr. Stanton should oppose the order." The President replied: "There is no dan- ger of that, for General Thomas is already in the office." He then added: "It is only a temporary arrangement; I shall send into the Senate at once a good name for the office." Mr. Manager WILSON. Mr. President, as this objection is outside of any former ruling of the Senate, and is perfectly within the rule laid down in Hardy's case, I wish to call the attention of the Senate to that rule again, not for the purpose of entering upon any consider- able discussion, but to leave this objection under that rule to the decision of the Senate: " Nothing is so clear as that all declarations which apply to facts, and even apply to the particular case that is charged, though the intent should make a part of that charge, are evidence against a prisoner, and are not evidence for him, because the presump- tion upon which declarations are evidence is that no man would declare anything against himself un- less it were true; but every man, if he was in a diffi- culty, or in the view to any difficulty, would make declarations for himself." — 21 State Triah, p. 1096. If this offer of proof does not come perfectly within that rule then I never met a case within my experience that would come within its pro- visions. I leave this objection to the decision of the Senate upon that rule. Mr. E VARTS. It may truly be said, I sup- pose, Mr. Chief Justice and Senators, that the question now proposed is not entirely covered by any previous ruling of the Senate, because there were circumstances in regard to the atti- tude of the persons between whom and the President those conferences took place that are not precisely reproduced here in the relation of a member of Congress toward the Presi- dent. But, Senators, you will perceive that before the controversy arose, and at a time when, in the President's opinion, there was to be no controversy, he made this statement in the course of his proper intercourse with this member of Congress, thus introduced to him, concerning his public action. It is applicable in reference both to the point of why the ap- pointment of General Thomas was made and with what limitation of purpose in so appoint- ing him, and as bearing also upon the question of whether he was using or justifying force. May not declarations that are drawn from sup- posed coadjutors of his, with a view of fixing upon him the responsibility of the same, be rebutted by his statements at the same period in this open and apparently truthful manner, unconnected with any agitation or any ques- tions of difficulty or any lis mota ? And then it is important, as bearing upon this precise fact, that the next day having sent in, as we have proved, the nomination of Mr. Ewing, senior, of Ohio, for the place of Secretary of War, to show that that was not a purpose or an act that was formed after the occasion of difficulty or after the appearance of danger or threat to himself; but that at the very moment that ho was performing the act of removing Mr. Stanton and appointing General Thomas, and had supposed that it had quietly been acceded to, he then and there had the purpose not of making an appointment of General Thomas that was to hold, which should super- sede proper action of the Senate ; but at the very moment, having used this necessary ap- pointment for the purpose of testing the ques- tion of the Constitution and of the law, he then proposed to send to the Senate of the United States a nomination for the office. Mr. Manager BUTLER. Mr. Presiden t there are one or two new facts now put in, or pretended facts, upon which this evidence is pressed. The more material one is that this was before any controversy arose between the President and Congress upon the subject of Mr. Stanton. If that were so, then it might possibly have some color of a shadow of a shade of bearing. But had there not been a controversy going on? Had he not known that the Senate had restored Mr. Stanton ? Had he not tried to get him out and had they not put him back? Had he not been beseech- ing and beseeching General Sherman to take the office weeks, ay, months before, and had not General Sherman told him, "I cannot take it without getting into difficulty ; there will be trouble; why mix me, an Army officer, up in this trouble ?" And yet the President's counsel rise here in their place and put this evidence before yon, because it was his declar- ation before any controversy arose or was likely to arise ! Another proposition is put in here, and that is that this must be evidence because it was said to a member of Congress. I am aware that we have many rights, privileges, and ap- purtenances belonging to our official position, but I never was aware before that one of them was that what was said to us was evidence be- cause it was said to us by anybody. I have had a great many things said to me that I should be very unwilling to have regarded as evidence. For instance, here is a written declaration sent to me to-day. "Butler, pre- pare to meet your God." [Laughter.] "The avenger is abroad on your track." "Hell is your portion." [Laughter.] Now, I trust that is not evidence because it is said to a member of Congress. And yet it is just as pertinent, just as competent, in my judgment, as this declaration. We are to have these kinds of declarations made to us by the enemies of the country, and we are to sit here and admit the President's declarations in justification of his conduct, which brings out such a condition of this country. I did not mean by any manner of means when I was up before to suggest that the fact of this being made to a gentleman who is on the s'tump would make it more or less compe- tent ; only to show that so far as the evidence goes, so far as they choose to put in his pro- fession, it is utterly outside of this case. I do not think it would make it more or less evi- dence because it should have been made to a woman, I was only foreseeing what might come — quite as probable as this — that some of the lady friends — I beg pardon the woman friends of the President might have gone to the White House on that day and he might have told them what his purpose was. It would be just as much evidence, in my judg- ment, as this ; and it was only in that view, to show the innumerableness of the persons to whom these competent declarations could be made, that I brought up the illustration which produced the answer on the part of the learned counsel. Mr. EVARTS. The lis mota, Mr. Chief Justice and Senators, so far as it has been alluded to as bringing discredit upon the Presi- dent's statements is the controversy between Congress and himself in regard to the removal of Mr. Stanton. What political differences there are or may have been between the Presi- dent and the Houses of Congress, it is of no consequence to inquire, nor is it of the least consequence to inquire into the period during which the suspension of Mr. Stanton had taken 208 SUPPLEMENT TO place, for that certainly was within any view of the law that can be suggested. I referred, therefore, as has often been referred, to the controversy produced by thethreatof the House aud its very promptexecution of impeachment ; and that had not. occurred in any point to ask the President's attention at the moment of this statement. It was therefore a statement by him unaffected by any such considerations as those. The CHIEF JUSTICE. Senators, the Chief Justice is unable to determine the precise ex- tent to which the Senate regards its own decis- ion as applicable. He has understood the decision to be that, for the purpose of showing intent, evidence may be given of conversations with the President at or near the time of the transaction. It is said that this evidence is dis- tinguishable from that which has been already introduced. The Chief Justice is not able to to distinguish it ; but he will submit directly to the Senate the question whether it is admis- sible or not. Mr. CONNESS. I ask for the yeas and nays on that question. The yeas and were ordered. The question being taken by yeas and nays, resulted — yeas 9, nays 37 ; as follows : YEAS— Messrs. Bayard, Buokalew, Davis, Dixon, DooiiUle, Hendricks, McCrcory, Patterson of Ten- nessee, and Vickers — 9. NAYS— Messrs. Cameron, Cattell, Chandler, Conk- ling, Conness, Corbett, Cragin, Drake, Ferry, Fessen- den. Fowler, Frelinghuysen, Grimes, Hurtau, How- ard, llowo, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Uo.nisey, Ross, Sherman, Spraguc, btcwart, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams. Wilson, and Yates— 37. -NOT VOTING.— Messrs. Anthony, Cole, Ed- munds, Henderson, Norton, Saulsbury. Sumner, and Wade— 8. So the Senate decided the question to be inadmissible. Mr. BVARTS. This evidence being ex- cluded, we have no other questions to ask of the witness. Mr. Manager BUTLER. We have none, sir. Mr. EVARTS. We have reached a point, Mr. Chief Justice and Senators, at which it will be convenient to us that we should not be required to produce more evidence to-day. Mr. Manager BUTLER. Mr. President, I hope upon this movement for delay the Presi- dent's counsel will be called upon to go on with their case, and I have only to put to them the exact thing that the President's counsel, Cox and Mr. Merrick, used in the case of General Thomas before the criminal court of this District, according to Merrick's testimony. It is always ungracious to object to delay be- cause of the sickness of counsel. We should have been glad to have Mr. Stanbery here, but these gentlemen present can try this ease. There are fourof them. When a motion to post- pone the case of Thomas before Chief Justice Car-tter was made to postpone the case because of the sickness of Mr. Carpenter, for a single day, the President's counsel, arguing his case, trying his case before the court said "No; a case involving so much of public administration cannot wait for the sickness of counsel." " I thank thee, Jew, for teaching me that word." The President's counsel there well told us what we ought to do. In the case of Mr. Thomas the President could not wait for sick men or sick women. The case must go through. Wc cannot wait now, on the same ground, for the sickness of the learned Attorney General ; and why should we? Why should not this Presi- dent be called upon now to go on? We have been here thirty-three working days since the President actually filed his answer, and we, the Managers, have used but six days of them, and the counsel but part of seven. Twenty-one of them have been given to delays on motion of the President, and there have been four ad- journments on the days we have worked earlier than the usual time of adjournment, in order to accommodate the President. Now, the whole legislation of this country is stopping; the House of Representatives has to be, day by day, here at your bar. The taxes of the country cannot be revised because this trial is in the way. The appropriations for carrying on the Government cannot be passed because this trial is in the way. Nothing can be done, and the whole country waits upon us aud our action, and it is not time now for the exhibitionsof courtesy. Larger, higher, greater interests are at stake than such questions of ceremony. Far be it from me not to desire to be courteous, and not to desire that we should have our absent and siclf friend here to take part with us'; but the interests of the people are greater than the interests of any one indi- vidual. Gentlemen of the Senate, this is the closing up of a war wherein three hundred thousand men laid down their lives to save the country. la one day we sacrificed them by tens and twenties of thousands on the field of battle, and shall the country wait now in its march to safety because of the sickness of one man and pause for an indefinite time, because the duration of sickness is always indefinite? More than that, I have here in my hand tes- timony of what is going on this day and this hour in the South. Mr. CURTIS. We object to the introduc- tion of any testimony. Mr. EVARTS. We object to the relevancy of it here. Mr. Manager BUTLER. The relevancy of it is this, that while we are waiting for the Attorney General to get well , and you are asked to delay this trial for that reason, numbers of our fellow-citizens are being murdered day by day. There is not a man here who does not know that the moment justice is done on this great criminal these murders will cease. Mr. CURTIS rose. Mr. Manager BUTLER. I cannot be inter- rupted. This is the great fact which stands here before us, and we are asked " Why stand ye here idle?" by every true man in the coun- try. Mr. Chief Justice, in Alabama your register of bankruptcy, appointed by yourself, General Spencer, of Tuscaloosa, is driven to- day from his duties and his home by the Ku- Klux-Klan, upon fear of his life, and I have the evidence of it lying on our table ; and shall we here delay this trial any longer, under our responsibility to Our countrymen, to our consciences, and to our God, because of a question of courtesy? While we are being cour- teous the true Union men of the South are being murdered, and on our heads and on our skirts is this blood, if we remain any longer idle. Again, sir, since you have begun this trial — I hold the sworn evidence of what I say in my hand — since the 20th day of February last and up to the 4th day of this present April — and no gold had been sold by the Treasury prior to that time since December 12 — $10,800,- 000 of your gold has been sold at a sacrifice to your Treasury, and by whom? More than one- half of it, $5,000,000, by one McGinnis, whom the Senate would not permit to hold office, and over ten thousand dollars in currency, of which 1 have the official evidence here, under the sworn oath of the Assistant Treasurer at New York, has been paid to him, after the Senate had refused to have him hold any office and had rejected him as a minister to Sweden. He now takes charge of the sale of your gold by order of the Executive, as a broker, and we are to wait day by day while he puts into his pocket, from the Treasury of the country, money by the thousands, because this gold is sold from one and one eighth per cent, to three per cent, lower than the market rates at differ- ent dates, as taken from the best tables. The commissions alone amount to what I have said, supposing the gold to be sold honestly by this rejected diplomat. Worse still, sir ; I have here from the same source the fact that since the 1st day of Janu- ary last there have been bought in the city of New York alone, on behalf of the Treasury, $27,058,100 of the bonds of the United States, by men who return them from three eighths, one half, five eighths to three quarters above the market price, and since February 20, $14,181,600 worth. Mr. Manager LOGAN. Below. Mr. Manager BUTLER. No; I mean what I say, above. I never make mistakes in such matters. I know what I say. From the 3d of January to the 28th of January, by such pur- chases, the price of bonds was run up and the people were made to pay that, difference— run up from one hundred and four and three quarters to one hundred and eight per cent., and still the purchases went on, and they have gone on from that of February down to the 4th of April, when the Managers of impeachment on the part of the House of Representatives felt it their duty to take this testimony of the Assist- ant Treasurer at New York under oath, aud the result of it I here lay in detail before you : [At this point Mr. Manager Butler intro- duced certain tabular statements of " Sales of Gold from January 1, 1808, to April 4, 1868, inclusive," and "Purchases of Seven-Thirty Notes," (see Daily Globe of April 17, 1808,) which statements are omitted in this issue of the proceedings by direction of the Senate sit- ting for the trial, made at its next meeting, in these terms: "Ordered, That such tabular statements be omit- ted from the proceedings of the trial as published by rule of the Senate." Vide proceedings of Friday, April 17th.] Now, I say, for the safety of the finances of the people, for the progress of the legislation of the people, for the safety of the true and loyal men, black and white, in the South who have periled their lives for four years; yea, five years ; yea, six years; yea, seven years, in your behalf for the good of the country, for all that is dear to any man and patriot, I pray let this trial proceed; let us come to a de- termination of this issue. If the President of the United States goes free and acquit, then the country must deal with that state of facts as it arises ; but if he, as the House of Repre- sentatives instructs me, and as 1 believe, is guilty; if on his head rests the responsibility; if from his policy, from his obstruction of the peace of the country, all this corruption aud all these murders come, in the name of Heaven let us have an end of them and see to it that we can sit at least four hours a day to attend to this the great business of the people. Sir, it may be supposed here that 1 am mis- taken as to time wasted ; but let us see ; let me give you day and date. The articles of im- peachment were presented on March 4, and the summons was returnable March 13, at which time the President, by its terms, was requested to answer. Delay was given, on his application for forty days, to the 23d — ten days, when the answer was filed, and a motion was made for thirty days' delay, which failed. Then a motion for a reasonable time after replica- tion was filed, which was done on the 24th. Time was given, on motion of the President's counsel, until the 30th — six days. On that day the Managers opened their case, and proceeded without delay with their evidence till April 4 — six days. Then, at the request of President's counsel, adjourned to April 9 — five days. Mr. Curtis opened a part of a day, and asked for an adjournment till the 10th, wherein we lost half a day. They continued putting in evi- dence till the 11th (12th being Sunday) and 13th. Because of sickness, adjourned again over till Wednesday, 14th. Wednesday ad- journed early, because counsel could go no further. Thursday, now another motion to adjourn, because counsel cannot go on. Thirty- four days since the President filed his answer; six days used by the Managers in putting in their case ; parts of seven used by the counsel for the President, and twenty-one given as delay to the President on his motion. I do not speak of all this to complain of the Senate, but only that you and the country may see exactly how courteous and how kind you have been to the criminal and to his counsel. Yielding to the request of the counsel who Opened you lost half a day. Then" the open- ing consumed parts of two days. On the next day they said they were not quite ready to go THE CONGRESSIONAL GLOBE. 209 through with, General Sherman, and you again adjourned earlier than usual. Then we lost almost all of Monday in discussing the ques- tions which were raised. We adjourned early on Monday, as you remeimber, and on the next day there was an adjournment almost imme- diately after the Senate met, because of the learned Attorney General. Now, all we ask is that this case may go on. If it be said that we are hard in our demands that this -trial go on, let me contrast for a moment this ease with a great State trial in England, at which were present Lord Chief Justice Eyre, Lord Chief Baron McDonald', Baron Hotham, Mr. Justice Buller, Sir Nash Grose, Mr. Justice Lawrence, and others of her majesty's judges in the trial of Thomas Hardy for treason. There the court sat from nine o'clock in the morning until one o'clock at night, and they thus sat there from Tuesday until Friday night at one o'clock, and then, when Mr. Erskine,. afterward Lord Chancellor Erskine, asked of that court that they would not come in so early by an hour the next day because he was unwell and wanted time, the court after argument refused it, and would not give him even that hour in which to reflect.upon his opening which he was to make, and which occupied nine hours in its delivery, until the jury asked it, and then they gave him but a single hour, although he said upon his honor to the court that every night he had not got to his house until between two and three o'clock in the morning, and he was regularly in court at nine o'clock on the following morning. That is the way cases of great consequence are tried in England. That is the way other courts sit. I am not complainfng here, Sena- tors, understand me. I am only contrasting the delays given, the kindnesses shown, the courtesies extended in this greatest of all cases, and where the greatest interests are at stake, compared with every other case ever tried elsewhere. The Managers are ready. We have been ready ; at all hazards and sacri- fices we would be ready. We only ask that now the counsel for the President shall be likewise ready, and go on without these in- terminable delays with which, when the House began this impeachment, the friends of the President there rose up and threatened. You will find such threats in the Globe. Mr. James Brooks, of New York, said, in substance, "You can go on with your impeachment, but I warn you that we will make you go through all the forms, and if you go through all the forms we will keep it going until the end of Mr. Johnson's term, and it will be fruitless." Having thus threatened you, Senators, I had supposed that you would not allow the threat to be carried out, as it is attempted to be car- ried out, by these continued delays. Mr. President and Senators, I have thus given you the reasons pressing upon my mind why this delay should not be had ; and I admit I have done it with considerable warmth, be- cause I feel warmly. I open no mail of mine that I do not take up an account from the South of some murder or worse of some friend of the country. I want these things to stop. Many a man whom I have known stand- ing by my side for the Union I can hear of now only as laid in the cold grave by the assassin's hand. This has stirred my feelings, I admit. The loss of my.friends, the loss to the country of those who have stood by it, has, ■perhaps, very much stirred my heart, so that I have not been able with that coolness with which judicial proceedings should be car- ried on to address you upon this agonizing topic. I say nothing of the threats of assassin- ation made every hour and upon every occa- sion, even when objection to testimony is made by the Managers. I say nothing of the threats made against the lives of the great officers of the Senate and against the Managers. ' We are all free. There is an old Scotch proverb in our favor: "The threatened dog a' lives the longest." We have not the slightest fear of . these cowardly menaces ; but all these Supplement — 14. threats, these unseemly libels on our former government will go away when this man goes out of the White House. Mr. CONNESS. Mr. President, I offer the following order : Ordered, That on each day heroafter the Senate, sitting as a court of impeachment, shall meet at eleven o'clock a. in. Mr. SUMNER. I send to the Chair a sub- stitute for that order. The CHIEF JUSTICE. The Secretary will read the substitute proposed by the Senator from Massachusetts. The Secretary read as follows : That, considering the public interests which suffer from tho delay of this trial, and in pursuance of the order already adopted to proceed with all convenient dispatch, the Senate wiil sit from ton o'clock in the forenoon to six o'clock in the afternoon, with such brief recess as may be ordered. Mr. TRUMBULL. I rise to a question of order, whether it is in order to consider these propositions to-day under the ruling of the Chair. The CHIEF JUSTICE. They are not in order if anybody objects. _ Mr. TRUMBULL. I object to their con- sideration. The CHIEF JUSTICE. They will go over until to-morrow. Mr. EVARTS. Mr. Chief Justice and Senators, I am not aware how much of the address of the honorable Manager is appro- priate to anything that has proceeded from me. I, at the opening of the court this morn- ing, stated how we might be situated, and added that when that point of time arrived I should submit the matter to the discretion of the Senate. I have never heard such a harangue before in a court of justice ; but I cannot say that I may not hear it again in this court. All these delays and the ill conse- quences seem to press upon the honorable Managers except at the precise point of time when some of their mouths are open occupy- ing your attention with their lone harangues. If you will look at the reports of the discus- sions on questions of evidence, as they appear in the newspapers, while all that we have to say is embraced within the briefest paragraphs, long columns are taken up with the views of the learned Managers, and hour after hour is taken up with debates on the production of our evidence by these prolonged discussions, and now twenty minutes by the watch with this harangue of the honorable Manager about the Ku-Klux-Klan. I have said what I have said to the Senate. Mr. CAMERON. Mr. President, I should like to inquire whether the word "harangue" be in order here? Mr. Manager BUTLER. So far as I am concerned it is of no consequence. Mr. DOC-LITTLE. v Mr. Chief Justice, I should like to know whether the harangue itself was in order, not the word? Mr. FERRY. Mr. President, I move that the Senate, sitting as a court of impeachment, adjourn. Mr. SUMNER. I move that the adjourn- ment be until ten o'clock. Mr. TRUMBULL. That is not in order. The CHIEF JUSTICE. It is not in order. The motion to adjourn is, under the rule, to the usual time. Mr. SUMNER. On that I ask for the yeas and nays. The yeas and nays were not ordered. The motion was agreed to ; and the Senate, sitting for the trial of the impeachment, adjourned until to-morrow at twelve o'clock. Friday, April 17, 1868. The Chief Justice of the United States took the chair. The usual proclamation having been made by the Sergeant-at- Arras, The Managers of the impeachment On the part of the House of Representatives, and the counsel for the respondeat, except Mr. Stan- bery, appeared and took the seatsassigned them respectively. The members of the House of Representa- tives, as in Committee of the Whole, preceded by Mr. E. B. Wasiiburne, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were conducted to the seats provided for them. The CHIEF JUSTICE. The Secretary will read the Journal of yesterday's proceedings. Mr. STEWART. I move that the reading of the Journal be dispensed with. The CHIEF JUSTICE. If there be no ob- jection it will be so ordered. The Chair hears none. It is so ordered. During the sitting of yesterday the Senator from California [Mr. Conness] offered an order that the Senate, sit- ting as a court of impeachment, meet hereafter at eleven o'clock a. m. That will be before the Senate unless objected to. The Secretary will read the order. The Secretary read as follows : Ordered, That on each day hereafter the Senate, sitting as a court of impeachment, shall meet at eleven o'clock a. m. The CHIEF JUSTICE. Does the Senator from Massachusetts desire to offer his amend- ment? Mr. SUMNER. I did offer it, Mr. Presi- dent, yesterday. The CHIEF JUSTICE. The amendment offered by the Senator from Massachusetts will be read. The Secretary read the amendment, as fol- lows: Strikeout all after the word "ordered" and in- sert: That considering the publid interests which suffer from the delay of this trial, and in pursuance of the order already adopted to proceed with all convenient dispatch, the Senate will sit from ten o'clock in the forenoon to six o'clock in the afternoon, with such., brief recess as may be ordered. Mr. SUMNER. On that I should like to have the yeas and nays. The yeas and nays were ordered -, and being taken, resulted — yeas 13, nays 30; as follows: YEAS— Messrs Cameron, Chandler, Cole, Corbett, Harlan, Morrill of Mnine, Pomeroy, Ramsey, Stew- art. Sumner, Thayer, Tipton, and Yates — 13. NAYS — Meters. Anthony, Cattell, Conness. Davis, Dixon, Doolittle, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Howard, Howe, Johnson, Morgan, Morrill of Vermont, Morton, Pat- terson of New Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman, Trumbull, Van Winkle, Vickers. Willey, Williams, and Wilson — 30. NOT VOTING— Messrs. Bayard, Buckalew. Conk- ling, Cragin, Edmunds, Henderson, McCreery, Nor- ton, Nye, Sprague, and Wade — 11. So the amendment was rejected. The CHIEF JUSTICE. The question recurs on the order proposed by the Senator from California. Mr. CONNESS. On that I ask for the yeas and nays. The yeas and nays were ordered. Mr. CONNESS. Now let it be read. The Secretary read as follows: Ordered, That on each day hereafter the Senate, sitting as a court of impeachment, shall meet at eleven o'clock a. m. The question, being taken by yeas and nays, resulted— yeas 29, .nays 14; as follows: YEAS— Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine. Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Stew- art, Sumner, Thayer, Tipton, Willey, Williams, .Wil- son, and Yates — 29. NAYS— Messrs. Anthony, Davis, Dixon, Doolittle, Fowler, Grimes, Hendricks. Johnson, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, and Vickers— 14. NOT VOTING— Messrs. Bayard, Buckalew, Ed- munds, Fessenden, Henderson, McCreery, Morton, Norton, Nye, Sprague, and Wade— 11. So the order was adopted. Mr. FERRY. ' I send an order to the Chair. The CHIEF JUSTICE. The Secretary will read the order proposed by the Senator from Connecticut. The Secretary read as follows : Whereas there appear in the proceedings of tho Senate of yesterday as published in the Globe of this morning certain tabular statements incorporated in the remarks of Mr. Manager Butler upon the ques- tion of adjournment, which tabular statements wor« 210 SUPPLEMENT TO fT neither spoken of in the discussion, nor offered or received in evidence: Therefore, Ordered, That such tabular statements be omitted Irpin the proceedings of the trial as published by rule ol the Senate. Mr. Manager BUTLER. Is that a matter for discussion? The CHIEF JUSTICE. The order will be for present consideration unless objected to. Mr. FERRY. I ask its present considera- tion. _ The CHIEF JUSTICE. There is no objec- tion. It is before the Senate. Mr. Manager BUTLER. I only desire to say, sir, that 1 stated the effect of the tabular statements yesterday. L did not read them at length, because it would take too much time. Mr. HENDRICKS. Mr. President, I rise to a question of order and propriety. I wish to know whether it is the right of any Senator to defend the Secretary of the Treasury against attacks that are here made upon him, or whether our mouths are closed while these attacks are made ; and if it is not the province and right of a Senator to defend him in his office, whether it is the right of the Manager to make an attack upon him? The CHIEF JUSTICE. The question of order is made by the resolution proposed by the Senator from Connecticut. Upon that question of order, if the Senate desire to de- bate, it will be proper that it should retire for consultation. If no Senator moves that order, the Chair conceives that it is proper that the honorable Manager should be heard in expla- nation. Mr. Manager BUTLER. I wish to say, sir, that I did not read the tables because they would be too voluminous. I had them in my hands ; I made them a part of my argument ; I read the conclusions of them, and stated the inferences to be drawn from them , and I thought it was due to myself and due to the Senate that they should be put exactly as they were, and I therefore incorporated them in the Globe. To the remark of the honorable Senator, I simply say that I made no attack on the Sec- retary of the Treasury; I said nothing of him ; I did not know that he was here at all to be discussed ; but I dealt with the act as the act of the Executive simply, and whenever called upon to show I can show the reasons why I dealt with that. The CHIEF JUSTICE. The Secretary will read the order submitted by the Senator from Connecticut. The Secretary again read the order. Mr. ANTHONY. Mr. President, I under- stood the Senator from Indiana to inquire if under the rules he could be permitted to make an explanation, or to make n defense of the Secretary of the Treasury? The CHIEF JUSTICE. The rules positively prohibit debate. Mr. ANTHONY. But by unanimous con- sent I suppose the rule could be suspended. Mr. WILLIAMS. I object. The CHIEF JUSTICE. Objection is made. Senators, you who are in favor of agreeing to the order proposed by the Senator from Con- necticut will please say ay, those of the con- trary opinion no. [Putting the question.] The ayes appear to have it. The ayes have it, and the order is adopted. The CHIEF JUSTICE. Gentlemen of counsel for the President, you will please pro- ceed with the defense. Mr. CURTIS. The Sergeant-at-Arms will call William W. Armstrong. William W. Armstrong: sworn and ex- amined. By Mr. Curtis : Question. Please state your name in full ? Answer. William W. Armstrong. Question. Where do you reside? Answer. I reside in Cleveland, Ohio. Mr. DRAKE. I ask permission to make a suggestion to the Chair, in reference to our hearing on this side of the Chamber. Will the Chair instruct the witness to turn his face-in this direction? , - Mr. EVARTS. Mr. Chief Justice, if we may be allowed a suggestion, there is not so much silence in the Chamber as would ;be possible, and we must take witnesses with such natural powers as they possess. Mr. CURTIS, (to the witness.) Speak as loud as you can. The CHIEF JUSTICE. Conversation in the Senate Chamber must be suspended. By Mr. Curtis : Question. Repeat, if you please, what is your residence? Answer. Cleveland, Ohio. Question. And what is your occupation or business? Answer. I am one of the editors and pro- prietors of the Cleveland Plaindealer. Question. Were you at Cleveland at the time of the visit made to that city by President Johnson in the summer of 1866? Answer. I was. Question. Were you present at the formal reception of the President by any committee or body of men ? Answer. I was. Question. State by whom he was received ? Answer. The President and his party arrived at Cleveland about half past eight o'clock in the evening, and were escorted to the Kennard House. After partaking of a supper the Pres- ident was escorted on to the balcony of the Kennard House, and there was formally wel- comed to the city of Cleveland, on behalf of the municipal authorities and the citizens, by the president of the city council. Question. Did the President respond to that address of welcome ? Answer. He did. Question. What was the situation of this bal- cony in reference to the street, in reference to its exposure and publicity, and whether or not there was a large crowd of persons present? Answer. There was a very large crowd of persons present, and there were quite a large number of people on the balcony. Question. How did it proceed after the Pres- ident began to respond ? Answer. For a few moments there were no interruptions, and I judge from what the Pres- ident said that he did not intend Mr. Manager BUTLER. Excuse me. Stop a moment, if you please. I object to what the witness supposed were the President's inten- tions. By Mr. Curtis : Question. From what you heard and saw was the President in the act of making a con- tinuous address to the assembly, or was he in- terrupted by the crowd, and describe how the affair proceeded ? Answer. Well, sir, the President commenced his speech by saying that he did not intend to make a speech. I think, to the best of my recollection, he said that he had simply come there to make the acquaintance of the people, and bid them good-bye. I think that was about the substance of the first paragraphs of his speech. He apologized for the non-appear- ance of General Grant, and then proceeded with his speech. Question. How did he proceed, sir? Was it a part of his address, or was it in response to calls made upon him by the people ? De- scribe what occurred ? Answer. Well, sir, I did'not hear all of the speech. Question. Did you hear calls upon him from the crowd and interruptions? Answer. I did, quite a number of them. Question. From what you saw and heard the President say, and all that occurred, was the President closing his remarks at the time when these interruptions began? Answer. 1 hat I cannot say. Question. Can you say whether these inter- ruptions and calls upon the President were responded to by his remarks? Answer. Some of them were. Question. Were the interruptions kept up during the continuance of the address* or was he allowed to proceed without interruption? Answer. Tbey were kept up very nearly to the conclusion of the President's speech. Question. What was the character of the crowd? Was it orderly or disorderly? Answer. Well, sir, the lai^e majority of the crowd were orderly. Question. As to the rest? Answer. There was a good deal of disorder. Question. Was that disorder confined to one or two persons, or did it affect enough to give a character to the interruptions? Answer. I have no means of ascertaining how many were engaged in the interruptions. Question. That is not what I asked you. I asked you whether there was enough to give a general character to the interruptions? Answer. There were quite a number of voices. Whether they were all from the same persons or not I am not able to say. Cross-examined by Mr. Manager Butler: Question. F. W. Pelton, esq., was the pres- ident of the city council, was he not? Answer. I believe so. Question. Was not his address on the bal- cony to the President simply in the hearing of those who were on the balcony, and did not the President after he had received that wel- come address then step forward to speak to the multitude? Answer. I believe that after Mr. Pelton ad- dressed the President several of the distin- guished gentlemen who accompanied the party were presented, and then, in response to culls, the President presented himself. Question. Presented himself in response to the crowd? Answer. In response to the Mr. CURTIS. In response to what? The Witness. In response to the caWa. By Mr. Manager Butler : Question. Would you say that this was a correct or incorrect report of that proceeding: " About ten o'clock, the supper being over, the party retired to the baloony, where the President was formally welcomed to the forest City by F. W. Pelton, esq., president of the city council, as fol- lows: "'Mr. President: On behalf of the municipal au- thorities of the city I cordially extend to you the hospitalities of the citizens of Cleveland. We recog- nize you as the Chief Magistrate of this now free Republic and the chosen guardian of their rights and liberties. Wo are grateful for the opportunity ntforded by f your visit to our city to honor you as our Chief Magistrate, and again I extend to you and to the distinguished members of your party a hearty welcome.'" Was that about the substance of Mr. Pel- ton's address? Answer. That was about the substance, I think. Question. Then : "The President and several members of his party then appeared at the front of the balcony and were introduced to the people?" Answer. Yes, sir. Question. Then : "The vast multitude that filled the streets below was boisterous, and sometimes bitter and sarcastic in their calls, interludes, and replies, though some- times exceedingly apt." Would you say that was about a fair repre- sentation ? Answer. I do not think there were any calls or any interruptions of the President's speech until after he had proceeded some five or ten minutes. Question. But, whenever they did come, would that be a fair representation of them ? Answer. What is your question, sir? Question. "The vast multitude that filled the streets below was boisterous, and some- times bitter and sarcastic in their calls?" Answer. They were to some extent. Question. "They listened with attention part of the time, and at other times completely drowned the President's voice with their vocif- erations." Was that so? Answer. Yes, sir, that was so. Question. "After all the presentations had THE CONGRESSIONAL GLOBE. 211 been made loud calls were made for the Presi- dent, who appeared and spoke as follows." Now I will only read the first part to see if you will agree with me as to how soon the in- terruptions came in : "Fellow-Citizens: It is not for the purpose of making a speech that I now appear beforu you. I am awaro of the great curiosity which prevails to sec strangers who have notoriety and distinction in the country. I know a large number of you desire to see General Grant, and to hear what he has to say. [A 7tico: Three chcors for Grant.']" Was not that the first interruption ? . Answer. That was the first interruption. Question. " Butyou cannot see him to-night. He is extremely ill." Now, then, was there any interruption after that until he spoke of Stephen A. Douglas, and was not that simply the intro- duction of applause? ,1, Answer. There were three cheers, I believe, given for Stephen A. Douglas at that time. Question. Then he went on without interrup- tion, did he not, until these words came in : " I come before you as an American citizen simply, and not as the Chief Magistrate clothed in the insignia and paraphernalia of State; being an inhabitant of a State of this Union. I know it has been said that I was an alien." Was not that the next interruption ? Answer. I do not remember that paragraph in the speech. Question. You do not remember whether that was there or not. Now, sir, do you re- member any other interruption until he came to the paragraph : "'There was, two years ago, a ticket before you for the Presidency. I was placed upon that ticket with a distinguished citizen, now no more." Then did not the voices come in, " Unfor- tunate 1" "Too bad!"? Answer. I did not hear them. Question. Do you know whether they were or were not said ? Answer. I do not. Mr. Manager BUTLER. I will not trouble you any further. Barton Able sworn and examined. ' By Mr. Cdrtis : Question. State your full name. Answer. Barton Able. Question. Where do you reside? Answer. In St. Louis. Question. What is your occupation? . Answer. I am engaged in the mercantile business, and collector of internal revenue for the first district of Missouri. Question. Were you at St. Louis in the sum- mer of 1806, at the time when President John- son visited that city? Answer. Yes, sir. Question. Were you upon any committee connected with the reception of the Presi- dent? Answer. I was upon the committee of re- ception from the Merchants' Union Exchange. Question. Where did the reception take place ? ■ Answer. The citizens of St. Louis met the' President and party at Alton, in Illinois, some twenty-four miles above St. Louis. My recol- lection is that the mayor of the city received him at the Lindell Hotel, in St. Louis. Question. You speak of being on a com- mittee of some mercantile association. What was that association ? Answer. The merchants and business men of the city had an exchange fordoing business, where they met daily. Question. Not a political association ? Answer. No, sir. Question. Did the President make a public address or an address to the people in St. Louis while he was there? Answer. He made a speech in the evening at the Southern Hotel to the citizens. Question. Were you present at the hotel before the speech was made? Answer. Yes, sir. Question. As one of the committee you have spoken of? Answer. Yes, sir. Question. Please to state under what cir- cumstances the President was called upon to speak? Answer. I was in one of the parlors of the hotel with the committee and the President, when some of the citizens came in and asked him to go out and respond to a call from the citizens to speak. He declined, or rather said that he did not care to make any speech. The same thing was repeated two or three times by other citizens coming in, and he finally said that he was in the hands of his friends, or of the committee, and if they said so he would go out and respond to the call, which he did do. Question. What did the committee say? Did they say anything? Answer. A portion of the committee, two or three of them, said after some consultation that they presumed he might as well do it. There was a large crowd of citizens on the out- side in front of the hotel. Question. Did the President say anything before he went out as to whether he went out to make a long speech or a short speech, or anything to characterizing the speech he in- tended to make? Answer. My understanding of it was that he did not care to make a speech at all. Mr. CURTIS. That you have already ex- plained. Mr. Manager BUTLER. Mr. Able, please not give your opinion, but give facts. By Mr. Cuktis : Question. You have already explained that he manifested reluctance, and how he mani- fested it. Now, I want to know if he said any- thing as to his purpose in going out? If so, I should like to have you state it, if you re- member. Answer. I understood from his acceptance that, his intention was to make a short speech when he went out; Question. Did you or not hear what he said, or were you in a position so that you could hear what he said ? Answer. I heard his conversation with the committee? Question. I do not mean that ; I mean after he went out and began to speak? Answer. Very little of it. Question. Was it a large crowd or a small one? Answer. A large crowd. Question. Were you present far enough to be able to state what the demeanor of the crowd was toward the President? Answer. I heard from the inside — I was not on the balcony of the hotel at all ; but I heard from the parlor one or two interrup- tions. I do not recollect but one of them. Question. You remained in the parlor all the time, I understand you ? Answer. Between the parlor and the din- ing room, where the' banquet was spread. Question. You were not on the balcony ? Answer. No, sir. Cross examined by Mr. Manager Butler : Question. You met the President at Alton, and you, yourself, as one of this committee, made him an address on board the steamer where he was received, did you not? Answer. I introduced him to the committee of reception from St. Louis. Question. The committee of reception from St. Louis met him, then, on board the steamer? Answer. On board the steamer. Question. And you introduced him with a little speech? Answer. Yes, sir. Question. Then Captain Eads, who was the chairman of the citizens or the spokesman of the citizens, made him an address, did he? Answer. Yes, sir. Question. An address of welcome, and to that the President made a response, did he? Answer. Yes, sir. Question. And in that address he was lis- tened to with propriety by them, as became his place and the ceremony ? Answer. I observed nothing to the contrary. Question. You so supposed. Then you went to the Lindell Hotel ? Answer. I did not go to the Lindell Hotel at the time. Question. The President, went, did he not? Answer. Yes, sir; the President was enter- tained at the Lindell Hotel. Question. And en route to the Lindell Hotel he was escorted by a procession, was he not, of the military and civic societies? Answer. From the landing ; yes, sir. Question. A procession of the benevolent societies? Answer. I do not recollect what societies they were. There was a very large turn-out; perhaps most of the societies of the city were present. Question. Were you at the Lindell Hotel at all? Answer. Yes, sir. Question. When he got there he was received by the mayor, was he not? Answer. I was not there when he arrived at the Lindell Hotel. Question. Were you there when he was re- ceived by the mayor? Answer. No, sir. Question. You do not know whether the mayor made him a speech of welcome or not there? Answer. Only from what I saw in the press. Question. Nor do you know whether the President responded there? Answer. I was not present. Question. What time in the day was this when he got to the Lindell Hotel, as near as you can say? Answer. It was in the afternoon when they left the steamboat landing. I do not know what time they were at the hotel, because I was not present on their arrival. Question. Can you not tell about what time they got there? Answer. Well, it was probably between one and five o'clock. Question. After that did you go with the President from the Lindell Hotel to the South- ern Hotel? Answer. I do not recollect whether I accom- panied him from the one hotel to the other or not. Question. He did go from the one to the other ? Answer. Yes, sir. Question. There was to be a banquet for him and his suite at the Southern Hotel that night, was there not? Answer. Yes, sir. Question. At which there was intended t-jbe speaking to him and by him, I suppose? Answer. There were to be toasts and re- sponses ; yes, sir. Question. And what time was that banquet to come off? Answer. I do not recollect the exact hour ; I think somewhere about nine o'clock. Question. At the time the President was called upon by the crowd were you waiting for the banquet? Answer. When the President was called upon by the crowd I do not think the banquet was ready. He was in the parlors with the committee of citizens. Question. The citizens being introduced to him, I suppose? Answer. Yes, sir. Question. He then went out on to the bal- cony. Did you hear any portion of the speech ? Answer. Only such portions of it as (could catch from the inside occasionally. I did not go on to the balcony at all. Question. Could you see on to the balcony where he stood from where you were? Answer. I could see on to the balcony, but I do not know whether I could see precisely where he stood or not. Question. While he was making that speech and when he came to the sentence, "i will neither be bullied by my enemies nor over- awed by my friends," was there anybody on, the balcony trying to get him back// 212 SUPPLEMENT TO Answer. I eould hardly answer that ques- tion. I was not there to see. Question. You said you eould see on to the balcony, but you were not certain that you could see him. You might have seen such an occurrence as that. Answer. I did not. Question. You did not see. Can you tell whether it was so or not from your own knowl- edge ? Answer. I should think if I could not see it I could riot tell. Question. I 'only wanted to make certain Upon that point. Answer. Well, sir, I am positive on that point. Question. You have no knowledge on the subject. Who was on the balcony beside him ? Answer. I suppose the balcony will hold perhaps two hundred people. There was a good many people on there ; 1 could not tell how many. Question. Give me some one of the two hun- dred, if you know anybody who was there ? Answer. I think Mr. Howe was there. My recollection is that the President walked out with Mr. Howe. Question. Was General Frank Blair there at any time? Answer. I have no recollection of it if he was. Question. Did the President afterward make a speech at the banquet? Answer. A short one. Question. Was the crowd a noisy and boister- ous one after awhile? Answer. I heard a good deal of noise from the crowd from where I stood — I stood inside — or where I was moving about, for I was not standing still a great portion of the time. George Knapp sworn and examined. By Mr. Curtis : Question. What is your full name ? Answer. George Knapp. Question. Where do you reside ? Answer. St. Louis. Question. What is your business ? Answer. I am one of the publishers and proprietors of the Missouri Republican. Question. Were you in St. Louis at the time the President visited that city in the summer of 1866? Answer. I was. Question. Were you present at the Southern Hotel before Mr. Johnson went out to make a speech to the people ? Answer. I was. Question. Were you in the room where the President was ? Answer. I was. Question. Please state what occurred be- tween the President and citizens, or the com- mittee of citizens, in respect to his going out to make a speech ? Answer. The crowd on the outside had called repeatedly for the President, and some con- versation ensued between those present. I think I recollect Captain Able and Captain Taylor and myself at any rate were together. The crowd continued to call. Probably some one suggested, I think I suggested, that he ought to go out. Some further conversation occurred, I think, between him and Captain Able Question. The gentleman who has just left the stand? Answer. Yes, sir; Captain Barton Able, and I think I said to him that he ought to go out and show himself to the people and say a few words at any rate. He seemed reluctant to go out, and we walked out together. He walked out on the balcony, and we walked out with him, and he commenced addressing the assembled multitude as it seemed. Question. What was the character of the crowd ? Was it a large crowd, a large number of people ? Answer. I do not think I looked at the crowd. I do not think I got far enough on the balcony to look on the magnitude of the crowd. I think I' stood back some distance. Question. About what number of people were on the- balcony itself? Answer. I suppose there were probably fif- teen or twenty ; there may have been twenty- five. Question. Could you hear the cries from the crowd ? Answer. I could not. Question. What was the character of the proceedings so far as the crowd was concerned? Answer. Well, I do not recollect distinctly. My impressions are that occasional or repeated questions were apparently put to the President, but I do not now exactly recollect what they were. Question. Was the crowd orderly or other- wise, so far as you could hear? Answer. At times it seemed to be somewhat disorderly ; but of that I am not very sure. Cross-examined by Mr. Manager Butler: Question. Did you go on to the balcony at all? Answer. Yes, sir ; I stepped out. It is » wide balcony ; it is probably twelve or fifteen feet ; it covers the whole of the side wall. I stepped out. I think I was probably only two or three feet back of the President part of the time while he was speaking. Then there are a number of doors or windows leading out to this balcony. You could stand in these win- dows or doors and hear every word that was said. Question. Did you listen to the speech so as to hear every word that was said? Answer. I am not sure that I stayed during the whole time. I listened pretty attentively to the speech while I stood there, but whether I stood there during the whole time or not I do not now recollect. Question. You told us there were from fif- teen to twenty persons, if I understood you aright, on the balcony? Answer. That is my impression. I am not certain about that, because I did not pay any attention to the number. Question. Ho w many would the balcony hold ? Answer. I suppose the balcony would hold one hundred. Question. Then it was not at all crowded on the balcony ? Answer. I do not recollect. I say about that whether it was or not. I did not charge my mind with it, nor do I now recollect. Thepar- lors were full. There was a crowd there wait- ing to go into the banquet, and I think it is very likely that a large number of them crowded on the balcony to hear the speech. Whether it was crowded or not I do not recollect. Question. Who were present at the time so as to remember distinctly when he said he would not be overawed by his friends or bullied by his enemies. Do you remember that phrase? Answer. I do not recollect it. Question. This confusion in the crowd some- times prevented his going on, did it not? Answer. I think it likely ; but in that I must only draw from my present impression. I do not recollect. Question. Did you hear him say anything about "Judas," do you remember? Answer. No, sir; I do not recollect. Question. You do not recollect that about Judas? Did you hear him say anything about John Bull, and about attending to him after a while? Answer. I have no recollection as to the points of the speech. Question. Then, so far as you know, all you know that would be of advantage to us here is that you were present when some of the citi- zens asked the President to go out and answer the calls of the crowd? Answer. Yes ; some citizens then present in the parlor asked him. Question. While the banquet was waiting? At what time was the banquet to take place? Answer. I think it was to take place at eight o'clock. Question: What time had this got to be? Answer. I do not recollect that. ' Question. Was it not very near eight o'clock at that time? Answer. I think when the President went out it was near the time the banquet was to take place, and I think, also, I know, in fact, that while the President was speaking several persons, in speaking about it, said it was time for the banquet to commence, or something to that effect. Question. The banquet had to wait for him while the crowd outside got the speech? Answer. I do not know tha*. Question. Was not that your impression at the time? Answer. I think the hour, probably, had passed; but in attending banquets if often happens that they do not take place exactly at the nour fixed. Question. It appears that this did not; but was that because they waited for the Presi* dent or because the banquet was not ready? Answer. I think it was because they waited for the President. Question. Did you publish that speech thfc next morning in your paper? Answer. Yes, sir ; it was published. Question. Did you again republish it on Monday morning? Answer. Yes, sir. Question. While your paper is called the Republican it is really the Democrat, and the Democrat is the Republican? Answer. The Republican was commenced in early times, for I have been connected with it over forty years myself, and at the time Mr. Manager BUTLER. I do not care to go back forty years at this time. The Witness. You asked why it was called • By Mr. Manager Butler : Question. Not why, but as to the fact. Was it in fact the Democratic paper at that time when the President was there ? Answer. Yes, sir. Question. And the St. Louis Democrat, bo called, was really the Republican paper ? Answer. Yes, sir. Question. Now, in the Democratic paper, called by the name of Republican, the speech was published on Sunday and on Monday ? Answer. Yes, sir. Question. Has it never been republished since ? Answer. No, sir ; not to my knowledge. Question. State whether you caused an edition of the speech to be corrected for Mon- day morning's publication? Answer. I met our principal reporter, Mr. Zider Question. Please do not state what took place between you and your reporter ; it is only the fact 1 want, not the conversation. Did you cause it to be done? Answer. I gave directions to Mr. Zider after complaining about the report of the speech Question. Excuse me ; I have not asked you about your directions ? Answer. I did. I gave directions on read- ing the speech Question. Please answer the question? Answer. Well, I gave directions to have it corrected, if that is your question. Question. Were your directions followed so far as you know? Answer. I do not recollect the extent of the corrections. I never read the speech after- ward, and I have forgotten. Question. Did you ever complain afterward to any man, Mr. Zider or any other, that the speech was not as it ought to be as it was pub- lished on Monday morning in the Republican? Answer. I cannot draw the distinction be- tween Monday and Sunday, I have repeatedly spoken of the imperfect manner in which I conceived the speech was reported and pub- lished in the Republican on Sunday. Whether I spoke of its imperfections for Monday or not I do not recollect. THE CONGRESSIONAL GLOBE. 213 Question. Will you not let me call your attention, Mr. Witness? You say that you directed a revised publication on Monday, and it was so published. Now, did you ever com- plain after, that revised publication was made to anybody that that publication was not a true one within the next three months follow- ing? Answer. It is possible I might have com- plained on Monday morning, if the corrections were not made, but I do not recollect. Question. Excuse me ; I did not ask for a possibility? Answer. I tell you I do not recollect. Question. But it is possible you did not? Answer. That I say again I cannot recollect. Question. Now, sir, will you say that in any important particular the speech as published in your paper differs from the speech as put in evidence here? Answer. I could not point out a solitary case, because I have not read the speech as put in evidence here, nor have I read the speech since the morning after it was deliv- ered ; so I know nothing about what you have put in evidence here. Henry F. Zider sworn and examined. By Mr. Curtis ■: Question. Where did you reside in the sum- mer of 1866 when the President visited St. Louis ? Answer. At St. Louis, Missouri. Question. What was then your business? Answer. I was then engaged as short-hand •writer and reporter for the Missouri Repub- lican, a paperpublished at St. Louis. Question. Had you anything to do with mak- ing a report of the speech of the President delivered from the balcony of the Southern Hotel? Answer. I made a short-hand report of the speech. I was authorized to employ all the assistance that I needed, for it was known that the President was to be received at St. Louis. I employed Mr. Walbridge and Mr. Allen to assist me. Mr. Walbridge wrote out the report for publication in the Sunday morning Repub- lican. I went over the same report on Sunday afternoon and made several alterations in it for the Monday morning paper. Question. The Monday morningRepublican? Answer. Yes, sir. I made the corrections from my own notes. Question. Did you make any corrections ex- cept those which you found were required by your own notes? Answer. There were three or four corrections that the printers did not make that I had marked on the proof sheets that I made on the paper the following morning in the count- ing room. Question. With those exceptions, did you make any corrections except what were called for by your own notes? Answer. Those were called for by my own notes. Question. But they were not in fact made? Answer. They were not in fact made in the printed copy on Monday. Question. Now, answer my question whether the corrections ■ were called for by your own notes? Answer. Oh, yes; all of them. Question. Have you compared the report whiqhyou made, and which was published in the Republican on Monday, with the report published in the St. Louis Democrat? Answer. I have more particularly compared the report published in the Monday Democrat with the Sunday Republican. /Question. You compared those two ? Answer. Yes, sir. There are about -sixty changes. .Mr. JOHNSON. Differences? The Witness. Yes, sir. By Mr. Cuktis : Question. Describe the character of those differences? '- Mr. Manager BUTLER. " State the differ- ences." I object to that. Mr. CURTIS. Do you want him to repeat the sixty differences ? Mr. Manager BUTLER. Certainly ; if he can. By Mr. Curtis : Question. Have you a memorandum of those differences ? Answer. I have. Question. Read it, if you please? Mr. Manager BUTLER. Before he reads it I should like to know when it was made. By Mr. Curtis : Question. When did you make this com- parison ? The Witness. The exact date? Mr. CURTIS. If you can give it to us. Answer, (after consulting a memorandum- book.) Saturday, April 11. Question. When did you make the memo- ran du«m? Answer. On the Sunday following. By Mr. Manager Butler : Question. Last Sunday ? Answer. Yes, Bir. Question. This month? Answer. Yes, sir. By Mr. Curtis : Question. From what did you make the memorandum ? Answer. I had been here before the board of managers twenty-four days, and was dis- charged and had just returned to St. Louis. I got telegraphic dispatches stating that I was summoned again toappeaf before the Senate. I then went to the Republican office, took the bound files of the Republican and the bound files of the Democrat for the latter part of 1866, and in company with Mr. James 'Monaghan, one of the assistant editors, I made a com- parison of the two papers, noted the differences, compared those differences twice afterward to see that they were accurate. That was on Sat- urday. I started for Washington on Sunday afternoon at three o'clock, the first through train. Question. When was this paper that yon call the memorandum, which contains these differ- ences, made ? Answer. On Saturday. Question. Was it made at the same time when you made this comparison or at a differ- ent time ? Answer. The same day. Mr. CURTIS. Now, you can tell us the nature of the differences ; or, if the hotiorable Manager desires that all those differences should be read, you can read them. Mr. Manager BUTLER. Stay a moment. Any on which you rely we should like to have read. Mr. CURTIS. We rely on all of them, more or less. Mr. Manager BUTLER. Then all of them, more or less, we want read. Mr. CURTIS. We should prefer to save time by giving specimens ; but then, if you prefer to have them all read, we will have them read. _ Mr. Manager BUTLER. There is a ques- tion back of this, I think, and that is, that we have not the standard of comparison. Surely, then, this cannot be evidence. This witness goes to the Republican office and there takes a paper — he cannot tell whether it was the true one or not, whether made properly or not, or what edition it was — and he compares it with a copy of the Democrat, and having made that comparison he now proposes to put in the re- sults of it. I do not see how that can be evi- dence. He may state anything that he has a recollection of; but to make tjhe memorandum evidence, to read the memorandum, never was such a thing heard of, I think. Let me restate it and I have done. He goes to the Republican office, gets a Republican ; what Republican, how genuine, what edition it was, is not identified ; he says it was in a bound volume. He takes the Democrat, of what edition we do not know, and compares that, and then comes here and attempts to put in the re'sults of a comparison made in which Monaghan held one end of the matter and he held the other. Now, can that be evidence? Mr. CURTIS. I want to ask the witness a question, and then I will make an observation on the objection. [To the witness.] Who made the report in the Republican which you examined — the one which you examined and compared with the report in the Democrat; who made that report? Answer. Mr. Walbridge made that report on Saturday night, September 8, 1866. It was published in the Sunday morning Republican of September 9, 1866. By Mr. Curtis : Question. Have you looked at the proceed- ings in this case to see whether that has been put in evidence? Answer. The Sunday morning Republican was mentioned in Mr. Walbridge' s testimony, in which ho states that ho made one or two simple corrections for the Monday morning Democrat. Question. Now, I wish to inquire, Mr. Zider, whether the report which yon saw in the files of the Republican and which you compared with the report in the Democrat was the report which Mr. Walbridge made? Answer. Undoubtedly it was. Mr. CURTIS. Now, Mr. Chief Justice, it is suggested by the learned Manager Mr. Manager BUTLER. I will save you all trouble. You may put it in as much as you choose. I do not care, on reflection, if you leave it unread. It is of no consequence. Mr. CURTIS. We will simply put it into the case to save time and have it printed. Mr. Manager BUTLER. I think there should not be anything printed that is not read. We have got a very severe lesson upon that. Mr. CURTIS. We understood you to dis- pense with the reading. The CHIEF JUSTICE. If the honorable Manager desires to have the paper read it will be read. Mr. Manager BUTLER. I do not desire it to be read. Mr. EVARTS. Is it to go in as evidence, Mr. Chief Justice, or not. The CHIEF JUSTICE. Certainly. Mr. Manager BUTLER. It may go in for aught I care. Mr. CURTIS. That is all, Mr. Zider. The paper thus admitted in evidence, con- taining a memorandum of the differences be- tween the two reports of President Johnson's speech at St. Louis, is as follows : Sunday Republican, Sept. 9, 1866. I am Questions ■which that we have as this we, have that they 'then knew its power having expired of a population without the- will of tho people • a Then when it does not provoke me things that have been done that were in tended to be enforced upon abandoned the party that I w'as a traitor Judas Iscariot /\ a traitoT Judas Iscariot 1 .Judas I the twelvcapostles he never could have and that try tostay when there were there wan a Christ there were unbelievers to day who would A for years bear all the expenses S\ Yes, Yes, A a decided majority What? Stimulating this So far as offences are concerned Upon this subject of and battled more for It has been my peculiar misfortune a to have , tierce opposition (a voice why did'nt you doit) Dejiocbat, Monday.Sept. 10, 1866. I was Questions that a we have as those we have that they there knew its poioers having expired of depopulation without tho consent of the people And then when it don't provoke mo things that has been done that was intended to bo enforced on abandoned the power that I was a t-r-ai-t-o-r Judas — Judas Iscariot a t^r-ui-t-o-r Judaas, Judas Iscariot, Jud-a-a-s and these twelve apostles hoco«tfc('rt(have and a try to stay when there ware there ware a Christ there ware unbelievers to day a would . Now what is the plan ? four years bear ail the expense. So much forthisquestion. Y-a-s, Y-a-s; as decided a majority Wha-t? elevating themselves So far as the Fenians are concerned Upon this subject of . Fenians, and sacrificed more for, It has been my peculiar misfortune always to have. fierce opposition 214 SUPPLEMENT TO Tho law was executed, Tho law was executed to give somebody elso a bounty he can got S5U bounty (Great cheering) are .% entitled to equal representation in the Congress of the Uuitcd States without violating tho Constitution (cheers) Among this people. I have labored for it I a.m for it now. I deny manner pointed out by and sometimes havings. re- pented makes him abetter man than he was before Yes, I have. Yes I have. (Voice " bully for you'V and cheers) on cither side a kind of over-righteous- ness — over righteousness — better than any body else and although wanting He went upon the cross and there waSA nailed by unbelievers^ and there shed \is blood that you and I might live (cheers nor the judges I know there are some that talk And manage all the aflfairsof State The people of Missouri as well as othor States know that all my efforts have all this traduction and de- traction that have let us fight the enemies And in parting with you now /leave the government in your lunds to vote somebody else a bounty. -s can get $50. bounty, (Low.1 cheering) are constitutionally enti- tled to equal suffrage in the Senate and no power has the right to deprive them of it without violating the con- stitution, (cheers) Among the people. I have labored for it. Now I deny, manner pointed^ by andsometimos having sinned and having re- pented makes him a better man than he was before Y-a-s, I have Y-a-s I have Voice (bully for you old fellow and laughter) on the other side a kind of over righteous- ness — better than any body else and always wanting, He went upon the cross & there was painfully nailed by these unbelievers that I have spoken of 'hereto night, and there shed his blood that you and I might live (cheers) nor the juitec (voice nor the Moses.") I know there is some that talk And manage^ the affairs of State, The people of Missouri as well as other States know that ■ my efforts havo all this traduction and detraction that has let us fights enemies And- in parting with you now leaver the Government in your hands, recognized re-cog nized. Cross-examined by Mr. Manager Butleb: Question. How long have yon been troubled with your unfortunate affliction ? Answer. To what do you refer. Question. I understood you were a little deaf. Is that so ? Answer. I have been sick the greater part of this year, and was compelled to come here a month ago almost, before I was able to come. I have not got well yet. Question. Did you hear my question? Answer. Yes. Question. How long have you been deaf, if yon have been deaf at all? Answer. Partially deaf for the last two years, I should think.' Question. About what time did it commence? Answer. I cannot state that. Question. As near as you can. You know when you became deaf, do you not? Ansioer. I know I was not deaf when you made your St. Louis speech in 1S66. Question. That is a very good date to reckon from ; but as these gentlemen do not all know when that was, and you and I do, suppose you try it by the almanac and tell ua when that was? Answer. That was on the 18th of October, 1806. Question. You were not deaf then ? Ansioer. No. Question. How soon after that did you become deaf? Answer. Perhaps a month. [Laughter.] Question. You are quite sure it was not at that time? Ansioer. Quite sure it was not that time, because I heard some remarks the crowd made which you did not. [Laughter.] Question. I have no doubt you heard very much that I did not. Now, suppose we con- fine ourselves to this matter. About a month after that you became deaf? Answer. Partially. Question. Partially deaf, as now. Answer. I recovered from that sickness. I beea,me sick again the first part of this year. Question. Now, will you have the kindness to- state whether you have yqur notes? The Witness. Of the President's speech? Mr. Manager BUTLER. Yes, sir. Answer. 1 have not. Question. AVhen did you see them last ? Answer. The last recollection I have of them is when Mr. Walbridge was summoned before the Reconstruction Committee to give testimony on the New Orleans riot. Question. Did you and he then go over that speech together? Answer. We went over only a part of it. Question. The part that referred to New Orleans? Answer. Yes, sir. Question. But the part that referred to New Orleans you went over with him? Answer. I did. Question. Was there any material difference between you and him when you had your notes together in that part of the speech, and if so, state what ? Answer. There was. Question. What was it ? Answer. He asked me to compare notes with him Question. Excuse me ; I am not-asking what he said. I am asking what difference there was between your report and his report upon that comparison ; what material difference ? Mr. EVARTS. I submit, Mr. Chief Justice, that as he is asked the precise question what the difference was that arose upon that com- parison, he is to be permitted to state what it was and how it arose. Mr. Manager BUTLER. I have not asked any difference that arose between him and Mr. Walbridge. Far be it from me to go into that. I have asked what the difference was between the two speeches. Mr. EVARTS. As it appeared in that com- parison. Mr. Manager BUTLER. As found at that time. The Witness. That is what I was going to answer. If you will possess your soul in patience a moment I will answer. The CHIEF JUSTICE. The witness will confine himself entirely to what is asked and make no remarks. The Witness. When we proceeded to com- pare that part relating to the New Orleans riot Mr. Walbridge read from his notes; I looked on, and when he came to this passage, as near as I can remember: "When you read the speeches that were made, and take up the facts, if they are as stated, you will find that speeches were made incendiary in their character, ex- citing that population called the black popu- lation to take up arms and prepare for the shedding of blood ;" I called Mr. Walbridge's attention to the qualifying words, " if the facts are as stated." He replied to me, '' You are mistaken ; I know I am right," and went on. As he was summoned to swear to his notes, and not to mine, I did not argue the question with him further, but let him go on. By Mr. Manager Butler: Question. What other difference was there? Answer. There was another difference. Question. In the New Orleans matter? Answer. Yes sir. The President's words, I think, were that they there knew a conven- tion was to be called which was extinct by reason of its power having expired. There was a difference in the words " by reason of." Question. What was that difference? Answer. The words "by reason of." Question. Were theyinoroutof Walbridge' s report? Answer. They were in my report. Question. And were not in Walbridge's re- port? Answer. They were not. Question. Any other difference? Answer. No other. That was as far as wo proceeded with the report as to the New Or- leans riot. The latter part of the report wag not compared at all, nor was the first part. Question. Now, have you the report as it appeared in the Republican of Monday morn- ing before you? Answer. I have. Question. Let me read the first few sentences of the report put in evidence, and tell me how many errors there are in that. Have you it? Answer. Yes, sir ; I have it. [The witness produced a new paper.] Question. Now, I will read from the report put in evidence here: "Fellow-citiiens of St. Louis: In being intro- duced to you to-night, it is not for the purpose of making a speech. It is truo I am proud to meet so many of my fellow-citizens here on this occasion, and under the favorable circumstances that I do. [Cry, 'How about British subjects? ] We will at- tend to John Bull after a while, so far as that is con- corned. [Laughter and loud cheers.] I have just stated that I was not here for the purpose of making a speech." The Witness. "Am not here." Mr. Manager BUTLER. The difference is here "I was," and there "I am." Now, do you know that the President used the word "am" instead of "was?" Answer. Of course I do. Question. I will read on : " I was nothere for the purpose of making a speech ; but after being introduced simply to tender my cor- dial thanks for the welcome you have given me in your midst. [A voice: 'Ten thousand welcomes:' hurrahs and cheers.] Thank you, sir. I wish it was in my' power to address you under favorable circum- stances upon some of the questions that agitate and distract tho public mind at this time" . Answer. " Questions which agitate." Question. " Which agitate" instead of" that agitate?" Answer. Yes. Question. And then it goes on : " Questions that have grown out of a fiery ordeal we have just passed through, and which I think as important as those wc have just passed by. The time hascomewhenitseems to me that all ought to be pre- pared for peace — the rebellion being suppressed, and the shedding of blood being stopped, the sacrifice of life being suspended and stayed, it seems that the time has arrived when we should havo peace; when tho bleeding arteries should be tied up. [A voice: ' New Orleans ;' 'Go on/]" It is so far all right except those two cor- rections? Answer. Yes, sir. Question. Now we will try another part? The Witness. Go over the New Orleans part, if you please. I wish to make a correction in that part. Question. Are you dealing with a memo- randum ? Answer. It is the official proceedings. Question. You are comparing yourself with the official proceedings as you go on, where you have noted these corrections? Answer. Yes, sir, in the official proceedings. Question. Then you are going on with a copy of the official proceedings and noting the differences? Answer. Yes ; but I can make the memo- randa without the official proceedings before me. Do you want it? [Offering the printed official report of the trial, with manuscript corrections, to the honorable Manager.] Mr. Manager BUTLER. No ; I do not care for it. You told me that you wished I should go on with the New Orleans part. Why do you wish anything about it? The Witxess. You were proceeding to make corrections, and when you came to the New Orleans part you stopped. By Mr. Manager Butler : Question. Well, I will take this portion of The Witness. Any portion. Question. "Judaas, Judas Iscariot. Ju- daas?" Answer. One Judas too many there. [Laugh- ter.] Question. "There was a Judas once." You are sure he did not speak Judas four times, are you ? THE CONGRESSIONAL GLOBE. 215 Answer. Yes, sir. Question. How many times did he speak it? Answer. Please read it again. Question. I asked how many times did he Bpeak Judas? Answer. Three times. Question. Well, I believe we have got " Ju- daas, Judas Iscariot, Judaas." That is only three times. Why did you say one too many ? Answer. You have it four times there. Question. I beg your pardon. I have only said it three times. "Judaas, Judas Iscariot, Judaas." The Witness. Are not those words itali- cizcd there ? Mr. Manager BUTLER. Yes, sir. The Witness. Are they not stretched out to make it appear ridiculous? Mr. Manager BUTLER. I really think two of the Judases are spelt with the pronunciation — "J-u-d-a-a-s." The Witness. Yes, and italicized. Question. Do you mean to say that the Presi- dent did not speak those words with emphasis? Answer. I mean to say that he did not speak them in that way. Question. I read : " There was a Judas once, one of the twelve apostles. Oh 1 yes, and these twelve apostles had a Christ. [A voice, 'And a Moses, too.' Great laughter.] The twelve apostles had a Christ, and he could not have had a Judas unless he had had twelve apostles." See if I am right. Answer. The word "yes" should not be stretched out with dashes between each letter, as there. Mr. Manager BUTLER. The "yes " is not here stretched out. Is there any other ques- tion you would like to ask me, sir? [Laughter.] The Witness. All I wish is that you shall read it as it is there. Mr. Manager BUTLER. Now, sir, will you attend to your business and see what differences there are as I read ? " If I have played the Judas, who has been soy Christ that I have played the Judas with? Was it Thad. Stevens? Was it Wendell Phillips? Was it Charles Sumner? [Hissesandcheers.] Arc these the men that set up and compare themselves with the Saviour of men, and everybody that differs with them in opinion, and try to stay & arrest their diabolical and nefarious policy, is to be denounced as a Judas." Answer. "And that try." Question. " Differ with them in opinion, and that try to stay and arrest their diaboli- cal and nefarious policy is to be denounced as a Judas. [ ' Hurrah for Andy and cheers. ' " ] Am I right so far, sir ? Answer. I think so. Question. Is that a fair specimen of the sixty corrections? Answer. There are four in the next three lines. Question. Is that a fair specimen of the sixty corrections. Answer the question? Mr. EVARTS. Mr. Chief Justice, I sup- Eose the corrections, the whole of which we ave put in evidence, will show for themselves. Mr. Manager BUTLER. I am cross-exam- ining the witness. Mr! EVARTS. It has nothing to do with the matter of evidence. Mr. Manager BUTLER. I am asking a question of the witness on cross-examination, and I prefer that he should not be instructed. Mr. EVARTS. No instruction. We thought we should save time by putting in the memo- randum ; but it seems that the cross-examina- tion is to go over every item. We insist that it be. confined to questions that are proper. Whether this is a fair specimen or not, com- pared with the whole paper, will appear by the comparison the court make between the two pieces of evidence. Mr. Manager BUTLER. lam testing the credibility of this witness, and I do not care to have him instructed. The CHIEF JUSTICE. If the question is objected to, the honorable Manager will please put it in writing. Mr. Manager BUTLER. I will put it in writing if the Chief Justice desires. Mr. EVARTS. It. is no question of credi- bility ; it is a mere question of judgment asked of him between two papers, whether one is a fair specimen of the other. Mr. Manager BUTLER. I will put the question in writing if the Chief Justice desires. The question is this : whether all the correc- tions which you have indicated in answer to my questions are of the same average character with the other corrections of the sixty? The Witness. There are two or three cor- rections in that which you have read. The CHIEF JUSTICE. Is the question objected to ? Mr. EVARTS. We object to the question. It requires a reexamination of the whole sub- ject. The CHIEF JUSTICE. The question will be put in writing, objection being made. Mr. Manager BUTLER. I will pass from that rather than take time, because I shall be accused of having taken up too much time. [To the witness. ] Mr. Witness, you have told us that in the next few lines there were cor- rections, I think four in the next three lines. Now I will read the succeeding lines : " In the days when there ware twelve apostles and when there ware a Christ, while there ware Judases, there ware unbelievers, too. Y-a-s; while there were Judases, there ware unbelievers. [Voices: ' Hear," ' Three groans for Fletcher.'] Yes, oh yes ! unbelievers in Christ." The Witness. Do you wish me to make corrections there? Mr. Manager BUTLER. I want you to stop me when there is anything wrong. The Witness. "In the days when there ware ;" were is right. Mr. Manager BUTLER. It reads in mine "ware," and in yours it reads "wereV Answer. Yes ; and then in the next line there is a " ware " again. Itshouldbe "were." Question. What is the next? Answer. There is another "ware." Question. That is, it should be "were" instead of" ware V Answer. Yes, sir. Question. Those are the three corrections you want to make there? Are those the only corrections there? Answer. Then there is one before ' ' unbe- lievers." Question. What is it? Answer. " Were" for "ware." Question. Are those all? The Witness. Does it read in yours " Voices, 1 Hear I' 'Three groans for Fletcher?' " Mr. Manager BUTLER. Yes, sir. It is all right, is it not? What is the trouble with that? The Witness. There are four "wares" there, are there not? Mr. Manager BUTLER. What do you mean by "wares?" We have corrected the "e" for the "a;" that is the whole change. The Witness. Yours reads "there ware a Christ;" the "ware" should be "was." Question. Then all your corrections are of pronunciation and grammar, are they not? Answer. The President did not use those words. Question. Do you say that the President does not pronounce "were" broadly, as is some- times the southern fashion ? Answer. I say that he did not use it as used in that paper. Question. Did he not speak broadly the word "were" when he used it? Answer. Not so that it could be distinguished for "ware." Question. Then it is a matter of how you would spell pronunciation that you want to correct, is it? Answer. The tone of voice cannot be repre- sented in print. Question. And still you think "were" best represents his tone of voice, do you? Answer. I think it did. Question. Although it cannot be represented in print. Now, sir, with the exception of these corrections in pronunciation and grammar, is there any correction as the speech was printed in the Democrat on Monday from that which was printed in the Republican? Answer. Of what date ? Question. The Republican of Sunday. Answer. Yes, sir. Question. Or of Monday? With the excep- tion of corrections of grammar and pronuncia- tion, is there any correction of substance be- tween the two reports as printed that morning? Answer. Specify which papers you want compared, the Sunday Republican and Mon- day Democrat, or the Monday Republican and Monday Democrat? Question. The Monday Republican and Mon- day Democrat. Answer. Yes, sir. Question. What are they as printed? Answer. One is " Let the Government be restored. I have labored for it. I am for it now. I deny this doctrine of secession, come from what quarter it may." Question. What is the change as printed? Answer. "Let the Government be restored. I have labored for it." So far it is the same in both papers ; and then the words " I am for it now" are omitted in the Democrat, and the punctuation is changed so as to begin the next sentence "Now, I deny this doctrine of seces- sion," and then words are omitted and the punctuation changed. Question. There are four words omitted, "I am for it," before now. What else? Answer. Speaking of the neutrality law he said, " I am sworn to support the Constitution, and to execute the law." Some one halloed out " Why didn't you do it.?' ' and he answered, "The law was executed; the law was exe- cuted." Those words " Whydidn'tyoudoit" and " The law was executed ; the law was exe- cuted," are omitted in the Democrat. Question. What else of substance ? Answer. I do not know that I can point out any others without the memorandum. Question. Use the memorandum to point out substance, not grammar, not punctuation, not pronunciation. Answer, (referring to the memorandum.) One expression he used was, "Allow me to ask if there is a man here to-night who in the dark days of Know-Nothingism stood and bat- tled more for their rights" Question. What is the word left out or put in there ? Answer. The word "sacrificed" is used in the Democrat, and the word " battled" is the one that was employed. Mr. Manager BUTLER. I will not trouble you further, sir. The Witness. Oh, I can point out more. Mr. Manager BUTLER. That is all, sir. Mr. CURTIS. We now desire, Mr. Chief Justice, to put in evidence a document certi- fied from the Department of State. [The document was handed to the Managers. ] The CHIEF JUSTICE. The counsel will state the object of this evidence. Mr. CURTIS. It is the commission issued by President Adams to General Washington, constituting him Lieutenant General of the Army of the United States. The purpose is to show the form in which commissions were issued at that date to high military officers, and we have selected the most conspicuous instance in our history as regards the person, the office, and the occasion. Mr. Manager BUTLER. There were two commissions issued to General Washington, two appointments made. Was this the one he accepted, or the one he rejected ; do you remember? Mr. EVARTS. We understood it to be the one actually issued, and received by him. Mr. Manager BUTLER. And accepted by him? Mr. EVARTS. We suppose so. Mr. CURTIS. We understand so. Mr. E VARTS. We desire to have the com- mission read. Mr. Manager BUTLER. I see no objection to it. I thought perhaps you could tell me what I inquired about. Mr. EVARTS. Will the Clerk be good enough to read it ? 216 SUPPLEMENT TO The CHIEF JUSTICE. The Secretary will read the paper. _ The Chief Clerk read the following commis- sion, which is accompanied by a certificate from the Secretary of State, that it is a care- fully compared and exact copy of the original on tile in his Department : John Adams, President^ the United States of America: To all iqho shall see these presents, greeting : Know ye, thiit reposing special trust and confi- dence in the patriotism, valor, fidelity, and abilities 01 George Washington, I have nominated, and by and with the advice and consent of the Senate do appoint, him Lieutenant General and Commander- in-Chief of all tho armies raised or to bo raised lor tho service of the United States. Hoisthereforecare- fully and diligently to disehargethe duty of Lieuten- ant General and Commander-in-Chief by doing and performing allmanner of things thereunto belonging. And I do strictly chargo and, require all officers and soldiers under his command, to bo obedient to his orders as. Lieutenant General and Commander-in- Chief. And he is to observe and follow such orders and directions from time to time as ho shall receive from mo or the future Presidentof the United States of America. This commission to continue in forco during the pleasure of the President of the United States for the time being. Given under my hand at Philadelphia, this 4th day of July, in tho year of our Lord 1T98, [l. s.] and in the twenty-third year of the inde- pendence of the United States. JOHN" ADAMS. By command of the President of tho United States of America: JAMES MeHENRY, Secretary of War. Mr. CURTIS. I now desire, _ Mr. Chief Justice, to put-in a document from the Depart- ment of the Interior, showing the removals of superintendents of. Indian affairs, and of In- dian agents, of land officers, receivers of pub- lic moneys, surveyors general, and certain mis- cellaneous officers who are not brought under any one of those classes. The document which I hold shows the date of the removal, the name of the officer, the office he held, and also contains a memorandum whether the removijj was during the recess of the Senate or in the session of the Senate. Mr. Manager BUTLER. I have but one objection to this species of evidence without anybody brought here to testify to it, and that is this : I have learned that in the case of the Treasury Department, which I allowed to come iu without objection, there were other cases not reported where the power was re- fused to be exercised. I do not know whether it is so inthe Interior Department or not. But most of these eases, upon our examination, appear to be simply under the law fixing their tenure during the pleasure of the President for the time being, and some of them .are inferior officers originally made appointable by the heads of Departments. If the presiding officer thinks they have any bearing we have no objec- tion. Mr. CURTIS. I understand the matter of the application of the law to these offices some- what differently from that which is stated by the honorable Manager. I have not had an. opportunity minutely to examine these lists, for they were onlyianded to me this morning; but I understand that a very large number of these officers held for a fixed tenure of four years. That, however, must be a matter of argument hereafter. Mr. Manager BUTLER. "What class of offi- cers do you Bpeak of? Mr. CURTIS. Receivers pf public moneys is one of the classes. Mr. JOHNSON. What is the date of tho first removal and of the last? Mr. CURTIS. These tables, I think, ex- tend through the whole period of the existence of that Department. I do not remember tha date when the Department was established, tut I think they run through the whole history of the Department. The CHIEF JUSTICE. No objection is made to the reception of this document in evi- dence. The document is as follows : Department of the Istebior, Washington, D. C, April 17, 1868. I, Orvillo H. Browning, Secretary of the Interior, do hereby certify that the annexed thirteen sheets con- tain full, true, complete, and perfect! ranscripts from the records of this Department, so far as the same relate to the removals from office ofthc persons therein named. In testimony whereof, I have hereunto subscribed my name and caused the seal of tho Depart- [l. s.] ment to be affixed the day and year above written. O.H.BROWNING, , Secretary of tha Interior. Removals of Superintendents of Indian Affairs and of Indian Agents. Date. March 13, 1849 June 9, 1865 April 18. 1853 March 13, 1857 March 27, 1861 October 29, I860 April 8, 1853 March 3, 1855 March 17, 1857 April 1, 1861 March 16, 1863 March 3, 1865 March 17, 1866 August 9, 1866 March 31, 1854 April 16, 1861 August 10, 1863 March 22, 1865 March 17, 1853 June— ,1856 March 22, 1859 June 30, 1861 March 28, 1863 July 16, 1861 March 6, 1862 March 30, 1864. September, 25, 1866, April 18. 1853.... March 25, 1861 April 15, 1867 May 27, 1861 September 7, 1865.. April 29, 1861 March 16, 1862 August 13, 1850 September 11, 1857, March 23,1861 September 20, 1864, January 4,1866 April 27, 1859 April 18, 1861..: Juno 3, 1858 May 7,1864 March 16, 1865 March 27, 1861 April IS, 1864 Juno 3, 1858 ...... March 13, 1859 April 3, 1858 April 15, 1861 October— ,1850 April 14, 1862 August 3, 1866 May 29, 1849 April 5, 1861 March 6, 1862 September 25, 1866. April 18, 1853 July 31, 3861 August 22, 1866 March 16, 1865 July 6, 1858 July 26, 1860 April 19, 1861 March 6, 1862 April 5, 1849 April 18, 1853 April 5, 1801 April 16, 1861 Name. Thomas P. Harvey W. 11. Albin Elias Murray Francis Iluebschman.. W.J.Cullen B. B. Taylor John Dresman Thomas S. Drew.' C.W.Dean Elias Rector J. L. Collins Michael Stock Filipe Delgado G. W. Loihy.... E. F. Beale A. D. Rigbtmirc G. M. Hanson Austin Wiley Anson Dart Joel Palmer J.W.Nesmith E. R.Geary W.H. Rector W.W.Miller B. P. Kendall C. II. Hale W. H. Waterman W. P. Richardson Daniel Vandersliee R. W.Turnas C.H.Mix St. A. D. Balcoinbe James L.Gillis II. W.DePuy R. G. Murphy Charles P.. Flanders.... Joseph R. Brown W.W.Ross William Daily R.C.Miller M.C.Dickey Royal Baldwin C. D. Keith Abram Bennett Thomas B. Sykcs Fielding Johnson A. Arnold Francis Tymony Max. McCaus'Hn SethClovor P. Fitzpatriek J. A. Cady Vital Jarot R. C.S.Brown R.J. Cowart Jonn Crawford Justin Ilarland William Wilson D. II. Cooper.. Isaac Colnian P. P. Elder • A. H. McKissaek Samuel A. Blain Matthew Leeper J. J. Humphreys James Logan P.H.Raiford W. II. Garrett William Quesonbury.... Office. Superintendent at Saint Louis, Missouri Central superintendency North superintendency North superintendency North superintendency North superintendency South superintendency South superintendency South superintendency South superintendency New Mexico superintendency New Mexico superintendency New Mexico superintendency Arizona superintendency California superintendence Southern District California superintendency.. North District California superintendency North District California superintendency Oregon superintendency Oregon superintendency Oregon superintendency Oregon superintendency. Oregon superintendency Washington Territory superintendency Washington Territory superintendency....'. Washington Territory superintendency Washington Territory superintendency Great Nemaha agency Great Nemaha agency Omaha agency Winnebago agency „ Winnebago agency ! Pawnee agency 3 J awnee agency St. Peter's agency St. Peter's agency St. Peter's agency -. Pottawattomie agency ■Ottoo and Missouria-agency Upper Arkansas agency Kansas agency Kickapoo agenoy Kickapoo agency Kickapoo agency Delaware agency Delaware agenoy ....<.. « Shawnee agency Sac and Fox agency Osago river agency , Osage river agency Upper Platte agency Upper Platte agency. Upper Platto agency ....ij Cherokee agency Chorokeo agency .-. -Cherokee agency,.. '. Cherokee agency...' Choctaw agency *.«.... Choctaw and Chickasaw agency Choctaw and Chickasaw agency Neosho agency Hi.. Witchitaagency . Witchitaagoncy Witchitaagency '. Witchitaagoncy -...^ Creek agency ...t, Creek agency Creek agcDcy Croek agency '... ..■.'.: Remarks. During the recess. During the recess. During tho recess. During the recess. During the recess. During the recess. Senate consented to appointment of his successor. During the recess. During the recess. During the recess. During tho recess. Senate consented to appointment of his successor. Senate consented to appointment of bis successor. During the recess. Senate consented to appointment of his successor. During the recess. During the recess. During the recess, Senate consented to appointment of his successor. Senate consented to appointment of his successor. During -the-recess. During tho recess. Senate consented to appointment of his successor. Senate consented to appointment of his successor. Sonate eonsented to appointment of bis successor. Senate consented to appointment of his successor. During the recess. During the recess. Senato consented to appointment of his successor. Senate consented to appointment qf his successor. Senate consented to appointment of his successor. Du-ing the recess. During the recess. Senato consented to appointment of his successor. Senate consented to appointment of his successor. During the recess. Senate consented to appointment of his succossor. During tho recess. Senate consented to appointment of his successor. During tho recess. During the recess. Senate consonted to appointment of his successor. Senato consented to appointment of his successor. During tho recess. Senate consented to appointment of his successor. Senato consented to appointment of his successor. Senate consented to appointment of his successor. During the recess. Senate consented to appointment of his successor. During tho recess. During the recess. Senate consented to appointment of his successor. During the recess. During the recess. \ During the recess. Sonate consented to appointment of his successor. During the recess. During the recess. Senato consented to appointment of his successor. During the recess. During the recess. During the recess. Senate oonsontcd to- appointment of his successor. During the recess. Senate consented to appointment of his successor. During the recess. During tho rcoess. During the recess. Sonate oonsented. to appointment of his successor. THE CONGRESSIONAL GLOBE. 217 STATEMENT— Continued. Date. Name. Office Remarks. Juno 9, 1865 G. A. Cutler During the recess. Senate consented to appointmont of his successor. During the recess. During the recess. Senate consented to appointment of his successor. During the recess. During the recess. Senate consented to appointment of his successor. Senate consented to appointment of his successor. Senate consented to appointment of his successor. Senate consented to appointment of his successor. During the recess. During the recess. During the recess. During the recess. Senate consented to appointment of his sucoessor. Senate consented to appointment of his successor. Senate consented to appointment of his successor. Senate consented to appointment of his successor. Senate consented to appointment of his successor. During the recess. During the recess. During the recess. During the recess. During the recess. Senate consented to appointment of his successor. Senate consented to appointment of his successor. During the recess. Senate consented to appointment of his successor. During the recess. Senate consented to appointment of his successor. During the recess. During the recess. Senate consented to appointment of his successor. During the recess. During the recess. During the recess, Senate consented to appointment of his successor. Senate consented to appointment of his successor. During the recess. During the recess. During the recess. Senate consented to appointment of his successor. March 11, 1852 A. P. Dennisou. S. H. Culver July 16, 1861 J.F.Miller July 10, 1851 11. H. Spalding „ E. A. Starling August 13, 1856 July 16, 1861 January 21, 1863 Benjamin R. Biddle July 17, 1861 Wesly B. Gasnoll A. R. Woolcy Michael Stock May 13. 1857 March 21, 1865 E. H.Wingneld July 26, 1861 Michael Stock April 30, 1861 J. T. Russoll June 21, 1866 Toribio Romero July 22, 1852 ; April 11, 1853 S. M. Baird April 30, 1861 S. F. Kendrick March 24, 1865 August*, 1862 W. F. M. Amy March 21, 1865 L. J. Kcithly April 18, 1853 March 28, 1861 :.. A. II. Rcdficld.- July 16, 1861 April 26, 1861 Juno 7, 1864 F. W. Catch.. April 7, 1882 October 13, 1863 H. W. Reed March 14,1861 June7,1864 May 11, 1865 Simeon Whitely September 21, 1866 April 23. 1853 March 25, 1861 A.M. Fitch March 23, 1861 J. W. Lynde April 20, 1865 A. C. Morrill... November 9, 1866 April 18, 1853...... J. S. Watrous March 25, 1861 Registers of Land Offices removed during the recess of the Senate. Date. Name of officer. Location of office. State. Remarks. April 5,1849 April 7. 1849 April 12, 1849.... J. H. McBrido April 12, 1849 April 14, 1849 John F. Reed May 8, 1849 May 8,1849.... John Miller. ... May 8, 1849.. . E. P. Dickson May 8,1849 B. P. Jett , May 8, 1849 Hiram Smith Arkansas May 8, 1849 May 8, 1849 S. B. Farwcll May 9, 1849.... B. R. Cowherd , May 9, 1849 . J. B. Hunt Sautt Ste. Marie.... May 12, 1849 J. W. Rush May 12, 1^49 . J. S. Mayes Indiana May 18. 1849 0. D. Strickland, jr iMay 18, 1849 May 18, 1849 Charles Neally , Iowa City May 18, 1849 .. . May 21, 1849 J. W. Barrett , May 21, 1849 May 24 1849 Albert W. Parris Mineral Point May 31. 1849.. Elisha Taylor , June 4, 1849 Monroe.....! June 4, 1849. . June 4, 1849 J. C. Sloo June 11, 1849 Thomas J. Hodson June 14, 1849 Juno 14 1849 June 25, 1849 Ohio June 25, 1849 ... R. K. McLaughlin July 12, 1849. July 12, 1849.. . Benjamin Sherman July 12, 1849 William E. Russell July 27, 1849 October 10, 1849 October 10, 1849. October 10 1849 November 1, 1849. October 13, 1850 October 13, 1850 D, B. (graham June 13, 1861.. . July 14, 1855.... E. W. Martin July 24, 1855 October 2, 1855 W. P. Davis Arkansas. % March 26, 1856 April 3 1857 March 19 1857. .. March 20 1857 March 28, 1857 September 22, 1858 Abner C. Smith April 16, 1859 Samuel Clark Mav 3, 1859. Daniel Shaw September 19, 1860 218 SUPPLEMENT TO STATEMENT— Continued. Date. Name of officer. Location of office. State. Remarks. April 1,1861 W. T. Galloway April a, 1861 Ira MunsoD E. P. liart April 9, 1861 Matthew Kpller April 9, 18(31 May 9, 1861 Chatfield May 15, 1861 Peter White Isaac W. Griffith April 2, 1861 J. M. Stockdaie April 2, 1861 April 9, 1861 E. 0. F. Hastings April 9, 1861 April 10,1861 April lo, 1861 April 15, 1861 April 18, 1861 April 18, 1861 April 22, 1861 April 26, 1861 April 26, 1861 April 30. 1861 May 3. 1861 May 30. 1861 Juno 13, 1861 June 22, 1861 August 7, 1861 Ohio » September 9, 1861 William. E-. Keeper. March 18, 1866 G. W. Board man September 26, 1866 September 24, 1866 September 24, 18G6 H. C. Driggs S. T. Davis October 27. 1866 G. W. Martin November 5, 1866 C. R. Dorsey Tho above dates are those upon which the successors of the above-named persons were appointed. Receivers of Public Moneys removed during tlie recess of the Senate. Date. March 28, 1849: March 30, 1849 April 7, 1849 April 7. 1849 April 12, 1849 April 12, 1849 May 7, 1849 May 8, 1849 May 8, 1849 May 8. 1849 May 8. 1849 May 8, 1849 May 8, 1849 May 8, 1849 May 9, 1849 May 9, 1849 May 9, 1849 May 9. 1849 May 12, 1849. May 12, 1849 May 18. 1849 May 18, 1849 May 18, 1849 May 18, 1849 May 21. 1849 May 31, 1849 May 24. 1849 June 4,1849 June 4, 1849 June 14.1849 June 25,1849 June 30,1849 Juno 25,1849 July 12, 1849 July 27, 1849 August 9, 1849 August 25, 1849 August 25, 1849 October 10, 1849 October 10, 1849 December 1, 1849.... September 4, 1855... October 8, 1855 October 10, 1855 September 13. 