€ C C ffrf Library of The University of North Carolina COLLECTION OF NORTH CAROLINIANA ENDOWED BY JOHN SPRUNT HILL of the Class of 1889 i-JL ^ '• •..''> UNIVERSITY OF N.C. AT CHAPEL HILL 00032195071 This book must not be token from the Librory building. T R I ^L OP ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, BEFORE THE SENATE OF THE UNITED STATES, IMPEACHMENT BY THE HOUSE OF REPRESENTATIVES HIGH CRIMES AND MISDEMEANORS. PUBLISHED BT OBDER OF THE SENATE. TOI.UME I. WASHINGTON: GOVEKNMENT P E I N T I N G OFFICE 1868. In TiiE Senate of the United States, March 23, 1868. Resolved, That three hundred copies of the edition of the report of the impeiichment trial published at the Conj^ressional Priutingf Office be furnished, as the trial progjresses, for the use of the Senate, and that five thousand copies of the entire work, with an index, be printed and bound lor the use of the Senate. April 14, 1868. Resolved, That there be printed for the use of the Senate, at the close of the pending- impeachment trial, five thousand copies of the report thereof, in addition to the number of copies thereof heretofore ordered to be printed. In the House of Representatives, March V.\, 1868. Resolved, That the Congressional Printer be directed to furnish five copies of the trial of impeachment of the President of the United States, in book form, to each member of the House, the next morninf^ after its publication in the Daily Globe, and to print and bind five thousand copies, when completed, for the members of the House. Note by the Editor.— The phonographic report of the trial (from which the present volumes have been made up) was made for the Congressional Globe, by its Senate reporters, Messrs. Richard Sutton, D. F. Murphy, and James T. Murphy. The index was prepared by Mr. Fisher A. Foster. It was necessary to print the work as the trial progressed, and the limited space left for the sketches of the introductory proceedings rendered it necessary to abridge them, and to pub- lish the report of the debate on the right of Senator Wade to sit as a member of the court, in the appendix at the end of the third volume. This appendix also contains a tVw authorities in addition to those composing the brief prepared by Hon. William Lawrence, M. C. from Ohio, and presented by Mr. Manager Butler as a part of his opening argument, which have been furnished by the first-named gentleman. B. P. P. INDEX. INDEX. [The Roman numerals indicate the volnmee.] A. Able, Barton. (See Tcslimo7iy.) Acquiittil on Article XI 11—486,487 II 11—496 III •. 11—497 judgment of, entered II — 498 Adjournment sine die II — 498 ArtuuBsibility of testimony. (See Evidence.) Admissions to the floor, order (in Senate) that, during the trial, no person besides those who have the privilege of the floor, &c., shall be admitted except upon tickets issued by the Sergeant-at-arms — [By Mr. Anthony :] agreed to J — 10 Alta Vela letter 11-144, 262, 28W, 306 remarks on, bv — .Manager Butler ■ 11-262,267,268,281,280,284 Mr. Nelson 11—144,265,266,267,268,280,281,282,283,284,307 Manager Logan l 11 — 268 Answer, application of counsel for forty days to prepare I — 19 discussed by — Manager Bingham I — 20,22 Mr. Curtis 1—20 Mr. Stanbery I — 21 Manager Wilson I — 20 denied 1—24 orders offered fixing day for respondent to file, by — Mr. Edmunds 1—24,3.5 Mr. Drake 1—35 Mr. Trumbull "■. .1— 35 order that respondent file, on or before 23d March — [By Mr. Trumbull.] offered and agreed to I — 35 read and filed I — 37 exhibits accompanying — A, message of President, March 2, 1867, returning with objections tenure-of-office bill I — .53 B, message of President, December 12, 1867, announcing suspension of Secretary Stanton I — 58 C, address to President, by Hon. Reverdy Johnson, August 18, 1866, communicating proceedings of National Union Convention I — 66 Anthony, Henry B., a senator from Rhode Island I — 11 orders by — (in Senate,) that during the trial no persons besides those who have the privilege of the floor, &.C., shall be admitted except upon tickets issued by the Sergeant -at -arms. Agreed to I — 10 that no senator shall speak more than once, nor to exceed fifteen minutes during deliberation on final question, except by leave of Senate, to be had without debate, as provided by Rule xxiii. offered 11—471 tabled, (yeas 28, nays 20) 11—474 that on Wednesday, (May 13,) at 12 o'clock, the Senate shall proceed to vote, without debate, on the several articles, &c.; offered and rejected, (yeas 13, nays 27) II — 476 remarks by 1—16,247,301,370,48.5,490,498,634,700.726,728,738,741 U—13,307, 389, 470, 471,472, 476, 486. Ill— 388 Application of counsel for forty days to prepare answer I — 19 denied 1—24 for thirty days to prepare for trial 1 — 69 denied, (yeas 12, nays 41) .■ ^ — ^~ for three days to prepare proofs I — 367, 369 granted 1 — 371 for adjournment in consequence of illness of Mr. Stanbery I — 533 Argument, right of counsel making motion to open and close, thereon I — 77 final, orders offered to fix the number of speakers on, by — Manager Bingham ." I — '^50 Mr. Frelin^huyseu I — ^51 Mr. Sumner... 1-491,497.532 Ml-. Sherman 1—495,741. U— 6 Mr. Conness - 1—535. 11—5,8 Mr. Doolittle 1—5.36 Mr. Stewart 1—741 Mr. Vickers : 11—3, 4 Mr. Johnson II — 5 Mr. Corbett il— 7 Mr. Henderson II-m! Mr. Trumbull II— 1 1 Mr. Buckalew ' 11—12 Mr. Cameron /-. „ J- 11—12 Mr. Yates 11—12 IV INDEX. Argument, final — Continupc]. order that us many of managers as desire be permitted to file, or address Senate oraljy, the conclusion of oral argument to be by one manager — [By Mr. Trumbull.] offered II— 1 1 adopted, (yeas 28, nuys 20) '.'. .II— U Argument (in the ca^e by — Manager Butler I 37 Mr. Curtis 1—377, 390, 397 JIaiiager Logan II 14 Manager lioutwell 11 07, 84 99 Mr. Nelson II i\g^ 141 Jlr. Groesbeck .- II— 189 Manager Stevens II 019 Manager Williams II 230 249 Mr. Evarts '..'.'. .'.'".'.'.'.'.".11— 209, 284, 308, .3:)6 Mr. .Staubery II— 3:.!t, :{«) Manager Biugham JI— 389, 447 Armstrong, William W. (.See Tcslimony.) Articles of impeachment exhibited by House of Representatives I- 6 vote ou. (See Quescion.) B. Bayard, James A., a senator from Delaware I 11 remarks ou the competency of the Preoiden t /Jro tempore to sit as a member of the court 111—372 order by — that no senator shall speak more than once, nor to exceed thirty minutes, during deliberations ou final question; ofi'ered and rejected, (yeas 10, nays 34) 11—218 remarks by II— 7, 218 Bingham, Jolin A., of Ohio, a manager, chairman 1 4, 17 motions by — that upon filing replication the trial proceed forthwith ; offered and denied, (yeas 25, nays 26) 1—25 to amend Kule XXI, .so as to allow such of managers and counsel as desire to be heard to speak on final argument I 450 argument by — on application of counsel for forty days to prepare answer I 20,22 for thirty days to prepare for trial I 69, 77,' 78 on motion to fix day for trial to proceed 1—32! 33 ou riglit of managers to close deljate on interlocutory questions 1—77 ou authority of Chief Justice to decide questions of evidence I — 180,181, 183 ou motion in regard to rule limiting argument on final question l-UsO, 5.34 on right of Counsel to reuew examinatiou of a witness recalled by court I 524,525,527 ou admissibility — of Adjutant General Thomas's declarations to Mr. Budeigh, February 21, 1868 1—202,206 to clerks of War Department I 213 of President's letter to General Grant, unaccompanied with enclosures 1—244 of appointment of Edmund Cooper, to be Assistant Secretary of the Treasury I— 2t)2 of President's declarations to Adjutant General Thomas, February 21 1 — 425 prior to March 9 1 430 of que.stiou. Whether General Sherman gave President an opinion, &,c I — 498, 505. .WS of President's message to Senate, February 24 1—540,541,542,543 final, on the case II 3(^9 447 Bl'xigett, Foster. (See Testimony.) IJi.utwell, George S., of Massachu-setts, a manager I 1, 17 argument by — ou application of counsel for thirty days to prepare for trial 1—78 on authority of Chief Justice to decide questions of evidence I— 181, 184 on admissibility — of telegrams relating to the reconstruction of Alabama 1—274 of extriicts from records of Navy Department 1—567 final, on the case H 67, 84,99 remarks ou the case of the removal of Timothy Pickering 1—367 on motion relating to the number of speakers on final argument 1 — 495 Brief of anthiiriiies upon the law of impeachable crimes and misdemeanors— [By Hon. 'William Law- rence, M. C, of Ohio] 1—123. UI— ,355 Buckalew, Charles K. , a senator from Pennsylvania I— 1 1 remarks ou the competency of the President ;jro tempore to Sit as a member of the court Ill— 383, 385 order by — that the conclusion of the oral argument be by one manager, as provided in Rule XXI; offered and agreed to II ig prescribing form of final f|uestiou ; offered II — 178 that the views of Chief Justice ou the form of putting final question be entered on the journal; offered and agreed to II 48O remarks by I— 451,' 728, 741), 741. 11-5, 12, 478,480, 483, 489 oiii'inn on the case Ill o[q Burleigh, Walter A. (See Tcstimnnu.) Builer, Benjamin F., of Massachusett.s, a manager , I — 117 argument by — on motion to fix a day for trial to proceed I —25 ou moti(m relating to the number of speakers on final argument I — 496 on applicatif)n of counsel lor thirty days to prepare for trial 1—81 opening, on the case 1— S7 on HUthorily of Chief Justice to decide j a member of the court Ill — 363, .366 order by — that a court of impeachment can*ot be legally formed while senators from certain States are excluded : offered and rejected, (yeas. 2 ; uay.s, 49) I — .36 remarks by 1—35,487,587,519,528. 11—249,282,469,482,485 opinion on the case Ill — 156 Dear, Joseph A. (See Testimony.) Declarations. {Sni:: Evidence ; Testimony.) Dixon, James, a senator from Connecticut I — 11 remarks Oil the competency of the President pro tempore to sit as a member of the court III — 388, 389, 390, 391, 392, 393, 394, 395, 396 Documents. (See Evidence.) Doolittle, James II., a senator from Wisconsin I — 34 order by— that on final argument managers and counsel shall alternate, two and two; managers to open and close: offered and indefinitely postponed, (yeas. 34 ; nays, 15) I — .5.36 remarks I— 23 J, 276, 486, 489, -535,436, 611, 632, 740, 741. 11—9,487,492,493 opinion on the case HI — 244 Drake, Charles D., a senator from Missouri I — 11 remarks ou Uie competeucy of the President pro tempore to sit as a member of the court Ill — 380, .389. • 390, 393 orders by — that respondent file answer ou or before 20th March : agreed to, (yeas, 28 ; nays, 20) I — 35 reconsidered, (yeas, 27 ; nays, 23) 1 — 35 that Chief Justice presiding has no privilege of ruling (juestions of law ou the trial, but all such questions should be snliiiiitted to Senate alone : offered and p-jccted, (yeas. 20 ; nays, 30) 1^186 that vot"S upon incidi-iital questions shall be without a divisiiJn, unless reciuested by ono-lifth of members present, or presiding oflicer; (amendment to Rule VII,) ottered I — 230 agreed to I — 277 that any senator shall have permission to tile his written opinion at tho time of giving bis vote : offered 11—476 rejected, (yeas, 12 ; nays, 38) II — 477 that the fi:teen minutes allowed by Rule XXIII shall bo for the whole deliberation ou final question, and not to final (juestiou on each article : offered II — 474 adopted II — 478 remarks by 1—33, 82, M?5, 176, 179, 1 86, 207, 208, 209. 230, 247, 255, 276, S77, 278, 280, 298, 325, 336, 42t), 480, 485, 489, 490, 497, 508, 518, 519, 521), .529, 533, 535, 536, 545, 605, 634. 680, 693, 696 11—84, 188, 472, 474, 476, 477, 484, 487, 491, 497, 498 question by 1—533 INDEX. VII Edmunds, George F., a senator from Vermont I — 17 orders by — that answer be tiled April 1, replication three days thereafter, and the matter stand for trial April 6, 1 SG8 : oifered 1—24 that when the doors shall bo closed for deliberation upon final question, the official reporters ^shall take down debates to be reported in proceedings: oifered IF — 141 not iudttiuitely postponed, (yeas 20, nays HI) 11 — 188 read 11—218,471 tabled, (yeaa 28, nays 20) U— 474 that the standing order of thu Senate, that it will proceed at twelve o'clock noon to-morrow to vote on the articles, be rescinded— [J/ai/ 11, ISCB :J offered .' 11—482 agreed to II — 483 that the Senate now proceed to vote upon the articles, according to the rides of the Senate offered May 16 11—485 agreed to 11 — 48t) remarks by 1-24,85,86,208,211,277,336,390,451,519,534,5:37,566,597,680,741 II— 3, 10, 11, 12, 14, 141, 188, 218, 268, 471, 474, 475, 476, 479, 482, 483, 484, 485, 490, 493 questions by I — 566, 597 opinion on the case .•. Ill — 82 Emory, William H. (See Testimony.) Evarts, William M., of New York, counsel I — B motions by — ^ that after replication filed, counsel be allowed reasonable time to prepare for trial: offered I — 83 for an adjournment in consequence of illness of Mr. Stanbery ; I — 533 argument by — on application for thirty days to prepare for trial I — 68, 71 on authority of Chief Justice to decide questions of evidence I — 184 on right of counsel to renew examination of a witness recalled by court I — 522,524, 526 on admissibility — of Adjutant General Thomas's declarations to Mr. Burleigh, February 21, 1868 1 — 206, 207 to clerks of War Departuient I — 212 of President's letter to General Grant, unaccompanied with enclosures I — 244,245 of appointment of Edmund Cooper to be Assistant Secretary of the Treasury I — ^258, 263, 264 of telegrams relating to the reconstruction of Alabama 1—270,271,272, 273 of Chronicle's report of President's speech in reply to Hon. Reverdy Johnson I — 286,288,289 of Leader's report of President's speech at Cleveland I — 322,323,324 of President's declarations to Adjutant Genera! Thomas, February 21 1 — 424 prior to March 9 1—429, 430 of President's conversations with General Sherman, January 14 1 — 470,4(75 of tender of War Office to General Sherman I — 482, 484 of question Whether General Sherman gave President an opinion, &.c I — .'501,504,506 of affidavit and warrant of arre.st of Lorenzo Thomas I — 510,511,514 of President's message to Senate, February 24 1 — 538,539,542, 543 of extracts from records of Navy Department I— .566, 566 of employment of counsel by President to get up test case I — 598, 603 of President's declaration to Mr. Perrin I — 625, 626, 627 to Secretary Welles 1—668, 672, 673 of advice to President by his cabinet touching constitutionality of tenure-of-office act I — 676,678 touching construction of tenure-of-office act I — 694, 696 of cabinet consultations in regard to obtaining a judicial decision, &c 1—699 of papers in Mr. Blodgett's case 1—722, 723, 724, 725 final, on the case 11—269, 284, 308,. 336 remarks announcing dlness of Mr. Stanbery I — 533, 590, 716 on order in regard to limiting argument on final question I — 497, 534. II — 7, 9 on application for adjournment I — 628, 629,631 Evidence, question, Wliether objections to, should be decided by Chief Justice, or, in first instance, sub- mitted to Senate— [^i/ Mr. Drake] 1—175,179 discussed by — Manager Butler 1—176,177,181,184 Manager Bingham '. 1—180, 181, 183 Manager Boutwell 1—181,184 Mr. Evarts 1—184 presiding officer may rule all questions of, which ruling shall stand as the judgment of the Senate, unless a vote be asked, &c. ; or he may, in first insiance, submit such questions to Senate— [Btf Mr. Henderson] — offered; I — 185: agreed to ; (yeas 31, nays 19) I — 186 sdmi8t#3ility of — declarations of Adjutant General Thomas, February 21, as to the means by which lie intended to obtain possession of War Department : (objected to by Mr. Stanbertj) ' i — ^175,188 discussed by — ManagerButler I— 187, 192, 193; 195,207 Mr. Stanbery 1—188, 192, 193, 195, 206, 207 BI r. Curt is 1—198, ) 99 Manager Bingham I— 2U2, 206 Mr. Evarts I— 266,207 admitted ; (yeas 39, nays 11) 1—209 declarations of Adjutant General Thomas to clerks of War Department, antecedent to his appoint- ment as Secretary of War ad interim, as to his intention when he came in command : (objected to by Mr. Evarts) ♦ 1—212 discussed by — Mr. Evarts P— 21'2 Manager Butler - I — 212 Manager Bingham -.1 — 213 admitted; (yeas 28, nays 22) 1—214 letter of President to General Grant, February 10, 1868, unaccompanied by other letters referred - to therein : (objected to by Mr. Stanbery) ...1—243 VIII INDEX. Evideuce, admissibility of — PresideDi's letter to General Grant— Continue<1. di«cus!4ed by — JI r. Stan biry 1—044, 245 Manager WSson I — 24'1,246 Mr. Evarts I— -'44, '-46 Manager Bingham 1 — 244 Mr. Curtis 1—244 objection not sustained: (yeas 20, nays 29) I — 247 appointment of Edmund Cooper, private secretary of President, as Assistant Secretary of Treasury: (objected to by Mr. Evarts) 1—258 discussed by — Mr. Evarts 1—258,263,264 Manager Butler I— 259, 260, 2a3, 264, 265 Mr. Stanbcry 1—260,261,262,264 Manager Bingliam I — 262 not received ; (yeas 22, nays 27) I — 268 telegrams between President and Levcis E. Parsons, January 17, 1967. in relation to constitutional amenlment and reconstruction of Alabama : (objected to by Mr. Slanbery) I — 270 disi'tissid by — , Manager'lJutlcr 1—270,271,272,273,275,276 M r. Evarts I — 270, 271, 272, 273 Mr. Stanbery , 1—270 Mr. Curtis 1—270, 271, 272 Manager Bout well 1 — 274 admitted ; (yeas 27, nays 17) I — 276 Clirouicle's report of President's speech, August 18, 1866, in reply to Hon. Reverdy Johnson : (objected to by Mr. Evarts) 1—286 discussed by — Mr. Evarts I — 286, 288, 289 Manager Butler 1—286,289,297,301 withdrawn I — 301 Leader's report of President's speech at Cleveland, September 3, 1866 : (objected to by Mr. Evarts).! — 322 discussed by — M r. Evarts 1-3-22, 323, 324 Manager Butler 1—322, 323, 324 adiaitted ; (yeas .35, nays 11) 1—325 declar;itions of President lo Adjutant General Thomas, February 21, 1868, after order for removal of Mr. Stanton, to show an absence of purpose to use force ; (objected to by Manager Butler..! — 420 discussed by — Manager'Butler I — 420, 421, 422 Mr. Stanbery 1—421 Mr. Evarts .' 1—424 Manager Biugham I — 425 admitted; (yeas 42, nays 10,) ...1—426 declarations of President to Adjutant General Thomas prior to 9th March, in respect to use of force to get possession of the War Office ; (objected to by Manager Butler) I — 129 discussed by — M ana ger Butler I — 429, 430 Mr. Evarts I — 429, 430 Manager Bingham 1—430 admit ted 1—430 conversations between President and Lieutenant General Sherman, January 14, 1868, in regard to removal of Mr. Stanton; (objected to by Manager Butler) 1—462 discussed by — Mr. Stanbery I— 462, 403, 46.'), 468, 469, 471, 472 Manager Butler 1-462,463,465,468,469,470,471,472,473,475,479 Mr. Evarts 1—470,475 Manager Wilson 1 — 478,479 not admitted, (yeas 23, nay.>( 28) 1-481 question in regard to creation of department of the Atlantic ; (objected to by Manager Buller) I — 481 discussed by — Manager But ler 1—481, 482 Mr. Stanbery I — 481, 482 not admitted 1—482 tender to fJeneral Sherman of appointment as Secretary of War ad interim; (objected to hy Man- ager Batlcr) ».I— 482 discussed by — Manager Butlor 1—482, 483 Mr. Evarts 1—482 Mr. Stanbery I — 482 admitted I — 183 question, Whetberat the first offer of War Office to General Sherman anything further passed in reference to the tender or acceptance of it ; (objected to by Manager Butler) I — 484 discussed by — JIauagorlJutler 1—484 M r. E vart s 1—484 npt admitted, (yens 23, nays 29) 1-485 President's d^'claration of i)urpose of getting Mr. Stanton's right to office before the courts; (objected to by Manager Butler) I — 485 discussed by — Manager Butler I — 185, 486 Mr. St anbery 1 — 485 Mr. Evarts I— 4f 6 not ailmitted, (3'eas 7, nays 44) I — 487 Presid. Ill's declaration of purpose in tendering General Sherman the appointment of Secretary of War nd interim ; (objected to bv Manager Bingliam) I — 488 not admitted, (y«w 25, nays 27) . ." 1—489 INDEX. ' l!s Evidf'Bce, admissibility of — Continued. Prttidtut's dfcliiratious to General Sbernian in reference to use of threats or force to pet possession of the War Office ; (objected to by Manager Butler) , I — 489 not admitted 1—490 question, Whether General Sherman gave President an opinion 88 to advisability of a change in the War Department ; (objected to by Manager Butler) I — 498 discussed by — Manager Bingham 1—498, 505, SCO Mr. Stanbery 1—499,501,51)1 Manager Butler I— oUO, 501, 504 Mr. Evarts 1—501,504,500 not admitted, (yeas 15. nays 3.)) I — 507 advice to President to appoint .some person in place of Mr. Stanton : (objected toby Manager Butler) . . .1 — .507 not admitted, (yeas 18, nays 32) 1—508 affidavit of Edwin M. Stanton and warrant of arrest of Lorenzo Thomas : (objected to by Manager Butler) - 1—510 discussed by — Manager "Butler 1—510,511,512,513,514 Mr. Evarts 1-510,511,5)4 Mr. Stanbery .' , '. 1—512,513,514 admitted ; (yeas 34, nays 17) I — 515 qnestiou. Whether President stated to General Sherman his purpose in tendering him the office of Secretary of War ad interim: (objected lo by Manager Bingham) I — 517 admitted ; (yeas 26, nays 22) I — 5 18 President's declaration of purpose in tendering General Sherman the office of Secretary of War ad interim : (objected to by Manager Bingham) I — 518 admitted; (yeas 26, nays 25) I — 520 message of President to Senate, February 24, 1868, in response to Senate resolution of February 21, 1808: (objected to by Manager Butler) - 1—536 discus.sed by — Manager Butler 1—538,539,540,541,542,543 Mr. Curtis 1—537, 538 Mr. Evarts 1—538,539,542,543 Manager Bingham I — 540, 541, 542, 543 not admitted I — 544 extracts from records of Navy Department, exhibiting practice in respect to removals : (objected to by Manager Butler) ■ I — 561 discussed by — Manager Butler . 1-561,562,563,564,565,5(10 Mr. C urtis 1—562, 563, 564, 565, 566, 567, 568 Mr. Evarts 1—566,568 Manager Boutwell I — 567 admitted; (yeas 36, nays 15) I — 5ii8 employment of counsel by President to raise question of Mr. Stanton's right to hold the office of Secretary of War against authority of President : (object-ed to by Manager Butler) I — 597 discussed by — Manager Butler 1—597, 600, 6' I4 Mr. Evarta I— ."-98, 603 M r. Curt is 1—602, 604 Manager Wilson I — 602 admitted ; (yeas 29, nays 21) I — 605 acts toward getting out Aairas • o/yiis in the case of Lorenzo Thomas: (objected to by Manager Butler)! — 608 admitted ; (yeas 27, nays 23) 1-609 acts, after failure to obtain habeas corpii$, in pursuance of President's instructions to test the right of Mr. Stanton to continue in office : (objected to by Manager Butler) I — 610 admitted ; (yeas 27, nays 23) I — 612 declarations of President to Mr. Perrin, February 21. 1868, in reference to removal of Mr. Stanton, and nomination of a successor : (objected to by Manager Butler) 1 — 625 discussed by — Manager Butler I — 625, 627 Mr. Evarts 1—625,626,627 Manager Wilson I — 626 not admitted; (yeas 9, nays 37) I — 628 President's declarations to Secretary Welle.s, February 21, in relation to removal of Mr. Stanton : (objected to by Manager Butler) I — 667 discussed by — Manager Butler I — 667, 671 Mr. Evarts 1—668, 672, 673 Mr. Curtis 1—669 admitted ; (yeas 26, nays 23) 1—674 advice to President by cabinet touching constitutionality of tenure-of-office act : (objected to by Ma n ager Butler) : I — 676 discussed by Manager Butler ^ 1—676,677,678 Mr. Evarts 1—676,678 Mr. Curtis 1—677,678,689,692 Manager Wilson 1 — 68 1 not admitted; (yeas 20, nays 29) ;■-• I — 693 advice to President by cabinet in regard to construction of tenure-of-office act, and its application to Secretaries appointed by President Lincoln; (objected to by Manager Butler) I — 694 discussed by — Mr. Evarts 1—694.696 Manager Butler 1—694,695 not admitted ; (yeas 22, nays 26) . . .' 1—697 cabinet consultations in regard to obtaining a judicial decision on constitutionality of tenure-of-office act ; (objected to by Manager Butler) 1—698 discussed by — < Manager Butler 1—698,609 Mr. Evarts 1—699 not admitted; (yeas 19, nays 30) 1—700 X INDEX. Evidence, iidinisisibi'lity of — Continued. question, Whether any sntrfrestions were made in cabinet looking to the vacation of any office by force; (obji-cted to by Manager Butler) I — 700 not adraittL-d ; (yeas 18, nay.i V-'fi) I — 701 opinions (.-iven to President by cabinet on question, Whether the Secretaries appointed by President Lincoln were within tlie provisiona of tenure-of-oftice act ; (objected to by ilanager Bingham) .1 — 71.') not admitted ; (yens -'0. nays 26) .- I — 716 answer of Foster Ulodgett to Postmaster General's notice of his suspension from the office of post- master at Augusta, Ua.; (objected to by Mr. Evarts) ,. •. I — 722 discussed bv — Jlr. Kvafts 1—7-22, 72:?, 724, 725 Mauajrer IJutler 1—722, 723, 724. 72.5 not admitted I — 726 nomiuutioiis of Lieutenant Cieneral Sherman, February 13, 18G8, and of Major General George H. Thomas, February 21, 1861 , to be Generals by brevet ; (objected to by Mr. Evans) I — 736 not admitted; (yeas 14, nays 3.)) I — ~'3S Evidence, documentary, for the prosecution — copy of oath of Andrew Johnson, President of the United States, April 15, 1865, with accompapying certiticates -. I — 147 copy of President Lincoln's message to Senate. January 13, 1662, nominating Edwin 51. Stanton to be Secretary of War ." I — 148 copy of Senate resolution in executive session, January 15, 1862, consenting to appointment of Edwin M. Stanton to be Secretary of War 1—148 copy of President's mes.sage to Senate, December 12, 1867. announcing suspension of Edwin M. Stanton from the office of Secretary of War, and designation of General Grant as Secretary of War ad interim I — 148 copy of Senate resolution, January 13, 1868, in response to message of President announcing suspen- sion of Edwin M. Stanton, and non-concurring in such suspension I — 155 copy of Senate order, January 13, 1868, directing Secretary to communicate copy of non-concuriing resolution to President, to Edwin M. Stanton, and to U. S. Grant, Secretary of War nd iiuerim I — 155 copy of Presid. nt's message to Senate, Februaiy 21, 1868, announcing removal of Edwin JI. Stanton from office, and designation of the Adjutant General of the army as Secretary of War ad interim..! — 156 copy of President's order, February 21, 1868, removing Edwin M. Stanton from the ofKce of Secretary of War 1—156 copy of President's letter of authority to Lorenzo Thomas, February 21, 1868, to act as Secretary of War ad interim, and directing him immediately to enter upon duties I — 156 copy of Senate resolution, February 21, 1868, that President has no power to remove the Secretary of War and to designate any other officer to perform duties of that oflice ad interim I — 157 copy of Senate order, February 21, 1868, directing Secretary to communicate copies of foregoing resolution to President, to Secretary of War, and to Adjutant General of the army I — 157 copy of President Lincoln's commission to Edwin M. Stanton as Secretary of War, January 15, 1862.1 — 157 coiBmission of Edmund Cooper as Assistant Secretary of Treasury, November 20, 1867 1 — 163 letter of authority to Edmund Cooper, December 2, 1867, to act as Assistant Secretary of Treasury.. I — 164 copy of General Orders No. 15, March 12, 1868, requiring all orders relating to military operations issued In' Presidcntor Secretary of War to be isstied through General of the army I — 2.37 copy of Brevet Major General W. H. Emory's commission, July 17, 1866 1—239 Spi-cial Orderi* No. 426, August 27, 1867, assigning General Emory to command of department of Washington I — 240 order of President, February 13, 1868, that Brevet Major General Thomas resume duties as Adjutant General 1—240 letter of General Grant, January 24, 1868. requesting to have in writing order given him verbally by President to disregard oi'ders of E. M. Stanton as Secretary of War, &c I — 240 President's ijistructious to General Grant, January 29, lSft8, not to obey orders from War Depart- ment, unless, &c 1—240 letter of President to General Grant, February 10, 1868, in regard to his having vacated the office of Secretary of War ad interim 1 1 — 241 copy of President's letter of authority to Lorenzo Thomas to act as Secretary of AV'ar ad interim...! — 248 copies of order removing Edwin M. Stanton, and letter of authority to General Thomas with indorse- ments thereon, forwanlid by l'i-c-sideut to Secretary of Treasury for his informatioH I — 248,249 copy of General Orders No. 17, March 14, 1867, requiring all orders relating to military operations to be issued through General of the army I — 249 copy of order of General of army to General Thomas to resume duties as Adjutant General I— 25() message of President connnunicatiug report of Secretary of State, showing proceedings under concur- rent resolution of the two houses requesting President to submit to legislatures of States an addi- tional articU^ to the Constituliou I — 278 report of President's speech, August 18, 1866, in reply to Hon. Reverdy Johnson, as sworn to by Francis II. Smith 1—298 report of President's speech, August 18, 1866, revised by William G. Moore, bis secretary I — 301 ut Cleviland, September 3, 1866, in Cleveland Leader ' I — 325 M Cleveland, September 3, 18t)6, by D. C. McEwcn..' 1—328 at Cleveland, Siptember 3, 1866, in Clevtland Her.. Id I— :J33 at St. Louis, Septembers, 18(i6, in Misi-ouri Democrat 1—340 at St. Louis, Septembers, 1866, in St. Louis Times 1—348 forms of various commissions as issued by Presiilent before and after passage of civil-tennro act I — 353 list of removals of heads ol departments at any time by President during session of Senate I — ;J5S list of appointments of heads of departments at any tiiiio by President without advice and consent of Senate and while Senate was in session I — 358 corresiiondeiice between President John Adams and Timothy Pickering, May 1800, relating to re- moval of Mr. Pickering from oflice of Secretary of State I — 362 copy of President John Adams's message. May 12, 1800, nominating John Marshall to be Secretary of State in place of Timothy Pickering removed, and aclion of Senate thereon I — 365 letter from President, August 14, 18(17. nolif'yiug Secretary of Treasury, " in compliance with re- quirements" of teuure-of-oflice act, of suspension of Edwin .M.Stanton I — 364 letter of Secretary of Treasury, August I;"), 1867, notifying heads of bureaus, in compliance with requirements of t^'nure-of-ottice act, of suspension of Kdwin M.Stanton I — 366 executive messages of President communicating infornmuon of suspension of several officers I — 369 communication from Secretary, of Slate, December 19, 1867. reporting to President, in compliance with provisions of teuure-of-oflice act, the suspeubiou of the consul at Brumu, Borneo I — 369 INDEX. XI Evidence docnment.ary, for the proseoutioii — Continued, copy of letter from Adjutiint General Thomas to President, February 21, 1868, reporting delivery of President's coramunicatiou to Edwin M. Stantou removing him from otfico, and accepting appoint- ment of Secretary of War ad interim 1—376 Evidi'uce, documeutarj', for the defence — affidavit of Edwiu M. Stanton, and warrant of arrest of Lorenzo Thomas, February 22, 1868 1 — 515 docket of entries as to disposition of case of United States vs. Lorenzo Thomas I — 5Sl President's nomination of Thomas Ewinpr, sen., to be Secretary of War, February 22, 18G8 1 — 537 copy of Senate proceedings. May 13, 1800, on nomination of John Marshall to be Secretary of State, in place of IMmothy Picl^ering, removed I — 555 copy of President Tyler's order, February 29, 18-14, appointing John Nelson, Attorney General, to discharge duties of Secretary of State ad interim I — 557 copy of Senate resolution, March 6, 1814, confirming nomination of John C. Calhoun as Secretary of State, vice A. P. Upshur 1—558 copy of President Fillmore's order, July 23, 1859, designating Winfliold Scott to act as Secretary of War ad in terim I — 558 copy of Senate resolution, August 15, 1850, confirming nomination of Charles M. Conrad as Secretary of War 1—558 copy of President Buchanan's order, January 10, 1861, appointing Moses Kelley to be Acting Secretary of Interior I — 559 copy of President Lincoln's commission,' March 5, 1861, to Caleb B. Smith as Secretary of Interior ..I — 559 copy of letters of Acting Secretary of Treasury, August 17, 1843, relating to removal of collector and appraiser in Philadelphia I — 560 extracts from records of Navy Department exhibiting practice in respect to removals I — 569 list of civil officers of Navy Department, appointed for four j-ears under act of May 15, 1829, and removable at pleasure, who were removed, their terms not having expired I — 573 copies of documents from State Department, showing practice of government in removal of officers during session of Senate, during recess, and covering all cases of vacancy I — 574,590 copies of documents from Post Office Department, showing removals of postmasters during session of Senate and ad interim appsiutments I — 581 message of President Buchanan, Jnuuary 15, 1861, in answer to Senate resolution respecting vacancy in the office of Secretary of War ■. I — 583 list of persons who discharged duties of cabinet officers, whether by appointment made in recess and those continued by Senate, as well as those acting ad interim, or simply acting I — 585 statement of beginning and ending of each legislative session of Congress from 1789 to 1868 1 — 594 statement of beginning and ending of each special session of Senate Irom 1789 to 1868 1 — 595 copy of President Adams's coiiniission to George Washington, July 4, 1798, constituting him Lieutenant General of the army ' I — 653 tables from Department of Interior, showing removals of -fficers, date, name, office, and whether removal w;is during recess or during session of Senate I 654 list of consular officers appointed during session of Senate where vacaucies existed when appointments were made I — 663 form of nas'y agent's commission I — 705 official action of Post Office Department in removal of Foster Blodgett 1—709 Evidence, documentary, for the prosecution, in rebuttal — Journal of first Congress, 177-J-'7,5, exhibiting report of committee to draft commission to General George Washington I — 718 letter of James Guthrie, Secretary of Treasury, Augu.st 23, 1855, as to practice of government in appointing officers during recess to fill vacancies existing before adjournment I — ^719 copy of indictment in case of Foster Blodgett in district court of United States for southern district of Georgia I — 720 list of the various officers in United States affected by President's claim of right to remove at pleasure and appoint ad interim, their salaries, &c I — 729 Ewiug, Thomas, sen., nomination of, to be Secretary of War 1—508,516,537,555,556 F. Ferry, Orris S., a senator from Connecticut I — 11 orders by — that the hour of meeting be at 11 a. m., and that there be a recess of thirty minutes each day at 2 p. m. : offered and rejected, (yeas 24, nays 26) I — 536 that tabular statements presented by Manager Butler be omitted from published proceedings: offend 1—633 adopted 1—634 remarks by 1-186,187,336,536,602,632,633,701,716. 11—4,495. 111—394 question by I — 602 opinion on the case Ill — 121 Ferrj-, Thomas W. (.See Testimony.) Fessendeu, William P., a senator from Maine I — 11 remarks on the competency of the PreaiAent pro tempore to sit as aniembirof the court. .Ill — 366, 367, 394,401 remarks by 1—176,266,267,268,336,478,479. 11—6,7,195,469,473,483,485 questions by 1—267,268 opinion on the case Ill — 16 Fowler, Joseph S., a senator from Tennessee I — 11 remarks by I — 175, 276. 11—7 opinion on the case Ill — 193 Frelinghuysen, Frederick T., a senator from New Jersey I — H remarks on the competency of the President ji?ro tempore to sit as a member of the court Ill — 380,385 order by — that as many of managers and counsel as shall choose be permitted to speak on final argument, offered and laid over I — 451 discussed I — 491 modified I — 495 tabled, (yeas 38, nays 10) 1—498 remarks by 1—188,451,491,495. 11—13,474 question by 1—188 opinion ou the case m — 208 Xn INDEX. O. Grimes. James W.. a senator from Iowa I — II remarkH on the competency of tht- President pro tempore to sit as a member of the court III — Gt"^, 3i)-i, 401 order by — that ht-reafter the hour of meeting shall be 12 o'clock m. each day, except Sunday : offered 11—99 adopted, (yeas 21, nays 13) II — 141 remarks by 1—17, 78, 179, 298, 315, 6C8, 701, 709. II— €, 8, 13, 99, 217, 268, 322, 360, 469. 4So question by I — 315 opinion on the case UI — 308 Groesbeck, William S. , of Ohio, counsel I — 34 argument, linal, on the case II — 189 H. arlan, James, a senator from Iowa I — 11 opinion on the case Ill — "33 Heuderi»oii. John B., a senator from Missouri I — U orders by — that application for thirty days to prepare for trial be postponed until after replication filed : offered and not a.sroed to, (yeas 25. nays 28) , I — 81 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 question to a vote in the first instance, (amendment to Rule VII :) offered 1—185 agreed to, (yeas 31, nays 19) I — 186 that, subject to Rule XXI, all managers not delivering oral arguments may file written arguments before April 24, and counsel notmakingoralargumentsmay file written arguments before April 27: offered II— 8 remarks by 1—81, 185, 247, 265, 266, 450, 488, 529, 530, 699. II— 8, 9, 10, 11, 336, Am, 491, 494 questions by I— 265, 529. t;L»9 opinion on the case ." lU — 295 Hendri-ks, Thomas A., a senator from Indiana I — U remarks on the competency of the President />ro tempore to sit as a member of the court Ill — 3t)(), 364, 392, 399, 401 order by — that trial proceed with all convenient despatch : amendment offered and agreed to I — 86 prescribing form of final question : offered II — l^; 8 remarks by 1—86, 18C, 231, 565, 633. 11—13, 282, 283, 473, 474, 478, 483, 484, 487, 488, 489 opinion on the case Ill — 95 Hour of meeting, order fixing, at 11 a. m. — [By Mr. Coiiness.] offered 1—631 adopted, (yeas 29, nays 14) 1—633 ordi r fixing, at 12 o'clock m. each day, except Sunday — [By Mr. Grimes. \ offered 11—99 adopted, (yeas 21, nays 13) II — 141 Howard, Jacob M. , a senator from Michigan I — 1 1 remarks on the competency of the President pro tempore to sit as a member of the court Ill — 361, 367, 382, 383, 388, 389, 390, 392, 393, 401 orders by — (in Senate.) that the message of the House, relating to the impeachment of Andrew Johnson, bo referred to a select commit te of seven, to cocisider and report thereon; agreed to I — 5 (in Senate.) that the Senate will take proper action on the message of the House in relation to the impeachment of Andrew Johnson : reported and agreed to I — 6 (in Senate,) that at 1 o'clock to-morrow ulteruoon, the Senate will proceed to consider the impeach- ment of Andrew Johnson, &c. : agreed to March 4 I — 9 that a summons do issue to Andrew Johnson, returnable on Friday, March 13, at 1 o'clock p. m. : adopted I— 16 that no senator shall speak more than once, nor to exceed 15 minutes on one question, during final deliberations : offered and rejected, i^yvus 19, nays 30) II — 218 remarks by- .1—5, 9, 12, 16, 17, 31, '36, 69. 77, 78. 83, 160, 180, 188, 214, 23.5, 265, 276, 321, 33.5, 346, 367, 370, 451, 486, 497. 514, 530, 5ti6, 606, 612, 673, 680, 693, 716, 738. H— 5, 10, 14, 218, 219, 282, 389, 446, 472, 48.":, 108 questions by 1—276, 530, 566, 680 opinion on the case UI — :i\. Howe, Timothy O., a senator from Wisconsin I — 1 1 remarks on the competencj' of the President pro tempore to sit as n member of the court Ill — .380 remarks by 1—36, 490, 508, 520, 533, 608, 611, 740. 11—12, 282, 283, 475 opinion on ihe case HI — 58 Hudson, William N. (See Testimony.) I. Impeachable crimes, definition of 1—88, 123, 147,476. 11—086. Ill— .3.55 Impeachment of Andrew Johnson, President of the United States — resolution (in House) providing for the, [By Mr. Comide, i!"«6. 21, 1868:] referred T — I reported I — 1 adopted, (yeas 1 26, nays 47) 1— -3 Committee (in House) to comronnicate to Seuato its action directing an — ordered I — 2 appointed I — 3 appear at bar of Senate I — 5 report to House 1 — 3 Committee (in House) to prepare articles of — ordered I — 2 appointed 1—3 report of 1—3, 4, 6 INDEX. XIII Impeachment of Andrew Johnson— Continued, order (in House) limiting dct)ate, aud directing proceediugH when articles of, are reported to House — adopted, (yeas lOti, nays 37) 1—3 managers elected and Senate notified I — 1 direeted to carrj- articles to Senate I — 4 House informed that Senate is ready to receive I — t House in Committee of the Whole to attend I — 4 appear at bar of the Senate with articles I — 6 demand that the Senate take process, &c I — 16 •BTticles of I — 6 rules of procedure on the trial of I — 6, 13 answer of respondent I — :37 replication I — 8 i opening arguments I — 67, 377 evidence 1 — 147, 4 1 .5 arguments II — 14-447 final vote U— 486, 487, 496, 497 opinions Ill J. Johnson, Andrew, President of the United States — articles of impeachment I — 6 summons issued to I — 1 6 returned .«- I — 18 called by proclamation I — 18 appearance entered and counsel named I — 19 forty days asked to prepare answer 1 — 19 answer to articles - -- I — 37 oath of office, April 15,1865 t— 147 suspension of Edwin M. Stanton, Secretary of War, and designation of General Grant Secretary ad interim communicated to Senate December 12, 1867 I— 148 Senate's non-coucurrenco in, communicated I — 155 removal of Edwin M. Stanton, Secretary of War, and designation of Lorenzo Thomas Secretary ad interim, February 21, 1868 1—156, 248 Senate's denial of power to remove aud appoint communicated I — 157, 158 appointment of Edmund Cooper Assistant Secretary of Treasury I — 163, 164 order that Adjutant General Thomas resume his duties I — 240 instructions to General Grant not to obey orders from War Department, unless, &c I — 240 letter to General Grant in regard to his having vacated the office of Secretary ad interim, I — 241 telegram to Governor Parsons I — 272 message commuuicatiug report relating to amendment of the Constitution I — ^278 reports of speech August 18, 1866, in reply to Hon. lleverdy Johnson I — 298,301 at Cleveland, Septembers, 1866 1—325,328,333 at St. Louis, September 8, 1866 1—340, 348 notification to Secretary of Treasury, August 14, 1867, of suspension of Mr. Stanton I — 364 conversation with Geueral Emory I — ^233, 236 with -General Wallace 1—253, 256 with Mr. Wood 1—372 with M r. Blodgett 1—375 wi,h Adjutaut General Thomas I— 417, 418, 426f 427, 428, 430, 437, 438,439, 4.52, 453 with Lieutenant General Sherman I — 461, 481,483 with Mr. Cox I— 597, 605. (509, 6 1 3 with Mr. Jlerrick 1—617,623 with Sir. Perrin 1—623, 624 with Secretary Welles 1—664,674,675 tender of War Office to Lieutenant General Sherman 1—461, 483, 485, 517, 518, 521, .528, 529 nomination of Mr. Ewing Secretary of AVar, February 22, 1868 1—508, 516, .537, 5.55, 5*6 instructions to test Lorenzo Thomas's right to office I — 60.5, 6ii9, 620 acquittal on article XI 11—486, 487 II 11—496 III 11—497 Johnson, Reverdy, a senator from Maryland I — U remarks on the competency of the President pro tempore to sit as a member of the court. Ill — 361, 366, 369, 390, 392, 401 orders by — that trial proceed at the expiration of 10 days, unless for causes shown to the contrary : offered. . . I — 83 considered I — 84 that .Senate commence the trial 2d f.'f April : offered I — 85 that two of managers be permitted to 61e printed arguments, &c. : amendment offered and adopted, II — 5 remarks by 1—18, 33, 78, 82, 83, 84, 85, 147, 154, 160, 161, 176, 206. 208, 309, 236, 237, 247, 265, 270, 298, 312, 325, 36g, 365, 368, 370, 372, 397, 452, 486, 487, 495, 5U7, 515, 517, 5!8, 5!9, 520. 521, 522. 523, 524, 528, .529, .532, 534, 537, 562, 563, 564, 566, 568, 573, 583, 5b'J, 590, 612. 620, 621, 626, 644, 654, 661, 669, 675, 676, 680, 692, 709, 711, 714, 716, 717, 7l8, 721, 722, 736, 739, 740, 74 1. II— 5, 6, 13, 118, 166, 189, 218, 262, 281, 282, 283, 306, 389, 469, 475, 479, 483. 484, 485, 487, 490, 498. questions by 1-206,265,507,3*7,680 opinion on the case Ill- -50 Jones, J. W. See Testimony. Judgment of acquittal entered II — ^98 K. Karsner, George W. (See Testimony.) Kuapp, George. (See Testimony.) Lawrence, William, a representative from Ohio- brief of authorities u;jou the law of impeachable crimes, by I — 1 23. Ill — 355 XrV INDEX. Lep;i-')ative businoss. (Spp Practice.) Logan, John A., of lUinoiK, a nmnager I 4^ 17 argument by — on application of counsel for thirty days to prepare for trial 1 69 linnl. on the case 11 14 reinai kti on the Alta Vela letter 1I_ 268 M. ManiipcrK on the part of the House elected, and Senate notified 1—4 directed to carry articles to Senate J 4 House informed that Senate is ready to receive 1 4 iIoU(:i' in Committee of the Whole to attend 1_4 appear at bar of Senate with articles I 6 demaad that the Senate take process. &c T 16 McCreery, Thomas C, a senator from Kentucky I 1 1 motion by n 4;,^ McDonald, William J. (See Testimony.) McEweu, Daniel C. (See Testimony.) Sleigs, R. J. (See Testimony.) Merrick, IJichard T. (See Testimony.) ?.Ioore, William G. (See Trstim/jvy.) Moorhead, James K. (See Tcstiiiuiny.) Morgan, Edwin U., a senator from New York I u Morrill', Justin S., a senator from Vermont 1 n order b,y — that Senate meet on Monday next (May 11) at 11 a. m , for deliberation, and on Tuesday at 12 ra. proceed to vote without debate on the several articles — each senator to be permitted to tile his written opinion within two days after the vote : offered 11— 47f> agreed to 1 1 473 remarks by 1—390. U— 249, 476, 478 opinion on the case .^ HI jutj Morrill, Lot M., a senator from Maiue I 1 [ remarks on the competency of the President pro tempore io iii as a member of the court Ill— :it;4, 394 order by — that 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 : oflfered .11 476 remarks by 1—185,443. 11—470,476,493,494,49.5 opinion on the case j H i-jg Morton, Oliver P., a senator from Indiana •. . I— il remarks on the competency of the President pro tempore to sit as a member of the court Ill— 367 387 remarks by 1—24,86,674. 11—219,465 N. Nei.son, Thomas A. R., of Tennessee, counsel 1 — 19 argument by — on motion to fix a day for trial to proceed 1 2S on motion to tix the number and order of speakers on final argument 1—534. 1 1—9 tinal, on the case II )18 141 remarks on the Alta Vela lettef 11—144, 265, 266, 267, 268, 280, 28lV282, 283, l.'84i 307 Norton. Daniel S., a senator from Minnesota I U Nye, Jiunes W., a senator from Nevada I 11 O. Oath administered to Chief Justice I— 11 to senators \ \\ 10 ^7 34 () Mr. Morrill, of Maine '.''.'.'.'.'.'.'...'.'.'.. .■^. Ill 12ii Mr. Morrill, of Vermont .'.'.'.'..".'.".'.'...".'.'.'..'.'.!' !.!!!!!.'.! 1 1 1— 136 Mr. l'atter^on, of New Hampshire Ill— 3U9 Mr. I'oraeroy Ill— .'MO I\Ir. Slieriijiin , HI .3 Mr. Stewart '...'.'..'.'.'.'.'.'.'.'.'.'..'.'....'...'.. .....Ml 1 52 INDEX. XV Opinion, filed bv — Mr. Sumner Ill— ^47 Mr r ipton «• 1 1 (— 1 8!^ Mr. Trumbull : . .111—319 Mr. Van Winkle .% Ill— 147 Mr. Vickers .'..111—116 Mr. Williams : Ill— ,'147 Mr. Wilson HI— JH Mr. Yates 111—102 P. Patterson, James W., a senator from New Hampshire I — 17 opinion on the case HI — 309 Patterson, David T., a senator from Tennessee I — 11 remarks by ..— I — 160 Perrin, Edwin O. (See Testimony.) Pomeroy, Samuel C, a senator from Kansas I — 11 remarks on the competency of the President pro tempore to sit as a^member of the court HI — 379, 390, 35>4, 401 order by — (in Senate,) that the notice to Chief Justice to meet the Senate In the trial and request his attend- ance be delivered by a committee of three, &c. ; agreed to I — 10 remarks by 1—10,451. nTT4,359, 490 opinion on the case , .111—340 Practice. (See Rules.) right of counsel making motion to open and close argument thereon :■.. I — 77 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, aud not to each person severally '..J. — 207,208 it is not in order to call up business transacted iu legislative session , I— ^01 objections to putting question to witness by a member of the court must come from the court itself ~.. I— 507,519 but after question is asked, it is csmpetent for managers to state objections to ita being answbred I — 519 it is competent for Senate to recall any witness j..l — 516, 52i if managers desire to cross-examine tUey must croi-s-examine before dismissing witness 1 — 531 an application for an order of Senate to furnish a statement from its records can only be addressed to Senate iu legislative session ^ 1 — 589 the general rules of the Senate in its legislative session govern proceedings of the court, so far as ap- plicable ,-...J,-..^51,532 President. (See Johnson, Andrew.) President pro tempore of the Senate — question, Whether it is competent for the, to take the oath and become thereby a part of the courts— [By Mr. Hendricks] ■ I1I.-360 discussed by — Mr. Anthony ., HI— 3?5 Mr. Bayard , HI— 372 Mr. Buckalew HI— 333, ."iS.^ Mr. Conness 111—367,395 Mr. Davis 111—363,366 Mr. Dixon 111—388,389,390,391,392,393,394,395,396 Mr. Drake 111—380,389,390,393 Mr. Ferry 111-^94 Mr. Fessendeo HI— 366, 367, 394; 401 Mr. Frelinghuysen .- 111—380,385 Mr. Grimes 111-388,394,401 Mr. Hendricks 111-360,364,392,399,401 Mr. Howard 111-361,367,382,383,388,389,390,392,393,401 Mr. Howe 111—380 Mr. Johnson Ill— 361, 366, 369, 390, .392, 401 Mr. Morrill, of Maine 111-364,394 Mr. Morton 111—367,387 Mr. Pomeroy 111—379,390,394,401 Mr. Sherman HI— 360, 371, 391, 392, 401 Mr. Stewart HI— 395 Mr. Sumner HI — 375 Mr. Thayer HI— 381 Mr. WilUama IH— 365, 366 withdrawn ; HI— 400 Question, final, order that when doors shall be closed for deliberation upon, the official reporters shall take down debates, to be reported in proceedings — [By Mr. Edmunds.] offered ' 11—14; read 11—188,218,471 tabled, (yeas 28, nays 20) '. .' 11—474 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 11—189 called up 11—474, 476 order, that the Senate meet on Monday next (May 11) at II a. m., for deliberation on, and on Tues- day, at 12 m., proceed to vote without debate on the several articles, &c. — [By Mr. Morrill, of Vermont. ] offered 11—476 agreed to ) II — 478 orders offered prescribing form of, by — Mr. Buckalew H— 478 JUr. Conkling 11—473 XTI INDEX. Qaovtion, final — Continued. orjfis offered prei»cribing form of, bv — Mr. Conms8 ." 11—473 Jlr. Hendricks U— 478 Mr. Sumner 11—189,219,478 views of Chief Justice on form of putting • 11—480 order that the views of Chief Justice be entered on the journol — [By Mr. Buckalcw.] oflVred and agreed to 11—480 order that, be put as proposed by presidiug ofiBcer, and each senator rise and answer "Guilty" or "Not guilty" only — \ By Mr. Sumner.] offered and agreed to II — 481 order, that the standing order of the Senate that it will proceed to vote on the articles at 12 o'clock 111. to-morrow be rescinded. [By Mr. Edmunds.] — offered May 11,1868 11—482 agreed to II — 483 order, that the Senate now proceed to vote upon the articles, according to the ruleB «f the Senate — [By Mr. Edmunds.] offered May IG 11—485 a-reed to : 11—486 order that, shall be taken on eleventh article first, and thereafter on the other ten Bucces^^vely as they stand — [By Mr. H'Miams.] agreed to, (yeas ^4, nays 19) IIh-484, 485 titken on — Article XI: That he attempted to prevent the execution of the tenurc-of-office act by unlawfully devising means to prevent Mr. Stanton fromresumiug the functions of his office, and to prevent the execution of the clause in the appropriation act of 1607 requiring that all orders should pass through the General of the army, and the reconstruction acts of March 5, J8G7; (yeas 35, navs 19) 11-^86, 487 order that, be now taken on remaining articles — [By Mr. Conklhig.] offered and rejected, (yeas 2fi, nays 28) II — 492 that the several orders heretofore adopted as to order of voting on, be rescinded — [ Uy Mr. IVilUams.] otfered... 11—490,491 agreed to 11^-495 taken on — Article II : That he issued a letter of authority to Lorenzo Thomas to act as Secretary of War ad interim, with intent to violate the Constitution and tlw tenure-of-ofiice act ; (yeas 35, nays 19) . . .II — 496 ttjkeu on — Article III : That he appointed Lorenzo Thomas to be Secretary of War ad i7iterim, with intent to violate the Coustitution, (yeas 35, nays 19.) II — 497 Questions. (See Praciico.) R. Ram.sey , Ale-xander, a senator from Minnesota I — 1 1 remarks by I — ;.'76 Kantlall, Alexander W. (See Testimony.) Replication, rea4 of telegrams relating to the recoustructiou of Alabama I — 270, 275 of President's declarations to Adjutant General Thomas, February 21 1--421 of conversations between President and Gen'l Sherman, January 12 . . -I— 462, 463, 465, 468, 469, 471, 472 of question respecting department of the Atlantic I — 481 , 482 of tender of War office to General Sherman J — 4H2 of President's purpose to get the question before the courts I — 485 of question. Whether General Sherman formed and gave the President an opinion, &c. .-i — 499, 501, 504 of afiSdavit and warrant of arrest of Lorenzo Thomas I — 512, 513, 514 on motion to remove limit to number ef speakers on final argument I — 495 on right of counsel to renew examination of a witness recalled by court I — 524 final, on the ease II — 359, 360 Stanton, Edwin M., Secretary of War — , nomination of I — 148 confirmation of I — 148 commission of I — 1 57 suspension of, communicated to Senate I — 148 Senate's non-concurrence in I — 155 removal of, order for , I — 156, 248 communicated to Senate I — 156 Senate resolution on I — 157 interviews of, with Adjutant General Thomas, demanding possession I — 164, 174, 220, 223, 232 letter of, denying General Thomas's authority 1—420 affidavit of, for arrest of General Thomas I — 515 Stark, Everett D. (See Testimony.) Stewart, William M., a senator from Nevada I — 11 remarks on the competency of the President ^ro tcmjiore to git as a member of the court Ill — 395 orders by — that JIanager Logan have leave to file written argument : offered 1—741 amended I — ^74 1 read II— 3 remarks by I— 489, 491, 532, 561, 632, 680, 717, 740, 74L 11—11 opinion on the case Ill — 152 Stevens, Thaddeus, of Pennsylvania, a manager I — 4, 17 remarks on order relating to final argument I — 494. II — 7 argument, final, on the case II — 219 Summons ordered I — 16 return of, read and verified I — 18 Sumner, Charles, a senator from Massachusetts I — 11 remarks on the competency of the President pro tempore to sit as a member of the court Ill — 375 orders by — that Senate proceed with trial from day to day unless otherwise ordered : offered 1—85 withdrawn I — 86 that Chief Justice presiding has no authority to vote on any question during the trial, &c. : offered and rejected, (yeas 22, nays 26,) I — 185 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, (yeas 21, nays 27,) I — 187 that trial proceed without delay on account of removal of limit provided by Rule XXI: amendment offered and accepted I — 401 that on final argument the several managers who speak shall close : offered 1—497 that under rule limiting argument to two on a side, such others as choose may file arguments at any time before the argument of the closing manager : laid over 1—532 amended I — 534 indefinitely postponed, (yeas 34, nays 15,) I — ^36 2 IP XVIII INDEX. Sumner, Charles, orderK by — Continued. that all evidence offered not trivial or obviously irrelevant bo receivea withont objection, to be open fo question at the bar to determine itsj value, and to bo sifted and weighed in the final judgrment : offered 1—589 tabled, (yeag a-), nays II) 1—590 that Senate sit from li) a. m. to 6 p. m. : offered 1—631 rejected, (yeas 1:1. nays HO) ^ 1—633 that Sen ^te iirocecd to vote on the several articles of impeachment at tvrelve o'clock on the day iifter close of arg^uments : offerrd 11—189 called up 11—474,476 that after reninviil, which follows conviction, any further judgment shall be determined by a majority of ineinbcrM present : offered and laid over II — 249 that Mr. Nelson, one of counsel, having used disorderly words, has deserved the disapprobation of the Senate :• offered 11—280 tabled, (yeas 35, nays 10) 11—307 that Senate will sit from 10 a. m. to 6 p. m. : offered and tabled, (yens 32, nays 17) 11—308 denying: permission to each senator to file written opinion, &c : offered and rejected, (yeas 6, nays 42) II — 477 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 and agreed to II — 481 rules by — XXlil, in taking the votes of .Senate on the articles, presiding officer shall call eack senator by name, and upon each article propose the question of " Guilty or not guiltj' ? " whereupon each senator shall ri.se in his place and answer : proposed A pril 25 II — 189 laid over 11—219 called up 11—478 XXIV, on a conviction by Senate it shall be the duty of presiding 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 II — 189 laid over 11—219 called up 11—481 remarks by 1—24, 25, 85, 86, 154, 155, 18.5, ISfi, 187, 265, 298, 3G7, .370, 371, 489, 491, 496, 497, 532, 534, .536, 561, 589, 631, 632, 633, 673. 11—99. 141, 188, 189, 203, 218, 219, 249, 280, 281, 307, 308, 471, 475, 477, 478, 479, 481, 490, 498 opinion on the case Ill — 247 on the question, Can the Chief Justice, presiding in the Senate, rule or vote Ill — 281 T. Testimony for the prosecution — William J. JlcUonald: service of Senate resolutions at office of President I — 158 J.W.Jones: service of Senate resolution on Adjutant General Thomas I — 159 C. K. Creecy : form of commission before and alter fenure-of-office act, I — 160, 161, 162; commis.sicn of Edmund Cooper, as Assistant Secretary of Treasury, I — 163; date of change in form of commis- sion, 1 — 164; President's notification to Secretary of Treasury of Secretary Stanton's suspen- sion. 1 — 363, 3tl4 ; notification of Secretary of Treasury to heads of bureaus, I — 366. Burt Van Horn : Adjutant General Thomas's demand for possession of War Department I — 164-170 James K. Moorhead: Adjutant General Thomas's demand for possession of War Department 1 — 170-174 Walter A. Burleigh: Adjutant General Thomas's account of interview with Secretary Stanton, I — !74; his intentions, 1 — 188; his declarations to clerks, I — 211,214,215,219,220; means by which ho intended to obtaia posses., 2:i8. George W. Wallace : conversation with President in regard to garrison at Washington and movement of troops 1 — 253-256 William E. Chandler : process of drawiug money from Treasury Department, I — 256, 265, 266 ; cour.se of issuing commission to an officer confirmed by Senate, 1 — 257; authority of Assistant Secretary of Treasury to sign warrants, I — 266; the praciico, 1 — 267. Charles A. Tinker: telegrams between Lewis E. I'arsons and President relating to reconstruction in Alabama, 1—268-272; President's speech, August 18, 1866, as telegraphed, 1—280,281,289,290. James B. Sheridan: President's speech, August 18, 11^66, iu reply to Hon. Uoverdy Johnson. I — 281- 283; maimer of reporting it, I — 282, 283, 2'.tl : corrections by President's secretary, I — 281,290,291. James O. Clepbane: President's speech, August 18,1860, in reply to Hon. Uoverdy Johnson, 1 — 283, 284; revision by President's secretary, I — 284,294; verbatim n^port rewritten for Chronicle, 1 — 284, '285, 286. Francis II. Smit'.i : President's speech, August 18, 1806, I — 292,293; revision by President's secretary, 1—292. William G. Moore: corrections of report of President's speech, August 18, 1866 1 — 294,297 William N. Hudson: President's speech at Cleveland, September 3, 1866, reported for Cleveland Leader, I— 3I1-1-310; cries of the crowd, I— ;!10-3I.5. Daniel C. :»Iclivven: I'resident's speech at Cleveland, Septembers, 1866 1—316-318 Everett D. Stark: President's speech at Cleveland, September 3, 1866, reported for Cleveland Herald 1—318-321 L. L. Walbridge: President's speech at St. Louis, Septembers, 1866 1— .337-340 Joseph A. Dear: President's speech at St. Louis. ../. 1 — 345-348 INDEX. XIX Testimony for the prosecutiou — Continued. Robert S. Chew : change in form of commissions after passage of civil-tenure act, I — 351, 357 ; change in plate for printing forms, 1—352; list of appointments of heads of f'epartmonts, 1—353, 3G0, 3G1 ; ajipointmcnts of acting Secretaries of State, I — 359; I'rom whom, I — ;iCiJ, 361. II. WooJ: interview with President, Septeinher, IStifi, I — 372; President and Congress, I — 373; pat- ronage, 1 — 373 ; statement to Mr. Koppel, I — 373, 374, 375. Foster Blodgett: suspension from office of postmaster at Augusta, Georgia I — 375 Testimony for the defence — Lorenzo Thomas: service, I — 415,432; restoration to duty as Adjutant General, I — 416,417,433; appointment as Secretary of War ad interim, 1—418, 433, 434, 435, 436 ; letter of Mr. Stanton, I — 420 ; ai-rest 1—427,441; interviews with Secretary Stanton, 1—417,418,410,428,429,437,460; with Pres- ident, I — 117,418, 426, 427, 423, 430, 437, 438, 439, 452, 453; with Mr. Burleigh, 1—431, 439, 440, 442, 452; with Mr. Karsner, 1—431,432,448,449,453; with Mr. Wilkeson, 1—439; with B. B. Johnson, I— 454,455; use of force, I— 420, 429, 430, 431, 440, 441, 442, 443, 444 ; testimony before House commit- tee, 1—433, 442, 449, 457, 458, 459 ; wuuld obey President's orders, 1—434, 435, 437, 443 ; address to clerks, I — 450; corrections of testimony, 1—452. "William T. Sherman : duties in Washington, December, 18G7, 1—460, 461 ; interviews with President, 1—461, 481, 483 ; tender of appointment as Secretary of War ad interim, 1—461, 483, 485, 517 ; Pres- ident's declarations of purpose in making tender, 1-485, 5i7, 518, .521, 528, 529 ; use of force, 1—529, 530. R. J. Meigs : v.arrant of arrest of Lorenzo Thomas, I — 508, 516 ; docket of entries. I — 517, 531. D. W. C. Clarke : nomination of Thomas Ewiug, sen., to be Secretary of War, February 22, 1868, 1 — 537; when received, I — 537,555. William G. Moore : nomination of Mr. Ewing to be Secretary of War, 1—556 ; when received, 1—556 ; and delivered, I — 557. Walter S. Cox : counsel for Adjutant General Thomas, 1—595, 596; employed by Prei'ident, 1—597, 613 ; President's instructions, 1—605, 609 ; proceedings and their purpose, 1—606-609, 612-617 ; appli- cation for habeas corjms, I — 606-609; preparation of quo warranto, I — 612; maldng a test case, 1 — 605,611,612; J. H. Bradley, 1—614; discharge of Thomas, 1—609,617. Richard T. Merrick : employment in case of General Thomas, 1 — 617-623 ; report to President, 1 — 618 ; President's instructions, February 22, in respect to obtaining habeas corpus, 1 — 620; acts in refer- ence thereto, 1 — 620, 621 ; discharge of Thomas, I — 622. Edwin O. Perrin : interview with President, February 21 1 — 623, 624 Wm. W. Armstrong : President's speech at Cleveland 1 — 634-637 Barton Able: President's speech at St. Louis 1 — 637-640 George Knapp : President's speech at ,St. Louis 1 — 640-043 Henry F. Zider : President's speech at St. Louis, I — 643; corrections, I — 643,644; differences in re- ports, 1—646-653. Frederick W. Seward: practice in appointments of vice-consuls I — 660,661 Gideon Welles : date of commission, I — 663, 701 ; movements of troops, Febniary 21, 1868, I — 663, 702, 703 ; conversation with President, 1—664, 674, 675 ; removal of Mr. Stanton, 1—666, 667, 674 ; appointuieut of Mr. Ewiug, February 22, 1 — 664, 702; consideration of civil-tenure act in cabinet, 1—675, 693, 697, 700. Edgar T. Welles: form of navy agent's commission, I — 704 ; movem-^nt of troops, 1 — 705, 706. Alexander W. Randall: date of commission, 1 — 707; suspension of Foster Blodgett, 1 — '707-715; law by which he was suspended, I— 711 ; indictment, 1—712, 713, 714, 719 ; explauation, 1—726, 727. Thayer, John M., a senator from Nebraska I — 11 remarks on the competeucy of the President ;>ro tempore to sit as a member of the court HI — 381 remarks by 1—184,208,489,490,536,606. n— 8, 472, 493 Thomas, Lorenzo — rank and service of 1 — 415, 432 restoration of, to duty as Adjutant General 1—240,256,416.417,433 appointment of. Secretary of War ad interim I — 156,248,418,433,434, 435, 436 Seimte resolution on, communicated to I — 157, 158 letter of, accepting I— .369 demand of, for possession 1—164, 165, 166, 167, 168, 169, 170, 171 , 172, 173, 174, 220, 221, 222, 223, 232 conversations of — with President I— 417, 418, 426, 427, 428, 430, 437, 438, 439, 452, 4-53 with Secretary Stanton 1—417,418,419,428,429,437,460 with Mr. Burleigh 1—174, 220, 431, 439, 440, 442, 452 with Mr. Wilkesf)n 1—223,439 with Mr. Karsner 1—223, 431, 432, 448, 449, 453 with Mr. B. B. Jc hnson I — 454, 455 declarations of, to clerks of the War Office 1—211, 214, 21.5, 219, 229, 450 intentions of, as to obtaining possession 1—175, 188, 210, 211, 218, 219, 431, 440, 41 1, 442, 443, 444 arrest of, and proceedings thereon 1 — 427,441, 515 Tickets, order, (in Senate,) that during the trial, no persons besides those who ha,ve the privilege of the floor. Sec, shall be admitted except upou, issued by the Sergeant-at-arms. — [By Mr. Anthony.] agreed to I — 10 Tinker, Charles A. (See Testimony.) Tipton, Thomas W., a senator from Nebraska I — 11 remarks by 1—297. 11—187,282,483 opinion on the case HI — 1 89 Trial, motion to fix a day for, to proceed — discussed by — Manager Butler I — 25 Mr. Nel.NOn 1—28 Manager Bingham ; I — 32, .'W orderthat, unless otherwise ordered, the, proceed immediately after replication filed — [By Mr. Conkling.] offered 1—31 agreed to, (yeas 40, nays 10) , 1—33 application ot counsel for thirty days to prepare for 1 — 69 discus.sed by — • Mr. Evarts 1—68,71 Managtr Bingham I — 69, 77, 78 Manager Logan 1 — 69 Manager Wilson I — 73 ilr. Stanbery 7. .■.;... I — 75 XX INDEX. Trial, motion to fix a day for, to proceed — Continued, discussed by — Manager Bout well I — 78 Manager Butler 1—81 denied, (yeas 13, nays 41) 1—^2 orders offered to tix time for, to proceed by — Mr. Edmnnds 1—24 Manager Bingham I — 25 Mr. Slierinan I — 25 Mr. Conkling 1—31,32.85 Mr. Johnson 1—63, 84, 85 Mr. Hendricks Mr. .Sumner 1—85 application of counsel for reasonable time, after replication filed, to prepare for I — 83 order fixing the 30th of March for commencement of — [Di/ Mr. Conkling.] offered and agreed to, (yeas 28, nay.s 24) I — 85 Trumbull, I.,}'mau, a senator from Illinois I — 11 orders by — that respondent file ansvrer on or before 23d March : agreed to I — 35 that as many of managers as desire bo permitted to file arguments or address .Senate orally ; but the conclusion of oral argument shall be by one manager, as provided by rule XXI : offered H- U adopted, (yeas 28, nays 22) 11—14 remarks by I— 81, 160, 187, 188,208,209,297, 4.51,489,528, .'547, ftU, 632, 673 n— 7, 11, 12, 281, 308, 469, 470, 473, 475, 476, 486, 490, 492. 493, 495 opinion on the ease Ill — 319 V. Van Horn, Burt. (See Testimony.) Van Winkle, P. G., a senator from West Virginia I — II opinion on the case Ill — 147 Vickers, George, a senator from Maryland I — 17 orders by-^ that any two of managers, except those who open and close, and who have not addressed Senate, may file written arguments before adjournment or make oral addresses after the opening by one of managers and fir.st reply of counsel, and that other two of counsel who h.ive not spoken may reply, but alternating with said two managers, leaving closing iirgument for President and mana- gers' final reply under original rule : offered, II — 3 ; disagreed to, (yous 20, n.ays 26,) II — 4. that one of managers may file printed argument before adjournment, 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 II — 4 remarks by II — .3, 4 opinion on the case i lU — 116 Votes. {See Chief Justice ; Evidence; Question; Rvles.) W. Wade, Benjamin F., a senator from Ohio , I — 12 (.See President pro tmipore ) Walbridge, L. L. (.See Testimony.) Wallace, George W. (.See Testimony.) \W-A\ei, Edgar T. (.See Testimony.) Welles, Gideon. (See Testimony.) Wilkeson, .Samuel. (.See Testimony.) WiUey, Waitmau T., a senator from West Virginia 1—12 Williams, Geoige II., a senator from Oregon I — 12 remarks on the competency of the Pretideut /iro tempore to sit as a member of the court Ill — 3(55, 366 orderg by — that consideration of respondent's application for time be postponed unUl managers have sub- mitted their evidence : offered I — 85 not agreed to. (yeas 9, nay s 42) I — 86 that no senator shall speak more than once, nor to exceed fifteen minutes during deliberations on final questions: offered 11—218 postponed II — 219 tabled, (yeas 28, nays 20) 11—474 that the question shaft be taken on the eleventh article first, and thereafter on the other ten buc- cessively as they stand : agreed to, (yeas 34, nays 19) II — 4S4, 485 that the several onlers heretofore adopted as to the order of voting upon the articles be rescinded : offered II — 490 agreed to 1 1 — 495 remarks by . .1— 85, 80, 187, 267, 497, 522, 524, 528, 634, 692, 706. H— 318, 472, 479, 484, 487, 490, 492, 495, 496, 4 J7 I (til *tions by 1—522, 692, 706 opinion on the case Ill — 347 Williams, Thomas, of Penn.sylvania, a manager I — 4, 17 argnirient, final, on the case II — 230, 24!) rcuKirks on motion relating to the number of speakers on final argument I — 491. II — 6 Wilson, James E., of Iowa, a manager I — 4, 17 argument by — on application of counsel for forty days to prepare answer I — 20 for tliirty days to prepare for trial 1 — T.i on lidmissibilily — * of President's letter to General Grant, unaccompanied with enclosures 1—244,246 of President's conversation with General .Sherman ; I — 478, 479 of employment of counsel by Pn-sident to get up test cuso I — 602 of President's declarations to Mr. IVrriu '. I — 626 0*' advice to President by cabinet touching coaatitutionality of teaure-of -office act I — 681 INDEX. XXI Wilaon, Henry, a senator from Massnchusetts ; 1—12 renimks by 1—25,31,32,86,181,184,740. 11—6,141,434,473 opiuion on the case .- -- lU — 21^4 ■Witness. (See Practice.) iiuestion, Wheiher counsel can renew examination of a, recalled by court — [By Mr, Wtlhams] I — 5t.>2 discussed by — Mr. Kvarts 1-522,524,520 manager Butler 1—523 Manager Biugbam 1—524,525,527 Mr. Staubery 1-^524 withdrawn - I — 523 Witnesses for the prosecution. (For analysis of testimony see Testimony.) Blodgett , Foster, suspension from oftice I — 375 Burleigh, Walter A., conversations with Thomas 1—174, 188 Chandler, William E., drawing money from treasury .1 — 256 Chew, Robert S., form of commissions I — 351, 357 Clephaue, James O., President's speech, August 18, 1866 1—283,294 Creecy, Charles E., form of commission I — 160,363 Dear, Joseph A., President's .St. Ijouis speech i I — 345 iihory, William H., conversatiims with President; troops 1—233 Ferry, Thomas W., demand of War Offlco 1—232 Hudson, William N., President's Cleveland speech I — 304 Jones, J. W., service of Senate resolution I — 159 Karsuer, George W. , conversations with Thomas I — 223, 231 McDonald, William J., service of Senate resolutions I — li58 McE wen, Daniel C. , President's Cleveland speech I — 316 Moore, William G., corrections President's speech, August 18, 1866 1 — 294 Moorhead, James K., demand of War Office I — 170 Sheridan, James B., President's speech, August 18, 1866 1 — 281,290 Smith, Francis H., President's speech, August 18, 1866 1-292 Stark , Everett D., Presidout's Clevelaud speech I — 318 Tinker, Charles A., telegrams 1-268,280,289 Van Horn, Burt, demand of War Office I — 164 Walbridge, L. L., President's St. Louis speech 1—337 Wallace, George W., conversations with President; troops I — 253 Wilkesou, Samuel, conversations with Thomas I — 220 Wood, H., interview with President I — '372 jVitnesses for the defence — Able, Barton, President's St. Ijouis speech 1—637 Armstrong, William W., President's Cleveland speech I — 634 Clarke, D. W. C, nomination of Mr. Ewing ;I — 537, 555 Cox, Walter S., test case 1—595 Knapp, George, President's St. Louis speech I — 64G Meigs, R. J., arrest of Thomas .■ I— ,508, 534 Merrick, Richard T., case of Thomas; habeas corpus 1 — 617 Moore, William G., nomination of Mr. Ewing I — 5.56 Perrin , Edwin O. , conversations with President I — 623 Randall, Alexander W. , Foster Blodget t's case I — 707, 719 Seward, Frederick W., practice in appointments I — 650 Sherman, WUliam T., tender of War Office 1—460,498,517 Thomas, Lorenzo, appointment; acts; conversations 1—415, 452 Welles, Edgar T., form of commission; troops I — 704 Welles, Gideon, troops ; cabinet counsels I — 663 Zider, Henry F., President's St. Louia speech I — 643 Yates, Richard, senator from Illinois I — 12 remarks by 1—610,718,739. 11-3,12,13,140,266,479 order by — that four of managers and counsel be permitted to make printed, written, or oral arguments, the manager to have opening and closing, subject to Rule XXI ; offered II — 12 •disagreed to, (yeas, 18, nays 31) II — 13 opinion on the case Ill — 102 Yeas and uays on — adjournment 1—276,298,390,489,490 adjournment over 1—336,371. 11—471,488,489,494,495 admissibility of Adjutant General Thomas's declarations to Walter A. Burleigh, (yeas 39, nays 11).. 1 — 209 to clerks of War Department, (yeas 28, nays 22) I — 214 of President's letter to General Grant, without enclosures, (yeas 29, nays 20) I — 247 of testimony relating to appointment of Edmund Cooper, (yeas 22, nays 27) 1 — 268 of telegrams between President and Lewis E. Parsons, (yeas 27, uays 17) I — 276 of Leader's report of President's speech at Cleveland, (yeas 35, nays 11) I — 325 of President's declarations to Adjutant General Thomas, February 21, (yeas 42. nays 10) 1 — 426 of President's conversation with General Sherman, (yeas 23, nays 28) I — ^81 in regard to tender of War Office, (yeas 23, nays 29) I — 484 of President's declarations to General Sherman — of purpose to get case before the courts, (yeas 7, nays 44) I — 487 of purpose in tendering him the War Office, (yeas 25, nays 27) I — 488 of Whether General Sherman gave President an opinion as to advisability of a change iu the War Office, (yeas 15, nays 35) I — 507 of advice by General Sherman to President to appoint, &c., (yeas 18, nays 32) I — 508 of affidavit and warrant of arrest of Lorenzo Thomas, (yeas 34, nays 17) I — 515 of Whether Presidnnt stated to General Sherman his purpose in tendering him the office of Secre- tary of War ad interim, (yeas 26, nays 22) I — 518 of Presideat's declaration of purpose to General Sherman in tendering him the office of Secretary of War ad interim, (yeas 26, nays 25) I — 521 of extracts from records of Kavy Department, (yeas 36, nays 15) 1 — 568 XXII INDEX. Yeas and nays on admissibility — of employment of counsel by President to get up tept case, (yeas 29, nays 21"' 1 — 605 of acts by counsel toward getting out habeas corpus in the case of Thomas, (j-eas 27, nays 23) I — 609 of acts done subsequently to test Sir. Stuntou's right, &c., (yeas 27, nays 2;i) I — 612 of President's deelurations to Mr. Perrin, February 21, (yeas U, nays 37) 1 — 628 to Secretary Welles, February 21, (yeas 26, nays 23) 1—674 of advice to President by cabinet as to constitutionality of teuure-of-office act, (yeas 20, nays 29) ..1 — 693 of advice as to construction cf tenure-of-office act, (yeas 22, nays 26) I — 697 of cabinet consultations in regard to obtaining u judicial decision, &c., (yeas 19, nays 30) '. I — 700 in regard to use of force, (yeas lc<, nays 20) I — 701 of opinions given to Presideiit by cabinet as to scope of tenure-of-office act, (yeas 20, nays 26) I — 716 of nominations of Lieutenant General Sherman and JIajor General Thomas to be generals by brevet, (yeas 14, nays 35) I — 738 appeals from decisions of Chief Justice II — 1,88. Ill — 3U4 application of counsel for thirty days to prepare for trial, (yeas 12, nays 41) 1 — 82 argument, rule jjreseribing order of II — 4, 5, 8, 12, 13, 14 censure of Mr. Nelson, -tabling order of, (yeas .12, nays 17) II — 307 Chief Justice, authority of, to rule questions of evidence I — 186 authority of, to vote 1—185 consultation, motion to retire for I — 8o, 185 court of impeachment, unconstitutionality of, (j-eas 2, nays 49) i — 36 impeachment of Andrew Johnson, resolution (in House) for the, (yeas 126, nays 47) I — 2 resolution (in House) ,to prepare articles of, (yeas 126, nays 42) I — 2, 3 rule (in House) limiting debate, when articles of, are reported, (3'eas 106, nays 37) I — 3 order for trial to proceed forthwith upon filing replication, (yeas 25, nays 26) 1 — 25 immediately after replication filed, (yeas 40, nays 10) I — 33 for respondent to file answer before 20th March, (yeas 28, nays 20; and yeas 23, nays 27) I — .35 in respect to unconstitutionality of court of impeachment, (yeas 2, nays 49) I — 36 postponing application for thirty days to prepare for trial, (yeas 25, nays 28 ; ani yeas 9, nays 42). I — 81, 86 directing trial to commence 30th March, (yeas 28, nays 24) I— ^ denying authority of Chief Justice to vote, (yeas 22, nays 26) I — 185 denying authority of Chief Justice to give casting vote, (yeas 22, nays 27) It-187 denying privilege of Chief Justice to rule questions of law, (yeas 20, nays 30) I — 186 directing questions to be submitted to Senate, on request, (yeas 31, nays 19) I — 86 mode of procedure on final argument 1 1 — 498, 535, 536. II — 4, 5, 8, 12, 13, 1 4 fixing hour of meeting I — 536, (>33. II — 141,308 proposing to receive all evidence, not trivial, without objection 1—590 for reporting deliberations on final question II — 188,474 fixing day for final vote II — 476, 477 for filing opinions II — 477 prescribing form of final question II — 478, 479 directing vote to be taken on eleventh article first, (yeas 34, nays 19) II — 484, 485 question, final, of " Guilty" or "Not guilty"— on Article XI, (yeas 35, nays 19) 11—486, 487 II, (yeas 35, nays 19) 11—496 III, (yeas 35, nays 19) 11—497 as. Zider, Henry F. (See Testimony.) PKELIMIMRY PROCEEDLXGS IN THE HOUSE OF REPRESENTATIVES m THE IMPEACHMENT OF ANDKEA¥ JOHNSON, PRESIDENT OF THE UNITED STATES, FOR HIGH CRIMES AND MISDEMEANORS. FORTIETH CONGRESS. SECOND SESSION.-Hon, SCHTJYLEE COLFAX, Speaker. In THE House of Eepresentatives, Friday, February 21, 1868. Mr. CovoDE. I rise to a privileged question. I offer the following resolution : Resolved, That Andrew Johnson, Pregideut of the Uuit^ed States, be impeached of high crimes and misde- meanors. Mr. Wood. I object. The Speaker. It is a privileged question. Mr. BoUTWELL. I move to refer it to the Committee on Reconstruction. The motion was agreed to. Mr. CovoDE moved to reconsider the vote by which the resolution was referred ; and also moved to lay the motion to reconsider on the table. The latter motion was agreed to. Saturday, February 22, 1868. Mr. Stevens, of Pennsylvania, presented from the Committee on Reconstriiction the fol- lowing report, with an accompanying resolution ; which was considered : The Committee on Reconstruction, to whom was referred, on the 27th day of January last, the following resolution : Resolced. That the Committee on Reconstruction be authorized to inquire what combinations have been made or attempted to be made to obstruct the due execution of the laws ; and to that end the committee have power to send for per.sous and papers and to examine witnesses on oath, and report to this house what action, if any, they may deem necessary ; and that said committee have leave to report at any time. And to whom was also referred, on the 21st day of February, instant, a communication from Hon. Edwin M. Stanton, Secretary of War, dated on said 2l3t day of February, together with a copy of a letter from Andr&w Johnson, President of the United States, to the said Edwin M. Stanton, aa follows : Executive Mansion, Washington, D. C, February 21, 1868. Sill: 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 func- tions as such will terminate xipou the receipt of (his communication. You will transfer to Brevet Major General Lorenzo Thomas, Adjntant General of the army, who has this day been authorized and empowered to act as Secretary of War ad inUritn, all records, books, papers, and other public property now in your custody aud charge Respectfully, yours, ANDREW JOHNSON. Hon. Edwin M. Stanton, Washington, D. C. And to whom was also referred by the House of Representatives the following resolution, namely : Risolved, That Andrew Johnson, President of the United States, be impeached for high crimes and misde- m»'anors — Have considered the several subjects referred to them, and submit the following report: That in addition to the papers referred to the committee, the committee find that the President, on the 2lst day of Ffbruary, 1668, signed and issued a commission or letter of authority to one Lorenzo Thomas, directing and authorizing said Thomas to act as Secretary of War ad interim, and to take possession of the books, records, and papers, and other public property ia the War Department, of which the following is a copy : Executive Mansion, Washington, February 21, 1868. Sir : Hon. Edwin M. Stanton having been this day removed from office as .Secretary for the Department of War, you are hereby authorized aud empowered to act as Secretary of War ad interim, and will immediately 2 PRELIMINARY PROCEEDINGS IN enter upon the discharge of the duties iiertaiuiug to tliat office. Mr. Stuuton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge. Respectfulh- yours, ANDraCW JOHN\SOX. Brevet Major General LORKNZO Thomas, Adjutant General U. S. Army, Waslihiglon, D. C. Official copy respectlully furnished to Hon. E. M. Stanton. L. THOMAS, Secretary of U'ar ad interim. Upon the evidence collected by the committee, which is herewith presented, and in virtue of the powers with which thi-y have been invested by the House, they are of the opinion that Andrew Johnson, President of the United States, be impeached of high crimes and misdemeanors. They therefore recommend to the House the adoption of the accompanying resolution. THADDEUS STEVENS. GKOKGE S. BOUT WELL. JOHN A. BINGHAM. C. T. HULBURD. JOHN F. FAltN.SWORTH. F. C. Bi:.\MAN. H. E. PAINE. Resolution proviJiug for tlie iiiipeacliment of Andrew Johnson, President of the United States : Resolved, That Andrew Johnson, President of the United States, be impeached of high crimes and misde- meanors in office. Monday, February 24, 1868. The House met at ten o'clock, and resumed the consideration of the resolution reported by the Committee on Reconstruction. After debate, the question was taken, and it was decided in the affirmative — yeas, 126; nays, 47; not voting, 17; as follows: Yeas — Messrs. Allison, Ames, Anderson, Arnell, Delos R. Ashley, James M. Ashjey, Bailey, Baker, Bald- win. Banks, Beamau, Beatty. Benton, Bingham, Blaine, Blair. Boutwell, Broniwell, Broomall. Buckland, Butler, Cake, Churchill, Reader W. Clarke, Sidney Clarke, Cobb. Coburn, Cook, Cornell, Covode, Cullom, Dawes, Dodge, Driggs, Eekley, Eggleston, Eliot, Farnsworth, Ferriss, Ferry, Fields, Gravely, Griswold, Halsey, Harding, Higby, Hill, Hooper. Hopkins, Asahel W. Hubbard. Chester D. Hubbard, Hulburd, Hunter, Ingersoll, Jenckes, Judd, Julian, Kelley, Kelsey, Ketcham, Kitchen. Laflin, Geo-ge V. Lawrence, William Lawrence, Lincoln. Loan, Logan, Loughridge, Lynch, Mallory, Marvin, McCarthj-, McClurg. Mercur, Miller, Moore, Moorhead, Morrell, MuUins, Myers, Newcomb, Nunn, O'Neill, Ortb, Paine, Perham, Peters, Pike, Pile, Plants, Poland, Polsley, Price, Rauni, Robertson, Sawyer, Schenck, Scofield, Selye, Shanks, Smith, Spalding, Starkwe.atber, Aaron F. Stevens, Tliaddeus Stevens, Stokes, TafTe, Taylor, Trowbridge, Twiehell, Upson, Van Aerpam, Burt Van Horn, Van Wyek, Ward, Cadwalader C. Washburn, EUihu B. Wasliburne, William B. Wasliburu, Wclker, Thomas Williams, James F. Wilson, John T. WiUon, Stephen F. Wilson, Windom, Woodl)ridge. and the Speaker — 126. Nays— Messrs. Adams, Archer, Axtell, Barnes, Banium, Beck, Boyer, Brooks, Burr, Gary. Chanler, El- dridge, Fox, Getz, Glossbrenner, GoUaday, Grover, Haight, Holnian. Hotchkiss, Richard D. Hubbard. Hum- phrey, Johnson, Jones, Kerr, Knott, Marshall, MeCormick, McCulloeh, Morgan, Morrisscy. IMnngen, Niblack, Nicholson, Phelps, Pruyu, Randall, Ross, Sitgreaves, Stewart, Stone, Taber, Lawrence S. Trimble, Van Auken, Van Trump, Wood, and Woodward — 47. Not voting— Messrs. Benjamin, Dixon, Donnelly, Ela, Finney, Garfield, Hawkins, Koontz, Maynard, Pomeroy, Robinson, Shellabarger, Thomas, John Trimble, Robert T. Van Horn, Henry D. Washburn, and William Williams— 17. When the roll-call had been concluded. The Sl'E.'iKER said : The occupant of the chair cannot consent that his constituents should be silent on so grave a question, and therefore, as a member of tliis hou.se, he votes "ay." On agreeing to the resolution, there are yeas 12(5, nays 47. So the resolution is adopted. Mr. Stkvi:ns, of Pennsylvania. Mr. Speaker, I submit the following resolutions, on which I demand the previous question : Resolved, That a committee of two be appointed to go to the Senate; and at the bar thereof, in the name of the House of Ri-prcsentatives and of all the people of the United States, to impeach Andrew Johnson, President of the United States, of high crimes and misdemeanors in office, and acquaint the Senate that the House of Representatives will, in due time, exhibit particular articles of impeachment against him and make good the same ; and that the committee do demand that the Senatj take order for the appearance of said Andrew Johnson to answer to said impeachment. 2. Rcaolved, That a connnittee of seven be appointed to prepare and report articles of inii)cachment against Andrew Johnson, President of the United States, with power to send for persons, papers, and records, and to take testimony under oath. After the rules had been suspended, the question was taken on the resolutions, and it was decided in the affirmative — y<;as, 124; nays, 42; not voting, 2:5; as follows : Yeas — Messrs. Allison, Ames, Anderson, Arnell, Delos R. Ashley, James M. Ashley, Bailey, Baker, Baldwin,* Banks, Beamau, Beatty. Bentnn, Bingham, Blaine, Blair, Boutwell, Bromwell, Broomall, IJucklaud, Butler, Cake, Gary. Churchill, Rearoceedings of the Senate.] PEELIMINART PROCEEDINGS IN THE SENATE ' IN THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OP THE UNITED STATES, FOR HIGH CRIMES AND MISDEMEANORS. FORTIETH CONGRESS, SECOND SESSION.-Hon, BENJAMIN F. WADE, President pro tern. Tuesday, Fcbruanj 25, 1868. Mr. Representative Stevens and Mr. Representative Bingham appeared at the bar of the Senate, and were announced as the committee from the House of Representatives. Mr. Stevens. Mr. President, in obedience to the order of the House of Representatives, we appear before you, and in the name of the House of Representatives and of all the people of the United States we do impeach Andrew Johnson, President of the United States, of high crimes aud misdemeanors in office ; and we further inform the Senate that the House of Representatives will in due time exhibit particular articles of impeachment against him and make good the same ; and in their name we demand that the Senate take order for the appear- ance of the said Andrew Johnson to answer said impeachment. The President pro tempore. The Senate will take order in the premises. The committee of the House thereupon withdrew. Mr. Howard, by unanimous consent, submitted the following resoh^tion, which was read, considered, amended, and agreed to: Resolved, That the message of the House of Representatives relating to the impeaohment of Andrew John- son, President of the United States, be referred to a select committee of seven, to be appointed by the Chair, to consider and report thereon. The President pro tempore subsequently announced the committee, to consist of the fol- lowing senators: Mr. Howard, Mr. Trumbull, Mr. Conkliug, Mr. Edmunds, Mr. Morton, Mr. Pomeroy, and Mr. Johnson. Wednesday, February 26, 1868. Mr. Howard, from the select committee appointed to consider and report upon the message of the House of Representatives in relation to the impeachment of Andrew Johnson, Presi- dent of the United States, reported the following resolution : Whereas the House of Representatives, on the 25th day of the present month, by two of their members, Messrs. Thaddeus Stevens .and John A. Bingh.im, at the bar of the .Senate, impeaf-hed Andrew Johnson, Presi- dent of the United States, of high crimes and misdemeanors in office, and inform. -d tlie Senate that the House of Representatives will in due time exhibit particular articles of impeachment a^Minst hira and nmke good the same ; and likewise demanded that the Senate take order for the appcirauce of said Andrew Johnson to answer to the said impeachment : Therefore, Resolved, That the Senate will take proper order thereon, of which due notice shall be given to the Hotise of Representatives. And the committee further recommend to the Senate that the Secretary of the Senate be directed to notify the House of Representatives of the foregoing resolution. The resolution was considered by unanimous consent, and agreed to. Mr. Howard. I ask that an order be made directing the Secretary to transmit the resolu- tion just adopted, which is in the usual form, to the House of Representatives. The President pro tempore. That will be done, as a matter of course, without any formal order. b PRELIMINARY PROCEEDINGS Friday, February 28, 1868. The Senate postponed all other business, and proceeded to consider the report of tlie select committee respectino- iiiipeachmeut, presented by Mr. Howard. It embraced the rules of procedure and .practice in the Senate when sitting for the trial of an impeachment ; which, after discussion and amendment, were adopted on March 2, 1868. They will be found on pages 12-15 of this volume. Wednesday, March 4, 1863. The manage;^; of the impeachment on the part of the House of Representatives appeared at the l)ar, and their presence was announced by the Sergeant-at-arms. Tlie Viiv.MDV.'ST pro tempore. The managers of the impeachment will advance within the bar and take the seats provided for them. The managers on the part of the House of Representatives came within the bar and took the seats assigned to them in the area in front of the Chair. Mr. Manager Bingham. Mr. President, the managers of the House of Representatives, by order of the House, are ready at the bar of the Senate, whenever it may please the Senate to hear them, to present articles of impeachment and in maintenance of the impeach- ment preferred against Andrew Johnson, President of the United States, by the House of Representatives. The President pro tempore. The Sergeant-at-arms will make proclamatiofi. The Sergeant- AT-ARMS. Hear ye! hear ye ! hear ye! All persons are commanded to keep silence, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Andrew Johnson, President of the United States. The managers then rose and remained standing, with the exception of Mr. Stevens, who was physically unable to do so, while Mr. ilanager Bingham read the articles of impeach- ment, as follows : ' Articles erltibited by titc House of Representatives of the United States, in the name of them- selves and all the people of the United States, uuninst Andreio Johnson, President of the United States, in maintenance and support of their impeachment against him for high crimes and misdemeanors in o£icc. Article I. That said Andrew Johnson, President of the United States, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty -eight, at Washington, in the District of Columbia, unmindful of the high duties of his office, of his oath of ofhee, and of the requirement of the Constitution that he should talie 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 for the rcinoval of Edwin M. Stanton from the office of Secretary for the Department of War, said Edwin M. Stanton* having been theretofore duly appointed and commissioned, by and with the advice and consent of the Senate of thi; United States, as such Secretary, and said Andrew Johnson, President of the United States, on the twelfth day of August, in the year of our Lord one thousand eight hundred and sixty-seven, 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 met ting of said Senate, tliat is to say, on the twelfth day of December in tlie year last aforesaid haviug reported to said Senate such suspension with the evidence and reasons for his action in the case and the name of tlie person designated to perform the duties of such office temporarily until the next meeting of tlie Senate, and said Senate then-afterwards, on the thirteenth day of January, in the year of our Lord one thousand eight hundred and sixty-eight, luiving duly considered the evidence and reasons reported by said Andrew Johnson for said sus- pension, and having refused to concur in said suspension, whereby and by force of the provisions of an act entitled " An act regulating the tenure of certain civil othces," passed March second, eigliteen hundred imd sixty-seven, said Kdwin M. Stanton did forthwith resume the functions of his office, whereof the said Andrew Johnson liad then and tlure due notice, and said Edwin M. Stanton, by reason of the premises, on said twenty- first day of Febi-uary, being lawfully entitled 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, tliat is to say : "Executive JIansion, " Washington, D. C, February 21, 18(58. "SIR: By virtue of the power and authority vested in me as President by the Constitution and laws of llie United States you are hereby removed from office as Secretary for the Department of War, and your fuuctious as such will terminate upon the receipt of this communication. " You will transfer to Hrevet Major General Lorenzo Thomas, Adjutaiit 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 custody and charge. " Respectfully yours, "ANDREW JOHNSON. " To the Hon. Edwin M. Stanton, Washington, D. C." Which order was unlawfully ii!sued with intent then and there to violate the act entitled "An act regulating the tcnine of certain civil offices," passed March secoud, eighteen hundred and sixty-seven, and with the furtlier intent, contrary to the provisions of said act, in violation tlu'reof, and contrary to the provisions of the Constitutin flu' I'resident of the United Stales, speaking of and concerning tlie Congress of the United States, said Andrew Johnson, President of the United States, heretofore, to wit, on the eighteentii day of August, in the year of our Lord one thousand eight hundred and sixty-six, di*i, in a loud voice, declare, in substance and eflect. among oilier things, that is to say : " So far as the executive department of the government is couci;rned, the effort has been made to restore the IN THE SENATE. 9 Union, to heal the breach, to pour oil into the wonuds which were consequent upon the struggle, and (to Bpeak in cnuiinou phrase) to prepare, as the learned and wise physician would, a plaster liraling in character and co-exteusive with tlie wound. We thought, and we think, that wo had partially succeeded ; but, as the work progresses, as reconstnietion seeuied to lie taking place, and the country was becoming reunited, we found a disturbing and uiarriiiK eh-nient op|iosinjc us. lu alluding to that element I shall go no furthiT than your convention, and the distinguislu'd gentleman who has delivered to nie the report of its proceedings. I shall make no reference to it that I do not believe the time and occasion justify. "We have witnessed in one department of the government every endeavor to prevent the restoration of peace, harmony and union. We have seen hanging upon the verge of the government, as it were, a body called, or which assumes to be, the Congress of the United States, while, iu fact, it is a Congress of only a part of the States. We have seen this Congress pretend to be for the Union, when its every step and act tended to perpetuate disunion and make a disruption of the .States inevitable. * * '"' We have seen Con- gress gradually encroach, s'ep by step, upon constitutional rights, and violate, day after day and month after month, fundamental principles of the government. We have seen a Congress that seemed to forget that there was a limit to the sphere and scope of legislation. We have seen a Congress iu a minority assume to exercise power which, allowed to be consummated, would result in despotism or monarchj' itself." Specijicatioii .■iecoiid. — In this, that at Cleveland, in the State of Ohio, heretofore, to wit, on the third day of September, iu the year of our Lord one thousand eight hundred and sixty-six, before a public assem- blage of citizens and others, said Andrew Johnson, President of the United .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 goveruinent." "In conclusion, besides that, Congress had taken much pains to poison their constituents against him. But what had Congress done ? Have they done anything 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 sacritices 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 eighth day of .September, in the year of our Lord one thousand eight hundred and sixty-six, before a public assem- blage of citizens and others, said Andrew Johnson, President of the United .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 : " 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 the 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 is responsible for the blood that was shed there. If you will take up the riot at New Orleans and trace it back to the radical Con- gress, you will tind that the riot at New Orleans was substantially planned. If you will take up the pro- ceedings in their eaucusses you will tinderstand that thej- there knew that a convention was to be called which was extinct by its power having expired ; that it was said that the intention was that a new government was to be organized, and on the organization of that government the intention was to enfranchise one portion of ' the population, called the colored population, who had just been emancipated, and at the same time dis- franchise white men. AVhen you design to talk about New Orleans you ought to understand what you are talking about. When yon read the speeches that were made, and take itp the facts on the Friday and .Satur- day before that convention sat, you will there find that speeches were made incendiary in their character, exciting in that portion of the population, the black population, to arm themselves and prepare for the shed- ding of blood. You will also find that that convention did assemble in violation of law, and the intention of that convention wag to supersede the reorganized authorities in the .State government of Louisiana, which had been recognized by the government of the United .States; and every man engaged in that rebellion iu that convention, with the intention of superseding and upturning the civil government which had been recognized by the government of the United .States, I say that he was a traitor to the Constitution of the United States, and hence you find that another rebellion was commenced, having its origin in the radical Congress. " So much for the New Orleans riot. And there was the cause and the origin of the blood that was shed, and every drop of blood that was shed is upon their skirts, and they are responsible for it. I cottld test this thing a little closer, but will not do it here to-night. But when you talk about the ci^uses and consequences that resulted froin proceedings of that kind, perhaps, as I have been introduced here, and you have provoked questions of this kind, though it does not provoke me, I will tell you a few wholesome things that have been done by this radical Congress in connection with New Orleans and the extension of the elective franchise. " I know that I have been traduced and abused. I 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 be forced upon the government ; that I had exercised that power; that I had abandoned the party that elected me, and that I was a traitor, because I exercised the veto power in attempting, and did arrest for a time, a bill that was crlled a ' Freedman's Bureau' bill ; yes, that I was a traitor. And Ihave been traduced, I have been slandered, I have been maligned, I have been called Judas Iscariot, and all that. Now, my countrymen, here to-night, it is very easy to indulge in epithets ; it is easy to call a man Judas and cry out traitor ; but when he is called upon to give arguments and facts he is very often found wanting. Judas Iscariot — Judas. There was a Judas, and he was one of the twelve apostles. Oh ! yes, the twelve apostles had a Christ. The twelve apos- tles had a Christ, and he never could have had a Judas unless he had had twelve apostles. If I have played the Judas, who has been my Christ that I have played the .Tudas with 1 Was it Thad. Stevens 1 Was it Wendell 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 to stay and arrest their diabolical and nefarious policy, is to be denounced as a Judas." ******** "Well, let me say to you, if you will stand by me in this action, if you will stand by me in trying to give the 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 saj'. I was not provoked into this, and I care not for their menaces, the taunts, and the jeers. I care not for tliroats. 1 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 when any of them come to me." Which said utterances, declarations, threats, and harangues, highly censurable in any, are peculiarly inde- cent 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 United States, did commit, and was then and there guilty of a high misdemeanor in office. 10 PEELIMINARY PROCEEDINGS, ETC. Article XI. That said Andrew Johnson, President of the United Stiites, unmindful of the lii>,'li duties of his ofHce, and of bis oath of office, and in disregard of the Constitution and laws of the United States, did, heretofore, to wit, on the eighteenth day of August, A. D. eighteen hundred and sixty-six. at the eitv of Washington, and the District of Columbia, by public speech, declare and affirm, in substance, that the tliirty-nintli Congress of the United .States was not a Congress of the United States authorized by the Constilntion to exercise legislative l)Ower under the same, but, on the contrary, was a Congress of only part 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 intending to deny, the power of the said thirty-ninth Congress to propose amendments to the (Jousti'tution of the United States; and, in pursuance of said declaration, the said Andrew Johnson. President of the United States, afterwards, to wit, on the twentyfirst day of February, A. D. eighteen hundred and sixty-eight, at the citv of Washington, in the District of Columbia, did. unlawfully, and in disregard of the requirements of the Constitution, that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act en- titled "An act regulating the tenure of certjiin civil offices," passed March second, eighteen hundred and sixty-seven, by unlawfully devising aud contriving, and attempting to devise and contrive means by •which he should prevent Edwin Jl. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War, notwitbstnndiug the refusal of the Senate to concur in the suspension theretofore made by said Andrew Johuson of said Edwin JI. Stanton from saiil office of Secretary for the Department of War; and. also, by further unlawfully devising and contriving, aud attempting to devise and contrive mean.s, then and there, to prevent the execution of an act entitled "An act making appropriations for the support of the army for the fiscal year ending June thirtieth, eighteen hundred and sixty-eight, and for otiier purposes," approved March second, eighteen hundred aiid sixty-seven ; and, also, to prevent the execution of an act entitled " An act to provide for the more efficient government of the rebel States," passed March second, eighteen hundred and sixty-seven, whereby the said Andrew John.son, Presidimt of the United States, did, then, to wit, on the twenty-first day of February, A. D. eighteen hundred and sixty-eight, at the city of ■Washington, commit, and was guilty of, a high misdemeanor in office. SCHUYLER COLFAX, Attest : Speaker of the House of Reprcscntativas. Edward McPherson, Clerk of the House of Representatives. The President •pro tempore. The Senate will take due order upou the .subject of impeach- ment, of which proper notice will be given to the Hou.se of Eepre.seutatives. The managens of the House of Representatives, accompanied by the Speaker and a large number of members of the House who had been present during the presentation of the articles of impeachment, withdrew from the Senate chamber. Mr. Howard submitted the following resolution and orders, which were read, consid- ered, and adopted : Resolved, That at one o'clock to-morrow afternoon the Senate will proceed to consider the impeachment of Andrew Johuson, President of the United States, at which time the oath or affirmation required by the rules of the Senate sitting for the trial of an impeachment shall be administered by the Chief Justice of the United States as the presiding officer of the Senate sitting as aforesaid, to each nieniber of the Senate, and that the Senate sitting as aforesaid will at the time aforesaid receive the managers appointed by the House of Repre- sentatives. Ordered, That the Secretary lay this resolution before the House of Representatives.^ Ordered, That the articles of impeachment exhibited against Andrew Johuson, President of the United States, be printed. • Ordered, That a copy of the "rules of procedure and practice in the Senate when sitting on the trial of impeachments" be communicated by the Secretary to the House of Representatives, aud a copy thereof deliv- ered by him to each member of the House. Mr. PoMEROY submitted the following order, which was read aud considered: Ordered. That the notice to the Chief Justice of the United States to meet the Senate in the trial of the case of impeachment, and requesting his attendance as presiding officer, be delivered to him by a committee of three senators to be appointed by the Chair, who shall wait upou tho Chief Justice to the Senate chamber aud conduct him to the chair. The order was agreed to ; aud the President pro tempore appointed Messrs. Pomeroy, Wilson, and Bucktilew the committee. Tuesday, March 10. The Senate considered the order offered by the senator from Rhode Island, [Mr. Anthony,] in relation to admissions to the Senate gallery during the trial of tho impeach- ment of Andrew .John.son, as it was reported by Mr. Howard, chairman of the select com- mittee to which it had been referred. Aft(;r discussion and amendment, the order was adopted, as follows : Ordered, That during the trial of tho impeachment now pending no persons besides those who have the privilege of the floor and clerks of the standing committees of the Senate shall be admitted to that portion of tho Capitol set apart for the use of tho Situate and its officers, except upon tickets issued by the sergeaut-at- arms. The number of tickets shall not exceed one thousand. Tickets shall be numbered liud dated, and be good only for the day on which they are dated. Second. The portion of the gallery set apart for the diplomatic corph shall be exclusively appropriated to it, and forty tickets of admission thereto shall be issued to the Baron Oerolt for the foreign legations. Third. Four tickets shall be issued to each senator; four tickets each to the Chief Justice of the United States and the Speaker of the House of Representatives; two tickets to each member of the House of Rep- resentatives; two tickets each to the associate justices of the Supreme Court of tho llnited States; two tickets each to the chief justice and associate justices of the suiuvme court of the District of Cohtmbia ; two tickets to the chief justice and each judge of the Court of Claims; two tickets to each Cabinet officer; two tickets to the General commanding the army ; twenty tickets to the private .secretary of the President of the United .States for the use of the President; aud sixty tickets shall be issued by the President pro tempore of the Senate to the rejiorters of the press. The residue of the tickets to be issui'd shall be distributed among the members of tho Senate in proportion to the representation of their respective States in the House of Representatives, and tho seats now occupied by the suuatora shall be reserved for them. THE TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, FOR HIGH CRIMES AND MISDEMEANORS. The United States vs. Andrew Johnson, President. The Capitol, Thursday, Marcli 5, 186S. At 1 o'clock p. m. the Chief Justice of the United Stcates entered the Senate chamber, accompanied by Mr. Justice Nelson, and escorted by Senators Pome- roy, Wilson, and Buckalew, the committee appointed for that purpose. The Chief Justice took the chair and said : Senators, I attend the Senate in obedience to your notice, for the purpose of joining with you in Ibrming a court of impeachment for the trial of the President of the United States, and I am now ready to take the oath. The oath was administered by Mr, Justice Nelson, the Senior Associate Jus- tice of the Supreme Court of the United States, to Chief Justice Chase in the following words : I do solemnly swear that in all things appertaining to the trial of tlie impeachment of Andrew Johnson, President of the United States, I will do impartial justice according to the Constitution and the laws : so help me God. [The senators rose when the Chief Justice entered the chamber, and remained standing till the conclusion of the administration of the oath to him.] The Chief Justice. Senators, the oath will now be administered to the sen- ators as they will be called by the Secretary in succession. (To the Secretary.) Call the roll. The Secretary proceeded to call the roU'alphabetically, and the Chief Justice administered the oath to Senators Anthony, Bayard, Buckalew, Cameron, Cat- tell, Chandler, Cole, Conkling, Conness, Corbett, Cragiu, Davis, Dixon, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Henderson, Hend- ricks, Howard, Howe, Johnson, McCreery, JMorgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of Tennessee, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull and Van Winkle. The Secretary then called the name of Mr. Wade, who rose from his seat in the Senate and advanced toward the chair. His right to to sit as a member of the court was questioned by Senator Hendricks and discussed, and a motion to adjourn Avas made and carried. A report of the debate will be found in the third volume. The Chief Justice thereupon declared the court adjourned until 1 o'clock to-morrow, and vacated the chair. Friday, March 6, 1868. At 1 o'clock the Chief Justice of the United States entered the Senate chamber, escorted by Mr. Pomeroy, the chairman of the committee appointed for that purpose, and took the ch'air. 12 IMPEACHMENT OF THE PRESIDENT. The CuiRF Justice. The Senate will come to order. The proceedings of yesterday will be read. The Secretary read the " proceedings of the Senate sitting on the trial of the impeachment of Andrew Johnson. President of the United States, on Thursday, March 5, 1S68," from the entries on the journal kept for that purpose by the Secretary. The Chirf Justice. At its adjournment last evening, the Senate, sitting for the trial of impeachment, had under consideration the motion of the senator from Maryland, [Mr. Johnson,] that objection having been made to the senator from Ohio [Mr. Wade] taking the oath, his name should be passed until the remaining meml)crs have been sworn. That is tlie business now before the body. After discussion. Senator Hendricks withdrew his objection, and the Chief Justice announced that the motion made by the honorable senator from Mary- land fell with it. The Secretary called the name of Mr. "Wade, who advanced and took the oath. The Secretary then continued the call of the roll, and the Chief Justice administered the oath to Senators Willey, Williams, Wilson, and Yates, as their names wei-e respectively called. The Secretaiy then called the names of Senators Doolittle, Edmunds, Patter- son of New Hampshire, and Saulsbury, who were not present yesterday ; and Mr. Saulsbury ajjpeared, and the oath was administered to him by the Chief Justice. The Chief Justice. All the senators present having taken the oath required by the Constitution, the Senate is now organized for the purpose of proceeding to the trial of the impeachment of Andrew Johnson, President of the United States. The Sergeant-at-arras will make proclamation. The Sergea\t-at-arms. Hear ye! Hear ye ! Hear ye ! All persons are commanded to keep silence on pain of imprisonment while the Senate of the United States is sitting for the trial of the articles of impeachment against Andrew Johnson, President of the United States. Mr. Howard. I move that the Secretary of the Senate notify the managers on the part of the House of Representatives that the Senate is now organized for the purpose of proceeding to the trial of the impeachment of Andrew Johnson. The Chief Justice. Before putting that question the Chair feels it his duty to submit a question to the Senate relative to the rules of proceeding. In the judgment of the Chief Justice the Senate is now organized as a distinct body from the Senate sitting in its legislative capacity. It performs a distinct func- tion ; the members are under a different oath ; and the presiding officer is not the President i^ro tempore of the Senate, but the Chief Justice of tlie United. States. Under these circumstances, the Chair conceives that rules adopted by the Senate in its legislative capacity are not rules for the government of the Senate sitting for the trial of an imp(^achment, unless they be also adopted by that body. In this judgment of the Chair, if it be an erroneous one, he desires to be corrected by the judgment of the court, or of the Senate sitting for the trial of the impeachment of the President, which in his judgment are synony- mous terms, and therefore, if he may be permitted to do so, he will take the sense of the Senate upon this question, whether the rules adopted on the 2d of March, a copy of which is now laying before him, shall be considered the rules of proceeding in this body. (" Question.") Senators, you who think that the rules of proceeding adopted on the 2d of IMarch should be considered as the rules of proceeding of this body will say " ay ;" contrary opinion, "no." [The senators having answered ] The ayes have it by the sound. The rules will be considered as the rules of proceeding in this body. IMPEACHMENT OF THE PRESIDENT. 13 Rules of procedure and practice in the Senate tc/ten sitting on the trial of impeachments. I. Whensoever the Senate shall receive notice from the House of Representatives that man- agers are appointed ou their part to conduct an impeacbiucnt against any persiin, and are directed to carry articles of impeachment to the Senate, the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articlesof impeachment agreeably to said notice. II. When the managers of an impeachment shall be introduced at the bar of the Senate, and shall signify that they are ready to exhibit articles of impeachment against any person, the presiding officer of the Senate shall direct the Sergeant-at-arms to make proclamation, who shall, after making proclamation, repeat the following words, viz: "All persons are com- manded to keep silence, ou paiu of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachmentagainst ;" after which the articles shall be exhibited, and then the presiding officer of the Senate shall inform the managers that the Senate will take proper order on the subject of the impeach- ment, of which due notice shall be given to the House of Representatives. III. Upon such articles being presented to the Senate, the Senate shall, at 1 o'clock after- noon of tlie day (Sunday excepted) following such presentation, or sooner if so ordered by the Senate, proceed to the consideration of such articles, and shall continue in session from day to day, (Sundays excepted ) after the trial shall commence, (unless otherwise ordered by the Senate,) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful. Before proceeding to the consideration of the articles of impeachment, the pre- siding officer shall administer the oath hereinafter provided to the members 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 the President of the United States, or the Vice President of the United States, upon wliom 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 preside ; 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 the consideration of the articles of impeachment, as aforesaid, with a request to attend ; and the said Chief Justice shall preside over the Senate during the cousideratiou 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 the Secre- tary of the Senate, all orders, mandates, writs, and precepts authorized 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 the attendance of witnesses, to enforce obedi- ence to its orders, mandates, writs, precepts, and judgments, to preserve order, and to pun- ish in a summary way contempts 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. Aud the Sergeant-at-arms, under the direction the Senate, may employ such aid aud assistance as may be necessary to enforce, execute, aud carry into eftect the lawful orders, mandates, writs, aud precepts of the Senate. VII. The presiding officer of the Senate shall direct all necessary preparations iu the Seu- at« chamber, aud the presiding officer upon 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. The presiding officer nuiy, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions ; but the same shall, ou the demand of one-fifth of the members present, be decided by yeas and nays. [This rule was amended on the 31st of March.] VIII. Upon the presentation of articles of impeachment and the organization of the Sen- ate as hereinbefore 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 be fixed by the Senate aud named in such writ, and file his answer to said articles ot inqjeachment, and to stand to and abide the orders and judgments of the Senate thereon; which writs shall be served by such officer or person as shall be named iu the precept thereof such uumber 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 cauuot couveu- iently be done, by leaving such copy at the last known place of abode of such persou or at his usual place of business, in some conspicuous place therein ; or if such service shall be, iu the judgment of the Senate, impracticable, notice to the accused to appear shall be given in such other maimer, by publication or otherwise, as shall be deemed just ; aud 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 the Senate shall direct. If the accused, after service, shall fail to appear, either in persou or by attorney, ou the day so fixed there- 14 IMPEACHMENT OF THE PRESIDENT. foi" as aforesaid, or, appearing, shall fail to file his answer to such articles of impeachment, the trial shall proceed, neveitheless, as upon a plea of not guilty. If a plea of guilty shall be entered judgment niaj' be entered thereon without 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 lousiness of the Senate shall be suspended, and the Secretary of the Senate shall administiT an, (lath to the returning ot^cer in the form following, viz: " I, , do solemnly swear that the 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. 'The person impeached shall then be called to appear and answerthe articles of impeach- ment against him. If he appear, or any person for him, the appearance shall be recorded, stating particularly if by himself, or by agent or attorney, naming the person appearing, and the capacity in Avhich lie ajjpears. If he do not appear, either personally or by agent or attorney, the same shall be recorded. XI. At twelve o'clock and thirty minutes afternoon of the day appointed for the trial of an impeachment, 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 impeachment of , in the Senate chamber, wiiich chamber is prepared with accommodations for the reception of the House of Representatives. XII. The hour of the day at Avhich the Senate shall sit npon the trial of an impeachment shall be (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 pre- siding officer upon such trial shall cause proclamation to be made, and the business of the ti'ial shall proceed. The adjournment of the Senate sitting in said trial shall not operate as an adjournment of the Senate ; but on such adjournment the Senate shall resume the consid- eration of its legislative 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 same manner as the legislative proceedings of the Senate. XIV. Counsel for the parties shall be admitted to appear and be heard upon an impeach- ment. 