1856. August 19, 1858 Septembers. I860.. September 21, I860.. April 1. 1861 March 30, 1861 June 13. 1861 March 30. 1861 April 2, 1861 April 2, 1861 April 2. 1861 April 2, 1861 April 9, 1861 April 9, 1861 April 9. 1861 April 9, 1861 April 9, 1861 Name of officer. John G. Winston Elisha Morrow J. D.G.Nelson James P. Drake .Mitchell Hinsdill Thomas Dyer Lemuel It.. Lincoln W. Adams D. J. Chapman Matthew Leeper D. T. Witter M.F. Rainey George Jeffries John Doment W. W. Leland M. A. Patterson David C. Glenn Paschal Bequette Bennett W. Engle Samuel Wise Theodore Gillespie Verplanck Van Antwerp., Enos Lowe Georgo McHenry A. G. Uerndon John Parsons J. A. Helfenstien Braxton Parrish J. H. Westbrook Frederick Hall W. L. Henderson Samuel Leeeh Daniel Gregory JohnB. Filhiol .-. Hiram Rodgers Nicholas B.Smith J. M. B. Tucker. Daniel Ashby L.ll.Noell John G. Cameron H. W. Palfrey James Larkins A. S. Bryant J. C. Clarborne Thomas C. Shoemaker E. B. Dean Christopher H. Dobbs John D.Evans John E. Perkins J. H. McKenny William J. Martin Thomas McNully Isaac Cooper A. [I. Palmer Thomas Sargent Robert Means Joseph Hopkins Thomas Baker...., George W. Hook Augustin Olivera Paschal Bequette Location of office. Lebanon Green Bay Fort Wayne Indianapolis Kalamazoo Chicago Little Rock Clarksville Batesville Fayetteville ....... Washington Champagnole Helena Dixon Pontotoc Sault Ste. Marie Jackson Mineral Point... Crawfordsvillo... Vincennes Grecnsburg Fairfield Iowa City Dubuque Springfield Newmansville ... Milwaukee Sliawneetown.... Columbus Ionia Defiance Stillwater Vandalia Monroe _ , Quiney Springfield Natchitoches Clinton. Danville Edwardsville New Orleans Elba Sioux City Batesville.: , Superior. Monroe Forest City Eau Claire Chatfield Roseburg,... Chillicothe Des Moines..: Council Bluffs.... Fort Dodge Sioux City Marysville Visalia ,.. Humboldt Les Angeles San Francisco.... State. Alabama Wisconsin Indiana Indiana Michigan Illinois , Arkansas Arkansas Arkansas , Arkansas ,... Arkansas Arkansas Arkansas , Illinois Mississippi Michigan Mississippi , Wisconsin.. ..* , Indiana Indiana Louisiana Iowa Iowa Iowa Illinois Florida. Wisconsin Illinois , Mississippi Michigan Ohio Minnesota Illinois Louisiana Illinois Missouri Louisiana Missouri , Illinois Illinois. Louisiana Alabama Iowa.... Arkansas Territory of Kansas . Wisconsin Louisiana Minnesota Wisconsin Chatfield Oregon Ohio Iowa , Iowa Iowa Iowa California California California California California. Remarks. THE CONGRESSIONAL GLOBE. 219 STATEMENT— Continued. Date. Name of officer. Location of office. State. Remarks. April 0, 1861 , April 10, 1801 J M S Van Cleare April 15. 1861.... (November 10, 1860 April 22, 1861. .. April 26, 1S61 April 26, 1861 Fort Scott May 24, 1861 W A Street Santa F6 . May 18, 1861 May 20, 1861..,. May 30, 18G1 June 11,. 1861 June 13, 1861... May 27, 1861.. - C B Smith June 22, 1861 Septembers), 1861 October 5, 1861. July 30, 1863 March 16, 1-864 .. September 18 1866 W B Mitchell St Cloud. September 18, 1866 J S McFarland September 24 1866 W H H Waters March 30, 1865 . St. Cloud September 9, 1865 J. L. Collins Tho above dates are those upon which the successors of the above-named persons were appointed. Receivers of Public Moneys removed during sessions of the Senate, that body advising and consenting to the appointments of their successors. Bate. Name of officer. Location of office. State. Remarks. July 31.1852 December 22, 1857 May 17, 1858 June 3, 1858 December 22, 1858.. . March 8, 1859. . . John C. Turk February 14, 1860 Thomas C Hunt . February 14, 1860 Milton H. Abbott. May 28, 1860 St. Cloud January 16. 1860 March 18, 1861. Peter F. Wilson. March 25, 1861 March 25, 1861 W. L. P. Little March 23, 1861 St. Peter March 23, 1851 AlWt. fl. Ellis March 23, 1861 W. H. Mower. . March 25, 1861 March 27, 1861 Falls St. Croix„ March 27, 1861 St. Cloud..... July 19, 1861 July 22, 1861 July 16. 1861 March 6, 1862 March 12, 1863 June 7, 1864 Falls of St. Croix May 4. 1866 July 14, 1866 The above dates are tho dates of confirmation by the Senate. Registers of Land Offices removed during session of the Senate, that body advising and consenting to the appointment of their successors. Date. Name of officer. Location of office. State. Remarks. March 14. 1849 „ Wisconsin July 31, 1852 Andrew Backus Michigan March 12, 1857 .;... April 14, 1858 , Iowa May 17, 1858 May 17, 1858 W. II. Doak Fort Scott Kansas June 3, 1858 Juno 3, 1858 June 15. 1858..: March 1,- 1859 A. C. Smith February 14, 1860 John B. Clouticr March 23. 1860 March 25, 1860 March 25, 1860 March 27, 1861 Falls St. Croix March 23, 1861 Minnesota March 23,1861 Oscar Taylor Otter Tail City '. March 23, 1861 March 23, 1861 1 Henry N. Setger March 27. 1861 Thomas E. Massey March 27. 1861 J. D. Cruttendon March 25, 1861 John C. Blanchard March 27, 1861 Samuel Plumer July 19, 1861 Charles S.Benton March 6. 1862 Adolph Kenard March 31. i862 July 17,1862 W. W.Lewis March 9,1865 D. H. B:ill February 10, 1868 The above dates are tho dates of confirmation by tho Sonato. 220 SUPPLEMENT TO Surveyor Generals removed during recess of the Senate. Bate. April 11, 1849.. May 8, 1840 May 9,1849 Juno 14, 1849... March 22, 1859. Aprils, 1881.... .April 15, 1861.. April 29, 1861.. May 11, 1801.... Juno 13. 1801.. March 16, 1805 Name of officer. .Robert Butler William Pclham P. P. Landry J?. R.Conway John S. Zieber John Loughborough J. VV. Mandevillo.... H. B.Burnett Warner Lewis W. H. Chapman Daniel W. Wilder.... Location of office. Florida Arkansas Louisiana Illinois and Missouri... Oregon Illinois and Missouri... California Kansas and Nebraska. Iowa and Missouri Oregon Kansas and Nebraska. Remarks. Surveyor Generals removed during session of the Senate, that body advising and consenting to the appointments of their successors. Date. Namo of officer. Location of office. Remarks . •March 3. 1855 March 27, 1861 Minnesota ,July 22, 1861 A. P. Wilbar J4ily 15, 1861 March 13,1863 Colorado February 23. 1864 May 22,1866 George D. Hill Dakota July 15,1861 Utah Miscellaneous Removals. Date. Name of officer. Office. Remarks. July 23, 1849 During recess. During recess. During recess.- During recess* During Tecess.- During" recess.- During recess. During recess.. During recess*- During recess; Senato consented to appointment of successor. Senate consented to appointment of successor. Senate consented to appointment of successor. Senate cansented to appointment of successor. Senate consented to appointment of successor. Senate consented to appointment of successor. July 1,1849 William Medill April 7, 1849 April 5, 1849 C. P. Senffstack Warden of the penitentiary, District of Columbia- May 9, 1849 Edmond Burke November 10, 1850 August 12,1865 September 7, 1865 N. C. Towle October 21, 1862 S. J. Dallas Principal clerk of surveys General Land Office Warden of the penitentiary. District of Columbia June 29, 1850 Jonas B. Ellis March— ,1853 December 23, 1859 Warden of the penitentiary. District of Columbia.. March 19. 1861 March 6, 1867 R. M. Hall July 20, 1867 Frederick W. Seward sworn and exam- ined. By Mr. Curtis : Question. State what office you hold under the Government? Answer. Assistant Secretary of State. Question. How long have you held the office? Answer. Since March, 1861. Question. In whose charge in that Depart- ment is the subject of consuls and consular and vice consular appointments ? Answer. Under my general supervision. Question. Please state the practice in mak- ing appointments of vice consuls in case of the death, resignation, incapacity, or absence of consuls? Answer. Usually Mr. Manager BUTLER. Stop a moment. Is not that regulated by law? Mr. CURTIS. That is a matter of argu- ment. We think it is. Mr. Manager BUTLER. So do we. There cannot be any dispute on that question. Mr. CURTIS. Now we are going to show the practice under the law. Mr. Manager BUTLER, Different from the law? Mr. CURTIS. Just as we have done in other cases. I have a document here to offer, but it requires some explanations to make the document intelligible. Mr. Manager BUTLER. We do not object if the offer is to show the practice under the law. Mr. CURTIS, (to the witness. ) Proceed, if you please, Mr. Seward. The Witness. When the vacancy is fore- seen the consul nominates a vice consul, who enters upon the discharge of his duties at once during the time that the nomination is sent to the Department of State. The Department Approves or disapproves when it receives the nomination. In case the vacancy has not been foreseen and the consul is dead, absent, or sick, unable to discharge the duties or to desig- nate his temporary substitute, then the minister in the country will make a nomination and send that to the Department of State ; or if there be no minister, the naval commander will not infrequently make a nomination and send that to the Department of State, and the vice consul so designated will act until the Department shall approve or disapprove. In other cases the Department itself will designate a vice consul without any previous nomination of either minister, consul, or naval commander, and he enters upon the discharge of his duties in the same manner. Question. How is he authorized or com- missioned? Answer. He receives a certificate of his appointment signed by the Secretary of State. Question. Running for a definite time, or how? Answer. Running ' ' subject to the conditions prescribed by law. ' ' Question. Is this appointment of vice con- sul made temporarily to fill a vacancy, or how otherwise ? Answer. It is made to fill the office during the period which necessarily elapses in the time that it takes for the news of the vacancy to reach the Department for a successor to be appointed. Question. That is for a succeeding consul to be appointed ? Answer. For a succeeding full officer to be appointed. Sometimes a period of weeks or months may elapse befora the news can reach this country, and a similar period before the newly-appointed successor can reach the poet. Question. It is, then, in its character an ad interim appointment to fill the vacancy ? Answer. Yes. Cross-examined by Mr. Manager Butler : Question. Is there anything said in their commissions or letters of appointment about their being ad interim ? Answer. Their letter of appointment says " subject to the conditions prescribed by law. " Question. That is the only limitation there is? Answer. That is the only limitation I re- member. Question. Are not these appointments made under the fifteenth section of the act of August 18, 1856? Answer. I think the act of 1856 does not create the office nor give the power of appoint- ment, but it recognizes the office as already in existence, and the power as already in the President. Mr. Manager BUTLER. We will see about that in a moment, sir. Mr. JOHNSON. Has the Manager the statute before him? Mr. Manager BUTLER. I have. Mr. JOHNSON. What is the volume? Mr. Manager BUTLER. The volume is the 11th Statutes-at- Large. This statute begins on page 35 of the 11th Statutes-at- Large ; but the fourteenth and fifteenth sections are those that relate to the matter. The fourteenth section I will read, for I want to ask some further ques- tions in regard to it: "That the President be, and he is hereby, author- ized to define the extent of country to be embraced within any consulato or commercial agency, and to provide for the appointment of vice consuls, vice THE CONGRESSIONAL GLOBE. 221 commercial agents, deputy consols, and oonsular agents therein, in such manner and under suoli reg- ulations as he shall deem proper; but no compensa- tion shall be allowed for the service of any such vice consul or vice commercial agent beyond nor except out of the allowance made by his act for the principal consular officer in whose place such appointment shall bo made ; and no vice consul, vice commercial agent, deputy consul, or consular agent shall be ap- pointed otherwise than in such manner and under such regulations as the President shall proscribe pursuant to the provisions of this act." [To the witness.] Now, sir, in the Depart- ment of State, have they ever undertaken to make a vice consul against the provisions of this act ? The Witness. I am not aware that they ever have. Question. Or attempted it in any way ? Answer. Not that I know of. Mr. CURTIS. I now offer from the Depart- ment of State the document I hold in my hand, which contains a list of consular offices ap- pointed during the session of the Senate when vacancies existed at the time such appoint- ments were made. The earliest instance of it in this list is in 1837, and the latest one does not come down to the law which the honorable Manager has read. They are all prior to that law, and after the year 1837. [The document was handed to the Managers for examination.] Mr. CURTIS. I was mistaken in a date. I thought the honorable Manager read the date of the law as 1866. Mr. Manager BUTLER. Eighteen hundred and fifty-six. August 18, 1856. Mr. CURTIS. Then there are some which are subsequent to the law. They begin in 1837, and they come down to about 1862, if I re- member rightly. I have not examined it minutely. Mr. Manager BUTLER. There was a prior statute of 18-18 which was partly revived in the law of 1856. Mr. Manager BOUTWELL. Mr. Chief Justice, I wish to call the attention of the counsel for the respondent to the fact that it does not appear from this paper that these vacancies did not happen during the recess of • the Senate. It merely states tha% they were filled during the session. As these were offices existing in remote countries the probability is that the vacancies happened during the recess of the Senate. Mr. CURTIS. It does not appear when the vacancies happened. The purpose for which we offer the evidence is to show that these temporary appointments were made to fill vacancies during the session of the Senate. Mr. Manager BO UT WELL. I only wish to give notice that we treat them as cases where vacancies happened during the recess of the Senate, it being perfectly understood that, according to the practice, vacancies happening during the recess of the Senate might be filled during the session of the Senate. There is no evidence to the contrary in the papers. Mr. EVARTS. We understand, then, that the Managers hold that a vacancy that hap- pens in the recess may be filled during the session without sending a nomination to the Senate. Mr. Manager BOUTWELL. No. Mr. EVARTS. I thought that was what you stated. Is it not your proposition ? Mr. Manager BOUTWELL. I only give notice that on that record we propose to treat these as vacancies happening during the recess of the Senate. Mr. EVARTS. And filled during the session. Mr. Manager BOUTWELL. That we do not know anything about; when they were filled. It does not appear that they did not happen during the recess. Mr. EVARTS. The certificate is to the effect that they were filled during the session of the Senate. Mr.- Manager BINGHAM. We do not pro- pose to settle the law of the case now. The CHIEF JUSTICE. The Chief Justice does not understand the honorable Managers a3 objecting to the reception of this document in evidence. Mr. Manager BOUTWELL. We do not object to the paper. I only give notice how we propose to treat it, on the face of the paper, as not showing that the vacancies happened during the Scission of the Senate. The document is as follows: United States op America, Department of State? To all to whom these presents shall come, greeting: I certify that the document hereunto annexed contains a list of consular officers appointed during the session of tho Senate, where vacanoies existed at the time such appointments were made. In testimony whereof I, William H. Seward, Sec- retary of State of tho United States, have hereunto subscribed my name and caused tho seal of tho De- partment of State to be affixed. Done at' tho city of Washington, this 11th day of r. „ -I April, A. I). 1868, and of the independence of L ' J tho' United States of America the ninety- second. WILLIAM H. SEWARD. Henry C. Bridges, appointed vice consul at Kin- Kiang, China, May 16, 1861, on the resignation of W. Breck, consul. D. Thurston, appointed vice consul general at Mon- treal, May 31, 1864, on the death of J. R. Giddings, consul general. A. Duff, appointed vice consul at Demerara, 7th January, 1865, on the death of C. G. Hannah, consul. George W. Hcaly, appointed vice consul at Bom- bay, December 28, 1861, on death of L. H. llatiickl, consul. Robert Bayman, appointed vice consul at Funchal, March 24, 1864, on death of G. True, consul. K Bremt, appointed vioe consul at Hanover, Feb- ruary 18, 1861, on the resignation of J. S. Holton, consul. Alexander Thompson, appointed vice consul gen- eral at Constantinople, January 7,1860, awaiting the arrival of M. M. Smith, appointed consul general. Bernardo J. Arcanquos, appointed vice consul at Bayonne, April 19, 1856, on resignation of John P. Sullivan, consul.. Joseph Ayton, appointed vice consul at Cartha- gena, February 20. 1838, on the resignation of J. M. MoPnerson, consul. Thomas V. Clark, appointed vice consul at Guaya- quil , December 31, 1857, on resignation of M. P. Gaine, consul. A. Lacombe, appointed vice consul at Puerto Ca- bello, January 23, 1865, on the transfer of C. H. Loehr to Laguayra. John Gardner, appointed vice consul at Ria Ja- neiro, September 15, 1839, on the removal of J. M. Baker. H. F. Fiteh, appointed vice consul at Pernambuco, April 13, 1860, on death of W. W. Stepp. August Peixoto, appointed acting consul, Decem- ber 7, 1864. on the removal of Thomas F. Wilson, consul, at Bakia. Samuel G. Pond, appointed acting consul at Para, December 2, 1862, on the doath of M. R. Williams. Robert H. Robinson, appointed acting vice consul at Montevideo, March 12, 1858, on resignation of R. M. Hamilton. Amory Edwards, appointed actingconsul at Buenos Ayres. December 28, 1840, on death of Slade. Wiliiam L. Hobson, appointed vice consul at Val- paraiso, July 17, 1840, on resignation of George G. Hobson. George B. Merwin, appointed vice consul at Val- paraiso, December 5, 1854, on the resignation of Reu- ben Wood. W. H. Kelley, appointed vice consul at Otaheite, December 31, 1848, Mr. Hawes not having exequatur. D. B. Van Brundt, appointed United States consul at ^capulco. May 26, 1860, by Flag Officer Montgom- ery, on death of McMicken. Gideon Welles sworn and examined. By Mr. Evarts : Question. You are now Secretary of the Navy? Answer. I am. Question. At what time and from whom did you receive that appointment ? Answer. I was appointed in March, 1861, by Abraham Lincoln. Question. And have held office continuously until now? Answer. From that date. Question. Do you remember on the 21st of February last your attention being drawn to some movements of troops or military officers? Answer. On the evening of the 21st of Feb- ruary my attention was called to some move- ments that were being made. Question. How was this brought to your attention ? Answer. My son brought it to my attention. He had been attending a party at which there had been an application from a son of Gen- eral Emory, I think, and from one or two others, for any officer belonging to the fifth regi- ment or under the command of General Emory to repair forthwith to headquarters. Question. Your son had observed that and had reported it to you ? Anstoer. He reported that to me. Question. Did yon, in consequence of that, seek or have an interview with the President of the United States ? Answer. I requested my son to go over that evening ; but he did not see the President. Mr. Manager BUTLER. Stay a, moment. We object to what was said. Mr. EVARTS. He says he sent his son, and his son failed to see the President. His at-: tempt was first to send a message. The Witness. I was not well, and could not go myself. By Mr. Evarts : Question. You attempted to send a message that night ? Answer. I did. Question. State what happened on the fol- lowing day? Answer. On Saturday, the 22d, I went my- self, in the morning or about noon, to the Presi- dent on that sulject. I told him what I had heard, and asked him what it meant Mr. Manager BUTLER. We object to that conversation. The Witness. Very good. Mr. EVARTS. Is objection made to this ? Mr. Manager BUTLER. Yes, sir ; and be- fore we speak to the objection I should like to- ask the witness to fix the time a little mora carefully. Mr. EVARTS. He has stated it exactly; about noon. The Witness. About twelve o' clock on the 22d of February. By Mr. Manager Butler : Question. How close to twelve, before or after? Answer. I should think it was a little before twelve o'clock. I will state a circumstance or two. The Attorney General was there when I went in. While I was there the nomination of Mr. Ewing was made out for Secretary of War, and was delivered to the Private Secre- tary to be carried to the Senate. Mr. Manager BUTLER. Stay a moment. Let us see what time he said that was. Mr. EVARTS. It is not time for cross- examination now. Mr. Manager BUTLER. No; but I sub- mit, Mr. President, it is time for cross-exam- ination upon the question whether the thing is admissible in order to ascertain the time. At one point of time it may be, while at another point of time it clearly is not admissible. Mr. EVARTS. It is quite immaterial, if you will go on and get through. Mr. Manager BUTLER. Quite immaterial what point of time? Mr. EVARTS. Immaterial whether you eross-examine now or hereafter. ' Mr. Manager BUTLER. I only want to fix it. [To the witness.] You think it was very near twelve? The Witness. About twelve o'clock. Question. Could it have been as ear.lv. as half past eleven ? Answer. No, sir ; I do not think it was. Question. But between that and half past twelve some time ? Answer. Yes, sir. Question. Within that hour? Answer* Yes, sir. Mr. Manager BUTLER. Now, our objec- tion Mr. EVARTS. Nowlwill proceed with my questions, if yon please. Mr. Manager BUTLER. Very well. Mr. EVARTS. How far have we got now? Let the answer on this point as far as it has gone be read. Mr. Stenographer. The CHIEF JUSTICE. The stenographer will rend what is desired. D. F. Murphy, one of the reporters for the Globe, read from the short-hand notes of Mr. Welles's testimony, as follows: _ " On Saturday, the 22d, Iwent myself in tho morn- ing or about noon to the President on that subject. I told him what I had heard; asked him what it meant "Mr. Manager Butlee. We object to that con- versation." 222 SUPPLEMENT TO Mr. EVARTS. Very good. The CHIEF JUSTICE. If the question be objected to the counsel will please reduce it to writing. Mr. Manager BUTLER. We object to any conversation of the President at that time. Mr. E VA RTS, (to the witness. ) What passed between you and the President after that in regard to that communication which you had made to him ? Mr. Manager BUTLER. Wait a moment. The Chief Justice desired the question to be put in writing. Mr. EVARTS. That is being done now. The question was reduced to writing, and read by the Secretary, as follows : What passed between you and the President after you made that communication and in reference to that communication? Mr. EVARTS. I would state, Mr. Chief Justice and Senators, before any argument is commenced on this subject, if there is to be one, that this evidence is offered in regard to the article that relates to the conversation between the President and General Emory. Mr. Manager BUTLER. That is precisely as we understand it, Mr. President ; but we also understand the fact to be that General Emory had been sent for before Mr. Welles appears on the scene. That is why I was anxious to fix the time. I am instructed by my associate Managers, and we are now en- deavoring to get the matter certain, that Gen- eral Emory received a note to come to the President's at ten o'clock in the morning, and that he got there before even the Secretary of the Navy. But, however that may be, he was called there before; we cannot at this moment ascertain exactly how that is ; but it does not appear, at any rate, that this conversation was before Emory was sent for. Mr. CURTIS. We shall see about that. Mr. EVARTS. That is part of the matter of proof that is to be considered of when it is all in, as to which is right in hours and which in facts. Mr. Manager BUTLER. The question of what was said in the conversation is not to be considered as proof which was right in fact. I suppose my learned opponents would not claim that if this was before General Emory came there they have a right to put in the testi- mony. Mr. EVARTS. It is precisely in that view that we offer it. Mr. Manager BUTLER. I should have said subsequent. Mr. EVARTS. I beg your pardon. Mr. Manager BUTLER. I made a mistake as to the comparative date for which I am very glad that you corrected me. If it was subse- quent I suppose the gentlemen would not claim that it could be admitted. Therefore it must appear affirmatively that it was before in order to make it competent. That is my proposition. It does not appear affirmatively to have been before, and I think it was after- ward ; but of that I am trying to make myself certain by an examination. The CHIEF JUSTICE. The Chief Justice thinks the evidence is competent. It will be for the Senate to judge of its value. He will, however, put the question to the Senate if any Senator desires. [After a pause.] You will proceed, Mr. Welles. Mr. EVARTS. You will be so good as to answer the question, Mr. Welles. The Witness. I should like to have it read. The Chief Clerk. The question is: What passed between you and the President after you made that communication and in reference to that communication? The Witness. I cannot repeat the words, perhaps, exactly ; but yet I should think the first words of the President were : " I do not know whatEmory means;" or "I do not know what Emory is about." . I remarked that I thought lie ought to know ; that if he was summoning high officers at such a time the evening before it must be for a reason., and it was his duty, I thought, to send for General Emory, and to in- quire into the facts. He hesitated somewhat. We had a little conversation, and I think he said that he would send for him. He either said he would send for Emory or that he would send and inquire into this. I think he said he would send for him. That was about the conversa- tion. By Mr. Evarts : Question. Now, Mr. Welles, I will call your attention to the 21st of February of this year at the time of the close of the Cabinet meeting on that day. At what hour was the Cabinet meet- ing held on that day, Friday, the 21st of Feb- ruary ? Answer. At twelve. Twelve is the regular hour of meeting. Question. That is the usual hour and that is the usual day for Cabinet meetings? Answer. Yes, sir. Tuesdays and Fridays. Question. Did you at that time have any inter- view with the President of the United States at which the subject of Mr. Stanton's removal was mentioned ? Answer. I did. Question. At about what hour of the day was that? Answer. I cannot fix it. It must have been, perhaps, in the neighborhood of two o'clock. Question. Had you, up to that time, heard of the removal of Mr. Stanton ? Answer. I had not until the close of Cabinet business that day. Question. When the Cabinet meeting was closed this interview took place at which the subject was mentioned? Answer. The President remarked Mr. Manager BUTLER. Stop a moment. Mr. EVARTS, (to the witness.) You need not state now what it was the President said ; but that is the time he made the communica- tion? The Witness. Yes, sir. By Mr. Evarts : Question. What passed between you and the President at that time? Mr. Manager BUTLER. We object to that. The CHIEF JUSTICE. Counsel will please reduce their question to writing. Mr. EVARTS. I will state what I propose to prove. Mr. CONNESS. I move that the Senate take a recess for fifteen minutes. The motion was agreed to ; and at the expi- ration of the recess the Chief Justice resumed the chair. Mr. EVARTS. Bfefore presenting in writing the question which was objected to I wish to ask one or two preliminary questions of Mr. Welles before going further. [To the wit- ness.] Did the President proceed to make any communication to you on this occasion concerning the removal of Mr. Stanton and the appointment of General Thomas? Answer. Yes ; he did. Question. Was this before the Cabinet meet- ing had broken up; or at what stage of your meeting was it? Answer. We had concluded the depart- mental business and were about separating when the President remarked Mr. Manager BINGHAM. You need not state anything he said. Mr. EVARTS. It was then that he made the communication, whatever it was ? The Witness. At that time he made the communication. Question. Who were present? Answer. I believe all the Cabinet were pres- ent. Perhaps Mr. Stanbery, the Attorney General, was not. He wa3 a good deal absent during the session of the Supreme Court. Question. All were present, unless it be Mr. Stanbery, you think ? Answer. I think so. Mr. EVARTS. Now, Mr. Chief Justice and Senators, I offer to prove that communication and submit it in this form : Wo offer to prove that on this occasion the Presi- dent communicated to Mr. Welles and the other mombcrs of his Cabinet, beforo tho meeting broke up, that he had removed Mr. Stanton and appointed General Thomas Secretary of War act interim, and that upon tho inquiry by Mr. Welles whether Gen- eral Thomas was in possession of the office the Presi- dent replied that ho was; and upon further question of Mr. Welles whether Mr. Stanton acquiesced the President replied that ho did: all that he required was time to remove his papers. Is that objected to? Mr. Manager BUTLER. Yes, sir. In refer- ence to this question I want tp call the counsel's attention to the state of the fact. I understood Mr. Welles said that after the Cabinet meeting broke up Mr. EVARTS. No. I have put that ac- cording to the fact. You were out, I believe, when it was brought out. It was after they had got through what he calls their depart- mental business, but before the meeting broke up, that the President made the communica- tion. Mr. Manager WILSON. Before they sep- 3.F3it6u Mr. EVARTS. Before the meeting broke up. It was in the Cabinet meeting not yet broken up. Mr. Manager BUTLER. We have the honor to object to this. The CHIEF JUSTICE. The Secretary will read the proposition so that it can be heard by the Senate. The Secretary read the offer, as follows : We offer to prove that on this occasion the Presi- dent communicated to Mr. Welles and the other members of his Cabinet, before the meeting broke up. that ho had removed Mr.Stanton and appointed General Thomas Secretary of War ad interim, and that upon theinquiry by Mr. Welles whetherGeneral Thomas was in possession of the office the President replied that he was; and upon further question of Mr. Welles whether Mr. Stanton acquiesced the President replied that he did; all that he required was lime to remove his papers. Mr. Manager BUTLER. Mr. President and Senators, as it seems to us, this does not came within any possible proposition of law to ren- der it admissible. It is now made certain that this act was done without any consultation of his Cabinet by the President, whether that consultation was to be held verbally, as I think is against the constitutional provision, or whether the theory -is to be adopted that the President Mas a right to consult with his Cubi- . net upon questions of his conduct. I should hardly have dared, perhaps, to speak upon this question of constitutional law with any con- fidence, except so far as to bring to the mind of the Senate that the President has no right to call upon his Cabinet save through the con- stitutional method, were I not borne out in it by the opinion of Jefferson. Early in the Gov- ernment he took the same view that I have heretofore had thehonor incidentally of stating to the Senate. There seems to be good reason for it, because the heads of Departments were in the first place never expected to be a Cabi- net; there were but three of them. There has been a gradual growing up of this practice. The Constitution wisely, for good purposes, required that when the President wanted the advice of any one of his principal officers he should ask that advice in writing, and it should be given in writing, so that it should remain for all time exactly what the advice was which he received, and exactly the point made. And the reason of that was, therejiad been an attempt in the various trials of impeach- ment of members of cabinets to put in the fact of the order of the king to the cabinet, or the advice of various members of the cabinet to each other. Tvat had been exploded in the Earl of Danby's case. That question used to arise under that state of facts before courts of impeachment, but our fathers evidently did not mean that it should arise here. But that is not this case, and I have only ad- verted to this to make the clear distinction : whatever may be fte character of the act of removal of Edwin M. Stanton and the act of appointment of Lorenzo Thomas, I am glad that it is now made q»ite certain by the testi- mony of the Secretary of the Navy (who de- clares he never heard of it until after it was done) that it was not done'by the advice of the Cabinet; that the President was solely respon- kiMr for it : and unon that, his own sole resDon- THE CONGRESSIONAL GLOBE. 223 sibility, he acted. Now, the question is, after he has done the act, after he has thought it was successful, after he thought Mr. Stanton had yielded the office, can he, by his narration of what he had done and what he intended to do, shield himself before a tribunal from the con- sequences of that act? Is it not exactly the same question which you decided yesterday by almost unexampled unanimity in the case of Mr. Perrin and Mr. Selye, the member of Congress, on that same day, a few minutes ear- lier or a few minutes later. They offered in evidence here what he told Mr. Perrin and what he told Mr. Selye ; they complicated it by the fact that Mr. Selye was. a member of Congress ; and the Senate decided by a vote which indicated a very great strength of opin^ ion that that sort of narration could not be put in. Now, is this anymore than narration? It was not to take the advice of Mr. Welles as to what he should do in the future, or upon any question; it was mere information given to Mr. Welles or to the other members of the Cabinet after they had separated in their Cabi- net consultation, and while they were meeting together as any other citizens might meet. It would be as if, after you adjourned here, some question should be attempted to be put in as to the action of the Senate because the Sen- ators had not left the room. Again, I say it was simply a narration, and that narration of his intent and purposes, his thoughts, expecta- tions, and feelings. I do not propose to argue it further until I hear something showing why we are to distin- guish this case from the case of Mr. Perrin, on which you voted yesterday. Mr. Perrin tells you that on the 22d he waited for the Cabinet meeting to break up, and as soon as it broke np he went in with Mr. Selye, and then the President undertook to tell him. You said that was no evidence. Now, when he under- took to tell Mr. Welles is that any more evi- dence? I cannot distinguish the cases, and I desire to hear them distinguished before I attempt an answer to any such distinction. Mr. EVARTS. Mr. Chief Justice and Sen- ators, certainly nothing has yet proceeded from the mouth of this witness which has shown that the act of removal of Mr. Stanton or of appointment of General Thomas had taken place without previous advice from the Cabi- net. However that fact may be, nothing as yet has been said to show it. All that has been proved is that Mr. Welles had not before that heard of the fact that he had been re- moved. That is all as it now stands. I merely correct that impression for the moment. So, too, I wish no misunderstanding as to the situation of the members of the Cabinet toward the President, as being still in their Cabinet meeting with unfinished, unadjourned counsel. I think the honorable Manager is a little in difficulty on that point from having an impression beyond the case as it was left by the witness when he left the stand before the recess, and not attending to the differences made by his answers to my questions since he returned, my desire being to get at the precise fact. Now, then, it stands thus : that at a Cabinet meeting held on Friday, the 21st of February, when the routine business of the different De- partments was over, and when it was in order for the President to communicate to his Cabi- net whatever he desired to lay before' them, the President did communicate this fact of the re- moval of Mr. Stanton and the appointment of General Thomas ad interim, and that there- upon his Cabinet officers inquired as to the posture in which the matter stood, and as to the situation of the office and of the conduct of the retiring officer. Here we get rid of the suggestion that it is a mere communication to a casual visitor which made the staple of the argument yesterday against the introduction of the evidence as to the conversation with Mr. Perrin and Mr. Selye. We now present you the communication made by the President of the United States while this act was in the very process of execution, while it was yet, as we say in law, in fieri, being done. ltbeing in fieri, the President communicates the fact how this public transaction has been performed and is going on, and we are entitled to that as a part of the res gestce in its sense of agovernmental act, with all the benefit that can come from it in any future consideration you are to give to the matter as bearing upon the merits and the guilt or innocence of the Presi- dent in the premises. It bears, as we say, directly upon the question whether there had been any other purpose than the placing of the office in a proper condition for the public ser- vice according to the announcement of the President as his intention when he conversed with General Sherman in the January preced- ing; and it negatives all idea that at the time that General Thomas to Mr. Wilkeson or to the Dakota delegate, Mr. Burleigh, was saying or suggesting anything of force, the President was the author of, or was responsible for, his state- ments. The truth is, it presents the transac- tion as wholly and completely an orderly and peaceful movement of the President of the United States, as in fact it was, and no evidence has been given to thecontrary, of any occurrence disturbing that peaceful order and as the situ- ation in which its completion left the matter in the mind of the President up to that point of time. Mr. CURTIS. Mr. Chief Justice, I desire to add to what my colleague has said a very few observations of a slightly different charac- ter from those which he has addressed to the Senate. We are anxious that this testimony now offered should be distinguished in the apprehension of the Senate, as it is in our own, from an offer of advice, or from the giving of advice by the Cabinet to the President. We do not place our application for the admission of this evidence upon the ground that it is an act of giving advice by his councilors to the President. We place it upon the ground that this was an official act done by the President himself when he made a communication to his councilors concerning this change which he had made in one of their number; that that was strictly and purely an official act of the President, done in a proper manner, the sub- ject-matter of which each of those councilors was interested in in his public capacity, and which it was proper for the President t# make known to them at the earliest moment when he could make such a communication. Now, I wish to say a word in respect to the character of this council, in reply to the re- marks of the honorable Manager concerning the constitutional rights and powers of the President in respect to them. I understand the honorable Manager to have rested his views concerning the constitutional character of those councilors upon what he understands to be Mr. Jefferson's opinions and practice. I wish to bring before the Senate, in this connection, and somewhat in advance of the question which will presently arise respecting advice given by these officers, the practice of this Government concerning such a coun- cil ; and I beg to refer the Senate, in the first place, to a passage from the Federalist. In its commentary upon that provision of the Constitution which enables the President to require the opinion in writing " of the princi- pal officer in each of the Executive Depart- ments upon any subject relating to the duties of their respective offices',' — I read from Daw- son's edition of the Federalist, pages 516-17. Mr. JOHNSON. What is the number ? Mr. CURTIS. Number 73. The author, in the first place, quotes what I have read from the Constitution, and then makes this remark, and passes from the subject as requir- ing no further discussion or examination. "This I consider as a mere redundancy in the plan : as the right for which it provides would result of itself from the office." Mr. JOHNSON. That is by Mr. Hamilton. Mr. CURTIS. That is Mr. Hamilton, Now, in respect to the practice of this Government, and particularly the practice of Mr. Jefferson, in its relations to what bad preceded under other Presidents, I beg leave to refer to Mr. G. T. Curtis' s History of the Constitution, vol- ume 2, page 409, note : "Those who arenotfamiliarwith the precise struc- ture of the American Government will probably bo surprised to learn that what is in practice sometimes calicdthe 'Cabinet' has no constitutional existence as a directory body, or one that can decide anything. The theory of our Government is, that what belongs to the executive power is to bo exercised by the un- controlled will of the President. Acting upon the clause of the Constitution which empowers the Pres- ident to call for the opinions in writing of the heads of Departments, Washington, # the first President, commenced tho practice of taking their opinions in separate consultation; and he also, upon important occasions, assembled them for oral discussion in the form of a council. After having heard the reasons and opinions of each he decided the course to be pursued." And I may mention here in passing that if Senators have the curiosity to look into the history of the period they will find that the latter course was pursued by General Wash- ington, especially toward the close of his first and during his second administrations on very important occasions, one of the most promi- nent of which was the difficulty with the French minister, M. Genet, and the course that was pursued by the Government growing out of those complications. The author proceeds : " The second President, Mr. John Adams, followed substantially the same practice. The third President, Mr. Jefferson, adopted asomewhatdifferent practice. When a question occurred of sufficient magnitude to requiro the opinions of all the heads of Departments he called them together, had the subject discussed, and a vote taken, in which he counted himself but as one. But he always seems to have considered that ho had the power to decide against the opinion of his Cabinet. That ho never or rarely exercised it was owing partly to the unanimity in sentiment that pre- vailed in his Cabinet and to his desire to preserve that unanimity, and partly to his disinclination to the exercise of personal power. When the're were differences of opinion he aimed to produce a unani- mous result by discussion, and almost always suc- ceeded. But he admits that this practice made tho Executive, in fact, a directory." « And then references are given to Mr. Jeffer- son's works in support of this statement. The author does not continue to speak of the sub- sequent practice of the Government, as that, ' no doubt, was considered to be very familiar, his purpose being merely to point out the origin of these two practices ; the one being that the members of the Cabinet were called together and a consultation held, and then, as the result of that consultation, the President decided ; the other practice being that a vote was taken in the Cabinet, the President him- self ordinarily counting as one in that vote, but always understanding that he had the power, if he thought proper to exert it, to de- cide the question independently of the votes of the Cabinet. That, I understand, has con- tinued to be the practice from Mr. Jefferson's time to the present day, and including all the Presidents who have intervened during that period. I have made these remarks because they seem to me to have an application, not merely to the testimony now offered, but to other evi- dence which we shall have occasion to present to the Senate subsequently. They are perti- nent to the question now under consideration, for they go to show that, under the Constitu- tion and laws of the United States, as prac- ticed on by every President, including General Washington and Mr. Adams, Cabinet ministers were assembled by them as a council for the purposes of consultation and decision ; and., of course, when thus assembled, a communication made to them by the President of the United States concerning an important official act which was then in fieri, in process of being executed and not yet completed, is itself an official act of the President, and we submit to the Senate that we have a right to prove it in that character. A reference has been made by the honorable Manager to attempts which have sometimes been made in England by ministers to defend themselves under the orders of the king. Everybody who, understands the British con- stitution knows that that is in the nature of tho Government an absurdity. The king ia not 224 SUPPLEMENT TO responsible ; the ministers are ; and therefore any order which the king gives contrary to law is executed by his ministers on their own re- sponsibility, andnotupon that of the sovereign. In the United States it is wholly otherwise ; the responsibility is on the President ; but among other responsibilities which it involves is the responsibility to seek and weigh and consider the advice which it is proper for him to receive. Mr. Manager BUTLER. Mr. President, I shall not pursue the discussion as to whether advice given by the Cabinet to the President wfluld be competent, because it is agreed by the counsel for the President last up that this was neither to get advice, nor was there any- thing in the nature of advice, i It is said that it is an official act. I had supposed up to this moment — ay, and I sup- pose now — that there is no act that can be called an official act of an officer which is not an act required by some law or some duty im- posed upon that officer. Am I right in my ideas of what is an official act? It is not every volunteer act by an officer that is official. Frequently such acts are officious, not official. An official act, allow me to say, is an act which the law requires, or a duty which is enjoined upon the officer by some law, or some regula- tion, or in some manner as a duty. Will the learned counsel tell the Senate what constitu- tional provision, what statute provision, what practice of the Government requires the Pres- ident at any time to inform his Cabinet or any member of them whatever that he has removed one man and put in another, and that that other man is in office ? If there is any such law it has escaped my attention. I am not aware of it. The .only law that ever has been made on this subject is the law of March 2, 1867, which requires the President to inform one member of his Cabinet, to wit, the Secretary of the Treasury, when* he suspends an officer, and then requires the Secretary of the Treasury to inform tbe accounting officers of the Treasury, . so that that suspended officer shall by no acci- dent get his salary. Up to that time there never was any law requiring any such informa- tion, and that law is a special one for a special purpose ; and, in the case of the suspension of Mr. Stanton, was carried out by the President, he sending to the Secretary privately — spe- cially, I should say, rather than privately — sending to the Secretary specially the fact that there had been such removal, and the Secre- tary, as we have proved by Mr. Creecy, in- formed his subordinates as the act of March 2, 1867,- the tenure of civil office act required. If I am right, Senators, and there is no official duty on the President to inform his Cabinet, whether in session or out of session, whether just as they broke up or after they had got through the routine of business, or at any other time, as to such a proceeding on his part, then I undertake to say it is not an official act ; it is an act required by no law, by no practice, so far as it is in evidence here, and by no duty. Now, then, what is offered ? He had done the act. While the counsel took exception to my stating to the Senate that it was in evidence that this was not a consultion of the Cabinet, that the Cabinet had never consulted upon the removal of Mr. Stanton in the manner and form in which it was done, and that was fairly to be gathered from Mr. Secretary Welles' s testi- mony, yet, I observe that he did not state to the Senate that the Cabinet ever was consulted with upon the question of removing Mr. Stan- ton in manner and form as it was done ; and whenever he or anybody does state it, I have the President's declarations, which I can prove, that it was not so. Therefore, I assume it never will be stated. Now, then, what is offered? Stanton has been removed by the act of the President ; and thereupon, without askingadvice — because that is expressly waived by the learned counsel last addressing ns — not as a matter of advice, the President gives information. Now, how can that information be evidence ? How can he make it evidence ? The information is required by no law, was given for no purpose to carry out any official duty, was the mere narration of what the President chose to narrate at that time. More than that, sir; it is said that this must prove the case of the President ; and the gravity with which it was argued by both counsel shows the importance they place upon it. It is said this must prove the case of the President, be- cause it proves that then he had no idea of using force. I should have no objection to grant that at that moment he had no idea of using force, because he at that time supposed that Mr. Stanton had yielded the office, and there was no occasion to use force. Therefore he had no idea of force at that moment of time, if he told the truth. He says, "Stanton is out and Thomas is in ; and it is all settled." Then he did not mean to use force. But what did he mean to do in case Stanton resisted, as Stanton did resist? That is the question for the Senate. What did he contemplate? What had been in his mind? General Sherman lets it out here that he and the President said somethingabout force. Gen- eral Sherman uses the word "force." Where did he get that idea? Sherman, with great caution, says, "I agree that I do not know that he said anythingfromwhich I got the idea of force; so that I could say what he said, or that he said anything from which I had a right to infer it." But he said something from which Sherman did infer it, and he pnt the word "force" here before you of his own free will and accord. It bore on his mind ; and when the learned Senator [Mr. Howard] asked what force was meant, what did the President say about force, Sherman said — I give the sub- stance now — "I cannot say what he said that would justify me in using the word 'force.' " The record is before you, Senators. You will correct me if 1 am wrong; but I think I am exactly right in substance. That testimony being in, and other testi- mony, how does the President's narration, after he thought Stanton had given up the office peaceably, (when, if I may use a com- mon phrase, he was chuckling over the fact to his Cabinet that he had got possession of the office easier than he expected to do,) form a piece of evidence in this case ? How can it be put in f Senators, you may think this piece of evidence, and perhaps you in some of your decisions have proceeded upon that hypoth- esis — I have no right to know, but I trust with- out offense I may suggest it — you may think that this particular piece of evidence does not weigh much, and that, perhaps, it is best to let it in because it does not weigh much. But the counsel on the other side think it weighs heav- ily, for both of them argue it with great care. I say you may put it upon that ground ; but it lays the foundation for other information, other declarations to the other members of the Cab- inet ; and I do not know where you can stop ; and whenever you attempt to stop you simply involve yourselves, I respectfully submit, in an inconsistency, that- you ruled in what was said to Mr. Welles and refused to rule in what was said to Mr. A or Mr. B thereafter ; for it is impossible, in my judgment, to distinguish the cases. As yet I have not heard any legal distinction between the case of Perrin and the case of Welles, between what was said to Perrin and what was said to Welles. The only distinction is, that one was a Cabinet officer and the other was not; but is that a legal distinction, when they themselves admit that it was not sub- mitted to the Cabinet officer for the purpose of asking advice, or for anv like purpose ? It is a mere piece of information. Nor do they stop there; They then propose to put in what the President thought he would do. That is the offer. Now can that be evidence ? Can you distinguish it from the cause of Perrin yester- day ; I mean by any legal distinction? Mr. EVARTS. Mr. Chief Justice and Sen- ators, I connected thispieceof evidence, which I suppose may rightfully be introduced as a part of .the action of the President, with pre- vious testimony that had been given as to what his expectation was would happen on the part of Mr. Stanton when he should make an order for his removal, as made known to us in the testimony of General Sherman; and I cannot consent to that testimony being either miscon- ceived or misrepresented. That witness said " something was said about force, and then the President said there will be no occasion for that, because Mr. Stanton will retire ;" and in answer to the question of the honorable Sen- ator from Michigan as to what was said abont force the witness assumed to himself that all that was said about force, all that had the idea of force in it, proceeded from himself in the form of his question as to.what would happen in case Mr. Stanton should resist or refuse, and then, not only by an absolute exclusion of the idea that the President used any words of force from his, the President's, mouth, or raised a notion that there might be an oppor- tunity or occasion for force, proceeded tp say, with that precision which marked all his re- flective and deliberate testimony, "The Pres- ident did not convey to my mind any idea that force was to be used." The CHIEF JUSTICE. Senators, the Chief Justice thinks that this evidence is admissible. It has, as he thinks, important relation to the res gesta, the very transaction which forms the basis of several of the articles of impeachment, and he thinks it also entirely proper to be taken into consideration in form- ing an enlightened judgment upon the intent of the President. He will put the question to the Senate if any Senator desires it. Mr. CRAGIN. I ask for the yeas and nays upon it. If it is in order I will ask that the offer to prove made yesterday in the case of the witness Perrin may be read. The yeas and nays were ordered. The CHIEF JUSTICE. No debate is in order. The Secretary will call the roll. Mr. CONNESS. The Senator from New Hampshire calls for the reading of a question. The CHIEF JUSTICE. What question? Mr. CONNESS. The question proposed to be put yesterday to another witness, which was then voted upon. The CHIEF JUSTICE. The Secretary will read the question. The Chief Clerk being unable to find the written offer yesterday submitted, Mr. Manager BUTLER. Here is the Globe. You can read it from that. The Chief Clerk read the offer to prove in the case of the witness E. O. Perrin, yester- day, from the Globe, as follows : "We offer to prove that the President then stated that he had issued an order for the removal of Mr; Stanton and tho employment of General Thomas to perform tho duties ad interim; that thereupon Mr, Perrin said, 'Supposing Mr. Stanton should opposo the order.' Tho President replied, * There is no dan- ger of that, for General Thomas is already in the office.' Ho then added, 'It is only a temporary arrangement: 1 shall send in to the Senate at once a good name for tho office.'" Mr. CONKLING; What was the time referred to in that question ? Mr. SUMNER. What was the vote of the Senate on that? The CHIEF JUSTICE. The Secretary will read the vote of the Senate on that subject. The Secretary. On this question the yeas were 9 and the nays 37. Mr. TRUMBULL. I should like to know how the Senatbr from Massachusetts voted upon it. [Laughter.] The CHIEF J USTICE. The Se6retary will read, in answer to the question, the vote i full. Mr. SHERMAN. I object. All this is in the nature of argument. The CHIEF JUSTICE. The Chief Justice thinks it all out of order ; but lest there might be some misapprehension he did not interpose: Mr. HOWARD. I should like to hear a word further from the counsel for the accused upon the subjects embraced in the questions which I send t made by the President to the Cabinet on the subject of the removal of Mr. Stanton and the appointment of General Thomas, and what passed at that time ? The Witness. As I remarked, after the departmental business had been disposed of, the President remarked, as usual, when he has anything to communicate himself, that before they separated, it would be proper for him to say that he had removed Mr. Stanton and appointed the Adjutant General, Lorenzo Thomas, Secretary ad interim. I asked whether General Thomas was in possession. The President said he was ; that Mr. Stanton required some little time to remove his writ- ings, his papers. I said perhaps, or I asked, "Mr. Stanton, then, acquiesces." He said he did, as he understood it. Question. Was it apart of the President's answer that all he required was time to remove his papers? Answer. The President made that remark when I inquired in relation to possession, that he merely wanted time to remove his papers — some private papers, and matters, I think. Question. Was the time at which this an- nouncement of the President was made in ac- cordance with the ordinary routine of your meetings as to such matters? Answer. It was. The President usually communicates after we have got through. Question. After you have got through of the several departmental affairs ? Answer. Yes, sir; he then states what he has to communicate. Question. Now, sir, one moment to a matter which you spoke of incidentally. You were there the next morning about noon? Answer. I was. Question. Did you then see the appointment of Mr. Ewing? Answer. I did. Question. Was it made out before you came there, or after, or while you were there ? Answer. While I was there. Question. And you then saw it? Answer. I saw it. Mr. JOHNSON. What time of the day was that? The Witness. It was about twelve. The Attorney General was there and said that he must be at the Supreme Court. He had not more than time to get to the court. By Mr. Evarts : Question. Did not the Supreme Court meet at eleven ? Answer. I do not know. He had business which required him to be at the Supreme Court at twelve o'clock, I think. He was there up to that time. Question. Did you become aware of the passage of the civil- tenure act, as it is called, at or about the time that it passed Congress? Answer. I was aware of it. Question. Were you present at any Cabinet meeting at which, after the passage of that act, it became the subject of consideration ? Answer. Yes ; on two occasions. Question. Who were present, and when was the first occasion? Answer. The first occasion when it was brought before the Cabinet was on Friday, I think, the 26th February, 1867. It was at a Cabinet meeting on Friday. Question Who were present? Answer. I think all the Cabinet were. Question. Was Mr. Stanton there ? Answer. Mr. Stanton was there, I think, on that occasion. I might state, perhaps, that the President said he had two bills which he wanted the advice of the Cabinet about. One of them consumed most of the time that day. Mr. Manager BUTLER. The point, Ibelieve, is as to what took place there ? By Mr. Evarts : Question. This civil-tenure act was the sub- ject of consideration there ? Answer. It was submitted. Question. How was it brought to the atten- tion of the Cabinet? Answer. By the President. Question. As a matter of consideration in the Cabinet? Answer. For consultation for the advice and the opinion of the members. Question. How did he submit the matter to your consideration ? Mr. Manager BUTLER. If that involves anything that he said Mr. EVARTS. Yes, it does. Mr. Manager BUTLER. Now, we should like to have, so that we may not discuss this matter in the dark, the offer put in writing ; but we object to anything that took place in the Cabinet consultation, and in order to have this matter brought to a point, we desire to have the offer of proof put in writing. Mr. EVARTS. We will put the whole mat- ter in writing. The offer was reduced to writing and read by the Secretary, as follows : We offer to prove that the President at a meeting of tho Cabinetwhile the bill was before the President for his approval, laid bolbro tho Cabinet the tenure- of-civil-offiee bill for their consideration and advico to the President respecting his approval of the bill; and thereupon tho members .of the Cabinet then pres- ent gave their advice to the President that tho bill was unconstitutional and should be returned to Con- gress with his objections, and that the duty of prepar- ing a message, setting forth tho objections to the con- stitutionality of the bill, was devolved on Mr. Seward and Mr. Stanton; to be followed by proof as to what was done by the President and Cabinet up to the time of sending in the message. Mr. SHERMAN. Does that give the date ? Mr. EVARTS. It gives the date as being the time the bill was before them for consid- eration. Mr. CONKLING. During the ten days succeeding its first passage? Mr. EVARTS. I omitted the precise date because there were two meetings. Mr. JOHNSON. Within the ten days, I suppose ? Mr. EVARTS. Within the time fixed by the Constitution. Mr. Manager BUTLER. I assumed, Mr. President and Senators, for the purpose' of the objection, that the time to which this offer of proof refers itself is during the ten days be- tween the first passage of the bill by the two Houses and the time of its return, with the objections of the President, for redeliberation and reconsideration. Mr. EVARTS. It is so stated. Mr. Manager BUTLER. Upon this ques- tion I only propose to open the debate in ordee that my learned friends may be possessed, so far as I may be able to possess them, of tha grounds of our objection. The question is whether, after a law has been passed, under the due forms of law, the President can show what his opinions were, and the opinions of his Cabinet, before it was passed, as a justification for refusing to obey it and execute it. That is the first proposition. Let me restate it and see if I have made any mistake. It is whether the President can show his opinions and those of his Cabinet as to the constitutionality of a law before the law is passed, in order to justify himself for refusing to obey it and execute it after it is passed. I am not now, in stating this objection, deal- ing with the vehicle of proof, but with the ques- tion whether declarations in the Cabinet can or cannot be a mode of proof. I ventured to say to you, Senators, that heretofore the strug- gle has been, on the trial of impeachments, whether the king's order should sustain the minister ; and I was somewhat sharply re- minded how familiar it was to everybody that the king could do no wrong in the eye of the British constitution, and therefore that, of course, the ministers were responsible. But the question which I brought to your attention was that the struggle in impeachments in former times was whether the king, not being able to do anything wrong, when he gave his express order or advice to the minister, could shield the minister ; and the British Parliament, in the Earl of Danby's case, decided that it could not, for he produced for his justification the order of the king, and that was thought to be a great point. 226 SUPPLEMENT TO Now, the proposition is, we having got a king who is responsible, to see if we cannot have the ministers shield the king. That is the proposition; whether the advice of the Cabinet ministers can shield the Chief; in other words, whether the Constitution has placed these heads of Departments around him as aids or shields. That is the question ; because if that can be done then impeachment is ended in this country for any breach of law, for there will be no President who cannot find Cabinets subservient enough to advise him as he wants to be advised, especially if they are dependent upon his will, and he cannot be restrained by law from removing them. If he has this power, as he said he had, in a message which is ap- pended as one of his exhibits, in which he also says that if Mr. Stanton had told him that he thought that law was constitutional, he would have removed him before it went into effect, then any President can find a Cabinet subser- vient enough to him to give him advice, and if that advice can shield him there is an end Mr. CURTIS. Allow me to interrupt you, Mr. Manager, to understand what you are say- ing. What message do you refer to ? Mr. Manager BUTLER. Lest I should make any mistake, perhaps I had better read it. Mr. C UR'iTS. X only want to know what message you refer to. Mr. Manager BUTLER. I am perfectly willing to read it; if you will spare me a mo- ment, I will give you the page. [Examining the official report.] I do not find it. I am cer- tain, however, it is in one of the messages ; I think in the message of December 12, 1867, you will find the phrase. I refer to one of the messages given in evidence in this case in which (and with the leave of the counsel and the Senate I will take care that the exact quotation appears in my remarks,) he says, in substance, that if Mr. Stanton had informed him that he would not leave upon being asked under this law, he would have taken care to remove him before it went into operation, or words to that effect. I say if that unlimited power can be held by the President, then he can always defend himself by his Cabinet. Let us look at it in the light of another great criminal whom you, sir, may be called upon to try some time or other. I have no doubt he had a Cabinet around him by whose advice he can defend himself for most of the treasons which he committed. I have no doubt at all upon that proposition. Let us take it in another view. I have had gentlemen say to me upon this question "Why, would you not allow a military commander, who should either make a battle or forbear a battle, to show that he called a council of officers and what their advice was to justify him in the case of his refusal to give battle or of his giving battle improvidently." To that I answer that I would do so, but I make a wide distinction: I would not let any general call around him his staff officers, dependent on his breath for their official existence, and allow them to show their opinions as a shield for his acts. I do not, as I said, propose by any means to argue this question. I proposed simply when I rose to open the proposition, and 1 desire to ut in a single authority as a justification why did myself the honor to say that Jefferson thought it the better opinion that the constitu- tional right of the Cabinet was to give opinions in writing, and that is the better constitutional principle. 1 hold in my hand Story's Com- mentaries on the Constitution, second volume, and I read the third note to section fourteen hundred and ninety-four. "Mr. Jefferson has informed us that in Washing- ton's administration for measures of diffieultyaeon- sultation wits hold with the heads of Departments either assembled or talcing their opinions separately in conversation or in writing. In his own adminis- trntion he followed tho practico of assembling the heads of Departments as a Cabinet council; but ho ha-s added that bethinks tho courso of requiring the separato opinion in writing of each head of a De- partment is most strictly within the spirit of the Constitution, for the other does in facttrausform the Executivo into a directory." — 4 Jefferaon's Corre- spondence, 143, 144. I have here, and I only propose to refer to f it, in the third volume of Adams's works, in the appendix, an opinion of Mr. Jefferson fur- nished to General Washington upon the ques- tion of Washington's right to fix the grade of embassadors, the right to appoint being in the Constitution, and whether the Senate had a right to negative that grade so fixed by the President. There is an example of one of the opinions that President Washington re- quired of his Secretary of State as early as April 24, 1790, upon this very question of ap- pointment to office, and we have it now to be seen and read of all men ; whereas if it had not been for this trial we never should have known what the opinion of the Secretary of the Navy was on this great constitutional ques- tion. Before I sit down I will call the attention of the learned counsel [Mr. Curtis] to the mes- sage to which I referred. It will be found on the 46th page of the proceedings of this trial, and the words are : " If any one of these gentlemen had then said to me that he would avail himself of the provisions of that bill in caso it became a law, I should not have hesitated a moment as to his removal." Mr. CURTIS. What message is that ? Mr. Manager BUTLER. Of the 12th of December, 1867, on the suspension of Mr. Stanton. It is in evidence, and will be found on the 46th page of the proceedings. Mr. EVARTS. We understand that the Managers have exhausted their opening argu- ment on this point ? Mr. Manager BUTLER. Yes, sir. Mr. EVARTS. The difference, as we un- derstood, between the honorable Manager's statement of what was contained in the mes- sage and what is really in the message, is that he put it upon the President's statement that if it had been pronounced a constitutional law by Mr. Stanton he would have removed him. The point of the President's statement was that there was a concurrence of all the Secre- taries who were appointed by Mr. Lincoln that they were not within the law ; and if they had taken the opposite ground there would then have been an opportunity for him to have Cab- inet ministers of his own appointment for the law to take effect upon. The question as stated by the honorable Manager is, whether the President can show his opinions and the advice of his Cabinet as to the unconstitutionality of a law as a justifica- tion of his refusal to obey the law. That is the S reposition on which they rest their argument, ow, Mr. Chief Justice and Senators, this in- volves more or less the general merits of this case, as they have, necessarily, perhaps, some- what anticipated by incidental arguments ; but we do not propose to occupy your time with preliminary discussions of what must form a very large and important part of the final con- siderations to be disposed of in this case. It is enough in reference to the question of evi- dence when it is introduced in a trial, that it should be apparent that the premises of con- sideration both of fact and of law in the different views that are to be insisted upon, and in the different views that may be maintained by the court within those premises, permit the intro- duetionof evidence authentic in itself and trust- worthy, to be used and applied according to the final theory of law and fact as the court shall adopt it. Now, the proposition in this matter on the part of the Managers may be stated briefly thus, as it has often been repeated, that in regard to the civil tenure act, it what was done by the President, on the 21st of February, 1868, in the wriiing out and delivery of these two orders, one upon Mr. Stanton to surrender, and one to General Thomas to take charge of the surrendered office, if those two papers make a consummate crime, then the law imports an intent to do the thing done, and so to commit the crime, and that all else is inapplicable legally within the purview of an impeachment and its trial as much as it might or would be upon a question of a formal infraction of a statute under an indictment punishable by fine. That is one view. It will be for you to determ- ine hereafter whether a violation of a statute, however complete, is necessarily a high crime and misdemeanor within the meaning of the Constitution for which this remedy of impeach- ment must be sought, and must carry its pun- ishments. So, too, it is not to he forgotten that in the matter of defense the bearing of all the cir- cumstances of intent and of deliberation and inquiry and pursuit of duty on the part of a great official to arrive at and determine what is his official duty, under an apparent conflict between the Constitution and the law, forms a part of the general issue of impeachment and defense. Our answer, undoubtedly, does set forth and claim that whatever we have done in the premises has been done upon the President's judgment of his duty under the Constitution of the United States, and after that deliberate and responsible, upright and sincere effort to get all the aid and light on the subject of his duty that was accessible within his powers. One of this most important, oue always recognized as among the most import- ant of the aids and guides, supports, and de- fenses which the Chief Magistrate of the coun- try is to have in the opinion of the people at large, in the opinion of the two Houses of Congress, in the opinion even of judicial con- sideration, when a case shall properly come before a court, of whether he has pursued his duty or attempted to pursue his duty, is the view that these chief officers of the Govern- ment (under his constitutional right to call upon them for their opinions, and under the practice of this Government to convene them in council for the purpose of arriving at those opinions) have given him in regard to the pro- posed matter of conduct and duty. And this matter of evidence here touches that part of the case, and is to supply that por- tion of the evidence of what care, what delib- eration, what advice attended the steps of the President as he proceeded in the stress in which he was placed of the obligation of the Constitution in respect to an act of Congress which had received the constitutional major- ities of the two Houses in the very matter in which he was called upon to proceed, not by a voluntary case assumed by him, but in a matter pressing upon his duty as President in regard to the conduct of one of the chief Departments of the Government. That is the range of the issue, and that is the application of this evidence. That it bears upon the issue, and is authentic testimony within the range of the President's right and duty to aid and support himself in the per- formance of his office cannot be doubted. But it is said that this involves matter of grave constitutional difficulty, and that if this kind of evidence is to be adduced that will be the end of all impeachment trials, for it will be equivalent to the authority claimed under the British Constitution, but denied, that the king's order shouldshield the minister. When- ever any such pretension as that is set forth here, that the order of the Cabinet in council for any act of the President is to shield him from his amenability under the Constitution for trial and judgment upon his act before this constitutional tribunal, it will be time enough to insist upon the argument, or to attempt an answer. But it is produced here as being a part of the conduct of the President, the whole of whose conduct, as it shall be displayed before you in evidence, is to furnish the basis in fact for your judgment and sentence concerning it under the view of the Constitution and the law. Nor is there any fear that any such privilege, or any such right, as we call it, should inter- fere with the due power of this tribunal and the proper responsibility of all great officers of the Government to it. On the questions that, as we suppose, makeup the sum and cata- logue of crimes against the State within the general proposition of impeachable offenses, it is impossible that matters of this kind should come in to play. On treason or bribery or THE CONGRESSIONAL GLOBE. 227 offensesinvolvingturpitude, and sinningagainst the public welfare, no such matters can prop- erly ever come in play. Of course, in some matters of conduct of foreign affairs, if our Constitution permitted the implication of doubt- ful conduct as within the range of treason, which it does not, it might be supposed that the constitutional advisers might by their opin- ions support the President in his conduct, if that was made the subject of accusation. But here it will be perceived that the very matter that is in controversy must be regarded by the court in determining whether this spe- cies of evidence is applicable ; and in determ- ining its applicability I need not repeat before so learned a court that the question of its weight and force is not to be anticipated. Mr. CONNESS. I move that the Senate sitting as a court now adjourn. [" No, no."] I will say that I make this motion at request, because this question will be argued at length, and it is now late. The motion was agreed to— ayes thirty, noes hot counted ; and the Senate sitting for the trial of the impeachment adjourned until to- morrow at eleven o'clock. Saturday, April 18, 1868. The Chief Justice of the United States took the chair at eleven o'clock a. m. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives and the counsel for the respondent, except Mr. Stan- bery, appeared and took the seats assigned them respectively. The members of the House of Representa- tives, as in Committee of the Whole, preceded by Mr. E. B. Washburne, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were conducted to the seats provided for them. The CHIEF J CJST1CE. The Secretary wil'l read the Journal of yesterday's proceedings. Mr. STEWART. I move to dispense with the reading of the Journal. Mr. DRAKE. I object. The CHIEF JUSTICE. The Senator from Missouri objects. The Secretary will proceed with the reading. The Chief Clerk read the Journal of yester- day's proceedings of the Senate sitting for the trial of the impeachment. The CHIEF JUSTICE. At the adjourn- ment yesterday the Senate had under consid- eration an offer to prove on the part of the counsel for the President. The offer will now be read. The Secretary read as follows: We offer to provo that the President at a meet- ing of the Cabinet, while the bill was before the President for his approval, laid beforo the Cabinet the tenure of civil office bill fur their consideration and advice to the President respecting his approyal of the bill; and thereupon the members of tho Cabi- net then present gave their advice to the President that the bill was unconstitutional and should be returned to Congress with his objections, and that tho duty of preparing a message, setting forth the objections to tho constitutionality of the bill, was devolved on Mr. Seward and Mr. Stanton, to be fol- lorwed by proof as to what wasdoneby the President andCabinet up to the timeof sending in themessage. The CHIEF JUSTICE. Do the honorable Managers desire to be heard further? . Mr. Mauager WILSON. Yes, sir. Mr. JOHNSON. Mr. Chief Justice, I wish to p.ut a question to the counsel for the Presi- dent. The question was sent to the desk and read, as follows: Do tho counsel understand that the Managers deny the statement made by tho President in his message of December 12, 1867, in evidence as given by the Managers at page 45 of the officii report of the trial', that the members of the Cabinet gave him the opin- ion there stated as to tho tenur^-of-office act; and is the evidence offered to corroborate that statement^ or for what other object is it offered ? Mr. HOWARD. I have a query to propound to the counsel, also. Mr. CtTRTIS. Mr. Secretary, will you send me that question, please? The question of Mr. Johnson was sent to the counsel. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Michigan. The Chief Clerk read as follows : Do the counsel for tho accused not consider that the validity of tho tenure-of-oflice bill was purely a question of law, to bodetermined on this trial by the Senate; and if so, do they claim that the opinion of Cabinet officers_touching that question is competent evidence by which tho judgmen-tof the Senato ought to be influenced? Mr. EDMUNDS, (after a pause.) I inquire of the Chair whether the argument on the part of the Managers cannot proceed while the gen- tlemen for the defense are considering their answers to these questions, which may take some time? The CHIEF JUSTICE. The Chief J ustice thinks that the argument on the part of the honorable Managers may proceed, and that the counsel can . reply to these questions in their argument. That course will be taken if there be no objection, Mr. C QRTIS. That is the course we should prefer, Mr. Chief Justice. We will reply to the question of the honorable Senator from Maryland, and also to that of the honorable Senator from Michigan in the course of the remarks which we desire to address to the Senate. Mr. Manager WILSON. Mr. Presidentand Senators, as the pending objection confronts one of the most important questions involved in this case, I wish to present the views of the Managers respecting it with such care and ex- actness as I may be able to command. The respondent now offers to prove, doubt- less as a foundation for other Cabinet action of more recent date, that he was advised by the members of his Cabinet that the act of Congress upon which rest several of the articles to which he has made answer, to wit: "An act regulating the tenure of certain civil offices," passed March 2, 1807, was and is unconstitu- tional, and therefore void. That he was so ad- vised he has alleged in his answer. Whether he was so advised or not we hold to be imma- terial to this case, and irrelevant to the issue joined. The House of Representatives were not to be entrapped, in the preparation of their replication, by any such cunning devise, nor by the kindred one, whereby the respondent affirms that he was not bound to execute said act be- cause he believed it to be unconstitutional. The replication says that the House of Repre- sentatives — " Do deny each and every averment in said several answers, or either of them, which denies or traverses the acts, intents, crimes, or misdemeanors charged against said Andrew Johnson in the said articles of impeachment, or either of them ; and for replica- tion to said answer do say that said Andrew John- son, President of the United States, is guilty of tho high crimes and misdemeanors mentioned in said arti- cles," &c. There is no acceptance here of the issue tendered by the respondent, and in support of which he offers the immaterial, incompetent, and irrelevant testimony to which we object. The advice which he may have received, and the belief which he may have formed touching the constitutionality of said act, cannot be allowed to shield him from the consequences of his criminal acts. Nor can his mistaken view of the Constitution relative to his right to require the opinions of the heads of the sev- eral Executive Departments upon certain ques- tions aid his efforts to escape from the just demands of violated law. In his answer to the first article he alleges : " This respondent had, in pursuance of the Con- stitution, required the opinion of each principal offi- cer of the Executive Departments upon this question of constitutional executive power anclduty, and had been advised by each of them, including the said Stanton, Secretary for th'o Department of War, that, under the Constitution of the United States, this power [of removal] was lodged by the Constitution in tho President of tho United States, and that, con- sequently, it could bo lawfully exercised by him, and the Congress could not deprive him thereof/' The respondent found no provision in the Constitution authorizing him to pursue any i such course. The Constitution says the Pres- ident — " May requiro the opinion, in writing, of the prin» cipal officer in each of the Executive Departments upon any subject relating to the duties of their re- spective oflices." — Article 2, section 2. Not of his office, not of the legislative de- partment, nor of the judicial department. But when did he require the opinions and re- ceive the advice under cover of which he now seeks to escape? His answer informs us that this all transpired- prior to his veto of the bill ''regulating the tenure of certain civil offi- cers.'' Upon those unwritten opinions and that advice he based his veto of said bill and fashioned the character of his message. He communicated his objections to Congress, they were overruled by both Houses, and the bill was enacted into a law in manner and form as prescribed by the Constitution. He does not say that since the . final passage of the act he has been further advised by the principal offi- cer of each of the Executive Departments that he is not bound to enforce it. And if he had done so he would have achieved a result of no possible benefit to himself, but dangerous to his advisers, for it will be borne in mind that the articles charge that he ■' did unlawfully conspire with one Lorenzo Thomas, and with other persons to the House of Representatives unknown." He might have disclosed that these unknown persons, were the members of his Cabinet. This disclosure might have placed them in jeopardy without diminishing the peril which attends upon his own predicament. It is not difficult to see that the line of de- fense to which we have directed the present objection involves the great question of this case. It tends to matters more weighty than a mere resolution of the technical offenses which float on the surface of this prosecution. Whoever attempts to measure the magnitude of the case by the comparatively insignifi- cant acts which constitute the technical crimes and misdemeanors with which the respondent stands charged, will attain a result far short of its true character, and be rewarded with a most beggarly appreciation of the immensity of its real proportions. Far above and below and beyond these mere technical offenses, grave as they undoubtedly are, the great question which you are to settle is to be found. It envelops the whole case and everything pertaining thereto. It is the great circle which bounds the sphere composed of the multitude of questions and issues presented for your determination. The respondent is arraigned for a violation of and a refusal to execute the law. He offers to prove that his Cabinet advised him that a cer- tain bill presented for his approval was in vio lation of the Constitution; that he accepted their advice and vetoed the bill ; and upon that, and such additional advice as they may- have given him, claims the right to resist and defy the provisions of the bill, notwithstanding its enactment into a law by two thirds of both Houses over his objections. In other words, he claims, substantially, that he may determine for himself what laws he will obey and execute, and what laws he will disregard and refuse to enforce. In support oTthis claim he offers the testimony which, for the time being, is ex- eluded by the objection now under discussion. H I am correct in this, then I was not mis- taken when I asserted that this objection con- fronts one of the most important questions involved in this case. It may be said that this testimony is offered merely to disprove the intent alleged and charged in the articles ; but it goes beyond this and reaches the main ques tion, as will clearly appear to the mind of any- one who will read with care the answer to the first article. The testimony is improper fur any purpose and in every view of the ease. The Constitution of the United States (arti- cle two, section one) provides that — "The executive power shallbo vested in aPresident of the United States of America." The -person at present exercising the func- tions of the executive office is the respondent who stands at your bar to-day, charged -tfith 228 SUPPLEMENT TO the commission of high crimes and misde- meanors in office. Before he entered upon the discharge of the duties devolved on him as president he took and subscribed the consti- tutionally prescribed oath of office, in words as follows: " I do solemnly swear that I will faithfully execute tho office of President of the United States, and will (o the best of my ability preserve, protect, and defend the Constitution of the United States." _ This oath covers every part of the Constitu- tion, imposes the duty of observing every sec- tion and clause thereof, and includes the dis- tribution of powers therein made. The powers embraced and distributed are legislative, ex- ecutive, and judicial. Of the first the Consti- tution declares that — "All legislative powers herein granted shall ha vested in a Congress ef the United States, which shall consist of a Senate and House of Representatives. " — Article 1, section 1. This encircles the entire range of legislative action. The will of the legislative department is made known by the terms of the bills which it may pass. Of these expressions of the legis- lative will the Constitution says : " Every bill which shall have passed the House of Representatives and the Senate, shall, before it be- come a law, be presented to the President of the United States, and if he approve he shall sign it, but if not he shali return it with his objections to that House in which it sha.ll have originated, who shall enter the objections at large on their Journal, and proceed to reconsider it. If, after such reconsider- ation, two thirds of that House shall agree to pass the bill it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and, if approved by two thirds of that House, it shall become a law." — Article 1, section 7. Thus laws are made. But laws cannot ex- ecute themselves. However wise, just, neces- sary they may be, they are lifeless declarations of the legislative will, until clothed with the power of action by other Departments of the Government. The builders of our Constitution understood with great exactness the philosophy of gov- ernment, and provided for every contingency. They knew that laws to be effective must be executed ; that the best and purest law could not perform its proper office in the absence of executive power ; therefore they created that power and vested it in a President of the United States. To insure a due execution of the power, they imposed the duty of taking and subscribing the oath above quoted on every person elected to the presidential office, and de- clared that he should comply with the condition " before he enter on the execution of his office. ' ' Chief among the executive duties imposed by the Constitution and secured by the oath is the one contained in the injunction that the President ' ' shall take care that the laws be faith- fully executed. ' ' (Article 2, section 3. ) What laws? Those which may have been passed by the legislative department in manner and form as declared by that section of the Constitution heretofore recited. The President is clothed with no discretion in this regard. Whatever is declared by the legislative power to be the law the President is bound to execute. By his power to veto a bill passed by both Houses of Congress he may challenge the legislative will, but if he be overruled by the two-third voice of the Houses he must respect the de- cision and execute the law which that consti- tutional voice has spoken into existence. If this be not true, then the executive power is superior to the legislative power. If the exec- utive will may declare what is and what is not law, why was a legislative department established at all ? Why impose on the Pres- ident the constitutional obligation to ''take care that the laws be faithfully executed," if he may determine what acts are and what are not laws ? It is absurd to say that he has any discretion in this regard. He must execute the law. "The great object of tho executive department is to accomplish this purpose; and without it, be the form of governmentwhatcver it may, it willbe utterly worthless for offense or defense ; for tho redress of grievances or the protection of rights; forthehappi- ness or good order or safety of the people."— Story oh the Constitution, vol. 2, p. 419. De Tocqueville, in his work on Democracy in America, in opening the chapter on executive power, very truly remarks that — "The American legislators undertook a difficult task in attempting to create an executive power dependent on the majority of tho people, and never- theless sufficiently strong to act without restraint in its own sphere. It was indispensable to tho main- tenance of the republican form of government that the representative of tho executive power should be subject to the will of tho nation."— Volume 1, p. 128. The task was a difficult one, but the great minds from which our Constitution sprung were equal to its severest demands. They cre- ated an executive power strong enough to exe- cute the will of the nation, and yet sufficiently weak to be controlled by that will. They knew that "power will intoxicate the best of hearts, as wine the strongest heads," and therefore they surrounded the executive agent with such proper restraints and limitations as would con- fine him to the boundaries prescribed by the national will or crush him by its power if he stepped beyond. The plan adopted was most perfect. It created the executive power; pro- vided for the selection of the person to be intrusted with its exercise ; determined the restraints and limitations which should rest upon, guide, and control it and him, and, out of abundant caution, decreed that — "ThePresident" * * * * "of the Uni- ted States shall be removed from office on impeach- mentfor,and conviction of, treason, bribery, or other high crimes and misdemeanors." — Article &, section i. It is preposterous for the respondent to at- tempt to defend himself against the corrective power of this grand remedy by interposing the opinious or advice of the principal officers of the Executive Departments, either as to the body of his offense or the intent with which he committed it. His highest duty is to "take care that the laws be faithfully executed;" and if he fail in this particular he must fail in all, and anarchy will usurp the throne of order. The laws are but expressions of the national will, which can be made known only through the enactments of the legislative department of the Government. A criminal failure to execute that will (aud every willful failure, no matter what its inducement may be, is crim- inal) may justly call into action the remedial power of impeachment. This power is, by the express terms of the Constitution, confided to one branch of the legislative department, in these words : "The House of Representatives" » * * * "shall have the sole power of impeachment." — Arti- cle 1, section 2. This lodgment of the most delicate power known to the Constitution is most wise and proper, because of the frequency with which those who may exercise it are called to account for their conduct at the bar of the people, and this is the check balanoed against a possible abuse of the power, and it has been most effectual. But the wisdom which fashioned our Constitution did not stop here. It next declared that : "The Senate shall have the sole power to try all impeachments." — Article 1, section 3. In the theory of our Constitution the Sen- ate represents the States, and its members being removed from direct accountability to the people are supposed to be beyond the reach of those excitements and passions which so frequently change the political complexion of the House of Representatives ; and this is the more immediate cheek provided to balance the possible hasty action of the Representa- tives. Wise, considerate, and safe to the per- fect work of demonstration is this admirable adjustment of the powers with which we are now dealing. The executive power was cre- ated to enforce the will of the nation ; the will of the nation appears in its laws ; the two Houses of Congress are intrusted with the power to enact laws, the objections of the Ex- ecutive to the contrary notwithstanding ; laws thus enacted, as well as those which receive the executive sanction, are the voice of the people. If the person clothed for the time being with the executive power — the only power which can give effect to the people's will — refuses or neglects to enforce the legis- lative decrees of the nation, or willfully violates the same, what constituent elements of govern- mental power could be more properly charged with the right to present and the means to try and remove the contumacious Executive than those intrusted with the power to enact the laws of the people, guided by the checks and balances to which I have directed the attention of the Senate? What other constituent parts of the Government could so well understand and adjudge of a perverse and criminal refusal to obey, or a willful declination to execute, the national will, than those joining in its expres- sion ? There can be but one answer to these questions. The provisions of the Constitution, are wise and just beyond the power of dispu- tation in leaving the entire subject of the responsibility of the Executive to faithfully execute his office and enforce the laws to the charge, trial, and judgment of the two several branches of the legislative department, re- gardless of the opinions of Cabinet officers or of the decisions of the judicial department. The respondent has placed himself within this power of impeachment by trampling on the con- stitutional duty of the Executive and violating the penal laws of the land. I readily admit that the Constitution of the United States is, in almost every respect, dif- ferent from the constitution of Great Britain. The latter is, to a great extent, unwritten, and is, in all regards, subject to such changes as Parliament may enact. An act of Parliament may change the constitution of England. In this country the rule is different. The Con- gress may enact no law in conflict with the Constitution. The enactments of Parliament become a part of the British constitution. The will of Parliament is supreme. The will of Congress is subordinate to the written Consti- tution of the United States, but not to be judged of by the executive department. But the theories upon which the two constitutions rest at the present time are almost identical. In both the executive is made subordinate to the legislative power. The Commons of Eng- land tolerate no encroachments on their powers from any other estate of the realm. The Par- liament is the supreme power of the kingdom, in spite of the doctrine that " the king can do no wrong," and in spite of the assertion that the exercise of the sovereignty rests in the several estates. The kindred character of the theories per- meating the two constitutions may be illus- trated by certain parliamentary and ministerial action connected with the American Revolu- tion, and which will well serve the purposes of my argument. On the 27th day of February, 1782, General Conway moved in the House of Commons the following resolution : "That it is the opinion of this House, that the far- ther prosecution of offensive war on the continent of North America, for tho purpose of reducing the revolted Colonies to obedience by force, will be the means of weakening tho efforts of this country against her European enemies, dangerously to increase the mutual enmity, so fatai to the interests both of Great Britain and America; and by preventing a happy reconciliation with that country, to frustrate the earnest de?iro graciously expressed by his majesty to restore thoblessingofpublic tranquillity."— Hansard. volume 22, p. 1071. , The Commons riassed the resolution. The ministry did not seem to catch its true spirit, and, therefore, on March the 4th next follow- ing, General Conway moved another resolution in these more express and emphatic terms, to wit: " That after the solemn deolaration of tho opinion of this House in their humble address presented to his majesty on Friday last, and his majesty's assur- ance of his gracious intention, in pursuance of their advico, to take such measures as shall appear to his majesty to be, most conducive to tho restoration of harmony betweon Great Britain and the revolted Colonies, so essential to the prosperity of both, this Houso will consider- as enemies to his majesty and this country all those who shall endeavor to frus- trate his wnj csty 's paternal oare for tho ease and hap- pmess of his people, by advising or by any means at- tempting the further prosecution of offensive war on the continent of Nofth'Amciica, for the purpose of reducing tho revolted Colonics toiobedienoe by force." — Ibid., p. 1089. This resolution led to an animated debate. The temper of the Commons was equal to the THE CONGRESSIONAL GLOBE. 229 directness of the resolution. The ministry saw this arid understood exactly its meaning. They were disposed to avoid the implied censure, and attempted to show, by expressions of a de- termination to observe and respect the opinion of the House as declared in the first resolution, that no necessity existed for the adoption of the second. To effectuate this end Lord North, the Premier, in the course of his remarks, said: "The majority of that Househad resolved that peace should be made with America ; and the answer given from tho throne was so satisfactory that the House 'had just concurred in a motion to return thanks to ■his majesty for making it; where, therefore, could be the ground for coming to a resolution which seemed to doubt the propriety or sincerity of that answer? He was not of the disposition of tliosowho complained of imajorities in that House, who con- demned them, and by factious and seditious misrep- resentations, held them out to the public-inthe most odious colors ; a majority of that House was, in par- liamentary language, theHouseitself: it couldnfiver make him change a single opinion, yet he bowed to that opinion which was sanctioned by the majority ; though he might riot be a convert to such opinion, still he hold it to be his indispensable duty to obey it, and never once to lose sight of it, in the advice which, as the servant of the crown, he should have 'occasion to give his sovereign. It was the tight of that House to command : it was the duty of a minis- ter to obey its resolutions; Parliament had already expressed its desires or its orders; and as it was scarcely possible that a minister should be found hardy, during, infamous enough to advise his sover- eign to differ in opinion from his Parliament, so he ootild not think the present motion, which must sup- pose the existence Of such a minister, could be at all necessary."