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 Avhile the Senate is sitting upon the trial of an impeachment the doors of the 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, b3' order, extend the time. XXI. The case, on each side, shall be opened by one person. The final argument on the merits may be made by two i)ersons on each side, (unless otherwise ordered by the Senate, upoTi ajiplication for that purpose,) and the argument shall be opened and closed on the part of tlie Mouse of Representatives. XXII. On the final question whether the inq)eaclunent is sustained, the yeas and nays shall be taken on each article of impeachment separately ; and il the impeaeliment shall not, upon any of tiie articles presented, be sustained by the votes of two-thirds of liie uiembers present, a judgment of accjuittal 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 tiie members present, the Senate shall proceed to pronounce judgment, and a certified copy of such judgment sluiU be deposited in the office of the Secretary of State. XXIII. All the orders and decisions shall be made and had by j'eas and nays, which shall be entered on the record, and without debate, except when the doors shall be closed for deliberation, and in that case no nuunber shall speak niore than once on one ([uestion, and for not more than ten minutes on an interlocutory (piestion, and for not more than fifteen minutes on the final (|uestion, unless by consent of the Senate, to bo had without debate ; but a motion to adjourn may be decided witiioutthe yeas and nays, unless they be demanded by one-fifth of the members present. IMPEACHMENT OF THE PRESIDENT. 15 XXIY. Witnesses shall be sworn ill the following torni, namely : "Yon, do swear (or aflinri, as the ease may be) that the evidence you shall give in the ease now depending- between the United States and shall l)e the truth, the wliole truth, and uotbiug but the truth : so help you God." Which oath shall be administered by the Secretary or any other duly authorized person. Form of subpo?ua to be issued on the application of the managers of the impeachmeut, or of the party impeached, or of his counsel : 2o 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 the city of Washington, then and there to testify your knowledge in the cause which is before the Senate, in which the House of Kepreseutatives have impeached . P^ail not. Witness , and presiding oflicer of the Senate, at the city of Washington, this day of , in the year of our Lord , and of the independence of the United States the . 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 the Senate sitting in the trial of impeach- ments : I solemnly swear (or affirm, as the case may be,) that in all things appertaining to the trial of the impeachmeut of , now pending, I will do impartial justice according to the 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: Wliereas the House of Representatives of the United States of America did, on the day of , exhibit to the Senate articles of impeachment against you, the said , in the words foUow'ug: I Here insert the articles. ] And demand that you, the said , should be 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, the said , are therefore hereby summoned to be and appear before the Senate of the 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 tlie said articles of impeachment, and then and there to abide by, obey, and per- form 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 the independence of the United States the . Form of precept to be indorsed on said writ of summons : The United States of 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 sunnnous, together with a like copy of this precept; and in whichsoever way you perform the service let it be done at least days before the 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 the 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 independence of the United States the . All process shall be served by the Sergeant-at-arms of the Senate, unless otherwise ordered by the court. XXV. If the Senate shall at any time fail to sit for the consideration of articles of impeach- ment on the day or hour tixed therefor, the Senate may, by an order to be adopted without debate, tix a day and hour for resuming such consideration. 16 IMPEACHMENT OF THE PRESIDENT. The Chief Justice. The senator from Michigan moves — will the senator have the goodness to repeat his motion 1 Mr, Howard. My motion is that the Secretary of the Senate notify the managers of the House of Representatives that the Senate is now organized for tlie purpose of trying the impeachment against Andrew Johnson, and is ready to receive them. The clerk will be good enough to put it in form. The Seci-etary read the order, as follows : Ordered, That the Secretary of the Senate notify the House of Representatives that the Senate is now orpmized for the trial of the articles ofimpeachineut against Andrew Johnson, President of the United States, and is ready to receive the managers of the impeachment at its bar. The motion was agreed to. After a pause, and at 13 minutes before 3 o'clock, the managers of the impeach- ment on the part of the House of Representatives (with the exception of Mr. Stevens) appeared at the bar, and their presence was announced by the Sergeant- at-arms. The Chief Justice, The managers of the impeachment on the part of the House of Representatives will please take the seats assigned to them. The managers having been seated in the area in front of the Chair, Mr. IVIanager Bingham rose and said : Mr. President, we are instructed by the House of Representatives, as its managers, to demand that the Senate take process against Andrew Johnson, President of the United States, that he may answer at the bar of the Senate ujjon the articles of impeachment heretofore preferred by the House of Representatives through its managers before the Senate. Mr. Howard. I move for an order that a summons do issue to Andrew John- son, President of the United States, in accordance with the rules which we have adopted — I refer particularly to the eighth rule — returnable on Friday, the 13th day of March instant, at 1 o'clock in the afternoon. The Chief Justice. The Secretary will read the order. The Secretary read as follows : Ordered, That a summons do issue, as required by the rules of procedure and practice in the Senate when sitting on the trial of impeachments, to Andrew Johnson, returnable on Friday, the 13th day of March instant, at ] o'clock in the afternoon. The order was adopted. Mr. Anthony offered an amendment to the rules for the consideration of the court, which, after discussion, was laid on the table at his request. Strike out the last clause of rule seven in the following words : The presiding officer may, in the first instance, sxrbmit to the Senate without a division all questions of evidence and incidental (juestions ; but the same shall, on the demand of oue- nfth of the members present, be decided by yeas and nays. And in lieu of those words to insert : The presiding officer of the court may rule all questions of evidence and incidental questions, which ruling shall stand as the judguieiit of the court, unless some member of the court shall ask that a formal vote be taken thereon, in which case it shall be suhuiitted to the court for decision ; or he may, at his option, in the first instance submit any such question to a vote of the members of tlie court. Mr. Howard. I move that the Senate, sitting upon the trial of the impeach- ment, adjourn to the time at which the summons just ordered is returnable — Fri- day, the 13th instant, at 1 o'clock in the afternoon. The Chief Justick. The question is upon the motion to adjourn uulil Fri- day, tlu! 13th instant, at 1 o'clock in the alternooa. The motion was agreed to; and the Chief Justice thereupon declared the Senate sitting for the trial of the impeachment adjourned to the time named, and vacated the chair. IMPEACHMENT OF THE PRESIDENT. 17 Friday, March 13, 1868. The Cliief Justice entered tlie Senate chamber and took the chair. The Chikf JiiSTlcn, (to the Sergcant-at-arm;?.) Make proclamation. The Sergkantat-arms. 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 impeachment exhibited 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, notifying 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 ses- sion of the court, and then the senators will be sworn. The Secretary read the journal of the proceedings of the Senate sitting for the trial of impeachment of Andrew Johnson, President of the United States, on Friday, March 6, 1SG8. Mr. Co.\KLL\G. I move that the reading of the articles of impeachment in extcnso, 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 wilh be considered as agreed to if no objection be made. The Secretary continued and concluded the reading of the 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 Represent- atives 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 agreed 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 conducted to the position as- signed them. Managers. — Hon. John A. Bingham, of Ohio ; George S. Boutwell, of Mas- gachusetts; James F. Wilson, of Iowa; John A. Logan, of Illinois; Thomas Williams, of Pennsylvania; Benjamin F. Butler, of Massachusetts; Thaddeus Stevens, of Pennsylvania. 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 admin- istered 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 Hampshire, 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 Sergeani-at-arms to the summons directed to be issued by the Senate. 2 I P 18 IMPEACHMENT OF THE PRESIDENT. The chief clerk read the following return appended to the writ of summons : The forogroing writ of summons, addressed to Andrew Johnson, President of the United States, and the foregoing precept, addressed to me, were tliis day duly served on tlie said Andrew Johnson, President of the United States, by delivering to and leaving with him true and attested copies of the same at the Executive Mansion, the usual place of abode of the said Andrew Johnson, on Saturday, the 7th day of March instant, at seven o'clock in the afternoon of that day. GEORGE T. BROWN, Sergiant-at-arms of the United States Senate. Washington, March 7, 1868. The chief clerk administered to the Sergeant-at-arms the following oath : I, George T. Brown, Sergeant-at-arms of the Senate 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. 1868, by the Senate of the United States against Andrew Johnson, President 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 Sergeai\t-at-arj\is. Andrew Johnson, President of the United States; Andrew Johnson, President of the United States : appear and answer the arti- cles of impeachment exhibited against you by the House of Representatives of the United States. Mr. JoHMSoN. 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 advised, 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 of the President. The Sergeant at-arms presently returned with Hon. Henry Stanbcry, of Ken- tucky ; Hon. Benjamin R, Curtis, of Massachusetts, and Hon. Thomas A. R. Kelson, of Tennessee, who were conducted to the seats assigned the counsel of the 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 direction of the committee 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 "subject, however, to the opera- tion of rule seven." If thus amended the rule will read : All 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, except when the doors shall be closed &c. The whole object is to commit to the presiding ofBcer the option to submit a ques- tion without the call of the yeas and nays unless they be demanded. That was the intention originally, but the qualifying words were dropped out in the print. The Chief Justice. The questio'u is on amending the rules in the manner proposed by the senator from New York. The amendment was agreed to. The Sergeant-at-arms announced the members of the House of Representa- tives, Avho entered the Senate chamber preceded by the cliairman of tlie Com- mittee of the 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 articles of impeachment. The President of the United States appears by counsel. The court will now hear you. Mr. Stanheuy. Mr. Chief Justice, my brothers Curtis and Nelson and my- IMPEACHMENT OF THE PRESIDENT. 19 gelf are here this morning as. counsel for the President. I have his anthority to enter his appearance, which, with your leave, I will proceed to read : In thb 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, sit- ting as a court of impeachment, to answer certain articles of impeachment found atid presented against me by the honorable the House of Representatives of the United States, do hereby enter my appearance by my counsel, Henry Stanbery, Benjamin R. Curtis, Jeremiah S. Bhick, William M. Evarts, and Thomas A R. Nelson, who have my warrant and authority therefor, and who are instructed 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 counsel, 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, 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 un- til the appearance is entered, your honor will decide. The Chief Justice. The appearance will be considered as entered. You may proceed, Mr. StaiXBERY. I will read the statement. In the matter of the impeachment of Andrew Johnson, President of the United States, Henry SStaubery, Benjamin R. Curtis, Jeremiah 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 articles of impeachment, and in support of the motion make the following professional state- ment: The articles are eleven in number, involving many questions of law and fact. We have, during the limited time and opportunity afforded us, considered as far as possible the field of investigation which must be explored in the preparation of the answer, and the conclusion 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 February 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 iu preparing 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 answer, 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 of the 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 entitled 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 dutie.s interfered with their attention to that business ; whereaa the President, not being a lawyer, must rely on his counsel. The 20 IMPEACHMENT OF THE PRESIDENT. charges involve his acts, declarations, and intentions, as to all wLiicli his counsel must be fully advised upon consultation with him, step by step, in the prepara- tion of his defence. It is seldom that a case requires such constant communication between client and counsel as this, and yet such communication can only be had at such intervals as are allowed to the President from the usual hours that must be devoted to his high official duties. We further beg leave to suggest for the consideration of this honorable court, that as counsel, careful as well of their own reputation as of the interests of their client in a case of such magnitude as this, so out of the ordinary range of pro- iessional experience, where so much responsibility is felt, they submit 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, ) WILLIAM M. EVARTS, ) ^^^' -"• ^• THOMAS A. R. NELSON, Of Counsel Jar the Respondent. March 13, 1S6S. 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 tbe appearance of the ac- cused at its bar, until that rule be set aside by the action of the Senate, a motion for continiiance to answer is not allowed, the provision of the rule being that if he appear he shall answer; if he appear and fail to answer, the case shall pro- ceed as upon the general issue; if he do not appear, the case shall proceed as upon the general issue. The managers appeared at the bar of the Senate im- pressed with the 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 fil^d, in the langunge of the rule the trial should still proceed as upon the plea of not guilty. Mr. Curtis. Mr. Chief Justice, if the construction which the honorable managers have placed upon this rule be the correct one, the counsel of the Pres- ident have been entirely misled by its phraseology. They have construed the rule in the light of other similar rules existing in courts of justice. For instance, in a court of equity ove«' which your Honor in another ])lace presides, parties are by a subpoena required to appear on a certain day and answer the bill, but certainly it was never understood 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 summoned 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 wo find a nde by which the President is n quired to appear on this day and "answer" and "abide." Certainly that part of the rule which relates to abiding has reference to future proceedings and to the final resvdt of the case. And so, as we have construed tlie rule, that part of it which relates to answering has reference to a future proceeding, which occurs in the ordinary course of justice, as I have stated, either under some general nde or by a special order of the court. We submit, therefore, as Cf)unsel for tlu; J^res- ident, that this interpretation of the rule which is placed upon it by tlie hon- orable managers is not the correct one. Mr. Manager Wilson. Mr. President, I desire to say on beh,iU' of the mana- gers that we do not see how it were possible for tlie eighth ruh^ adopted by the Senate to mislead the respondent of counsel.' That rule provides that — Upon the pre.scutation of the articles of impcaclimont and the ori^auizution of the Senate as hereinbefore provided, a writ of summons shall issue to the accused, reciting said articles, IMPEACHMENT OF THE PRESIDENT. 21 anri notifyinf;: him to appear before tlio Senate on a day aud at a place to ho. fixed by tlie Senate and named in sncli writ, and tile liis answer to said articles of impeacbmeut, 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 attorney, 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 nevertheless as upon a j)lea of not guilty. The learned counsel, in the professional statement submitted to the Senate, refer to the cases of Judge Chase and Judge Peck. I presume that in the ex- amination of the records of those cases the attention of counsel was directed 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 requh-ed 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 lii^ answer to said articles of impeach- ment," and that if, on appearing, he " shall fail to file his answer to such articles of impeachment, the trial shall proceed nevertheless as upon a plea of not guilty." I submit, therefore, Mr. President, that the change which has been made in ths rules for the government of this case must have been made for some good reason. What that reason may have been may be a subject of discussion in this case here- after ; 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 representing, that the rule adopted by the Senate for the government of this case may be enforced. 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. Sta\bery. Mr. Chief Justice, the objection taken by the honorable managers is so singular that in the Avhole course of my practice I have not met with an example like it. A case like this, Mr. Chief Justice, in which the Pres- ident of the United States is arraigned upon an impeachment presented by the House of Representatives, a case of the greatest mugnitude we have ever had, i?, as to time, to be treated as if it were a case before a police court, to be put through with raih*oad 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." We are here ; we enter our appear- ance ; 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 subpoena in chancery ; but who ever hear.d 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 answei- ; we do not wish this case to go by deffiult ; 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 professional statement, two are not present and cannot 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 suspected 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 Low it will do to read them all according to the letter. If the gentlemen are 22 IMPEACHMENT OF THE PRESIDENT. riglit, if we are here to answer to-day, and to go into the trial to-daj, then this is the day fixed for the trial by your rules. Let us see whether it is. Rule niue provides : At twelve o'clock ami thirty minutes afternoon of the day appointed for tlie return of the sumuious against the person impeached. This is the return day ; it is not the trial day. The letter answers the gen- tlemen. According to the letter of the eighth rule they say '' this i^ the trial flfiy > go on ; not a moment'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 (juce 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 impeach- ment against him. I'hat is the call made on the return day. The accused is called to appear and answer. He is here ; he appears ; he states his willingness to answer ; he only asks a reasonable time to prepare the answer. Then rule eleven speaka " 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 President has been engaged in procuring his counsel, 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 whtre 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 sum- mon until the pleadings are prepared. We are entirely at sea. I submit, Mr. Chief Justice, to the honorable court that arc 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 tlie 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 hearing, we shall be prepared for that sentence, whatever it may be, that you shall pronounce. Mr. ]\Ianager BiMGHAM, Mr. President, it . The Chief Jcstick. Before coun.sel proccsed, the Chief Justice desires to state to the Senate that he is embarrassed in the construction of the rule. The twenty- first rule provides that " the case .on each side shall be op»;ned by one person." He understands that as referring to the case when the evidence is in and tho cause is ready !or argument. The twentieth nile 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 is intended to a[)ply to the whole argument upon each side or to tlie argu- ment of each counsel who may address the court is the question which the Chief Justice is at a loss to solve. In tin; present case he has allowed the argument to proceed without attempting to restrict it, and, unless the Senate order other- wise, h(! will proceed in that course. Mr. M.mager Bingham. I^Ir. President, it wa.s not my purpose when I raised the question, under the rule, to be decided by the Senate, to touch in any way IMPEACHMENT OP THE PRESIDENT. 2J upon the merits of any application that might hereafter be made, after i^sne joined, for an extension of time for preparation for the triaL The only objf'ct I had in view, Mr. Pn^sident, 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 ai-e 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 may be, the rule which governs in matters 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 conduct 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. StanberyJ 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, 1 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 volume of State Trials lies before me, wherein Lord Holt presided, on the trial of Sir Richard Grahme, Viscount Preston, and others, charged with high treason. In that case the accused ap- peared, as the accused by the learned gentlemen appears this morning, after the indictment 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 con-' sider the question of trial or the time of trial until plea be pleaded. Let me give his very words : L. C. J. Holt. My lord, we debate the time of your trial too early ; for you must put your- self upon your trial first by pleading. And when Lord Preston presses him again on the point Lord Chief Justice Holt responds : My lord, we 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 niny be no occasion for a trial. I can- not tell what you will plead; your lord.ship must answer to the indictment before we can enter into the debate of this matter. — 12 Stute Truils, 6(34. The eighth rule of the Senate, last clause, provides that if the party appear- ing 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 Con- stitution. 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 tlie 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 afore.said, or appearing shall fail to file his answer, [on tlie day oa which he is summoned to appear, J the trial sliull proceed nevertheless as upon a plea of uot 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 thi.s bar. All they ask is the enforcement of the rule, uot 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 raising 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 24 IMPEACHMENT OF THE PRESIDENT. prescribing hy 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 ad- vance, it was intended thereby to require as well as to enable the party on tho day fixed for his appearance, as the rule presci'ibes, to come to this bar pre- pared 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 nowise control or limit or fetter the aciion of this body ; and under the plea of " not guilty," as provided in the rules, every conceivable defence that the party accused could make to 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 ac- cused. That is our inquiry. It is not my purpose to enter into any discussion upon the question of postponing 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 Jistice. Senators, the counsel 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. You who are in favor of that motion will say " ay." Mr. Edmunds. Upon that subject I submit the following' order : Ordered, That the respoudeut file his answer to the articles of impeachment on or before the 1st day of April next, and that the managers of the impeachment file their replication thereto within three days thereafter, 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 de- termination. 5Ir. Manager Bingham. I am 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 deler the day of answer. The Chief Justice. The motion of the counsel for the President is the mo- tion in order before the Chair. The Chair regards the motion submitted by the senator from Vermont [Mr. Edmunds] as an amendment ; and the question is upon agreeing to the order submitted by him as an amendment to the motion of the President's counsel. 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 In- diana, that the court now retire for consultation. The motion was agreed to ; and at three minutes before two o'clock the sen- ators, witli the Chief Justice, repaired to the reception-rooni of the Senate for consultation. At eight minutes past fiur o'clock the senators returned to the Senate cham- ber, and the Chief .lustier- rcsumi'd the chair. The Chief Justice. The Chii-f Justice is instructed to state to the counsol for the accus(>d that the motion inadii by them is overruled, dfMiied, and that the Senate has adopted an ordor, which will be read by tin; Secretary. The Secretary read as follows : Ordered, That the respondent file an.swcr to the articles of impeachment on or before Mon- day, the 2'.5d day of March iu.stant. Mr. Manager Bingham. Mr. President, I am instructed by the managers to IMPEACHMENT OF THE PRESIDENT. 25 submit to the consideration of the Senate a motion which I send to the desk to be read. The Secretary read as follows : The mauagers ask the Senate re.si)ectfiilly to adopt the following order: Ordered, That upon the filing of a replication by the managers on the part of the House of Eepresentatives the trial of Andrew Johnson, President of the United States, upon the arti- cles of impeachment exhibited by the House of Representatives shall proceed forthwith. The Chief Justice put the question upon the order asked by the managers and declared that it appeared to be rejected. Mr. Su.M.\ER called for the yeas and nays, and they were ordered ; and being taken, resulted — 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, Sumner, Thayer, Tipton, Williams, Wilson, and Yates — 'i.5. Nays: Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Norton, Patterson of Tennessee, Saulsbury, Sherman, Sprague, Trum- bull, A'an 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 submit the following motion : Ordered, That the trial of the articles of impeachment shall proceed on the 6th day ot April next. Mr. Wilson. I move to amend that order by striking out "the 6th day of April " and inserting "the Ist day of April." Mr. Manager Butler. I should like to inqtiire of the President and the Senate if the managers in behalf of the House of -Eepresentatives have a right to be heard upon that motion ? Mr. Sumner, Unquestionably. The Chief Justice. The Chair is of the 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 imgracious 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 our duty to those who sent us here, representing their wishes, speaking in their presence 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 gentle- men 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 republic; and we were told that "railroad speed" ought not to be used in this trial. Sir, why not? Railroads have affected every other business in the civilized world; tele- graphs 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 expression, to send a message for him — from California now than it took to send for 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 telegraphs, as bearing upon this trial. They give the accused the privilege of calling his counsel 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 overlooked that railroads and telegraphs have changed the order of time. In every other business of life we recognize, that change, and why ^hould we not in this ? But, passing from that, which is but an incident and a detail of the trial, will you allow me further to suggest that the ordinary course of justice, the ordinary 26 IMPEACHMENT OF THE PRESIDENT. delays in court, the ordinary time given in ordinary cases for men to answer ■uheu called before tribunals of justice, 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 ordinary 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 Representa- tives 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 judg- ment upon tiieir 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 who present him here, the Congress of the United 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 ordinary rules this trial, because I submit with defer- ence 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 consiitutional method, under the rules and forms prescribed by its constitution; and therefore all the lules, all the analogies, all the likeness to a common and ordinary trial of any cause, civil or criminal, cease at once, are silent, • J. 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 subversion of their constitutions and framev.'ork of government, not in submission to and in accordance with it. When I name the i:espondent as the Chief Executive, I thereby say he is the Commander-in-chief of your armies; he specially claims that command, not by force and under the limitations of your laws, but as a prerogative of his office, and subject to his arbitrary will. He controls, through his subordinates, your treas- ury, lie commands your navy. Thus he has all the elements of power. He con- trols your foreign relatiuns. In any hour of passion, of prejudice, of revenge for fancied wrono^ 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 executive power only — to control the great militJiry arm of this government, and contnd it if he chooses, at his own good pleasure, to your ruin and the ruin of the country. Indeed, sir, do we not know, may wc not upon this motion assume, the fact up'on common fame and the current history of events that the whole bu.^iness of the War Department 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 haiS declared the legal Secretary of War, and whom Congress, under its power legitimately exercised, has determined shall be recognized as the legal Secretary of War. Do we not also know, that while lu; claims to have appointed a Secretary ad interim, he dare not recognize him, and thus the entirf. business of the War Department is stopped? The Senate of the United States have confirmed the appointment 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 d(^- layed weeks, and the proposition on the respondent's part is that they shall be IMPEACHMENT OF THE PRESIDENT. 27 clelayed 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 answer to certain articles of impeach- ment. Having 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 constitutional, but highly and truly anomalous proceeding 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 prosperity return, to have the spring open as auspiciously 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, and may God send him a good deliverance, if he so deserve, at the earliest possible hour ; ay, the very earliest hour consistently with tlie 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 sup- posed 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 under criminal law or the civil law, let him when he comes here, under his oath and under the certificate of his counsel, say that ' ^ cannot 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 i^jc in advance presume that he cannot get ready until he comes and shows to the Senate some reason, upon his oath, M'hy he may not be ready. Let every part of the case stand upon its own merits; If the respondent comes here and says to the Senate, after he puts in his answer, " I um 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 1 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 would testify thus, and thus, and thus, and you shall have the entire benefit of the testimony ; for God forbid — and I speak with all reverence — that we should deprive him of a single right or a single indulgence consistent with the 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, perhnps tJie 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 thelegal 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 difm. M«ke the days as long as the judges of England made them, when they sat twenty-two liours out of the twenty-four in the trial of great criminals, and we, tlie 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 pervitors, for the purpose of justice. We have had only from the 22d of Feb- ruary to now to make ready for the trial of the accusation. He has had just as long. He knew at first more about this action of his than we could. He 28 IMPEACHMENT OF THE PRESIDENT. knows all about it now. He knows exactly what lie 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 IJuitcd States, say with only these fourteen days' preparation. You have granted him seven more, t^ay 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 beheld to meet us with the defence. Sir, I trust you will pardon me a single further suggestion. I hope hereaf- ter no mau 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 counsel — I know one of them would not for his life say what he did not be- lieve — Iiave told us that the articles of impeachment were sq grave and so substan- tial 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 tliat I have made myself understood in this unpre- pared 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 upou the question of tiie necessity for this country that justice 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 it so ; the counti,y will have quiet then. If you come to the other deter- mination 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 dangerous to mislead us. Let us deal with this matter as one wherein the lile of the nation hangs trembling in the scale; where the rights of the nation are put in the balance, and a trial is to be had upon the greatest question that ever yet engaged the attention of any body, however learned or however wise, sitting in judgment. Mr. Nklsun. Mr. Chief Justice, and gentlemen of the Senate : I have en- tered this chamber as one of the c mnselof the President, 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 impi-essed 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 consideration, not as mere party questions, but as the grand tribunal of the nation, disposed to dispense justice ecjually between two of the greatest powers, if I may so express myself, in the land. I have conn; here under the impression that there is much force in the observation which the honorable manager made in regard to the forms of ])roceeding in this tribunal, that it is not to be governed by the iron and rigid ruh-8 of law, but that, seeking to attain justice, it is disposed to allow the largest liberty in the progress of the invef^tigation, both to the honorable managers on tlie part of the House of Representatives, and to the counsel in behalf of thti President of the United States. Impressed with the idea that this tribunal will discard in a great degree those forms and ceremonies which arc known to the common law ; that it does not stand upou demurrers ; that it will not stand particularly upon the forms of evi- IMPEACHMENT OF THE PRESIDENT. 29 deuce, or those technical rules which prevail in other courts, I have supposed that there was nothing improper in our making an appeal to this trilnmal for time to answer the charges which have been preferred against the President of tlie United States; and that, instead of that being denied, much more liberality- would be extended by the Senate of the nation, sitting as a court of impeach- ment, 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 discus- sion 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 honorable manager, [Mr Butler.] I do not propose at this sfcige of your proceedings to enter into any discussion of them. You are told, however, that it is right in a case of thia kind to proceed with railroad speed ; and thati in consequence of the great im- provements 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 Avill have to be considered by this honorable body are questions of the deepest and profound- est interest. They are questions in which not only the representatives of the people are concerned, but the people themselves have the deepest and most last- ing interest -in the result of this investigation. Questions are raised here in regard to differences of opinion between the Executive of the nation and the hon- orable House of Representatives as to their constitutional powei's, and as to the rights which they respectively claim. These are questidhs of the utmost grav- ity, and questions which, in the view we entertain of them, should receive the most deliberate consideration on the part of the Senate. 1 trust that I shall be pardoned by the Chief Justice and the senators in making an allusion to a statute which has long been in force in the State from' which 1 come: I only do it for the purpose of making a brief argument by analogy to you and the honoi-able 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 indictment 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 mankind, it is the fact that judges and courts hasten slowly in the investigation of cases that are presented to them. Nothing is done or presumed to be done in a state of excitement. Every moment is allowed for calm and mature deliberation. The courts are in the habit of investigating cases slowly, 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 of judicial minds and legal minds everywhere, and they meet the approbation and the confidence of the people before whom they are promul- gated. If this is and ever has been one of the proudest characteristics, if I may so express myself, of the forms of judicial proceedings in our courts, how much more in an exalted and honorable body like this ; how much more in an assem- bly composed of some of the wisest and greatest men in the United States, senators revered and honored by their countrymen, senators who from their posi- tion are presumed to be free from reproach, who from their position are pre- sumed 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 opportunity to be given for a fair investigation. Mr. Chief Justice, I need not tell you, nor need I tell many of the honorable 30 IMPEACHMENT OF THE PRESIDENT senators whom T adflress 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^he laud the right not only to be heard himself, but to be heard by counsel ; and no matter how great his crime, no ma4;ter how deep may be the malignity of the offence with which he is charged, he is tried according to the forms of law ; he is allowed to have counsel ; 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 iu courts of common Jaw, that are fettered and bound by the iron rules to which I have adverted, liow much more in a great tribunal like this, that does not follow the precedents of law, but that is aiming and seeking alone to attain justice, ought we to be allowed ample time for preparation in reference to charges of the nature which we have here ! Ho\v much more, sir, should such time be given us ! We are told that the President acted in regard 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 Representatives 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 defence. Mr. Chief Justice, is it necessary for me to remind you and honorable senators that you can upon a page of foolscap pape!#prepare a bill of indictment against an individual which may require weeks in the investigation? 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 defence 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 these charges — those of them connected with the President's action iu reference to the Secretary of War — involve questions of the deepest importance. They involve au inquiry running back to the very foundation of the government ; they involve an exam- ination of the precedents which have been set by different administrations ; 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 par- doned for using the expression in the view which I entertain of them, open Pandora's box, and will cause au investigation as to the great differences of opinion which have existed between the President and the House of Represen- tatives, an inquiry which, so far as I can perceive, will be almost interminable in its character. Now, what do we ask for the President of the United States? The honor- able manager corrected hinistjlf 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 1 Why, sir, we ask simply that he shall be allowed time for his defence. And upon whose judgment is he to rely in regard to that? He must, iu great part, rely upon the judgment of his counsel, those to whom he Ins intrusted his defence. We, upon our professional responsibility, have asserted, in the presence of this Senate, in the face of the nation and of the whole world, that we believe it will require the number of days to prepare the Presi- deut'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 judicial tribunal, in hot haste and with railroad speed, without giving to the President of the United States the opportunity to an.-wer them, that same opportunity which you would give to the meanest criminal that ever was arraigned before the bar of IMPEACHMENT OF THE PRESIDENT. 31 justice in any tribunal in tlu3 or in tlic country from which wc borrowed our law? I cannot believe, Mr. Chief Justice, that honorable senators will hesitate for one moment in granting us all the time that may be necessary to prepare our defence, and that may be necessary to enable them to decide as judges care- fully, deliberately, conscientiously, and with a view of their accountability, not only to their constituents, but their accountability to posterity who are to come after ns, 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. 1 have no doubt that honorable senators, injustice to themselves and injustice to the great land which they represent, will endeavor to conduct this investigation in a manner that will stamp the impress of honor and justice upon them and upon their pi'oceedings, 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 tribunal. I say it in no spirit of com- pliment. 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, honorable members, "who are sent here to sit in judgment 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 instances in the history of the world in which the ruler of a people has been presented by a portion 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, sub- mits himself calmly, peaceably, and with a confident reliance on the justice of the honorable Senate who are to hear his cause. Mr. Chief Justice, 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 be quoted as a precedent for others, will be conducted 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 the Senate for cause shown, tlie trial of the pending impeachment shall proceed immediately after replication shall be tiled The Chief Justice. The amendment submitted by the senator from New York does not appear to the Chair to be in order at present. 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 impeachment shall proceed on the Gth day of April next. The senator from Massachusetts [Mr. Wilson] 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 sayiue: Monday, the 30rh of March. ^ ^ S J'. Mr. CoNKLiitG. 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 IMassachusetts 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." 32 IMPEACHMENT OF THE PRESIDENT. Tlio Chief Justice. The Chair conceives that the amendment offered bj the senator from New York is not in order. Mr. WiLSOi\. For the purpose of bringing the motion made by the senator from New York before the body, I withdraw my amendment, so that his amend- ment will be in order. Mr. CoNKLi.VG. 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, imless otlierwise ordered by the Senate for cause shown, the trial of the pending im- peachment 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. Conklingl is entirely sati.-^factory to the managers for the House, and to say further to the Senate that we believe it is in perfect accord with the precedents in this country. The Senate will doubtless remember that on the trial of Jus- tice Chase, when a day was fixed for an answer, upon his own petition, verified by his atfidavit, the Senate adopted an order which was substantially the order as suggested by the amendment 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 coiinsel for the accused we beg leave to respond that we are chargeable with no indi cent haste when we ask that no unnecessary delay shall interpose between the people and the trial of a man who is charged with Im'ing violated the greatest trusts ever committed to a single person ; trusts that involve the highest interests of the whole people ; trusts that involve the peace of the whole country ; trusts that involve in some sense the success of this last great experiment of representative government upon the earth. We may be pardoned, further, sir, for saying that it strikes us somewhat with surprise, without intending the slightest possible disrespect to any member of this body, that any proposition should be entertained for the continuance of a trial like this, when no formal application has been made by the accused him- self. To be sure, a molion 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, we venture to pay, satisfactory to the whole country, as it is certainly satisfactory to the rep- resentatives of the people at this bar. Now, sir, that being disposed of, the Senate having deterniiued 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 tliereto by the representatives of the people, and then see and know what colorable excuse can be oft'ered, either by the accused President in his own person or through his representatives, why tliis trial should be delayed a single hour. If he be innocent of the grave accusations prepared against him, the truth will Boon be ascertained by this enlightened body ; dnd he has the right, if the fact so appear, to a speedy deliverance, and the country a right to a speedy deter- mination of this important queslion. If, oa the other hand, he be guilty of these giave and serious charges, what man is there within this body or outside of this body ready to say that he should oue day or hour longer disgrace the IMPEACHMENT OF THE PRESIDENT. 33 high position which has been held hitherto by some of the noblest and mos^t 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 tluir great trust. The people so think. They have made tliat issue with the President of the United States at this bjir ; 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 uiniecessHiy delay, and no delay at all until good cause is shown for delay in the mode and manner hitherto observed in proceedings of this sort. Mr. Johnson. iMr. President, I ask that the resolution offered by the honor- able member from Ohio shall be read. I did not hear it distinctly. The Chief Justice. It will be re])orted. . The Chief Clekk. The order as submitted by Mr. Sherman is as follows : Ordered, That the trial of the articles of impeachment shall proceed on the 6th day of April next. The senator from New York [Mr. Conkling] 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 ini- peachuieut 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 accused may well be in ignorance of the time when the trial will begin under the order as it stands. Mr. Manager Bingham. Will the honorable senator allow me to suggest to him that we can only file the replication with the consent 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 ia 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. 1 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. Tlie Chief Justk'B. No debate can be had. The Chair understood the senator from Maryland as siioply 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 sup- posing that I rose to deb-ate the question. I only rose for the purpose of inquiring what the question was. I suppose that is allowable. rhe Chief .Justice. Is the Senate ready for the question on the substitute proposed by the senator from New York 1 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, Chandler, Cole, Conkling, Conness, Corbett, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Henderson, Howard, Howe, Morgan, Morrill of Maine, Jlorrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Tnnnbull, Van Winkle, Wiliey, Williams, Wilson, and Yates — 40 Nays— Messrs. Bayard, Buckalew, Davis, Dixon, Hendricks, Johnson, McCreery, Pat- terson of Tennessee, Saulsbury, and Yickers — 10. Ahskkt — Messrs. Cragin, Duolittle, Norton, and Wade — 4. 3 I P 34 IMPEACHMENT OF THE PEESIDENT. So the amendment was agreed to. The Chikf Justice. The question 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 shoAvn, the trial of the peudiiig iQipeachment shall proceed inmiedlately after replication shall be filed. The order was agreed to. Mr. Howard. If there he 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 acciised, I move that the Senate sitting on the present impeachment adjourn to the 23d day of the preserit mouth, 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 managers on the part of the House of Rep- resentatives anything to propose ? Mr. Manager Bi.vgham. Nothing further at present. The Chief Justice, Have the counsel for the accused anything to propose i Mr. CuKTis. Notliing. The Chief Justice. Senators, the motion is to adjourn the Senate sitting for the trial of this impeachment until the 23d of March. The motion was agreed to. The Chief Justice thereupon vacated the chair. Monday, March 23, 1S68. At 1 o'clock p. m. the Chief Justice of the United States entered the Sen- ate chamber, escorted by Mr. Pomeroy, the chairman of the Senate committee heretofore appointed for that purpose, and took the chair. The Chikf Justicu. The Sergeant-at-arms will open tlic court by procla- mation. The Sergeant-at-arms. Hear ye, hear ye, hear ye: all persons are com- manded 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 United States. The managers of the impeachment on the part of the House of Representa- tives appeared at the door, and their presence was^announced by the Sergeant- at-arms. The Chief Justice. The managers will take the seats assigned to tliera by the Senate. '1 he managers accordingly took the seats provided for them in the area of the Senate to the left of the Presidiug Officer. The counsel for the President, Hon. Henry Stanbery, of Kentucky ; Hon. B. R. Curtis, of Massachusetts; Hon. Thomas A. R. Nelson, of Tennessee; William M. Evarts, Esq., of New York, and Hon. William S. Giocsbeck, of Ohio, appeared and tuok the scats assigned to them on the right of the Chair. The Sergeant-at-arms announced the presence of the House of Representa- tives ; and the Committee of the; Whole House, headed by Mi-. E. B. Wash- burne, 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 Beats assigned them. The Secretary called the name of Mr. Doolittle, who had not heretofore been sworn, and the oath prescribed by the rules was administered to him by the Chief Justice. IMPEACHMENT OF THE PRESIDENT. 6b The Chief Justice. The Secretary will read tbe minutes of the proceed- ings of the last sitting. The Secretary read the journal of the proceedings of Friday, March 13, of the Senate sitting for the trial of the impeachment of Andrew Johnson, Presi- dent 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 that occasion, when it had retired for deliberation : The Seuate, with tbe Chief Justice, havings retired to their conference chamber, pro- ceeded to consider tbe motion presented by Mr Edmunds : and, After debate, On motion by Mr. Drake to amend the motion submitted by Mr. Edmunds, by striking ont all after the word " ordered," and in lieu thereof inserting : That the respondent file answer to the articles of impeachment on or before Friday the '20th day of JSIarch, instant. It was determined in the aiiirmative — ^yeas 28, nays 20. On motion by Mr. Drake, The yeas and nays being desired by one-fifth of the senators present. Those who voted in the afiirmative are — Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, 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, Fre- linghu^-sen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Saulsbury, Van Winkle, and Vickers. So the amendment of Mr. Drake to the motion of Mr. Edmunds 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 reconsider its vote agreeing to the amend- ment proposed by Mr. Drake to tbe motion of Mr. Edmunds, It was determined in the affirmative — yeas 27, uays 23. On motion of Mr. Drake, The yeas and nays being desired by (tne-fifth of the senators present, Those who voted in the affirmative are — Messrs. Anthony, Bayard, Buckalew, Cattell, Corbett, Davis, Dixon, Edmunds, Fes- sfmden. Fowler, Frelinghuj^sen, Grimes, Henderson, Hendricks, Johnson, MeCreery, Mor- rill of Vermont, Morton, Norton, Patterson of Tennessee, Saulsbury, Sherman, Sprague, Trumbull. Van Winkle, Vickers, and Willey. Those who voted in the negative are — Messrs. Cameron, Chandler, Cole, Conkling, Conness, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill 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 mo- tion of Mr. Edmunds ; and, The question recuiring on the amendment of Mr. Drake, On motion of Mr. Trumbull to amend the amendment of Mr. Drake, by striking out the words "Friday, 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 tbe motion of Mr. Trumbull, It wa.s deteruiined 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 following 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 retursed to its chamber. Mr. Davi«. 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 Couit has decided to take up the case. I therefore submit to the Court a motion in writing. The Chief Justice. The Secretary will read the motion. 36 IMPEACHMENT OF THE PRESIDENT. The Secretary read as follows: Mr. Davis, a member of tlie Senate aud of tho Court of Impeachment, from the State of Kentucky, moves the Court to make this order: Tlie Constitution iiaving vested the Senate with the sole power to try tlie articles of im- peachment of the President of the United States preferred by the House of Representatives, and havinp: also declared that "the Senate of tlie United States shall be conii)<)sed of t\vo senators from each State chosen by the legislatures thereof,'! and the States of Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Arkansas, Louisiana, aud Texas having, each by its legislature, chosen two senators who have l^eeu and continue to be excluded by the Senate from their seats respectively, without any judgment by tho Senate against them personally and individually on the points of their elections, returns, and quali- fications, it is Ordered, That a Court of Impeachment for the trial of the President cannot be legally and constitutionally 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 Senate, subject to all constitutional exceptions to their elections, returns, aud (jualifications 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 tlie 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 received, upon which I call for tbe yeas aud nays. Mr. Howe. Mr. President, I rise to submit a question o\ order. Tbe Chief Justice. The senator from Wisconi^in. Mr. Howe. I submit if the motion offered by the senator from Kentucky be in order. The Chief Justice. The motion comes before the Senate in the shape of an order submitted by a member of the Senate aud of the Court of Impeachment. The twenty-third rule requires that "all the orders and decisions shall be made and had by yeas and niiys, 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-fiflh of the members present, be decided by yeas and nays." This rule applies to every order submitted by a member of the Senate under the twenty-third rule. The Chair rules that the order is in order. Mr. Co.WESS. Mr. President The Chief Justice. No debate is allowed. Mr. Co.\i\ESS Is the motion submitted by me in order in connection with it ? The Chief Justice. No, sir. h^everal Senators. Let us have a square vote. Other Senators. Let us have the yeas and nays on the order projjosed. The yeas and nays were ordered ; and being taken, resulted — yeas 2, nays 49 ; as follows : Yeas — Messrs. Davis and McCreery — 2. Nay.s — Messrs. Anthony, Buekalcw, Cameron, Cattell. Chandler, Cole, Cimkling, Connoss. Corbett, Cragin, IMxon, Doolittle, Drake, Edmunds, Ferry, Fes.sendeu, Fowler, Freliug- huysen. Grimes, Harlan, Henderson, Hendricks, Howard, Howe, Johnson, Morgan, Mor- rill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Patterson of Teiuiessee, Ponunoy, Ramsey, l^'oss, Slierman, Sjirague, Stewart, Sumner, Thayer, Tipton, TrundjuU, Van Winkle, Vickers, Willey, Williauis, Wilson, and Yates — 4U. AnsF.NT — 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 lile their answer? Mr, Stanhekv. Mr. Chief Justice, in obedience to the order of the honora- ble court, made at the last session, that the answer of the President should be filed to-day, we have it ready. The coun-iel, abandoning all other engagements, IMPEACHMENT OF THE PRESIDENT. 37 some of lis quitting our courts, our cases, and o\ir clients, have devoted every Lour to the performance of this duty. The hibor has been incessant and exhaustive. We have devoted, as I say, not only every hour ordinarily devoted to labor, but many required for necessary rest and i-ecreation have been con- sumed in this work. It is a matter, jMr. Chief Justice, of profound regret tons that the honorable court did not allow us more time. Nevertheless we hope that the answer will be found in all i-espccts sufHcient within the law. Such as it is, we are now ready to read and tile it. The Cfhkf Justice. The counsel will read the answer of the President. Mr. Cl'K'i'ls proceeded to read the answer to the close of that portion relative to the firt^t 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 Jar 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 Represent- atives of the United States. ANSWEK TO ARTICLE I. For answer to the first article he says : That Edwin M. Stanton was appointed Secretary for the Department of War cm the 15th day of January, A. D. 18G2, by Abraham Lincoln, then President of the United States, during the first term of his presidency, and was commissioned, according to the Constitution and laws of the United States, to hold the said office during the pleasure of the President ; that the ofiice of Secretary for the Department of War was created by an act of the first Congress 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 Secre- tary 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 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 instruct. And this respondent, further answering, says that by force of the act afore- said and by reason of his appointment albresaid the said Stanton became the principal ofiicer in one of the executive departments of the government within tiie true intent and meaning of the second section of the second article of the Constitution of the United States, and according to the true intent and mean- ing of that provision of the Constitution of the United States ; and. in accord- ance 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 the person intrusted to act for and represent the President in matters enjoined upon him or intrusted to him by the President touching the department aforesaid, and and for whose conduct in such capacity, subordinate to the President, the Pre.-^i- deut is, by the Constitution and laws of the United States, made responsible. And this respondent, further answering, says he succeeded to the office of President of the United States upon, and by reason of, the death of Abraham Lincoln, then President of the United States, on the 15th day of April, 18G5, and the said Stanton was then holding the said office of Secretary for the 38 IMPEACHMENT OF THE PRESIDENT. Department of War under and by reason of the appointment and commission aforesaid ; and, not having been removed from the said office by this respondent, the said Stanton continned to hold the same under the appointment and commis- sion aforesaid, at the pleasure of the President, until the time hereinafter par- ticularly mentioned ; and at no time received any appointment 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 Constitution and laws of the United States, became satis- iied that he could not allow the said Stanton to continue to hold the office of Secretary lor the Department of War without hazard of the public interest ; that the relations between the said Stanton and the President no longer permit- ted 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 thereupon, by force of the Constitution and laws of the United States, which devolve on the President the power and the duty to control the conduct of the business of that executive department of the goverumenr, 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 Department 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 determination, 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 : Piiblic considerations of a high character coustrain me to say that your resignation as Secretary of War will be accepted. To which note the said Stanton made the following reply : Waii Dkpartaiknt, Wusldngtun, August 5, 1S67. SiU: Your note of this day has been received, stating that "public considerations of a liigh character constrain you" to say "that my resignation as Secretary of War will be accepted." In rcjily I have the honor to say that public considerations of a high character, which alone have induced me to contiiare at tlie head of tliis department, constrain me not to resign the ofiice of Secretary of War before the next meeting of Congress. Very respectfully, yours, EDWIN M. STANTON. This respondent, as President of the United States, was thereon of opinion that, having regard to tht;, 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 Constitution and laws of the United States, it was impossilde, consistently with the public interests, to allow the said Stanton to continue to hold the said office of Secretary for the D(^partment of War ; and it then became the official duty of the respond(;nt, as I'rcsident of the United States, to consider and decide what act or acts should and might lawfully be done by him, as Pres- ident of the United States, to cause the said Stanton to surrender the said office. This resj)ondent was informed and verily believed that it was practically settled by the hist Congress of the United States, and had been so considered and, uniforinly and in great numbers of instances, acted on by each Congress and President of the United States, in succession, from President Washington IMPEACHMENT OF THE PRESIDENT. 39 to, and including, President Lincoln, and from the first Congress to the thirty- ninth Congress, that tlie Constitution of the United States conferred on the President, as part of the executive power and as one of the necessary means and instruments of performing the executive duty expressly imposed on him by the Constitution of taking care that the laws be faithfully 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 responde\it 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 capacity 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 opinion, and did make the same known to the honorable the Senate of the United States by a message dated on the 2d day of March, 1S67, (a true copy whereof is here- unto 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 Con- stitution 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 by laAV 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 v\ms 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, 1S67, by a con- stitutional majority of both houses of Congress, it was enacted as follows : That every person holdiug any civil oflSce 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 qualitied to act therein, is and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly quaiified, except as herein otherwise provided: Provided, That the Secretaries of State, of the Troas-- my, of War, of the Navy, and of the Interior, the Postmaster General and the Attorney General, shall hold their offices respectively for and durinf^ 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. This respondent was also aware that this 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 rem!)ve executive officers for cause might, by law, be taken from the President iind 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 section of the last-men- tioned act was and is wholly inoperative and void by reason of its confiict 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 Con- gress, this respondent considered it to be prf)per 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, according to the terms of the act, to remove the said Stanton from the office of Secretary for the Depart- ment of War, and having, in his capacity of President of the United States, so examined and considered, did form the opinion that the case of the said Stan- 40 IMPEACHMENT OF THE PRESIDENT. tou and his tenure of office were not affected by the first section of the last- named act. And this respondent, further answering, says, that although a case thus ex- isted 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 oifice of Secretary for the Department of War, and although this 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 tlie United States ; and although this respondent was also of the opinion, as is above shown, that the case of the said Stanton was not ai^ected 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 capacity of President of the United States, to come to some judgment and determination thereon, yet this respondent, as President of the United Slates, desired and determined to avoid, if possible, any question of the construction and effect of the said first section of the last-named act, and also the broadt^-r question of the executive power conferred on the President of the United States, by the Constitution of the United States, to remove one of the principal officers of one of the executive departments for cause seeming to him sufficient ; and this respondent also desired and determined tliat, if from causes over which he could exert no control, it should become absolutely necessary to raise and have, in some way, determined either or both of the said last-named questions, it was in accor.lance with the Constitution of the United States and was required of the President thereby, that questions of so much gravity and impor- tance, upon which the legislative and executive departments of the government had disagreed, which involved powers considered by all branches of the govern- ment, 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 execittiou of his constitutional duties, should be in some proper way submitted to that judicial department of the government intrusted by the Constitution with the power, and subjected by it to the duty, not only of determining finally the construction of and effect of all acts of Congress, but of comparing them with the Constitution 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 servants. 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 couduct he was responsible for and had lawful right to control, might, if possible, be accomplished without the necessity of raising any one of the questions aforesaid; and, second, if this duty could not be so performed, then that these questions, or such of tliem as might necessarily arise, should be judicially determined in manner aforesaid, and for no other end or purj)oso this res|iondent, as President of the United States, on the 12tli day of August, 1867, seven days after the reception of the letter of the said Stanton of the oth of August, hereinbefore stated, did issue to the said Stanton the order following, namely : Executive Mansion, Washington, August 1'2, 18G7. Sir : By virtue of the power and authority vested in nio us President by tiie Constitution and hiws of tlic United States, you are hercljy susjieiided from olFice as Secretary of War, and will cease to exercise any and all functions pertaininj:^ to flie same. You will at once transfer to General Ulysses S. Grant, who has this day been authorized and empowered to act as Secretary of War ml interim, all records, books, papers, and other jiublic property now in your custody and charge. The Huu. EuwiN M. Stanton, Secretary of il'ar. IMPEACHMENT OF THE PRESIDENT. 41 To which said order the said Stanton made the following reply : War Dr.i'ARTMFXT, Washington City, August VZ, 1867. Sir: Your note of tliis date has been received, iiiforniinp: me that, by virtue of the powers vested iu you as President by the Coustitutiou and hiws of the United States, I am suspend- ed from office as Secretary of War, and will cease to exercise any and all functions pertain- ing to the same, and also directing^ me at once to transfer to General Ulysses S. Graut, who Las this day been authorized and empowered to act as Secretary of War nd interim, all records, books, papers, and other public property now in my custody and charge. Under a sense of public dut}- I am coni])elled to deny your rip:ht, under the Constitution and huNS of llie 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 exerciseof any or all functions pertaining to the same, or witliout such advice and consent to compel me to transfer to any ])eison the records, books, papers, and public property in my custody as Secretary. 15ut inasunich as the General commanding the armies of the United States has been ajjpoiiited iirl interim, and has notified me that he has accepted the appointment, I have no alternative but to submit, under protest, to superior forcf . To the President. Aud this respondent, further answering, says, that it is provided in and by the second section of "An act to regulate the 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 meeting of the Senate, aud until the case shall be acted on by the SL-nate; that this respondent, as President of the United States, was advised, and he verily be- lieved and still believes, that the executive power of removal from office confided to him by the Constitution as aforesaid includes the power of suspension from office at the pleasure of the President, and this respondent, by the order afore- said, 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 po^ver 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 aforesaid, was made known to the Senate of the United States on the I2t]i 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 Feb- ruary 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 law- ful 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 believing 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 Depart- ment of War ad in(cr{??i, in the form in which similar authority 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 limita- tion of six months in the said last mentioned 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 December, A. D. 1867, as will be hereinafter more fully stated; and in pursuance of the design and intention aforesaid, if it should become necessary 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 aud design, if possible, to perform wiiat he judg(^d to be his imperative duty, to prevent the said Stanton from longer holding the office of Secretary for the Department of War, and at the same time avoiding, if possible, any ques- tion respecting the extent of the power of removal from executive office confided 42 IMPEACHMENT OF THE PRESIDENT. to the Prosiflcnt by tlie 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, aban- don and relinquish, either a power which lie believed the Constitution had con- ferred on the President of the United States, to enable him to perform the duties of his office, or a i)ower designedly left to him by the first section of the act of Congress last aforesaid, this respondent did, on the 12th day of December, 1S67, 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 afore- said 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 reit- erated his views concerning the constitutional power of removal vested in the President, and also expressed his views concerning the construction of the said first section of the last-mentioned act, as respected the power of the President to remove the said Stanton from the said office of Seci'etary for the Department of War, well hoping that this respondent could thus perform what he then be- lieved, and still believes, to be his imperative duty in reference to the said Stan- ton, without derogating from the powers which this respondent believed were confided to the President, by the Constitution and laws, and without the neces- sity 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 remain therein contrary to the settled convictions of the Pres- ident, formed as aforesaid, respecting the powers confided to him and the duties requited 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 belief 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 compelled to take such steps as m ght, in the judgment 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 oftice, or the power of the said Stanton to persist in refusing to quit the said office if he should persist in actually refusing to quit the same ; and to this end, and to this end only, tliis respondent did, on the 21st day of February, 1SG8, issue the order for the removal of the said Stanton, in the said first article raentionrd 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 allega- tion in the said first article, says : He denies that the said Stanton, on the 2l3t day of February, 1868. was lawfully in possession of the said otfice of Secretary for the Department of AVar. He denies that the said Stanton, on the day last mentioned, was lawfully entitled to hold the said oftice against the will of the I'rcsident of the United States. He denies that the said order for the removal of the said Stanton was unlawfully issued. He deni(!S that the said order was issued with intent to violate the act entitled " An act to regulate the tenure of certain civil i.ffices." He denies that the said order was a violation of the last- mentioned act. He denies that the said order was a violation of the Constitu- tion d upon him by authority of the President. That, as this respondent has been informed and l)eli(!ves, the said Stanton peremptorily refused obedience to the orders so issued. Upon such refusal no force or threat of force was used by the said Thomas, by authority of the President or otherwise, to enforce obe- dience, either then or at any subsequent time. This respondent doth here except to the sufficiency of the allegations con- tained in said fourth article, and states for ground of exception that it is not stated that there was any agreement between this respondent iind the said Thomas, or any other person or persons, to use intimidation and threats, nor is IMPEACHMENT OF THE PRESIDENT. 45 there any allegation as to the nnture of said intimidation and threats, or that there was any agreement to carry them into execution, or that any step was taken or agreed to be taken to carry them into execution, and that the? allegation in said article that the intent of said conspiracy was to use intimidation and threats is wholly insufficient, inasmuch as it is not alleged that the said intent formed thtving that such orders were so issued, shall be liable to imprisonment for not less than two nor more thaja twenty years, upon conviction thereof in tmy court of competoiit jurisdiction. Approved March 2, 18G7. By order of the Secretary of War : Official: E. D. TOW^NSEND, Assistant Adjutant General. Assistant Adjutant General. General Emoiy not only called the attention of respondent to this order, but to the fact that it waa 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 Constitntion of the United States, which makes me commander-in-chief of the army and navy, or of the language of the com- mission which you hold." General Emory then stated that tiiis order had met respondent's approval. Respondent then said in reply, in substance, "Am I to understand that the President of the United States cannot give an order but through the Geueral-in-cldef, or General Grant?" General Emory again reit- erated 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 con- stitutional. With some further consideration, 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 lav/ 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 declarations given 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 express the opinions then given 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 con- formity with any law, or intend to offer any inducement to the said Emory to violate any law. What this respondent then said to General Emory was simply tlie expression 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 48 IMPEACHMENT OF THE PRESIDENT. expression of such opinion he did commit or was guihy of a high misdemeanor in office. And this respondent doth further say that the said article nine lays no foundatio^i whatever for the concUision stated in the said article, that the respondent, by reason of the allegations therein contained, was guilty of a high misdemeanor in office. In reference to the statement made by General Jilraory 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 accompanied 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 respondent : 2o the House of Representatives : The act eutitled " Au act making appropriations for tlie support of the arrny for tlie year ending June 3t), 1808, and for other purposes," contains provisions to which I mnst call attention. These provisions are contained in the 2d section, which, in certain cases, virtually deprives the President of his constitutional functions as comniander-iu-chief of the army, aini in the sixth section, which denies to ten States of the Union their constitutional right to protect themselves, in any emergency, hy means of their own militia. These provisions are out of place in au apjiropriatiou act, but I am compelled to defeat these necessary appropriations if 1 withhold my signature from the act. Pressed by these considerations, 1 feel constrained tti return the bill with my signature, but to accompany it with my earnest protest agaiust the sections which I have indicated. Wasuington, D. C, March 2, 1867. Respondent, therefore, did no more than to express to said Einory the same opinion which he had expressed to the House of Representatives. ANSWER TO ARTICLE X. And in answer to the tenth article and specifications thereof the respondent says that on the 14th and 15th days of August, in the year 1866, a political conV(nition 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 maintaining and adv'ancing cer- tain 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 " declai'ation of .principles" aiid *' an address to the people of the United States," and appointed a committee 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 President of the United States and present to him a copy of the proceedings of the convention; that on the ISth 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 President of the United States in a speech, of which a copy (according to a published report of the same, and, as the respondent believes, substantially a correct report) is hereto annexed as a part of this answer, and marked Exhibit C. That thereu))on, and in reply to the address of said committee by their chair- man, this respondent addressed the said committee so waiting upon him in one of the rooms of tlie Executive Mansion; and this respondent believes that tliis his address to said committee is the occasion referred to in the first specification 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, correctly or justly present his speech or address upon said occasion, IMPEACHMENT OF THE PRESIDENT. 49 but, on the contrary, this respondent demands and insists that if this honorable court shall deem the said article and the said specification thereof to contain allegation of matter cognizable hy 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 support 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 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 1S66, he was attended by a large assemblage of his fellow-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 specification of the tenth article; but this 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 occa- sion ; but, on the contraiy, this respondent demands and insists that if this honorable court shall deem the said article and the second specification thereof to contain allegation of matter cognizable by this honorable court as a high mis- dem'-anor in office, within the intent and meaning of the Constitution of the United States, and shall receive or allow proof in sixpport 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 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 St. Louis, in the State of Missouri, and on the 8th day of September, in the year 1S66, he was attended by a numerous assemblage of his fellow-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 third specification of the tenth article; but this respondent does not admit that the passages thei-ein 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 respondent 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 misdemoanor in office, within the intent and meaning of the Constitution of tjie 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 occasion, which this respondent denies that the said article and specification con- tain or correctly or justly represent. 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 intended or di^signed to set aside the rightful authority or powers of Con- gress, or attempted to bring into disgrace, ridicule, hatred, contempt, 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 respond- ent farther says, that at all times he has, in his official acts as President, i-ecog- nized the authority of the several Congresses of the United States as constituted 4 I P 60 IMPEACHMENT OF THE PRESIDENT. and organized during his administration of the office of President of the United States. And this respondent, further answering, says that he has, from time to time, under his constitutional right and duty as President of the United States, com- municated to Congress his views and opinions in regard to such acts or resolu- tions thereof as, being submitted to him as President of the United States in pursuance of the Constitution, seemed to this respondent to require such com- munications ; and he has, from time to time, in the exercise of tliat freedom of speech which belongs to him as a citizen of the United States, and, in his ])olitical relations as President of the United States to the people of the United States, is upon tit occasions a duty of the highest obligation, expressed to his fellow-citizens his views and opinions respecting the measures and proceedings of Congress ; and that in such addresses to his fellow-citizens and in such his communications to Congress he has expressed his views, opinions, and judgment of and concerning 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 legisla- tion 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 according to his right and privilege as an American 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 sef forth, but claiming and insisting upon the same, further answering the said tenth article, says that the views and opinions expressed by tiiis respondent in his said addre,sses 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 insuirection never had ceased to be States of the Union, and that they were then entitled to representation in Congress by h)yal repre- sentatives and senators as fully as the otiier States of the Union, and that, con- sequently, the Congress, 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 unauthoi-ized exclusion thei-efrora 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, exercising his constitutional authority of returning bills to said Congress with his objections when they appeared to him to be imconstitutional or inexpedient. And, further, this respondent has also expressed the opinion, both in his com- munications to Congress and in his addresses to the peo})le, that the policy adn])ted 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 Congress in violation of the fundamental prin- ciples of the government, and which tended to consolidation and di.'spotism ; and, such being his deliberate opinions, he would have felt himself uimiindful of the high duties of his otHce if he had failed to express them in his connnuni- cations to Congress, or in his addresses to the peo])le 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 per- sonal and private capacity of a citizen of the United States, and in the political relations of the President of the United States tp the people of the United States, whoso servant, under the duties and responsibilities of the Constilution of the Uuited States, the President of the United States is, and should always IMPEACHMENT OF THE PRESIDENT. 51 remain, tin? respondent had and has tlie full right, and in hit' office of President of the United States is held to the high duty of forming, and, on ill occasions, expressing, opinions of and concerning the legislation of Congress, proposed or completed, in respect 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 expross, opinions of and concerning the public character and conduct, views, purposes, objects, motives, and tendencies of all m 'U engaged in the public service, as well in Congress as otherwise, and under no other rules or limits upon tliis right of freedom of opinion and of freedom of speech, or of responsibility and amena- bility 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 thi.s respondent, further answering said tenth article, says that the several occasions on which, as is alleged in the several specifications of said article, this respondent addressed his fellow-citizens on subjects of public and political consideration, were not, nor was any one of them, souglit or planned by this respondent; but, on the contrary, each of said occasions arose upon the exercise of a lawful and accustomed rigbt of the people of the Uuitcid States to call upon their public servants and expi'ess to them tlieir opinions, wishes, and feelings upon matters of public and political consideration, and to invite from such, their public seiwants, an expression of their opinions, views, and feelings on matters of public and political consideration ; and this respondent claims and insists before this honorable 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 all matters of public and political consideration, and in respect of all public servants or persons whatso- ever engaged in or connected therewith, this respondent, as a citizen or as President of the United States, is not subject to question, inquisition, impeach ment, or inculpation in any form or manner whatsoever. And this respondent says that neither the said tenth article nor any specifica- tion thereof, nor any allegation therein contained, touches or relates to any offi- cial act or doing of this respondent in the office of Presidtmt of the United States or in the discharge of any of its constitutional or legal duties or respon- sibilities ; but said article and the specifications and allegations thereof, wholly and in every part thereof, question only the discretion or propriety of freedom of opinion or freedom of speech ;xs 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 respondent as one of the said citizens or other- wise ; and he denies that, by reason of any matter in said article or its specifi- cataons alleged, he has said or done anything indecent or unbecoming in the Chief JIagistrate 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 othce. ANSWER TO ARTICLE XI. And in answer to the elcA'-enth article, this respondent denies that on the ] 8th day of August, in the year 186G, at the city of Washington, in the District of Columbia, he did, by public speech or otherwise, declare or affirm, in substance or at all, that the thirty-ninth Congress of the United States was not a Cou gress of the United States authorized by the Constitution to e.xercise legisl.v tive power under the same, or that he did then and there declare or affirm that tte said thirty-ninth Congress was a Congress of only part of the States in any 52 IMPEACHMENT OF THE PRESIDENT. sense or meaning other than that ten States of the Union were denied repre- sentation tliercin ; or that lie made any or either of the declarations or affirma- tions in tins behalf, in the said article alleged, as denying or intending to deny that the legislation 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 understood 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 amendments of the Constitution, nor was the ques- tion of the competency of the said Congress to propose such amendments, without the participation of said excluded States, at the time of said address, in any way mentioned or considered or referred to by this i-espondent, nor in Avhat he did say had he any intent regarding the same, and he denies the alle- gation so made to the contrary thereof. But this respondent, iu further answer to, and iu respect of, the said allegations of the said eleventh article herein- before 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 President of the United States to the people of the United States iu the exercise of such freedom of opinion and freedom of speech, in the same manner, form, and effect as he has in this behalf 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, impeachment, 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 2 1st 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 dechiratiou as is in that behalf in said eleventh article alleged, or otherwise, he did unlawfully, and in disregard of the requirement of the Constitution that he should take care that the laws should be faithfully executed, attempt to prevent the execution of an act entitled " An act regulatnig the teunre of certain civil offices," passed March 2, 1867, by unlawfully devising or contriving, or attempting to devise or contrive, means by which he should prevent Edwin M. Stanton from forthwith resuming the func- tions 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, sa^'s that he has, in his answer to the first article, set forth in detail the acts, steps, and pro- ceedings done and taken by this respondent to and toward or in the matter of the suspension or removal of the said Kdwiu M. Stanton in or from the office of Secretary for the Department of War, with the times, modes, circumstances, intents, views, purposes, and opinions of ofiicial 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, pertaining 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 aiticlc alleged, this respondent, as Pres- ident of the United States, did, on the 2l8t day of February, 1868, or at any other day or time, commit, or that he was guilty of, a high misdemeanor in office. IMPEACHMENT OF THE PRESIDENT. 53 And tbis respondent, further answering the said eleventh article, says that the same and the matters therein contained do not cliarge 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 respondent of any act of official obligation or dnty in his office of President of the United States ; nor does the said article nor the matters therein contained name, designate, describe, 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 understand what act or mode or form of attempt, device, contrivance or means, or uf attempt at device, contrivance, or means, are impnted to or charged against this respondent, in his office of President of the United States, or intended 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, respectfully reserves leave to amend and add to the same from time to time, as may become necessary or proper, and when and as such necessity and propriety shall appear. ANDREW JOHNSON. Henry Stanbery, B. R. Curtis, Tho.mas 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 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 to which he has been appointed by and with the advice and eousent of the Senate, and every person who shall hereai'ter be appointed to any such office, and shall become duly qualified to act therein, is and shall be entitled to hold such office riutil a successor shall have been appointed by the President, with tlie 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 General, and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one mouth thereafter, subject to removal by and with the advice and consent of the 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 the duratioti of which is limited by law." 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 principle which has been not more distinctly declared by judicial authority and judicial commentators than it ha.=! been uniformly practiced upon by the legislative and executive departments of the government. The question arose in the House of llepresentatives so early as the 16th day of June, 1789, on the bill for establishing an executive depart- ment, denominated "The Department of Foreign Affairs." The first clause of 54 IMPEACHMENT OF THE PRESIDENT. the bill, after recapitulating the functioiiB of that officer and. defining his dutie?, 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 con- stitutionally exercise the power of removal exclusive of the Senate ; that the Federalist 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 b}' impeachment only. A constnic- tiou which denied the power of removal by tlu^ President was further maintained by arguments drawn from the danger of the abuse of the power; irom the sup- posed tendtucy of an exposure of public officers to capricious removal, to im- pair the efficiency of the civil service ; from the alleged injustice and hardship of displacing incumbents, dependent upon their official stations, without sufficient consideralion ; from a supposed want of responsibilty on the jiart of the Presi- dent, and from an imagined defect of guarantees against a vicious President, who might incline to abuse the power. On the other hand, an exclusive powei- of removal by the President was de- fended 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 treason, bribery, or malfeasance, and that the nature of things demands that it should be so. " Sup])ose," it was said, " a man becomes insane by the visitation of God, and is likely to ruin our affairs, are the hands of government to be confined from warding ofi" the evil? Suppose a person in office not possessing the talents he was judged to have at the time of the ap- pointment, is the error not to be corrected'? Suppose be acquire vicious habits and incurable indolence, or totally neglect the duties of his office, which shall work mischief to the public welfare, is there no way to arrest the threatened danger ] Suppose he become odious and unpopular by reason of the measures he pursues — and this he may do without committingany positive offence 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 destruction, endangering your domestic tranquillity, plundering you of the means of defence, alienating the affections of your allies, and promoting the spirit of discord, must the tardy, tedious, desultory road by way of impeachment be travelled to overtake the man who, barely confining himself within the letter of the law, is employed in " drawing off the vital prin- ciple of the government?" The nature of things, the gre;it 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 tlu^ exercise of the power," it was said, " would involve us" in the most serious difficulty. " Sup- posp a discovery of any of these events should take plac'e 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 Swiate, who are assembled from various jiarts of the continent, with different impressions and o[)inions ;" 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 presid(;ntial chair. As the nature of government requires the power of removal, it was maintained " that it should be exercised in this way by the hand capable of exerting itself with effect, and the power must be conferred on the President by the Constitution as the executive officer of the goverumenl." Mr. Madison, whose adverse opinion in the Fedeialist had been relied upon by those who denied the exclusive power, now participated in the IMPEACHMENT OF THE PRESIDENT. 5$ debate. ITc declared tliat be bad reviewed bis former opinions, and be snmoied up tbe wbole case as follows : The Constitution affirms tluit the executive power is" vested in the President. Are there exceptions to this proposition ? Yes, there are. Tlio Constitution says tluit in appoiiitincf to otBce the Senate shall be associated with tlie President, unless in the case of inferior oftice«"s, when the hiw sliall otlicrwisc direct. Have we (that is, Conp^ress) a rig'ht to extend this execplion ? I believe not. If the Constitution iuxs invested all executive power in the Presi- dent, I return to assert tliat tlie legislature has no rig-ht to diminish or modify his executive authority. The question now resolves itself into this : is there pow(>r of displacinc^ an executive power? I conceive tliat if any power whatever is in the Executive it is the power of appointiufj', ovorseeinfr, and controllint^ those wlio execute the laws. If the Consiitutioa had not qualitied the ]iower of the President in appointing- to oftice by associating the Senate with him in that business, would it not be clear that he 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 executive power shall be vested in the President" — to unite the Senate with the President in the appointment to office? I conceive not. It is admitted that we should not be authorized to do this. I think it may be disputed whether we have a right to associate them iu 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 general rule established by the Constitution in these words : " The executive power shall be vested iu the President. " Tbe question tbus ably and exbanstively argued was decided by tbe House of Representatives, by a vote of tbirty-four to twenty, in favor of tbe principle tbat tbe executive poAver of removal is vested by tbe Constitution in tbe Exec- utive, and in tbe Senate by tbe casting vote nf tbe Vice-President. Tbe ques- tion bas often been raised in subsequent times of bigb excitement, and tbe practice of the government bas nevertbeless conformed in all cases to tbe deci- sion tbus early made. Tbe question was revived during tbe administration of President Jackson, wbo made, as is well recollected, a very large number of removals, wbicli were made an occasion of close and rigorous scrutiny and remonstrance. Tbe sub- ject was long and earnestly debated in tbe Senate, and tbe early construction ef tbe Constitution was nevertbeless freely accepted as binding and conclusive upon Congress. Tbe question came before tbe Supreme Court of tbe United States in Jan- uary, 1S39, ex parte Heenan. It was declared by tbe coin-t on tbat occasion tbat tbe power of removal from office was a subject mucb disputed, and upon wbicli a great diversity of opinion was entertained in tbe early bistory of tbe government. This related, bowever, to tbe power of tbe President to remove officers appointed witb tbe concurrence of tbe Senate, and tbe great question was wbellier tbe removal was to be by tbe President alone or witb tbe concur- rence of the Senate, botb constituting tbe ajjpointing power. No one denied tbe power of tbe President and Senate jointly to remove wbere tbe tenure of tbe office was not fixed by the Constitution, which was a full recognition of tbe principle tbat tbe power of removal was incident to tbe power of appointment ; but it was very early adopted as a practical construction of tbe Constitution tbat this power was vested in the President alone, and such would appear to have been the legislative construction of tbe Constitution, for in tbe organization of tbe three great Departments of State, War, and Treasury, in 1789, provision was made for the appointment of a subordinate officer by tbe head of tbe depart- ment, wbo should have charge of the records, books, and papers appertaining to tbe office when tbe head of the department should be removed from office by tbe President of tbe United States. When tbe Navy Department was estab- lished, in tbe year 1798, provision was made for tbe charge and custody of the books, records, and documents of tbe department in case of vacancy in tbe office of Secretary, by removal or otherwise. It is not here said " by removal of tbe President," as is done witb respect to the beads of tbe other depart- ments ; yet there can be no doubt that he holds his office with the same tenure as the other Secretaries, and is removable bv the President. The chancre of 56 IMPEACHMENT OF THE PRESIDENT. plivaseology arose probably from its having become the settled and well-uuder- stood construction of the Constitution that the power of removal was vested in the President alone in such cases, although the appointment of the officer is by the President and Senate. (13 Peters, page 139.) Our most distinguished and accepted commentators upon tlie 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 which I have referred, Mr. Justice Story comes to this conclusion : After a most animated disenssiou. the vot6 fiiiall.y taken in tlie House of Representatives ■was tiftirmative of the power of removal in tlie President without any co-operation of the Senate hy the vote of ol members against 20. In the Senate the clause in the bill affirming the power was carried by the castiii<2: vote of the Vice-President. That the iiual decision of this question so made was greatly iuilueuced by the exalted character of the President tbeu in office was asserted at tlie time, and has always been believed : yet the doctrine was opposed as well as supported by the hitrhest talent and patriotism of the country. The pub- lic have acquiesced in this decision, and it constitutes perhaps the most e.xtraordiuary case in the 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 without a satisfactory explanation. Chancellor Kent's remarks on the subject are as follows : " On the first organi- zation of the government it was made a question whether the power of removal in case of officers appointed 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 construction given to the Constitution while it was pending for ratification before the State conventions by the author of the Federalist. But the construction which was given to the Constitution 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 legi.ppatch of General Baird of the 28th asks for immediate instmetions, and hi.s letter of the 30th, after detailing the terrible riot which had just hap- pened, ends with the expression of regret that the instructions wliicli he asked for were not sent. It is not the fault or the error or the omission of the Presi- dent that this military commander was left without instructions ; bnt 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 respon- sible. Instantly, without waiting for proof, the delinquency 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 not given by him to the public, and only to the President in obedience to a requisition for all the despatches. No one regrets more than myself that General Baird's request was not brought to my notice. It is clear, from his despatch 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 say that I would have given no instructions, even if the despatch 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 despatch : Q. Eefening to the despatch of the 28th of July by General Baird, I ask yoxi whether that despatch, on its receipt, was communicated ? A. I received that despatch on Sunday forenoon ; I examined it carefully and considered the question presented ; I did not see that I could give any instructions ditl'erent from the line of action which General Baird proposed, and made no answer to the despatch. Q. 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 ? A. That is the date of its reception in the telegraph office Saturday night. I received it on Sunday forenoon, at my residence ; a copy of the despatch was furnished to the President several days afterward, along with all tlie other despatches and communications on that sub- ii'Ct, but it was not furnished by me before that time; I suppose it may have been ten or fifteen days afterward. Q. The President himself being in correspondence with those parties npon the same sub- ject, would it not have been proper to have advised him of the reception of that desjiatch ? A I know nothing about his correspondence, and know nothing about any correspondence except this one despatch. We had intelligence of the riot on Thursday morning. The riot had taken place on Monday. It is a difficult matter to define all the relations. which exist between the heads of department and the President. The legal relations are well enough defined. The Constitution places these ofiicers in the relation of his advisers when he calls upon them for advice. Tiie acts of Congress go further. Take, for exam- ple, the act of 1789, creating the War Department. It provides that — Tlu're shall be a principal officer therein, to be called tlie Secretary for the Department of War, wlio shall perform and execute such duties as shall from time to time be I'ujoined on or intrusted to him by tlie President of the United States:" and furtiiermore, " the said prin- cipal ofticiT sliall conduct the business of the said department in such manner as the Presi- dent of the United Stales shall from time to time order and instruct. Provision is also made for the appointment of an inferior officer by the head of the department, to be called the chief clerk, " who, whenever said principal 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 depart- ment. The legal relation is analogous to that of priiici[)al agent. It is the President upon whom the Constitution (h;volves, as head of tlie executive depaitment, the duty to se(! that the laws are faithfully executed; but as he cannot execute them in person he is allowed to sehict his agents, and is made responsible for their acts within just limits. So complete is this presuraod delegation of authority in the relation of a head of departnuuit to the President 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. IMPEACHMENT OF THE PRESIDENT. 65 The principal, xipon whom such responsibility is placed for the acts of a siib- onlinate, ought to be left as free as possible in the matter of sek-ction anfl of clismissiil. To hold him to responsibility 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 liigh character," requests his resignation to assume for him- self 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 tliis is to reverse tie just order of administration, and to place the subordinate above ihe superior. There are, however, other relations between the President and a head of department beyond'tliese defined legal relations which necessarily attend them, though not expressed. Chief among tbese is mutual confidence. This relation is so delicate tbat it is sometimes hard to say when or how it ceases. A single flagrant act may end it at once, and then there is no difficulty. But confidence may be just as effictually destroyed by a series of causes too subtle for demon- stration. As it is a plant of slow growth, so, too, it may be slow in decay. Such has been the process here. I will not pretend to say what acts or omis- sions have broken up this relation. They are hardly susceptible of statement, and still less of formal proof. Nevertheless, no one can read the correspondence of the 5lh of August without being convinced that this relation was effectually gone ou both sides, and that, while the President was unwilling to allow Mr. JStanton to remain in his administration, Mr. Stanton was equally unwilling to allow the President to carry ou his administration without his presence. In the great debate which touk place in the House of Representatives in 1789, on the first orga-' iz'ftion of the principal departments, Mr. Madison spoke as follows : It is pvideutly the inteution of the Constitution that the First Maojistrate should be respousible for the executive departuient. So far, therefore, as we do not make the cfficers who are to aid him in the duties of that department responsible to him, he is not. responsible to the couutrj. Ag'aiu, is there no danger that an C)thL'er, when he is appointed by the con- currence ot the Senate, and his friends in that body, may choose ratiier to risk his establish- ment on the favor of that branch than rest it upon the discharj^e of his duties to the satisfac- tion of the executive branch, which is constitutionally aiUhorized to inspect and control his conduct ? And if it should happen that the ofKcers connect themselves with the Senate, they may mutually support each other, and for want of eflQcacy reduce the power of the President to a nieie vapor, in which case liis respou.-ibility would be annihilated, and the expecta inn (4' it is unjust. The liigli executive otificers joined in cabal with the Senate would lay the foundation ot discord, and eud in an assumption of the executive jjower, only to be removed by a revolution of the governmeut. Mr. .^edgwick, 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 neiessary, what is then the consequence? Why, in nine cases out of ten, where the case is very clear to the nund of the President that the man ought to be removed, the et!ect cannot be produced because it is absolutely impossible to produce the uecessaiy evidence. Are the Senate to proceed without evidence '.' Sonie gentiemeu contend ut)t. Tiien the object will be lost. iSJiall a man, under these circumstances, be saddled ujion the President, who has been appointed for no other purpose but to aid the I'resid(!iit in per- forming certuiu duties ? Shall he be continued, I ask again, against tlie will of the Presi- dent .' If he is, where is the responsibility .' Are you to look for it in the President who has no control over the otiieer, no power to remove him if he acts unfeelingly or untaiililully ? Without you make him responsible you weaken and destroy the stiength and beauty of your system. What is to be dune in cases which can only be Ivnown from a long acqiiaiutance with the conduct of an officer?" I had indulged the hope that upon the assembling of Congress Mr. Stanton would have ended this unpleasant complication according to the intimation given in his note of August 12. The du'y which 1 have felt, myself called upon to perform was by no means agreeable; but I leel that I am not responsible for the controversy, or for the consequences. 5 I P QS IMPEACHMENT OF THE PRESIDENT. Unpleasant as this necessary change in my cabinet has been to me, upon personal considerations, 1 have the consolation to be assured that, so far as the public interests are involved, there is no cause for regret. Salutary reforms have been introduced by the Secretary ad interim, and great reductions of expenses have been effected under his administration of its War Department, to the saving of millions to the treasury. ANDREW JOHNSON. Washington, December 12, 1867. Exhibit 0. Address to the President hy Hon. Rcverdy Johnson, August 18, 1866, Mr. President : We are before you as a committee of the National Union Convention, which met in 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 lis to congratulate you that in the object for which the convention was called, in the enthii-iiasm with which in every State and Territory the call was responded to, in the unbroken har- mony of its deliberations, in the unanimity with which the principles it has de- clared were adopted, and more especiall}' in the patriotic and constitutional character of the principles themselves, we are conlident that 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 established by the Constitution certain and inevitable. Party faction, seeking the continuance of its misrule, may momentarily delay it, but the principles of political liberty, for v/hich 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 convic- tion could you have seen and heard all that was done and said u2)on the occa- sion. Every heart was evidently full of joy, every eye bt;amed with patriotic animation ; despondency gave place to the assurance that, our late dreadful civil strife ended, the blissful reign of {)eace, under the protection not of arms, but of the Constitution and laws, would have SM'ay, and be in every part of our land cheer- fully acknowledged and in perfect good faith obeyed. You would not have doubted that the lecuirence of dangerous domestic insurrections in the future is not to be apprehended. If you could have seen the men of Massachusetts and South Carolina coming into the convention the first day of its meeting, hand in hand, amid the rap- turous applause of the whole body, awakened by heartfelt gratification at the event, filling the eyes of thousands with tears of joy, whicli they neither could nor desired to repress, you would have felt as every pcjrson present felt, that the time had arrived when all sectional or other [)erilous dissensions had ceased, and that nothing should be heard in the future but the voice of harmony pro- claiming devotion to a conunou country, of pride in being bound to^'ether by a connnon Union, existing and protected by forms of government proved by expe- rience to be eminently fitted for the exigencies of either war or peace. In the principles announced by the convention and in the feeling there IMPEACHMENT OF THE PRESIDENT. 67 manifestecl, we have every assurance that harmony throughout our entire land will soon prevail. We know that, as in former days, as was eloqunntly declared by Webster, the nation's most gifted statesman, Massachusetts and South Caro- lina went " shoulder to shoulder through the Revolution," and stood hand in hand "around the administration of Washington, and felt his own great arm Iran on them for support," so will they again, with like magnanimity, devotion, and power, stand round your administration, 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 di3claring that in you they "recognize a Chief Magistrate worthy of the n;ition 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 sentiment of the country. Ever inaccessible to the low influences which often control the mere partisan, governed alone by aa honest opinion of constitutional obligations and rights, and of the duty of looking solely to the true intert'sts, saft^ty, and honor of the nation, such a class is incapable of resorting to any bait for popularity 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 re-election by the people, after that policy had been fully indicated and had been made one of the i>!sues 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 his re-election necessarily involved. Being upon the same ticket with that much-lamented public servant, whose foul assassination touched the ht/art of the civilized world with grief and horror, you would have been false to obvious duty if you had not endeavored to carry out the same policy ; and, judging now by the opposite one which Congress has pursued, its wisdom and jiatriotism are indicated by the fact that that of Congress has but continued a broken Union by keeping ten of the States in which at one time the iusuri-ection existed (as far as they could accomplish it) in the condition of subjugated prov- inces, denying to them the right to be represented, while subjecting their people to every species of legislation, including that of taxation. That such a state of tilings is at war with the very genius of our goverunif'nt, inconsistent with every idea of political freedom, and most perilous to the peace and safety of the coun- try, no reflecting man can fail to believe. We hope, sir, that the proceedings of the convention will cause you to adhere, if possible, with even greater firmness to the course which you are pursuing, by satisfying yon that the people are with you, and that the wish which lies nearest to their heart is that a perfect restoration of our Union at the earliest moment be attained, and a conviction that the I'esult can only be accomplished by the measures which you are pursuing. And in the discharge of the duties which these impose upon you, we, as did every member of the convention, 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 per- mitted to tread our soil, with a nation's faith pledged forever to a strict observ- ance of all its obligations, with kindness and fraternal love ev(a-y where prevail- ing, the desolations of war will soon be removed ; its sacrifices of life, sad as they have been, will, with Christian resignation, be referred to a providential purpose of fixing our beloved country on a firm and enduring basis, which will forever place our liberty and happiness beyond the reach of human peril. 68 IMPEACHMENT OF THE PRESIDENT. Then, too, and forever, -n-ill our governmont cliallenge the admiration and re- ceive the respect of the nations of the world, and be in no danger of any efforts to impeach our honor. And permit me, ?ir, 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 assumed or actual foreign power to enforce an illegal blockade against the g ivernraent or cin'zens 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 commiitee, and in behalf of ihe convention, I have the honor to present you with an authentic copy of its proceedings. The Chief Justice. Senators, you have heard the answer submittf^d 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," and 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 by Andrew Johnson, President of the United States, to the articles of impeach- ment presented against him by the House of Repnjsentatives, and to say that it is the expectation of the managers 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 Senators, the counsel for the President think it proper, unless some objection should now be made, to bring to the at- tention of the honorable court the matter of provision for the aHowance of the time for preparation for the trial which shall be accorded to the President and bis counsel after the replication of the House of Representatives to the answer of the President shall have been submitted to this court. In the application which was made on the 13th instant for time for the preparation and submis- sion of the answer, as then pi-esented to the court, we had included in our con- sideration of that time for Avhich 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 preparation for the trial. The action of the court and its determination of the time within which the answer should properl}' be pre- sented 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, wliich rest upon the responsibility and lie witliin the duty of counsid in all matters of forensic and judicial consideration. AVe, therefore, if the honorable court phrase, submit now a request that the President and his counsel may be allowed the period of thirty (hiys after the filing of the replication on the i)art of the House of Representatives to the answer of the President for prejiaration for the trial and before it shall actually ])roceed; and I beg leave to send to the Chief Justice a written minute of that pnqiosition signed by the counsel. The Chief Justice. It is not for the present in order. The question before the Senate is the motion submitted on the part of the managers of the impeach ment that the House of Representatives 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 an application on the part of the counsel for the Pi'csidcnt. Mr. EvARTS. I now beg to ask for the action of this honorable court upon IMPEACHMENT OF THE PKESIDENT. 