— Ibid., p. 1090. And again he said : " To the policy of that resolution he could not sub- scribe, but as Parliament had thought proper to pass it, and as ministers were bound toobey the orders of Parliament, so he should make that resolution the standardof his future conduct." — Ibid., p. 1107. These protestations of Lord North did not arrest the' action of the Commons. The reso- lution passed, and peace followed. It Will be observed that these proceedings on the part of the Commons trenched on ground covered by the prerogatives of the Crown, and affected to some extent the powers of declar- ing War, making peace, and entering into treaties. Still the ministry bowed in obedience to the command of the House, and declared that— "It was scarcely possible that a minister should be found hardy, daring, infamous enough to advise his sovereign to differ in opinion from his Parliament." This grand action of the Commons and its results disclosed the sublimest feature of the British constitution. It was made to appear how thoroughly, under that constitution, the executive power was dependent on the legis- lative will of the nation. The doctrine that "the king can do no wrong," while it pro- tected his person, was resolved into an almost perfect subordination of the ministers, through whom the powers of the Crown are exerted, to the acts and resolutions of the Parliament, until at last the roar of the lion of England is no more than the voice of the Commons of the realm. So completely had this principle asserted itself in the British constitution that the veto power had passed into disuse for nearly a century, and it has not been exercised since. The last instance of its use was in April, 1696, when William III refused the royal assent to a "bill to regulate elections of members to serve in Parliament." (Hansard, vol. 5, p. 993.) The men who formed our Constitution in 1787 were not untaught of these faets in Eng- lish history ; and they fashioned our Govern- ment on the plan of the subordination of the executive power to the written law of the land. They did not deny the veto power to the Pres- ident ; but they did declare that it should be Subject to a legislative limitation, under the operation of which it might, in any given case, be overruled by the Congress, and when this happens, and the vetoed bill becomes a law, the President must yield the convictions of his own judgment, as an individual, to the demands of the higher duty of the officer, and execute the law. His oath binds him to this, and he can- not pursue any other course of action without endangering the public weal. The Constitution regards him in a double capacity — as citizen and public officer. In the first it leaves him to the same accountability to the law in its ordi- nary processes as would attach to and apply in case he were a mere civilian or the humblest citizen ; while in the latter it subjects him to the power of the House of Representatives to impeach, and that of the Senate to remove him from office, if he be guilty of "treason, bribery, or other high crimes and misdemeanors." If the citizen disobeys the law, and be convicted thereof, he may be relieved by pardon ; but the officer who brings upon himself a conviction on impeachment cannot receive the executive clemency. For while it is provided that the President "shall have power to grant reprieves and pardons for offenses against the United States," it is also expressly declared that this power shall not extend to " cases of impeach- ment. ' ' (Article 2, section 2. ) The same per- son, if he be a civil officer, may be indicted for a violation of law and impeached foi* the same act. If convicted in both cases he may be par- doned in the former, but in the latter he is beyond tlfe reach of forgiveness. The relief provided for the disobedient citizen is denied to the offending officer. I have already observed that the Constitu- tion of the United States distributes the powers of the Government among three departments. First in the order of constitutional arrange- ment is the legislative department ; and this, doubtless, because the law-making power is the supreme power of the land through which the will of the nation is expressed. The legis- lative power, in other words, the law-making power, is "vested in a Congress of the United States." The acts of Congress constitute the municipal law of the Republic. "Municipal law is a rule of action prescribed by the supreme power of a State, commanding what is right and prohibiting what is wrong." — 1 Blackstone, p. 44. The supreme power of a State is that which is highest in authority, and therefore it was proper that the Constitution should name first the legislative department in the distribution of powers, as through it alone the State can speak. Its voice is the law, the rule of action to be respected and obeyed by every person subject to its direction or amenable to its re- quirements. Next in the order of its distribution of pow- ers the Constitution names the executive de- partment. This is proper and logical ; for the will — the law — of the nation cannot act except through agents or instrumentalities charged with its execution. The Congress can enact a law, but it cannot execute it. It can express the will of the nation, but some other agencies are required to give it effect. The Constitution resolves these agencies and instrumentalities into an executive department. At the head of this department, charged imperatively with the due execution of its great powers, appears the President of the United States, duly en- joined to "take care that the laws be faithfully executed." If the law which he is to execute does not invest him with discretionary power, he has no election — he must execute the will of the nation as expressed by Congress. In no case can he indulge in the uncertainties and irresponsibilities of an official discretion unless it be conceded to him by express enactment. In all other cases he must follow and enforce the legislative will. "The office of executing a law excludes the right to judge of it ;" and as the Constitution charges the President with the execution of the laws, it thereby "declares what is his duty, and gives him no power be- yond." (Rawle on the Constitution, p. 134.) Undoubtedly he possesses the right to recom- mend the enactment and to advise the repeal of laws. He may also, as I have before re- marked, obstruct the passage of laws by inter- posing his veto. Beyond these means of chang- ing, directing, or obstructing the national will he may not go. When the law-making power has resolved, his "opposition must be at an end. That resolution is a law, and resistance to it punishable." (Federalist, No. 70.) The judgment of the individual intrusted, for the tinre being, with the executive power of the Republic may reject as utterly erroneous the conclusions arrived at by those invested with the legislative power ; but the officer must submit and execute the law. He has no dis- cretion in the premises except such as the par- ticular statute confers on him ; and even this he must exercise in obedience to the rules which the act provides. A high officer of the Government once gave to a President of the United States an opinion relative to this doc- trine in these words: " To the Chief Executlvo Magistrate of the Union is confided the solemn duty of seeing the laws faith- fully executed. That ho may be able to meet this duty with a power equal to its performance he nom- inates his own subordinates and removes them at his pleasure." This opinion was given prior to the passage of the act of March 2, 1867, which requires the concurrence of the Senate in removals from office, which, while denying to the Pres- dent the power of absolute removal, concedes to him the power to suspend officers and to supply their places temporarily. " For the same reason the land and naval forces are under his orders as their Commander-in-Chief; but his power is to bo used only in the manner pre- scribed by the legislative department. He cannof accomplish a legal purpose by illegal means, or break the laws himself to prevent them from being violated by others. " The acts of Congress sometimes give the Presi- dent a broad discretion in the use of the means by which they are to be executed, and sometimes limit his power so that he can exercise it only in a certain prescribed manner. Where the law directs a thing to be done, without saying how, that implies tho power to use such means as may be necessary and proper to accomplish the end of the Legislature. But where the mode of performing a duty is pointed out by statute, that is the exclusive mode, and no othor can be followed. The United States have-no. common law to fall back upon when the written law is defect- ive. If, therefore, an act of Congress declares that a certain thing shall be done by a particular officer, it cannot be done by a different officer. The agency which the law furnishes for its own execution must bo used to the exclusion of all others." — Opinion of Attorney General Black, Nov. 20, 1860. This is a very clear statement of the doctrine which I have been endeavoring to enforce, and on which the particular branch of this case now commanding our attention rests. If we drift away from it we unsettle the very founda- tions of the Government, and endanger its sta- bility to u, degree which may well alarm the most hopeful minds and appal the most cour- ageous. A departure from this view of the character of the executive power, and from the natureof the duty and obligation restingupon the officer charged therewith, would surround this nation with perils of most fearful proportions. Such a departure would not only justify the re- spondent in his refusal to obey and execute the law, but also approve his usurpation of the judi- cial power when he resolved that he would not observe the legislative will, because, in his judg- ment, it did not conform to the provisions of the Constitution of the United States touching the subjects embraced in the articles of im- peachment on which he is now being tried at your bar. Concede this to him, and when and where may we look for the end? To what result shall we arrive ? Will it not naturally and inevitably lead to a consolidation of the several powers of the Government in the execu- tive department? And would this be the end? Would it not rather be but the beginning? If the President may defy and usurp the powers of the legislative and judicial departments of the Government, as his caprices or the advice of his Cabinet may incline him, why may not his subordinates, each for himself, and touch- ing his own sphere Of action, determine how far the directions of his superior accord with the Constitution of the United States, and reject and refuse to obey all that come short of the standard erected by his judgment? It was remarked by the Supreme Court of the United States in the case of Martin vs. Mott (12 Wheaton, 19) that— " If asuperior officer has aright to contest the orders of the President, upon his own doubts as to the exi- gency [referred to by the statute] having arisen it must be 'equally the right of every inferior and soldier; and any act done by any person in furtherance of such orders would subject him to responsibility in a civil suit, in which'his defense must finally rest upon his ability to establish the facts by competent proofs 230 SUPPLEMENT TO Sucli a course would bo subversive of all discipline, and exposo the best disposed officers to the chances pt ruinous litigation." * * * * "Thepower itself is confined to the Executive of the Union, to him who is, by the Constitution, tho commander of tbc militia, when called into the actual service of the United States; whose duty it is 'to take care that the laws bo faithfully oxecuted.'and whose responsi- bility for an honest discharge of his official obliga- tions is secured by the highest sanction. He isneces- sarily constituted the judge of the existence of the exigency in the first instance, and is bound to call iorth the militia; his orders for this purpose aro in ^tnct conformity with the provisions of tlie law, and it would seem to follow, as a necessary consequence, that every act done by_ a subordinate officer, in obe- dicnco to such orders. is equally justifiable. Tho law contemplates that, under such circumstances, orders will be given to carry tho power into effect; and it cannot, therefore, be a correct inference that any other person has a just right to disobey them." Apply the principles here enunciated to the case at bar, and they become its perfect sup- ports. If the President has a right to contest and refuse to obey the laws enacted by Con- gress, bis subordinates may exercise the same right and refuse to obey his orders. If he may exercise it in one case, they may assert it in any other. If he may challenge the laws of Con- gress, they may question the orders of the Presi- dent. It is his duty to enforce the laws of the nation, and it is their duty to obey his orders. If he maybe allowed to defy the legislative will, they may be allowed to disregard the executive order. This begets confusion ; and the affairs of the public are made the sport of the contend- ing factions and conflicting agents. No such power belongs to either. To Congress is given the power to enact laws, and while they remain on the statute-book it is the constitutional duty of the President to see to their faithful execu- tion. This duty rests upon all of his subordi- nates. Its observance by all, the President included, makes the executive department, though it be acting through ten thousand agents, a unit. Unity produces harmony, harmony effects directness of action, and this secures a due execution of the laws. But if the Presi- dent may disregard the law because he has been advised by his Cabinet and believes that the Congress violated the Constitution in its enact- ment, and his subordinates may, following his example, disobey his orders and directions, the object and end of an executive unity is defeated, anarchy succeeds order, force, irresponsible and vicious, supplants law, and ruin envelops the Republic and its institutions. If the views which I have imperfectly presented are correct, and such I believe them to be, the testimony to which we object must be excluded from your consideration, and thus will be determined one of the most important questions encircled by this case. If I have been able to arrest your attention, and to center it upon the question which I have imperfectly discussed, the time occupied by me will not be without profit to the nation. I have endeavored to show that theroyal fiction which asserts that "the king can do no wrong" can- not be applied to the President of the United States in such manner as to shield him from the just condemnation of violated law. The king's crimes may be expiated by the vicarious atonement of his ministers; but the President is held personally amenable to the impeaching power of the House of Representatives. Con- cede to the President immunity through the advice of his Cabinet officers, and you reverse by your decision the theory of our Constitu- tion. Let those who will, assume this respon- sibility. I leave it to the decision of the Senate. Mr. CURTIS. Mr. Chief Justice and Sen- ators, I have no intention of attempting to make a reply to the elaborate argument which has now been addressed to you by one of the honorable Managers touching the merits of this case. The time for that has not come. The testimony is not yet before you. The case is not in a condition for you to consider and pass upon those merits, whether they consist in law or fact. The simple question now be- fore the Senate is whether a certain offer of proof which we have placed before you shall be carried out into evidence. Of course that inquiry involves another. That other inquiry is whether the evidence which is offered is per- tinent to any matter in issue in this case, and when it is ascertained that the evidence is per- tinent I suppose it is to be received. Its cred- ibility, its weight, its effect finally upon the merits of the case or upon any question involved in the case, is a subject which cannot be con- sidered and decided upon preliminarily to the reception of the evidence. And, therefore, leaving on one side the whole of this elaborate argument which has now been addressed to you, I propose to make a few observations to show that this evidence is pertinent to the mat- ter in issue in this case. The honorable Manager has read a portion of the answer of the President, and has stated that the House of Representatives has taken no issue upon that part of the answer. As to that, and as to the effect of that admission by the honorable Manager, I shall have a word or two to say presently. But the honorable Man- ager has not told you that the House of Rep- resentatives, when the honorable" Managers brought to your bar these articles, did not intend to assert and prove the allegations in them which are matters of fact. One of these allegations, Mr. Chief Justice, as you will find by reference to the first article and to the sec- ond article and to the third article, is that the President of the United States in removing Mr. Stanton and in appointing General Thomas intentionally violated the Constitution of the United States, that he did these acts with the intention of violating the Constitution of the United States. Instead of saying, "it is wholly immaterial what intention the President had ; it is wholly immaterial whether he honestly believed that this act of Congress was uncon- stitutional ; it is wholly immaterial whether he believed that he was acting in accordance with his oath of office, to preserve, protect, and de- fend the Constitution when he did this act" — instead of averring that, they aver that he acted with an intention to violate the Consti- tution of the United States. Now, when we introduce evidence here, or offer to introduce evidence here, bearing on this question of intent, evidence that before form- ing any opinion upon this subject he resorted to proper advice to enable him to form a cor- rect one, and that when he did form and fix opinions on this subject it was under the influ- ence of this proper advice, and that conse- quently when he did this act, whether it was lawful or unlawful, it was not done with the intention to violate the Constitution — when we offer evidence of that character, the honorable Manager gets up here and argues an hour by the clock that it is wholly immaterial what his intention was, what his opinion was, what ad- vice he had received and in conformity with which he acted in this matter. The honorable Manager's argument may be a sound one ; the Senate may ultimately come to that conclusion after they have heard this cause; that is of discussion into which I do not enter ; but before the Senate can come to the consideration of those questions they must pass over this allegation ; they must either say, as the honorable Manager says, that it is wholly immaterial what opinion the President formed or under what advice or circumstances he formed it, or else it must be admitted by Seua- tors that it is material, and the evidence must be considered. Now, how is it possible at this stage of the inquiry to determine which of these courses is to be taken by the honorable Senate ? If the Senate should finally come to the conclusion that it is wholly immaterial this evidence will do no harm. On the other hand, if the Senate should finally come to the conclusion that it is material what the intention of the President was in doing these acts, that they are to look to see whether there was or not a willful viola- tion of the Constitution, then they will have excluded the evidence upon which they could have determined that question, if it should thus prove tq be material. I respectfully submit, therefore, that whether the argument of the honorable Manager is sound or unsound, whether it will finally prove in the judgment of the Senate that this evidences I immaterial or not, this is not the time to ex- clude it upon the ground that an examination of the merits hereafter and a decision upon those merits will show that it is immaterial. When that is shown the evidence can be laid aside. If the other conclusion should be ar- rived at by any one Senator, or by the body generally, then they will be in want of this evidence which we now offer. In reference to this question, Senators, is it not pertinent evidence? I do not intend to enter into the constitutional inquiry which was started yesterday by an honorable Manager as to the particular character of this Cabinet council. One thing is certain : that every President from the origin of the Government has resorted to oral consultations with the members of his Cabinet and oral discussions in his presence of questions of public import- ance arising in the course of his official duty. Another thing is equally certain, and that is, that although the written letter remains, and therefore it would appear with more certainty what the advice of a Cabinet councilor was if it were put in writing, yet that every practical man who has had occasion in the business affairs of life and every lawyer and every legis- lator knows that there is no so satisfactory mode of bringing out the truth as an oral discussion, face to face, of those who are engaged in the subject ; that it is the most suggestive, the most searching, the most satisfactory mode of arriv- ing at a conclusion ; and that solitary written opinions, composed in the closet, away from the collision between mind and mind which brings out new thoughts, new conceptions, more accurate views, are not the best mode of arriving at a safe result. And under the influence of these practical considerations un- doubtedly it is that this habit, beginning with General Washington — not becoming universal by any means until Mr. Jefferson's time, but from that day to this continuing a constant practice — has been formed. President John- son found it in existence when he went into office, and he continued it. I therefore say that when the question of his intention comes to be considered by the Sen- ate, when the question arises in their minds whether the President honestly believed that this was an unconstitutional law, when the particular emergency arose, when if he carried out or obeyed that law he must quit one of the powers which he believed were conferred upon him by the Constitution, and not be able to carry on one of the departments of the Gov- ernment in the manner the public interests required — when that question arises for the consideration of the Senate, then they ought to have before them the fact that he acted by the advice of the usual and proper advisers that he resorted to the best means within his reach to form a safe opinion upon this subject, and that therefore it is a fair conclusion that when he did form that opinion it was an honest and fixed opinion which he felt he must carry out in practice if the proper occasion should arise. It is in this point of view, and this point of view only, that we offer this evidence. The honorable Senator from Michigan has proposed a question to the counsel for the President, which is this : Do Dot the counselfortheaccusedoonsider that the validity of tho tenuro-of-otneo bill was purely a question of law ? I will answer that part of the question first. The constitutional validity of any bill is of course a question of law which depends upon a comparison of the provisions of the bill with the law enacted by the people for the govern- ment of their agents. It depends upon whether those agents have transcended the authority which the people gave them, and that com- parison of the Constitution with the law is, in the sense that was intended undoubtedly by the honorable Senator, a question of law. The next branch of the question is " whether that question is to be determined on this trial by the Senate." THE CONGEESSIONAL GLOBE. 231 That is a question I cannot answer. That is a question that can be determined only by the Senate themselves. If theSenate should find that Mr, Stanton's case was not within this law, then no such question arises, then there is no question in this particular case of a con- flict between the law and the Constitution. If the Senate should find that these articles have so charged the President that it is necessary for the Senate to believe that there was some act of turpitude on his part connected with this matter, some mala fides, some bad intent, and that he did honestly believe, as he states in his answer, that this was an unconstitutional law, that an occasion had arisen when he must act accordingly under his oath of office, then it is immaterial whether this was a constitu- tional or unconstitutional law ; be it the one or be it the other, be it true or false that the President has committed a legal offense by an infraction of the law, he has not committed the impeachable offense with which he is charged by the House of Representatives. And, there- fote, we must advance beyond these two ques- tions before we reach the third branch of the question which the honorable Senator from Michigan propounds, whether the question of the constitutionality of this law must be de- termined on this trial by the Senate. In the view of the President's counsel there is no ne- cessity for the Senate to determine that ques- tion. The residue of the inquiry is : Do the counsel claim that the _ opinion of tho Cabinet officers touching that question — That is, the constitutionality of the law — is competent ovidenco by which the judgment of the Semite might be influenced? Certainly not. We do not put them on the stand as experts on questions of constitutional law. The judges will determine that out of their own breasts. We put them on the stand as advisers of the President to state what ad- vice, in point of fact, they gave him, with a view to show that he was guilty of no improper intent to violate the Constitution. We put them on the stand, the honorable Senator from Michigan will allow me to answer, for the same purpose for which he doubtless, in his exten- sive practice, has often put lawyers on the stand. A man is proceeded against by another for an improper arrest, for a malicious prose- cution. It is necessary to prove malice and want of probable cause. When the want of probable cause is proved the malice is infer- able from it ; but then it is perfectly well set- tled that if the defendant can show that he fairly laid his case before counsel, and that counsel informed him that that was a probable case, he must be acquitted; the malice is gone. That is the purpose for which we propose to put these gentlemen on the stand, to prove that they acted as advisers, that the advice was given, that it was acted under ; and that purges the malice, the improper intent. To respond to the question of the honor- able Senator from Maryland, he will allow me to say that it is a question which the Managers can answer much better than the President's counsel. Mr. JOHNSON. Will you read it, please ? Mr. CURTIS. It is : Do the counsel for the President understand that the Managers deny the statement made by the Pres- ident in his message of December 12, 1867, to the Semite, as given in ovidence by the Managers at page 45 of the official report of the trial that the members of the Cabinet gave him — That is, the President — the opinion there stated as to the tenure-of-offico act ; ' and is the evidence offered to corroborate that statement, or forwhat other object is it offered ? We now understand, from what the honor- able Manager has said this morning, that the House of Representatives has taken no issue on that partof our answer ; that the honorable Managers do not understand that they have traversed or denied that part of our answer. We did also understand before this question was proposed to us that the honorable Man- agers had themselves put in evidence the message of the President of the 12th of De- cember, 1867, to the Senate, in which he states that he was advised by the members of the Cabinet unanimously, including Mr. Stanton, that this law would be unconstitutional if en- acted. They have put that in evidence them- selves. Nevertheless, Senators, this is an affair, as you perceive, of the utmost gravity in any pos- sible aspect of it ; and we did not feel at liberty to avoid or abstain from the offering of the members of the President's Cabinet that they might state to you, under the sanction of their oaths, what advice was given. I suppose all that the Managers would be prepared to ad- mit might be — certainly they have made no broader admission — that the President said these thingsin a message to the Senate; but from the experience we have had thus far in this trial wethoughtit not impossible that the Managers, or some one of them speaking in behalf of himself and the others, might say that the Pres- ident had told a falsehood, and we wish there- fore to place ourselves right before the Senate on this subject. We desire to examine these gen- tlemen to show what passed on this subject, and we wish to do it for the purposes I have stated. Mr. WILLIAMS. Before the learned gen- tleman concludes I desire to submit a question to him. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Oregon. The Chief Clerk read as follows : Is the advice given to tho President by his Cabinet with a view of preparing a veto message pertinent to prove tho right of the President to disregard the law after it was passed over his veto ? Mr. CURTIS. I consider it to be strictly pertinent. It is not of itself sufficient ; it is not enough that the President received such advice ; he must show that an occasion arose for him to act upon it which in the judgment of the Senate was such an occasion that you could not impute to him wrong intention in acting. But the first step is to show that he honestly believed that this was an unconstitu- tional law. Whether he should treat it as such in a particular instance is a matter depending upon his own personal responsibility without advice. That is the answer which I suppose is consistent with the views we have of this case. And I wish, in closing, merely to say that the Senators will perceive how entirely aside this view which I have now presented to the Senate is from any claim on behalf of the Pres- ident that he may disregard a law simply be- cause he believes it tobe unconstitutional. He makes no such claim. He must make a case beyond that — a case such as is stated in his answer ; but in order to make a case beyond that it is necessary for him to begin by satisfy- ing the Senate that he honestly believed the law to be unconstitutional ; and it is with a view to that that we now offer this evidence. The CHIEF JUSTICE. Senators, the ques- tion now before the Senate, as the Chief Justice conceives, respects not the weight but the ad mis ■ sibility of the evidence offered. To determine that question it is necessary to see what is charged in the articles of impeachment. The first article charges that on the 21st day of February, 1868, the President issued an order for the removal of Mr. Stanton from the office of Secretary of War, that this order was made unlawfully, and that it wasmade with intent to violate the tenure- of-office act and in violation of the Constitution of the United States. The same charge in sub- stance is repeated in the articles which relate to the appointment of Mr. Thomas, which was necessarily connected with the transaction. The intent, then, is the subject to which much of the evidence on both sides has been directed ; and the Chief Justice conceives that this testi- mony is admissible for the purpose of showing the intent with which the President has acted in this transaction. He will submit the ques- tion to the Senate if any Senator desires it. Mr. HOWARD. I call for the yeas and nays. The CHIEF JUSTICE. The Senator from Michigan desires that the question be submit- ted to the Senate, and calls for the yeas and nays. The yeas and nays were ordered. The CHIEF JUSTICE. Senators, you who are of opinion that the proposed evidence is admissible will, as your names are called, an- swer yea ; those of the contrary opinion, nay. Mr. DRAKE. I ask for the reading of the offer of counsel. The CHIEF JUSTICE. The Secretary will read the offer. The Chief Clerk read the offer. The question being taken by yeas and nays, resulted — yeas 20, nays 29 ; as follows : YEAS— Messrs. Anthony, Bayard, Buckalew, Davis. Dixon, Doolittlo, Fessenden, Bowler, Grimes, Hen- derson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, Viekers, and Willey-20. NAYS— Messrs. Cameron, Cattell. Chandler, Cole. Conkling, Conncss, Corbett, Craein, Drake. Edmunds, Ferry, Frelinghuysen, Ilfu-lan, Howard, Howe, Mor- gan, Morrill of Maine, Morrill of Vermont, Patter- son of Now Hampshire, Pomcroy, Ramsey, Sherman, Sprague, Stcwart.Thayer, Tipton, Williams, Wilson, and Yates— 29. NOT VOTING— Messrs. Morton, Norton, Nye, Sumner, and Wade — 5. So the Senate decided the evidence to be inadmissible. Gideon Welles — examination continued. By Mr. Evarts : Question. At the Cabinet meetings held at the period from the presentation of the bill to the President until his message sending in his objections was completed was the question whether Mr. Stanton was within the operation of the civil-tenure act the subject of consider- ation and determination? Mr. Manager BUTLER. Stop » moment. We object. The CHIEF JUSTICE. The counsel will please propose their question in writing. Mr. EVARTS. I will make an offer, with the permission of the Chief Justice. The offer was reduced to writing, and read by the Chief Clerk, as follows : Wo offer to provo that at the meetings of the Cabinet at which Mr. Stanton was present, held while tho tenure-of-office bill was before tho Presi- dent for approval, the advice of the Cabinet in regard to the same was asked by the President and given by tho Cabinet ; and thereupon the question whether Mr. Stanton and the other Secretaries who had re- ceived their appointment from Mr. Lincoln were within the restrictions upon the President's power^of removal from office created by said act was consid- ered, and tho opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions. Mr. Manager BUTLER. We object, Mr. President and Senators, that this is only ask- ing the advice of the Cabinet as to the con- struction of a law. The last question was as to the constitutionality of a law, and advice as to law we suppose tobe wholly included within, the last ruling of the Senate. We do not pro- pose to argue it. Mr. EVARTS. We do not so regard the matter ; and even if the ruling should be so rightly construed, still, Mr. Chief Justice and Senators, it would be proper for us to make this offer accepting your ruling, if it were not a matter for debate. We understand that the disposition of the question of evidence already made may turn upon any one of several con- siderations quite outside of the present inquiry ; as, for instance, if it should be held to have turned upon considerations suggested, by some of the questions put by one or more of the Sen- ators of this body, as to the importance or per- tinence of evidence as bearing upon the ques- tion of the constitutionality of a law, as tending to justify or explain or affect with intent the act alleged of a violation of the law. The present evidence sought to be introduced is quite of another complexion, and has this purpose and object in reference to several views that maybe applied to the President's conduct ; in the first place, as respects the law itself, that a new law confessedly reversing, or, as was frequently expressed in the debates of the Houses which passed the law, ' ' revolutionizing the action of the Government" in respect to this exercise of executive power, and in respect to this particular point also of whether it had any efficacy or was intended to have any appli- cation which should fasten upon the President's 232 SUPPLEMENT TO Secretaries whom he never had selected or ap- pointed, which formed the subject of so much opinion in the Senate, and also in the House of Representatives, was made » subject of in- quiry and opinion by the Presidcnt'himself, and that his action concerning which he is now brought in question here in the removal of Mr. Stanton, was based upon his opinion after proper and diligent efforts to get at a correct opinion, whether Mr. Stanton was within the law; and, therefore, that his conduct and action was not in the intent of violating the law which, it is said here, cannot be qualified even under these charges by showing that he did not do it with intention of violating the Constitution. The point now is that he did hot do it with intent of violating the law, but that he did it with the intent of exercising a well-known, per- fectly established constitutional power, deemed by him, on the advice of these his Cabinet, not to be embraced within the law ; and if the question of the intent of his violation of duty, of the purpose and the motive and the object and the result, the injury to the public service or the order of the State is to form a part of the inquiry, then we bring him by one mode of inquiry withiti obedience to the Constitution as he was advised, and by this present object of inquiry within obedience to the law as he was advised. So, too, it has a bearing from the presence of Mr. Stanton and his assent to these opin- ions, on the attitude in which the President Stood in regard to his right to expect from Mr. Stanton an acquiescence in the exercise of the power of removal, which stood upon the Con- stitution in Mr. Stanton's opinion, and which was not affected by the law in Mr. Stanton's opinion ; and thus to raise precisely and defi- nitely in this aspect the qualifications of the President's course and conduct in this behalf as intending an application of force, or con- templating the possibility of the need of an application of force. Mr. Manager BUTLER. Without intending to debate this proposition, I desire to call the attention of the Senate to the fact that the question seeks to inquire whether the Cabinet, including Mr. Stanton, did not advise the President that the bill as presented for his con- sideration did not apply to Mr. Stanton and those in like situation with him. I desire to call the attention of the Senate to Exhibit A, on the 38th page, which is the veto message, wherein the President vetoes the bill expressly upon the ground that it does include all his Cabinet, so that if they advised him to the con- trary, the advice does not seem to have had operation on his mind. Mr. Manager BOUTWELL. Read the words. Mi-. Manager BUTLER. I will. " To the Senate of the United States : " I have carefully examined the bill to regulate the tenure of certain civil offices. The material portion of the, bill is contained in the first section, and is of the effect following, namely : " That every person holding any civil office towhich he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter bo appointed to any such office, and shall becomeduly qualified to act therein, is, and shall be, entitled to hold suchoffice until asucoessorshallhave boen appointed by the President, with the advice and consent or the Senate, and duly qualified; and that the Secretaries of State, of tho Treasury, of War, of the Navy, and of the Interior, the Postmaster Gen- eral, and the Attorney General, shall hold their offices respectively for and during tho term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of tho Senate. . "These provisions are qualified by a reservation in the fourth section, 'that nothing contained in the bill shall be construed to extend the term of any office tho duration of which is limited by law.' In effect tho bill provides that the President shall not remove from their places any of tho civil officers whose terms of service are not limited by law with- out the advice and consent of the Senate of the Uni- ted States. The bill, in this respect, conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means a new one." And then he goes on to argue upon the de- bate of 1789, which wholly applied to Cabinet officers, and you will find that that is the gist of the President's whole argument. Then, on the forty-first page, after having exhausted the argument as to the Cabinet officers, he says : " It applies equally to every other officer of the Government appointed by the President whose term of duration is not specially declared. It issupported by tho weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of the head of the department, because he is invested generally with tho executive authority, and tho participation in that authority by the Sen- ate was an oxception to a general principle, and ought to be taken strictly. The President is the great responsible officer for the execution of tho laws." But I must ask attention to the point that there is some additional reason to have this evidence go in because Mr. Stanton gave such construction to the law. It was offered in the last proposition voted upon to show that Mr. Stanton gave advice as to the constitutionality of the law; so that in this respect the two propositions stand precisely alike in principle, and cannot be distinguished. It is said this evidence shonld be admitted to show that the President when he removed Stanton and put in Thomas, supposed that Stanton did not believe himself to be within the law and protected in office by its enactments. Mr. Stanton had just been reinstated under the law ; had refused to resign because he could not be touched under the law ; had put the Presi- dent's power to defiance, as the President says in his message, because he believed that the law did not allow him to be touched. Now, does this evidence tend to show that the Presi- dent thought Mr. Stanton would agree that he was not kept in office by the law, and go out when he put in Mr. Thomas? Does any sane man believe that the President thought that Mr. Stanton would yield on the ground that he was not covered by the law when he was re- moved and Mr. Thomas appointed? The President did not put his belief on any such ground ; he put it on the ground that Stanton was a coward, and would not dare resist ; not that he did not believe himself within the law and protected by it, but that his nerve would not be sufficient to meet General Thomas. That was the President's proposition to Gen- eral Sherman ; it was a reliance on the nerves of the man, not upon his construction of the law. Therefore, I must call your attention to the fact that these offers are wholly illusory and deceptive. They do not show the thing contended for ; they cannot show it ; they have no tendency to show it, and whether they have or have not, the Senate, by solemn decision, have said that the advice of Cabinet officers is not the legal vehicle of proof by which the fact is to be shown to the Senate, even if it were competent to be proved in any manner. Mr. EVARTS. Mr. Chief Justice and Sen- ators, the reference to the argument of the President's message, which is contained on page 38 and the following pages of the record, seems hardly to require any attention. The President is there arguing against the bill as a matter of legislation, and rightly regards it in its general application to the officers of the Government, including the principal officers of the Departments. The minor considera- tion of whether or not it by its own terms reached the particular persons who held their commissions from President Lincoln could not by any possibility have been the subject of dis- cussion by the President of the United States in sending in his objections to the bill on con- stitutional grounds. It was not a constitutional question whether the bill included the officers who had received their commissions from President Lincoln, or did not exclude them. The learned Manager seems equally unfor- tunate in his reference to the conduct of Mr. Stanton upon the preliminary proceeding of his suspension under the civil-tenure act, for no construction can be put upon Mr. Stanton's conduct there except that he did not think he was under the act, I suppose, because he said he did not yield to the act which author- ized suspension, but yielded to force. So much for that. Now, I come to the principal inquiry ; and that is whether or not it bears either upon the President's conduct in attempting a removal of Mr. Stanton because he was not under the bill, or whether it bears upon the rightful expecta- tion and calculation of the President that the attempt would be recognized as suitable by Mr. Stanton because he, Mr. Stanton, did not be- lieve he was within the bill. It will be observed that the President had a perfect right to suppose that Mr. Stanton would not attempt to oppose him, the President, in the exercise of an accustomed authority of the Chief Executive since he, Mr. Stanton, believed it to be unlawful ; and if the Executive had been advised by Mr. Stanton on this very point that he, Mr. Stanton, was not protected by the restrictions of the civil tenure- of- office bill, then the President had a right to suppose that when the executive authority given by the Constitu- tion, as it was understood by Mr. Stanton, was not impeded by the operation of the special act of Congress, Mr. Stanton of course would yield to this unimpeded constitutional power. The CHIEF JUSTICE. Senators, the Chief Justice is of opinion that this testimony is proper to be taken into consideration by the Senate sitting as a court of impeachment; but he is unable to determine what extent the Senate is disposed to give to its previous ruling, or how far they consider that ruling applicable to the present question. He will therefore direct the Secretary to read the offer to prove, and then will submit the question directly to the Senate. Mr. DRAKE. On that I ask for the yeas and nays. The Chief Clerk read the offer, as follows : We offer to prove that at the meetings of the Cabi- net at which Mr. Stanton was present, heldwhile the tenure-of-civil-office bill was before the President for approval, the advice of the Cabinet in regard to the same was asked by the President and given by the Cabinet, and thereupon the question whether Mr. Stanton and the other Secretaries who had received their appointment from Mr. Lincoln were within the restrictions upon the President's power of removal from office created by said act, was considered and tho opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions. The CHIEF JUSTICE. On this question the Senator from Missouri asks for the yeas and nays. The yeas and nays were ordered ;"and being taken, resulted — yeas 22, nays 26; as follows: YE AS— Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hen- derson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross. Saulsbury, Sherman. Sprague.Truin- bull. Van Winkle, "Vickers, and Willey— 22. NAYS— Messrs. Cameron, Oattoll. Chandler, Cole, Conness, Corbett. Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan. Morrill of Maine, Morrill of Vermont, Patterson of NewHampshire,Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates — 26. NOT VOTING— Messrs. Conkling, Morton, Norton. Nye, Sumner, and Wade— 6. So the evidence proposed to be offered was decided to be inadmissible. Mr. EVARTS, (to the witness.) Mr. Welles, at any of the Cabinet meetings held between the time of the passage of the civil-tenure act and the removal of Mr. Stanton did the sub- ject of the public service as affected by the operation of that act come up for the consid- eration of the Cabinet. Mr. Manager BUTLER. I object. Mr. EVARTS. This is merely introductory. Mr. Manager BUTLER. "Yes" or "no?"" Mr. EVARTS. Yes. Mr. Manager BUTLER. We do not object to that. The Witness. I answer yes. By Mr. Evarts : Question. Was it considered repeatedly. Answer. It was on two occasions, if not more. Question. During those considerations and discussions was the question of the importance of having some determination judicial in its character of the constitutionality of this law considered ? Mr. Manager BUTLER. Stay a moment ; we object. Mr. EVARTS. It only calls for "yes" or "no." Mr. Manager BUTLER. If it means only to get in "yes" or "no," whether it was eoiv- sidered, it is not very important. THE CONGRESSIONAL GLOBE. 233 Mr. EVARTS. That is all. Mr. Manager BUTLER. Then it is not to get in that there was any particular considera- tion on a given point. In other words, to make myself plain, by asking a series of well-con- trived questions, one might get in pretty much what was done in the Cabinet by "yes" or "no" answers. We object to it as immaterial ; and now we, perhaps, might have it settled at once, as well as ever. If this line of testimony is immaterial, then it is immaterial whether the matter was considered in the Cabinet. If the determination of the Senate is that what was done in the Cabinet should not come in here, then whether it was done is wholly immaterial, and is as objectionable as what was done. Mr. EVARTS. Yes; but the honorable Manager will be so good as to remember that the rulings of the Senate have expressly de- termined that all that properly bears upon the question of the intent of 'the President in mak- ing the removal and appointing the ad interim holder of the office with a view of raising the judicial question is admissible, and has been admitted. Mr. Manager BUTLER. We never have heard that ruling. It may have escaped us, perhaps. ' Mr: EVARTS. By examining the record you will find it. ■ Mr. Manager BUTLER. We have exam- ined it with great care ; but we shall not find that, we think. Will you have the kindness to read that ruling? ' Mr. EVARTS. It is in the memory of the court. Mr. Manager BUTLER. The ruling is on the record. The CHIEF JUSTICE. If the question be objected to it will be reduced to writing. The offer of the counsel for the respondent was reduced to writing and handed to the Man- agers. Mr. Manager BUTLER.. By " the removal" do I understand down to the 21st of February, 1868? Mr. EVARTS. Yes, sir. Mr. Manager BUTLER. May I insert these words: "21st of February, 1868?" Mr. EVARTS. You may alter the word "removal" to "order of the 21st of February, 1868, for the removal." The CHIEF JUSTICE. The Secretary will read the offer made by the counsel for the President. The offer was handed to the desk and read, as follows : "We offer to prove that at the Cabinet meetings between the passage of the tenure-of-civil-officebill and the order of the 21st of February, 1868, for the removal of Mr. Stanton upon occasions when the condition of the public service was affected by the operation of that bill came up for the consideration and ad vice of the Cabinet it was considered by the President and Cabinet that a proper regard to the public service made it desirable that upon some proper oase a judicial determination on the consti- tutionality oi' the law should bo obtained. Mr. Manager BUTLER, Mr. Presidentand Senators, we, of the Managers, object, and we should like to have this question determined in the minds of the Senators upon this principle. We understand here that the determination of the Seriate is, that Cabinet discussions, of what- ever nature, shall not beputin as ashieldto the President. That I understand, for one, to be the broad principle upon which this class of questions stand and upon which the Senate has voted; and, therefore, these attempts to get around it, to gjet'in by detail and at retail — if I may use that expression — evidence which in its wholesale character cannot be admitted, are simply tiring out and wearing out the patience of the Senate. I should like to have it settled, once for all, if it can be, whether the 'Cabinet consultations upon any subject are to be a shield. Upon this particular offer, however, I will leave the matter with the Senate after a single suggestion. It is offered to show that the Cabinet con- sulted upon the desirability of getting up a case to test the constitutionality of the law. It is either material or -immaterial. It might pos- sibly be material in one view if they mean to say that they consulted upon getting up this case in the mode and manner that it is brought here, and only in that event could it be mate- rial. Does the question mean to ask if they consulted and agreed together to bring up this case in the form in which it has been done? If they agreed upon any other proceeding it is wholly immaterial ; but if they agreed upon this case, then we are in this condition of things, that they propose to justify the President's act by the advice of his subordinates, and substi- tute their opinion upon the legality of his action in this case for yours. Senators, you passed this tenure-of- office act. That might have been done by inadvert- ence. The President then presented it to you for your revision, and you passed it again notwithstanding his constitutional argument upon it. The President then removed Mr. Stanton, and presented its unconstitutionality again, and presented also the question whether Mr. Stanton was within it, and you, after sol- emn deliberation and argument, again decided that- Mr: Stanton was within its provisions so as to be protected by it, and' thai* the law was constitutional. Then he removed Mr. Stanton on the 21st of February, and presented the same question to you again, and again, after sdlemn argument, you decided that Mr. Stan- ton was within its provisions and that the law was constitutional. Now they offer to show the discussions of the Cabinet upon its consti- tutionality to overrule the quadruple opinion solemnly expressed by the Senate upon these very questions — four times upon the constitu- tionality of the law, and twice upon its consti- tutionality and upon the fact that Mr. Stanton was within it. Is that testimony to be put in here ? The proposition whether it was desir- able to have this constitutional question raised is the one presented. If it was any other con- stitutional question in any other case, then it is wholly immaterial. If it is this case, then you are trying that question, and they propose to substitute the judgment of the Cabinet for the judgment of the Senate. Mr. EVARTS. I must, I think, be allowed to say that the patience of the Senate, which is so frequently referred to by the learned Man- agers as being taxed, seems to be, in their judg- ment, a sort of unilateral patience, and not open to impressions upon opposite sides. Now, Senators, the proposition can be very briefly submitted to you. By decisive determinations upon certain questions of evidence arising in this cause you have'decided that, at least, what in point of time is so near to this action of the Presi- dent as may fairly import to show that in his action he was governed by a desire to raise a question for judicial determination shall be admitted. About that there can be no ques- tion that the record will confirm my state- ment. Now, my present inquiry is to show that within this period, thus extensively and comprehensively named for the present, in his official duty and in his consultations con- cerning his official duty with the heads of De- partments, it became apparent that the opera- tion of this law raised embarrassments in the public service and rendered it important as a practical matter that there should be a de- termination concerning the constitutionality of the law, and that it was desirable that upon a propel* case such a determination should be had. I submit the matter to the Senate with these observations. The CHIEF JUSTICE. The Secretarywill read the offer to prove. The Chief Clerk read the offer. The CHIEF JUSTICE'. The Chief Justice will submit the question to tire Senate. Mi-. CONNESS called for the yeas and nays, and they were ordered. Mr. HENDERSON. _ Mr. President, I de- sire to submit a question to the Managers before I vote. I send it to the desk. The CHIEF JUSTICE. The question pro- pounded to the honorable Managers by the Senator from Missouri will be read. The Chief Clerk read as follows: If tho President shall bo convicted, ho must bo removed from office. If his guilt should be so great as to demand such punishment, he may be disqualified to hold and en- joy any office under the United States. Is not the evidence now offered competent to go before the court in mitigation? Mr. Manager BUTLER. Mr. President and Senators, I am instructed to answer to that, that we do not believe this would be evidence in any event ; but all evidence in mitigation of punishment must be submitted after verdict and before judgment, save where the jury fix the punishment in their verdict, which is not the case here. Evidence in mitigation never is put in to influence the verdict; but if a ver- dict of guilty is rendered, then circumstances of mitigation, such as good character or pos- sible commission of the crime by inadvertence, can be given, but not upon the issue. Mr. CONKLING. Is that the rule of prac- tice before this tribunal? Mr. Manager BUTLER. I do not know as there are any rules of practice here. Mr. CONKLING. Would that be applica- ble to this tribunal? Mr. Manager BUTLER. I am asked by the honorable Senator from New York whether it would be applicable before this tribunal. Under the general practice of impeachments judgment is never given by the House of Peers until demanded by the Commons. Whether that may be applicable here or not I do not mean at this moment to determine. I say judgment never is given until demanded, and as this judgment is to be given as a separate act, if evidence in mitigation is applicable at all, it must be given to influence that event. There is an appreciable time in this tribunal, as in all others, between a verdict of guilty and the act of judgment ; and if any such evi- dence can be given at all it must, in my judg^ ment, be given at that time. It certainly" can- not be given for any other purpose. I have already stated that we do not believe it to be competent at all, and I am so instructed by my associates; but, if ever competent, it cannot be competent until the time arrives for the consideration of the judgment. If I may ask a question, I would inquire do the Presi- dent's counsel offer this evidence in mitiga- tion, because if they do that will raise another question. We shall not object to it, perhaps, even now, in mitigation, because that will be a confession of guilt. [Laughter.] The CHIEF JUSTICE. The Secretary will read the offer to prove once more. The offer was read as follows : "We offer to prove that at tho Cabinet meetings be- tween the passage of the tefture-of-civil-office bill and the order of the 21st of February, 1868, for the re- moval of Mr. Stanton, upon occasions when the con- dition of tho public service was affected by the oper- ation of that bill came up for the consideration and advice of the Cabinet, it was considered by tho Pres- ident and Cabinet that a proper regard to the publio service made it desirable that upon some proper case a judicial determination on the constitutionality of the law should be obtained. The CHIEF JUSTICE. Senators, you who are of opinion that the evidence offered by the counsel for the President should be received will, when your names are called, answer yea ; those of the contrary opinion, nay. The Secretary will call the roll. The question being taken by yeas and nays, resulted — yeas 19, nays 30 ; as follows : YEAS — - Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grinies, Henderson, Hendricks, Johnson, McCreery, Patter- son of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, and Vickers— 19. NATS— Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Ed- munds, Ferry, Fretinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Ver- mont, Patterson of New Hampshire, Pomeroy, Ram- sey, Sherman, Spraguc, Stewart, Thayer, Tipton, Willey, Williams, Wilson, and Yates— 30. NOT VOTING— Messrs. Morton, Norton, Nye. Sumner, and Wade— 5. So the Senate ruled the offer to be inadmis- sible. Mr. ANTHONY, (at two o'clock p. m.) I move that the Senate take a recess for fifteen minutes. 234 SUPPLEMENT TO 1 lie motion was agreed to ; and at the expi- ration of the recess the Chief Justice resumed the chair. Gideok WelI.es's examination continued. By Mr. Evarts : Question. Mr. Welles, was there within the period embraced in the inquiry in the last ques- tion, and at any discussions or deliberations of the Cabinet concerning the operations of the civil tenure act, or the requirements of the pub- lic service jn respect to the same, any suggestion or intimation of any kind touching or looking to the vacation of any office, or obtaining pos- session of the same by force? Answer. Never, on any occasion Mr. Manager BUTLER. Stop a moment. We object. The CHIEF JUSTICE. The counsel for the President will please reduce the question to writing. The question was reduced to writing and sent to the desk and read, as follows: Was there, within tho period embraced in the in- quiry in tho last question, and at any discussions or deliberations of the Cabinet concerning the operation of the tenuro of civil office act and the requirements of tho puolic service in regard to the same, any sug- gestion or intimation whatever touching or looking to tho vacation of any office by force or getting pos- session of the same by force. Mr. Manager BUTLER. To that we object. We think it wholly within the previous ruling ; and if it were not, it would be incompetent upon another ground — that to show that the President did not state to A, B, or C that he meant to use force by no means proves that he did not tell E, F, and G. Mr. EVARTS. We may hereafter call per- sons to testify that he did not tell E, F, and G, and that would not prove that he did not tell A, B, and C. Mr. Manager BUTLER. And so on to the end of the alphabet. Mr. EVARTS. Yes ; and so on to the end of time. The question is, Mr. Chief Justice and Senators, a negative to exclude a con- clusion ; and if the subject of force or the purpose of force is within the premises of this issue and trial, evidence on the part of the President to show that in all the deliberations for his official conduct force never entered into contemplation is, as I suppose, rightfully offered on our part. Mr. Manager BUTLER. We object to the question, whether he told his Cabinet he would or would not use force, as wholly immaterial and as within the last ruling. The CHIEF JUSTICE. The Chief Justice does not understand the honorable Manager to object to it as leading. Mr. Manager BUTLER. No; ilisnot worth while to take that objection. We wish to come to substance. The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate. Mr. GRIMES. I ask for the yeas and nays. The yeas and nays were ordered. The CHIEF JUSTICE. The Secretary will read the question. The Chief Clerk again read the question. The CHIEF J USTICE- Senators, you who are of opinion that this question is admissible, will, as your names are -called, answer yea; those of the contrary opinion, nay. Mr. FERRY. I was requested by the Sen- ator from Missouri [Mr, Drake] to state that he was called away by sickness in his family. The question being taken by yeas and nays, resulted — yeas 18, nays 26; as follows : YEAS— Messrs. Anthony, Bayard, Buekalew, Da- vis, Ujxon, Edmunds, Fessenden, Fowler, Grimes, Hendricks, Johnson, MoCroery, Patterson of Tennesj sec, Koss. Saulsbury, Trumbull, Van Winkle, and Vl'-kora— 18. NAYS— Messrs. Cattcll, Chandler, Cole, Conkling, Conncss, Corbett, Cragin, Ferry, Frolinghuysen, Har- l.in, Howard, Howe, Morgan, Morrill of Maine, Mor- rill of Vermont, Patterson of New Hampshire, Pom- croy. Ramsey, Sherman, Stewart, Thayer, Tipton, Willoy, Williams. Wilson, and Yates— 26. NOT VOTING— Messrs.Cameron.Doolittle, Drake, Henderson, Morton, Norton, Nye, Sprague, Sumner, and Wade— 10, So the Senate decided the question to be in- admissible. Mr. EVARTS. We are through with the witness. Cross-examined by Mr. Manager Bpti,er : Question. Mr. Welles you were asked if you were Secretary of the Navy, and you said you held under a commission, and you gave the date of the commission? Answer. March, 1801. Question. You have had no other? Answer. No other. Question. And you have been Secretary of the Navy down to to-day? Answer. I have continued to this time. Question. Has Lorenzo Thomas acted as a member of the Cabinet down to to day from the 21st of February? Answer. He has met in the Cabinet since that time. Question. Did he meet as a member or out- Mr. EVARTS. I submit, Mr. Chief Jus- tice, that this is no cross-examination upon any matter we have examined upon, as far as General Thomas is concerned. Mr. Manager BUTLER. I waive it. I will not have a word upon that. By Mr. Manager Buti.er: Question. Now, then, you told us of some- thing said between you and the President about a movement of troops. I want to know a little more accurately when that was. In the first place what day was it? Answer. It was on the 22d of February. Question. Is there any doubt about that in your mind? Answer. None at all. Question. What time was it? Answer. It was not far from twelve o'clock. Question. I understood you to fix that time of day by something that happened with the Attorney General. What was that? Answer. I called on the President on the 22d, about twelve o'clock. The reception for official business at the Navy Department is from eleven to twelve. I left as soon as I well could, after that matter was over, and therefore it was a little before twelve, I suppose. When I arrived at the President's and called on him, the Atttorney General was there. While there, the nomination of Mr. Ewing was made out. Question. Never mind about that ; I am not now speaking of that. Answer. I am speaking of that. The Pri vate Secretary wished to get it up to the Sen- ate as early as he could ; and Mr. Stanbery remarked that he wished to be here, I think, about twelve ; that he had some appointment about twelve ; and it had got to be nearly that time then. Question. I understood you to say that he had some appointment in the Supreme Court. Was that so ? Answer. I will not be sure that it was. Question. Did you not state yesterday that he had an appointment in the Supreme Court? Answer. Perhaps I inferred that it was there; I cannot say that he said it was at'the Supreme Court, or where it was. Question. Did you not so testify yesterday? Answer. Perhaps I did. Question, How was the fact? Answer. He had an engagement. Question. How was the fact as to your testi- mony yesterday — not what perhaps you did, but how do you remember you testified on that point yesterday? Answer. I presume I testified that he was to come here at twelve o'clock to the Supreme Court, because that was my inference. I sup- posed it was so. He had an engagement at twelve o'clock, and wanted to get away as soon as he could ; and it was in connection with the nomination of Mr. Ewing, which went up at the same time. Question, Have you not heard since yester- day that the court did not sit on Saturdays? Answer. No, sir. Question. Have you heard anything on that subject? Answer. No, sir. Question. Do you know whether they sit on Saturdays, or not? Answer. I do not. Question. You do not know upon that mat- ter? Answer. I do not. Question. Now, sir, did you learn that there was any other movement of troops, except an order upon one officer of the regiment to meet General Emory ? Answer. Well, I heard of two or three things that evening. Question. I am now speaking of the officers of the regiment? Answer. I understand. Question. Did you learn that there was any other movement of troops except an order to an officer of the regiment to meet General Emory? Answer. I heard that the officers of the regi- ment were required to meet at headquarters that evening. Question. At what time? Answer. That evening. Mr. EVARTS. The 21st. By Mr. Manager Butler: Question. The evening of the 21st? Answer. The evening of the 21st. Question. And that the officers were called to headquarters? Answer. The officers were called to head- Quarters. Question. Did you learn whether it was to give them directions about keeping away from a masquerade or going to it as a reason why they were called to headquarters? Answer. I did not hear the reasons. If I had heard the reasons perhaps they would have satisfied me. I do not know how that maybe. Question. You did not hear the reasons? Answer. No ; I knew the fact that they had been called to meet at headquarters that even- ing, which was an unusual order, and were called from a party, I believe. Question. What party? Answer. A party that was in F or G street, I think; a reception. Question. That they were called from a party to go to headquarters. Now. sir, that was all the movement of troops you spoke of yesterday to us, was it not? Answer. I do not recollect that I spoke of others. I spoke of that. Question. Had you any other in your mind yesterday but that? Answer. There were some other movements in my mind ; but perhaps not connected with General Emory, unless they were called there for a purpose. Question. There was none communicated to you, whatever might have been in your mind, was there? Answer. What do yon mean by " none com- municated ?" Question. No other movements were com- municated to you, whatever may have been in your mind, that evening ? Answer. I heard of movements that even- ing, ov heard of appearances. I heard that the War Department was lighted up, which was an unusual matter. Question. You heard that the War Depart- ment was lighted up? Answer. 1 did. I do not know that I alluded to that to President Johnson : but that was one of the circumstances that I heard of the evening before. Question. Then the movement was the call of the officers of one regiment to meet Gen- eral Emory. How many officers did you hear were called? Answer. I did not hear the number of ofii cers. I heard that General Emory's son and his orderlies, one or two, bad called at a party, requesting that any officers belonging to the fifthregiment, and, I believe, to his own, should repair forthwith to headquarters; which was thought to be a very unusual movement. Question. I did not ask for your thoughts about it ? . Answer. Well, I thought it was. THE CONGRESSIONAL GLOBE. 235 Question. Those officers were asked to come to headquarters. That was all you stated to the President of movements of troops? Answer. I will not say that that was all. Question. Is it all that you remember you did? Answer. I will not be sure whether I stated to him the fact of the lighting up of the War Department that night, for that was the first of the intrench ment there, or whether I alluded to the fact that there was a company, or part of a company, reported to me as being seen in the Question. Excuse me; I am only asking what you stated, not what you think you did not state. Answer. I say I do not know that I stated that. . Question. And I am asking for what you stated ? Answer. I say I do not know that I stated to the President that the War Department was lighted up that night. Question. I do not ask you for what you do not know you stated, but what you know you did state? Mr. EVARTS. Your question was, whether that was all he stated, and he says he cannot say whether it was all or not. Mr. Manager BUTLER. I am asking if it was all he slated, and 1 am asking not for what he did not state, but for what he did. Mr. EVARTS. He says he cannot say but that he did. The Witness. I stated to him in relation to General Emory and what 1 heard in regard to him. Whether I alluded to the other facts in iny mind I cannot say now. Mr. Manager BUTLER. Very well ; that is exactly what I want ; but I did not want to get at what the facts were. The 22d was to be kept as a holiday ? Answer. It is a half holiday, I believe. The War Department closed that office ; but I sup- pose that is in violation of law. The law is that, the Departments shall be kept open, each of them every day of the year, save Sundays and the Fourth of July and the 25th of Decem- ber. The War Department has sometimes— — Mr. Manager BQTLER. Excuse me; I did not ask you for your legal opinion. The Witness. I am not giving a legal opin- ion. I am stating facts. Mr. Manager B UTLER. You say it is in vio- lation of law. I suppose that is a legal opinion ? The Witness. You can read the law and see what it is. Question. I am only asking you whether, in fact, it is kept as a holiday ? Answer. We did not keep it as a holiday, as we keep the Fourth of July. The clerks were at the Department and were required to clear their desks before they left. Question. How was it in the War Depart- ment? Answer. I understood — if you will allow me to state that — that the Was Department was closed on that day. I have understood it was closed on other days ; but the Navy Department had not been closed in that way. Question. I do not want any comparison betweeu the Navy and War Departments. I only ask the fact if it was closed on that day. Did you inquire whether the officers were called together to notify them that the next day was to be a holiday or not? Answer. I made no inquiries on the subject of others, but communicated to the President what I had learned. Edgar T. Welles sworn and examined. By Mr. Evarts : Question. You are the son of Mr. Secretary Welles? Answer. Yes, sir. Question. Are you employed in the Navy Department? Answer. Yes, sir ; I am chief clerk'of the Department. Question, (presenting a paper to the wit- ness.) Please look at this paper and say if that is a blank form of Navy agent's commis- sions as used in the Department ? Answer. It is the blank form that was used, i Question. Before the civil tenure bill? Answer. Yes, sir. Mr. EVARTS. We propose to offer it in evidence. [The document was handed to Mr. Manager Butler.] Mr. Manager BUTLER. We have no ob- jection to that. Do you want it read ? Mr. EVARTS. No. The document thus put in evidence is as follows : President of the United States of America : To all who shall see these presents, greeting : Know ye, that reposing special trust and confi- dence in the patriotism, fidelity, and abilities of , I do, by and with the advico and con* sent of the Senate of the United States, appoint him Navy agent for the . He is therefore carefully and diligently to dis- charge the duties of Navy agent, by doing and per- forming all manncrof things thereunto appertaining; and ho is to observe and follow theordors and direc- tions which ho may from time to time receive from the President of the United States and Secretary of tho Navy. This commission to continue in force during the term of four years from the . Given under my hand at Washington, this — day of — — , in the year of our Lord one thousand [l. s.] eight hundred and , and in the year of the independence of the United States. By the President : Secretary of the Navy. Registered. By Mr. Evarts : Question. Do you remember, on Friday, the 21st of February, that your attention was drawn to some movement, orsupposed movement, con- nected with military organization here? Answer. I do. Question. At what hour of the day was that? Answer. I should suppose it was about five o'clock. Question. What was it, and how was it brought to your attention? Answer, f was attending a small reception, and the lady of the house informed me Mr. Manager BUTLER. Excuse me. You need not state what the lady of the house said. Mr. EVARTS. It does not prove the truth of the lady's statement, but only what it was. Mr. Manager BUTLER. I beg your par- don ; but as nothing but the truth is to be in evidence we do not want the lady's statement. Mr. EVARTS. It came to his notice and he acted upon it. That is the truth to be proved. Mr. Manager BUTLER. In answer to that, the truth is that this is not the proper way to prove the truth of a case of impeachment, by putting in what the lady said to this man. No matter how he got the information ; let him give the information he gave to his father. Mr. EVARTS. Very well. [To the witness.] What information did you get, whether it was from a lady or not, 1 do not care? Mr. Manager BUTLER. No, sir ; the ques- tion should be, what information did he give to his father? Mr. EVARTS. I want to prove that he gave the same that he got ; that he did not make it up. I certainly am permitted to prove what occurred. It will all be over in three minutes. [To the witness.] Did you gain any information concerning it? Mr. Manager BUTLER. On the whole, I think it had better come in ; I will not object. Mr. EVARTS. It is utterly immaterial. Mr. Manager BUTLER. I think it is. The Witness. General Emory had sent his orderlies there that afternoon requesting cer- tain officers named to me to report to head- quarters immediately, and that after that Gen- eral Emory's son, Dr. Tom. Emory, had come there with the request that any officers of two branches of the service — I do not recall what two branches ; cavalry and infantry or cavalry and artillery — should report at headquarters immediately. Mr. CONNESS. Mr. President, we cannot hear the witness. We did not hear the answer to the last question. Mr. EVARTS.' Does the Senator desire it to be repeated 1 Mr. CONNESS. Yes, sir. Mr. EVARTS, (totho witness.) Besogood as to repeat it. Answer. That General Emory bad sent cer- tain orderlies requesting officers, who were named, to report at headquarters without de- lay, und had also sent his son, requesting that any officers of two branches of the service, cav- alry and infantry, or cavalry and artillery, should report at headquarters immediately. Question. After this, did you communicate this to your father? Answer. I did, sir. Question. At what time 1 Answer. I should suppose it was about seven o'clock. Question. The same evening? Answer. The same evening, between seven and eight o'clock. Question. Were you sent on any message to the President concerning this ? Answer. I was. Question. By your father? Answer. I was sent by him over to the Pres- ident's. Question. Did you go? Answer. I did. Question. At what hour in the evening? Answer. Between eight and nine o'clock ; shortly after I went home. Question. Was it on an occasion of any en- gagement of the President? Answer. The President was engaged at din- ner. Question. Was it a diplomatic dinner? Answer. It was a State dinner. I do not remember precisely the character of it. Question. Did you see him ? Answer. I did not see him on that account. Question. And you reported to your father? Answer. I reported to him that I did not see him ; that there was nobody at the President's Mansion to communicate with. Question. Was anything further done that night that yon know of on the subject? Answer. Nothing further that I know of. No cross-examination. Mr. EVARTS. Mr. Chief Justice and Sen- ators, we have in attendance, to give their evi- dence, the Secretary of State, the Secretary of the Treasury, the Secretary of the Interior, and the Postmaster General, and we offer them as witnesses to the same points that we have inquired of from Mr. Welles, and that have been covered by the rulings of the court. If objection is made to their examination, of course it must be considered as covered by the rulings already made. Mr. WILLIAMS. I did not fully under- stand the last witness, and I should like to have him recalled for a moment. Edgar T. Welles recalled. Mr. WILLIAMS. If allowable, I should like to inquire of the witness whether what he communicated to his father was told to him by this lady, or whether it was communicated to him by the officers? Answer. ' It was told to me by this lady. Mr. EVARTS. We tender the witnesses I have named for examination upon the points that Mr. Secretary Welles has been interro- gated concerning, and that the rulings of the Senate have covered. If the objection is made, it must be considered as covered by that ruling. Mr. Manager BUTLER. We object. We have not objected that Mr. Welles was not a credible witness, but only that the testimony to be given was not proper. Mr. EVARTS. I understand that. Alexander W. Randall sworn and exam- ined. By Mr. Evarts : Question. Mr. Randall, you are Postmaster General? Answer. I am, sir. Question. From what time have you held that office ? 236 SUPPLEMENT TO Answer. I was appointed in July, 1886 ; I nave held it from that time. Question. Before that time had you been in the Department; and if so, in what capacity? Answer. I had been from the fall of 1862. I was First Assistant Postmaster General. Question. Since the passage of the civil- tenure act, have eases arisen in the postal ser- vice in which officers came in question for their conduct and duty in the service? Answer. They have. Question. Do you remember the case of Fos- ter Blodgett? Answer. I do. Question. What was he 1 Answer. He was postmaster at Augusta, in Georgia. Question. Was there any suspension of Mr. Blodgett in his office or in its duties? Mr. Manager BUTLER. That suspension must have been evidenced by some writing. • Mr. EVARTS. I have asked the question whether there was one. Mr. Manager BUTLER. If it was in writ- ing I desire it to be produced. Mr. EVARTS. I expect to produce it. The Witness. There was. Question. By whom was it made? Answer. It was made by me. Question. As Postmaster General? Answer. As Postmaster General. Question. Had the President anything to do with it? Answer. Nothing at all. Question. Did he know of it ? Answer. Not when it was done, nor be- fore it. Question, (handing some papers to the wit- ness.) Please look at these papers and say if they are the official papers ot that act ? Answer. Yes, sir ; they are certified to be by me as Postmaster General. Question. Did you receive a complaint against Mr. Blodgett 1 Answer. There was one ; yes, sir. Question. And was it upon that complaint that your action was taken ? Answer. It was. Question. In what form did the complaint come to you, and of what fact? Mr. Manager BUTLER. Let the complaint itself state. Mr. EVARTS. I have asked in what form it came. Mr. Manager BUTLER.- The complaint will speak for itself. This form is in writing. Mr. EVARTS. I do not know that. Mr. Manager BUTLER. Then I object to the information of others. Mr. EVARTS. I have asked in what form the complaint came to him. Is that objected to? Mr. Manager BUTLER. No, sir; that is not objected to ; whether it was in writing or verbal. The Witness. It came in writing and ver- bally, both. Mr. Manager B UTLER. We shall have the writing, I suppose. Mr. EVARTS. Yes, sir. [To the witness.] And on the complaint, verbally and in writing, this action was taken ? Answer. Yes, sir. Mr. EVARTS. I propose to put in evidence these papers. Mr. Manager BUTLER. Let me see them first. After an examination of the papers, Mr. Manager BUTLER. Have you a copy of the indictment referred to in these papers? Mr. EVARTS. It is not here. Mr. CURTIS. Governor Randall has it here. Mr. EVARTS, (to the witness.) Have you it here ? The Witness. I do not think a copy of the indictment is here. Mr. Manager BUTLER. That is all there is of it. Mr. EVARTS. Very well. Mr. Manager BUTLER. We object to these papers, because, very carefully, there has been left out the only thing that is of any conse- quence. Mr. EVARTS. Whose care do you refer to ? Mr. Manager BUTLER. The man who did it. Mr. EVARTS. Who is that? Mr. ManagerBUTLER. Idonotknow. This Mr. Blodgettis now attempted to be affected in his absence, and I feel a little bound to take care of him, because, being called aa a witness here, he must be dealt justly with. The papers they now offer refer to the evidence of Mr. Blod- gett' s misconduct, and the evidence is not pro- duced here, not even a recital of it ; and there- fore I say it is unjust to put in Mr. Randall's recital of a fact that happened when he has in his Department the fact itself, and which has been, by somebody to me unknown, carefully kept away from here. Mr. EVARTS. Mr. Chief Justice and Sen- ators, the honorable Managers chose, for some reason and ground best known to themselves, to offer in evidence as a part of this incrim- ination an act of the President of the United States in the removal of Foster Blodgett. I propose to show what that act was. Mr. Manager BUTLER. I do not object, if you will show what that act was, and not keep back the paper which is the inculpation of Mr. Blodgett. Mr. EVARTS. I am not inculpating Mr. Blodgett. I am proving what the act of the Executive Officer of the United States was that you have sought to put in evidence by oral testimony. Mr. Manager BUTLER. You have put in the fact that Mr. Blodgett was removed upon a complaint in writing of misconduct, and you keep back that complaint in writing. Mr. EVARTS. And you said that if the act was in writing it must be proved by the letters, and I agreed to it, and now produce them. Mr. Manager BUTLER. You do not pro- duce the complaint. Mr. EVARTS. Well, we will not wrangle about it. I offer the official act of the Depart- ment in the removal of Mr. Blodgett. Mr. Manager BUTLER. And I object that it is not fair play unless you bring in the com- plaint. Mr. EVARTS. The learned Manager treats this as if it were a question of impeaching Mr. Blodgett. I am giving in evidence the act of the executive department which you brought in testimony. Mr. Manager BUTLER. We proved the act ourselves. We proved that they removed Blodgett. Now, then, there is no occasion to prove that over again, if they are going to stop there. Mr. EVARTS. You made it inculpation, and we want to prove what the act was. Mr. ManagerBUTLER. Then produce the whole thing on which it was grounded. Mr. JOHNSON. What is the paper? Mr. GRIMES. I call for the reading of tie paper. Mr. EVARTS. If you want the indictment produced it may certainly be produced ; but the fact that it is not here is no legal objection to these papers. Mr. JOHNSON. What is the paper pro- duced? The CHIEF JUSTICE. The counsel for the President will state what they propose to prove in writing. Mr. EVARTS. I offer in evidence the order and letters handed to the Clerk, and desire that they may be read. The CHIEF JUSTICE. It will be neces- sary to state what the order and letters are ; otherwise the court will be unable to judge of their admissibility. Mr. EVARTS. The testimony of Governor Randall has described them as the official ac- tion of the Department. I offer in evidence the official action of the Post Office Depart- ment in accomplishing the removal of Foster Blodgett, which removal was put in evidence by the Managers. The CHIEF JUSTICE. The counsel will please reduce their offer to writing. Mr. SHERMAN. I think we have a right to ask for the reading of the letters to know what we are called upon to vote. The CHIEF JUSTICE. The Senate un- doubtedly have a right to order the letters to be read. Mr. SHERMAN. We are called upon to decide a question of evidence, and I should like to know what is offered from the papers til 6 III SGI VCS • The CHIEF JUSTICE. The usual mode of proposing to prove is by stating. the nature of the proof proposed to bo offered, and then, upon an objection, the Senate decides whether proof of that description can be introduced. It is not usual to read the proof itself. Un- doubtedly it is competent for the Senate to order it to be read. Mr. SHERMAN. If the counsel will state the matter so that we can act upon it without taking time in reading the papers, I have no objection. ' The offer to prove of the counsel for the respondent was reduced to writing and sent to the desk. The CHIEF JUSTICE. The Secretary will read the offer to prove made by the counsel for the President. The Secretary read as follows : We offer in evidence the official action of the Post Office Department in the removal of Mr. Blodgett, which removal was put in evidence by oral testi- mony by the Managers. ' Mr. Manager BUTLER. We will not object further. We think we can get in the indict- ment somehow. The CHIEF JUSTICE. The objection is withdrawn. Mr. EVARTS. I ask the Clerk to read the papers in their order. The CHIEF JUSTICE. The Clerk will read the papers offered by the counsel. The Chief Clerk read the papers, as follows: A. Post Office Department, January 3, 1868. It appearing from an exemplified copy of the bill of indictment now on file in this Department, against Foster Blodgett, postmaster at Augusta, Georgia, that ho has been indicted in the United States dis- trict court for the southern district of Georgia for perjury: it is Ordered that said Foster Blodgett be suspended from the office of postmaster at Augusta, Georgia, aforesaid; and that George W. Summers be designated as spccialagentof thisDepartment to take charge of the post office thereat and discharge all its duties until further action shall be had by the Presi- dent and Senate of the United States. ALEX. W, RANDALL, Postmaster General. Post Officb Department, Washington, D. C, April 17, 1868. This is to certify that the foregoing, marked A, is a true copy of an original order on file in this Depart- ment. In witness whereof I have hereunto set my hand and caused the seal of the Post Office Depart- r. _ i ment to be affixed, at the General Post Office L " - "•' in the city of Washington, District of Colum- bia, the day and yoar first above written. ALEX. W. RANDALL, Postmaster General. B. The Post Office Department : To whom it may' concern : Know ye, that Foster Blodgett having been sus- pended from the office of postmaster at Augusta, Georgia, under a bill Of indictment for perjury, George W. Summers is hereby designated a special agent of this Department to take charge of the post office and pu'bllo property thereat, and to discharge all the duties of the aforesaid office. Witness my hand and the seal of said Department r. „ i at Washington this 3d day of January, A. D. U-8-J 1Rfis ALEX. W. RANDAKU Postmaster General. 1868. Post Officii Department, Washington, D. C, April 17, 1868. This is to certify that the foregoing, marked B, is a true copy of an original commission on record in this Department. In witness whereof I have hereunto set my hand and caused the seal of the Post Office De- partment to be affixed at the General Post Ll. s.] Office in the city of Washington, Distriot of Columbia, the day audyear first above writ- ton. ALEX. W. RANDALL, Postmaster General. THE CONGRESSIONAL GLOBE. 237 c. Post Office Department, Appointment Office, January 3, 1868. - StB: Inclosed, pleo.se find blank oath and bond to be executed by yourself and sureties as special agent of this Department to take charge of the post office at Augusta, Richmond county v (j corgi;]. So soon as the same shall have been executed and placed in the mail addressed to this Department, you will then exhibit the inclosed commission to Foster Blod- gett, or to the person in charge of the post office at Augusta aforesaid, take possession of the public prop- erty thereat, and enter on the full discharge of all the duries thereof, as required by the postal laws and peculations. You will continue to conduct the office in th e same fanner as though you were . postmaster until the resident and Senate shall have taken further action in the premises. Your salary will be at the rate of $1,600 a year, with three dollars per diem for subsistence. Very respectfully, your obedient servant, ST. JOHN B. L. SKINNER, First Assistant Postmaster' General. George W. Summers, esq., Augusta, Georgia. Post Office Department, Washington, April 17,1868. This is tooertify that the foregoing, marked C, is a true copy of a letter on record in this Department. In witness whereof I have hereunto set my hand and caused the seal of the Post Office Depart- [l, s.] ment to be affixed at the General Post Office in the city of Washington, District of Colum- bia, the day and year first above written. ALEX. W. RANDALL, ; Postmaster General. D. Post Office Department, Appointment Office, January 3, 1868. Sir : A copy of the bill of indictment found against you in the United States district court for the south- ern district of Georgia, for perjury, has been placed on file in this Department, and in consequence thereof the Postmaster General has made an order suspend- ing, you from the office of postmaster at Augusta, Georgia, and designated George W. Summers as spe- cial agent of this Department, to take charge of the aforesaid post office and all the public property thereat. ' You are, therefore, required to deliver to said George W. Summers the mail key and all the public property in your possession, upon the exhibition of his commission and demand for the mail key and property aforesaid; take from him duplicate receipts for the same ; retain one and forward the other to this Department. Very respectfully, yours. &c. ST. JOHN B. L. SKINNER, First Assistant Postmaster General. Foster Biodgett, esq., Augusta, Georgia. Post Office Department, Washington, April 17, 1868. This is to certify that the foregoing, marked D, is a true copy of a letter on record in this Department. In witness whereof I have hereunto set 'my hand and caused the seal of the Post Office Depart- ment to be affixed at the General Post Office, tL. s.] in the city of Washington, District of Colum- bia, the day and the year first above men- tioned. , ALEX. W. RANDALL, Postmaster General. Cross-examined by Mr. Manager Butler : Question. Is the rjost office in Augusta, Georgia, one that is within the appointment of the President under the law ? Answer. It is. Question. Was Mr. Blodgett appointed by the President? Answer. He was. . Question. When ? ' Answer. I cannot tell you that. Question. Some time ago ? Answer'. Yes, sir ; some time ago ; and con- firmed by the Senate. Question. Under what law did you, as Post- master Getieral, suspend him ? Answer. Under the law of necessity. . Question. Any other? Answer. Under the > law authorizing me to put special agents in charge of offices where I was satisfied that injustice was being done by the postmaster, and under the practice of the Department. Question. I am asking you now as to the law. We will come to. the practice by and by. Cannot you tell us whereabouts that law will be found ? Answer. No, sir; not without referring to my notes. Question. Well, sir, refer to your notes. Of course I do not mean that unwritten law — the law of necessity? Answer. No. It was a question whether I would close up the office, or appoint a special agent. [Holding a letter in his hand.] I have there, in a letter I wrote Question. I do not care about your letters. I am asking you to refer me to the law under which you did it, if you can? Answer. I can make no further reference than I did to that law, except my authority to appoint special agents. Question. What statute did ypu do this under ? Answer. Appoint the special agent? Question. What statute did you do this act under? What statute do you justify yourself by? Answer. I do not justify myself under any particular statute. Question. What general statute? Answer. No general statute. Question. Then under no statute whatever, either particular or general, do you justify yourself. Now, sir, do you mean to say that this took place on the 3d of January? Ansicer. The fore part of January. Question. The paper is dated the 3d. Answer. The fore part of January. Mr. JOHNSON. What is the date of the paper, Mr. Manager? Mr. Manager B UTLER. They are all dated the 3d of January, 1868. [To the witness.} Now, sir, have you ever communicated this case to the President? Answer. I did. Question. When? Answer. I do not recollect ; some time after it was done. Question. About how long ? Answer., Perhaps a week. Question. More? Answer. I do not remember about that ; » few days afterward. Question. Did you take any advice of the President, or consent, or order before you made this removal? Answer. I did not. Question. Was the verbal complaint the same, or different from the written complaint against Foster Blodgett ? Answer. It was the same. It was the state- ment that he had been indicted by the district attorney. Question. The statement that he had been indicted ? Answer. Yes, sir. Question. And was there any other com- plaint ? Answer. And a copy of the indictment. Question. Was there any other complaint than that ? Answer. I do not remember now whether there was any other or not. Question. Who made the complaint to you ? Answer. The district attorney of that dis- trict stated to me the fact that an indictment had been found against him. Question. Did he state it to you in person? Answer. Yes, sir. Question. Did you ask him to forward you a copy? Answer. No, sir. Question. Did he do so ? Answer. He did, or somebody did. Question. Somebody did. Doyou know who? Answer. I cannot tell, unless he did. Question. Did you prepare these papers here? Answer. I ordered them to be prepared. Question. You ordered all the papers to be prepared ? Answer. I did. Question. Why is not a copy of the indict- ment here, then ? Answer. It was not inquired for, and I did not think of it. Question. If it was not inquired for, who made the inquiry for the papers ? Answer. One of the attorneys asked me about the case. Question. One of the counsel asked you about the case, the papers 1 am talking about now? Answer. He asked me what was the condi- tion of the case, what the testimony of Mr. Blodgett meant, and I told him, and told him I could furnish all the orders that were made in the case ; and I did so. Question. Then you volunteered to furnish him the orders? Answer. I did ? Question. Why did you not furnish us a copy of the indictment? Answer. I cannot tell about that. I did not think anything about it. I would have fur- nished it to you if you had asked me for it, You did not ask me for any copies. Question. Now, sir, had you any other com- plaint against Foster Blodgett except the fact that he was indicted ? Ansicer. I do not remember any now. Question. Have you any inclination of your mind ; anything in your mind, in any way, of anything else brought against him? Answer. I cannot tell you now. I do not remember anything else. There may be some- thing in the papers. Question. Have you any remembrance of acting upon any other, which you have forgot- ten ? Answer. I do not remember anything now. The papers are quite voluminous, and there may be something else in them. I do not re- member now. Question. Did you act upon any other than this ? Answer. Not that I remember. Question. Now, sir, was not that an indict- ment brought by the grand jury of that county against him for taking the test-oath ? Answer. Yes, sir. Question. Was it for anything else except that he was supposed to have sworn falsely when he swore the test-oath? Answer. Not that I remember. Question. It was taking the test-oath as an officer of the United States that he had not been in the rebellion? Answer. Yes. Question. And you removed him for that? Answer. No, sir ; I did not remove him. Question. You suspended him for that? Answer. Yes. Question. Did you give him any notice of the suspension? Answer. I did. Question. That you were going to do it? Answer. No, sir ; not that I was going to do it. I sent him the notice you see there, or directed it to be sent. Question. You sent a notice suspending him? Answer. I directed notioe to be sent to him that he was suspended, a copy of which is in the papers. Question. That was the order of suspension? Answer. Yes, sir. Question. You did not give him any means of defending himself, or showing what had happened to him, or how it came on? Answer. No, sir. Question. But you suspended him at once? Answer. I did. Question. Is there any eomplaint on your books that he had not properly administered this office? Answer. I do not remember any. Question. Certainly none upon which you acted? Answer. Not that I remember. Question. And a competent officer, acting properly, because somebody found an indict- ment against him for taking the test-oath, swearing he was a Union man, you suspended, without any hearing or trial at all ? Answer. I do not swear to any sueh state- ment as that. Part of it is incorrect. If you will ask me to state what there is about this case, I shall be glad to do it. Question. I will ask this question, and you will answer it The Witness. Ask your questionb and I will answer them. Question. I will put this question : Did you 238 SUPPLEMENT TO not suspend this officer, without investigation or trial, upon the simple fact of an indictment being found against him for having taken the test-oath to qualify him for that office, against whom no other complaint stood in your office? Answer. I do not remember any other com- plaint now, as I have stated before. Question. And therefore if you answer upon what you know, you will have to answer yes ; you did suspend him? Answer. Yes, I did suspend him ; and if he had been convicted I should have asked to have him removed. Question. This case has been pending since the 3d of January? Answer. Yes, sir. Question. Has it ever been communicated by the President to the Senate? ^Answer. Not that I know of. Question. Did he direct you so to do? Answer. No, sir. Question. Did you suspend him under the civil-tenure act? Answer. No, sir. Question. You took no notice of that? Answer. Yes, sir; I took notice of it. That was the difficulty in the case, if you will allow me. Question. You took no notice of it to act under it? Answer. I could not act under it. Question. How many hundreds of men have you appointed who could not take the test- oath? Answer. I do not know of any — none that I know of. Question. Do you not know that there are men appointed to office who have not taken the test-oath? The Witness. As postmasters? Mr. Manager BUTLER. Yes, sir. The Witness. No, sir ; I do not know of one — never one with my consent. Mr. JOHNSON. What is your last answer? The Witness. I say there never has been such an appointment with my consent. By Mr. Manager Butler: Question. Did you learn who were the prose- cutors under this indictment? Answer. No, sir; I did not. Question. Did you inquire? Answer. I did not. Question. Whether they were rebels or Union men? Answer. I did not. Question. Did you not ask whether it was a prosecution by rebels down there against Mr. Blodgett? Answer. No, sir ; that was not my business. I simply inquired as to the fact of his being indicted for perjury in taking the oath of office. Mr. Manager BUTLER. Will you have the kindness to furnish me with a copy of that indictment, duly certified? The Witness. I will do so, certainly. Mr. Manager BUTLER. And of any other complaint you can find against Foster Blodgett before his trial commenced ? The Witness. I will do so. Mr. CURTIS. We should prefer to have it furnished to the court, and it can be directed to be put into the case. I suppose that will answer the purpose. Mr. Manager BUTLER. I do not know that until I see it. If you had wanted it very much you could have had it. Mr. CURTIS. It was a mere inadvertence. The Witness. I presume they did not think of it, for I did not. Mr. CURTIS. It was a mere inadvertence that it was not produced. Mr. Manager BUTLER. Perhaps. Mr. CURTIS. I wish it now produced. [To the witness.] Will you furnish to' the Secretary of the Senate a copy of that indict- ment? The Witness. Yes, sir. Mr. Manager BUTLER. Furnishing 'it t6 the Secretary without my seeing it will not put it into the case. If you desire it to be fur- nished to him, very well ; but I object to any- thing being put on the files without my seeing it ; and I shall want the witness after that. Mr. EVARTS. If it is objected to as evi- dence, perhaps it is not worth while to pro- duce it. The only object of having it here is as evidence. Mr. Manager BUTLER. I cannot tell whether I shall object to it or not until I see it. Mr. EVARTS. That will be a private mat- ter, then, between you and Governor Randall. Mr. Manager BUTLER. We shall want the Postmaster General with it. I shall want to ask him some more questions after I get it. Mr. EVARTS. You can do so. The Witness. There is another similar case in which I suspended a man last week. Mr. Manager BUTLER. Never mind about the other case. I do not care about what you have done since. The Witness. I thought you might want that. Reexamined by Mr. Evarts: Question. I understand your judgment as Postmaster General was that this suspension should be made. Answer. Yes, sir. Question. It occurred not during a recess of the Senate ? Answer. No, sir ; it was during the session of the Senate. Question. So that it was not under the civil- tenure act? Answer. Not as I understand it. Mr. EVARTS. It would not be a suspen- sion under the civil-tenure act. Mr. Manager WILLIAMS. It was during the recess. Mr. EVARTS. It was not in the recess, and the civil-tenure act does not apply to the case. [To the witness.] Now, sir, this oath, for perjury in taking which he was indicted, as you were informed by the indictment, was in tak- ing the oath to this office that he held? Answer. Yes, sir. Mr. Manager BUTLER. I object to what was done as to the indictment until that can be produced. Mr. EVARTS. I said as you stated. You asked him the question whether the indict- ment was not for taking a false oath. 1 ask him if that false oath was not in qualifying for this office which he held ? The Witness. Yes, sir. Question. And in which you suspended him ? Answer. Yes, sir ; that is what I understand. Mr. EVARTS. That is all, sir. Mr. Manager BUTLER. That is all until you bring the indictment. Mr. SHERMAN. I desire to submit, if the Senate think the question admissible, this ques- tion to this witness, or any other member of the Cabinet that may be called. It may be contravened by the decision already made, and I should like to have the question decided by the Senate. The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Ohio. The Secretary read as follows : State if,' after the 2d of March, 1867., the date of the passage of the tenure-of-office act, the question whether the Secretaries appointed by President Lin- coln were included within the provisons of that act, came before the Cabinet for discussion ; and if so, what opinion was given on this question by mem- bers of the Cabinet to the President. Mr. Manager BINGHAM. We desire to object to that on the ground of its incompe- tency, and that we deem it directly within the ruling of the Senate twice or three times made this day. Mr. Manager BUTLER. The very same question was voted upon. Mr. Manager BINGHAM. The very same question. Mr. SHERMAN. I should like to have the question taken by the Senate upon that by yeas and nays. Mr. HOWARD. I raise a question of order Upon that question of the Senator, that it has been once decided by the Senate. The CHIEF JUSTICE. The Chief Justice has no doubt that the question may be prop- erly put to the witness. Whether it shall be answered is a question for the Senate to judge. Mr. Manager BUTLER. I should like, before that question is put, to have the ques- tion which was decided by the Senate to-day, the third question I think it is, read from the minutes. It was an offer covering exactly the same ground. The CHIEF JUSTICE. The offer will be Mr. SHERMAN. If the Senate will allow me, I can tell in a word the difference between the two. Mr. CONNESS and others. I object. Mr. CONKLING. Let us hear that offer read. The CHIEF JUSTICE. The Secretary will read the offer to prove, the reading of which is requested by Mr. Manager Butler. The Secretary read as follows : We offer to prove that at the meetings of the Cab- inet at which Stanton was present, held while the tenure-of-civil-office bill was before the President for approval, the advice of the Cabinet in regard to the same was asked by the President, and given by the Cabinet, and thereupon the question whether Mr. Stanton and the other Secretaries who had re- ceived their appointments from Mr. Lincoln were within the restrictions upon the President's power of removal from office created by said act, was con- sidered and the opinion expressed that the Secre- taries appointed by Mr. Lincoln were not within such restrictions. Mr. JOHNSON. I ask that the question propounded by the Senator from Ohio shall now be read. The Secretary read the question, as follows: State if, after the 2d of March, 1S67. the date of the passage of the tenuro-of-office act. the question whether the Secretaries appointed by President Lin- coln were included within the provisions of that act, came before the Cabinet for discussion : and if so, what opinion was given on this question by members of tho Cabinet to the President ? Mr. FERRY. I call for the yeas and nays on that question. The yeas and nays were ordered ; and being taken, resulted— yeas 20, nays 26 ; fas follows : YEAS — Messrs. Anthony. Bayard. Buckalew, Davis, Dixon. Doolittle. Fessenden, Fowler, Grimes, Hendricks, Johnson. McCreery, Patterson of Ten- nessee. Ross, Saulsbury, Sherman, Trumbull Van Winkle. Vickcrs, and Willey— 20. NAYS— Messrs. Cameron, Cattell. Chandler. Cola, Conkling,Conness,Corbett, Cragin, Edmunds Ferry Frelinghuysen, Harlan Howard, Howe. Morgan, Morrill of Maine. Morrill of Vermont, Patterson of New Hampshire, Pomcroy, Eamscy, Stewart, Thayer, Tipton, Williams, Wilson, and Yates— 26. NOT VOTING— Messrs. Drake, Henderson. Mor- ton, Norton, Nye, bprague, Sumner, and Wade— 8. So the question was not admitted. Mr. EVARTS. Mr. Chief Justice and Sen- ators, the counsel for the President are now able to state that the evidence on his part is now closed, as they understand their duty in the matter. The conduct of the proofs, how- ever, has been mainly intrusted to Mr. Stan- bery, both on the part of the counsel and for some particular reasons in reference to his previous knowledge concerning the conduct of the controversy and the matters to be given in evidence which belonged to his official famil- iarity with them. Mr. Stanbery's health, we are sorry to say, is still such as to have pre- cluded anything like a serious conference with them since he. was taken ill. We submit it therefore, to the Senate that, upon such con- sideration, it is possible some other proof may need to be offered. We do not at present ex- pect that it will be so. Mr JOHNSON. Mr. Chief Justice, I ask the Managers if thev have any proof to affer to-day ? Mr. Manager BUTLER. Not till the othor side get through. Mr. JOHNSON. I move, then, that the court adjourn until eleven o'clock on Monday. Mr. EVARTS. Mr. Chief Justice, we have made this announcement. We suppose our- selves to be through. I have only stated that in the absence of Mr. Stanbery, it may be pos- sible that some further evidence may need to be offered, which wetlo not at all expect. Mr. Manager BUTLER. When you are entirely through we will commence. THE CONGRESSIONAL GLOBE. 