69 the presentation in writing of a request for thirty days after tlie filing of the replication for the defence to prepare for the trial. The (.'hikf Justick. 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 ISGS, the counsel for the President of the United States, upon reading and filing his answer to the arti- cles of impeachment exhihited against him, respectfully represent to this honor- able court that after the rcplicatioa shall have 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, that a period of not less than thirty days should be allowed to the President of the United States and his counsel for such preparation, and before the said trial should proceed. HP]NRY 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 a])plication lie upon the table until the replication of the House of Representa- tives shall come in. Mr. Manager BIi\gham. 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 apjjlication 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 replication 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 managers 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 Senate 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 a])plication. 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 fnr oratorical displays before this august body. They have had the same opportunities that the managers on the part of the House of Representatives lave had for preparation. They can and will have the same during the whole ])rogress of this trial. It is not stated that any witness who will j)rove any mateiial 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, docu- ments, persons, or papers, material or immaterial in this case. Why, then, Mr. ] 'resident, grant further time when no good cause under the rule is shown] 'i'he answer herein filed admits the order of removal of the Secretary of War and the order appointing a Secretary ad interim. The President knew what 70 IMPEACHMENT OF THE PRSSIDENT. the law was when these orders were made, and knowino^ it, violated it, for which violation we charge him with high misdemeanors 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 Pliiladeljjhia and Richmond, in time to prepare and put in his answer and proceed to trial before the 5th day of March then next following ; and further, that he could not get his witnesses or counsel nor prepare his answer at the same time, disclaiming that this was done for delay. This appli- cation was sworn to by the respondent ; he was given time, and the facts show that his answer was filed and liis 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 wit- nesses, the distance they lived from \Yashington, 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 tbe 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 pre- cedent 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, signed 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 oi 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 appli- cation 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 travelled. No residence is mentioned. It is not stated that any attempt has been made to obtain any evidence or to even have witnesses subpoenaed. But, sir, for what is this appli- cation 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 arguments, 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 pre- pare on either side ; none for the procurement of witnesses, as none has been asked on that ground. If time be now given on this application, perhaps when issue is joined and the time now extended elapses, we may be met by an affidavit asking more time for the procurement 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 tlie 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 barm 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 violating the law; we have charged him with obstructinsr the law. Our charges are of such a character as show IMPEACHMENT OF THE PRESIDENT. 71 him to be a dangerous person to remain the Chief Magistrate of the nation, inas- much as he, instead of administering, obstructs the haw. It is said that time would be given to an ordiuary criminal to prepare his defence. I may be par- doned 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 as 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 respondent do not agree wilh us in this ; nor do we ask the Si-nate to so adjudge until our charges are made good by competent testimony. The course in the case of ordinary criminals who commit crimes or misdemean- ors is, or may be, ditferent 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 commi'ted 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 uuder foot that he had the day we charged him with having committed these high crimes and misdemeanors ; hence the reasons for not granting time iu this case are stronger than could be urged in the case of an ordinary criminal. In the one case you would give time where no danger might arise froui 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 criminal; and we here enter our protest against any extension of the 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 impeachment, and that we may follow it up with the evidence, and that the counsel for the respondent may then state their defence and produce 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 at- tempted to get your witnesses ; have you attempted to make any preparation to try thecause 1" And if the counsel would answer that they had made no prep- aration 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 thought and reflection, the application would certainly be denied. A.nd against the granting of this, not made upon the oath of any pei son, not signed by the President, and merely intended for the benefit of counsel, we, the mana- gers, 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 at- tention of this honorable court to the attitude of the cause before them, as Ave conceive it to be. Other courts, except such as arc 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 prosecutions, 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 coun- sel 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 pro- duction of proof. Beyond that, we feel no occasion to present by affidavit to tliis honorable 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, ob?ervant, as we propose at all times to be, of that public necessity and duty which require on the part of the President 72 IMPEACHMENT OF THE PRESIDENT. of the ITnitfd States and liis counsel, not less than on the part of the House of Repret=entative.s and its managers, that dih'gence should be used, and that we his counsel should be withdrawn from all other profi^ssional or personal avoca- tions, we yet cannot recognize in the presence of this court that that is an ao- swer 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 honorable managers in this great procedure, do we esteem it a sufficient answer to our desire to be re- lieved from undue pressure of haste Ujion our part 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 compensation for haste required from the defendant may be demanded by equal haste being neces- sai-j 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 saj that our standard of our duty and our means and our needs for properly performing it are neces- sarily to be measured by theirs. Nor do they sufficiently attend, as I say with great respect, to the position of the accused and his counsel in reference to the preparation of a defence M'ith that which is occupied by the managers and by the House of Representatives in refeience to the explorations and the pro- vision and the preparation of the accusation and of its evidence; for during a very considerable period, with the coercive power of summoning witnesses and calling for papers which rightfully belong to the House of Representatives, all this matter upon the one side and the other, to a certain extent, may have been actually explored 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 respect in regard to the position in which we present our- selves, due respect to our statement, it will understand that up to this time the consideration of the dcgn^e and measure, of the means and occasions, for proof has not yet possibly received our practical and responsible attention, and that within the limits of this accusation, unless it shall be narrowed more than we expect by the replication to be filed, there may be, there must be, a very con- siderable range of sunjocts and a very considerable variety of practical consid- erations that will need to come under the responsible judgment and for the responsible action of counsel. It would seem to me that we are placed thus far in the attitude of a defend- ant 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 matter of right, as matter of absolute and universal custom, one is not required or ex- pected to givCsany cause of actual obstruction and difficulty 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 arrangement, and no such possible arrangemiMit of its affairs in advance, we are obliged at each stage of regular proc(.'e(ling to ask your attention as to what you will provide and consider in the p;irticidar case is, according to the general nature of the procedure and the uiulerstood attitude of both parties to it, a just and rea- sonable proposition to be made by us as to the time that should be allowed for the preparation in all respects for this tri;d 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 thecountry. The measure of justice and of duty has no respect whatever to poverty or sta- tion. The actual nature of the proceeding, the actual circum-itances of the case are to furnish the rule for the exercise of whatevtu- falls within the discre- tion 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 IMPEACHMENT OF THE PRESIDENT. 73 witncps on their pnrt was roqnirod, 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. Anil so, upon our part, if, foreseen or unforeseen, such an occasiou sl'.onld arise, it would be a necessary duty of the court to take it into considera- tion and provide for it as the occasion arose. The proposition that we now make to the court, and, unless there is to be a dejiarture from the general habit of all courts in such a predicament of a procedure, what we expect their action according to and u[)on is this : that after issue joined we should have a reason- able 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 for as may lie in their power, that this case shall not be taken out of the line of the precedents ; there- fore it is that we will resist all applications for unreasonable delay. The counsel for the respondent M-ho has jast taken his seat might well, in view of the re- marks M'hich he submitted, have waited until issue joined before presenting this motion ; but it is here, and we are prepared here and now to take the mo- tion as we find it, and deal with it as its form and merit of substance require. It will be remembered that the first step taken by the counsel for the re- spondent 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 ap- peared and made application f n- 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 application by his solemn affidavit, stating that he could not possibly prepare his case for trial before the 5th day of the succeeding JIarch, and therefore he asked an allowance of time for preparation for trial until the commencement of the next session of Congress, as the then session would expire on the 4rh day of that month. In his application he disclosed the necessities 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 defence, and to find the witnesses to support it. After due consideration the Senate overruled his application, and required him to answer on the 4th day of the succeeding February, thus allowing 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 afiidavit would be required tor him to prepare for trial, the cause had been tried on such perfect preparation that it resulted 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 afiidavit. He was granted the time he desired to prepare his answer, when, by an adjournment of Congress, his case went over for trial uutil the next session. But we have had no such course pursued in tliis 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 foi ty 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 Constitution the right to do the 74 IMPEACHMENT OF THE PRESIDENT. very acts which we have charged against him at the bar of this Senate as crimi- nal acts, and persists in his defiance of the hiws and in the wickedness of the course which the lepresentatives of the people have challenged. This 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 offences 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 1 Brcause 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 exe- cute the law, and is clothed by the Constitution of the country with the whole executive power of the nation, that he may be enabled to discharge faithfully the duty thus imposed. He has not, in the judgment of the House of Repre sentatives, discharged this duty as his oath of office requires, but has dis- regarded the law and defied its authority. For his failure to. discharge it, for his acts of positive transgression 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 offences, claims the right to repeat and extend them, and now asks for time that he may further imperil the nation while he endeavors to make good his unlawful assumptions of power, in the mean time 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 retains that power, disturbing the repose of the country and interfering with every interest of busi- ness and trade and commerce, by prolonging 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 govern- ment, and at the same time observe with reasonable care the rights belonging to the respondent. The present 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 delay in this proceeding disclosed at the threshold. The following order constitutes the rule to which I refer: Ordered, That unless otlierwise ordered by the Senate for cause .shown, tlie trial of the pending impeachment shall proceed immediately after replication 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 discretion 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 Wll-S().\. " Ordered, That unh-ss otherwise ordi-red by the Senate for cause shown, the trial of the j)endiug impeachment shall proceed immediately after replication shall be filed." It will be observed — the interru])tion suggests 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 representatives and the respondent, though we waive this objection in the interest of the economy of time. But, as I have said, this application, consid- ered now or at any other time, must be addressed to the sound discretion of the IMPEACHMENT OF THE PRESIDENT. 75 Senate, and it is for us to remember tliat a sound discretion acts not without rule to guide it. The discretion to which such motions are addressed must be directed by hiw — " it must be g-overned by rule, not by humor ; it must not be arbitrary, vague, and fancifuh but k^gal and rtgular." And I therefore deny that the application and the statements therein con- tained 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, in the exercise of a sound discretion, that one hour's delay should be gianted ; for there is nothing of a substantive character affecting the merits of the case dis- closed upon which it can act. What is the application ? It is substantially that counsel have not had time to prepare and become familiar Avith the case, therefore they must be allowed opportunity to educate themselves 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 application. 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 affi- davit, for delay of proceedings ; judges summoned from the bench and brought to this bar have presented 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 defence, 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 regai d in some degree the voice of the representatives as presci^ted by the managers, and put this re- spondent 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 resto- ration of harmony between the two contending 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. Therefore, Senators, in the name of the House of Represent- atives, 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 appearance, and when we supposed we had nothing to do but to enter our ap- pearance 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 manageis 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 honor- able court meant us to have time to prepare for trial if we reasonably showed that it was necessary. Now, what has happened, Mr. Chief Justice? Wliat has been stated to this honorable court, composed in a great measure of member.-* of the bar, by mem- bers of the bar that I hope have sufficient standing with this court to have some credit, at least, for professional statements 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 exclusively 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. Cliief Justice ? Occupied, every instant of it, in the prepa- ration 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. 76 IMPEACHMENT OF THE PRESIDENT. Certainly, it was iutendcil n)i xhn 13th to give us time not merely to prepare our answer, but to prepare fnr that still more material thing, the trial. And now T hope I shall obtain creflit with the honorable court when I say that we have been so pressed witii 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, Ave have bein so pressed that to the communica- tions which we have received from the honorable managers in regard to adm ssions 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 communications." 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 v/as said and done at those places, and as yet I do not know a single witness whom the President wants to call in his defence. I know that he wants to call witnesses, 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 arti- cles 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 witnesses 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 preparation 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 prepare ourselves, whereas they are already prepared, completely prepared, so far as counsel need prepare them- selves. I am very happy to hear that they are. I should be very far from saying that I am equally prepared. 1 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 1 have never b('en 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 defenceless. 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 unprepared. 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 aj)pearance but the filing of the answer. What ! They read out of a rule that old formula that has come down to us for five hundred yearSj the order to "appear and answer" — the same language which was adopted at that early time when pleadings were ore ttnus and by parol, when the defendant was called and answered immediately. But even our old independent and sturdy ancestors wnuld 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 tim<-, "leave lo im])arl " a day to answer. We have j)reserved the same phraseology in our subse(juent proceedings. The summons is stdl to a defi^ndant " You an^ hereby smiunoned to appear on such a day and answer;" but who ever supposcul he was then to file his answer? What lawyer that ever wrote a declaration does not recollect the beginning of it, "The defendant was summoned to appear and answer;" and yet every law- IMPEACHMENT OF THE PRESIDENT. 77 yer knows flint the time for the clcfcndant's answer has not yet come. Well, our anawer has been presented No dny has yet peremptorily been fixed for trial. The Senate said to us, "Yon shall go to trial when the replication is filed, provided yon do not show good cause." The canse we show is, may it please the honorable conrt, that we have not had one moment's time to prepare for trial. Mr. Howard and Mr. Manager Bingham rose. The ClilKF JuSTiCK. The Senator from Michigan. Mr. Manager Bi\gham. On the part of the managers I 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 BiiXGHAM. I will only say that we have used but thirty-five of the minutes of the time allowed us under the rule. The Chikf Jdstick. The Chair announced at the last sitting that he would not undertake to restrict counsel as to luimber 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 Sexators. Certainly. Mr. Manager Bingham. Mr. President, with all respect touching the sugges- tion just made by the presiding ofiicer 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 England, and of the representatives of the people in the United States, to close the de- bate 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 the presiding officer to the Senate, one of the managers of the House of Commons arose in his place and said that he owed it to the Commons to protest against the immemoriHl 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 lord.s, it was not my iutention to trouble your lordsliips witli any observatior..s upon the arg'Uiiieiit.s you have lieard; and if I now do so, it is only tor the sake of iusistiiip;' upon and niaiotainiijg; tliat right which the coiiuiionfio.iiteiid is their ackncwledg-ed and niidoiibted privilege, the riglit of being heard after the counsel for the del'eudaiit has made his observa- t\qfis in reply. It has been invariably admitted when required. — State Trials, vol, 29, p. 769 ; 44 to 40 George III. Lord Erskine " responded the right of the Commons to reply was never doubted or disputed." Following ihe suggestion of the learned gentleman 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 impeachment that ever was tried before the Senate of the United States, (I refer to the ca.-M; of Blount.) the Senate will see by a reference to it that although the accused had the aflirmative of the issue, althougii he interposed a plea to the jurisdiction, the argument was closed in the case by the manager of the House, Mr. Harper. (Wliarton's State Trials of the United States, pp. 314. 315.) Wlien I rose, however, at the time the honorable" 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 Senate 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. 78 IMPEACHMENT OF THE PRESIDENT. Mr. Howard. Mr. President, if the discussion is closed on the part of the managers, and the counsel Jlr. ^Manager Bi.ngham. I desire to have the question submitted. Mr. Howard. I was about to move that this motion be laid on the table. Mr. Manag'er Bincjham. 1 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 dixty not to proceed without the consent of the Senate, inasmuch as the presiding officer has already suggested to the Senate that the managers could not be further heard ; in other words, could not be per- mitted to make a final reply. The Chief Justice. The motion of the senator from Michigan is that ]Mr. Manager Boutwrll. Mr. President, will the Chair pardon me 1 The Chief Justice. Certainly. Mr. Manager Boutwrll. This seems to the managers, and to myself espe- cially, a matter of so much moment as to whether the managers 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 ivith the discussion, I withdraw my motion to lay the order on the table. Mr. Manager Bingham. Now, Mr. President, if it be the pleasure of the Senate JMr. Johnson. I ask for the reading of the twentieth rule. The Chief Justice. The rule will be read. The Secretai'Y read rule twenty, as follows : 20. All preliminary or interlocutory questions, and all motions, sliall be argued for not exceeding one hour on each side, uules.s 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 1 Mr. Manager Bingham. Yes, sir; with the President's leave. Mr. President and Senators, I deejdy regret that the counsel for the accused have made any intimation here that the question is made or intended to be made by the managers touching the entire sincerity with which they act before this tribunal. 1 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 ti>ok his seat spoke of their having presented this application upon their honor. No man questions tlu'ir honor; no man who knows them will question their honor; but we maybe par- doned 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 language 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. 1 submit that a question of this magnitude has never been decided upon a m(;re presentation of a stattnncnt of counsc;], in this country or in any country. To speak more plainly, a motion for continuance arising on a (juestion of this sort, 1 venture to say, has never been decided .iffirmatively upon such an issue on a mere statement of coufisel. If Andrew .Johnson, 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 tinu; b(; allowed him, he can make affidavit before this tribunal tliat they are mateiial, and set forth in his affidavit wiiat he expects to prove by them. I concede that upon such a showing there would be something ujion which the Senate; niiglit properly act. But, sir, instead of that, he throws himself back, upon his counsel, and they IMPEACHMENT OF THE PRESIDENT. 79 make tlieir statement here that they M'ill require thirty flays of time in wliich to prepare for trial. He sent these gentlemen to the bar of this tribunal on tbe 13th instant, upon their honor, to notify the Senate that it would retjuire 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 quire as much time for preparation, if this trial shall proceed to-morrow, as have the managers on behalf of the House of Representative?, who are charged by the people with duties from day to day iu 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 obli- gation of his own oath at the bar of this Senate, not another hour's continuance 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-morrow, by leave of the people's repi'esentatives, to put this case at issue by filing a replication. That is all the delay we desire. The accused has had the opportunity f )r process ever since the 13th instant, at least. He is guilty of grave negligence in this behalf — I do n'it speak of the counsel ; I speak of the accused. If he had witnesses to sub- poena, why was he not about it 1 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 Representatives, 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. AVhy, sir, what is this power of impeachment worth if the President of the United States, holding the whole executive power of the nation, is permitted, when arraigned at the bar of the Senate iu 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 coun- sel, is permitted 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. 1 remember very well, sir — it suggested itself to me when I heard this discus- sion going on — the weighty words of that great man (Chancellor Kent) whose luminous intellect shed lustre upon the jurisprudence of his country iu the State of New York for more than a third of a century, which he wrote down in his Commentaries 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 directly amenable, by law, for maladministra- tion. The inviolability of any otticer of i^overnment is incompatible with the republican llipory, as well as with the principles of reiributive justice. * » * * If, then, neither the sense of duty, the force of public opinion, nor the transitory nature of the seat are sufficient to secnre a faithful discharge of tbe.executive trust, but the President will use the authority of his station to violate the Constitution or law of the land, the House of Kepresentatives can arrest hiui iu his career by resorting to the power of impeachment. — 1 Kent, p. 313, sec. *2-59. Faithful to the duty imposed upon us by our oaths as the representatives of the people, we have interposed that remedy to arrest this mtn, and he comes to-day to answer, saying : " I defy your impeachment ; by the executive power reposed in me under the Constitution" — and I believe 1 quote almost the words 80 IMPEACHMENT OF THE PRESIDENT. of tlie answer laid before us — "by the executive power reposed in ine by the Const tution I claim in the presence of the Senate, I claim in the presence of the country, the power, witiiout clialleuge, let, or hindrance, to suspend every executiv(i ofHcer of this government at my pk'asure " I venture to say before th(; enligliteni'd bar of public opinion in Amt-iica, by these words incorporated in his answer, the President is as guilty of malfeasince and mi-!dem'!anor in oflice as ever man was guilty of malfi; isance or misdemeanor in office since na- tions began to be upon the earth. What ! That he will suspend all executive officers of t lis government at his pleasure, nor by force of the tenure-of-office act, to which he himself 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 ! AVhat does he mean by it ? Let the Senate answer when they come to vote on this prgposition for the extension of time. Does he mean by it that he will vacate the executive offices and not fill them 1 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 treasury, 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 Couslitutiou of the United States. The appoiniing power is " by and with the advice and consent of the Senate." The power to fill vacancies under the Constitution is in the President only as to such vacancies as may happen during the recess of the Senate, and so the Constitution reads. But, acconiing to the logic set out in this elaborate answer, to support which the President wishes thirty days of tim- for preparation, he is to vacate every executive 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 his successors should fi)llow his bad example, I ask the Senate to delib- erate, 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 contrary, every such office would be filled without the advice or consent of tlie Senate. 1 admit, sir, it is a time-honored rule of the common law, the growth of cen- turies, the gathered wisdom of a thousand years, that the accused has tlie right to a speedy and impartial trial. 1 claim that the people also have a right to a speedy and impai'tial trial, and that the question pending here touches lu 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 offences with which he stands ciiarged. 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 taiters in the presence of its cus- todians, th(; sooner that the judgment is pronounced the better. In every view of this case, in the light of the answer to which we have listened, 1 f 'el myself justified in saying that t\u-, public interests demand that this trial shall proceed until, upon the solemn oath of the accused made at this bar, it shall appear that he caiuH)t proceed on account of tin; absence of wit- nesses material to him, nor until he slates what he exjxcts to prove l)y 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 bysaying we will admit that the witnesses will swear to his statement, and let him have the benefit of it. Nearly all the testimony involved in this issue is documentary. Much of it is official. Enough IMPEACHMENT OF THE PRESIDENT. 81 of it, I miglit say, is official in ita character to justify the trial to proceed with- out farther 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 witnesses that we propose to call, the witiKiSses we have subpoenaed, so that they might prepare to meet them; and it will occur to the 8('uate as this trial proi^'resses 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 pre- jiaration in this matter. We desire simply to discharge our duty as best we can. We assume no superiority to the counsel, as was intimatful l)y the gentle- Tnan who last spoke, (Mr. Stanbery,) but we desire simply to discharge our duty here, and to discharge it promptly, and to discharge it faitlifiilly, 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 violated, may be vindicated, and that the wrongs which he has committed against an outraged and betrayed people may be redressed. Mr. Henderson. Mr, President, I propose an order, which I send to the ch.air. The Chief Justice. The Secretary will read the order. Thp chief clerk read as follows : Orihrcd, That the application of the counsel for the Presiilent to be allowed thirty days to prepare for the trial of the impeachment be postponed until after replication tiled. Mr. Manager Butlek. Mr. President, I should like to call the attention of yourself and the Senate to the positicm 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 jiuning issixe upon this answer, and there- fore for this purpose it may be considered as tiled. We shall have to be ready at all hazards lo-morrow to go on with this case with the uncertainty of having the court — I beg pardon for the word '* court," the Senate — give thirty or more days' time in wiiich the counsel for the accu.-ied 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, with entire uncertainty as to whether the Senate may or may not grant lurther time. I think I can say that upon this question we agree with the counsel for the defence, that it is better for all that it be settled now. I know 1 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 hei-e ; tix a day ; tell us when we can come here certain, and we will be here. That is all we desire, sir, and therefore I trust gentlemen will fix at this time the hour and the day when this trial shall certainly proceed, the act of Providence only preventing. 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, Cole, Dixon, Doolittle, Edmunds, Fessen- den, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle and Vickers. — 25. NaYvS— Messrs. Bayard, Cameron, Chandler, Conkling, Conness, Corbett, Cragin, Davis, 6 I P 82 IMPEACHMENT OF THE PRESIDENT. Drake, Ferry. Harlan, Howard, Howe, Morpau, >rorrill of Vermont, Morton, Xye, Patter- son of New HampsJiire, Pomcroy, Eamsey, Stewart, Sumner, Thayer, Tipton, Willey, Wil- liams, Wilson and Yates. — 28. • Not voTiNt; — Mr. Wade. — 1. 8o the order proposed by Mr. Henderson was not agreed to. Mr. How.Mii). Mr. President, I now move that the motion of the counsel for the accused do lie on the table. JMr. Dkakk. Mr. President, I rise to a question of order. '^I'he CiiiKF JusTK E. The senator will state his question of order. Mr. Drakk. That no motion to lay a proposition by the counsel for the de- fence, 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 Chikf Justice. The Chair is of opinion that the point of order is well taken, and that the motion of the senator from Michigan, that the proposition of the counsel for the accused lie on the table, is not iu 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 follows : Yeas — Messrs. Bayard, Bnckalew, Davis, Dixon, Doolittle, Hendricks, Johnson, McCreery, Norton, Patterson ot Tennessee, Saulsbury, and Vickers— 12. Nay;* — Messrs. Anthony, Cameron, Cattell, Chandler, Cole, Conkling', Conness, Corbett, Cragin, Drake, Ednumds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Hen- derson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Pat- terson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Spragjne, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates — 4J. Not VOTING — Mr. Wade — 1. The Chief Justice. On this question the yeas are twelve and the nays forty-one. So the application 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 bclialf of the President and in the name of his counsel, that he be allowed (upon the applica- tion which we have made and in which we have named thiriy days as a reason- able time) a reasonable time after the replication shall have been hied, to be now fixed by the Senate in their judgment. Mr. Johnson. What time is that 1 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 trial, after the replication 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 senator from Ohio withdraw his motion to adjourn ? Mr. Sherman. Yes, sir; but after tin; 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 BOW ? IMPEACHMENT OF THE PRESIDENT. 83 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 Chikf Justice. No, sir. Mr. EvARTS. It is now. The Chief Justice. The clerk will report the order. The chief clerk read as follows : The counsel for the President now move that there be allowed for the preparation of the President of the United States for the trial, after the replication shall be tiled aud l)efore the trial shall be required to proceed, such reasonable time as shall now be iixed by the Senate. Mr. Johnson. Mr. Chief Justice, is it in order to amend that motion 1 Several Senators. No, no. The Chief Justice. It is in order to propose a substitute for it; not to amend it. Mr. Johnson. I move, then, Mr. President, that ten days be allowed after filing the I'eplication. Mr. Sherman. I move that the Senate sitting as a Court of Impeacliment adjourn until one o'clock to-morrow. The motion was agreed to ; and the Chief Justice declared the Senate sitting for the trial of the impeachment of A.udrew Johnson adjourned until to-morrow at one o'clock. Tuesday, March 24, 18o8. The Chief Justice of the United States entered the Senate chamber at one o'clock p. m., escorted by Mr. Ponieroy, chairman of the committee heretnfore appointed for the purpose, took the chair, and directed the Sergeant-at-arms to oj)en the court by proclamation. The Sergfant-at ARMS. 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 impeachment exhibited by the House of Representatives against Andrew Johnson, President of the United States. The Chief Justice. The Secretary will read the minutes. The Secretary commenced to read the journal of yesterday's proceedings. Mr. .Johnson. Mr. Chief Justice, I submit to the Chair whether it is not advisable to postpone the reading of the journal until the managers and the counsel for the accused are present. The Chief Justice. The Sergeant -at-arms informs the Chief Justice that the managers are ready ; and he has directed the Secretary to suspend the read- ing of the minutes. The counsel for the respondent, Messrs. Stanbery, Curtis, Evarts, Nelson, and Groesbeck entered the chamber and took the seats assigned them. At five minutes past one o'clock the presence of the managers on the part of the Hou.-^e of Representatives was announced at the door of the Senate chaiu- ber by the Sergeant-at-arms, The Chief Justice. The managers will please to take their Beats within the bar. The managers were conducted to the seats provided for them. The members of the House of Representatives appealed at the door, headed by ]Mr. E. B. Washburne, chairman of the Committee 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 proceedings of Monday, March 23, of the Senate sitting for the trial of the articles of impeachment exhibited by the 84 IMPEACHMENT OF THE PRESIDENT. HouHP of Representatives against Androw Jolinson, President of the United States. The Chief Justicr. The Chair will lay before the Senate a resolution which has been recoived from the House of Representatives. The Secretary read as follows : In the House of Representatives, March 24, 1868. Resolved, That a mossafre be sent to the Senate by the Clerk of the House, informing the Senate that the House of Representatives has adopted a replication to tlie answer of the Presi- dent of the United States to the articles of impeachment exhibited ap^ainst him, 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 vf Representatives. The Chief Justice. The Senate will receive the replication of the managers. Mr. Manager Boutwkll Mr. President and Senators, I am charged by the managers with presenting the replication which has been adopted by the House of Representatives : In thr House of Representatives, United States, Mof-ch 24, 1868. Repla-afion hy the House of Representatives of the United States to the answer of Andrew Johnso7i, President of the United States, to the articles of impeach- ment exhibited against him hy the House of Representatives. The House of Representatives of the United States have considered the seve- ral 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 ad- vantage of exception to the insufficiency of his answer to each and all of the several articles of impeachment exhibited against said Andrew Johnson, Presi- dent 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 misdemeanors charged against said Andrew Johnson in the said articles of im- peachment, or either of them; and for replication to said answer do say that said Andrew .Johnson, Pi-esident of the United States, is guilty of the high crimes and misdemeanors mentioned in said articles, and that the House of Rep- resentatives are ready to prove the same. SCHUYLER COLFAX, Speaker of the House of Rep)resentatives. Edward McPherson, Clerk 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 CiilKF Justice. When the Senate sitting as a court of impeachment adjourned yesterday evening, a motinn was pending on the part of the counsel for the President that such lime should be allowed for preparation as the Senate might please to determine, and thereupon the senator from Maryland [Mr. Jobu- sonj submitted an order which will be read by the Secretary. The SccHitary read as follows : Ordered, Tiiat tlie Senate jjrocccd to the trial of the President under the articles of impeach- ment exhibited against him at the expiration of ten days from this day, unless for causes Bhowu to the contrary. The Chief Justice. The question is on agreeing to the ordei*. IMPEACHMENT OF THE PRESIDENT. 85 Mr. Sumner. IMr. Presiilont, I semi to tlie Chair an amendment, to come in immodiately after the word "Ordered," being in the nature of a substitute. The CliiKF JrSTU'F. 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 lias been filed, the Senate, adlievhig; to its rule already adopted, wiU proceed with the trial from day to day (Sundays excepted) uuless otherwise ordered on reason shown. The Chief Justice. The question is on the amendment by way of substitute. Mr. EdiMUiXDS. 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 Massa- chusetts. [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 : Yeas— Messrs. Authouy, Bayard, Buckalew, Corbett, Davis, Dixon, Doolictle, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes,' Henderson, Hendricks, Howe, Johuson, Mc- Creery, Morrill of Maine, Morrrill of Vermont, Mortou, Norton, Patterson of New Hamp- shire, Patterson of Tenuesese, Saulsbury, Sprague, Van Winkle, Vickers, WiUey, and Williams— 29. Nays — Messrs. Cameron, Cattell, Chandler, Cole, Conkling, C(nniess, Cragin, Drake, Feny, Harlan, Howard, Morgan, Nye, Pomeroy, Ramsey, Ross, Sherman, Stewart, Sum- ner, Thayer, Tipton, Trumbull, and Wilson — 23. Not voting — Messrs. Wade and Yates. 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 tw(!nty-five minutes past one o'clock, retired, with the Chief Justice, to the reception room for consultation. The Senate having retired to the reception room. The Chief Justice stated the question to be on the amendment proposed by Mr. Sumner 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 im- peachment exhibited against him on Thursday, the 2d of April. Mr. Williams submitted the following order: Ordered, That the further consideration of the respondent's application for time be post- poned 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 26, as follows : Yeas— Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Cragin, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Stewart, Sumner, Thayer, Tipton, Willey, WiUiams, and Wilson — 26. Nays— Messrs. Anthony, Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Jdhnson, McCreerj% Norton, Patterson of Tennessee, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, and Vickers — 24. . Not voting — Messrs. Wade and Yates — 2. So the amendment was agreed to. The Chief Justice stated the next question to be upon the adoption of the order proposed by Mr Williams. 86 IMPEACHMENT OF THE PRESIDENT. Mr. "Williams called for die yeas and nays, and they were ordered; and being taken, resulted — yeas 9, nays 42, as follows : Yi;as — Mot^.srs. Aiitl)on3', Chaudlcr, Dixon, Grimes, Harlan, Howard, ^lorgan, Patterson of Teuni'ssce, and Williams — 9 Navs — Messrs. Bayard. Buckalew, Cameron, Cattejl, Cole, Conklinpf, Conness, Cragin, Davis,. Doolittle, Drake, Edmunds, Ferry, Fessenden, Fowler, Freliiig^huyscn, licndi-rsnii, Heiuirii'ks, Howe, JoIiiksdu, McCreery, Morrill of Maine, Morrill of Vermont, Mcjrton, Nor- ton, Nye, Patterson of New Hampshire, Ponieroy, Ramsey, Koss, Saulsbury, !Sliernian, t^praoiie, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Vickers, Willey, and Wilson- 4-2. Not votiN(;— Messrs. Corbett, Wade, and Yates — 3. So the order proposed by Mr. Williams was not agreed to. The question recurring on the amendment proposed in the Senate chamber by Mr. Sumner to the order submitted by Mr. Johnson, Mr. Sumnp:r Avithdrew his amendment. The Chikf Justice stated the question to be on the order proposed by Mr. Johnson, as amended, 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 day of March instant. Mr. Hk.\dricks moved to amend the order by adding thereto the words, '• and proceed therein with all convenient despatch, under the rules of the Sen- ate sitting upon the trial of an impeachment." The amendment was adopted ; and the order, as amended, was agreed to. On motion of Mr. iMorto.v, the Smiate agreed to return to the Senate chamber. The Senate returned to the chamber, and the Chief Justice resumed the chair at twenty-thrre minutes past three o'clock p. m. The Chief Justice. The Chief Justice is directed to inform the counsel for the respondent 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 Avill commence the trial of the President upon the articles of imiicachnieiit exhibited against him, on Monday, the 3()th of March instant, and proceed therein with all convenient despatch, 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 ? Mr. Manager Bingham Mr. President, we have nothing further to propose. The Chief Justice. Have the counsel for the respondent anything to pro- pose ] [No response.] Mr. Manager Bu'i'LER. "Will the President allow me to give notice to the wit- nesses on the part of the House of Representatives who are in attendauce, that they must appear hen^ at one o'clock on Monday, the 30lli ? 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 SOth. Mr. Wilson. 1 move that the Senate sitting for the trial of this im])eachment adjourn until Moiulay next at half-past twelve o'clock. The motion was agreed to. The Chief Justice. The Senate sitting as a court of iin})eachment stands adjourned until liall-jiast twelve o'clock on iMonday next, tlu; oUth instant. IMPEACHMENT OF THE PRESIDENT. 87 Monday, March 30, 1868. At half-past twelve o'clock p. rn. the Chief Justice of the United State? entered the Senate chamber, escorted by Mr. Pouieroy, chairman of the com- mittee heretofore appointed for that purpose. The Chikf Justice. The Sergeant-at-arms will open the court by procla- mation. The Sergkant-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 impeachment exhibited by the House of 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 an- nounced 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 Repre- sentatives was announced, and the members of the Committee of the Whole House, headed by Mr. E. B. Washburne, of Illinois, the cliairman of that com- mittee, and accompanied by the Speaker and Clerk of the House of Representa- tives, entered 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 managers of the House of Rej)re3entative3, you will now proceed in support of the articles of impeachment. Senators will please give their attention. OPENING ARGUMENT OF MR. BUTLERf OF MASSACHUSETTS, ONE OF THE MANAGERS ON THE IMPEACHMENT OF THE PRESIDENT. Mr. President and Gentle7nen 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 adjudica- tion, 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 highest 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 despotisms could only be tempered by assassination, and nations living luider constitutional governments even, have found no mode by which to rid themselves of a tyrannical, imbecile, or faithless ruler, save by overturning the very foun- dation and frame-work 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 government, have provided for such and all similar exigencies a conservative, effectual, and practical remedy by the Constitutional provision that the '• President, Vice-President, and all civil officers 88 IMPEACHMENT OF THE PRESIDENT of the United States shall be removed from office on impeachment for and con- viction of treason, liribery, or other high crimes and misdemeanors." The Con- stitution leaves nothing to implication, either as to the persons upon whom, or the body by whom, or the tribunal before which, or the offences for which, or the manner in which this high power should be exercised ; each and all are provided for by express words of ini})erative command. The House of Representatives shall solely impeach; the Senate only shnll 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 procedure of the mother country to the institutions of the then infant. republic. But a single incident only of the business was left to construction, aiul that concerns the offences or incapacities wliich are the groundwork of impeachment. This was wisely done, because human foresight is inadequate, and human intelligence fails in the task of antici- patiug and providing for, by positive enactment, all the infinite gradations of human wrong and sin, by which the liberties of a people and the safety of a nation may be endangered from the imbecility, corruption and irnhallowcd 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 atten- tion 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 Eng- land, had preferred charges for impeachment 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 numbers were counted by millions. The mails were then bringing, across the Atlantic, week by week, the eloquent accusations of Burke, the gorgeous and burning denunciations of Sheridan, 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 offences, because of which the conduct of an officer might be inquired of, to be defined by the laws and usages of Parliament 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, the question arises. What are impeachahle offences under the provisions of our Constitution ? To analyze, to compare, to reconcile 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 pro])ositions, 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 uj)on this subject, in both countries, for which I am indebtt-d to the exhaustive and learned labors of my friend, the honorable William Lawrence, of Ohio, member of the Judiciary Ctimmittee 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 fundainental or essential principle of goiernmcnt, or hii^hly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of dvty, by an act committed or omitted, or, without violating a' positive law, by the abuse of discretionary porvers from iviproper 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 misdemeanors " arc universally used ; but any mal- IMPEACHMENT OF THE PRESIDENT. 89 versatioii in ofTice, liiglily projudicial to tlie pnlilic interest, or subversive of some fundamental principle of government by which the safety of a people may be hi clanger, is a high crime against the nation, as the term is used in parliamen- tary law. iiallam, in his Constitutional History of England, certainly deduces this doctrine from the precedents, and especially Lord Danby case, 11 State Trials, 600, of which he says : The Commons, in impeacliiiig Lord Danby, wont a p^roat way towanls establishing:^ the principle that uo minister can shelter himself behind the throne by pleadiuiJ: obedience to the orders of his sovereifrn. He is answerable for the justice, the honesty, the utility oj all meas- ures emanatiHg from the Crown, as well as for their leuality ; and thus the executive adaiiu- istratiou is, of ought to be, subordinate in all great matters of policy to the superintendence and virtual control of the two houses of Parliament. Mr. Christian, in his notes to the Commentaries of Blackstone, explains the collocation and use of the words " high crimes and misdemeanors" by saying : When the words "high crimes and misdemeanors" are used in prosecutions by impeach- ment, the words "high crimes" have uo definite siguificatiou, 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 hke 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 Constitution, for, in the first Congress, when discussing the power to remove an officer by the President, which is one of the very material questions before the Senate at this moment, he uses the following words : The danger consists mainly in this : that the President can displace from office a man whose merits require he should be continued in it. In the first place, he will be impeach- able by the House for such an act of maladministration, for I contend that the vvauton removal of meritorious otHcers would subject him to impeachment and removal from his own high ti'ust. Strengthening this view, we find that within ten years afterwards impeach- ment 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 proposition to be sustained by the authorities we furnish, we are nat- urally brought to the consideration of the method of the procedure, and the nature of the proceedings in cases of impeachment, and the character and powers of the tribunal by which high crimes and misdemeanors are to be adjudged or determined. One of the important questions which meets us at the outset is: Is this pro- ceeding a trial, as that term is understood, so far as relates to the rights and duties of a court and jury u[)ou an indictment for crime? Is it not rather more in the nature of an inquest of ofiice 1 The Constitution seems to have determined it to be the latter, because, under its provisions the right to retain and hold office is the only subject that can be fiiuilly adjudicated; all preliminary inquiry being carried on solely to determine that question and that alone. All investigaiions of f ict 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 Repre- sentatives 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 contra- distinguished 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 pruceediugs and 90 IMPEACHMENT OF THE PRESIDENT. acljnflication liv tlio rules anrl prec^flonts of the common or statute law ; that the interest, bias, or preconceived opinions or affinities to the party, of the judges, may be open to in juiry, and even tlie rules of order and precedents in courts should have effect ; that the managers of the House of Representatives must conform to those rules as they v?^ouId be applicibli' to public or private prosecu- tors of crime in coints, and that the accused may claim the benefit of the rule in criminal cases, that he may only be convicted when the evidence makes the fttct clear beyond reasonable doubt, instead of by a preponderance of the evidence. We claim and respectfully insist that this Tribunal has none of the attributes of a judicial Court as they are commonly received and understood. Of course, this question must be largely determined by the express provisions of the Con- stitution, 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 pre- side. But even this provision can have no determining effect upon the question, 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 judiei.il officer) must preside 1 Can it be contended for a moment 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 Constitution has designated the Chief Justice as the presiding officer ? The fact that Senators are sitting for this purpose on oath or affirmation does not influence the argument, because it is well understood that that was but a substitute for the obligation of honor under which, by the theory 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 person must answer upon oath. But our fathers, sweeping away all distinctions of caste, required every man alike, acting in a solemn proceeding like this, to take an oath. Our Constitution holds all good men alike honorable, and entitled to honor. The idea that this tribunal was a Court seems to have 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 notforgetthat the Houses of Parliament 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 ])ower 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 sufigest, therefore, that we are in the presence of the Senate of the United States convened as a constitutional tribunal, to inquire into and determine whether Andrew Johnson, because of malversation in office, is longer fit to retain the office of President of the United Slates, or hereafter to bold 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 linal order therein. How dif- ferent is each stej) from those of ordinary criminal procedure. A constitutional tribunal sob ly, you are bound by no law, cither statute or common, M'hicli may limit your constitutional preri>gative. You consult no pre- cedents save those of the law and custom of pai-lianu-ntary bodies. You are a law unto yourselves, bound only by the natural principles of equity and jus- tice, and that sulus iioimli i^uprcma est lex. IMPEACHMENT OF THE TRESIDENT. 91 Upon tliose principles and piirlimentary law no jnrlgos can aid you, and indeed in late years the judges of England in the trial of impeachment declined to speak to a question of parliamentary law, even at the request of the House of Peers, although they attended on tliem in their robes of oliice. Nearly live hundred years ago, in 138S, the House of Lords resolved, in the case of Bilknaj) and the other judges, "That these matters, when brought before them, shall be discussed and adjudged by the course of I'arliament, and not by the civil law, nor by the common l.nw of the land used in other inferior courts." And that resolution, which was in contravintion 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 riglit of challenge by either party to any of its members for favor, or malice, affinity, or interest. This has been held from the earliest times in Parliament even when that was the liigh 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, p. 521,) as early as 1551, it was held that the Duke of Northumberland 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., 1st State Trials, p. 765,) Marquis of Northampton, 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 persons as were equally culpable in that crime, and those by whose letters and commandments he was dii'ected 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." Again, on the trial of Earls of Essex and Southampton, (ibid., 1 State Trials, p. 1335,) for high treason, before all the justices of England, 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. Whereunto the Lord Chief Justice answered " No." Again, in Lord Audley's case, (ibid., 3 State Trials, page 402, A. D. 1631,) it was questioned wliether 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 influence in it what- ever.] The same point was 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, page 2SS,) the Commons objected that Lord Sommers, the Earl of Oxford, and Lord Halifax, ■who had been impeached by the Commons before the House of Lords 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 relation 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. 1800, (ibid., 29 State Trials, p. 1398,) some observations having been made as to the possible bias of some portion of 92 IMPEACHMENT OF THE PRESIDENT. the ])3erp, (by the counsel for rlefendant,) Mr. Whitebread, one of the managers on the part of the Commons, answered as follows : My lords, as to your own court, sometliiiig lias been thrown out about tlie possibility of a challenp^e. Upon suc-Ii 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 Conunons to prosecute Lord Mel- ville in a court nf law wlu-re he would have the rJ^/tHo 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 last the successful motion : " that Henry, Viscount of Melville, be impeached of high crimes and misdemeanors." I ^ull justified, then, in saying that he is here by his own option. * * * I5i,t, my lords, a challenge to your lordships ! 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 170 peers who commenced the trial, but 29 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, succes- sion, and creation more than ISO 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 drunken- ness in office, although undefended in form, yet he had all his rights presei'ved. 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 there voted in favor of impeaching Judge Pickering, were senators when his trial came off. Mr. Smith, of New York, raised the question, by asking to be excused from voting. Mr. Smith, of Maryland, declared " he would not be influenced from his duty by any false delicacy ; that he, for his part, felt no delicacy upon the sub- ject ; the vote he had given in the other house to impeach Judge Pickering would have no "infliietice 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 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 whilst 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 affirmative 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 tim(!S, and doubtless many of the senators had formed and expressed oj)inions upon his conduct. That arbitrary judge;, but learned lawyer, knew too much to attempt any such futile movement as a challenge to a senator. Certain it is that the, proprieties of the occasion were not marred by tlie worse than anomalous proeeiuling of the challenge of one senator to another, especially before the defendant h.id appeared Nor did the Manngers exercise the right of challenge, although Senators Smith and Mitchell, of New York, were members of the Senate on the trial and voted nof gui/fi/ on ev(i\y article, who had been members of the House when the articles were found, and had there voted steadily against the whole proceeding. Judge Peck's case, which was tried in 1S31, afi'ords another instance in point The conduct of Judge I'eck 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, although Webster of Massachusetts IMPEACHMENT OF THE PRESIDENT. 93 was a raorabpr of the committee of the House of Representatives to wliom the petition for impeachment was referred, and which, after examination, reporteu thereon " leave to withdraw," and 8prague, of Maine, voted against the proceed- ings in the House, while Livingston, of Louisiani, 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 Penn- sylvania, in 1804. There, after the articles of impeachment were framed, the trial was postponed to another session of the legislature. Meanwhile, three members of the House of Ri^presentatives. 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 objectioa was overruled, 17 to 6. Two of the minority were the gentlemen who bad 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 proposi- tion to limit the number of judges, the lords made answer : That in the case of impeachments, which are the groans of the people, and for the highest crimes, and cany with them a greater supposition of guilt than auy other accusation, there all the lords must judge. There have beer^nany instances in England where this necessity, that no peer be excused Trom sitting on such trials, has produced curious 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 most peculiar and painful instance, 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. Lord 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 brothei", the son and nephew of the judges. It would seem impossible that in a proceeding before such a tribunal so con- stituted there could be a challenge, because as the number of triers is limited by law, and as there are not now, and never have been, any provisions, either iu England or iu this country, for substituting another for the challenged party, aa a talesman is substituted in a jury, the accused might escape punishment alto- gether by challenging a sufficient number to prevent a quorum, or the accuser might oppress the respondent 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, always partaking, more or less, of political considerations, and re- quired to be discussed, before presentation to the triers, by the co-ordinate branch of the legislature, it is im)K)ssible that senators should not have opinions and convictions ujion the subject-matter more or less decidedly formed before the case reaches them. If, therefore, challenges could be allowed because of such opinions, as in the case of jurors, no trial could go forward, because every intel- ligent senator could be objected to ujion one side or the other. I should have hardly dared to trouble the Senate with such minutenesa of citation and argument upon this point, were it not that certain persons and papers outside of this body, by sophistries drawn from the analogies of the pro- ceedings in courts before juries, have endeavored, in 'advance, to prejudice the public mind, but little instructed in this topic, because of the infrequency of impeachments, against the legal validity and propriety of the proceedings upon this trial. I may be permitted, without offence, further to state that these and simihir 94 IMPEACHMENT OF THE PRESIDENT. reasons have prevented the Managers from obji'ctingby challenge or otherwise to the competency of one of the triers of near atHuity 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 Sen- ate. His seat and vote belong to his constiluents, 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 u])on such questions as upon any other, even to express a belief in the guilt or innocence of the accused or to say " he will sus- tain him in the course he is taking," although he so says after accusation brought. Let me illustrate. Suppose that after this impeachmeni 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 terin the '* tyrannical acts of Congress towards 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 disqualitication to sit upon this trial, upon the principles 1 have stated, if he should attend the meet- ing, or favor the object, or, if his engagements in the Senate prevented his leav- ing, I have not been able to find any legal objection in the books to his writing a letter to such meeting, contaming, among other things,^tatemeuts like the following : Senate Chamber, February 2A, 1868. Gentlemen': My public and professional engagements will be such on the 4th of March that I am reluctantly couipelled to decline your invitation to be present and address the meeting to be held in our city on that day. That the President of the United States has sincerely endeavored to preserve these (cur free institutions) from violation I have no doubt, aud I have, therefore, throughout the unfortu- nate difference of opitiinn between him and Congress, sustained him. And this I shall con- tinue to do as long as lie shall prove faithful to duty. With m^' best thanks for the honor you have done me by your invitation, and regretting that it is not in my power to accept it, I remain, with regard, your obedient servant, REVERDY JOHNSON. We should have as much right to expect his vote on a clearly -proven case of guilty as had King Henry the Eighth to hope for the vote of her father against bis wife. He got it. King Henry knew the strength of his case, aud 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 infelicity of a precise constitutional provision, wliich 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 tico-t/zirds oi' tha sen- ators present are necessary for conviction. To this rule there is but one possible exception, 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 Trib- unal, before we attend to the scope and meaning of the accusation before it. The first eight articles set out in several distinct forms the acts of the respond- ent in removing Mr. Stanton from office, and appointitig Mr Thomas, ad inferhn, difFiring 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 disregard of the duties thereof. If they are so, however, the President might have the 2>ower to do them under IMPEACHMENT OF THE PRESIDENT. 95 the law; ptill, being so done, they are acts of official misconduct, and, as we have sei'u, impeachable. The Pret^iilent has the legal power to do many acts which, if done in disre- gard of his duty, or for improper purposes, then the exercise of that power is an official misdemeanor. Ex. gr: he has the power of par-lon ; if exercised in a given case for a corrupt aiotive, as for the payment of money, or wantonly pardoning all criminals, it would be a misdemeanor. Examples might be multiplied indefinitely. Article first, stripped of legal verbiage, alleges that, having suspended Mr. Stanton and reported the same to the Senate, which refused to concur in the suspension, and Stanton having 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 Stan- ton 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 2 charg.-s that the President, without authority of law, on the 2l3t of February, ISGS, issued letter of authority to Lorenzo Thomas to act as Secre- tary of War ad inferhn, the Senate being in session, in violation of the tenure- of-office act, and with intent to violate it and the Constitutiun, there being no vacancy in the office of Secretary of War. Article 3 alleges the same act as done without authority of law, and alleges an intent to violate the Oonslitution. Article 4 charges that the President conspired with Lorenzo Tliomas 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 Consti- tution and of the act of July 31, 1861. Article 5 charges the same conspiracy with Thomas to pi-event Mr. Stanton's holding his office, and thereby to prevent the execution of the civil tenure act. Article 6 charges that the President conspired with Thomas to seize and possess the property under the control of the War Department hy force, in con- travention of the act of July 31, 1861, and with intent to disregard the civil tenure-of-office act. Article 7 charges the same conspiracy, with intent only to violate the civil tenure-of-office act. , Articles 3d, 4th, 5th, 6th, and 7th may all be considered together, as to the proof to support them. It will be shown that having removed Stanton 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 consulta- tion 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, hut was prevented by being promptly arrested by process from the court. This will be shown by the evidence of Hon. Mr. Van Ilorn, a member of the House, who was present when the demand for possession of the War OtHce was made by General Thomas, already made public. By the testimony of the Hon. Mr. Burleigh, who, after that, in the evening of the twenty-first of February, was told by Thomas that he intended to take pos- session 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 Willards' hotel on the same evening that he should call on General Grant for military force to put him in possession of the office, and he did not ^ee how Grant could refuse it. Article 8 charges that the appointment of Thomas was made for the purpose 96 IMPEACHMENT OF THE PRESIDENT. of getting control of the disbursement of the moneys appropriated for the mili- tary service and Department 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 possession of the books and papers of the War Office. It will be seen that every fact charged in Article 1 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. Stanton 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 1 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 ofiice all executive officers for cause, to be judged of by the President alotie, and that he verily believes that the executive power of removal from office, confided 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, because government must go on; there can be no interregnum in the execution of the laws in an organized government; he claims, therefore, 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 United States, and that the President could not be de[)rived of this power, or relieved of this duty, nor could tlie same be vested by law 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 remove from office and suspend from office indefinitely, all executive officers oii" 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 pur- poses, 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 affii'uiing ihat the exercise of such powers is a high misdem(.'anor in office. If the affirmative is maintained by the respondent, then, so far as the first eight articles are concerned — unless such corrupt purposes are shown as will of themselves make th<', exercise of a legal power a crime — the respondent must go, and ought to go quit and tree. Therefore, by these articles and the answers thereto, the momentous question, here and now, is raised whether the /^/r.s/f/tv/^/aZ (il/ice if.sc// ( ij' it /ins the pre- roi^atices and jmwer clanncd fur it) ought, in. /art, to exist as a jxirt of the con- stitutional govcrmnent of a free j)eoplc, while by the last three articles the simpler and less imiiortant infjuiry is to be determined, whether Andrew John- son has so conducted himself that he ought longer to hold any constitutional olHce whatever. TMie latter sinks to mi'rited 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 engrafted on the Cini of the United Stales whose appointments are not herein otherwise provided for, and Avhich shall be established by law." Is it not, therefore, more in accordance with the theory of the Constitution to imply the power of removal from the power of appointment, restrained by like limitations, than to imply it solely as a prerogative of executive power and there- fore illimitable and uncontrollable? Have the people anywhere else in the Con- stitution granted illimitable and uncontrollable powers eillier to the executive or any other branch of the government ? Is not the whole frame of government one of checks, balances, and limitations ? Is it to be believed that our fathers, just escaping from the oppressions of monarchical power, and so dreading it that they feared the very name of king, gave this more than kingly power to the Executive, illimitable and uncontrollable, and that too by implication 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 Constitution being filled, the President has the implied power of inaugurating the removal only by nom- ination of a successor to the Senate, which, when consented to, works the full removal and supersedeas of the incumbent. 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. Webster, in the Senate in 1835, so asserted without contradiction, using the following language : If one man be Secretary of State, and another be appointed, the first goes out by the mere force of tlie appointment of the other, without any previous act of removal whatever. And this is the practice of the govemmt-ut, and has been from the first. In all the removals which have been made they have generally been effected simply by making other appointments. I cannot find a case to tlie contrary. There is no such thing as any distinct otficial act of removal. I have looked into the practice, and caused inquiries to be made in the depuitments, and I do not learn that any such proceeding is known as an entry or record of the removal of an ofiicer from office, and the Piesident would only act in such cases by causii)<; some proper record or entry to be made as proof of the fiict of removal. I am aware that there have been some cases in which notice has been scut to persons in office that their services are or will be, after a given day, dispensed with. These are usually cases in which the object is, not to inform the incumbent that he is removed, but to tell him that a successor either is or by a day named will be appointed. If there be any instances in which such notice is given, witliout express reierence to the appointment of a successor, they are few ; and even in these such reference must be implied, because in no case is there any distinct official act of removal, as I can find, unconnected with the act of appointment. This would seem to reconcile all the provisions of the Constitution, the right of remov.'d being in the President, to be executed suh modo, as is the power of appointment, the appointment, when consummated, making the removal. This power was elaborately debated in the first Congress upon the bills estab- lishing a Department of Fon.-ign Affairs and the War Department. The debate arose on the motion, in Conunittee of the Whole, to strike out, after the title of the ofiiccn-, the words, *' to be removable from otlice by the President of the United States." It Avas 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. lienson moved to amend it by altering the second section of the bill, so as to implu only the power of removal to be in the President, by inserting, that " whenever the princi(ial officer shall be removed from otlice 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 aj)()crtaining to the department." Mr. B'mson " declared he would move to strike out the words in the first clause, to be removable by the President, which appeared somewhat like a IMPEACHMENT OP THE PRESIDENT. 99 grant. Now tlie mode he took would evade that point and establish a legislative construction of the Constitution. He also hoped his amendment would succeed in reconciling both sides of the House to the decision and quieting the minds of the gentlemen." After debate the amendment was carried, 30 to IS. Mr. Benson then moved to strike out the words " to be removable by t!ie 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 session, we have no record of the discussion which arose on llie motion of Mr. Benson establishing the implied power of removal; but after very elaborate consideration, on several successive days, the words implying this power in the President were retained by the casting vote of the ekler Adams, the Vice-President. So, if this claimed "legis- lative settlement" was only established by the vote of the second executive officer of the government. Alas ! most of our woes in this government have come from Vice-Presidents. When the bill establishing 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, alike amendment to that of the second section of the act establishing the Department of State being inserted. When, six years afterwards, the De- partment of the Navy was established, no such recognition of the power of the President to remove was inserted ; 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 tbe debates upon this ques- tion without being impressed with the belief that reverence for the cliaracter of Washington largely determined the argument in the first Congress. Neither party did or could have looked forward to such an executive administration as we have this day. It has* generally been conceded in subsequent discussions that here was a legis- lative determination of this question, but I humbly submit that taking the whole action of Congress together it is very far from being determined. I should hardly have dared, in view of the eminent names of Plolmes, Clay, Webster, and Calhoun that have heretofore made the admission, to have ventured the assertion, were it not that in every case they, as does the President and bis coun- sel, rely on the first 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 subse- quent 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 fre- quently cited in these discussions, stops with the vote in Committee and takes no notice of the further discussion. But whatever may be the eifect of this legis- lative construction the contemporaneous and subsequent practice of the govern- ment shows that the President made no removals 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, rrquests him to send it early in order that he may nominate to the Senate, then about to sit, and he in fact removes Mi*. 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 Presi- dent by his most remarkable, aye, criminal answer. It will not have escaped attention that no determination was made by that legislative construction as to liow the removal, if in the President's power, should be made, Avhich is now the question in dispute. Tliat has been determined by the universal practice of the government, with exceptions, if any, so rare as not to be worthy of consideration ; so that we now claim the law to be what the prac- .Ice has ever been. If, however, we concede the power of removal to be in the 100 IMPEACHMENT OF THE PRESIDENT. President as an implied power, yet we believe it cannot be successfully con- tended upon any authorities or constant practice of the government that the execution of that power may not be regulated by (he Congress of the United States under the clause in the Constitution which " vests in Congress the power to make all laws which shall be necessary and proper for carrying into execu- tion • * * 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 Stat, at Large, p. 582,) Congress pro- vided for the terra of office of certain officers therein named to be four years, but made them removable at pleasure. 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 legis- lative power of removal from office; sometimes bypassing 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 estab- lishing 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 Congress. No bill was ever vetoed on this account until now. In 1818, Mr. Wirt, then Attorney General, giving the earliest official opinion on this question 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 commis- sion issue to run during the pleasure of the President ; but if the tenure was tixed by law, then commission must conform 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 pationage for the purpose of party or personal aggivandisement, which gives the only value to this opinion as an authority. Since the Attorney General's office has become a political one I shall not trouble the Senate with citing or examining the opinions of its occupants. In 1826 a committee of the Senate, consisting of Mr. Benton of ^NTissouri, chairman, Mr. Macon of North Carolina, Mr. Van Buren of New York, 'Sir. Dickerson of New Jersey, Mr. Johnson of Kentucky, Mr. White of Ten- nessee, Mr. Holmes of Maine, Mr. Hayne of South Carolina, and Mv. Pindlay of Pennsylvania, was a])pointed to take into consideration the question of restraining the power of the President over removals from office, who made a report through their chairman, i\Ir. Benton, setting forth tlie extent of the evils arising from the power of appointment to and removal from office by the Presi- dent, declaring tliat the Constitution had been ciianged in this regard, and that " construction and legislation have accomplished this change," and submitted two amendments to the Constitution, one providing a direct election of the Pres- ident by the people, and another " that no senator or representative should be apfjointed to any place until the exjiiration of the presidential term in which euch person shall have served as senator or representative," as remedies U>r some of the evils complained of; but the committee say, that " not being able to reform the Constitution, in the election of President they must go to work ui)on his powers, and trim down these by statutory cnnrtmvnts whenever it can be done by law and with a just regard to the proper etlicicncy of government, and for this ])iirpose re|iorteil six bills — one, to regulate the publication of the laws and public advertisements ; anotiier, to secure in ajjice faithful collectors and dishursers of the revenues, and to displace defaulters — the iirst section of which vacated the commissions of "all officers, after a given date, charged with the collection and disbursement of the public moneys who had failed to account IMPEACHMENT OF THE PRESIDENT. 101 for such moneys on or before the 30th day of September preceding ;" and the second section enacted that " at the same time a nomiuiitiou is made to fill a vacancy occasioned by the exercise 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 reasons for which snch officers may have been removed ; 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 pleasure of the President, by inserting a clause in the commission of such officers that " it is to continue in force during good behavior," and " that no officer shall ever hereafter be dismissed the service except in pursuance 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 39th Congress, and are now the subject of controversy at this bar 1 It does not seem to have occurred to this able committee that Congress had not the power to curb the Executive in this regard, because they asserted the practice of dismissing from office " to be a dangerous violation of the Constitu- tion." In 1830 Mr. Holmes introduced and discussed in the Senate a series of reso- lutions which contained, among other things, " the 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 rpce.is." In 1S35 Mr. Calhoun, Mr. Southard, Mr. Bibb, Mr. Webster, Mr. Benton, and Mr. King, of Georgia, of the Senate, were elected a committee to consider the subje(it of Executive patronage, and the means of limiting it. That committee, with but one dissenting voice, (Mr. Ben- ton,) reported a bill which provided in its third section " that in all nominations 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 nomination is made, with a statement of the reasons for such removal." It will be observed that this is the precise section reported by Mr. Benton in 1826, and passed to a second reading in the Senate. After much discussion, the bill passed the Senate, 31 yeas, 16 nays — an almost two-thirds vote. Thus it would seem that the ablest men of that day, of both politic il 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, providing for a national ciu-rency 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 otlic6 for the term of five years, unless sooner removed by the President, by and with the advice and consent of the Senate. This Avas substantially re-enacted June 3, 1864, with the addition that " he shall be removed upon reasons to be communicated to the Senate." Where were the vigilant gentlemen tlien, in both houses, who now so denounce the power of Congress to regulate the appointment and removal of officers by the President as unconstitutional ? It will be observed tha,t the Constitution makes no distinction between the officers of the army and navy and officers in tlie civil service, so far as their appointments and commissions, removals and dismissals, are concerned. Their commissions have ever run, "to hold office during the pleasure of the President;" yet Congress, by the act of 17th July, 1862, (Statutes at Large, volume 12, page 596,) enacted "that the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from the mili- tary service, either in the army, navy, marine corps, or volunteei^ force, in the 102 IMPEACHMENT OF THE PRESIDENT. Unitefl States perviee, any officer for any cause whicli, in liis judgment, either renders such officer unsuitable for or whose dii^mission would promote the pub- lic service." Why was it necessary to authorize the President so to do, if he had tin- Con- stitutional power to dismiss a military officer at pleasure 1 and his powers, whatever they are, as is not donl)ted, are the same as in a civil office. The answer to this suggestion may be that this act was simply one of supereroga- tion, only authorizing hitn to do what he was empowered already to do, and therefore not specially pertinent to this discussion. But on the 13th of July, 1866, Congress enacted "that no officer in the mil- itary or naval service sholl, in time of peace, he 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 objection that Congress cannot regulate his power of removal from office 1 In the snow-storm of his vetoes Avhy did no flake light down on this provision ? It concludes the whole question here at issue. It is approved; appi'oval signed Andrew Johnson. It will not be claimed, however, if the tenure-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 ulLce is excepted by the terms of the law. Of course I shall not argue to the Senate, composed mostly of those who passed the bill, what their wishes and intentions were. Upon that point 1 cannot aid them, but the construction of the act furnishes a few suggestions. First let us determiiie the exact status of Mr. Stanton at the moment of its passage. The ansAver admits Mr. Stanton Avas appointed and commissioned and duly qnalilled as Secretary of War under jMr. Lincoln in pursuanc(^ of the act of 17.S9. 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 consideration is an answer to every suggestion as to the Secretary hokiing over from one presidential term to anotiier. On the 2d of March, 1867, the tenure-of-office act provided, in substance, that all civil officers duly qualitied to act by appointment, Avith the advice and con- sent 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 other- wise provided, to wit: "provided that the Secretaries shall hold their office dur- ing the term of the President by whom tliey may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate." P)y whom was jMr. Stanton appointed ? By Islv. Lincoln. Whose presiden- tial term was "he holding undtM' when tin; buflet of Booth became a proximate cause of this trial? Was not his appointment in full force at tbat hour? Had any act of the respondent up to the 12th dny of August last vitiattjd or inter- fered with that ai)pointment'? Whose presidential term is the respondent now serving out? His own, or Mr. Lincoln's? If his OAvn, he is entitled to four years up to the anniversary of the murder, because each presidential term is four years by the Constitution, and the regular recurrence of those terms is fixed by the act of May 8, 1792. If he is serving out the remainder of Mr. Lin- coln's terra, then his term of oilice expires on the 4th .of i\Iarch, 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 Avay by the '' tciuue-of-office act," then it must iiave ceased one month after the 4th of March, ]S6r), to wit: April 4, 1865. Or, if the " tenure-of-of)ice net" had no retroactive efTect, then his commission must have ceased if it Iiad llic ef^'cct to Viicate his commission at all ou the passage of the act, to wit, 2d March, 1S67 ; and, iu that case, from that IMPEACHMENT OF THE PRESIDENT. 103 date to the present lie must Lave been exeici.sing his office in contravention of the second section of the act, because he was not commissioned in accordance M'iih its provisions. And the President, by " emph)ying" him in so doing from 2d March to 12th August, became guilty of a high misdemeanor under the pro- vision 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 AVar against the provisions of the " tenure-of-office act," which he will do if he con- vince 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 piesidential term, then tiie Ilouse of Representatives 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 discussion at the time of the passage of this law, observations were made by senators tending to show that it did not apply to .\fr. 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 cliief, by v/hom he had been called into council ; and these arguments have been made the groundwork (if attack upon a meritorious officer, which may have so intluenced 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 cabinet of which Mr. Stanton was then an honored member, beloved of its Chief; and if the respondent deserted the principles under which he was elected, betrayed his trust, and sought to return rebels, whom the valor of our armies had subdued, again into pow(^r, 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 treaciiery? Is it not known to you. Senators, and to the country, that Mr. Stanton retains this unpleasant and distasteful position, not of his own will alone, but at the behest of a majority of those who represent the people of this country in both bouses of its legislature, and after the solemn decision of the senate that any attempt to remove him without their concurrence is unconstitutional and unlawful ? To desert it now, therefore, would be to imitate the treachery of his acci- dental Chief. But whatever may be the construction of the " tenure of civil office act" by others, or as regards others, Andrew Johnson, the respondent, is con- cluded upon it. He permitted Mi*. 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 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 '] Before proceeding" further, I desire most earnestly to bring to the attention of the Senate the averments of the President in his answer, by which he justifies hi:3 action in attempting to remove Mr. Stanton, and the reasons which con- trolled 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 "indefiuitely and at his pleasure;" that he was fully advised and believed, as he still believes, that the tenure of civil office act was unconstitutional, inoperative, and void in all its provisions ; and that he had then determined 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 104 IMPEACHMENT OF THE PRESIDENT. under it, if for no other purpose, in order to raige for a judicial decision the ques- tion 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 illimitable power claimed by him, he did suspend Mr. Stanton, apparently in accordance with the provi- sions 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 tlie Senate, and argued them at lengtli, accompanied by what he claimed to be the evidence of the official misconduct of Mr. Stanton, and thus invoked the action of the Senate to assist him in displacing a higli officer of the government under the provisions of an act which he at that very moment believed to be unconstitutional, inope- rative and void, thereby showing that he was willing to make use of a void act and the Senate of the 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 1 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 President of the United States to treat the deliberations and action of the Senate as void and of non-eff"ect if its decision did not comport with his views and pur- poses ; and yet, while acknowledging the intent was in iiis 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 hei-e, as a fact no man can doubt, with the full knowledge also that the Senate under- stood that he was acting under the provisions 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 he did transmit to the Senate of the United States a " message wherein he made known the orders aforesaid and the reasons which induced the same, so far as the respondent then considered it material and necessary that tiie same should be set forth." True it is, there is not one word, one letter, one implication iu that message 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 })ower 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 solenni dtdibenitions of the Senate, which the President of the United States was then calling upon them to make in a matter of the highest governmental concern, were only to be of use in case they suited his pur|)0S('S ; that it was not "material or necessary " for the Senate to know that its high decision was futile and useless; that the President 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 oifence— if we knew nothing of him save from this avowal — we should have a full picture of his mind and heart, painted in colors of living light, so that no man will ever mistake his mental and moral lineaments h(n-eafter. Instead of optm and fraidv dealing, as becomes the head of a great govern- ment in every relation of life, and especially needfid from the highest executive officer of the gov(!rnment to th(! higliest legislative branch thereof; instead of a manly, straightforward bearing, claiming ojx'niy and distinctly the rights which lie believed pertained to his high otl3.ce, and yielding to the other branches, IMPEACHMENT OF THE PRESIDENT. 105 fairly and Justly, those whicli bclono: to them, we find him, upon his own written coutessit)n, keepino^ back his claims of power, concealing his motives, covering his purposes, attempting by indirection and subterfuge 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 upon this position he must stand before the Senate and the country if they believe his answer, which I do not, that he had at that time these intents and purposes in his mind, and they are not the subterfuge anrl evasi.sn and after-thought which a criminal brought to bay makes to escape the consequences of his acts. Senators! he asked you for time 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 1 You shew him a mercy in not extending the time for answer. Passing from further consideration of the legality of the action of the respond- ent in removing 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 Lorenzo 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 interiyn he acted under the act of February 13, 1795, and subject to its limitations. By the act of August 7, 17S9, creating the Department of War, (1st Statutes at Large, page 49,) "in case of any viicancy" no provision is made for any appointment of au acting or ad interim Secretary. In that case the records and papers are to be turned over for safe keeping to the custody of the chief clerk. This apparent omission to provide for an executive emergency was attempted to be remedied by Congress by the act of ^lay 8, 1792, (1st Statutes, 281,) which provides "that in case of the death, absence from the seat of government, or sickness of the Secretary of State, Sec- retary of the Treasury, or of the; Secretary of the War Department, or of any officer of either of the said depjirtments whose appointment is not in the head thereof, wlicrehy they cannot i^erform the duties of their respective offices, it shall be lawful for the President of the United States, iu case he shall think it neces- sary, to authorize any person or persons, at his discretion, to perform the duties of the said respective otBces until a successor be appointed, or until such abseiice or inability by sickness shall cease." It will be observed that this act provides for vacancies by death, absence, or sickness only, wherehy the head, of a department or any officer in it cannot per- form his duty, but makes no provision for vacancy by removal. Two difficulties were found iu 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, J 795, was passed, (1st Stat, at Large, 415,) which provides " in case of vacancy, whereby the Secretaries or any officer in any oj" the departments cannot perform the duties of his office, the President may appuint any person to perform 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 person 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, (12th Stat., 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 pre- viously 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 lOG IMPEACHMENT OF THE PRESIDENT. a Secretary or other officer of the State, War, or Treasury Department rmdd not jhcr form the duties of the fffice. any person could be authorized by the Pres- ident to perform those duties for the space of six months. For the Dop'irtments of the Interior and the Navy provision had been made for the appointment of an Assistant Secretary, but no provision in case of vacancy in his office, and a restriction put upon any officers acting when not authorized bylaw, from receiving any salary whatever. To meet those omissions and to meet the case of resignation of any ofHcer of an executive department, and also to meet what was found to be a defect in allowing the President to appoint anj/ person to those high offices for the space of six months, whether such person had any acquaintance with the duties of the department or not, an act was passed February 20, 1863, (12 Stat., p. C56,) 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, whcrehij they cannot perfonii the duties of their respect- ive offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize the head of any other executive depart- ment or other officer in either of said departments whose appointment is vested in the President, at his discretion to perform the duties of the said respective 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, Avhereby the incumbent could not perform the duties of his office, the President might authorize the head of another Executive depart- ment 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 empowered 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 demonstrate a legislative construc- tion of the Constitution that there could be no removal of the chief of an exec- utive department by the act of the President save by the nomination and • appointment of his successor, if the Senate were in session, or a qiudified appointment till the end of the next session if the vacancy happened or was made in recess 1 Let us now apply this state of the law to the appointment of Major General Thomas Secretary of War ad interim by Executive order. Mr. Stanton had neither died nor resigned, Avas not sick nor absent. If he had been, inider the act of ]\Iarch 3. 1863, which repeals all inconsistent acts, the President was authorized only to appoint the head of another Executive department to fill his place ad interim. Such was not General Thomas. He was simply 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 o? ad interim appointments which illustrate and confii-m this position ; the one was the appointment of Lieutenant General Scott Secretary of War ad interim, and the other the appointment of General Grant ad interim upon the suspension of I^Ir. Stanton, in August last. The appointment of General Scott Avas legal because that was done before the restraining act of Mai-ch 2, 1863, which requires the detail of the head of another department to act ad interitfi. 'Lhe 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 IMPEACHMENT OF THE PRESIDENT- 107 an officer of the army and not the head of a department, if it had not been authorized by the ^d section of the " tenure-of-civil-office act," wliicli pro- vides that in case of suspension, and no other, the President may designate "some suitable person to perform temporarily the duties of sucli office until the next meeting- of the Senate." Now, General Grant was such " suitable person," and was properly enough appointed under that ju'ovision. This answers one ground of the defence which is taken by the President that he did vot suspend Mr. Stanton under the " tennre-of-office 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, bi^^causc he deemed it uncon- stitutional and void, Oivn there was no law authorizing him to appoint Gen- eral 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 express terms forbids any employ- ment, authorizati(^n, or appointment of any person in civil office where the appointment is by and with the advice and consent of the Senate, while the Senate is in session. If this act is constitutional, i. e.,if it is not so far in con- flict with the paramount law of the larid as to be inoperative and void, then the removal of Mr. Stanton and the appointment of General Thomas are both in direct violation of it, and are declared 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 contravene the Constitution, if that law was unconstitutional. Having shown that the President wilfully violated an act of Congress, with- out jiistitication, 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 misde- meanors charged against him in the first eight articles ] The respondent makes ansAver to this view, that the President, believing this civil tenure law to be unconstitutional; had a right to violate it, for the purpose of bringing the matter before the Supreme Court for its adjudication. We are obliged, in limine, to ask the attention of the Senate to this consider- ation, that they may take it with them as our case goes forward. We claim that the question of the constitutionality 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 he 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 three methods, all equally potent, by which a bill brought into either house may become a law : 1st. By passage by vote of both houses, in due form, with the President's signature ; 2d, By passage by vote of both houses, in due form, and the President's neglect to return it within ten days witli his objections ; 3d. By passage by vote of both houses, in due form, a veto by the President, a reconsideration by both houses, and a passage by two-thirds votes. The Constitution substitutes this reconsideiation and passage as an equivalent to the President's signature. After that, he and all other oflicers must execute the law, whether in fact constitutional or not. For the President to refuse to execute a law duly passed, because he thought 108 IMPEACHMENT OF THE PRESIDENT. it unconstitutional, after he had vetoed it for that reason, would, in eflPect, be for liim to execute his veto and leave the law unexecuted. It may be said he may do this at his peril. True ; but that peril is, to be impeached for violatinji- his oath of office, as is now being done. If, indeed, laws duly passed by Congress affecting gi'uorally the welfare of any considerable portion of the people had been commonly, or as a usage declared by the Supreme Court unconstitutional, and therefore inoperative, there mig'ht seem to be some palliation if not justification to the Executive to refuse to execute a law in order to have its constitutionality 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 Congress 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 general welfare has ever, by the judgment of that court, been set aside or held for naught because of unconstitutionality as the ground-worK. oi its decision. 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 inter- fere with its own prerogatives. Touching privileges and prerogatives have been the shipwreck of many a wholesome law. It is the spre spot, the sensitive nerve of all tribunals, parlia- mentary or judicial. The first case questioning the validity of a law of Congress is Ilayburn's, (2 Dallas, 409,) Avhere the court decided upon the unconstitutionality of the act of 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 peu- ^sions. The court held that such power could not be confen-ed upon the court as an original jurisdiction, the court receiving all its original jurisdiction from the provisions of the Constitution. This decision would be nearly unintelligible were it not explained in a note to the case in United States vs. Fi-rn-ira, (13 Howard, p. 52,) reporting United States vs. Todd, decided February 17, 1794. We learn, however, from both cases the cause of this unintelligibility of the decision in Ilayburn'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 miconstitntional, yet determined to obey it until the case could be adjudicated by th(! whole court. They there- fore, not to violate the law, did execute it as commissioners luitil it was repealed, which was done the next year. The judges on the circuit in Pennsylvania all united in a letter to the Execu- tive, most humbly apologizing, with great regret, that their convictions of duty did not permit them to execute the law according to its t(!rms, and took special care that this letter should accompany their decision, so that they might not be misunderstood. Both examples it would have been w(dl f )r this respondent to have followed before he undertook to set himstdf to violate an act of Congress. The next case where the court decided upon any conllict between the Consti- tution and the law is Gordon vs. United States, tried in April, 1865, seventy- IMPEACHMENT OP THE PEESIDENT. 109 one years afterwards, two justices dissenting', without any opinion being delivered by the court. The court here dismiesed an appeal from the Conrt of Claims, alleging that, under the Constitution, no appellate jurisdiction could be exercised over the Court of Claims under an act 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. The next case is ex j^arfe Gurland, (4 Wallace, 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 befoie that court without taking the test oath. The reasoning of the court in that case would throw doubt on the constitu- tionality of (he 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 unan- imity 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 to be administered to the attorneys in obedience of the law until it came before them in a cause duly brought up for decision. T/ie Suprtme Court obeyed the law up to the time it was set aside. They did not violate 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 judg- ment of the Senate upon the impeachment now pending. There are several other cases wherein the validity of acts of Congress have been discussed before the Supreme Court, but none where the decision has turnea 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 administration of Jefferson before hi' did so. In the Dred Scott case, so familiar to the public, the court decided it had no juii-dictiou, but gave the government and the people a lecture upon theii: 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 i;*. 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 VH. Kibbe, (9 Howard, 271 ;) Hallett vs. Beebe, (13 Howard, 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 operation and not the validity of the acts which came in question and 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 Constitution, and in each case a question of the rights and prerogatives of the court or its otficers 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 decisiont are open to other criticisms. In Marbury vs. Madison, Chief Justice Marshall 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 Duaue halted and was removed — delivered the opinion of the court, whose 110 IMPEACHMENT OF THE PRESIDENT. obiter dicta fanned the flame of dissension which led to the civil war throujrh whicli the people have just passed, and against that opinion the judgment of the country has long been recorded. When ex 2)artc Garland was decided, the country was just emerging from a conflict of arms, the passions and excitement of which had fcmnd tlieir way npon the bench, and some of the judges, just coming from other service of the government and from the bar, brought v/ith them opinions — 13nt 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 comment npon 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 constitutionality, during a judicial experience of seventy-five years — hardly one to a generation — is a sufficient Avarrant 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 unconstitutional when a case involving the question should come before it, and especially one much discussed on its passage, to M^hich 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 reconsideration, had been passed over his veto. Indeed, will you hear an argument as a Senate of the United States, a majori- ity of whom voted for that very bill, upon its constitutionality in the trial of an executive officer for wilfully violating it before it had been doubted by any court ? Bearing upon this question, however, it may be said that the President removed j\Ir. Stunton for the very purpose of testing the constitutionality of this law before the courts, and the question is asked. Will you condemn him as for a crime for so doing? If this pka were a true one it ought not to avail; but it is a subterfuge. We shall show you that he has taken no step to sub- mit the question to any court, although more than a year has elapsed since the passage of the act. On the contrary, the President has recognized its validity and acted upon it in every department of the government, save in the War Department, ami there except in regard to the head thereof solely. We shall shoAv you he long ago caused all the forms of comuiissiims and official bonds of all the civil officers of the government to be altered to conform to its i-equirement. Indeed, tiie fact will not be denied — nay, in the very case of Mr. Stanton, he suspended him under its provisions, and asked this very Senate, before Avhom he is now being tried for its violation, to pass upon the sufficiency of liis reasons for acting under it in so doing according to its terms; yet, rendered reckless and mad by th;; 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 intends to disregard its provisions, and summons the commander of the troops of this department to seduce him from his duty so as to be able to command, in viola- tion of another act of Congress, sufficient military power to enforce his unwar- ranted decrees. The President knew, or ought to have known ; his official adviser, who now appears as his counsel, could, and did tell him, doiibtless, that he alone, as Attorney General, could file an iidurmatioii in the nature of a in of that act. (Aspi-rue's Report, 138.) He denied the charges. After hearing evidence, questions were put to the jul.) One of the resolves against Chief Justice Scroggs was, " That the discharging the graud jury by the Court of King's Bench in Trinity Term last, before they had finished their presentments, was illegal arbitrary, and a.u high misdemeanor." (4 Hatsel 127 ; 7 State Trials, 479.) ■' Misprisions which are merely positive are generally denominated contempts or high misdemeanors, of which — " 1. The first and principal is the maladministration of such high offices as are in public trust and employ- ment. This is usually punished by the method of parliamentary impeachment." (4 Blackst., 121.) tin Senate, July 8th, 1797, it was "Resolved, that William Blount, Esq., one of the senators of the United .States, having been guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a senator, be and he hereby is expelled from the Senate of the United States." (Wharton's State Trials, 2U2.) He was not guilty of an indictable crimes. (Story on Const., § 799, note.) The otTence charged, Judge Story remarks, " was not defined by any statute of the United States. It was an attempt to seduce a United .States Indian interpreter from his duty, and to alienate the affections and con- duct of the Indians from the public officers residing among tuem." Blackstone says: "The fourth species of oiFence more immediately against the king and government are CTititled misprisions and contempts. Misprisions are in the acceptation of our law generally understood to bo all such high offences as are under the degree of capital, but nearly bordering thereon. * * Misprisions which are merely positive are generally denominated contempts or high misdemeanors, of which the first and principal is the maladminintraliun of such high offices as are in public trust and employment. This is usually punished by the method of parliamentari/ impeachment." (Vol. 4, p. 121.) (See Prescott's Trial, Massachusetts, 1821, pp. 79-80, 109, 117-2U, 172-180, 191.) On Chase's Trial, the defence conceded that "to misbehave or to niisdemean is precisely the same." (2 Chase's Trial. 145.) X Prom 2 Madison's Papers, 1153, &c. July 20, 1787. The following clause, relative to the President, being under consideration: " To be removable on imperichmeut and conviction for malpractice or neglect of duty." Mr. Piuckney moved to strike this out, and said, " He ought not to be impeachable while in office." "Mr. Darce. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this as an essential security for the GOOD BEHAVIOR of the Executive." " Mr. Wilson concurred. " Mr. Gouverneur Morris. He can do no criminal act without coadjutors, who may be punished. In c.ise he should be re-elected, that will be a sufficient proof of his innocence. Besides, who is to impeach? Is the impi-achment to suspend his functions ? If it is not, the mischief will go ou. " Colonel Mason. No point is of more importance than that the right of impeachment should be continued. 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 one example oiily of a first magistrate being formally 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 himseH'obuoxious ? 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, thereiore, to provide in the Constitution for the regu- lar punishment of the Executive where his MISCONDUCT should deserve it, and for his honorable acquit lal where he should be unjustly accused. "G. Morris admits corruption and some few other offences to be such as ought to be impeachable, but thought the cases ought to be enumerated and defined. " Mr. Madison thought it indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate. The limitation of the period of his ser- vice was not a sufficient security. He might lose liis capacity alter his appointment. He might perTert his 9 I P 130 IMPEACHMENT OF THE PRESIDENT. ■ward? maintained that " the wanton removal of movitorious officer!' would f nhject 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 dxir'mg good behavior.''^ By a 2^nMic law every judge is required to take an oath as follows : I do soleiniily swear that I will admiuister justice without respect to persons, and do equal rifrht to the poor and to the rich ; and tliat I will faithfully and impartially discharo^e and perform all the duties incumbent on me as judge. &c., according to the best of my abilities and understanding, agreeably to the Constitution and laws of 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 " faithluUy execute the office of President of the United States, and will to the best of his ability preserve, protect, and defend the Con- stitution of the United States." These oaths are puhlic laws defining duties, and a violation of them is an impeachable misdemeanor, for Judge Blackstone says : '* A crime or misdemeanor administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. * * * lu the case of the executive magistrate, which was to be'adniinistered by a single man, loss of capacity or corruptiou was more within the compass of probable events, and either of them might be fatal to the reptiblic. " Mr. Gerry urged the necessity of impeachments. A good magistrate will not fear them. A bad one ouifht 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 be punished. The Executive will have great opportunities of abusing his power, particularly in time of war. "G. Morris. ****** "The Executive ought to be impeachable for treachery. Corrupting his elector.^ and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his otfice. "The proposition was agreed to by a vote of eight States to two." September 8, 1767. (From 3 Madison's Papers, 1528.) " The clause referring to the Senate the trial of impeachment against the President for treason and bribery was tukeu up. "Colonel Mason. Why is the provision restrained to treason and bribery? Treason, as defined in the Con- Btitutiou, will not reach many great and daugerous offences. Hastings is not guilty of treason. Attempts to subvert the Constitution may not be treason 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 impeachments. '■ He moved to add after ' bribery.' or ' maladministration.' " Mr. Madison. .So vague a terra will be eower we contend for will not enable him to do this; for if an unworthy man be continued in oflice 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 cau displace from office a man whoso merits reciuire 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, he will be impeachable by the House before the Senate for such an act oi iiialadmiuUtratiun ; fnr 1 contend that tlie wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust." — (4 Elliott's Debates, 380.) t A statute of Henry VIH. providing for the appointment of a riistos rolulorum and clerk of the peace for the several, connties of England, provides that the cuslos shall hold his office until removed, and the clerk of the peace durunte le bene gcsfi.ril. It n-cites that ignorant persons had got iu by unfair means. And so is the tenure of judges iu England by the Declaration of Itight. The tenure durante. Scv., was introduced to inable a removal to be made for misbehavior. — (2 Chase's Trial, ;i37.) By act of 11! William 3, c. 2, s. 3, the coiinnix- sion of every judge runs "i/iuimdiu nc bene geaserit." — (2 Cha.se's Trial, 2.55, 336, 342, 38f).) See p. 145 Peck's Trial, 427, where Bilchanau said : "Judges hold during good behavior — oflicial misbehavior is impeachable. What is misbehavior? We are bouml to prove thai the respondent has violated the Constitution or some knowu law of the land. This was the principle deduced from Chase's Trial in oppositiou to the principle * ' * that in order to render an officer impeachable he must be indictable." :Act of September 24, 1789, 1 Stat., 76; Chase's Trial, 402 IMPEACHMENT OF THE PRESIDENT. 131 is an act committed or omitted in violation of a puhlin law, either forbidding or commanding it."