239 The CHIEF JUSTICE. The Senator from Maryland moves that the Senate, sitting as a court of impeachment, adjourn until Monday at eleven o'clock. The motion was agreed to ; and the Sen- ate, sitting for the trial of the impeachment, adjourned. Monday, April 20, 1868. The Chief Justice of the United States took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives and the counsel for the respondent, except Mr. Stan- bery, appeared and took the seats assigned to them respectively. The members of the House of Representa- tives, as in Committee of the Whole, preceded by Mr. E. B. Washburne, chairman of that committee, and accompanied by the Speaker and Clerk, appeared ana were conducted to the seats provided for them. The CHIEF J USTICE. The Secretary will read the Journal of Saturday's proceedings. The Secretary proceeded to read the Jour- nal of the Senate sitting on Saturday last for the trial of the impeachment; but before con- cluding was interrupted by Mr. STEWART. I move that the further reading of the Journal be dispensed with. _ The CHIEF JUSTICE. If there be no ob- jection it will be so ordered. The Chair hears no objection. It is so ordered. Gentlemen of counsel for the President, do you propose to put in any further evidence? Mr. CURTIS. No, Mr. Chief Justice ; we consider that we have closed the evidence on the part of the defense. The CHIEF JUSTICE. Do the honorable Managers propose to put in any rebutting evidence ? Mr. Manager BINGHAM. As we are ad- vised at present, Mr. President and Senators, we may desire, in case one or two witnesses subpoenaed early in this trial should appear, to call them. I will desire, however, to consult my associates, two of whom are absent and who are expected within a few minutes at the table, in regard to any further statement about it. The CHIEF JUSTICE. In case the hon- orable Managers desire to put in further evi- dence after the argument it will be necessary to obtain an order of the Senate ; at least it would be proper to obtain such order before the argument proceeds. Mr. Manager BINGHAM. I wish to be understood as suggesting to the presiding officer of the Senate that I desire to consult my asso- ciates further about it. The CHIEF JUSTICE. Certainly. Mr. Manager BINGHAM. So far as the order is concerned, I took it for granted t,hat upon the suggestion made at the time the evi- dence was closed on the part of the Managers it would be competent for us without further order, if these witnesses should appear, to in- troduce them upon the stand, because the Sen- ate will recollect, although I have not referred myself to the Journal of proceedings since, it was stated by my associate Manager, Mr. Bui- ler, in the hearing of the Senate, that we con- sidered our case closed, reserving our right to call rebutting testimony or to offer some docu- mentary testimony that might have escaped our notice. Some such statement, I believe, was entered upon the Journal. Mr. JOHNSON. I am not sure that I heard correctly the honorable Manager. I rise merely for the purpose of inquiring whether the Man- agers desire to have the privilege of offering evidence after the argument begins? Mr. Manager BINGHAM. Not as at pres- ent advised, although on that subject, as doubt- less is known to honorable Senators, in pro- ceedings of this sort, (though I am not prepared to say that it has happened in this country ; I am not sure but it did, however, in the case of Justice Chase, ) such orders have been made after the final argument has been opened. I am not advised, however, that the Managers have any desire of that sort. I wish it to be understood simply by the Senate that there are one or two witnesses who were deemed im- portant on the part of the Managers who were early subpoenaed to attend this trial, and neither of whom we have been able yet to see, although we are advised that they have been in the cap- ital for the last forty-eight hours, or twenty- four hours at least. Mr. YATES. I do not still understand— I could not hear the Manager— whether he pro- poses to introduce evidence after the examin- ation is closed and after the argument begins. Mr. Manager BINGHAM. As at present advised, we have ho purpose of the sort. I only made the remark I did in response to the honorable gentleman from Maryland. I do not know what may occur in the progress of this trial, and I do not wish to be concluded by any statement I have made here touching the rights of the people under the usage and prac- tice in proceedings of this kind. Mr. JOHNSON. I do not think there is any such practice in the United States. After a pause, Mr. Manager BUTLER. I desire, Mr. Pres- ident, to offer the Journal of Congress of 1774-75, of the First Congress, pages 121-22, which is a report of the committee appointed to draft a commission to the General, George Washington, who had just been theretofor appointed : " Saturday, June 17, 1775. " The committee appointed to draft a commis- sion to the General reported the samo, which, being read by paragraphs and debated, was agreed to as follows : "IN congress. "ThedelegatesoftheUnitedColoniesofNewHamp- shire, Massachusetts Bay, Ithodo Island, Connec- ticut, New York, New Jersey, Pennsylvania, the countiesof New Castle, Kent, and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Car- olina. " To George Washington, esq. : " We, reposing special trust and confidence in your patriotism, valor, conduct, and fidelity, do, by these presents, constitute and appoint you to be General and Commander-in-Chief of the Army of the United Colonies, and of all the forces now raised or to be raised by them, and of all others who shall voluntarily offer their service and join the said Army for the de- fense of American liberty, and for repelling every hostile invasion thereof. And you are hereby vested with full power and authority to act as you shall think for the good and welfare of the service. " And we do hereby strictly charge and require all officers and soldiers under your command to t>o obedient to your orders and diligent in the exercise of their several duties. u ■*■ "And we do also enjoin and require you to be care- ful in executing the good trust reposed in you, by causing strict discipline and order to be observed in the Army, and thattho soldiers be duly exercised and provided with all convenient necessaries.^ " And you are to regulate your conduct in every re- spect by the rules and discipline of wars, (as here- with given you,) and punctually to observe and follow such orders and directions, from time to time, as you shall receivo from this or a future Congress of these United Colonies or Committee of Congress. "This commission to continue in force until re- voked by this or a future Congress. "By order of tho Congress." the point to which I offer this is that this is the only form of commission ever prescribed by law in this country to a military officer, and in drafting commissions under the Constitu- tion of the United States " the pleasure of the President" was inserted instead of " the pleas- ure of Congress." The CHIEF JUSTICE. Is there any objec- tion? Mr. CURTIS and Mr. EVARTS. No ob- jection. Mr. Manager BUTLER. I now offer, Mr. President and Senators, a letter from the Treasury Department in answer to what has been put in as the practice of the Government to appoint officers during the recess. [The letter was handed to the counsel for the re- spondent.] It is one of a series of letters which were not brought to your attention in the schedules which you allowed to come in. Only so much of the practice, as I charge, as would make on one side was pnt in. [The letter was returned to the Manager.] Mr. EVARTS. The letter we do not con- sider as applicable to any point that we have made either in argument or in evidence ; nor do we regard it as an act of the Treasury De- partment, but simply as an expression of an opinion of the then existing Secretary of the Treasury. It is simply an immaterial piece of evidence ; it is not worth while to occupy time in discussing it. Mr. Manager BUTLER. I only ask whether you object? Mr. EVARTS. I have stated all I have to say. Mr. Manager BUTLER. You do not. Mr. EVARTS. No. I have sLated what it applied to. Mr. Manager BUTLER. Very well. I will read the letter : • Treasury Department, August 23, 185S. Sir : Your letter of the 18th instant, recommending "William Irving Crandall for the appointment of surveyor of tho customs at Chattanooga, Tennessee; is received. The office not having beon filled before the adjournment of the Senate.it must necessarily remain vacant until its next session, when your rec- ommendation of Mr. Crandall will receive respectful consideration. 1 have the honor to bo, very respectfully, your obe- ent servant, JAMES GUTHME, Secretary of the Treasury. Hon. J. H. Smith, Charleston, South Carolina. After a pause, Mr. Manager BUTLER. If the President will grant me a moment. Mr. Randall did not bring the papers which I called for to me until since we have come into the Senate, and I want to examine them to see what 1 will and what I will not offer. [After an examination of the papers.] Mr. Randall, you will take the stand. Alexander W. Randall examined. By Mr. Manager Butler: Question. Had you any copy of the indict- ment against Foster Blodgett on file in your office? Answer. What purported to be. Question. When was it made? Answer. That I cannot tell you ; I suppose about the time the original copy was filed there. Question. Have you produced it here? Answer. No, sir. Question. What did you do with it ? Answer. It is in the office. Question. Have you produced copies here ? Answer. Yes, sir ; there is a copy there before you. Question. A copy from where? Answer. From the Treasury Department. Question. Why did you not produce the copy from your office, as I asked you ? Answer. Because that would not prove any- thing ; I could not certify that it was a copy without having the original. Question. Have you produced the original? Answer. I understand it is here. Thereason I did not produce it was I understood it was here. Question. Where? Answer. Before some committee. It was sent up here with the case. The letter of Mr. McCulloch there explains that. Question. The letter of Mr. McCulloch ex- plains about Mr. Hopkins's case, which Idc cot mean to put in ; but I mean now to deal with Mr. Blodgett's case? Anstcer. You will find the copy of two in- dictments fastened together in the original as ihey are there, and I understand they are here. That is the reason I did not bring that, for I could not, without the original, certify that it was a copy. Question. And you got a, copy from the Treasury Department this morning? Answer. Yes, sir. Question. Which you produce here, but do not from your own office? Answer. No, sir; I do not produce that be- cause I could not certify without having the original that it was a true copy; and, under- standing the others were here in the Senate, I did not bring it. Question. But you brought this copy? Answer. I had forgotten how the case came here. 240 SUPPLEMENT TO P i Mr. Manager BUTLER, (to the counsel for the respondent.) Gentlemen, I will detach these, or only put in one paper, just as you "■.ease. Mr. EVARTS. Of course, we understand. Mr. Manager BUTLER. I do not care to go through detaching the copy in this one, case. Mr. EVARTS. It is Mr. Blodgett's indict- ment? Mr. Manager BUTLER. Yes, sir. I now offer simply the indictment in Blodgett's case, which I will read, without detaching it from the other paper : United States op Amekica, Southern Dintrict of Georgia : District court of the United States for the southern district of Georgia. November Term, 1867, A. J). The grand jurors of the United States, chosen, se- lected, and sworn in, and for the southern district of GeorKia, being good and lawful men of the said south- ern district of Georgia, and being charged to inquire for the United States and for the body of the said district upon their oaths ; Present: that heretofore, that is to say, on the 27th day of July, in the year of our Lord 1866, one Foster Blodgett, of the city of Augusta and county of Rich- mond, in the State of Georgia, and in the southern district of Georgia aforesaid, was appointed by the President of the United States to the office of deputy postmaster at Augusta aforesaid, the said office, that is to say, the office of deputy postmaster, being an office of profit under the Government of the United States aforesaid, in the civil department of the pub- lie service, and that, after said appointment and be- fore entering upon the duties of the said office, and before he, the said Foster Blodgett, was entitled to any salary or other emoluments arising from the said office, to wit, the office of deputy postmaster afore- said, he, the said Foster Blodgett, was then and there required by law to take and subscribe the oath hereinafter set forth, the said oath being by law made material and necessary to bo taken and sub- scribed by him, the said Foster Blodgett, before entering upon the duties of the office aforesaid, to wit, tho office of deputy postmaster at Augustaafore- said, and, being so required by law, he, the said Fos- ter Blodgett, came in his own proper person before David S. Roath, a judge of the court of ordinary for the county of Richmond, in the State of Georgia and within the districtaforesaid, and within the jurisdic- tion of this court, on the 5th day of September, in the year of our Lord 1866, at Augusta aforesaid, withis the county. State, and district aforesaid, and then and there was duly sworn and took his corporal oath before the said David S. Roath, a judge of the court of ordinary for the county of Richmond, in the State of Georgia and district aforesaid, he, the said David S. Roath, being then and there duly author- ized by law, and having then and there sufficient and competent power, to administer the said oath to tho said Foster Blodgett in that behalf, and that there- upon the said Foster Blodgett, having so sworn as aforesaid, and not having the fear of God before his eyes, but having been moved and seduced by the in- stigation of the devil, then and there, to wit, on the day and year aforesaid and at the plaee last afore- said, before the said David S. Roath, judge of the court of ordinary as aforesaid, (he, the said Roath, having then and there competent authority to ad- minister the said oath as aforesaid.) upon his oath aforesaid, sworn to before the said David S. Roath, on the 5th day of September, in the year of our Lord 1866, falsely, willfully, and corruptly did swear to the purport and effect following, that is to say: "I, Foster Blodgett, (meaning the said Foster Blodgett.) being appointed deputy postmaster at Augusta, in the county of Richmond and State of Georgia, do swear that I will faithfully perform all the duties required of me and abstain from anything forbidden by the laws in relation to the establish- ment of the post office and post roads within tho United States; and that I will honestly and truly account for and pay over any moneys belonging to the said United States which may come into my possession or control, and I do further solemnly swear that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto ; that I have neither sought nor accepted nor attempted to exercise thefunctions of any office whatever, under any authority or pre- tended authority, in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or consti- tution within the United States hostile or inimical thereto: and 1 do further swoarthat to tho best of my knowledge and ability I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or mrpose of evasion; and that I will well and faith- fully discharge the duties of the office on which I am about to enter; so help me God." Whereas in truth and in fact, the said Foster Blod- gett before the time of taking the said oath as afore- said, had voluntarily borne arms against the United States aforesaid, he the said Foster Blodgett having been at that time, that is to say, at the timewhen he bore arms as aforesaid, a citizenof the United States aforesaid; and whereas in truth and in fact he the said Foster Blodgett being a citizen as aforesaid, be- fore that time, that is to say, before the time of the taking of the oath, voluntarily had given aid to I persona engaged in armed hostility to the United States aforesaid, and had voluntarily as aforesaid given countenance, counsel, and encouragement to persons engaged in armed hostility to the United States aforesaid : and whereas, in truth and tact, ne the said Foster Blodgett being a citizen of the Uni- ted States as aforesaid had before that time, that is to say before the time of the taking of the said oath as aforesaid, accepted an office, to wit, the office ot the captaincy of an artillery company in the service ot and under the authority of the so -called confederate States, the so-called confederate States being. then and there an authority or a pretended authority m hostility to the United States aforesaid; and whereas in truth and fact he, the said Foster Blodgett, being a citizen as aforesaid, had before that time, that is to say, before the time of the taking of the said oath, yielded a voluntary support to a protended govern- ment of Georgia, the same being at that time, that is to say at the time he, said Foster Blodgett, yielded a voluntary support thereto, a pretended authority in power within the UnitedStates and hostilethereto. And so tho jurors aforesaid, upon their oathsafore- said,-do say that the said Foster Blodgett, bf his Oath aforesaid taken and subscribed on the day and year aforesaid, by David S. Roath, a judge of the court of ordinary as aforesaid, falsely, willfully, and cor- ruptly, in manner and form aforesaid did, in the southern district of Georgia, and within tho juris- diction of this court, commit willful and corrupt perjury, contrary to tho forms of tho statute in such case made and provided, and against the peace and dignity of the United States^^ g _ ^^ United States Attorney for Georgia Indorsement. United States of America, Southern District of Georgia. United States District Court, November Terra, 18(57. United States "1 vs. > Indictment for perjury. Foster Blodgett. J Witnesses : James A. Bennett, Ambrose R. Wright, Dr. M. J. Jones, John N. Wray, Avcra D'Antiquac, George W. Vennurey, Allen Phillips, John L. Ellis. A true bill. HENRY BINGHAM, Foreman. Savannah, November 26, 1867. Filed November 29. 1867. james Mcpherson, cierk. Mr. JOHNSON. Does it charge that he was a captain in the rebel service ? Mr. Manager BUTLER. He was charged with being a captain in a volunteer company. [To the witness.] Now, Mr. Randall, upon notice which you have put in as given to Mr. Blodgett being sent to him, did he return an answer, and is this paper that answer or a copy of it? [Handing a paper to the witness.] Answer. These are copies of the papers that are on file. I can only swear to them as copies of papers on file. 1 believe these are correct copies. Question. And that is a copy of his answer? Will you look at it. Answer. Yes, sir. LJiave read it all over ; I think it is. Question. The notice left here on the 3d of January, we have learned by the paper which was put in on Saturday? Answer. I think it was the 3d of January. Question. And on the 10th -he returned this answer? Answer. Yes, sir. Mr. Manager BUTLER. I propose to offer it. It is : Washington, D. C, January 10, 1868. Hon. A. W. Randall : • Sib ■ Mr. EVARTS. One moment, Mr. Manager. We suppose that there is no inquiry before this Senate sitting as a court of impeachment as to the truth of the charges against Mr. Blodgett, nor as to his defenses. We put in evidence nothing but the official action of the Govern- ment through the Post Office Department, and that only in answer to an oral statement con- cerningitwhichMr. Blodgett had himself given. Now, the Manager brings in the indictment, and having got that in claims the right to repel it and thus produce evidence on both sides of the question of the reason of Mr. Blodgett's suspension. We submit to the Senate that the proof is irrelevant. Mr. Manager BUTLER. Mr. President, the case stands thus: Mr. Foster Blodgett, who is mayor of the city of Augusta, appointed by General Pope, and a member of the constitu- tional convention Mr. EVARTS. No part of that statement is in evidence. Mr. Manager BUTLER. I propose to putit in evidence, and am stating my case. I have got it all here. He was a member of the constitu- tional convention and an active Union man * The CHIEF JUSTICE. The honorable Man- ; ager will please reduce his offer to prove to writing. Mr. Manager BUTLER. I will after I state the grounds of it. I will put The CHIEF JUSTICE. The Chief Justice thinks it ought to be reduced to writing now, in order that the Senate may pass upon the question whetherthey will receive the evidence. Mr. Manager BUTLER. They cannot until I make the statement, sir. The CHIEF JUSTICE. The Chief Justice thinks that the same rule which was applied tq the counsel for the President yesterday ought to be applied to the honorable Managers to-day. The Managers should state in writing the nature of the evidence which they propose to introduce, and the Senate can then pass upon the question whether they desire to hear evidence of that description. Mr. JOHNSON. Does the Manager pro- pose to offer that paper in evidence itself? Mr. Manager BUTLER. I do. Mr. JOHNSON. And nothing else? Mr. Manager BUTLER. I propose to offer something else besides. At present I propose to offer this, and it is the first time any counsel has been thus stopped. I assume, Mr. President — I never have assumed any different — that the same rule will be applied to-day as yesterday. I do not want to be understood as asking any- thing different. The CHIEF JUSTICE. The honorable Manager appears to the Chief Justice to be making a statement of matters which are not in proof, and of which the Senate has as yet heard nothing. He states that he intends to put them in proof. The Chief Justice there- fore requires that the nature of the evidence that he proposes to put before the Senate shall be reduced to writing as has been done hereto- fore. He will make the ordinary offer to prove, and then the Senate will judge whether they will receive the evidence or not. /^* Mr. Manager BUTLER. I was trjiilg to state that this was a part of the record pro- duced by the other side. It is the first time, I have a right to say, that any counsel has been interrupted in this way. This The CHIEF JUSTICE.' Does the honor- able Manager decline to put his statement in writing? Mr. Manager BUTLER. I am not declining to put the statement in writing, sir. The CHIEF JUSTICE. Then the honor- able Manager will have the goodness to put it in writing. Mr. Manager BUTLER. I can do it, sir, by taking sufficient time. The CHIEF JUSTICE. It will be allowed. The proposition having been reduced to writing, Mr. Manager BUTLER. This is the offer, sir: We offer to show that Foster Blodgett, the mayor of Augusta, Georgia, appointed by General Pope, and a member of the constitutional convention of Georgia, being, because of his loyalty, obnoxious to some portion of the citizens lately in rebellion against the United States, by the testimony of such citizens an indictmentwas procured to be found against him t that said indictment being sent to the Postmaster General, he thereupon, without authority of law, sus- pended said Foster Blodgett from office indefinitely, without any other complaint against him and with- out any hoaring and did not send to the Senate the report of such suspension, tho office being one within the appointment of the President by and with the advice and consent of the Senate ; this to be proved in part by the answer of Blodgett to the Postmaster General's notice of such suspension, being a portion of the papers on file in the Post Office Department upon which the action of the Postmaster Goneral was taken, a portion of which have been put in evi- dence by the counsel of tho President, and that Mr. Blodgett is shown by the evidence in the record to have always been friendly to the United States and loyal to tho Government. That is the offer. On this we wish to be heard at such time as the Chair will permit. Mr. EVARTS. We ohject to the evidence, I Mr. Chief Justice and Senators, as being THE CONGRESSIONAL GLOBE. 241 ^holty ^relevant to this case. The evidence Foster Blodgett was produced on Lthe Managers, and on their part ■ to his oral testimony that he had Itain commissions under which he see of postmaster at Augusta; that Seen suspended in that office by the r e of the United States in some form tit its action, and there was a superadded neg- ative conclusion of his that his case had not been sent to the Senate. In taking up that case the defense offered nothing but the official action of the Post Office Department, coupled with the evidence of the head of that Depart- ment that it was his own act, without previous knowledge or subsequent direction of the Pres- ident of the United States. In that official order, thus a part of the action of the Depart- ment, it appears that the ground of it was an indictment against Mr. Blodgett. A complaint was made that that indictment was not pro- duced. The Managers having procured it, having put it in evidence, they now propose to put in evidence his answer to that indictment or to the accusation made before the Postmas- ter General. Mr. Manager BUTLER. I know you do not mean to misstate — his answer to the Postmas- ter General's notice, not to the indictment. Mr. EVARTS. His answer to the accusa- tion and the evidence concerning the accusa- tion as placed before the Postmaster General, I understood. Mr. Manager BUTLER. Not an answer to the indictment. Mr. EVARTS. An answer to the indict- ment so far as it was the accusation before the Post Office Department. I understood you to Bay so ; that is, you propose to prove that he was friendly to the United States, and always had been, notwithstanding he had been a cap- tain in the rebel troops. I understood you to say so ; and now the honorable Manager states that this paper, which is part of his evidence to sustain Mr. Blodgett's loyalty and defeat the accusation against him, in which Mr. Blodgett may be entirely right for aught I know, is a letter written by him ten days after his suspen- sion ; and the honorable Manager states that that letter of his, written to the Postmaster General ten days after his suspension, was a part of the papers upon which 1 the Postmaster General acted in suspending him. How that could be, in the nature of things, it is difficult for me to see. He was suspended on the 3d. Ten days after he wrote an answer to the in- crimination ; arid that is one of the papers on which the Postmaster General suspended him, it is said. The honorable court can see that this is not evidence introduced by us in disparagement of Foster Blodgett. It is evidence introduced by us to show the action of the Post Office De- partment in the suspension, which suspension the Managers had put in by oral testimony; and under cover of that the learned Manager first seeks to introduce the accusations against Blodgett, and then to rebut them. If this evi- dence is rightly put in on their part we of course can meet it on ours ; and we shall have an interesting excursion from the impeachment trial of the President to the trial of Mr. Foster Blodgett on the question of loyalty ; and I am instructed to say that there is a witness in the city who can testify that he was a captain in the rebel army ; and we are ready to go on with that proof if it is desired. Mr. Manager B UTLER. Mr. President and Senators, I think now it will not be out of any order either of to-day or yesterday or the day before for me to state the grounds upon which I offer this evidence. Foster Blodgett was called here to show that, holding an office which required the advice and consent of the Senate, he had been suspended indefinitely by the President of the United States, as he supposed, and as we supposed, on the 3d of January, 1868, without any fault on his part, so far as his official duties were con- cerned, and without any adjudication or con- viction of any crime, and a man placed in his Supplement — 16. office as special agent with the same salary and a little more; so that it amounted to a removal and putting in a man into the office as now ap- pears by the papers presented. Mr. Blodgett testified that up to the day he testified he had not had his case before the Senate ; he could get no redress. We thought that upon the proposition that the President desired to obey the law, except that he wanted to make a case to test the constitutionality of it, this was quite pertinent evidence. He having put forward broadly in his answer that he was exceedingly desirous to obey the laws, the civil-tenure act and all other laws, except that he wanted to make a case to test the constitutionality of the law, these facts are put in, and these facts are yet undisputed. They called Mr. Postmaster General Randall on Saturday, and he pro- duced, and they put in, a letter of appointment of one Summers, special agent, with a salary therein set out. They also put in a letter in- forming Mr. Blodgett that he had been sus- pendedfrom office. That letter states precisely that itwas upon an indictment for perjury, not setting out the indictment, so as to leave us to infer that Foster Blodgett had in some contro- versy between neighbor and neighbor, or citi- zen and citizen, somewhere committed willful and corrupt perjury, and that itwas so heinous a case that the Postmaster General felt obliged instantly to suspend him ; and it was a case, he said, where the great law of necessity com- pelled him to suspend him at once. In order to meet that we asked for the indictment. We got it at last from the Treasury Department, a copy of it. The indictment then makes cer- tain statements against Mr. Foster Blodgett. Now, Mr. Foster Blodgett instantly upon being notified — this being the 3d of January, and the paper, which I shall show you, being dated the 10th — seven days only, three from ten leaves seven, not ten, Mr. Counsel, so that inadver- tences can take place as well on the one side as the other Mr. EVARTS. If you consider it material, I will retract. Mr. Manager BUTLER. I do not consider it material only as a matter of correctness ; that is all. As I say, seven days afterward, being in Washington, he instantly answers and puts on file his justification, that this was all a rebel plot and treason against the United States in fact. Having put that on file, that is a part of the case. Now, I have not said to the Senate that this paper was that upon which Mr. Randall acted in suspending him, but I do say it is a part of the proceedings in the case, and it is a paper on which Mr. Randall acted in not returning that suspension through the President to the Senate. It may be said that Mr. Randall had no business to return it to the Senate. He had just as much business to return it to the Senate as he had to suspend him. We are answered, too, that they put in only the official act of the Department. I had the honor to explain to the Senate some days ago that I understood an official act to be that which was made a man's duty by law to do. I never understood that there was any other official act. I have always understood that the kind of acts which a man does where the law does not require him to do them are offi- cious acts and not official, and I think this was the most officious act I have ever known, one which the Postmaster General says there is no law for, which was justified by no statute. A man is suspended; his reputation is ruined as far as it can be ; -the tribunal the law has appointed before which he could have a hear- ing, the Senate of the United States, is not informed of it in the regular way. It affects the President of the United States, because he was informed of it after it was done, and he has taken no action; and then when we put him on to say to us "I have been suspended and cannot go before the Senate," the answer is what? When he simply says that the an- swer is to put in the fact that he was indicted in order to blacken his reputation and send it out to the country. I never saw Foster Blodgett until the day he was brought upon this stand. I have no inter- est in him any more than any other gentleman of position in the South. I put it to you, if you had been treated in that way when here as a witness under the summons of the Senate by the Managers of the House of Representatives to testify to a fact, and then the President, after refusing you any hearing before the constitu- tional tribunal and legal tribunal, had put in the fact to blacken your character that you had been indicted, would you not like to have the privilege of putting in at least your answer on record in the case, that which you did instantly ? It is said tobe the letter of Mr. Blodgett. True, it is ; but it also contains exhibits and other papers which establish the facts beyond con- troversy. It is said here, with a slur, that they have got a witness to prove that he was in the rebel army. I do not doubt it — plenty of them — whether he was or not. But what I say is, that he was only a captain in a militia company, and called into service and bound to obey the powers that be ; and he was indicted because he yielded to the power of the State of Georgia, to compel him to hold the commission ; and taking no commission, he had either to go or lose his life; and he could well swear, although he went as a militia captain into the service, that he did not voluntarily go. But, however that may be, he has a right to have before the country that he has been traduced — a. man among his neighbors so well known that they elected him to make the constitutional law for them; a man among his neighbors so well known that General Pope appointed him mayor of this very town where he held the office ; a man so well known that when the State of Georgia shall come here and demand a place in this Chamber I have no doubt Foster Blod- gett will come and take his place beside the proudest of you. I say under these circumstances I feel it my duty to put^his testimony before you; and if the mere objection is want of relevancy I put it as a matter of justice to a witness that the House of Represen tatives brought here and who is now being oppressed by the entire power of the executive Governmentof the United States, who has been confessedly, without law, against right, suspended from his office and so removed, can get no hearing. before this tribunal or any other, because the President controls his dis- trict attorney and he cannot get a trial down there, and they will not report him up herej and he cannot get a trial here. It appeals to your justice. 1 do not propose to go into any excursion in trying the case of Foster Blodgett. I only propose to put in all the papers that were on file in the Post Office Department about this case that bear on my side of the case. They have put in such papers as bear on their side of the case, and I propose to put in such papers as bear on my side of the case out of the same bundle, that they shall not pick out such as please them and have them put in with- out my picking out and putting in from the same bundle such as please us. Mr. EVARTS. We do not put anything from the bundle. We put in merely the action of the Department. You have taken a paper from the bundle and now propose to put in an answer to it. That is now the statement of the evidence. We have as little to do with and as little care for Foster Blodgett as possible; but you brought him here and compelled us to state the circumstances of the Department's action. We have stated them. If his case is to be tried by this court because it cannot be tried by any other, and if that is a ground of jurisdiction, of course you may have plenty of work. The CHIEF JUSTICE. The Secretary will read the offer to prove made by the honorable Managers. The Chief Clerk read: We offer to show Mr. Manager BUTLER. Stop a moment. Perhaps I will amend the offer a little, though not in substance. With leave, sir, I will with- 242 SUPPLEMENT TO draw that and take one which covers the same points, but is much shorter, which has been drawn up by one of my associates. The CHIEF JUSTICE. The Secretary will read the offer to prove now made by the hon- orable Managers. The Chief Clerk read as follows : The defendant's counsel having produced from the files of the Post Office Department a part of the rec- ord showing the alleged causes for the suspension of 1'oster Blodgett as deputy postmaster at Augusta, Georgia, we nowproposeto give in evidence the res- idue of said record, including the papers on file in the said case, for the purpose of showing tho whole of the case as tho same was presented to tho Post- master General before and at the time of the suspen- sion of the said Blodgett. Mr. EVARTS. Our objection to that offer, as we have already stated, is that it does not present correctly the relation of the papers. The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate. The original offer to prove has been withdrawn. The offer which has just been read has been substituted. Senators, you who are of opinion that the evidence now proposed to be offered should be received will say ay ; contrary opin- ion no. [Putting the question.] The noes have it. The evidence is not received. Mr. ANTHONY. I should like to have the yeas and nays on that, if not too late. The CHIEF JUSTICE. It is too late. If there be no objection, however, the Chief Jus- tice will again put the question on taking the yeas-andnays. There seems to be no objection. Mr. CAMERON. I object. Mr. Manager BUTLER, (to the witness.) Mr. Randall, I have been informed that you desire to make some statement about this removal. If it does not put in anything that the Presi- dent said or anybody else I shall not object. The Witness. I expressed to a gentleman this morningawish to explain the circumstances under which I made this suspension. It was one of those cases which there is no provision of law to meet, like several others that we have, and one thatl passed upon this last week. The copy of this indictment was brought to me, and the district attorney at the same time or about the same time, soon afterward at any rate, came to me and made statements of the cir- cumstances under which it was found. Under the tenure-of-offiee law,.if we acted under that, the President would have no power, as I un- derstood it, to suspend any officer during the session of the Senate. The only thing he could do would be to send up the name of some man in his place, removing Mr. Blodgett. It oc- curred to me that this violation of the law by Mr. Blodgett might be merely a technical vio- lation of the law. If it was a technical viola- tion of the law — I am telling now what my reasoning was on the subject — if it was true that he was forced into the rebel service and got out of it as soon as he could, and this vio- lation of the oath of office law, in taking that oath was merely a technical violation for which he was indicted, I did not want him turned out ; and for that reason I took the responsibility of doing this thing, of making.this suspension and putting a special agent in temporary charge of the office until we could ascertain more fully what the facts were in the case and what action ought to be taken. Those are the circumstances under which this thing was done. By Mr. Manager Butler : Question. Why did you not report it to the President for his action? Answer. I told the President what I had done. Question. When? Answer. Afterward ; as I stated before. Question. Why did you not report it before you undertook to take the responsibility. Did you not suppose he would turn him out? Answer. Because the only thing he could do, if he did anything, was to send to the Senate some other nomination, turning this man out. Question. That is to say, if I understand you, following the law, the only thing he could do was to send to the Senate the name of some- body in place of this man, removed ; and you thought, breaking the law, you could do some- thing better? Answer. I do not put it in any such shape as that. I stated it just exactly as it occurred. I did not want the man turned out if this was a mere technical violation of the law on which he was indicted, and if he was an honest man. That was the reason I was disposed to ascer- tain the facts. It may have been a technical violation of the law ; but I assumed the doing of it for the purpose of not having an act of injustice done to him if he was an honest man. Question. Was the Senate in session on the 3d of January last ? Answer. I cannot tell you whether it was in session on that day or not. Question. Was there not a recess? Answer. There may have been ; I do not remember now. Question. Then the reason that the Senate was in session did not apply to the case? Answer. I considered the Senate in session. I do not look upon a recess for two or three or five days as a recess of the Senate, in the sense ofthe Constitution. I do not remember whether the Seuate was actually in session on that par- ticular day. Question. You deemed it to be in session, and you treated it as if in session ? Answer. I considered the session as con- tinuing. Mr. Manager BUTLER. That is all. Mr. CONNESS. I should like to ask a ques- tion ofthe witness. I will reduce it to writing. The Witness. One suggestion I forgot to make which I wish to mention. The reason why something was not further done in the case is that I was trying to get information on this subject, and then this trouble began, and this case has lain long without any intention to delay it, and no further action has been had. Mr. Manager BUTLER. By trouble you mean the impeachment, I suppose? The Witness. Yes, sir ; I had no time to have copies made, but I have brought here the original papers which were filed at the time he was appointed. I did not know whether you would want them. Mr. Manager BUTLER. No, sir ; I do not want to see them. The CHIEF JUSTICE. The question pro- posed by the Senator from California has been submitted in writing, and will be read by the Secretary. The question propounded by Mr. Conness was read, as follows: Have you ever taken any step since your act sus- £ ending Foster Blodgett in further investigation of is case ? Answer. Yes, sir: in trying to secure informa- tion. There is considerable information among the papers here on the subject. Mr. Manager BUTLER. That is what we offered to put in. The Witness. Beyond what you offered to put in. Mr. Manager BUTLER. I only offered one thing at a time. We have no more questions to ask the witness. Mr. CURTIS. Nor we. Mr. Manager BUTLER. I now offer, Mr. President, an official copy of the order creating the military department of the Atlantic, and putting General Sherman into charge of it. Mr. EVARTS. What does that rebut? I am not aware that we have given any evidence on that subject. Mr. Manager BUTLER. . Do you object ? Mr. EVARTS. We do-, unless it is relevant and rebutting. I do not recall any evidence that we have given concerning the department ofthe Atlantic. Mr. Manager BUTLER. It is put in to show part ofthe action ofthe President at the same time, on the same day that he restored General Thomas. That date was not fixed until after General Thomas came on to the stand. The object is to show what was done militarily on that same day. That is the reason why it is put in. Mr. EVARTS. I do not see any connec- tion with General Thomas's testimony. The only connection the honorable Mar iger states is that he learned from General 'the nas when he was restored, as if he did ivion now that before. It was all public whernorabrus re- stored. It does not connect itseli*o pril v ith any evidence we have produced. L J put on the ground that it was forgotten oJsver- looked, that is another matter ; but to bring it in as rebutting is a consideration which we cannot consider well suggested. Mr. Manager BUTLER. Mr. President, when I speak of learning a thing in the trial of a cause I mean learning it in the course of the evidence during the trial, not what I know in the country from the newspapers, because they are not always the best sources of knowl- edge. I say that General Thomas testifies that on the I3th of February the President made an order that he should be restored to his po- sition as Adjutant General. That was fixed by his testimony; it was not fixed before. That was an order given on the 13th to General Grant, which was not published, a private letter or order. Now, I want to show that on that same day, or the day before, this new military division was made here, and General Sherman ordered to the command of it, showing the acts of the President at or about the same time. The presiding officer has so well told us heretofore the competency of the acts of a party about the same time as being a part ofthe res gestce, and the Senate has so often allowed testimony to come in to that effect, that I cannot con- ceive why this cannot be competent. It is part ofthe things done by the President on the same day, or the day before Thomas was re- stored. I do not mean to say a word on the question whether it is rebutting; I do not understand that that rule belongs here. The CHIEF JUSTICE. On the part of tho honorable Managers, it is proposed to give in evidence an order establishing the department of the Atlantic. The Chief Justice will sub- mit the question to the Senate. Mr. ANTHONY. I ask forthe yeas and nays. The yeas and nays were ordered. Mr. BUCKALEW. Mr. President, I ask for the reading of a question submitted to Gen- eral Sherman by the counsel for the defense in reference to this very matter. If our Clerk will turn to the record he will find that a question was put to General Sherman as to the estab- lishment of the department of the Atlantic, which was ruled out. The CHIEF J USTICE. The Secretary will read the question referred to. Mr. Manager BUTLER. We shall nottrouble the Senate. This being a matter of public document, I suppose we can refer to it in the argument. We withdraw the offer. The CHIEF JUSTICE. The offer to prove made by the honorable Managers is withdrawn. Mr. Manager BUTLER. I have now, Mr. President arid Senators, a list prepared as care- fully as we were able to prepare it in the time given us, from the laws, of the various officers in the United States who would be affected by the President's claim here of a right to remove at pleasure. That is to say, if he can remove at pleasure and appoint ad interim, this is a list of officers taken from the laws, with their salaries, being a correlative list to that put in by the counsel, showing the number of officers and the amount of salaries which would be affected by the President. In order to bring it before the Senate I will read the recapitula- tion only thus : "In the Navy, War, State, Interior, Post Office. Attorney General, Agriculture, Education, and Treasury, the omccrs are 41.558: tho grand total of their emoluments is $21,180,736 87 a year." I propose that the same course shall be taken with this as with the like schedule, this being a compilation from the laws, that it be printed as part of the proceedings. The CHIEF JUSTICE. Is there any objec- tion? Mr. EVARTS. If it shows what it is there is no objection. The document is as follows : THE CONGRESSIONAL GLOBE. 243 Navy Department as per Navy Register for 1868. Office. No. Annual pay. Total. 1 1 1 1 1 9* 24* 49* 90* 136* 45* 29* 52* 157* 14* 38* 28* 42* 28* 1* jo* 30* 36* 39* 26* 1* 4* 34* 11* 88* 131* 24* 7* 11* 4* 7* $8,000 00 3,500 00 3,500 00 10,000 00 7,000 00 5,000 00 4,000 00 3,500 00 2,800 00 2.3-13 00 1,875 00 1,500 00 1,200 00 800 00 3,500 00 2,800 00 2,343 00 1,875 00 1.500 00 4.000 00 3,500 00 2.800 00 2,343 00 1,875 00 1,500 00 4,000 00 3,500 00 2,800 00 2,343 00 1 875 00 1,500 00 800 00 2,800 00 2,343 00 2,800 00 2,343 00 $8,000 00 3,500 00 3,500 00 10,000 00 7,000 00 45,000 00 90,000 00 171,500 00 252,000 00 318.6-18 00 Lieutenant coinuiauders 84,375 00 43 500 00 62,400 00 123 600 00 Surgeons as captains 49.000 00 Surgeons as commanders 106.400 00 65,301 00 Passed assistant surgeons as lieutenants 78,750 UO 42,000 00 4,000 00 30,000 00 84,000 00 Paymasters as lieutenant commanders Passed assistant paymasters as lieutenants, 84,318 00 73,125 00 39,' 00 00 4,000 00 14,000 00 95,200 00 Chief engineers as lieutenant commanders.. First assistant engineers as lieutenants, Second assistant engineers as masters 25,773 00 165,000 00 196,500 00 19,200 00 Third assistant engineers as midshipmen 19,600 00 Chaplains as lieutenant commanders 25,773 00 Professors of mathematics as commanders. Professors of mathematics aslleutcnant corn- 11,200 00 16,401 00 1.210 $2,464,594 00 ♦Active list. Warrant Officer*. Officer. No. Annual pay. Total. 52 55 36 31 $1,000 00 1,000 00 1,000 oo 1,000 00 $52,000 00 55,000 00 36.000 00 31,000 00 174 $174,000 00 Constructors. Officer. No. Annual pay. Total. 1 1 3 1 5 " $4,000 00 3,500 00 2,800 00 2,343 00 11,500 00 $4,000 00 3,500 00 8,400 00 Naval constructor as lieutenant commander Assistant naval constructors as masters 2,343 00 7,500 00 11 $25,743 00 Retired and Reserved List. Officer. No. Annual pay. Total. 17 65 32 17 3 6 1 -»18 3 3 3 4 15 1 1 4 8 8 1 1 1 1 6 6 6 5 $2,000 00 1,800 00 1,600 00 1.400 00 1,300 00 800 00 500 00 1,600 00 1,400 00 1,300 00 1,000 00 800 00 1,600 00 1,400 00 1,300 00 1,000 00 800 00 1,400 00 1,300 00 1,400 00 1,300 00 1,600 00 600 00 600 00 600 00 600 00 $34,000 00 117,000 00 51,200 00 23.800 00 3.900 00 4,800 00 500 00 Surgeons as captains 28.800 00 4,200 00 Surgeons as lieutenant commanders 3,900 00 Passed assistant surgeons as lieutenants ,., 3,000 00 3,200 00 24,000 00 1,400 00 Chief engineer as lieutenant commander First assistant engineers as lieutenants 1,300 00 4,000 00 6,400 00 11,200 00 1,300 00 1,400 00 1,300 00 1,600 00 3 600 00 3,600 00 3,600 00 3,600 00 236 $346,000 00 Marine Corps. Officer^ Brigadier general and commandant Majors (staff) Captains (staff J Colonel (line) Lieutenant colonels (line) Majors (line) Captains (line) First lieutenants (line) Second lieutenants (line) No. Annual pay. Total 1 3 2 1 2 4 19 SO 27 89 $6,130 00 2,006 00 1,7; 6 CO 3.365 00 3.015 50 2,666 00 1,776 00 1,616 00 1,536 00 $6,130 00 7,998 00 3,552 0» 3,365 00 6 0-1 no 10,631 00 33,744 00 48.4S0 on 41,472 00 $161,436 60 Recapitulation— Navy Department. OMce. No. Secretary of War, &c, and active list 1,210 Warrant officers 174 Naval constructors .- 11 Retired and reserved list 236 Marine corps 89 Total 1.720 Total annual pay. $2,464,594 00 174,000 00 25.743 00 346.000 00 161.436 00 $3,171,773 CO Tabular statement of officers of the Army appointed bytJie President. Secretary of War $3,000 General officers. Bank. No. Annual pay. Total. 1 1 5 10 $10,632 00 9,072 00 5,772 00 3.918 00 $10 632 00 9.072 00 28.800 00 39 180 00 . $87,744 00 Adjutant General's Department. Hank. No. Annual pay. Total. 1 2 4 13 $3,918 00 2,724 00 2.436 00 2.148 00 $3,918 00 » 5,448 CO 9,744 00 27,924 00 Assistant adjutant generals — lieutenant $47,024 00 Inspector GeneraVs Department, Rank. No. Annual pay. Total. 4 3 3 $2,724 00 2,436 00 2,148 00 $10,896 00 7.308 00 6,444 00 $2-1,0-18 00 Bureau Military Justice. Rank. No. Annual pay. Total. Brigadier general — Judge Advocate Gen- 1 1 9 $3,918 00 2,724 00 2.148 00 $3,918 00 2.7J4 00 19.332 00 $25,974 00 Quartermaster* 8 Department. Rank. No. Annual pay. Total. Brigadier general — Quartermaster General, Colonels — assistant quartermaster generals, Lieutenant colonels — deputy quartermaster 1 6 10 15 44 16 $3,918 00 2,724 00 2 436 00 2,148 00 1,650 00 1,650 00 $3,916 00 ] 16 344 00 24,360 00 32,2.'0 00 72.600 00 26,400 OO $175,842 00 244 SUPPLEMENT TO Subsidence Department. Bank. No. Annual pay. Total. Brigadier general— Commissary General 1 2 2 8 16 $3,918 00 2,724 00 2,436 00 2,148 00 1,650 00 $3,918 00 5,448 00 4,872 00 Colonels — assistant commissary general Lieutenant colonels — assistant commissary 17,184 00 26,400 00 $57,822 00 Medical Department, Bank. No. Annual pay. Total. Brigadier general — Surgeon General 1 1 1 4 60 150 5 $3,918 00 2,724 00 2,436 00 2,436 00 2,148 00 1,449 96 1,650 00 $3,918 00 2,724 00 Chief medical purveyor — lieutenant colonel, Assistant medical purveyors — lieutenant 2,436 00 9 744 00 128,880 00 217,494 00 6.600 00 $371,796 00 Pay Department. Bank. No. Annual pay. Total. Brigadier general— Paymaster General 1 2 2 60 $3,918 00 2,724 00 2.436 00 2,148 00 $3,918 00 5,448 00 4,872 00 128,880 00 $143,118 00 Signal Corps, Poet Chaplains. Regimental officers — Cavalry, Engineer Department, Bank. No. Annual pay. Total. 1 6 12 24 30 38 $3,918 00 2,724 00 2,436 00 2,148 00 1,650 00 1,449 96 $3,918 00 16,344 00 29,232 00 51 552 00 49,500 00 55,098 48 $205,642 48 Ordnance Department. Bank. No. Annual pay. Total. 1 3 4 10 20 26 13 $3,918 00 2.724 00 2.436 00 2,148 00 1,650 00 1,449 96 1,650 00 $3,918 00 8,172 00 9,744 00 21,480 00 33,000 00 37,698 96 21,450 00 $135,466 96 Bank. No. Annual pay. Total. 1 $2,724 00 $2,724 00 Bank. No. Annual pay. Total. 30 $1,416 00 $42,480 00 Bank. No. Annual pay. Total. 10 10 30 120 10 10 10 120 120 $2,724 00 2,430 00 2,148 00 1,650 00 1,569 96 1,569 96 1,569 96 1,449 90 1.449 96 $27,240 00 24,360 00 64,440 00 198,000 00 15,699 60 15.699 60 15,699 60 173,995 20 173,995 20 Lieutenant colonels Quartermasters Commissaries ".""]!'." $709,129 60 Artillery, Rank. No. Annual pay. Total. 5 5 15 60 5 5 120 120 $2,544 00 2,256 00 2,028 00 1,530 00 1,530 00 1,530 00 1,410 00 1,350 00 $12,720 00 11,280 00 30,420 00 91,840 00 7,650 00 7,650 00 169,200 00 162,000 00 $492,720 00 In/anlri u Bank. No. Annual pay. Total. 45 45 45 450 45 45 450 450 $2,544 00 2,256 00 2,028 00 1,530 00 1,530 00 1.530 00 1,410 00 1,350 00 $114,480 00 101,520 00 91,260 00 688,500 00 68,850 00 68,850 00 634,500 00 607.500 00 $2,375,460 00 West Point. Rank. No. Annual pay. Total. • 8 $2,240 00 S17.920 00 SUMMARY. Total number of officers, 3,033. Total amount of their salaries, $4,907,831 04. Department of State as per Official Register of 1865. Officer. Secretary Assistant Secretary Envoy extraordinary, &c Envoy extraordinary, &c Envoy extraordinary, &c Ministers resident Secretaries of legation Secretaries of legation Secretaries of legation Assistant secretaries of legation Interpreter and secretary of legation Dragoman and secretary of legation Interpreter Interpreters Interpreters Commissioner and consul general Commissioner and consul general Consul general Consul general Consul generals Consul general Consul general Consul generals Consul general Consuls Consuls Consuls \ Consuls " Consuls ,\\ mm \ Consuls " Consuls "„]„' Consuls .*..."." Consuls ..........".. Consuls [[[[" Consuls ".""' Vice consul .."....! Vice consuls Commercial agents "". Commercial agents Commercial agents Commercial agents Marshals to consular courts Consular clerics *. Judges under provisions of treaty with Great Britain of April 7, 1862 Arbitrator under provisions of treaty with Great Britain of April T, 1862 Arbitrator under provisions of treaty with Great Britain of April 2, 1862 Commissioner Commissioner...... *.."".* Commissioner .""" Secretary of commissioner \ Governors of Territory " " Governors of Territory Secretaries of Territory Secretary of Territory Secretaries of Territory ,"' No. 1 2 2 7 2 2 2 7 17 2 1 1 1 2 2 1 1 1 1 2 1 1 2 1 2 23 12 78 6 9 5 18 3 5 84 1 11 3 3 7 7 7 3 394 Annual salary. $8,000 00 3,500 00 17,300 00 12,000 00 10,000 00 7,500 00 2,625 00 1,800 00 1,500 00 1.500 00 5,000 00 3,000 00 2,500 00 1,500 00 1,000 00 7,500 00 4,000 00 5,000 00 6,000 00 3,000 00 Fees 3,500 00 4,000 00 1,500 00 7,500 00 2,000 00 3,000 00 1,500 00 3,500 00 2,500 00 4,000 00 1,000 00 750 00 500 00 Fees 1,500 00 Fees 2,000 00 1,500 00 1,000 00 Fees 1,000 00* 1,000 00 2,500 00 1,000 00 2,000 00 2,000 00 3,000 00 5,000 00 2,000 00 1,500 00 2,500 00 1,800 00 1,500 00 2,000 00 Total annual salary. $8,000 00 7,000 00 35,000 00 84,000 00 20,000 00 157,000 00 5,250 00 12,600 00 25,500 00 3,000 00 5,000 00 3,000 00 2,500 00 3,000 00 2,000 00 7,500 00 4,000 00 5,000 00 6,000 00 6,000 00 3,500 00 8,000 00 1,500 00 15,500 00 46,000 00 36,000 00 117.000 00 21,000 00 22,500 00 20.000 00 18,000 00 2.250 00 2,500 00 1,500 00 6,000 00 4,500 00 7,000 00 7,000 00 3,000 00 7,500 00 1,000 00 2,000 00 2,000 00 3.000 00 5.000 00 2,000 00 9,000 00 5,000 00 9,000 00 1,500 00 4,000 00 $797,600 00 * And. fees. BEOAPITULATIOH— DEPARTMENT OP STATE. Total number of officers, 394. Total annual salary, $797,6001 THE CONGRESSIONAL GLOBE. 245 Interior Department as per Official Register, 1865. Officer. Secretary-..., Assistant Secretary Commissioner General Land Office Registers Receivers Surveyors of public lands Surveyors of public lands Surveyor of publio lands Surveyor of public lands Commissioner of Patents Examiners-in-chief. Bxaminers Assistant examiners Second assistant examiners Commissioner of Indian Affairs Superintendents Agents „ Agents Special agents Sub-agents Sub-agents Commissioner of Pensions Agents for paying Army and Navy pensions in the several States and Territories Captain of Capitol police Police officers , President Columbia Institution for Deaf and Dumb Professor Columbia Institution for Deaf and Dumb Professor Columbia Institution for Deaf and Dumb : Engineer in. charge of Washington aque duct Superintendent of Hospital for Insane of the Army, Navy, revenue-cutter servioe... Superintendent of police Superintendent of Public Printing Commissioners of police Ex-officio commissioners of police Surgeons of police Police magistrates Corps of detectives Sergeants of police Police patrolmen Sanitary police commissioners Policeman at President's House ' Watchman in the crypt Gatekeeper at Capitol Watchmen on the grounds Watchman at public stables Watchmen at President's House Watchman at reservation No. 2 Doorkeeper at President's House Assistant doorkeeper at President's House.. Publio gardener Gardener at President's No. 1 1 1 73 73 4 3 1 1 1 3 14 12 6 1 7 4 48 7 1 3 1 45 1 27 1 1 1 5 2 3 5 5 10 HO 9 1 1 1 2 1 2 1 1 1 1 1 Annual salary. 548 $8,000 00 3,500 00 3,000 00 500 00* 500 00* 2,000 00 3,000 00 2,500 00 1,800 00 4.500 00 3,000 00 2,500 00 1,800 00 1,600 00 3,000 00 2,000 00 1,800 00 1,500 00 1,500 00 1,500 00 1,000 00 3,000 00 4,000 00t 1,740 00 1,320 00 2,500 00 1,600 00 1,800 00 1,800 00 2,500 00 1,500 00 3,000 00 250 00 250 00 300 00 800 00 840 00 600 00 480 00 480 00 1,320 00 960 00 1,000 00 720 00 •1,000 00 720 00 720 00 720 00 720 00 1,440 00 960 00 Total annual salary. $8,000 00 3,500 00 3,000 00 86,500 00 36,500 00 8,000 00 9,000 00 2,500 00 1,800 00 4,500 00 9,000 00 35,000 00 21,000 00 9,600 00 3,000 00 14,000 00 7,200 00 72,000 00 10,500 00 1,500 00 3,000 00 3,000 00 1.740 00 35,640 00 2,500 00 1,600 00 1,800 00 1,800 00 2,500 00 1,500 00 3,000 00 1,250 00 500 00 900 00 4,000 00 4,200 00 6,000 00 67,200 00 4,320 00 1,320 00 960 00 1,000 00 1.440 00 1,000 00 1,440 00 720 00 720 00 720 00 1,440 00 960 00 $457,870 00 *And fees. fEees : whole compensation not to exceed $4,000 per annum. RECAPITULATION — INTERIOR DEPARTMENT . Total number of officers, 548. .Total annual salary, $457,870. Post Office Department as per Official Register, 1865. Officer. Postmaster General Assistant Postmaster Generals. Postmasters Special agents (Special agents „ Special agent Route agents Local agents Mail contractors Local mail agency Mail messenger service Special mail messenger service. No. Annual Total annual salary. salary. 1 $8,000 00 $8,000 00 3 3,500 00 10,500 00 26,619* r J4,250,000 00 29 1,600 00 46,400 00 3 1,200 00 3,600 00 1 • 2,500 00 2,500 00 410 - §287,000 00 51 - 25,353 00 3,926 - 5,001,315 00 67 - 13,541 27 1,776 - 111,492 32 1,836 51,997 68 34,722 $9,811,699 27 * As per special list corrected by Post Office Department to October 20, 1867. t Too varied for speedy classification. } As per report of Postmaster General. t Approximate. Attorney General's Office and Judiciary as per Official Register, 1865. Officer. No. Annual salary. Total annual salary. 1 1 60 60 2 3 3 4 6 6 $8,000 00 3,500 00 250 00* 250 00* 2,500 00 2,000 00 1,800 00 2.500 00 2,000 00 1,800 00 * And fees. $8,000 00 3,500 00 15,000 00 15,000 00 5,000 00 6,000 00 5,400 00 10,000 00 12,000 00 10,800 00 Assistant Attorney General District attorneys, States and Territories.... Cbrtf justices. Territories .'. 146 $90,700 00 Department of Agriculture as per Official Register, 1865. Officer. No. Annual salary. Total annual salary. 1 $3,000 00 $3,000 00 Department of Education as per law creating Department. Officer. No. Annual salary. Total annual salary. 1 $4,000 00 $4,000 00 Treasury Department as per Official Register of 1865. Office. No. Annual salary. Total annual salary. 1 2 1 1 1 6 1 1 1 1 2 1 1 3 2 1 1 2 6 4 1 1 1 1 1 1 1 1 1 1 1 1 1 226 216 216 1 1 1 1 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 7 2 24 2 9 28 28 34 27 16 48 18 19 18 1 $8,000 00 3,500 00 3,500 00 3,000 00 3,000 00 3,000 00 5,000 00 2,800 00 6,000 00 4,500 00 4,000 00 1,000 00 2,500 00 2,000 00 1,800 00 1,600 00 1,500 00 1,400 00 1,300 00 1,200 00 1,000 00 750 00 480 00 3,000 00 2,000 00 2,000 00 5,000 00 2,500 00 3,500 00 3.000 00 2,500 00 4,000 00 2,750 00 1,500 00* 1,500 00* 1,500 00 3,000 00 2,000 00 6,000 00 3,500 00 2.500 00 2,825 00 2,500 00 2,500 00 3,500 00 2,000 00 2,000 00 2,000 00 2,000 00 2,000 00 4,500 00 4.500 00 3.000 00 3,000 00 3,000 00 2,000 00 1,800 00 1,800 00 1,800 00 500 00 3,500 00 3,000 00 3,000 00 3,000 00 2,500 00 2,500 00 5,000 00 3,000 00 2,500 00 $6 per day. 5 per day. 1,500 00 1,800 00 1,400 00 1,200 00 900 00 1,400 00 1,200 00 900 00 2,000 00 * And fees. $8,000 00 7,000 00 3,500 00 3,000 00 3,000 00 18,000 00 5,000 00 2,800 00 6,000 00 4,500 00 8,000 00 1,000 00 2,500 00 6,000 00 3,600 00 1,600 00 1,500 00 2,800 00 7,800 00 4,800 00 1,000 00 750 00 480 00 3,000 00 2,000 00 2,000 00 5,000 00 2,500 00 3,500 00 3,000 00 2,500 00 4,000 00 2,750 00 602,008 90 498,239 66 324,000 00 3,000 00 2.000 00 6,000 00 3,500 00 5,000 00 2,825 00 2,500 00 2,500 00 3,500 00 2,000 00 2,000 00 2,000 00 2,000 00 2.000 00 4,500 00 4,500 00 3.000 00 3,000 00 3,000 00 2,000 00 1,800 00 1,800 00 1,800 00 500 00 3,500 00 3,000 00 3,000 00 3,000 00 2,500 00 ' 2,500 00 5,000-00 21,000 00 5.0UO 00 52,560 00 3,650 no 13,500 00 23,900 00 23,900 00 61,200 00 37,800 00 19,200 00 43,200 00 25,200 00 22,800 00 16,200 00 2,000 00 18,800 00 Comptroller National Currency Bureau. ...a Deputy commissioner of internal revenue- Supervising architectof Bureau of Construc- Assistant supervising architect ofBurcau of Assistant and foreman of weights and meas- Melter and refiner of Mint at Philadelphia, Chief coiner of Mint at Philadelphia Superintendent of branch mint at San Fran- Treasurer of branch mint at San Francisco.. Assayer of branch mint at San Francisco... Melter and refiner of branch mint at San Coiner of branch mint at San Francisco Superintendent of branch mint at Denver.. Assayer of branch mint at Denver Chief coiner of branch mint at Denver. , Melter and refiner absence .of legal verbiage can inure to the benefit of the accused. The insufficiency which will avail him must be such an entire want of substance as takes all soul and body from the charge and leaves it nothing but a shadow. Neither shall the respondent be allowed to escape be- cause of any immaterial variance between the averment and the proof. If we have succeeded in sustaining the principal weight of each sep- arate article, then we are entitled to a finding upon each. These are the propositions which I father from the following authorities : Trial of udge Peck, page 232, (Mr. Wirt, counsel for respondent ;) Mr. Webster, in the trial of Judge Prescott, page 25 ; Mr. Shaw, in the same case, page 45; report from the committee of the House of Commons appointed to inspect the Lords journals, April 30, 1794. Story, on the Constitution, says: "It is obvious that the strictness of the forms of proceeding in cases of offenses at common law are ill adapted to impeachments. The very habits grow- ing outof judicial employments, the rigid mannerin which the discretion of judges is limited and fenced in on all sides, in order to protect personsaccused of crimes, by rules and precedents, and the adherence to technical principles which, perhaps, distinguishes this branch of the law moro than any other, are all ill adapted to the trial of political offenses in the broad course of impeachments." * * * * "There is little technical in the mode of proceeding: the charges arcsufficiently clear, and yet, in a general form, there are few exceptions which arise in the application of evidence which grow out of mere technical rules and quibbles; and it has repeatedly been seen that the functions have been better under- stood and more liberally and justly expounded by statesmen than by mere lawyers. An illustrious in- stance of this sort is upon record in the case of the trial of Warren Hastings, where the question whether an impeachment was abated by a dissolution of Par- liament was decided in tho negative by the House of Lords as well as tho House of Commons, against what seemed to be the weight of professional opin- ion."— Story, sees. 762, 763. WHAT AEE IMPEACHABLE OFFENSES ? The next question which it is proper to ask is, for what crimes and misdemeanors may an . officer be impeached? Can he be impeached for any other than an indictable offense? The authorities certainly sustain the Managers in asserting that he may be. We cannot search through all the cases, as they are too numer- ous, -but will call the attention of the Senate to some that should be regarded as good au-. thority, and the opinions of those who should be regarded as learned in the law. THE CONGRESSIONAL GLOBE. 253 Mr. Madison, in discussing the power of the President, used the following language : " What will bo tho motives which the President can feel for the abuso of his power and the restraints that operate to prevent it ? In the first place ho will be impeachable by this House before the Senate for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject himto impeachmentandremovalfrom his own high trust." — Annals of Congress, 1804-5, vol. 1, p. 517. The trial of Blount, 1788-89. Story, in speaking of that case, says : "In the argument upon Blount's impeachment it was pressed with great earnestness that there is not a syllable in the Constitution which confines im- peachment to official acts, and it is against the plain- est dictates of common sense that such a restraint should be imposed." — Story, sec. 802. Trial of Judge Chase, February 26, 1805. Mr. Manager Nicholson says: " If, therefore, tho President of the United States should accept a bribe he certainly cannot be in- dicted for it, and yet no man can doubt that he might be impeached. If one of tho heads of Departments should undertake to recommend to office for pay ho certainly might bo impeached for it, and yet I would ask under what law and in what court could ho be indicted." — Judge Chase's Trial, p. 564. In the trial of Judge Chase Mr. Manager Randolph says: "It has been contended that an offense to be im- peachable must be indictable. For what, then, I pray you, was it that this provision of impeachment found its way into the Constitution." * * * * *' If the Constitution did not contemplate a dis- tinction between an impeachable and an indictable offense whence this cumbrous and expensive pro- cess, which has cost us so much labor and so much anxiety to the nation? Whence this idle parade, this wanton waste of time and treasure, when the roady intervention of a court and jury alone was wanting to rectify the evil?" — Annals of Congress, 1804-5, p. 642. By permission of the Senators I will read some extracts that I have made from the speeches of some of the most learned men of England on this same question, which, was dis- cussed in the trial of Queen Caroline, in the year 1820. Earl Grey, in speaking of the powers of Parliament, said : "He must maintain this principle, supported on the ground of parliamentary law, and bottomed on the constitution of the country, that on all occasions, when a great State necessity or a matter of great State expediency exists, Parliament were vested with extraordinary powers, and it became their duty to exercise those extraordinary powers in order to pro- cure that remedy commensurate with such State necessity or expediency, which no proceeding in a court of law could effect." — Trials Queen Caroline, vol. 1, p. 8. In the same case Brougham (since made a lord) said : "Impeachment was a remedy for oases not cogni- zable by the ordinary jurisdiction." * * * * "The House of Commons might impeach for what- - ever was indictable, but they also might impeach in cases where no indictment could be found. Ho sub- mitted, therefore, thatsome satisfactory reason ought to be stated why impeachmentwas not resorted to in this instance." — Vol. 1, p. 22. Again, he says : "The learned attorney general has held that no impeachment could lie unless some law was violated ; but the opinion was contrary to the doctrine laid down by thegreatest writers on the law of impeach- ment. Lord Coke did not so limit the power of Par- liament. He regarded this power as most extensive, and in describing it quoted this remarkable expres- sion: 'That it was so large and capacious that he could not place bounds to it either in space or time.' In short, this maxim has been laid down as irrefra- gable, that whatever mischief is done, and no remedy could otherwise be obtained.it is competent for Par- liament to impeach." * * * * "Why N Was impeachment competent in the case of the mis- demeanor of a public functionary? Expressly be- cause no remedy was to be found by any other means; because an act had been committed which justice required should be punished, but which could only be reached by Parliament." * * * * "It happened that the very first impeachment which occurred in the history of Parliament was one which neither related to a public officer nor to any offense known to the law. It was the case of Richard Lyons and others, who were complained of for re- moving the staple of wool to Paris, for lending money to the king on usurious contracts. The Btatute against usury had not then been passed, aud'thcre were va- rious other charges against the parties which formed no legal offense. The case was one in which mer- chants were, among other things, charged with com- pounding duties with the king for a small percent- age." Also, the "case of Sir Giles Mompessen, for the sale of patents." This was not an indictable offense, and is the more remarkable from being recorded in "Coke's Institutes." Hence we find that in the very inception of trials of impeachment no indictable offense need have been committed. Again^we find Mr. Brougham stating: "That the House would exercise the right of im- peachment, not because the offense was liable to a five pounds penalty, not because it was < indictable, but because some evil had been committed which the ordinary courts of law could not reach. This he conceived was the only constitutional principleupon which impeachment rested." * * * * "The case of Mr. Hastings illustrates his argument, for of the articles of impeachment preferred against him four out of five were for offenses of a nature of which no court of law could take cognizance." — Vol. 1, pp. 62 and 63. I again call attention to the arguments and opinions of learned men of our own country, which most clearly sustain our view on the point now under discussion. On the trial of Judge Peck Mr. Manager Buchanan says : "A gross abuse of granted power and an usurpa- tion of power not granted are offenses equnlly worthy of and liable to impeachment." — Page 428. In the same case Mr. Manager Wickliffe's remarks are so applicable to the conduct of the respondent that I may be pardoned for giving them in this connection. He says : "Take the case of the President of the United States. Suppose him base enough orfoolish enough, if you please, to refuse his sanction to any and every act which Congress may pass. This isapowerwhich, according to the Constitution, he can exercise. Will it be contended that he could be indicted for it as a misdemeanor in any court, State or ^Federal? Yet, where is the man who would hesitate to remove him from office by impeachment?" — Peck's Trial, 1831, p. 309. In the same case Mr. Wirt, of counsel for the respondent, said : "The President, Vice President, and all civil offi- cers shall be removed from office on impeachment for and on conviction of treason, bribery, or other high crimes or misdemeanors.' (Constitution, art. 2, sec. 4.) The Constitution itself defines treason, but it does not define bribery, nor does it define those other high crimes and misdemeanors forwhich these officers may be impeached and removed. Now, what does the Constitution mean by the expression high crimes and misdemeanors? It has a meaning; what is it ? and where are you to look for it ? The phrase is obviously borrowed from the common law. This instrument thus, by its own terms, connects itself in this instance with the common law, and authorizes you to go to that law for an explanation of its mean- ing. In the very proceeding, therefore, in which you are now engaged, the common law is in force for the definition of the high crime or misdemeanor which you are called on to punish." — Peck's Trial, pp. 498 and 499. Mr. Story, in discussing what are the func- tions to be performed in impeachments, says: " The offenses to which the power of impeachment has been and is ordinarily applied as a remedy, are of a political character," * * * * "what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpations, or habitual disregard of the public interests, in the discharge of duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and com- prehensive principles of public policy and duty. They must be judged of by the habits and rules and principles of diplomacy, of departmental operations and arrangements; in short, by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts; which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurispru- dence." — Story on Constitution, sec. 762. Treason is defined in the Constitution itself; bribery is defined by common law; and Mr. Story, in discussing the definition of impeach- able crimes, says: "The only practical question is, What are deemed high crimes and misdemeanors? Now, neither the Constitution nor any statute of the United Stateshas in any manner defined any crimes except treason and bribery to be high crimes and misdemeanors, and as such impeachable. In what manner, then, are they to be ascertained? Is the silence of tho statute-book to be deemed conclusive in favor of the party until Congress have made a legislative decla- ration and enumeration of tho offenses which shall bo deemed high crimes and misdemeanors? If so, then, as has been truly remarked, the power of im- peachment, except as to the two expressed cases, is a complete nullity; and the party is wholly dis- punishable, however enormous maybe his corrup- tion or criminality. — Story's Com., see. 794. In further reasoning upon the same subject, he says : "There are many offenses, purely political, which have been held to bo within the reach of parliament- ary impeachments, net one of which is in the slight- est manner alluded to in our statute-books. And, indeed, political offenses are of so various and com- plex a character, so utterly incapable of being defined or classified, that the task of positive legislation would be impracticable, if not almost absurd to at- tempt it." ****** The only safe guide, in such cases, must be the common law, which is the guardian at once of private rights and public liberties; and however much it may fall in with the political theories of certain statesmen and jurists, to deny the existence of a common law belonging to and applicable to tho nation in ordinary cases, no one yet has been bGld enough to assert that the power of impeachment is limited to offenses positively defined in the statute- book of the Union as impeachable high crimes and misdemeanors." — Section 798. Also, same authority: "In examining the parliamentary history of im- peachments it will bo found that many ofienses not easily definable by law, and many of a purely politi- cal character, have been deemed high crimes and misdemeanors, worthy of this extraordinary remedy. Thus lord chancellors and judges and other magis- trates have not only been impeached for bribery and acting grossly contrary to the duties of their office, but for misleading theirsovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power. So, where a lord chancellor has been thought to have put the great seal to an ignominious treaty; a lord admiral to have neglected the safeguard of the sea; an em- bassador to have betrayed his trust; a privy coun- selortohavepropoundedor supported pernicious and dishonorable measures; or a confidential adviser of his sovereign to have obtained exorbitant grants or incompatible employments— these have been all deemed impeachable offenses."— Story' e Com., book 3, chap. 10, sec. 798. Mr. Story, after his examination of impeach- ment trials in England and the few cases in this country, came to the following conclusion in regard to the rule applicable to trials of im- peachment before the Senate of the United States : " Congress have unhesitatingly adopted the conclu- sion that no previous statute is necessary to authorize an impeachment for any official misconduct, and the rules of proceeding and the rules of evidence, as well as the principles of decision, have been uniformly promulgated by the known doctrines of the common law and parliamentary usage. In the few cases of impeachment which have hitherto been tried no ono of thecharges has rested upon any statutable misde- meanor."— Story's Com., book 3, chap. 10, sec. 797. Although we have shown that both English and American authorities sustain us in the position that an offense need not be punishable or indictable by statute law to be an impeach- able offense, yet we are told that British pre- cedent should not influence the case, because they hold the ministers of the Crown account- able for the honesty, legality, and utility of measures proposed by them, and punishable by impeachment for failure in any of these particulars ; yet that construction of the law of impeachable ofienses has obtained because Par- liament in Great Britain is substantially omnip- otent; they may pass ex post facto , retroact- ive laws, bills of attainder, and even change the constitution itself; therefore, that when the Commons present any officer of the Gov- ernment for any claimed offense, it is not to be considered whether it is made so by any pre- existing laws; because, if the Commons im- peach and the Peers adjudge the party pre- sented guilty, the joint action of the two Houses would only be in effect to declare the act complained of to be noxious or injurious, although not so enacted by any previous legis- lation, and that this would be within their clear right. But that our Constitution, by prohibit- ing the passage of any retroactive or ex post facto law or any bill of attainder, has limited impeachment for high crimes and misdemean- ors to those acts only which have been declared to be such crimes and misdemeanors by pre- existing laws; aud, therefore, in this country, whatever might be the case in England, im- peachment must be limited to such offenses only as are made so by statute or at common law. There is force and speciousness, to say no more, in this view, and it deserves a careful and candid consideration. The weight of the argument is derived from the suggestion that the judgment following im- peachment is in truth a punishment of crime: that failing the argument fails. True it is, our Constitution forbids the passage of any retro- active or ex post facto law, or bill of attainder, as a punishment for crime* but it is equally 254 SUPPLEMENT TO true that it says that "judgment is cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States ; but the party con- victed shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law." Thus it appears that the judgment of impeachment is nota punishment fon crimes nor misdemeanors, but extends only to removal from office or disqualification to hold office, leaving the party (if a crime is com- mitted) to be punished therefor by other provis- ions of law, which shall neither be retroactive, ex post facto, nor in the nature of a bill of attainder. This provision would seem, therefore, to make it clear that impeachment is not a pun- ishment for crime. True, an officer may be impeached for a crime, technically, either by common or statute law, but he cannot be pun- ished therefor as a part of the judgment of im- peachment. He can only be removed from office, and his punishment, if any, is left to the ordinary courts. We are led to consider, there- fore, whether, in the language of the Constitu- tion and laws of the United States, the term " removal from office" is anywhere used as the penalty for a crime. Of course that phrase must have the same construction, whether found in the Constitution, which is paramount law only, or in the statutes enacted in 'conformity with the Constitution, which are equally laws of the United States. Now, it is admitted by all sides that any officer may be removed under our laws for any reason, no reason, or for political reasons sim- ply, the contest between the Executive and Congress being as to the person or body by whom such removal shall be exercised — whether by the President alone or by the President and Senate in concurrence, or whether such right of removal may be restrained by legislation. This powerof removal by somebody is recog- nized in a variety of statutes, but nowhere as the penalty for crime. The phrase " removal from office" appears only once in the Consti- tution. Must it not, therefore, have the same meaning and construction there as it. does in the other laws of the United States? Is not this construction of the phrase "removal from office" made certain by the uniform legislation and practice of the Government? And as the phrase "removal from office" is only found in the Constitution as the consequence of convic- tion upon impeachment, thejudgment of which can extend no further than such removal or disqualification for office, is it not equally cer- tain that such judgment is not a punishment for crime, and, therefore, that an officer may be removed by impeachment for political reasons, as he may be for the same reasons by any De- partment of the Government in which the right of removal is vested? Is not this view of the constitutional pro- vision strengthened by this consideration : that by the theory of and practice under the Con- stitution, every officer, other than the Pres- ident and Vice President, may be, and in prac- tice is, removable by the power that appointed him at pleasure ; or, in other words, when the service of the Government, in the judgment of the appointing power, seems to make such removal necessary and proper? Is it not, therefore, more consonant with the theory of the Constitution to hold that the President may be removed from office by presentment of the House, who represent in his case the people who appointed him, if the reasons for the re- moval shall be found sufficient by two thirds of the Senate, who, by the Constitution, are to adjudicate thereupon? Can we not illustrate this by supposing a, case of inability in the President to perlorm the duties of his office because of his insanity? Now, insanity is not a crime, but every act of an insane man might, and almost necessarily would, be a misde- meanor in office. Is the phrase " misdemeanor in office " any more than the Norman French translation of the English word misbehavior? Judges are to hold office during good behavior. Is not that equivalent to saying they hold office during good demeanor, i. e., while they demean them- selves well in office? Are not both phrases the equivalent of the Latin one "dum se bene gesserit ? ' ' How is an insane President or an insane judge to be removed under our Constitution? Clearly not until his insanity is ascertained. By whom is that to be ascertained ? The Con- stitution makes no provision save by present- ment by the House, and adjudication by the Senate. And it is remarkable, as sustaining this argument, that the first case of impeach- ment of a judge under our Constitution, Judge Pickering's, was of an insane man, as the de- fense allege, and clearly made out by evidence. Judge Pickering was removed, the defense of insanity apparently not being considered by the Senate. Is it not clear that the process of impeachment, under the English constitu- tion, being a mode of punishment of all crimes, as well as a method by which an officer whose official or personal conduct was hurtful to the State might be removed, that our Constitution limiting the form of impeachment to removal only takes away from it its punitive element which it vests in the ordinary courts of law alone; thus leaving the process of impeach- ment an inquisition of office for any act of the officer or cause which the House of Represent- atives might present as, and the Senate adju- dicate to be, hurtful to the State or injurious to the common weal. Will any one say that if the President should veto every bill that should pass the Congress — • and there not be a two-thirds vote against his veto — and thereby defeat all appropriations, so as to completely block the wheels of Gov- ernment, that he could not be impeached for an improper use of said power, although he is authorized by the Constitution to use such power? Here would be a case wherein the exercise of lawful power was done in such a way as to become so oppressive and obviously wrong that there must be a remedy, and im- peachment would be the only one. DEFINITION OF CRIMES AND MISDEMEANORS. Having thus shown that a party can be im- peached for offenses not punishable by statute law, it behooves us next to inquire what have been the definitions of crimes and misdemean- ors as used by writers of acknowledged author- ity. It is by the light of these definitions that we are to inquire and determine what culpa- bility, if any, attaches to each and all of the acts by the President of which we complain, and how far he may palliate or justify the act after having admitted its performance. These which I shall read are but few among the many authoritative definitions of crimes and misde- meanors. What is a crime? Blackstone defines a crime or misdemeanor as being — " An act committed or omitted in violation of a public laweithcrforbidding or commanding it. This general definition comprehends both crimes and mis- demeanors, which, properly speaking, are mere synonymous terms; though in common usage the word crimes is made to denote such offenses as are of deeper and more atrocious dye; whilo smaller faults and omissions of loss consequence are comprised un- derthegentlernameofmisdemeanorsonly." — Black- stone's Commentaries, book 4, p. 5. "The distinction of public wrongs from private crimes and misdemeanors from civil injuries seems principally to consist in this : that private wrongs or civil injuries arc an infringement or privation of the oivil rights which belong to individuals merely as individuals; public wrongs or crimes and misde- meanors are a breach and violation of the public rights and duties due to the whole community con- sidered as a community in its social aggregate capa- city." — Blackstone' s Commentaries, book 4, p. 5. " When the words high crimes and misdemeanors aro used in prosecutions by impeachment, the words high crimes and misdemeanors have no definite sig- nification, but are used merely to give greater solem- nity to the charge." — Sentence from u note to Black- stone's Commentaries, 5 Christian. Or, to state it stronger even than Blackstone does, that the defendant, may have the benefit of it, a crime or misdemeanor is the violation of a public law where there shall be a joint operation of act and intention in the perpetra- tion of the act. Mr. Blake, in discussing Prescott's ease, defines a misdemeanor perhaps better than I have heretofore stated it. I will therefore give his definition : "To misconduct is to misbehave; to misbehave is to misdemean; to misdemean is to be guilty of amis- demeanor— nothing more— nothing less, fhe term is technical, signifying a crime: hence it follows, as a conclusion from these premises, that misconduct or misbehavior, in its legal interpretation, can signify nothing less. INTENTION — HOW DETERMINED. When the unlawful act is shown, how, then, do we gather the intention? It can only be done from all the circumstances surrounding the commission cf the act. I believe it is a rule, both in law and morals, that every man is presumed to intend the nat- ural and probable consequences of his own act. A good motive never accompanies a bad act, nor a bad one a good act. Mr. Buchanan, in the trial of Judge Peck, states this proposition so clearly that I will adopt his language, (with his quotations) : "'Out of the abundance of the heart the mouth speaketh,' 'The tree is known by the fruit,' are ax- ioms which we have derived from tho fountain of all truth. Actions speak louder than words, and it is from the criminal actions the judges must infer the criminal intention." Speaking of the respondent, Peck, he says: "If he shall, in an arbitrary manner and without the authority of law, imprison a citizen of this coun- try and thus consign him to infamy, are you not to infer his intention from the act? Is not the act itself the best source from which to draw the infer- , ence? Must we, without any, evidence, in tbespirit of false charity and mercy ramble out of the record to imagine a good motive for this bad conduct? Such rule of decision would defeat the execution of all human laws. Ko man can doubt but that many a traitor during the American Revolution believed in his conscience that he owed allegiance to the king of Great Britain and would violate his duty to God if he should lend the least aid in the causo of freedom. But if sueh a man had commit- ted treasonable acts, will any person say he was not guilty of treason because in his secret heart he might have had a good intention? Does a poor, hungry, naked wretch filch from my pocket a single dollar to satisfy the cravings of appetite, the law in- fers a felonious intent, and he must be convicted and punished as a thief, though he may have had no otiier purpose but that of saving himself and his children from starvation. And shall a man who has been selected to fill a high judicial position on account of his knowledge of the laws of the land be permitted to corae before the Senate and suy : ' It is very true that I did, against law, imprison an American citi- zen and deprive him for eighteen months of prac- tising that profession by which he lived; it is true that I violated the Constitution of the United States by inflicting on him unusual punishment, but I did not know any better; I had a good intention.' " And, Mr. President, in the case at bar are we to be told that this violation of law car- ries with it no bad motive, that the law was broken merely to test its strength? Is a man to be permitted to break a law under the pre-, tense of testing its constitutionality? Are the opinions of a man against the soundness of a law to shield him from punishment for the vio- lation of said law? If so, the opinion of the criminal becomes the rule by which you are to try him, instead of the law which he has bro- ken. If this doctrine be established every traitor in the land will find a complete justifi- cation for his many crimes against the Gov- ernment of the United States in this : that he believed that secession was no violation of the Constitution. Doubtless every robber and murderer has some reason by which he justi- fies himself in his own mind for the commis- sion of his crimes. But is that a justification or excuse in law? Had Booth (the assassin) been captured alive, doubtless on his trial he would have said that he thought he was doing no wrong in murdering the President, could he thereby have advanced the interests of his friends in the South; and would have also stated, no doubt, that he was advised by his friends to commit the act. And the accused claims the same as an excuse for his conduct. He claims that he was advised by his minis- ters at the heads of the different branches of the executive department. But, sir, in neither case can such an excuse be considered as in the least manner forming any justification or excuse in law. This plea, answer, or excuse pleaded, if believed by the President and his learned counsel as being any excuse whatever THE CONGRESSIONAL GLOBE. 255 for his violations of law, we may here get some clue to the hesitancy in the trial of Jefferson Davis, the great criminal of the rebellion, (in- asmuch as he certainly believed he was doing no wrong in breaking the law, as his opinion was that he was maintaining a great princi- ple.) As the counsel, or a part of them, who now defend tue President on this principle, must prosecute Jeff. Davis against this princi- ple, it would seem that, by adopting this theory, they will succeed in releasing both instead of convicting either. Sirs, adopt this new theory, and you thereby unhinge the law, open wide the prison gates, and give safe conduct to every criminal in the land, no matter how high or low his position, or how grave or small his offenses. Having thus shown what are impeachable offenses, the definition of crimes and misde- meanors, and how we are to gather the inten- tion of the accused in the violation of a law, it becomes necessary to examine somewhat the basis of the justification stated by the de- fendant for his action. respondent's defense to first two charges. The respondeat admits the facts upon which the first charge rests, but denies that they con- stitute an offense for which he is answerable to this Senate, sitting as a court of impeachment. This denial involves two inquiries: 1. Had the President the power to re : move the Secretary of War under the cir- cumstances ET VIRTUE OF THE CONSTITUTION and the laws as they stood prior to the passage of the tenure-of-office act ! 