* The Constitution contains inherent evidence, therefore, that as to judges they should be impeachable Avhen their hehavior is not good — 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 impeachment to a wide range. They were first introduced 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 Con- stitution, declared by themselves in convention, by Madison, t in the Virginia Convention of 178S, and by Alexander Hamilton, | in the Federalist, who says * "At commou law an ordinary violation of a pnblio statute, even by one not in office, though the statute in terms provides no punishment, is an indictable misdemeanor." (Bishop's MS. letter to a member of the Judiciary Committee, citing 1 Bishop Cr. Law, 3d ed. , sec. 187, 535.) The term "misdemeanor" covers every act of '^misbehavior," in the popular sense. "Misdemeanor iu 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 express limitation of the office of a judge. (See North American Review forOctober, 1862.) Alexander Hamilton, in discussing the judicial "tenure of good behavior," and the remedj' in cases of " judi; ciary encroachments on the legislative .authority" by pronouncing laws unconstitutional, says : "It may, in the last place, be observed that the supposed danger of judiciary encroachments on the legisla- tive authority, \>?liieh has been upon many occasions reitenited, is, in reality, a phantom. Particular miscon- structions 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 toiltt'ect the order of the political system. This may be inferred with eertainty, 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 'otal incapa- city to support its usurpations by force. And the inference is greatly fortified by the consideration of the imr portant constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial depart- ment. This is alone a complete security. There never can be dauger that the judges, by a series of delibe- rate usurpations on the authority of the legislature, would hazard the united resentment of tlie body intrusted with it, while this body was possessed of the power to punish them for their presumption by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments." ( Federalist, No. 81.^ Impeachment is not merely nor necessarily puju'fJBd only, but it may, and often must ha. 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 be suflfered to perish or its great interests to be put iu peril from any tender regard for individual feelings or errors. And Thomas Jefferson evidently held that judges were impeachable for assumptions of power. (Letter to Mr. Jarvis, .September 28, 1820; aud see Jackson's veto message on the bauk bill.) t " Were the President to commit anything go atrocious as to summon only a few States (to consider a treaty) he would be impeached and convicted, as a majority of the States would be affected by his misdemeanor." Aud again : " Mr. Madison, adverting to Mr. Mason's objection to the President's power of pardoning, s.tid it would be extremely improper to vest it iu 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 established practice in Massachusetts for the legislature to determine in such ea.ses. " 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 sentimcut's — the one would execute with universal vengeance, aud the other would extend general mercy. " There is one security in this case to which gentlemen may not h.ive adverted : If the President be con- nected iu any suspicious manner with any persons, and there be grounds to believe he will shelter himself, the House of Representatives cau impeach hira ; they can remove him if fmiud guilty ; thej^ can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected also, he may likewise be suspended till-he be impeached imd removed, and the legislature shall make a temporary appoint- ment. Thi-. is a great security." (Debates of the Virginia Convention, i)rintedat the Enquirer Press for Richey, Worsley & Augustine Davis, 1805, pp. 35:3-4. 11 Howell stat. 7, 733.) I la the Federalist, No. Co, he says : • " The subjects of its jim^diction are those offences 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 pecu- liar propriety, be denoinin.ated politieal, as they relate; chiefly to injuries done immediately to the society itself." " What," it may, be asked, " is the true spirit of the iustitution itself ? Is it not designed as a method of national inquest into the conduct of public men? If this be the design of it who can so properly be the inquisitors for the nation as the representatives of the nation themselves ? It is not disputed that the power of origiuating the inquiry, or, in other words, of preferring the impeachment, ought to bi' lodg'd in one branch of the legislative body ; will not the reasons which indicate the propriety of this arrangement .-tiongly plead for an admission of the other branch of that body to a share of the inquiry ? The model from ivhich the idea of this institution has been borrowed pointed out that course to the convention. In (ireat ISi itaiii it is the province of the House of Commons to prefer the impeachuu-nt and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter as the former seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light iu which it is to be regarded »"_ To what extent this writer contemplated the exertion of this power is not left Lu doiibt. In the succeeding number of the same commentary he observes : " The convention might with propriety have meditated the punishment of the executive for a deviation itom the instructions of the .'Senate or a want of integrity in the conduct of the negotiationa committed to Um, " clearly not statutory ofl'euces. 132 INPEACIIMENT OF THE PRESIDENT. that "several of the State constitutions have followed the example" of Great Britain. And up to that time the State constitutions 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 oftences of a political nature." * Some of these constitutions limited impeachment to "mal and corrupt conduct in office ;" or, as in the New York constitution of 1777, to " venal and corrupt conduct in office;" while the Constitution of the United States discarded all these limita- tions, and gave the power in the broadest terras. It is said this provision in the Constitution of the United States was copied from that of New York, f If so, the change in 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, | says : " Although an impeachment may involve an inquiry, whether a crime against any positive law has been committed, yet it is not necessarily a trial for crime, nor is there any necessity, in the case of crimes committed by public officers, for the institution of any special proceeding for the infliction of the punishment prescribed by the laws, since they, like all other persons, are amenable to the ordinary juiisdiction of the courts of justice, in respect of offences against positive law. The j^urposes of an impeachment lie wholly beyond the penalties of the statute or the custom- ary law. 'Die object of the proceeding is to ascertain whether cause exists for removijig a public officer from office. Such a cause may be found in the fact, that either in the discharge of his office, or aside from its functions, he has vio- lated a law, or committed what is technically denominated a ciime. But a cause for removal from office may exist where no offence against positive law has been committed, as where the individual has from immorality, or imbecility, or mal- administration become unfit to exercise the office. The rules by which an impeachment is to be determined are therefore peculiar, and are not fully embraced by those principles or provisions of law which courts of ordinary jurisdiction are required to administer." * Thus, in that of Virginia, establiKhed in 1776, la seen this provigion: "The governor, when he is out of office, and others offending aguiui-t tlie State, either by iniiladministration, corruption, or other means, shall bo impeachable by the house of delegates." In the same year, iu the succeeding mouth, Delaware provided m her constitution that "the President when he is out of office, and eighteen months thereiifter, 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 Caro- lina, two months later, provided iu her constitution : " The governor and other officers offending against the State by violating any part of this constitution, maladministration or corruption, may be prosucuted on the impeachment of the general asseaibly, or presentment of the grand jury of any court of supreme jurisdic- tion in this State." The constitution of Connecticut is stated to contain a provision " to call to account for any misdemeanor and maladniiuistration." That of New York provides : "Tlie power of impeachiug all officers of the State for mal and corrupt conduct in their respective offices is vested iu the representatives of the people iu assem- bly," and the trial is declared to be for " crimes and misdemeanors." So, iu the elaborate constitution of Mas- sachusetts, the eighth article declares : " The senate shall be a court with full authority to hear an ; Barclay's Digest, 140.) On the trial of ,)irl?i- I'n-scott, in .Massachusi-tts, iu lS;il, .Mr. .Shaw said: "The security of our rightrt di'pends rathir upon tlie general tenor and character than upou particular provisions of our Constitution. The love of freedom and justice, so deeply engraven upon the hearts of the peo|)|e, and int'TWoven iu fho whole textun; of our social institutions, a thorough and intelligent aeipiaintance with tle-ir rights, and a firm determination to maintain them, in short, those moral ami intellectual (lualities without which social liberty cannot exist, and over which despotism can obtain no control, these stamp the character and give security to the rights of the free people of this Cummnnwealth. * * * Um it has not beoa, and it cannot be, contended that, in its deci>ions.and ailjadicatious, this court is not governed by established laws. These may bo positive and express, or they may depend U|)on reasoning and analogy. It would be idle to expect a rub' applicable to every ease in the text of the statute book. Lawsare founded on certain general principles and the relations of mi-n in society. It is the province of this court, as of all other judicial tribunals, to search out and apply these prineifdes to the particiilar cases iu judgment before thorn." Aud see 4 Howard's St. Trials, 47, per Seldeu, 6 Am. Law Keg., N. S., 264. IMPEACHMENT OF THE PRESIDENT. 135 persons and cases to which the judicial power extends ; but there is no such ennmeration of impeachable cases, though there is o^ persons. In England and some of the states the power of removal of officers by the executive on the address or request of the legislature* 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 " Con- gress may by k\v provide for the case of removal, death, resignation, or innhUlty, * * declaring what officer shall then act * * until the disability be removed or a President shall be elected." (Article 2, section 1.) It has already been shown that the framers of the Constitution regarded the power of impeachment as a means of defending " the community against the incapacity^' of officers. This clause of the Constitution recognized the same view, article 2, section 1 : " Congress may by law provide for the 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 offi- cers whose inability from insanity or otherwise renders them unfit to hold office, and whose every official act will necessarily be misdemeanor. As to the Presi- dent and Vice-President, it was necessary to give Congress the power to desig- nate a successor, and so to determine the disability. As to all other officers, the Constitution or laws define the mode of designating a successor, and it is left to the impeaching power to remove in cases of insanity or misdemeanor aris- ing from that or other cause. It cannot be supposed the whole nation must suft'er without remedy, if the whole Supreme Court or other officers should become utterly disabled from the performance of their duties. Such an occur- rence is within the range of possibility, if not probability. In our system it *is utterly imposible to apply any test of common law or statutory criminality. The Supreme Court, without much consideration, has determined that the national courts have never been clothed with jurisdiction of common-law crimes.t * Removal on the addresB of hink bouses of Parliament is provided for in the Act of Settlement, 3 HiHllani, 262. In the convention which framed our national Constitution, June 2, 1787, Mr. John Dickinson, of Delaware, moved " that the Executive be made removable by the national legislature on the request of a majority of the legislatures of individual States." Delaware, alone, voted for tliis, and it was rejected. Impeachment was deemed sufficiently comprehensive to cover every proper case for removal. t The reason which denies jurisdiction of common-law crimes to the courts of the United States does ■Jiot apply to impeachments. By the Constitution the tri.al for crimes must be had in the State and district where committed. (Article 6, Amrudmeuts.) By the judiciary act of September 24, 1789, the Supreme Court is restricted to holding Ki-ssions at Washington. (1 Statutes at Large, 73.) By the Constitution the judicial power of the United States is vested in the Supreme Court and such inferior courts as Congress may establish. (Article 3, section 1 ; article 1, section 10. It was held as early as 1812 that the circuit and district courts of the United States, being the "inferior courts" established by Congress, could exercise no common-law criminal jurisdiction. Tliis 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 Wheaton, 415; 1 Gallis, Reports, 488; United States vs. Lancaster, 2 McLean's Reports, 431; Washington Circuit Court Reports, 84; United States vs. Ravara, 2 Dallas 297; United St.ates vs. Worrall, 2 Dallas, 384 ; United States vs. Maurice, 2 Brock., 96 ; United States vt. Kew Bedford Bridge, 1 Woodbridge & Miuot, 401 ; United States vs. Babcock, 4 McLean, 113-115.) This ruling has been disapprcjved by the ablest commentators on constitutional and criminal law — by Story, and Rawle, and Bishop, and Wharton. (I Bishop's Ciiminal Law, third edition, 163, [20; J act of Congress of September 24, 1789, sections 9-11 ; Statutes 1842, chapter 188, section 3; Du Ponceau on Jurisdiction.) The denial pf common law criminal jurisdiction in the.se inferior courts rests solely on the reasons that such tribun.ils being created not hy the Cons'titulion, but by act of Congress, they — '• Possess no jurisdiction but what is given tliera 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 district." And that common law — "Jurisdiction has not been conferred by any legislative act." And it is said that the Supreme Court almie — "Possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it." (7 Cranch, 33.) Where, therefore, a common law jurisdiction is conferred by the Constitution on a court created by that instrument, 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 lias created the tribunal for their trial — the Senate ; it has given that body jurisdiction of all " crimes and misdemeanors" impeachable by \6b IMPEACHMENT OF THE PRESIDENT. When tho Con?titntion was adopted all the States recognized common-law crimes, and those added since do ao with few exceptions. Bat there is some- thing peculiar to each and different from all others in its common -law crimes, growing out of the rulings of judges or its condition, and iu all statutes have made changes, so that no two States recognize the same crimes. The Constitution authorizes Congress " to provide for the punishment of count 'rfeiting tlie securities and current coia of the United States. * * * To define and punish piracies and felonies committed on the high seas, and offences against the law of nations," hut nowhere declares they may define impeachable crimes, for the very good reason th.it common parliamentary law, subject, like t!ie common law, to be moulded to circumstances and adapted to times, had already suthciently 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 jjower of impeach- ment," and on the Senate " the sole power of trial," these are independent powers, not to be controlled by the joinf. 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 impeachable. Treason and bribery are specifically named. But " other high crimes and misdemeanors" 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 in the light of parliamentary law. Congress cannot define or limit by law that which the Constitution defines in two cases by enumeration, and in others by classification, and of which the Senate is sole judge t It has never been j)retended 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 enumerated. Other high crimes and misdemeanors are equally designated by classification. Suppose the Constitution had declared " that all persons committing 'ti'eason, bribery, or other high crimes and misdemeanors' shall be punished by indict- ment in the courts of the United States," can it be doubted that every crime and misdemeanor recognized by the common law would be the subject of indict- ment ? " 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 jurisdiciiou on courts is to bear its common-law meaning." Now, when the (jonstitution says that all civil officers shall be removable oa impeachment for high crim(;s 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.| The national courts do not take jiu-isdiction of common-law crimes, not because common-law crimes do not exist, but because their jurisdiction is only such as is expressly conferred on them, and no statute has conferred the juris- _ parliamentary nxage, and no law can limit it. And this view lias boon suxtniuoil by Story, and Rawlo, and Kent, after and in view of Ihu dL-cii-ioUH referred to. (li Aniericiiu Law Regixter, 65fi.) At tho time the Coustimtion wim iidnpted, and e vor since in I'^iif^laiid and all tlio original States of the Union, what is known as the " commuii law" and " coninion-hnv crimes" existed, unil yet exist, in addition to crimoH dedned by statute; and this is so iji all the States except Oliio. ami perhaps two or three others. * "Till! Parliament cannot by any act restrain the power of a subsennent I'arliameut." (4 lust., 42; 5 Com. Dig.,.'t:il.) t" Th(!/jccrsnre ;H(/^M«//n(o as well as of fact." (2 llule's, P. C.,-7.3. IJiiroIay'd Digest, 140.) They there- fore are not governed liy tin- indictrible character cif an act. In fact, as the highest court they make not only imrliainentary law, Init ttie law for the courts. (Kegina r. O'Connell.) t Inipeaohalile misdeniean^is are determined by tlie Senate joHt as each house of Congress and the courts having the Jurisdiction to pu p isL for coutemptsdeturmiue what acts or neglect constitute them. (,7 Crauch, 3:^0.) IMPEACHMENT OF THE PRESIDENT. 137 diction. Bnt iu the District of Columbia, under national jurisdiction, common- law crimps and jurisdiction of them in the courts do exist.* In addition to this, there are crimes exclusively of national jurisdiction, and others exclusively 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 perpetrated in the denial of a national right. The States alone provide for this and many other offences. And, in the States not recognizing common-law crimes, they mav omit to make homicide a penal offence as to Indians, negroes, or others, if tlie' legislature so determine, iu the absence of a law of Congress similar to the '• Civil Rights " act.t 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 ; or, 3. On the definition of common-law crimes in the States ; or, 4. On the common-law crimes existing iu 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."| The national government is complete in itself, with powers which neither depend on nor can be abridged by State laws.§ If, then, impeachment is limited to acts made criminal by a statute of Con- gress, an officer of the United States cannot be impeached, though he should go into tlie "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 highway robber may be President, and he is exempt from impeachment ! * '■ Common-law crimes do exist, they are indictable, and j arisdb tion of them has ezisled in the, courts of the United States for two-thirds of a century in, the District of Columbia." (\ Bishop ou Criminal Law, section lt)7, [•-'•-';] Du Ponceau ou Jurisdiction, 6i-73; Kendall vs. United States, 12 Peters, 524-613; United States vs. Watkins, 3 Crauch, 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 common- law crimes against the Uni ed States. Especially this exception must in reason extend to all matters which concern our intercourse with foreign as well as to all local tr.'insactions beyond the territorial limits of the several States. The law of nations 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 tribunals would appear to have common law cognizance of offences upon the high seas not defined by statutes, and of all other offences within the proper cognizance of the criminal courts of a nation, committed beyond the jurisdiction of any particular State." 1 Bishop on Criminal Law, section 165, [21.] The act of Congress of February 27, 1801, extended and continued in force over the District the common and statute law of Maryland where common-law crimes existed, and organized a circuit court with the juris- diction conferred on circuit courts of the United States by section eleven of the act of February 1.3, 1801. (2 United States Statutes at Large, 92; 2 Statutes, 103-105, sections 1-3.) The criminal court organized by act of July 7, 183S, had the same criminal jurisdiction. (5 Statutes, 306.) The supri-me court of the District, organized by act of March 3, 1863, has the same jurisdiction of the prior courts thereby abolished. (12 Statutes, section 3,) That jurisdiction is conferred in these words : "That," * * * * "said courts" * • * * "ghall have cognizance of all crimes and offences cognizable under the authority of the United States." (2 Statutes, 92, act February 13, 1801.) tActof April y, 1866, 14 Stat., 27. ; " It wa.< said by one of the counsel thai the offence must be a breach cither of the common law, a State 1.1W, or a law of the United States, and tliat no lawyer could speak of a misdemeanor but as an act violating gome one of these laws. This doctrine surely is not warranted, for the government of the United States have uo concern with any l)ut their own laws. * * * But asa member of the House of Repnsentativea, and acting as a manager of an impeachment before the highest court in the nation, appointed to try the highest otKcers of the government, when 1 speak of a misdemeanor I mean an aot of official misconduct, a violation of official dut}-. whether it be a proceeding against a positive law or a proceeding unwarranted by law." (For Nicholson arguendo, 2 Chase's Trial, 34U ; per Kodney, 387. 5 Weston vs. City Council of Charleston, 2 Peters, 449 ; McCulloch, vs. Maryland, 4 "Wheat., 316; Oaborn vs. Bank of the United States, 9 Id., 738. II Mr. Rodney, in the argument of Chaae's trial, said: ""When gentlemen talk of an indictment being a nece.-sary substratum of an impeachment, I should be glad to be informed in what court it must be supported. In the courts of the United States or in the state courts ? If in the state courts, then in which of them ; or pro- vided 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, 138 IMPEACHMENT OF THE PRESIDENT. It is not possible that a position so monstrous was intended by the framers of the Constitution. Nor can the criminal statutes or common law of the States limit or regulate national impeachable offences. 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.* If impeachments were limited in England to indictable offences, as they never have been, it is manifest no such rule can be adopted here, for we have no uni- form 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, therefons safely adopt the remark of " the great Selden" on the impeachment of Ratclifte : f "It were better| to examine this matter according to the rules and foundations of tkis house f^ that is, upon the great principles of parliamentary law adapted to our condition and circumstances, 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 efix'ct 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 impeachable must be indict^ible at com- mon 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 judicially, jurors, and probably such of the high officers of each of tlie governments as are intrusted 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 [36:2 ] " At common law, an ordinary violation, of a i^fMic statute by one not in office, though the statute iu terms provides no punishment, is an indictable mis- demeanor :" 1 Bishop, 535 [187. J And a similar violation by inferior officers was an indictable misdemeanor. and perjury in varioug forma, without beinp amenable to the federal jurisdiction, and uule88 he could be indicti'd before them he could not be impeached." (2 Chase's Trial, 389.) The dortriac thnt ndtliiiio- is impeai-hnblt viiUss indiclahlc hy act of Congress is impracticable. If only offences imlietahle by art of Congress iue iiii|jeacliiible, tlie President and all civil ofticers will escape inipeacliinent for many of the highest crimes. Murder, arson, robbery, and other crimes committed in ii State are indictable by State laws, but cannot be maile so by act of Congress. *Iu the argnuienf of Chase's trial, Mr. Uodney said: "Are we then to resort to the errinp data of the dif- ferent States? In New Ilainpsliiie drunkenness may be an indictal>le offence, but not in another State. Shall a Ij'uited States judge be impearheil and removed for getting intoxicated in New Hampshire, when he may drink as he pleases in other States witli impunity? In some States witchciaft is a heinous offence, which sut)- jects the unfortuiiati' person to iiidicluieiit and punishment ; in other States it is unknown as a crime. A great varie'y of case's mitjhl be put to expose the fulhiey of tlie iirineiiile, and to prove how improper it wouhl be for this court to be governed by the practice of the iljlfereut .Stales. Tlie variation of such u compass is toi great for It to be relied on. This honorable body must have a stanilard of their own, which will admit of uo change or deviatltm." (2 Chase's Trial, 38'J.) t Vol. 6. Am. Law Reg., N. S., 2(J4. 4 Howard's St. Tr., 47. J A minister is answerable for the justice, the hnnestij. the tilililyot all measures emanating from the Crown, as well as for flieir Ligalily ; and thus the e.Kecutive administration is, or ought to be, snl)ordinate, in all gn-at matters of policy, to the superintoudeuco and virtual control of the two houses of I'arliam'^ut. c~ llaliam'8 Const. History, 550.) § "It may be alleged that the power of Impeachment belongs to the House of Uepresentatives, and that with a view to the exercise of this power tliat honse have the right to investigate tlie conduct of all public of1icer< under the government. This is chi'i'rl'iilly admitted. In such a case titr safily of the rrpuhlic would he Ilia «j/prcm/; /djr; and the power of the House in the pursuit of this oliject wouM penetrate into the most secret reccsHi-s of the exi'cnlive department." (I'resiileiit I'olk's Message, Jour. Ho. Uep., SiHh Cong.. Istsess., 693.) " Salus populi sii],rema ler.:" liroom'H Legal Miixiins; JIlouiU's Trial, Whart. St. Tr., 300, per Blouut ; Prescott's Trial, 181, per Shaw; contra, Blake, IHi. Ill Hawkins 193, ch 73, ^ fi; 1 Salk. 396; 2 Wooddeson 596, 355; Jacob's Law Die, tit. Judges; 12 Coke 2.5-ti; Hammond v. Howell, 2 Mod. 218; Floyd v. Harhrr, 12 Co. 23-5. "The doctrine which holds a judge exempt from a civil suit, or indictment for any act doni> or omitted to l)e doiu' by him sitting iis a judge, has a deep root in the common law," per Kent: Yatesv. jMnsing, 5.1: Cuuninglinm v. Ihic.ldcw, 8 Cow., 178; Peek's Trial, 492; 2 Chase's Trial, .389. Hnl sei' the ruling of Chief Justice Shippcu, rei'orrud to in Addison's (I'a.) Trial, 70; 1 Bishop on Crim. Law, 915 [3ti2;J 4 Bluckat, 121. IMPEACHMENT OF THE PRESIDENT. 139 " If a public officer intrusted with definite poAvers, to be exercised for the benefit of the community, wickedly abuses or fraudulently exceeds them, he is punishable by indictment, tliou<;h no injurious effects result to auy individual from his misconduct:" U'hart. Crira. Law, § 2514. ^ " "Whatever mischievously affc-cts the person or property of another, or openly outrages decency, or disturbs public order, or is injurious to public morals, or is a breach of official duty, when done corruptly is the subj(!ct of indictment:" What. § 3. It may be said the immunity of a j«dge from indictment, for his official acts at common law, is placed on "grounds of public policy, to secure his independ- ence, and that it is the indictable character 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 indicta- ble character of an act is no test of its impeachability ; 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 instrumeht is not to be construed 80 as to make its " effects aud 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, t If a judge should persistently hear the arguments of one party to causes privately and out of court, the evil would become so intolerable in an officer holding for s^ood behavior that he should be removed. If the President should hold out promises of offices of honor and trust to the friends of senators to influence their votes, the consequences might be so per- nicious and corrupting, especially in an hour of national peril, when a single *0n the trial of Chase Mr. Nicholson said: You, Mr. President, as Vice-President of the United States, together with the .Secretary of the Treasury, the Chief Justice, and the Attorney General, as commissioners of the sinking fund, have annually at your disposal .$8,000,000, for the purpose of paying the 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 ttiis 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 under the favorite com- mon law. " If a judge should order a cause to be tried with 11 jurors only, surely he might be impeached for it, and yet I believe there is no court in which he could be indicted.'" (2 Chase's Trial, Si9.) t On Chase's Trial Mr. Rodney said: "I think I can put * * striking cases of misconduct 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 eases: if a judge, at the time appointed for court, "should appear and open the court, and notwithstanding there was pressing business to be done, he should proceed knowingly and wilfully to adjourn it until the next stated period. ' * * " .Suppose he proceeded in the despatch of business, aud from prejudice against one party, or favor to his antagonist, he ordered on the trial of a cause though legal ground fcr postponement." "If when the jury return 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 presume he would subject himself to an impeachment." (2 Chase's Trial, 390.) Mr. Harper, for the defence, practically abandoned the idea that an indictable offence wiis necessary. He said : " There are reasons whicli appear to me unanswerable in favor of the 0[>iuiou that no offence is impeach- able unless it be also the proper subject of an indictment. * * I can suppose cases where a judge onght to be impeached for acts which I am not prepared to declare indictable [at common law.] Suppose, for instance, that a judge should constantly omit to hold co«rt, or should habitually attend so short a time each day as to render it impossible to despatch the business." (2 Chase's Trial, So.x) 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 indiseriminatelj' on every act presented for his acceptance. This surely would be an abuse of his constitutional power richly deserving impeachment ; and yet no man will pretend to say it is au indictable offence.'' (2 Chase's Trial, 452; WicUliffe's argument on Peck's Trial, 311.) On Peck's trial, Mr. Wickliffe put additional eases: "Suppose a judge under the influence of political feel- ing shall award to his favorite a new trial * * against known law, would this be an indictable offence ?" " Suppose a judge * * shall labor for two hours in abuse upon an uuoffendiug citizen whom he 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 aggrandize- ment." (Id., 310.) On Peck's trial, Mr. Buchanan said : " The abuse of a power which has been given may be as criminal as the usurpation of a power which has not been granted. Suppose a man to be indicted for an assault and bat- tery. He is tried and found guilty ; and the judge, without any circumstances of peculiar aggravation having been shown, fines him $1,000, and commits him to prison for a year. Now, although the judge may possess the power to line and imprison for this offence at his discretion, would not this punishment be such au abuse of judicial di.>-cretion, and afford such evidence of the tyrannical aed arbitrary exercise of power as would justify the House of Representatives in voting au impeachment?" (Peck's Trial, 427.) 140 IMPEACHMENT OF THE PRESIDENT. vote miglit deciile the life of the government, that the safety of the republic would demand impeachment. Such a President would violate his oath faith- fully to execute his duties. There are many breaches of trust not amounting 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 posi- tive 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 indiscHminate veto of all bills by the President, his retaining in office men subject to his removal, knowing them to be utterly incapable of performing the duties of their office, and other misdemeanors, would manifestly be proper subjects of an impeachment, for otherwise a wicked, corrupt, or incompetent foreign minister might embroil the nation in a war imperilling our exidtence, to avoid which impeachment might be the only remedy. The impeachment trials in the United States may be said to have conclu- sively settled these questions, t The first case tried— that of William Blount, a senator of the United States from Tennessee — simply decided that none but civil officers can be impeached, and that a senator is not such civil officer. But the articles of impeachment — none of which charged a statutory crime, and some certainly no common law oflfence — proceeded upon the idea that acts were impeachable! which were not indictable, so much so that no objection was suggested on that account. The next case is that of Judge Pickering, § who was convicted upon each of * "There are offences for which an officer may b" impeached, and against which there are no known posi- tive laws. It is possible that the day may arrive when a President of the United States, having some great political object in view, niaj' endeavor to influence Congress by holding out throats or inducements to them. A treaty may be made which the President, with some view, may be extremely anxiouit to huve ratilied. The hope ofoffice may be 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 Representatives may have a very dear friend in office, and the President may tell him unless you vote for rny measures your friend shall be dismissed. Where is the positive law forbidding this ? Yet, where is the mau 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 bo impeached for it?" (Per Nicholson, 3 Chase's Trial, 339, 341. See Peck's Trial 309.) "The al)use of a power given may be as criminal as the usurpation of a power not granted." (Per Bacbonan on Peck's Trial, 4'.i7.) He supposes the case of a judge having discretionary power to fine and imposing enormous and unnecessary punishment. t Those before the .Senate of the United .States are the cases of — 1. William Blouut, a senator of the United States, July, 1797, to January, 1798. (Wharton's State Trials, 200.) 2. John Pickering, district judge. New Hampshire, 180.1-'OJ. (.\nnals of Congress ; 2, Hililreth's Hist , 518. ) 3. Samuel Chase, associate justice of the Supreme Court United States, 1804-05. (Trial of Chase, by Smith & Lloyd, 2 vols.) 4. James Peck, district judge Missouri, 1826, 1831. (Pock's Trial, by Stansbury, 1 vol.) 5. West W. Humphreys, district judge of Tennessee, 1862. (Congressional Globe, vol.s. 47, 48, 49, 2d sessioo 37th Congress. See report No. 44, 2d session 37th Congress, vol. 3 Uoports of Committees.) J There were five articles — 1. That in 1797 Spain, owning the Floridas and Louisiana, viras at war with England, and Senator Blount " did conspire and contrive to create, promote, and set on foot * * in the United Stales, and to conduct and carry on from thence a military hostile expedition again.st * " the Floriilas and Louisiana * » * for tho purjiuBo of wresting the same from " Spain, and of conquering the same for Great Britain, In violation of the obligations of neutrality of tlie United States. 2. That liy the treaty of Octot)er 27, 1795, the United States and Spain agreed to restrain Indian hostilities in tlie cr)unfi y adjaconi to the Floridas, yet Blount, in 1797, "ilid conspire and contrive to excite the Creek and Clii-rokie Imiians " in X\v United States " to commeniM' hostilities against the subjects and possissions in the Floridas and Louisiana, for llie purpose of reilucing the same to the dominion of ' " Great Britain," in violation of the treaty, the oliligations of neutrality, and his dntli^s as S(ter 20 page 150; 6 Howell's State Trial, , 313, 316, 346, note ; note to Lord Capel's case, 4 Howell's Slate 'I'rials, 12, 13 ; Case ol Karl of Danby, A. 1>. 1678; 11, Howell's State Trials, 650; 4 Hatsel's Puc, 71. ) *■* He cites the opinion of Kent in a case in 5 Johns, Rep. 291, which was a civil action against Chancellor Lansing for punishing a conteniiit. Kent says: "There must be the scienter ox intentional violation of tha stalnle, and tliis can never be imputed to the judicial proceedings of a court. It would be an inipeacliable offence, which can never be averred or .shown but under the process of impeacliinent." He conceded that an iiitaitioJial riolalion of the law icas impeachable, and cited Erskine's Speeches, vol. 1, 374, (New York ed. 1813.) to show that impeachment should be used as an example "to corruption and wilful abuse of authority by extra legal pains." And, referring to Hammond v. Howell, 1 Mod. 184, 2 Id. 218, and the remark that complaint should be made to the king to secure the removal of a judge who had unlawfully imprisoned a juror lor contempt, said, that course was proper "if the judge had acted corruptly, * * that is, with a wicked iulenliou to oppress umler color of law." (Peck's Trial, 493, 495.) tt The charges were: 1. For advocating secession in a public speech at Nashville, December 29, 1860. 2. For openly sui)iiorting and adroeating the Tennessee ordinance of secession. 3. For aid in organizing armed relnllion. . 4. For conspiring with Jefferson Davis and others to oppose by force the authority of the government of the United States. 5. For neglecting and refusing to hold the district court of the United States. 6. For acting as a confederate judge, and, as such, sentrncing nun to be banished and imprisoned, and their property to be confiscated, for their loyaltj-, " and espeeiallj- ot property of one Andrew .lohnson.'' 7. For the arrest and imprisonment of "one AVillinm Ci. Urownluw, exercising authority as judge of the district court of the Confederate States." He was convicted on all the articles severally by ft vote on each, except that part of art. 6, which churgeu Mm with confiscating the property of Andrew Joh&ijou. (49 Gk>be, 1861-2, pi. 4, p. 2950.) IMPEACHMENT OF THE PRESIDENT. 143 In fact, the charge of advoeating secession was a crime of which half the leading politicians of the south had been guilty for many years. In the seven articles of irapeacliment against hitn, two may be said to charge treason ; and it may be claimed that one good article will sustain a coaviction, by way of analogy to the doctrine that one good count in an indictment, notwithstanding the presence of bad ones, will sustain a sentence. But even this is not law in England* But there is no analogy. The Senate, by a separate vote on each article, specifically passed on the sufficiency of each article to constitute an impeachable offence, while a jury passes generally on all th(^ counts of an indict- ment. And it is to be observed that the report of the Judiciary Committee, recommending impeachment, did not charge treason or other indictable crime, nor was there evidence of any ; t and on the trial of the case no doubt was expressed as to the right'to convict on each of the articles. The cases tried in the States fully sustain the same view, both before and since the adoption of our national Constitution. I Judge Addison § was impeached in Pennsylvania in 1802, and his defence was that he had committed no act indictable at common law ; but the senate almost unanimously convicted him, utterly repudiating that as a defence. * Regiua v. O'Connell, 11 Clark & Fin. 15; 9 Jurist, 30; Wharton'8 Crim. Law, § 3047. t Report No. 44, 2d Session 37th Congress, vol. 3 of House Reports. X On the 12th Jul}-, 1788, three of the judges of the Supreme Court of Pennsylvania attached and fined Oswald £10. and imprisoned him one mouth, for publishing a newspaper article having a tendency to preju- dice the public with respect to tlie merits of a cause depending ia court. (1 Dallas, 319.) On 5th September, 1788, Oswald memorialized the general assembly to determine "whether the judges did not infringe the Constitution in direct terms in the sentence they had pronounced; and whether, of course, they had uot made themselves proper objects of impeacliraent." The House, in committee of the whole, heard the evidence. Mr. Lewis, a member, maintained that tho only grounds of impeachment were bribery, corruption, gross impartiality, or wilful and arbitrary oppression — none of which being proved, the memorial ought to be dismissed. Mr. Finley, tlieu a member, said : "Though ho deemed it his duty to pronounce that the decision of tho Supreme Court was a deviation from the spirit and letter of the frame of government, yet he did uot mean to assert that any ground has been shown for tlie impeachment of the judge.s. But, on the contrary, he agreed that bribery, corruption, or wilful and arbitrary infraction of the law, were the only true causes for instituting a prosecution of that nature." (See 1 Dallas, 335; Addison's Trial, 129.) The House resolved, by 34 to 23, that the charges of arbitrary and oppressive proceedings in the judges of the Supreme Court are unsupported by the testimony introduced, and consequently that there is no just cause for impeaching the said justices. ( See the report of this case in 1 Dallas, 3d ed., Phila. 1830, p. 353 [329].) On the trial of Chase, Mr. Rodney, referring to this case, said : " Three of the judges of the Supreme Court were accused of fining aud imprisoning, without the intervention of a jury, a fellow-citizen for publishing . a paper whicli they considered as a coufempt of court. The judges were defended by two most able and elo- quent counsel, who contended that the Constitution, the laws aud the practice of Pennsylvania, by adopting the common-law doctriues on the subject, justified the proceeding, and that if there was no law to justify it, their conduct tlowed from an honest error in judgment. But, sir, they did not attempt to maintain the position contended for on this occasion, that to support an impeachment the conduct of a jiiilgo must be such as to sub- ject him to an indictment." (See 2 Chase's Trial, 399.) ^ Impeachmi-nt of Alexander Addison, president judge of the courts of common pleas of Westmoreland and other counties, 1802-3, couvicted of— 1. Directing a jury that the address of an associate judge to them "had nothing to do with the question before them;" aud 2. Preventing an associate judge from addressing the grand jury concerning their duties, by denying the right, and by leaving the bench, aud thus irregularly adjourning the court." (Addison's Trial, by i'homas Lloyd, 2d ed., Lancaster, 1803.) Mr. Mcivean, one of the managers, iu opening the trial, said : "Offences under color of office * * have always been considered as the most proper, and of course the usual ground of impeachment. They are such as the ordinary magistrates cannot or dare not punish. "* "^ It often happens that officers may and do abuse their power to the injur}- of the commonwealth, and at the same time in such a manner as not to render their conduct cognizable before the ordinary tribunals of justice, so as to proceed by indictment or information." (See Addison's Trial, .31.) In Pennsj-lvania the courts entertain jurisdiction of common-law crimes. The Attorney General filed a motion for a rule against Addison, to show cause in the .Supreme Court w-hy an information should uot bo filed against him. The court held that it was the right of the associate judge to address the grand jury ; but the coiirt, per Chief Justice Shippen, sad: "The affidavit does not state malice. It would .seem to be a n.is- take of right. Unless a crime is stated the court cannot take cognizance. There may be another remedy, fb y impeachment. J It does not lie with us to say what that is. The proceeding was arbitrary, unbecoming, unhand.some, ungentlemanly, unmannijrly, and improper; but there not being an imptitatiou. of wilful misbe- havior and malice, it is not indictable or the subject of an information. " (Trial, 70.) Judge Addison, in hisdefence, said : "No impeachment will lie but for a misdemeanor in office, and every misdemeanor in office is indictable; the officer impeached still remains liable to indictment, trial, judgment, and punishment according to law. An impeachment lies only where an indictment lies; no offici-r can be convicted on an impeachment who ought not to be convicted on an indictment; and the punishment on irapecchment is cumulative — not exclusive. The acts for which an officer may be impeached are precisely those for which hi ina}- be indicted as an officer; misdemeanors iu office, offences or unlawful acts done with an evil intention iu his official capacity." (Trial, 104.) A mere unlawful act from a mistake or error in judgment cannot bo alleged as a [impeachable] crime. Hot only wroug, but wilful wrong mu.st bo made out, or the offence is uot complete." (Page 118.) 'Though a judge acts uulawfuUy and unconstitutionally, he cannot be convicted on an impeachment unless hfthas acted wilfully so." (Page, 129; see 1 Dallas, 335.) But this position was denied, and Addison was found guilty by a vote of 20 to 4. (See this case referred to, S Chase's Trial, 396.) 144 IMPEACHMENT OF THE PRESIDENT. In Massachusett?,* the rule is well settled in conformity with what seems to be the recognized doctrine in the Senate of the United States. i\mong the cases tried with great learning and ability there, is that of James Prescott,t who was convicted before the senate. Mr. Blakk.| for the defence, insisted that impeachment is '• a process which can only be resorted to for the punishment of some great ofi'ence ajrainst a known, settled law of the land." The prosecution maintained " that any wilful viola- tion of law, or any wilful and corrupt act of omission or commission in execution or under color of office * * is such an act of misconduct and maladminis- tration in office as will render him liable to punishment by impeachment. "§ Chief Justice Chase evidently holds that a failure to perform official duty is impeachable, without reference to its indictable character or the motives therefor. And further, that the Senate is so entirely the exclusive judge of what is official delinquency, that the President cannot protect himself against impeachment for a failure to execute a law by the decree of a court enjoining him therefrom. On the loth April, 1867, in refusing the application of the so-called State of * The MassacbusettK cases are — 1. Idiptacliment of William Greenleaf. sheriff of Worcester county, 1788. Convicterl— (1.) Of detaining for his private use public moneys, when the commonwealth has a right thereto ; (2.) Of exhibiting dishonest accounts of taxes collected ; (.3.) Of detaining for two years public moneys from town of Petersham ; (4.) Of procuring from the treasurer of commonwealth an execution for money previously collected by him , (5.) Of false returns on executions; (6.) Of procuring a warrant of distress for money previously paid him. 2. Impeacliraent of William Hunt, ajustice of the peace of Watertown, 1794. Convicted of entering on his docket, on the trial day of causes, tlie personal appearance of plaintiffs, who were absent, thousrh defeudantB demanded their appearance. The senate found Hunt guilty, but suspended judgment for a year. 3. Impeachment of John Vinal, ajustice of the peace of Suti'olk county, IfiOU. Convicted of extortion and bribery. 4. Impeachment of Moses Copeland, a justice of the peace for Lincoln county, 1807-8. Acquitted on chargers : 1st. That he bought a note indorsed in blank, and entertained suit in name of Samuel Kingsbury, and rendered judgment, though in fact the note was Copelaud's ; 2d. For defaultmg a defendant, and entering judgment before the hour set for trial ; 3d. Bribery 5. Impeachment of James Prescott, judge of probate for Middlesex, 1821. Convicted of exacting illegal fees, and of inserting by interlineation in a guardian's account, previously sworn to, an item due to and paid to him- Belf, and then nf settling the account as judge. See "Prescott's Trial, by Pickering and Gardner, Boston, 1821." In the appendix is an abstract of the pre- ceding irapeachmeuts. On the trial of Prescott, it was said by Mr. Blake, arguendo, that - within the compass of forty long years, three or four solitary instances of trial by impeachment have occurred in this common- wealth. Of these, two I believe [three] resulted in a conviction ; and I feel myself justified in stating, that iu neither of the instances alluded to was there any point of constitutioual law involved in the inquiry." This case was conducted with great ability. And see Report of tho Trial and Acquittal of Edward Shippen, Chief Justice of Pennsylvania, and Others, before the Senate of that State, in 1805, by Wm. Hamilton. Trial of George W. Smith, Count v Judge of Oneida cimuty, before the Senate of New York, 1866. Trial of Impeachment of Levi Hiibbell, Judge of the Second Circuit, by the Senate of Wisconsin, June, 1853. "An Account of the Impeachment and Trial of the late Francis Ho|ikiuson, Esq., Judge of the Court of Admiralty fur the Commonwealth of Pennsylvania; Printed by Francis Bailey, Philadelphia, 17114." Ho was tried and acquitted in November and December, 1780. The same volume contains ''An Account of the Impeachment, Trial, and Acquittal of John Nicholson, Esq., Comptroller General of Pennsylvania." He was acquitted April 7, 1794. t In 1821, Prescott, a judge of probate, was impeached before the senate of Massachusetts. The 12th article charged that Ware was guardian of Birch, a non compos vicntis ; that Grout, one of the overseers of the poor, had some controversy with the guardian as to some property of the ward not involved in tlie account ; that the juilgi-, as attorney, advised the parties, and charged, and was paid live dollars by the guardian there- for; that the judge interlined this item in the account which had been previouly sworn to, and settUd the account allowing this item : Prescott's Trial, 189. The law did not prohibit judges from acting as attorneys iu matters not coining before their court. It was objected by the defence that this was not an otTence indictable, and so not impeachable : that espe- cially was this HO in Massachusetts, since the constitution authorized a removal upon the address of both houses of the legislature for any cause, and left impeachment against " officers for misconduct or maladministration iu their offices." But one of the managers saiil in substance : ' We stand here on no statute, on no particular law of the com- monwealth ; there is none for such a case. We stand here upon the broad principles of the common law — of common justice * * Such conduct is disgraceful and contrary to the usages of all civilized nations * * We have shown the conduit of the rci-iiondent * * to have"bei'u gros^ly improper and mischievous iu its tendclicy ; this is quite enough ; he liiisninlered himself unworthy of ollice, and therefore ought to be impeached and removed." ( Prescott's Trial, 149. See Dntton's reuuirks, 193-4.) And so the senate decided by a vote of 19 to 0, and convicted Judge Prescott. ♦ Prescott's Trial, 114. He quoted 4 Blackstone 2.'i9, that impeachment "is a, prosecution of the already known and established law ; " and 2 Wooddeson (ill; and part 1 of Dolby's Keport of the Trial o.'' tlie Queen, p. 841, on a bill of pains and penalties t owes to the Constitution and the laws, violated in his own case. He is, thtMclore, 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. Stanto!), in ject aud upon the ultimate basis upon which the reconstruction of these States should proceed, especially upon the question of negro suffrage. Upon this point three mem- bers of the cabinet found themselves to be in sympathy with Congress They reuiained only long enougii to sec that the difference of policy could not be reconciled. They felt that they should remain no longer, and a high sense of duty and propriety constrained them to resign their positions. 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 sununer of 1866. The subsequent sessions of Congress developed new complications when the suffrage bill for the District of Columbia and recon- struction acts of March 2 aud March 23, 1867, all passed over the veto. It was in cabi- net consultations upon these bills that a difference of opinion upon the must vital points was developed. Upon these questions there was perfect accord between all the members of the cabinet and my.self, except Mr. Stanton. He stood alone, aud the diffeience of opinion could not be reconciled. Tiiat unity of opinion which upon great questions of public policy or administration is so essential to the E.xecutive was gone. I do not claim that the head of a department should have no other opinions than those of the President. He has the same right, in the conscientious discharge of duty, to entertain and express his own opinions as has the President. What 1 do claim is that the President is the responsible head of the admiuistration, and when the opinions of a head of department are irreconcilably opposed to those of the President in grave matters of policy and adminis- tration there is btit one result which can solve the difficulty, aud 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 fine; for such differences of opinion among its members must impair the efficiency of any administration. I have n(jw refeiTed to the general grounds upon which the withdrawal of Mr. Stanton from my admiuistration 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 Now Orlrans on the 30th of August, 1666, justly aroused public indignation and public inquiry, not only as to those who were engaged iu 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 (ix that responsibility on the President. The charge was openly made, and again aud again reiterated through all the land, tliat the President was warned iu time but refused to interfere. By telegrams from the lieutenant governor and attorney general of Louisiana, dated the 27 and 28th of August, I was advised that a body of delegates, claiming to be a constitu- tional convention, were about to assemble iu New Orleans ; tliat tlie matter was before the grand jury, but that it would be impossible to execute civil |)rocess without a riot, aud this question was asked : "Is the military to interfere 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 : "The military will be expected to sustain and* not to interfere witii the proceedings of the courts." On the same 28th of August the following telegram was sent to Mr. Stanton by Majfir Gen- eral Baird, then (owing to the absence of General Sheridan) iu 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 here on Mon- day. The lieutenant governor and city autlioritics think it unlawful, aud propose to break it up by arresting the delegates. I have given no orders on the subject, but liave warned the parties that I could not countenance or permit such action without instructions to that effect from tiie President. Please instruct me at once by telegraph." The 2rttii of August was on Saturday. Tlie next morning, the 2i)th, this despatch was received by Mr. Stanton, at his n-sidcnce iu this city. He took no action up(m it, and neither sent instructions to (JcMieral JJaird himself nor presimted it to me for such instructions. On the next day (Monday) the riot occurred. I never saw this despatch from General Baird until some ten days or two weeks after the riot, when, upon my call for all the despatclies, with a view to tlieir publication, Mr. Stanton sent it to me. These facts all appear iu the testimony of Mr. Stanton befoic! tlie .ludiciary (Jominittee iu the inipeachnu'nt iuvestigaticm. On the liOth, tin; day of the riot, and alter it was suppressed, (ieneral Baird \vrote to ilr. Stanton a long letter, from which I make the following extracts : " Siu : I have the honor to inform you that a very serious riot occtu'red here to-day. I had not been applied to by the convention tor protection, but the lieutenant governor and the mayor had freely consulted with me, aud I was so fully convinced that it was so strongly the intent of the city authorities to preserve the peace, iu order to prevent military iuterler- IMPEACHMENT OF THE PRESIDENT. 153 ence, that I did not regard an outbreak as a thing to be apprehended. The lieutenant governor had assured me that even if a writ of arrest was issued by the court, the sheriff would not attempt to serve it without my permission, and for to day they designed to suspend it. I enclose herewith copies of my correspondence with the mayor, and of a despatch which the lieutenant governor claims to have received from the President. I regret that no ri'j)ly to my despatch to you of Saturday has yet readied me. General Sheridan is still absent iu Texas."' The despatch 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 expres- sion 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 for proof, the delinquency 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 not given by him to the public, and only to the President in obedience to a requisition for all the despatches. No one regrets more than myself that General Baird's request was not brought to my notice. It is clear, from his despatch 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 say that I would have given no instructions, even if the despatch had reached me in time ; but all must admit that I ought to have had the oppor- tunity. The following is the testimony given by Mr. Stanton before the impeachment investigation committee as to the despatch: " Q. Referring to the despatch of the 28th of July by General Baird, I ask you whether that despatch, on its receipt, was communicated ? "A. I received that despatch on Sunday forenoon ; 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 despatch. "Q. 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 ? "A. That is the date of its reception in the telegraph ofhce Saturday night. I received it on Sunday forenoon, at my residence ; a copy of the despatch was furnished to the President several days afterward, along with all the other despatches and communications on that sub- ject, but it was not furnished by me before that time ; I suppose it may have been ten or fifteen days afterward. "Q. The President himself being in correspondence with those parties upon the same subject, would it not have been proper to have advised him of the reception of that despatch ? "A. I know nothing about his correspondence, and know nothing about any correspond- ence except this one despatch. We had intelligence of the riot on Thursday morning. The riot had taken place on Monday." It is a difficult matter to define all the relations which exist between the heads of depart- ment and the President. The legal relations are well enough defined. The Constitution places these officers iu the relation of his advisers when he calls upon them for advice. The acts of Congress go further. Take, for example, the act of 1789, creating the War Depart- ment. It provides that — "There shall be a principal officer therein, to be 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 trusted to him by the President of the United States; " and furthermore," the said prin- cipal officer shall conduct the business of the said department in such manner as the Presi- dent 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 depart- ment, to be called the chief clerk, " who, whenever said principal 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 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 cannot execute them in person he is allowed to select his agents, and is made responsible for their acts within just limits. So complete is this pre- sumed delegation of authority in the relation of a head of department to the President 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 liiin.self. The principal, upon whomsirch responsibility 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 responsibility 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 Pres- ident, moved by "public considerations of a high character," requests his resignation to assume 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. 154 IMPEACHMENT OF THE PRESIDENT. There are, however, other relations between the President and a head of department beyond these defined lefral relations which necessarily attend them, though not expressed. Chief among these is mutual confidence. This relation is so delicate tliat it is sometimes hard to say when or how it ceases. A single flagrant act may end it at once, and then there is no difficulty. But confidence may be just as effectually destroyed by a series of causes too subtle for demonstration. As it is a plant of slow growth, so, too, it may be 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 statement, and still less of formal proof. Nevertheless, 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 administration, Mr. Stanton was equally unwilling to allow the President to carry on his administration without his presence. In the great debate which took place in the House of Eepresentatives 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 shoirld be responsible for the executive department. So far, therefore, as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to the country. Again, is there no danger that an officer, when he is appointed by the con- currence of the Senate, and his friends in that body, may choose rather to risk his establish- ment on the favor of that branch than rest it upon the discharge of his duties to the satisfac- tion of the executive branch, which is constitutionally authorized to inspect and control his conduct ? And if it should happen that the officers connect themselves with the Senate, tl ey 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 annihilated, 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 the executive power, only to be removed by a revolution of the governm'ent." 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 consequence? Why, in nine cases out of ten, where the 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 iinpossible to produce the necessary evidence. Are the Senate to proceed without evidence? Some gentlemen eon- tend not. Then the object will be lost. Shall a man, under these circumstances, be saddled upon the President who has been appointed for no other purpose but to aid the President in performing certain duties ? Shall he be continued, I ask again, against the will of the Pres- ident? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts uuieclingly or unfaithfully? Without you make him responsible you weaken and destroy the strength and beauty of your system. What is to be done in cases which can only be known from a long acquaintance with the conduct of an officer?" I had indulged the hope that upon the assembling 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 consid- erations, I have the consolation to be assured that, so far as the public interests are involved, there is no cause for regret. Salutary reforms have been introduced by the Secretary ad inttriw, and great reductions of expeuses have been effected under his administration of the War Department, to the saving of millions to the treasury. ANDREW JOHNSON. Washikgton, December 12, 1867. Be^o-e t.lie reading was completed — Mr. Shf.rman. If the manager will paupe now, I desire to submit a motion to adjourn, that the Senate may transact some business of a Lgi.-^lntive character. Mr. SuMNKK. I will suggest to my friend that the reading of this document was called for, and it has not yet been finished. Mr. JoH.M.soN. We can consider it as read through. Mr. SuKRMAN. I understand that the counsel are willing to waive the further reading. Mr. STAXnERY. As far as avc arc concerned, we will dL-^pense with its fur- ther reading if it is to be considered in evidence, Mr. Manager Wilson. Then 1 will simply read the certificate. Mr. Stanhkry. That is unnecessary. We agree to it. Mr. SuKRiNiAN. I move that the Senate, sitting as a court of impeachment, adjouru until to-morrow at the usual hour. IMPEACHMENT OF THE PRESIDENT. 155 Mr. Sumner. I would suggest 10 o'clock. Mr. Sherman. The hour is fixed by tlie rule. The Chief Justice. The hour of meeting is fixed by the rule, and the motion of the Senator from Massachusetts is not in order. The Senator from Ohio iTioves to adjourn until to-morrow at half past 12 o'clock. Several Senators. No ; 12 o'clock ; the rule fixes 12. The Chief Justice. The Senator from Ohio moves an adjournment until to-morrow at 12 o'clock. The question being put, the motion was agreed to ; and the Chief Justice declared the Senate, sitting as a court of impeachment, adjourned until to-morrow at 12 o'clock. Tuesday, MarcJi 31, 1868. At five minutes past 12 o'clock p. m. the Chief Justice of the United States entered the Senate chamber and took the chair. The Chief Justice. The Sergeant-at-arms will open the court by procla- mation. The Sergeantat-arms. Hear ye, hear ye, hear ye: all persons are com- manded to keep silent while the Senate of the United States is silting for the trial of the articles of impeachment exhibited by the House of Representatives against Andrew Johnson, President of the United States. The Chief Justice. The Secretary will notify the House of Representa- tives. The President's counsel, Messrs. Stanbery, Curtis, Evarts, Nelson, and Groesbeck, entered the chamber and took the seats assigned to them.- At 12 o'clock and seven 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 after, the presence of the members of the House of Representa- tives was announced, and the members of the Committee 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, entered the Senate chamber and took the seats prepared f)r them. The Chief Justice. Gentlemen managers on the part of the House of Rep- resentatives, you will proceed with your evidence in support of the articles of impeachment. Senators will please to give their attention. Mr. Manager Wilson. Mr. President and 'Senators, in continuation of the documentary evidence, I now ofi'er the resolution passed by the Senate in exec- utive session in response to the message of the President notifying the St^nate of the suspension of Hon. Edwin M. Stanton as Secretary of War, as follows : In Executive Sbssion, Senate of the United States, January 13, 1868. Resolved, That having cousidered the evidence and reasons given by the President in his report of the 12th December, 18(i7, for the suspension from the office of Secretary of War of Edwin M. Stautou, the Senate do not concur in such suspension. And following order : In Executive Se.ssion, Senate op the United States, January 13, 1868. Ordered, That the Secretary forthwith commimicate an official and authenticated copy of the resolution of the Senate non-concurring' in the suspension of Edwin M. Stanton as Sec- retary of War, this day adapted, to the President of the United States, to the said Edwiu M. Stanton, and also to the .said U. S. Grant, the Secretary of War ud inlerim. And certified as follows : I, John W\ Forney, Secretary of the Senate of the United States, do hereby certify that the foregoing are true extracts from the Journal of the Senate. 156 IMPEACHMENT OF THE PRESIDENT. These extracts are made and certified iiuder the autliority of the act approved 8th Angngt, 1846, entitled "An act making- copies of papers certified by the Secretary of the Senate and the Clerk of the House of Kepreseiitatives legal evidence." Given under my hand, at Washington, this J 1th day of March, 186!^. [SEAL.] J. W. FORNEY, Secretary of the Senate. I next produce and offer as evidence the following extract from the Journal of the Senate : In Executive Session, Senate of the United States, February 2], 18G8. The following message was received from the President of the United States, by Mr. Moore, his secretary: Washington, D. C, FthruaryZl, 1868. To the Senate of the United States : On the 12th day of August, 1867, by virtue of the power and authority vested in the Presi- dent by the. Constitution and laws of the United States, I suspended Edwin M. Stanton from the office of Secretary of War. In farther exercise of the power and authority so vested in the President, I ha^■e this day removed Mr. Stanton from the office, and designated the Adju- tant General of the anny as Secretary of War ad interim. Copies of the communications upon this subject, addressed to Mr. Stanton and the Adju- tant General, are herewith transmitted for the information of the Senate. ANDREW" JOHNSON. The copies attached are as follows : Executive Mansion, Washington, D. C, February 2\, 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 receipt of this com- munication. You wil^ 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 record*, books, papers, and other property now in your custody and charge. Respectfully yours, ANDREW JOHNSON. Hon. Edwin M. Stanton, Washington, D. C. Executive Mansion, Washington, D. C, February 21, 1868. Sir: Hon. Edwin M. Stanton having been this day removed from the office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that ofiice. Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge. Respectfully yours, ANDREW JOHNSON. Brevet Major General Lorenzo Thomas, Adjutant General United States Army, Washington, D. C. To these papers is appended this certificate : I, John W. Forney, Secretary of the Senate of, the Xlnited States, do hereby certify that the foregoing is an extract from the journal of the Senate. This extract is made and certitied under the autliority of the act approved August 8, 1846, entitled "An act making copies of papers certified by the Secretary of the Senate and the Clerk of the House of Repn^sentativus legal evidence." Given under my hand ut Washington this Nth day of March, l^S. [SEAL.] J. W. FORNEY, Secretary of the Senate. I now offer an extract from the Journal of llie Senate, showing the action taken by the Senate on the message notifying that body of the removal of the Secretary of War and the appointment of a ."-ecretary of W;ir ad interim : In Executive Session, Senate of the United States, February 2\, 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 had designated the Adjutant General of the army to act as Secretary of War ad interim : Therefore, IMPEACHMENT OF THE PRESIDENT. 157 ResoltPil 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 SessicIn, Senate of the United States, February 2\, 1 86S. Resolved, That the Secretary of the Senate is hereby directed to communicate copies of the foiejjoiufj resolution to the President of the United States, to the Secretary of VVar,_aud 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 foregoinp: are true extracts from the Journal of the Senate. These extracts are made and certified lander the authority 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 the House of Representatives legal evidence." Given under my hand at Washiogtou, this llth day of March, 1868. [SEAL.] J. W. FORNEY, Srciftaiy of III'. Spnale. I now offer an authenticated copy of the commission of Edwin M. Stanton as Secretary of War, and will here state 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 all who shall see these presents, greeting : Know ye, that reposing special trust and confidence in the patriotism, integrity, and abilities of Edwin M. Stanton, I have nouiinated, and by and with the advice and consent ot the Senate do appoint him to be Secretary of War of the United States, and do authorize and empower him to execute and fulfil the duties of that office according to law, and to hold the said office with all the powers, privileges, and emoluments to the same of right apper- taining unto him, the said Edwin M. Stanton, during the pleasure of the President of the United States lor 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 1.5th day of January, in the year of our Lord 18(32, aud of the independence of the United States of America the eighty -sixth. [SEAL.] ABRAHAM LINCOLN. By the President : WILLIAM H. 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 tire records of this department. In testimony whereof, I, William H. S'-ward, Secretary of State of the United States, have hereunto subscribed my name and caused the seal of the Department of State to be affixed. Dune at the city of Washington this 2 1st day of March, A. D. 18G8, and of the independ- ence of the United States of America the uiuety-second. [SEAL.] WILLIAM H. 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 otherwise be some delay in calling them. I believe the 6ergeant-at-arras has given them a room. The Chikf Ju.stice. 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 witness will stand on the left of the Chair when examii.ed. Mr. Manager Butler. I move that this witness be sworn. 158 IMPEACnMENT OF THE PRESIDENT. The Secretary of the Senate administered the following oath to Mr. McDonald, and to each of the other witnesses as sworn : "Toil 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, heing sworn, was examined as follows : By Mr. Manager Butler : Question. State your name and office. Answer. William J. McDonald, chief clerk of the Senate. Q. Will you look at that paper [exhibiting a paperj and read the certificate that appears to be signed by your name ? A. It is as follows : Office Secretary S'enate United States. Washington, t'ebruary 27, 1868. An attested copy of the foregoing resolution was left by me at the office of the President of the United States in the Executive Mansion, he not being^preseut, about nine o'clock p. m., on the 13th of January, 1868. w. J. Mcdonald, Chief Clerk Senate United States. Q. Is that certificate a correct one of the acts done ? A. That is a correct certificate of the acts done. Q. And the paper was left in accordance as that certificate states ? A. Yes, sir. Mr. Manager Butlbr. I have nothing further to ask the witness. The Chief Justice. Are there any questions to be put on the part of the accused l Mr. Stanbery and Mr. Curtis. No, sir. Mr. Manager Butler. I will ask Mr. McDonald to take the stand again. Q, Will you read that certificate, [handing a paper to the witness.j A. It is — Office Secretary Senate United St.\tes, Jl'ashington, t'ebruary '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 Mansion about ten o'clock p. m. on the 21st of February, 1868. w. J. McDonald, " Chief Clerk Senate Lniti.d States. Q, Do you make the same statement as regards this service? A. 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 V.\, ]868. Resolved, Tliat, having considered the evidence and reasons given by the President in his report of the J-'th ot l>eccniber, 1867, for tiie suspension from the office of Secretary of War of Edwin M. Stanton, the Senate do not concur iu sucli suspension. Attested : J. W. FORNEY, Secretary. The resolution as to the service of which the other certificate relates : In Executive Session, Senate of the United States, t'ebruary 'Z\, 1868. "Whereas the Senate have received and considered the communication of tlic President B'atiiig tliiit 111- lias removed Edwin M. Sianton, Stcrctary of War, and designated the Adju tant General of the army to act as Secretary of War ad interim : Therefore, IMPEACHMENT OF THE PRESIDENT. 159 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 Bitler. We now call J. W. Jones as a witness. J. W. Jo.VES sworn and examined. By Mr. Manager Bltler : Q. Plea.sc state your name and position? A. J. W. Jones, keeper of the stationery. Q. An oflieer of the Senate ? A. Yes, sir. Q. Do yon know Major General Lorenzo Thomas, of the United States army, Adjutant General Z A. I do, sir. Q. How long have ynu known him? A. 1 have known him about six or seven years. Q. Were you employed by the Secretary of the Senate to serve a notice of the proceedings of tlie Senate upon him .' A. I was. Q. Looking at that memorandum, [handing a paper to the witness,] what day did you attempt to mak(^ the service if A. The 21st of February. Q. What year ? A. The present year. Q. Where did you tind him? A. I found him at Marini's Hall, at a masquerade ball. Q. Was he masked? A. He was. Q. How did you know it was him? A. 1 saw his shoulder-straps, and I asked him to unmask. Q Did he so do? A. He did, sir. Q. After ascertaining it was him, what did you do? A. I handed him the resolulion of the Senate. Q. About what time of the day or niglit 1 A. About eleven o'clock at night. Q. Did you make the service then ? A. I did. Q. Have you certified the fact on that paper ? A. Yes, sir. Q. Is that certificate true ? A. It is. Q. Will you read it ? A. Attached to this copy of the resolution 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 to Brevet Major General Lorenzo Thomas, Adjutant General of the United Srates army, and the same was by me delivered into the hands of General Thomas about the hour of eleven o'clock p. m. on the 21st day of February. J. W. JONES. Q. Is tliat certificate true ? A. It is, sir. No cross-examination. 160 IMPEACHMENT OF THE PRESIDENT. Mr. Manager Wilson. The document thus served is as follows : In Execl'tivk Session, Senate of the United States, February '21, ]f^68. Wlieroas the Senate have received and considered the communication of the President, statinp that he had removed Edwin M. Stanton. Secretary of War, and designated the Adju- tant General of tiie army to act as Secretary of War ad interim : Therefore, n&sohed 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 De- partment. Charles E. Crf.ecy, sworn and examined. By Mr. Manager Butler : Q. "What is your full name, and what is yonr official position, if any ? A. Charles Eaton Creecy ; I am clerk in charge of the appointments in the Treasury Department. Q "Will you look at the bundle of papers you have brou^-ht, in obedience to our subpoena, and give nie the form of commission which was used in the Treas- ury Department bi^fore the passage of the act of Match 2, 1S67 ? A. This is it ; [producing a paper.] Q. You produce this as such form i A. Yes, sir ; I do, Q. Was that the ordinarj' form, or one used without exception 1 A. It was the ordinary form for the permanent commis.sion. Mr. Johnson and Mr. Pattku.*>o.\, of Tennessee. We caimot hear one word. Mr. liowAUD. 1'lie witness must speak louder. Mr. Jf)HNSON. If his answer were repeated by the counsel it would be better. Mr. Manager Bltler. If it will not be considered improper, Mr. President, I will repeat tlie answer. The Chikf Ji'stice. The witness will speak for himself. ]Mr. EvARTs. We prefer that the witness should speak so as to be heard. Mr. ]\Ianager Bu'i'LKR. I have no desire to undertake the labor. The Ciiit-F Justice, (to the witness.) Mr. Creecy, you will raise your voice and spt-ak as loud as possible. The Witness. Yes, sir. ]\Ir. ]\Ianager BuTi.ER, (to the witness.) What is your answer, then ; loud enough to be heard ? Mr. Trumbull. I think it Would help us all to hoar if the witness would stand further from the counsel. li' he would stand on the other side of the Sec- retary's desk he would have to speak louder, and all could hear. The Chikf Justice. That would be better. Mr. Creecy, you will go to the opposite side of the Secretary's desk. The witness changed bis position to the other side of the desk, and subse- quent witnesses were examined standing at the Secretary's desk, to the right of the presiding officer. Mr. Manager Bi'iLER, (to the witness.) What is the answer to the question whether this is the ordinary form of commission used before March 2, 18671 A. That is the onlinary form. Q. For the class of ajipointments for which such commissions would be issued vras there any otlier form used befirt; that time? A. 1 think that is tlu; f ffice bill a new form was made conforming to the provisions of the tenure-of-office act, showing that the President acted in the Treasury Depart- ment under the teuure-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 ai'e certain interlineations ; did you speak of the form before it was interlined, or subsequently, or both ? A. This is the commission. The alterations in this commission show the changes that have been made to conform to the tenure-of-office bill. Q. There is a portion of that paper in print and a portion in writing. Do I understand you that the printed portion was the form used before ? A. Yes, sir. Q. And the written portion shows the changes ? A. Yes, sir. Q. Will you read with a loud voice so as to be heard the printed portion of the commission, the original commission, the whole commission 1 Mr. CoNNEss. I think if the reading should be done by the Clerk, who is ia 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 ichom these presents shall come, greeting : Know ye, that reposing special trust and confidence in the integrity, diligence, and dis- cretion of , 1 have nominated, and by and with the advice and consent of the Senate do appoint him , and do a.nthorize and empower him to execute and fulfil 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. In testimony whereof, I have caused these letters to be made patent and the seal of the Treasury Department 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 18 — , and of the independence of the United States of America the . Secretary of the Treasury. By the President : Q. Please state what was the alteration made of that printed form to conform to the provisions of the tenure-of-office act ? A. 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 a,s follows : " Until a successoj- shall have been a[)pointed and duly qualified." Mr. Johnson. What are the words stricken out? 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 : Q. Since that act has any other form of commission been used than the one as altered for such permanent appointments ? A. No, sir. 1] I P 162 IMPEACHMENT 0? THE PRESIDENT. Q. Have yoa now a form of official bond for officers as used prior to the civil tenure-of-office act ? A. Yes, sir ; [producing a paper.] Q. Has any change been made in that ? A. No, sir. Q. Please give me, if you have it, a copy of the commission issued for tem- porary appointments since the tenure-of-office act ] Mr. Stanbkry. 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 ? A. It was. Mr. Curtis. "What is the paper ? Mr. Manager Butler. The paper is the form of commission for temporary- appointments. Will the Secretary read it ? The Secretary read as follows : The President of the United States of America, to all to ichom these presents shall come, greeting : Know ye, that reposing special trust and confidence in the integrity, diligence, and discre- tion of , I do appoint him, and do authorize and empower bim to execute and fulfil the duties of that ofSce 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 Department 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 . » Secretary of tlit Treasury. By the President : By Mr. Manager Butler : Q. Was any cliange made in that commission ? A. The alteration shows the chang'e. Mr. Manager Butler. Head the alteration, Mr. Sc^crctary. The Secretary. Strike out "during the pleasure of the President of the United States for the time being," and iii.«crt "unless this commission be sooner revoked by the President of the United States for the time being." By Mr. Manager Butler : Q. Do you know whether before these changes were made the official opinion of the Solicitor of the Treasury was taken ? A. It was. Q, Have you that opinion ? A. 1 have. Mr. Manager Butler. I withdraw the question as to the opinion, on consul- tation. [To the witness.] Do you know whether since the alteration of these forms any commissions have been issued eigned by the Prebideut of the United States ? A. Yes, sir. Q. As altered ? A. Yes, sir. IMPEACHMENT OF THE PRESIDENT. 163 Q. It is suggested to me to ask you if the President bad signed both forms, both the temporary and permanent forms as altered 1 A. Yes, sir. Q. Now look at the paper -which I semi you, [handing a paper,] and say what is that paper. A. It is a commission issued to Mr. Cooper as Assistant Secretary of the Treasury. Q. Under what date 1 A. T^lie 20th day of November, 1867. Q. Who was Assistant Secretary of the Treasury at the time of the issuing of that commission ? A. Mr. W. E. Chandler was one. Q. Do you happen to remember, as a matter of memory, whether the Senate was then in session ? A. I think it was not, Q. State whether Mr. Cooper qualified and went into office under that first commission. A. He did not qualify under the first commission at all. Q. What is the paper I now send you ? [Handing a paper.] A. It is authority from the President to Edmund Cooper to act as Assistant Secretary of the Treasury. Q. Read it. Mr. EvARTS. Is the other considered as read, the one under which he did not qualify I 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 produced ? 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 aboutit. 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 America, to all who shall sec these presents, greeting : Know ye, that reposing special trust and confidence in the integrity and ability of Edmund Cooper, I do appoint him to be Assistant Secretary of the Treasury, and do authorize and empower him to execute and fulfil the duties of that ofSce 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 Senate of the United States, and no longer, 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 to be hereunto affixed. Given under my hand at the city of Washington, the 20th day of November, in the year of our Lord 1867, and of the independence of the United States of America the ninety- second. [L. s.] ANDREW JOHNSON. By the President : WiLLl.\M H. Seward, Secretary of Stale. Mr. Manager Butler, (to the witness.) Now, will you pass to the Secretary the letter of authority of which you have spoken, and let it be read 1 164 IMPEACHMENT OF THE PRESIDENT. The Secretary read as follows : EXECUTIVK DKPARTMEXT, Washington, December 2, 18(?7. Whereas a vacancy has occurred in the office of Assistant Secrctarj' of the Treasury of the United States, in pursuance of the authority rested in mc by the first section of the act of Cono^ress approved February 13. 1795, entitled "An act to amend the act entitled 'An act making alterations in the Treasury and' "War Departments,'" Edmund Cooper is liereby authorized to perform the duties of Assistant Secretary of the Treasury until a successor be appointed or such vacancy be filled. ANDEEW JOH^^SON. By Mr. Manager Butler : Q. How did Mr. Chandler get out of office ? A. He resigned. Q. Have you a copy of his resignation 1 A. I have not with me. Q. Can you state from memory (if it is not objected to) at what time his resignation took effect 't A. I cannot. I tliink it was a day or two before this appointment or this authority was given to Mr. Cooper. Q. Will you have the kindness to produce a copy of his resignation after you leave the stand ? A. I will try to do so. Cross-examined by Mr. Curti.s : Q. Can you fix the date when the change in the form of permanent appoint- ments of which you have spoken first occurred ? A. I think it was about four days after the passage of the tenure-of-oflice act. Q. With what confidence do you speak ? Do you speak from any recol- lection 1 A. We obtained an opinion from the Solicitor of the Treasury on the sub- ject. It was given on the 6th, and from that day we followed his opinion. Q. Then you would fix the date as the 6th of what month ] A. The 6th of March, 1S67, Hon. Burt Van Horn sworn and examined. By Mr. Manager Butler : Q. 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 ? A. I was. Q. WHien was it ? A. It was on Saturday, the 22d of February, 1868, I believe. Q. About what time in the day ? A. Perhaps a few minutes after 11 o'clock. Q. Who were present ? A. 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 Penn- sylvania; Hon. Columbus Delano, of Ohio; Hon. W. D. Kelloy, of Pennsyl- vania ; Hon. Thomu.s W. Ferry, of ]\Iichigan, and myself. The Secretary of W^ar, Mr. Stanton, and his son were also present. Q. l-*leaHe state what took jtlacc;. A. The gentlemen montioMcd and myself were in the office the Secretaiy of War usually occupies, holding conversation ; General 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. Secre- tary, and good morning, gentlemen;" the Secretary replied, "Good morning," IMPEACHMENT OF THE PRESIDENT. 165 and I believe we all did ; then began this conversation as follows : [Referring to a printed document.] " I am Secretary of War ad interim, and am ordered by the President of the United States to take charge of the office;" Mr. Stanton then replied, "I order you to repair to your room and exercise yonr functions as Adjutant- General of the army ;" ]\[r. Thomas replied to this, " I am Secretary of War ad interim, and I shall not obey^ your orders ; but I shall obey the orders of the President, who has ordered me to take charge of the War Oliice;" Mr. Stanton replied to this as follows : "As Secretary of War, I order you to repair to your place as Adjutant General;" Mr. Thomas replied, "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. Q. What happened then ? A. After that they went to the room of General Schriver, which is just across the hall, opposite the Secretary's room. Q. Who went first ? A. 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 General 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, how- ever, 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 Sec- retary of Wai", and refuse to obey my orders'?" 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 bu.siness of the War Department." That is the substance of the conversation which I heard, and, in fact, the conversation as I heard it entirely. By Mr. Manager Butler : Q. Did you make any memorandum of it afterward ? A. I made it at the time. I had my memorandum in my hand. When the conversation began I had paper and pencil and wrote it down as the conversa- tion 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 gentle- men who heard it. Q. What was done after that ? Where did Thomas go 1 A. 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. Stanbery : Q. Will you please state what was yoiir business in the War Department on that morning '\ A. Well, sir, I went there that morning, I suppose, as other gentlemen did ; at least I went there for the purpose of visiting the Secretary. I had no special public business. Q. Was there no object in the visit, except merely to see him ? A. Yes, sir; I iiadan 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. Q. Public affairs generally ? A. No, not public business particularly. Q. What public affairs were the object of the conference ? 166 IMPEACHMENT OF THE PRESIDENT. A. Well, sir, the matter of the removal of Mr. Stanton. I felt an interest in that matter, and of course was talking with him upon that subject. Q. Did you go with these other gentlemen whom you found there, or did you go there alone ? A. I think I did go in company with one or two of them. Q. With whom did you go in company ? A. I think I went with Mr. Clarke, of Xew York, and G-eneral Van Wyck. I am not certain that any others were with me. Q. When you arrived at his room what was the hour ? A. It was a little before eleven o'clock. Q. Whom did you find there when you arrived — these other gentlemen whom you have mentioned? A. Not all of them. Q. Who wei*e there when you arrived 1 A. 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. Q. Do you know what their business was in the office that morning ? A. No, sir. Q. Did they state any business 1 A. No, sir ; they stated no business to me. Q, All being there, the next thing was that General Thomas came into the room ? A. After we had been there some moments. Q. You say that when that conversation began between General Thomas and the Secretary you were ready to take notes? A. I appeared to be ready. I had a large white envelope in my pocket, and I bad a pencil also in my pocket ; and when the conversation began it seemed to me that it might be well to note what was said. Q. Are you m the habit, generally, in conversations of that kind, of making memoranda of what is said '( A. I do not know that I am, unless I deem it important to do so. Q. Did any one request you to take memoranda ? A. No, sir. Q. It was on your own inotion ? A. On my own responsibility, supposing I had a perfect right to do so. Q. Undoubtedly. After the conversation was ended in the room with the Secretary, General Thomas, as I understand you, went out first? A. I think he did ; he went across the hall. Q. Who went with the Secretary from his room across the hall to where General Thomas had gone ? A. I am not aware that any one went directly with him, but immediately after him, if not with him, General Moorhead and Mr. Ferry. Q. How long after General Thomas had left the office was it that the Secre- tary of War followed him ? A. But a moment or two ; perhaps two minutes. Q. Did he state, when he left, Avhat was his object 1 A. I do not recollect that the Secretary stated anything. General Thomas was in the room talking. Q. Did he re([uest any gentleman to go along with him ? A. Not that 1 am aware of. Q. Did you go upon your own motion or by agreement ? A. I went upon my own motion. Q. All that were there did not go ? A. 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. Q. How long after the Secretary went did you go ? IMPEACHMENT OF THE PRESIDENT. 167 A. Perhaps it was a minute ; it was very soon. I followed the other two gentlemen very soon. Q. What had taken place between the Secretary and General Thomas before you arrived in the room, or had anything ? A. I cannot say ; they had some conversation ; I cannot say what was said. Q. As you have given the conversation in your notes, it would seem as if it then began after you first got in 1 A. The conversation I have given began after I got in. As I said before, I beard some talking, but I do not know what was said. Q. You mean yon heard some talking belore you got in there ? A. Certainly. Q. Whose voices ? A, I heard General Thomas's voice and Mr. Stanton's voice. They had some conversation. Q. But what that was you do not know ? A. I do not. Q. Then the conversatioli followed which you have detailed 1 A. Certainly. The first I heard when I went in was the question of Mr. Stanton, which I have staled, and the answer of General Thomas. Q. Did you keep your notes with you and take your notes into that room ? A. I had my envelope in my hand when I went in. Q. And your pencil ? A. And ray pencil. Q. Where is that envelope which you had at that time ? A. I cannot say. I presume it was destroyed. The envelope was a large, long, white envelope that I put in my pocket with letters. It was the only con- venient thing I had at the time. I wrote on both sides of it, and then drew it off immediately on the Secretary's table. Q. What did you do with that original memorandum — the envelope ? A. I presume it is torn up and destroyed; I do not know anything to the contrary. Q. When did you destroy it ? A. That I cannot say ; perhaps very soon after the conversation took place. Q. Why did you destroy itl A. I cannot say that it is destroyed ; but I have no knowledge of it now. I cannot sq,y 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 written the thing off, or, rather, a yonng 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. Q. Is the document from which you have read here to-day a manuscript ? A. No, sir ; it is my testimony before the committee, which is an exact copy of the notes I took. Q. And those notes were written by some young man who was present 1 A. At my suggestion he took the pen, and 1 read to him, and then compared it word for word. Q. Where are those notes? A. I do not know where they can be found. I did not suppose it important to keep the notes, because I had a copy of the notes before the committee and testified to it exactly. Q. A copy of what notes do you mean ] A. I had the notes I took there. Q. You mean the notes written by that young man? A. Yes, sir; I had them there. Q. What is his name? Who M'as he? A. One of the clerks there. I do not recollect what the young man's name 168 IMPEACHMENT OF THE PRESIDENT. was. I Jo not know that I ever knew his name. I did not ask bis name. I would know him if I saw him. Q. You preserved those notes until you testified ? A. Yes, sir. Q. How long after you testified did you preserve them? A. I cannot say that I kept them any length of time after that. I thought it was of no consequence. Q. How you disposed of the envelope, or how you disposed of those notes, you have no recollection ? A. No, sir, I cannot say what became of the envelope ; it may be in my papers somewhere. Q. Have you made any search for them? A. No, sir; my attention has not been called to that before, Q. 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 ? A. It was upon my own motion. Q. Did you ask for a clerk? A. 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. Q. Then you proposed to have them copied? A. I proposed to havethem 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. Q. Now, did anything else take place in General Schriver's room besides this talk that you have testified to ? A. Not that I am aware of; only, as I have said, I heard some voices in there ; but what was said I cannot say. Q. After you went in, while you were there ? A. 1 think there was no conversation. Q. I did not ask you siuiply for conversation, but what else took place ? A. Nothing took place that I am aware of. Q. Who first left the room ? A. After this conversation ? . • Q. Yes, sir. A. I cannot say wliether I left it first or General Moorhead or Mr. Ferry. We were all there. T think we went out in a moment afterward. Q. Did you leave Mr. Stanton there ? A. Mr, Stanton was there when I went out. Q. Did you go into his room from there ? A. I did, sir. Q. Did you leave 'J'homas there also ? A. Yes, sir. Q. How long did ^[r. Stanton remain in Schriver's room ? A. I cannot say, because as soon as I had tiiis copied I left for the House. Q. Do you mean to say that he did not come iu while you were engaged in having the copy taken ? A. At the moment of making the copy ? I will not say that he camein 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. Q. Do you recollect whether you saw him at all in his office after you had left Schriver's room ? A. I cannot swear positively that I did. I saw him after I left the room. TJie doors were open. There are but a few feet from one room to the other. I IMPEACHMENT OF THE PRESIDENT. 169 saw him sitting in General Scliriver's room. I will not swear positively that I saw him in his own office after I left that room. Q. What took place between them afterward you do not know ? A. No, sir; I do not know, because 1 left. Q. 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 1 A. 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. Q. Was the memorandum that you made on that envelope complete or abbre- viated ? A. The questions and answei-s as I have them were complete Q. Was the copy, then, an exact transcript of the memorandum? A. It was merely questions and answers. The questions were short and the answers were short. Q. Did it exhibit the whole conversation ? A. I cannot say. I will not say that it did every word. I think it did not. I recollect 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. Q. All I want to know is, whether it completely covered the conversation ] A. It covered all the conversation of any importance. Q. That you thought important? A. At least what I wrote. I wrote down just as the questions were given and answered. I took all the conversation in substance, and all of any account as it was had, as the questions and answers were given. Q. This conversation that you took down in that way, did you take it down in short hand ? A. No, sir ; I did not. • • Q. You wrote it out? A. I wrote it out. Q. Without abbreviation ? A. Without abbreviation. Q. Were there pauses in their conversation ? Did they pause to allow you to follow them 1 A. The conversation, as I said before, was very slow and deliberate. There was sufficient time for me to write these questions and answers, as they were short, as counsel can see. General Thomas said but very little. Q. Now, I will ask you if, in that conversation, Mr. Stantun asked him if he wished him to vacate immediately, or would give him time to arrange his private papers ? A. Mr. Stanton? Q. 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 1 A. There was nothing said in that conversation 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 papers did not come up in that conversation at all. Re-examined by Mr. Manager Butler: Q. 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 coun- sel for the President ; what was that remark ? 170 IMPEACHMENT OF THE PRESIDENT. A. I said that in answer to his question whether I had sworn to all that he did say. I recollect now General Thomas saying he did not wish any " owpleas- antness." I did not think it necessary to put that in my record. Q. Did he emphasize it in that "owpleasantness?" A. 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 M-ere said now and then that did not amount to any thin"-. Q. 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 tice 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 IMPEACHMENT OF THE PRESIDENT. 177 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 possibly upon a question of equal division, gives a decision on a question of law, it may be of the first importance — which, if made, jireclndes the House of Representatives from asking even that the Senate, who are the triers, shall pass upon it. There- fore if this is to b(; 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. ]\Ianager, 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. 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 1 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 question ? Sorry I am to be obliged to deny the position taken by the presiding officer of the Senate, that the pre- cedents in this country and England are with him. I understand that this question, as a question of precedents in England, has been settled many, many years, hi;ndreds of years. Not expecting that it would arise here, 1 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 Straffiird, by which the Commons were bound to address the lord high steward as his grace or " my lord," precisely as the counsel for the respondent seem to think themselves obhged to address the presiding officer of this body as "Mr. Chief Justice." When the preliminaries of the trial of Straffiird and the other popish lords were settled, the Commons objected that, as a part of the Parliament of Great Britain, they ought not to be called upon through their managers to address any indi- vidual whatever, and that their address should be made to the Lords in Parlia- ment. A committee of conference between the Commons and Peers was there- upon had, and the rule previously adopted in the House of Lords was, after Vnuch consideration, rescinded, and a rule was reported and adopted in that trial, and it has obtained ever since in all other trials. The result of the conference is stated in this way : On tlie 29th of November, 1680, it is agreed at the joint committee, upon the objection made by the Comnion.s to one of the rules laid down by the Lords, viz : That when the Commons should ask any questions at the frial they should apply themselves to the lord steward, that the managers should speak to the Lords as a House, and say "my lords." 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, IGSO, order — That the Lord Strafford shall be directed to apply himself to the Lords, and not to the lord high steward, as often as he shall have occasion to speak at his trial. And from that day to the latest trial in Parliament, which is the Earl of Cardigan case, in 1841, the rule has been followed. Earl Cardigan being tried in the House of Lords, Lord Chief Justice Denman 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 recognition of any superior right in the presiding officer over any other member of the assembly. • 12 I p 178 IMPEACHMENT OF THE PRESIDENT. Nor need I, upon tlii.s matter of precedents, stop here. In more than these cases this question has arisen. In Lord Macclesfiehl's case, in 1724, if I remem- ber aright, the point arose whether the presiding officer shouhl decide an inci- dental question upon the trial ; but in every case Lord Chief Justict; King referred all questions 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 to forms, and with the utmost preservation of decency and order of the proceedings, the question was put to him whether he ruled points of law, and he expressly dis- claimed 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 Parliament, 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 ques- tion of evidence arose as to whether a card on which the name of Harvey Gar- nett 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 Denman, instead of deciding the question, submitted it to the lords, as follows : The iuconveuience of clearing tLe house is so great that I should rather venture to pro- pose that the decisiou 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 evi- dence. 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 in 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, the present were an ordinary case, tried before one of the inferior courts, and the same objection had been taken in this sta<^e to the proof of identitj', tlu; judp:e would consult liis notes and exjilain how far he thought the objection well founded, and I appre- hend that the jury would at once return a verdict of acquittal. Your lordships sitting in this high court of parliauieut vuiite the functions of both. I have stated my own views, as an individual member of the court, of the questiou by you to be considered, discussed, and decided. Though I have commenced the debate, it cannot be necessary for me to disclaim the purpose of dictating my own opinion, which is respect- fully laid before you with the hope of eliciting those of the house at large. If any other duty is cast ui)0n me, or if there is any more convenient course to be pursued, I sliall be greatly indebted to any of your lordships \vho will ht) so kind as to instruct me in it. In tiie absence of any otiier suggestion, I ventiue to declare my own judgment, grounded on the reasons briefly submitted, that the Earl of Cardigan is entitled 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 j)riii- ciple, we are bound to object to this claim of power on the part of the Chief Justice. I say again that it is not a mere questiou of form, for all mere forms we would waive, but it is a question of substance. It is a question whether tlie House of Representatives can bring, by their own motion, to the Senate a ques- tion 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 impor- tance, upon which, for the benefit of the; people for all time hereafter, if it did not make any dilference in this case, 1 would not yield one hair, because no jot or tittle of the; rights of the ])eople or of the Houso ul' Ivepresentatives, so far as I understand them, shall ever full to the ground by any iuatteuliou or inadver- tence or yielding of mine. IMPEACHMENT OP THE PRESIDENT. 179 Allow me to state again the proposition declared 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 proposes 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 managers, 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 may be ; for, as 1 respectfully bring to your attention, it is a question of most momentous consequence, although not so great, not of so much consequence 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 his- tory 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 every- thing is quiet, 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 Jef- fries's conduct on an exactly similar question, when he was held bound by the precedents of the House of Lords. In the trial of Lord Delamere, 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 on the mercy of the King, your master; 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 V Jeffries, quailing before the indignant eye of the man whose rights he was interfering with, said : " No, I am not one of your judges ; I only advise you as a friend." I desire the precedent fixed now in good times 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 presidential chair ; and we cannot tell who may get into the chair of the Chief Justice in the far future ; but, if we ever do get a Jeffries in that chair, I want the precedent upon this point so settled now that it cannot be in any way disturbed, 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 honorable manager put a question 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, sub- ject to having the question put upon the requisition of any senator to the Senate. Are you ready for the question ? Mr. Grlmes. 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 question 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. CoNKLiiNG. 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 testimony be competent or not, or whether the presiding officer be competent to decide that question or not 1 180 IMPEACHMENT OF THE PRESIDENT. The Chief Justice. It is tlie last question, whetlier the Chair iu 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. CoNKLL\G. 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 : YII. The presiding officer of the Senate shall direct all necessary preparations in the Senate chamber, and the presiding officer npou 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. 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-lifth of the members present, be decided by yeas and nays. Mr. Manager Bingham. Mr. President, after con.«iiltation 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 an}- 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 mem- bers present, be decided by yeas and nays." "We respectfully submit to the Senate, with all respect to the presiding officer, that this 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 MMthout a division, and there it ends. I beg leave further to say to the senators, in connection with what has fallen already from my associate, that I look upon this question now involved iu the decision of the presiding officer as settled by the terms of the Constitution itself. The Constitution of the United States, as the senators will remember, provides that the Senate has the sole power to try all impeachments. The expression, "the sole power," as the Senate will doubtless agree, necessarily means the only power. It includes everything pertaining to the trial. Every judgiuiMit that must be made is a part of the trial, whether it be upon a preliminary question or a final question. It seems to me tliat the words were incorporated in the Constitution touching this procedure in impeachment in the very light of the long-continued 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' Journals 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 presiding is but a ministerial officer to keep order; to present for the decision of the peers the various ques- tions as they arise; to take their judgment upon them; and there his authority stops. And til is doctrine is considered so well settled, I may be permitted to say further, (here speaking from recollection of that which 1 have, however, care- fully examined,) that it is carried into the great text-books of the law and finds a place in the fourth Institule 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 I'arliament. As I understand this question as it is presented here, I agree with my asso- IMPEACHMENT OF THE PRESIDENT. 181 date 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 offi- cer 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 preferi'ed 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 poAver to try all questions involved in the case. We stand, then, upon what we believe has been the uniform practice touching this question in England, and we consider that the President 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 chan- cellor 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 officer, himself not being a member of that body which is invested with the sole power to try impeachments, and there- fore to decide all questions in the trial, can himself make a decision, which decision is to stand as the judgment of this tribunal unless reversed by a subsequent action of the Senate. That we understand to be the question that is submitted, and upon which the Senate is about to vote. Mr. Manager Butler. And that the managers cannot raise the question. Mr. Manager Bingham. It is also suggested by my associate that there is also involved in the question the further proposition that the managers, in the event of such decision being made by the presiding officer, cannot call even for a review of that decision by tlie Senate. Mr. Wilson. I move that tlie Senate retire for the purpose of consultation. Several Senators. No, no. Mr. Sherman. Before that is done I desire to submit a question to the man- agers, 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. Sherman, as follows : I ask the managers what are the precedents in the cases of impeachment in the United States upon this point 1 Did the Vice-President, as presiding officer, decide preliminary questions, or did he submit 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 involve 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 testiuiony he would always be guided by that conscien- tious regard for the right for which he is eminently distinguished. 182 IMPEACHMENT OF THE PRESIDENT. But I also foresee that if the managers acting for the House in the case now before the Senate and before the country, and acting, I ma3^ .«ay, in belialf 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 decide, even as prelim- inary 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 should 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 deference I maintain that the language of the Con- stitution, in these words — "When the President of the United States is tried the Chief Justice shall preside" — is conclusive without argument. He presides here not as a member of this body ; for if that were assumed the claim would be in derogation, 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 been maintained by Mr. Manager Butler in the opening argument, all the members of the Senate, all the men chosen under the Consti- tution and representing the several States of tlie Union, whatever may be their qualities, whatever may be their capacities, whatever may be their interests, whatever may be their afiiliation with or to the person accused. 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 ti-ilmnal 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 exer- cising the functions of a senator in legislative and executive affairs, can in any way interfere or control or affect their decision or their judgment in the slightest degree. 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 ultimate judgment 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 denied, or may be admitted, upon the judgment of any person, or by any authority, except upon the judgment and autliority of the tribunal before which we here stand, then a party accused and impeached by the House of Represen- tatives may be 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 T think there can finally be no ditterence of opinion. But, Mr. President, as one of the maiiagers, and without having had an opportunity to consult my associates on the point, and s})eaking, therefore, with delerence to what may bf their judgment, or what might be the judgment of the House, I shall 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 fim 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 ques- IMPEACHMENT OF THE PRESIDENT. 183 tions incidental of law and evidence as they arise, unless some member of the Senate, or the managers, 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, wliich is reported in the twenty-ninth volume of the State Trials, Lord Chancellor Erskine evidently acted upon this idea. Upon a question of the admissibility 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 further consideration in the 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 of the Chair with refer- ence 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 circumstances 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 wliich I have made touching this question from the author- ities 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 Com- mons of England upon the Lords' Journals: RELATION OF JUDO'ES, ETC., TO THE COURT OF PARLIAMENT. Upon examining into the course of proceeding in the House of Lords, and into the relation which exists 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 the other, it appears to your committee that these judges and other persons learned in the common and civil laws are no integrant and necessary 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 deliberate 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 to questions put to them are not to be regarded as declaratory of the law of Parliament, but as merely consultory responses, in order to furnish 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 circumstances of the case before them, and not otherwise. (8 Burke p. 42 ; report on the Lords' Journal ; trial of Warren Hastings.) In the volume of Burke here quoted the report 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 peere in the high court of Parliament, the peers are not triers or jurors only, but by the ancient laws and constitution of this kingdom 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 themselves into the situation of mere triers or jurors, they may suffer the evidence in the cause to be produced or not pro- duced before them, according to the discretion of the judges of the inferior courts. {S Burke, p. 42 ; Eeport on the Lords' Journals ; Trial of Warren 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 concerning the peers of the realm, &c., ought to be determined, adjudged, and dis- cussed by the course of the Parliament, and not by the civil law, and yet by the common law of t^iis realm used by the more inferior courts ; for this reason the judges ought not to give any opinion in a matter of Parliament. (Fourth Institute, p. 15.) 184 IMPEACHMENT OF THE PRESIDENT. Mr. Manager Butlek. 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 sbaU require it shall bo committed to writing, and read at the Secre- tary'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 liere interrupted Mr. Hay, and said : "The witness may refer to anything done by himself at the time the occurrence happened which he relates. 13ut 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 my- self, perhaps the 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 place at the time. The President. Have you the parts made by yourself separate ? Mr. Hay said he had not. The President 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, itpon the question whether ]\Ir. Hay should refresh his memory on the stand by notes which were not made by himself, which was certainly an inci- dental question of law, the President, instead of undertaking to decide it in Chase's case, directly put the question to the court and had it decided in 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 observation in I'eference to a position or an argument pressed by one of the hon- orable managers to aid the judgment of the Senate upon the question submit- ted to it. That question we understand to be whether, according to the rules of this body, the Chief Justice presiding shall determine, preliminarily, inter- locutory questions of evidence and of law as they arise, subject to the decision of the Senate upon presentation by any senator of the question to thf;m. The honorable manager, Mr. Boutwell, recognizing the great inconvenience that would arise in the retarding of the trial from this appeal to so numerous a body upon every interlocutory question, while he insists upon the magnitude and importance of the right determination, 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 decision 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 matter of right and as a matter of course that that proceeding shall be had. Mr. Manager BouTWELL. That is conceded, Mr. President. AVc do not debate tliat 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. Camero.x. I hope we shall not retire. Several Senators. Debate is out of order. The Chief Justice. The senator is out of order. Mr. Cameron. Well, I only say that IMPEACHMENT OF THE PRESIDENT. 185 The question being taken by yeas and nays, resulted — yeas 25, nays 25 ; as follows : Yeas — Messrs. Authony, Buckalew, Cole, Conncss, Corbett, Davis, Dixon, Edmnnds, Fowler, Grimes, Hendricks, Howe, Johnson, MeCreery, Morrill of Maine, Morrill of Ver- mont, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ross, Vickers, Williams, and Wilson — '^5. Nays — Messrs. Cameron, Cattell, Chandler, Conkling, Cragin, Doolittle, Drake, Ferry, Fessenden, Frelinghuysen, Henderson, Howard, Morgan, Nye, Ramsey, Saulsbury, Sher- man, Spra^'ue, Stewart, Sumner, Thayer, Tipton, 'J'riimbuU, 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 confer- ence. The Senate, with the Chief Justice, thereupon (at seven minutes before 3 o'clock) retired to their conference I'oom 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 amend- ment thereto. Mr. CoNNfiss 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, Cameron, Cattell, Cole, Corbett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Henderson, Hen- dricks, Johnson, MeCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Pat- terson of Tennessee, Pomeroy, Ross, Saulsbury, Sprague, Trumbull, Van Winkle, Vickers, Willey, and Williams— 3-2. Nays. — Messrs. Chandler, Conkling, Conness, Drake, Ferry, Howard, Howe, Morgan, Momll 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 seven 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 of the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying au impeachment, and all forms during the trial not otherwise specially provided for. And the presiding officer of 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. 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. Su.MxXBR moved, to amend the resolution by striking out all after the word " Resolved," and inserting : That the Chief Justice of the United States, presiding 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 resulted — yeas 22, nays 26 ; as follows : Yeas — Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, 186 IMPEACHMENT OF THE PRESIDENT. Howard, Morpan, Monill of Maine, Morton, Nje, Pomcroy, Eamsey, Stewart, Sumner, Thayer, Tiptou, Trumbull, Williams, and Wilson — 2*2. Nays — Messrs. Bayard, Buckalew, Cole, Davis, Dixon. Doolittle, Edmunds, Ferry, Fes- senden. Fowler, Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennessee, Koss, Sherman, Sprague, Van Winkle, Vickers, and Willey — 2G. Not voting — Messrs. Anthony, Grimes, Harlan, Saulsbury, "Wade, and Yates — 6. So the amendment of Mi*. Sumner was rejected. Mr. Drake moved to amend the resolution 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 Senate in the pending trial has no privilege of ruling 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, Eamsey, Stewart, Sumner, Thayer, Tipton, and Wilson — 20. Nays — Messrs. Anthony, Bayard, Buckalew, Corbett, Cragin, Davis, Dixon, Doolittle, Edmiuids, Fesseuden, Fowler, Freliughuysen, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshi re, Patterson of Tennessee, Pome- roy, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, Willey, and Williams— 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, resulted in — yeas 31, nays 19; as follows : Yeas — Messrs. Anthony, Bayard, Buckalew, Cameron, Corbett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Freliughuysen, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennes- see, Pomeroy, Eoss, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, Willey, and Williams — 31. Nays — Messrs. Cattell, Chandler, Cole, Conkling, Conness, Drake, Ferry, Howard, Howe, Morgan, Morrill of Maine, Morton, Nye, Ramsey, Stewart, Sumner, Thayer, Tiptou, and Wilson — 19. Not voting — Messrs. Grimes, Harlan, Wade, and Yates — 4. So the resolution submitted by Mr. Henderson was agreed to. Mr. Sumner submitted the following resolution: Eesolved, That the Chief Justice of the United States presiding 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. Mr. Hendricks objected to the reception 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 ; Avliich motion was agreed to. The Senate returned to its chamber at eighteen minutes past 6 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, roads: The presiding ofiicer of the Senate shall direct all necessary preparations in the Senate chamber, and the presiding officer of tlie tiial shall direct all the toriiis of ])roceeding while the Senate are sitting for the piu-jiosc of trying an impeaclmicut, and all lornis during the trial not otherwise specially jjrovided for. And the j)resi(ling otlicer of the trial may rule all questions of evidence and Incidental (piestions, wiiich 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 ftir decision, or he may, at his option, iu the first instance submit any such question to a vote of the members of the Senate. IMPEACHMENT OF THE PRESIDENT. _ 187 The Chief Justice. Gentlemen, managers on tlie part of the House of Rep- resentatives, you will please state your question. Mr. Manager Butleu. 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 12 o'clock to-morrow. Mr. Ferry and others. The rules fix 12 o'clock. Mr. Trumbull. Very well; until 12 o'clock. If the managers desire to suhmit any particular action at this moment I will withdraw 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 impeachment, adjourn. Mr. Manager Butler. We have nothing to oppose to the motion. The Chief Justice. Have the counsel for the President anything to propose 1 Messrs. Stanbery and Evarts indicated that they had not. The Chief Justice. It is moved that the Senate, sitting as a court of impeach- ment, adjourn until to-morrow at 12 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 12 o'clock. Wednesday, April 1, 1S6S. The Chief Justice of the United States entered the Senate chamber at five minutes past 12 o'clock and took the chair. The usual proclamation having been made by the Sergeaut-at-arms, The managers of the impeachment on the part of the House of Representa- tives appeared and took the seats assigned them. The counsel for the respondent also appeared and took their seats. The presence of the House of Representatives was next announced, and the members of the House, as in Committee of the Whole, with Mr. E. B. Wash- burne, the chairman of the committee, accompanied by the Speaker and Clerk, and they 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 proceedings 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 I'residont, gave a casting vote, it is hereby declared that, in the judgment of the Senate, such vote was without authority under the 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, Conkling, Connoss, Cragin, Drake, Howard, Howe, Morgan, Morrill of Maine, Morton, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams, and Wilson— 21. 188 IMPEACHMENT OF THE PRESIDENT. Nats — Messrs. Anthony, Bayard, Biickalew, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelincrbuysen, Grimes, Henderson, Hendricks. Johnson, McCreery, Morrill of Vermont, Norton. Patterson of New Hampshire, Patterson of Tennessee, Koss, Sherman, Sprague, Van Winkle, Vickers, and Willey — 27. Not Voting— Messrs. Cattell, Harlan, Nye, Saulsbury, Wade, and Yates— 6. So tlio proposed order was rejected. The Chief Justice. Senators, during the proceedings yesterday a question was submitted 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 question 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 said yesterday, in answer to my question, that you bad a conversation with Gen- eral Lorenzo Thomas on the evening of the '21 st of February last. State if he said anything as to the means by wliich 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.'" Mr. Staxbery. 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. FrelinghuysenJ to the managers. The Secretary read as follows : Do the managers intend to connect the conversation between the witness and General Thomas with the respondent ? The Chief Justice. Are the managers prepared to reply to the question? Mr. Manager Butler. Mr. President, if the point is to be argued, with the leave of the Senate we will endeavor to answer that question in the argument. The Chief Justice. It is to be argued. The manager will proceed, if he desires. Mr. Stanbery. We do not hear the answer. 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 road 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 i)ropose to answer the question of the senator from New Jersey? Mr. Manager Butlkr. If there is to be no argument, Mr. I'rosident, I will answer the question proposed. If there is to be an argument on the part of the counsel for the President, 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 respond- ent with til is testimony. The Chief Justice. Senators IMPEACHMENT OF THE PRESIDENT. 189 Mr. Stanbery. Is it in order now, Mr. Cliief Justice, for us to argue the question 1 The Chi KF Justice. If the counsel desire to submit any observations to the Senate, they may do so. Mr. Stanbkry. Mr. Chief Justice and senators, we have at length reached the domain of law ; we ai-e 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, Avhy the declarations of General Thomas should be used in evidence against the President. General Thomas is not on trial ; it is the President, the President alone, and the testi- mony to be offered must be testimony that is binding upon him or admissible against him. It is agreed that the President was not present on the evening of the 21st of February, when General Thomas made these declarations. They were made in his absence. He had no opportunity of hearing them or contradicting them. If they are to be used against him, it is because they were uttered by some one speaking for him, wbo was authorized by him to make these declarations of his intentions and his purposes. Now, first of all, what foundation is laid why the declarations of General Thomas as to what he intended to do, or what the President bad authorized him to do, should be given in evidence against the President ? It will be seen that by the first article the offence charged against the President is, that he issued a certain order to Mr. Stanton for his removal ; ordering 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 offence 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 offence charged. So much for the first article. What is the second? That on the same day, the ^Ist of 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 offence 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 offence charged is issuing certain orders, nothing beyond, as in violation either of the Constitution or of the act called the tenuie-of-ofiice act. But by the fourth article the managers pro- ceed to charge us with an entirely new offence against a totally different statute, and that is a conspiracy between General Thomas and the President, and other persons imknown, 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 conspiracy 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 offences are charged against the President, arising out of his declarations to General Emory, the speeches made, one at the Executive Mansion in August, 1866, another" at Cleveland on the 3d day of September, 1866, and another at St. Louis on the Sth 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 production 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 190 IMPEACHMENr OF THE PRESIDENT. before or after lie gave those orders, or at tlie time lie gave those orders — not one word. The only foundation now laid for the introduction of this testimony is the production of the orders themselves. The attempt made here is, by the declarations of General Tliomas, to show with what intent the President issued those orders; not by producing him here to testify what the President told him, but, without having him sworn at all, to bind the President by his decla- rations not made under oath ; made without the possibility of cross-examination or contradiction by the President himself; made as though they are made by the authority of the President. Now, senators, wiiat 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, what are 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 himself. He says to Mr. Stanton, by his order of Pebruary 21, 1SG8 : 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 Depart- ment 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, papers, and other public property now in your custody and charge. So much for that. Then the order to General Thomas for the same day is : Sir : 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 ad interim, and wiUiuunediately 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 property now in his custody and charge. Kespecfefully, yours, ANDREW JOHNSON. To Brevet Major General LoREXZO Thomas, Adjutant General United States Army, Washington, D. C. There they are; they speak for tliemselves; 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 1 Is that proof of a conspiracy or tending to have a con- spiracy ? Does that make General Thomas an agent of the President in such a sense as that tlie President is to be bound by everything he says and every- thing he does, even, within the scope of his agency ? If it makes him his agent, does tliis letter of authority, this written authority, authorize him to do anything but that which he is commanded to do — go there and demand possession, go there and receiv^^ a transfer from the person 1 Does it authori/.e him to use force? Does it authorize him to go beyond tho letter and the meaning of the authority which is given him? Not at all. Now, in the iirst phiee, it must be either on the footing of a conspiracy between General Tiiomas and the President or \\\)m\ tlie 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 co-conspirator or as agent of a principal, acting within his authority, are to be admitted in evidence. I do not know any otlier ground upon which the learned managers can place 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 cou- IMPEACHMENT OF THE PRESIDENT. 191 epirators, mcade while the conspiracy is in process, made, too, in furtherance 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, may be admitted. I concede" that, mider these circumstances, the declaration of any one conspirator binds all his fellows, although, made in their absence. So, too, I agree, senators, that when an agency is established, either by pand proof or by writing — and when establi.«hed 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, imder certain circumstanced, the declarations of the agent, made in performance of that authority, not outside of it, but in performance of it, bind the principal. Now, 1 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 and the President, in which the President was principal and General Thomas the agent, save this letter of authority 1 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 tlie President; but if he were, if this were a case strictly of princi{)al and agent, then I say this letter of authority gives no authority to General 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 U'^e force, intimidation, and threats. Does the authority authorize anything of that sort, even if it were a case of principal 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 manuforti to commit an assault and battery upon the tenant, to drive him out vi et arm'is, or even scarcely to use the molUter manus 1 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 force will be used? Which of us would ever be safe in giving any authority to an a^ent if we are to be submitted to consequences like these % But, senators, this is not a question of principal and agent. What, I pray you, has the President done that he is held to be a conspirator or as a principal giving unlawful authority to an agent ? Does the President appoint General Thomas his agent in any individu;d capacity 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 a public office. Is the per- son thus appointed by the President his agent % When he accepts his appoint- ment 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 piivate duty] Certainly not. He at once becomes an officer of the law, with liabili- ties himself as a public officer, liable to removal, liable to impeachment, 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, 192 IMPEACHMENT OF THE PRESIDENT. either a permanent one or a temporary one, "to fill a vacancy or to fill au office during a disability, are the persons so designated and appointed his agents, and is he bound by everything they do 1 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 authority, does he become liable 1 Not at all. If third persons are injured by them in the exercise of the power which he has given, may those third persons go back upon the President as the responsible party under the principle respondeat superior ? There is no idea of principal and agent here ; it is the case of one public 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 principal, 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 appointed bim. Senators, it seems to us that these conclusions are inevitable. I shall scarcely trouble this honorable court, made up so largely of lawyers of the greatest emi- nence, with the citation of authorities upon a point so clear as this. I under- stand 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 manager say that he has heretofore done it? Mr. Manager Butler. I only say now that I did not say "hereafter." Mr. Stanbeky. You expect to do it, not that you have done it? I do not want to criticise the language of the gentlem.an nor to have mine criticised. What I ixnderstand the gentleman to say, in answer to a questii)n put by a sen- ator, 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 another. It was to meet the objection that as yet you have laid no foundation that the question was put to the learned manager " do you expect to lay a foundation ;" and the answer was in the affirmative. Drawn out after one or two repetitions of the question, the honorable manager tells us they expect to lay the foundation. Is that enough for the introduction of evidence which prima 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 necessity 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 extreme 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 inad- missible under the assurance that a foundation is hereafter to be laid. What prevents the gentleman from laying that foundation? What prevents them from showing a conspiracy in the first place ? Wbat prevents tlicni from showing instructions outside of this letter of authority to use force, intimidation, or threats ? What reason is there ? None whatever is stated. Is it a matter merely at the option of counsel in the introduction of testimony to begin at the wrong end, to introduce what is clearly inadniis>'ible 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 ? AVas 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 hereafter a propijr 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 IMPEACHMENT OF THE PRESIDENT. 193 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 undoubted rule. Mr. STA\nER\. I think, l\rr. Chief Justice, I will allow this question to stand without the production of authorities. Mr. ^lanager BuTLKR. Mr. Piesident and Senators, the gravity of the ques- tion presented, being more than the mere decision of a given interrogatory, has induced the President's colmsel to argue it at length, they seeing that largely upon this question and the testimony adduced under it npon one of the articles of this impeachment the fate of their client may depend. It is a grave ques- tion, 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 in 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 offence — that the learned counsel for the President has entirely ignored that status. I take for the evidence of it the propositions put forward in the answer of the President, the papers that have been already adduced, and the testimony, so far as we have gone. It appears, then, that on or about the 12th day of Auguet 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 ques- tion, 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 act of Con- gress valid and not to be infringed by any executive officer whatever ? Because, if it is a law, then the President admits that he undertook to remove Mr. Stan- ton 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 "yon 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, Ave must take another thing which appears in this case beyond all pos- sibility of cavil, and that is, that the President knew at that time that Mr. Stan- ton 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 Pi-esident authorized 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 Slates to take possession of that office, because it" the General of the army thought that the order was legal, he, obeying the orders of his superi ir, 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 President was notified 13 I P 194 IMPEACHMENT OF THE PRESIDENT. that Mr. Stanton only yielded bis office at first to i^uperior force ; and so he did wisely and patriotically, becaxiscif 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 " onpleasantuess" between loyal and rebel men. The President knew that Mr. Stanton at first said, " I will oiil)'- yield this office to superjor force." Then Mr. Stanton having thus yielded it, the General of the army took possession, and on the action of the Senate the General vacated it in obedience to the high behest of the 8»[?nate, 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 believe, sena- tors, 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 every- thing but force "? The President had been notified that Stanton yielded only to the General of the army ; wielding 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 the United States issued 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 unlawful act ; and that, I believe, is the definition of a conspiracy all over the Avorld. Let me restate this. You have the determination on the part of the Presi- dent 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 far as I understand the law of conspiracy. So that upon that conspiracy we should rest tliis evidence under article seven, which alleges that — Andrew Johnson » * # * ,jij unlawfully conspire with one Lorenzo Thomas, with intent unlawfully to seize, take, 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 intent. 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 moments. The President claims by his answer here that every Secretary, every Attorney General, every executive officer of this "•overnment exists by his will, upon his breath only ; that they are all his servants only, and are responsible 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 for such cause as he chooses ; and he claims this right to bo illimitable and uncontrollable, and he says in his message to you of December 12, 18G7, that if any one of his Secretaries had said to him that he would not agree with him upon the unconstitutionality 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 l It is that he — Shall perform and execute such duties us shall from time to time bo enjoined on or inUusted to him by the President of the United States agreeably to the Constit^ition— IMPEACHMENT OF THE PRESIDENT. 195 Intrusted to him agreeably to the Constitution — Relative to military commissions, or to the land or naval forces, ships, or warlike stores of the United States, or such other matters respecting^ military or naval affairs as the Presi- dent of the United States shall assign to the said department, * » * * j^u^ that the said principal officer shall conduct the business of the said department in such man- ner 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 anything that pertains to the War Office, and he stands, then, as the agent of the principal — to do what 1 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 together in the pursuit of one common object, the President want- ing Thomas to get in, and Thomas wanting to get in, and both agreeing and concerting means together to get in, the question is whethei', under every rule of law, we are not permitted to show the acts and declarations, however naked these declarations may be, of either of these two parties about the common object 1 And the very question presupposes that we are only to ask the declar- ations of Thomas about the common object. But the case 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 Moorhead has already told you that Mr. Burleigh was a friend of the President. There needed somebody to aid in this enter- prise ; 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 Representatives 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 testimony 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 having 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 1 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 arguments of the learned counsel for the President, Thomas was npt upon oath; he was acting in the President's absence. Why should we put in the act of Congress there yester- day ? It was because he was doing in relation to the thing itself. Mr. Stanberv. 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 show the 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 Th«mas. On the trial of one conspirator call the other to show the conspiracy ! Was that ever done in any court upon any question whatever, except 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. 196 IMPEACHMENT OF THE PRESIDENT. These, then, are the fomulations on v/hich we btand. Now, wliat arc the authorities for receiving these declarations? I hold in my hand Roscoc's Crim- inal Evidence, and I propose 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 : The rule, t^ays Mr. Starkie, that oni! mau is not to he aft'ecteJ by the acts and declaraiions of a stranger, rests on the princijiles of the purest justice — "Acts and declarations of a stranger," yon will observe, and althoiifjh the courts, in cases of conspiracy, have, out of convenience, and on account of the difficulty 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 convenience, and that such evidence is, in the result, material so far only as the assent of the accused to what has been done by otliers is proved. (2 Stark. Ev., 235, second edition.) It lias since 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 difiercnt per- sons, and thus prove the conspiracy. And we have attempted to prove the conspiracy in the same way. Again, the authority says : Where, therefore, a party met, which was joined by the prisoner the next day, it was held, that directions 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 liex vs. Hunt, 3 13., and Aid., 5G6, where evidence of drilling at a different place two days before, avd hissing an obnoxious person, was held receivable. The answer of the learned counsel to the authority Vv-ould 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 purpose, 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 the existence of a conspiracy is established, and the particular defendants have been proved to have been parties to it, the acts or declarations of other con- spirators may be given in evidence against them, have already been considered (vide ante, pp. 76-80.) It seems to make no ditference as to the admissibility of this evidence, whether the other conspirators be indicted or not, or tried or not ; for tlie making of them co-defendants would give no additional strength to their declarations as against others. That authority answers the argument of the learned counsel for the defendant when he says Tljomas is not here on trial. No ; but his consjurator 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 agreein(!nt. To show that this doctrine stands upon the same ground, as well in civil cases as in criminal, I refer next to 2 Carrington and Payne, page 232. This was an action of false imprisonment against three certain defendants : The plaintiff's counsel wished to give in evidence, that several weeks after all the defendants had locked the jilaintiff up in the cage, the defendant. Court, said, "I will take care that neither of the Wrights shall have a bed to lie oti before the end of six months.'" At the time tliis was said the other defendants were not present. These threi,' man had engaged in locking a man up in jail, and weeks after- ward 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 bod- ily inconvenience. Jervis, for the defendants, objected tliat this doclaration of the defendant, Court, ought not to be received in evidence, because it was made in the absence of the other defendants. M * * * * t Gakiiow, IJ. — I am of opinion that this declaration of the defendant, Court, is evidence. It is necessary that the plainiiiV should connect all the defendants as joint trespassers in the fact of iiiipris(tnmerit ; and, having done so, I nuist receive in evidence anything that either of the defendants i-aid 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 IMPEACHMENT OF THE PRESIDENT. 197 so, ii man gcoiiipf to do another iin injury uiiglit proclaim his malice in the market-place and jet shut out evidence of sucli malice from the consideration of the jury by only associatiuj^ liimself in tlie transaction with other jiersons a shade less guilty than himself; and persons may always avoid -the declarations of the malice of tiieir co-defendants operatinf^ against them by taking care not to be concerned in the doing of things wiiich they cannot after- v.-ard justify. Is not this case precisely in point with ours, only a linnilred times stronger? But I may be answered that that is an English case. Well, I have here a United St;ites case, the case of the United States vs. Gooding, (12 Wheaton.) I t=hall read from pages 469 and 470. Let me state the case. One Gooding had litted out at Baltimore a slaver 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 Avhat voyage she was going, where she was bound ; the evidence offered being : That he, Captain Coit, was at St. Thounis while the General Winder was at that island in September, 1S24, and was freqnently on board the vessel at that time ; that Captain Hill, the master of the vessel, then and there proposed to the witness to engage on board the Gen- eral Winder as mate for the voyage then in progress, and described the same to be a voyage 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 to Cuba ; that on the witness inquiring who would see the crew paid in the event of a disaster attending the voyage, Captain Hill replied, " Uncle John," meaning (as the witness understood,) John Gooding, the defendant. The defendant being in Baltimoi'e 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 are as much within the scope of the authority as the act of hiring itself. Our opinion of the admissibility of this evidence proceeds upon the ground that these were not the naked declarations of the master, unaccompanied with his acts in that ca))acity, but declarations coupled with proceedings for the objects of the voyage, and while it was in progress. We give no opinion upon the point whether mere declarations, under other circumstances, would have been admissible. Now, let us see the condition of General Thomas. lie had been on the 21st of February ordered to take possession " immediately," at once. He had gone to a friend of his, Mr. Burleigh, and wanted him to aid him in this object. He Avas hiring a mate, if you please, on that voyage, precisely v/ithin 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 93 : The evidence in proof of a conspiracy will generally, trom the nature of the case, be cir- cumstantial. Though the common design is the essence of the chai'go, it is not necessary to prove that the defendants 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 performing one part and 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 President's answer. It is there said to be a high constitutional prerogative to do it ! They had been notified that Stanton would hold it by force, as, thank God, up to this hour, he has held it against these conspirators ; and being notified that he 198 IMPEACHMENT OF THE PRESIDENT. would not deliver it except to force, they then started out to devise ways and means, and we shall show you, and by these very conversations with this very person, Thomas declared 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, upon the trial of this issue, to be told that the President of the Uni- ted 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 pur- suing this thing, while they were getting together means to execute my will." Let me illustrate for a moment. This is only to Burleigh. Suppose Thomas had gone to get the commander of this department. General Emory, 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 1 If he kept asking men enough to go with him he would have had enough, as he thought be had, until the hand of the laAV was laid upon him. Therefore I respectfully answer the (j^ucstiou 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 opera- tions 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 purpose was at that hour. I desire, in closing, simply to call your attention 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 which have been argued before this high court, as he insists upon calling it, have not been fit to be argued either by lawyers or 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 lawyers 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 evidence enlighten you if you hear from this Secretary 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 i)eo pie's case will not be brought before the Senate. If, on the contrary, it will enlighten you, then I respectfully 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 question 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 dccisu.s let the decision stand, in the language of the rule, as the judgment of the Senate. Mr. Ci'RTis. Mr. Chief Justice, I ask to have the question propounded by the honorable managers read. It is long, and consists of different parts, and 1 desire it to be distinctly understood before 1 speak to it. The CiilKF JrSTiCK. The Secretary will read the question propounded by Mr. Manaerer Butler to the witness. IMPEACHMENT OF THE PRESIDENT 199 The Secretary read as follows : You said yesterday, in answer to my question, that you had a conversation with General Lorenzo Thomas on the evenilig 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, pas- session of the War Department. If so, state what he said as nearly as you can. Mr. Curtis. Mr. Chief Justice and Senators, you will observe that this question contains 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 General Thomas respecting directions given to him by the President. In reference to the first branch, that is, the separate and independent intent of General 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 intentions 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 sufiicient 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 aftect the case of the President. The President is not charged here with any ill intentions or illegal intentions of General Thomas ; he is charged here with his own illegal intentions ; with them alone can he be charged ; and therefore I respectfully submit 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 communicated to him by the Presi- dent 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 General 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 chai-acter. The intent of a party, as every lawyer knows, is a fact, and it is a fact to be proved bylegal 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 expression is fit evidence of it. All that is true; but inasmuch as it is not sworn evidence of it, inasmuch 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 i.-^ 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 co-conspirators. 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 perfectly well the grounds upon which it is our intention to rest this objection t» the declarations 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 oflicer, 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 carried 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 200 IMPEACHMENT OF THE PRESIDENT. ibey be material, tlioy must be proved by sworn evideuco, and not by hearsay statements. The other part, senators, of the question appears to*nio to admit of even less doubt; and that purt is attempting to inquire of the witness what was said by General Thomas respecting 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 instructions to General Thomas in regard to the particular man- ner or means by which this order was to be carried out. Upon its face the order is hitelligible. 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 himscl'', 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 laid the foundation for it by showing that the two parties were connected together as co-conspirators. I agree that if they could show a conspiracy between the President and General Thomas to which these declarations 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 before you, and as is asserted by the honorable manager himself? He starts out with the proposition that the Pres- ident in his answer has admitted his intention to remove Mr. Stanton from ofiice. 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 General Thomas accepted it and undertook to execute it, there was an agreement between them to do an illegal act. What was the illegal act which thus far we have got what he calls a conspiracy to do ? It was to remove Mr. Stanton ; and, if that bo 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 are now undertaking to show ? Not at all. They are passing altogether beyond that. They now undertake to eay, ** we will shov»' that he conspired with General Thomas to remove Mr. Stanton by force, threats, or intimidation, und 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 start- ing with that agreement, which, of course, makes the entire limits of the con- spiracy, as they call it, of which they have given evidence, all circumscribed within this intention merely to remove INIr. Stanton, they now graft on to that by a pure and mere assumption a conspiracy to remove him by force; and so, having proved a conspiracy to remove him without force, we will now give in evidence the declaration of these co-conspirators to show a conspiracy to remove him with force. I respectfully submit they have then travelled 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 parties to it as evidence against the President. But, senators, 1 do not think this thing should be left here. It is an entire misconception of the relations of these two parties, the Commander-in-chief and a subordinate officer, one receiving an order from the other, under any 'cir- cumstances 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 conspiracy, is it IMPEACHMENT OF THE PRESIDENT. 201 uot ?" It may be; but when the Commauder-in-chief gives an order to a subordiuate officer to do an act, and the subordinate officer goes to do it, is that done by agreement between them 1 Does it derive its force and character and operation from any agreement with 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 cannot be conspii-acy ? Is it not as plain as day tliat it is the duty of the subordinate officer when he re- ceives an order from his commander to execute that order ? My associate [Mr. Evarts] suggests to me that, as is a Avell-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 grouTid of military obedience. Was that a conspiracy 1 Senators, there can be no such thing as a conspiracy between the Commander-in-chief and a subor- dinate officer, arising simply from the fact, that the Commander-in-chief issues an order and the subordinate officer obeys it. Therefore I respectfully submit 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 tend- ing to prove any conspiracy at all. It rests exactly where the written orders place it ; an order from a superior officer 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 Avent to the War Department on Saturday, 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 an order given by the President. He was doing what the President authorized him to do, namely, delivering one order to Mr. Stanton, he being for that purpose merely the mes- senger 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 as 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, I think, he read from, showing that under some circumstances the acts of co-conspirators, 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 con- spiracy, which is a separate and independent foct, or may be wholly separate and independent from the evidence by which you prove the other step, namely, that a particular person joined in it. In that case the government imdertook 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 declara- tions of one or both of them to charge the other; but, until they do, I submit that they cannot give such evidence. *l'he case from 2 Carriugton and Payne was a case of a joint act of three per- sons falsely imprisoning a fourth. There was the conspiracy ; there was the false imprisonment, the illegal act, done in pursuance of the conspiracy ; and the court decided that a declaration made subsequent to the imprisonment as to what 202 IMPEACHMENT OF THE PRESIDENT. 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 author- ized 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. Unquestionably, if be 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 in evidence? It was an attempt to engage a person to go on a slave-trading voy- age in a subordinate capacity. In the course of that attempt he stated to him what tlie character and purposes of the voyage were ; but it w.is an act which he was engaged in, an act within the scope of his authority to carry on the voy- age, 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 reminded 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 answer. The answer distinctly says, in the first place, that the President believed, after the greatest consideration, that Mr. Stanton's ^a.?e was not within the tenure-of-office act ; and the answer further says that he jiever authorized 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 remark yesterday, upon the ruling of the presiding officer of the Senate, that the managers on the part of the House had no cause of complaint touching that ruling, which had relation to the introduction of this testimony. I said it, sena- tors, 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 authority to call in question the ruling that the testimony 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 restricted, as was intimated by the learned counsel for tlie President, to the article which alleges that this conspiracy was to be executed by force. There is nothing in this case, as 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 alle.^-e.s that this conspiracy was to be exercised by threats and intimidation. There is nothing in tlie ques- tion 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 em])loyed at all, although, if he were so to testify, I claim upon the authorities, and upon all the authorities, 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. Tliere is simply an averment in arti- cle five of an unlawl'ul 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 arti- cle five there is no averment 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 IMPEACHMENT OF THE PRESIDENT. 203 other persons unknown to the House of Representatives to prevent the execu- tion of the tenuro-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 requirements, shall be a misdemeanor on the part of any man. Of course, if a combination be entered into between two or more to prevent its execution, that combination itself a mounts to a conspiracy. The counsel have succeeded most admirably in diverting the attention of sena- tors from the question which underlies the admissibility of this evidence, and which controls it. Irefer 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 Johnson, President of the United States, unmindful of the high duties of his office and of his oath of ofiSce, on the 21st day of February, in the year of our Lord 1868, and on divers other days and times in said year, before tlie 25th day of March, in the year of our Lord J 868, at Washington, in the District of Colmnbia, did unlawfully con- spire 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, 18G~, and in pursuance of said conspiracy, did unlawfully attempt to prevent Edwin M. Stanton, then and there being Secretary of 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. Now, the tenure-of-office act, which is recited in this article, provides expressly that the person holding any civil office at the time of its enactment, who has theretofore been appointed by 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 qualitied." That is to say, all such oflicers shall hold their office until a successor be appointed by and with the advice and consent of the Senate. The act then provides that the President of the United States shall, during the recess of the Senate, not at other time but during the recess of the Senate, in case he is satisfied that any ofiicer is " Guilty of misconduct in office or crime, or forany reason shall become 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, the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate ; and such person so designated shall take the oaths and give the bonds required by law to be taken and given by the person duly appointed to till such office ; and in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, to report to the Senate such suspension, with the evidence and rea- sons for his action in the case, and the name of the person so designated to perform the duties of such office ; and if the Senate shall concur in such suspension and advise and con- sent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another person to such office. But if the senate shall refuse to concur in such suspension, such officer, so suspended, shall forthwith resume the functions of his office." The sixth section of the same act provides — That every removal, appointment, or employment, made, hud, or exercised contrary to the provisions of this act, and the making, signing, sealing, countersigning, 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 declared to be, high misdemeanors. The conspiracy entered into here between these two parties was to prevent the execution of this law, whicli is so plain that no man can mistake it ; nor can the President, in the presence of this tribunal, or Lorenzo Thomas either, shel- teii 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 mihtary order, either to Adjutant General Thomas or to any other officer of the army of the United States, to di-sperse the •204 IMPEACHMENT OF THE PRESIDENT. CoDgress of the nation ? It is an aftertliouglit, gentlemen of the Senate. It is no military 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 ques- tion of the competency of this evidence 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 fuVther, and i^ay it upon my own honor as one of the managers on the part of the House, that we rely not simply upon the declaration of Lorenzo Thomas to show this purpose of the accused at your bar to disregard this statute, to violate its plain provisions, that the officer thus affirmed by .the Senate upon suspension shall forthwith enter upon the duties of his office, but we expect by the written con- fession of the accused himself to show to this Senate this day, or as soon thereafter as we can be heard, that it was his declared, fixed purpose, in any event, to defy the authority of the Senate, and prevent Stanton from resuming the functions of the office. There was no reference then made to the interven- tion 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, vrhen we attempt to progress with the trial accord- ing to the known and establis!ied rules of evidence in all courts of justice, we are met with the plausible and ingenious — more plausibleand more ingenious than sound — remark of the learned counsel for the accused who has just taken his seat, that the declaration of one co-conspirator cannot be given in evidence against another as to his mode of executing it. 1 state it, perhaps, a little more strongly than the counsel stated it, but that was exactly the significance of his remark. I should like to know whence he derives any such authority. A declaration of a co-conspirator made in the prosecution of the conspiracy, I ven- ture to say here upon all authority, is admissible, even as to the mode in Avhich he would execute and carry out the common design — admissible not simply against himself, but admissible against his co-conspirator, 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 agreement 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 co-con- spirators. That is precisely the ground upon Avhicli the ruling was made yester- day 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 tin; declaration of a purpose to do some act independent of the original design of the conspiracy, to commit some substantive, independent crime, is evidence 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 was dro))ped from the lijis of the v/itness as to how he intended to carry into effect tliis conspiracy, which was to prevent the execution of this law, and which, in the language of the accused, as we hope to show it here to the Senate, was determined upon by himself, in which Lorenzo Thomas was in perfect accord with him, having voluntarily entered upon this duty? He did not act that day, senators, as Adjutant General of the Unit(;d States. He acted as Secretary of War ad interim ; so denominated himself in presence of the Secretary ; claimed that he was Secre- tary of War by virtue of a letter of authority which he carried upon his person. Now we are to be told that because he is not on trial before this tribunal his declarations cannot 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 here- IMPEACHMENT OF THE PRESIDENT. 205 after, in the eveut of ;i certain decision by this tribunal, bis declarations would be clearly admissible. The Senate have it in their power, (and there is authority fo'* saying that,) sitting- as a high court of impeachment, to 'apply the reason of the rule, although by the order of the proceeding 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 govern- ment. So we understand it. The power of the House of Representatives 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 has power, by this combination with him, to repeal your statute and to repeal the Constitution of the country. I have thus spoken on this question, senators, for the purpose of exposing the significance and importance which I know the counsel for the accused attach to it. It is not simply that they desire (I say it with all respect) that this testi- mony shall be ruled out ; but they desire in some sort, in some questionable 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 here- after as charged. As I have intimated, it was his purpose to defy the final judgment of the Senate itself and the authority 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 incompetency of this evidence that is looked for, but the insufficiency of the charge in the fifth article against the accused which is hoped for by your decision. I understand it was intimated by one of the counsel that, if this was a con- spiracy, the acceptance by General Grant of the appointment of Secretary of War ad interim was also a conspiracy. The Senate will see very clearly from my reading of the statute, or from my reminding them, rather, of that which they do know, that it does not follow, and. cannot be at all. It involves a very different question, for the reason that the statute expressly authorizes the President, for reasons of course satisfactory to himself, during the recess of the Senate, to suspend the Secretary of War, and to appoint a Secretary ad interim, upon the condition, nevertheless, that he shall, within twenty days after the next session of the Senate, report his action together with the evidence, and have the decision of the Senate upon it. He did so act. There was no conspiracy in it, and there is none alleged here. He did ,so act. He did recognize the obligation of the law. He did avail himself of the authority with which it invested him. He did suspend the Secretary of War, and appoint a Secretary ad interim. He did within twenty days thereafter report the fact to the Senate, together with his reasons. The Senate, in pursuance of the act, did pronounce judgment upon the sufficiency of the causes of suspension, and reversed, in accordance with the act, the action of the President. The Senate notified hira of it. In the mean time he enters into his combina- tions, his conspiracies, to defeat the action of the Senate, and to overturn the majesty of the law ; and now, when we bring him into court and produce his written letter of authority issued to his co-conspirator, in direct violation of the law, while the Senate was in session, and after its action upon this very ques- tion, and prove Thomas's act, in pursuance of the conspiracy, at the War Department asserting the authority to control that department, declaring that he would take possession of its mails, declaring that lie would not obey the orders of the Secretary of War, Edwin M. Stanton, who is declared such by the solemn action of the Senate, and by the express letter of the law ; and while we attempt to pursue it further, by showing his declarations, coupled with an attempt, as I assert now in the presence of the Senate, to get additional aid in the execution of this conspiracy, we are told that it is not competent. I desire to see the authority anywhere recognized as respectable in a court of 206 IMPEACHMENT OF THE PRESIDENT. justice that, when there is evidence tending to show a conspiracy for the accom- plishment of a given purpose between two or more persona, it is not competent upon the trial ol' any one of the conspirators to prove the declarations and acts of any of his co-conspirators, wiiether living or dead, whether on trial or not, in the prosecution of the common design, no matter what means he intended to employ. Now, I beg leave to say that I believe it will turn out — as I said before, the Senate will be the judge of that when they hear the evidence — and they cannot judge of it before — that there will be in this conversation between Burleigh and Thomas enough to indicate to the satisfaction of senators that he did not simply desire to acquaint him of how this agreement and conspiracy between himself and Johnson was to be executed in the morning, but relying upon his personal friendship he desired his presence there on that occasion. If that be so, he was seeking for aid by which to carry into effect the original conspiracy and execute it, and what was that ? To defeat the action of the Senate, to defeat the requirement of the law that the Secretary of War should forthwith resume the duties of the office, and to control it himself. I think that I have said all that is needful for me tO' say. I leave the ques- tion for the decision of the Senate, perfectly assured that they will hear first and decide afterward. It is certainly very competent for the Senate, as it is compe- tent for any court of justice in the trial of cases where questions of doubt arise, to hear the evidence, and, where they themselves are the judges both of the law and the fact, to dismiss so much of it as they may find incompetent, if there be any of it incompetent. I insist upon it that there is no word of this evidence which upon any just rule of evidence can for a moment be questioned or chal- lenged by anybody. Mr. Johnson. Mr. Chief Justice, I desire the honorable managers to answer two questions which I send to the Chair. The Chief Justice. The Secretary will read the questions propounded by the senator from Maryland. The Secretary read as follows : The honorable managers are requested to say whether evidence liereafter will be produced to show — First. 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 necessary ; or. Secondly. If not, that the President had knowledge that such declarations had been made and approved of them. Mr. Manager Bin(;ha.m. I am instructed by my associates to say — and I am in accord in judgment with them, Mr. President — that we do not deem it our duty to make answer to so general a question as that ; and it will certainly occur to the Senate why we should nut make answer to it. Mr. EvARTS. INIr. Chief Justice, as we claim on the part of the counsel Mr. Manager BlNCiHA.M. 1 rise to a question here. I understand that we speak here under a rule of the Senate, as yet at least, that requires us to be restricted to an hour on each side. Mr. SxANiiKuv. And one counsel, if you go according to the rule. Mr. Manager BiN(iHA.M. No; I do not understand that. I understand, on the contrary, that the practice heretofore tlius far in the progress of this trial has been to allow the counsel to divide their time as they pleased, within but one hour on each side. The point to whicli I rise, now, however, is this : that we understand that in a proceeding of this sort the managers have always claimed and asserted, where the point was raised at all, the right to conclude upon all questions that Avere raised in the progress of the trial. The howr has been well-nigh expended in this instance on each side, as I am told, though I have not taken any special note of the time. But we raise the question ; and 1 state that the fact that our lime has been exhausted, as I am advised, is the IMPEACHMENT OF THE PRESIDENT. 207 only reason why I rai-se it now ; and thus we are cut off from any further reply. Our only object in raising the question is that we shall not be deemed to have ■waived it, because mt. are advised that it was settled years ago in Melville's case by the lord chancellor presiding and by the peers that the managers might waive their privilege by their silence. Mr. Manager Buti.p^r. We have the affirmative. Mr. Stanbery. On this question? Oh, no. Mr, Manager Bingham. We have made the proposition to introduce tlie proof, but the objection to its admissibility comes from the other side. The Chief Justice. Do the managers object to the counsel for the President proceeding ? Mr. Manager Bingham. We only raise the question to save our right of being heard in reply; and, as I stated before, the only reason we object now is that we understand, without notice given to us, that our hour has been exhausted. Therefore we object. Mr. EvARTS. Mr. Chief Justice and Senators The Chief Justice. Before the counsel proceeds, the Chair desires to state to the Senate and obtain their judgment upon the construction of this rule. In the present case, with the consent of the Senate, the Chief Justice will not apply the rule, but pursue the course which has been heretofore pursued, of allowing each counsel an hour and not limiting the number of persons speaking, but for future guidance the Chief Justice would like to take the sense of the Senate, and will as soon as this discussion is closed; or he will take it now if any senator desires it. Mr. Manager Butler. Will the presiding officer allow me a single observa- tion here ? The Chief Justice. Certainly. Mr. Manager Butler. It is this : that I limited myself expressly, and divided my time with my brother manager, in the argument, and left out many things that I should have endeavored to address to the Senate, upon the understand- ing of the rule that we could only have an hour on a side. The rule said so, and I supposed it meant Avhat it said. Now, if the presiding officer and the Senate shall allow the gentlemen on the other side to have an hmir each, there will have been an administration of the rule which is exceedingly onerous upon us, and which we ought to have been notified of before; and .we should like to know whether we can ever have a conclusion on one of these questions, which is our right and the right of the people of the United States. Mr. CoNXESS. Mr. President, I ask for the application of the rule. The Chief Justice. Senators, the Chair will state the question to the Senate The twentieth rule provides that — All preliminary or interlocutory questions and all motions shall be argued for not exceed ing one hour on each side, unless the Senate shall, by order, extend the time. The twenty-first rule provides : . The case on each side shall be opened by one person. The final argument on the nieiit may be made by two persons on each side, (unless otherwise ordered by the Senate, upon application for that purpose,) and the argument shall be opened and closed on the part of the House of Representatives. On looking at these two rules together, the Chief Justice was under the impression that it was intended by the twentieth rule to limit the time, and not limit the persons ; whereas, by the twenty-first rule, it was intended to limit the number of persons and leave the time unlimited ; and he has acted upon that construction. He will now, with the leave of the Senate, submit to them the question : Does the twentieth rule limit the time without respect to the number of persons 1 Upon that question the Chair will take the sense of the Senate. Mr. Drake. The yeas and nays are required, I suggest, Mr. President. The Chief Justice. They have not been required as yet. 208 IMPEACHMENT OF THE PRESIDENT. Mr. Drakk. I suggest now this point of order: that all orders and decisions must, since the change made in the seventh rule yesterday, be taken by yeas and nays ; that there is no provision now existing in the rules for putting a question to the Senate without a division ; that that is struck out ; and that the twenty- third rule requires that " all the orders and decisions shall be made and had by yeas and nays," The Chief Justice. The Chair sees nothing in the seventh rule which requires this question to be taken by yeas and nays, unless they arc demanded in the usual mode by one-fifth of the senators present. Senators, you who are of opinion that the limitation in the twentieth rule applies to the whole number of persons to argue will please say ay, and the contrary opinion no. The question being put, it was decided in the affirmative, nem. con The Chikf Jiistioe. The Senate decides that the limitation of one hot.r has reference to the whole number of persons to speak on each side, and not to each person severally ; and will apply the rule as thus construed. Mr. Co,\KLii\G. Mr. President, I move that the counsel for the President, having been und(?r misapprehension as to the application of this rule, owing to the suggestion of the Chair, have permission in this instance to submit any addi- tional remarks which they may wish to submit, Mr. Trumbull. Mr. President, before that motion is put I desire to inquire whether the counsel for the President have exhausted their hour. The Chief Justice. They have. Mr. Thayer. Mr. President, I hope the senator from New York The Chief Justk e. Debate is not in order. Mr. Thayer. I desire to submit an amendment to the motion of the senator from New York. The Chief Justice. The senator will send his amendment to the Chair in writing. Mr. EvARTs. Mr. Chief Justice, perhaps I may be allowed to say that we do not understand that as yet on our side ^ve have transcended the twentieth rule. We have not occupied an hour in debate on our side of the question. The Chief Justice. The Chief Justice thinks that the counsel for the defend- ant have occupied one hour. Mr. Evarts. Subject, of course, to the computation of the Chair. If the hour has expired I was not aware of it. I do not desire, nor do my associates desire, that we should transcend the rule. We supposed we had some moments of the hour unoccupied. I rose with the intention, however, of claiming, on the part of the counsel for the President, the right of closing as well as opening, according to the ordinary rules of interlocutory discussion. The Chief Justice. That question is not at present before the Senate. Mr. CoNKLiNU. After the suggestion of the counsel I withdraw my motion. The Chief Justice. The Secretary will read the question proposed by ]\[r. Manager Butler. The Secretary read as follows : You said ycsteitlay, in answer to my question, tliat yon had a conversation with General Lorenzo Thomas on tlie evening of the : Mr. Drake. On that question the yeas and nays must be taken under the rules, T submit. Mr. Edmunds and others. No, no. Mr. Drake. It is so, sir. Mr. Edmunds. It is not so. IMPEACHMENT OF THE PRESIDENT. 209 The Chief Justice. Upon the question of order raised by tl)e senator from Jlissouri, the Chair is of opinion that he may submit this question to the Senate without having the yeas and nays taken, unless the yeas and nays are demanded by one-fifth of the members present. Mr. Trumbull. I should like to hear the seventh rule read as amended. The Chief Justice. The Secretary will read the rule. Tr\e Secretary read as follows : VII. The presiding officer of the Senate shall direct all necessary preparations in the Senate chamber, and the presidinpf 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 ([uestions of evidence and incidental (piestions, which ruling shall stand as tiie judgment of the Senate, unless some member of the Senate shall ask that a formal vote l)e takea 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. JoHNSOM. The questions that I submitted The Chief Justice. Debate is not in order. Mr. JoHNSO.\. 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 ques- tions which the honorable managers thought it their duty to decline to answer. 1 ask that they be again read before the vote is taken. The Chief Justice. The questions submitted by the senator from Maryland will be again read. Mr. Manager Boutwell. May the managers be allowed to suggest that the managers heard the questions and respectfully declined to answer them i* It seems to the managers, also, somewhat in the nature of an argument upon the questions involved. ]\Ir. JoHNSOiV. 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 vvill be produced to show — 1. That the President before the time wlien 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 necessary ; or, 2. If not, that the President had knowledge that such declarations had been made and approved of them. Several Senators. Question! Question! The Chief Justice. Senators Mr. Drake. I call for the yeas and nays, and let us see if the Senate will not order them. The yeas and nays were ordered; and being taken, resulted — yeas 39, nays 11 ; as follows: Yeas — Messrs. Anthony, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Howard, Howe, Alorgau, Morrill of Maine, Morrill of Vermont, Morton, Nye;, Patterson of New Hampshire, Ponieroy, Kamsey, Koss, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Wiukle, Willey, Williams, and Wilson— 39. Nays — Messrs. Bayard, Buckalew, Davis, Dixou,Doolittle, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, ami 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. Manager Butler shall be put to the witness. Hon. Walter A. Burleigh, resumed the stand, and his examination was con- tinued. By Mr. Manager Butler : Q. You said yesterday, in answer to my question, that you had a conversation 14 I P 210 IMPEACHMENT OF THE PRESIDENT. ■W'ith General Lorenzo Thomas on the evening of the 21st of February last. State if he said anytliing 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. A. On tlie evening of the 21st of February last, I learned that General Thomas had been appointed Secretary of War ad i/iferiin, I think while at tlie Metro|)olitan Hotel. I invited Mr. Leonard Smith, of Leavenworth, Kansas, to go witli me up to his house and see bim. 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 insisted on my sitting down, and I sat down for a few moments. I told liim that I had learned he had been appointed Secretary of War. He said he had ; that he had been appointed that day, I thiuk ; 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 possession of the office ; that the Secretary remai-ked 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 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, 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 i" "Yes." Said I, " Suppose Stanton objects to it — resists." "Well," said he, " I expect to meet force by force " or " use force." JMr. CoNKLiNG. Repeat that. The WiTNKSS. 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 the doorsi" His reply was, "1 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 Butlkr : Q. Did he say anything to you about being there at the time? A. He told me to be there at 10 o'clock, if I came. Q. Was there anything said further in the conversation that you remember, by you to him, as to what purpose you would be there for ? A. Wtll, to witness the performance; to see him take possession of the office; nothing more than that. Q. AVcre you up there at the office at any time before he assumed the duties of Sicretaiy ad interim after he assumed the duties of Adjutant General? The Wl'i'.XKSS. At the Secretary's office? Mr. Manager Butlkk. At the Adjutant General's office. A. Yes, sir ; 1 have frequently been there. ]\Ir. CuK'i'i.s, (to Mr. Managt'r Bi'TLKR.) Will you repeat the question? ]\lr. Man;iger Butlkr. The ((uislion is whether you were at the Adjutant General's office after General Tliomas assumed the duties of Adjutant General, and before he attempted to assume the duties of Secretary ad interim. You say you were ? A. Yes, sir; I was there several times; I do not recollect how many; but two or three times. IMPEACHMENT OF THE PRESIDENT. 211 Q. Pid you hear liira saying anything to the officers and clerks of the depart- ment 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, i\[r. Butler? ^Ir. Manager Butlkr. I believe he was restored by the President to the Adjutant General's office about a week, if I remember aright — you will correct nie 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 evidence ? Mr. Manager Butler. My inquiry is not for declarations. My inquiry is for attempts on his part to seduce the officers of the War Department to his allegi- ance 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 you propose that in your question, about Absalom? !Mr. Manager Butler. No, sir; I put that in my illustration. [Laughter] The Chief Justice. Do the counsel for the President object to the questien ? Mr. EvARTS. We object. Mr. Manager Butler. Shall I reduce it to writing 1 The Chief Justice. Yes, sir. Mr. Edmunds, [at 3 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 fifteen minutes, and called the Senate to order. Hon. Walter A. Burleigh's examination resumed: Mr. Manager Butler. With the President'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 anything was said by Thomas at that conversation as to what orders he had received from the President 1 Mr. EvARTS. That is covered by our previous objection. Mr. Manager Butler. Certainly; it is the same thing; part of the same question. [To the witness.] Will you ans\yer1 A. 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 President to take charge of the War Department, and he was bound to obey the President, as his superior or superior officer. Q. Did that come in before or after he spoke of force in the conversation ? A. It was in connection with the force, and it was repeated, also, in connec- tion with the breaking of the door to Avhich I have alluded. I thought I men- tioned it ; but perhaps I did not. ]\rr. jManager Butler. I now offer the question which was objected to. The Chief Justice. The Secretary will read the question. The Secretary read as follows : Q. Shortly before this conversation about which you have testified, and after the President restored Major General Thomas to the office of Adjutant Geueral, 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, beloncfin^ to the War Office, as to the rules and orders of Mr. Stanton or of the otfice which lie, Tiiomas, would revoke, relax, or rescind in favor of such ofticers 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. 212 . IMPEACHMENT OF THP: PRESIDENT. Mr. EvARTS. The counsel for the President object to that question as irrele- vant and immaterial to any issue in this cause, and as not to be brought in evi- dence against the President by any support given by the testimony ah-eady 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 Department antecedent to the time of the issue of the orders by tlic Presi- dent, which are in evidence, 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 we put the last question upon, was a co-conspirator with the President, how can either my learned friends on the other side 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 under the administration of Mr. Stanton of the War Office. That is a fact known to all men who know the history of the wax. Just before he made him Secretary of War ad iyiterim, 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 President, the first act in the drama. He ha,d to take a disgraced officer, and take away his disgrace, 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 g(^t him in that condition, he being suffi- ciently virulent toward Mr. Stanton for having suspended him from the office of Adjutant General, the President then is ready to appoint him Secretary ad interim, 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 knowai enemy of jMr. Stanton's, feeling aggrieved, undoubtedly, 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 ehow his acts, the acts of one of these co-conspirators, clnstering about the point of time just before the peri(>d 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 wit'nin the ruling which has jn.-^t been made. I believe 1 have stated the matter as the miuiagers desired I should. JMr. EvAKTS. The question which led to the introduction of this witness's statements of General Thomas's statements to him, of his intentions, and of the President's instructions to him, Geiieral Thomas, was based upon the claim that the order of the President of the 21st of February, upon Mr. Stanton for removal, and u{)on General Thomas to take possession of the otHce, created find proved a conspiracy ; and that thereafter, upon that proof, declarations and intentions were to be given in evidence. That step has been gained, and, in the judgment of this honorable court, in conformity with the rules of law and of evidence. That being gained, it is similarly argued that. if, on a conspiracy proved, you can introihice declarations made thereafter, by the same rule you can introduce declarations ina(hi theretofore ; 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 manager relate to the office, the posi- tion, the character, and the conduct of General Thomas, it is sufficient for me to IMPEACHMENT OF THE PRESIDENT. 213 say thfit not one particle of evidence lias been p;iven in this cause l)earin<^ ixpon 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. And if, as matter of fact, a])plicable to the situation upon ■nhich this proof is soiight to be introduced, the former employments of CTcneral Thomas, and the recent restoration of him to the active duties of Adjutant (ilen- eral are pertinent, let them be proved; and then we shall have at least the basis of fact of General Thomas's previous lelatious to the War Department, to Mr. Stanton, and to the office of Adjutant General. And now, having pointed out to this honorable court that the decla-ations sought to be given in evidence of General Thomas to affect the President with his intentions are confessedly 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 i-esponsibility for these general and vague 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 Bixgham. I desire to say a word or two in reply. I am will- ing to concede 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 admissi- ble. I concede it, however, subject to this exception : that t"he Senate being the triers of the fact as well as 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 con- spiracy 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 the act done on the part of the co-conspirator was an act tending to bring about the result sought to be accomplished by that which was afterward 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 understandi:ig, some arrangement was entered into, and, if you please, a voluntary one, on the part of the man who afterward became by solemn agreement a party to the conspir- acy — a voiuntai'y 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 I'ead from Roscoe's Criminal Evidence, p. 88 : The evidence in conspiracy is wider tlmn, perhaps, in any otlier case, ijther principles as well as that under discussion tending to give greater 'latitude in proving this otfeuce. Taken by themselves the acts of a conspiracy are rarely of an unequivocally guilty character, and they can only be properly estimated wlieu connected with all the surrounding circumstances. Not ou\y, as in the cases betbre mentioned, may the acts and declarations of the prisoner liimself on former occasions be admitted when referable to the point in issue, but also the acts and declarations of other persons — Meaning, of course, on 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 pro- bability to connect 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 connected in point of time with the opera- tions of these parties — and the testimony itself manifestly, as is explained by the manager on the pari 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. 214 IMPEACHMENT OF THE PRESIDENT. The Chief Justicr. TJio Chief Justice is of opinion that no sufficient foun- dation has been laid for tlie introduction of this testimony, lie Avill submit the question to the Senate with parent pleasure if any senator desires it. Tiie questipn is ruled to be inadmissible. ]\Ir, Howard. Mr. President Mr. Manager Butler. I respectfully The Chief Jusrn e. The senator from Michigan. Does the senator desire the question to be taken by the Senate 1 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 llepresenta- tives and the people have a question which they deem of consequence to their case allow that to be put to the Senate upon the motion of the House of llepre- sentatives. The Chief Justice. The Secretary will read the question. The Secretary read as follows : Q. Shortly before tliis couversatiort about which vou have testified, and after the President restored Mnjor General Thomas to the oflice of Adjutant General, if you know the fact that be was so restored, were yon present, in the "\^'ar Department, and did you hear Thomas make any statement to the officers and ch-rks, or either of them, Iteloiitjing to the AVar Office, as to the rules and orders of Mr. Stanton, or of the office which he, Thomas, would re- voke, relax, or rescind in favor of such officers and employes when he had control of the affairs therein ? If so, state as near as you can when it was such conversation 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. How^\RD. 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, Chandler, Cole, Conklingf, Conness, Corbett, Cragiu, Drake, Henderson, Howard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Pat- terson of' New Hampshire, Pomeroy, Ramsey, Ross, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, and Wilson — 28. Navs— Messrs. Bayard, Jkickalew, Davis, Dixon, Doolittle, Edmimds, Ferry, Fessonden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Sherman, Van Winkle, Yickers, Willcy, and Williams — 2'^. Not voting — Messrs. Harlan, Saulsbury, Wade, and Yates — 4. The Chief Justice. On this question the yeas are 28 and the nays 22. So the Senate decides that the question shall be put to the witness. Mr. Manager Butler. "With the leave of the President, I will put this ques^ tion by portions. [To the witness.] Shortly before the conversation about which you have testified, and after the President restored Major Gener.-i^ Thomas to the office of Adjutant General, if you know the fact that he was so restored, were you present in the War Department ? A. Yes, sir ; I was. By the Chief Justice : Q. Did you know the fact that he was so restored ? A. He told me so. He was acting in the office. By Mr. Manager Butler : Q. '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, I'homas, would revoke, rela.x, or rescind in favor of such officers and employes when he had control therein? If so, state when this conversation was as near as you can. A. Soon after General Thomas was restored to his position as Adjutant Gen- eral X hud occasiou to go to bis office to transact some business with him ; and IMPEACHMENT OF THE PRESIDENT. 215 after transacting the business I invited him to take a short walk with me. The general remarked that he had made an arrangement Mr. EvARTS. Mr. Butler, your question was "when 1" Mr. Manager Butlkr, (to the witness.) When was this? A. Soon after General Thomas's restoration to office as Adjutant General. Q. llow long before the time Avhen he was appointed Secretary of War ? A. I should think not more than a week or ten days. I have no definite means of knowing now. Q, Go on. A. He remarked to me Mr. EvARTS. Wait a moment, Mr. Witness. I understood your question, Mr. Butler, allowed by the Sen-ate, to refer to statements made by General Thomas at the War Ofiice, as 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. Mr. Manager Butler. He had not said that they took the walk. Mr. EvARTS. This, I understand, is only inducement, Mr. Butle^'. Mr. Manager Butler. The inducement to the conversation. The Witness. The general remarked to me that he had made an arrange- ment to have all the heads or officers in charge of the different 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 his predecessor were of a very arbitrary character, and he pro- posed 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 officers — 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, statingto them that he did not propose to hold them strictly to the letter of the instruc- tions ; 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 he 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 of that kind — he did not propose to 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 remarked to the general he would make a very fine politician. Q. Did he say anything as to the character of the orders that existed before? A. He said that they were very harsh and arbitrary — nothing more than that, that I know of — and he proposed to relax them. Q,. 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 some time before this? A. Yes, sir. Q. How long? A. I am not able to tell you; some two or three years, I should think. Ml-. Sta.xbery. Mr. Chief Justice, we object to this mode of proving orders for removal. Mr. Manager Butler. I will not pre^s 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 gentleman, when he makes the gesture accompanying those words, mean my assertion ? For I am going to prove it upon the oath of a witness. 216 IMPEACHMENT OF THE PRESIDENT. ]\rr. Stanhkry. Is the gentleman speaking to me? What was the quea- tion 1 Mr. JManager Butler. Whether you mean my assertion, or the assertion of the witness ? The Chikf Justice. This controversy does not appear to have any proper relation to the case on trial. iVfr. ^lanager EurLER, (to the witness.) Had he been away from the city, and not in the Adjutant General's oilice for a considerable period of time? A. Yps, sir; he had been sent south. Jlr. Stanbery. That will not do. Mr. ^lanager Butler, (to the witness.) How lately had he returned to the office when he made this speech ? ' A. I am not able to say ; but a very few days. Q. Since you had the conversation about breaking down the doors of the War Otiice by force, have you seen General Thomas ? A. Yes, sir ; I have. Q, Were you called upon by the managers to give your testimony in their room ? A. I was.' Q. Did you do so ? A. I did. Q. Was it taken down in shoi't-hand ? A. I am not able to say how it was taken down ; I did not see it. Q. After it was taken down after you gave it, was General Thomas called in 1 A. He told me he was to be callter General, &c. 'i A. No ; only those that were under him. Q. When these heads of bureaus received these orders, did they object that he had no right to give them such orders, or did they thank him for them ? A. I heard no objection. They congratulated him, a great many of them. Q. 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? A. I did not understand it in any other way. Q. Then did you hear or s(je anything improper at that time, and if you did let us know what it was. A. I do not know that I am the judge of what is proper or not proper in the Adjutant General's office. Nothing occurred that was very offensive to me. Q. Did anythiug occur that Avas at all offensive ? A. No, sir. Samuel Wilkf.son sworn and examined. By Mr. Manager Butler : Question. Do you know Lorenzo Thomas, Adjutant General of the United States army ? Answer. I do. Q. How long have you known him? A. Ik'tween six and seven years. Q. 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. A. I had a conversation with him respecting that change on the 21st day of February. Q. What time in the day ? IMPEACHMENT OF THE PRESIDENT. 221 A. Between one and two o'clock in the afternoon. Q. Where? A. At the War Department, in liis office. Q. State what took phice at that interview. ]Mr. EvAR'i'S. Do you propose this as covered by the former ruling ? Mr. j\[anager Butler. Entirely so, after he had his order. The Witness. I asked liini to tell me what had occurred that morning between him and the Secretary of War in his endeavor to take possession of the AYar 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 liis 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 liad demanded, by virtue of that order, the possession 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 Eriday, that the next day would be what he called a dies non, being the holiday of the anniver- sary 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 prop- erty, and if that demand was refused or resisted he should ajjply 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 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. Q. Did you see him afterward and have conversation with him on the subject ? A. I did. Q. Wlien was that ? A. That evening. Q. Where? A. At Willards' hotel. Q. What did he say there ? A. He then said that he should the next day demand possession of the War Department, and that if the demand was refused or resisted he shuuld apply to General Grant for force to enable him to take possession, and he alno repeated his declaration that he could not see how General Grant could refuse to obey that demand for force. Q. State whether these were earnest conversations or otherwise ? A. Earnest conversations ? Q. Yes, sir, on his part ? A. If you mean by earnestness that he meant what he said Q. Yes. A. They were in that sense earnest. Cross-examined by Mr. Evarts : Q. Are you connected with the press 1 222 IMPEACHMENT OF THE PRESIDENT. A. I am a journalist by profession. Q. And have been for a great number of years ? A. A great number of years. Q. Living in Washington during the session of Congress for the most part 1 A. I have for the hxst seven years lived in Washington in the winter. Q. You say that General Thomas told you that, under the order of the Presi- dent, he did not see how he could do otherwise than he had stated ? Mr. Manager Butlkr. Are you repeating the testimony of the witness*? ]\Ir. 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 WiTiMESS. The original paper. Q. Nothing else ? A. Nothing else. Mr. Evarts, (to Mr. Manager Butler.) Now you are answered. Mr. Manager 13utler. Entirely. Mr. Evarts, (to the witness ) So all the difference between the conversation on Friday night and Friday forenoon was that at night he proposed to do what he did propose to do on Saturday, and in the forenoon conversation he proposed to do it on Monday? A. On Monday. Q. Did you say anything- further regarding the expected holiday, Saturday, except that that would be a dies non 7 A. Nothing, sir. Q. No orders to that efifcct were referred to ? A. Pardon mc ; he told me that he had issued an order to close the War Department on Saturday. Q. That he had himself? A. That he had himself issued an order to close the War Department on Saturday. Q'. As Adjutant General ? A. He did not say whether he had done that' as Adjutant General or as Secretary of War. Q. You did not understand anything about that ? A. He simply told me he had issued an order to close the War Department on Saturday. Q. This was in the morning conversation 1 A. It was in the afternoon conversation of Friday. Q. The one o'clock conversation ? A. Yes, sir. Q. Did he tell you when that order had been issued ? A. No, sir. Q. Did you know, from anything said in that conversation, when it had been issued ? A. No, sir. il. Did you know, from anything said in that conversation, by -vrhom it had been issued other than that it was by him. General Thomas, in some capacity ? A. No, sir. He told me that it had been issued, and he told me that on Eriday. Q. So far as you know, or then understood, it might have been issued by him as Adjutant General? A. I know nothing about that. IMPEACHMENT OF THE PRESIDENT. 22 3 Rc-examiiiedby Mr. Manager Butlkr: Q. In fiitherof these conversations, in connection witli what he said, did he say whotlier he was Secretary of AVar, or did lie chiim to be ? A. Yes, sir. He claimed to be Secretary of War. George AV. Karsner sworn and examined. By Mr. Manager Butler : Qnestion. What is your full name ? Answer. George Washington Karsner. Q. Of what place are you a citizen 1 A. Of Delaware. Q. What county 1 A. New Castle county. Q. Do you know Major General Lorenzo Thomas ? A. Yes, sir. Q. How long have you known him ? A. I have known him a great while ; I think I have known him since a short time after his graduation from West Point. Q. Was he originally from the same county with youl A. Yes, sir. Q. Did you see him in Washington somewhere about the 1st of March of this year 1 A. I think it was about the 9th of March I first recollect seeing him here. Q. When had you seen him prior to that time ? A. Not for several years. I cannot remember exactly when I last saw him before that. Q. Whei'o did you see him in Washington ? A. I saw him in the President's house ; in the Eaat Room of the President's house. Q. What time in the day or evening ? A. It was, perhaps, a quarter past ten o'clock in the evening. Q. The evening of what day in the week ; do you remember 1 A. I think it was on a Monday evening. Q. Was the President holding a levee-that evening? A. Yes, sir. Q. Did you have any conversation with him ? A. Yes, sir. Q. Please state how the conversation began ; what was said ? Mr. Ev.\RTS. With General Thomas 1 Mr. Manager Butler. With General Thomas. A. Well, it commenced by my approaching him and mentioning that I was a Delawarean, and I supposed he would recognize me, which I think he did, but could not remember my name. I then gave him my name, and told him I kiww 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, whicli I very well knew ; and he asked mo what we were doing in Delaware. I do not remember the answer I gave to him, but said I to him, " General, the eyed of Delaware are on you." [Laughter.] The Chief Justice. Order! The WiTNRSS. I gave my advice to him. I told him I thought Delaware would require him to stand firm. " 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.] Q. Was anything further said ? 224 IMPEACHMENT OF THE PRESIDENT. A. Ye?; there was sometliing furtlier paid. 1 will try to recollect it. [A pause.] I repeated ag-aiu to Iiini what the desu-e, I presumed, of Delaware would be, aiul he said I need not give myself any concern about that, he was going to remain firm, and kick that fellow out Avithout fail. Q. When he said he would "kick that fellow out,"' did he in any way indi- cate to you to whom he referred ? A. He did not mention any name. Q. The question was whether he indicated to whom he referred? A. Well, I think he referred to the Secretary of War. I did not have any doubt on my mind. Mr. EvAKTS. That was not the question. Mr. Manager Butler. It answers all I desire. The witness is yours, gen- tlemen. Cross-examined by Mr. Staxberv : Q. You said you had known General Thomas many years before? A. Yes, sir. Q. 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 ? A. I was in this city during the war, and perhaps I might have seen him then, but I am not certain. Q. W^hat is the time that you are certain that you last saw him? A. It was a good many years; I cannot remember how long it was. I can- not remember the time. Q. Where? In Delaware, or here? A. I think I saw him in New Castle at one time. Q. Before, or after he went to West Point? A. Long since he left West Point; long since he was in the army. Q. On what occasion was it at New Castle that you think you recollect seeing him? A. 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. Q. In which of the streets of New Castle did you see him? A. Well, there are not many streets in New Castle. [Laughter.] I saw him in the main street, 1 think. Q. What part of the street ? ' A. It was not in the middle of it; it was on the pavement, and I was stand- ing by the court-house, to the best of my recollection. Q. You were .standing by the covirt-h6use and he was on the pavement? A. I think so. Q. Was he walking past or standing there ? A. I cannot recollect. Q. But you do recollect that one day being before the court-house you saw Thomas standing on the pavement? ^ A. I was standing by the court-house. Q. How near ? A. Within half the space of this room. Q. How far was he from you? A. I think he was on the ojjposite side of the street. Q. On the other pavement ? A. Yes ; I think so. As regards the time and whether I spoke to him or not I cannot tell. I saw hiiu there. Q. That is what you recollect ; seeing him there that day ? Was he stand- ing or walking? A. I presume he was walking. I do not recollect. IMPEACHMENT OF THE PRESIDENT. 225 Q. But you recollect seeing liim there? A. Yes. Q. Can you not tell its whether he Avas standing or walking ? A. Sometimes it is a little difficult for a person's memory to ruu that well. That has been several years ago, many years before the war. Q. When did you ever see him to speak with him ? A. I used to speak to him a great many years ago when he would be at New Castle visiting his people. He married his wife in New Castle. Q. How many years and when ? That is the question. A. 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. Q. You now recollect that you saw him in the city of Washington ; a little while ago j ou could not recollect that ? A. I think now I do recollect seeing him, but not to speak to him. He waa an officer, I was a citizen. Q. Whereabouts in Washington did you see him before this time? A. I cannot tell that; but I have seen him in Washington. I know him when I see him. Q. When, then, did you ever speak to him before this time? Name a time. A. Every time I would come within speaking distance of him I have spoken to him ; but to name a time I cannot. Q. You cannot answer when it was or where you ever spoke to him before 1 A. No, sir ; not particularly^ Q, On this occasion did you come from Delaware to see General Thomas ? A. No, sir; I had other business in Washington. Q. Did you expect to see him or intend to see him? A. 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 into the East Room, and I saw him there; I went to him in the East Room and spoke to him. Q. You wanted to see hira as well as the rest of the cabinet. A. Well, he was acting, the papers stated, as a member of the cabinet. Q. Whereabouts in the East Room did you encounter him? A. On the west side, I think, of the East Room. Q. AVas it near the door of exit? A. No, sir. Q. Near the centre of the room? A. I think it was. It was not the centre of the room exactly, but somewhere in the centre of the distance between that and the place of going out. Q. At that time was General Thomas apparently going out? A. 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. Q. Did you know the gentleman he was speaking with ? A. No, sir. Q. But you had something to say to him. What did you intend to say to him when you found out that he was tliere ? You say you went over to see hira; what did you intend to say to him? A. 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. Q. You did not go there especially to say to him that thing, then, but only to see him? A. I was drawn there for the purpose of seeing Mr. Johnson, President of the United States. I had never seen him. 15 I P 226 IMPEACHMENT OF THE PRESIDENT. Q. After you had seen Mr. Johnson, and the other raeniber3 of the cabinet, I understand you to say you then wanted to see General Thomas ? A. I asked a friend with me where Gener^il Thomas was; said I, "I do not B€e him." Q. Who was that friend that was Avith you ? A. It was John B. Tanner. Q. Where was he from? A. Washington. Q. Does he live here? A. Yes, sir. Q. Did you go with Tanner to that levee? A. Yes, sir. Q. And after you had seen the President and cabinet, you then asked him where you would find Thomas ? A. No ; that was not the manner. Q. What was it ? A. Said I, " I see them all but General Thomas." I did not know the mem- bers of the cabinet personally, 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. Q. And all were pointed out to you ? A. Yes, sir ; they were pointed out to me. Q. Having seen the President, and having seen all the members of the cabi- net, then you asked where you could find General Thomas ? A. No, sir. Q. What then? A. 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 Room I saw him there. Q. Did you go with your friend Tanner from the Reception Room to the East Room ? A. Yes, sir. Q. Did he point out Thomas to you ? A. No, sir ; I pointed him out myself. Q. What was the first thing you said to Thomas after he was through with hie conversation with the gentlemen he was speaking to ; how did you first address him ? A. I have already stated that. Q. State it again. A. I addressed him as a Delawarean, knowing him to be so. I told him I was from Delaware. He said he was a Delan'arc boy himself I knew that very well, and knew his family. Q. Did you shake hands with him ? A. Yes, sir. Q. What followed when you told him you were from Delaware ? A. As 1 before stated, he asked me how things Averc coming on in Delaware, how we were all getting along or how we were coming on ; that was about the amount he asked me. Q. What was your answer ? A. I do not recollect the answer I gave. Q. What was said next, if you do not recollect that answer ? A. The next was, as I before stated, that 1 told him the eyes of Delaware were on him, and to stand firm ; that was the language I addressed to him. Q. Was that all you said ? IMPEACHMENT OF THE PRESIDENT. 227 A. Well, no ; I repeated, perhaps, some part of that or pretty much all. I repeated a portion of it, at any rate. Q. When you asked him to stand firm, what was his reply ? A. He said he was standing firm. Q. What did yovi next say 1 A. I told him the people of Delaware would expect it of him. He said they should not be disappointed, Q. What next I A. 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. Q. Now, I ask you, Mr. Karsner, if this idea of kicking out did not first come from you : whether you did not suggest it ? A. No, sir. Q. You did not ? A. No, sir. Q. You are sure of that I A. I have taken an oath here. Q. I ask you if you are sure of that ? A. I am sure of that. Q. When he said he would kick him out did you reply ? A. I do not know what I did reply just to that, for it was a pretty severe expression. Q. What did you reply, severe or not ; what did you say to him 1 A. I do not think I told him it would be all right even ; I do not think I did. Q. What did you tell him 1 A. I said " I think Delaware will expect something from you." [Great laughter.] Q. Was that what you meant by the severe remark you made to him 1 The Witness. What do you mean ? Mr. Stanbery. Was that the severe remark, '* that Delaware expected he would do something ?" The Witness. Delav/are, I told him, would expect him to stand firm, and his conduct would be viewed by Delaware, or something to that effect. Q. Was that the severe remark which you have said you made ? A. I did not make any severe remark. Mr. Manager Butler. 1 think you misunderstood the witness, Mr. Stan- bery. He said simply that it was a severe remark that General Thomas made. The Witness. Yes, sir ; that is what I intended to convey. Mr. Stanbery, (to the witness.) Did the conversation stop there? A. 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! order! By Mr. Stanbery : Q. How did you renew the desires of Delaware ? Did you feel yourself authorized to speak for Delaware ? A. 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. Q. At that time wei-e you in sympathy with the wishes of Delaware that he should do something in regard to the War Oflice ? Mr. Manager Butler. 1 object. Mr. Stanbery. What is the ground of the objection ? Mr. Manager Butler. 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. 228 IMPEACHMENT OF THE PRESIDENT. Mr. Stanijerv. We agree to that. The question was as to the sympathies of the witness. J will put the question in this form. (To the witness.) Was the line of conduct he spoke of taking that which suited you ? A. I do not know whether it would or no, Q. Did you in that conversation give him any advice beyond standing firm what he should do ? A. No, sir ; not any advice further than I have stated. Q. After you parted there to whom did you first communicate this convei-sa- tion that you had had there with General Thomas 1 A. Well, I communicated it — if the question is right for me to answer ]\Lr. Stanbery. Yes, sir; you will answer it. A. I communicated it to Mr. Tanner. Q. Your friend ? A. Yes, sir ; that night. Q. Whereabouts did you communicate that to Mr. Tanner 1 A. Going along the street. Q. Going away from tliere that night 1 A. Yes, sir ; if my memory serves me aright, I think I did that night. Q. To whom next ? A. I cannot tell the next one exactly. Q. Do you mean to say you have no recollection now of telling anybody else but Tanner ? A. Yes ; I told several that same thing. I did not charge my memory with the persons I told it to. Q. You told several that night, the next day, or when ? A. The next day Q. In Washington ? A. Yes, sir. Q. What did you tell, and whom to 1 A. I say I cannot recollect precisely the persona I told it to. I told it to several. Q. Do you recollect any one besides Tanner 1 A. Yes, I recollect a gentleman from Delaware. Q. What was his namel A. His name was Smith. [Laughter.] Q. What was the first name of that Mr. Smith ? A. It was not John. [Great laughter.] Q. What was it, if you say you recollect it was not John ? A. I think it was William. Q. Whereabouts did you see William Smith 1 A. In Washington. Q. Whereabouts ? A. I saw him on the street. Q. Near the court-house ? A. No, sir. Q. Wherofibouts, then ? A. I do not know where your court-house is here. Q. Whereabouts in Washington did you see Smith 1 A. I think it was on Pennsylvania avenue. Q. That is a pretty long avenue. Whereabouts ou the avenue ? A. Not far from the National Hotel. Q. On the street ? A. Yes, sir. Q. What did you tell William Smith ? A. I told AVilliam Smith just what I have told you. [Laughter.] Yes, sir, I told him just what I have sworn to here. IMPEACHMENT OF THE PRESIDENT. 229 Q. What part of Delaware was William Smith from ? A. He is from the banks of the Brandy wine. [Great laughter.] Q. Which bank of the Brandywine does he live on ? A. I think he is on the east bank of the Brandywine, or northeast. Q. Does he live in town or country ? A. 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 : Q. Mr. Karsner, when were you summoned before any committee in this matter 1 A. I do not recollect the day. It was about the 13th, I think. Q. Did you remain in Washington from the 9th till the 13th ? A. Yes, sir. I was engaged in trying to get a mail route in Delaware to facilitate post office matters, and I was detained here. I had engaged our representative, Mr. Nicholson, and his father was very ill at the time, and he was some time out of the House, which protracted my stay. Q. Have you remained here ever since 1 A. No, sir. Q. Do you know at whose instance you were summoned ? A. No ; I cannot tell that exactly, at whose instance, what particular person had me summoned. I was summoned before the managers of the House of Representatives, and ordered at a certain time to be at the judiciary apartment up stairs over the House of Representatives. Re-examined by Mr. Manager Butler : Q. You have been asked if you were summoned before the managers. Did you testify there ? A. I did. Q. After you had testified there, was General Thomas called in t A. Yes, sir. Q. Was your testimony, as you have given it here, I'ead 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 competent. 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 1 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 correctness of this man's statements. This man was heard as a witness by the House of Representatives ; the managers of the House of Representatives, 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 1 being the same then as he swears here ; and General Thomas admitted it word for word. I think it is competent and do press it. Mr. Curtis. Our view of it is, Mr. Chief Justice, that, having called this 230 IMPEACHMENT OF THE PRESIDENT. 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 propose that. Mr. Curtis. Then they offer the declarations of General Thomas, not in reference to any conspiracy, not in reference to any agreement between himself and the President as to doing anything, not in reference to any act done pur- suant to that conspiracy, but simply the declarations of General Thomas as to something which General Thomas had said to this witness to support the 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 I will waive it, Mr. Curtis. Very well. Mr. Manager Butler. Then we are through with the witness; but we must request him to remain iu attendance until discharged. Mr. Doolittle. Now, Mr. Chief Justice, I move that the court adjourn until to-morrow at 12 o'clock. The Chief Justice. It is moved by the senator from Wisconsin that the Senate, sitting as a court of impeachment, adjourn uutil to-morrow, 12 o'clock. The motion was agreed to ; and the Senate, sitting for the trial of the impeach- ment, adjourned until to-morrow at 12 o'clock. Thursday, April 2, 1868. The Chief Justice of the United States entered the Senate chamber at five minutes past 12 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 Representa- tives appeared and took the seats assigned them. The counsel for the respondent also appeared and took their seats. The presence of the Ilouse of Representatives 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 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 the proceedings 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. Tlie Secretary will read the amendment. The Secretary read as follows : Amend rule sovon by adding the following: Upon all such qne.-^tion.s tin; vote .shall bu witliout a division, unless the jeivs and uays bo demanded by one iit'th ol' the menibers present or requested by the presidinfj olficer, when the .same shall be taken. Mr. Drake. Please read the rule as it would be if amended. The Secretary read as follows : VII. The presiding ofKccr of the Senate shall direct all necessary preparations iu the Senate chamber, and the presiding officer on the trial shall direct all the forms of proceed- ing while the Senate are sitting (or the ))nrposi< of tryiiifi^ an impeachment, and all forms during the trial not otherwise si)ecially ]irovided for. And the ])residing otHcer on the trial may rule all questions of evidence and iucideutal questions, which ruling shall stand as the IMPEACHMENT OF THE PRESIDENT. 231 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 mav, at his option, in the tirst instance, submit any such question to a vote of the members of the Senate. Upon all such questions the vote shall be without a division, unless the yeas and nays be demanded by one-fifth of the members present or requested 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 Chief 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 evidence. Senatois will please to give their attention. Mr. Manager Butler. We propose now to call General Emory. Mr. Stanbery. 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 recalled as the witness for 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, perhaps, would have been put if it had not been stopped yesterday. The Chief Justice. Is there any objection to recalling the witness for the purpose of putting a single question to him ? Mr. Manager Butler. Not if it shall not be drawn into a precedent. George W. Karsner recalled. By Mr. Stanbery: Q. Mr. Karsner, where did you stay that night of the 9th of March, after you had the conversation with General Thomas ? A. I staid at the house of my friend, Mr. Tanner, in Georgetown. Q. What is the employment of Mr. Tanner ? A. I believe he is engaged in one of the departments here in Washington. Q. In which one ? A. I think the War Department. Q. Do you recollect whether on the next morning you accompanied Mr. Tan- ner to the War Department ? A. I do not. Q. You do not recollect that 1 A. I do not recollect whether I accompanied him or not. Sometimes I did and sometimes 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 accompany him. Q. At any time did you go with him to the War Department and see Mr. Stanton in regard to your testimony 1 The Witness. I appeal to the court. The Chief Justice. Answer the question. A. I saw Mr. Stanton. Several Senators. Louder ; we cannot hear. The Chief Justice. Raise your voice so that you can be heard in the cham- ber. By Mr. Stan bee Y : Q. You say you saw Mr. Stanton ? A. Yes, sir ; I saw Mr. Stanton. Q. What did you see him about 1 A. Nothing particular about ; only I was introduced to him. Q. Whom by ? 232 IMPEACHMENT OF THE PRESIDENT. A. By Mr. Tanner. Q. What was your object in seeing him? A. Well, I had seen all the great men in Washington, and I wished to see him. Q. That ia your answer ? A. Yes, sir. Q. In that conversation with Mr, Stanton was any reference made to your conversation with General Thomas ? A. I think there was. Q. Did you receive a note from Mr. Stanton at that time, a memorandum ? A. No, sir. Q. Did he give you any directions where to go 1 A. No, sir. Q. Did he speak about your being examined as a witness before the committee, or that you should be ? A, There was something said to that effect. Mr. Stanbery. That is all, sir. Mr. Manager Butler. That is all, Mr. Karsuer. Hon. ThojMAS W. Ferry sworn and examined. By Mr. Manager Butler : Q. Were you present at the War Office on the morning of the 22d of Febru- ary when General Thomas came there 1 A. I was. Q. At the time when some demand was made ? A. I was. Q. Will you state whether you paid attention to what was going on there, and whether you made any memorandum of it 1 A. I did pay attention, and I believe 1 made a memorandum of the occur- rences as far as I observed them. Q. Have you that memorandum ? A. Yes, sir, [producing a paper.] Q. 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 ? A. I believe, if my recollection serves me, that the memorandum covers it perhaps as 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 aubstantially and more perfectly than I could state from memory now what occurred. Q. Unless objected to, you may read it. Mr. Stanbery. We shall make no objection. The witness read as follows : War Department, Washington City, February 22, 1868. In the presence of Secretary Stanton, Judge Kelley, Moorheatl, Dodge, Van Wyck, Van Horn, Delano, and Freeman Clarke, at twenty-five minutes past twelve ni., General Thomas, Adjutant General, came into this Secretary ol War olhce, saying, "(Uiod morning," the Sec- retary replying, " Good morning, sir." 'J'homas looked arouutl and said, " I do not wish to disturb these gentlemen, and will wait." Stantou said, "Nothing private liere ; wiiat do you want, sir ?" Thomas demanded of Secretary Stanton the surrender of the Secretary of War oitice. Stanton denied it to him, and ordered him back to liis own otiice as Adjutant General. Thomas refused to go. "I claim the ofHco of Secretary of War, and demand it by order of the President." Stanton. "I deny your authority to act, and order you back to your own office." Thomas. " I will stand here. I want no unpleasantness in the iireseuce of these gentle- men." Stanton. "You can stand there if you ])lease, but you cannot act as Secretary of War. I am Secretary of War. I order you out of this otfice and to your own." IMPEACHMENT OF THE PRESIDENT. 233 Thomas. "I refuse to go, aud will stand here." Stanton. "How are you to get possession ; do you mean to use force?" Thomas, " I do not care to use force, but my mind is made up as to what I shall do. I want no unpleasantness, 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. I am Secretary of War, and your superior." Thomas then went into opposite room across hall [General Schriver's) and commenced ordering General Schriver and General E. D. Townsend. Stanton entered, followed by Moorhead and Ferry, and ordered those generals not to obey or pay attention to General Thomas's orders ; that he denied his assumed 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 not go. I shall discharge the functions of Secretary of War." Stanton. " Y^ou 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. "Y^ou shall not have them, and I order you to your own office." Mr. Manager Butler, (to tlie counsel for the respondent.) The witness is yours, gentlemen. Cross-examined by Mr. Stanbery : Q. Did the conversation stop there ? A. So far as I heard. Q. You then left the office ? A. 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. Q. Did the Secretary return with you, or did he remain 1 A, He remained a few moments in General Schriver's room, and then re- turned to his own room. When I left, he was in his own room. Q. How early in the morning of the 22d did you get to the office of the Sec- retary of War ? A. My impression is it was abouit a quarter past eleven in the morning. It was a little after eleven, at any rate. Q. Had you been there at all the night before? A. I had not. Q. Did you hear the orders given by General Thomas in Schriver's room 1 A. Yes, sir. Q. Were you in Schriver's room at the time those orders were given ? A. 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. Moor- head second. William H. Emory sworn and examined. By Mr. Manager Butler : Q. State your full name. A. William Helmsley Emory. Q. What is your rank and command in the army ? A. 1 am colonel of the fifth cavalry, and brevet major general in the army. My command is the department of Washington. Q. How long have you been in command of that department 1 A. Since the 1st of September, 1867. Q. Soon after you went into command 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 1 A. Yes. Q. 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 ? 234 IMPEACHMENT OF THE PRESIDENT. A. Tlio departniont of "Washington consists of the District of Columbia, Maryland, and Delaware, excluding Fort DehvAvare. Q. State as well as you can ; if you cannot give it all, give the substance of that conversation which you had with the President when ybu first entered upon command. A. It is impossible for me to give anything like that conversation. I can only give the substance of it. It occurred long ago. He asked me about the location of ohe troops, and I told him the strength of each post, and, as near as I can recollect, the commanding officer of the post. Q. Go on, sir, if that is not all. A. That was the substance and important part of the conversation. There was some conversation as to whether more troops shoukl be sent here or not. I recommended that there should be troops here, and called the President's attention to a report of General Canby, my predecessor, recommending that there should always be at the seat of government at least a brigade of infantry, a battery of artillery, and a squadron of cavalry ; and some conversation, mostly of my own, was had in reference to the formation of a military force in Mary- land that was then going on. Q. What military force ? A. A force organized by the State of Maryland. Q. Please state, as well as you can, what you stated to the President, in sub- stance, relative to the formation of that military force. A. I merely stated that I did not see the object of it, as near as I can recol- lect, and that I did not like the organization ; I saw no necessity for it. Q. Did you state what yoiu- objections were to the organization ? A. I think it is likely I did ; but I cannot 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. Q. By the offensive uniform do you mean the gray ? A. Yes, sir. Q. Do you remember anything else at that time ? A. Nothing. Q. Did you call upon the President upon your own thought or were you sent for at that time ? A. 1 was sent for. Q. When again did he send for you for any such purpose ? A. I think it was about the 22d of February. Q. In what manner did you receive the message 1 A. I received a note from Colonel Moore. Q. Who is Colonel Moore 1 A. He is the secretary of the President and an officer of the army. Q. Have you that note ? A. I have not. It may be in my desk at the office. Q. Did you produce that uote before the committee of the House of Repre- sentatives 1 A. I read from it. Q. Have you since seen that note as copied in their proceedings ? A. I have. Q. Is that a correct copy 1 A. That is a correct copy. Mr. Manager Butlicr, (to the counsel for the respondent.) Shall I use it, gentlemen 1 Mr. Curtis. Certainly. Mr. EvAKT.s. Use it, subject to the production of the original. IMPEACHMENT OF THE PRESIDENT. 235 Mr. Manager Butler. If desired. I suppose it will not be insisted on, [hand- ing a printed paper to the witness.] Will you read it? The witness read as follows : Executive Mansion, Washington, D. C, Fibruarij 22, 1868. General : The President directs nie 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. Q. How early did you call ? A. I called immediately. Q. How early iu the day ? A. I think it was about midday. Q. Whom did you find with the President, if anybody 1 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 1 A. 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 I 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 winter; 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 beeu returned to the command ; that although the number of companies had beeu increased, the numerical strength of the command was very much the same, growing out of an order reducing the artillery and infantry companies from the maximum 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 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 Genei-al Grant to any of his subor- dinate 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?" I replied, "To Order No. 17 of the series of 1867." He said, "I would like to see the order," and a messenger was despatched 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 gentleman 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 appropria- tion bill, and I thought it not unlikely had escaped his attention. He took the order and read it, and observed, " This is not in conformity to 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. 236 IMPEACHMENT OF THE PRESIDENT. The Witness. I cannot repeat it any nearer tlian I am now doing. Mr. CoNKLi.VG. Repeat your last answer louder, so that we may hear. !