2. Had he the right to, remove that of- ficer UNDER THE TENURE-OF-OFFICE ACT ? It must be conceded that a negative answer to either of these propositions is equivalent to a verdict of guilty. The respondent has stated his defense upon the highest possible grounds, and it is of the first importance that his rea- sons be put to the severest test, for they un- derlie the whole network of our* admirable system of Government. The question here involved was crowded into the smallest com- pass .by the respondent's distinguished pre- mier, on a memorable occasion, when he put to a gaping multitude, heated by the inflamma- tory speech of this respondent, this question : " Will you have Andrew Johnson President or king?" Sir, it was gratuitous in this respondent to attempt to purge himself by his answer of an intent to violate the Constitution and laws of the land. His answer stands upon a right which he claims began with his high office, and has clung to the President as an undisputed prerogative since the days of Washington by virtue of the Constitution. If he is right, the motive, whether good or bad, cannot make him answerable ; if he was wrong, the motive fol- lows. The innocent violation of a law is not supposable. If there was in this action of the President the exercise of a rightful power he must be acquitted of this charge ; if he acted outside and in violation of law he must be convicted, whatever his motive. Let us, then, examine the two inquiries suggested : Sirs, I think there exists a widespread and dangerous misapprehension as to the powers and prerogatives of the President. We have been in the habit of speaking of three coordi- nate branches of Government in such connec- tion and in such manner as to imply that each possesses coequal power with the other. One of the transcendently valuable results of the late war has been the fixing the powers of our three branches of Government where they prop- erly belong, the resolving of hitherto blended powers into the original elements of Govern- ment. The rebellion was a war of encroach- ments upon the rights of the people. The people triumphed, and they now insist that the victory shall not be a barren one. I hold that the President of ihe United States possesses no power other than that given him by the Constitution and the laws ; and I mean by this that there are no inherent powers in the Executive, no reserved authority, no im- plied prerogatives other than those which are necessarily dependent upon and derivable from the expressed constitutional provisions and the laws. With the evils of a monarchy so fresh in their memory theframers of the Constitution sought to surround the President with such checks as to make him a mere executive officer — the servant of the people. Ilis powers were spe- cifically defined and confined to the narrowest compass ; except the high honor of receiving embassies as the representative of the Govern- ment, he was stripped of all attributes of sov- ereignty ; he was given no jurisdiction over the legislative or judicial branches, but, on the contrary, was made amenable to the former for his unofficial as well as official conduct ; he can create no office, and his appointing power is only conditional ; he is unable to declare war or alone make treaties; his authority is mainly negative, confined chiefly to offering sugges- tions to Congress ; granting pardons and re- prieves, to concluding treaties and appointing embassadors and other public officers " by and with the advice and consent of the Senate." He is the Executive only, and "shall take care that the laws be faithfully executed." He is without the least judicial attribute ; and Mr. Kent says: " When laws are duly made and promulgated they only remain to be executed. No discretion is sub- mitted to the executive officer. It is not for him to deliberate and decido upon the expediency of the law. What has been once declared to be law under all tlte cautious forma of deliberation prescribed by ihe Con~ etitution ought to receive prompt obtdience." — Kent's Commentaries, vol. 1, p. 291. To the legislative is given the power of super- vising the Executive's acts, and to remove him from office for "high crimes and misdemean- ors." At the time of the formation of our Government so jealous were the people of their rights and so fearful lest the President might assume undue authority and obtain the power of a monarch, that it was only by the most strenuous exertions of the friends of the pro- posed Constitution, in triumphantly showing that this power of removal made him subserv- ient to Congress, that the public mind became reconciled, and the Constitution was finally accepted by the people. They seemed even then to well understand their rights. The great danger attending the appointing power was perceived. Then, as now, the people feared the enormous patronage of the Executive if left unrestricted, and they appreciated the fact so patent to-day that lust for power would be likely to corrupt officials and cause them to " Crook the pregnant hinges of the knee. Where thrift may follow fawning." Hence, as was thought, "effective measures of keeping officials virtuous while they con- tinue to hold their public trusts". were inter- posed by making the appointing power a depen- dency upon the Senate. However we may guard this power, it will ever be liable to be made a source of corruption. Office will be the bribe held out by unprincipled Executives ; and at all times there will be found men base enough to accept that bribe. This evil is un- avoidable, and to save the nation as far as pos- sible from this curse is appointment made a joint power. The second clause of section two, article two, of the Constitution, says : "He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate shall appoint, embassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for." No shadow of authority is here given to the President alone to appoint any officer what- ever, not even the most inferior, except as invested with power by Congress ; on the con- trary, it is made a joint act of the President and Senate. And why was this made a joint power? In order to protect public interests, to prevent a vicious Executive from displacing faithful officers and supplanting them with his own tools and confederates; to prevent the consummation of just such a conspiracy as was conceived by the respondent to obtain possession of all departments of Government, and to use the power thus obtained against the people, even if it involved another great na- tional strife and appeal to arms. But, what- ever may have been the reasons which led to this being made a cooperative power of the President and Senate, the fact that it is thus made 1 stands uncontroverted, and cannot be explained away. Words have lost their mean- ing if other construction be put upon it. I wish, however, to direct attention to the re- markable connection of the appointing with another — the treaty-making power. Mauifestly the fi-amers of the Constitution had some ob- ject in thus blending the two powers ; and the reasons given for making the President and Senate parties to treaties apply with equal force to the appointing power. Both the Sen- ate and President are necessary to make a, treaty; and in the same sentence the same parties are made the appointing power. Reck- less of his acts as has been the respondent in this case, and regardless as he has proved of the Constitution, he has never yet dared to assume to be the sole treaty-making power in this Government; that, without the concur- rence of the Senate, he can conclude treaties and annul them. Sirs, under the Constitution the treaty-making and appointing powers are identical; the same parties that make treaties make appointments ; the President and Senate are both as essential in perfecting appoint- ments as in making a treaty. And happy for the American people is this so, or would we again have the din of battle ringing in our ears and war once more sweeping over the land. Human genius has not yet been able to frame a rule for government in which all the powers are so perfectly defined and balanced as to be literally equal. Our own Constitution more nearly approaches such a form than any other that has been given to the world ; but even in this instrument, framed by the wisest patriots of the age, one branch in the Government is made superior to the others. This superiority follows from the nature of the duties with which each branch is intrusted and the necessity of some controlling influence — the exponent of the people's will — in order to check usurpa- tions and correct abuses, which in a republic are likely to arise in departments not directly responsible to the people. The grand object to be attained by our Constitution was the con- solidation of the several States into one nation by such a compact as would secure •' the great- est good to the greatest number." It was to be a Government of the people, for the people. The experience of ages had shown the neces- sity of a division of powers, and that one of these powers should possess an influence su- perior to that of the others ; but no one power was made supreme or wholly independent of its contemporaries. The judiciary is eminently "conservative" in its character; it is depend- ent upon the executive and legislative for its existence and perpetuity, is without creative authority, and its duties are mainly those of an advisory character. That controlling influence in this great trinity of powers which form our Government is the people, acting through their chosen Represent- atives in Congress assembled. Even the most casual reader of the Constitution must see that such was the intent of its framers from the wide range of authority delegated, even to regulating the executive and judiciary. The Constitution lays down this great fund- amental principle : "All power is derived from the people." Congress is the only branch in our Government chosen directly from and by the people. The frequency of elections en- ables the people to change or ratify any policy that Congress may adopt by retiring its mem- bers or indorsing their acts by reelection. This makes the legislative the mouth-piece of the people ; to the people alone is Congress responsible, and it. is through Congress the people are immediately represented in the Government. The magnitude of the duties assigned to the legislative, and the authority 256 SUPPLEMENT TO given that branch over the executive and judi- ciary, aside from the imperative necessity, fully sustain the assumption that the legislative is the superior power in the three departments of Government mentioned in our Constitution. Indeed, upon no other theory could the Gov- ernment be sustained. This control of the people in their Government is the great feature in republicanism ; this power of the many is the distinctive character of our Constitution. While the power of the executive is qualified and restricted by the legislative, the authority of the latter is uncontrolled by any other de- partment. It .makes and unmakes ; it removes presidents, judges, and other civil officers who maybe guilty of high crimes and misdemeanors, and sweeps away all obstacles in the way of the nation's advancement and prosperity, and from its verdict, in a ease of trial as this, there is no appeal. A further examination of section two, article two, will disclose a peculiarity of expression ■which is important. "He shall nominate, and by and with the advice and consent of the Sen- ate shall appoint," "all officers," &c. The very first step in the matter of appointment is by the Constitution given to the President to "nominate." The appointment is still in- choate. The next step is the concurrence of the Senate, and this completes the ceremony of appointment. It then becomes the duty of the President to issue the commission. In the case of Marbury vs. Madison (1 Cranch, 137, 156) it was distinctly affirmed in the opinion of the court that the President could not with- hold u. commission from an officer nominated and confirmed. (See, also, Story on the Con- stitution, section 1537.) It is the essence of all contracts or matters in which two or more are to act that their minds must meet and concur, and when this is done the act is com- plete, and is thenceforward beyond the control of one without the consent of the other. But note again, the Constitution does not confer the power on the President to "appoint." His power is to "nominate," and when the Senate concur, and not till then, is he em- powered to "appoint," and in doing this he merely carries out the previously determined wish of both parties to the appointment. In Marbury us. Madison the court says, to "ap- point and commission are not one and the same thing." In the United States vs. LeBaron (19 How- ard, 74) the court says the commission is not necessarily the appointment, although conclu- sive evidence of the fact. It would have been the simplest thing to have stripped this ques- tion of all doubt when the Constitution was framed had there been a disposition to confer the authority upon the Executive here claimed in the defense. We know that the very matter now before this honorable- body was discussed then, so that it cannot now be said we are called upon to decide new questions. By what right, then, or upon what principle of construc- tion, can you interpolate language into the Con- tution or give the language already there a meaning contrary to its letter? Mr. Sedgwick, in his work on Construction, says: " Where there is no obscurity in the effect of the laws, and the object aimed at by the Legislature, we arc not permitted to inquire into motives of tho'Le- gislature. in order to defeat the law itself, a/ortiori any law subsequently passed on the same subject." — Sedgwick, p. 295 ; Dunn vs. lleid, 10 Peters, 524. If this is true of statutes, it is much more a just rule in searching for the meaning of a fundamental law. I insist that the Constitu- tion is perfectly clear and unambiguous upon the subject of appointment. There should be no division of opinion on this one point, it does seem to me. Attorney General Legare says : "The people, however, were wisely jealous of this great power of appointing the agents of tho execu- tive department, and chose to restrain it by requir- ing it iu all cases to nominate; but only in case it had the concurrence of the Senate to appoint." — 3 Opinions, p. 075. But let us look further into this section. I have already alluded to the matter, but will re- peat it in this connection. The language is : "But the Congress may by_ law vest the ap- pointmentof such inferior officers as they think proper in the President alone." Now, sirs, there is a, familiar maxim — "expTessio unius est exclusio alterius" — which here prevails. The President is, by this clause, empowered to appoint such inferior officers as Congress may by law direct. Is it too much to urge that, by naming these particularly, and no others, it was intended he should alone appoint no others ? But, sirs, even the maximum of the law need noj here be invoked. The Constitution not only expresses one, and thus excludes others, but it expresses all — i. e., it provides for the appointment of all officers of the Government, and prescribes the manner of appointment in this section. First, it gives the President and the Senate thepowertoappointacertain class ; and second, it gives Congress power to allow the President alone, the courts of law, or the heads of Departments, to appoint certain others ; and these cover the whole range of officers of the Government; and, to my mind, it is the wildest reasoning that can vault itself into the position claimed by the respondent. Chief Justice Best, in 5 Bingham, page 180, gives a rule directly applicable here : "Where a general intention is expressed, and the act expresses also a particular intention incompat- ible with the general intention, the particular inten- tion is to be considered an exception." The general intention of the framers of the Constitution was to make the'appointing power joint with the President and Senate, and the exception only makes more imperative the general intention. The inconvenience of uniting these powers in the multitude of minor officers made the exception necessary, but the general intention was only the more distinctly asserted. But this power of removal, as implied from the power of appointment, is further shown to rest in the Senate and the Presidentconjointly, by the adoption of the third section of the sec- ond article, which provides that — " Tho President shall have power to fill up all va- cancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of the next session." Mr. Wirt says : "The meaning of the Constitution seems to me to result in this: that the President alone cannot make a permanent appointment to those offices; that to render the appointment permanent it must receive the consent of tho Senate; but that whenever a vacanpy shall exist which the public interests re- quire should be immediately filled, and in filling which the advice and consent of the Senate cannot be immediately asked, -because of their recess, the President shal 1 have power of filling it by an appoint- ment which shall continue only until the Senate shall have passed upon it, or, in the language of the Constitution, ' till the end of the next session.' " I am not here discussing the question of va- cancies and the power to fill them under the Constitution, but I desire to show that this par- ticular clause of the Constitution now being noticed furnishes strong and direct evidence that the appointing power was intended to be kept undivided in the Senate and President, except in those cases where the two could not from some uncontrollable necessity act at the time. Hence we find Mr. Story holding what I think to be the undisputed construction of the clause, that — " If the Senate are in session when offices are cre- ated by law, and nominations are not made to them by the President, he cannot appoint to such offices during the recess of the Senate, because a vacancy does not happen during the recess of the Senate. In many instances whore offices are created by law spe- cial power is on this very account given to tho Presi- dent to fill them during the recess; and it was then said that in no other instances had the President filled such vacant offices-without the special authority of law." — 2 Story, paragraph 1559. This author says again, in paragraph 1557 : " There was but one of two courses to be adopted, either that the Senate should perpetually be in ses- sion, in order to provide for the appointment of offi- cers, or that the President should be authorized to make temporary appointments during the recess, which should expire when the Senate should have had an opportunity to act on the subject." This distinction between temporary and per- manent appointments is recognized in the case of the United States vs. Kirkpatrick, 9 Whea- ton, page 720. The independent action of the President, in violation of the wishes of the Sen- ate, seems not to have been anticipated. In a long list of casualties given by Mr. Wirt, m the opinion referred to, he had in mind ouly those causes which could not be foreseen as prevent- ing the cooperation of -the Senate. It has been uniformly held that if vacancies are known to exist during the session of the Senate, and nominations are not then made, they cannot be filled by Executive appoint- mentduring arecessof the Senate. (40pimons, p. 362.) This would not be true if it were un- important whether the Senate participated in the appointment. It is urged here that the President not only has the power to appoint, but that, having that power, he may also remove, as a necessary 'incident. I will admit that if it can be shown that the President may alone appoint to office, then if the tenure of the office is not fixed but remains at the pleasure of the President he may, unquestionably, remove that officer. But, sir, I shall show hereafter that the doctrine of incidental power goes no further than to ex- tend to the President when he alone has the appointing power. I deny that the President anywhere has that power save when conferred by Congress as prescribed by the Constitution. Besides, Mr. President, I assert that, prior to the opinion rendered by the late Attorney General, there can be nowhere found an au- thority going so far as did that learned gentle- man. What says history upon this subject? Hamilton said, in. No. 77 of the Federalist : " It has been mentioned as one of the advantages to be expected from the cooperation of the Senate, in the business of appointments that it would con- tribute to the stability of the Administration. Toe consent of that body would be necessary to displace as well as appoint. The change of the Chief Magis- trate, therefore, would not occasion so violent or so general a revolution in the officers of the Govern- ment as might be expected if he were the sole dis- poser of offices. When a man in any station had fiven satisfactory evidence of his fitness for it a new resident would be restrained from attempting, a change in favor of a person more agreeable to him by the apprehension that the discountenance of the Senate might frustrate the attempt and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which con- nects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the Government. To this union of the Senate with the President in the article of appointments it has, in some coses, been objected that it would serve to give the President an undue influence over the Senate, because the Senate would have the power of restraining him. This is an ab- surdity in terms. It cannot admit of doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body than a mere power of nomination subject to their control." Mr. Hamilton then proceeds to review, in a masterly manner, the structure and power of the executive department, and in conclusion refers to the many restraints thrown around the Executive, and, speaking to this matter of appointing power, says: " In the ouly instance in which the abuse of the executive authority was materially to be feared the Chief Magis- trate would, by that plan, (speaking of the Constitution,) be subjected to the control of a branch of the legislative body," and asks: "What more can an enlightened and reason- able people desire?" In No. 76 of the Federalist the writer ex- amines at more length the reasons which led to the adoption of this joint plan of appoint- ment, instead of conferring the entire power upon the President ; and he shows that the power given to the President was solely to nominate, while the President and Senate ap- point. He shows that as the President must first nominate he can always, even if the Sen- ate reject, send back the name of some one of his choice ; and this should satisfy those who insist upon giving supreme power of appoint- ment to the Executive. He then asks: "To what purpose, then, require cooperation of tho Senate? I answer that the necessity of the con- currence would havo a powerful, though in general silent, operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family THE CONGRESSIONAL GLOBE. 257 connection, from personal attachment, or from a view to popularity. In addition to this, it would be an officacious source of stability in an Administra- tion." * * * * "Itwill readily be com- prehended that a man who had himself the sole dis- position of offices would be governed much more by his private inclinations and interests than when he was bound to submit the propriety of his choice to the decision and determination of a different and independent body, and that body an entire branch of the Legislature." Now, sirs, I aver that at the time Hamilton wrote it will be found in this matter he ex- pressed not only his own views, but the views of the people niho adopted the Constitution. Mr. Madison at this time entertained no other view, and his opinions had a large influence upon the people, and contributed, probably, more than those of any other one public man in bringing about the adoption of the Consti- tution. In No. 47 of the Federalist he argues at length' to show that the maxim of Montes- quieu, which requires a separation of the de- partments of power to secure liberty, is not true, and has not been without exception in any Government other than an absolute mon- archy. He then shows that by the British con- stitution the departments of Government are not distinctive, but that one branch of the legis- lative forms, like our Senate, a great constitu- tional council to the chief executive ; it is the sole depository of judicial power in impeach- ment, aud is the supreme appellate jurisdiction in other cases. And the judges are so far con- nected with the legislative as to attend and participate in the deliberations, though not to vote. Mr. Madison then shows that, notwithstand- ing the unqualified terms in which the axiom of Montesquieu is laid down by the Constitu- tion of the States of the Confederation, there was not a single 'instance in which the several departments of power have been kept abso- lutely separate and distinct. In New Hampshire the Senate had the right of trial by impeachment. The president, who was the head of the executive department, was the presiding member of the Senate, and had a casting vote. The Legislature elected the executive, and his council were chosen from the Legislature. Some State officers were ap- pointed by the Legislature, while the judiciary were appointed by the executive. In Massachusetts the judiciary were ap- pointed by the executive, and were removable by him on an address of the two branches of the Legislature. Many officers of the State (some of them executive) were appointed by the Legislature. He passes over Rhode Island and Connec- ticut, as their constitutions were adopted be- fore the Revolution and before the principles under examination had become an object of attention. In New York tile powers of government were curiously blended. The executive had a partial control over the legislative, and a like control over the judiciary, and even blended the executive and judiciary in the exercise of this control. There was a council of appoint- ment composed of the executive and partly of the legislative, which appointed both executive and judicial officers. New Jersey blended the powers of govern- ment more than either of the foregoing. The Governor, who was the executive, was ap- pointed by the Legislature, and yet he was not only the executive, but he was chancellor and surrogate of the State; he was a member of the supreme court of appeals and president, with a casting vote, of one of the legislative branches. This same legislative branch acted again as executive council of the Governor, and with him constituted the court of appeals. The judiciary were appointed by the Legisla- ture. Pennsylvania, Delaware, Mary land, Virginia, North Carolina, South Carolina, and Georgia, all had the same system of blended powers. In some of them even justices of the peace were appointed bythe Legislature. It is scarcely possible to find anywhere in contemporary history a stronger proof of the jealousy with which the people clung to their right to control their own political affairs ; and it was a great concession of the States of the Confederacy to the Union under the Constitu- tion when they assented to the clause now being considered. In every State of the Con- federacy, at the time they were called upon to adopt the Constitution, the people, through the Legislatures, not only made the laws, but. they appointed the officers who were to execute them ; and not only this, but provided for their removal in the same manner. They seemed to have regarded the Chief Executive as an officer designated to assist the execution of the laws, but that it was unsafe to give him power to appoint, those who were to cooperate with him in this duty. I say it was a great concession, and a radical change which conferred upon the President of the United States even the prerogatives which are now undisputed. Sirs, the people who adopted the Constitution were unaccustomed to looking upon their ex- ecutives as standing high above them and dis- tributing the powers which they alone pos- sessed. They had never been in the habit of clothing them with imperial powers, or per- mitting them to suppose for a moment that they were a distinct and separate entity of gov-, eminent. They had never, in a single instance, given to a State executive a distinct existence separate from his legislative and judicial de- partments. He always acted conjointly, and upon the question of appointments to and removal from office, more than upon any other, they seemed to have been cautious. With the light of this history it is monstrous to suppose that the people parted with their power, as is claimed by the respondent, in adopting the article under discussion, that they gave up without a word of dissent all those checks upon the Executive with which they had been so familiar and which they had so uniformly adopted in their State governments. They did no such thing, Mr. President, and nowhere can it be shown they intended any such thing. On the contrary, we have seen that this clause of the Constitution was urged upon them for the very reason that it practi- callysecured to them a system with which they had been so long familiar. The debates at that ti m e sho w that th e Consti tution was adopted under the impression that this clause gave the power of appointment and removal jointly to the Senate and President, and they sho#, too, that the clause was framed to meet this view. I say, then, it is unwarrantable, upon a*ny priu- cipleof constitutional or statutory construction, to give the instrument any other meaning. As well mightyou annul an ordinary contract upon declarations given after it is signed. The most that can be shown is what the parties said at the time it was made, and the written com- pact is conclusive of the meaning expressed. We have seen how the people felt at the time. We have seen what two great writers upon the subject said at the time, and thattheir opinions influenced largely the adoption of the Consti- tution. Upon the question under discussion at that time there seemed but one mind. Mr. President, I think I do not state it too strongly in saying that prior to the meeting of the First Congress, and at the time the Consti- tution was adopted, none of the friends of the Constitution claimed the power for the Presi- dent which is now urged. Some of its enemies made the charge, but it was denied by its friends. No man in this country has studied more carefully the history on the subject than Mr. Story. He says in his Commentaries on the Constitution, (pages 15, 39, 40, 41,) that the doctrine (speaking of the same construc- tion urged by the Managers) was maintained, with great earnestness, by the earliest writers, and says that at this period the friends of the Constitution had no other view. He cites 5 Marshall's Life of Washington, chapters, page 198, and 1 Lloyd's Debates, 351, 366, 450. Of the effect of these opinions upon the pub- lic mind at that time 'this writer says : "This was the doctrine maintained with great earnestness by the Federalists, and it had a most material tendency to quiet the just alarms of the overwhelming influence and arbitrary exercise of this prerogativoof the Executive, which might prove fatal to the personal independence and freedom of opinion of public oflicers, as well as to the public liberties of the country."— Sloru'a Commentaries, sec, 1539 ; Stnry on Constitution, vol. 1, p. 400. I have been endeavaring to show that at the adoption of the Constitution the appointing power was regarded and made a joint power between the Senate and the President, as was also the power of removal. I think this posi- tion well established. I have thus fully discussed the appointing power directly with the Senate because the same reasons that required that power to be joint apply with equal force to the power of removal. Let us come down, however, to a period subsequent to the adoption of the Constitution. Congress met March 4, 1789, aud continued until September 29, of the same year. On the 27th of July they passed the act organizing the Department of Foreign Affairs, and on the 6th of August following, was passed the act organizing the Department of War. These two acts ate identical in language in every partic- ular, except the assignment of duties to the different principal officers of the Department. As much of the argument hinges on the law organizing the Department of War at this time, it is important to know just what was said and done at the time. There are some peculiarities of the law to which I invite atten- tion. Section one provides that— "There shall be an executive Department to be denominated the Department of War, and that there shall be a principal officer therein, to be called the Secretary for the Departmentof War, who shall per- form and execute such duties as shall from time to time be enjoined upon him by the President of the United States, agreeably to the Constitution, relative to military commissions, or to the land or naval forces, ships or warlike stores of the United States, or to such other matters respecting military or naval affairs as the President of the United States shall assign to said Department, or relative to the grant- ing of lands to persons entitled thereto for military services rendered to the United States, or relating to Indian affairs; and furthermore, that the said principal officer shall conduct the business of the said DepartinenUin such manner as the President of the United States shall from time to time order or direct." "Sec. 2. Thatthereshall beintbesaidDepartment an inferior officer, to be appointed by the said prin- cipal officer, to be employed therein as he shall deem proper, and to be called the chief clerk in the De- partment of War, and who, whenever the said prin- cipal olficershall be removed from office by the Pres- ident of the United States, or in any other case of vacancy, shall, during such vacancy, have charge and custody of all records, books, and papers apper- taining to the said Department. "Sec. 3. The said principal officer, and every other person to be appointed or employed in thesaid Depart- ment, shall, before he enters on the execution of his office or employment, take an oath or affirmation well and faithfully to execute the trust committed to him. "Sec 4. The Secretary for the Department of War, to be appointed in consequence of this act, shall forthwith, after his appointment, be entitled to have' the custody and charge of all records, books, and papers in the office of Secretary for the Department of War. heretofore established by the United States in Congress assembled." It is noticeable that the law nowhere pro» vides how or by whom the principal officer is to be appointed. The language of the law is, in the first section, " thereshall be a principal officer;" in the third section, "that the said principal officer and every other person to be appointed or employed in said Department," &c, shall take an oath, &c. ; in section four, "that the Secretary for the Department of War, to be appointed in consequence of this act, shall forthwith, after his appointment, be entitled to have custody and charge of all records," &c. It has been uniformly held that where no provision is made in the law for the appointment of the officer, the appoint- ment must be made by and with the advice and consent of the Senate. (6 Attorney Gen- erals' Opinions, p. 1.) This results necessarily from the language of the Constitution. No provision was made in the laws organizing either of the Executive Departments as to how the principal officers were to be appointed ; they were, therefore, all appointed by and with the advice and consent of the Senate. la it «• TTriTiT PTlT'nMm 258 SUPPLEMENT TO not fair to suppose the removal was to take place in the same manner? On the same day the War Department was created Congress passed an act giving the President power ex- pressed to remove the Governor and other officers of the Territory organized under the ordinance of 1787, and yet these officers were by the same act to be appointed by and with the advice and consent or the Senate. Is it probable that Congress would have made spe- cial provision for the exercise of power in one case, if they had supposed that power incident to the share the President took in the appoint- ment? Theact, itseemstome, clearly indicates that Congress regarded legislation necessary to confer the power, else it was needless to have legislated at all upon the subject. But it is urged that the second section of the War Department act does confer this power, absolutely. I say not. The second section pro- vides for the appointment, by the Secretary of War, of an inferior officer, to be called the " chief clerk," who, whenever the said princi- pal officer (the Secretary) shall be removed by the President of the United States, or in any other case of vacancy, shall, during such va- cancy, have charge, &c. There is a marked difference of expression between the act I have referred to, as passed upon the same day, and this. In the one the absolute power of revoking commissions and removing is conferred ; in the other the ex- pression, " whenever the said principal officer Shall be removed from office by the President," &c. Now, sirs, I. think that the utmost which can be claimed from this grant, is recognition of a qualified and limited power over the Sec- retary of War, in case his removal should be- come necessary at a time when by the exercise of it a vacancy would be made at a time when the Senate could not assist in filling it. Pro- vision had to be made for this, as the discus- sions at the time show, and I think the lan- guage means nothing more than that the Pres- ident was to exercise the same and no more power than would be conceded to him in the entire absence of any provision on the subject. This law did not take the case out of the con- stitutional limitation, and by no legal interpre- tation can it be held to do so. When the bill for organizing the Department of Foreign Affairs was under discussion, the original draft read "to be removed by the President." Upon this arose all the discus- sion which is chiefly relied upon by the coun- sel for the respondent. Whatever may or may not be proved by that discussion, one thing is observable, namely, the language of the first draft was materially changed, and, as finally adopted, left the question upon inference merely. Instead of declaring that this officer is removable by the President, in plain and unmistakable phrase, an equivocal expression was finally adopted, which it was thought would partially meet the views of the majority and yet decide nothing absolutely. But let us notice for a moment this discussion of 1789. I am not inclined to underrate the value of that debate, but as forming any rule or guide for us I cannot give it great import- ance. The leading mind which controlled the removal party was that of Mr. Madison, and he, it is known, argued against his views ex- pressed before the Constitution was adopted. Whether he began to have glimmering hopes of the Presidency himself I will not say, but it certainly detracts from the value of his opinions to know that his views expressed after the Constitution was adopted were different from those entertained when he was urging its adop- tion. But, as I understand that discussion, the argument turned largely upon the necessity of this power resting somewhere at a time when there was a pressing emergency for its exercise. The first proposition was made by Mr. Madi- son that there be established an Executive Department, comprising the Departments of Foreign Affairs, of the War, and of the Treas- ury, the chief officers thereof to be called Sec- retaries; to be nominated by the President and appointed by and with the advice and consent of the Senate, and " to be removable by the President." This resolution was finally made the basis for three separate bills, couched in similar language, creating the Department of Foreign Affairs, Department of the Treasury, and Departmentof War. The bill creating the Department of Foreign Affairs was first taken up, and gave rise to a long discussion. This bill was amended by inserting in the second article words implying the right of the Presi- dent to remove the Secretary, and was subse- quently amended by striking out of the first article the authority of the President to make such removals. This last amendment was carried by a vote of 81 ayes to 19 noes, and the bill, as amended, passed the House by a vote of 29 to 22. In the Senate the bill was carried by the casting vote of the Vice Presi- dent. Itis an easily understood principle that where two or more unite in an act they may delegate the authority in all to any one of the number; and this, we may say, was done inferentially by the vote I have noticed. But, sirs, the Sen- ate has since spoken upon this very subject many times, as I shall show, and on every occasion in unmistakable condemnation of the principle laid down by the respondent. When John Quincy Adams, in 1826, at- tempted to entangle the United States in an alliance with the new republics of South Amer- ica, and to establish what was popularly termed the "Panama mission," this encroachment upon legislative prerogative was sturdily re- sisted ; the Senate insisting upon its rights to the utmost, even to contending that when a new mission is created it creates a new office, which does not come under the class of vacan- cies, and therefore the President has no right to fill it by a temporary appointment. Under every Administration since the days of Monroe we observe attempts by the Execu- tive to monopolize the right of appointment; but in every instance these encroachments were resisted, the Senate successfully asserting its joint authority to appoint and remove. In the session of 1825-26, warned by the attempted exercise of this assumed power by Mr. Adams in the case of the Panama mission, a select com- mittee was appointed by the Senate, charged with an inquiry into the expediency of reduc- ing executive patronage, which committee re- ported six bills, intended to control and reg- ulate different branches of the public service and Mhiit some exercises of executive power. In one of the six bills, to secure in office faith- ful collectors and disbursers of the revenue, the President was required to report to Con- gress the causes foreach removal. The section of the bill to that effect reads : *' That in all nominations made by the President to the Senate to nil vacancies occasioned by an ex- ercise of the President's power to remove from offioe the fact of the removal shall be stated to the Senate at the same time that the nomination is made, with a statement of the reasons forwhich such officer may have been removed." Benton says this was intended to operate as a restraint upon removals without cause, and— " Was a recognition of a principle essential to the proper exercise of the appointing power, and entirely consonant with Mr. Jefferson's idea of removals, but never admitted by any Administration nor enforced by the Senate against any one— always waiting the legal enactment. The opinion of nine such Senators as composed the committee who proposed to legalize this principle, all of them democratic and most of them aged and experienced, should stand for a per- suasive reason why this principle should bo legal- ized." — Benton* a Thirty 1 ears' View, vol.'l, chap. 29. During Jackson's administration this power of removal, as claimed by the accused, came before the Senate many times, and never but to receive a decided condemnation. Upon the breaking up of Jackson's first Cabinet Mr. Van Buren was nominated to the Senate as minister to England. His confirmation was opposed for several reasons, and among them ilwas charged that he introduced, as Jackson's Secretary of State, a system of proscription or removal for opinion's sake, and a formal mo- tion was made by Mr. Holmes, of Maine, to raise a committee, with power to send lor per- sons and papers, to inquire into the charges and report to the Senate. But this looked so much like an impeachment of the President that it was dropped. The same reasons for the rejection were urged, however. Among those who insisted upon the rejection for the reason I have stated, among others, were Clay, Web- ster, Clayton, Cplonel Hayne of South Caro- lina, Governor Moore of Alabama, and not least on the list was Thomas Ewing of Ohio. Van Buren was rejected, and the right of the Senate and the truth of the principle I now insist upon were vindicated. • During Jackson's second term the question came up before the Senate in a different form. The offices of bank directors to the United States Bank were about to be vacated by limit- ation of their term. Jackson desired the re- appointment of, and accordingly nominated, the incumbents. The Senate, for their own reasons, rejected the nominees. Jackson then attempted to coerce the Senate into the appoint- ment, and accordingly sent the same names back, intimating in his message that he would nominate no others. The nominations went to a committee, who reported a resolution rec- ommending rejection, which was immediately adopted. The report was an able review of the power of the Senate, and concludes as follows: " The Senate perceive, with regret, an intimation in the message .that the President may not see lit to send to thoSenate the names of any other persons to be directors of the bank except those whose nomina- tions have been already rejected. _ While the Senate will exercise its own rights according to its own views of duty, it will leave to the other officers of the Gov- ernment todecide for themselves on themannertbey will perform their duties. The committee know no reasons why these offices should not be filled : or why, in this case, no further nominations should be made, after the Senate has exercised its unquestionable right of rejecting particular persons who have been nominated, any more than in other cases. The Sen- ate will be ready at all times to receive and consider any such nominations as the President may present to it." The Senate had condemned the assumption of the President in presuming to remove for opinion's sake, and here we have a condemna- tion of his attempt to perpetuate in office his own favorites against the wish of the Senate. But Jackson persisted in putting thequestion to every conceivable test, and removed his Sec- retary of the Treasury (Mr. Duane) because he refused to do what he conceived to be a viola- lion of the law and his duty in the removal of the public deposits. This was during a vaca- tion of the Senate. The late Chief Justice Taney was put in charge of the Department, and at once carried out the plans of Jackson. Upon the assembling of Congress Mr. Clay in- troduced into the Senate two resolutions in relation to the matter. The first one was as follows : "That by dismissingthelatc Secretary of the Treas- ury because he would not, contrary to bis sense of his own duty, remove the money of the United States in deposit with the Bank of the United States and its branches, inconformitywith the President's opinion, and by appointing his successor to effect such re- moval, which has been done, the President has as- sumed the exercise of a power over the Treasury of the United States not granted to him by the Consti- tution and laws, and dangerous to the liberties of tho people." The resolution was adopted by a vote of 28 to 18. Jackson held the nomination of Taney as Secretary of the Treasury in his pocket until the last week of the session of Congress ; but it was rejected as soon as sent to the Senate. An acceptable name was afterwards presented, and the matter ended. The next expression of the Senate upon the power of the President to remove a Cabinet minister was even more decided in its con- demnation of the false doctrine derived from the debate of 1789. I refer, sir, to the passage of the tenure-of-office act over the veto, and of course by two thirds of both Houses of Con- gress, on March 2, 1867. Both Senate and House here united in this expression ; and in this they spoke for every representative ele- ment of this Government and for the whole people. N.£ ed I add to this chain of uniform decision the last vote of the Senate given on the 21st day THE CONCESSIONAL GLOBE. 259 of February, within twelve hours after the re- spondent had made the attempt to remove Mr. Stanton? It is plain to my mind that those who voted with the majority in 1789 were not understood 'to give license to wholesale and causeless re- movals by the President. And we have the very highest evidence of this not only in the decisions of the Senate, which I have noticed, but in the uniform practice of the Government throughout all Administrations. I do not find that the first President ever exercised the power of removal, but if he did so, it will be seen, I venture to assert, that he consulted the Senate at the time or at its first session. I do find, however, an example of his great respect for, and deference to, that body which the Con- stitution had made his aid in making appoint- ments. Less than a month after the bill had passed organizing the Department of Foreign Affairs he sent to the Senate the name of Benjamin Fishbourne as naval officer at the port of Savannah. The Senate rejected the nomina- tion. The President, fearing that in this there might be some misconception of his motives seutanothername, but gave his reasons in justi- fication for nominating Colonel Fishbourne. When John Adams desired to displace Mr. Pickering, his Secretary of State, and appoint another he notified the incumbent that he would, on a certain day, cease to be Secretary of State. Meanwhile, the Senate being in ses- sion, he sent in the nomination of John Mar- shall, who was confirmed; and thus Mr. Pick- ering was removed, not by the President under any power the law gave, but under the Consti- tution and by virtue of the power incident to the appointing power vesting in the Senate and the President. This is a very striking and practical illustration of the doctrine then supposed to be the true one, and it was but following out the true spirit of the opinions expressed in the great debate of 1789. Jefferson, the President who initiated the practice of removals, and was the first to con- fine his favors to his own party, made it a fund- amental principle that removals were only to be made for cause. March 7, 1807, only three days after his induction into office, Tie writes to Mr. Monroe : " Some removals, I know, must be made. They must be as few as possible, done gradually, and bot- tomed on some malversation or inherent disqualili- cation." On the 23d of the same month he thus writes to the Governor of Virginia, Mr. Giles: "Good men, to whom there is no objection but a difference of political opinion, practiced only so far as the right of a private citizen will justify, are not proper subjects of removal." Six days after he writes to Eldridge Gerry, afterward Vice President: "Mr. Adams's last appointments, when he knew he was appointing counselors and aids for me, not for himself, 1 set aside as fast us depends on me. Officers who havo been guilty of gr iss abuse of office, such as marshals packing juries, &c., I shall now remove, as my predecessor ought in justice to have done. The instances will be few, and governed by strict rule and not party passion. The right of opinion shall suffer no invasion from me." How, sir, did Mr. Jefferson proceed to dis- place incompetent or untrustworthy officers? If there was a vacation of the Senate he ap- pointed successors and gave notice to the in- cumbent of his action. The successor then became the legal officer, and the incumbent was removed by virtu'eof the new appointment working a revocation of the old commission. If the Senate was in session when this tran- spired he sent the nominations to that body, and their concurrence in the new appointment worked the revocation. If the Senate was not in. session at the time he sent the nomina- tions to that body at its next meeting, and the confirmation concluded the appointment, its action being an order or approval nunc pro . tunc. And this has been true of every Admin- istration except the present one. 1 ask coun- sel for the respondent to show a single re- moval from office by any President that was ever held of legal force that was not at the time or at a subsequent date approved by the Senate. When this is done the spirit and the letter of the Constitution are met, and when it is not done both are violated. Jefferson did not create vacancies. In making new appoint- ments he rewarded his friends, and for cause he displaced incompetent men by appointing successors, but his action was always subject to review by the Senate. The Supreme Court said upon this point in ex parte Rennen : "The removal lakes place in virtue of the new ap- pointment by mere operation of law." Not the mere nomination, hut the appointment. Mr. Madison'sadministrationwillbesearched in vain to find an instance where he ran counter to the will of the Senate in this matter of re- movals and appointments. In every instance where changes were made the Senate legalized them if they were appointments coming within the first clause of the second section, article second, of the Constitution. I do not find that any occasion arose in Mr. Monroe's administration to present the ques- tion. I have elsewhere noticed the opinion of his Attorney General, William Wirt, upon the duties of the President in relation to the exe- cution of laws which by their terms are to be executed by officers named in the law. This opin- ion completely overthrows the assumption of this respondent. John Quincy Adams succeeded Mr. Monroe. There was no occasion for removals for politi- cal causes at this time. There was no revolu- tion of parties. Mr. Adams had occupied the first place in Mr. Monroe's Cabinet during the whole term of eight years, and stood in con- currence with his appointments. It was called "the era of good feeling." It will be found that he made no change in offices filled by nomination to the Senate which were not con- curred in by that body. When Jackson came in there was an entire political revolution in the country. He formed his Cabinet, as all other Presidents had done, by nomination to the Senate. He displaced officials by nominating successors when the Senate was in session, or issuing commissions during vacation, which stood or fell as the first Senate thereafter decided. We have already seen how quickly the Senate brought this President to account for his first usurpation in the matter of removals when he removed Mr. Duanefrom the Treasury, although it was done during vacation. Van Buren succeeded Jackson, and nowhere can I find that he violated the general practice of filling appointments and making removals. Harrison's administration presents another instance of a complete revolution in party power. President Harrison in no instance ran counter to the Senate or made removals or appointments which were without the Senate's concurrence. Mr. Tyler, who succeeded him but a month after his inauguration, was so impressed with the history of Jackson's at- tempted usurpation that he made this very subject the occasion for remark in his inaugu- ral message. He said : " In view of the fact, well avouched in history, that the tendency of all human institutions is to concen- trate power in the hands of a single man, and that their ultimate downfall has proceeded from this cause, I deem it to bo of the most essential importance that a complete separation should take place between the sword and the purse. No matter where or how the public moneys shall bo deposited, so long us the President can exert the powerof appointing and re- moving at his pleasure the agents selected for their custody the Commander-in-Chief of the Army and Navy is, in fact, the Treasurer. A permanent and radical change should therefore be decreed. The patronage incidental to the presidential office, al- ready great, is constantly increasing. Such increase is destined to keep pace with the growth of our pop- ulation, until, without a figure of speech, an army of office-holders may be spread over the land. The unrestrained power exerted by a selfishly ambitious man, in order either to perpetuate his authority or to hand it over to some favorite as his successor, may lead to the employment of all the means within his control to accomplish his object. The right to re- move from office, while subjected to no just restraint, is inevitably destined to produce a spirit of crouch- ing servility with the official corps, which, in order to uphold the hand which feeds them, would lead to direct and active interference with elections, both State and Federal, thereby subjecting the course of State legislation to the dictation of the chief execu- tive officer and inakiug the will of that officer abso- lute awl-supreme." When subsequently he found himself at vari- ance with his Cabinet, instead of removing them he caused scandalous things to be written and published of them in public newspapers, and revealed the Cabinet consultations, which were published in the same way, thus making the position of the Cabinet so unpleasant that they resigned. What I now state is alluded to in Mr. Ewing's letter of resignation. (Ben- ton's Thirty Years View, p. 353.) I will not pursue the history of removals and appointments in subsequent Administrations, but I assert that there will not be found in the practice pursued in any of them the slightest warrant for overriding the Senate either in appointments or removals without authority of law. It is well understood that immediately upon the inauguration of a President the Senate is called together in extra session and at once go into executive session to consider any new appointments to be made. Cabinet changes are then made and submitted. If the President could remove and appoint without them such proceeding would be useless. Indeed, the President, having in mind the selection of a Cabinet he had reason to believe would be rejected by the Senate, would accomplish his purpose by withholding all nominations until the Senate adjourned, and thus defeat the very purpose of the Constitution in requiring the concurrence of the Senate. Much weight has been attached to the judi- cial decisions upon the power of removal. A close scrutiny of these will show that they do not decide the question here discussed. The opinion of the Supreme Court in ex parte Hennen establishes this simple proposi- tion and no other, namely: the powerof re- moval in the absence of all constitutional or statutory regulation is incident to the power of appointment. Hennen was appointed clerk of a court in Louisiana. The law creating the court gave the judge the power to appoint the clerk, but was silent as to how he might be removed. The judge removed Hennen. The Supreme Court of the United States held, on appeal, that the power of removal was incident to the power of appointment, and sustained the judge of the court accordingly. Thecourt, in remarking upon the clause of the Constitu- tion under discussion, remark: "No one denied the power of the President and Senate jointly, to remove where the tenure of the office was not fixed by the Constitution: which was a full recognition of the principle that the power of removal was incident to the powerof appointment." Any lawyer will see that this is all the court was called upon to say,* and in going beyond this to discuss what had been the opinions ex- pressed in the First Congress was mere dictum, and is not to be considered as judicial inter- pretation. It is no new thing for courts to go outside of the case before them, and the Su- preme Court is not an exception. There is not, Mr. President, as no one knows better than yourself, a single decision recorded in the Supreme Court reports, where the power of the President to remove from office in vio- lation of the expressed wish of the Senate was drawn in question. Trace the history of all removals by the President down to the present time, and there will be found no instance where a removal has been made to which the Senate has not made the act its own, expressly or im- pliedly, by confirming the successor to the office made vacant by removal, and this, sir, takes all decided cases out of this discussion. What we claim is that the Senate must either be first consulted in the removal, or it must subsequently to the removal assent thereto. In Marbury vs. Madison (1 Cranch) the power of the President to remove was not directly made a question. Marbury was nom- inated a justice of the peace for the District of Columbia under a law which fixed the tenure of his office at four years. The Senate had concurred in the nomination, and the commis- sion was signed by the President but not* yet delivered. Mr. Madison, the Secretary of State, refused to deliver it, and a mandamus was sued out to compel him to do so. The 260 SUPPLEMENT TO court decided that a mandamus could not lie against the head of an executive Department. Upon the right of Marbury to his commission, however, the court said: "Some point of time must be taken when thepower oi the Executive over an officer, notremovableat his will, must cease. The point of time must be when tho constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed." By the act of 1789, creating the Department of Foreign Affairs, it was made the duty of the Secretary of that Department to affix the seal of the United States to all commissions signed by the President. Upon the point as to whether the President could arrest the commission here the court said: "This is not a proceeding which may be varied if the judgment of theEx/ecutivesballsuggest one more eligible; but is a precise course, accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of tho United States, bound to obey the laws. He acts under the authority of the law, and not by the instructions of the President." If that case bears upon this, it goes only to show that the President cannot interfere with the due progress of the law, under the assump- tion that he is Chief Executive, and therefore possessed of power to control all executive offices. If there are any decisions of the Supreme Court directly in point they have escaped me. 1 assume there are none, for the respondent stales that he was governed in his action mainly to make a case for the courts, in order to obtain a judicial decision. For the first time in our history have we a direct issue between the two appointing powers. For the first time have we a case where the Senate, refusing to concur in a removal, the President ignores that body and defies its expressed will, and that, too, in the face of a positive enactment. Sirs, I contend that the Department of War today, of which Edwin M. Stanton is Secre- tary, is not the Department of War of which Henry Knox was Secretary under George Washington. I have shown that by the act of 1789 the law simply created 'the Department, but assigned no duties to it except such as might suggest themselves as necessary to the President. The Department remained thus, without any duties imposed upon it by law, and without any legislation recognizing its importance or its dis- tinctiveness, until May 8, 1798. Meanwhile, the duties pertaining to the Navy had been taken from the War Department and conferred on a separate Department; Congress had given the power to make contracts for war and navy materials to the Secretary of the Treasury. By the act of July 10, 1798, it was provided that all contracts and all purchases for the military service should be made by direction of the Secretary of War. The law also made it the duty of the public purveyor, who was an important officer and responsible for large sums of money, to report to the Secretary of War. The change here may seem unimportant, but it marks the beginning of that emancipation of the War Department from the manacles of executive control which is now by law made so complete. The subsequent laws organizing the pay de- partment, the quartermaster and commissary departments, the engineer and ordnance corps, all recognize the Secretary of War as in many respects the chief and sole executive officer for the discharge of specific duties with which the President had nothing whatever to do. Still later, in 1812, when an army was raised to meet the apprehended war with Great Britain, greater powers were conferred on the Secretary of War. In the Indian wars, in the war with Mexico, and especially in the late war against rebellion, Congress seemed to have treated the Secretary of War as the only ex- ecutive officer with whom they had anything to do, so far as that Department was concerned, and' the legislation does not in many instances recognize the existence of a Chief Executive, so great and powerful an engine of government had the War Department become, Uesolu- tions of inquiry for information in relation to military affairs were all directed to the Secre- tary of War, and he made answer to Congress himself without consultation with the Presi- dent. The entire and immense system of pur- chase and supplies for the Army, the organiza- tion and equipment of troops, the moving of troops and military supplies, the sequestration of the enemy's property, the entire internal management of Army affairs, the payment and disbursement of millions of dollars annually, the adjustment of numberless claims against the Government, are all by law imposed upon the Secretary of War. Indeed, the War De- partment has, by virtue of laws passed since 1789, been completely changed, andinstead of being a mere appendage to the executive office, with an amanuensis in it to write what the President might dictate, it is now, next- to the Treasury, the most powerful and important Department of the Government. lake up the statute-books and compare the laws as they now stand and as they stood when Congress spoke the Department into exist- ence by four short sections in the act of 1789. You will find that there is scarcely a vestige of the act of 1789 left in force. That made the Department of War a part of the executive office, with its whole control in the President. The laws now place the specific duties of that vast Department in the hands of the Secretary, and hold him alone responsible. The very necessities of our national growth have wrought this change, and the people have come to hold the President no longer responsible, as they once did, for the conduct of the Executive De- partments. Any one who, during the late war, had occasion to appeal from Mr. Stanton's decision in matters appertaining to his legal functions knows that what I state was recog- nized by the President as true. This, too, has been recognized by judicial decision. The President has no right to per- form executive acts by law given to his Secre- taries. He had this right in 1789 because the law made them the executors of his will merely. Can the President make a contract for the supply of the Army or Navy which the courts would hold binding? Can he give legal effect to an act which the law requires a particular officer of the Government to do 7 Can he' step into the War, Treasury, or Navy Departments and sign official papers which the Secretaries sign and make his acts legal? If he is the chief and only controlling Executive, why has not he cut the Gordian knot by taking the War Department reins into his own hands until the Senate shall confirm his nominees? There can be no other safe view to take of this question — any other leads to despotism. In speaking of the Executive Departments dur- ing the great discussion upon President Jack- sou's removal of his Secretary of the Treasury, Mr. Clay said : "We have established and designated offices, and appointed officers in each of these respective Depart- ments to execute the duties respectively allotted to them. The President, it is true, presides over the whole. Specific duties are often assigned by partic- ular laws to him alone, or to other officers under his superintendence. His parental eye is presumed to survey the whole extent of the* system in all its movements; but has he power to come into Congress and say such laws only shall you pass; to go into the courts and prescribe the decisions they may pro- nounce; or even to enter the offices of administra- tion, and wheredutics are speciallyconfided to those officers to substitute his will to their duty? Or has he a right, when those functionaries, deliberating upon their own solemn obligations to the people, have moved forward in their assigned spheres, to arrest their lawful progress because they have dared to act contrary to his pleasure? No, sir. No, sir. His is a high and glorious station, but it is one of observation and superintendence. It is to see that obstructions in tho forward movement of Govern- ment.unlawfullyintcrposed, shall be abated bylegit- imate and competent means." Will gentlemen consider for a moment the tremendous consequences of the doctrine claimed by this respondent? If, sirs, this Senate concede the power arrogated to the President, he is henceforward the Govern- ment. Even Congress is powerless to arrest his despotic rule. Suppose he desired to force upon the coun- try a certain policy, and chose the Secretary of the Treasury, with his immense power, for his instrument. That officer might decline to execute the President's will, and claim that the law conferred upon him alone certain spe- cific duties which he could not conscientiously abandon to the dictates of the President. The remedy is at hand, and the official guillotine commences its work. An obsequious tool of the Executive is placed at the head of the Treasury, and the Senate and the people are tied hand and foot. He may remove at any time. He may withhold the name of the ap- pointee till the very close of an intervening Senate, and should the Senate reject he may reappoint the same person or another equally subservient. Indeed, sir, if the absolute power claimed is conceded, he may so arrange the appointment as to avoid submitting it at all to the Senate. Can it be possible that a power so tremendous in its consequences was ever intended? If the Congress of the United States have no right by legislative enactment to fix the tenure to certain offices, and exercise their joint authority in appointments as well as removals from office, what restriction is there on the President's power? If he can control the Treasury by this in- genious, not to say despotic means, does his power end there? He may remove the Sec- retary of War and the General-in-Chief, if they dare dispute his policy. He thus possesses himself of the purse of the nation and next its Army. Let me ask the learned counsel, if they be correct in claiming the inherent right of removal in the President, where is the author- ity that makes Sherman's, Sheridan's, or Far- ragut's commissions more than blank parch- ment before the imperial throne at the White House? Under what authority can the Sec- retaries of the Navy, of State, Department of Interior, Postmaster General, and the thou- sands of officers of the several executive branches of Government, scattered all over the land, shield themselves from the withering and corrupting touch of the executive wand, when he chooses to command their removal? If the President can do these things with intpunity, let me ask if we have not that state of government forewarned by Mr. Seward's question, " Will you have Andrew Johnson President or king?" We hear much said about the so-called Cab- inet council of the President. The heads of Executive Departments have become Cabinet ministers, who hover around their chief as aids to a general of the Army, and the argument is used that you might with the same propriety force an obnoxious aid upon a general as an obnoxious Cabinet minister upon the President. Sirs, what is the origin of Cabinet councils, and whence comes the appellation Cabinet min- ister? I do not find them anywhere in the law which organized the several Departments. Let us not be deceived by names. I know of no authority for convening Cabinet conclaves semi-weekly, and I fear these councils are cabals in which the public weal is much less discussed than the party weal. Tell me why the Postmaster General need be called to consult as to how the Navy De- partment should be administered ; and what necessary connection is there between the du- ties of the Attorney General as prescribed by law and those appertaining to the War De- partment? Sirs, the so-called Cabinet coun- cils are misleading us, and so far has this independent and self-coustituted board of Gov- ernment directors counseled the accused that he sets up the difference existing between him and the Secretary of War as working their loss of the latter's counsel in this cabal, and from this he excuses his attempt to remove him. You are asked to give legal existence to this Cabinet, and say the Secretary of War has duties to perform there, failiug in which he must leave his Department. This Cabinet appendage to our executive government is an innovation, and should not be legalized. The Constitution says the President "may THE CONGRESSIONAL GLOBE. 261 require the opinion, in writing, of the principal officers of each of the Executive Departments upon any subject relating to the duties of their respective offices. ' ' But, sirs, it nowhere authorizes him to con- solidate the heads of these Departments into a cabal to discuss party politics, and devise ways to perpetuate their tenure by securing the re- election of their chief. There is danger in our forgetting that the law-making power of this Government has imposed duties and obliga- tions upon these heads of Departments which they cannot delegate to the President, much less the Cabinet, and which neither the Presi- dent nor the Cabinet can arrogate to them- selves. In this portion of the defense set up I do not find that #ny breach of duty is charged to the Secretary of War. It does not appear that he has been derelict in anything enjoined upon him by law. No, sirs ; he has ceased to be an agreeable companion to the President's Cabi- net tea parties, and he must be decapitated. Under all this lies much of that evil growing out of the power arrogated to the President. Here is the seed of executive consolidation, of which the fathers had such dread. These secret meetings tend to destroy that independ- ence of administration which the law contem- plates. Napoleon used to say that councils of war never fought battles. I think, sirs, I may say that Cabinet councils do not always exe- cute laws. I come now to notice the second branch of the offense involved in the first charge, namely : Had the President power to remove the Secretary of War in" violation of the ten- ure-of-office act? The first section of this act reads as follows: "That every person holding any civil office to which he has been appointed by and with the advioe and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is and shall be entitled to hold such office until a successor shall have been appointed by the President, with the ad- vice and consent of the Senate, and duly qualified; and that the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Post- master General and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been ap- pointed, and for one month^ thereafter, subjeot to removal by and with the advice and consent of the Senate." It is urged by the accused, in order to evade the necessary consequences attending a viola- tion of this act, first, that it is unconstitutional ; and second, that it does not reach Mr. Stan- ton's case. The first of these points goes to the power of Congress to enact any law on the subject of tenure of office, while the second is a legal quibble upon the language of the law, which the respondent knows better than any one else is a plain violation of the spirit and intent, not to say letter of the act. Let us consider briefly these two points. First: Is the tenure act constitutional? It would seem idle to discuss a question which, so far as this Senate is concerned, is res adju- dicata. I am surprised, sirs, to find counsel of such eminence as those pleading for the accused coming before a court and rearguing with pretentious hopes of reversing a decision deliberately made by over two thirds of this body. Would they thus presume before the Supreme Court of the United States ? One of the counsel once sat upon that bench. Would he have tolerated an argument upon a decision of that court which had been rendered after repeated examinations by the most learned of the country, exhausting every phase of argu- ment on both sides, and which decision was finally concurred in by two thirds of the court? But the question is before the Senate again ; has been elaborately argued, and courtesy to the counsel for the respondent, if no other reason offers, would seem to require for it a passing notice. 1 do not observe in the remarks of counsel any argument different from that given in the message vetoing the act of March 2, 1867. This did not prevail before the Senate then, and I see no reason why it should now. We are told there that the question arose and was settled in the discussion of 1789 when the War De- partment and the Foreign Department were created. I think the question presented then is much misapprehended. It was not whether Congress had the power to legislate upon the subject. It was whether they ought to confer the power of removal on the President. If the power inheres in the President theact'then passed was wholly gratuitous and unnecessary. To my mind the persistent determination with which the majority (and a small one it was) insisted upon putting into those acts of 1789 a clause impliedly giving the power of removal to the President is the highest proof of their belief in the power of Congress to legislate upon the subject, and that without legislation the President would not possess the authority to remove. If Congress was competent to grant the power to the President, are they not equally competent to withhold it? The only officers of the Government whose tenure is fixed by the Constitution are the President and Vice President and the judges of the Supreme Court and such inferior courts as Congress may establish. (Art. 2 and 3.) The President and Vice President hold for four years, but Congress may remove them by im- peachment. The judges hold "during good behavior," but who candecile the good or bad behavior of judges except Congress? Congress cannot abridge the tenure of the office, but they can abridge the officer's tenure by im- peaching him. This, sirs, is the only limitation upon Con- gress anywhere to be found in the Constitution upon the subject of controlling official tenure. The Constitution is silent upon the subject of tenure. I hold, therefore, that the whole power is vested in Congress to provide, when- ever and however they choose, both for ap- pointment to and removal from office. There is not an officer mentioned in the second clause of the second article over whom Congress has not control in such manner as they may bylaw provide, except in the cases mentioned. Congress is perfectly competent to fix any tenure it deems best to embassadors, ministers, consuls, or any other officers than those whose term of office is fixed by the Constitution. The section of the Constitution to which I have alluded only provides for the manner of ap- pointment; it does not restrain Congress from giving a tenure to the offices which it estab- lishes, and to impose such restraint by impli- cation is wholly unwarrantable. Nothing but the method of appointment is attempted to be controlled. Suppose Congress should determ- ine that the efficiency of our diplomatic sys- tem is greatly impaired by the frequent and causeless changes made among ministers, em- bassadors, or consuls, and that the practice of putting spies upon them, and crediting such mythical men as McCracken, and recalling ministers upon their statements, should be stopped — could no law be passed fixing their tenure, requiring the President to advise with the Senate before recalling the minister, leav- ing us unrepresented abroad, except where he did so for good cause ? The object of the Constitution was to pro- vide the means of filling offices which Con- gress might establish. No intention was ex- pressed to control absolutely the tenure of the office or prohibit Congress from prescribing means of removal. If Congress cannot do more than make the office and prescribe the duties incumbent upon the person filling it, in the matter of those offi- cers referred to in the first part of section sec- ond, article second, how can Congress do more in the creating of inferior officers spoken of in the last part of the section? It says, "Con- gress may vest the appointment of such infe- rior officers as they think proper in the Presi- dent alone, in the courts of law, or in the heads of Departments." Suppose Congress create a board of examiners to examine into the national banks, and give the President the power to appoint them. Congress has then exhausted all the directly-conferred power given them by the letter of the Constitution, and they are powerless to fix the tenure here if they are in the other cases. The argument urged is that the power to remove is incident to the power to appoint. The President by law appoints, and, therefore, he alone can terminate the officer's tenure. Congress, by giving the President the power to appoint, is estopped from fixing the tenure, so as to con- trol the President's removing prerogative. But, sirs, we know this is not true. The country is filled with officers, civil and military, some of them appointed by the President alone, others by and with the advice and consent of the Sen- ate, and yet Congress, in these cases, has never been held to be powerless to fix the tenure. Wherein is the difference between the Con- stitution saying the President and Senate may appoint certain officers created by law, or the Constitution saying Congress may provide means of filling certain offices? The will of the people is expressed in the same manner through the Constitution directly to the Presi- dent and Senate in one case, and indirectly to the President, to courts of law, or heads of Departments in the other case, but in neither case do they say through the Constitution, directly or impliedly, that Congress, who create the office, shall not adjust its tenure. The reason for giving the appointment of inferior officers into other hands than the Senate and President was to provide for speedy execution of the law and for early action in filling the offices. Inferior officers were of less import- ance ; they were numerous ; vacancies were constantly occurring, and hence the necessity of relieving th<£ Senate and President from acting jointly. But the reason for giving Con- gress power to control the tenure of inferior offices applies with much greater weight in the case of higher officers, whose wanton and capricious removal may lead to infinitely more dangerous consequences. If this view be correct, there can be nothing leftof the argument against the constitutionality of the tenure act. In Marbury vs'. Madison the case of an officer appointed by the Presi- dent and Senate is presented, where the law also fixed the tenure of the office at five years. In this case the court said : "If the officer be removable at the will of the Presi- dent, then anew appointment may. be immediately made and the rights of the officer teminated; if the officer is by law not removable at the will of the Presi- dent, the rights the officer has acquired are protected by the law, and are not resumable by the President. They cannot be extinguished by the Executive." This would be bad law if Congress were pow- erless to fix a tenure, and it is no answer to say Congress may fix the number of years the officer is to serve, for if the term of years can be fixed so can the manner of his removal. If Congress can pass one step beyond the power to create the office and provide for fill- ing it, then they can regulate the tenure in any and all particulars. The question cannot turn upon who are or who are not inferior officers, for here we would be left in a maze and labyrinth, and the President could shield himself behind a will-o'-the-wisp. The Con- stitution does not pretend to define who are or who are not inferior officers, and the fact that this is left undefined shows that the matter of controlling the tenure by con- gressional enactment of either the one or the other was not the question the framers had in mind. It was much discussed in 1789 as to whether the heads of Departments are in- ferior officers, and the result of the discussion is doubtful, and really settled nothing. (1 Lloyd's Debates, 480 to 600 ; Sergeant on Con- stitution, ch. 29, (ch. 31;) 2 Lloyd's Debates, 1 to 12.) But whether they are or are not does not affect the question in hand. Because this appointment is to be by both Senate and President does not settle it, else every petty postmaster and collector in the country must be held to rank with embassadors, ministers, and judges oft/he Supreme Court. What rule determines whether the General-in-Chief and ail subordinate military officers are or are not 262 SUPPLEMENT TO inferior officers? There is none. The Army is a creature of law, and Congress has always regulated it, as it chose. Some of its officers were placed under the control of the War De- partment ; some minor ones even appointed by the Secretary. Others were nominated to and confirmed by the Senate. In point of fact, however, officers of the Army are not regarded as inferior officers, yet Congress has regulated the whole Army system, imposing restraints upon the President in many ways with regard to it. The question came up in Mr. Monroe's administration, and was discussed in his mes- sage of April 12, 1822. (1 Ex. Journal, 286.) The Senate disagreed with Mr. Monroe, and held that Congress had the right to fix the rule as to promotions and appointments as well as to reductions in the Army, and that this right had, to that time, never been dis- puted by any President. It is true this was claimed under the general power to make all needful rules and regulations for the govern- ment of the Army, but that clause of the Con- stitution confers no more executive control on Congress in respect to the Army than does the clause which provides that Congress shall establish post offices and post roads over the manner of appointing postmasters. Story says, (sec. 1637:) " As far as Congress possesses the power to regu- late and delegate the appointment of inferior officers, so far they may prescribe the term of office, the man- ner in which and the persons by whom the removal as well as the appointment to office may be made." But, as we have seen, the clause of the Con- stitution on this subject does not define who are inferior officers, and does not separate them from other officers, with any view to give Congress greater control over their tenure than in other cases, we are brought back again to my position, that there is no restraint upon Congress to regulate the tenure in the one case more than the other. The officers of the army then coming within the class iitled superior, as distinguished from inferior, they are to be placed beside and are to rank with embassadors, ministers, Cabinet officers, &c, and if Congress is competent to control the tenure of the one it is of the other. Unfortunately for the consistency of the re- spondent's special plea, he is on the record against himself. By the act of July 13, 1866, section five, it is provided that— "No officer in the military or naval service shall, in time of peace, be dismissed from service except upon, and in pursuance of, the sentence of a court- martial to that effect or in commutation therefor." Here is a direct inroad upon the prerogative of the President as m>w set up, and admits the whole principle here contended for. Where were the vigilant advisers of the President when he approved the bill and made it law? Was there no genius of executive prerogatives near to whisper " Veto?" Was the facile logic of the law officer of the President reserving itself for this occasion? But this principle of recognizing the right or power of Congress to legislate as to how an officer is to be displaced had the sanction of Mr. Lincoln in the act of February 25, 1863, creating the office of Comptroller of the Cur- rency. It provides as follows : "Ho shall be appointed bytho President, on the nomination of the Secretary of the Treasury, by and with the advice and consent of the Senate, and shall hold his office for the term of two years, unless sooner removed by the President, by and with the advice and consent of the Senate." This is not a power recently claimed by Con- gress. I have shown in another part of the argument that many unsuccessful efforts were made at different periods of our national his- tory to pass laws similar to the present tenure act, and they were supported by members of all shades of politics. The constitutionality of such laws was not questioned, but the bills always failed from executive influences brought to bear upon Congress. Mr. Benton was an earnest advocate of a tenure act limiting execu- tive control over appointments and removals. Mr. Clay and Mr. Webster have left upon the records of the Senate arguments not only show- ing the constitutionality of such laws, but giving the most weighty reasons for passing them upon the grounds of public policy and safety. In 1835 a lengthy discussion occurred upon an amendment offered by Mr. Clay to a pend- ing bill which embraced every principle of the present tenure act. I will be pardoned for giving a condensed statement of the view taken at that time by three Senators who partici- pated in the discussion, as giving briefly the whole argument upon this question. Mr. Clay supported his position by the following argu- ments, among others: " It is legislative authority which creates the office, defines its duties, and may prescribe itsduration. I speak, of course, of offices not created by the Consti- tution, but the law. The office coming into existence by the will of Congress, the same will may provide how and in what manner the office and officer shall cease to exist. It may direct the conditions on which he shall hold the office and when and how he shall be dismissed. Suppose the Constitution had omitted to prescribe the tenure of the judicial oath, could not Congress doit? "But the Constitution has not fixed the tenure of any subordinate officers, and therefore Congress may supply the omission. It would be unreasonable to contend that although Congress, in pursuance of the public good, brings the office and the officer into be- ing and assigns their purposes, yet the President has a control over the officer which Congress cannot reach and regulate." * * * * "Theprecedent of 1789 was established in the House of Representa- tives against the opinion of a large and able minor- ity, and in the Senate by the casting vote of the Vice President, John Adams. It is impossible to read the debate which it occasioned without being impressed with the conviction that the just confidence reposed in the father of 'his country, then at the head of the Government, had great, if not decisive, influence in establishing it. It has never, prior to the commence- ment of the present Administration, been submitted to the process of review." * * * * "No one can carefully examine the debate in the House of Representatives in 1789 without being struck with the superiority of the argument on the side of the minority, and the unsatisfactory nature of that of the majority." Daniel Webster agreed with Mr. Clay in his position in the following language used by him on the occasion : " I think, then, sir, that the power of appointment naturally and necessarily includes the power of re- moval where no limitation is expressed nor any tenuro but that at will declared. The power of ap- pointment being conferred on the President and Senate I think the power of removal went alongwith it. and should have been regarded its a part of it, and exercised by the same hands. I think the Legislature possesses the power of regulating the condition, dura- tion, qualification, and tenure of office in all cases where the Constitution has made no express pro- vision on the subject. I am, therefore, of opinion that it is competent for Congress to decide by law, as one qualification of the tenure of office, that the in- cumbent shall remain in place till the President shall remove him for reasons to be stated to the Senate. And I am of opinion that this qualification, mild and gentle as it is, will have some effect in arresting the evils which beset the progress of the Government and seriously threaten its future prosperity." This view was sustained by Hon. Thomas Ewing of Ohio : "Mr. Ewing spoke at length upon the question of removals, maintaining that tho Constitution does not conler on the President alone the power of removal j that is a matter of legislative provision, subject to be vested, modified, changed, or taken away at their will; and if it is not regulated at all by law, it rests in the President, in conjunction with the Senate, aspart of the appointing power." The respondent cannot, I think, find support in any precedent or decision, or by any right construction of the Constitution. What, then, becomes of his reliance upon these in defense of his willful violations of the act? He stands convicted by his own confession. Did he make a mistake in his research, and did he innocently misinterpret the Constitution? These mis- takes and these innocent misinterpretations are too serious to be thus condoned. To admit them as a good defense would emasculate every criminal law in the land, and leave all public officers free to. misinterpret statutes with im- punity, and, no matter what the consequences, they could shield themselves from punishment. Mr. Johnson's pretended prototype, Jackson, did not so understand the law. When the Senate passed the resolution declaring his removal of his Secretary of the Treasury, Mr. Duane, a usurpation, Jackson regarded it as equivalent to impeachment. In his protest to the Senate he saitl — " That the resolution does not expressly allege that the assumption of power and authority whioh itcon- domns was intentional and corrupt, is no answer to the preceding view of its character and effect. The net thus condemned, necessarily implies volition and design in the individual to whom it is imputed, and, being unlawful in its character, the legal conclusion is, that it was prompted by improper motives, and committed with an unlawful intent. The charge is - not of a mistake in the exercise of supposed powers, but of the assumption of powers not conferred by tho Constitution and laws, but in derogation of hoth, and nothing is suggested to excuse or palliate the turpi- tude of the act. In the absence of any such excuse or palliation there is room only for one inference, and that is, that theintent was unlawful and corrupt." I cannot believe the respondent relies upon this plea of innocent intent as amounting even to a shadow of defense. He not only took the risk of eonstruingthe Constitution upon a ques- tion not settled by any judicial decision, but he did it in direct defiance of the solemn judgment of this Senate; and he td-day defies this judg- ment by denouncing the tenure act as uncon- stitutional. But the accused says even if the tenure act be held constitutional, still he is guiltless, because it does not apply to the case of Mr. Stanton ; and this brings me to inquire — Second. Does the tenure act apply to the present Secretary of War? It is a new method of ascertaining the mean- ing of a law, plain upon its face, by resorting to legislative discussions, and giving in evidence opinions of persons affected by the law. As a matter of fact, it is well known the act was in- tended to prevent the very thing Mr. Johnson attempted in the matter of Mr. Stanton's re- moval. I think this manner of defense will not avail before this Senate. The law must govern in its natural and plain intendment, and will not be frittered away by extraneous inter- pretation. The President in his veto message admits substantially this construction. The proviso does not change the general pro- visions of the act except by giving a more defi- nite limit to the term of office, but the last para- graph of the act puts the whole question back into the hands of the Senate according to the general intention of the act, and provides that even the Secretaries are ''subject to removal by and with the advice and consent of the Senate." The act first provides that all persons hold- ing civil offices at the date of its passage ap- pointed by and with the advice and consent of the Senate shall only be removed in the same manner. This applies to I he Secretary of War. The proviso merely gives a tenure running with the term of the President and one month there- after, subject to removal by the advice and con- sent of the Senate. The law clearly gives Mr. Stanton a right to the office from the 4th of March, 1865, till one month after the 4th of March, 1869, and he can only be disturbed in that tenure by the President by and with the advice and consent of the Senate. . Yet, although Mr. Stanton was appointed by Mr. Lincoln in his first term, when there was no tenure to the office fixed by law, and con- tinued by Mr. Lincoln in his second term, it is argued that his term expired one month after the passage of the tenure-of office act, March 2, 1867, for the reason that Mr. Lincoln's term expired at his death. This is false reasoning; the Constitution fixes the terra of the President at four years, and by law the commencement of his term is the 4th of March. Will it be said that when Mr. Johnson is deposed by a verdict of the Senate that the officer who will succeed him will serve for four years ? Certainly not. Why? Because he will have no presidential term, and will be merely serving out a part of the unexpired term of Mr. Lincoln, and will go out of office 4th of March, 1869, at the time Mr. Lincoln would have retired by expiration of his term, had he lived. I give section ton of the act of March 1, 1792, which settles the question whether the term ceases with the death or resignation of the Pres- ident, which so clearly decides the matter and settles it that no argument is necessary further on the subject : *>, "^SF - 10 - AS d 6 - e ^/itrfter enacted. That whenever tho otiices of President or Vice President shall both beoome vacant the Secretary of State shall forthwith causo a notification thereof to be made to the execu- tive of every btate, and shall also cause the same to be published in at leastone of the newspapers printed THE CONGRESSIONAL GLOBE. 263 in each State, specifying that electors of the Presi- dent of the United States shall bo apnointed or chosen in the several States within thirty-four days preced- ing the first Wednesday in December then next ensu- ing: Provided, Thereshallbethespaceof two months between the date of such notification and the said first Wednesday in December; butif thore shall not be tho space of two months between the date of such notifi- cation and the first Wednesday in December, and if t)io term for which the President and Vice President last in office were elected shall not expire on the 3d day of March next ensuing, then the Secretary of State shall specifyinthenotification that the electors shall be appointed or chosen within thirty-four days preceding the first Wednesday in December in tho year next ensuing, within which time the electors shall accordingly be appointed or chosen, and the electors shall meet and give their votes on tho said first Wednesday in December, and the proceedings and duties of the said electors and others shall be pursuant to the directions prescribed in this act." This law settles certainly the question, if any doubt existed before, that the term does not expire on the death or resignation of the President, but continues as his term the four years. But I will not argue this question at more length. If the judgment of men, deliberately expressed, can ever be relied upon, I think it safe to assume that this Senate will not reverse its judgment so recently expressed upon the constitutionality and meaning of the tenure act. The only question, then, which remains is simply this : has the accused violated that act? No one knows better than this accused the history of, and the purpose to be secured by, that act. It was ably and exhaustively discussed on both sides, in all aspects. In the debates of Congress it was subsequently re- viewed and closely analyzed in a veto message of the respondent. No portion of that act escaped his remark, and no practical applica- tion which has been made of it since did he fail to anticipate. He knew before he attempted its violation that more than three fourths of the Representatives of the people In Congress assembled had set their seal of disapprobation upon the reasons given in the veto message and had enacted the law by more than the con- stitutional number of votes required. Nay, more; he was repeatedly warned, by investi- gations made looking toward just such a pro- ceeding as is now being witnessed in this court, that the people had instructed their Represent- atives to tolerate no violation of the laws con- stitutionally enacted. What, then, is the vio- lation here charged upon this respondent, and what are the proofs to sustain it? Upon the 21st day of February, 1868, the respondent sent the folio wing official order to Edwin M. Stanton, Secretary of War : Executive Mansion. Washington, D. C, February 21, 1868. Sir: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby removed from ofiice as Secretary for the Department of War, and your functions as such will terminate upon the re- ceipt of this communication. You will transfer to Brevet Major General Lorenzo Thomas, Adjutant General of the Army, who bas this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other property now in your custody and Respectfully, yours, ANDREW JOHNSON. Hon. Edwin M. Stanton, Washington, D. C. Upon the same day he sent to Lorenzo Thomas, Adjutant General of the Army, the following girder : Executive Mansion, Washington, D. C., February 21, 1868. Sin: Hon. Edwin M. Stanton having been this day removed from the ofiice as Secretary for tho Depart- ment of War.you are hereby authorized and empow- ered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office. Mr. Stanton'has been instructed to transfer to you all the records, books, papers, and other public prop- erty now in his custody and charge. Respectfully, yours, ANDREW JOHNSON. Brevet Major General Lorenzo Thomas, Adjutant General United States Army, Washington, D. G. "Every person holding any civil ofiice, to which lie has appointed by and with the advice and consent of the Senate," * * * * "is and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly quali- fied." This plain and not to be misunderstood pro- vision of the law is violated. The order for re- moval was made absolute and without condi- tion. The President ignored all " advice and consent of the Senate," and planted himself upon his own opinion as to his inherent power to act outside of the law and in violation of it; and his answer so confesses. The proofs of his guilt are therefore placed beyond dispute. What, sirs, says the law with regard to the crime involved in such conduct? The sixth section of the same act declares that " every removal" "made" "contrary to the provis- ions of this act" "is hereby declared to be a high misdemeanor." Upon these facts, and in the face of this law, can there be a doubt that the charge is fully sustained? Need we pursue the ques- tion of intent, when by the terms of thelaw the mere act of removal, in violation of it, is declared a "high misdemeanor?" _ But, sirs, we do not shrink from an examination into the motives which actuated this accused. The history of his public acts since the passage of this law is crowded with evidences of his guilty intent. To-day, with the fear of that law be- fore his eyes, he conforms strictly to its re- quirements ; to-morrow he openly defies it and declares his purpose not to be governed by it ; and, with the strangest inconsistency and inde- cision of character, he wavers between the plainest duty pointed out by law and the rash- est contempt of all law. We have shown by the testimony that under his instructions the chiefs of the Departments changed the forms of official bonds of commissions and letters of appointment to adaptthem to the requirements of this law. We have seen that within five months after its passage he suspended the Sec- retary of War and notified the several Execu- tive Departments that he had done so under the provisions of this act. We have seen that hundreds of commissions, to fill various offices, were issued under his sign manual, distinctly recognizing the provisions of this act. Yet, in defiance of the law, and in disregard of his own repeated recognition of it, he asks this Senate to hold him guiltless. Do the annals of criminal trials anywhere present so mon- strous an absurdity ? But the circumstances connected with this removal are themselves proof positive of a criminal purpose. Upon the 12th of August, 1867, the President suspended the Secretary of War and appointed General Grant the ad interim Secretary. This suspension purported to be in conformity to the law, and was acqui- esced in. Under the provisions of the second section of the "tenure act," this removal was reported to the Senate within twenty days after its next meeting. The reasons assigned by the President were duly considered by the Sen- ate, and the following resolution communicated to the President as their decision : In Executive Session, Senate of the United States, January 13, 1868. Resolved, That, havinpr considered the evidence and reasons given by the President in his report of the 12th of December, 1867, for the suspension from the office of Secretary of War of Edwin M. Stanton, the Senate do not concur in such suspension. Attested, The law says in such case, "but if the Sen- ate shall refuse to concur in such suspension, such officer so suspended shall resume the functions of his office, and the powers of the person so performing its duties shall cease." The Secretary ad interim vacated the office accordingly, and the suspended Secretary re- sumed his duties. I will not stop now to speak of the unmanly and disgraceful attempt made by the President and his Cabinet cabal to trick the General-in-Chief into a violation of the law and to force upon Mr. Stanton the alternative of submitting to an indirect removal from office under cover of his suspension, or resorting to legal proceedings through the courts which could not possibly have ended during the pres- ent Administration. The history of all crim- inals illustrates a constant struggle between crime and cowardice — the desire to commit the crime and the fear of the consequences that may follow. The criminal intent to disregard the law was never more manifest in the mind of the accused than at this time; but his dread of punishment deterred him from the overt act. The answer of the respondent and the proofs spread upon the record show that from the 13th of January to the 21st of February he was scheming and devising means to thwart the vote of this Senate and to dispossess the Sec- retary of War in disregard of the law, and yet to evade, if possible, the punishment conse- quent upon its violation. The law told him if he should remove the Secretary he must do so "by and with the advice and consent of the Senate." He knew by the previous vote of that body that no such " advice and consent" would be given. He, therefore, pot only ad- monished by the Senate, but directed by the law, usurpedapower nowhere given, and issued his mandate accordingly. With what effrontery then comes in the plea that his only motive was to innocently assert his prerogatives? Was the War Department to be made a mere play- thing in the hands of the Executive? Was the machinery of that vast Department to halt and its chief officer to subject himself to a trial for neglect of duty, while Mr. Johnson would' amuse himself with preparing a case for the courts ? Did he not know that the law enjoined duties upon the Secretary which he could not lay aside? Could he have for a moment supposed that that officer would tamely submit to an order for removal in which he had every reason to believe the Senate would not concur? No, sir; he comprehended fully the length and breadth of the offense he was then committing. He saw then, as plainly as he sees now, what would be the legal consequences of his act, and only hoped to shield himself behind that forbearance which he had mistaken for cowardice on the part of the representatives of the people. But, Mr. President and Senators, this inquiry is relieved of all doubts; the question is res adjudicata, and I have simply to read the de- cision rendered upon the same day this high- handed attempt at usurpation was made: In Executive Session, Senate of the United States, February 21, 1868. Whereas the Senate have received and considered tho communication of the President stating that ho had removed Edwin M. Stanton, Secretary of War, and had designated the Adjutant General of the Army to act as Secretary of War ad interim : There- fore, Besolvedby the Senate of the United States, That, un- der the Constitution and laws of the United States, the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim. REMARKS UPON ARTICLE SECOND. Let us pass to notice briefly artiele second. The respondent is here charged with violating the tenure-of-office act in the appointment of Lorenzo Thomas as Secretary of War on the 21st of February, 1868, there being no vacancy in said office. The letter of appointment is as follows: Executive Mansion. Washington, D. C, February 21, 1861. Sir: Hon. Edwin M. Stanton having been thisday removed from the office as Secretary for the Depart- ment of War.you are hereby authorized and empow- ered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office. Mr. Stanton has been instructed to transfer to you all therecords, books, papers, and other public prop- erty now in his custody and charge. Respectfully yours, ANDREW JOHNSON. Brevet Major General Lorenzo Thomas, Adjutant General United States Army, Washington, J). V. This appointment was made simultaneously with the removal of Mr. Stanton ; it was made with the full knowledge that no vacancy ex- isted, and that the Senate had so decided ; it was made in defiance of all those repeated warnings to which I have alluded — that the Congress of the United States would regard the act as an open violation of law ; it was made with every reasonable apprehension on his part that it would lead almost inevitably to his im- peachment. Indeed, in this act, as well as others now laid down to his charge, he seems not only to have defied, but to have courted impeachment. The law told him here, as plainly as it told him in the matter of removal, that his act was 264 SUPPLEMENT TO denounced as a high misdemeanor in office. It told him more. It said to the person who would accept such appointment and attempt to discharge duties under it, would thereby himself commit a high misdemeanor in office. This respondent was, therefore, guilty of the double crime of himself violating the law and inducing others to join him in the criminal act. Section six of the tenure act says : "Every removal, appointment, or employment made, had, or received, contrary to the provisions or tins act, and the making, signing, scaling, coun- tersigning, or issuing of any commission or letter of authority for or in respect to any such appointment or employment, shall be deemed and are hereby de- clared to be high misdemeanors." _ What defense is made for the palpable viola- tion of the law now shown ? The respondent goes back to the act of February 13, 1795, and rests his case upon that law, which provides as follows, (1 Statutes-at- Large, p. 415:) . ' ' Beitenacted bytlie Senate and House of Representa- t ii e j%S ie United States of America in Congress assem- bled. That in case of vacancy in the office of Secre- tary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer "of either of the said Departments whose appoint- ment is hot in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed or such vacancy be filled: Provided, That no one vaneancy shall be supplied, in manner aforesaid, for a longer term than six months." But by the very terms of the act of 1795 this respondent can there find no defense ; that law says, u in case of vacancy in the office of Sec- retary of the Department of War whereby he cannot perform the duties of said office, it shall be lawful for the President to authorize any person to perform its duties." We see, then, there must be a vacancy in the office, or a disability on the part of the Secretary to act before the President can make such an appoint- ment. There was neither a vacancy nor a dis- ability existing at the time Lorenzo Thomas was appointed. This respondent, then, has not only violated the tenure act, but he has violated the very law under which he claims immunity. Nothing can be plainer, and noth- ing exhibits more strongly the utter hollowness of his defense. ARTICLE THIRD. The next and third article charges the Pres- ident with a violation of the Constitution of the United States in the appointment of Lo- renzo Thomas as Secretary of War while the Senate was in session, no vacancy having oc- curred during the recess of the Senate, and no' vacancy existing at the time. The facts alleged are not controverted ; the question presented to the Senate'under this article involves the proper construction of our fundamental law. 1 have previously addressed myself to the Sen- ate upon this subject, and will not again enter upon it. The line of inquiry is very simple. If this accused has violated a law constitutionally en- acted, then has he violated the Constitution itself. He has sworn to support the Constitu- tion, and by that oath he is enjoined to "take care that the laws are faithfully executed." He cannot support the Constitution and defy the laws enacted pursuant to it any more than he can execute the laws faithfully and violate the Constitution. The duties are blended, and he cannot violate one without violating the other. If he be guilty under either the first or second article, he is guilty of the offense charged in the third. ARTICLES FOURTH, FIFTH, SIXTH, AND SEVENTH. The four succeeding charges allege con- spiracy between the respondent and Lorenzo Thomas and others unknown : First. By force, intimidation, and threats unlawfully to hinder Edwin M. Stanton, then Secretary of War, from holding said office, contrary to the provisions of an act to prevent and punish certain conspiracies, approved July 31, 1861. e Second. To prevent and hinder the execu- tion of an act regulating the tenure of certain frivil offices, passed March.2, 1807, by attempt- ing unlawfully to prevent Edwin M. Stanton, then Secretary of War, from holding said office. Third. By force to seize, take, and possess the property of the United States in the De- partment of War, then and there in the cus- tody of Edwin M. Stanton, Secretary of the Department of War, contrary to an act to define and punish certain conspiracies, approved July 31, 1801. Fourth. To seize, take, and possess the property of the United States in the Depart- ment of War, and in custody of said Stanton, with intent to disregard and violate an act regulating the tenure of certain civil offices, passed March 2, 1867. That part of the conspiracy act which defines the offenses here charged is as follows : "That if two or more persons, within any State or Territory of the United States, shall conspire to- gether" * * * * "to oppose by force the authority of the Governmeo t of the United States, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States, against the will or contrary to the authority of the United States, or by force or intimidation or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, each and every person so offending shall be guilty of a high crime." The acts which he has himself admitted to have done and those proved against him by the undisputed testimony of witnesses bring his conduct within the letter of the law. No other result could have followed his conduct — it tended directly to "hinder and delay the execution of" the tenure act. He had no other purpose than to "seize, take, and possess the property of the United States in the War Department," against the will and contrary to the authority of the United States, then in the lawful custody of the Secretary of War, and.as placed there by the highest authority in the land. And it is equally evident that his design was to prevent Edwin M. Stanton from hold- ing the office to which he had been legally appointed, and from which he had not been and could not be legally removed. We are not, then, to inquire at this time whether he is guilty of a high misdemeanor in doing these things, which have been made the gravamen of the first three articles ; but we are to see whether he has unlawfully conspired, by force or intimidation or threat, to attempt the ac- complishment of these objects. What are the evidences of a, conspiracy? It may be well first to inquire, what is a con- spiracy? Under articles fourth and sixth we are confined in our definition to a conspiracy or agreement by force to do the things alleged. Under the fifth, and seventh articles of im- peachment the broader rule of the common law is applicable. Leaving the discussion of those articles for their proper place, let us inquire whether there is a conspiracy proved in violation of the act of 1801. To determine this there must be grouped about the accused all the circumstances tending to explain his conduct. From the very nature of the crime its perpe- trators would carefully abstain from leaving any trace of their original purpose. Weare, then, to scan the circumstances surrounding the trans- action ; we arc to inquire into the character of the act to be performed, the means and the instrument employed, the declarations of the conspirators before and since, the mind and temper of the accused, as well as his coconspir- ators, and everything that can throw light upon their motives and intentions. What are these circumstances, acts, and declarations? Here we find the unmistakable declaration of one of the conspirators that he intended to use force ; that should the doors of the Depart- ment be barred against him he would break them down. When he made this declaration he had been once refused possession, and if any one thing appear more clearly than another in the testimony it is that he fully anticipated a forc- ible contest in order to succeed. He was clothed with ample authority by the President to do this. It will not do to say that General Thomas's order was in the usual form, and therefore the President only expected of him the usual compliance with the order, for Thomas knew that not only in the opinion of his General- in-Chief and the rightful Secretary of War, bat in the solemnly declared judgment of Congress, that order was but blank paper ; when, there- fore, we find him declaring a purpose to resort to force, he only stated what was necessary to make the order of the slightest use. No one knew better than Thomas the consequences of even accepting such an order, and the mere agreement between the President and himself, the one to issue the order and the other to ac- cept it and to enter upon its execution, both knowing it to be unlawful, is of itself enough to hold both responsible for the manner in which either attempted to execute it. But his con- versation with Mr. Burleigh was not merely the idle talk of a garrulous old man, drawn out of him by an inquisitive interlocutor, for we find that on the same day, and previous to his con- versation with Burleigh, he had a conversation with Samuel Wilkeson, in which, after some hesitation, he told that witness substantially the same thing on two different occasions. I quote briefly from his testimony, pages 212,213: " The Witnf.ss. I asked him to tell me what had occurred that morning between him and the Secre- tary of War in his endeavor to take possession of the War Department. He hesitated to do so till I told him that the town was filled with rumors of the change that had been made, of the removal of Mr. Stanton and the appointment of himself. He then said that since the affair had become public he felt relieved to speak to me with freedom about it. He drew from his pocket a copy, or rather the original, of the order of the President of the United States, directing him to take possession of the War Depart- ment immediately. He told me that he had taken as a witness of his action General Williams, and had gone up into the War Department and had shown to Edwin M.Stanton the orderofthe President, and had demanded, by virtue of that order, the posses- sion of the War Department and its books and pa- pers. He told me that Edwin M.Stanton, after read- ing the order, had asked him if he would allow to him sufficient time for him to gather together his books, papers, and other personal property and take tbem away with him ; that hetold him that he would allow to him all necessary time to do so, and had then withdrawn from Mr. Stanton's room. He fur- ther told mo, that day being Friday, that the next day would be what he called a dies non, being the holiday of the anniversary of Washington's birth- day, when he had directed that the War Department should be closed; that the day thereafter would be bunday, and that on Monday morning he should demand possession of the War Department and of its property, and if that demand was refused orresisted he should apply to the General-in-Chief of the Army for a, force sufficient to enable him to take possession of the War Department; and he added that he did not see how the General of the Army could refuse to obey his demand for that force. He then added that under theorder that the President had given to him he had no election to pursue any other course than thoone that he indicated: thathewas a subordinate officer directed by an order from a superior officer, and that he must pursue that course." Here we find not only the purpose to use force distinctly declared, but that, under the " order the President had given him, he had no election to pursue any other course." I ask how he could have spoken truthfully and have made any other declaration, when it is patent that no other course could have been successful ? It does not seem to me that this view of the case could be made to appear more clear by illustration ; and yet let me put a par- allel case. Suppose Andrew Johnson had determined to possess himself of the Capitol with a view of ousting Congress, and had directed the Speaker of the House of Representatives and the President of the Senate to turn overall the records, and had directed Thomas to take im- mediate possession. Such an order would be no less unlawful, in one view of the tenure act, than the one he gave. Could anybody doubt that such an order would mean revolution, and that a clash of arms must follow if it were executed ; and, if such thing followed, that Mr. Johnson would be directly chargeable with the consequences ? Would not force appear all over the order, though the word were not written ? If the officer charged with executing such order declared, after receiving it, that he intended to use force, would any sane man set up that the President must hot be held account- able, for the declarations of such officer when THE, CONGRESSIONAL GLOBE. 