^[r. JoH.xsoN. What he said. The Witness. What who said, the President or me ? Mr. Howard. The President. The Witness. He said, " This is not in conformity Avith 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 the exact words, of the Presi- dent. He said, "Am I to understand that the President of the United Stales can- not give an order except through the General of the army," or " General Grant ?" I said, in reply, that that was my impression ; that that Avas the o})inion that the army entertained, and I thought upon that subject they were a iniit. I also said, " I think it is fair, Mr. President, to say to you that when this order came out there was considerable discussion on the subject as to what were the obliga- tions of an officer under that order, and some eminent lawyers were consulted — I myself consulted one — and the ouiniou was given to me decidedly and une- quivocally that we were bound by the order, constitutional or not constitutional." The President observed 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 1 A. Yes. Q. What did you state on that subject? A. Perhaps, 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 1 A. 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 understand other officers had consulted Mr. Reverdy Johnson. Q. Did you say to him Avhat opinion had been reported from those consulta- tions ? A. I stated before 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 hnv is evident." There the con- versation ended by my thanking him for the courtesy with which he had allowed me to express my own opinion. Q. Did you then withdraw? A. I then withdrew. Q. Did you see General Thomas that morning? A. I did not, that I recollect. I have no recollection of it. Q (Handing a paper to the witness.) State whether that is an official copy of the order to which you referred ? A. No, sir. It is only a part of the order. The oi-der which 1 had in my hand, and which I have in my office, has the appropriation bill in front of it. That is, perhaps, another form issued from the Adjutant General's office; but it is the substance of one part of the order. Q. Is it so far as it concerns this matter? A. So far as it 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 appropria- tion bill, and probably has been published as a detached section. Q. Is that an official copy '! A. Yes, sir ; that is an official copy. IMPEACHMENT OF THE PRESIDENT. 237 Q. This, I observe, is headed "Order No. 15." I observed you said "No. 17." Do you refer to the same or different orders ? A. I refer to the same order, and I thiuk 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 tile 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. Q. This is No. 15, and covers the second and third sections of that act? A. 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 equivalent to Order No. 17, unless some difference should appear. Mr. Manager Butler. There is no difference, I believe, and it is the same as is set out in the answer. Do you desire to have it read 1 Mr. Johnson. The manager will read it, if he pleases. Mr. Manager Butler read as follows : [General Orders No. 15.1 War Department, Adjutant General's Office, Washington, March 12, 1868. The following extract of an act of Congress is published for the information and govern- ment of all concerned : [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 he it further enacted. That the headquarters 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 operations issued by the President or Secretary of War shall be issued through the General of the army, and, in case of iiis inability, through the next in rank. The General 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 approval of the Senate ; and any orders or instructions 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 instructions contrary to the provisions 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 that such 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. 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. 5. Andhe it further enacted, That it shall be the duty of the officers of the army and navy and of the Freedmeu's Bureau to prohibit and prevent whipping or maiming of the per- son as a punishment for any crime, misdemeanor, or offence, by any pretended civil or mili- tary authority in any State lately in rebellion, until the civil government of such State shall have been restored, and shall have been recognized 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 further oiganization, ai"ming, or calling into service of the said militia forces, or any part thereof, is hereby pro- hibited, under any circumstances whatever, until the same shall be authorized by Congress. Approved March 2, 1867. By order of the Secretary of War : Official : E. D. TOWNSEND, Assistant Adjutant General, E. D. TOWNSEND, Assistant Adjutant General. 238 IMPEACHMENT OF THE PRESIDENT. Q. You are still in command of the 'department, as I understand ? A. Yes, sir. Cross»examined by Mr. Stanbery : Q. The paper whicli you Lad, and which was read by the President on that day, was marked " Orders No. 17," was it ? A. 15 or 17. Q. This is 15 ; is the other 17 ? A. I think it was, but I will not be sure. Q. In that paper marked No. 17 was the whole appropriation act printed and set out, and was it in other respects like this 1 A. In other respects like that. There is one thing I wish to .^tate. The copy on file in my office contains the appropriation bill, and I may have con- founded them. It is numbered 17. Q. And it is your impression that the paper read by you at the President's was the same you had 1 A. That is my impression, although it may have been that now before you. I cannot say. Q. 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? A. Yes. Q. I see this document contains no construction of that act, but simply gives the act for their information ; is that so ? A. Yes, sir. Q. Upon reading the act, then, a discussion arose among the officers of the army ? A Yes. Q. As to its meaning, or what 1 A. A discussion with a view of ascertaining what an officer's obligations were under that act. Q. You had received no instructions from the War Department or elsewhere except what are contained in that document itself? A. None whatever. Q. It left you, then, to construe the act ? A. Yes, sir. Q. Upon that you say that to settle your doubts you applied to an eminent lawyer ? A. I had no doubt myself, but to satisfy the doubts of others. Q. You applied to an eminent lawyer ? A. Yes, sir. Q. And that gentleman whom you applied to was Mr. Robert J. Walker? A. Yes, sir. Q. Was it he that advised you that you were bound to obey only orders coming through General Grant, whether it was constitutional or unconstitutional to send orders in that way ? A. The question of Constitution was not raised ; it was only u question of whether we were bound by that order. Q. I understood you to say that the answer was " constitutional or not con- stitutional," in your response to General Butler ? A. I made a mistake, then. The question was whether we were bound by it, and I should like to correct it. Mr. Manager BuTLKK. You may do so. Mr. Sta.xukrv. Certainly. (To the witness.) You said in your former answer that the advice was that you were bound to obey it whether it was constitu- tional or not. A. Until it was decided. We had no right to judge of the Constitution — the officers had not. IMPEACHMENT OF THE PRESIDENT. 239 Q. That was tlio advice you got ? A. Yes, sir, Q. Until it was decided — decided by whom and where ? A. 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. Q. When you said to the President that he had approved something, did you speak in reference to that Order No. 17 which contained the whole of the act ? A. I did. Q. Wliat did you mean to say — that he had approved the order, or had approved the act 1 A. 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. Q. What is marked " approved," the order or the act ? A. The act is marked " approved." The order contains nothing bixtthe act ; not a word besides. Q. Then the approval that you referred to was to the act ? A. I consider the act and the order the same. Q. But the word " approved" you speak of was to the act 1 A. Of course ; but as far as we are concerned 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 the army of the United States, by and with the advice and consent of the Senate, the rank of major general by brevet in said army, to rank as such from the ]iith day of March, in the year of our Lord 18155, 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 President of the United States of America, and other ofticers set over him accordiug to law, and the rules and discipline of war. This commission to continue in force during the plea- sure 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 1866, and of the niuety-tirst 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 : W^AR Dep.\ht.^ient, Ar)JUT.\NT General's Office, March 24, 1868. It appears from the records of this office that the annexed document is a true copy of the original commission issued to Brevet Major General W. H. Emory, Uuited 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 assist- ant adjutant general of the array of the United States, and that to his attestation as such full faith and credit are and ought to be given. In testimony whereof I, E. M. Stanton, Secretary of War, have hereunto set my hand, and caused the seal of the Department of War of the United States of America to be atHxed on this 24th day of March, ld68. [SEAL.] E. M. STANTON, Secretary of War. 240 IMPEACHMENT OF THE PRESIDENT. "We also offer the ordei- assigning Greneral Emory to the command of the department of Washington : [Special Orders, No. 426.] Headqx'arters Army op the United States, Adjutant General's Office, Wushingion, August 27, 1867. [Extract.] 25. Brevet' Major General W. H. Emory will forthwith relieve Brevet Major General Canby, in command of the department of Washington, and by direction of the President is assigned to duty according to his brevet of major general while exercising such command. By command of General Grant. E. D. TOWNSEND, Assistant Adjutant General. Official : E. D. TOWNSEND, Assistant Adjutant General. We now offer the order of the President, under which General Thomas resumed his duties as Adjutant General of the army of the United States : ExECl'TIVE MAN.>iION, Washington, D. C, February 13, 186S. General: I desire that Brevet Major General Lorenzo Thomas resi;me his duties as Adjutant General of the army of the United States. Respectfully yours, ANDREW JOHNSON. General U. S. Grant, Commanding Army of the United States IVashington, D. C It is the original order. I now offer the original letter of General Grant reque.sting the President to put in writing a verbal order which he had given him prior to the date of this letter. Both the letter and the indorsement by the President are original. Mr. Sta.nbery. 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 Wil.so.n. I will read it : Hf.adquarters Army of the United St.\tes, IVashington, D. C, January 24, 1868. Sir : I have the honor very respectfully to request to have in writing tiie order whicli the President gave me verbally on Sunday, tlie 19th instant, to disregard tiie orders of Hon. E. M. Stanton as Secretary of War until I know from the Pre.siileut himself that they were his orders. I have the honor to be, very respectfully, vour obedient servant, U. S. GRANT, General. His Excellency A. Johnson, President of the United States. Upon which letter is the following indorsement : ExEcuTivF, Mansion, Washington, I). C, January 2\), 1868. Andrew Johnson, rrcsidvnt of the United States. In reply to request of General Grant of the 24th .January, 186S, 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 iJepartment assvuiied to be issued by the direction of the President, unless such order is known by tlie General couiuianding the armies of the United States to liave be(!n authorized by the Executive. ANDREW JOHNSON. Mr. Cameron. I should be glad to have that read by the Clerk. Tlu! Chief Justice. The Secretary will re;id the order. The Sect etary read the letter of Cieueral Grant and the indorsement last read by Mr. Manager Wilson. IMPEACHMENT OF THE PRESIDENT. 24 1 Mr. Manager Wilson. The next document wliicli we produce is a letter ■written by the President of the Unittjd States to General Grant of dat(! of Feb- ruary 10, 1S6S. It is the original letter, and I send it to counsel that they may examine it. [The letter was handed to the counsel for tlie President, and examined by them.] ]\tr. Stanbery. Mr. Chief Justice, it appea4s that this is a letter purporting to be a part of a correspondence between General Grant and the President. I ask the honorable managers whether it is their intention to produce the entire correspondence ? Mr. Mana^-er WiLSON. It is not our intention to produce anything beyond this letter which we now offer. Mr. Stanbery. No other part of the correspondence but this letter? Mr. IManager Wilson. That is all we propose now to offer. [The letter was returned to the managers.] Mr. Stanbery. We wish the honorable managers to state what is the pur- pose of introducing this letter '? What is the object ? W^hat is the relevancy ? What does it relate to ? ]\[r. IManager AYiLSON. I may state that the special object we have in view in the introduction of this letter is to show the President's owai declaration of his intent to prevent the Secretary of War, Mr. Stanton, resuming the duties of the office of Secretaiy of War, notwithstanding the action of the Senate on his case, and the requirement of the tenure of-office bill. Do you desire it read ? Mr. Stanbery. Certainly, if it is to come in. Mr. Manager Wilson. I ask the Secretary to read it. The Chief Justice. The Secretary will read it. The Secretary read the letter, as follows : E.XECUTivE Mansion, February 10, 1868. General: The extraordinary character of your letter of the 3d instant would seem to preclude any reply on my part ; but the manner in which publicity has been f>'iven to tlie conespondeiice of which that letter forms a part, and the grave cjuestions which are involved, induce me to take .'Uty in any legal proceedings. You add : "I am in a measure conlirmed iu this conclusion by your recent orders directing mo to disobey orders from the Secretary of War, my superior and your subordinate, without hav- ing countermanded his authority to issue the orders I am to disobey." On the 24tli ultimo you addres.sed 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 ot War, until you "knew from the I'resident himself that \\\vy were his orders." On the viDth, in compliaiiie with your request, I did givc^ you instructions in writing "not to obey any order from the War i)ep;utment, assumeil to be issued by direction of the Presi- dent, unless such order is known by the General commanding the armies of the United States to have been autliorized 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 ot' the President, and whicii piuport to be "by direction" of the J'resident. I"'or such orders the Presiiient is responsible, and he slnuild therefoie know and undersiaiiclaration ; and the matter of dispute between himself and (ieneral Grant, al- though it is referred to in tliis letter, is no part oi' thr matter upou which w:e rely in this accusation against the President. l]i\ Stanbery and Mr. Curtis. We rely upon it. Mr. ]\Ianager Binuham. Of course the gentlemen rely on it; but they ask us to introduce matter which we say by no rule of evidence is admissible at all, IMPEACHMENT OF THE PRESIDENT. 245 and for tlie reason which I have stated ah'eady; it is not the hig^hest evidence of the fact. If we are to have the testimony of the members of liis cabinet about a matter of fact, and, as I said before, tliis h'tter 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 are the letters admissible. I admit that if the letters, according to the statement here, showed a statement adopted by the President himself in regard to the matter with which we charge him, it wonld be a somewhat different ques- tion, although it would not take it then entirely out of the rule of evidence; but anybody 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 cab- inet officer whatever that will in any manner qualify the confession of the Presi- dent written upon the paper now read that his purpose was to prevent the execution of the tenure-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 olhce. 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 (hat 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 obliga- tion 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 proceed the counsel for the President will pleas3 to state their objection in writing. The objection was reduced to writing and sent to the desk. The Chief Jusiice. 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 honoral)le managers shall also read the enclosures therein referred to and by the letter made part of the same. Mr. Stanbery. Mr, Chief, Justice, is the question now before your honor or befoi'e the court 1 The Chief Justice. Before the body. j\Ir. Stanbery. Before the body 1 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 a certain intent, with regard to the exclusion of Mr. Stanton from office. In the letter the President refers to certain documents which are enclosed in it as throwing light upon the ques- tion, and explaining his own views. Now, I put it to the honorable 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, Avould be admissible .'' 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 "exhibits," 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 246 IMPEACHMENT OF THE PRESIDENT. the documents, not in a separate package, not in another communication, but enclosed in the letter itself, so that when the letter 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 President sent to be read to give his views, and not merely the letter unconnected with these documents. Mr. Manager WiLSON. Mr. President, the managers do not care to protract this discussion. 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 members of the cabinet touching a question of veracity pending between tlie President and General Grant. Xow, we insist that that question has nothing to do with this case. Everything 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 enclosures shows that those enclosm-es relate exclusively to that question of veracity pending between himself and the General, and are in nowise 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 honorable 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 honorabb- man- ager consider himself entitled to read so much of the letter as bore upon his immediate object without reading the whole? Mr. Manager Wilson. I will state, in reply to the question propounded by the pre>ideut, that we, of course, expect to use the letter for any ])roper pur- pose connected with the issues of the case. The Chief Justice. The Chief Justice will submit the objection to the con- sideration of the Senate. The Secretary Avill read the objection. The Secretary read as follows : The counsel for the President object that the letter is not evidence in the case miless the honorable managers shall also read the euclosures therein relerred to and by the letter made part of the same. Mr. CoNKLiNG. Mr. President, may T ask a question? I call for the read- ing of the words in the letter relied upon now for this jnirpose. I send my question to the Chair in writing. The Chief Jr stice. The Secretary will read the question proposed by the senator from New York. The Secretary read as follows : The counsel for the respondent will ph'ase reud the words in the letter relied upon touch- ing enclosures. Mr. Stanbery read as follows : Gknkral: The extraordinary character of your letter of the M instant would seem to preclude any n^j^ly on my ])art ; but the manner in which publicity has been o-iven to the correspondence of which that letter forms a part, and the grave rpu'stions wliicli are involved, induce me to take this mode (d' giving, as a ]iropi'r sc(iiiel to the roinniunications whicii have passed between us, the statements of the tive meiiihers of the cabinet who were })res- ent on the occasion of our conversation on the Itth ullimo. C'opics of the h'tlers which they have addressed to me upon the subject are accordingly herewith enclosed. The Chief Justice. Senators, you who are of opinion that the objection of the counsel for the President be sustained will say "ay" ]\rr. Conn ess. 1 call for the yeas and nays. Tlie yeas and nays were ordered. The Chief Justice. Senators, you who are of opinion that the objeclion of IMPEACHMENT OF THE PRESIDENT. 247 the counsel 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, Avhether, if this objection is sustained, it has the effect of ruling out the letter as evidence altogether? The Chikf Justice. It has. Mr. Anthony. Mr. President, I Avould desire, if it is proper, that the ques- tion should be put in a diffei-ent form ; that it should be an affirmative vote. The Chief Justice. This is an affirmative form. INIr. OoNNEsS. I wish the Chair would state the question. The Chief Justice. Senators, you who are of opinion that the objection of the counsel for the President be sustained will, as your names are called, answer "yea;" those of the contrary opinion, "nay." If the yeas carry it the effect will be to exclude the evidence. If the nays carry it the eflFect will be to admit it. Mr. Evarts. To exclude it, unless the enclosures are also offered, if our objection prevail. Mr. Anthony. Mr. President, perhaps I am rather dull, but I do not \n-e- cisely understand the effect of the decision of this question. A negative vote admits the evidence, I understand. The Chief Justice. It does. Mr. Anthony. And an affirmative vote excludes it. The Chief Justice. Unless the enclosures are produced and read. Mr. Henderson. Mr. President, listening to the question asked by the sen- ator from Rhode Island, I presume he desires to know whether the letter with the enclosures can afterward be read as evidence, even if the objection be sus- tained. The Chief Justice. Undoubtedly it excludes the evidence only in the case that the enclosures 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 understood, evidently. The Chief Justice, (to the Secretary.) Proceed with the call. The call of the roll cannot be interrupted. The Secretary concluded the calling of the roll, and the result was — yeas 20, nays 29 ; as follows : Yeas — Messrs. Bayard, Conklin^, Davis, Dixon, Doolittle, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of Tennessee, Ross, Spra^ue, Trumbull, Van Winkle, Vickers, and Willey — 20, Nays — Messrs. Anthony, Buckalew, Cameron, Cattell, Chandler, Cole, Conness, Corbett, Cragin, Drake, Edmnnds, Ferry, Fessenden, Frelincfhuysen, Howard, Howe, Moro;an, Mor- rill of Maine, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Thayer, Tipton, Williams, and Wilson — 29. Not voting — Messrs. Harlan, Morton, Saulsbury, 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, i 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 Secretary of War ad interim, and that his signature as such is attached to 248 IMPEACHMENT OF THE PRESIDENT. that copy. Tf we are not called upnu to prove his siguature, of course we shall not introduce any testimony for that purpose. Mr. Ci KTis. Stop one moment, if you please. Let us look at this paper further. [The counsel for the respondent having examined the paper, returned it to the managers.] Mr. Stanbery. We see that this is the copy Mr. Stanton requested. Read the indorsement, if you please. ]\Ir. Manager WiLSON. Have you any objection to its being read ? Mr. Stanbkry. No; we want it read. Mr. Manager Wilson. It is as follows : Executive Mansion, Washington, D. C, February 21, 18GS. Sir: Hon. Edwin M. Stanton having been this day removed fiom office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and wilf immediately enter upon the discharge of the duties pertaining to that office. Mr. Stanton has been iustnicted to transfer to you all the records, books, papers, and other public property now in his custody and charge. Respectfully yours, ANDREW JOHNSON. Brevet Major General Lorenzo Thomas, Adjutant General United States Army, Washington, D. C. Official copy: Respectfully furnished to Hon. Edwin M. Stanton. L. THOMAS, Secretary of If'ar ad interim. Mr. Curtis. We want the indorsement read. Mr. Manager WiLSOX. The indorsement is, "Received 2.10 p. m., February 21, 186S ; present General Grant." Mr. EvARTS. That indorsement is whose] Mr. Stanbery. It is in the handwriting of Mr. Stanton. Mr. Manager Wilson. 1 do not know. Mr. Stanbery. Is that fact admitted 1 ]\[r. Manager Butler. It is in the handwriting of Mr. Stanton. Mr. Manager Wilson. We next offer copies of the order removing ^Ir. Stan- ton 9,nd the letter of authority appointing General Thomas, with certain indorse- ments thereon, forwarded by the President to the Secretary of the Treasury for bis 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 Chirk Justice. The Secretary will read the paper. The chief clerk read as follows : [Copy.] Executive Mansion, Washington, D. C, February -.i], 1863. Sir : r)y virtue of the power and authority vested in nui as I'resident by the Coustitutiou and laws iif tlie I'nited States, you are hereby removed fniin office as Secretary of the Depart- ment of ^\■ar, and vdur fiuictidns as such will tenninati' uptm receipt of tiiis communication. You will transfer to Brevet Major (icneral Lorenzo Thomas, Adjutant CJeneral of the army, who has tliis day been autliorizeii and tunpowered to act as Secii-tary of War ad interim, all records, books, 'i)ai)ers, and other public property now iu your custody and charge. Respectfully, yours, ANDREW JOHNSON. Hon. E. M. Stanton, Washington, D. C. Official W. G. I^IOORE, United States Arms. IMPEACHMENT OF THE PRESIDENT. 249 [Copy.] ExECUTivK Mansiov, Wnshinaton, D. C, February 21, 18S8. Sir : Hon. Edwiu M. Stauton having been this day removed from office as Secretary for the Department of War, you are liereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to tliat otiice. ]Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge. Kespectfully, yours, ANDREW JOHNSON. Brevet Major General Lorenzo Thomas, Adjutant General United States Army, Washington, D. C. Official : W. G. MOORE, United States Army. February 2], 1868. Respectfully referred to the honorable the Secretary of the Treasury, for his information. By order of the President : W. G. MOORE, United States Army. Treasury Department, Fehruary 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. StantDU from the office of Secretary for the Depart- ment of War and the appointment 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 Order 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 returned to the managers.] Do you want it read? Mr. Stanbery. 0, no. Mr. Manager Butler. Then we offer it without reading it. The document is as follows : [General Orders No. 17.] War Department, Ai>jutant General's Office, IVashingfon, March 14, 1867. The following acts of Congress are published for the information and government of all concerned : !. An act making appropriations for the support of the Military Academy for the year ending June 30, 18(38. II. An act making appropriations for the support of the army for the year ending June 30, 1868. HI. An act making appropriations for fortifications for the year ending June 30, 1868. L— [Public— No. 54.] AN ACT making appropriations for the support of the Military Academy for the fiscal year ending June 30, 1868, and for other purposes. Be it enact d by the Senate and House of Representatives of the United States of America in Congress assembled, That the following sums be, and the same are hereby appropriated, out of any money in the treasury not otherwise appropriated, for the support of the Military Academy fur the year ending the 30th of June, 1868 : For pay of officers, instructors, cadets, and musicians, $154,840. For commutation of subsistence, $5,050. For pay in lieu of clothing to officers' sei-vants, $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 forage for artillery and cavalry horses, $9,000. For horses for artillery and cavalry practice, $1,000. For repairs of officers' quarters, $5,000. For targets and batteries for artillery practice, $500. 250 IMPEACHMENT OF THE PRESIDENT. For furniture of cadets' liospital, $-200. For gas i)ii)es, gasometers, aud retorts, $600. For materials for ([itarters for subalteru officers, $5,000. For ventilating and heating the barracks and other academic buildings ; improving the a))paratus for cooking for the cadets ; repairing the hospital buildings, including the introduc- tion of baths for the sick, the construction of water-closets in the library building, and new furniture for the recitation-rooms, $40,000. For purchase of fuel for cadets' mess-hall, $:i,000. For the removal and enlargement of the gas-works, $20,000. For additional appropriations, for which estimates were not made last year: For enlarging cadet laundry, $5,000. For furniture for soldiers' ho.spital, $100. For increasing the supply of water, replacing mains, «S:c., $1.5,000. For ice-house and additional store and .servants' rooms, $7,500. For tire-proof building for public offices, $15,000. For breast-high wall of water battery, .$5,000. For permanent derrick on the wharf, $2,500. Sec. 2. Ami he it further enacted. That the cadets of the Military Academy be entitled to the ration now received by the acting midshipmen at the Naval Academy, commencing at the date of the approval of the law authorizing the same. Sec. 3. And be it further enacted, That hereafter the assistant professor of Spanish shall receive the same pay and emoluments allowed to other assistant professors of the academy. Sec. 4. And he it further enacted, That no part of the moneys appropriated by this or any other act shall be applied to the pay or subsistence of any cadet from any State declared to be in rebellion against the government of the United States, appointed after the 1st day of January, l.S(>7, until such State shall have been restored to its original relations to the Union. Approved February 28, ld67. 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. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assemhled. That the following sums be, and the same are hereby, appropriated, out of any money in the treasury not otherwise appropriated, for the support of the army for the year ending the 30th of June, 1868 : For expenses of recruiting, transportation of recruits, and compensation of citizen sur- geons for medidal attendance, .$300,000. For pay of the army, $14,757,952. For commutation of officers' subsistence, $2,228,982. For counnutation of forage for officers' horses, $104,600. For payments in lieu of clothing for officers' servants, $276,978. For payments to discharged soldiers for clothing not drawn, $200,000. For contingencies of the army, $100,000. For artificial limbs for soldiers and .seamen, $70,000. For army medical umseum, $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 aird arsenals : For arsenal and armory at Rock Island. Illinois, $686,500. For the erection of a bridge at Rock Island, Illinois, as recommended by the Chief of Ord- nance, .$20(t,()0(» : Hrocided, That the ownership of said bridge shall be and remain in the United States, and the Rock Island and Pacilic Railroad Com])any shall have the right of way over said bridgi! for all i)urposes of transit across the island and river, upon the condi- tion that the said company shall, before any money is exjjendcd by tlu? government, agree to pay and shall secure to the United States, first, half the cost of said bridge; and second, half the ex|)enses of keeping said bridge in repair ; and ujjon guaranteeing said conditions to the satisfaction of tin; Secretarj- of War, by contract or otherwise, the said company shall have the free use of said bridge for purposes of transit, but without any claiui to ownership thereof. For Watervliet arsenal, West Troy, New York, $38,200. For current expenses of the ordnam-e service, $300,000. For Allegheny arsenal, Pittsljurg. IViuisylvania, $34,000. For ('haiii|)lain arseiuil, at Vergennes, A'ermont, $800. For Columbus ar.senal, Colunilms, Ohio, $139.()25. For Fort Momoe arsenal. Old Point Comfort, Virginia, $6,000. For Fort I'nion arsenal. Fort Union, New Mexico, $10,(100. For Fraukford arsenal, liridesburg, Pennsylvania, $30,000. IMPEACHMENT OF THE PRESIDENT. 251 For Kennebec arsenal, Angusta, Maine, ftl,5"25. For Indiiiuapolis arsenal, Indianapolis, Indiana, 1169,025. For Leavenworth arsenal, Leavenwortb, Kansas, |15,0tl0. For New York arsenal. Governor's island, New York, $1,200. For Pikesville arsenal, Pikesville, Maryland, $800. For St. Louis arsenal, St. Louis, Missouri, $()5,0()0. For Washington arsenal, Washinji^ton, District of Columbia, SoOjOOO. For Watertown arsenal, Watertown, Massachusetts, $21,(i()7. For the purchase of the 'Willard Sears estate, adjoining)- the Watertown arsenal grounds, $49,700, or so much thereof as maybe necessary; and the Secretary of War is hereby author- ized to sell at public auction a lot of land belong^iug to the United States, situated in South Boston, if, in his opinion, the same is not needed for the public service, and pay the proceeds thereof into the treasury. Bureau of Refugees, Freedmen, and Abandoned Lands: For salaries of assistant commissioners, sub-assistant commissioners, and agents, $147,500. For salaries of clerks, $82,800. For stationery and printing, $(J3,000. For quarters and fuel, $200,000. For commissary stores, $1,500,000. For medical department, $500,000. 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 hereb3' author- ized to apply any balance on hand, at this date, of the refugees and freedmen's fund, accounted for in his last annual report, to aid educational institutions actually incorporated for loyal refugees and freedmen: And provided further, That no agent or clerk not heretofore authorized by law shall receive a monthly allowance exceeding the sum of $200. Sec. 2. And be it further enacted, That the headquarters 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 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 General 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 approval of the Senate; and any orders or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who sliall issue orders or instructions contrary to the provisions 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 that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in pny court of competent 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 appropriated, to be disbursed by the Secretary of War, in the erection of fire-proof buildings at or near the city of Jefler- sonville, in the State of Indiana, to be used as storehouses for government property. 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 per- son as a punishment for any crime, misdemeanor, or offence, by any pretended civil or mili- tary authority in any State lately in rebellion until the civil government of such State shall have been restored and shall have been recognized by the Congress of the United 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 the further organization, arming, or calling into service of the said militia forces, or any part thereof, is hereby pro- hibited, under any circumstances whatever, until the same shall be authorized by Congress. Sec. 7. And be it further enacted, That the Paymaster General be authorized to pay, under such regulations afi the Secretary of War shall prescribe, in addition to the am(mut received by them, for the travelling expenses of such California and Nevada volunteers as were dis- charged in New Mexico, Arizona, or Utah, and at points distant from the place or places of enlistment, such proportionate sum according to the distance travelled 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 appropriated out of any moneys in the treasury not otherwise appro- priated. Approved March 2, 1867. 252 IMPEACHMENT OF THE PRESIDENT. Ill— [Public— No. 86.] AN ACT iiuikiiif^ appropriations for tlie construction, preservation, and repairs of certain fortifications and otlu-r works of defence for the fiscal j-ear ending June 'M, 1^(58. Be it enacted by the Senate and House of Reprcscntntiocs of ike United States of America in Covgrcss assemUcd, Ttiat tlie foUowinor sums be, and tbey are liereby, appropriated out of any money in the treasury not otherwise appropriated for the construction, preservation, and repair of certain fortifications and other works of defence for the year ending tlie 3Uth of June. L'^fiH: For Fort Scammel, Portland, Maine, $50,000. For Fort Georf^es, on Hog- Island ledge, Portland, Maine, §50,000. For Fort Wiuthrop, Boston, Massachusetts, .$50,000. For Fort Warren, iioston, Massachusetts, §50,000. For fort at entrance of New Bedford harbor, Massachusetts, $30,000. For Fort Schuyler, East river. New York, §5000. For fort at Willett's Point, 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, §oO,000. For Fort Jetlersou, Garden Key, Tortugas, §50,000. For Fort Clinch, Amelia island, Florida, §25,000. For Fort at I-'ort Point, San Francisco bay, California, §50,000. For fort at Lime Point, California, §50,000. For fort at Alcatraz island, San Francisco bay, California, $100,000. For Fort Preble, Portland harbor, Maine, §50,000. For Fort McClary, Portsmouth harbor. New Hampshire, §50,000. For Fort Independence, Boston harbor, Massachusetts, §50,000. For survey of northern and northwestern lakes, $150,000. I'or Fort Montgomery, at the outlet of Lake Champhiin, §25,000. For purchase and repair of instruments, §10,000. For purchase of sites now occupied and lands proposed to be occupied for permanent sea- coast defences: Prodded, That no such purchase shall be made except upou the apjjroval of its expediency by the 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 defences : Provided, That no such purchase shall be made except upon the approval of its expediency by the Secretary of War and of the validity of the title by the Attorney General, §25,01)0. For construction and n^pair of barracks and (juarters for engineer troops at the depot of engineer supplies near St. Louis, Missouri, $20,000. For constiuciion ami repair of barracks and quarters for engineer troops at the depot of engineer supplies at Willett's Point, New York, §25,(K)0. . Sec. 2. And he itjurt/ier enacted, That there shall not be over fifty per cent, of the fore- going appropriations expended during the fiscal year ending 30th June, ISOd, and the resi- due thereof shall not be expended till otherwise ordered. Sec. 3. And he it further enacted. That, in order to determine the relative powers of resist- ance ot" the turret and the broadside systems of iron clad vessels of war, ami whether or not our present heaviest guns are adetpiate to the rajtid destruction of the heaviesl plat(>d ships now built, or deemed practicable on either system, and whether or not our best stone torts will resist our heaviest guns, and, if not, what increase in strength, by adding either stone or iron, or variation in form, is necessary to that end. the Secretary of War and the Secre- tary of the Nav}- are hereby authorized to detail a joint board of not less than six comjie- tent ofhcers, thiee from tlu- army and three from the luivy, whose duty it shall be to con- struct and test, by firing upon them, such targets as thi'y may deem necessary for the pur- poses above named. And the Secretaiy of \\'ar and the Secretary of the Navy are hereby authorized and directed to supply the board with such facilities for this purpo>e as they may require : Provided, It can be done from the unexpended funds and materials now at their disposal, the expenses to be borne e((ually by the War and Navy He|iartiiieiits, and from such funds at their disposal as the Si;cretary of War and the Secretary of the Navy may designate respectively. Approved March 2, 18G7. By order of the Secretary of War : ' E. D. TOWNSEND, Assistant Adjutant General. Official : E. D. TOWNSEND, Assistant Adjutant General. IMPEACHMENT OF THE PRESIDENT. 253 Georgr "W. "Wallacr sworn and exaininod : By Mr. JIanager Butler : Question. What is your name and rank in the army of the United States, if you have any ? Answer. George W. Wallace, lieutenant colonel of the twelth infantry, com- manding the garrison of Washington. Q. How long have you been in command of the garrison of Washington 1 A. Since August last. Q. What time in August ? A. The latter part of the month. The exact date I do not recollect. Q. State if at any time you were sent for to go to the Executive Mansion about the 23d of February last. A. On the 22d of February I received a note from Colonel Moore desiring to see me the following morning at the Executive Mansion. Q. Who is Colonel ]\roore ? A. He is on the staff of the President ; an officer of the army. Q. Does he act as secretary to the President ? A. I believe he does. Q. You received that note on the night of the 22d ; about what time at night ? A. About seven o'clock in the evening. Q. Was any time designated when you should go? A. Merely in the morning. Q. Sunday morning? Did you go ? A. I did. Q. At what time in the morning ? A. About ten o'clock. Q. Did you meet Colonel Moore there? A. I did. Q. What was the business ? A. He desired to see me in reference to a matter directly concerning myself. Q. How concerning yourself? A. Some time in December my name had been submitted to the Senate for brevets. Those papers had been returned to the Executive 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. Q. After that did he say anything about your seeing the President? A. I asked how the President was. He replied "Very Avell; do you desire to see him?" to which I replied "Certainly;" and in the course of a few moments I was admitted into the presence of the Executive. Q. Was a messenger sent in to know if he would see yon ? A. I am unable to answer. I had a conversation with Colonel Moore at the time. He notified him. Q,. Did Colonel Moore leave the room where you were conversing with him until you went in to see the President? A. He left the room to bring out this package of papers. No other object, that I am aware of. Q. Did he go into the office of the President where the President was for that purpose ? A. Yes, sir; he passed in the same door I did. Q. 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? A. I did. I went in at my own request. 254 IMPEACHMENT OF THE PRESIDENT. Q. After you had passed the usual salutations, what was the first thing he said to you 1 A. Tlie President asked me if any changes had been made in the garrison within a short time ; any movement of troops. Q. The garrison of Washington ? A. The garrison of Washington. Q. What did you tell him? A. I re))lied that four companies of the twelfth infantry had been sent to the second military district on the 7tli of January, and beyond that no other changes had been made. In doing so I omitted to mention another company that 1 have since thought of, Q. Had he ever sent to you on such an errand before 1 Mr. Curtis and Mr. Evauts. He did not send this time. Mr. Manager Butler. Is that quite certain? Jlr. Curtis. Yes; it is proved. Mr. Manager Butlkr. 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 assumes that he was got in there. Mr. Manager Butlkr. If he was not got in, how was he there? Mr. Evarts. This witness has said that upon his inquiry how the Presi- dent was, the private secretary said: "Would you like to see him?" and the witness said " Certainly," and went into his room. If that is being got into his room, directly or indirectly, I am very much mistaken. Mr. Manager I3utler. I assume one theory, Mr. President, and the counsel assume another. Mr. EvAR'is. No; I follow the testimony. I assume nothing. Mr. Manager Butler. I again say that I assume another tlieory upon the testimony, and I think the testimony was that he came there by the procure- ment 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 ? A. Never. Q. Did he say to you anything upon this subject: " I asked the same ques- tion of your commander, General Emory, yesterday, and he told me the same as you do ? " A. I do not iniderstand the question. Q. Did he say to you that he had asked the same question the day before of General Emory, and got the same answer ? A. No, sir. Q. Did he speak of it as a thing that he desired to know, or a thing that he did know already ? Mr. Evarts. Wliat he did say is the question. Mr. Stam!Krv. AVe object, Mr. Cliicf 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 ])ress it, sir. I always desire to waive wherever I can. (To tlu; witness ) Was there anything more said ? A. Nothing more said on that subject. Q. On your part or his ? A. Neither. Q. Did you find out next day that you had not been rejected by the Senate? Mr. Stamjery. What has that got to do with it? Mr. EvAirrs. It is wholly inunatcrial. Mr. ^Manager P)i TLKR. Not at all. 'J'he President sends for an officer of the army through his secretary, and informs him that the Senate has rejected IMPEACHMENT OF THE PRESIDENT. 255 liim ; and then having got him into hi>s presence hegins to inquire about the movement of troops, when it was not true tliat he had been rejected. Tlie 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 Lmguage was that my name had been " set aside." Mr. Manager Eutlkr. What made you change it? Mr. Staxbery. 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 1 The Witness. That my name was set aside. My own view of the matter was that I had been rejected. Q. If that was your view why did you change the hmguage just now from " rejected " to " set aside 1" Mr. Evarts. He did not change it. He said " set aside " before. It was you that changed it. Mr. Manager Butler. I understand what he says, perfectly. Mr. Evarts and Mr. Stanbury. 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 V " 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 1 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 expression of Colonel Moore. My own view was that it amounted to a rejection ; but he said " set aside ;" he used that language, I believe. Q. Did he make any difference between "set aside" and "rejected," that you know of, at that time ? A. That is a question I never thought of. Q. You did not think of it at that time ? A. No, sir. Q. 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 advised 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 be did not understand that he was rejected. (To the counsel for the respondent.) Do you continue your objections ? 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 kuow when I am, sir. [A pause.] I am now through with the witness. Mr. Stanbery. So are we. jNIr. Drake. Mr. President, I move that the Senate take a recess for ten minutes. The motion was agi-eed 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 evi- dence. Mr. Manager Wilson. We now offer a certified copy of the order restoring General Thomas to the duties of the Adjutant General's ofl5ce. The Chief Justice. Is there any objection to the order? Mr. Stanbery. Has not that been put in before? Mr. Manager Wilson. No, sir ; this is the order of the General of the army, ssued in pursuance of the President's request, which we put in before. 256 IMPEACHMENT OF THE PRESIDENT. The Chtef Jrs'i'icR. TliP Secretary will read the order. The Secretary read as follows : Headciuartrrs Army of the United States, Washinirton, D. C, February 14. 1868. Sir : General Grant directs me to say tliat the President of the United States desires you to resume j'our duties as Adjutant General of the army. C. B. COMSTOCK, Brevet Briarty himself says may be given ia evidence against him, to explain any part of his conduct to which it bears reference. Mr. Welherdl, (the counsel for the defendant.) We do not object that it is not evidence, bait that it is not proof of the overt act. Lord Ellenborough. There cannot be a doubt that M'hatever proceeds from the mouth of man may be given in evidence against him ; it shows the intention with which be acts. — 152 State Trials, page 91. " Whatever proceeds from his mouth." Jl fortiori, senators, when it is under his hand like the seal of a commission, if his declarations can be given, may not his acts ? I would not have troubled the presiding officer, I would not liave troubled senators so long itpon this matter, had it not been that there may be other acts all clustering around this grand conspiracy which we propose, if we are permitted, to put in. The CiiiKK Justice. The manager will reduce his question to writing. Mr. Manager ]kiT.LRR. The simple question was, who was Edmund Cooper? I suppose; my friends do not mean to object to that alone. The question was, do you know him and who is he? Mr. Stamjkkv. We asked what you intended to prove in reference to Edmund Cooper ? Mr. Manager IMitlku. I have stated that at very considerabh' length. I propose to ])rove that Mr. Edmund Cooper took possession in the Treasury Department bcjfore the 30th of November, and that he had this commission, showing that the I'rcsident gav(( a commission illegally in violation of the ten- ure-of-ofhce act to which I wish to call your attention. The tenure-of-office act provides that "in such case and in no other," to wit, where an officer has been guilty of misconduct or crime, or for any reason becomes incapable or legally disqualifi(;d to perform the duties of his ofHce, the President may suspend him; and then the sixth section provides that — The maliing, signing, scaling, countersigning, or issuing of any connnission or letter of IMPEACHMENT OF THE PRESIDENT. 261 aiithority for or in respect to any such appoiatuient or employment, shall be deemed, and are hereby declared to be, high misdemeanors. Therefore the very signing and issuing of this commission — the signing it, if he did not isue it ; the issuing of it, if he did not sign it — there being no vacancy which is contemphited by the act, is a crime, and another crime in and part of the great conspiracy. Therefore the question will be whether we shall be allowed to go into the condition of Mr. Cooper. I cannot put the whole of my offer in one question, because I cannot prove it all by one witness. The CiiiEF Justice. It will be necessary to reduce the question to writing, in order that it may be submitted to the Senate. Mr. Manager Butler. I will put it rather in the form of an offer to prove. I will write it as an offer to prove, in a moment. Mr. Stanbery. It is not a question so much, Mr. Chief Justice, as to who Edmund Cooper is, but what Edmund Cooper has got to do with this case; what the illegal appointment of Edmund Cooper to be Assistant Secretary of the Treasury ad interim, or otherwise, has to do with this case ; or what the appointment of Edmund Cooper for the purpose of controlling the moneys in the Treasury Department has to do with this case. That is the material inquiry. Now, 1 understand the learned manager to say that the proof he intends to make in regard to Mr. Cooper is, in the first place, that there was an illegal appointment of Mr. Cooper, and in that the President violated the Constitution of the United States, and violated the tenure- of-office act. Well, Mr. Chief Justice, have they given us notice to come here to defend any such delinquency as that, if it be a delinquency? Have the House of Representatives impeached the President for anything done in the removal of Mr. Chandler, if he was removed, or in the appointment of Mr. Cooper, if he was appointed in his place? They selected one instance of what they claim to be a violation of the Constitu- tion and of the tenure-of-office act in regard to a temporary appointment made during the session of the Senate; and that was the case of General Thomas, and of General Thomas alone. As to that, of course, we have no objection to their going into evidence, because we have had notice of it, and are here ready to meet it; but as to any high crime and misdemeanor in reference to the appointment of Mr. Cooper, certainly the gentlemen have no authority to make such a charge, because they come here with a delegated authority ; they come here only to make the charges found good by the House of Kepresentatives, and not the charges that they choose to manufacture here. The managers have no right to amend these articles. They must go to the House even for that. If they choose to go to the House and get a new article founded upon an illegal act in the appointment of Mr. Cooper, let them go, and let us have time to answer it and to meet it. So much for the admissibility of the testimony as to the illegal appointment of Mr. Cooper. It is a matter not charged. That is enough. It is a matter they are not authorized to charge; they have no such delegated authority here. What is the next ground, Mr. Chief Justice, upon which they ask to prove anything in relation to Mr. Cooper? They say they expect to prove that Mr. Cooper Avas put into that place of Assistant Secretary of the Treasury by the President in order to control the disbursement of the moneys in that defiartment. That I understand to be the next ground. Now, let us see what they have charged about that. Here they have got an article charging an illegal act of the President in reference to the disbursement of the public money — article eight. Let us see what Mr. Cooper has to do with that. 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 disburse ments of the moneys appropriated for the military service and for the Department of War, on the 2 1st day of February — Did a certain thing. What was it ? Appoint Mr. Cooper ? Give him 262 IMPEACHMENT OF THE PRESIDENT. authority to act in any office? No. He appointed Thomas, and that appointment is the only appointment set out as the means to control those disbursements. If it was neces.-^ary to frame an article founded upon the appointment of Thomas as a means used by the President to get confrol of these public moneys, was it not equally necessary to have an article founded upon the same line of conduct in reference to Mr. Cooper ? Unquestionably. Then, in the eleventh article, what is there that authorizes the introduction of this testimony 1 That he made certain speeches. What then ? Afterward, to wit, on the 21st day of February, A. D. 1868, at the city of Washington, in the District of Colnmbia, did, nulawfullj' and in disregard of tlie requirement of the Con stitution that he should take care that the laws be faithfully executed, attcnijit to prevent the execution of an act entitled "An act regulating the tenui'e of certain civil offices." That is the unlawful thing ; and how 1 By unlawfully devising and contriving, and attempting to devise and contrive, means by which he should prevent Edwin M. Stanton from fortiiwith resuming the functions of the office of Secretary for the Department of War, notwitiistanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew Johnson of said Edwin M. Stan- ton from said office of Secretary for the Department of War ; and, also, by further unlaw- fully devising and contriving, and attempting to devise and contrive, means, then and there, to prevent the execution of an act entitled " An act making appropriations for the support of the army for the fiscal year ending June '.iO, 1868, and for other purposes." That is the act which contains the section requiring the orders for military operations to go through General Grant. That is the means he contrived there to get Stanton out. So that has nothing to do with this. "What further ? And, also, to prevent the execution of an act entitled "An act to provide for the more efficient government of the rebel States." Now, what relevancy has the appointment of Cooper with the government of the rebel States, or with the execution of the reconstruction acts, or, in fact, with any offence charged in any one of the eleven articles ? Mr. Manager Bingham. Mr. President, we consider the law to he well settled and accepted everywhere in this country and England to-day, that where an intent is the subject-matter of inquiry in a criminal prosecution, other and inde- pendent acts on the part of the accused, looking to the same result, are admissible in evidence for the purpose of establishing that fact. And we go farther than that. We undertake to say, upon very high and commanding authority, not to be challenged here or elsewhere, that it is settled that such other and independent acts, showing the purpose to bring about the same general result, although at the time of the inquiry the subject-matter of a sepai-ate indictment, are never- theless admissible. I doubt not that it will occur to the recollection of honor- able senators that among other cases illustrative of the rule which I have just cited it has been stated in the books — the cases have been ruled first and then incorporated into books of standard authorities — that where a party, for example, was charged with shooting with intent to kill a person named, it was compe- tent, in order to show the malice, the malicious intent of the act, to show that at another time and place he laid poison. A party is charged with passing a coun- terfeit note; it is comj)etent, in order to prove the scienter, to show that he was in possession of other counterfeit notes of a different denomination; and the rule, as stated in the books, is, that what is competent to prove the sciente>\ as a general ])rincipl(^, is competent to prove the intent. Now, what is the .allegation in the eleventh article ? That this procedure was taken on the part of the President for the purpose of setting aside and defeating the operation of that law. That law stands with the other legislation of this coiuitry. i\!r. Stanbkrv. What law ? Mr. Manager Bi.\onA!M. The tenure-of-office act. That law stands with tl)e other legislation of this country ; and I undertake to say, without stopping to cite the statutes, that by the existing law of the United States the appropria- IMPEACHMENT OF THE PRESIDENT. 263 tions made for the support of the Department of "War and for the snpport of the army can only be reached in the treasury of the nation through the requisitions drawn by the Secretary of War. Here is an independent act done by the accused, as is well said by my associate, for the purpose of aiding this result. How ? By appointing an Assistant Secretary of the Treasury, who, under the lav,"- and regulations, is authorized to act upon the warrants that may be drawn upon the treasury through that department or any other department ; by appoint- ing a person, in other words, to discharge the very duty which he desires him to discharge in aid of his design ; and what is that? That the money appro- priated by Congress, and not to be drawn from the treasury except in pursu- ance of law, to wit, through the Secretary of War, duly constituted such by the appointment of the President with the advice and consent of the Senate, may, nevertheless, be drawn out of the treasury by a person acting as an oilScer, without the advice and consent of the Senate, through the requisitions made on the treasury by his Secretary of War ad interim, appointed in the presence of the Senate, in defiance of the Senate, and in violation of the law. If the appointment of such an o£6cer throws no light on this subject, of course it has nothing to do with the matter ; if it does, it has a great deal to do with it. If the question stops with the inquiry who Edmund Cooper is, of course it throws no light upon this subject; but if the testimony discloses such relations with the President and his appointment under such circumstances as indicate a purpose on the part of Cooper to co-operate with the President in this general design, I apprehend it will throw a great deal of light upon this subject. And, in the event of the removal of the head of the department, (and if this rule is to be established that might happen any hour, without regard to ' the opinions of the Senate to the contrary or to the requirements of the law,) this Assistant Secretary of the Treasury would have the control of the whole question. I am free to say, so far as I am concerned in this matter, if nothing further be shown than the mere inquiry of the appointment of Cooper, it may not throw any light upon the subject ; but I do not so understand the matter. There is more than that in it. Mr. Manager Butler. In order that there may be a distinct proposition before the Senate, we offer to prove that, there being no vacancy in the office of Assistant Secretary of the Treasury, the President unlawfully appointed his friend and theretofore private secretary, Edmund Cooper, to that position, as one of the means by which he intended to defeat the tenure of civil office act and other laws of Congress. Mr. EvARTS. Will you be so good as to insert the date in your offer? Mr. Manager Butlbr. I will, sir. [After a pause.] I have inserted a date satisfactory to myself, and I hope it will be to the counsel for the President. Mr. EvARTS. I have no doubt it is correct. Mr. Manager Butler. We offer to prove that after the President had determined on the removal of Mr. Stanton, Secretary of War, in spite of the action of the Senate, there being no vacancy in the office of Assistant Secretary of the Treasury, the President unlawfully appointed his friend and theretofore private secretary, Edmund Cooper, to that position, as one of the means by which he intended to defeat the tenure of civil office act and other laws of Congi-ess. Mr. EvARTS. I do not understand that to be a date. I ask you to be good enough to put it on the 20th of November. Mr. Manager Butler. I want to have it appear in relation to that, Mr. EvARTS. Put in what you have also, if you please. Mr. Manager Butler. If the learned counsel will allow me, I will make my offer as I like. Mr. EvARTS. Undoubtedly. I only asked you to name the date. You can do as you please about it. 264 IMPEACHMENT OF THE PRESIDENT. The Chief Justice. The Secretary will read the proposition. The Secretary read as follows : We offer to prove that, after the President had determined on the removal of Mr. Stanton, Secretary of War, in spite of the action of the Senate, there being no vacancy in the office of Assistant Secretary of the Treasury, the President unlawfully appointed his friend and theretofore private secretary, Edmund Cooper, to that position, as one of the means by wliich he intended to defeat the tenure of civil office act and other laws of Congress. Mr. EvARTS. The action of the Seuate, I think, was in December, 1867. Mr. Staxbery. February 13. Mr. Manager Butler. January 13. Mr. Stanbery. Yes; that is it. Mr. EvARTs. January 13, 1S68; so that what you now offer was after that. Mr. Manager Butler. Oh, no. The President formed the purpose, as he tells us in the letter to General Grant, and as he tells us in his answer, on the 12th of August, 1867, when he suspended Mr. Stanton, to suspend him indefi- nitely ; to try to sec if the Senate would not agree to that ; if they would not, then to keep him suspended indefinitely, and remove him as soon as ever he could get anybody to aid him. That is our proposition of what the evidence and the claims of the President show; he meant to do that in spite of what happened ; and we say after that intent was formed he made the appointment of Cooper. Mr. Evarts. After the 12th of August, 1867, then. We want to get at the date ; that is all. The Chief Justice. Do the counsel for the President desire to be heard •further 1 Mr. Evarts. No, sir; but we object to it. It is not within any article of impeachment. The Chief Justice. The Chief Justice will submit the question to the Senate. The question is, whether the evidence proposed by the honorable managers shall be admitted ? Mr. Sherman. I should like to have the managers answer a question before the vote is taken. The Chief Justice. The Secretary will read the question proposed by the senator from Ohio. The Secretary read as follows : Will the managers read the particular clauses of the eighth and eleventh articles to prove which this testimony is offered? Mr. Manager Butler. As I understand it, it is to prove the intent alleged in the eighth article in these words : With intent unlawfully to control the disbursements of the moneys appropriated for tho military service and for the Department of War. He did a certain act with that intent. Now, to prove that intent, we show he did a certain other act which would enable him to control the moneys. The Chief Justice. The eighth article seems to say nothing about money. Mr. Manager IUitler. The eighth article reads : That said Andrew Johnson, President of the United States, unmindful of the high duties of liis office, and of his oath of office, with intent unlawfully to control tho disbiirsemeuts of moneys ajjpropriated. The Chiff Justice. What act is charged 1 Mr. iManager Butler. The act charged is, that, with that intent, lie appointed Thomas. Now, to ])rov(^ tlie intent with wliich he appointed Thomas, we i)rove that he also |)repared a man who, in the office of Assistant Secretary of the Treasury, would answer 'J'hoinas's r('C|uisitioiis. Now, as to the other point, I will read, in answer to the question of the sen- ator, from the eleventh article : By unlawfully devising and contriving, and attemi)tiug to devise and contrive, moans IMPEACHMENT OF THE PRESIDENT. 265 by which he should prevent Edwiu M. Stanton from forthwith rcsuniinjr the functions of the office of Secretary for the Department of War, notwithstanding tlie refusal o| the Sfmate to concur in the suspension theretofore made by said Andrew Johnson of said Edwin M. Stan- ton from saidofKce of Secretary for the Department of War; and also, by further unlawfully devising- and contriving', and attempting to devise and contrive, meaus, therf and there, to prevent the execution of an act entitled "An act making appropriations for the sufjport of the army for the fiscal year ending June 30, 1868, and for other purposes," approved March 2, aud,"^ also, to prevent the execution of an act entitled " An act to provide for the more efficient government of the rebel States," passed March 2, 1867. He had done what he has been charged to have done. And now, in that connection, we cUxim that this was a part of the machinery to carry out this thing ; because, suppose, looking forward to have happened exactly what did happen, to wit, that Mr. Stanton would not give up the War Department, then the question was, would Mr. McCulloch answer the requisitions of Thomas or of anybody else he should put in, if Stanton should hold on ? It is clear that the President knew he would not, because, although he served a notice upon McCulloch to do it, McCulloch will not to-day, and he has not been able to get one through Thomas. Now, then, he gets Thomas in ; he must put in some- body in the Treasury Department who will obey Thomas. Thereupon he puts Cooper in ; and with a single stroke of his pen he claims to have the right to remove McCulloch ; and he also claims, and has put it in his answer, that McCulloch, as one of his cabinet, has agreed to go at a stroke of his pen ; so that he has got the whole army and treasury of the United States within his con- trol. It was with intent to do that that he made the appointment of Cooper ; and to show that it was with that intent, we show, so anxious was he to do it, that he did not make the appointment lawfully ; that he first made it when the Senate was not in session, by issuing a full commission ; then he sent it to the Senate, and the Senate rejected Cooper; but still, so bent was he on having Cooper not private secretary, but Assistant Secretary of the Treasury, where he could con- trol the moneys of the United States, that he first appointed him ad interim, showing that he got him under the same designation as Thomas ; and the desig- nation shows something. The Chief Justice. Are senators ready for the question ? Mr. Johnson. I request the managers to answer a question which I have sent to the Chair. The Chief Justice. The Secretary will read the question propounded by the senator from Maryland. The Secretary read as follows : The managers are requested to say whether they propose to show that Cooper was appointed by the President in November, 1867, as a means to obtain the unlawful possession of the public money, other than by the fact of the appointment itself? Mr. Manager Butler. We certainly do — is that an answer? — more than by the appointment. That we may not be misunderstood hereafter, we propose to show that he appointed him, and thereupon Mr. Cooper went into the exercise of the duties of the office before his appointment could by any possibility be legal ; and that he has been, we hope and believe we shall show that he has been, controlling other public moneys since. The Chief Justice having put the question on the admissibility of the evidence, declared that the negative appeared to prevail, Mr. Howard and Mr. Sumner called for the yeas and nays ; and they were ordered. Mr. He\derso\. Before the vote is taken, I desire that some testimony shall be read. I send my request to the Chair. The Secretary read Mr. Henderson's request, as follows : It is requested that the testimony of the witness. Chandler, in regard to the mode and man- ner of obtaining money ou a requisition of the Secretary of War be read. The Chief Justice. It can only be read from the notes of the short-hand reporter; but the witness can restate it. 266 IMPEACHMENT OF THE PRESIDENT. Mr. Hrxdhrsox. I will inquire if the witness will be permitted to restate it? The Chikf Justice. Certainly. IMr. Hknderson. ]My object is to know whether money can be obtained upon the requisition of the Assistant Secretary, and not of the Secretary himself; just to that point. Mr. EvARTS. Let him answer to that very point. Mr. Jfanager BuTLER. Let him answer. The Chief Ju.stice, (to the witness.) Answer the question proposed by the senator from Missouri. Will the senator state the question to the witness ? Mr. Henderson. I prefer that the managers should do so. Mr. Manager Butler, (to the witness.) Will you state now whether the Assistant Secretary can sign warrants ? Mr. Curtis and Mr. Evauts. That is not the question. Mr. Manager Butler. For the payment of money ^ Mr. Curtis. The question is, whether on requisitions of the War Depart- ment Mr. Manager Butler. Whether, upon the requisition of any department of the government, the Assistant Secretary of the Treasury can sign warrants on the treasury for the payment of money ? The Witness. Until the passage of a late statute, whenever the Secretary of the Treasury was present and acting, money could not be drawn from the treasury upon the signature of the Assistant Secretary of the Treasury. An act has been passed within a year allowing the Assistant Secretary to sign covering- in warrants and warrants for the payment of money upon accounts stated ; but the practice still continues of signing all customary warrants by the signature of the Secretary of the Treasury. The warrants are prepared and the initials of the Assistant Secretary in charge of the warrants placed upon them, and then they are signed by the Secretary of the Treasury when he is present. Mr. Fessenden. I ask that that law may be read. I should like to know what it is exactly. Mr. Manager Butler, (to the witness.) Do you remember the date of it? The Witness. It is within a year. I can find it if you give me the statutes for the last year. The Chief Justice. The Chief Justice will put a question to the witness : whether before the passage of the act to which he refers any warrant could be drawn by the Assistant Secretary, unless he was Acting Secretary in the absence of the -Secretary ? A. There could not. Prior to the passage of this act no money could be drawn from the treasury upon the signature of an Assistant Secretary, unless when Acting Secretary under an appointment for tliat purpose. By Mr. Manager Butler : Q. When the Assistant Secretary acts for the Secretary, does he sign all warrants for the payment of money ? A. When Acting Secretary, of course he signs all warrants for the payment of money. Mr. C A. ME RON. I desire to ask a question. The Chief Justice. The senator will reduce his question to writing and send it to the Chair. Mr. Cameron. 1 did not understand that. I desire to askaqucstion merely as to the practice. I can do it in less time than by writing it. The Chief Justice. The rule requires it to be reduced to writing. Mr. Manager Butler. I will read the law to which reference has been made : AN ACT supijlemcntal to an act to establish tho Treasiuy Department, approved Septem- ber 2, 17rt!). Be it cnaclcA Inj tlic'' Senate and House of Reprcscntalims of the United States of America in Congress assembled, That the Secretary of the Treasury shall have power, by au appoint IMPEACHMENT OF THE PRESIDENT. 267 ment under liis hand and ofScial seal, to delef^ate to one of the Assistant Secretaries of the treasury authority to sign in his stead all warrants for the payment of money into the puhlic. Treasury and all warrants for the disbursement from the puijlic treasury of money certified by the proper accounting officers of the treasury to be due upon accounts duly audited and settled by them; and such warrants so signed shall be in all cases of the same validity as if they had been signed by the Secretary of the Treasury himself." Mr. CoNKLiNG and others. What is the date of that 1 Mr. :^^anager Butler. The date is March 2, 18C7, the same date as the tenure-of-ofSce act. A single other question, which, perhaps, is rather a conclusion of law than of fact. (To the witness.) In case of the removal or absence of Mr. McCulloch or the Secretary of the Treasury, as I understand, the Assistant Secretary per- forms all the acts of the Secretary 1 Mr. EvARTS. That is a question of law. Mr. Manager Butler. I said I doubted as to that. I was only asking for the practice. (To the witness.) Is that the pi-actice ? A. I am not certain that it is, without an appointment as Acting Secretary for the Assistant Secretary, signed by the President. Mr. CamerOxV. I desired to put a question, and I think it is contrary to the practice to require me to put it in writing ; but I have reduced it to writing, and I ask that it be read. The Chief Justice. The Secretary will read the question proposed by the senator from Pennsylvania. The Secretary read as follows : Can the Assistant Secretary of the Treasury, under the law, draw warrants for the pay- ment of moneys by the Treasurer without the direction of the Secretary of the Treasury ? The Witness. Since the passage of the act, I understand, the Assistant Sec- retary can sign a warrant for the payment of money in the cases specified. By Mr. Evarts : Q. Is not that by deputation ? A. Which is presumed rather to be with the assent and approval of the Sec- retary of the Treasury. Mr. Cameron. I will ask another question without reducing it to writing. The Chief Justice. If there be no objection, the senator from Pennsylvania will be allowed to put a question without reducing it to writing. Mr. Williams. Mr. President, I object. The Chief Justice. The senator from Oregon objects. Mr. Cameron. The question I intended to ask was, has it been the prac- tice The Chief Justice. The senator is not in order. Mr. Manager Butler. (To the witness.) Has it been the practice for him to sign warrants 1 A. Since the passage of the act in question it has. The Chief Justice. Senators, the question is : Shall the evidence proposed by the managers be received 1 Mr. Fessenden. I should like to put a question as soon as I have an oppor- tunity to write it. [After writing.] There are two questions which I wish to put. The Chief Justice. The Secretary will read the questions proposed by the senator from Maine. The Secretary read as follows : Q. Has it been the practice since the passage of the law for an Assistant Secretary to sign warrants unless specially appointed and authorized by the Secretary of the Treasury ? Q. Has any Assistant Secretary been authorized to sign any warrants except such as are specified in the act ? The Witness. It has not been the practice for an Assistant Secretary, since 268 IMPEACHMENT OF THE PRESIDENT. tLe passage of the act, to sign warrants except upon an appointment bj the Secretary for that purpose, in accordance with the provisions of the act. Imme- diately upon the passage of the act, tlie Secretary authorized one of his Assist- ant Secretaries to sign warrants of the character described in the act, and they have been customarily signed by that Assistant Secretary in all cases since that time. Mr. Fessenuen. Now let the second question be read. The Secretary read the second question as follows : Q. Has any Assistaut Secretary been authorized to sign any warrants except such as are specified by the act ? The Witness. No Assistant Secretary has been authorized to sign warrants except such as are specified in this act, unless when Acting Secretary. The Chief Justice. Senators, you who are of opinion that the evidence oftei'ed on the part of the managers should be admitted, will, as your names are called, answer yea; those who are of the contrary opinion will say nay. The Secretary will call the roll. The question being taken, the result was announced — yeas 23, nays 26. Mr. CoNNESS. I desire to know how my name is recorded? The Chief Justice. The senator is recorded among the yeas. Mr. Conn ess. That is a mistake. I voted in the negative, and I wish myself recorded correctly. The change being made, the result was announced — yeas 22, naya 27, as follows : Yeas — Messrs. Anthony, Cameron, Cattell, Chandler, Cole, Coukling, Corbett, Cragin, Drake, Howard, Howe, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsey, Ross, Sprague, Sumner, Thayer, Tipton, and Wilson — '22. Nays — Messrs. Bayard, Buekalew, Couness, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinglmysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of New Hampshire, Patterson of Tennessee, Sherman, Stewart, Trumbull, Van Winkle, Vickers, Willey, and Williams — 27. Not voting — Messrs. Harlan, Morton, Saulsbury, Wade, and Yates — 5. The Chief Justice. The yeas are 22, the nays are 27, So the evidence is not received. Mr. Manager Butler. Then I have nothing further to ask this witness at present. We may wish to call him again, however, at another part of the case, when we get along further, so that we can oiler this in another view. Mr. EvARTS. We shall reserve our questions till then. Charles A. Tinker sworn and examined. By Mr. Manager Butler : Question. What is your full name ? Answer. Charles A. Tinker. Q. What is your business ? A. I am a telegraph operator. Q. Are you in charge of any office ? A. I am in charge of the Western Union Telegraph office in this city. Q. AVere you at any time in charge of the military telegraph office of the War Department ? A. I was. Q. From what time to what time? A. I can hardly U'W from what time. I was in charge of the military tele- graph office of the War Department up to August, 1SG7. I think I was per- sonally in cliarge something like a year. 1 was connected with the office for something like five years. Q. While in charge of that office, state whether a despatch from Lewis E. Parsons, of Montgomery, Alabama, came to Andrew Johnson, President of the United States, and if so, at what date ? IMPEACHMENT OF THE PRESIDENT. 269 A. I think while in that oflSce I saw a great many such despatches. Q. What paper have you in your hand ? A. I have what professes to be a copy of a telegram from Lewis E. Parsons, Montgomery, Alabama, addressed to " His Excellency Andrew Johnson, President." Q. Do you know whether that telegram came through the office ? A. I recognize this as being the character of despatch which passed through, or was received, at the military telegraph office. Mr. Curtis. That we must object to. Mr. Manager Butler, (to the witness.) Were there duplicate originals of telegrams received kept at the military telegraph office ? A. What is called a press copy was taken of each despatch before being delivered from the office. Q. Was such a piess copy taken of each despatch before it was sent ? A. Not before being sent. Q. The original was kept, then ? A. The original was kept on file in the office. Q. State whether, at my request, you examined those press coipies 1 A. I did. Q. Did you find such a despatch as I have described among those press copies ? A. I did. Q. Did you copy it 1 A. I made a copy. Q. Have you got that in your hand ? A. No, sir, I have not. Q. Can you give an explanation as to that copy you now have in your hand? A. I made a copy of the despatch, and answered the summons of the man- agers, and I placed the copy in your hands, and I heard you order your clerk to make a copy of that ; and after a short time the clerk returned with that copy, and read the copy which he had made, and you returned to me the copy I had made. Q. Have you that copy ? A. I have. Q. Very well; produce the original despatch and the copy both. Mr. EvARTS. I ask what is meant by the "original despatch." I under- stood this wag a despatch received here. Mr. Manager Butlkr. The original press copy is meant. The Witness. I mean to say that I have the original press copy. [Pro- ducing a bound letter-book, the pages of which were press copies of despatches.] Q. Have you that original press copy ? A, I have it. Mr. Manager Butler. Read from it, please. Mr. Stanberv. Oh, no. Mr. EvARTS. Let us see what it is, [The book was handed to the counsel for the respondent.] Mr. Staxbery. I wish to ask a preliminary question. (To the witness.) Did you make this press copy yourself? A. The press copy is made by the clerk. The telegram is written by one of the operators. Mr. EvARTS. By you 1 The Witness. Not by me personally, Mr. Curtis. We object. Mr. Evarts. This book does not prove itself. Mr. Manager Butler. I do not understand the objection, if there is any. Mr. Evarts, We do not understand that a telegraph company's books prove 270 IMPEACHMENT OF THE PRESIDENT. themselves like a record. You bring no living witness that verifies anything here. Mr. Manager Butler. I will pass from this for a moment. (To the witness.) Do you remember, as an act of memory, whether such a telegram as that passed through the office ? A. I do not remember this despatch having passed through the office ; I cannot take my oath that I remember the particular despatch. Q. Will you state whether you have an original despatch of the same date signed "Andrew Johnson?" A. I have. Q. Produce it. A. I have a bonk in which the despatch is filed. (Producing a bound letter- book on the pages of which were pasted despatches.) Q. Are you so familiar with the signature of Andrew Johnson as to know whether that is his name signed to it ] A. I believe that to be his signature ; I am very familiar with it. Q. Have you any doubt in your own mind as to that 1 A. None whatever. Q. Is this book which I hold in my hand and you have just produced, the record book of the United States military telegraph of the executive office wherein original despatches are put on record? A. It is the book in which the original despatches were filed. Q. Do you know whether this despatch passed through the office to Lewis E. Parsons ? A. I do know from the marks it contains. Mr. Curtis. That is an inference. The Witness. I can answer that. I saw the despatch in the office. By Mr. Manager Butler : Q. And it bears the marks of having been sent? A. Yes, sir. Mr. Stanberv. Now, let us see the despatch. [The book was handed to the counsel for the respondent and examined by them.] This is very good reading ; but will you tell us what is the object of this testimony ? We like the document ; but what is the object of it here ? Mr. Manager Butlkr. Do you object to this document, whatever the object is? Mr. Stanrery. We object until we know the purpose. Mr. ]\Ianager Butler. The question that I put now is simply whether you object to the vehicle of proof? Mr. EVARTS. No. Mr. Manager Butler. If it is proper to read it at all, the question is whether it is proved. Mr. EvARTS. It proceeded from the President, and therefore it is proved. Mr. Johnson. What is the date ? Mr. Manager Butler. January 17, 1867; the same date with Parsoaa's despatch. Mr. Stanberv. Now, the object? Mr. Manager Butler. Not yet, sir. (To the witness.) On the same day that this is dated do you find in the records of the department a press copy of a despatch from Ijewis E. Parsons to which this is in answer ? A. I find in the press copy book a copy of a despatch which that was in answer to. Mr. EvARTS. How does tliat appear? Mr. Manager Butler. It appears because the witness has sworn to it. Mr. EvARTS. If it is an answer, it speaks for itself. Mr. Manager Butler. Again I must reply, if the question is put to me how IMPEACHMENT OF THE PRESIDENT. 271 it appears, he has sworn that it is an answer. (To the witness.) Now, what was this telegraph office? The heading of the despatch is " United States solitary Telegraph." Was this telegaaph under the control of the War Depart- ment l A. At that time it was not under the control of the War Department. Q. Where were the books kept ? The Witness. Do I understand you to mean the lines ? Mr. Manager Butler. I do not mean the lines. I mean the office ; was it in the War Department building 1 A. It w^as. Q. And were the officers employes of the War Department 1 A. They were. Q. Were the records of its doings at that office kept in the War Department ? A. They were. Q. And are these books and these papers produced from the War Depart ment 1 A. No, sir; they are not. Q. Where do they come from now 1 A. They come from the War Department through the telegraph office; it has the original despatches of the War Department. Q. They came to the telegraph office from the War Department ? A. Yes, sir. Q. They came originally as records from the War Department ? A. From the War Department to the telegraph office, and I bring them here. Mr. Manager Butler. I submit now to the Senate that I propose to use in evidence, if it is otherwise competent, the despatch of Lewis E. Parsons to which Andrew Johnson made reply. Having proved what I have proved, is there any objection — I mean now as to the vehicle of evidence simj)ly, not as to the competency of the contents 1 Mr. EvARTS. On that point in this present case, although we regard the proof of Mr. Parsons's despatch as incompetent and insufficient, we shall waive any objection of that kind, and the question may now stand upon the compe tency of the proof. Mr. Manager Butler. On the question of relevancy, I suppose ? Mr. EvARTS. Yes, and competency ; its admissibility in any way. Mr. Manager Butler. Admissibility of the proof of the contents ? Mr. EvARTS. Yes. We have had no notice to produce the original, but we care nothing about that. Mr. Manager Butler. To that I answer we have the original here. Mr. EvARTS. No ; but the original of Mr. Parsons's despatch delivered to the President. We have had no notice to produce that; we know nothing about it; but we waive that. Now, we inquire in what view and under what article these despatches dated prior to the civil-tenure act are introduced ? Mr. Manager Butler. In order that the Senate acting both as court and jury may understand whether these papers are admissible in evidence, it becomes necessary, with the leave of the President and the Senate, to read them de bene esse, in order that we may show how they become competent. Mr. Curtis. We do not object to your reading them de bene esse. Mr. Manager Butler. The despatch of Mr. Parsons is : Montgomery, Alaijama, Janimry 17, 18G7. Legislature in session. Efforts makin<^ to reconsider vote on constitutional umendnient. Eeport from Washington says it is probable an enabling act will pass. We do not know what to believe. I find nothing here. LEWIS E. PARSONS, Exchange Hotel His Excellency Andrew Johnson, President 272 IMPEACHMENT OF THE PRESIDENT. The response is : United States Military Telegraph, Executive Office, H ashingtiin, D. C, January 17, 1SG7. What possible pood can be obtained by reconsiderincij the constitutional amendment ? I know of none in the present posture of atfairs ; and I do not believe the people of the whole country will sustain any set of individuals in attempts to change tlie whole character of our government by enabling acts or otherwise. I believe, on the contrary, that they will eventu- ally uphold all who have patriotism and courage to stand by the Constitution and who place their coutidence in the people. There should be no faltering on the part of those who are honest in their determination to sustain the several coordinate departments of the government in accordance with its original design. ANDREW JOHNSON. Hon. Lew IS E. Parsons, Montgomery, Alabama. I have no further call, after having read these despatches, so that they may be seen of the Senate, to argue the question whether this is competent evidence upon articles charging Andrew Johnson with attempting to overthrow the acts of Congress, to oppose their validity, and to bring its legislation into contempt. It is either under the tenth or the eleventh article quite competent. Jlr. EvARTS. The .tenth is confined to the President's speeches. It alludes to nothing else. Mr. Curtis. Speeches, not telegrams. Mr. Manager Bltler. I am reminded by the learned counsel that that article refers to speeches and not telegrams. I know it ; but with what intent were those speeches made? For what purpose were they made 1 They were made for the purpose of arraying the country against the Congress of the United States and its lawful acts, and to bring it into ridicule and contempt. Now, I am upon the point where the attempt is made to array the people against the lawful acts of Congress and to " destroy the regard and respect of all the good people of the United States for the Congress and legislative power thereof," and " to excite the odium and resentment of all the good people of the United States against Congress and the laws by it duly and constitutionally enacted." We must go back a moment, if the Senate please, and I shall take but a moment, because I think this is too clear for argument. The President had gone forward in August and September, 1866, declaring everywhere that Con- gress had no power to do what it was proposing to do. Congress had proposed the constitutional amendment to the people of the States, and for the purpose of preventing that constitutional amendment from being accepted, every possible contumely was thrown upon Congress and every possible step taken to prevent its acceptance, and this is one of the steps. I will not argue furtluir under that proposition. Then the eleventh article charges that " intending to deny the power of the thirty-ninth Congress to propose amendments to the Constitution of the United States," he did declare so and so. We find with that intent that wlnnr Congress had passed an act for the pacification of the southern States and for the settlement of the difficulty, in the shape of a proposed amendment to tlie Constitution, and when that was being considered by the southern States, the President of the United States, from his high position, was absolutely telegraphing to the legislature, in answer to a question of those States when tliey were asking for advice, urging them not to accept the amendment to the Constitution. I do not care to argue this any further. Mr. EvARTS. If we understand the honorable managers aright, this evidence is supposed to be relevant and coinj)etent only in reference to tlie crimes charged in the tenth and eleventh articles. Is that so ? Was that your proposition, Mr. Butler ? Mr. Manager Butler, My proposition is that it is relevant under those. I have made no proposition as to th(! rest Mr. EvARTS. You did not uame any others. IMPEACHMENT OF THE PRESIDENT. 273 ]\[r. Manager Butler. I did not tliiiik it necessary. Mr. EvARTS. Very well ; I shall not think it necessary to fonsider any others. Mr. Manager Butler. Very well; we are agreed on that. Mr. EvARTS. Now, if the Chief Justice and senators will give their attention to the tenth article, it will be found that the entire charge there is that the Presi- dent — Designinfj and intending to set aside the rightful authority and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt, and reproach, tlie Congress of the 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 legislative power thereof, (which aH officers of the government ought inviolably to preserve and maintain,) and to excite the odium and resentment of all the good people of the United States against Congress and the laws by it duly and constitutionally enacted. That is the entire purview of the intent. Now, the only acts cliarged as done with this intent are the delivery of a speech at the Executive Mansion in August, 1866, and two speeches, one at St. Louis and the other at Cleveland, in September, 1866. The article concludes that by means of these utterances — 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 United States, did commit, and wag then and there guilty of, a high misdemeanor in office. That is the gravavien of the crime; that he brought the presidential office into scandal by these speeches made with this intent. Senators v/ill judge from the reading of this telegram, dated in January, 1867, whether that supports the principal charge or intent of his derogating from the credit of Congress or bring- ing the presidential office into discredit. The eleventh article has for its substantive charge nothing but the making of the speech of the 18th of August, 1866, saying that by that speech he declared and affirmed — In substance, 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, but, on the contrary, was a Congress of only part 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 intending to deny, the power of the said thirty-ninth Congress to pro- pose amendments to the Constitution of the United States ; and in pursuance of said declara- tion — That is, in pursuance of the speech made at the Executive Mansion on the 18th of August, 1866— The said Andrew Johnson, President of the United States, afterward, to wit, on the 21st day of February, A. D. 186d, at the city of Washington, in the District of Cohimbia, did, unlawfully, and in disregard of the requirement of the Constitution that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act entitled "An act regulating the tenure of certain civil offices," passed March 2, 1867 — Which was after the date of this despatch — By unlawfully devising and contriving, and attempting to devise and contrive, means by which he should preveut Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War. The court will consider whether this despatch touches that subject. And also by further unlawfully devising and contriving, and attempting to devise and con- trive, means, then and there, 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," ai)proved March 2, 1867 ; and also to prevent the execution of an act entitled "An act to provide for the more efficient government of the rebel States," passed March 2, J 867. Also, after the date of this despatch. It is under one or the other of these 18 I P 274 IMPEACHMENT OF THE PRESIDENT. two articles that tlais despatcli is, in its date and in its substance, supposed to be relevant. I will read it: Washington, D. C, January 17, 1867. What possible g^ood can be obtained by reconsiderinoj tbe constitutional amendment? I know of none in the present posture of aifairs ; and I do not believe that the people of tbe whole country will sustain any set of individuals in attempts to change the v.-bole character of our government by enabling acts or otherwise. I believe, on the contrary, that they will eventually uphold all who have patriotism and courage to stand by the Constitution, and ■who place their confidence in the people. There should be no faltering on the part of those who are honest in their determination to sustain the several co-ordinate departments of the government in accordance with its original design. ANDREW JOHNSON. Hon. Lewis E. Parsons, Montgomery, Alabama. There is uothinc; here pertinent in depreciation of Congress, nothing that tend- to the pcaudal of the presidential office, nothing that has relation to the defeat of laws not then passed, and not possible to be the subject of crime or misdemeanor on the part of the President in resisting or opposing; and we find nothing whatever in these transactions — if introduced undoubtedly leading into a wide field of inquiry — that touches any crime, or any intent, or auy purpose mentioned in these articles. iVir. Manager Boutwell. Mr. President and Senators, if this evidence is admissible under either of the articles — and I have no doubt it is admissible under both the tenth and eleventh — it is sufficient for our purpose. It is enough that we show it to be admissible under one ; and therefore I treat the proposi- tion to introduce this evidence under the eleventh article only — from which I think it must appear to senators that there can be no doubt upon this point. If attention be given to the eleventh article it will be seen that we charge that the President did — On the 18th day of August, A. D. 18C6, at tbe city of Washington, and in the District of Columbia, by public speech, declare and affirm, in substance, that the SOth Congress of tbe United States was not a Congress of the United States authorized by tbe Constitution to exercise legislative power under the same, but, on tbe contraiy, was a Congress of only part of the States, thereby denying and intending to deny that tbe legislation of said Con- gress was valid or obligatory upon him, and also thereby denying and intending to deny the power of the 39th Congress to propose amendments to the Constitution of the United States — Tl.e veiy subject of these telegraphic despatches — And in pursuance of said declaration, the said Andrew Johnson, President of the United States, afterward, to wit, on tbe 21st day of February, A. D. 1808 — Which we understand to include all these dates between the time when the declaration which is the basis of this article, to wit, August 18, 1866, up to and including the 21st of February, 1868, so that all that period is open to us for the introduction of testimony showing the transactions of the President on this point — On the 21st day of February, A. D. 18G8, at the city of Washington, in the district of Columbia, did, unlawfully, and in disregard of the requirements of tlie Constitution that he should take care that the laws be faithfully executed, altemi)t to prevent the execution of au act entitled "An act regulating the tenure of certain ci\ i! otfices," passed March 2. 1807, by unlawfully devising and contriving, and attemiitiug to devise and contrive, means by which he should [)revent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Departnuait of War, notwithstanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew Jolinson of said Edwin M. Stanton from said office of Secretary for the Department of War; and, also, by further unlawfully devis- ing and ciintiiviug, and attemjiting to devise and contrive means, then and there, to prevent the execution of an act entitled "An act making appropriations for the support of the army for the liscal year ending Jmie '.H\ In;8, and for other jmrposes," apjiroved March 2, I8ti7 ; and, also, to prevont.the execution of an act entitled " An act to provide for the more efficient government of the rebel States," passed March 2, 1807. Herein we Bee the nature and extent of the influence of the conduct of the IMPEACHMENT OF THE PRESIDENT. 275 President in sending out tins telegTain. Here was Mr. Parsons, who is known upon public tame to have been the provisional governor of the State of Ala- bama in the year 1865 and 1S66, a man of influence in that part of the country, who asks the President's opinion upon the very matter of the reconstruction of the rebel States. He says : Leg-islatiire in session. Eft'orts makiup^ to reconsider vote on constitutional amendment. Report t'roui Washington says it is probable an enabling act will pass. "Which, undoubtedly, related to those acts which have come to be called acts for the government of the rebel States, enabling acts ; measures of Congress, by and through which these States were to be restored to the Union. He asks the opinion of the President as to what they shall do. He says: We do not know what to believe. Now, what does the President say? What possible good can be obtained by reconsidering the constitutional amendment? Which had been rejected. I know of none in the present posture of affairs ; and I do not believe the people of the whole country will sustain any set of individuals — Here is the gist of the offence of this particular telegraphic despatch, and sho\\'ing, also, wherein it applies under the charge contained in the eleventh article. We set forth in the eleventh article that iu August, 1866, he had charged that Congress was not a constitutional body representing all the States of the Union. In this despatch he speaks of Congress, because he can refer to no other set of men, as a " set of individuals." He says : I do ndt believe the people of the whole country will sustain any set of individuals — Tlius characterizing Congress as a set of individuals, which is seen in what he says iu regard to them — in attempts to change the whole character of our government by enabling acts or otherwise. And we say that herein we have evidence of the intent of the President to defeat the will of Congress in regard to the enforcement of the reconstruction laws, which is precisely the offence charged against him in the eleventh article preferred by the House of Re^-esentatives. I am reminded, too, that the origi- nal reconstruction act provides for the adoption of the constitutional amendment as one of the conditions precedent to or coincident with the right of a State organized under the reconstruction laws to be admitted to representation iu Congress. The Chief Justice. Do the counsel for the respondent desire to say any- thing further 1 Mr. EvARTS and Mr. Curtis. Nothing further. Mr. Manager Butler. I wish, if the presiding ofEcer will allow me, to call attention to the fifth section of the act of March 2, 1867, known as the recon- struction act, which is the act described in the eleventh article, which provides : And when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such coustitu- tion shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States proposed by the thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be entitled to representation iu Congress, and senators and representatives shall be admitted therefrom on their taking the oaths prescribed by law. So that the adoption of the fourteenth article is a part of the reconstruction acts. The Chief Justice. Do the counsel for the respondent desire to be heard further ? Mr. Stanbery. No, sir. 276 BIPEA.CHMENT OF THE PRESIDENT. Mr. Howard. I offer a question to the managers. The Chief Justice. The question offered by the senator from Michigan will he read. The Secretary read as follows : Whut amendmeut of the Constitution is referred to in Mr. Parsons's despatch ? Mr. Manager Butler. I can answer. There was but one amendment at that time pending before the country, and that was known as the fourteenth article, the one concerning which I have just read, and which is required to he adopted by every State legislature before the State can be admitted to repre- sentation in Congress. The Chief Justice. Senators, the managers offer in support of the accusa- tions of the House of Kepresentatives two telegraphic messages, one signed by Lewis E. Parsons, and one signed by Andrew Johnson. The question is, is the evidence proposed on the part of the managers admissible ? Mr. Drake. I ask for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted — yeas 27, nays 17 J as follows : Yeas — Messrs. Anthony, Cameron, Cattell, Ciiandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Henderson, Howard, Morgan, Jlorrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Willey, and Wilson — 27. Nays — Messrs. Buckalew, Davis, Dixon, Doolittle, Ednumds, Ferry, Fessenden, Fowler, Frelinghnysen, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Trumbull, Van Winkle, Vickers, and Williams— 17. Not voting — Messrs. Bayard, Grimes, Harlan, Hendricks, Howe, Johnson, Slorton, Saulsbury, Wade, and Yates — 10. So the evidence was admitted. Mr. Manager Butler. I suppose that the despatches need not be read again ; they have been read once or twice. Mr. Curtis. No; we waive the further reading. Mr. Doolittle. Mr. Chief Justice, the hour of iive having arrived, 1 move that the court adjourn until to-morrow at twelve o'clock. TheCniEF Justice. It is moved that the Senate sitting as a court of impeach- ment now adjourn until to-morrow at twelve o'clock. The question being put, it was declared that the motion was not agreed to, Mr. Fowler. I call for a division. The Chief Justice. The result has been announced. It is too late to call for a division. Mr. Ramsey. The question was not understood, I think. The Chief Justice. If that be the case, the question will be put again. The question being put again, the Chief Justice declared that the motion appeared to be agreed to. Mr. CoiV.MESS and Mr. Sumner called for the yeas and nays, and they were ordered ; and being taken, resulted— yeas 22, nays 22 ; as folloAvs : Yeas- -Messrs. Anthony, Buckalew, Cameron, Corbett, Cragin, Davis, Dixon, Doolittle, Fowler, Frelinghnysen, Henderson, McCreery, Morrill of Vermont, Norton, Patterson of Tennessee, Ramsey, Sj)rague, Tipton, Trumbull, Van Winkle, Vickers, and Willey — '22. NaYH — Messrs. Cattell, Chiuidler, Colo, Conkliug, Conness, Drake, Edmunds, Fessenden, Howard, Howe, Morgan, Morrill of Maine, Nye, Putterscni of New Hampshire, Pomeroy, Koss, Sherman, Stewart, Sumner, Thayer, Williams, and Wilsim — 22. Not votinc! — Messrs. Bayard, Ferry, Grimes, Harlan, Hendricks, Johnson, Morton, Saulsbury, Wade, and Yates — 10. The Chief Justice. On this (mestion the j^eas are 22, and the nays are 22. The Chief Justice votes in the allirmative. The Senate, sitting as a court of impeachmentj stands adjourned until to-morrow at 12 o'clock. IMPEACHMENT OF THE PRESIDENT. 277 Friday, April 3, 1868. The Chief Justice 'of the United States entered the Senate chamber at five minutes past 12 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 Representa- tives appeared and took the seats assigned them. The counsel for the respondent also appeared and took their seats. The presence of the House of Representatives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. "VVashburne, the chairman 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 the proceedings of the Senate yesterday sitting- for the trial of the impeachment. Mr. Drake. Mr. President, I move that the Senate take up the proposition which I offered yesterday, to amend the seventh rule, and have a vote upon it. The Chief Justice. Theamendment will be considered as before the Senate unless objected to. Mr. Edmunds. Let it be read. The Chief Justice. The Secretary will read the amendment. The Secretary read as follows : Amend the seventh rule by adding the following : Upon all such questions the vote shall be without a division, unless the yeas and nays be demanded by one-fifth of the members present or requested by the presiding officer, when the same shall be taken. Mr. Edmunds. Mr. President, I move to strike out that part of it relating to the yeas and nh,ys being taken upon the request of the presiding officer. Mr. CoNKLiNG. Not having heard the motion of the senator from Vermont, I ask for the reading of the seventh rule as it is now, which is not before us, and which we have no meaus of knowing anything about. The Chief Justice. The Secretary will read the seventh rule. The Secretary. The seventh rule is as follows : VII, The presiding officer of tlie 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. It is proposed to add the following to the rule : Upon all such questions the vote shall be without a division, unless the yeas and nays be demanded by one-fifth of the members present, or requested by the presiding officer, when the same shall be taken. Mr. Drake. I have no objection to the amendment proposed by the honorable senator from Vermont. The Chief Justice. The amendment to the rule will be so modified if there be no objection. (To the chief clerk.) Read .the amendment as modified. The chief clerk read the amendment as modified, as follows: At the end of rule seven insert: Upon all such questions the vote shall be without a division, unless the yeas and nays be demanded by one-fifth of the members present, when the same shall be taken. The amendment to the rules, as modified, was agreed to. . 278 IMPEACHMENT OF THE PRESIDENT. Mr. Drake. I move that the rules, as now amended, be printed for the use of the Senate. ^ The motion was agreed to. The Chief Justice. The managers on the part of the House of Representa- tives will proceed with their evidence. Mr. Manager Butler. Before putting any question to Mr. Tinker, the witness under examination at the adjournment, I will put in a single paper with the leave of the court. The paper is a "message of the President of the United States, communicating to the Senate a report of the Secretaiy of State, showing the proceedings under the concurrent resolution of the two houses of Congress of the 13th instant, requesting the President to submit to the Icgislatui'es of the States an additional article to the Constitution of the United States." Mr. Stanbery. What article is that? What date? Mr. Manager Butler. The fourteenth article. The document is dated June 22, 1SG6. It is the same article to which the despatch related. We offer it iu order to show to what the despatch refei-red. (The document was handed to the counsel for the respondent.) Mr. Stanbeey, (returning it ) Mr. Chief Justice, we do not see the particu- lar relevancy of this message to any article which we are called upon to answer. However, we have no objection to the gentleman reading it. Mr. Manager Butler. Mr. Clerk, will you read the message? The chief clerk read as follows : Message from the President of the United States, communicating to tkn Senate a report of the Secretary of State, shoicing the proceedings under concurrent resolutions of the two houses of Congress of the ]'ilh instant, requestins the Presidivt to submit to the legislatures of the States an additional article to the Constitution of the United States. To the Senate and House of Representatives : I submit to Congress a report of the Secretary of State, to whom was referred the concnr- reut resolution of the ]8tli iustant, respectiufr a submission to the legislatures of the States of an additional article to the Constitution of the United States. It will be seen from this report that the Secretary of State had, on the Kith instant*, trausmitted to the governors of the several States certitied copies of the joint resolution passed ou the 13th instant, proposing an ameiidnient to the Constitution. Even in ordinary times any question of amending 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 tlie two houses for the approval of the Presi-- dent, and that of the thirty-six States which constitutes the Union eleven are excluded from representation iu either house of Congress, although, with the single exception of Texas, they iiave been entirely restored to all their functions as States, in conformity with the organic law of the land, and have appeared at the national capital by senators and represen- tatives wiio have applied for and have been refused admission to the vacant scats. Nor liave the sovereign people of the nation been afforded an opportunity of expressing their views.upon tiie important (juestions which the amendment involves. Grave doubts, therefore, may naturally and justly arise as to whether the action of Congress is in harmony with the senti- ments of the. people, and whether State legislatures, elected without reference to such an issue, shiiuld be called upon by Congress to decide respecting the ratitication of the proposed amendment. Waiving tlie (piestion as to the constitutional validity of the proceedings of Congress upon tlic joint resolution proposing the amendment, or as to the merits of the article which it sub- mits, through the executive department, to the legislatures of the States, I deem it jjroper to observe that the steps taken by the Secretary of St.ite, as detailed in the accompanying report, are to be considered as purely ministerial, and in no sense whatever conunittiug the Execu- tive to an approval or a reconnnendation of the amendment to the State legislatures or to the people. On the contrary, a projjer apjtreciation of the letter and spirit of the Constitution, as well as of the interests of national order, harmony, and union, and a due deference for an enlightened jjublic judgment, miiy at this time well suggest a doubt whether any ameildment to the Constitution "ought to be proposed by Congress, and pressed ujion tlie legislatures of the several States for iinal decision, until after the admission of such loyal senators and rep- resentatives of the now uinepresented States as have been or as may hereafter be chosen iu couformitv with the Constitution and laws of the United States. ANDREW JOHNSON. Washington, D. C, June 22, 186G. IMPEACHMENT OF THE PRESIDENT. 279 Department of State, JFashington, Ju7ie2<), 1S66. The Secretary of State, to whom was referred the concurrent resohition of the two houses of Congress of the 18th instant in the following words : " That tlie President of tlio United States be requested to transmit forthwith to the executives of the several States of the United States copies of the article of aniendinent proposed by Congress to the State legislatures, to amend the Constitution of the United States, passed June V.i, 1866, respecting citizenship, the basis of representation, disqualiiication for olifice, and validity of the public debt of the United States, Sec, to the end that tlie said States may proceed to act upon the said aiticle of amendment, and that he request the executive of each State that may ratify said amend- ment to transmit to the Secretary of State a certified copy of such ratification, " has the honor to submit the following report, namely : that on the Kith instant Hon. Amasa Cobb, of the committee of the House of Representatives on Enrolled Bills, brought to this dei)artment and deposited therein an enrolled resolution of the two houses of Congress, which was thereupon received by the Secretary of State and deposited among the rolls of the department, a copy of which is hereunto annexed. Thereupon the Secretary of State, on the Kith instant, iu conformity with the proceeding which was adopted by him in 18G5 in regard to the then pro- posed and afterward adopted congressional amejidment of the Constitution of the United States concerning the prohibition of slavery, transmitted certified copies of the annexed res- olution to the governors of the several States, together with a certificate and circular letter. A copy of both of these communications is hereunto annexed. Respectfully submitted : WILLIAM H. SEWARD. The President. [Circular.] Department of State, Washington, June 16, 1866. Sir : I have the honor to transmit an attested copy of a resolution of Congress, proposing to the legislatures of the several States a fourteenth article to the Constitution of the United States. The decisions of the several legislatures upon the subject are required by law to be communicated to this department. An acknowledgment of the receipt of this communication is requested by your excellen- cy's most obedient servant, WILLIAM H. SEWARD. His Exgelleacy the GOVERNOR of the State of . United States of America, « Department of State. To all to whom these presents shall come, greeting : I certify that the annexed is a true copy of a concurrent resolution of Congress, entitled "Joint resolution proposing an amendment to the Constitution of tlie United States," the original of which resolution, received to-day, is on file in this department. in testimony whereof, I, William H. Seward, Secretary of State of the United States, have hereunto subscribed my name and caused the seal of the Department of State to be aflSxed. Done at the city of Washington this 16th day of June, A. D. 1866, and of the independ- ence of the United States of America the ninetieth. [seal.] WILLIAM H. SEWARD. [Concurrent resolution received at Department of State, June 16, 1866.] JOINT RESOLUTION proposing an amendment to the Constitution of the United States. Resolved hy the Senate and House of Representatives of the United States of America in Congress assembled, (two-thirds of both houses concurring,) That the following article be proposed to the legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said legislatures, shall be valid as part of the Constitution, namely : ARTICLE XIV. Section 1. All persons born or naturalized in the United States and subject to the juris- diction thereof are citizens of the United States and of the State wherein the3' reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citi- zens of the United States ; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws. Sec. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians 280 IMPEACHMENT OF THE PRESIDENT. not taxed. But when the rif^ht to vote at any election for tlie choice of electors for President and Vice-President of the United States, representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State being twenty-one j'ears of age and citizens of the 1 'uited States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty- one years of age in such State. Sec. 3. No person shall be a senator or representative in Congress, or elector of President and Vice-President, or hold any ofSce, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may hj a vote of two-thirds of each house remove such disability. Sec. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be qviestioned. But neither theUnited States nor any State shall assuuie or pay any debt or obligation incurred in aid of insurrectiou or rebellion against the United States, or any claim for the loss or emancipation of any slave ; but all such debts, obligations, and claims shall be held illegal and void. Sec. 5. The Congress shall have power to enforce, by appropriate legislation, the pro- visions of this article. SCHUYLER COLFAX, Speaker of the House of Representatives. LA FAYETTE S. FOSTER, President of the Senate pro tempore. Attest : Edward McPherson, ♦ Clerk of the House of Representatives. J. W. Forney, Secretary of the Senate. [To Avbich is appended the certificate of J. W. Forney, Secretary of the Senate, dated April 2, 1868, that the foregoing are tv\\^ extracts from the record* of the Senate.] , Chakles a. Ti.\kei!'s examination resumed. By Mr. Manager Butlrr : Qucgtion. Yon told us yesterday you were manager of the Western Union telegraph office. Have you from that office what {lurports to be a copy of a speech which was telegraphed to the country or any portion of the country, as made by Andrew Johnson on the 18th of August, 1866? if so, produce it. ]\Ir. JJRAKE, I will state that we have not heard the question put by the hon- orable 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 ISth day of August, 1866; if so, produce it. Answer. I have the files of the Associated Press despatches sent on that day, containing what purports to be a copy of the speech delivered by the President. [Producing a roll of manuscript ] Q. From the course of business of the office are you enabled to state whether this was sent 1 A. It has the " sent" marks put upon all despatches sent over the line. Q. And this is the original manuscript 1 A. That is the original manuscript telegraphed. Q. ]^y what association was this speech telegraphed ? A. By the Associated Press, by their agent in the city of Washington. Mr. CuRTl*. We must object to this, General Butler. lie says it has a mark on it. He does not say he put the mark on it, or that he knows that any- thing was done, thus far. IMPEA.CHMENT OF THE PRESIDENT. 281 Mr. Manager Butler, (to tlic witness.) Can you tell me, sir, to what extent over tlie country the telegraphic messages sent by the Associated Press go ? A. 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 of the. Associated Press, and from New Yoi'k they are distributed through the country. j\Ir. Manager Butler, (to the counsel for the respondent.) The witness is yours, gentlemen. 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 : Q. Your whole name, Mr. Sheridan? A. James Bernard Sheridan 1 Q. What is your business 1 A. I am a stenographer. Q. Where employed ? A. At present in New York city. Q. What was your business on the 18th of August, 1866 ? A. I was a stenographer. • Q. State whether you reported a speech of the President on the ISth of August, 1866, in the East Room of the President's Mansion. A. 1 did. Q. Have you the notes taken at the time of that speech ? A. I have ; [producing a note-book containing short-hand notes.] Q. Did you take down that speech correctly as it was given ? A. I did, 'to the best of my ability. Q. How long experience have you had as a reporter? A. Some fourteen years now. Q. Did you write out that speech at the time ? A. I wrote out a part of it. Q. Where? A. At the Presidential Mansion. Q. Who was present? A. There were several reporters present — Mr. Clephane, Mr. Smith. Q. What Clephane? Do you remember his first name ? A. James, I think, is his first name. Q. What Mr. Smith? A. Francis H., I believe, is his name. Q. The official reporter of the House? A. At that time, I believe, he was connected with the House. Q. Who else? A. I think Colonel Moore was in the room part of the time ; I do not know that he was in all the time. Q. What Colonel Moore? A. The President's private secretary, William Gr. Q. 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? A. 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. Q. You think Mr. Moore took it? A. I think either he or Mr. Smith took it, as I wrote out my share of it. 282 IMPEACUMENT OF THE PRESIDENT. Wetdivided it among us ; Mr. Clephane, Mr. Smith, and I wrote out the spcecb, I think. Q. Look at that manuscript, [handing to the M'itness the manuscript pro- duced^by 0. A, Tinker,] and see whether you recognize your handwriting. The Witness, (having examined the manuscript.) No, sir; I do not recog- nize any of the writing here as mine. Q. Have you since written out from your notes any portion of the speech as you reported it ? A. I wrote out a couple of extracts from it. Q. (Handing a paper to the witness.) Is that your writing? A. Yes, sir. Q. State whether what you hold in your hand is a correct transcript of that speech made from yonr notes 1 A. It is. • Q. When was that written 1 A. It was written when I appeared before the board of managers. Q. 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, gpntlemen. Mr. Stanbery. Have you got through with this witness ? Mr. Manager Butler. I said the witness was yours, gentlemen. Mr. Stanberv. Is this all ycoi expect of this witness ? Mr. Manager Butler. All at present, and we may never recall him. Cross-examined by Mr. Evarts : Q. ^ou have produced a note-book of original stenographic report of a speech of the President ? A. Yes, sir. Q. Is it of the whole speech ? ' , A. Of the whole speech. Q. Was it wholly made by you 1 A. By me ; yes, sir. Q. How long did the speech occupy in the delivery? A. Well, I suppose some twenty or twenty-five minutes. Q. By what method of stenographic reporting did you proceed on that occa- sion ? A. Pitman's system of phonography. Q. Which is, as I understand, reporting by sound, and not by sense ? A. We report the sense by the sound. Q. I understand you report by sound wholly ? A. Signs. Q. And not by memory of or attention to sense? A. No good reporter can report unless he always pays attention and under- stands the sense of what he is reporting. Q. 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 1 A. Both. Q. Both at the same time ? A. Yes, sir. Q. Yoyr characters are arbitrary, are they not ; that is, they are peculiar to your art ? A. Yes, sir. Q. They are not letters ? A. No, sir. IMPEACHMENT OF THE PRESIDENT. 283 Q. Nor words ? A. We have word signs. Q. Bat generally sound signs ? A. "We have signs for sounds, just as the letters of the. alphabet represent sounds. Q. But not the same ? A. No, sir. Q. This transcript that you made of a portion of your report for the use of the committee was made recently, I suppose? . A. Yes, sir ; a few weeks ago. Q. 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 con- siderable period of time ? A. Perhaps I can illustrate better by the present case — this report which I made here — the extract I gave when I was called before 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, and I read off, as they requested I should, the extracts which the mana- gers for the prosecution handed me, which I identified. Q. You read, then, from your stenographic notes 1 A. Yes, sir. Q. And it was taken down ? A. The reporter of the managers, I believe, took it down ; but I afterward wrnte it out for them. Q. You do not make a sign for every M'ord t A. 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. Q. That is, you have signs which belong to every word, excepting when you drop the particles ? A. Yes, sir. Q. But not, as a matter of course, a sign that is the representative of a whole word ? A. Yes, sir ; we have signs representing words. Q. Some signs 1 A. Yes, sir. Q. For instance, for the word " jnrisprudence," you have no one sign that represents it ? A. No, sir; I should write that "j-r-s-p." Q. And that is an illustration of your course of proceeding, is it not ? A. Yes, sir. Q. Are these letters that you thus use, or only signs that represent letters ? A. Yes, sir. Mr. EvARTS, ("to the witness.) That is all. Mr. Manager Butler. That is all for the present ; remain within call. James 0. Oi.ephanr swoi-n and examined. By Mr. Manager Butler : Q. "What is your business 1 A. I am at present deputy clerk of the supreme court of the District of Columbia. Q. "What was yoiu" employment on the ISth of August, 1866 ? A. I was then secretary to Governor Seward, Secretary of State. Q. Are you a phonographic reporter ? A. I am. 284 IMPEACHMENT OF THE PRESIDENT. Q. How considerable lias been your experience? A. Some eight or nine years. Q. Were you employed on the ISth of August, lS66,to make a report of tlie President's speech in reply to Mr. Johnson ? A. I Avas. I was engaged in connection with Mr. Smith for the Associated Press, and also for the Daily Chronicle at Washington. Q. Did you make a report ? A. I did. Q. Where was this speech made ? A. In the East Room of the White House. Q. You say it was in reply to Mr. Johnson ? A. It was in reply to Hon. Reverdy Johnson. Q. State partially who were present ? A. There were a great many persons present — the committee of the con- vention. I noticed among the prominent personages General 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. Q. Were any of the cabinet officers present ? A. I do not recollect Avhether any of them were present or not. Q. Did you report that speech? A. I did. Q. What was done with that report ? State all the circumstances. A. With regard to the Associated Press report I will state that Colonel Moore, the President's private secretary, desired the privilege of revising it before publication ; and, in order to expedite matters, Mr. Sheridan, Mr Smith, and myself united in the labor of transcribing it ; Mr Sheridan transcribed one portion, 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 Associated Press, who telegraphed it throughout the country. Q. Look at that roll of manuscript lying before you and see if that is the speech that you transcribed and Moore corrected. A. (Having examined the manuscript produced by C. A. Tinker.) I will state here that I do not recognize any of my writing. It is possibh^ I may have dictated to along-hand writer on that occasion my portion, though I am not positive in regard to that. Q. Who was present at the time of tlie writing out? A. Mr. Smith, Mr. Sheridan, and Colonel Moore, as far as I recollect. Q. Do you know Colonel Moore's handwriting 1 A. I do not. Q. Did you send your report to the Chronicle ? A. I would state that Mr. McFarland, who had engaged me to report for the Chronicle, 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 imperfections, and, as he insisted upon my rewriting the speech, I did so, and it was published in the Sunday Morning Chronicle of the 19th. Q. Have you a copy of that paper ? A. I have not. Q. After that report was published in the Chronicle of Sunday morning, the 19th, did you sec the report ] A. 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 •;ind there. Q. You say with the exception of a word changed here and there ; how ? A. Where the sentence was very awkward, and where the meaning was obscure, doubtless in that case I made a change. 1 recollect doing it in one or IMPEACHMENT OF THE PRESIDENT. 285 two instances, though I may not be able to point them out just now. If I had my orig-inal notes 1 couhl do so. Q. With what certainty can you speak as to the Chronicle's report being an accurate one 1 A. 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. Q. Will you give us an illustration of that change ? Mr. Eva UTS. Some instance. Mr. Manager Butler. Yes, some instance. Mr. Stanbery. He said he could not recollect. The Witness. I will state that my attention was called to a particular instance; I think it was a day or two after. Some correspondent, 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 corrected in the report published in the Chronicle. It appeared in the notes " you and I has saw," as this correspondent stated. By Mr. Manager Butler : Q. How was it corrected in trhe Chronicle? A. "You and myself have seen," or something to that effect; I do not now remember. Mr. Manager Butler. I am informed, Mr. President, there being two manu- scripts, that Mr. Tinker has given me the one which was Avritten out at length as a duplicate, and not the original, as I had supposed, and I shall have to ask to bring him on again. T 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. Evarts: Q. You acted upon the employment of the Associated Press? A. Yes, sir; in connection with Mr. Smith. Q. You were jointly to make a reporii, were you? A. We were to take notes of the entire speech, each of us, and then we were to divide the labor of transcribing. Q. Now, did you take phonographic notes of the whole speech ? A. I did. Q. Where are your phonographic notes ? A. I have searched for them, but cannot find them. Q. Now, sir, at any time after you had completed the phonographic notes did you translate or write them out ? A. I did. Q. The whole ? A. The Avhole speech. Q. Where is that translation or written transcript ? A. I do not know, sir. The manuscript, of course, was left in the Chronicle office. I wrote it out for the Chronicle. Q. You have never seen it since, have you 1 A. I have not. Q. Have you made any search for it ? A. I have not. Q. 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 ? 286 IMPEACHMENT OF THE PRESIDENT. A. Yea, sir. Q. Now, you say that subsequently you read a priutcd newspaper cop^ of the speech in the Washington Chronicle ? A. Yes, sir. Q. When was it that you read that newspaper copy ? A. On the morning of the publication, August ll», Sunday morning. Q. Where were you when you read it ? A. I presume I was at my room. I generally saw the Chronicle there. Q. And you there read it 1 A. Yes, sir. Q. From this curiosity that vou had ? A. Yes. I read it more carefully because of that reason. Q. Had you before you your phonographic notes, or your written transcript from them ? A. I had not. Q. And had not seen and have never seen them in comparison with the news- paper copy before you ? A. No, sir. Re-examined by Mr. Manager Butler : Q (Handing to the witness a bound volume of the Washington Daily Chron- icle.) Have you before you a copy of the Sunday Morning Chronicle of the 19th of August, 1866 ? A. I have. Q. Look upon the page before you and see if you can find the speech as you reported it. A. I find it here, sir. Q. 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 verhatiin report of the speech of Andrew Johnson on that occasion ; and if so> what ground have you for doubt 1 Mr. EvARTS. Mr. Chief Justice, we object 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. Li all legal proceedings we are entitled to that degree of accuracy and trustworthiness which the nature of the case admits ; and Avhen- ever evidence of that decree of authenticity is presented, then, for the first time, will arise the consideration of whether the evidence is competent 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 df his own shown him (for none is shown) that from memory he can say it is the speech. What is offered ? The same kind of evidence, and thut alone, which would grow out of some person who heard -the President deliver the speech, and subsequently read in the Chronicle the report of it, that he thinks that report was a true statement of the speech ; for this witness has told us distinctly that reading this speech from curiosity, to see how it would appear when reproduced, without the ordinary guarantees of accuracy, he had neither his original notes nor his written transcript, and he read the newspapers 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 newsjjaper report of it is not admissible. Mr. Manager I^utlkr. ]\Ir President, if I understand there is no question of degree of evidence. We must take tiie business of the world as we find it, and must not burrow ourselves and insist that we have awakened to matters as they were a hundred years ago. The art of stenography and stenographic writing IMPEACHMENT OF THE PRESIDENT. 287 and phonogi'apliy has progressed to a point which makes us rely upon it in all .the bnsiucss of life. There is not a gentleman of this Senate Avho 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. AVhy ? Because you rely upon the busy fingers of the reporter Avho sits by my side to give you a tran- script of it, upon which you must judge. Therefore, in every business of life, ay, in the very business 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 Presi- dent's utterance distilled through the alembic of Colonel Moore's critical dis- crimination, 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 curi- osity to see what would be the difference, and how the President of the United States would appear if put to paper literally, he examined that speech- in the Chronicle, and then Avith the matter fresli in his mind, only a few hours inter- vening, with his attention freshly called to it, he said then he knew that that was a correct copy ; that that Avas the correct speech. Now, the learned counsel say the manuscript is the better evidence. If there was any evidence that that manuscript had been preserved perhaps we might be called upon to produce it in some technicality of criticism of law as adminis- tered in a very technical manner. But who doesdiot know the ordinary course of business, and, if that is to be disputed, I will ask the witness ; who does not know that the ordinary 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 the usual and ordinary and common understanding 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 Ave are discussing, is, looking at that report, from your knowledge of the report, having twice written it out, portions of it certainly, and from having seen it the next morning, with your cariosity awakened, can you tell the Senate whether that is a correct report 1 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. Clephaneis not one of those gentlemen who, in his profession, having once read a speech, can repeat 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 lor correction by the President's private secretary, and then having rewritten it again from your notes for publication in the Chronicle, and then having- examined it immediately after publication — from all these sources of knowledge can you say that that is a correct copy]" Thereupon the counsel for the President says you cannot. How does he know that the witness cannot repeat every word of it 1 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 stenograpliic reporting. Now, allow mei 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 b_y doing so I should play into the hands of this delay which has been so often attempted here. In O'Connell's case, to prove his speeches on that great trial, the news- papers 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 288 LMPEACIIMENT OF THE PRESIDENT. had been properly stamped and issued from the office, and the court held that Mr O'Connell, allowing those speeches to go out without contradiction for months, mu.< — Me.ssrs. Anthony, Cameron, Cattell, Chandler, Cole, Conklinp^, Conness, Cragin, Drake, Ediniuids, Ferry, Freliiighuy.'ess, nor of a subsidized and caluuiuiating press, can drive iiic from my purpose. [Applause. ] I aekniiwlediie no superior but two — my God, the author of my existence, and the people of the United States. [Applause.] The one, I try to obey all his comnuiuds as best T can, compatible with mortal man; the other, in a political and representative sense, the high behest of the people has always been in strict respect, has always been obeyed by nie. [Applause.] Mr. Chairman, I have said more than I intended to say. For the kind allusions made in the addrt'ss and in the resolutions or propositions adopted by j'our convention, I want to say to you that iu this crisis, in this ]>eriod of my public life, I prize that last resolution, more than all that has come to me. . To have the indorsement of a convention, constituted as that was, emanating spontaneously from the great mass of the people, I prize it above con- sideration, and I trust and hope my future conduct will not cause the convention that adopted that to have regretted the assurance they have given. [" Very sure of it.''] Before separating, and leaving you, gentlemen, one and all, committee and strangers, please accept my thanks for this kind manifestation of regard and respect 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 lia\e said in substance, that I have, and shall always continue to be guided by a conscientious conviction. That always gives me courage. The Constitution I have made my guide. Then, accept my sincere thanks for this manifestation of your appro- bation and regard. Mr. Manager Butler, having concluded the reading, continued : I do not propose, gentlemen, to read any more of these versions, but to leave them here for any correction that may be desired. Mr. Anthony. I oflPered 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 Justice. The Chief Justice thinks it is not in order to call up any business transacted m 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 not in order to interrupt the business of the trial with such a motion. Mr. EvARTS. General Butler, will you allow us to ask what copies or ver- sions of the speech of August 18, 1866, you consider included in the testimony received 1 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 olFer the Chronicle, not because it is not evi- dence, 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 the evidence in the case ? Mr. Manager Butler. For aught I care. The other report offered in evidence — the one revised by Colonel Moore and published — is as follows : Mr. Chairman and Gentlemen of the Committee : Language is inadequate to express the emotions and feelings produced by this occasion. Perhaps I could express more by permitting 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 assembly are well calculated to, and do overwhelm me. As I have said, I have not language to convey adequately my present feelings and emotious. In listen- ing to the address which your eloquent and distinguished chairman has just delivered, the proceedings of the convention, as they transpired, recurred to my mind. Seemingly I par- look of the inspiiatiou 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 Massachusetts, arm in arm, marching into that vast assemblage, and thus giving evidence that the two extremes 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 despatch informed me that in that vast body of men, distinguished for intellect and wisdom, 302 IMrEACIIMENT OF THE PRESIDENT. every eye was suffused with tears on bcliokliug the scone, I could not finish readinf^ the despatch tooueassoc'ated witli me in the office, fi)r my own feelinfrs overcame me. [Applause.] I think we may justly conclude that we are movinof under a proper inspiration, and that ■we need not be mistaken that the finprer of an oveniilinn^ and unerring Providence is in this matter. The nation is in jjeril. We have just passed throufrh a mighty, a bloody, a momentous ordeal, yet do not find ourselves free from the difiiculties and dangers that at first surrounded us. While our brave men have perfonned their duties, both officers and men, (turning to General Grant, who stood at his right, ) while they have won laurels imperish- able, there are still greater and more important duties to perform : and while we have had their co-operation in the field, 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 wliich 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. [Applause.] We thought, and yet think, 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 distin- guished gentleman who has delivered to me the report of its proceedings. 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 government every effort, as it were, to prevent the restoration of peace and harmony in the Union. We have seen hanging upon the verge of the government, as it Avere, a body called, or which assumes to be, the Congress of the United States — but, in fact, a Congress of only part of the States. We have seen this Congress assume and pretend to be for the Union, when its every step and act tended to perpetuate disunion 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 government. The humble indi- vidual who is now addressing you stands the representative of another department 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.] Having 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 Constitution of my fathers and to make it my guide. [Hearty applause.] I know it has been said — and I must be i)crinitted to indulge in this remark — that the executive department of the government has been despotic and tyrannical. Let me ask this audience of distinguished gentlemen around me here to- day to point to a vote I ever gave, to a speech I ever made, to a single act of my whole public life, that has not been against tyranny a'nd despotism. What position have 1 ever occupied, what ground have 1 ever assumed, where it can be truthfully charged that 1 failed to advocate the ;iiiielii)iatiiiu and elevation of the great masses of my countryuien ? [Cries of "Never," and great apjjlause. ] So far as charges of that kind are concerned, I will say that they are simplj' intended to deceive and delude the public mind into the belief that there is some one in power who is usurping and trampling upon the rights and perverting the principles of the Constiaitiou. It is done by those who make such charges for the purpose of covering their own acts. ["That's so," and applausi'.] 1 have felt it my duty, in vindication of principle and the Constitution of my CDuntiy, to call the atteiitii)u of my countrymen to these proceedings. When we come to t^xamiue who has been jjlayiiig the tyrant, by whom do we find that des- potism has been exercised? As to myself, the elements of my nature, the pursuits of my life, have not made me, either in my feelings or in my pr,actice, aggressive. My nature, on the contrary, is latln-r defensive in its character; but I will say that, having taken my stand upon the broad princijdes of liberty and the Constitution, there is not power enough on earth to drive me from it. [Loud and prolonged applause.] Having ])laced myself upon liiat broad platform, I have not been awed, dismayed, or intimidated by I'ither threats or encroach- ments, 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 pre- vious 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 fur the Aminican people to hear and ])roperly understand. They did hear, and looking on and seeing who the 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.] 1 proclaim here to-day, as I have on other occasions, that my faith is abiding in the great mass of the people. In the darkest monu-nt of this struggle, wlien the clouds seemed t' 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, wo all know that, in tlielauguage of Thomas Jefferson, " tyranny and despotism even can be exercised and exerted more effectually by the many tlmu the one." We have seen a Congress gradually IMPEACHMENT OF THE PRESIDENT. 303 encroach, step by stop, upon constitutional riplits, and violate, day after day and month after month, the fundamental principles of the government. [Cries of "Tliat's so !"aud ap])l!iuse.] We have seen a Con^^ress that seemed 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 powers which, if allowed to be carried out, would result in despotism or monarchy 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 the country we have been denounced in the severest terms. Slander upon slander, vitu peratiou upon vituperation, of the most villauous 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 — daring to stand by the Constitution of our fathers. [Approaching Senator Johnson.] I consider the proceedings of this convention, sir, as more important than those of any convention that ever assembled in the United Statt-s. (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 commen- surate with all the -States, and coextensive with the whole penple, and contrast it with the collection of gentlemen who are trying to destroy the country, 1 regard it as more important than any convention that has sat at least since 1787. (Renewed applause.) I think I 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 applause.) Your address and declara- tions are nothing more nor less than a reaiifirmation of the Constitution of the United States. (Cries of "Good !" and applause. ) Yes, I will go further, and say that the declarations you have made, that the principles you have enunciated in yoiu" address, are a .second pro- clamation of emancipation to the people of the United States — (renewed applause) — for in proclaiming and reproclaiming these great truths you liave laid down a constitutional plat- form upon which all can make common cause, and stand united together for the restoration 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! " and applause.) How many are there in the United States that now require to be free'' — they have the shackles upon tiieir 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 otfers a conunon ground upon Mhich all patriots can stand. (Applause.) Mr. Chairman and Gentlemen: Let me, in this connection, 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 any one ; but here, in a conversational manner, while formalh' receiving the proceedings of this convention, I may be permitted again to ask, what have I to gain, con- sulting human ambition, more than I have gained, except in one thing ? My race is nearly run. I have been placed in the high office which I occupy under the Constitution of the country, and I may say that I have held, from lowest to highest, almost every position to which a man nuiy attain in our governuient. I have passed through every position, from an alderman of a village to the presidencj' of the United States; and surely, gentlemen, this should be 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 the measure called the "Freedmen's Bureau bill." (Laughter and applause.) With an army which it placed at my discretion I could have remained at the capital of the nation, and with fiftj' or sixty millions of appropriations at my disposal, with the machinery to be worked by my own hands, with my satraps and dependents in every town and village, and then with the "Civil Rights bill " following as an auxiliary — (laughter) — in connection with all the other appliances of the government, I could have proclaimed myself Dictator! ("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 is 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 Congi'ess, nor of a subsidized, calumnia- ting press, can drive me from my purpose. (Great applause.) I acknowledge no superior except m^' God, the author of my existence, and the people of the United States. (Prolonged and enthusiastic cheering.) For the one, I try to obey all his commands as best I can com- patible with my poor humanity; for the other, in a political and representative sense, the high behests of the people have always been respected and obeyed by me. (Applause.) Mr. Chairman, I have said more than I intended to say. For the kind allusions to myself con- tained in your address, and in the resolulions adopted by the convention, let me remark that, in this crisis, and at this period of my public life, I hold above all price, and .shall everiocur ■with feelings of profound gratification to the last resolution containing the indorsement of a convention emanating spontaneously from the great mass of the people. I trust and hope that my future action may be such that you and the convention that you represent may no* regret the assurance of confidence you have expressed. ("We are sure of it.") Before sep- arating, my friends, one and all, committee and strangers, please accept my sincere thanks 304 IMPEACHMENT OF THE PRESIDENT. for the kind manifestations of regard and respect you have exhibited on this occasion. I repeat, that I shall always continue to he guided by a conscientious conviction of duty, and that Jilways gives me courage, under the Constitution, whicli I have nu\de my guide. WfLLiAM N. Hudson sworn and examined. By Mr. Manager Butler : Q. "What is your business ? A. I am a journalist by occupation. Q. Where is your home ? A. In Cleveland, Ohio. Q. What paper do you have charge of? A. The Cleveland Leader. Q. Where were you about the 3d or 4th of September, 1866 1 A I was in Cleveland. Q. What was your business then ? A. I was then one of the editors of the Leader. Q. Did you hear the speech that President Johnson made there from the balcony of a hotel 1 A. I did. Q. Did you report it ? A. I did, with the assistance of another reporter. Q. Who is he ? A. His name is Johnson. Q. Was your report published in the paper the n6xt day ? A. It was. Q. Have you a copy ? A. I have. Q. Will you produce it ? The witness produced a copy of the Cleveland Leader of September 4, 1866. Q. Have you your original notes ? A. I have not. Q. W^here are they ? A. I cannot tell. They are probably destroyed. Q. Have you the report in the paper of which you are the editor, which was published the next day ? A. I have the report which I have submitted. Q,. What can you say as to the accuracy of that report ? A. It is not a verbatim report, except in portions. There are parts of it which are verhailm, and parts are synopses. Q. Does the report distinguish the parts which are not verbatim from those which are ? A. It does. Q. Is all put in that Mr. Johnson did say ? Mr. EvAUTS. He says not. By Mr. Manager Butler : Q. Is anything left out which Johnson said ? A. Yes. ;Mr. EvARTs. Do you mean the President or reporter Johnson ? Mr. Sta.\'I5KRV. Whom do you mean by Johnson ? Mr. EvART.s. There was another John.son mentioned. Mr. Manager Butlkr. Not on this occasion. Mr. EvAR'i'S. Yes, reporter Johnson. Mr. Manager Butlkr. I mean Andrew Johnson "last aforesaid." A. The report leaves out some portions of Mr. Johnson's speech ; states them in eynoptieal form. IMPEACHMENT OF THE PRESIDENT. 305 Q. Is tbeve anything put in there that he did not say ? A. There are words used which he did not use, in stating the substance of what he said. There is nothing substantially stated that he did not state. Q. When was that report prepared by yourself ? ' A. It was prepared on the evening of the delivery of the speech. Q. Did you see it after it was printed ? A. I did. . Q. Did you examine it ? A. I did. Q. Now, sir, what can you say as to the accuracy of the report Avherever the words are professed to be given ? A. To the best of my remembrance it is accurate. Q. You now believe it to be accurate 1 A. I do. Q. How far do you say it is accurate where substance is professed to, be given 1 A. It gives the substance — the sense without the words. Q. Taking the synoptical part and the verbatim part, does the whole giVe the substance of what he said on that occasion ? A. It does. Q. 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 synoptical part or is that the verbatim part ? A. 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. E VARTS. We will cross-examine him before you put the paper in evidence. Mr. Manager Butler. Yes, sir. Cross-examined by Mr. Evarts: Q. Mr. Hudson, was this newspaper that you edited and for which you reported of the politics of the President or of the opposite opinion ? A. It was republican in politics. Q. Opposite to the views of the President, as you understood them 1 A. It was. Q. At what time was this speech made ? A. On the 3d of September, 1S66. Q. At what hour of the day? A. About nine in the evening. Q. It commenced then ? A. It commenced. Q. When did it conclude ? A. I think about a quarter before ten. Q. And was there a large crowd there ? A. There was. Q. Of the people of Cleveland ? A. Of the people of Cleveland and surrounding towns. Q. Was this balcony from which the President spoke also crowded ? A. Yes. Q. And where were you ? A. I was upon the balcony. Q. What convenience or arrangement had you for taking notes ? A. I took my notes upon m}-^ knee as I sat. Q. Where did you get light from ? A. From the gas above. Q. At what time that evening did you begin to write out your notes ? 20 I p 306 IMPEACHMENT OF THE PRESIDENT. A. To the best of my remembrance about 11 o'clock. Q. And when did you finish 1 A. Between twelve and one. Q. And when did it go to press? A. About three o'clock in the morning — between three and four. Q. Did you write the synoptical parts from your notes, or from your recollec- tion of the drift of the speech ? A. From my notes. Q. You added nothing, you think, to the notes 1 A. Nothing. Q. But you did not produce all that was in the notes ? Is that it ? A. I did not. Q. You omitted wholly some parts that were in your notes, did you not ? A. I endeavored to give the substance of all the President said. Q. You mean the meaning, do you not ? A. The meaning. Q, As you understood it ? A. As I understood it. Q. That is the drift of it? A. Exactly. Q. That is what you mean exactly. Yon think you meant t9 give the drift of the whole that you did not report verbatim ? A. Yes. Q. Did you not leave out any of " the drift 1" A. Not intentionally. Q. But actually ? A. Not to my remembrance. Q. Have you ever looked to see 1 A. I have not compared the speech with any full report of it. Q. Nor with your noies 1 A. 1 did subsequently compare the speech with my notes. Q. Do you mean this drift part 1 A. I mean to say that I compared the speech as reported here with my notes. Q. I mean the part that is synoptical ; did you compare that with your notes 1 A. 1 did. Q. When? A. On the next day, and I have had occasion to refer to it several times since. Q. When did your notes disappear? A. In the course of a few weeks. They were not presel-ved at all. Q. Are you sure, then, that you ever compared it with your notes after the immediately following day ? A. I am. Q. Did you destroy your notes intentionally ? A. I did not. Q. Where are they 1 A. I cannot tell. Q. 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 ? A. I did. Q. For the purpose of seeing that it was accurate ? A. I did. Q. When was that? A. That was on the next day. Q. With whose assistance ? A. I think without assistance, to the best of my remembrance. IMPEACHMENT OF THE PRESIDENT. 307 Q. Did you find any chacges necessary 1 A. There were typograpbical errors in the reading of the proof. There were no material errors. Q. But were there no errors in your transcript from the notes 1 A. I may have misapprehended the question. I did not compare my manu- script transcript ; I compared the speech as printed. Q. With what ? A. With my notes. Q. That was not my question ; but you say you did compare the speech as printed with your notes, and not with your transcript ? A. Not with the transcript. . Q. Did yon find that there were no errors in the print as compared with the original notes 1 A. There were some typographical errors. Q. No others 1 A. No others to the best of my remembrance. Q. Not a word ? A. I remember no others. Q. Were there any others ? A. Not that I remember. Q. 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 ? A. My notes were not phonographic. Q. What are they 1 A. They were made in writing. Q. Written out in long hand 1 A. Yes. Q. 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 ? A. I mean to say that in this instance I did parts of the speech. Q. Then you did not even have notes that were verbatim except for part of the speech 1 A. That was all. Q. And then you made your synopsis or drift as it went along ? A. Yes. Q. How, and upon what rule did you select the parts that you should report accurately and those of which you should give " the drift?" A. 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 interruptions, a reporter was able to keep^ up writing in long hand with the remarks of the President. Q. Then that is your report of his speech 1 A. It is. Q. Not by the aid of phonography or short-hand ? A. No. Q. Did you abbreviate or write in full the words that you did write ? A. I abbreviated in many instances. Q. Do you remember that ] A. I do. Q. Can you give us an instance of one of your abbreviations that is now- written out here in full 1 A. I cannot. Q. You cannot recall one ? A. I cannot. Q. Now, sir, without any printed paper before you, how much of President 308 IMPEACHMENT OF THE PRESIDENT. Johnson's speccli, as made at Cleveland on the third of September, can you repeat ? A. I can repeat none of it. Q. None whatever ? A. Vcrhatim, none. Q. Do you think you could give " the drift" of some of it ? A. I think I might. Q. As you understand it and remember it ? A. Yes, sir. Q. 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 ? A. I do. Q. Will you point out anywhere any such sentence ? A. The sentences which were read by the manager were written out word for word. Q. Those tln-ee 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 leng-hand, word for word, as they came from the President's mouth ? A. I cannot tell how much of it I wrote down at this distance of time. It is my impression, however, that there were as much as that, and more. Q. Can you say anything more than this, that you intended to report as nearly as you coiild and as well, under the circumstances, without the aid of short-hand faculty, what the President said ? A. I can say, in addition to that, that there are parts of this speech which were reported as he said them. Q. From present memory ? A. From memory of the method in which those notes wei-e taken. Q. What parts can you so state ? As to all that purports to be vcrhatim, are you ready so to swear ? A. I cannot swear that it is the absolute language in all cases. I can swear that it is an accurate report. Q What do you mean by an accurate report, and not an absolute report ? A. I mean to say a report which gives the general form of each sentence as it was uttered, perhaps varying in one or two words occasionally. Q, 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 ? A. I can say in addition to that, that there are portions of this which are reported verhathn. Q. Now, I want you to tell me whether all that purports to be vcrhatim is, iu your memory and knowledge, accurately reported f A. It is accurately reported ; I should not say with absolute accuracy. Q. The whole ? A. Yes, sir. Q. Now, in regard to the portion of the speech that you did not profess to report vcrhatim, what assurance have you that you did not omit some part of thi- speech ? A. There are portions which are not given with entire fullness ; but the sub- stance and meaning in all cases I intended to give. Q. What assurance have you that some portions of the speech are not omitted entirely from your synoptical view ? A. 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. Q. Any paragraph of the speech ! That is to say, you are confident that notliingthat would have been aparagraph after it was printed was left out by you ? A. Yes, sir. IMPEACHMENT OF THE PRESIDENT. 309 Q. He did not speak in paragraphs, did he ? A. Of course not. Q. You are sure you did not leave out what woukl be the whole of a para- graph ; did you leave out what would be half of a paragraph ? A. I endeavored to state the substance of the President's remarks on each subject which he tijok up. Q. That is the result ; that you intended to state the substance of his remarks on each subject that he took up ? A. Yes, sir. Q. And you supposed that you did so ? A. Yes, sir. Q. Now, was this synoptical report that you wrote out anything but your original notes that you wrote out that night 1 A. Condensed from them. Q. Condensed from your original notes ? A. Yes, sir. Q. That is to say, your original synoptical view, as written down, was again reduced in a shorter compend by you that night 1 A. The part of the speech so reported. Q. And still you think that in this last analysis you had the whole of the President's speech 1 A. I endeavored to state his meaning. Q. 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 1 Mr. Manager Butlek. 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 Avhetber 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 WiTiXRss. I can only say that it gives, to the best of my belief, a fair report of what was seen. Q. In your estimate 1 A. In my estimate. Q. And view ? A. And belief. Q. You spoke of a reporter Johnson, who took part, as I understand you, iu this business ; what part did he take 1 A. He also took notes of the speech. Q. But independently from you? A. Independently of me. Q. But the speech as printed in your paper was made from your notes, not from his ? A. From mine with the assistance of his. Q. Then you brought his in also 1 A. Yes, sir. Q. You condensed and mingled the reporter Johnson's report and your own, and produced this printed result ? A. I did. Q. What plan did Johnson proceed with in giving the drift or effect of the President's speech 1 Do you know i A. Johnson took as full notes as possible. Q. As possible for him ? 310 IMPEACHMENT OF THE PRESIDENT. A. As full notes as possible for him of the President's speech. Q. 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? A. The substance of the report was made from my notes, the main portion of it. Q. What as to the rest ? A. Whenever Mr. Johnson's notes were fuller than mine I used them to cor- rect mine. Q. Was that so in many instances 1 A. That was not so in a majority of instances. Q. But in a minority ? A. In a minority. Q. A considerable minority ? A. Considerable. Q. Did Johnson write long-hand too ? A. Yes. Q. What connection had Johnson with you or the paper ? A. He was the reporter of the paper. Q. Was there no phonographic reporter to take down this speech ? A. There was none for our paper. There were reporters present, I believe, for otlier 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. Re-examined by Mr. Manager Butler : Q. You have been asked, Mr. Hudson, about the crowd and about the man- ner in which you took the speech; were there considerable interruptions ? A. There were. Q. Were there considerable pauses by the President from step to step in his speech ? A. There were ; and necessary pauses. Q. Why "necessary?" A. Because of the interruptions of the crowd. Q. Was the crowd a noisy one 1 A. It was. Q. 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. I will repeat my ques- tion. 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 ques- tion is. What was siiid? Mr. Manager Bu'I'LKR. That is your question. Mr. EvARTS. The question, as put, is loading and assuming a state of facts. It is asking if they bandied ej)itlieta. Nobody knows what ''bandying" is or what "epithets" are. ]\Ir. Manager Butler, (to the witn(>ss.) ])o you know what ''bandying" means, Mr. Witness? Do you not know the meaning of the word? Mr. Curtis. I suppose our objccLion 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 intelligible English word. However, I withdraw the ({uestion. [A pause.] My proposition is this, sir: it is not to give language Mr. EvARTS. There is no objection if you have withdrawn yonr question. IMPEACHMENT OF THE PRESIDENT. 311 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 Gordon'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 repeating language, but of showing what was said and done by way of inter- ruption. I am following the line of cross-examination which was opened to me. It was asked what interruptions there were; whether there was a crowd there ; how far he was interrupted ; how flir he was disturbed ; if the President stopped in the midst of a speech to put back an epithet which was thrown to him from the crowd, and if the crowd was answering back and he replying ; if they were answering backward and forward, a man could very well write down in long- hand what he had just said. j\lr. EvARTS. The witness stated that there were interruptions. Mr. Afanager Butler. And I am following that up. "Mr. EvARTS. That is the only point of your inquiry. Mr. Manager Butler. I asked the nature of them to know whether they would be likely to disturb a speaker and make him pause. Mr. EvARTS. The question to which we objected was, "Was there a bandy- ing of epithets backward and forward between the President 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 Pres- ident, and what was said by the President to the crowd 1 A. The President was frequently interrupted 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 you have, or copy of memorandum made at the time. 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 newspaper 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. Vfe 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 t examined it," I insist that on every rule of law in every court where any man ever prac- ticed that is a memorandum by which the witnesS may refresh his recollection. Tbe 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 lime. Mr. Manager Butlkr. We deny that to be the rule of law. It may be by any memorandum, which was correct at the time to his knowledge. On this point I am not without authority. In Starkie on Evidence is a reference to a case 2 Adolphus and Ellis, 210, where it was said : In many case.s, siicli as where an agent lias been employed to make a plan or map and has lost the itf'iiis of actual admeasurement, all he can state Is that the plan or map is correct, and has been coustmcted from materials which he knew at the time to be true. 312 IMPEACHMENT OF THE PRESIDENT. He lias tlien 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 cpitlu'ts, 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 iu that which he positively states fruiii present recollection, namely, that at a prior time he had a perfect recollection, and having tlmt recollection, truly stated it in the document produced in writing, though its contents are thus but mediately proved, must be true. Mr. EvARTS. If he presently recollects, Mr. Manager Bctler. 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 M'ill please reduce his questioa to writing. Mr. Manager Butler having reduced the question to writing, read it as fol- lows : Q. I desire you to refresh your recollection from any memorandum made by you at or nea^ 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 the crowd ? Mr. EvARTS. That question I do not object to. Mr. Manager Butlrr, (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 that a memorandum made by you at the time ? The Witness. This is a copy of the memorandum made by me at the time. The Chief Justice. Are the notes from which you made that memorandum lost? The AVitness. 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 understand the counsel for the President as objecting. 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 inter- ruptions th^-e were, and the witness is requested to look at a memorandum made at the time in order to refresh his memory. Of that memorandum 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 memorandum. 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 understand the ruling of the court, to which of course we submit, to be that the witness is allowed 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 memorandum. Mr. Manager BuTi-ER. lie may read tlie ineinoranduin to refresh his memory, and tlu'u testify. Mr. EvARTS. Yes, sir; but not to read it aluud to us. IMPEACHMENT OF THE PEESIDENT. 313 The Chief Justice, (to the witness.) Look at the memorandum and then testify. Mr. Manager Butler. You may read it if you ph\ase. The Witness. The first interruption of the President occurred when he referred to ihe name of General Grant. He said that a large pumber in the crowd desired to see General Grant, and to hear what he had to say, whereupon 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 Avere 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. Evakts 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 unfortunate for some that God rules on high and deals in justice, and there were then cheers. Mr. Evakts. 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 the President had said, he could show that there were interruptions 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 interruptions or not to allow him to write it out. Mr. Manager Butler. He is, I understand, 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 compare these interrup- tions with that which he took accurately, we shall see how he had time to take vcrhadm certain portions of the speech. We go on imless stopped. The Chief Justice, (to the witness.) Tlie witness will look at the mem- orandum, and 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 WiTN ESS. The next interruption occurred where the President remarked that if his predecessor had lived ]Mr. Evarts. The question is of the interruption 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 pardon. I put the question, and it waa expressly said there was no objection to it, " What did 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 wri- ting is on the desk, that I want what the crowd said to the President, and v/hat the President said to the crowd. That Avas 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 United States, The President went on : '' I came here as I was passing along, and having been called upon for the purpose of exchanging.viewsand ascertaining if we could" The Chief Justice. Mr, Manager, do we understand that the witness is to read the speech ? Mr, Manager Butler. No, sir; he is not reading the speech ; he is skipping whole paragraphs, whole pages of it almost ; it is only where the interruptions come in. (To the witness.) Now just read the last words before the interrup- tions come in, if you please, which will bring out all we want, and that will save all trouble. 314 IMPEACHMENT OF THE PRESIDENT. The Witness. "When the President remarked that he came here for the pur- pose of ascertaining, if he conh^, who was wronj^ aud responsible, the crowd said, "You are," and there were long-continued cries. The President inquired later in his speech, who could place his finger upon any act of the President's deviating from right, whereupon there were cheers and counter-cries of " New Orleans" long continued ; and that cry was repeated, frequently 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, "Hang Jeff. Davis !" Then there were shouts and cries of '' Down with him, " and there were other cries of "Hang Wendell. Phillips." "^Phe President asked, " Why don't you hang him ?" There were answei;? given, " Give us an opportunity." The President went on to ask : Haven't you got the court ? Haven't you got the Attorney Gen- eral ] Who is yonr Chief Justice who has refused to sit on his trial ?" He was then interrupted by " groans aud 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, " I am not mad." There were then hisses. After a sentence or two there were three more cheers given for Congress. Then, after another sentence, voices cried, " How about Moses 1 " Q. What next? A. 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. IMauager BtiTLER. The question is whether, after seeing it, you can remember it to tell it to us ? A. The next iiitorruptinn, I remember, was a cry of " Yes, "when the Presi- dent inquired, "Will you hear me?" These cries were taken up and were repeated, sometimes for several minutes. There was all this time great confu- sion ; cheers by the friends of the President, and counter cries by those opposed to him. The President repeated his question, asking if the people would hear him for his cause, and for the Constitution of his country, and there were again cries, " Yes, yes," " Go on." He proceeded in the nexJ; 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 connter-cries. The interruptions continued. Wlien 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 gaping 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 Pliillii)s ?" and there were cheers and hisses. The President pro- ceeded 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. Q. Were those cries and cheers and hisses continued so as to make the inter- ruption go on for some time ? A. Frequently for several minutes. Q. In what >tirae would you be enabled to get up with him and get your report out ? A. I was able to make, during most of these, a vcrhathn report of what the President said. IMPEACHMENT OF THE PRESIDENT. 315 Re-cross-examinetl by Mr. Evarts : Q, You made a memorandum at tlie time of these interruptions ? A. I did. Q. Of these cries ^nd hisses ? A. I did. Q. And while you were doing that, you could catcli up with reporting the President's speech, could you ] A. Yes, sir. Q. Now, sir, have you not in every statement that you have made of these interruptions read from that newspaper before you? A. I have read from the newspaper some. I "think that every one was in the newspaper. • Q. Are you not quite sure of it ? A. I will not be positive. Q. Not positive but that you remember some that are not in the newspaper 1 A. Possibly. Q. Have you forgotten any that were in the newspaper? A. No. I have not given all that occurred in the newspaper. Q. AVithout that newspaper, do you recollect any of those interruptions ? A. I do. Q. All of them? A. I should not be able to give all of them without the aid of the memorandum. Q. Did you not make a full report of these interruptions on your notes? A. I did. Q. Of all that the crowd said ? A. Not of all that they said. Q. Why not of all that they said ? A. Of all that I was able to catch. A. All that you could put down ? ■ A. Yes. Q. Yon 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? A. I gave my first attention to reporting the President. Whatever time I had for putting down cries besides that I did so. By Mr. Senator Grimes: Q. I desire the witness to specify the particular part of the report, as pub- lished, which was supplied by the reporter Johnson ? A. 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 supplied by Johnson or whether it was only corrected by Johnson's notes ? The Witness. The report was made out from my notes, corrected by Mv. Johnson's notes. I cannot say whether there were entire sentences from Mr. Johnson's notes or not. By Mr. Manager Butler : Q. I will ask you whether there can be such practice in reporting as to enable a person by long-hand lo make out a substantially accurate report ? jMr. Evarts. To that we object. You 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 ? A. I have had considerable practice in reporting" in this way, and can make out a substantially 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, 18C6.] 316 IMPEACHMENT OF THE PRESIDENT. Daniel C. McEwen sworn and examined. By Mr. Manager Butler : Q. What is your profession ? A. Short-hund writer, Q. How long has that been your profession ? A. For about four or five years, I should judge. Q. Were you employed in September, ISG6, in reporting for any paper 1 A. I was. Q. What paper? A. The New York World. Q. 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 ? A. I did. Q. Where did you join the party? A. I joined the party at West Point, New York. Q. How long did you continue with the party ? A. I continued with them till they arrived at Cincinnati on their return. Q. Did you go professionally as a reporter ] A. I did. Q. Had you accommodation on the train as such ? A. I had. Q. The entree of the President's car % A. I had. Q. Were you at Cleveland ? A. I was. Q. Did you make a report of his speech at Cleveland from the balcony'? A. I did. Q. How, phonogra|ihically or stenographically ? A. Stenographically. Q. Have you your notes ? A. I have. Q. Herel A. Yes, sir. Q. Produce them. [The witness produced a memorandum-book,] Have you, at my request, copied out those notes since you have been here ? A. I have. Q. (Exhibiting a manuscript to the witness.) Is that the copy of them ? A. It appears to be. Q. Is that an accurate copy of your notes ? A. It is. Q. How accurate a report of the speech are your notes ? A. My notes are, I consider, very accurate so far as I took them. Some few sentences in the speech were interrupted by confusion iu the crowd, which I have indicated in making the transcript, and the parts about which I am uncer- tain I onelose in brackets. Q. Where you have not enclosed in brackets, how is the transcript ? A. Correct. Q. Was your report published % A. I cannot say. I took notes of the speech, but owing to the lateness of the hour — it was ehiven o'clock or after — it was impossible for me to write out a report of the speech and send it to the pa|)( r which I represented. There- fore I went to the t('legraj)h ollicc after the sjxm'cIi was given, and dictated some of my notes to other reporters and correspondents, and we: made a ri'port which we gav(^ to the agent of ihe Associated Tress, Mr. (iobright. Q. Did the agent of the Associated I'ress accompany the presidential party for a purpose 'I IMPEACHMENT OF THE PRESIDENT. 317 A. Yes, sir. Q. Was it Iiis business and duty to forward reports of speeches ? A. I supposed it to be. Q. Did you so deal with hira ? A. I did. Q. Have you put down the cheers and interruptions of the crowd or any portion of them ? A. I have put down a portion of them. It was impossible to take them all. Q. State whether there was a good deal of confusion and noise there ? A. Thei'e was a great deal of it. Q. Exhibition of ill-feeling and temper 1 A. I thought there was. Q. On the part of the crowd 1 A. On the part of the crowd. Q. How on the part of the President 1 A. He seemed a little excited. Q. Do you remember any tijing said there to him by the crowd about keeping his dignity ? A. I have not it in my notes. Q. Do you remember it 1 A. I do not remember it from hearing. Q. Was anything said about not getting mad 1 A. Yes, sir. Q. Did the crowd caution him not to get mad 1 A. The words used were, "Don't get mad, Andy." Q. Was he then speaking in considerable 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 can from notes, and both together will make a per- fect transcript of the scene. Mr. EvAKTS. But the present inquiry, I understand, is a verification of notes. Whenever that is abandoned and you go by memory let us know it. ^Ir. Manager Butler. The allegation is that it was a scandalous and dis- graceful 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 arc now trying to show the indecency of the occasion. 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. Tliat is the same thing. Mr. Manager Butler. Oh, no. Mr. EvARTS. And who is the judge of the 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 country ? Mr. Manager Butler. No ; but I have seen two or three women tried ; I never heard of a man being tried for it before. [Laughter.] (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 ? 318 IMPEACHMENT OF THE PRESIDENT. A. I was not standing where I could see the President. I did not notice his manner ; I only heard his tone of voice. Q. Judging from what you saw and heard? A. I did not see the President. Q. What you heard ? A, He seemed excited ; I do not kno\v what his manner is from personal ac- quaintance when he is angry. Mr. Manager Butlkr, (to the counsel for the respondent.) The witness is yours, gentlemen. Mr. EvARTS. Do you propose to offer this report of the speech ? Mr. Manager Butler. 1 do. Mr. EvARTS. Very well; then I will cross-examine the witness. Cross-examined by Mr. Evarts : Q. Did you report the whole of the President's speech ? A. No, sir. The hour was late and I left shortly before the close ; I do not know how long before he closed his speech. Q. So your report does not profess to be of the whole of the speech ? A. No, sir. Q. From the time that he commenced till the point at which you left off did you report the whole of his speech 1 A. No, sir. Certain sentences were broken offby the interriiption of the crowd, as I before stated. Q. But aside from the interruption, did you continue through the whole tenor of the speech till the point at which you left 1 A. I did. Q. Did you make a report of it word for word as you supposed 1 A. Yes, sir ; as I understood the speech. Q. And did you attempt to include, word for word, the iuterruptions of the assemblage ? A. I did. I took what appeared to be the principal exclamations of the crowd ; I could not hear all of them. Q. When did you make the copy or transcript that you produce here ? A. I made that about two weeks since, after 1 was summoned before the managers of the impeachment, and gave evidence concerning the speech there. Q. Can you be as accurate or as confident in a transcript made after a lapse of two years as if it had been made presently, when the speech was fresh ? A. I generally find that when a speech is fresh in my mind I read the notes with more readiness than when they become tdd; but as to the accuracy of the report, I think 1 can make as accurate a transcript of the notes now as at that time. Q. When you transcribe after the lapse of time you have nothing to help you except the figures that are before you in your notes 1 A. That is all, with me. Q. Are you not aware that in phonographic reporting there is frequent obscurity in the haste and brevity of the notation 1 A. There sometimes is. By Mr. Managr.-r Butler : Q. I observe that the counsel on the other side asked for the politics of the Leader. May 1 ask you for the politics of the World? A. I have understood them to be democratic. Everett D. Stark sworn and examined. By Mr. Manager Butler : Question. What is your profession ? Answer. I practice law now. Q. What was your profession in September, 1866 ? IMPEACHMENT OF THE PRESIDENT. 319 A. I practiced law then. Q. Where? A. In Cleveland. I may say T was formerly a short-hand i-eporter, and do more or h-ss of it now in law business. Q. Did you report the speech of Andrew Johnson, President of the United States, from the balcony of the Cleveland hotel on the night of the 3d of Septem- ber, 1866.' A. Yes, sir. Q. For what paper ? A. For the Cleveland Herald. Q. Did you take it in short-hand ? A. I did- Q. Was it written out by you and published ? A. It was. Q. Was it pixblished as written out by you ? A. Yes, sir. Q. Have you your short-hand notes 1 A. I have not. Q. Are they in existence ? A. I suppose not. I paid no attention to them. I suppose they were thrown in the chip-basket. Q. Did you ever compare the printed speech in the Herald with your notes for any purpose, or with the manuscript ? A. 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. Q. How did it compare ? A. It was the same. Q. Were the slips of proofs the same as the paper published the next day ? A. Just the same, with such typographical corrections as were made there. Q. Have you a copy of the paper 1 A. I have. Q. Will you produce it ? [The witness produced a copy of the Cleveland Herald, of September 4, 1866.J Can you how state whether this is a substan- tially accurate report in this paper of what Andrew Johnson said the night before 1 A. Yes, sir ; it is generally. There are some portions there that were cut down, and I can point out just where those places are. Q. By being " cut down" do you mean the substance given instead of the words 1 A. Yes, sir. Q. Does it appear in the report which are substantial and which are the ver- hatim parts ] A. Kot to any other person than myself, as I can tell from my recollection. Q. Can you point out that which is substantial and that which is accurate in the report 1 The Witness. Do you wish me to go over the whole speech for that purpose 1 Mr. Manager Butler. I will, for the present, confine myself to such por- tions as are in the articles. If my learned friends want you to go over the rest they will ask you. The WiTiNESS. Commencing a little before where the specification in the articles of impeachment begins, I can read just what Mr. Johnson said at that point. Q. Do so. A. (Reading ) "Where is the man living, or the woman, in the community, that I have wronged, or where is the person that can place their finger upon one single hairbreadth of deviation from one single pledge I have made, or one 320 IMPEACHMENT OF THE PRESIDENT. pingle violation of tlic Constitution of ihe country ? AVhat tongue does lie speak ? Wliat religion does he profess ? Let him come forward and place his finger upon one pledge I have violated." 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. Da- vis." The President said, " Hang Jeff. Davis? hang Jeff. Uavis? Why don'tyou?" There was then some applause 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 r* 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 V 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. Q. Will you now come toward the conclusion of the other point mentioned in the specifications, and state whether you reported that accurately ? A. Commencing a little before where the specification is of the speech he said: "In bidding you faj-ewell here tonight, I would ask you, with all the pains Congress has taken to calumniate and malign me, what has Congress 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 country- men, here to-night, who has suffered more than I ? Who has run greater risk ? Who has borne more' than I? But Congress, factious, dominee'-iug, tyranni- cal 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 concluded 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 ycu propose to offer this report of the Cleveland speech also? Mr. Manager Butler. T propose to read one and offer all, so that the Presi- dent 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 privileges of that kind; on the contrary, we propose to object to all of them tliat they are not properly proved. Mr. ^Manager iirTLf-'.R. Certainly. I observed that the President objected in his answer tliat we did not put in all he said, and I mean to do the best I can in that regard now. Mr. EvAKT8. That is exactly what we desire, if any thing is to come in. Now, I will proceed with the witness. Cross-examined by Mr. Evarts: Q. You have a newspaper report here 1 A. I have. Q. And that is all you have? A. That is all the memorandum T have. Q. The only memorandum is the newspaper report? A. The newspaper report. Q. What is the dale of the newspaper ? A. September 4, 186G. IMPEACHMENT OF THE PRESIDENT. 321 Q. Did you make a stenographic report of the whole of the President's speech ? A. I did with one exception. Q. What exception is that 1 A. It was a part of what he said about the Freedmen's Bureau. Somewhere about the commencement of, I shouhl say, the hitter half of his speech by time, he went somewhat into details and figures which I omitted to take down. Q. Did you write out your notes in full? A. No, sir. Q. You never did that? A. I never did that. Q. And you have not now either the notes or any transcript of them ? A. Only this. Q. You have got a newspaper ; I understand that. Now, did you prepare' for the newspaper the report that is there contained 1 A. I did. Q. And you prepared it on the plan of some part verbatim and some part condensed 1 . A. Yes, sir. Q. What was your rule of condensation and the motive of it? A. 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 Q. That was not condensed at all, was it? , A. That part was not taken. That I did take was somewhat condensed. Q. 1 am only asking about what you did take, not what you did not take. W^hat was your rule in respect to what you put verbatim into your report and Avhat you condensed? How did you determine which parts yo.u Avould treat in one way or the other ? A. Well, sir, perhaps I was influenced somewhat by what I considered would be a little more spicy or entertaining to the reader. Q. In which interest, that of the President or his opponents?' A. Well, I do not know that. Q. Which side were you on ? A. I was opposed to the President. Q. But you do not know which you thought the interest was you selected the spicy part for? A. 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. Q. The parts that the crowd were most interested in you thought you would take down carefully? A. With more particularity. Q. And the parts that they were interested in, as you observed, were those that they made the most outcry about? Was it not so ? • , A. Yes, sir ; partially so. Q. That was your judgment and guide ? A. Considerably. Q. 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 hi-s mouth Avere there- set down ? A. No, sir ; I think it is not the case in those particular points that I con- densed. I did so by the use, in some part, of my own words. Q. And for compression of space, did you not ? A. Y'^es, sir ; primarily. 21 I P 322 IMPEACHMENT OF THE PRESIDENT. Q. "Was not your rule for coudeusation partly when you had got tired of wri- ting out? A. No, sir. Q. Not at all ? A. 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. Q. In order to be ready for the press? A. In order to be ready for the morning press. Mr. EvAKTS. We object to this report as a report of the Pre.-^ideut's speech. Mr. Manager Butlkr, (to the witness.) Mark it with your initials and leave it on the table. [The witness marked with his initials "E. D. S." the copy of the Cleveland Herald referred to by him.j I forgot to ask you what are the politics of the Herald. The W1TNK8S. 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. EvAHTS. That we object to ; and the grounds of objection, made mani- fest 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 origi- iiial minutes of a short-hand reporter of the whole speech, and his transcript imade therefrom and sworn to by him. We submit that to substitute for this ef/Jdeuce of the whole speech, upon this mode of authentication, the statement of Mr. Hudson, upon the plan and theory as testified to by him, is contrary to the first principles of justice in evidence. He has not said how much is his and how .mach is the reporter Johnson's, and it is in considerable part condensed, a statemeait of "drift," determinc^d by circumstances, not of the President's utter- ance. The same objection will be made if this second or Cleveland Herald report is presented. Mr. Manager Butler. I do not propose to argue the question. Suppose wn were trying day other case for substantive words ; would not this be asufiicient proof? I do not propose to withdraw the otljer re})ort of Mr. ^IcEwen. I pro- pose to put it in, subject to comment, to be read if these gentlemen desire it read, and tlie other report, .so that we may have all three reports : the Post Office report, the Republican report, and the Democratic report. A natural lean- ing 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 written down by himself, published by himself, and corrected by himself, and I am only surprised that there should be objection to it. , Mr. EvAKTS. Nothing can better manifest, Mr. Chief Justice, the soundness 9f our objection than the statement of the manager. He selects by preference a report made by and through tfie agency of political hostility, and on the plan of condensation, .'ind on the method of condensing anolhtir man's notes, the amount and quality relatively not being discerned, instead of a sworn report by a pho- nographer who took (^very word and brings his original notes transcribed, and brings his transcriptirepared to fight them at the nortli, [Cheers,] God being willing, with your help. [Cries, "We won't give it."] They will be crushed north and this glorious L'nion of ours will be jireserved. [Cheers.] I do not come here as the Chief Magistrate of twenty-five States out of thirty-six. [Cheers] I come here to-night with the tlag of my country and the constellation of thirty-six stars untarnished. Are you for dividing this country? [Cries, "No."] Then I am President, and President 0*' the whole United States. [Cheers.] I will tell you another thing. I IMPEACHMENT OF THE PRESIDENT. 327 trnderstand he discordant notes in this crowd to-niofht. He who is opposed to the restora- tion of the o;overnment and the Union of tlio States is a Where is the nuin that has participated iu any and all our wars, since our war with Mexico down to the present time, that can i)ut his finger upon any one act that goes to prove [but \vhat ho stood at all times for the country ?] (A voice — "That is so.") Tiien what is my offending? [A voice — "Because you are not a radical."] (Cries of "Veto.") Somebody says "veto." (A voice, "Bully for the veto;" cheers.) Veto of what? What is called the Freedincu's Bureau bill. And I can tell you what it is. (A voice, "Tell IMPEACHMENT OF THE PRESIDENT. 331 us.") Before the robellioii commenced there were four million of persons, that were called colored persons, that were held as slaves by about 340,000 people living in the south. These 340,000 slaveholders paid the expenses, [worked the negroes,] as they are commonly called, and at the expiration of the year, [when] the rice, tobacco, and cotton were sold, after paying all the expenses, the slaveholders put the money in tlieir pockets. In many instance's there were no profits, [thus he that bought the land and tlie slaves came out (?)] Well, that is the" way the thing stood before the rebellion. The rebellion commenced, the slaves were turned loose, and then we come up to the Freedmen's Bureau bill. What did the Freedmen's Bureau propose? It is to appoint agents and sub-agents in all the States, counties, school districts, and parishes, with power to make contracts for all the slaves, with power to control, power to hire them out, and to dispose of them ; and, in addition to that, the whole military power of the government to aid the execution of the Freedmen's Bureau bill. (A voice, "Bully.") I never fear clamor. (A voice, "Good for you.") I never [have] been afraid of the people, for it is in them I relied, and upon them I always relied. Then when I got the truth, the argument, and the fact and reason on my side, neither clamor, nor frowns, nor menaces can drive me from my purpose. [Cries of "bully," and cheers.] And now to the Freedmen's Bureau bill. What was it ? Four millions of slaves were emancipated, given an equal chance, a fair start to make their own support ; to work, pro- duce, and, having worked and produced, to appropriate the product of their own labor to their own sustenance and support. But the Freedmen's Bureau comes along and says that we nmst take charge of four millions of slaves. (Cries of "No," never.) The Freedmen's Bureau comes along and proposes to appropriate a fraction less than .$12,000,000 to sustain this Freedmen's Bureau. I want to give some facts ; I want to put the nail in, and, having put it in, to clinch it on the other side. [Cheers.] Then we come along and propose at the beginning, as an initiative, to appropriate !?]2,000,000 to defray the expense of emancipating four million of slaves. In the first instance it has cost you three thousand million of dollars. Three million of dollars you have expended ; and, after having given a full and fair oppor- tunity to enjoy the products of his own labor, then these gentlemen that are such great phi- lanthropists, that are such great friends to humanity — the great masses of the people who toil and labor six days in the week, and some of them not even resting on the seventh, must be taxed to pay §12,000,000 to sustain that Freedmen's Bureau. [The system so kept on the country would run up to fifty millions of dollars.] In the days of John Quincy Adams $12,000,000 was looked upon as an enormous expense — [to the existence of the government] — but here are $12,000,000 for the Freedmen's Bureau. Your attention, my countrymen ; I have not got to the point yet. (Cheers.) Your attention. I would rather sneak to five hundred men who would give me attention than to ten thousand who are not willing to hear me. How does the matter stand ? The whole proposition stands to transfer 4,000,000 of slaves from the original owners — as I have just told you— in the south to their new task-masters ; [yes, ] a worse system of slavery than ever existed before [was to transfer four million of slaves to a new set of task-masters, who were to work thern, to control them, to make their contracts, and in the end, if there were any profits made, they would put them into their own pockets, instead of [the remainder of the seutence was broken by cheers and voices, "True," "True."] But, on the other hand, if the system turned out to be unprofitable, and was losing business, you, the people, liad to foot up the bill and the government pay the expense. That is the Freedmen's Bureau bill. Now when they talk about power and usurpation, I stand to-night where I liave always stood. [See this measure before you.] Before this Congre'ss came up or this rebellion com- menced ; and because I opposed it, exercising one of the most conservative powers in the constitutions of the country. What could I do by the veto power? [A voice, "Send it over your head."] Can you [present anything?] No. But all that the Executive can do, who was the repiesentative of the people, the people's tribune, is to say when a measure is unconstitutional, is to say when it is extravagant and improvident and [?] let the people consider of it. (Cheers.) Was there any t^'ranny in stopping the measure until you can get the people to consider it ? [A voice, "No."] Then as your tribune, as your representa- tive, I said when this bill was [passed] — and a bill, too, if I had been disposed and with ])lenty of power, I could have taken it into my hands, with thousands of satraps and from 12 to 50 millions of expenditure, I could have declared myself dictator.. I said no ; that the power is where the Constitution placed it— in the hands of the people. (Cheers.) So much for the Freedmen's Bureau bill. And if I was disposed to [come] along, in connection with this [and] call your attention to the civil-rights bill, it is only more enormous tlan the other. [Confused voices, mingled with cheers. J And let me say to you, all the threats and menaces emanating from what is called the extreme men, your Stevenses, your Sunmers, and your I'hillipses, and from all that class, I care not; as they have once talked about forming a league with hell and a covenant with the devil. [Laughter and cries of "bully."] I tell you, my countrymen here to-night, that though the powers of hell and Thad. fetevens and his gang [were by,] they could not turn me from my purpose. There is no power to control me save you and the God who spoke me into existence. ["Three cheers."] 332 . IMPEACHMENT OF THE PRESIDENT. In bidtlinj;: you farewell [I would be willing] that this Congress which has been in session and wiiieh has taken so much pains to poison the minds of their constituents against me — what has this Congress done ? [A voice, "Nothing."] Has it done anything to restore the Union of these States ? [A voice, " No."] But, on the contrary, thej' have done everj'thing in their power to prevent it. [A voice, "That is so."] But because I stand now where I did when tliis rebellion commenced, I have been denounced as a traitor and recreant to the cause of my country. [Cries of "Never."] My countrymen here to-night, who has sutfered more than I ? [Cries of "No one."] Who has run greater risks — who has done more than I that address you here to-night? [Cries of "No one," and "God bless you, old man."] But this factious, domineering, tyrannical party in Congress has undertaken to poison the minds of the American people. [Voices, "That's so," and cheers.] It is just a question of power; and the attempt has been (?) every man that held a place in their districts. The President cannot control it; oh, no — [my] Congressmen control it. [Laughter.] Yes, your assessors and collectors and postmasters [A voice, "Hit 'em again."] Why, they used to have an axiom in old times, that rotation in office was a good thing. Washington used to think so, JttFerson thought so, Monroe thought so, Jackson (God bless him I) thought so. [Cheers; a voice, "Here's a second Jackson."] But now, when we talk about (The sentence was interrupted by confusion in the assembly.) Your attention. I would rather have your attention [than to listen to you.] Now how does the matter stand? Why, this gang, this gang of cormorants and blood- suckers, that have lived at home and fattened upon the country the last four or live years, never going into the field — oh, they are great patriots and everybody [wants to turn them out(?) Look at them(?).] Everybody are traitors that are against us. Hence you hear a sys- tem of legislation proposed to do what ? Why that these men shall not be turned out. [ " We have got our particular friends in power in the districts (?),"] and the President, the tribune of the people, the only channel through which you can reach and vacate these places and bring honest men in, is denounced as a tyrant because he stands [in vindication of the people. ] [Cheers.] All it wants is for the country to [understand.] I think the time has come when those who have staid at home and enjoyed all the fat offices four or five years, got rich — I think it is nothing more than right that a few of those who have fought the battles of the country [as well as] others who have staid at home [should join in] the benefits of the vic- tory. [How is it with Tennessee? Why, it is that [I mean to say that I stood up with these men at home] and in the field, and God being willing, 1 intend to stand by them again. [Cries of "Good," "Bully," and cheers.] Then, my countrymen — I liave been drawn into this. I intended simply to make my acknowledgments for the cordial welcome that you have given me. But even in going along, passing the civilities of life, if I am insulted while the civilities are going on I will resent it in a proper manner. [Cries of "Good," and cheers.] Then in parting with you here to-night, if 1 know the feelings of my own heart, there is no anger. I have no revenge- ful feelings to gratify. [A voice, "Everybody loves you."] All that I want is — now that peace has come, now when the war is over — is for all patriotic and Christian men to rally round the standard of their country, and unite in one [eternal, patriotic oath,] and swear by the altar and their God that ail shall sink together but what this Union shall be restored. [Cheers.] Then in ])artiug with you here to-night, I hand over to you this fiag, not with 2,') but with 36 stars ; I hand over to you the Constitution of my country unimpaired, though breaches have been made upon it, with the confident hope that you will repair the breaches and pre- serve tlie Constitution intact. 1 hand it over to you, in whom I have always trusted, and upon whom I have always relied, and so far I have never deserted. And 1 feel confident, though speaking here to-night for heart that responds to heart — men that agree in principle, men that agree in some great doctrine, [that compare ideas or notions, when they come to the hour of acting in harmony and concert.] Then in parting with you to-night 1 hand over the fiag, tlie Constitution, and the Union into hands that I know will preserve it, and at the proprejudices ; to your reason, and not to your passions. And when reason and aigunient again resume their empire, this mist, this prejudice that has been incrusted upon the public mind, must give way and reason become triumphant. [Cheers.] Now, my countrymen, let me call your attention to a single fact, the Freedmen's Bureau. [Laughtin' and hisses.] Yes; slavery was an accursed institutiou till emancipation took place. It was an accursed institution while one set of men worked fhem and got the profits. But after enianoipation took place they gave us the Freedmen's Bureau. They gave us these agents to go into ever^' county, every township, and into every school district throughout the United States, and especially the southern States. They gave us commi.'sioners. They gave us $12,0(10.000, and placed tlie power in the hands of the Executive, who was to work this machinery, with the army brought to its aid, and to sustain it. Then let us run it, on the $I"2,000,000 as a beginning, and, in the end, receive .$50,000,000 or .s(H>,000,000, as the case njay be, and let us work the 4, (HO, 000 of slaves. In fine, the Freedmen's Bureau was a, sinqde proposition to transfer 4,000,000 of slaves iu the United States from their original owners to a new set of ta.skma&ters. [Voice, "Never,"' and cheers.] I have been laboring four years to emancipate them ; and then I was opi.osed to seeing them transferred to a new set of taskmasters, to be \\orked with mere rigor than they had been heretofore. [Cheers.] Yes, under this new system they would work the slaves, and call on the government to bear all the expense, and if there was any profits left, why, they would pocktt them, [laugh- ter and cheers,] wliile you, the people, must pay the expense of running the machine out of your pockets, while they got the profits of it. So much for this question. I simply intended to-night to tender you my sincere thanks. But as I go along, as we are talking aljou^this Congress and these res]iected gentlemen, who contend that the President is wrong, because he vetoed the Freedmen's Bureau bill, and all this; because he chose t'l exercise the veto power, he committed a high offence, and therefore ought to be impi'ached. [Voice, '"Never."] Y-a-s, ya-s, they are ready to impeacli him. [Voice, " Let them try it."] And if they were satisfied they had the next Congress, by as decided a majority as this, upon some pretext or other — violating the Constitution, neglect of duty, or omitting to enforce some act of law — upon some pretext or other, they would vacate the Executive department tif the United States. [A voice, "Too had they don't impeach him."] Whn-t .' As we talk about this Congress, let me call the soldiers' attention to this immaculate Con- gress — let me call your attention. Oh I this Congress, that could make war upon tlie Ext-cu- tive because he stands upon the Constitution and vindicates the rights of the people, exer- cising the veto power in their behalf— because he dared to do this, tliey can clamor and talk about impeachment. And by way of elevating themselves and increasing contidence with the soldiers throughout the country, they talk about impeachment. So far as the Fenians are <.'oncerned ; upon this subject of Fenians let nie ask you very plainly hereto-night to go back into myliistory of legislation, and even when governor of a State — let nie ask if there is a man here to night, avIio, in the dark days of Know-nothing- ism, stood and sacrificed more for their rights? [Voice, "Good," and cheers.] It has been my peculiar misfortune always to have fierce opposition, because I have always struck my blows direct, and fought with ri^ht aud the Constitution on my side. [Clieers] Yes, 1 will come back to the soldiers again in a moment. Yes, here was a neu- trality law, I was sworn to support the Constitution and see that that law was faithfully executed. And because it was executed, then they raised a clamor 4& tried to make an appeal to the foreigners, and especially the Fenians. And what did they do? They introduced a bill to fickle and play with the fancy, pretending to repeal the law, and at the same time making it worse, aud then left the law just where it is. [Vnice, "That's so."] They knew that whenever a law was presented to me, jiroper in its lu-ovisions, ameliorating and softening the rigors of the present law, that it would meet my hearty approbation ; but as tiiey were pretty well broken down and losing public confidence, at the heels of tlie session they found they must do souietldng. Aud hence, what did they do ? They pretended to do something for the soldiers. Who has done more for tlie soldiers than I have? Who has perilled more in this struggle than I have ? [Clu'crs.] But then, to make them their ]ieculiar friends and favorites of the soldiers, they cauie forward witli a proposition to do what? Why, we will give the soldier ^'-O bouniy — s.")0 bounty — your attention to this — if he has served two years ; and $100 if lie has served three years. Now, mark 3'ou, the colored man that served two years can get his $100 bounty. Ihit the white man must serve thrti', before he can get his. [Cheers.] lint that is not the point. While they were tickling and attempting to jilease the soldiers, by giving them .^-'jO bounty for two years' .service, they took it into their hiads to vote somebody else a bounty, [laughter,] and they voted themselv( s not §50 for two yrars' service ; your attention — I want to make a lodg- ment in yiuu- minds of the facts because I want to put the nail in, and having put it in, I IMPEACHMENT OF THE PRESIDENT. 343 want to clinch it on the otlipr side. [Cheers.] Tlie brave boys, tlio patriotic yoiin<^ men who followed his pfalhint oflicers, slept in the tented field, and perilled Ins life, and shed his blood, and left his limbs behind him and camehome manfjled and maimed, can get $50 bounty, if he has served two years. But the meuibers of Congress, who never smelt gunpowder, can get $4,000 extra pay. [Loud cheering. ] This is a faint picture, my countrymen, of what has transpired. [A voice, "Stick to that question."] Fellow-citizens, yon are all familiar with the work of restoration. You know that since the rebellion collapsed, since the armies were suppressed on the field, that everything that could be done has been done by the executive department of the government tor the restorsifion of the government. Everything has been done with the exception of one thing, and that is the admission of members from the eleven States that went into the rebellion. And after having accepted the terms of the government, having abolished slavery, having repudiated their debt, and sent loyal representatives, everything has been done, excepting the admission of representatives which all the States are constitutionally entitled to. [Cheers.] When you turn and examine the Constitution of the United States, you find that you cannot even amend that Constitution so as to deprive any State of its equal suffrage in the Senate. [A voice, "They have never been out."] It is said before me, "They have never been out." I say so too, and they cannot go out.- [Cheers.] That being the fact, under the Constitution they are entitled to equal suffrage in the Senate of the United States, and no power has the right to deprive them of it, without violating the Constitution. [Cheers.] And the same argument applies to the Hoirse of Representatives. How then does the matter stand ? It used to be one of the arginncnts that if the States withdrew their representatives and senators that that was secession — a peaceable breaking up of the government. Now, the radical power in this government turn around and assume that the States are out of the Union, that they are not entitled to representation in Congress. [Cheers.] That is to say, they are dissolutiouists, and their position now is to perpetuate a disruption of the government, and that, too, while they are denying the States the right of represeiitation, they impose taxation upon them, a principle tipon which, in the Revolution, you resisted the power of Great Britain. We deny the right of taxation without representa- tion. That is one of our great principles. Let the government be restored. I have laboreil for it. Now. I deny this doctrine of secession, come from what quarter it may, whether from the north or from the south. I am opposed to it, I am for the Union of the States. [Voices, "That's right," and cheers.] I am for thirty-six States, remaining where they are, under the Constitution, as your fathers made it, and handed it down to 3'oir; and if it is altered, or amended, let it be done in the mode and manner pointed by that instrument itself, and in no other. [Cheers.] I am for the restoration of peace. Let me ask this people here to-night if we have not shed enough blood ? Let me ask are yoti prepared to go into another civil war? Let me ask this people here to-night are they prepared to set man upon man, and, in the name of God, lift his hand against the throat of his fellow ? [Voice, " Never."] Are you prepared to see our fields laid waste again, our business and commerce suspended, and all trade stopped ? Are you prepared to see this land again drenched in our brothers' blood ? Heaven avert it, is my prayer. [Cheers.] I am one of those who believe that man does sin, and having sinned, I believe he must repent; and, sometimes, having sinned and having repented makes him a better man than he was before. [Cheers.] I know' it has been said that I have exercised the pardoning power. Y-a-s, I have. [Cheers and " What about Drake's constitution?"] Y-a-s, I have, and don't you think it is to prevail ? I reckon I have par doned more men, turned more men loose and set them at liberty that were imprisoned, I imagine, than any other living man on God's habitable globe. [Voice, "Bully for you," and cheers.] Yes, I turned 47,000 of our men who engaged in this struggle, with the arms they captured with them, and who were then in prison, 1 turned them loose. [Voice, "Bully for you, old fellow," and laughter.] Large numbers have applied for pardon, and I have granted them pardon. Yet there are some who condemn and hold me responsible for so doing wrong. Yes, there are some who stayed at home, who did not go into the fieh^ on the other side, that can talk about others being traitors and being treacherous. There are some who can talk about blood, and ven- geance, and crime and everything to "make treason odious," and all that, who never smelt gunpowder on either side. [Cheers ] Yes, they can condemn others and recommend hang- ing and torture, and all that. If I have erred, I have erred on the side of mercy. Some of these croakers liave dared to assume that they are better than was the Saviour of men him- self — a kind of over righteousness — better thati everybody else, and always wanting to do Deity's work, thinking he cannot do it as well as they can. [Laughter and cheers.] Yes, the Saviour of man came on the earth and found the human race condenmed and sentenced under the law. But when they repented and believed, he said, "Let them live." Instead of exefuting and putting the world to death he went upon the cross, and there was painfully nailed by these unbelievers that I have spoken of here to-night, and there shed his blood that you and I might live. [Cheers.] Think of it ! To execute and hang and put to death eight millions of people. [Voices, "Never."] It is an absurdity, and such a thing is im- practicable even if it were right But it is the violation of all law, human and divine. [Voice, "Hang Jefl:'. Davis." [ You call on Judge Chase to hang Jeff. Davis, will you? 344 IMPEACHMENT OF THE PRESIDENT. [Great cheering:.] I am not tLe court, I am not tbe jurv, nor tlie judjje. [Voice, "Nor the Moses."] Before the case couics to me, and all other cases, it woukl have to come on appli- cation as a case for pardon. That is the only way the case can get to me. Why don't Judge Chase — Judge Chase, the Chief Justice of the United States, in ^^■hose district he is — ■w'liy don't he try him? [Loud cheers.] But, perhaps, I could answer the question, as sometimes persons want to he facetious and indulge in repartee, I might ask you a question, wiiy don't you hang Thad. Stevens and Wendell Phillips 7 [Great cheering.] A traitor at one end of the line is as bad as a traitor at the other. I hnow that there are some who luive got their little pieces and sayings to repeat on public occasions, like parrots, that liave been placed in their mouths by their superiors, who have not the courage and the manhood to come forward and tell them themselves, but liave their understrappers to do their work for them. [Cheers.] I know there is some that talk about this iiniversal elective franchise upon M-hich they ivanted to upturn the government of Lou- isiana and institute another; who contended tliat we must send men there to control, govern, and manage their slave population, because they are iucompeteut to do it themselves. And yet they turn round when they get there and say they are competent to go to Congress and manage the affairs of State. [Cheers.] Before you commence throwing j'our .stones you ought to be sure you don't live in a glass house. Then, why all this clamor? Don't you see, my countrymen, it is a question of power, and being in power as they are, their object is to perpetuate their power? Hence, when you talk about turning any of them out of office, oh, thej' talk about " bread and butter." [Laughter.] Yes, these men are the most perfect and complete " bread and butter party " that has ever appeared in this government. [Great cheering.] When you make an effort or struggle to take the nipple out of their mouth.s, how they clamor! They have staid at home here five or six years, held the othces, grown fat, and enjoyed all the emoluments of position, and now, when you talk about turning one of them out, ' ' Oh, it is proscription," and hence they come forward and propose in Congress to do what? To pass laws to prevent the Executive from turning anybody out. [Voice, " Put 'em out."] Hence, don't you see what the policy was to be ? I believe iu the good old doctrine advocated by Washington, Jefferson and Madison, of rotation in oflice. These people who have been enjoying these offices seem to have lost sight of this doctrine. I believe that when one set of men have enjoyed the emoluments of office long enough, they should let another portion of the people have a chance. [Cheers.] How are these men to be got out — [Voice, " Kick 'em out;" cheers and laughter] unless your Executive can put them, unless you can reach them through the President? Congress says he shall not turn them out, and tliey are trying to pass laws to prevent it being done. Well, let me say to you if you will stand by me in this action, [Cheers, J if you will stand by me iu trying to give the people a fair chance, soldiers and citizens, to participate iu tho.se offices, God being willing, 1 vill "kick them out" just as fast as I can. [Great cheering.] Let me say to you in concluding, what I have said, and I intended to say but little, but was provoked into this rather than otherwise,' I care not for the menaces, the taunts and jeers, I care not for the threats; I do not intend to be bullied by my enemies nor overawed by my friends; [cheers;] but Gdd willing, with your hel)), I will veto their measures whenever they couie to me. [Cheers.] I place myself upon the ramparts 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 upon the people to be my judges. [Cheers.] I tell you here to-night that the Constitution of the country is being encroached upon. I tell you here to-night that the citadel of liberty is being endangered. [A voice — "Go it, Andy."] I say to you then, go to work ; take the Constitution as your palladium of civil and religious liberty; take it as our chief ark of .safety. Just let me ask you here to-niglit to cling to the Constitution in this great struggle for freedom and for its preservation, as the ship- wrecked mariner clings to the mast when the midnight tempest closes around him. [Cheers.] So far as my ])ublic life lias been advanced, the people of ^lissouri, as well as of other States, know that my ell'urts have been devoted in that direction which would auielicrate and elevate the interests of the great mass of the ]ieople. .[Voice, "That's so."] M"liy, where's the speech, where's the vote to be got of mine, but wiiat has always had a tendrncy to elevate the great working classes of the people ? [Cheers.] When they talk about tyranny and despotism, where's one act of Andrew Johnson's that ever encroached upon the rights of a free man in this laud 7 But because I have stood as a faithful sentinel upon the watch-tower of freedom to sound the alarm, hence all this traduction and detraction that lias been heaped upon me. [" Bully for Andy Johnson."] I now, tlien, iu conclusion, my countryuien, hand over to yon the flag of your country with thirly-six stars upon it. I Iiaiid over to you your Constitution with the charge and responsibility of preserving it intact. I hand over to you to-night the Union of these States, the great magic circle which embraces them all. I hand them all over to 3'ou, the j)cople, in whom I have always trusted iu all great emergencies — (jMestions which are of such vital interest — I liand them over to yon as men who can rise iibove |iarty, who can stand around the altar of a common country with their faces u|itunied to heaven, swearing by llim that lives forever and ever, that the altar and uU shall sink in the dust, but that the Constitution and the Union sliall be preserved. Let us stand by the Uniou of these States — let us light IMPEACHMENT OF THE PRESIDENT. 345 enemies of the p^ovcnimcnt come from what quarter thov may. My stand has been taken. You uiKlerstand what my position is, and in pavtinfanager Butler. At the Southern Hotel, on the balcony. They are both here ; but I am now asking for the one at tlie balcony. The Witness. The first is the speech at 'the Lindell Hotel. Q. The other, the one we are inquiring about, was at the Southern Hotel ? A. At the Southern Hotel. Mr. Manager Butler. I mistook. I saw the memorandum "steamboat" there. (To the witness.) Now take the speech at the Southern Hotel. So far as your report goes, as I understand, it is an accurate report of the speech ? A. It is. Q. Why is it not all there ? A. I have lost part of my notes. Q. Whereabouts does it commence? A. The speech in my notes commences abruptly in the middle of a sentence, " who have got the sliackles u]ion their limbs, and which are as much under control and will of the master as the colored men who were emancipated." Mr. HowAHD. Where was this speech made? Mr. Manager Butler. At the Southern Hotel, St. Louis. It is the same speech that has been read. (To the witness.) Will you read, sir, where your report begins ? A. (reading.) " Wlio have got the shackles upon their limbs, and which are as much under control and will of the master as the colored men who were emancipated. [Hisses and cheers.] And I call upon you as freemen to advocate the freedom " Q. That will do for the present. Does the speech then go through ? A. It goes through to the end. Mr. Manager Butler, (^to the counsel for the respondent.) Gentlemen, jnn will see that this report begins at about the top of the first full column of the previous report after the speech commences. (To the witness.) Have you ever compared that with this paper ? A. I do not know what " this paper " is. Q. This paper is the St. Louis Democrat. A. No, sir ; I never have. Mr. Manager Butler. We oflFer this paper now in evidence; I do not care to read it. The variations are not remarkable. Mr. Stanhkry. We will first cross-examine the witness. Mr. ^Manager Butler. Certainly, Cross-examined by Mr. Sta.x'bery : Q. Was this copy of yours published anywhere? a: Yes. Q. In what paper ? A. In the St. Louis Times. Q. What date ] A. The Sunday following; I think the 9th. Q. State how much tiuu; it ro(|uir('3 a short-hand writer to write out his notes in what is called long-hand, compared with that which is required iu taking down the notation. A. AVe generally reckon the difference between the rates of speed in writing long-hand and short-hand as about one-sixth or one-seventh. Q. That is, it takes six or seven times as long to write out the speech as it does to take the notes i' A. No, sir. Q. How then ? IMPEACHMENT OF THE PRESIDENT. 347 A. There arc frequently interruptions in the course of a speech ; t])cre are frequent pauses of a speaker, and a great many things. Q. But suppose there are no pauses, but you are merely taking down the speech 1 A. If a man talks steadily for two or three minutes together, it will take from twelve to twenty minutes to write out what he may say in three minutes' time, ordinarily. Q. That is, four times as long ? , A. Yes. Q. Suppose he speaks rapidly and excitedly 1 A. If he is a very fluent speaker it may take longer. Q. Of course there is a difference between speakers as to that ? A. A very great deal of difference. Q. In a rapid speaker what is the proportion of time ? A. jV[y last answer covers it : I cannot say more precisely than that. Q. Does the standard you give of four times as long apply to those who speak deliberately ? A. Yes, I think that would. A man could easily write out the remarks of a deliberate speaker in four times the length of time. Q. What, then, is the proportion of time in the case of a rapid speaker ? A. Some men speak about as high as two hundred and thirty words a minute. A long-hand writer can write out about twenty-eight or thirty words a minute steadily, if he is a rapid penman and has no difficulty in reading his notes. Q. Then it ought to be from eight to ten times as long for a rapid speaker ? A. About seven times as long. Q. Twenty-eight to two hundred ? A. That is about seven times. Q. Then the long-hand writer who is reporting will get, in case of a rapid speaker, one word in seven ? A. If he attempts to write out in full. Re-examined by Mr. Manager Butler : Q. Do I understand you that the whole of your report of the speech was published in the Times from all your notes ? A. Not the whole of it. Q. Was it condensed for that publicationi 1 A. It was considerably condensed. Q Was Andrew Johnson a rapid speaker in the manner that he spoke 1 A. Mr. Johnson is a very fluent speaker and a very incoherent one. Q. Repeating frequently his words 1 A. Very frequently ; very tautological, very verbose. Q. Does that enable him to be taken with more ease 1 A. It enables him to be taken with move ease. Q. Is it not within your experience that there are men who by practice in long-hand by abbreviations can follow very accurately or quite accurately a speaker who spoke as Andrew Johnson spoke ? A. I think they could give the sense of his speech without doing him any injustice. Q. How was it, taking into consideration the interruptions, supposing such a writer had been taking him from the balcony 1 A. He would have to indicate the interruptions ; he could not write them out. Q. But could he get the sense of what the speaker was saying 1 A. Of the speaker or the interruptions ? Q. Of the speaker. A. Yes he could. 348 IMPEACHMENT OF THE PRESIDENT. By Mr. Stanrerv : Q. A long-hand writer may take the sense and substance of a speech ; that is, he may take the sense and substance as to his ideas of what are the sense and substance] A. Undoubtedly ; he must rely on his own view of what was intended to be said. By Mr. Manager Butlkr : Q. By dictating a report from tlie notes, with another 2)ersou to write out, it can be much more rapidly written out, can it not ? A. Yes, sir ; at least one-fourth. Mr. Manager Butler. I put this report in evidence. I do not propose to read it. Mr. Sta\bery. Let it be printed. Mr. Manager Butler. Certainly. The report made by the witness, Joseph A. Dear, is as follows : Speech from, balcony of Southern Hotel. After a few words of thanks Mr. Johnson was iuterruptpd with inquiries " about New Orleans,'" and in reply he charged the responsibility of that riot on Congress, saying it was certainly planned and that every drop of blood shed in it rested on the skirts of the radical Congress, defended himself from the charj^e of liaving been a traitor, asked had he played "Judas" to Thaddeus Stevens Wendell Phillips or Charles Sumner, spoke of the niajcir- ity in Congress as "this same persecuting nefarious and diabolical clan" and referring to an interruption about "Moses" said that there were other men in the country who claimed their sympathy besides colored men. {Transcript of notes resumed.) * ,###** who have got the shackles upon their limbs and which are as much under control and will of the master as the colored men who were emancipated (hisses and cheers) and I call upon you as freemen to advocate the freedom of the white man as well as the colored man. I have nothing to complain about emancipation. I tried to do as much aud have done as much as — and when they talk about Moses and the promised land — where is the promised land that these people propose to lead them to when tiiey talk about taking them out of America and sending them to otlier climes what is it they propose? Wliy it is to give them a Frced- men's Bureau and then what? Why here in the south it is not necessary for me to talk to you about the system and how it operates. We know slaves have been worked here before. Their original owners bought the land and bouglit the negroes, paid all the expenses of carrying on the farm and in the end after bringing the products to the market, if there was any profit on them these men put it into their pocket. I am not addressing myself to your passions, and when reason and argument again resume tlieir sway on the public mind this prejudice must give waj- and reasun and argu- ment become triumphant. Now let me call your attention to a single fact, the bureau. This slavery was an accursed institution but after emancipation took place the Congress here gave us our commissioners, gave us twelve millions of dollars, placed the power in tiie liands of the President or the Executive, who was to work tliis Tiiachinery with the army to sustain it, aud let us work the four millions of slaves. In fine the Freedmen's Bureau was a simple proposition to transfer the four millinn of slaves in the United States from their original owners to a new set of taskmasters. I had been laboring for years to try and get them freed and I was opposed to seeing tliem transferred to a new set of taskmasters to be worked with nmre rignr than before. Yes, under tliis new system they would work the slaves, tlie government was to bear all the expense and if there was any profits left they would pocket tiiem. So much for this question. I merely intended to tender you here tonight my thanks tonigiit as wo go along and not to talk about this Congress tliat says the President is wrong because he vetoed the freedmen's Bureau Bill, and because the Piesident exercised the veto power, ho has committed a high oll"eiic(- and therefore he ought to be impeached. (No.) Yes they are read}' to impeatdi him aud if they were satisfied of having as large a majority in the next Congress as this, they would upon some pretext of violating some law or some provision of the Constitution they would vacate tlie Executive of the United States. As they talking about the soldiers let me call the attention of the soldiers to tliis immaculate Congress, this Congress which can make war upon ^ upon the )^ the President because he stands by the ^ Constitution and exercises the veto power in belialf of the people they dared to talk about impeachmen't IMPEACHMENT OF THE PRESIDENT. 349 By way of imniortaliziug themselves and inerensinfr the confiJeuce of the solJicrs, thi'o'utrhdut tliis country at one time they talked about impeachmcut. (Ht)w about the Feniuiis ?) (Laughter) So far as the Feuiaus are coiicerued let uie ask auy Fenians, if there are any here to-night, to go back to my history and say who in the dark days of Ivnow-notkingism, stood and made more sacriticc for their riglits. It has been my peculiar misfortune always to have tierce opposition because I have always struck my blows direct and fought with the right, and Constitution on my side. Yes here was the law of neutrality and I \\as sworn to sujjport the Constitution and see that law faithfully executed (" Why didn't you do it ?") The law was executed, and because it was executed they raised a clamor and made an appeal to the Fenians and they pretended to repeal the law, but left it just as it was. They knew that whenever a law was presented to me proper in its character and softening the provisions of the present law it would meet my hearty approbation. Eut, to return to the soldier, as they were pretty well broken down and losing confidence at the end of secession, they thought they must do something for the soldier. What did they do ? Who has done more for the soldier than I have ? who has sacrificed more for the soldier than I have .' But they to make them the friends of the soldier they come forward with a ])roposition — to do what ? 'J'o give to the soldier fifty dollars ($50) bounty if he has served two ('2) years, one hundred dollars ($100) if he has served three (3) years. Now mark this. The colored man that served two years can get his one hundred (JflOO) dollars bounty, but the white man must serve three for his. But that is not the point. W^hile they were tickling and attempting to please the soldier by giving him fifty (!!j50) dollars for two (2) years services they took it into their head to give somebody else a bounty, not of fifty ($50) dollars for two years services — now, atten- tion ! as I want to make an impression on your minds of the facts — When, the brave boy who has followed his gallant Oflicer, who slept on the tented field, who perilled his life, shed his blood and left his limbs behind him, he can get fifty ($50) dollars bounty if he has served two years, but the Member of Congress who never smelt gunpowder can get four thousand dollars ($4,ti(-Mi) extra pay (Loud cheers) That is a true picture my countrymen of what has transpired in the past. Fellow-citizens you are all familiar with the work of restoration ; you know that ever since the rebellion collapsed everything has been done that could be done by the Executive department of the 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 beeu done except the admission of the representatives which all the States are constitiitiunally entitled to. When you examine the Constitution of the United states you will find that you cannot refuse to auy state its sutiVage in the Senate (They have never been out) That's so! and I have always said they could not go out (cheers) and that being so they are entitled to their equal sufiVage in the United States Senate, and no power has the right orcau deprive them of it without violating the Constitution of the United States. And the same argument applies to the representatives in the House. It used to be said that when the states rei'used 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 repre- sentation in Congress. That is to say they are dissolutionists and their position now is to perpetuate the dissolution of the Union and that too while they deny the right of repre- sentation 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 our government. (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 secession 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 rep- reseuiiug thirty-six states remaining where they are. I am for the Constitution 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 restora- tion of peace. Let me ask this people here tonight if we have not shed enough blood. Let me ask this people here tonight, are you prepared to go into, to go into, another civil war? (No.) Let me ask this peo]>le here tonight : are they prepared to set Man upon man and in the name of God lift up his hand against the throat of his brother? Are you prepared to see our fields again laid waste oxw commerce and business suspended and all trade stopped ? Are we prepared to see this land that gave a brother birth, drenched in a brother's blood / I am one of those who believe that a man May sin and that a man May repent and sometimes that having sinned & having repented it makes him a better man than before, (Cheers.) I kuow it has been said that I have exercised the pardoning power. Yes, I have (cheers) And I reckon 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 granted pardons 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 that and they that make the comparison— but if I have 350 IMPEACHMENT OP THE PRESIDENT. ened I liave erred on mercy's side and some of these croakers assume to set np that ther aro better than the Saviour of mankind, himself — a kind of over rifrhteousness — thinking tliey aro better than anybody-else and are always wantinp^ to do the Deity's work, thinking;' they can do better than he can. Yes, the Saviour came and found man sentenced and under the law but when they repented he said, " let them live." Instead of putting' them to death he went upon and was there painfully nailed by those unbelievers that I have spoken of and there shed his blood and died that you and I niijjht live. Will j'ou execute and put to death eight million of people? 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.) You 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, ami 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 whose district he is — why don't he try him ? But perhaps I can answer the question, and as some- times people will be facetious and indulge in repartee, I might ask you a question — why dont you hang Thad 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. I know men ou 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 have their understrap- pers come forward. 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 colored people and manage their afiairs for them, and yet say they are competent to go to Congress and and manage affairs of state. Before you conuuence throw- ing your stones you ought to be able to say that j'ou 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 power. Hence when you turn any of them out of Office 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 jou. make an offer to take a single piece out of their mouths how they clamor. The man who has stayed at home four or live or six years and grown fat and indulged in all the emoluments of ofiice and grown rich, when j-ou talk about turning one of them out it is "proscription," and hence it is one of the objects of the Congress of the United States to pass a law prevent- ing the Executive from turning any one out. (Turn them all out.) Hence, dont you see what the policy was to be. How were the people to get hold of the offices. The idea of rotation in office of the days of Madison and JetYerson seems to be lost sight of; but my belief is that when one set of men have 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 Executive. Congress proposes to jiass 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 me 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 myseli on the ramparts of the Constitution and when I see the enemy approaching so long as I have eyes to see or cars to hear of a tongtie to sound the alarm so help me God I will do it and call for 30U to the rescue (Loud cheers.) I tell you here to-night that the constitution of the country has been encroached upon, the citadal of liberty is being endangered (Go in And}'!) Come \\]> to the woik and protect your Constitution as the palladium of our civil and religious lib- erty for it IS the ark of nur safety. Yes let me 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 Hows around him. So far as my ]>ublic life is concerned the people of Missouri know that my efforts have been in that direction which would elevate the great nuisses of the people. Where is the speech or vote of mine but what has always had a tendency to elevate the great masses of the jieople 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 1 have stood tipun the outworks of frecMlom and have sounded an alarm hcnco all this detraction that has been heajied upon me. Then in conclusion here to-night I hand over the flag of your country with thirty-six stars uj)on it. I handover the Constitution of your country with the charge and responsibility t I hand .them over to you with the charge t(i preserve them as men who can rise above party iV- come around the altar of a conuiion country ».V with laces upturned to lieaven swear by him and all shall sink into the dust but that the constitution shall be jireserved. Let us stand up for the Union of these States, let us light the enemies of the government come from whatever quarter they may. You understand what my position is — no tyranny — and with you to-niglit, I leave the Union in your liands with the confidence I have always had that the people will redress all wrongs and set the government right. Then geullcmeu of this IMPEACHMENT OF THE PRESIDENT. 