265 they were declarations showing the only means of accomplishing the object? Let me ask wherein this hypothetical case is not covered by that at bar ? Mr. Stanton was intrenched behind the law, as securely as is Congress ; he had frequently declared that he would not yield except to superior force. 1 say, then, that when the President ordered Thomas to take immediate possession of the War Department he gave him a carle blanche to do whatever he thought necessary to accomplish his purpose, and Thomas only echoed his coconspirator when he talked with Burleigh and Wilkeson. But General Thomas not only communicated his purpose to Borleigh, but he afterward told this witness why he had not executed his plan. Witness says (page 210) that he (Thomas) told him that the only thing that prevented his taking possession of the War Department on the morning he had invited Burleigh to be present was becauseof his arrest by the United States marshal at an unusually early hour. ■ At this point, before noticing the attempt of Thomas to seize the War Department on the morning of the 22d of February, I desire to call attention to a fact in evidence showing a perfect concurrence of mind between the President and his coconspirator, Thomas. On the morning of the 22d, the President's Pri- vate Secretary addressed a note, by direction of the President, to General Emory, in com- mand of the military forces of the department. General Emory responded in person, and met the President about the same hour that Thomas entered the War Department. That interview is made the subject-matterof aseparate article, and I will not give it at length in this place. But I urge that no man can read General Em- ory's narrative of what then transpired in the light of the circumstances surrounding this case and not feel himself driven to the con- clusion that the President meant to use the military force of this department through that officer to carry out his unlawful design ; and nothing but the indirect rebuke administered by General Emory, and his avowed purpose made to the President to obey no orders except they should eome through the General-in-Chief, as by law provided, deterred the accused from then and there directing him to marshal his forces, if necessary, for the expulsion of Mr. Stanton. While this remarkable scene was transpiring in the Executive Mansion, another not less re- markable was being enacted by the tool of the President at the War Department. There were many witnesses present, most of whom have testified. As they concur substantially in their testimony, I will give that of but one of them, Hon Thomas W. Ferry. (See page 224.) *' In the presence of Secretary Stanton, Judge Kel- LKY, MoORHEAD, DODGE, VAN WyCK, Van HORN, Delano, and Freeman Clarke, at twenty-five min- utes past twelve in., General Thomas, Adjutant Gen- oral, came into the Secretary of War Office, saying, ' Good morning/ the Secretary replying, ' Good morn- ing, sir.' Thomas looked around and said, 'I do not wish to disturb these gentlemen, and will wait.' Stanton said, 'Nothing private here; what do you want, sir?' "Thomas demanded of Secretary Stanton the sur- render of the Secretary of War Office. Stanton de- nied it to him, and ordered him back to his own office as Adjutant General. Thomas refused to go. 'I claim the office of Secretary of War, and demand it by order of the President.' "Stanton. 'Idcnyyourauthority to act, and order you back to your own office.' "Thomas. 'I will stand here. I want no unpleas- antness in the presence of these gentlemen.' "Stanton. 'You can stand there if yon please, but you cannot act as Secretary of War. I am Secretary of War. I order you out of this office, and to your own.' "Thomas. 'I refuse to go, and will stand here.' "Stanton. 'Howareyou to get possession ; do you mean to uscforccY' "Thomas. 'I do not care to use force, but my mind is made up as to what I shall do. I want no un- pleasantness, though. I shall stay here and act as Secretary of War.' "Stanton. 'You shall not, and I order you, as your superior, back to your Qwn office.' "Thomas. 'I will not obey you, but will stand here, and remain here.' " Stanton. ' You can stand there, as you please. I order you nut of this office to your own. I am Sec- retary of War, and your superior.' "Thomas then went inl^o opposite room across hall (General Schriver's) and commenced ordering Gen- eral Schriver and General E. D. Townsend. Stanton entered, followed by Moorhead and Ferry, and or- dered those Generals not to oboy or pay attention to General Thomas's orders; that he denied his assumed authority as Secretary of War adhUerim, and forbade their obedience of his directions. 'I am Secretary of War, anil I now order you, General Thomas, out of this office to your own quarters.' "Thomas. 'I will not go. I shall discharge the functions of Secretary of War.' "Stanton. ' You will not.' "Thomas. 'I shall require the mails of the War Department to be delivered to me, and shall transact the business of the office.' "Stanton. 'You shall not have them, and I order you to your own office.'" Gentlemen of the Senate, was this the method of executing an ordinary command of an officer delivered to him for an ordinary pur- pose? Did Thomas assume this belligerent attitude and enter upon this despicable busi- ness in such violent manner without having been instructed to do so, if necessary, by the man whose orders he was executing? Is it not probable that at the very moment he was bullying the Secretary of War and ordering General Schriver and General Townsend to recognize him as the rightful Secretary he was expecting the force necessary to maintain his authority from General Emory, who, he thought, was receiving instructions from the President to that effect? Sirs, this coincidence and concurrence of action between the Presi- dent and Thomas on that morning is suscep- tible of no reasonable solution other than that they meditated the use of force and were avail- ing themselves of every possible means .to obtain it. Now, sirs, I do not desire to pursue this inquiry further. If there was a conspiracy between these parties to take possession of the War Department by force, as I think has been fully shown by the evidence at this trial, then that conspiracy must be held to extend neces- sarily to the charges laid in the fourth and sixth articles, and they need not be separately discussed. I will now briefly notice the charge laid in articles five and seven. The President is here charged with conspiring with Lorenzo Thomas and others unknown to seize, take, and possess the property of the United States in the De- partment of War, and to hinder and prevent Edwin M. Stanton, the Secretary of said De- partment, from holding his said office; this in violation of the civil-tenure act. In these charges there is no allegation of force being meditated, as was necessary in alleging the violation of the conspiracy act. The offense charged, then, consists simply in an agreement to do an unlawful act in an unlawful manner. It does not matter what means were contem- plated nor what used. It is enough to know that the act and the manner of its accomplish- ment were unlawful. The evidence already adduced, and the laws cited, show that at the lime the accused at- tempted Mr. Stanton's removal he was law- fully in possession of his office. The evidence and the laws noticed also show that the accused had exhausted every legal means to remove Mr. Stanton. I say, then, that Mr. Johnson could take no step 'beyond these which would not in itself be an unlawful act. There was no way to remove Mr. Stanton against his will and without the advice and consent of the Sen- ate except by resort to unlawful means. If he is proved to have attempted this by concert or agreement with one or more he is guilty of a conspiracy so to do. There is, sirs, an un- warrantable attempt to throw around this charge of conspiracy a meaning which it has not in law, to clothe this offense with something abhor- rent to public sentiment ; and we are told that persons may be jointly engaged in the most heinous crimes, and yet we must be cautious before convicting them of a conspiracy. This is an appeal to popular prejudice ; and is no- where to be derived from the books and decis- ions upon criminal law. The accused could not himself carry out his unlawful purpose ; he was forced to select an accomplice. He made that selection, the agreement was entered into, the requisite order issued, the two minds met, and one of the parties entered upon the design to be accomplished, and that design being an unlawful one the conspiracy was complete. The tenure of-office act, in its fifth and sixth sections, denounces as,abigh misdemeanor the very acts which are proved to have been com- mitted by the President. Were it not for the rule of law which protects him while in his high office from a criminal prosecution before a jury of his countrymen he could upon his own an- swer be convicted and sentenced to imprison- ment. And so, also, could Lorenzo Thomas. How, then, can he escape conviction before this court which can properly try him, simply because he has united with one or more per- sons to commit the offense? All the evidence which has been presented under the fourth and sixth articles applies with greater weight to the fifth and seventh. And should it be found not to establish that he conspired by force to remove Mr. Stanton, it by no means follows that he did not conspire at all. It would seem to me a work of supererogation to add to the grouping of guilty circumstances already given to intensify the proofs of complicity. The accused has admitted in his answer that on and before August 5, 1867, " he became satisfied that he could not allow the said Stan- ton to continue to hold the office of Secretary of the War Department;" "that he did ne- cessarily consider and determine that the said Stanton ought no longer to hold the said office ;" "and to give effect to such his decision and determination he did address the said Stanton a note," &c, following: "Sir: Publio considerations of a high character constrain me to say that your resignation as Secre- tary of War will be accepted." To which Mr. Stanton, on the same day, said : "In reply, I have the honor to say that publio considerations of a high character, which alone have induced me to continue at the head of this Depart- ment, constrain me not to resign the office of Secre- tary of War before the next meeting of Congress." Here was the first step pursuant to the plan to dispossess Mr. Stanton peaceably if he could, forcibly if he must. Here he was plainly told that only by resort to the latter means would the Secretary yield. The answer tells us he was forced to consider what "acts could be done to cause the said Stanton to surrender the said office." Surrenders, Mr. President, do not often precede force. They usually fol- low not only its exhibition but its application. The tenure act pointed out but one way, and Mr. Stanton having declined to resign, the law pointed out the only peaceable way. He next, on the 12th of August, seven days after Mr. Stanton refused to resign, appointed General Grant ad interim and suspended Mr. Stanton ; but this was but of temporary dura- tion, for the Senate refused to concur, and Mr. Stanton resumed his functions of office. Here ended all legal means ; here ended all peaceable means; this exhausted every resort except to force, and this he prepared himself to use. He says the next step, although a vio- lation of the law, was taken to raise a question for the courts. This will not do. He had been told in plainest terms by Mr. Stanton that he would not resign ; he had been told by that officer that he yielded to superior force in the matter of his suspension, and he knew that the Senate had practically instructed Mr. Stan- ton that no attempt at removal by unlawful means would be sustained by them. We have Mr. Johnson, then, brought to an alternative which had but one solution in his mind, and that he had already determined upon, namely, to remove Mr. Stanton at all hazards. To raise a question for the courts forsooth ! He could not do this, and he well knew it, ex- cept by committing a trespass upon the baili- wick of Mr. Stanton, bylaw assigned him, and when within his office by forcibly ejecting him therefrom. If, sirs, his design was not to go this far, still if it included a purpose to estab- lish a second Secretary of War in that building, and require subordinates to obey the orders of the pretended Secretary, this was force in the meaning of the act. We are bound to infer that when Mr. Johnson sat out to accomplish 266 SUPPLEMENT TO an object which he had every reason to believe would be successful only upon the application of force, he meditated that force ; and whether he subsequently went to tjiat extreme does not matter; the offense is complete without it. But what did he do? Having failed to secure the General-in-Chjef as a tool he selected an officer of the Army, who was nominally Adju- tant Genera], but whom neither Mr, Lincoln while he was President nor Mr. Stanton would trust in charge of the Adjutant General's de- partment. The respondent peremptorily or- dered the General-in-Chief to reinstate this man, knowing that he could not show a greater contempt for Mr. Stanton's authority than to thrust upon that Department an officer whom Mr. Stanton himself had suspended from his duties. He had still another motive : the office of the Adjutant General was in the same build- ing with that of the Secretary of War, and the ulterior purpose to possess himself of the en- tire building was thus to be more readily ac- complished. On the 21st of February General Thomas was directed to take immediate pos- session of the War Department. He went accordingly and demanded the office. It is in evidence that on that same day the Senate, upon information furnished them by the Sec- retary of War, passed a resolution declaring the attempted removal of Mr. Stanton a vio- lation of the Constitution and the laws, and that resolution upon the same day was placed in the hands of the accused and his cocon- spirator Thomas. Not only this, they" both knew that the House of liepresentatives had, in view of this removal, entered seriously upon the consideration of this respondent's impeach- ment. With these proceedings well under- stood, with the consequences certain to await the accused and his coconspirators, the order to Thomas is not countermanded, nor are his instructions changed, but the plan originally entered upon is attempted to be carried out without the slightest deviation, as we learn from Thomas's testimony, and with the plan fresh in his mind as laid before him by the accused, Thomas, on the same night, stated to Mr. Burleigh what he was going to do. Let me give a portion of Burleigh's testimony, pp. 201-2 : "A. On the evening of the 21st of February last I learned that General Thomas had been appointed Secretary of War ad interim, I think whiic at the Metropolitan Hotel. I invited Mr. Leonard Smith, of Leavenworth, Kansas, to go with mo up to his house and see him. We took a carriage and went up. I found the general there getting ready to go out with his daughters to spend the evening at some place of amusement. 1 told him 1 would not detain him if he was going out; but he insisted on my sit- ting down, and I sat down for a few moments. I told him that I had learned ho had been appointed Sec- retary of War. He said he had: that he had been appointed that day, I think ; that after receiving his appointment from the President he went to the War Office to show his authority or his appointment to Secretary Stanton, and also his order to take posses- sion of the office; that the Secretary remarked to him that he supposed he would give him time to remove his personal effects or his private papers, something to that effect; and his reply was 'Certainly.' He said that in a short time the Secretary asked him if he would give him a copy of his order, and he replied 'Certainly,' and gave it to him. He said that it was no more than right to give him time to take out his personal effects. I asked him when he was going to assume the duties of the office. He remarked that he should take possession the next morning at ten o'clock, which would be the 22d; and I think in that connection he stated that he had issued some order in regard to the observance of tho day; but of that I am not quite sure. I remarked to him that I should be up at that end of tho avenue the next day, and he asked me to come in and see him. I asked him where I would find him, and he said in the Secre- tary's room, up stairs. I told him I would be there. Said he, 'Be there punctual at ten o'clock.' Said I, 'You are going to take possession to-morrow?' 'Yes.' Said I, 'Suppose Stanton objects to it — re- sists?' 'Well,' said he, 'I expect to meet force by force,' or 'use force.' " Mr. Conkling. Repeat that. "The Witness. I asked him what he would do if Stanton objected or resisted? He said he would use force or resortto force. Said I, 'Supposohe barsthe doors?' His reply was, 'I will break them down.' I think that was about all the conversation that we had there at that time in that connection." I have not noticed the sending for Gen- eral Wallace, the officer second in command of this military department, after the President had failed in his attempted seduction of Gen- eral Emory. I have not noticed the frequent declarations of the coconspirator Thomas, showing that up to the time this trial was en- tered upon he had not desisted from his pur- pose to possess himself of the War Depart- ment; that he is, in violation of any other the- ory than that he is, and has been since his appointment, in perfect accord and agreement with the President, received into Cabinet coun- cils and official communication with the Pres- ident as Secretary of War ; that he has certified papers, one of which is in evidence, as Sec- retary of War; and in them at least, if not practically, is to-day by recognition and order of the President a de facto Secretary of War. But, sirs, casting aside all evidence intro- duced by the prosecution, and looking at the charge of conspiracy in the light of the testi- mony which the answer furnishes, there is left us but one of two conclusions: either that this accused and General Thomas are fully sus- tained by the law in what they did and at- tempted to do, or they are both guilty, and the one now on trial must be convicted. I will not here stop to notice the charges laid in article eighth. The offense does not ma- terially differ from that laid in the second and third articles. AETICLE NINTH. We are brought, then, to notice article ninth, which charges that the accused instructed Gen- eral Emory that the act of Congress approved March 2, 1867, was unconstitutional and in contravention of commission of the said Em- ory, with intent to induce him, in his official capacity as commander of the military forces of this department, to violate the provisions of that act, and with the further intent thereby to enable the accused to prevent the execution of the tenure act, and also prevent Edwin M. Stanton, the Secretary of War, from discharg- ing the duties of his office by virtue thereof. It would be difficult to read. General Emory's testimony under this charge, if it stood uncon- nected with any other evidence, and not con- clude that he was sent for by the President with a view to counsel a violation of this law. This testimony is brief, and I crave the in- dulgence of the court to read it as given upon the record. General Emory was summoned by the President's Private Secretary. The note sent him and his testimony I will now read. General Emory's testimony, pages 227, 228, and 229 : . Executive Mansion, Washington, D. C, February 'li. 1868. General: Tho President directs me to say that he will be pleased to have you call on him as early as practicable. Very respectfully and truly, yours, WILLIAM G. MOORE, United States A nny. "Q. How early did you call? A. I called imme- diately. "Q. How early in the day ? A. I think it was about mid-day. "Q. Whom did you find with the President, if any- body? A. I found the President alone when I first went in. " Q. Will you have the kindness to state as nearly as you can what took place there ? A. I will try and state the substance of it, but the words I cannot un- dertake to state exactly. The President asked mo if I recollected a conversation he hud had with mo when I first took command of the department. I told him that I recollected the fact of the conversa- tion distinctly. He then asked me what changes had been made. I told him no m.iterial changes; but such as had been made I could state at once. I went On to state that in the fall six companies of the twenty-ninth infantry had been brought to this city to winter; but, as an offset to that, four companies of the twelfth infantry had been detached to South Carolina, Qn the request of tho commander of that district; that two companies of artillery that had been detached by my predecessor, one of them for the purpose of aiding in putting down the Fenian difficulties, had been returned tothecoramand; that, although the numbor of companies had been in- creased, the numerical strength of the command was very much the same, growing out of an order reducing* the artillery and infantry companies from tho maxi- mum of the war establishment to the minimum of the peace establishment. The President said, ' I do not refer to those changes.' I replied that if he would state what changes he referred to, or who made the report of the changes, perhaps I could be more explicit. He said, 'I refer to recent changes, within a day or two,' or something to that effect. I told him I thought I could assuro him that no changes had been made; that, under a recent order issued for the government of the armies of the United States, founded upon a law of Congress, all orders had -to be transmitted through GeneralGrant to the Army, and, in like manner, all orders coming from freneral Grant to any of his subordinate officers must necessarily come, if in my department, through me; that if by chance an order had been given to any junior officer of mine it was his duty at once to report the fact. Tho President asked me, ' What order do you refer to?' I replied, 'To Order No. 17 of the series of 18b7.' He said, ' I would like to see the order,' and a messenger was dispatched for it. At this time a gentleman came in who I supposed had business in no way connected with the business that I had in hand, and I withdrew to the further end of the room, and while there the messenger came with the book of orders and handed it to me. As soon as the gen- tleman had withdrawn I returned to the President with the book in my hand, and said I would take it as a favor if he would permit me to call his attention to that order; that it had been passed in an appro- priation bill, and I thought it not unlikely had es- caped his attention. He took the order and read it, and observed, ' This is not in conformity to the Con- stitution of the United States, that makes me Com- mander-in-Chief, or with the terms of your commis- sion.' " Mr. IIowaro. Repeat his language, if you please. "The Witness. I cannot repeat it any nearer than lam now doing. " Mr. Conkling. Repeatyour last answer louder, so that we may hear. " Mr. Johnson. What he said. "The Witness. What who said; the President or me? " Mr. Howaed. The President. "The Witness. He said, ' This is not in conform- ity with the Constitution of the United States, which makes me Commander-in-Chief, or with the terms of your commission.' I replied, ' That is the order which you have approved and issued to the Army for our government,' or something to that effect. I cannot recollect the exact words, nor do I intend to quote theexact words of the President. He said, 'Am I to understand that the President of the Uni- ted States cannot give an order except through the General of the Army' or 'General Grant?' I said, in reply, that that was my impression ; that that was the opinion the Army entertained, and I thought upon that subject they were a unit. I also said, 'I think it is fair, Mr. President, to say to you that when this order came out there was considerable dis- cussion on thesubject as to whatwere the obligations of an officer under that order, and some eminent lawyers were consul ted — I myself consulted one — and the opinion was given to me decidedly and unequiv- ocally that we were bound by the order, constitu- tional or not constitutional. ThePresidentobserved that the object of the law was evident. " Mr. Manager Butler. Before you pass from that, did you state to him who the lawyers were that had been consulted? A. Yes. "Q. What did you state on that subject? A. Per- haps, in reference to that, a part of my statement was not altogether correct. In regard to myself,, I consulted Mr. Robert J. Walker. "Q. State what you said to him, whether correct or otherwise? A. I will state it. I stated. that I had consulted Mr. Robert J. Walker, in reply to his question as to whom itwasl had consulted; and I understand other officers had consulted Mr. Rev- erdy Johnson. " Q. Did you say to him what opinion had been reported from those consultations? A. I stated be- fore that the lawyer that I had consulted stated to me that we were bound by it undoubtedly; and I understood from some officers, who I supposed had consulted Mr. Johnson, that he was of the same opinion. "Q. What did the President reply to that? A. The President said, 'The object of the law is evi- dent.' There the conversation ended by my thank- ing him for the courtesy wirh which he had allowed me to express my own opinion. "Q. Did you then withdraw? A. I then withdrew." I have said that this testimony, stauding alone, bears upon its face proof of guilt, but we are not permitted to view it from so narrow a stand-point. Itisilluminedfrom many sources, and is given a significance not to be misunder- stood. There is scarcely a scene or act con- nected with this remarkable drama- of execu- tive usurpation which does not explain this at- tempt to alienate a gallant officer from his General-in-Chief, and stamp it as scarcely less infamous than the attempt previously made to alienate the General-in-Chief from the whole loyal people of the land. Sirs, there is not in this the naked procura- tion to violatelaw, but a treasonable attempt to poison the mind of a high Army officer to sow dissension, insubordination, and treachery in the Army. This, too, sirs, from the Com- mander-in-Chief. Such conduct in an officer or soldier is, by the Articles of War, punish- able with death. Scores of soldiers have paid this penalty for mutinous, conduct not half so aggravating. The moral sense not only of the Army but of the country must be shocked at such an exhibition from a Chief Magistrate ; and, sirs, I will be pardoned for saying that General Emory never dtd a more heroic act than when he spurned the treacherous oOfer of THE CONGRESSIONAL GLOBE. 267 high command which lie knew would await him should he lend himself to the conspiracy already hatched by the President. Now, sirs, how is this extraordinary inter- view explained by the accused? He says in his answer that his purpose was to ascertain what changes had been made in the military affairs of this department. That may have been one of his motives, but is it to be believed for a moment that this was all? To do this we must shut our eyes to all the cumulative evidence in this case. No one was threatening to use force against Mr. Johnson. There was no effort being made to oust him from office by force. He had nothing to apprehend from the military forces of this Department. There was no un- usual excitement anywhere in the country that made it necessary for him to marshal these forces. The only thing, sirs, which he had any reason to apprehend might happen was, that in the event he persisted in his design to execute his order to remove the Secretary of War, this military force might not be found subservient to his wishes. And here we have a key which unlocks his treasonable designs. Here we have his motive made plain as the sunlight. He could not, by open confession, disclose more certainly what was intended by him when he summoned General Emory to his presence. It was not a proper question to ask that officer, when upon the witness stand, what he understood the President to mean by that cabalistic manner with which he introduced the subject of recent changes in the military forces made within a day or two. That is a question for you, Senators, to answer. General Emory could have answered it but one way. But let us see whether the turn which the con- versation took does not of itself show the lead- ing motive which the President had in mind. General Emory had responded fully as to the question put him, and assured the President that there had been no recent changes, and could be none (under the law and orders) without General Emory's first knowing it. There the conversation ought to have^nded if the President's answer is held to disclose the whole truth. General Emory read to him the law by which he was guided, and the Pres- ident himself took it and read it, and imme- diately observed : '* This is notin conformity with the Constitution of tho United States, which makes me Commander-in- Chief, or with the terms of your commission." General Emory replied, speaking of the order which promulgated that law : " That is the order which you have approved and issued to the Army for our government." The Commander-in-Chief being thus baffled by his subordinate, made this reply : " Am I to understand that the President of tho United States cannot give an order except through tho General of the Army, or General Grant?" This last answer is a complete portraiture of the President's motives, and his disappoint- ment in not rinding in Emory a willing tool through whom he might prosecute his designs. To put this in other phrase it would read : "Then, General Emftry, I am to understand you will not obey my orders unless I communicate them through General Grant?" General Emory felt himself called upon to say that with regard to this law the Army were a unit. Of its meaning the President could have no doubt, for after listening to General Emory a moment longer, he remarked, with apparent disappointment at the result of the interview, " The objectof the lawis evident," and they then separated. When we remember that this is but one of the links in the chain being forged by the ac- cused with which to manacle the Secretary of War and bind a great department of the Gov- ernment to the Juggernaut used by him to crush all opposition to executive will, the of- fense appears in hideous distinctness. That it was such a link to be thus used I am forced to believe, and I leave it to await the judgment of this high court. I am disinclined, after this protracted dis- cussion, to dwell at any length upon the tenth and eleventh articles ; and yet I beg not to be understood as derogating from their import- ance or their gravity. The accused is here charged not only with improprieties and inde- cencies of speech ; he is not only called to answer intemperate, disgraceful, incendiary, and riotous language, but he is charged with following up the purposes avowed in these speeches by overt acts looking directly to the obstruction of the laws which he had sworn to take care should be faithfully executed. If the conduct of this accused, in his official capa- city, in word, act, and deed, has not shown conclusively his guilt under both of these arti- cles then there could be no proof adduced, however strong, that would be sufficient. The proof does show his unlawful attempt to obstruct the laws as therein charged. I will not again do more than to ask your examina- tion of the facts proved and found in the re- corded testimony, which shows how eagerly be entered upon the dangerous business of ob- structing and defying the laws of the country. As to his speeches, upon which the tenth ar- ticle is based, look at them, read them ; there they stand in history as a monument of his everlasting disgrace. Tlie great labor of explain- ing and justifying such speeches and conduct is certainly in able hands. It is defended and justified as one of the great privileges of the President of the United States to be guilty of such indecency, impropriety, vulgarity, pro- fanity, and impiety of speech as to offend the moral sense of the whole people. It is for them to show how far the liberty of indecent speech in a high official may be indulged before it reaches that unwarrantable license where the only power than can will step in and correct the wrong. The idea that a President may so demean himself by indecent speech as to make him a scoff and byword, and place himself so low in the moral scale that none "would stoop to touch his loftiest thought," and yet not be guilty of such misdemeanors as would call for the very action we have taken, is beyond my ken. "0 judgment, thou art fled to brutish beasts, And men have lost their reason." The defense have not, by their evidence, contradicted what we have proven, but have only strengthened our case. There has been no proof adduced on the part of the defendant that either will justify or excuse his unlawful acts. The evidence of General Sherman, and all others put on the stand by the defense, only make his guilt the more manifest. The attempt by documentary evidence to prove the practice of the Government to justify his act proves that the practice has been to obey the law and not violate it, as all appointments and removals proved have been made under some existing law, either the laws of 1789, 1795, 1820, 1856, or some authority in law upon which the act was based. But suppose every other Administration had violated the law, would that justify the violation of a positive enactment making its violation a crime or mis- demeanor? Certainly not. If so, a murderer might justify his murder on the grounds that murders were common in the country from the commencement of the Governmeat tothepres- ent time. Even the advice of his Cabinet cannot excuse him. By advising a crime they cannot shield their chief, but maybe impeach- able themselves for advising a disobedience of law. But it is all of record, and I will not pur- sue it further. We have laid bare his offenses. In all that has been proven, or aught of his conduct since President, which is a matter of history, there is not to be found a good motive for his conduct. He is found without any of the elements necessary to fit him for any offi- cial position. Goodness, clemency, and a proper liberality should be among the virtues that adorn a Chief Magistrate. With the aid of these he should be able to greatly assist in the amelioration of the condition of the whole people. The chief end of all his actions should be to promote peace, safety, prosperity, and happiness to the nation. This was the idea of the heathen philoso- phers; they defined a good prince as "one who endeavors to render his subjects happy ;" " and a tyrant," on tho contrary, "one who only aims at his own private advantage." An example of the first we had in the lamented Lincoln, and of the latter in Mr. Johnson. Mr. Lincoln was endowed with one of the mosi. genial souls that Heaven ever gave to man and an intellect of most wonderful power. His apprehension was quick, his judgment sound, his conclusions correct. His mind was suffi- ciently capacious to comprehend all the vast range of thought to which occasion gave scope, lie met the critical hour of duty to his country like a statesman and a man. He sustained loyalty and gave all his strength in crushing treason. Instead of denouncing your Congress, he consulted and advised with them for the good of the country. Instead of vetoing every law, he aided and assisted in giving them force. Instead of openly violating the plain provisions of your enactments, he executed them faith- fully, as was his duty. How a Government is to bo administered while peace is smiling is one thing, and how it is to be administered amid the horrors of war is quite another thing. Mr. Lincoln had wants hourly multiplying upon his hands that before or since were unheard of. The diffi- culties with which the war on our hands was complicated were almost interminable; but with each new-found difficulty he found new strength, hope, and energy, until all obstacles were overcome and the war ended. But at the very dawn of the nation's new birth, resting from his labors and contemplating that peace that was then breaking through the dark, angry clouds of war, he fell by the hand of an assassin. Yes, his sun has set forever. Loyalty's gentle voice can no longer wake thrills of joy along the tuneless chords of his moldering heart. Yet the patriots and lovers of liberty, who still linger on the shore of time, rise and bless his memory ; and millions yet unborn will in after times rise up to deplore his fate and cherish as a household word his deathless name. Mr. President and Senators, what patriots that linger behind will rise up and bless the memory of Andrew Johnson? Who will in after times rise up to deplore the fate that now surely awaits him? Who will cherish as a household word his dishonored name ? None, none, Mr. President; no, not one! No, sir; the virtues that should adorn a Chief Magis- trate fled on the induction of this criminal into that high office. In sadness and sorrow did the people witness this man succeed to the execu- tive chair — not bytheir spontaneuos voice, not by their free accord, but by the ministration of the murderer's missive. They witnessed him, who had acquired power by such a sorrowful and inauspicious chance, bending blindly to the behests of those whose adherents, if not they themselves, had lately been in rebellious arms against that Constitution which he had sworn to protect and maintain. They saw him, flushed with arrogance and pride, despise the warnings of the people and deride the mandates of their legislators. When an act of the legislative department of the Governmentwould notinure to his advantage politically thev saw him openly violate and trample it under foot. When loy- alty was supported and peace attempted to be perpetuated they saw him disregard their will and throw all manner of obstructions in the way. When the officers of the Government would not bend the knee and cry "great and good prince," they saw him attempt to hurl them from his courts. When the commander of the Army would not do his bidding they have seen. him conspire to destroy his good name asd fame before the country. Wheu the country was at ease they have seen him give it grief and pain. When at peace and rest they have seen his attempttogiveitrevolutionand blood. They saw himwitharuthlessand heavy hand attempt to seize the nation's purse and the 268 SUPPLEMENT TO nation's sword, and thus, by clutching in his longing grasp all the attributes of power, place himself in a condition where he might with safety aunounce his views and enforce his designs. They felt the weight of his great office fall like an enshrouding pall over a suffering peo- ple. They marked with alarm and consterna- tion his rapid strides to that point where his sway would have been autocratic and his reign irresistible. It was not alone by force that this was to be accomplished. By appeals which were designing, and all the more dangerous because of apparent candor, he drew to him the careless and unsuspecting. By pledges, all the more reprehensible because of plighted honor, he soothed the suspicions of the cau- tious and the wise. By profuse disposition of rewards in his hands he gained the mercenary and attracted the unscrupulous ; and where the pliant arts of flattery and persuasion failed to accomplish his intended views, by the stern show of his power and authority he awed the timid and overbore the weak. These, sirs, we have manifested, if by our proof we have made aught manifest. And to all this what does he reply? That, though his acts were bad, his motives were good; that, though his course was unlawful, his heart was well-meaning ; that he trampled on the law in order that he might uphold the law ; that he disregarded his oath the better to enable him to keep it. When we ask him why he set aside the law of the land he replies that it was be- cause it was opposed to the Constitution of the land ; and when we again inquire as to the Con- stitution of the land we are assured that it is his prerogative to construe it even in violation of the laws of the land. Have I stated this be- yond the line of his defense? Have I wronged him by one unjust description of his conduct or his claim? If not, shall this state of things longer exist? Shall we snap the chains that bind us or continue in them longer? Shall we vindicate the law or crouch at the usurper's frown? Shall we vindicate to-day the princi- ple that underlies the very foundation of this Government Or allow the laws to be trampled under foot at the will of every tyrant? It is a fundamental principle of this Govern- ment that there shall be a known rule and law by which not only the conduct of the citizen, but all officers, including the Chief Magistrate of the nation, shall be regulated and governed. This is a Government of laws and not of men. It is this principle which distinguishes this re- publican form of Government of ours from the monarchies of the Old World. I repeat, sirs, this is a Government of laws and not of men. Never before, I believe, was it known in this enlightened country that the executive head of the nation had the arrogance to take upon himself not only the executive, but the judicial functions of the Government. No, sir ; under the smiles of that merciful Providence who had watched over and guided the destinies of the people, we have hitherto been exempt, and I trust in God shall here- after continue to be, from the affliction of that most direful scourge, a Chief Executive with full discretionary powers to execute a law or declare it unconstitutional at will. It is not that which pleaseth nor that which is most con- sonant with the humor and inclination of the President, but the law, which should be the rule of his conduct. I trust, sirs, that the time will never again come in the history of this nation when, by elevation to the Presidency, any one will become so infatuated as to imagine himself independent of that rule, or to set up his own private judgment or opinions as the only standard by which he will be guided or governed. Then, sirs, whether we shall in the future witness this attempt in other Executives depends upon your decision upon the issues in this case involved. Being the grand tribunal from which there can be no appeal, you should properly reflect the law and the testimony. The pure stream of public justice should flow gently along, undisturbed by any false pretense on the part of the defendant or false sympathy upon your part. The President should not be permitted to play the necromancer with this Senate as he did with the country through the law department of the executive branch of the- Government, whereby he raised a tempest that he himself could not control. Well might he have exclaimed : "I am the rider of the wind, The stirrer of the storm; The hurricane I left behind Is yet with lightning warm/' But, thanks to the wisdom of our far-seeing patriot sires, you, Senators, are, by our Con- stitution, made the great power that shall calm the tempest and so direct the lightning that its strokes shall be warded off from the peo- ple and fall only upon the head of their op- pressor. Yes, Senators, we fervently hope and confi- dently rely upon you to calm the storm, and prevent the Temple of Liberty being dashed to earth by the hurricane. We cannot, will not believe that we are or will be mistaken in those in whom we now place our trust. Methinks I hear a voice coming up from the lowly pillows of patriotism's immortal martyrs, saying, "Be of good cheer, all will yet be well." We can- not, will not believe that the respondent's un- just appeals will avail him now. He appeals to the truth of history to vindicate him in the acts of former Executives; but truth itself rises up from the midst of the mass of testi- mony here adduced, and says, even in this appeal, he has polluted God's holy sanctuary; and when on justice he relies to protect him, and lift him up out of his difficulties, justice comes forward in all her majesty and declares that he has not only trampled the laws of man but of God under foot. When he indirectly asks that the mantle of charity shall by you be thrown over his shortcomings and violations of law clemency steps forward, and with a loud voice cries, "Forbearance has ceased to be a virtue ; " "Mercy to this criminal would be cruelty to the State." From the 14th day of April, 1865, to this day, as shown by the testimony, he has been consistent only with himself and the evil spirits of his Administration. False to the people who took him from obscurity and conferred on him splendor ; who dug him from that oblivion to which he had been consigned by the treason of his State, and gave him that distinction which, as disclosed by his subsequent acts, he never merited and has so fearfully scandalized, disgraced, and dishonored ; false to the memory of him whose death made him President ; false to the principles of our contest for national life ; false to the Constitution and laws of the land and his oath of office ; filled with all vanity, lust, and pride ; substituting, with the most disgusting self-complacency and ignor- ance, his own coarse, brutalized will for the will of the people, and substituting his vulgar, vapid, and ignorant utterances for patriotism, statesmanship, and faithful public service, he has completed his circle of high crimes and misdemeanors ; and, thanks to Almighty God, by the imbedded wisdom of our fathers found in the Constitution of our country, he stands to-day, with all his crimes upon his head, uncovered before the world, at the bar of this the most august tribunal on earth, to receive the awful sentence that awaits him as a fitting punishment for the crimes and misdemeanors of which he stands impeached by the House of Representatives, in the name and on behalf of all the people. Here, Senators, we rest our case ; here we leave the great criminal of the age. In your hands, as wisely provided by the charter of our liberties, this offender against the Consti- tution, the laws, liberty, peace, and public decency of our country is now left to ba finally and, in the name of all the people, we humbly trust, disposed of forever, in such manner as no more to outrage the memories of an heroic and illustrious past, nor dim the hopes, ex- pectations, and glories of the coming future. Let us, we implore you, no more hear his re- sounding footfalls in the temple of American constitutional liberty, nor have the vessels of the ark of the covenant of our fathers polluted by his unholy hands. . Let not the blood of a half million of heroes who went to their deaths on the nation's battle-fields for the nation's life cry from the ground against us on account of the crimes permitted by us, and committed by him whom we now leave in your hands. Standing here to-day for the last time with my brother Managers, to take leave of this case and this great tribunal, I am penetrated and overwhelmed with emotion. Memory is busy with the scenes of the years which have intervened between March 4, 1SG1, and this day. Our great war, its battles and ten thou- sand incidents, without mental bidding and beyond control, almost pass in panoramic view before me. As in the presence of those whom I have seen fall in battle as we rushed to vic- tory, or die of wounds or disease in hospital far from home and the loved ones, to be seen no more until the grave gives up its dead, have I endeavored to discharge my humble part ih this great trial. The world in after times will read the history of the administration of Andrew Johnson as an illustration of the depth to which political and official perfidy can descend. Amid the un- healed ghastly scars of war ; surrounded by the weeds of widowhood and cries of orphan- age ; associating with and sustained by the soldiers of the Republic, of whom at one time he claimed to be one ; surrounded by the men who had supported, aided, and cheered Mr. Lin- coln through the darkest hours and sorest trials of his sad yet immortal administration — men whose lives had been dedicated to the cause of justice, law, and universal liberty— the men who had nominated and elected him to the second office in the nation at a time when he scarcely dared visit his own home because of the traitorous instincts of his own people ; yet, as shown by his official acts, messages, speeches, conversations, and associations, almost from the time when the blood of Lincoln was warm on th^floor of Ford's theater, Andrew John- son was contemplating- treason to all the fresh fruits of the overthrown and crushed rebel- lion, and an affiliation with and a practical official and hearty sympathy for those who had cost hecatombs of slain citizens, billions of treasure, and an almost ruined country. His great aim and purpose has been to subvert law, usurp authority, insult and outrage Con- gress, reconstruct the rebel States in the in- terests of treason, insult the memories and resting-places of our heroic dead ; outrage the feelings and deride the principles of the living men who aided in saving the Union, and de- liver all Snatched from wreck and ruin into the hands of unrepentent, but by him pardoned, traitors. But, all honor to the servants of a brave and loyal people, he has been in strict conformity to the. Constitution arrested in his career of crime, impeached, arraigned, tried, and here awaits your sentence. We are not doubtful of your verdict. Andrew Johnson has long since been tried by the whole people and found guilty, and you can but confirm that judgment already pronounced by the sovereign Ameri- can people. Henceforth our career of greatness will be unimpeded. Rising from our baptism of fire and blood, purified by our sufferings and trials under the approving smiles of Heaven, and freed, as we are, from the crimes of oppression and wrong, the patriot heart looks outward and onward for long and ever-increasing national prosperity, virtue, and happiness. Hon. GEORGE S. BOUTWELL, on behalf of the Managers, addressed the Senate, as follows : Mr. President, Senators: The importance of this occasion is due to the unexampled cir- cumstance that the Chief Magistrate of the principal Republic of the world is on trial upon the charge that he is guilty of high crimes and misdemeanors in office. The solemnity of this occasion is due to the circumstance that this THE CONGRESSIONAL GLOBE. 269 trial is a new test to our public national virtue and also of the strength and vigor of popular • government. The trial of a great criminal is not an extraordinary event, even when fol- lowed by conviction and the severest penalty known to the laws. This respondent is not to be deprived of life, liberty, or property. The object of this proceeding is not the punishment of the offender, but the safety of the State. As the daily life of the wise and just magistrate is an example for good, cheering, encouraging, and strengthening all others, so the trial and conviction of a dishonest or an unfaithful officer is a warning to all men, and especially to such as occupy places of public trust. ISSUES. The issues of record between the House of Representatives and Andrew Johnson, Presi- dent of the United States, are technical and limited. We have met the issues, and, as we believe, maintained the cause of the House of Representatives by evidence direct, clear, and conclusive. Those issues require you to ascer- tain and declare whether Andrew Johnson, President of the United States, is guilty of high crimes and misdemeanors as set forth in the several articles of impeachment exhibited against him, and especially whether he has violated the laws or the Constitution of the country in the attempt which he made on the 21st of February last to remove Edwin M. Stanton from the office of Secretary for the Department of War. and to appoint Lorenzo Thomas Secretary of War ad interim. These are the issues disclosed by the record. They appear in the statement to be limited in their nature and character ; but your final ac- tion thereon involves and settles questions of public policy of greater magnitude than any which have been considered in the politicator judicial proceedings of the country since the adoption of the Constitution. DEFENSE. Mr. Johnson attempts to defend his conduct in the matter of the removal of Mr. Stanton by an assertion of " the power at any and aH-times of removing from office all executive officers for cause to be judged ofby the President alone." This claim manifestly extends to the officers of the Army and of the Navy, of the civil and the diplomatic service. He thus assumes and demands for himself and for all his successors absolute control over the vast and yearly in- creasing patronage of this Government. This claim has never been before asserted, and surely it has never been sanctioned ; nor is there a law or usage which furnishes any ground for justification, even the least. Heretofore the Senate lias always been con- sulted in regard to appointments, and during the sessions of the Senate it has always been consulted in regard to removals from office. The claim now made, if sanctioned, strips the Senate of all practical power in the premises, and leaves the patronage of office, the revenues and expenditures of the country in the hands of the President alone. Who does not see that the power of the Senate to act upon and con- firm a nomination is a barren power, as a means of protecting the public interests, if the person so confirmed may be removed from his office at once without the advice and consent of the Senate? If this claim shall be conceded the Presidentis clothed with power to remove every person who refuses to become his instrument. An evil-minded President may remove all loyal and patriotic officers from the Army, the Navy, the civil and the diplomatic service, and nominate only his adherents and friends. None but his friends can remain in office; none but his friends can be appointed to office. What security remains for the -fidelity of the Army and the Navy? What security for the collec- tion of the public revenues? What account- ability remains in any branch of the public service? Every public officer is henceforth a mere dependent upon the Executive. Here- tofore the Senate could say to the President, " You shall not remove a faithful, honest public officer. ' ' This power the Senate has possessed and exercised for nearly eighty years, under and by virtue of express authority granted in the Constitution. Is this authority to be sur- rendered? Is this power of the Senate, this prerogative we may almost call it, to be aban- doned? Has the country, has the Senate, in the exercise of its legislative, executive, or judi- cial functions; fully considered these broader and graver issues touching and affecting vitally our institutions and system of government? The House of Representatives has brought Andrew Johnson, President of the United States, to the bar of this august tribunal, and has here charged him with high crimes and misdemeanors in office. He meets the charge by denying and assailing the ancient, un- doubted, constitutional powers of the Senate. This is the grave, national, historical, consti- tutional issue. When you decide the issues of record, which appear narrow and technical, you decide these greater issues also. The Managers on the part of the House of Representatives, as time and their abilities may permit, intend to deal with the criminal and with these his crimes, and also to examine the constitutional powers of the President and of the Senate. I shall first invite your atten- tion, Senators, to the last-mentioned topics. It is necessary, in this discussion, to con- sider the character of the Government, and especially the distribution of powers and the limitations placed by the Constitution upon the executive, judicial, and legislative depart- ments. TENTH AMENDMENT. The tenth amendment to the Constitution provides that "the powers not delegated to the United States by the Constitution, nor pro- hibited by it to the States, are reserved to the States respectively, or to the people." This provision is not to be so construed as to defeat the objects for which the Constitution itself was established ; and it follows, neces- sarily, that the three departments of the Gov- ernment possess sufficient power collectively to accomplish those objects. It will be seen from an examination of the grants of power made to the several depart- ments of the Government that there is a differ- ence in the phraseology employed, and that the legislative branch alone is intrusted with dis- cretionary authority. The first section of the first article provides that ' ' all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The first section of the second article pro- vides that "executive power shall be vested in aPresident of the United States of America;" and the first section of the third article pro- vides that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." The words "herein granted," as used in the first section of the first article of the Constitu- tion, are of themselves words of limitation upon the legislative powers of Congress, confining those powers within the authority expressed in the Constitution. The absence of those words in the provisions relating to the executive and judicial departments does not, as might at first be supposed, justify the inference that unlimited authority is conferred upon those departments. An examination of the Constitution shows that the executive and judicial departments have no inherent vigor by which, under the Con- stitution, they are enabled to perform the func- tions delegated to them, while the legislative department, in noticeable contrast, is clothed with authority "to make all laws which shall be necessary and proper for carrying into exe- cution the foregoing powers, and all other powers vested by this Constitution in the Gov- ernment of the United 8ta,tes, or any depart- ment or officer thereof. ' ' By virtue of this provision the Constitution devolves upon Congress the duty of providing by legislation for the full execution not only of the powers vested in Congress, but also of pro- viding by legislation for the execution of these powers which, by the Constitution, are vested in the executive and judicial departments. The legislative department has original power derived from the Constitution by which it can set and keep itself in motion as a branch of the Government, while the executive and judicial department^ have no self- executing constitu- tional capacity, but are constantly dependent upon the legislative department. Nor does it follow, as might upon slight attention be assumed, that the executive power given to the President is an unlimited power, or that it an- swers or corresponds to the powers which have been or may be exercised by the executive of any other Government. The President of the United States is not endowed by the Constitu- tion with the executive power which was pos- sessed by Henry VIII or Queen Elizabeth, or by any ruler in any other country or time, but only with the power expressly granted to him by the Constitution and with such other powers as have been conferred upon him by Congress for the purpose of carrying into effect the powers which are granted to the President by the Constitution. Hence it may be asserted that whenever the President attempts to exer- cise any power he must, if his right be ques- tioned, find a specific authority in the Consti- tution or laws. By the Constitution he is Commander-in-Chief of the Army and Navy; but it is for Congress to decide, in the first place, whether there shall be an Army or Navy, and the President must command the Army or Navy as it is created by Congress, and subject, as is every other officer of the Army and Navy, to such rules and regulations as Congress may from time to time establish. The President "may require the opinion in writing of the principal officer in each of the Executive Departments upon any subject re- lating to the duties of their respective offices," but the executive offices themselves are created by Congress, and the duties of each officer are prescribed by law. In fine, the power to set the Government in motion and to keep it in motion is lodged exclusively in Congress un- der the provisions of the Constitution. By our system of Government the sovereignty is in the people of the United States, and that sovereignty is fully expressed in the preamble to the Constitution. By the Constitution the people have vested discretionary power — lim- ited, it is true — in the Congress of the United States, while they have denied to the execu- tive and judicial departments all discretionary or implied power whatever. The nature and extent of the powers con- ferred by the Constitution upon Congress have been clearly and fully set forth by the Supreme Court. (McCulloch «*. The State of Maryland, 4 Wheaton, pp. 409 and 420.) The court, in speaking of the power of Congress, say : " The Government, which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means." Again, they say: "We admit, as all must admit, that the powers of the Government are limited, and that these limits are not to bo transcended; but we think the sound construction of the Constitution must allow to the national Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the man- ner most beneficial to the people. Let the thing be legitimate, let it be within the scope of the Constitu- tion, and all meanswhieh are appropriate, which are plainly adapted to the end, which are not prohibi ted, and consistent with the letter and spirit of the Con- stitution, are constitutional." It is also worthy of remark, in this connec- tion, that the article which confers legislative powers upon the Congress of the United States declares that all legislative powers herein granted — that is, granted in the Constitution — shall be vested in the Congress of the United States ; while in the section relating to the powers of the President it is declared that the executive power shall be vested in a President of the United States of America. The in- ference from this distinction is in harmony with what has been previously stated. " The executive power" spoken of is that which is conferred upon the President by the Constitu- 270 SUPPLEMENT TO tion, and it is limited by theterma of the Con- stitution, and must be exercised in the manner prescribed by the Constitution. The words used are to be interpreted according to their ordinary meaning. it is also worthy of remark that the Consti- tution, in terms, denies to Congress various legislative powers specified. It denies also to the United States various powers, and various powers enumerated are likewise denied to the States. There is but one denial of power to the President, and that is a limitation of an express power granted. The single instance of a denial of power to the President is in that provision of the Constitution wherein he is authorized " to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." As the powers granted to the President are specified, and as he takes nothing by implication or inference, there was no occasion to recite or enumerate powers not delegated to him. As the Consti- tution clothes Congress with powers of legis- lation which are ample for all the necessities of national life, wherein there is opportunity for the exercise of a wide discretion, it was necessary to specify such powers as are pro- hibited to Congress. The powers of Congress are ascertained by considering as well what is prohibited as what is granted, while the powers of the Executive are to be ascertained clearly and fully by what is granted. Where there is nothing left to inference, implication, or dis- cretion, there is no necessity for clauses or provisions of inhibition. In the single case of the grant of the full power of pardon to the President, a power unlimited in its very nature, the denial of the power to pardon in case of impeachment became necessary. This exam- ple fully illustrates and establishes the position to which I now ask your assent. If this view be correct it follows necessarily, as has been before stated, that the President, acting under the Constitution, can exercise those powers only which are specifically conferred upon him, and can take nothing by construction, by im- plication, or by what is sometimes termed the necessity of the case. But in every Government there should be in its constitution capacity to adapt the adminis- tration of affairs to the changing conditions of national life. In the Government of the Uni- ted States this capacity is found in Congress, in virtue of the provision already quoted, by which Congress is authorized "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, (£. e., the powers given to Congress,) and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." It is made the duty of the President. " from time to time, to give to the Congress informa- tion of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." Provision is also made in the Constitution for his cooperation in the enactment of laws. Thus it is in his power to lay before Congress the reasons which, in his opinion, may at any time exist for legislative action in aid of the executive powers conferred by the Constitu- tion upon the President; and under the ample legislative powers secured to Congress by the provisions already quoted there is no reason in the nature of the Government why the con- stitutional and lawful powers of the Executive may not be made adequate to every emergency of the country. In fine, the President maybe said to be governed by the principles which govern the judge in a court of law. He must take the law and administer it as he finds it without any inquiry on his part as to the wis- dom of the legislation. So the President, with reference to the measure of his own powers, must take the Constitution and the laws of the country as they are, and be governed strictly by them. If, in any particular, by implica- tion or construction, he assumes and exercises authority not granted to him by the Constitu- tion or the laws he violates his oath of office, by which, under the Constitution, it is made his duty " to take care that the laws be faith- fully executed," which implies necessarily that he can go into no inquiry as to whether the laws are expedient or otherwise; nor is it within his province, in the execution of the law, to consider whether it is constitutional. In his communications to Congress he may consider and discuss the constitutionality of existing or proposed legislation, and when a bill is passed by the two Houses and submitted to him for approval he may, if in his opinion the same is unconstitutional, return it to the House in which it originated with his reasons. In the performance of these duties he exhausts his constitutional power in the work of legis- lation. If, notwithstanding his objections, Con- gress, by a two-thirds majority in each House, shall pass the bill, it is then the duty of the President to obey and execute it, as it is his duty to obey and execute all laws which he or his predecessors may have approved. If a law be in fact unconstitutional it may be repealed by Congress, or it may, possibly, when a case duly arises, be annulled in its un- constitutional features by the Supreme Court of the United States. The repeal of the law is a legislative act ; the declaration by the court that it is unconstitutional is a judicial act; but the power to repeal or to annul or to set aside a law of the United States is in no aspect of the case an executive power. It is made the duty of the Executive to take care that the laws be faithfully executeO — an injunction wholly inconsistent with the theory that it is in the power of the Executive to repeal or annul or dispense with the laws of the land. To the President in the performance of his executive duties all laws are alike. He can enter into no inquiry as to their expediency or constitution- ality. All laws are presumed to be constitu- tional, and, whether in fact constitutional or not, it is the duty of the Executive so to regard them while they have the form of law.' When a statute is repealed for its unconstitutionality, or for any other reason, it ceases to be law in form and in fact. When » 6tatute is annulled in whole or in part by the opinion of a competent judicial tribunal, from that moment it ceases to be law. But the respondent and the counsel for the respondent will seek in vain for any authority or color of authority in the Constitu- tion or the laws of the country by which the President is clothed with power to make any distinction upon his own j udgment, or upon the judgment of any friends or advisers, whether private or official persons, between the several statutes of the country, each and every one of which he is, by the Constitution and by his oath of office, required faithfully to execute. Hence it follows that the crime of the President is not, either in fact or as set forth in the articles of impeachment, that he has violated a constitu- tional law, but his crime is that he has violated a law, and in his defense no inquiry can be made whether the law is constitutional; for inasmuch as he had no constitutional power to inquire for himself whether the law was con- stitutional or not, so it is no excuse for him that he did unlawfully so inquire and came to the conclusion that the law was unconstitutional. It follows, from the authorities already quoted and the positions founded thereon, that there can be no inquiry here and now by this tribunal whether the act in question — the act entitled ''An act regulating the tenure of cer- tain civil offices" — is in fact constitutional or not. It was and is the law of the land. It was enacted by a strict adherence to constitutional forms. It was and is binding upon all the officers and departments of the Government. The Senate, for the purpose of deciding whether the respondent is innocent or guilty, can enter into no inquiry as to the constitutionality of the act, which it was the President's duty to exe- cute, and which, upon his own answer, and by repeated official confessions and admissions, he intentionally, willfully, deliberately set aside and violated. If the President, in the discharge of his duty " to take care that the laws be faithfully exe- cuted," may inquire whether the laws are con- stitutional, and execute those only which he believes to be so, then, for the purposes of gov- ernment, his will or opinion is substituted for the action of the law-making power, and the Government is no longer a Government of laws, but the Government of one man. This is also true, if, when arraigned, he may justify by show- ing that he has acted upon advice that the law was unconstitutional. ' Further, if the Senate sitting for the trial of the President may inquire and decide whether the law is in fact constitu- tional, and convict the President if he has vio- lated an act believed to be constitutional, and acquit him if the Senate think the law uncon- stitutional, then the President is in fact tried for his judgment, to be acquitted if in the opin- ion of the Senate it was a correct judgment, and convicted if in the opinion of the Senate his judgment was erroneous. This doctrine offends every principle of justice. His offense is that he intentionally violated a law. Knowing its terms aud requirements, he disregarded them. With deference I maintain still further that it is not the right of any Senator in this trial to be governed by any opinion he may enter- tain of the constitutionality or expediency of the law in question. For the purposes of this trial the statute which the President, upon his own confession, has repeatedly violated is the law of the land. His crime is that he violated the law. Ithas not been repealed by Congress ; it has not been annulled by the Supreme Court; it standsupon the statute- book as the law ; and for the purposes of this trial it is to be treated by every Senator as a constitutional law. Other- wise it follows that the President of the United States, supported by a minority exceeding by one a third of this Senate, may set aside, dis- regard, and violate all the laws of the land. It is nothing to this respondent, it is nothing to this Senate, sitting here as a tribunal to try and judge this respondent, that the Senators par- ticipated in the passage of the act, or that the respondent, in the exercise of a constitutional power, returned the bill to the Senate with his objections thereto. The act itself is as bind- ing, is as constitutional, is as sacred in the eye of the Constitution as the acts that were passed at the first session of the First Congress. If the President may refuse to execute a law be- cause in his opinion it is unconstitutional, or for the reason that, in the judgment of his friends and advisers, it is unconstitutional, then he and his successors in office may refuse to execute any statute the constitutionality of which has not been affirmatively settled by the Supreme Court of the United States. If a minority, exceeding one third of this Senate by one, may relieve the President from all re- sponsibility for this violation of his oath of office, because they concur with him in the opinion that this legislation is either unconsti- tutional or of doubtful constitutionality, then there is no security for the execution of the laws. The constitutional injunction upon the Presi- dent is to take care that the laws be faithfully executed ; and upon him no power whatsoever is conferred by the Constitution to inquire whether the law that he is charged to execute is or is not constitutional. The constitutional injunction upon you, in your present capacity, is to hold the respondent faithfully to the exe- cution of the constitutional trusts and duties imposed upon him. If he has willfully disre- garded the obligation resting npon him, to take care that the laws be faithfully executed, then the constitutional duty imposed upon you is to convict him of the crime of having willfully disregarded the laws of the land and violated his oath of office. I indulge, Senators, in great plainness of speech, and pursue a line of remark which, were the subject less important or the duty resting upon us less solemn, I should studiously avoid. But 1 speak with every feeling and sen- timent of respect for this body and this place of which my nature is capable. In my boy- hood, from the gallery of the old Chamber of the Senate, I looked, not with admiration merely, but with something of awe upon the THE CONGRESSIONAL GLOBE. 271 men of that generation who were then in the seats which you now fill. Time and experi- ence may have modified and chastened those impressions, but, they are not, tbey cannot be obliterated. They will remain with me while life remains. But, with my convictions of my own duty, with my convictions of your duty, with my convictions of the danger, the immi- nent peril, to our country if you should not render a judgment of guilty against this re- spondent, I have no alternative but to speak with all the plainness and directness which the most earnest convictions of the truth of what I utter can inspire. MOTIVE. Nor can the President prove or plead the motive by which he professes' Ho have been governed in his violation of the laws of the country. Where a positive specific duty is imposed upon a public officer his .motives can- not be good if he willfully neglects or refuses to discharge his duty in the manner in which it is imposed upon him. In other words, it is not possible for a public officer, and particu- larly for the President of the United States, who is under a special constitutional injunc- tion to discharge his duty faithfully, to have any motive except a bad motive if he willfully violates his duty. A judge, to be sure, in the exercise of a discretionary power, as in im- posing a sentence upon a criminal, where the penalty is not specific, may err in the exercise of that discretion and plead properly his good motives in the discharge of his duty; that is, he may say that he intended, under the law, to impose a proper penalty; and inasmuch as that was his intention, though all other men may think that the penalty was either insuffi- cient or excessive, he is fully justified by his motives. So the President, having vested in him dis- cretionary power in regard to granting par- dons, might, if arraigned for the improper ex- ercise of that power in a particular case, plead and prove his good motives, although his action might be universally condemned as improper or unwise in that particular case. But the cir- cumstances of this respondent are wholly dif- ferent. The law which, as he admits, he has intentionally and deliberately violated, was mandatory upon him, and left in his hands no discretion as to whether he would, in a. given case, execute it or not. A public officer can neither plead nor prove good motives to refute or control his own ad- mission that he has intentionally violated a public law. Take the case of the President; his oath is : "I do solemnly swear that Iwill faithfully execute the office of President of the United States, and will to the best of my ability preserve, protect, and de- fend the Constitution of the United States." One of the provisions of that Constitution is that the President shall "take care that the laws be faithfully executed." In this injunc- tion there are no qualifying words. It is made his duty to take care that the laws, the laws, be faithfully executed. A law is well defined to be "a rule laid, set, or established by the law- making power of the country." It is of such rules that the Constitution speaks in this in- junction to the President ; and in obedience to that injunction, and with reference to his duty under his oath to take care that the laws be faithfully executed, he can enter into no in- quiry as to whether those laws are expedient or constitutional, or otherwise. And inasmuch as it is not possible for him, under the Consti- tution, to enter lawfully into any such inquiry, it is alike impossible for him to plead or to prove that, having entered into such inquiry, which was in itself unlawful, he was governed by a good motive in the result which he reached aud in his action thereupon. Having no right to inquire whether the laws were expedient or constitutional, or otherwise, if he did so inquire, and if upon such inquiry he came to the con- clusion that, for any reason, he would not exe- cute the law according to the terms of the law, then he willfully violated his oath of office and the Constitution of the United States. The necessary, the inevitable presumption in law is, that he acted under the influence of bad motives in so doing, and no evidence can be introduced controlling or coloring in any degree this necessary presumption of the law. Having, therefore, no right to entertain any motive contrary to his constitutional obligation to execute the laws, he cannot plead his mo- tive. Inasmuch as he can neither plead nor prove his motive, the presumption of the law must remain that in violating his oath of office and the Constitution of the United States he was influenced by a bad motive. The magis- trate who willfully breaks the laws, in violation of his oath to execute them, insults and out- rages the common sense and the common na- ture of his countrymen when he asserts that their laws are so bad that they deserve to be broken. This is the language of a defiant usurper, or of a man who has surrendered him- self to the counsel and control of the enemies of his country. If a President, believing the law to be un- constitutional, may refuse to execute it, then your laws for the reconstruction of the southern States, your laws for the collection of the in- ternal revenue, your laws for the collection of custom-house duties, are dependent for their execution upon the individual opinion of the President as to whether they are constitutional or not. ; and if these laws are so dependent, all other laws are equally dependent upon the opin- ion of the Executive. Hence it follows that, whatever the legislation of Congress may be, the laws of the country are to be executed only so far as the President believes them to be consti- tutional. This respondent avers that his sole object in violating the tenure-of-office act was to obtain the opinion of the Supreme Court upon the question of the constitutionality of that law. In other words, he deliberately vio- lated the law, which was in him a crime, for the purpose of ascertaining judicially whether the law could be violated with impunity or not. At, that very time he had resting upon him the obligations of a citizen to obey the laws, and the higher and more solemn obligation, imposed by the Constitution upon the first magistrate of the country, to execute the laws. If a private citizen violates a law, he does so at his peril. If the President or Vice President, or any other civil officer, violates a law, his peril is that he may be impeached by the House of Represent- atives and convicted by the Senate. This is precisely the responsibility which the respond- ent, has incurred ; and it would be no relief to him for his willful violation of the law, in the circumstances in which he is now placed, if the court itself had pronounced the same to be unconstitutional. But it is not easy to comprehend the auda- city, the criminal character of a proceeding by which the President of the United States attempts systematically to undermine the Gov- ernment itself by drawing purposely into con- troversy, in the courts and elsewhere, the validity of the laws enacted by the constituted authorities of the country, who, as much as himself, are individually under an obligation to obey the Constitution in all their public acts. With the same reason and for the same object he might violate the reconstruction laws, tax laws, tariff acts, or the neutrality laws of the country ; and thus, in a single day of his official life, raise questions which could not be disposed of for years in the courts of the coun- try. The evidence discloses the fact that he has taken no step for the purpose of testing the constitutionality of the law. He suspended numerous officers under, or, if not under, at least, as he himself admits, in conformity with the tenure-of-office law, showing that it was not his sole object to test its constitutionality. He has had opportunity to make application through the Attorney General for a writ of quo warranto, which might have tested the validity of the law in the courts. This writ is the writ of the Government, and it can never be granted upon the application of a private person. The President has never taken one step to test the law in the courts. Since his attempted re- moval of Mr. Stanton on the 21st of February last he might have instituted proceedings by a writ of quo warranto, and by this time have obtained, probably, a judicial opinion covering all the points of the case. But he shrinks from the test he says he sought. Thus is the pretext of the President fully exposed. The evidence shows that he never designed to test the law in the courts. His object was to seize the offices of the Government for purposes of corruption, and by their influence to enable him to recon- struct the Union in the interest of the rebel- lious ^States. In short, he resorted to this usurpation as an efficient and necessary means of usurping all power and of restoring the Government to rebel hands. No criminal was ever arraigned who offered a more unsatisfactory excuse for his crimes. The President, had no right to do what he says he designed to do, and the evidence shows that he never has attempted to do what he now assigns as his purpose when he trampled the laws of his country under his feet. These considerations have prepared the way in some degree, I trust, for an examination of the provisions of the Constitution relating to the appointment of embassadors and otherpub- lic ministers and consuls, judges of the Supreme Court, and other officers of the United States, for whose appointment provision is made in the second section of the second article of the Con- stitution. It is there deelared that the Presi- dent "shall nominate," and, by and with the consent of the Senate, shall " appoint embas- sadors and other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appoint- ments are not herein otherwise provided for and which shall be established by law." The phrase, "are not herein otherwise provided for," is understood to refer to Senators, who, under the Constitution, in case of a vacancy, may be appointed by the Governors of the sev- eral States, and to those appointments which might be confided by law to the courts or to the heads of Departments. It is essential to notice the fact that neither in this provision of the Constitution nor in any other is power given to the President to remove any officer. The only power of removal specified in the Constitution is that of the Senate, by its verdict of guilty, to remove the President, Vice President, or other civil officer who may beimpeachedby the House of Representatives and presented to the Senate for trial. Upon the premises already laid down it is clear that the power of removal from office is not vested in the President alone, but only in the President by and with the advice and con- sent of the Senate. Applying the provision of the Constitution already cited to the con- dition of affairs existing at the time the Gov- ernment was organized, we find that the course pursued by the First Congress and by the first President was the inevitable result of the operation of this provision of the organic law. In the first instance, several executive Depart- ments were established by acts of Congress, and in those Departments offices of various grades were created. The conduct of foreign affairs required the appointment of embas- sadors, ministers, and consuls, and conse- quently those necessary offices were established by law. The President, in conformity with this provision of the Constitution, made nom- inations to the Senate of persons to fill the various offices so established. These nomina- tions were considered and acted upon by the Senate, and when confirmed by the Senate the persons so nominated were appointed aud authorized by commissions under the hand of the President to enter upon the discharge of their respective duties. In the nature of the case it was not possible for the President, dur- ing a session of the Senate, to assign to duty in any of the offices so created any person who had not been by him nominated to the Senate and by that body confirmed, and there is no evidence that any such attempt was made. The persons thus nominated and confirmed were in their offices under the Constitution, 272 SUPPLEMENT TO and by virtue of the concurrent action of the President and the Senate. There is not to be found in the Constitution any provision con- templating the removal of such persons from office. But inasmuch as it is essential to the proper administration of affairs that there should be a power of removal, and inasmuch as the power of nomination and confirmation vested in the President and in the Senate is a continuing power, not exhausted either by a single exercise or by a repeated exercise in reference to a particular office, it follows legiti- mately and properly that the President might at anytime nominate to the Senate a person to fill a particular office, and the Senate, in the exercise of its constitutional power, could con- firm that nomination, that the person so nom- inated and confirmed would have a right to take and enjoy the office to which he had been so appointed, and thus to dispossess the previous incumbent. It is apparent that no removal can be made unless the President takes the initiative, and hence the expression "removal by the President. ' ' As, by a common and universally recognized principle of construction, the most recent statute is obligatory and controlling wherever it contravenes a previous statute, so a recent commission, issued under an appointment made by and with the advice and consent of the Senate, supersedes a previous appointment although made in the same manner. It is thus apparent that there is, under and by virtue of the clause of the Constitution quoted, no power of removal vested either in the President or in the Senate, or in both of them together as an independent power; but it is rather a con- sequence of the power of appointment. And as the power of appointment is not vested in the President, but only the right to make a nomination, which becomes an appointment only when the nomination has been confirmed by the Senate, the power of removing a public officer cannot be deemed an executive power solely within the meaning of this provision of the Constitution. This view of the subject is in harmony with the opinion expressed in the seventy-sixth number of the Federalist. After stating with great force the objections which exist to the ''exercise of the power of appointing to office by an assembly of men," the writer proceeds to say: "The truth of the principles here advanced seems to have been felt by the most intelligentof those who havo found fault with the provision made in this re- spect by the convention. They contend that the President ought solely to have been authorized to make the appointments under the Federal Govern- ment. But it is easy to show that every advantage to be expected from such an arrangement would in substance be derived from the power of nomination, which is proposed to be conferred upon him, while several disadvantages which might attend the abso- lute power of appointment in the hands of that officer would be avoided. In the act of nominating his judgment alone would be exercised, and as it would be his solo duty to point out the man who with the approbation of the Senate should fill an office, his responsibility would be as complete as if he were to make tholinal appointment. There can, in this view, beno difference between nominatingandappointing. The same motives which would influence a proper discharge of his duty in ono case would exist in the other ; and as no man could be appointed but upon his previous nomination, every man who might be appointed would bo in fact his choice. "But his nomination may be overruled. This it certainly may, yet it can only be to make place for another nomination by himself. /The person ulti- mately appuinted must be the object of his prefer- ence, though, perhaps. not in the highest degree. It is also not very probable that his nomination would often beoverruled. TheSenatecouldnot be temptod by the preference they might feel to another to reject the one proposed, because they could not assure themselves that the person they might wish would be brought forward by a second, or by any subse- quent nomination. They could not even bo certain that a future nomination would present a candidate in any degree more acceptable to them. And as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the j udgment of the Chief Magis- trate, it is not likely that their sanction would often bo refused, whero there wero not special and strong reasons for the refusal. "To what purpose, then, require the cooperation of the Senate V I answer that the necessity of their concurrence would have a powerfuL though in gen- eral, a silent operation. It would bo an excellent check upon the spirit of favoritism in the President, and would tond greatly to preventing tho appoint- ment of unfit characters, from State prejudice, from family connection, from personal attachment, or from a view to popularity. And, in addition to this, it Would be an efficacious sourco of stability in the Administration. • " It will readily be comprehended that a man who had himself the sole disposition of office would be governed much more by his private inclinations and interests than when he was bound to submit the pro- priety of his choice to the dictation and determina- tion of a different and independent body, and that body an entire branch of the Legislature. _ The possibility of rejection would be a strong motive to care in proposing. The danger of his own reputa- tion, and, in the case of an elective magistrate, to his political existence, from betraying a spirit, of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to one and to the other. Hewould bo both ashamed and afraid to bring forward for the most distinguished or lucra- tive stations candidates who had no other merit than thatof coining from the same State to which he par- ticularly belonged, or of being in some way or other personally allied to him, and possessing the neces- sary insignificance and pliancy to render them the obsequious instruments of his pleasure." When the President has made a nomination for a particular office, and that nomination has been confirmed by the Senate, the constitu- tional power of the President during the ses- sion of the Senate is exhausted with reference to that officer. All that he can do under the Constitution is in the same manner to nominate a successor, who may be either confirmed or rejected by the Senate. Considering the powers of the President exclusively with reference to the removal and appointment of civil officers during the session of the Senate it is clear that he can only act in concurrence with the Senate? An office being filled, he can only nominate a successor, who, when confirmed by the Senate, is, by operation of the Constitution, appointed to the office, and it is the duty of the President to issue his commission accordingly. This commission operates as a supersedeas, and the previous occupant is thereby removed. No legislation has attempted to enlarge or diminish the constitutional powers of the Pres- ident, and no legislation can enlarge or diminish his constitutional powers in this respect, as 1 shall hereafter show. It is here and now, in the presence of this provision of the Constitu- tion concerning the true meaning of which there neither is nor has ever been any serious doubt in the mind of an)' lawyer or statesman, that we strip the defense of the President of all the questions and technicalities which the intellects of men, sharpened but not enlarged by the practice of the law, have wrung from the legislation of the country covering three fourths of a century. On the 21st day of February last Mr. Stan- ton was de facto and dejure Secretary for the Department of War. The President's letter to Mr. Stanton of that date is evidence of this fact : Executive Mansion, Washington, D. C, February 21, 1868. Sir: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication. You will transfer to Brevet Major General Lorenzo Thomas, Adjutant General of the Army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, pa- pers, and other publio property now in your custody and charge. Respectfully, yours, ANDREW JOHNSON. Hon. Edwin M. Stanton, Washington, D. C. This letter is an admission, not only that Mr. Stanton was Secretary of War on the 21st of February, 1868, but also that the suspension of that officer of the 12th of August, A. D. 1867, whether made under the tenure-of-office act or not, was abrogated by the action of the Senate of the 13th of January, 1868, and that then Mr. Stanton thereby was restored law- fully to the office of Secretary for the Depart- ment of War. On the 21st day of February the Senate was in session. There was then but one constitu- tional way for the removal of Mr. Stanton ; a nomination by the President to the Senate of a successor, and his confirmation by that body. The President attempted to remove Mr. Stan- ton in a way not known to the Constitution^ and in violation thereof, by issuing the said order for his removal. In the first of the arti- cles it is set forth that this order was issued "in violation of the Constitution and of the laws of the United States," and the President is consequently guilty under this article if we have proved a violation either of the Constitu- tion or tho laws. If we show that he has vio- lated the Constitution of the United States, we show also that he has violated his oath of office, which pledged him to support the Con- stitution. Thus is the guilt of the President, under the Constitution and upon admitted facts, established beyond a reasonable doubt. This view is sufficient to justify and require at your hands a verdict of guilty under the first article, and this without any reference to the legislation of the country, and without refer- ence to the constitutionality of the tenure-of- office act or to the question whether the Sec- retary of War is included within its provisions or not. But I intend in the course of my ar- gument to deal with all these questions of law, and to apply the law as it shall appear to tbe facts proved or admitted. To be sure, in my judgment, the case presented by the House of Representatives in the name of all the people of the United States might safely be rested here; but the cause of justice, the cause of the country, requires us to expose and demon- strate the guilt of the President in all the par- ticulars set forth in the articles of impeach- ment. We have no alternative but to proceed. In this connection I refer to a view presented by the counsel for the President in his open- ing argument. He insists or suggests that inasmuch as the letter to Stanton of the 21st of February did not, in fact, accomplish a removal of the Secretary, that therefore no offense was committed. The technicalities of the law have fallen into disrepute among the people, and sometimes even in the courts. The technicalities proper of the law are the rules developed by human experience, and justly denominated, as is the law itself, the perfection of human reason. These rules, wise though subtle, aid in the administration of justice in all tribunals where the laws are judicially administered. But it often happens that attorneys seek to confuse the minds of men aud thwart the administration of justice by the suggestion of nice distinctions which have no foundation in reason and find no sup- port in general principles of right. The President cannot assume to exercise a power as a power belonging to the office he holds, there being no warrant in law for such exercise, and then plead that he is not guilty because the act undertaken was not fully ac- complished. The President is as guilty in con- templation of law as he would have beeu if Mr. Stanton had submitted to his demand and retired from the office of Secretary for the De- partment of War. Nothing more possible re- mained for the President except a resort to force, and what he did and what he contemplated doing to obtain possession of the office by force will be considered hereafter. If these views are correct, the President is wholly without power, under and by virtue of the Constitution, to suspend a public officer. And most assuredly nothing is found in the Constitution to sustain the arrogant claim which he now makes, that he may during a session of the Senate suspend a public officer indefinitely and make an appointment to the vacancy thus created without asking the advice and consent of the Senate either upon the sus- pension or the appointment. I pass now to the consideration of the third clause of the second section of the second arti- cle of the Constitution : " The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.'* The phrase, "may happen," construed ac- cording to the proper and well-understood meaning of the words when the Constitution was framed, referred to those vacancies which might occur independently of the will of the Governm ent — vacancies arising from death. THE CONGRESSIONAL GLOBE. 273 from resignation, from circumstances not pro- duced by the act of the appointing power. The words "happen" and "happened" are offrequent use in the Bible, " that wellof pure English undefiled," and always in the sense of accident, fortuity, chance, without previous expectation, as to befall, to light, to fall, or to come unexpectedly. This clause of the Con- stitution contains a grant of power to the Pres- ident, and under and by virtue of it he may take and exercise the power granted, but nothing by construction or by implication. Ho then, by virtue of his office, may, during the recess of the Senate, grant commissions which shall expire at the end of the next session, and thus fill up any vacancies that may happen ; that is, that may come by chance, by accident, without any agency on his part. If, then, it be necessary and proper, as un- doubtedly it is necessary and proper, that pro- vision should be made for the suspension or temporary removal of officers who, in the recess of the Senate, have proved to be incapable or dishonest, or who in the judgment of the Pres- ident are. disqualified for the further discharge of the duties of their offices, it is clearly a legislative right and duty, under the clause of the Constitution which authorizes Congress "to make alllawswhich shall be necessary and proper to carry into execution the foregoing powers, and all other powers vested in the Government of the United States, or in any department or officer thereof, ' ' to provide for the contingency. It is no answer to this view of the case to say that until the 2d of March, 1867, Congress neglected to legislate upon this subject, and that during the long period of such neglect, by the advice of Attorneys Gen- eral, the practice was introduced and con- tinued, by which the President, during the re- cess of the Senate, removed from office per- sons who had been nominated by the President and confirmed by the Senate. This practice having originated in the neglect of Congress to legislate upon a subject clearly within its juris- diction, and only tolerated by Congress, has, at most, the force of a practice or usage which can at any time be annulled or controlled by statute. This view is also sustained by the reasoning of Hamilton, in the sixty-seventh number of the Federalist, in which he says : " The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First, the relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment in cases to which the general method was inadequate. The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate: but as it would have been improper to oblige this body to be continually in session for the appointment of officers, and as vacancies might hap- pen in their recess, which it might be necessary for the public service to fill without delay, the succeed- ing clause is evidently intended to authorize the President, singly, to make temporary appointments 'during the recess of the Senate, by granting com- missions which should expire at the end of their next session.'" The arguments which I have thus offered, and the authorities quoted, show that the Pres- ident had not the power during the session of the Senate to remove either the Secretary of War or any eivil officer from office by virtue of the Constitution. The power of removal during the recess of the Senate was recognized by the act of 1789, and tolerated by the coun- tryupon the opinions of Attorneys General till 1867. The President claims, however, and as an incident of the power of removal, the power to suspend from office indefinitely any officer of the Government ; but inasmuch as his claim to the power of removal is not supported by the Constitution, he cannot sustain any other claim as an incident of that power. Butif the power to remove were admitted, it would by no means follow that the President has the power to suspend indefinitely. The power to suspend indefinitely is a different power from that of removal, and it is in no proper sense necessarily an incident. It might be very well conceived that if the framers of the Constitu- tion had thought fit to confer upon the Presi- dent the power to remove a public officer ab- solutely, his removal to be followed by the nomination of a successor to the Senate, they might yet have denied to the President the power to suspend public officers indefinitely and to supply their places by his appointees without the advice and consent of the Senate. But, inasmuch as the power to suspend inde- finitely is not a power claimed as a specific grant under the Constitution, and as the claim by the President of the power of removal during a session of the Senate is not sustained by the text of the Constitution or by any good author- ity under it, it is not important to consider whether, if the power of removal were'admitted to exist, the power to suspend indefinitely could be considered as an incident. It is sufficient to say that neither power, in the sense claimed by the President, exists under the Constitution or by any provision of law. I respectfully submit, Senators, that there can be no reasonable doubt of the soundness of the view I have presented, both of the lan- guage and meaning of the Constitution in re- gard to appointments to office. But, if there were any doubt, it is competent and proper to consider the effects of the claim, if recog- nized, as set up by the President. And in a matter of doubt as to the construction of the Constitution it would be conclusive of its true interpretation that the claim asserted by the President is fraught with evils of the gravest character. He claims the right, as well when the Senate is in session as when it is not in session, to remove absolutely, or to suspend for an indefinite period of time, according to his own discretion, every officer of the Army, of the Navy, and of the civil service, and to supply their places with creatures and partisans of his own. To be sure, he has not asserted, in direct form, his right to remove and suspend indefinitely officers of the Army and Navy ; but when you consider that the Constitution makes no distinction in the tenure of office between military, naval, and civil officers ; that all are nominated originally by the President and re- ceive their appointments upon the confirmation of the Senate, and hold their offices under the Constitution by no other title than that which secures to a Cabinet officer or to a revenue col- lector the office to which he has been appointed, there can be no misunderstanding as to the nature, extent, and dangerous character of the claim which the President makes. The state- ment of this arrogant and dangerous assump- tion is a sufficient answer to any doubt which might exist in the mind of any patriot as to the true intent and meaning of the Constitu- tion. It cannot be conceived that the men who framed that instrument, who were devoted to liberty, who had themselves suffered by the exercise of illegal and irresponsible power, would have vested in the President of the United States an authority, to be exercised without the restraint or control of any other branch or department of the Government, which would enable him to corrupt the civil, military, and naval officers of the country by rendering them absolutely dependent for their positions and emoluments upon his will. At the present time there are forty-one thousand officers, whose aggregate emoluments exceed $21,000,000 per annum. To all these the President's claim applies. These facts express the practical magnitude of the subject. Moreover, this claim was never asserted by any President or by any public man from the beginning of the Government until the present time. It is in violation also of the act of July 13, 1866, which denies to the Executive the power to remove officers of the Army and the Navy, except upon sentence of a court-martial. The history of the career of Andrew Johnson shows that he has been driven to the assertion of this claim by circumstances and events con- nected with his criminal design to break down the power of Congress, to subvert tthe institu- tions of th« country, and thereby to restore the Union in the interest of those who partici- pated in the rebellion. Having entered upon this career of crime, he soon found it essential to the accomplishment of his purposes to secure the support of the immense retinue of public officers of every grade and description in the country. This he could not do without making them entirely dependent upon his will ; and in order that they might realize their dependence, and thus be made subservient to his purposes, he determined to. assert an authority over them unauthorized by the Constitution, and there- fore not attempted by any Chief Magistrate. His conversation with Mr. Wood in the autumn of 1866 fully discloses this purpose. Previous to the passage of the tenure-of- office act he had removed hundreds of faithful and patriotic public officers, to the great detri- ment of the public service, and followed by an immense loss of the public revenues. At the trme of the passage of the act he was so far involved in his mad schemes — schemes of am- bition and revenge — that it was, in his view, impossible for him to retrace Ii is steps. He consequently determined, by various artifices and plans, to undermine that law and secure to himself, in defiance of the will of Congress and of the country, entire control of the officers in the civil service and in the Army and the Navy. He thus became gradually involved in an unlaw- ful undertaking from which he could not re- treat. In the presence of the proceedings against him by the House of Representatives he had no alternative but to assert that under the Constitution power was vested in the Pres- ident exclusively, without the advice and con- sent of the Senate, to remove from office every person in the service of the country. This policy, as yet acted upon in part, and devel- oped chiefly in the civil service, has already pro- duced evils which threaten the overthrow of tjie Government. When he removed faithful public officers, and appointed others whose only claim to consideration was their unreasoning devotion to his interest and unhesitating obe- dience to his will, they compensated themselves for this devotion and this obedience by frauds upon the revenues and by crimes against the laws of the land. Hence it has happened that in the internal revenue service alone — chiefly through the corruption of men whom he has thus appointed — the losses have amounted to not less than twenty-five, and probably to more than fifty million dollars during the last two years. In the presence of these evils, which were then only partially realized, the Congress of the United States passed the tenure-of-office act as a barrier to their further progress. This act thus far has proved ineffectual as a complete remedy ; and now the President, by his answer to the articles of impeachment, asserts his right to violate it altogether, and by an interpretation of the Constitution which is alike hostile to its letter and to the peace and welfare of the country he assumes to himself absolute and unqualified power over all the offices and officers of the country. The removal of Mr. Stanton, contrary to the Con- stitution and the laws, is the particular crime of the President for which we now demand his conviction. The extent, the evil charac- ter, and the dangerous nature of the claims by which he seeks to justify his conduct are con- trolling considerations. By his conviction you purify the Government and restore it to its ori- ginal character. By his acquittal you surren- der the Government into the hands of an usurp- ing and unscrupulous man, who will use all the vast power he now claims for the corruption of every branch of the public service and the final overthrow of the public liberties. Nor is it any excuse for the President that he has, as stated in his answer, taken the ad- vice of his Cabinet officers in support of his claim. In the first place, he had no right under the Constitution to the advice of the head of a Department except upon subjects relating to the duties of his Department. If the President has chosen to seek the advice of his Cabinet upon other matters, and they have seen fit to give it upon subjects not relating 274 SUPPLEMENT TO to their respective Departments, it is advice which he had no constitutional authority to ask, advice which they were not bound to give, and that advice is to him, and for all the purposes of this investigation and trial, as the advice of private persons merely. But of what value can be the advice of men who, in the first instance, admit that they hold their offices by the will of the person who seeks their advice, and who understand most clearly that if the advice they give should be contrary to the wishes of their master they would be at once, and in conformity with their own theory of the rights of the President, deprived of the offices which they hold? Having first made these men entirely dependent upon his will, he then solicits their advice as to the application of the principle by which they admit that they hold their places to all the other officers of the Government. Could it have been expected that they, under such circumstances, would have given advice in any particular disagree- able to the will of him who sought it? It was the advice of serfs to their lord, of servants to their master, of slaves to their owner. The Cabinet respond to Mr. Johnson as old Polonius to Hamlet. Hamlet says: "Do you seo yonder cloud, that's almost in-shapc of a camel? "Polonius. By tho mass, and His liko a camel, indeed. "Hamlet. Methinks it is like a weasel. " I'oloniua. It is backed like a weasel. "Hamlet. Or, liko a whale? "Polonius. Very like a whalo." The gentlemen of the Cabinet understood the position that they occupied. The President, in his message to the Senate upon the suspen- sion of Mr. Stanton, in which he says that he took the advice of his Cabinet in reference to his action upon the bill regulating the tenure of certain civil offices, speaks thus: • "The bill had then not become a law. Tho limita- tion upon the power of removal was notyet imposed, and there was yet time to make any changes. If any one of these gentlemen had then said to me that ho would avail himself of tho provisions of that bill in ease it became a law, I should not have hesitated a moment as to his removal." Having indulged his Cabinet in such freedom of opinion when he consulted them in reference to the constitutionality of the bill, and having covered himself and them with public odium by its announcement, he now vaunts their opin- ions, extorted by power and given in subserv- iency, that the law itself maybe violated with impunity. This, says the President, is the exer- cise of my constitutional right to the opinion of ray Cabinet. I, says the President, am re- sponsible for my Cabinet. Yes, the President is responsible for the opinions and conduct of men who give such advice as is demanded, and give it hi fear and trembling lest they be at once deprived of their places. This is the President's idea of a Cabinet, but it is an idea not in harmony with the theory of the Con- stitution. The President is a man of strong will, of violent passions, of unlimited ambition, with capacity to employ and use timid men, adhe- sive men, subservient men, and corrupt men, as the instruments of his designs. It is the truth of history that he has injured every per- son with whom he has had confidential rela- tions, and many have escaped ruin only by withdrawing from his society altogether. He has one rule of life: he attempts to use every man of power, capacity, or influence within his reach. Succeeding in his attempts, they are in time, and usually in a short time, utterly ruined. If the considerate flee from him, if the brave and patriotic resist his schemes or expose his plans, he attacks them with all the enginery and patronage of his office and pur- sues them with all. the violence of his personal hatred. He attacks to destroy all who will not become his instruments, and all who be- come his instruments are destroyed in the use. He spares no one. Already this purpose of his life is illustrated in the treatment of a gen- tleman who was of counsel for the respondent, but who has never appeared in his behalf. The thanks of the country are due to those distinguished soldiers who, tempted by the President by offers of kingdoms which were not his to give, refused to fall down and wor- ship the tempter. And the thanks of the country are not less due to General Emory, who, when brought into the presence of the President by a request which he could not dis- obey, at once sought to protect himself against his machinations by presenting to him the law upon the subject of military orders. The experience and tho fate of Mr. John- son's eminent adherents are lessons of warn- ing to the country and to mankind ; and the more eminent and distinguished of his adhe- rents have furnished the most melancholy les- sons for,,this and for succeeding generations. It is not that men are ruined when they l abandon a party; but in periods of national | trial and peril the people will not tolerate those who, in any degree or under any circumstances, falter in their devotion to the rights and in- terests of the Republic. In the public judg- ment, which is seldom erroneous in regard to public duty, devotion to the country and ad- herence to Mr. Johnson are and have been wholly inconsistent. Carpenter's historical painting of Emancipa- tion is a fit representation of an event the most illustrious of any in the annals of America since the adoption of the Constitution.. Indeed, it is second to the ratification of the Constitu- tion only in the fact that that instrument, as a means of organizing and preserving the nation, rendered emancipation possible. The princi- pal figure of the scene is the immortal Lincoln, whose great virtues endear his name and mem- ory to all mankind, and whose untimely and violent death, then the saddest event in our national experience, but now not deemed so great a calamity to the people who loved him and mourned for him as no public man was ever before loved or lamented, as is the shame, humiliation, disgrace, and suffering caused by the misconduct and crimes of his successor. It was natural and necessary that the artist should arrange the personages of the group on the right hand and on the left of the principal figure. Whether the particular assignment was by chance, by the taste of the artist, or by the influence of a mysterious Providence which works through human agency, we '-.now not. But on the right of Lincoln are two statesmen and patriots who, in all the trials and vicissi- tudes of these eventful years, have remained steadfast to liberty, to justice, to the principles of constitutional government. Senators and Mr. Chief Justice, in this presence I venture not to pronounce their names. On the left of Lincoln are five figures repre- senting the other members of his Cabinet. One of these is no longer among the living ; he died before the evil days came, and we may indulge the hope that he would have escaped the fate of his associates. Of the other four three have been active in counseling and sup- porting the President in his attempts to subvert the Government. They are already ruined men. Upon the canvas they are elevated to the summit of virtuous ambition. Yielding to the seductions of power theyhave fallen. Their example and fate may warn us, but their ad- vice and counsel, whether given to this tribunal or to him who is on trial before this tribunal, cannot be accepted as the judgment of wise or of patriotic men. On motion of Mr. SPRAGUE, at two o'clock and fifteen minutes p. m., the Senate took a recess for fifteen minutes. At the expiration of the recess the Chief Justice resumed the chair and called the Sen- ate to order. Mr. SHERMAN. I move that the roll of the Senators be called, so that we may get their attendance. Mr. CONNESS. That is never done. _ Mr. SHERMAN. It can be done. A mo- tion to adjourn will have the same effect prac- tically. Mr. CONNESS. The Senator may move an adjournment and get a call in that way. Mr. SHERMAN. I move a call of the Senators. The CHIEF JUSTICE. The Senator from Ohio moves that the roll of the Senate be called. Mr. CONNESS. It never has been done. Mr. SUMNER. The rule provides for a call of the Senate. Mr. CONNESS. I should like to hear the rule. Mr. SUMNER. It is Rule 16. The CHIEF JUSTICE. The Secretary will read the sixteenth rule of the Senate. The Chief Clerk read as follows : "16. When tho yeas and naysshall be called for by one fifth of the Senators present, each Senator called upon shall, unless for special reasons he be excused by the Senate, declare openly and withoutdebatchis assentor dissent to the question. In takingtheycas and nays, and upon a call of the Senate, the names of the Senators shall be called alphabetically." The CHIEF JUSTICE. If there be no ob- jection the Secretary will call the roll to ascer- tain who are present. Mr. DRAKE. I object, sir. Mr. SHERMAN. 1 move that there be a call of the Senate. The motion was agreed to ; and the roll being called, forty-four Senators answered to their names. The CHIEF JUSTICE. There are forty- four Senators answering to their names. The honorable Manager will proceed. Mr. Manager BOUTWELL. Mr. President, Senators, leaving the discussion of the provis- ions of the Constitution, I am now prepared to ask your attention to the character and history of the act of 1789, on which stress has been laid by the President in his answer, and by the learned counsel who opened the case for the respond- ent. The discussion in the House of Repre- sentatives in 1789 related to the bill establish- ing a Department of Foreign Affairs. Thefirst section of that bill, as it originally passed the House of Representatives, after recapitulating the title of the officer who was to take charge of the Department, and setting forth his duties, contained these words in reference to the Sec- retary of the Department: "To be removable from office by the President of the United States." The House, in Committee of the Whole, discussed this provision during several days, and all the leading members of the body appear to have taken part in the debate. As is well known, there was a difference of opin- ion at the time as to the meaning of the Con- stitution. Some contended that the power of removing civil officers was vested in the Presi- dent absolutely, to be exercised by him. with- out consultation with the Senate, and this as well when the Senate was in session as during vacations. Others maintained that the initia- tive in the removal of a public officer must be taken by the President, but that there could be no actual removal except by the advice and consent of the Senate, and that this rule was applicable to the powers of the President as well during the vacation as during the session of the Senate. Others maintained that during the session of the Senate, while the initiative was in the President, the actual removal of a civil officer could be effected only upon the advice and consent of the Senate, but that dur- ing the vacations the President might remove such officers and fill their places temporarily, under commissions, to expire at the end of the next session of the Senate. Mr. Madison maintained the first of these propositions, and he may be said to be the only person of histor- ical reputation at the present day who expressed corresponding opinions, although undoubted- ly his views were sustained by a consider- able number of members. It is evident from an examination of the debate that Mr. Madi- son's views were gradually and finally success- fully undermined by the discussion on that occasion. As is well known, Roger Sherman was then one of the most eminent members of that body. He was a signer of the Declaration of Inde- pendence, a member of the Convention which framed the Constitution of the United Stated, THE CONGRESSIONAL (iLOBE. 275 and a member of the House of Representa- tives of the First Congress. He was undoubt- edly one of the most illustrious men of the con- stitutional period of American history ; and in each succeeding generation there have been eminent persons of his blood and name ; but at no period has his family been more distin- guished thau at the present time. Mr. Sher- man took a leading part in the discussion, and there is no doubt that the views which he enter- tained and expressed had a large influence in producing the result which was finally reached. The report of the debate is found in the first volume of the Annals of Congress ; and I quote from the remarks made by Mr. Sherman, preserved on pages 510 and 511 of that volume : "Mr. Sherman. I consider this a very important subject in every point of view, and therefore worthy of full discussion. In my mind it involves three Questions. First. Whether the President has, by the Constitution, the right to remove an officer appointor! by and with the advice and consent of tho Senate. No gentleman contends but that tho advice and con- sent of the Senate arenecessary to make the appoint- ment in all cases, unless in inferior offices where the contrary is established by law ; but then they allege that, although the consent of the Senate bo neces- sary to tho appointment, the President alone, by the nature of his office, has the power of removal. Now, it appears to me that this opinion is ill-founded, be- cause this provision was intended for some useful purpose, and by that construction would answer none at all. I think the concurrence of the Senate as necessary to appoint an officer as the nomination of the President; they are constituted as mutual checks, oach having a negative upon the other. "1 consider it as an established principle that the power which appoints can also remove, unless there are express exceptions made. Now, thopowcrwhich appoints tho judges uannot displace them, because .there is a constitutional restriction in their favor; otherwise the President, by and with the advice and consent of the Senate, being tho power which ap- pointed them, would be sufficient to remove them. This is tho construction in England, where the king has the powor of appoiutiugjudges; it-was declared to bo during pleasure, and they might bo removed when tho monarch thought proper. It is a general principle in law us well as reason that there shall he tho same authority to rcmovo as to establish. It is so in legislation, where tho several branches whose concurrence is necessary to pass a law must concur in repealing it. Just so I take it to be in cases of appointment, and tho President alono may remove when he alono appoints, as in the case of inferior offioes to be established by law." * * * * * "As the office is the mere creature of tho Legisla- ture wc may form it under such regulations as we please, with such powers and duration as we think (rood poliey requires. Wo may say he shall hold his office during good behavior, or that ho shall be an- nually elected. Wc may say he shall be displaced for neglect of duty, and point out how he shall be convicted of it without calling upon tho President or Senate. "The third question is, if the Legislature has the powor to authorize the President alone to remove this officer whether it is expedient to invest him with it? I do not believe it absolutely necessary that ho should have such power, because the power of sus- pending would answerall the purposes which gentle- men have in view by giving the power of removal. 1 do not think that the officer is only to be removed by impeachment, as is argued by the gentleman from South Carolina, (Mr. Smith.) because ho is the mere creature of the law, and we can direct him to bore- moved on conviction of mismanagement or inability without calling upon the Senate lor their concur- rence. But I believe, if wo make no such provision, he may constitutionally bo romoved by the Pres- ident, by and with the advice and consent of the Sen- ate ; and I believe it would be most expedient for us to say nothing in tho clauseon this subject." I may he pardoned if I turn aside for a mo- ment, and, addressing myself to the 1 learned gentleman of counsel for the respondent who is to follow me in argument, I request him to refute, to overthrow the constitutional argu- ment of his illustrious ancestor, Roger Sher- man. Doing this, he will have overcome the first, but only the first, of a series of obstacles in the path of the President. In harmony with the views of Mr. Sherman was the opinion expressed by Mr. Jackson, of Georgia, found on page 508 of the same volume. He says : " I shall agree to give him [that is, tho President] the same power in cases of removal that he has in appointing; but nothing more. Upon this principle I would agree to give him the power of suspension during tho recess of theSenate. This, in my opinion, would effectually provide against those inconven- iences which havo been apprehended and not ex- pose the Government to those abuses wo have to dread from tho wanton and uncontrollable authority of removing officers at pleasure." It may be well to observe that Mr. Madison, in maintaining the absolute power of the Pres- ident to remove civil officers, coupled with his opinions upon that point doctrines concerning the power of impeachment which would be wholly unacceptable to this respondent. And, indeed, it Is perfectly apparent that without the existence of the power to impeach and re- move the President of the United States from office in the manner maintained by Mr. Madi- son in that debate, that the concession of absolute power of removal would end in the destruction of the Government. Mr. Madison, in that debate, said : " Tho danger to liberty, the danger of maladminis- tration, has not yet been found to lie so much in the facility of introducing improper persons into office as in the difficulty of displacing those who are un- worthy of the public trust."— Annals of Congress, p. 515, vol. 1. Again, he says : "Perhaps tho great danger, as has been observed, of abuse in the executive power lies in the improper continuance of bad men in office. But the power wo contend for will not enable him to do this ; for if an unworthy man bo continued in office by an unworthy President the House of Representatives can at any time impeach him, and the Senate can remove him, whether the President chooses or not. The danger, then, consists merely in this: the President can dis- place from offico a man whoso merits require that he should be continued in it. Whatwill be the motives which the President can feel for such abuso of his power and the restraints that operate to prevent it ? In the first place ho will bo impeachable by this House before the Senate for such an act of malad- ministration ; fori contend that the wan ton removal of meritorious officers would subjecthim to impeach- ment and removal from his high trust."— Annala of Congress, p. 517, vol. 1. It is thus seen that Mr. Madison took great care to connect his opinions of the power of removal in the President with a distinct decla- ration that if this power was improperly exer- cised by the President he would himself be liable to impeachment and removal from office. If Mr. Madisou's opinions were to be accepted by the President as a whole, he would be as defenseless as he is at the present time if ar- raigned upon articles of impeachment based upon acts of maladministration in the removal of public officers. The result of the debate upon the bill for establishing the executive De- partment of foreign Affairs was that the phrase in question which made the head of the Depart- ment " removable from office by the President of the United States" was stricken out by a vote of 31 in the affirmative to 19 in the nega- tive, and another form of expression was intro- duced into the second section which is mani- festly in harmony with the views expressed by Mr. Sherman and those who entertained cor- responding opinions. The second section is in these words: " Sec. 2. A7id beit further enacted, That there shall bo in the said Department an inferior officer, to be appointed by tho said principal officer, and to bo em- ployed therein as ho shall deem proper, and to be called the chief clerk of the Department of Foreign Affairs, and who, whenever the said principal officer shall be removed from office by the President of the United States, or in other case of vacancy, shall, during such vacancy, have the charge and custody of all records, books, and papers appertaining to said Department."— United StatetStatutes-at- Large, vol. 1, p. 29. It will be seen that the phrase here employed, "whenever the said principal officer shall be removed from office by the President of the United States," is not a grant of power to the President; nor is it, as was asserted by the counsel for the respondent, a legislative inter- pretation of a constitutional power. But it is merely at most a quasi recognition of a power in the Constitution to be exercised by the Pres- ident, at some time, under some circumstances, and subject to certain limitations. But there is no statement or declaration of the time when such power could be exercised, the circum- stances under which it might be-exercised, or the limitations imposed upon its exercise. All these matters are left subject to the op- eration of the Constitution and to future legis- lation. This is in entire harmony with the declaration' made by Mr. White, of North Carolina, in the debate of 1789. He says: "Let us then leave the Constitution to a free oper- ation, and let tho President, with or without tho consent of tho Senate, carry it into execution. Then, if any one supposes himself injured by theirdeterm- ination, let him havo recourse to tho law, and its decision will establish the true construction of tho Constitution." Mr. Gerry, of Massachusetts, also said: "Hence all construction of the meaning of the Con- stitution is dangerous or unnatural, and therefore ought to be avoided. This is our doctrine, that no power of this kind ought to bo exercised by the Legis- lature. But wo say, if wo must give a construction to the Constitution, it is more natural to give the con- struction in favor of the power of removal vesting in the President, by and with the advice and consent cf the Senate ; beoauso it is in the nature of things that the power which appoints removes also." Again, Mr. Sherman said, speaking of tho words which were introduced into the first section and finally stricken out: " I wish, Mr. Chairman, that the words may beleft out of tho bill, without giving up the question either way as to the propriety of the measure." The debate upon the bill relating to the De- partment for Foreign Affairs occurred in the month of June, 1789; in the following month of August Congress was engaged in consider- ing the bill establishing the Treasury Depart- ment. This bill originated in the House, and contained the phrase now found in it, being the same as that contained in the bill establish- ing the State Department. The Senate was so far satisfied of the impol- icy of making any declaration whatever upon the subject of removal that the clause was struck out by an amendment. The House re- fused to concur, however, and the Senate, by the casting vote of the Vice President, receded from the amendment. All this shows that the doctrine of the right of removal by the President survived the de- bate only as a limited and doubtful right at most. The results reached by the Congress of 1789 are conclusive upon the following points: that that body was of opinion that the power of removal was not in the President absolutely, to be exercised at all times and under all cir- cumstances; and secondly, that during the ses- sions of the Senate the power of removal was vested in the President and Senate, to be exercised by their concurrent action ; while the debate and the votes indicate that the power of the President to remove from office during the vacation of the Senate was, at best, a doubtful power under the Constitution. It becomes us next to consider the practice of the Government, under the Constitution, and in the presence of the action of the First Congress, by virtue of which the President now claims an absolute, unqualified, irresponsible power over all public officers, and this without the advice and consent of the Senate or the concurrence of any other branch of the Gov- ernment. In the early years of the Govern- ment the removal of a public officer by the President was a rare occurrence, and it was usually resorted to during the session of the Senate, for misconduct in office only, and ac- complished by the appointment of a successor through the advice and consent of the Senate. Gradually a practice was introduced, largely through the example of Mr. Jefferson, of re- moving officers during the recess of the Sen- ate and filling their places under commissions to expire at the end of the next session. But it caunot be said that this practice became com- mon until the election of General Jackson, ii» 1828. During his administration the practice of removing officers during the recesses of the Senate was largely increased, and in the year 1832, on the 18th of September, General Jack- son removed Mr. Duane from the office of Sec- retary of the Treasury. This occurred, how- ever, during a recess of the Senate. This act on his part gave rise to a h'eated debate in Congress and an ardent controversy through- out the country, many of the most eminent men contending that there was no power in the President to remove a civil officer, even during the recess of the Senate. The triumph of General Jackson in that controversy gave a full interpretation to the words which had been employed in the statute of 1789. But, at the same time, the limitations of that power in the President were clearly settled, both upon the law and upon the Constitution, that whatever might be his power of removal during a recess of the Senate, he had no right SUPPLEMENT TO to make a removal during a session of the Sen- ate, except upon the advice and consent of that body to the appointment of a successor. This was the opinion of Mr. Johnson himself, as stated by him in a speech made in the Senate on the 10th of January, 1861: "Imeant that the true way to fight the battle was for us to remain here and occupy the plaoes assigned to us by the Constitution of the country. Why did I ™.ake that statement? It was because on the 4th day ot March next we shall have six majority in this body; and if, as some apprehended, the incoming Administration shall show any disposition to make encroachments upon the institution of slavery, en- croachments upon the rights of the States or any other violation.of the Constitution, wo, by remaining in the Union and standing at our places, will have the power to resist all these encroachments. How? We have the power oven to reject the appointment of the Cabinet officers of the incoming President. Then should we not be fighting the battle in the Union byresisting even the organization of the Ad- ministration in a constitutional mode, and thus, at the very ; start, disablean Administration which was likely to encroach on our rights and to violate the Constitution of the country? So far as appointing even > a < minister abroad is concerned, the incoming Administration will have no power without our con- sent if we remain here. It comes into office hand- cuffed, powerless to do harm. We, standing here, hold the balance of power in our hands ; we can resist it at the very threshold effectually, and do it inside of the Union and in our house. The incoming Ad- ministration has not even the power to appoint a postmaster whose salary exceeds $1,000 a year with- out consultation with, and the acquiescence of, the Senate of the United States. The President has not even the power to draw his salary, his $25,000 per annum, unless we appropriate it." — Congressional Globe, vol. — , page — . It may be well observed that, for the pur- poses of this trial, and upon the question whether the President is or is not guilty under the first three articles exhibited against him by the House of Representatives, it is of no con- sequence whether the President of the United States has power to remove a civil officer dur- ing a recess of the Senate. The fact charged and proved againstthe President, and on which, as one fact proved against him, we demand his conviction, is, that he attempted to remove Mr. Stanton from the office of Secretary of War during a session of the Senate. It can- not be claimed with any propriety that the act of 1789 can be construed as a grant of power to the President to an extent beyond the prac- tice of the Government for three quarters of a century under the Constitution and under the provisions of the law of 1789. None of the predecessors of Mr. Johnson, from General Washington to Mr. Lincoln, although the act of 1789 was in existence during all that period, had ever ventured to claim that either under that act or by virtue of the Constitution the President of the United States had power to remove a civil officer during a session of the Senate without its consent and advice. The utmost that can be said is, that for the last forty years it had been the practice of the Ex- ecutive to remove civil officers at pleasure dur- ing the recess of the Senate. While it maybe urged that this practice, in the absence of any direct legislation upon the subject, had become the common law of the country, protecting the Executive in a policy corresponding to that practice, it is also true, for stronger reasons, that Mr. Johnson was bound by his oath of office to adhere to the practice of his prede- cessors in other particulars, none of whom had ever ventured to remove a civil officer from his office during the session of the Senate and appoint a successor, either permanent or ad interim, and authorize that successor to enter upon the discharge of the duties of such office. The case of Timothy Pickering has been ex- plained and it constitutes no exception. As far as is known to me the lists of removals and appointments introduced by the respondent do not sustain the claim of the answer in regard to the power of removal. Hence it is that the actof 1789 is no security to this respondent, and" hence it is that we hold him guilty of a violation of the Constitution and of his oath of office under the first and third articles of impeachment exhibited against him by the House of Representatives, and this with- out availing ourselves of the provisions of the tenure-of-office act of March 2, 1867. I respectfully ask that the views now sub- mitted in reference to the act of 1789, may be considered in connection with the argument I have already offered upon the true meaning of the provisions of the Constitution relating to the appointment of civil officers. I pass now to the consideration of the act of the 13th of February, 1795, on which the President relies as a justification for his ap- pointment of Lorenzo Thomas as Secretary of War ad interim. By this act it is provided : "In case of vacancy in the office of Secretary of State, the Secretary of the Treasury, or of the Sec- retary of the Department of War, or of any other officer of either of the said Departments whose ap- pointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for thePresident of the United States, in case he shall think it necessary, to author- ize any person or persons, at his discretion, to per- form the duties of the said respective offices until a successor be appointed or such vacancy be filled: Provided, That no one vacancy shall be supplied in manner aforesaid, for a longer term than six months." — 1 Statutes-at-Zarge, p. 415. The ingenuity of the President and his coun- sel has led them to maintain that the phrase ; 'in case of vacancy," used in this statute, relates to any and every vacancy, however pro- duced. But the reading of the entire section, whether casually or carefully, shows that the purpose of the law was to provide a substitute temporarily in case of vacancy whereby the person in office could not perform the duties of his office, and necessarily applied only to those contingencies of official life which put it out of the power of the person in office to dis- charge the duties of the place ; such as sick- ness, absence, or inability of any sort. And yet the President and his counsel contend that a removal by the President is a case of vacancy contemplated by the law, notwithstanding the limitation of the President in his power of appointing an officer temporarily as to those cases which render it impossible for the duiy commissioned officer to perform the duties of his office. When it is considered, as I have shown, that the President had no power — and this without considering the tenure-of-office act of March 2, 1867 — to create a vacancy during a session of the Senate, the act of 1795, even upon his construction, furnishes no defense whatever. But we submit that if he had pos- sessed the power which he claims by virtue of the act of 1789, that the vacancy referred to in the act of 1795 is not such a vacancy as is caused by the removal of a public officer, but that that act is limited to those vacancies which arise unavoidably in the public service and without the ageucy of the President. But there is in the section of the act of 1795, on which the President relies, a proviso which nullifies absolutely the defense which he has set up. This proviso is that no one vacancy shall be supplied in manner aforesaid (that is, by a temporary appointment) for a longer term than six months. Mr. Johnson maintains that he suspended Mr. Stanton from the office of Secretary of War on the 12th of August last, not by virtue of the tenure-of-office act of March 2, 1867, but under a power incident to the general and unlimited powerof removal, which, as he claims, is vested in the President of the United States, and that, from the 12th of August last, Mr. Stanton has not been entitled to the office of Secretary for the Department of War. If he suspended Mr. Stanton as an incident of his general power of removal, then his suspension, upon the Presi- dent's theory, created a vacancy such as is claimed by the President under the statute of 1795. The suspension of Mr. Stanton put him in such a condition that he " could not perform the duties of the office. ' ' The President claims also to have appointed General Grant Secretary of War ad interim on the 12th of August last, by virtue of the statute of 1795. The proviso of that statute declares that no one vacancy shall be supplied in manner aforesaid (that is, by temporary .appointment) for a longer term than six mouths. If the act of 1795 were in force, and if the President's theory of his rights under the Constitution and under that act were a valid theory, the six months during which the vacancy might have been supplied tempo- rarily expired by limitation on the 12th day of February, 1868, and yet on the 21st day of February, 1868, the President appointed Lo- renzo Thomas Secretary of War ad interim to the same vacancy, and this in violation of the statute which he pleads in his own defense. It is too clear for argument that if Mr. Stanton was lawfully suspended, as the President now claims, but not suspended under the tenure-of- office act, then the so-called restoration of Mr. Stanton on the 18th January was wholly illegal. But if the statute of 1795 is applicable to a vacancy created by suspension or removal, then the President has violated it by the appoint- ment of General Thomas Secretary of War ad interim. And if the statute of 1795 is not ap- plicable to a vacancy occasioned by a removal, then the appointment of General Thomas Sec- retary of War ad interim is without authority or the color of authority of law. The fact is, however, that the statute of 1795 is repealed by the operation of the statute of the 20th of February, 1863. (Statutes-at-Large, vol. 12, p. 656.) If Senators will consider the provisjons of the statute of 1863 in connection with the power of removal under the Constitution during a ses- sion of the Senate, by and with the advice and consent of the Senate, and the then recognized power of removal by the President during a recess of the Senate to be filled by temporary appointments, as was the practice previous to March 2, 1867, they will find that provision was .made by the act of 1863 for every vacancy which could possibly arise in the public service. The act of February 20, 1863, provides— "That in case of the death, resignation, absence from the seat of Government, or sickness of the head of an executive Department of the Government, or of any officer of either of thesaid Departments whose appointmentis not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful forthe President of the United States, in case ho shall think it necessary, to authorize the head of any other executive Department or other officer in either of said Departments whose appoint- ment is vested in the President, at bis discretion, to perform the duties of the said respective offices until a successor be appointed, oruntil such absence Dr in- ability shall cease : Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months." Provision was thus made by the act of 1863 for filling all vacancies which could occur under any circumstances. It is a necessary rule of construction that all previous statutes making other and different provisions for the filling of vacancies are repealed by the operation of more recent statutes ; and for the plain reason that it is inconsistent with any theory of govern- ment that there should be two legal modes in existence at the same time for doing the same thing. If the view I have presented be a sound one it is apparent that the President's conduct fiuds no support either in the Constitution, in the act of 1789, or in the legislation of 1795, on which he chiefly relies as a justification for the appointment of Thomas as Secretary of War ad, interim. It follows, also, that if the tenure-of-office act had not been passed the President would have been guilty of a high misdemeanor, in that he issued an order for the removal of Mr. Stanton from office during tho session of the Senate, in violation of the Constitution and of his own oath of office; that he was guilty of a high misdemeanor in the appointment of Lorenzo Thomas as Sec- retary of War ad interim, and this whether the act of the 13th of February, 1795, is in force, or whether the same has been repealed by the statute of 1863. His guilt is thus fully proved, and established as charged in the fiist, second, and third articles of impeachment exhibited against him by the House of Repre- sentatives, and this without considering the requirements or constitutionality of the act regulating the tenure of certain civil offices. 1 pass now to the consideration of the tenure- of-office act. I preface what I have to say by calling to your attention that portion of my argument already addressed to you, in which I have set forth and maintained, as I was able, the opinion that the President had no right to THE CONGKESSIONAL GLOBE. 277 make any inquiry whether an act of Congress is or is not constitutional ; that, having no right to make such inquiry, he could not plead that he had so inquired and reached the conclu- sion that the act inquired about was invalid. You will also bear in mind the views presented, that this tribunal can take no notice of any argument or suggestion that a law deemed unconstitutional may be willfully violated by the President. The gist of his crime is that fee intentionally disregarded a law, and, in the nature of the case, it can be no excuse or de- fense that such law, in his opinion, or in the opinion of others, was not in conformity with the Constitution. In this connection I desire to call your at- tention to suggestions made by the President, and by the President's counsel — by the Presi- dent in his message of December, 1867, and by the President's counsel in his opening argu- ment — that if Congress were by legislation to abolish a department of the Government, ot- to declare that the President should not be Commander-in-Chief of the Army or the Navy, that it would be the duty of the President to disregard such legislation. These are extreme cases and not within the range of possibility. Members of Congress are individually bound by an oath to support the Constitution of the United States, and it is not to be presumed, even for the purpose of argument, that they would wantonly disregard the obligations of their oath, and enact in the form of law rules or proceedings in plain violation of the Con- stitution. Such is not the course of legisla- tion, and such is not the character of the act we are now to consider. The bill regulating the tenure of certain civil offices was passed by a constitutional majority in each of the two Houses, and- it is to be presumed that each Senator and Representative who gave it his support did so in the belief that its provisions were in harmony with the provisions of the Constitution. We are now dealing with prac- tical affairs, and conducting the Government within the Constitution ; and in reference to measures passed by Congress under such cir- cumstances, it is wholly indefensible for the President to suggest the course that, in his opinion, he would be justified in pursuing if Congress were openly and wantonly to disre- gard the Constitution and inaugurate revolu- tion in the Government. It is asserted by the counsel forthe President that he took advice as to the constitutionality of the tenure-of-office act, and being of opin- ion that it was unconstitutional, or so much of it at least as attempted to deprive him of the power of removing the members of the Cabinet, he felt it to be his duty to disregard its provisions ; and the question is now put with feeling and - emphasis whether the Pres- ident is to be impeached, convicted, and removed from office for a mere difference of opinion. True, the President is not to be removed for a mere difference of opinion. If he had contented himself with the opinion that the law was unconstitutional, or even with the expression of such an opinion privately or offi- cially to Congress, no exception could have been taken to his conduct. But he has at- tempted to act in accordance with that opinion, and in that action he has disregarded the re- quirements of the statute. It is for this action that he is to be arraigned, and is to be con- victed. But it is not necessary for us to rest upon the doctrine that it was the duty of the President to accept the law as constitutional and govern himself accordingly in all his official doings. We are prepared to show that the law is in truth in harmony with the Constitution, and that its provisions apply to Mr. Stanton as Secretary for the Department of War. The tenure-of-office act makes no change in the powers of the President and the Senate, during the session of the Senate, to remove a civil officer upon a nomination by the Presi- dent, and confirmation by the Senate, of a successor. This was an admitted constitutional power from the very organization of the Gov- ernment, while the right now claimed by the President to remove a civil officer during a session of the Senate, without the advice and consent of the Senate, was never asserted by any of his predecessors-, and certainly never recognized by any law or by any practice. This rule applied to heads of Departments as well as to other civil officers. Indeed, it may be said, once for all, that the tenure by which members of the Cabinet have held their places corresponds in every particular to the tenure by which other civil officers have held theirs. It is undoubtedly true that, in practice, mem- bers of the Cabinet have been accustomed to tender their resignations upon a suggestion from the tPresident that such a course would be acceptable to him. But this practice has never changed their legal relations to the Pres- ident or to the country. There was never a moment of time, since the adoption of the Con- stitution, when the law or the opinion of the Senate recognized the right of the President to remove a Cabinet officer during a session of the Senate, without the consent of the Sen- ate given through the confirmation of a suc- cessor. Hence, in this particular, the tenure- of-office act merely enacted and gave form to a practice existing from the foundation of the Government — a practice in entire harmony with the provisions of the Constitution upon that subject. The chief change produced by the tenure-of-office act had reference to re- movals during the recess of the Senate. Pre- vious to the 2d of March, 1867, as has been already shown, it was the practice of the Pres- ident during the recesses of the Senate to re- move civil officers and to grant commissions to other persons under the third clause of the^ second section of the second article of the Constitution. This power, as has been seen, was a doubtful one in the beginning. The practice grew up under the act of 1789, but the right of Congress by legislation to regulate the exercise of that power was not questioned in the great debate of that year, nor can it reasonably be drawn into controversy now. The act of March 2, 1867, declares that the President shall not exercise the power of re- moval, absolutely, during the recess of the Senate, but that if any officer shall be shown, by evidence satisfactory to the President, to be guilty of misconduct in office, or of crime, or for any reason shall become incapable or legally disqualified to perform his duties, the President may suspend him from office and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate and the action of the Senate thereon. By this legislation the removal is qualified and is made subject to the final action of the Senate instead of being absolute, as was the fact under the practice theretofore prevailing. It is to be observed, however, that this feature of the act regulating the tenure of certain civil offices is not drawn into controversy by these proceedings, and therefore it is entirely unim- portant to the President whether that provision of the act is constitutional or not. I can, how- ever, entertain no doubt of its constitutionality. The record of the case shows that Mr. Stanton was suspended from office during the recess, but was removed from office, as far as an order of the President could effect his removal, dur- ing a session of the Senate. It is also wholly immaterial to the present inquiry whether the suspension of Mr. Stanton on the 12th of August, 1867, was made under the tenure-of- office act, or in disregard of it, as the President now asserts. It being thus clear that so much of the act as relates to appbintments and re- movals from office during the session of the Senate is in harmony with the practice of the Government from the first, aud in harmony with the provisions of the Constitution on which that practice was based, and it being admitted that the order of the President for the removal of Mr. Stanton was issued during a session of the Senate, it is unnecessary to inquire whether the other parts of the act are constitutional or not, and also unnecessary to inquire what the provisions of the act are in reference to the heads of the several Executive Departments. I presume authorities are not needed to show that a law may be unconstitutional and void in some of its parts, and the remaining portions continue in full force. The body of the first section of the act regu- lating the tenure of certain civil offices is in these words : " Every person holding any civil office to which ho has been appointed by and with the advico and con- sent of the Senate, and every person who shall here- after be appointed to any such office, and shall be- come duly qualified to act therein, is, and shall bo entitled, to hold suelromce until a successor shall have been in like manner appointed and duly quali- lied, except as herein otherwise provided." mitting for the moment to notice the excep- tion, there can be no doubt that this provision would have applied to the Secretary of War, and to every other civil officer under the Gov- ernment ; nor can there be any doubt that the removal of Mr. Stanton during a session of the Senate is a misdemeanor by the law, and pun- ishable as such under the sixth section of the act, unless the body of the section quoted is so controlled by the proviso as to take the Secre- tary of War out of its grasp. The proviso is in these words : "That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorn'ey General shall hold their offices respectively for and during the term of the President by whom they may have been appointed and one month thereafter, subject to removal by and with the advice and consent of the Senate." We maintain that Mr. Stanton, as Secre- tary of War, was, on the 2d day of March, 1867, within and included under the language of the proviso, and was to hold his office for and during the term of the President by whom he- had been appointed, and one month there- after, subject to removal, however, by and with the advice and consent of the Senate. We maintain that Mr. Stanton was then holding the office of Secretary of War for and in the term of President Lincoln, by whom he had been appointed ; that that term commenced on the 4th of March, 1865, and will end on the 4th of March, 1869. The Constitution defines the meaning of the word "term." When speaking of th% President, it says : "He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected as follows." Now, then, although the President first elected may die during his term, the office and the term of the office still remain. Having been established by the Constitution, it is not in any degree dependent upon the circumstance whether the person elected to the term shall survive to the end or not. It still is a presi- dential term. It still is in law the term of the President who was elected to the office. The Vice President was chosen at the same time and elected for the same term. But it is the term of a different office from that of Presi- dent — the term of the office of Vice President. Mr. Johnson was elected to the office of Vice President for the term of four years. Mr. Lin- coln was elected to the office of President for the term of four years. Mr. Lincoln died in the second month of his term, and Mr. John- son succeeded to the office. It was not a new office ; it was not a new term. He succeeded to Mr. Lincoln's office, and for the remainder of Mr. Lincoln's term of office. He is serving out Mr. Lincoln's term as President. The law says that the Secre- taries shall hold their offices respectively for and during the term of the President by whom they may have been appointed. Mr. Lincoln's term commenced on the 4th of March, 1865. Mr. Stanton was appointed by Mr. Lincoln ; he was in office in Mr. Lincoln's term, when the act regulating the tenure of certain civil offices was passed ; and by the proviso of that act he was entitled to hold that office until one month after the 4th of March, 1869, unless lie should be sooner removed therefrom, by and with the advice and consent of the Senate. The act of March 1, 1792, concerning the succession, in case the office of President and Vice President both become vacant, recognizes the presidential term of four years as the con- 278 SUPPLEMENT TO stitutional term. Any one can understand that in case of vacancy in the office of President and Vice President, and in case of anew elec- tion by the people, that it would be desirable to make the election for the remainder of the term. But the act of 179a recognizes the im- possibility of this course in the section which provides that the term of four years for which a President and Vice President shall bo elected (that is, in case of a new election, as stated,) shall in all cases commence on the 4th day of March next succeeding the day on which the votes of the electors shall have been given. It is thus seen that by an election to (ill a vacancy the Government would be so far changed in its practical working that the sub- sequent elections of President, except by an amendment to the Constitution, could never again occur in the years divisible by four, as at present, and might not answer to the election of members to the House of .Representatives, for the presidential elections might occur in the years not divisible by two. The Congress of 1792 acted upon the constitutional doctrine that the presidential term is four years and cannot be changed by law. On the 21st of February, 1868, while the Senate of the United States was in session, Mr. Johnson, in violation of the law — which, as we have already seen, is in strict harmony in this particular with the Constitution and with the practice of every Administration under the Con- stitution from the beginning of the Govern- ment — issued an order for the removal of Mr. Stanton from his office as Secretary for the Department of War. If, however, it be claimed that the proviso does not apply to the Secretary of War, then he does not come within the only exception made in the statute to the general provision in the body of the first section already quoted ; and Mr. Stanton, having been ap- pointed to office originally by and with the advice and consent of the Senate, could only be removed by the nomination and appoint- ment of a successor by and with the advice and consent of the Senate. Hence, upon either theory, it is plain that the President violated the tenure-of-office act in the order which heissued on the 21st of February, A. D. 1868, for the removal of Mr. Stanton from the office of Sec- retary for the Department of War, the Senate of the United States being then in session. In support of the view I have presented I refer to the official record of the amendments made to the first section of the tenure-of-office act. On the 18th of January, 1807, the bill passed the Senate, and the first section thereof was in these words : " That every person [excepting the Secretaries of State, of the Treasury, of War, of tbo Navy, and of the Interior, the Postmaster General, and the At- torney Genoral] holding any civil office to which he has been appointed by and with the advice andcon- sent of the Senate, and every person who shall here- after be appointed to any suoh office, and shall bo- coino duly qualified to act therein, is, and shall be, entitled to hold such office until a successor shall have been in like manner appointed and duly quali- fied, except as herein otherwise provided." On the 2d of February the House .passed the bill with an amendment striking out. the words included in brackets. This action shows thatitwas the purpose of the House to include heads of Departments in the body of the bill, and subject them to its provisions as civil officers, who were to hold their places by and with the advice and consent of the Senate, and subject, during the session of the Senate, to removal by and with the advice and consent of the Senate only ; but subject to suspension under the second section during a recess of the Senate as other civil officers, by virtue of the words at the close of the section, "except as herein otherwise provided." At the time the bill was pending between the two Houses there was no proviso to the first section, and the phrase "except as otherwise herein pro- vided" related necessarily to the second and to the subsequent sections of the bill. On the 6th of February the Senate refused to agree to the House amendment, and by the action of the two Houses the bill was referred to a committee of conference. The conference committee agreed to strike out the words in brackets agreeably to a vote of the House, but as a recognition of the opinion of the Senate the proviso was inserted which modified in substance the effect of the words stricken out, under the lead of the House, only in this, that the Cabinet officers referred to in the body of the section as it passed the House were to hold their offices as they would have held them if the House amendment had been agreed to without condition, with this exception: that they were to retire from their offices in one month after the end of the term of the Presi- dent by whom they might have been appointed to office. The object and effect of this quali- fication of the provision for which the House contended was to avoid fastening, by opera- tion of law, upon an incoming President the Cabinet of his predecessor, with no means of relieving himself from them unless the Senate of the United States was disposed to concurin their removal. In short, they were to retire by operation of law at the end of one month after the expira- tion of the term of the President by whom they had been appointed ; and in this particular their tenure of office was distinguished by the pro- viso from the tenure by which other civil offi- cers mentioned in the body of the section were to hold their offices, and their tenure of office is distinguished in no other particular. The counsel who opened the cause for the President was pleased to read from the Globe the remarks made by Mr. Schenck in the House of Representatives, when the report of the conference committee was under discussion. But he read only a portion of the remarks of thatgentleman, and connected with them obser- vations of his own, by which he may have led the Senate into the error that Mr. Schenck entertained the opinion as to the effect of the proviso which is now urged by the respondent ; but, so far from this being the case, the state- ment made by Mr. Schenck to the House is exactly in accordance with the doctrine now maintained by the Managers on the part of the House of Representatives. After Mr. Schenck had made the remarks quoted by the counsel for the respondent, Mr. Le Blond, of Ohio, rose and said: "I would liko to inquire of the gentleman who has charge of this report whether it becomes necessary that the Senate shall concur in all appointments of executive officers, and that none of them can be re- moved after appointment without the concurrence of the Senate?" Mr. Schenck says, in reply: "That is the case; but their terms of office is lim- ited, (as they arc not now limited by law.) so that they expire with the terra of service of the President who appoints them, and one month after, in case of death or other accidont, until others can be substi- tuted for them by the incoming President." Mr. Le Blond, continuing, said: "1 understand, then, this to be the effect of the report of the committee of conference : in the event of the President finding himself with a Cabinet offi- cer who does not agree with him, and whom he desires to remove, he cannot do so, and havo a Cabi- net in keeping with his own views, unless tho Seuato shall concur." To this Mr. Schenck replies: "Tho gontlcman certainly does not need that in- formation from me, as this subject has been fully debated in this House." Mr. Le Blond said, finally: "Then I hope tho House will not agree to tho report of tho committee of conference." This debate in the House shows that there was there and then no difference of opinion between Mr. Schenck, who represented the friends of the bill, and Mr. Le Blond, who represented the opponents of the bill, that its effect was to confirm the Secretaries who were then in office in their places until one month after the expiration of Mr. Lincoln's term of office, to wit, the 4th day of March, 1S6'J, un- less, upon the nomination of successors, they should be removed by and with the advice and consent of the Senate. Nor does the language used by the honorable Senator from Ohio, who reported the result of the conference to the Senate, justify the inference which has been drawn from it by the counsel for the respond- ent. The charge made by the honorable Sen ator from Wisconsin, which the honorable Senator from Ohio was refuting, seems to have been, in substance, that the first section of the bill and the proviso to the first section of the bill had been framed with special reference to Mr. Johnson, as President, and to the existing condition of affairs. In response to this the honorable Senator from Ohio said: " I say that the Senate have not legislated with a view to any persons or any President, and therefore he commences by asserting what is not true. WedB not legislate in order to keepin the Secretary of War, the Secretary of tho Navy, or the Secretary of Stato." It will be observed that this language does not indicate the opinion of the honorable Sen- ator as to the effect of the bill ; but it is only a declaration that the object of the legislation was not that which had been intimated or al- leged by the honorable Senator from Wiscon- sin. This view of the remarks of the honor- able Senator from Ohio is confirmed by what he afterward said in reply to the suggestion that members of the Cabinet would hold their places against the wishes of the President, when he declares thatundersuoh circumstances he, as a Senator, would consent to their re- moval at any time, showing most clearly that he did not entertain the idea that under the tenure-of-office act it would be in the power of the President to remove a Cabinet officer with- out the advice and consent of the Senate. And we all agree that in ordinary times, and under ordinary circumstances, it would not only be just and proper for a Cabinet officer to tender his resignation at once, upon the suggestion of the President that it would be acceptable, but we also agree that it would be the height of personal and official indecorum if he were to hesitate for a moment as to his duty in that particular. But the justification of Mr. Stan- ton, and his claim to the gratitude and enco- miums of his countrymen, is, that when the nation was imperiled by the usurpations of a criminally- minded Chief Magistrate, he as- serted his- constitutional and legal rights to the office of Secretary for the Department of War, and thus by his devotion to principle, and at great personal sacrifices, he has done more than any other man since the close of the re- bellion to protect the interests and maintain the rights of the people of the country. But the strength of the view we entertain of the meaning and scope of the tenure-of- office act is nowhere more satisfactorily dem- onstrated than in the inconsistencies of the argument which has been presented by the learned counsel for the respondent in support of the President's positions. He says, speak- ing of the first section of the act regulating the tenure of certain civil offices : "Hero is a section, thon, the body of which applies to all civil officers, as well to those then in office as to those who should thereafter bo appointed. The body of this section containsadcclaration that every such officer 'is,' that is, if he is now in office, and 'shall be,' that is, if he shall hereafter bo appointod to office, entitled to hold until a successor is appointed and qualified in his place. That is the body of the section." This language of the eminent counsel is not only an admission, but it is a declaration that the Secretary for the Department of War, be- ing a civil officer, as is elsewhere admitted in the argument of the counsel for the respondent, is included in and covered and controlled by the language of the body of this section. It is a further admission that in the absence of the proviso the power of the President over the Secretary for the Department of War would correspond exactly to his power over any other civil officer, which would be merely the power to nominate a successor whose confirmation by the Senate, and appointment, would work the removal of theperson in office. When the counsel for the respondent, proceeding in his argument, enters upon an examination of the proviso, he maintains that the language of that proviso does not include the Secretary for the Department of War. If he is not included in the language of the proviso, then upon the ad- mission of the counsel he is included in the body of the bill, so that for the purposes of THE CONGRESSIONAL GLOBE. 279 terial whether the proviso applies to him or not. If the proviso does not apply to the Sec- retary for the Department of War, then he holds his office, as in the body of the section expressed, until removed therefrom by and with the advice and consent of the Senate. If he is covered by the language of the proviso, then a limitation is fixed to his office, to wit: that itSs to expire one month after the close of the term of the President by whom he has keen appointed, subject, however, to previous removal by and with the advice and consent of the Senate. I have already considered the question of intent on the part of the President, aud main- tained that in the willful violation of the law he discloses a criminal intent which cannot be controlled or qualified by any testimony on the part of the respondent. The counsel for the respondent, however, has dwelt so much at length on the question of intent, and such efforts have been made during the trial to introduce testimony Upon this point, that I am justified in recurring to it for a brief consideration of the arguments and views bear- ing upon and relating to that question. If a law passed by Congress be equivocal or am- biguous in its terms, the Executive, being called upon to administer it, may apply his own best judgment to the difficulties before him, or he may seek counsel from his official advisers or other proper persons; and acting thereupon, without evil intent or purpose, he would be fully justified, and upon no principle of right could he be held to answer as for a misde- meanor in office. But that is not this case. The question considered by Mr. Johnson did not relate to the meaning of the tenure-of- office act. He understood perfectly well the intention of Congress, and he admitted in his veto message that that intention was expressed with sufficient clearness to enable him to com- prehend and state it. In his veto message of the 2d of March, 1867, after quoting the first section of the bill to regulate the tenure of cer- tain civil offices, he sa3's : "In effect thebillprovides that the President shall not remove from their places any civil ojlcera whose terms of service are not limited by law without the advice and consent of the Senate of the United States. The bill, in this respect, conflicts, in my judgment, with the Constitution of the United States." His statement of the meaning of the bill relates to all civil officers, to the members of his Cabinet as well as toothers, and is a declara- tion that, under that bill, if it became a law, none of those officers could be removed without the advice and consent of the Senate. He was, therefore, in no doubt as to the intention of Congress as expressed in the bill submitted to him for his consideration, and which after- ward became the law of the land. He said to the Senate, "If you pass this bill, I cannot remove the members of my Cabinet." The Senate and the House in effect said, " We so intend 1 ," and passed the bill by a two-thirds majority. There was then no misunderstand- ing as to the meaning or intention of the act. His offense, then, is not, that upon an examina- tion of the statute he misunderstood its mean- ing and acted upon a misinterpretation of its true import, but that understanding its mean- ing precisely as it was understood by the Con- gress that passed the law, precisely as it is understood by the House of Representatives to- day, precisely as it is presented in the articles of impeachment, and by the Managers before this Senate, he, upon his own opinion that the same was unconstitutional, deliberately,willfully, and intentionally disregarded it. The learned coun- sel say that he had a right to violate this law for the purpose of obtaining a judicial determina- tion. This we deny. The constitutional duty of the President is to obey and execute the laws. He has no authority under the Constitu- tion, or by any law, to enter into any schemes or plans for the purpose of testing the validity of the laws of the country, either judicially or otherwise. Every law of Congress may be tested in the courts, but it is not made the duty of any person to so test the laws. It is not specially the right of any person to so test the laws, and the effort is particularly offensive in the Chief Magistrate of the country to attempt by any process to annul, set aside, or defeat the laws which by his oath he is bound to execute. Nor is it any answer to say, as is suggested by the counsel for the respondent, that "there never could be a judicial decision that a law is unconstitutional, inasmuch as it is only by dis- regarding a law that any question can be raised judicially under it." If this be true, it is no misfortune. But the opposite theory, that it is the duty or the right of the President to disre- gard a law for the purpose of ascertaining judi- cially whether he has a right to violate a law, is abhorrent to every just principle of govern- ment, and dangerous in the highest degree to the existence of free institutions. But his alleged purpose to test the law in the courts is shown to be a pretext merely. Upon his own theory of his rights he could have instituted proceedings by information in the nature of a quo warranto against Mr. Stan- ton on the 13th of January, 1868. More than three months have passed, and he has done nothing whatever. When by Mr. Stanton's action Lorenzo Thomas was under arrest, and proceedings were instituted which might have tested the legality of the tenure-of-office act, Mr. Cox, the President's special counsel, moved to have the proceedings dismissed, al- though Thomas was at large upon his own re- cognizance. Can anybody believe that it was Mr. Johnson's purpose to test the act in the courts? But the respondent's insincerity, his duplicity, is shown by the statement which he made to General Sherman in January last. Sherman says, "I asked him why lawyers could not make a case, and not bring me, or an officer, into the controversy? His answer was, ' that it was found impossible, or a case could not be made up ;' ' but,' said he, ' if we can bring the case to the courts it would not stand half an hour.' " He now says his object was to test the case in the courts. To Sher- man he declares that a ease could not be made up, but if one could be made up the law would not stand half an hour. When a ease was made up which might have tested the law he makes haste to get it dismissed. Did ever audacity and duplicity more clearly appear in the excuses of a criminal? This brief argument upon the question of intent seems to me conclusive, but I shall incidentally refer to this point in the further progress of my remarks. The House of Representatives does not de- mand the conviction of Andrew Johnson un- less he is guilty in the manner charged in the articles of impeachment ; nor does the House expect the Managers to seek a conviction ex- cept upon the law and the facts considered with judicial impartiality. But I am obliged to declare that I have no capacity to understand those processes of the human mind by which this tribunal, or any member of this tribunal, can doubt, can entertain a reasonable doubt, that Andrew Johnson is guilty of high misde- meanors in office, as charged in each of the first three articles exhibited against him by the House of Representatives. We have charged and proved that Andrew Johnson, President of the United States, issued an order in writing for the removal of Edwin M. Stanton from the office of Secretary for the Department of War while the Senate of the United States was in session, and without the advice and consent of the Senate, in violation of the Constitution of the United States and of his oath of office, and of the provisions of an act passed March 2, 1867, entitled "An act regulating the tenure of certain civil offices," and that he did this with intent so to do ; and thereupon we demand his conviction under the first of the articles of impeachment exhib- ited against him by the House of Represent- atives. We have charged and proved that Andrew Johnson, President of the United States, vio- lated the Constitution and his Oath of office in issuing an order for the removal of Edwin M. Stanton from the office of Secretary for the Department of War during the session of the Senate, and without the advice and consent of the Senate, and this without reference to the tenure-of-office act; and thereupon we de- mand his conviction under the first of the articles of impeachment exhibited against him by the House of Representatives. We have charged and proved that Andrew Johnson, President of the United States, did issue and deliver to one Lorenzo Thomas a letter of authority in writing authorizing and empowering said Thomas to act as Secretary of War ad interim, there being no vacancy in said office, and this while the Senate of the United States was in session, and without the advice and consent of the Senate, in violation of the Constitution of the United States, of his oath of office, and of the provisions of an act entitled "An act regulating the tenure of cer- tain civil offices," and all this with the intent so to do; and thereupon we demand his con- viction under the second of the articles of im- peachment exhibited against him by the House of Representatives. We have charged and proved that Andrew Johnson, President of the United States, in the appointment of Lorenzo Thomas to the office of Secretary of War ad interim, acted without authority of law and in violation of the Constitution and of his oath of office ; and this without reference to the tenure-of-office act; and thereupon we demand his conviction un- der the third of the articles of impeachment exhibited against him by the House of Repre- sentatives. At this point the honorable Manager yielded for an adjournment. Mr. CONKLING. I move that the Senate sitting for this trial adjourn. The CHIEF JUSTICE. The Senator from New York moves that the Senate sitting as a court of impeachment adjourn until to-morrow at eleven o'clock. The motion was agreed to ; and the Sen- ate sitting for the trial of the impeachment adjourned. Thursday, April 23, 1868. The Chief Justice of the United States took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives and the counsel for the respondent, except Mr. Stan- bery, appeared and took the seats assigned to them respectively. The members of the House of Representa- tives, as in Committee of the Whole, preceded by Mr. E. B. Washburne, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were conducted to the seats provided for them. The CHIEF JUSTICE. The Secretary will read the minutes of yesterday's proceedings. The Journal of the Senate sitting yesterday for the trial of the impeachment was read. Mr. GRIMES. Mr. Chief Justice, I askleave to offer an order which will lie over if there be any objection made to it. The CHIEF JUSTICE. The Secretary will read the order proposed by the Senator from Iowa. The Chief Clerk read as follows : Ordered, That hereafter the hour for the meeting of the Senate, sitting for the trial of tho impeach- ment of Andrew Johnson, President of the United States, shall bo twelve o'clock meridian of each day except Sunday. The CHIEF JUSTICE. Is there any ob- jection to the present consideration of the proposed order? Mr. SUMNER. I object. The CHIEF JUSTICE. Objection is made, and it will lie over. Mr. Manager Boutwell will please proceed with his argument- Mr. Manager BOUTWELL. Mr. President, Senators, the learned counsel for the respond- ent seems to have involved himself in some difficulty concerning the articles which he 280 SUPPLEMENT TO terms the conspiracy articles, being articles four, five, six, and seven. The allegations con- tained in articles four and six are laid under the act of July 31, 1861, known as the con- spiracy act. The remarks of the learned coun- sel seem to imply that articles five and seven are not based upcn any law whatever. In this he greatly errs. An examination of articles four and five shows that the substantive allega- tion is the same in each, the differences being that article four charges the conspiracy with intent, by intimidation and threats, unlawfully to hinder and prevent Edwin M. Stanton from holding the office of Secretary for the Depart- ment of War. The persons charged are the respondent and Lorenzo Thomas. And it is alleged that this conspiracy for the purpose set forth was in violation of the Constitution of the United States and of the provisions of an act entitled ''An act to punish certain con- spiracies," approved July 81, 1861. The fifth article charges that the respondent did unlaw- fully conspire with one Lorenzo Thomas, and with other persons, to prevent the execution of the act entitled "An act regulating the ten- ure of certain civil offices," and that in pur- suance of that conspiracy they did unlawfully attempt to prevent Edwin M. Stanton from holding the office of Secretary for the Depart- ment of War. It is not alleged in the article that this conspiracy is against any particular law, but it is alleged that the parties charged did unlawfully conspire. Itis very well known that conspiracies are of two kinds. Two or more persons may conspire to do a lawful act by unlawful means ; or two or more persons may conspire to do an unlawful act by lawful means. By the common law of England such conspiracies have always been indictable and punishable as misdemeanors. The State of Maryland was one of the original thirteen States of the Union, and the common law of England has always prevailed in that State, except so far as it has been modified by statute. The city of Washington was originally within the State of Maryland, but it was ceded to the United States under the provisions of the Con- stitution. By a statute of the United States, passed February 27, 1801, (Statutes-at-Large, vol. 2, p. 103,) it is provided: "That the laws of tho State of Maryland, as they now exist, shall be and continue in force in that part of the said district which was ceded by that Stato to the United States, and by them accepted as afore- said." By force of this statute, although probably the law would have been the same without legislation, the English common law of crimes prevails in the city of Washington. By an- other statute entitled "An act for the punish- ment of crimes in the District of Columbia," (Statutes-at-Large, vol. 4, p. 450,) approved March 2, 1831, special punishments are affixed to various crimes enumerated when commit- ted in the District of Columbia. But con- spiracy is not one of the crimes mentioned. The fifteenth section of that act provides : "That every other felony, misdemeanor, or offense not provided for by this act may and shall be pun- ished as horetofore, except that in all cases where whipping is part or the wholo of the punishment, except in the cases of slaves, the court shall substi- tute therefor imprisonment in the county jail for a period not exceeding six months." And the sixteenth section declares — " That all definitions and descriptions of crimes, all fines, forfeitures, and incapacities, tho restitution of property, or tho payment of the value thereof, and every other matter not provided for in this act, be and the same shall remain as heretofore." There can then be no doubt that, under the English common law of crimes, sanctioned and continued by the statutes of the United States in the District of Columbia, the fifth and sev- enth articles set forth offenses which are pun- ishable as misdemeanors by the laws of the District. Article six is laid under the statute of 1861, and charges that the respondent did unlaw- fully conspire with Lorenzo Thomas, by force, to seize, take, and possess the property of the United States in the Department of War, and this with intent to violate and disregard the act entitled "An act regulating the tenure of certain civil offices." The words used in the conspiracy act of 1861 leave room for argu- ment upon the point raised by the learned counsel for the respondent. I admit that the District of Columbia is not included by spe- cific designation ; but the reasons for the law and the natural interpretation of the language justify the view that the act applies to the Dis- trict. I shall refer to a single authority only upon the point. The internal-duties act of August 2, 1813, (Statutes, vol. 3, p. 82) subjects, in express terms, the " several Territories of the United States and the District of Columbia" to the payment of the taxes imposed ; upon which the question arose whether Congress has power to impose a direct tax on the District of Co- lumbia, in view of the fact that by the Consti- tution it is provided that " representation and direct taxes shall be apportioned among the several States which may be included within the Union according to their respective num- bers." In the case of Loughborough vs. Blake the Supreme Court of the United States unani- mously decided, in a brief opinion by Chief Justice Marshall, that although the language of the Constitution apparently excepts the Dis- trict of Columbia from the imposition of direct taxes, yet the reason of the thing requires us to consider the District as being comprehended, in this respect, within the intention of the Con- stitution. (Loughborough vs. Blake, 5 Whea- ton, p. 317.) _ The reasoning of the Supreme Court and its conclusion in this case were satisfactory to the bar and the country, and no person has deemed it worth while to raise the question anew under the direct tax act of August 5, 1861, (Statutes 12, 296,) which also comprehends the Territo- ries and the District of Columbia. But the logical rules of construction applica- ble to an act of Congress are the same as those applicable to the Constitution. An act of Con- gress and the Constitution are both laws — noth- ing more, nothing less — except that the latter is of superior authority. And if, in the construc- tion of the Constitution, it may be satisfactorily maintained that the District of Columbia is to be deemed, because of the reason of things, to be comprehended by a provision of the Con- stitution which in words, and in their super- ficial construction, excludes it, must not the same rule of construction produce the same result in the determination of the legal intent and import of an act of Congress, when an obscurity exists in the latter and for the same cause? The seventh article is laid upon the common law, and charges substantially the same offenses as those charged in the sixth article. The re- sult then is that the fifth and seventh articles, which are based upon the common law, set forth substantially the same offenses which are set forth in the fourth and sixth articles, which are laid upon the statute of July 31, 1861 ; and as there can be no doubt of the validity of the fifth and seventh articles, it is practically im- material whether the suggestion made by the counsel for the respondent, that the conspiracy act of 1861 does not include the District of Columbia, is a valid suggestion or not. Not doubting that the Senate will find that the charge of conspiracy is sufficiently laid under existing laws in all the articles, I proceed to an examination of the evidence by which the charge is supported. It should always be borne in mind that the evidence in proof of conspiracy will generally, from the nature of the crime, be circumstantial ; and this case in this particular is no exception to the usual experience in criminal trials. We find, in the first place, if the allegations in the first, second, and third articles have been established, that the President was engaged in an unlawful act. If we find Lorenzo Thomas or any other person cooperating with him upon an agreement or an understanding or an assent on the part of such other person to the prose- cution of such unlawful undertaking an actual conspiracy is proved. The existence of the conspiracy being established, it is then compe- tent to introduce the statements and acts of the parties to the conspiracy, made and done white the conspiracy was pending, and in furtherance of the design ; and it is upon this ground that testimony has been offered and received of the declarations made by Lorenzo Thomas, one of the parties to the conspiracy, subsequent to the 18th of January, 1868, or perhaps to the 13th of January, 1868 — the day on which he was restored to the office of Adjutant General of the Army of the United States by the action of the President, and which appears to have been an initial proceeding on his part.for the purpose of accomplishing his unlawful design — the re- moval of Mr. Stanton from the office of Secre- tary for the Department of War. The evidence of agreement between the respondent and Thomas is found in the order of the 21st of February, 1868, appointing Thomas, and in the conversation which occurred at the time the order was placed in Thomas's hands. The counsel for the respondent at this point was involved in a very serious difficulty. If he had admitted (which he took care not to do) that the order was purely a military one, he foresaw that the respondent would be involved in the crime of having issued a military order which did not pass through the General of the Army, and thus would be liable to impeachment and removal from office for violating the law of the 2d of March, 1867, entitled ■* An act making appropriations for the support of the Army for the fiscal year ending June 30, 1868, and for other purposes." If he had declared that it was not a military order, then the transaction confessedly was in the nature of an agreement between the Pres- ident and Lorenzo Thomas ; and if the act con- templated by that agreement was an unlawful act, or if the act were unlawful, and the means employed for accomplishing it were unlawful, then clearly the charge of conspiracy would be maintained. Hence he was careful to say, in denying that the order was a military order, that it nevertheless "invoked that spirit of mil- itary obedience which constitutes the strength of the service." And further, he says of Thomas, that, as a faithful Adjutant General of the Army of the United States, interested personally, professionally, and patriotically to have the office of Secretary of the Department of War performed in a temporary vacancy, was it not his duty to accept the appointment un- less he knew that it was unlawful to accept it? The admissions and statements of the learned counsel are to the effect, on the whole, that the order was not a military order, nor do we claim that it was a military order, but it was a letter addressed to General Thomas, which he could have declined altogether without sub- jecting himself to any punishment by a mili- tary tribunal. This is the crucial test of the character of the paper which he received, and on which he proceeded to act. Ignorance of the law, according to the old maxim, excuses no man ; and whether General Thomas, at the first interview he had with the President on the 18th of January, 1868, or at his interview with him on the day when he received the letter of appointment, knew that the President was then engaged in an unlawful act, is not material to this inquiry. The President knew that his purpose was an unlawful one, and he then and there induced General Thomas to cooperate with him in the prosecution of the unlawful design. If General Thomas was ignorant of the illegal nature of the transaction, that fact furnishes no legal defense for him, even though morally it might be an excuse, for his conduct. But certainly the President, who did know the illegal nature of the proceeding, cannot excuse himself by asserting that his coconspirator was at the time ignorant of the illegal nature of the business in which they were engaged. It being proved that the respondent was en- gaged in an unlawful undertakingin his attempt to remove Mr. Stanton from the office of Sec- retary for the Department of War, that by an agreement or understanding between General Thomas and himself they were to cooperate in THE CONGRESSIONAL GLOBE. 281' carrying this purpose into execution, and it being proved, also, that the purpose itself was unlawful, all the elements of a conspiracy are fully established ; and it only remains to ex- amine the testimony in order that the nature of the conspiracy may more clearly appear and the means by which the purpose was to be accomplished may be more fully understood. The statement of the President in his mes- sage to the Senate under date of 12th of De- cember, 1867, discloses the depth of his feel- ing and the intensity of his purpose in regard to the removal of Mr. Stanton. In that mes- sage he speaks of the bill regulating the tenure of certain civil offices at the time it was before him for consideration. He says: "The bill had not then become a law ; the limit- ation upon the power of removal whs not yet im- {osed, and there was yet time to make any chanp;os. f any one of those gentlemen [meaning the mem- bers of his Cabinet] had then said to me that ho would avail himself of the provisions of that bill in case it became a law I should not have hesitated a moment as to his removal." When, in the summer of 1867, the respond- ent became satisfied that Mr. Stanton not only did not enter into the President's schemes but was opposed to them, and he determined upon his suspension and final removal from the office of Secretary for the Department of War, he knew well that the confidence of the people m Mr. Stanton was very great, and that they would not accept his removal and an appoint- ment to that important place of any person of doubtful position, or whose qualifications were not known to the country. Hence he sought, through the suspension of Mr. Stanton and the appointment of General Grant as Secretary of War ad interim, to satisfy the country for the moment, but with the design to prepare the way thereby for the introduction into the War Department of one of his own creatures. At that time it was supposed that the suspension of Mr. Stanton and the appointment of Gen- eral Grant were made under and by virtue of the act regulating the tenure of certain civil offices; and although the conduct of the Presi- dent during a period of nearly six months in reference to that office was in conformity to the provisions of that act, it was finally de- clared by him that what he had done had been done in conformity to the general power which he claims under the Constitution, and that he did not in any way recognize the act as con- stitutional or binding upon him. His message to the Senate of the 12th of December was framed apparently in obedience to the tenure- of-office act. He charged Mr. Stanton with misconduct in office, which, by that act, had been made » ground for the suspension of a civil officer ; he furnished reasons and evidence of misconduct which, as he alleged, had been satisfactory to him, and he furnished such rea- sons and evidence within twenty days after the meeting of the Senate next following the day of suspension. All this was in conformity to the statute of March 2, 1867. The Senate proceeded to con- sider the evidence and reasons furnished by the President, and in conformity to that act passed a resolution, adopted on the 13th of January, 18C8, declaring that the reasons were unsatis- factory to the Senate, and that Mr. Stanton wa3 restored to the office of Secretary for the Department of War. Up to that time there had been no official statement or declaration by the President that he had not acted under the tenure-of-office act; but he now assumed that that act had no binding force, and that Mr. Stanton was not lawfully restored to the office of Secretary for the Department of War. Upon the adoption' of the resolution by the Senate General Grant at once surrendered the office to Mr. Stanton. This act upon his part filled the President with indignation toward both General Grant and Mr. Stanton, and from that day he seems to have been under the influ- ence of a settled and criminal purpose to de- stroy General Grant and to secure the removal of Mr. Stanton. During the month following the restoration of Mr. Stanton the President attempted to carry out his purpose by various and tortuous methods. First he endeavored to secure the support of General Sherman. On two occasions, as is testified by General Sher- man, on the 27th and 81st of January, he ten- dered him the position of Secretary of War ad interim. It occurred very naturally to General Sherman to inquire of the President whether Mr. Stanton would retire voluntarily from the office ; and also to ask the President what he was to do, and whether he wouldresortto force if Mr. Stanton would not yield. The Presi- dent answered, "Oh, he will make no objec- tion ; you present the order and he will retire." Upon a doubt being expressed by General Sherman, the President remarked, " I know him better than you do ; he is cowardly." The President knew Mr. Stanton too well to enter- tain any such opinion of his courage as hegave in his answer to General Sherman ; the secret of the proceeding, undoubtedly, was this : he desired in the first place to induce General Sherman to accept the office of Secretary of War ad interim upon the assurance on his part that Mr. Stanton would retire willingly from his position, trusting that when General Sher- man was appointed to and had accepted the place of Secretary of War ad interim he could be induced, either upon the suggestion of the President or under the influence of a natural disinclination on his part to fail in the accom- plishment of anything which he had undertaken, to seize the War Department by force. The President very well knew that if General Sher- man accepted the office of Secretary of War ad interim he would be ready at the earliest moment to relinquish it into the hands of the President, and thus he hoped through the agency of General Sherman to secure the possession of the Department for one of his favorites. During the period from the 13th day of Jan- uary to the 21st of February he made an at- tempt to enlist General George H. Thomas in the same unlawful undertaking. Here, also, he was disappointed. Thus it is seen that from August last, the time when he entered system- atically upon his purpose to remove Mr. Stanton from the office of Secretary for the Department of War, he has attempted to se- cure the purpose he had in view through the personal influence and services of the three principal officers of the Army; and that he has met with disappointment in each case. Under these circumstances nothing remained for the respondent but to seize the office by an open, willful, defiant violation of law; and as it was necessary for the accomplishment of his pur- pose that he should obtain the support of some one, and^as his experience had satisfied him that no person of capacity or respectability or patriotism would unite with him in his unlaw- ful enterprise, he sought the assistance and aid of Lorenzo Thomas. This man, as you have seen him, is an old man, a broken man, a vain man, a weak man, utterly incapable of per- forming any important public service in a manner creditable to the country ; but possess- ing, nevertheless, all the qualities and charac- teristics of a subservient instrument and tool of an ambitious, unscrupulous man. He readily accepted the place which the President offered him, and there is no doubt that the declara- tions which he made to Wilkeson, Bukleigh, and Karsner were made when he entertained the purpose of executing them, and made also in the belief that they were entirely justified by the orders which he had received from the President, and that the execution of his pur- pose to seize the War Department by force would be acceptable to the President. That he threatened to use force there is no doubt from the testimony, and he has himself con- fessed substantially the truth of the statements made by all the witnesses for the prosecution who have testified to that fact. These statements were made, by Thomas on and after the 21st of February, when he re- ceived his letter of authority, in writing, to take possession of the War Department. The agree- ment between the President and Thomas was consummated ou that day. With one mind they were then and on subsequent days engaged and. up to the present time they are engaged in the attempt to get possession of the War De- partment. Mr. Stanton, as the Senate by its resolution has declared, being the lawful Sec- retary of War, this proceeding on their part was an unlawful proceeding. It had in view an unlawful purpose ; it was therefore in con- templation of the law a conspiracy, and the President is consequently bound by the decla- rations made by Thomas in regard to taking possession of the War Department by force. Thomas admits that on the night of the 21st it was his purpose to use force ; but on the morn- ing of the 22d his mind had undergone a change and he then resolved not to use force. We do not know precisely the hour when his mind underwent this change, but the evidence dis- closes that upon his return from the supreme court of the District, where he had been ar- raigned upon a complaint made by Mr. Stan- ton, which, according to the testimony, was twelve o'clock or thereabouts, he had an inter- view with the President; and it is also in evi- dence that at or about the same time the Pres- ident had an interview with General Emory, from whom he learned that that officer would not obey a command of the President unless it passed through General Grant, as required by law. The President understood perfectly well that he could neither obtain force from General Grant nor transmit an order through General Grant for the accomplishment of a purpose manifestly unlawful ; and inasmuch as General Emory had indicated to him in the most dis- tinct and emphatic manner his opinion that the law requiring all orders to pass through the headquarters of the General commanding was constitutional, indicating also his purpose to obey the law, it was apparent that at that moment the President could have had no hope of obtaining possession of the Department of War by force. It is a singular coincidence in the history of this case that at or about the same time General Thomas had an interview with the President and came to the conclusion that it would not be wise to resort to force. The President has sought to show his good intention by the fact that, on the 22d or the 24th of February, he nominated Hon. Thomas Ewing, senior, as Secretary for the Department of War. Mr. Ewing is not an unknown man. He has been a member of the Senate and the head of the Treasury Department. His abil- ities are undoubted, but at the time of his nom- ination he was in the seventy-ninth year of his age, and there was no probability that he would hold the office a moment longer than his sense of public duty required. It was the old game of the President — the office in the hands of his own tool or in the hands of a man who would gladly vacate it at any moment. This was the necessity of his position, and throws light upon that part of his crime which is set forth in the eleventh article. For, in fact, his crime is one— the subversion of the Government. From the nature of the case we are compelled to deal with minor acts of criminality by which he hoped to consum- mate this greatest of crimes. In obedience to this necessity he appointed Grant, hoping to use him and his influence with the Army, and failing in this, to get possession of the place and fill it with one of his own satellites. Foiled and disappointed in this scheme, he sought to use, first, General Sher- man, then General George H. Thomas, then Hon. Thomas Ewing, senior, knowing that neither of these gentlemen would retain the office for any length of time. There were men in the country who would have accepted the office and continued in it and obeyed the Con- stitution and the laws. Has he named any such person; has he suggested any such person? His appointments and suggestions of appoint- ments have been of two sorts — honorable men, who would not continue in the office, or dis- honorable, worthless men, who were not fit to hold the office. The name of General Cox, of Ohio, was 282 SUPPLEMENT TO mentioned in the public journals ; it was men tioned, probably, to the President. Did itmeet with favor? Did he send his name to the Senate ? No. General Cox, if he had accepted the office at, all, would have done so with the expecta- tion of holding it till March, 1869, and with the purpose of executing the duties of the trust according to the laws and the Constitu- tion. These were purposes wholly inconsist- ent with the President's schemes of usurpa- tion. But is it to be presumed or imagined that, when the President issued his order for the removal of Mr. Stanton, and his letter of authority to Lorenzo Thomas, on the 21st of February, he had any purpose of appointing Mr. Ewing Secretary of War? Certainly not. ■On the afternoon of the 21st he informs his Cabinet that Stanton was removed and that Thomas had possession of the office. He then so believed. Thomas had deceived or misled him. On the 22d instant he had discovered that Stanton held on to the place, and that Emory could not be relied upon for force. What was now his necessity? Simply a resort to his old policy. He saw that it was necessary to avoid impeachment if possible, and also to obtain the sanction of the Senate to a nomination which would work the re- moval of Mr. Stanton, and thus he would tri- umph over his enemies and obtain condona- tion for his crimes of the 21st of February. A well-laid scheme, but destined to fail and to furnish evidence of his own guilty purposes. With the office in the possession of Mr. Ewing he foresaw that for the prosecution of his own plans the place would always be vacant. Thus has this artful man pursued the great purpose of his life. Consider the other cir- cumstances. On the 1st of September last General Emory was appointed to the com- mand of the department of Washington. He has exhibited such sterling honesty and vig- orous patriotism in these recent troubles and during the war that he can bear a reference to his previous history. He was born in Mary- land, and in the early part of the war the pub- lic inind of the North questioned his fidelity to the Union. His great services and untarn- ished record during the war are a complete defense against all suspicion, but is it too much to believe that Mr. Johnson entertained the hope that General Emory might be made an instrument of his ambition? Nobly has Gen- eral Emory undeceived the Presidentand gained additional renown in the country. In General Lorenzo Thomas the President was not de- ceived. His complicity in recent unlawful pro- ceedings justifies the suspicions entertained by the country in 1861 and 1862 touching his loy- alty. Thomas and the President are in accord. In case of the acquittal of the President, they are to issue an order to General Grant putting Thomas in possession of the reports of the Army to the War Department. Is there not in all this evidence of the Presi- dent's criminal intention? Is not his whole course marked by duplicity, deception, and fraud? " All things are construed against the wrong-doer" is the wise and just maxim of the law. Has he not trifled with and deceived the Senate? Has he not attempted to accom- plish an unlawful purpose by disingenuous, tortuous, criminal means? His criminal intent is in his willful violation of the law, and his criminal intentis, moreover, abundantly proved by all the circumstances attending the violation of the law. His final resort for safety was the Senate, praying for the confirmation of Mr. Ewing. On the 21st of February he hoped that Stan- ton would yield willingly or that Emory could be used to remove him. On the 22d he knew that Stanton was determined to remain, that Emory would not furnish assistance, that it was useless to appeal to Grant. He returns to his old plan of rilling the War Office by the appointment of a man who would yield the rjlace at any moment; and now he asks you to accept us his justification an act which was the last resort of a criminal attempting to escape the judgment due to his crimes. Upon this view of the law and the facts we demand a conviction of the respondent upon articles four, five, six, and seven exhibited against him by the House of Representatives. The evidence introduced tending to show a conspiracy between Johnson and Thomas to get possession of the War Department tends also, connected with other facts, to show the purpose of the President to obtain possession of the Treasury Department. Bearing in mind his claim that he can suspend or remove from office, without the advice and consent of the Senate, any civil officer, and bearing in mind, also, that the present Secretary of the Treasury supports this claim, and every obstacle to the possession of the Treasury Department is re- moved. If the Secretary should decline to cooperate it would only be necessary for the President to remove him from office and place the Treasury Department in the hands of one of his own creatures. Upon the appointment of Thomas as Secre- tary of War ad interim the President caused notice to be given thereof to the Secretary of the Treasury, accompanied with the direction, under the President's own hand, to that offi- cer to govern himself accordingly. It is also proved that on the 22d day of December Mr. Johnson appointed Mr. Cooper, who had been his Private Secretary and intimate friend, As- sistant Secretary of the.Treasury. The evidence fully sustains the statements made in the opening argument of Manager Butler in support of article nine. The facts in regard to General Emory's interview with the President were then well known to the Managers, and the argument and view pre- sented in the opening contain all that is neces- sary to be said upon that article. The learned counsel who opened the case for the President seems not to have compre- hended the nature of the offense set forth in the tenth article. His remarks upon that arti- cle proceeded upon the idea that the House of Representatives arraign the President for slan- dering or libeling the Congress of the United States; no such offense is charged, nor is it claimed by the Managers that it would be pos- sible for Mr. Johnson or any other person to libel or slander the Government. It is for no purpose of protection or in( emnity or punish- ment that we arraign Mr. Johnson for words spoken in Washington, Cleveland, and St. Louis. We do not arraign him for the words spoken ; but, the charge in substance is, that a man who could utter the words which as is proved were uttered by him is unfit for the office he holds. We claim that the common law of crimes, as understood and enforced by Parliament in cases of impeachment, is in sub- stance this : That no person in office shall do any act contrary to the good morals of the office ; and that, when any officer is guilty of an act contrary to the good morals of the office which he holds, that act is a misdemeanor for the purpose of impeachment and removal from office. Judge Chase was impeached and escaped conviction by four votes only for words spoken from the bench of the circuit court sitting in Baltimore ; words which are decorous and rep- utable when compared with the utterances of Mr. Johnson. Judge Humphreys was convicted and removed from office for words spoken treasonable in character, but not as much cal- culated to weaken and bring the Government of the United States into contempt as were the words uttered by Mr. Johnson in his speech of the 18th of August, 1866. Judge Hum- phreys was convicted by the unanimous vote of the Senators, nineteen of whom now sit on this trial. If a magistrate can ever be guilty, for words spoken, of an impeachable misde- meanor, there can be no doubt that Mr. John- son is so guilty. I ask you to consider in comparison, or in contrast, the nature of the language used by Chase, Humphreys, and Johnson, as set forth in the articles of impeachment preferred in the several cases. The eighth article in the case of Chase is in these words: "And wheroas mutual respect and confidence be- tween the Governmentof tbeUnited States and those of the individual States, and between the people and those governments, respectively, are highly condu- cive to that public harmony without which there can be no public happiness, yet the said Samuel Chase, disregarding the duties and dignity of his judicial character, did, at the circuit court for the district of Maryland, held at Baltimore in the month of May, 1803, pervert his official right and duty to address the grand jury then and there a-riicinblcd on the matters coming within the province of the said jury, for the purpose of delivering to the said grand jury an in- temperate and inflammatory political harangue, with intent to excite the fears and resentment of the said grand jury aDd of the good people of Maryland against their State government and constitution, a conduct highly censurable in any, but peculiarly in- decent and unbecoming in a judge of the Supreme Court of the United States; and, moreover, that the said Samuel Chase, then and there, under pre- tence of exercising his judicial right to address the said grand jury as aforesaid, did, in a manncT highly unwarrantable, endeavor to excite tho odium ot the said grand jury and of the good people of Maryland against the Government of the United States, by de- livering opinions which, even if the judiciary were competent to their -expression on a suitable occasion and in a proper manner, were at that time, and as delivered bihim, highly indecent, extra-judicial, and -tending to ^ostitute the high judicial character with which he was invested to the low purpose of an elec- tioneering partisan." The first article against Humphreys was as follows : "That, regardless of his duties as a citizen of the United States, and unmindful of the duties of his said office, and in violation of the sacred obligation of his official oath, ' to administer justice without respect to persons,' ' and faithfully and impartially discharge all the duties incumbent upon him as judge of the district courtof the United States for the several dis- tricts of the State of Tennessee, agreeable to the Con- stitution and laws of the United States,' the said West H. Humphreys, on tho 29th day of December, A.D. 1860, in the city of Nashville, in said State, the said West H. Humphreys then being a citizen of the United States, and owing allegiance thereto, and then and there being judge of the district court of the United States for the several districts of said State, at a public meeting on tho day and year last afore- said, held in said city of Nashville, and in the hear- ing of divers persons then and there present, did en- deavor by public speech to incite revolt and rebellion within said State against the Constitution and Gov- ernment of the UnitedStates, and did then and there publicly declare that it was the right of the people of said State, by an ordinance.of secession, to absolvo themselves from all allegiance to the Government of the UnitedStates, the Constitution, andlaws thereof." The offense with which Humphreys is charged in this article was committed on the 29th day of December, 1860, before the fall of Sumter, and when only one State had passed an ordi- nance of secession. The declaration was merely a declaration in a public speech that the State of Tennessee had the right to secede from the Union. The President, in his speech of the 18th of August, 1866, at Washington, says: "We have witnessed in one department of the Gov- ernment every effort, as it wore, to prevent the res- toration of peace, harmony, and union; we have seen, as it were, hanging upon the verge of the Gov- ernment, as it were, a body calling or assuming to be the Congress of the United States, when it was but a Congress of a part of the States; wo have seen Con- gress assuming to be for the Union when evory step they took was to perpetuate dissolution and make dissolution permanent. We have seen every step that has been taken, instead of bringing about rec- onciliation and harmony, has been legislation that took the character of penalties, retaliation, and re- venge. This has been the oourse; this has been the policy of one department of your Government." These words have been repeated so frequently, and the public ear is so much accustomed to them, that they have apparently lost their in- fluence upon the public mind. But it should be observed that these words, as has been proved by the experience of two years, were but the expression of a fixed purpose of the President. His design was to impair, to under- mine, and, if possible, to destroy the influence of Congress in the country. Having accom- plished this result, the way would then have been open to him for the prosecution of his crim- inal design to reconstruct the Government in the interest of the rebels, and, through his influ- ence with them, to secure his own election to the Presidency in 1868. It must, however, be apparent that the words in the speech of Mr. Johnson are of graver import than the words which were spoken by Judge Chase to thegrand iurv at Baltimore, or those uttered bv Judge THE CONGRESSIONAL GLOBE. 283 Humphreys to the people of Tennessee. And yet the latter was convicted by. a unanimous vote of this Senate; and the former escaped conviction by four votes only. These words are of graver import, not merely in the circum- stance that they assail a department of the Gov- ernment, but in the circumstance that they were uttered by the President of the United States in the Executive Mansion, and in his capacity as President of the United States, when receiv- ing the congratulations and support of a portion of the people of the country, tendered to him in his office as Chief Magistrate. Judge Chase, although a high officer of the Government, was without political influence and without patron- age ; his personal and official relations were limited, and his remarks were addressed to the grand jury of a judicial district of the country merely. Judge Humphreys was comparatively un- known ; and although his words were calculated to excite the citizens of Tennessee, and induce them to engage in unconstitutional undertak- ings, his influence was limited measurably to the people of tliat State. -j Mr. Johnson addressed the whole country; and holding in his hands the immense patron- age and influence belonging to the office of President, he was able to give practical effect to the declarations he then made. The nature of the respondents offense is illustrated by the law in reference to the duty of officers and soldiers of the Army, although the law is not applicable to the President: "Any officer or soldier who shall use contemptuous or disrespectful words against the President of the ■United States, against the Vice President thereof, against the Congress of the United States, shall bo cushiered or otherwise punished, as a court-martial shiill direct." — Statutwat-Large, vol. 2, p. 360, April 10, 1806. Moreover, in the case of Judge Chase, as is stated bv Mr. Dane in his "Abridgment," (voh 7, chap. 222:) "On the whole evidence it reraainediadoubtwhat words ho did utter. The proof of seditious intent resied solely on the words themselves; and as the words wero not clearly proved the intent was in doubt." In the case of Mr. Johnson there is no doubt about the words uttered; they have been fully and explicitly proved. Indeed, they are not denied by the respondent. The unlawful in- lent with which he uttered the words not only appears from the character of the language employed, but it is proved by the history of his Administration. In his message of the 22d of June, 1866, relating to the constitutional amendment, in his annual message of Decem- ber, 1866, and in numerous other declarations, he lias questioned and substantially denied the legality of the Congress of the United States. In the trial of Judge Chase it was admitted by the respondent " that for a judge to utter seditious sentiments with intent to excite sedi- tion wouldbeanimpeachableoffense." (Dane's Abridgment, vol. 7, chap. 222.) And this not under the act known as the "sedition act;" for that had been previously repealed; but upon the general principle that an officer whose duty it is to administer the law has no right to use language calculated to stir up resistance to the law. If this be true of a judge, with stronger reason it is true of the President of the United States, that he should set an exam- ple of respect for all the departments of the Governmentand of reverence ibrand obedience to the laws of the land. The speeches made by the President at Cleve- land and St. Louis, which have been proved and are found in the record of the case, con- tain numerous passages similar in character to that extracted from his speech of the 18th of August, 1866, and all calculated and designed to impair the just authorityof Congress. While these declarations have not been made the basis of substantive charges in the articles of impeachment, thgy furnish evidence of the un- lawful intent of the President in his utterance of the 18th of August, and also of the fact that that utterance was not due to any temporary excitement or transient purpose which passed away with the occasion which had called it forth. It was a declaration made in accord- ance with a fixed design, which had obtained such entire control of his nature that whenever he addressed public assemblies he gave expres- sion to it. The evidence which has been sub- mitted by the respondent bearing upon the tenth article indicates a purpose, in argument, to excuse the President upon the ground that the remarks of the people stimulated, irritated, and excited him to such an extent that he was not wholly responsible for what he said. If this were true, it would exhibit great weakness of character ; but as a matter of fact it is not true. The taunts and gibes of the people served only to draw from him those declarations which were in accord with the purposes of his life. This is shown by the fact that all his political declarations made at Cleveland and at St. Louis, though made under excitement, are in entire harmony with the declarations made by him in the East Room of the Executive Mansion, on the 18th of August, 1866, when he was free' from any disturbing influence, and expressed himself with all the reserve of which his nature is capable. The blasphemous utterances at St. Louis cannot be aggravated by me, nor can they be extenuated by anything which counsel for the respondent can offer. They exhibit the char- acter of the speaker. Upon these facts thus proved and the views presented we demand the conviction of the respondent of the misdemeanors charged in the tenth article. Article eleven sets forth that the object of the President in most of the offenses alleged in the preceding articles was to prevent the execution of the act passed March 2, 1867, entitled, "An act-for the more efficient government of the rebel States." It is well known, officially and pub- licly, that on the 29th of May, 1865, Mr. Johnson issued a proclamation for the reorganization of the government of North Carolina, and that that proclamation was followed by other proc- lamations, issued during the next four months, for the government of the several States which had been engaged in the rebellion. Upon the death of Mr. Lincoln Mr. Johnson entered upon the office of President in a manner which indicated that, in his judgment, he had been long destined to fill the place, and that the powers of the office were to be exercised by him without regard to the other departments of the Government. In his proclamation of the'29th of May, and in all the proclamations relating to the same subject, he had assumed that in his office as President he was the "United States," for the purpose of deciding whether, under the Constitution, the govern- ment of a State was republican in form or not; although by a decision of the Supreme Court it is declared that this power is specially vested in the two Houses of Congress. In these proc- lamations he assumed, without authority of law, to appoint, and he did appoint, Governors of the several States thus organized. In fine, between the 29th of May, 1865, and the assem- bling of Congress in December of that year, he exercised sovereign power over the terri- tory and people of the eleven States that had been engaged in the rebellion. On the assembling of Congress in the month of December he informed the Senate and House of Representatives that the Union was restored, and that nothing remained for the two Houses but severally to accept as Senators and Repre- sentatives such loyal men as had been elected by the Legislatures and people of the several States. Congress refused to ratify or to recog- nize those proceedings upon the part of the President as legal or proper proceedings, and from that time forward he has been engaged in various projects for the purpose of preventing the reconstruction of the Union on any other plan than that which he had inaugurated. In the execution of this design he attempted to deprive Congress of the confidence of the peo- ple of the country ; hence it was that, among other things, on the 18th day of August, 1866, at the city of Washington, as set forth in the tenth and eleventh articles, he did in a public speech declare and affirm in substance that the 'Ihirty-Ninth Congress of the United States was not a Congress authorized by the Consti- tution to exercise legislative power under the same ; but, on the contrary, was a Congress of only a part of the States. In the further execution of his purpose to prevent the reconstruction of the Union upon any plan except that which he had inaugurated, he attempted to prevent the ratification by the several States of the amendment to the Con- stitution known as article fourteen. By the Constitution the President has no power to participate in amendments or in propositions for amendments thereto ; yet, availing himself of the circumstance of the passage of a resolu- tion by the House of Representatives on the 13th day of June, 1866, requesting the Presi-' dent to submitto the Legislatures of the several States the said additional article to the Con- stitution of the United States, he sent to the Senate and House of Representatives a message in writing, in which he says : "Even in ordinary times any_ question of amend- ing the Constitution must be justly regarded as of paramount importance. This importance is at the present time enhanced by the fact that the joint resolution was not submitted by the two Houses for the approval of the President, and that of the thirty- six States which constitute the Union eleven are excluded from representation in either House of Congress, although, with the single exception of Texas, they have been entirely restored to all their functions as States, in conformity with the organic law of the land, and have appeared at the national Capitol by Senators and Representatives who have applied for and h.ive been refused admission to the vacant seats. Nor have the sovereign peoplo of tho nation been afforded an opportunity of expressing their views upon the important questions which tho amendment involves. Grave doubts, therefore, may naturally and justly arise as to whether the action of Congress is in harmony with the sentiments of tho people, and whether State Legislatures, elected without reference to such an issue, should.be called upon by Congress to decide respecting the ratification of the proposed amendment." He also says : "A proper appreciation of the letter and spirit of tho Constitution, as well as of the interests of na- tional order, harmony, and union, and a due defer- ence for an enlightened public judgment, may at this timo well suggest a doubt whether any amend- ment to the Constitution ought to be proposed by Congress and pressed upon the Legislatures of tho several States for final decision until after the ad- mission of such loyal Senators and Representatives of the now unrepresented States as have been, or as may hereafter be, chosen in conformity with thcCon- stitution and laws of tho United States." This message was an extra-official proceed- ing, inasmuch as his agency in the work of amending the Constitution is not required ; and it was also a very clear indication of an opinion on his part that, inasmuch as the eleven States were not represented," the Congress of the United States had no power to act in the matter of amending the Constitution. The proposed amendment to the Constitu- tion contained provisions which were to be made the basis of reconstruction. The laws subsequently passed by Congress recognize the amendmentas essential to the welfare and safety of the Union. It is alleged in the eleventh arti- cle that one of the purposes of the President in the various unlawful acts • charged in the several articles of impeachment, and proved against him, was to prevent the execution of the act entitled "An act for the more efficient government of the rebel States," passed March 2, 1867. In the nature of the case it has not been easy to obtain testimony upon this point, nor upon any other point touching the miscon- duct and crimes of the President. Hisdeclara- tionsand his usurpationsof power have rendered alarge portion of the officeholders of the country for the time being subservient to his purposes : they have been ready to conceal and reluctant to communicate any evidence calculated to im- plicate the President. His communications with the South have been generally, and it may be said almost exclusively, with the men who had participated in the rebellion, and who are now hoping for final success through his aid. They have looked to him as their leader, by whose efforts and agency in the office of President of the United States they were either to accomplish the objects for which the war was undertaken, or at least to secure a rcsto- 284 SUPPLEMENT TO ration to the Union under such circumstances that, as a section of the country and an in- terest in the country, they should possess and exercise that power which the slaveholders of the South possessed and exercised previous to the rebellion. These men have been bound to him by the strong bonds of hope, fear, and ambition. The corruptions of the public ser- vice have enriched multitudes of his adherents and quickened and strengthened the passion of avarice in multitudes more. These classes of men, possessing wealth and influence in many cases, have exerted their power to close up every avenue of information. Hence the efforts of the committees of the House of Representatives and the efforts of the Man- agers to ascertain the truth and to procure tes- timony which they were satisfied was in exist- ence have been defeated often by the devices and machinations of those who in the North and in the South are supposed to be allied to the President. There can, however, be no doubt- that the President in every way open to him used his personal and official influence •to defeat the ratification of the constitutional amendment. Evidence of such disposition and of the fact also is found in the telegraphic correspondence of January, 1867, between Mr. Johnson and Lewis E. Parsons, who had been previously appointed Governor of Alabama by the President. It is as follows : Montgomery, Alabama, January 17, 1867. Legislature in session. Efforts ranking to recon- sider vote on constitutional amendment. B-eport from Washington says it is probable an enabling act will pass. Wo do not know what to believe. I find nothing here. LEWIS E. PAKSONS, Exchange Hotel. His Excellency Andrew Johnson, President. United. States Military Telegraph, Executive Office, Washington, D. C January 17, 1867. What possible good can be obtained by reconsider- ing the constitutional amendment ? I know of none in the present posture of affairs; and I do not believe the peoplo of the whole country will sustain any set of individuals in attempts to change the whole char- acter of our Government by enabling acts or other- wise. I believe, on the contrary, that they will event- ually uphold ali who have patriotism and courage to stand by the Constitution and who place their confi- dence in the people. There should be no faltering on the part of those who are honest in their determina- tion to sustain 'the several coordinate departments of the Government in accordance with its original design. ANDREW JOHNSON. Hon. Lewis E. Parsons, Montgomery, Alabama. This correspondence shows his fixed purpose to defeat the congressional plan of reconstruc- tion. Pursuing the subject further it is easy to discover and comprehend his entire scheme of criminal ambition. It was no less than this : to obtain command of the War Department and of the Army, and by their combined power to control the elections of 1868 in the ten States not yet restored to the Union. The congres- sional plan of reconstruction contained as an essential condition the extension of the elective franchise to all loyal male citizens, and the exclusion from the franchise of a portion of those who had been most active in originating and carrying on the rebellion. The purpose of Mr. Johnson was to limit the elective fran- chise to white male citizens, and to permit the exercise of it by all such persons without re- gard to their disloyalty. If he could secure the control of the War Department and df the Army it would be entirely practicable, and not only practicable but easy, for him in the coming elections quietly to inaugurate a policy through- out the ten States by which the former rebels, strengthened by the support of the Executive here, and by the military forces distributed over the South, would exclude from the polls every colored man and permit the exercise of the elective franchise by every white rebel. By these means he would be able to control the entire vote of the ten rebel States ; by the same means, or indeed by the force of the facts, he would be able to secure the election of dele- gates to the Democratic national convention favorable to his own nomination to the Presi- dency. The vote of these ten States in the convention, considered in connection with the fact that he and his friends could assure dele- gates from other sections of the country that, if he were nominated, he could control beyond peradventure the electoral vote of these ten States, would have secured his nomination. This he confidently anticipated. Nor, indeed, can there be much doubt that this scheme would have been successful ; but it was apparent that there was no possibility of his obtaining the control of the War Department and of the Army unless he could disregard and break down the act regulating the tenure of certain civil offices, passed March 2, 1807. If, how- ever, he could annul or disregard or set aside the provisions of that act, then the way was open for the successful consummation of his plan. With thousands and tens of thousands of office holders, scattered all over the coun- try, depending upon him for their offices and for the emoluments of their offices, he would be able to exert a large influence, if not abso- lutely to control the nominations of the Demo- cratic party in every State of the Union. With the War Department in his hands, and the ten- ure-of-office act broken down, he would be able to remove General Grant, General Sher- man, General Sheridan, or any other officer, high or low, who, in his opinion, or upon the facts, might be an obstacle in his way. With the Army thus corrupted and humiliated, its trusted leaders either driven from the service or sent into exile in distant parts of the coun- try, he would be able to wield the power of that vast organization for his own personal advantage. Under these circumstances it was not prob- able merely, but it was as certain as anything in the future could be, that he would secure, first, the nomination of the Democratic party in the national nominating convention ; .and secondly, that he would secure the electoral votes of these ten States. This being done, he had only to obtain enough votes from the States now represented in Congress to make a ma- jority of electoral votes, and he would defy the House and Senate should they attempt to reject the votes of the ten States, and this whether those States had been previously restored to the Union or not. In a contest with the two Houses he and his friends and supporters, including the War Department, the Treasury Department, and the Army and Navy, would insist that he had been duly elected President, and by the support of the War Department, the Treasury Department, the Army, and the Navy, he would have been inaugurated on the 4th- of March next President of the United States for four years. That the President was and is hostile to Mr. Stanton, and that he desired his removal from office, there is no doubt ; but he has not as- sumed the responsibility which now rests upon him, he has not incurred the hazard of his present position, for the mere purpose of grat- ifying his personal feelings toward Mr. Stan- ton. He disregarded the tenure- of-office act; he first suspended and then removed Mr. Stan- ton from the office of Secretary for the De- partment of War; he defied the judgment of and the advice and authority of the Senate ; he incurred the risk of impeachment by the House of Representatives, and trial and con- viction by this tribunal, under the influence of an ambition unlimited and unscrupulous, which dares anything and everything necessary to its gratification. For the purpose of defeating the congressional plan of reconstruction he has advised and encouraged the people of the Southin the idea that he would restore them to their former privileges and power ; that he would establish a white man's Government; that he would exclude the negroes from all participation in political affairs ; and, finally, that he would accomplish in their behalf what they had sought by rebellion, but by rebellion had failed to secure. Hence it is through his agency and by his influence the South has been given up to disorder, rapine, and blood- shed ; hence it is that since the surrender of Lee and Johnston thousands of loyal men, black and wfyite, have been murdered in cold blood or subjected to cruelties and tortures such as in modern times have been perpetrated only by savage nations and in remote parts of the world ; hence it is that twelve million peo- ple are without law, without order, unprotected in their industry or their rights ; hence it is that ten States are without government and unrepresented in Congress; hence it is that the people of the North are even now uncer- tain whether the rebellion, vanquished in the field, is not finally to be victorious in the coun- cils and in the Cabinet of the country ; hence it is that the loyal people of the entire Union look upon Andrew Johnson as their worst enemy ; hence it is that those who participated in the rebellion, and still hope that its power may once more be established in the country, look upon Andrew Johnson as their best friend, and as the last and chief supporter of the views which they entertain. The House of Representatives has brought this respondent to your bar for trial, for con- viction, and for judgment; but the House of Representatives, as a branch of the legislative department of the Government, has no special interest in these proceedings. It entered upon them with great reluctance, after laborious and continued investigation, and only upon a con- viction that the interests of the country were in peril, and that there was no way of relief except through the exercise of the highest constitutional power vested in that body. We do not appeal to this tribunal because any spe- cial right of the House of Representatives has been infringed, or because the just powers of or the existence of the House are in danger, except as that body must always participate in the good or ill fortune of the country. They have brought this respondent to your bar, and here demand his conviction in the belief, as the result of much investigation, of mucb^de- liberation, that the interests^-ef tfeisr country are no longer safe in his Hands. But the House of Representatives, repre- senting the people, ef the country, may very properly appeal to this tribunal, constituted, as it is, exclusively of Senators representing the different States of this Union, to maintain the constitutional powers of the Senate. To be sure, nothing can injuriously affect the powers and the rights of the Senate which does not affect injuriously the rights of the House of Representatives, and of the people of the whole country ; but it may be said with great truth that this contest is first for the preservation of the constitutional powers of this branch of the Government. By your votes and action, in concurrence with the House of Representatives, the bill "regulating the tenure of certain civil offices" was passed and became a law, and this notwithstanding the objections of the President thereto and his argument against its passage. On a subse- quent occasion, when you considered the sus- pension of Mr. Stanton and the message of the President, in which, by argument and by state- ments, he assailed the law in question, you asserted its validity and its constitutionality 'by refusing to concur in the suspension of Mr. Stanton. On a more recent occasion, when he attempted to remove Mr. Stanton from office, you, by solemn resolution, declared that his action therein was contrary to the laws and to the Constitution of the country. From the beginning of the Government this body has participated under the Constitution and by virtue of the Constitution in all matters pertainingto appointments to office ; and, by the universal practice of the country, as well be- fore the passage of the tenure-of-office act as since, no removal of any officer whose appoint- ment was by and with the advice and consent of the Senate, has been made during a session of the Senate, with your knowledge and sanc- tion, except by the nomination of a successor, whose nomination was confirmed by and with the advice and consent of the Senate. Mi. Johnson, in presence of this uniform constitu- tional practice of three quarters of a century and against the express provisions of the ten- ure-of-office act, made in this particular in entire harmony with that practico, asserts now, THE CONGRESSIONAL GLOBE. 285 absolutely, the unqualified power to remove every officer in the country without the advice or consent of the Senate. Never in the history of any free government has there been so base, so gross, so unjustifi- able an attempt upon the part ofran executive, whether emperor, king, or President, to destroy the just authority of another department of the Government. . The House of Representatives has not been indifferent to thi3 assault; it has not been unmindful of the danger to which you have been exposed ; it has seen, what you must ad- mit, that without its agency and support you were powerless to resist these aggressions, or to thwart, in any degree, the purposes of this usurper. In the exercise of their constitutional power of impeachment they have brought him to your bar ; they have laid before you the evi- dence showing conclusively the nature, the extent, and the depth of his guilt. You hold this great power in trust, not for yourselves merely, but for all your successors in these high places, and for all the people of this coun- try. You cannot fail to discharge your duty ; that duty is clear. On the one hand it is your duty to protect, to preserve, and to defend your own constitutional rights, but it is equally your duty to preserve the laws and institutions of the country. It is your duty to protect and defend the Constitution of the United States, and the rights of the people under it ; it is your duty to preserve and to transmit unimpaired to your successors in these places all the consti- tutional rights and privileges guarantied to this body by the form of government under which we live. On the other hand, it is your duty to try and convict the accused, if guilty, and to pronounce judgment upon the respond- ent, that all his successors, and all men who aspire to the office of President in time to come, may understand that the House of Rep- resentatives and the Senate will demand the strictest observance of the Constitution ; that they will hold every man in the presidential office responsible for a rigid performance of his public duties. Nothing, literally nothing, can be said in defense of this respondent. Upon his own admissions he is guilty, in substance, of the gravest charges contained in the articles of impeachment exhibited against him by the House of Representatives. In his personal conduct and character he presents no quality or attribute which enlists the sympathy or the regard of men. The exhibition which he made in this 1 Chamber on the 4th of March, 1865, by which the nation was humiliated and repub- lican institutions disgraced, in the presence of the representatives of the civilized nations of the earth, is a truthful exhibition of his char- acter. His violent, denunciatory, blasphemous declarations made to the people on various occasions, and proved by the testimony sub- mitted to the Senate, illustrate other qualities of his nature. His cold indifference to the desolation, disorder, and crimes in the ten States of the South exhibit yet other and darker features. Can any one entertain the opinion that Mr. Johnson is not guilty of such crimes as justify his removal from office and his disqualifica- tion to hold any office of trust or profit under the Government of the United States? Wil- liam Blount, Senator of the United States, was impeached by the House of Representa- tives and declared guilty of a high misdemeanor, and though not tried by the Senate the Senate did, nevertheless, expel him from his seat by a vote of 25 to 1, and, in the resolution of ex- pulsion, declared that he had been guilty of a high misdemeanor. The crime of William Blount was that he wrote a letter and partici- pated in conversations, from which it appeared probable that he was engaged in an immature scheme to alienate the Indians of the South- west from the President and the Congress of the United States; and also, incidentally, to disturb the friendly relations between this Government and the Governments of Spain and Great Britain. This, at most, was but an arrangement, never consummated into any overt act, by which he contemplated, under possible circumstances which never occurred, that he would violate the neutrality laws of the United States. Andrew Johnson is guilty, upon the proof in part and upon his own admissions, of having intentionally violated a public law, of usurping and exercising powers not exercised nor even asserted by any of his predecessors in office. Judge Pickering, of the district court of New Hampshire, was impeached by the House of Representatives, convicted by the Senate, and removed from office, for the crime of hav- ing appeared upon the bench in a state of in- toxication. I need not draw any parallel between Judge Pickering and this respondent. Judge Prescott, of Massachusetts, was im- peached and removed from office for receiving illegal fees in his office to the amount of $10 70 only. Judge Prescott belonged to one of the oldest and most eminent families of the State, and he was himself a distinguished lawyer. But such was the respect of the Senate of that State for the law, and such the public opinion that it was the duty of magistrates to obey the law, that they did not hesitate to convict him and remove him from office. The Earl of Macclesfield was impeached and convicted for the misuse of his official powers ip regard to trust funds, an offense in itself of a grave character, but a trivial crime compared with the open, wanton, and defiant violation of law by a Chief Magistrate whose highest duty is the execution of the laws._ If the charges preferred against Warren Hastings had been fully sustained by the testi- mony, he would be regarded in history as an unimportant criminal when compared with the respondent. Warren Hastings, as governor general of Bengal, extended the territory of the British empire, and brought millions of the natives of India under British rule. If he ex- ercised power in India for which there was no authority in British laws or British customs — if in the exercise of that power he acquired wealth for himser? or permitted others to accu- mulate fortunes by ourrages and wrongs per- petrated upon that distant people, he still acted in his public policy in the interest of the Brit- ish empire and in harmony with the ideas and purposes of the British people. Andrew Johnson has disregarded and vio- lated the laws and Constitution of his own country. Under his administration the Gov- ernment has not been strengthened, but weak- ened. Its reputation and influence at home and abroad have been injured and diminished. He has not outraged a distant people bound to us by no ties, but those which result from conquest and the exercise of arbitrary power on our part : but through his violation of the laws and the influence of his evil example upon the men of the South, in whose hearts the purposes and the passions of the war yet linger, he has brought disorder, confusion, and bloodshed to the homes of twelve millions of people, many of whom are of our own blood and all of whom are our countrymen. Ten States of this Union are without law, without security, without safety; public order every- where violated, public justice nowhere re- spected ; and all in consequence of the evil purposes and machinations of the President. Forty millions of people have been rendered anxious and uncertain as to the preservation of public peace and the perpetuity of the insti- tutions of freedom in this country. There are no limits to the consequences of this man's evil example. A member of his Cabinet in your presence avows, proclaims, indeed, that he suspended from office indefi- nitely a faithful public officer who was ap- pointed by your advice and consent; an act which he does not attempt to justify by any law or usage, except what he is pleased to call the law of necessity. Is it strange that in the presence of these examples the ignorant, the vicious, and the criminal are everywhere swift to violate the laws ? Is it strange that the lojal people of the South, most of them poor, dependent, not yet confident of their newly-acquired rights, exercising their just privileges in fear and trembling, should thus be made the victims of the worst passions of men who- have freed themselves from all the restraints of civil government? Under the influence of these examples good men in the South have everything to fear, and bad men have everything to hope. Cains Verres is the great political criminal of history. For two years he was prtetor and the scourge of Sicily. The area of that country does not much exceed ten thousand square miles, and in modern times it has had a popu- lation of about two million souls. The re- spondent at your bar has been the scourge of a country many times the area of Sicily and containing a population six times as great. Verres enriched himself and his friends ; he seized the public paintings and statues and carried them to Rome. But at the end of his brief rule of two years he left Sicily as he had found it; in comparative peace, and in the possession of its industries and its laws. This respondent has not ravaged States nor enriched himself by the plunder of their treasures ; but he has inaugurated and adhered to a policy which has deprived the people of the blessings of peace, of the protection of law, of the just rewards of honest industry. A vast and im- portant portion of the Republic, a portion whose prosperity is essential to the prosperity of the country at large, is prostrate and help- less under the evils which his Administration has brought upon it. When Verres was ar- raigned before his judges at Rome, and the exposure of his crimes began, his counsel aban- doned his cause and the criminal fled from the city. Yet Verres had friends in Sicily, and they erected a gilded statue to his name in the streets of Syracuse. This respondent will look in vain, even in the South, for any testimonials to his virtues or to his public conduct. All classes are oppressed by the private and public calamities which he has brought upon them. They appeal to you for relief. The nation waits in anxiety for the conclusion of these proceed- ings. Forty millions of people, whose interest in public affairs is in the wise and just admin- istration of the laws, look to this tribunal as a sure defense against the encroachments of a criminally-minded Chief Magistrate. Will any one say that the heaviest judgment which you can render is any adequate punish- ment for these crimes? Your office is not punishment, but to secure the safety of the Re- public. But human tribunals are inadequate to punish those criminals who, as rulers or magistrates, by their example, conduct, policy, and crimes, become the scourge of communi- ties and nations. No picture, no power of the imagination can illustrate or conceive the suf- fering of the poor but loyal people of the South. A patriotic, virtuous, law-abiding Chief Magis- trate would have healed the wounds of war, soothed private and public sorrows, protected the weak, encouraged the strong, and lifted from the southern people the burdens which now are greater than they can bear. Travelers and astronomers inform us that in the southern heavens, near the Southern Cross, there is a vast space which the uneducated call the hole in the sky, where the eye of man with the aid of the powers of the telescope has been unable to discover nebulae, or asteroid, or comet, or planet, or star, or sun. In that dreary, cold, dark region of space, which is only known to be less than infinite by the evi- dences of creation elsewhere, the Great Author of celestial mechanism has left the chaos which was in the beginning. If this earth were capable of the sentiments and emotions of jus- tice and virtue, which in human mortal beings are the evidences and the pledge of our divine origin and immortal destiny, it would heave and throe, with the energy of the elemental forces of nature, and project this enemy of two races of men into that vast region, there for- ever to exist in a solitude eternal as life, or as the absence of life, emblematical of, if not really, that " outer darkness" of which the 286 SUPPLEMENT TO Saviour of man spoke in warning to those who are the enemies of themselves, of their race, and of their God. But it is yours to relieve, not to punish. This done and our country is again _ advanced in the intelligent opinion of mankind. In other Governments an unfaithful ruler can be removed only by revolution, vio- lence, or force. The proceeding here is judicial, and according to the forms of law. Your judg- ment will be enforced without the aid of a policeman or a soldier. What other evidence will be needed of the value of republican insti- tutions? What other test of the strength and vigor of our Government ? What other assur- ance that the virtue of the people is equal to any emergency of national life V The contest which the House of Represent- atives carries on at your bar is a contest in defense of the constitutional rights of the Congress of the United States, representing the people of the United States against the arbitrary, unjust, illegal claims of the Execu- tive. This is the old contest of Europe revived in America. England, France, and Spain have each been the theater of this strife. In France and Spain the executive triumphed. In Eng- land the people were victorious. The people of France gradually but slowly regain their rights. But even yet there is no freedom of the press in France ; there is no freedom of the legislative will ; the emperor is supreme. Spain is wholly unregenerated. England alone has a free Parliament and a government of laws emanating from the enfranchised peo- ple.' These laws are everywhere executed, and a sovereign who should willfully interpose any obstacle would be dethroned without de- lay. In England the law is more mighty than the king. In America a President claims to be mightier than the law. This result in England was reached by slow movements, and after a struggle which lasted through many centuries. John Hampden was not the first nor the last of the patriots who resisted executive usurpation, but nothing could have been more inapplicable to the present cir- cumstances than the introduction of his name as an apology for the usurpations of Andrew Johnson. "No man will question John Hampden's patriotism or the propriety of his acts when he brought the question whether ship-money was within the constitution of England before the courts;" but no man will admit that there is any parallel between Andrew Johnson and John Hampden. Andrew Johnson takes the place of Charles I, and seeks to substitute his own will for the laws of the land. In 1G36 John Hampden resisted the demands of an usurping and unprincipled king, as does Edwin M. Stanton to-day resist the claims and de- mands of an unprincipled and usurping Pres- ident. The people of England have successfully resisted executive encroachments upon their rights. Let not their example be lost upon us. We suppressed the rebellion in arms, and we are now to expel it from the executive coun- cils. This done, republican institutions need no further illustration or defense. All things then relating to the national welfare and life are made as secure as can be any future events. The freedom, prosperity, and power of Amer- ica are established. The friends of constitu- tional liberty throughout Europe will hail with joy the assured greatness and glory of the new Republic. Our internal difficulties will rapidly disappear. Peace and prosperity will return to every portion of the country. In a few weeks or months we shall celebrate a restored Union upon the basis of the equal rights of the States, in each of which equality of the people will be recognized and established. This respondent is not to be convicted that these thing3 may come, but justice being done, these things are to come. At your bar the House of Representatives demand justice — justice for the people, justice to the accused. Justice is of God, and it can- not perish. By and through justice conies obe- dience to the law by all magistrates and peo- ple. By and through justice comes the liberty of the law, which is freedom without license. Senators, as far as I am concerned, the case is now in your hands, and it is soon to be closed by my associate. The House of Representa- tives have presented this criminal at your bar with equal confidence in his guilt and in your disposition to administer exact justice between him and the people of the United States. His conviction is the triumph of law, of order,, of justice. I do not contemplate his acquittal — it is impossible. Therefore I do not look beyond. But, Senators, the people of America will never permit an usurping Exec- utive to break down the securities for liberty provided by the Constitution. The cause of the Republic is in your hands. Your verdict of guilty is peace to our beloved country. Mr. JOHNSON. Mr. Chief Justice, I under- stand from the counsel for the President who is next to address the Senate that he would be very much obliged to the Senate if they would take their usual recess now, he being anxious to make a continuing argument. I move, there- fore, that the court take » recess for fifteen minutes. The motion was agreed to ; and at the ex- piration of the recess the ChieF Justice resumed the chair. Hon. THOMAS A. R. NELSON, counsel for the respondent, addressed the Senate, as follows : Mr. Chief Justice and Senators : I have been engaged in the practice of my profession as a lawyer for the last thirty years. I have been concerned in every variety of cause which can be tried under the laws of the State in which I reside. I have, in the course of my somewhat lengthy professional life, argued cases involving life, liberty, property, and char- acter. I have prosecuted and defended every species of criminal cause, from murder in the first degree down to a simple assault. But in rising to address you to-day I feel that all the causes in which I ever was concerned sink into comparative insignificance when compared with this ; and a painful sense of the magnitude of the case in which I am now engaged, and of my inability to meet and to defend it as it should be defended, oppresses me as I rise to address you ; and I would humbly invoke the great Disposer of events to give me a mind to conceive, a heart to feel, and a tongue to ex- press those words which should be properly and fitly expressed on this great occasion. I would humbly invoke that assistance which comes from on high; for when I look at the results which may follow from this trial: when I endeavor to contemplate in imagination how it is to affect our country and the world, I start back, feeling that I am utterly incapable of comprehending its results, and that I cannot look into the future and foretell them. I feel, Senators, that it will be necessary upon this occasion for me to notice many things which, as I suppose, have but little bearing upon the specific articles of impeachment which have been presented. In doing so, to borrow the language of Mr. Wirt upon the trial of Judge Peck, "If we pursue the opening arguments of the honorable Managers more closely than may seem necessary to some of the court, it will be remembered that it would be presump- tuous in us to slight any topic which the learned and honorable Managers may have deemed it important to press on the consideration of the court." It has been charged that the President was " trifling" with the Senate. Scarcely had we entered upon this trial before charges were made against him of seeking, and improperly seeking, to gain time ; to effect an unworthy and improper procrastination. I shall dwell but a moment on that. We supposed that there was no impropriety in our asking at the hands of the Senate a reasonable indulgence to prepare for our defense, when the subject of impeach- ment had been before the House of Repre- sentatives in some form or other for more than a twelvemonth, and when the worthy and able Managers who have been selected to conduct it in this Senate were armed at all points and ready to contest the cause on the one hand, and we, upon the other, were suddenly sum- moned from our professional pursuits ; we, who are not politicians, but lawyers engaged in the practice of our profession, were sum- moned here to measure arms with gentlemen who are skilled in political gladiation and are well posted upon all the subjects that may be involved in this investigation. But it is not merely the complaint as to time and as to trifling with the Senate that it will become my duty to notice. A great many things have been said, Senators, and among the rest an effort has been made to draw " a picture of the President's mind and heart;" he has been stigmatized as a "usurper," as a "traitor to his party," as " disgracing the position held by some of the most illustrious in the land," as "a dangerous person, a crim- inal, but not an ordinary one," as "encour- aging murders, assassinations, and robberies all over the southern States;" and finally, by way of proving that there is one step between the sublime and the ridiculous, he has been charged with being '' a common scold " and a " ribald, scurrilous blasphemer, bandying epi- thets and taunts with a jeering mob." Such are some of the many accusations which have been made here from time to time in the progress of this protracted investigation. Noth- ing or next to nothing has been said in vindi- cation of the President against these charges. It will be my duty, Senators, to pay some attention to them to-day. We have borne it long enough, and I propose before I enter upon the investigation of the articles of im- peachment to pay some attention to these accusations which have been heaped upon us •almost every day from the commencement of the trial and which have hitherto passed un- answered and unnoticed on the side of the President of the United States. If it be true, as alleged, that the President is guilty of all these things, or if he has been guilty of one tithe of the offenses which have been imputed to him in the opening argument, and which have been iterated and reiterated in the argument of to-day, then I am willing to confess that he is— "A monster of such frightful mien As to be hated needs but to be seen." I am willing to admit that if he is guilty of any of the charges which have been made against him he is not only worthy of the cen- sure of this Senate, but a whip should be put in every honest hand to lash him around the world as a man unworthy of the notice of gen- tlemen and unfit for the association of any of his race ; he should be pointed at everywhere and shown as a monster ; he should be ban- ished from society ; his very name should be- come a word to frighten children with through- out the land from one end of it to the other, so that when one should meet him his sight would cause — "Each particular hair to stand on end Like quilts upon the fretful porcupine." If he be a man such as is represented on the other side, then, Senators, we agree that neither I, nor any of those who are associated with me, can defend him. But who is Andrew Johnson ? Who is the man that you have upon trial now, and in re- gard to whom the gaze not of little Delaware, but of the whole Union and of the civilized world is directed at the present moment? Who is Andrew Johnson ? That is a question which a few years ago many of those whom I now address could have answered, and could have answere"d with pleasure and delight and joy. Who is Andrew Johnson ? Go to the town of Greenville but a few short years ago, a little village situate in the mountains of East Tennessee, and you will see a poor boy enter- ing that village a stranger, without friends, without acquaintances, following an humble mechanical pursuit, scarcely able to read, unable to write, but yet industrious in his call- "TV THE CONGRESSIONAL GLOBE. 287 ing, honest and faithful in bis dealings, and hav- ing a mind such as the God of heaven had im- planted within him, and which it was intended and designed should be called into exercise and displayed before the American people. He goes there, and I may say, almost in the language of Mr. Clay in reference to the State of Kentucky, he enters the State of Tennessee an orphan, poor, penniless, without the favor of the great; " but scarce had he set his foot upon her generous soil when he was seized and embraced with parental fondness, caressed as though he had been a favorite child, and patronized with liberal and unbounded munifi- cence." In the first instance he applies to the people of his county to honor him by giv- ing him a seat in the lower branch of the State Legislature. That wish is granted. Next he is sent to the State Senate ; then to the House of Representatives of the American Congress ; then, by the voice of the people in two hard fought contests, he was elected Governor of the State ; then he was sent to the Senate of tbe United States, and his whole career thus far was a career in which he had been honored and respected by the people, and it has only teen within some two or three years that charges have been preferred against him such as those which are presented now. Never since the days of Warren Hastings, ay, never since the days of Sir Walter Raleigh, has any man been stigmatized with more severe reprobation than the President of the United States. All the powers of invective which the able and ingenious Managers can command have been brought into requisition to fire your hearts and to prejudice your minds against him. A perfect storm has been raised around him. All the elements have been agitated. "Far along, From peak to peak the rattling crags among Leaps the live thunder 1 Not from one lone cloud. But every mountain now hath found a. tongue, And Jura answers through her misty shroud, Back to the joyous Alps, who call to her aloud 1 " The storm is playing around him; the pitiless rain is beating upon him ; the lightnings are flashing around him; but I have the pleasure ♦ to state to you, Senators, to-day, and I hope that my voice will reach the whole country, that in the midst of it' all he still stands firm, serene, unbent, unbroken, unsubdued, unawed, unterrified, hurling no words of threat or men- ace at the Senate of the United States, threat- ening no civil war to deluge his country with blood ; but feeling a proud consciousness of his own integrity, appealing to heaven to wit- ness the purity of his motives in his public ad- ministration, and calling upon you, Senators, in the name of the living God, to whom you have made an appeal, that you will do equal and im- partial justice in this case according to the Con- stitution and the laws, to pronounce him inno- cent of the offenses which have been charged against him. Who is Andrew Johnson ? Are there not Senators here who are well acquainted with him ? Are there not men here whose minds go back to the stirring times of 1860 and 1861, when treason was rife in this Capitol, when men's faces turned pale, when dispatch after dispatch was sent from this Chamber and from the House of Representatives to the people of the southern States to " (ire the southern heart," to prepare the southern mind for that revolution which agitated our country and which cost the lives and the treasure of the nation to such an alarming extent? Where was Andrew Johnson then? Standing here, almost within ten feet of the place in which I stand now, solitary and alone, in this magnifi- cent Chamber, when "bloody treason flour- ished over us," his voice was heard arousing the nation. Some of you heard it. I only heard its echoes as they rolled along from one end of the land to the other, to excite and arouse the patriotism of our common country. Yes, he stood " solitary and alone," the only member from the South who was disposed to battle against treason then ; and he now is called a traitor himself! He who has periled his life in a thousand forms to pnt down trea- son ; he who has been reckless of danger ; he who has periled his life, his fortune, and his sacred honor to save this land from destruction and ruin — henowis stigmatized and denounced as a traitor; and from one end of the country to the other that accusation is made, and it rings and rings again until the echoes even come back to the Capitol, and are intended, if possible, to influence the judgment of Senators 1 Who is Andrew Johnson? Not a man who is disposed to betray any trust that had been reposed in him ; but a man who, whenever he has been before the people who know him best, has upon all occasions been sustained — sustained by His neighbors, sustained by his State, sustained by his country — and who on all occasions has shown himself worthy of the high confidence and trust that have been re- posed in him. I know, Senators, that when I state these things in your presence and in your hearing they may excite a. smile of derision among some of those who differ with him in opinion. I know that an unfortunate difference of opin- ion exists between the Congress of the United States and the President, and I feel, in at- tempting to address you in his behalf upon some of the very questions about which this difference exists, that, in the language of Mr. Adams, I am walking in the midst of burning plowshares ; but I pray Almighty God to direct me and to lead me aright, for I believe in His presence this day that my distinguished client is innocent of the charges tliat are pre- ferred against him; and I hope that God's blessing, that has followed him thus far in life, will follow him now, and that he wifl at the end of this trial come out of the fiery furnace through which he is passing without the smell of fire upon his garments. Who is Andrew Johnson ? Why, Senators, when the battle of Manassas, as we called it in the South, or of Bull Run, as I believe it is called in the North, was fought, when our troops were defeated, when they rushed in hot haste and awful confusion to this capital, when men's faces turned pale and their hearts grew faint, where was Andrew Johnson then, this traitor, this usurper, this tyrant? Again he was heard in his place in the Senate, and he rises with a resolution in his hand, undis- mayed, unfaltering, believing in the justice of the great cause in which the country was en- gaged, and once more his voice was heard proclaiming to the whole land and to all the world the objects and purposes of the war and the determination of the Congress of the Uni- ted States, in the fear of God and in the con- fidence of the justice of their cause, to pursue it to an honorable and a safe conclusion. Then it was that his voice was heard, and again the plaudits of hundreds and thousands shook the very walls of this Capitol in his favor, as they had done on former occasion? when he stood here and vindicated the American Constitu- tion and proclaimed the determination of the Government to uphold and to maintain it. One word more, Senators, in regard to the President of the United States. It is admitted upon all hands that we are addressing gentle- men of the highest intelligence and position in the land, many of whom, as has been repeat- edly said, are judges and lawyers well skilled in the law. What has been your rule of con- duct either as judges or lawyers when you came to pronounce judgment upon the conduct of a fellow-man? You endeavored to place yourselves in his position; you endeavored to look at things from his stand-point ; you en- deavored to judge of them as he judged of them ; and when you thus act you are enabled understanding^ to determine whether the par- ticular act in question be right or wrong. I only ask you here to-day, if it be possible for you to do so, to place yourselves in Andrew Johnson's position, and to look from his stand- point, and judge in the manner in which he judged. . I know, Senators, that this is asking a great deal at your hands. I know it is ask- ing a great deal of men who have fixed opinions upon subjects like these to review their own opinions and to consider them, especially where they are different from those of the man whose conduct they are endeavoring to judge. But I feel, when I am addressing you here to-day, that I am not addressing a Senate such as the honorable Managers spoke of the other day ; I am not addressing mere politicians. I feel that I am addressing judges — the most eminent judges known to the laws and the Constitution of our country — judges sitting upon the great- est trial known to the Constitution ; judges who have prescribed an oath for themselves ; and while I know, while we all feel, the power of passion and of prejudice and preconceived opinion, and know the difficulty of laying them aside, yet, Senators, I would humbly and re- spectfully invoke you this day, in the name of that God to whom you have appealed, to make one honest, faithful effort to banish from your mind, as far as possible, all precon- ceived opinions ; to sink the politician in the judge ; to rise to the dignity and majesty of this great occasion ; and, though it be like cutting off a right arm or plucking out a right eye, I ask you, Senators, to rise to that super- human, God-like effort which shall enable you to banish these opinions and to do that equal and impartial justice which you have sworn to do. Some people think that this cannot be done. It is impossible to close our eyes against what is taking place out of doors. It is impossible not to know that the newspapers have dis- cussed this case. The press of this country is now the most tremendous power that be- longs to it, a power greater than the power of Presidents and Senators and Representatives, the mightiest power known to the land. It is impossible for us to close our eyes against the fact that this case has been discussed and dis- cussed over and over again in every form by those who favor impeachment and by those who are opposed to it, and all manner of opinions have been expressed. Some have said that they can calculate just exactly what is to be the result of this trial. Senators, I have made no such calculation. I declare to you here most solemnly, I declare to this coun- try most solemnly, that I make no such cal- culation. No such unworthy investigation has for a moment agitated my mind. No, Sena- tors ; I would not do a thing so unworthy of the lofty position which you hold in the land. I say to yon, and I say to the whole country, that whatever others may think, whatever they may believe, I for one do not believe that impeach- ment is a foregone conclusion. If I thought so, humble as I am, and exalted as you are, I would scorn the idea of addressing myself to this honorable court; but I do not believe it. No, sirs, no; nothing but a result which I trust in God never will happen will bring me to the conclusion that any such state of things exists with honorable men, the rep- resentatives of the sovereignty of the States ; for, Senators, we all know enough about the history of our country to know that it requires no ordinary talent, no ordinary character, no ordinary experience to get to this Chamber in which you are acting as the representatives of the States. It requires standing, character, age, talent, to enable men to come here and to occupy the positions that you now occupy ; and, for the honor of our common country, for the honor of American Senators, for the honor of our noble ancestors who framed this tribu- nal with a view to do equal and impartial justice, I cannot for one moment credit such things. I would say now, as I have seen it said on some few occasions, I would say now as ever to the American people, place no con- fidence in these things; believe that the Sena- tors of the American nation are all honest and honorable men ; and in every time of trial and of danger, when the billows of excitement roll high, when human passions are aroused and agitated in the highest degree, look to the Sen- ate ; look with hope and with confidence ; look to those men who are in some degree elevated above dependence upon mere popular clamor and hasty and temporary excitement ; look to 288 SUPPLEMENT TO the Senate ; look to it with confidence, and thus looking your hope shall not be in vain. Thus it is, Senators, that I shall endeavor to address you on this occasion. It is with this hope and with this confidence that I ap- proach the consideration of some of the'other topics which have been raised in this cause. I asked you a moment ago, if possible, to place yoursefyes.in the condition of the President of the United States, to divest yourselves, so far as you can, of all preconceived opinions — and I admitted that it is an almost superhuman effort to do so—and to place yourselves, as far as you can, in his position, to look at his acts in the manner in which he looked at them. And now trace the history of his life in another view, his life as a politician. Who is the President of the United States? A Democrat of the straightest of strict eon- . s.tructionists ; an old Jacksonian, Jeffersonian Democrat ; a man who proclaimed his Democ- racy in the very letter of acceptance which he wrote at the time when he was nominated for the Vice Presidency ; a man who told you and who told the whole country in that letter that he was a Democrat, and who endeavored to arouse the old Democracy to what he called the pure and correct Democracy of the coun- try to rally around the national flag, and to sustain the country in the great conflict through which it was passing. Now, when you look at this, and when you consider all the public speeches that he ever made, examine the rec- ords of Congress, examine your debates every- where, look to any question in which an in- quiry into the Constitution of the United States was ever involved, where do you find the Pres- ident? You find him under all circumstances a strict constructionist of the Constitution, adhering with tenacity to the principles of that party faith in which he had been trained and educated ; and when you look at the great dif- ference of opinion that exists between hjm and yourselves and him and the House of Repre- sentatives upon the great questions that are agitating the country, while you may differ from him in opinion, while you do differ with him in opinion, yet, Senators, I ask you if he may not honestly entertain an opinion dif- ferent from yours? Do accord to him some- thing of those motives that you accord to every other human being upon a trial ; accord to him at least what the laws of the land grant to the meanest criminal who ever was arraigned at the bar of justice ; accord to him the benefit of the legal presumption that he shall be pre- sumed innocent until the contrary appears. Look at his motives, look at the manner in which he has acted ; and if there has been, as there is, an unfortunate difference of opinion between him and the Congress of the United States upongreat constitutional questions, why, Senators, attribute that difference, if you please, to the training, to the education, to the habits of thought of his whole life ; but do not, in the absence of proof, attribute it to unworthy, base, mean, dishonorable motives, as you are asked to do on the other side. I beg leave, Senators, to remind you of the resolution to which I adverted a few moments ago : for, in the view which I take of this case, that resolution furnishes a key to the whole conduct of the President in the controversy out of which this unfortunate prosecution has arisen. How was that resolution of 1861 ? It is familiar to you all : "Resolved, That the present deplorable civil war lias been forced upon the country by the disunionists of the southern States now in revolt against the con- stitutional Government and inarms around the capi- tal; that in this national emergency Congress, ban- ishing all feeling of mere passioa or resentment, will recollect only its duty to the whole country; that this war is not prosecuted on our part in any spirit of oppression, nor for any purpose of conquest or sub- jugation, nor for the purpose of overthrowing the rights or established institutions of those States, but to defend and maintain thesupremacy of the Consti- tution and all laws made in pursuance thereof, and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired: that as soon as those objects are accomplished the war ought to oease." There is the chart that has guided the Presi- dent of the United States in the discharge of his official duty ; there is the platform on which he has stood ; and if he has not viewed it in the light in which others regarded it, still. Sen- ators, we ask you if it is not capable of being regarded in the light in which'he viewed it? If it is, then, as I shall maintain, we deprive this prosecution of all.improper motive. I declare here to you today that in view of all the testi- mony which has been offered on the other side, in view of all that is known to the history of the country, with the exception of one solitary circumstance, the President of the United States has stood up in letter and in spirit to what he believed to be the terms of this resolution which was adopted with something approach- ing unanimity in both Houses of Congress in 1861. In the progress of the war he felt that it was necessary for him to yield the question of slavery so far as he had any influence in the State or section of country in which he resided. He did yield, and he went as far as the farthest to proclaim emancipation in the State over which he had been placed as military gov- ernor ; but in all other respects he has en- deavored to carry out the terms of this resolu- tion, which was introduced by himself in the Senate, and into the other House by the ven- erable Crittenden, known to you all, who now is no more, but whose memory will be cher- ished with veneration and respect so long as America shall have a name. So long as talent and genius and independence and faithfulness and firmness shall be venerated and respected, the name Of that great and good man will be honored in our own and all other lands. Do not misunderstand me, Senators. It is not my purpose to enter to-day upon any dis- cussion of the differences of opinion between the Congress of the United States and the President in regard to the different reconstruc- tion policy which has been pursued by each. I only advert to it for the purpose of showing that there was a" pledge that the dignity, equal- ity, and rights of the States should be pre- served ; and in 1860 and in 1861, when the galleries of this Senate rang with shouts and applause of the multitude, when fair women and brave men were not ashamed to express their admiration for and gratitude to him who is now en trial before you, he advocated a doc trine which was exceedingly obnoxious to the people of the southern States. What was that doctrine? It was that the Congress of the United States had the power to compel obe- dience to the Constitution and laws of the United States. He denounced the doctrine of secession. He denied that any State had the right to withdraw from the Union without the consent of all'the States. He insisted that the whole power of the Government should be brought into requisition to keep those States within the Union. He faithfully jaiaintained his principles dur- ing the war. When the war was over; when Lee surrendered suddenly and unexpectedly; when the Government was cast upon him by an act beyond his control ; when all its responsibil- ities were devolved upon him, aud in the sud- den emergency in which he was called upon to act it was necessary for him to act promptly, to act hastily, to act speedily, so as to bring the state of hostilities to a final termination as soon as possible, Senators, what did he do? There was no time to call Congress together, no.time to assemble the representatives of the nation, for the situation of the country, upon Lee's surrender, demanded immediate and prompt action. What did the President do? According to the testimony of Mr. Stanton himself, which is now known and familiar through all the land, the President of the Uni- ted States undertook to carry out what he be- lieved to be the policy of his lamented prede- cessor. He undertook this in good faith. He retained the Cabinet which Mr. Lincoln left. He manifested no desire to segregate himself from the party by whom he had been elevated to power. He endeavored faithfully to carry out the provisions of the resolution of 1861 to preserve the dignity, equality, and rights of the States, and not to impair them in the slightest degree. And now the question which I put before this Senate and 'before the whole country is this: suppose he committed an error ; suppose he is wrong ; suppose Congress is right; in the name of all that is sacred, I ask can you predicate guilt of any acts like these? In the name of all that is sacred, I ask can any one say that he is a traitor to his principles, or a traitor to the party that elected him ? It is a mere difference of opinion, an unfortunate, a, very unfortunate one, between him and the Congress of the United States; but who can say in the spirit of candor and truth that he was not endeavor- ing and did not in all hia acts strive to carry out what he believed to be the policy of the party by whom he was elevated to power? When he did everything that he thought it was necessary to do ; when, following the exam- ple of Mr. Lincoln in regard to Arkansas and Louisiana, and certainly following the spirit of Mr. Lincoln's proclamations and efforts, he sought to restore the other southern States to the relations which they had maintained to our common Union before the civil war commenced, I ask who can say that there was guilt in all this ? You may differ with him in opinion ; you may think he was wrong ; I have no doubt that a large majority of the Senators whom I address do conscientiously and honestly believe that he was wrong; but still, Senators, does the mere fact that you think he was wrong dis- robe this case of that part of our defense which rests upon the honesty and the integrity of lie judgment which he exercised? Ill the name of all that is sensible I ask, is a judge to be tried because he mistakes the law in a charge to a jury? I need not turn to authorities; I need not read law books to satisfy the honor- able Senate that every man acting in a judicial capacity, from a simple justice of the peace up to the Chief Justice of the highest court in the United States, is protected by the laws of the land in the faithful and honest exercise of the judgment that is conferred upon him. You have heard a great deal, Senators, about the doctrine of implied powers. I may have occasion to speak of that again in another part , of my observations to you ; but now let me put one plain, simple question to this Senate and to the whole country : can any man put his finger upon any sentence or clause in the Constitution of our country which says who is to restore the relations of peace in the land when they have been disturbed by a civil war? You have the power to suppress rebellion ; but the veiy moment you go beyond the language of the Constitution you launch out into implied powers. The very moment you depart from the language of the Constitution you are obliged to resort to the doctrine of implication, and the very moment you admit the doctrine of impli- cation then 1 maintain that that doctrine is just as applicable to the President of the United States as it is to any Senator or to any Representative. I know to whom I am addressing myself; I know the intelligence and the high respecta- bility of this great tribunal ; but I put. the question with fearless confidence to every Sen- ator, where do you get the power in the Con- stitution to pass your reconstruction laws? Where do you get it unless you get it under the power to suppress insurrection ? Where do you get it unless you obtain it under those general powers by which the war was carried on, and under which it was declared that a Government has an inherent right to protect itself against dissolution ? Where do you get the power else- where ? In the name of law and order and justice that you have inscribed upon the tablet over the door that enters into this magnificent Chamber, and which I trust will be inscribed in characters of living light upon the mind and the heart of every Senator I address to: day, I ask you, Senators, where do you get this power if you do not get it by implication? i'he Constitution is silent. It does not say that Congress shall pass laws to reconstruct States that have been in rebellion. It does not say that the President of the United States shall do this. You are obliged to resort to im- THE CONGRESSIONAL GLOBE. 289 jnication. He is the Commander-in-Chief of your armies. The country was in a state of war ; peace had not been declared when these measures of his were undertaken. It was necessary to protect the country against dis- banded armies, against the ravage and the ruin that were likely to follow in the wake of thousands upon thousands of soldiers who were discharged and turned loose upon the country. I repeat, there was no time to falter, no time to hesitate, no time in whioft.even to ask the judgment and the aid of the Congress of the Ijnited States. He was forced to act ; and if, in the construction of the powers and duties that belong to him as President of the United States, as Commander-in-Chief of your Army, as the principal executive officer in the land, your President mistook his powers, if he miscon- ceived them, if he fell into the error into which you may say that Mr. Lincoln, his lamented predecessor, had fallen, I ask you, gentlemen, is there to be no charity, no toleration, no license, no liberality for a difference of opin- ion ? Have we gone back two hundred years in the history of the world to the period when, as you all know, it was customary, especially in regard to religious opinions, to burn at the stake for differences in opinion ; or do we live in the midst of the light of the nineteenth cen- tury, when the Gospel is spread abroad, when a liberal aud enlightened spirit characterizes \ the age, when the human mind has been devel- oped in such form and to such extent as the world never witnessed before? I ask you, Sen- ators, is he to be judged in the spirit of the dark and the Middle Ages ; are you to go back to the history of the midnight of mankind in Order to find a rale for his conduct; or areyou to judge him with a liberal, enlightened, patri- otic judgment, and give his conduct the weight to which it is entitled? I maintain on this great subject that the President in his position as the chief executive officer of the land was entitled to form a judg- ment; that he was compelled to form it; and fhat even if his actions were erroneous and con- trary to the Constitution, if he was governed ♦by honest and correct and upright motives, his honesty and integrity of motive in this court or any court under the heavens is a shield and a protection to him against all the darts that may be leveled at him from any quarter, high or low. The servant that knew his master's will and did it not was punished ; but never the servant who did not know his master' swill or who erred, and honestly erred, in the exer- cise of the best judgment and reason he pos- Senators, I maintain that this cursory glance at the history of the country and of the. differ- ence of opinion that exists between Congress and the President is sufficient to show that he was animated by upright and correct motives, and that he ought not to be judged in the spirit in which the honorable Managers ask that he shall be judged ; his acts ought not to be condemned ; but you ought to give him at least the merit of having had reason to act in the manner in which he did act. Without dicussingthe questions, but merely for the purpose of recalling the attention of Senators to certain dates, I beg leave to re- mind you, as I have already done, that, accord- ing to Mr. Stanton's own testimony in another investigation, which has been publish td under the authority of Congress, the President of the United States endeavored to carry out what he believed to be the policy of Mr. Lincoln ; and after referring to some few dates and circum- stances I shall pass from this part of the his- tory of our country without undertaking to dis- cuss the merits of the difference of opinion between Congress and the President, l only allude to it for the purpose of relieving him from the charge of being a usurper, a traitor, a tyrant, a man guilty of every crime known under the heavens ! Mr. Lincoln, in his proclamation of July 8, 1864, stated that' he had failed to approve the first reconstruction bill passed by Congress on the 2d of July, 1864, and had expressed an ' Supplement — 19.. unwillingness to set aside the constitutions of Arkansas and Louisiana. In his proclamation of December 8, 1863, he had invited — mark my language — he had invited the people of the rebellious States to form new constitutions, to be adopted by not less than one tenth of the voters who had voted at the presidential elec- tion of 1860, each of whom should take the oath of amnesty prescribed by his proclama- tion. President Johnson, as you know, when he came intopower, recognized Governor Peir- point' s government, in Virginia, a government, if I am correctly informed as to its history, actually embracing only a few counties of the State of Virginia during the war ; but which the Congress of the United States thought, and rightfully thought, was sufficiently well organized to" justify it in consenting to the formation of a new State, now known as the State of West Virginia. This is the correct statement of the case, if I am not misinformed as to the facts of history ; and, Senators, you will pardon me if I should fall into errors on these subjects, because, as I have stated to you, I am no politician. It is like carrying coals to Newcastle or telling a thrice told tale lor any of us to argue these questions before Senators and Representatives who are much more familiar with them than we are, and if I should fall into any errors I beg you, to believe that they are errors of igno- rance and not of design. I know the great superiority that the gentlemen who are Man- agers in this cause have over us in their knowl- edge of these matters, because each member of the House of Representatives and every Sen- ator in reference to these subjects may say of himself "parsj'ug;" you have all been con- cerned in them and they are much more familiar to you than they are to me. Still, Senators, I beg leave to remind you that President Johnson recognized the Peirpoint government. That government was recognized as the State gov- ernment of Virginia under an election held by the people of that State, and under that elec- tion West Virginia was formed into a new State, andiall this was done, if I am not mis- informed, without any act of reconstruction being passed by the Congress of the United States. When President Johnson came into power, and saw that the Congress of the United States had recognized the existence of the State of Virginia and had formed West Virginia into a new State within her jurisdiction, was he not justified in the belief that by recognizing the Peirpointgovernment he was pursuing not only the policy of Mr. Lincoln and the party that elevated him to power, but the policy of the Senate and House of Representatives of the United States? Surely so; and if he com- mitted an error it was an error of the head and not an error of the heart, and it ought not to be made a matter of railing accusation against him. The President when he came into office was guided by these precedents, and, if you allow me to coin a word, by the unapproved act of 1864, (Mr. Davis's bill,) which recognized the right of the President to appoint military -gov- ernors. Now, without dwelling upon that point I simply recall to your recollection the fact that by a proclamation he recognized Francis H. Peirpoint as Governor of Virginia on the 9th of May, 1865. Between the 29th of May and the 13th of July, 1865, he ap- pointed provisional governors for North Car- olina, Mississippi, Georgia. Texas, Alabama, South Carolina, and Florida. In October, 1865, he sent dispatches to Governor Perry, of South Carolina, andothers, urging theadoption of the anti-slavery amendment. And on the 4th of December', 1865, he communicated his action to Congress, denying that secession had segregated the rebellious States from the Union, and leaving it to each a House to judge of the elections, qualifications, and returns of its own members. Now, Senators, let me pause a moment and ask you the question here, up to that time, up tp the assembling of th