351 erefit city of tlie Westcni States in bicldin<^ you farewell I leave all in your cliarfro and thank '^ "^.1 ,• »i ,i-.i 1 I." „:.. i. „:».. /I 1 ..1 \ DEAR. you ffreath' for the cordial welcome you have given me to your city (Loud cheers.) JOSEPH A. Robert S. Chew sworn and examined. By Mr. Manager Butler : Question. You are employed in tlie State Department ? Answer. I am. Q. In what capacity ? A. Chief clerk. Q. Is it part of your duty to supervise and know the commissions issued ? A. The duty devolves particularly upon the commission clerk of the depart- ment to prepare all commissions. The commission is first made out by a clerk "who is called the commission clerk of the department. It is brought to me, and by me sent to the President. When returned with the President's signa- ture it is submitted by me to the Secretary of State, who countersigns it. It then goes to the commission clerk for the seal to be affixed. Q Then, when it does not belong to your department, where does it go, when it is not a commission of an officer in your department ? A. To the Treasury. Q. That is to say, if I understand, the commissions of officers in the Treasury are prepared at your department ? A. Yes, sir; of a portion of .the officers of the Treasury. Q. Such as whom ? A. Such as comptrollers, auditors, treasurers, assistant treasurers, officers of the mint, commissioners of the revenue. Q. Secretary and assistant secretary? A. Yes, sir. A. Then, after being prepared, they are sent to the Treasury 1 A. Yes, sir. Q. Those that belong there 1 A. Yes, sir. ' Q. Those belonging to your office are issued from your office ? A. From the Department of State. Q. Now, will you have the kindness to tell us whether, after the passage of the civil-tenure act, any change was made in the commissions of the officers of your department to conform to that acti A. I'here was. Q. What was that change? Tell us how the commission ran in that regard before and how it has been since. A. (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. Q. Does that apply to all commissions ? A. That applies to all commissions. Q. When was that done ? A. Shortly after the passage of the tenure-of-office act. Q. About how soon, if you can tell us, one month or ten days ? A. 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. Q. Was the subject then examined in the department ? A. It was. ' Q. Was this change made after that examination or before? A. After the examination. 352 IMPEACHMENT OF THE PRESIDENT. Q. "Was it made by tlio direction of the Secretary or not ? A. The case was submitted by the Secretary to the legal examiner, and upon his opinion the change was made. Q. By order of the Secretary? A. I think so. Q. You print the form of your commissions on parchment by copper-plate, do you not? A. Yes, sir. Q, Was the copper-plate then changed to make all forms 1 A. It was. Q. For the various kinds of commissions? A. Yes, sir. Q. Have you blank forms of the various kinds of commissions issued by your department? A. I have. [Producing a number of blank forms.] Q. 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 President for the time being ? " Were they all issued in that form? A. They were all issued in that form. Q. Since this change have all commissions been issued in the changed form ? A. They have been. Q. Have such changed commissions been signed by the President? A. They have been, Q. Has there been, down to to-day, any other change than the one you have stated ? A. None at all, that I am aware of. Q. Has any commission whatever for any officer been sent out from your department since the passage of the act, except in this changed form? A. 1 am not aware of any. Q. Could there have been, except by accident, without your knowing it? A. Not unless by accident. Mr. Manager Butler, (to the counsel for the respondent.) I now propose, gentlemen, to offer these forms in evidence, but I will not read them unless you desire. , i Mr. Stanbery. You will allow us to ask some questions first, I suppose. Mr. Manager Butler. Certainly. Cross-examined by Mr. Stanbery : Q. 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 ? A. Yes, sir. Q. And I understand you that the words "during the pleasure of the Presi- dent of the United States for the time being" arc now left out, and the words "subject to the conditions prescribed by law" are inserted ? A. Yes, sir. Q. 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 ?" A. No, sir. Q. You never have ? A. We never have. Q. Let me ask you if any commission has been issued to a head of Depart- ment different from those that you issued before the tenure-of-otHce act ? Has any commission since that act been issued to a' head of department 1 IMPEACHMENT OF THE PRESIDENT. 353 A. I am not aware of any. I bronglit uo forms of commission to a bead of Depavtraent, and did not examine that question. Q. Have you a separate plate for the commission of a head of department ? A. I cannot answer that question. Q. But you recollect no instance in which any change has been made there? A. I do not. By Mr. Manager Butler : Q. Has there been any commission issued to a head of department since March 2, 1867 1 A. I do not recollect at this moment. Mr. Manager Butler. Then, of course, there is no change. Mr. Stanberv'. 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 : Temporary commission of deputy postmaster--Ol(l form. In the form now used, the words in brackets arc omitted, and thewords " subject to the conditions prescribed by law " inserted. , President of the United States of America, to all who shall see these presents, greeting : Know ye, tbat, reposing special trust and confidence in the integrity, ability, and punctu- ality of , I do aijpoiut deputy postmaster , and do authorize and empower liim to execute and fulfil 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 tlie same of right appertaining unto him the said [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 ot 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 one thousand eight hundred and , and of the independence of the United States of America the . Ll. s.] . 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 confidence in the integrity, ability, and punctu- ality of , I have nominated, and by and with the advice and consent of the Senate, do appoint deputy postmaster , and do authorize and empower him to exe- cute and fulfil 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 , for the term of , subject to the conditions prescribed bylaw. In testimony whereof, I have caused these letters to be made patent and the seal of the United States hei;eunto affixed. Given under my hand, at the city of Washington, the day of , in the year of our Lord one thousand eight hundred and , and of the independence of the United States of America the . [L. S.] . 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 revokt' and determine this commission " are now omitted, and the words " subject to the conditions prescribed by law " inserted.] 23 I P 354 IMPEACHMENT OF THE PRESIDENT. Netc form, temporary commission of inarslial and atlornry. In commissions of viarshul ^'dili- gence" is used instead of ''^learning." , Prtsident of the United States of America, to all irho shall see these presents, greeting : Know ye, that reposiug special trust and confidence in the intej^rity, ability, and learning of , I do appoint him to be attorney of the United States for the , and do authorize and empower hiiu to execute and fulfil the duties of that otfice according to law; and to have and to hold the said office, with all the powers, privileges, and enioluinents thereunto legally appertaining unto him, the said , [until the end of tiio next session of the Senate of the United States, and no longer;] subject to the conditions prescribed by la\Y. 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 tlie cit}' of Washington, the day of , in the year of our Lord one thousand eight hundred and , and of the independence of the United States of America the . [L. S.] . By the President: Secretary of State. Old form. [" During the pleasure of the President of tlie United States for the time being, and imtil 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.] Ntic form, permanent mnrshuls and attorneys, , Presidmt of the United States of America, to all who shall see these prese7its, greeting : Know ye, that reposing special trust and confidence in tlie integrity, ability, and learning of , I have nominated, and, by and with the advice and consent of the Senate, do appoint him of the United States in and ibr the , and do authorize and empower him to execute and fulfil tlie 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 , for the term of , suliject 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 to be hereunto affixed. Given under my hand, at the city of Washington, the day of , in the year of our Lord one thousand eight hundred and , and of the independence of the United States of America the . LL. .S.] . By the President : Secretary of State. [This commission is used for attorneys and marshals. Tlie term of service is four years. 'J'he words " unless the President of the United States for the time being should be pleased to revoke and determine this commission " are now stricken out, and the words "subject to the conditions prescribed by law" are inserted.] Form if coinniission for judges. Ansiccrs for permanent or temporary. , ['resident of the United States of America, to all icho shall see these presents, greeting : Know ye, that reposing special trust and confidence in the wisdom, uprightness, and learning of , I have nominated, and, by and with the advice antl consent of the Senate, do appoint him of the United Stattis in and for the ■ , and I do authorize and empower him to execute and luUil the duties of that office according to the Constitution and laws of the UniUd States, and to have and to hold the said otlice, with all the powers, privileges, and emolumeuta to the same of right appertaining unto him, the said IMPEACHMENT OF THE PRESIDENT. 355 In testimony ■whereof I have caused these letters to be made patent, and tlie seai of the United States to be hereunto ntHxed. Given uniU>r my liand, at the city of Washington, the — day of , in the year of our Lord , and of tlie independence of the United States of America the . [L. S.] . By the President : Secretary of State. [In cases of judges of territories the words " subject to tlie conditions pre- scribed by law " are inserted. This commission is used for judi^es of the Supreme Court of the United States, judges of district courts and Territories, and is temporary or permanent, as the case may be.] Form of netc conunission of secretaries of legation used either in the recess or session of the Senate. , President of the United States of America, to , greetin>r : Reposing special trust and confidence in your integrity, prudence, and ability, I do appoint (or nominate) 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, or as may be given you in charge hereafter, and the same to hold and exercise, subject to the conditions prescribed by law. In testimony whereof I have caused 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 thousand eight hundred and , and of the independence of the United States of America the . [L. S.] . By the President : Secretary of Slate. [The words " during the pleasure of the President of the United States for the time being" were formerly used. J Old temporary consular commission. The President of the United States of America to all icho shall see these presents, greeting: Know ye, that reposing special trust and confidence in the abilities and integrity of , I do 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 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, [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, he demanding and receiving no fees or perquisites of office whatever which shall not be expressly established hy 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 acknowledge and consider him, the said , accordingly. And I do hereby pray and reque.«t , governors and officers, to permit the said fully and peace- ably 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 offering to do the same for all those who shall, in like manner, be recommended 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 thousand eight hundred and , and of the independence of the United States of America the . [L.S.J . By the President : Secretary of State. [The words iu brackets have been omitted since the passage of the tenure-of- office act. 356 IMPEACHMENT OF THE PRESIDENT. New ■pe.rmnnent consular covnnissions. The President of the United States of America to all zcho shall see these presents, greeting: Know ye, that reposing special trust and confidence in the abilities and intet^ritv 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, jjrivileges, and authorities to the same of right appertaining, subject to the conditions prescribed by law ; the said ■ demanding and receiving no fees or perquisites of office whatever which sliall 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 acknowledge and consider him the said accordingly. iVnd I do hereby pray and request , governors and offi- cers, to permit the said ft^Hy and peaceably to enjoy a-nd exercise the said office without giving, or suiiering to be given unto him, any molestation or trouble; but, on the contrary, to afford him all proper countenance and assistance ; I offering to do the same for all those who slia'l in like manner be recommended 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 thousand eight hundred and , and of the independence of the United States of America the . By the President : Secretary of State. [Heretofore this commission read "duriug the pleasure of the President of the United States for the time being."] Forms of commissions used for gorrrnors, secretaries of Territories, and officers under the super- vision of other departments, S^'c, either permanent or temporary, as the case may be. , 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 and ability of , I do appoint him , and do authorize and empower him to execute and fulfil 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 bin), the said 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 thousand eight hundred and , and of tlie independence of the United States of America the . [L S.] . By the President : Secretary of State. Form of old commission of permanent ministers plenipotcnti/iry issuid as far bark as 1700. , President of the United States of America, to , greeting : Kei)0sing S])ecial trust and confidence in your integrity, prudence, and ability, I have nomi- nated, and by and with the advice and ctinscut of tlie .Siuate do appoint, you envoy extraor- dinary and minister plenipotentiary of the United States cf America , authorizing you hereby to do and perform all .such matters and things as to the said place or office doth appertain, or as may be duly given in charge hereafter, and the said office to hold and exer- cise during the pleasure of tlie President of the United States for the time being. In testimony whcM-cof I have caused tlu^ .seal of the United States to be hereunto affixed. Given under my hand, at the city of Washington, the day of , iu the year of our Lord one thousand eight hundred and , and of the iudepeudeuco of the United States of America the . [I,, s.] . By the President: Secretary of State. IMPEACHMENT OF THE PRESIDENT. 357 [The words "during the pleasure of the President of the United States for the time heing" are now stricken out, and the words '' subject to the conditions prescribed by law" inserted. The same with commissions for ministers resident and secretaries of legation.] Form of old commission of ministers resident, permanent or tcinporary, and is used for tcmpo- 7-ar^ commissioJis of envoy St extraordinary and ministers j)lbnlpotentiary. , President of the United States of America to , greeting : Reposing special trust and confidence in your iuteg^rity, prudence, and ability, I have nominated, and, by and with the advice and consent of the Senate, do appoint you , of the United States of America, , authorizinji^ yon hereby to do and perform all 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 atJfixed. Given under my hand at the city of Washington, the day of , in the year of our Lord one thousand eight hundred and , and of the independence of the United States of America the . [S. L.] . ^y the President : Sccrtlury of State. [If used as a temporary commission, the words used in place of those iu brackets are " until the end of the next session of the Senate 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 1 Answer. Since July, 1S66. Q. How long have you been in the Department of State ? A. Since July, 1834. Q. That is, you have been there thirty-four years 1 A. Yes, sir. Q. In all that time before this change did commissions run iu this way : " during the pleasure of the President V A. They did. By Mr. Manager Butler : Q. (Handing a written paper to the witness.) I suppose you know Mr. Seward's handwriting ? A. I do. Q. Is the letter I have just shown you signed by him 1 A. It is. Mr. Manager Butler, (to the counsel for the respondent.) I offer now, gen- tlemen, 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 beginning of the government. Mr. ST.WBERYaud Mr. Curtis. Of ah officers ? Mr. Manager Butler. Of heads of departments. It is accompanied with a letter simply describing the list, which I will read, as mere inducements. Mr. Curtis. 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 2:?d instant, in behalf of the House of Representatives in the matter of the impeachment of the President, I have the honor to submit herewith 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 the same can be ascertained from the records of this department. 358 IMPEACHMENT OF THE PRESIDENT. Schedule B contains a statement of all appoiutnieuts of heads of departments at any time made liy the President without the advice and consent of the Senate, and -while the Senate was 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. Schedule A. List of removnls of heads of departments made hy the President at any time during the session of the Senate. Timothy Pickering, Secretary of State, removed May 13, ISOO. That is the whole of schedule A. Then comes Schedule B. List of npjiointments of heads of departments made hy 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 Treasury, January 26, 1829. Asbury Dickins, Acting Secretary of the Treasury, March 17, 1832. John ivobb. Acting Secretary of War, June 8, 183-2, and July 16, 1832. McCliutock Young, Acting Secretary of the Treasury, June i;5. J 834. Mahlon Dickerson, Acting Secretary of War, January J 9, 1835. C. A. Harris,' Acting Secretary of War, April 29, 183G. Asbury Dickins. Acting Secretary of State, May 19, 1836. C. A. Harris, Acting Secretary ot War, May 27, 1836. McCliutock Young, Acting Secretary of the Treasury, May 14, 1842, and June 30, 1842, and March ], 1843. John Nelson, Acting Secretary of State ad irderim, February 29, 1844. McCliutock Young, Acting Secretary of the Treasury, May 2, 1844. Nicholas P, Trist, Acting Secretary of State, March 31, 1846. McCliutock Y'oung, Acting Secretary of the Treasury, December 9, 1S47. John Appleton, Acting Secretary of State, April JO, 1848. Archibald Campbell, Acting Secretarj- of VVar, May 26, 1848. John McGinnis, Acting Secretary of the Treasury, June 20, 1850. Winfield Scott, Acting Secretary of War ad interim, July 23, 1850. William S. Derrick, Acting Secretary of State, December 23, 1850, and February 20, 1852. William L. Hodge, Acting Secretary of the Treasury, February 21, 1852. William Hunter, Acting Secretary of State, March 10, 1852. William L. Hodge, Acting Secretary of the Treasury, April 26, 1852. William Hunter, Acting Secretary of State, May 1, J852. William L. Hodge, Acting Secretary of the Treasury, May 24, 1852, and June 10, 1852. William Hunter, Acting Secretary of State, July 6, 1852. John P. Iveunedy, Acting Secretary of War, August 19, 1852. William L Hodge, Acting Secretary of the Treasury, August 27, 1852, and December 31 1852, and January J5, 1853. William Hunter, Acting Secretary of State, March 3, 1853. Archibald Campbell, Acting Secretary of War, Januarj^ 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 Treasury, December 18, 186]. F. W. Si'ward, Acting Secretary of State, January 4, 1862, and January 25, 18G2, and February 6, l.>-(>2, and A\)yi\ 9, J8t>2. George Harrington, Acting Secretary of the Treasury, April 11, 1862, and May 5, 1862. William Hunter, Acting Secretary of State, May 14, 1862. George Harrington, Acting Secretary of the Treasury, May 19, 1862. F. W. Seward, Acting Secretary of State, .June 11, i862, iind Juue 30, 1862. George Harrington, Acting Secretary of the. Treasury, .January 8, J 81)3. F. W. Seward, Acting Secretary of State, December 2:!, 1863, and April 11, ]8f)4. George Harrington, Acting Secretary of theTieasury, April 14, 1864, and April 27, 1864, and June 7, J864, and June 30, J8t)4. F. W. Seward, Acting Secretary of State, January 4, 1865, and February 1, 1865. Gerge Harrington, Acting Secretary of tli(! Treasury, March 4, 1865. William K. Chandler, Acting Secretary of the Treasury, December 20, 1866. F. W. .Seward, Acting Secretary of State, May 15, |.S(i(i. \MHiam E. Chandler, Acting Secn^tary of the Treasmy, l^ecember 20, 186(). John T. Hartley, Acting Secretary of the Treasury, September 16, 1867, and November 13, 1867. F. W. Seward, Acting Secretary of State, March 11, 1868. IMPEACHMENT OF THE PRESIDENT. 359 Mr. CoNKLiiXG. I beg to ask wliat is the title of the hist schedule which has just been read. Will the manager read it again 1 Mr. ]\ranager Butler. " List of appoiutnients of heads of departments made by the President at any time during the session of the Senate." (To the wit- ness.) You told us, Mr. Chew, how long you had been in the State Depart- ment. How long was that ? A. I was appointed in July, 1834. Q. We see by the list that there have been certain appointments of Acting Secretaries of State; tell us under what circumstances they were made. Mr. Stanbbry. 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 circumstances under which they were made. What was the necessity for making them — the absence of the Secretary or otherwise ? A. The absence of the Secretary. Q. Since 1834, in the thirty-four years you have been there, has there been any appointment of Acting Secretary except on account of the temjDorary absence of the Secretary, to your knowledge ? A. I do not recall any at this time. Q. By whom were those acting appointments made ? A. They were made by the President or by his order. Q. That is exactly what 1 want to know. Did the letter of authority in ipost of these cases — take Hunter's case and Appleton's case, for example — proceed from the head of the department or from the President ? Mr. Evarts. We object that the papers must be produced if their form is to be considered as material. Mr. Manao-er Butler. I am not asking; for form, I am asking: for fact. Mr. Evarts. That is the fact, as we suppose, what the authority or the form of authority was. Mr. Manager Butlkr. I am asking now from whence and by whom issued ; whether the letter, whatever may be its form, came directly from the head of the department to the chief clerk, Mr. Hunter, or to Mr. Applefcon, who was the chief clerk, I believe — whether it came directly from the head of the department 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 from whom it came. Mr. i\ranager Butlek. Suppose it should happen to turn out that there was not any letter ? Air. 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 Avhom to send to ask to produce 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 ? Tiie Witness. Only in writing. Mr. Manager Butler. I again say, sir, that I am not able to know whom to send to 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 preserved ? Mr. Manager Butler. Well, I am inclined, may it please your honor, to put this question, with the leave of the presiding officer. (To the witness.) From whom did these letters of which you speak come ? Mr. Curtis and Mr. Evarts. That we object to. 360 IMPEACHMENT OF THE PRESIDENT. The CniKF Ji'STICE. The honorable munagei- will reduce his question to writiiip;. Mr. Miinagei- Bi.tler. What I propose to ask is whether any of the letters of authority this witness has mentioned came fi'om 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 1 may want to send for them. I really cannot understand 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 production of the writing by which the witness has 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. JIanager Butler. lam 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 Secre'tary of State, that is another thing, and then I can apply thore. I am asking, in the usual course of examination, as I understand the examina- tions of witnesses, whence certain papers came ; were they the papers of the Secretary of State, or were they the papers of the President 1 That does not put in their effect. Mr. Curtis. Do you mean to inquire who signed the letters of authority ; is that your ii quiry ? 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 uiean by that who signed the letter, or do you mean out of whose manual possession it came into this gentleman's 1 Mr. Manager Butler. 1 mean, sir, who signed the letter, if you put it in that form. Mr. Curtis. That we object to. Mr. Manjjgcr Butler. 1 do not do that for the purpose of proving the con- tents of the letter, but for the purpose of identification of the letter. Mr. Curtis. Tlie signature is as much a part of the letter and its contents as anything else. Mr. Evarts. Is this offered to prove who signed the letter? We say the paper itself will show who signed it. i\Ir. 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 signature, 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 direc- tion. 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 ain desirous, if 1 can, to ascertain whether it is worth while for me to go aiiy further than to argue this question ; and the objection seems to me over-sensitiveness. I'he ChiiKF Justice. The Secretary will read the question propounded by the honorable manager. The Secretary read as follows : Question. State whether any of thi' letters uf authcirity whicli yuu have mentioned caiiio Iroiii the Secretary of State, or from wliat other olHeer ? The Chief Justice. "Came from the Secretary of State." Do I under- stand you to mean signed by him ? IMPEACHMENT OF THE PKESIDENT. 361 Mr. Manager Butler. I am not anxious upon that part of it, sir. I am con- tent with the question as it stands. The Chikf Justice, The Chief Justice conceives that the question in the form in which it is put is not olijectionable Mr. Manager Bu'I'Ler. I will put it, then, with the leave of the Chief Justice. The Chief Justice. The Chief Justice was about to proceed to saj that if it is intended to ask the question whether thet^e documents, of which a list is furnished, were signed by the Secretary, thcu he thinks it is clearly incompetent 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 not the question 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 President or from the Secretary, or from anybody else Tlie Chief Justice. In the form in which the question is put the Chief Jus- tice thinks it is not objectionable. If any senator desires to have the question taken by the Senate, 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 Secretary of State, or from what other officer. Mr. Curtis. I understand the witness is not to answer by whom they were sent. Mr. Manager Butler. I believe I have tbis witness. The Chief Justice. The Chief Justice will instruct the witness. (To tbe 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 President. By Mr. Manager Butler : Q. All of them 1 A. Such is the usual course. I know of no exception. Q. Do you know of any letter of authority for the chief clerk, acting as Sec- retary of State, which did not come from the President 1 A. I do not, Q. Will you, upon your return to the office, examine if there is any, and report to me ? A. I will. By Mr. Staxbery : Q. Mr. Chew, I see by this list only one instance of the removal by the Presi- dent 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 circum- stances of that removal 1 A. Not at all. Q. You do not know whether that officer had refused to resign when requested or not? A. I do not. Q. In your knowledge since you have been in the Department of State in the last thirty-four years, do you know of any instance in which a head of a depart- ment when he has received a request from the President to resign has refused to resign ? 362 IMPEACHMENT OP THE PRESIDENT. Mr. ]\IanagC'r Butler. Stop a moment ; I object to that. The Chief Justice. Do the counsel for the President press the question? Mr. i^TANBERV. Not now, sir. We have the records. By Mr. Stanbery : Q. Have you examined the records of the department to ascertain under what circumstances it was that President Adams removf^d Mr. Pickering from the head of the State Department in ]S00, while the Senate was in session ? A. I have not. By Mr. Manager Butler : Q. Do joxi know that he was removed while the Senate was in session of your own knowledge ? A. I do not. Mr. Staxbery (to the managers.) You have proved it, gentlemen, your- selves. Mr. Manager Butler. I now offer, sir, from the ninth volume of the works of John Adams Mr. Stanbery. There you will find it, I guess. Mr. 31anager Butler. I offer from the ninth volume of Little & Brown's edition of 1S54 of the works of John Adams, by his grandson, Charles Francis Adams, what purport to be official lettei's from Timothy Pickering, Secretary of State, to John Adams, President, and from John Adams to him. Is there any objection to my reading them ? Mr. JoHNSOAi. Will you state the page, Mr. Manager? Mr. Mai>ager 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. Staxbery. Not at all. Mr. Manager Butler. Then I will read them : Sir : As I perceive a necessity of introducing a change in the aclministration of the office of State, I think it proper to make this communication ot it to the present Secretary of State, that he may liave an opportunity of resigning, if he chooses. I should wish the day on which liis resignation is to take place to be named by himself. I wish for an answer to this letter on or before Monday morning, because the nomination of a successor must be sent to the Senate as soon as they sit. With esteem, I am, sir, your most obedient and humble servant, JPHN ADAMS. To T. PlCKEUlXG, Secretary of State. [7'. Pickering, Secretary of State, to John Adams.'] DErAUTMKNT OF STATE, Philadelphia, 12 May, 1800. SiK: I have to acknowledge the receipt of your letter, dated last Saturday, stating that, " as yoti perceive a necessity of introducing a change in the administration of the office of State, you thinlc it jjroper to make this communication of it to the present Secretary of State, that he may lia\e an opitortunity of resigning if he chooses ;" and that "you would wish the day on which his resignation is to take place to be named by himself" Several matters of nnportance in the office, in which my agency will be useful, will require my diligent attention until about the close of the present (piarter. I had, indeed, contem- plated a continuance in oilice until the 4th of March next, when, if Mr. .letierson was elected President, (an event which, in your conversation with me last week, you considered as cer- tain,) I e.xpectt^d to go out, of course. An aiiprciiciision of that event first led me to determine not to remove my family this j'ear to the city of Washington; because to establish them tiiero would oblige me to incur an e.xtruordinary exjjense which I had not the means of defraying; whereas, by separating myself from my family, and living there eight or nine months with strict economy, I hoped to save enough to meet that cxiiense, should the occasion occm\ Or, if I then went out of office, that saving would eiuiblc me to subsist my family a few mouths IMPEACHMENT OF THE PRESIDENT. 363 longer, and perhaps aid me in transporting them into tlie woods, where I had land, though all wild and unproductive, 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 tins resource, and that those most dear to me have fortitude enough to look at the scene without dismay, and even without regret. Nevertheless, after deliberately reflecting on the overture you have been pleased to make to me, I do not feel it to be my duty to resign. I have the honor to be, &,c., TIMOTHY PICKERING. PlllLADELl'iilA, 12 May, ISOO. Sliv : Divers causes and considerations, essential to the administration of the government, in my judgment, requiring a change in the Departmant of State, you are 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, ISOO, 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 1 Mr. Sta.xbery. Do I understand the manager to say, " the same hour?" Do you expect to prove it ? Mr. Manager Butlkr. I should think, when we come to look at the corres- pondence, that I am wrong ; I think the sending to the Senate was a little previous. [Laughter.] Mr. Stanbery. You do? Jlr. 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 de- cision upon the question whether I am to have the journal. Mr. Staxbbry. 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 recalled. By Mr. Manager Butler : Q, You have been sworn once in this case? A. Yes, sir. Q. [Handing a paper to the witness,] You have told us that you were appoint- ment clerk in the Treasury. Are you familiar with the handwriting of Andrew Johnson ? A. 1 am, Q. Is that his handwriting ? A. It is. Q. Did you produce this letter from the archives of the Treasury to-day in obedience to a summons ? A. 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 since remained, and Avas the opinion of the 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 aware that this act— * The tenure-of-civil-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 364 IMPEACHMENT OF THE PRESIDENT. taken from the President and vested in him and the Senate jointly ; and althono-h this respondent liad arrived at and still retained the opinion above expressed, and verily believed, 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. And this respondent, further ansvverino:, says, that it is provided in and by the second section of "An act to regulate tlie tenure of certain civil offices," that the President may sus- pend an officer from the performance of the duties of the office held by him, for certain causes therein designated, until the next meeting of the Senate, and until the case shall be acted on b^' 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 aforesaid includes the power of suspension from office at the pleastne 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 tiie Con- stitution and laws of the United States, indefinitely and at the pleasure of the President. Now, the second section of the act regulating 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 misconduct in office or crime, 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 such officer and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the ease shall be acted upon by the Senate. The eighth section provides : That whenever the President shall, without the advice and consent of the Senate, desig- nate, authorize, or employ any person to perform the dudes 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, indefinitely 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 efiect, Avhich, if there is no objection, I will read, the signature of which was identified by 0. E. Creecy. [The letter was handed to the counsel for the respondent.] Mr. S'i"Ai\BERV. We see no inconsistency with that part of the act, certainly. Mr. Manager Butler. That was a cjuestion 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 1 answer the falsehood is not in the letter, but in the answer. Mr. Manager Butler thereupon read the letter, as follows : ExKcuTivE Mansion, Wasuixoton, D. C, August J 4, 1^67. Sir: In compliance with the requirements of the eighth section of the act of Congress of March 2, JHG7, entitled "An act regulating the tenure of certain civil offices," you are hereby notified that on the J2tli instant Hon. Edwin M. Stanton was suspended from office as Secre- tary of War, and General Ulysses S. Grant authorized and empowered to act as Secretary of War ad interiiru. I am, sir, very respectfully, yours, ANDREW JOHNSON. Hon. Hugh McCullocm, Secretary of the Trtasunj. I wish to call attention again, because it may have escaped the attention of some senators • Mr. Curtis. Wc object to the gentleman arguing the question. Mr. Stanbkry. It is time certainly we should know what all this discussion means. What question is now before the Senate? What is your question! IMPEACHMENT OF THE PRESIDENT. 365 Let lis know whether we have any objection ; how it is that this statement is made. Mr. ]\ranager T'utlki?. I am endeavoring to show, sir, that while the Presi- dent ?avs he did not suspend Mr. Stanton under the tenure-of-office act, and that he had come to tlie conclusion that he had a right to suspend him before August 12, 1867, without leave of the tenure-ofoffice act, and without leave of the Sen- ate, yet, acting under the eighth section of the act to M-hich he refers in his letter, he expressly says in that letter that he did suspend him under this act. Mr. StAiXBERY. We understand all that. Mr. Curtis. He does not say any such thing. We do not object to the hon- orable 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 Managers, the executive journal is now here. Mr. Manager Butler. I now produce the executive journal of the Senate. Mr. JoHXSON. Of what date ? Mr. Manager Butler. Monday, May 12, 1800. May 9 is the last previous date of executive session : Monday, May 12, 1800. The following written messages were received from the President of the United States by Mr. Shaw, his secretary : Gentlemen of the Senate : I nominate the 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 Massachusetts, to be Secretary of the Department of War, in the place of the honorable John Marshall, nominated 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 Northwestern 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 Cincinnati. James Findley, «fec. Then follows a long list of nominations : Gentlemen of the Senate : I nominate Seth Lewis, esq., of Tennessee, to be chief justice of the Mississippi Terri- tory, in the place of William McGuire, esq., resigned. ^ ^ 16 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 the United States of the 12th in.sta'nt, and the nominations contained therein, of John Marshall and Samuel Dexter, to office, whereupon, Rewlted, That they do advise and consent to the appointments agreeably to the nomina- tion. Ordered, That the Secretary lay this resolution before the President of the United States. Mr. Stanberv. 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 undertaken to state the hour. I stated directly to the Senate, in answer to you, that I thought that the letter went to 366 IMPEACHMENT OF THE PRESIDENT. the Senate with the nomination, and I believed it would appear, from an exam- ination of the whole case that the nomination of a successor went to the Senate prior to the letter going to Mr. Pickering. Mr. S'lAN'BERY. 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 phra«e. I am quite sure I know what I said. 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 resigna- tion 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 jour- nal 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.] Charles E. Creecy recalled. By Mr. Manager Butler : Q. [Submitting papers to witness.] Upon receipt of that notification by the President of the United States that he had suspended Mr. Stanton according to the provisions of the civil tenure-of-office act, what was done ? A. A copy of the executive communication was sent to the Treasurer, First Comptroller, First Auditor, Second Auditor, and Third Auditor. Q,. Plave 3^ou the letters of transmittal there? A. I have. Q. "Will you have the kindness to read them? A. Here is one : Treasury Department, August 15, 1867. Sir: In accordance with the lequiiements of the eij^hth sectiou of an act entitled "An act repfulatinp^ the tenure of certain civil ofKce.s," I tnuisinit herewith a copy of a letter from the President, notifying this department of the suspension of Hon. E. M. tjtanton from the office of Secrctiny of War. and the authorizing of General Ulysses S. Grant to act as Secretary of War ad interim. I am, very respectfully, HUGH Mcculloch, Secretary of the Treasury. R. \V. T.^VI.OR, Esq., I'lrst Comptroller, Sfc. ' The same letter was sent to the others. Q. Are those officers the proper accounting and disbursing officers of the depart ment ? A. 'J'liey are for the War Department. Q. Then, if I understand you, all the disbursing officers of the Treasury for the War Department were notified in pursuance of the act? Mr. Curtis. We object to that. Mr. EvART^^. That is a question of law. ^Ir. Mannger Butler. Were thereupon notified? A. Yes, sir. Q. Were you there to know of this transmission ? A. Yes, sir. Q. Did you prepare the papers ? A. Yes, sir. Q. Did you prepare them in pursuance of any other act of Congress except the civil tcnure-of-ofiice act ? IMPEACHMENT OF THE PRESIDENT. 367 A.- No, sir. l\rr. Manager Butlkr. That is all. [A pause.] Mr. CoN.XKSS. I was going to move a recess; but if the witness is to be cross-examined now Mi\ Stanbery. That will answer. I can wait until the recess. Mr. HowARP. Let the examination of this witness be finished. Mr. Manager Butler. I can say to the Senate that we shall reach within a few minutes a place to rest. The CniEi' .fuSTiCK. Does the senator from California withdraw his motion? Mr. Conn ESS. I understand the counsel to wish a recess at this time. I move a recess for fifteen minutes. The Chief Ji!ST!CE. The honorable manager informs the Senate that he expects to close his evidence within a short tinn'. Mr. Manager Butler. I expect to close it with ...ertain exceptions which I shall name. iMr. CoNNESS. There appears to be a difference of opinion ; I only desire to represent the wishes of the body. I think we had better have a. recess. The Chief Justice. How long ? IMr. 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 thi-ee 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 Senate. Mr. Conness. That is not in order. Mr. Curtis. Mr. Chief Justice, it is suggested to me by my colleagues The Chief Justice. Is the motion withdrav/n ? 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 testimony on the part of the prose- cution should be closed to-day, as we suppose it will be, to ask the senators to grant to the President's counsel three days in which to prepare and arrange their proofs, and enable themselves to proceed with the defence. We find our- selves in a condition in which it is absolutely necessary to make this request, and I think, and my colleagues agree with me in that The Chief Justice. 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 adjournment, 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 appointed during the session of the Senate is that of Timothy Pickering, who 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 Gen- eral; his powers and salary, and the compensation to the assistant or clerk and 368 IMPEACHMENT OF THE PRESIDENT. deputies -whicli he may appoint, and the regulations of tlie 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 section "that this act shall continue in force until the end of the next session of Congress, and no longer." Show- ing that it was merely a continuance of the post office system that existed under the Continental Congress. Mr Johnson. Will the manager give the date of the act ? Mr. Manager Boutwell. That act was passed on the 22d of Si'ptemher, 1789. On the 4tli day of August, 1790, the Congress passed a supplementary brief act in these words : That the act passed the last session of Congress intituled an act for the temporary establish- ment of the Post Office be, and the same hereby is, continued iu force until the end of the next session of Congress, and no longer. Which was a continuance of the continental system of post office arrange- ment. 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 estab- lishment of the Post Office," be, and the same is hereby, continued in full force until the end of the next session of Congress, 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 : v , v That the act passed the last session of Congress intituled "an act to continue in force for a limited time an act entitled 'An act for the temporary establishment of the Post Office,' " be, and the same is hereby, coutirined in full force until the 1st day of June next, and no longer. This act from which I now read did not contain any provision for the estab- lishment 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 first day of June next, and no longer. Which would continue this provisional post office system until the first day of June, 1794. ' On the Sth 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 establish- ment, at the seat of the government of the United States, of a general Post Office, and that there should be one Postmaster General, which is the first act ■which provides for the appointment of a Postmaster 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 Sth day of May, 1794, declared : That this act shall be in force from tlie Jst day of June next. Which was the day on which the provisional post office department which ■was the continuance; of the contiiu-ntal sj'stem terminated. I'hat day was Sunday; but on that day fiencral Washington, who was then President, thought tit, although the Senate was nominally in session, and although it was Sunday, to make the appointment ot Timothy Pickering, as Postmaster Gen- eral. 1 suppose it will appear from the journal of the Senate that he was immediately nominated to the Senate and confirmed. This fully explains the nature of the appointment of Mr. Pickering, who is, as appears from this record, the only person who was made the head of a department by an appointment during the session of the Senate. Mr. Manager WiLSON. Mr. President, I wish to call the attention of coun- sel for the respondent to an entry on the executive journal of the Senate of the 10th of May, 1800, also of the 12th of May, ISOO, and the 13th, show- ing that the Senate at that tiihe met at an earlier hour than 12 o'clock. On page 93 of the journal of the Senate for May 10, 1800, it is entered : The Senate adjourned to 1 J o'clock on Monday morning. IMPEACHMENT OF THE PRESIDEXT. 369 On Monday mornin<^, May 12, ISOO, the Senate mot, and the manner of adjourniniMit is as follows : After the consiJciation of the executive business, the Senate adjourned to II o'clock to- morrow morning. (I'lige 94.) Tuesday, May 13, 1800. The Senate met in pursuance of said adjintrnmoiit at 11 o'clock. Mr. Manager Bingham. Mr. President and gentlemen of the Senate, we ofter in evidence several executive messages of the President of the United States, of dates respectively December 16, 18f!7 ; December 17, 1SG7 ; again, December 16, 1S67; the fourth, January 13, 1868; and the fifth, December 19, 1867. [The messages communicate information of the suspension of John H.Patter- son from the office of assessor of internal revenue for the fourth district of Vir- ginia; 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, assessor of internal revemie for the- first district of Georgia, and of John B. Lowry, postmaster at Danville, Virginia.] Mr. Manager Bingham. I also offer in evidence, Mr. President and Senators, the communication of the Secretary of State accompanying one of the messages just presented, in which, under date of December 19, 1867, he thus addresses the President of the United States : Sir: In compliance with the provisions of section two of tlie act regulating tlie tenure of certain cjvil ofltices, passed March 2, 1867, I have the honor to report that Charles Lee Moses, United States consul at Brunai, Borneo, was, during the recess of the Senate;, suspended from the functions of his otKce, and that Oliver B. Bradford, consular clerk at, Shangbae, was appointed to till 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 B[:tler. I believe now, sir, that I may inform the Seuat^e that the case on the part of the House of Representatives is substantially closed.. There may be a Avitness or two, who are on their way here, which we shall ask. on Monday morning leave to put in. Their testimony is substantially cumula- tive, not very material ; and it is possible that Ave may have left out a piece or two of documentary evidence in the nature of public documents.. Until we can examine carefully all the testimony to see that we have omitted nothing, we should not like to preclude ourselves from offering that. But Avith these imma- terial exceptions, and I trust they will turn out to be no exceptions at all, avc have closed the case on the part of the House of Representatives. Mr. Curtis. Mr. Chief Justice, the counsel for the President take no excep- tion to what is now proposed by the honorable managers. It seems to ixs quite reasonable that they should have opp:)rtunity to look over the ground and ascertain Avhether anything has been omitted, and also if they find that wit- nesses come here before the next session, whose testimony Avill be in tlie nature of cumulative evidence, Ave sliall take no exception to that. I noAv desire to submit, Mr. Chief Justice, to the Senate a motion on behalf of the President's counsel that Avhen this court adjpurns it adjourn until Thursday next, to allow to the counsel of the President three Avorking days to enable tliem to collect, collate, and arrange their proofs so as to present the defence to the Senate Avilh as little delay as practicable, and so as to make that consecutive and proper impression Avhich really belongs to it. We have been Avholly unable to do this during the progress of the trial, and before the trial Avas begun we had no time Avhatever to apj)ly to this purpose. We think we can assure the Senate that it Avill very little, if at all, proti-act tlie trial, because certainly those gentlemen of the Senate who have been in the habit of practicing law are quite aware of the fact tho-t more time is frequently 24 I P 370 IMPEACHM3NT OF THE PRESIDENT. consumocl in tlifi introduction of evidence for the want of having it properly arranged and presented than wouhl have been connmned if the proper etforts had been made outside before tlie 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 a large amount of oral testimony or a great num- ber of witnesses, but we have a very considerable amount of documentary evi- dence which we have thus far not been able to collate and arrange, and some portions which Ave have reason to suppose exist we have not yet been able to search out or find. We request, therefore, that this postponement may take place. Mr. CoNNESS. The rules forbid senators to make any explanations in the nature of debate. I therefore submit a motion, which is that when the Senate adjourn, or rather that the Senate, sitting as a court of im])eachment, shall adjourn until Wednesday next at twelve o'clock, which is the time that, in my judgment, should meet the wants of the counsel for the resjiondent. Mr. Johnson. Mr. Chief Justice, if it is in order, I move to amend the motion made by the honorable member from California by inserting " 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 inquire what is the question 1 The (;HIEF Justice. The senator from California moves that the Senate sitting as a court of impeachment adjourn until Wednesday next. The senator from Maryland moves to amend by substituting " Thursday" for " Wednesday." Senators, you Avho are in favor of agreeing to that motion will say " ay ;" those of the contrary opinion " no." [The question being taken.] The ayes have it. Mr. Cameron. I call for the yeas and nays. [No, no.] Mr. Manager Buti,er. I understood, Mr. Chief Justice, and I desire to The Chief Justice. The question recurs upon the motion of the senator from California as amended by the motion of the senator from Maryland, tliat the Senate adjourn until Thursday next, and upon this question no debate is in order. Mr. Manager Butler. That question is not debatable by the managers ? The Chief Justice. The Chief Justice thinks not. Mr. Su.MNER. On that I ask for the yeas and nays. The yeas and nays were ordered. Mr. CoNKLiNG. 1 rise for information. I wish to inquire whether the man- agers want to submit some remarks upon this motion for delay 1 The Chief Justice. The question is upon the motion to adjourn. Mr. CoNKLlNG. 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 Calilbrnia does not intend to cut them off. Mr. Manager Butler. I had, ]\Ir. President, 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 adjourn, but that avIkmi the Senate does adjourn it shall adjourn to meet on Thursday. Several senators. That is it. Mr. CoNKLING. That is certainly debatable. Th ])resent right of one of this class of officers, and the ([uestion whether any particidar Secretary comes within that rule dejiends on another cjneslion, whether his case comes within the description contained in the proviso. 'JMiere is no language which expressly brings him within the proviso ; there is no ex])ress declaration, as in the body of the section, that " he is, and hereafter shall be, entitled " merely IMPEACHMENT OF THE PRESIDENT. 379 because he holds the office of Secretary at the time of the passage of tlie law- There is nothing to bring him within the proviso, I repeat, unless the descrip- tion wjiich 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 language 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 Avords " during the term of the President," applicable to Mr. Stanton's case 1 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 after- ward be elected." By what authority short of legislative power can those words be put into the statute so that "during the term of the President" shall be held to mean " and any other term or terms for which the President may be elected? " I respectfully submit no such judicial interpretation can be put ou 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. Stanton was he holding "during the term of tlie President by whom he was appointed ? " The honorable managers say yes, because, as they say, Mr. Johnson is merely serving out the residue of Mr. Lincoln's term. But is that so under the provisions of the Constitution of tlie United States 1 I pray you to allow me to read two clauses which are applicable to this qnesiioti The first is the first section of the second article : The executive power shall be vested in a President of the United States of America. He shall hold his office duriiif^ the term of your years, and, together with the Vice-President, chosen for the same term, be 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-Presi- dent. So that, although the Pi-esident, 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 abso- lute limit. Death is a limit. A " conditional limitation," as the lawyers call it, is imposed on his tenure of ofiice. 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, ter- minates, and the otfice 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, luider these provisions of the Constitution of the United States, in calling the time during which Mr. Johnson hohls the office of President after it was devolved upon him a part of Mr. Lincoln's term, than 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 j'ears, if not sooner ended ; but if sooner ended by his death, then the office Avas devolved on the Vice-President, and the term of the Vice-Presi- dent to hold the office then began. I submit, then, that upon this language of the act it is apparent that Mr. 380 IMPEACHMENT OF THE PRESIDENT. Stanton's cai^e cannot be considered as witliin it. This law, however, as sena- tors 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 different inter- pretation should be given. But, on the other hand, if the purpose in view was one requiring 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 interpretation. 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'othc^rs and brought within this provision. Why is this 1 It is because the Constitution has provided 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 Con- stitution — "their several duties" — not, as I read the Constitution, that he may call upon the S('cretary of War for advice concerning questions arising in the Department of W^ar. He may call upon him for advice concerning question.-i which are a part of the duty of the President, as well as questions whicli belong only to the Department of War. Allow me to read that clause of the Constitu- tion, and see if this be not its true interpretation. The language of the Consti- tution is that — He [tlie President] may require the opinion in writiiipr of tlie principal officer in each of the executive departmeuts upon any subject relating to the duties of their respective ofltices. 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 familiar, 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 dis^- tinguishes 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 administration 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 departments, and emphat- ically 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 dis- charge such duties of a general descriptiou 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 Post- master General, and the Attf)rney General, are deemed to be the assistants of the President in the performance of his great duty to take care that the laws are faithfully executed ; that they sptjak for and act for him. Now, do not these two views furnish the reisons why this cla->rs at the time when tlie hiw was uiadc. Contenijiorauca crpusiliu est furtinnima in Irire. I desire to bring before the Senate in this connection, inasmuch as I think the subject has been frequently misunderstood, tin; 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 leaye to read a passage from Chief Justice Marshall's Life of Washington, IMPEACHMENT OF THE PRESIDENT. 389 where he has Piimmod up the whole. The writer says, on page 162 of the sec- ond volume of the Phihulelphia edition : After an artlont discussion, -vvhicli consumed several days, the committee divided, and the amendment was neg-atived by a niajcn-ity of thirty-four to twenty. Tlie opinion thus expres9. XOT Voting— Messrs. Anthony, Bayard, Cameron, Conness, Edmunds, Fowler, Harlan, Norton, Nye, Patterson of New Hampshire, Eamsey, Saulsbury, Sprague, Trumbull, Wade, Williams, and Wilson — 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 Senators, when the Senate adjourned I was asking attention to the fact that this practical interpretation was put upon the Constitution in 1789, and that it had been continued with the concur- rence of the legislative and executive branches of the government down to 1567, affecting so great a variety of interests, embracing so many offices, so •well known, not merely to the members of the government themselves, 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 judi- cially 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 removal in the /President alone, or in the President and Senate, or has left it to be a part of the legislative power ; but I speak of the judicial exjjosition of the eft'ect of such a practical construction of the Constitution t)f tlie United States, originated in the way in which this was originated, continued in the w.iy in Avhich this was continued, and sanc- tioned 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 vs. Laird, in 1 ('ranch's Reports, 299. It was a question concerning the interpretation of the Constitution concerning the power which the Congress had to assign to the IMPEACHMENT OF THE PRESIDENT. 391 judges of the Supreme Court circuit duties. From tliat time down to tlie deci- sion in the case of Cooley rs. The l*ort Wardens of Phihidelphia, reported in 12 Howard, 315, a period of more thau half a century, there has been a series of decisions upon the eftect of such a contemporaneous construction of the Consti- tution, 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. Aijd accordingly it will be found by looking into the books written by those who were conversant with this subject, that they have so con- sidered and received it. I beg leave to refer to the most eminent of all the commentators on American law, and to read a line or two from Chancellor Kent's Lectures, found in the first volume, page 310, marginal paging. After consid- ering this subject, and, it should be noted in reference to this very learned and experienced jurist, considering 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 conformit}' with his views of Avhat the practical needs of the government were, that the Senate should par- ticipate 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. It applies equally to every other officer of the government appointed by the President and Senate, wliose term of dura- tion is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of tlie head of that depart- ment, because he is invested generally with the executive authority, and every 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 faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfil 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 as a matter of speculation. In 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 particular 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 President in reference to this matter, to see Avhat. the theory of that law is and. what its operation 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 differ- ent pei'sons in the House of Representatives. One was that the Constitution had lodged the power of removal 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 the- ories was at that day held by comparatively few persons. The first two received not only much the greater number of votes, but much the greater weight of i-easoning 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 fx^^ar^fe 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 President and Senate — certainly an inaccuracy ; but then it required a very close scrutiny of the debates and a careful examination of the few individual 392 IMPEACHMENT OF THE PRESIDENT. opinions pxpres?ed in that debate, in tbat 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 under- stand it, it is the theory of this law which the President had before him, that both these opinions were wrong; that the 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 remarks which will be found to have been carried by him into many of his decisions,) when it comes 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 possesses it ; and, therefoie, if this be a legislative power, it was very apparent to the President of the United States, as it had been very apparent to i\Ir. Madison, as was declared by him in the course of his correspondence with Mr. Coles, which is, no doubt, familiar to senators, that if this be a legislative power the legislature may lodge it in the Senate, may retain it in the whole body of Congress, or may give it to the House of Representatives. I repeat, the President 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 unfounded 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 i-ejected 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 advocates; 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 ; but 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 he had to con- sider its constitutional 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, iliat his case Avas 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 Pn;sident 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, 1809. Now, there is one thing which has never been doubted under the Constitution, 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. Put to the President alone is confided the power of choice. In the first place, he alone can nominate. When the Senate has advised the nomina- tion, consented to the nomination, he is not 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 opin- ion of Chief Justice ^larshall in the case of iLarbury 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 ot" the case. They s^ein to fontoinplute three distinct oi)erations: 1. 'J'iic nuiiiinatiou. This is the sole act ot" the President, and i.s completely volnntary. 2. The appointment. 'I'iiis is also the act of tlie President, and is also a volnntaiy act, though it can only bo performed by and with the advice and consent of the Senate. 3. The coirunission. To prant a commission to a person appointed mig-ht, perhaps, be deemed a dnty enjonied l)y tlie Constitution. "He sliall," says that instrument, " commis- sion all the otiicers of the United States." (1 Cranch, 155.) He then goes into various considerations to show that it is not a duty en- IMPEACHMENT OF THE PEESIDENT. 393 joined by the Constitution ; that it is optional with him "whether he will commis- sion even after an appointment has b(;en confirmed, and he says : The last act to be done by the President is the signature of tlie commission. ITe has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decidi'd. His judgment, on tlie advice and consent of the Senate concurring with his nomination, has been made, aud the otlicer is apj)oiuted. (llmL, 157.) The choice, then, is with the President. The action of the Senate upon that choice is an advisory action only at a particular stage after the nominal ion, be- fore the appointment or the commission. Now. as I have said before, Mr, Stan- ton was appointed under the law of 1789, constituting the War Department, and in accordance with that law he was commissioned to hold during the plea- sure 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. Stan- ton's holding the office of Secretary for the Department of War during the pleasure of the President." What does this tenure-of-office law say, if it oper- ates on the case of Mr. Stanton? It says Mr. Stanton shall hold oflice 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 extended term, where is Mr. Stanton's commission 1 Who has made the appointment ? Who has assented to it? It is a legislative com- mission ; is is a legislative appointment ; it is assented 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 matter. If he holds at all, he holds by force of legislation, aud 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. JSTow, I ask senators to consider whether, for having formed an opinion that the Constitution of the United States had lodged this power with the Presi- dent — an opinion which he shares with every President who has preceded him, with every Congress which has preceded the last ; an opinion formed on the grounds which I have imperfectly indicated; an opinion which, when applied to this particular case, raises the dithculties which 1 have indicated here, arising out of the fact that this law does not pursue either of the opinions which were originally held in this government, and have occasionally been started and maintained by those who are restless under its administration; 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 is he 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 w^as right in its opinion? Strangely enough, as it struck me, the honorable managers themselves say, "No; he is not to be impeached for that " I beg leave to read a passage from the argument of the honorable 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 Senate of the 21 st ot February, informing them of the removal, but not suggesting this purpose, which is thus shown to be an afterthought, he would have said, in sub'stauce : "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 unconstitutional and void, I have issued an order of removal of E. 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 icarranto, which I intend the Attorney General shall file 394 IMPEACHMENT OF THE PRESIDENT. at an early day, by saying tliat lio holds the oifice of Secretary of War by the appointment and authority of Mr. Lincoln, which has never been revoked. Anxious that there shall be no collision or disajjreement 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 tlie action itself, for the purpose indicated, may meet your concurrence." Thus far are marks of quotation showing the communication which the Pres- ident .should have obtained from the honorable manager and sent to the Senate in order to make this matter exactly right. Then follows this : Had the Senate received .s.i;ch a message the representatives of the people might never liave deemed it necessary to impeacli 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 w^hich the President communicated the fact of that removal to the Senate after it was made. That manner is here, called the "defiant message" of the 21st of February, That is a question 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 manners Avell or ill taken, one thing seems to be quite clear : that the President is not impeached here because he entertained an opinion that this law was unconstitutional ; he is not impeached here because he acted on that opinion and removed Mr. Stanton ; but he is impeached here because the House of Representatives 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 senators, to another topic connected with this matter 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-of-otfice act 3Ir. Stanton be within it, or even if you should believe that the President thought the law unconstitutional and had a right, if not trammelled in some way, to try that question, still by his own conduct and declarations the President, as they phrase it, is estopped. He is not to be permitted here to assert the true interpretation of this law ; he is not to be permitted to allege that his purpose was to raise a question concern- ing its constitutionality ; and the reason is that he has done and said certain things. All of us who have read law-books know that there i:iin the common law a doctrine called rules of estop})el, founded, undoubtedly', on good reason, although, as they are called from the time of Lord Coke, or even eailier, down to the present day, odious, because they shut out the truth. Nevertheless, there are circumstances when it is proper that the truth should be shut out. What are the circuinstances 1 They are where a question of private right is involved, where on a matter of fact that private right depends, and whei*e one of the par- ties to the controversy has so conducted himself that he ought not in good con- science to be allowed either to assert or d(;ny that matter of fact. But did any one ever hear of an estoppel on a matter of law 1 Did any one ever hear that a party had put himself into such a condition that wheir he came into a court of justice even to claim a private right, he could not a.-^k tlu^ 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 Avas convicted of ci^nne 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 Irani ofiicc, not by reason of the truth of his case, but because; he is estopped from telling it, would be a spectacle for gods and men. Undoubtedly it would have a place in history which it is not necessary for me to attempt to foreshadow. There is no matter of fact here. Tln'y ha\'c themselves put in ]\[r. St.-mton's commission, which shows the date of the coinmi.-^sion and the terms of the com- mission ; and that is the whole matter of fact which is involved. The rest is IMPEACHMENT OF THE PRESIDENT. 395 tlie constnTction of the tcnure-of-office act and tlic application of it to the case, which they have tlius made themselves ; 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 Pres- ident 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 extraordinary 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 1 In the first place, he sent a mes- sage to the Senate on the 12th of December, 1S67, in wliich 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 exercise 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. It is complained of by the honorable managers that he did not tell the Senate that if their action should be such as to restore Mr. Stanton practically to the possession 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 so insist upon here, would hardly dictate that the President should have held out to the Senate something 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 aiiect 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 inconsistency in that 1 Is not that done every day, or something analogous to it, in courts of justice ? And where was the inconsistency on this occasion ? Suppose the President had summed up the message which he sent to the Senate in this way : *' Gentlemen of the Senate, I insist, in the first place, that this law is unconstit- utional ; I insist, in the second* place, that Mr. Stanton is not within it; I respectfulh^ 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 ease 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 inconsist- ency then ? And why is not the substance of that found in this message 1 Here it is pointed out that the question existed whether the law was unconsti- tutional ; here it is pointed out that the question existed whether Mr. Stanton was within the law ; and then the President goes on to submit for the considera- tion of the Senate, 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 Avas 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 396 IMPEACHMENT OF THE PRESIDENT. avoid a colli. act of 1789, and at the })li'a8ure of th(! President, the moment he received that order which General Thomas car- ried to him there was a vacancy in point of law, however he may have refused to perform his duty and prevented a vacancy from occurring in point of fact. But the Senate will perceive these two letters were to be del vered to Gen- eral Tl onias at the same time. One of them is an order to Mr. Stanton to vacate ihe office ; the other is a direction to General Thomas to take possession when Mr. Slautou obeys the order thus given. Now, may not tiie President of IMPEACHMENT OF THE PRESIDENT. 405 the United States issue a letter of authority in contemplation that a vacancy is about to occur 1 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 bis 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 vio- lating the C'onstitution 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 eqvially 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 office 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 honorable managers to construct a case of an intention on the part of the President to violate the Constitution of the United States out of anything which he did in reference to the 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 prop- erly enough, I suppose, be called the conspiracy articles, because they rest upon charges 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, 1861, which is found in 12 Statutes at 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 chai-ged are called unlawful, but there is no law referred to and no case made by the articles 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 together, because I think they belong in that order. In the first place, let me consider 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 conspira- cies." It provides — That if two or more persons -within any State or Territory of the United States shall conspire together to overthrow or to put down or to destroy by force the goverumeut 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 prevent, hinder, or delay the execu- tion 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. These are the descriptions of the offences. The fourth and sixth articles contain allegations that the President and General Thomas conspired together by force, intimidation, and threats, to prevent Mr. Stanton from continuing to hold the office of Secretary for the Department of War; and also that they conspired together by force to obtain possession of property belonging to the United States. These are the two articles which I suppose are designed to be 406 IMPEACHMENT OF THE PRESIDENT. (liawn under this act ; and these are the allegations which are intended to bring the articles within it. Now, it docs seem to me that the attempt to wrest this law to any hearing 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 apply to the President of the United States, or to any act he miglit do in the course of the execution 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 persous within any State or Territory 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 done in the District of Columbia and returned into the proper court of this District, I will undertake to say, would not bear a general demurrer, because there is locality given to those things made penal by this act of Congress. 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 opinion that Mr. Stanton holds the office of Secretary for the Department of War at his pleasure. 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, because he believes that it Avould be judicially decided, if the question could be raised, that a law depriving the President of the power of removing such an oiUcer at his pleasure is not a constitutional law. He is of opinion that in this case he cannot allow this officer to continue to act as his adviser and as his agent to execute the laws if he has lawful power to remove him ; and under these circum- stances he gives this order to General Thomas. I do not view this letter of authority to Ceneral 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 relates is the performance of services essential to carry on the military service ; and, therefore, when such an order was given by the Commander-in-chief to the Adjutant General res])ecting a subject of this kind, is it too much to say that there was invoked that spirit of military obedience which constitutes the strength of the service ? Not that it was a purely military order; not that General Thomas would have been subject to a court-martial for disobeying it ; but that as a faithful Adjutant General of the army of the United States, interested per- sonally and })n)fessionally and patriotically to have the duties of the office of Secretary for th(! Department of War performed in a temj)orary vacancy, was it not his duty to accept the appointnu-nt unless he saw and knew that it was unlawful to accept it ? 1 do not know how, in fact, he personally considered it; there has been no proof given on the subject; but 1 have always assumed — I think senators will assume — that when the distinguished (general of the army of the United States, on a juevious occasion, accepted a similar appointment, it was under views of propriety and duty such as those which 1 have now been speaking of; and how and why is thereto be attributed to General Thomas, as a co-conspirator, the guilty intent of designing to overthrow the laws of his coun- try, when a fair and just view of his cpnduct would leave him entirely with- out reproach ? And wh( n you come, spnators, to the other co-corspirator, the President of the United Stales, is not the case still clearer i* INIake it a case of priyate right, if you please ; put it as strongly as possible against the President in order to IMPEACHMENT OF THE PRESIDENT. 407 test the question. One of you has a claim to property; it may be a disputecl claim; it is a claim which he believes may prove, when judicially examined, to be sound and good. He says to A. B., " Go to C. D , who is in possession 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 con- spiracy ? Does not every lawyer know that the moment yoia introduce into any transaction of tlds kind the clement of a claim of right all criminal elements are purged at once ; and that this is always trvie 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 public duty, of public right claimed upon constitutional grounds and upon the interpretation of the law which had been given to it by the law-makers themselves. How can the President of the United States, under such circumstances, be looked upon by anybody, whether he may or may not be guilty or not guilty of other things, as a co-conspirator under this act ? These articles say that the conspiracy between the President and General Thomas was to employ 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 possession from Mr. Stanton when he delivers it up. No force is assigned to liim ; 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 any- thing 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 President from the first had iu 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 Presi- ^ dent I'eceived on this subject, what views in concert with his advisers he enter- tained, 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 distinction between them and the others is that they are not founded upon this conspiracy act of 18C1 ; they simply allege an unlawful conspiracy, and leave the matter there. They do not allege suliicient facts to bring the case within the act of 186 1. In other words, they do not allege force, threats, or intimidation. I shall have occasion to remark upon these articles when I come to speak of the tenth article, because these articles, as you perceive, come within that category which the honorable 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 but a 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 himself - as Commander-in-chief of the army for the p irpose of instructing him to dis- obey 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. Stanton from continuing to hold office. Now I submit that not only does this article fail of proof in its substance as "thus 408 IMPEACHMENT OF THE PRESIDENT. d' tailed, but that it is disproved by the witness whom they have introduced to support it In the first phice, it appears clearly from General Emory's state- .itient that the President did not bring him therefor any purpose connected with this appropriation bill aflfecting the command of the army, or the orders given to the army. This subject General Emory introduced himself, and when the conversation was broken off it was again recurred to by himself asking the President's permission to bring it to his attention. "Whatsoever was said upon that subject 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 previously '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 his consti- tutional right as the commander-in-chief of the army ; and that is what he said to General Emory. There is not even probable 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 something on the subject; and if he said anything, was he not to tell the truth 1 That is exactly what he did say : I mean the truth as he apprehended 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 that distinguished officer from his allegiance to the laws and the Constitution 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 inqui*-y the question presents itself : What are impeach- able offences under the Constitution of the United States ? Upon this ques- tion 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 prosecution. Another one on the other side of the question, written by one of the honorable managers themselves, may be found annexed to the proceed- ings in the House of Representatives upon the occasion of the first attempt to impeach the President. And there have been others written and pul dished by learned jurists touching this subject. I do not propose to vex the ear of the Senate with any of the precedents drawn from the middle ages. The framers of our Constitution were quite as familiar with them as the learned authors of these treatises, and the framers of our Constitution, as I conciive, have drawn from them the lesson which 1 desire the Senate to receive, that these prece- dents are not fit to govern their conduct on this trial. In my apprehension, the teachings, the rcHpiirements, the prohibitions of the Constitution of the United States prove all tliat is necessary to be attended to for the purposes of this trifll. 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 rep(!ated since, to come nearer home and see what provisions of the Constitution of the United States bear on this ques- tion, and wheiher they are not sufficient to settle it. If they are, it is quite imamterial what exists elsewhere. IMPEACHMENT OF THE PRESIDENT. 409 Mj first position is, that when the Constitution speaks of "treason, brinerv, and other high crimes and misdemeanors," it refers to, and includes only, high criminal offt'nces against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution ou the subject of impeachment. " Treason " and " bribery." Nobody will doubt that these are here desig- nated high crimes and misdemeanors against the United States, made such by the laws of the United States, which the framers of the Constitution knew must be passed in the nature of the government they were about to create, because these are offences which strike at the existence 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 Constitution — in the very first step it takes ou 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, otherwise there is no crime. My interpretation of it is that the language "high crimes and misdemeanors" means "offences against the laws of the United States." Let us see if the Constitution has not said so. The first clause of the second section of the second article of the Constitu- tion reads thus : The President of the United States shall have the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. "Offences against the United States" would include "cases of impeach- ment," 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 offences 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 capacity, are comprised in their participation with the Executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments, as in the business of appointments the Executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will therefore con- clude this head with a view of the judicial character of the 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 Constitution 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 power to 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 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 acquital or a conviction ou 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 conviction. Judgment in cases of impeachment shall not extend further than removal from office and distiuaiilication to hold any office of honor, trust, or profit under the United States. 410 IMPEACHMENT OF THE PRESIDENT. Here, then, there is the trial of a crime, a trial by a tribunal designated by the Constitution in place of court and jury ; a conviction, if guilt is proved ; a judgment on that conviction ; a punishment inflicted by the judgment for a crime ; and this on the express terms of the Constitution itself And yet, say the honorable 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 Con- stitution of the United States has designated impeachable oflFcnccs as oflPences against the United States ; that it has provided for the trial of those offences ; that it has established a tribunal for the purpose of trying them ; tliat 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 main- tained that this is not a court, or that it is bound by no law 1 But the argument does not rest mainly, I think, upon the provisions of the Constitution concerning impeachment. It is, at any rate, vastly strengthened by the direct prohibitions of the Constitution. " Congress shall pass no bill of attainder or ex post Jacto law." According to that prohibition of the Constitu- tion, if every member of this body, sitting in its legislative capacity, and every member of the other body, sitting in its legislative capacity, should unite in pass- ing a law to punish an act alter the act was done, that law would be a mere nullity. Yet what is claimed by the honorable managers in behalf of members of this body 1 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 Constitution which has made it a bill of i-ights of the American citizen, not only as against Congress but as against tlie 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 inveniatn autfaciam : if I cannot find a law I will make one. Nay, it has clot led every oite of you with imperial power; it has enabled you to say, sic volu, sic juheo, statproratione 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 administer impartial justice in this case according to the Constitution and the laws, he meant such laws as he might make as he went along. The Constitu- tion, which had prohibited anybody from making such laws, he swore to observe ; 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 special provision of the Con- stitution, that when the Senate sits in this capacity to try an impeachment the senators shall be on oath, means mendy that they shall swear to follow their own individual wills! I respectfully submit, this view cannot consistently and pro- perly he taken of the character of this body, or of the duties and powers incum- bent upon it. Look for a moment, if you please, to the other provision. The 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 Con- stitution a positive and absolute prohibition against any bill of attainder. What is a bill of attainder 1 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 legis- lative capacity tiny act, not in a judicial one — is, to use the phrase of the hon- orable managers, " a law unto himself," and according to his discretion, his views of what is politic or proper under the circumstances, he frames a law to meet IMPEACHMENT OF THE PRESIDENT. 411 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 oidy slightly modified. It is only necessary for the House of Representatives by a 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 princi- ples as a bill of attainder in the English Parliament. The individual wills of the Ifgiir^lators, 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 managers to obtain a conviction upon this tenth article is attended with some peculiarities which I think it is tiie duty of the counsel to the Presi- dent to advert to. So far as regards the preceding articles, the first eight arti- cles are framed upon allegations that the President broke a law. I suppose the honorable managers 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 unquestionaljly, 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 criminal intent wilfully to break the law, before the articles can be supported. But we come now to this tenth article, which 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 statement here would be much more restricted than that ; for although in those speeches the President used the word "Congress," undoubtedly he did not mean the entire constitutional body organized under the Constitution of the United States ; he meant the dominant majority in Congress. Everybody so under- stood 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 1 One of the parties spoken against. And who are the triers 1 The other party spoken against. One would think there was some incongruity in this ; some reason for giving pause before taking any very great stride in that direction The honorable House of Representatives sends its managers here to take notice of what 1 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 judgment of this body whether the President has not been guilty of indecorum, whether he has spoken properly, to use the phrase of the honorable manager. Now, .there used to be an old-fashioned notion that although then; 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 open- ing the case, finding, I suppose, that it was necessary, in some manner, to ad- vert to that subject, has done it in terms which I Avill read to you : The words are not alleged to be either false or defamatory, because it is not within the power of aijy 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. 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 pre- cedents 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 Richaid 412 IMPEACHMENT OF THE PRESIDENT. II, ch. 1, a short passage. The statute 3 Edward I, ch. 34, after the preamble, enacts : That from henceforth none be so hardy to teU or publish any false news or tales, whereby discord ur occa-iion of discord or slander may grow between the King and his people, or the great men of the realm ; and he that doeth so shall be taken and kept in until he hath hrought him into court which was the first author of the tale. The statute 2 Richard II, ch. 1, sec. 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 chancellor, treasurer, clerk of the privy seal, steward of the King's house, justices of the one bench or of the other, and of other great ofiicers of the realm. The great men of the realm in the time of Richard II were protected only against " horrible and false lies," and when we arrive in the course of our national experience during the war 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 sec- tion 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 offences; but the estimate of the elevation of Congress above the people was not so high but that it was thought proper to allow a defence of the truth to be given in evidence. I beg leave 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, uttering, or publishing any false scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said govern- ment, or either house of the said Congress, or the said President, or to bring them, or either or any of them the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, Sec. 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 deleudant, upon the trial of the cause, to give in evidence in his defence the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall 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 vyiumo of Mr. Madison's works, pages 542 and 547, passages which, in my judgment, are as masterly as anything Mr Madison ever wrote, upon the relations of the Congress of the United States to the people of the United States in contrast with the relations of the government 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 the British government and the American Constitution will place this suljject in the clearest liglit. In the IJritish government tlie danger of encroachments on the rights of the jieople is understood to be confined to the executive magistrate. The representatives of the people in the legislature arc only e.\empt themselves from distrust, but are consideied as sufficient gmudians of tin- rights uf tln'ir constitiiints against the danger from the executive. Hence it is a i)rinciple that the Parliament is luilimited in its power, (U', in their own language, is onniipotent. Hence, too, all the ramparts for protecting the rights of tiie people — such as their Magna Charta, their iJill of Kights, &c. — are not reared against tlie Parliament, but against the royal prerogative. The}- are merely U^gislative precautions against executive usur[)ations. Under such a goveriniient as tiiis, an exemption of tlie press from previous restraint, by lici^nsers appointed by the King, is all the freedom that can be secured to it. In the United Stales the ea.se is ahog<-tlicr different. The people, not tiie government, possess the absolute sovereignty. The legislature, no less tinin the executive, is under limi- tations of power. Encroachments are regarded as possible from tlie one as well as from tlio Other. Hence, in the United States, the great and essential riglits of the people are secured IMPEACHMENT OF THE PRESIDENT. 413 against legislative as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount 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 efl'ectual, must be an exemption not only from the previous inspection of licenses, 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. Tlie Constitution supposes that the President, the Congress, and each of its houses may not discharge their trusts, either from defect of judgment or otlier causes. Hence they are all made responsible to their constituents at the returning periods of election ; and the Presi- dent, who is singly intrusted with very great powers, is, as a further guard, subjected to an intermediate impeachment. 2. Sliould 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 be brought into contempt or disrepute, and incur tlie hatred of the people. 3. Whether it has, in any case, happened that the proceedings of eitlier or all of those branches evince such a violation of duty as to justify a contempt, a disrepute, or hatred among the people, can only be determined by a free examination thereof, and a free commu- nication among the people thereon. 4. Whenever it may have actually happened that proceedings of this sort are chargeable on all or either of the brandies of the government, it is the duty, as well as right, of intelli- gent and faithful citizens to discuss and promulge them freely, as well to control them by the censorship of the public opinion as to promote a remedy according to the rules of the Constitution. And it cannot be avoided that those who are to apply tlie remedy must feel, in some degree, a contempt or hatred against the transgressing 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 common-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 not be deemed applicable, and that the freedom provided lor by the Constitution, so far as the action of Con- gress 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 com- mon law no man was ever punished criminally for spoken words. If he slan- dered his neighbor and injured him, he must make good in damages to his neigh- bor 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 Congress in restraint of the freedom of speech is necessarily an absolute prohibition ; and therefore this is a case not only where there is no law made prior to the act to punish the act, but a case where Con- gi-ess ia expressly prohibited from making any law to operate even on subse- quent acts. What is the law to be ? Suppose it is, as the honorable managers seom to think it should be, the sense of propriety of each senator appealed to. What is it to be? The only rule 1 have heard, the only rule which can be announced, 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 pro- hibition of the Constitution. That is the same freedom of speech, senators, in consequence of which thousands of men went to the scaffold under the Tudors and the Stuarts. Tliat is the same freedom of speech whicli caused thousands of heads of men and of women to roll from the o-uillotine in France. That is 414 IMPEACHMENT OF THE PRESIDENT. the same freorlora of speech which has caused in our day, more than once, " order to reigii in Warsaw." The persons did not speak properly in the apprehension of the judges before whom they were brought. Is that the freedom of speech intended to be secured by our Constitution? 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 understand 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 appeai-ance, that the honorable managers, looking over the work they had already performed, perhaps not feeling perfectly satisfied to leave it iu the shape in which it then stood, came to the concision to add this eleventh article, and they have compounded 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 accordingly 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 enter- tained 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 Congress to legislate, and fol- lowing up its intent he endeavored to remove Mr. Stanton. I have sufiiciently 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 endeavor- ing to ge*' 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 better government of the rebrl States," passed in March, 1867, and iu support of that they have offi'red a telegram to him 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 subjec*. I leave, therefore, with these remarks, that article for the consideration of the Senate. It must be unnecessary for me to say anything 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 injus- tice 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. Co.NNKS.s, (at two o'clock and twenty miiuitcs 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 minutes to three o'clock. The Chi KF Justice. Senators will please resume their seats and give, their attention. Gentlemen of counsel for the President, you Avill please proceed with the defence. Mr. STA.\nKF{Y. We will call General Thorn is first. IMPEACHMENT OF THE PRESIDENT. 415 Lorenzo Thomas sworn and examined. By Mr. Stanbery : Q. General Thomas, will you state how long you have been in the service ? A. I went to West Point in the year 1S19. I entered the Military Academy in September of that year, and was graduated July 1, lS2o, and appointed second lieutenant of the fourth infantry. I have been in the army since that date. Q. What is your present rank in the army ? A. I am Adjutant General of the army, with the rank of brigadier general, and major general by brevet. Q. When was your brevet conferred 1 A. I really forge^. I would have to refer to the Army Register for that. Q. Can you recollect the year 1 A. Yes, sir ; it was after 1 returned from one of my southern trips. Q. During the war 1 A. Yes, sir. Q. Toward the close of it? A. Toward the close of it. I was first made a colonel, as Adjutant General, on the 7th of March, when Colonel Cooper went out. Q. When were you first appointed Adjutant General ? A. On the 7th of March, 1861. Q. On what service were you during the war, generally ? Give us an idea of your service. A. During the administration of the War Department by General Cameron I was on duty as Adjutant General in the ofiice. I accompnnied him on his western trip to MisBouri and Kentucky, and returned witli him. Then, after that, after making that report, he left the department, and .\[r. Stanton was appointed. I remained in the department some time after Mr. Stanton was appointed — several months. The first duty he placed me on from the ofiice — at any rate as one of the duties — he sent me down on the James river to make exchanges of prisoners of war under the arrangement made by General Dix with the rebels. Mr. Manager Butler. To what point is this evidence? Mr. Sta.nbery. 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 ? A. During the war I was sent once or twice, three times, perhaps, to Harris- burg to organize volunteers and to correct some irregularities there ; not irregu- larities 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 Ilarrisburg. I was sent to Harrisburg also about the time that Lee was invading Maryland and Pennsylvania ; but my principal duty was down on the Mississijipi river. Q. What was the duty there ? A. 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 Bctler. Will not that appear better by the order? The Witness. I have it. Mr. Stanbery. The orders are here, but it will take a great while to intro- duce them. Mr. Manag(?r Butler. Very well. Mr. Stanbery. I will ask him nothing but what he has performed. (To the witness.) What was the third duty? A. To take charge of the negro population and organize them as troops. 416 IMPEACHMENT OF THE PRESIDENT. Q. Were you the first officer who organized negro regiments ? A. No, sir. Q. Who was prior to you 1 A. I tliiiik 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. Q. What number of regiments were organized under your care ? A. I organized upwards of eighty thousand colored sol liers. The particu- lar number of regiments I do not recollect, because they were numbered some with those in New Orleans ami some \vith those in the east. Q. After that service was performed what was the next special duty you were detailed on ? A. I returned to this city after I heard of the surrender of Lee. I w:i3 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 Geneial's office throughout th(; country, first at Washington, and then throughout the loyal States. I performed that service. Q. What next ? A. My last service was, I was ordered throughout the United States to exam- ine the national cemeteries under a law passed by Congress. That duty I have performed ; but my report is not yet in. It is very voluminous. Those are the duties that I have performed. Q. Did those duties fall under your proper duties as Adjutant General ; and in what capacity 1 A. Perfectly so. As Adjutant General I am ex officio inspector of the army, and these duties are germane to it. Q. This duty of inspection of the cemeteries was the last special duty that you have been called upon to perform ? A. Yes, sir. Q. When did you return from having performed that last special duty ? A. I came to Washington on three different occasions. I would come here and then would go back. Q. When did you return from this last duty or this last detail upon the national cemetery business ? A. I do not think I can give the precise date ; but it was about the close of last year. Q. Toward the close of the year 1867 ? A. Yes, sir. Q. You say you had then completed this last duty or service ? A. I had visited every State where the cemeteries were. The only ones I have not visited are two very small ones near this city. 1 left them till the last. Q. You were then ready to make your report ? A. 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. Q. You have not since been detailed upon any other special service except about this War Department '( A. No, sir ; I was engaged in making tliis re|)ort, and I continued on that duty until I was placed in cliarge of the At'.jutaut General's office. Q. At what date were you returned to your Adjutant General's office? A. The President sent for me and gave me a note to General (Jrant, dated the 13th of February. Geiu-ral Grant's note to me in answer to that, putting me in charge;, was dated the next day — the 14rh Q. Who had occupied your office during your absence? A. General E D. Townsend, assistant adjutant general. Q. Your assistant'!* A. My first assistant, with the rank of colonel. IMPEACHMENT OF THE PRESIDENT. 417 Q. Then you never lost your position as Adjutant General? A. Never, Q. Did you apply to tbc President to restore you ? A. I spoke to the President on two or three occasions, some months ag'o, 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 occasion I did not mention it to him. Mr. Manager Butler. Stop a moment. I wisli to object in limine to anjr conversation between this person and the President. Mr. Stanberv. 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. I do not object to that fact; but I do not want this conversation. Mr. Stanbery. I do not want any conversation now. (To the witness.) You applied once or twice to him before to restore you? A. I stated that that was my wish. Q. On the 13th of February you received the order which you had reqiiested, before, restoring you to your position ? A. Yes, sir. It was not a note to me; it was a note to General Grant. Q. But that note restored you to your position ? A. Yes, sir, Q. When, after that, did you see the President, and what did he say to you or did you say to him between that time and the time you received your order on the 21st? A. On one occasion I went over to take him some resignations Q. After you had been restored to your office ? A. Yes, sir; some resignations that Mr. Stanton gave me which were on his table. Q. To take over? A. Yes, sir. Q. 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 lead- ing, and so grossly leading, in my judgment, that it is almost intentional, " Was that the first occasion 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. Sta.mbery. We will come to it in another way. (To the witness.) Do you recollect what occurred on the 21st of February ? A. 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 ? A. 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 Febru- ary, and he directed me to do it. I issued such a circular and sent it around to the different departments. Q. Was that an order made by you as Adjutant General ? A. Yes, sir; by his order. Q. Was that before you had seen the President that day ? A. Yes, sir. Q. Now, what took place after you had issued that order ? A. Very soon after I had issued it I received a note from Colonel Moore, the private secretary of the President, that the President wished to see me. I immediately went over to the White House, and saw the President. He came out of his library with two communications in his hand. 27 I P 418 IMPEACHMENT OF THE PRESIDENT. Q. He came out with two papers in his hand ? A. Yes, sir. He haudecl them to Colouul 3Ioore to read. They were read to me. Q. Read aloud ? A. Read aloud. One was addressed to Mr. Stanton, dismissing hira from office, and directing him to turn over the books, papers, iScc, pertaining to the War Department ; the other was addressed tome appointing me Secretary of War ad interim, and stating that i\Ir. Stanton had been directed to transfer the office. Q. Was that the first time you saw those papers, or either of them ? A. The first time. Q. You had no hand whatever in writing those papers or dictating them 1 A. Nothing whatever. Mr. Manager Butler. Excuse me ; that is very leading again. Mr. Stamberv. Well. (To the witness.) AVhat was said by the President at that time to 3'ou or by you to the President ? Mr. Manager Butlkr. Do you propose to put in conversations Mr. Stanberv. I do. Mr. Manager Butler. Between this party and the President ? Mr. Staxbery. Right there, certainly. (Handing him the papers ) Mr. EvARTS. Which they put in evidence. Mr. Manager Butler. I will not interpose the objection here, sir. By Mr. Stanberv : Q. What, then, was said between you and the President ? A. He said he was determined to support the Constitution and the laws, and ihe desired me to do the same. [Laughter.] Mr. Manager Butler. I do not object. The Witness. I told him I would. By Mr. Stanbery : Q. What further took place or was said ? A, He then directed me to deliver this paper addressed to Mr. Stanton to him. Q. Was that all ? Did you then leave 1 A. I told him that I would take an officer in my department with me to see "that I delivered it and note what occurred, and I stated that I would take 'General Williams. Q. Who is General Williams 1 A. One of the assistant ailjutant generals in my department on duty there. Q. You told the President you would take him along to witness the transac- itioa 1 A. Yes, sir.. Q. What did you do then ? A. I Avent over to the War Department, went into one of my rooms, and told General Williams I wished him to go with me ; 1 did not say for what pur- pose. I told him I wanted him to go with me to the Secretary of War and note what occurred. Q,. Without telling him what it was you intended ? A. I did not tell him anytliing about it. I then went to the Secretary's room and handed him the first jiaper. Q. When you say the first paper, which was that ? A. The paper addressed to him. Q. What took place then ? Did he read it ? A. He got up when I came in, and wo bade good morning to each other, and I handed him tliat paper, and he put it down on the corner of his table and sat down. Presently lie got up and opened it and read it, and he then said, " Do IMPEACHMENT OP THE PRESIDENT. 419 jon wish me to vacate the office at once, or will you give mc time to remove my private property V I said, ''Act your pleasure." Q. Did he say what time he would require 1 A. No, sir ; I did not ask him. I then handed him the paper addressed to me, which he read, and he asked me to give him a copy. Q. What did you say ? A. In the mean time General Grant came in, and I handed it to him. Gen- eral Grant asked nie if that was for him. 1 said no ; merely for his information. I promised a copy, and I went down. Q. Down where ? To your office ? A. Into my own room. Q. Your own room is below that of the Secretary ; on the first floor ? A. Below General Schriver's room — the one opposite the Secretary's. Q. It is on the lower floor 1 A. Yes, sir. Q. You went down and made a copy of the order ? A. I had a copy made, which I certified as Secretary of War ad intnim. 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. Q. Was General Grant there at the second interview ? A. No, sir. Q. The Secretary was alone, then ? A. He was alone. His son may have been there, because he was generally in the room. Q. Did General Williams go up with you the second time ? A. No, sir. Q. What time of the day was this ? A. I think it was about 12 o'clock that I went up to see the Secretary, and this v.'as just after I came down and wrote the order — it was toward 1 o'clock, I suppose. Q. It was immediately after you had written the order to close the office 1 A. Yes; I got the note immediately after from Colonel Moore. Q. Was that all that occurred between you and the Secretary on that day, the 21st? A. I think it was. [After a pause.] No, no; I was confounding the 22d with the 21st. Q. What further ? A. I went into the other room and he was thei'e, and I said that I should issue orders as Secretary of War. He said that I should not ; he would countermand them, and he turned to General Schriver ani 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 : Q. Do I understand that this was the 21st ? A. I think it was the 21st. By Mr. Sta.\bery : Q. The 22dor 21st? A. The 2 1st, I think. What brings it to my mind is, he wrote a note which he hand'.'d me prohibiting me from acting ou the subject. Q. Have you got that note 1 A. I think I gave it to you. I have some here; probably it may bo among them. I will look. The note is dated February 21 ; I know that."' Q (Presenting a paper to the witness.) See if that is the order that he then gave you ? 420 IMPEACHMENT OF THE PRESIDENT. A. That is it. Q. I see the body of it is not in Mr. Stanton's handwriting 1 A. He dictated it to General Townsend. That is his handwriting. A copy was made of it, and Mr. Stanton signed it, and handed it to me. Q. Will you read it, if jon please ? A. "War Department, Washington city, February 21, 186S" Mr. ]\[anager Butler. Stop a moment, if you please. Let us see that paper. (The paper Avas thereupon handed to the managers and examined by them.) Mr. Manager Butler. We have no objection. Mr. Stanbery, (to the witness.) Now read it, if you please, general. The witness read as follows : War Department, Washington City, February 2], 1868. Sir: I am informed that you presume to issue orders as Secretary of War ad interim. Such conduct and orders are illegal, and you are hereby commanded to abstain from issuing any orders other thau in your capacity as Adjutant General of the army. Your obedient servant, EDWIN M. STANTON, Secretary of If'ar, Brevet Major General L. Thomas, Adjutant General. Q. Did you see the President after that interview ? A. I did. Q. 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 observed, upon reflection, to any orders or directions which the President gave, or any conversation had between the President and General Thomas at the time of issuing the commission. But now the commis- sion has been issued; the demand has been made ; it has been refused ; and a peremptory order given to General Thomas to mind his own business and keep out of tlie War Office has been put in evidence. Now, I suppose that the President, by talking with General Thomas, or General Thomas by talking with the President, cannot put in his own declarations for the purpose of mak- ing evidence in favor of himself. The Senate has already ruled by solemn vote, and in consonance, I believe, with the opinion of the presiding officer, that there were such evidences 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 tribu- nal, Avhether a judicial court or any other body of triers, testimony can be given of what the respondent said in his own behalf, and especially to his ser- vant, and a fortiori to his co-conspirator. A conspiracy being alleged, can it be that the I'rcsident 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. I'hat has been done ; that is, if he cm be removed at all. I understand the argument just presented to us by the learned counsel who is absent, after having delivered his argununt, 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. Ass^uming, however, the correctness of another jiart of his argument, to wit, that the only power of removal remained in the I'residcnt or in the President and the Senate — assuming that to be true, and therefore that he could not be quite right in liis idea tliat the c^uestion of removal depended upon ]\Ir. Stanton's legs in walking out, because everything had been done but that — assuming tliat that portion of his argument is the better one, we insist that there was a removal, there was au IMPEACHMENT OF THE PRESIDENT. 421 appointment, and tliat is the act, 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 going and talking with the President, nor the President with Mr. Thomas. Even supposing that the act was as innocent a thing as a conspiracy to get up a lawsuit, after the conspiracy had taken place and it had eventuated in the act, then they could not put in their declarations. True, there is not much evidence of any such conspirac}', 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 declarations of the parties, one to the other. There- fore, in limine, I must object ; and I need not go &x\y 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. Staabery. Mr. Chief Justice, if I understand the case as the gentle- man 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 understand. Mr. Stanbery. You say the transaction stops with issuing the order for his removal. Mr. Manager Butler. That transaction stops. Mr Stanbery. Does not yx>ur conspiracy 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 gave 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 honorable manager to say that that order, according 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 lo;arned 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 transaction 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, because that was the transaction ; that was the res gesUe. Does the learned gentleman forget his testimony ? Does he forget how he attempted to make a case? Does he tbrget, 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 exe- cuted by the exhibition of force, intimidation, and threats ; and to prove that what has he got here ? The declarations of General Thomas, not made under oath, as we propose to have them made, but his mere declarations, when the 422 IMPEACHMENT OF THE PRESIDENT. President was absent and could not contradict liim — not, as now, under oatli, and all the conversation when the ]^rcsident was present and could contradict or might admit. The honorable manager has gone into all that to make a case against the President of conspiracy ; and not merely that, hut 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 President in this conspiracy, as a party to a conspiracy 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-couspirator 1 Is his mouth shut by a prosecution 1 Not at all. He is free as a witness — brought here and swprn. 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 consjiire by himself. And now vre contradict by this testimony, and have a right to con- tradict 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 not only at 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 report to the President that Mr. Stanton refused to surrender the office, the President still gave no directions and entered into no conspiracy 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 prof'iss 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 testimony 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 Butlrr. Mr. President, I think I must have made myself very illy understood 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 Ave proved that he said to ]Mr. Bur- leigh ; he will be a bold man to say he did not s;iy it, however ; not that they shall not prove that he did not say what we proved he said to Mr. Karsuer, although 1 should think my leai-ned 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 if has not been met nor touched by the arguinent,) is that it is not competent to show that Mr. Thomas did not say to Mr. Burleigh that hi; mi^ant to use force, by proving what was said between Mr. Thomas and the J'resident ; that the President cannot put in his declaration ; and I challcMige again a law book to be brought in before this Sen- ate — common law, parliamentary law, constitutional \•,\^v, statute law, or ''law unto ours(dvc8" — 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 com- plained of, when he is on trial for that act, he can bring his servant, his co-con- spirator, and show what he said to his servant and his servant to him, in order IMPEACHMENT OP THE PRESIDENT. 423 to his justification, "What tliief couhl not defend himself by that, what mur- derer could not defend 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 was a legal removal. I say there never was a legal removal of Mr. Stanton. There was an act of removal so far as the Pre>urleigh leave you ? A. It was after night when he came ; the visit was a very short one. Q. About what time did lie leave ? A. I do not recollect exactly ; eight or nine o'clock, I suppose. Q. Immediately after he left did you go to a mas([uera(le ball ? A. Yes, sir, Q. How late did you stay ? A. I staved until about the time of — I suppose it was toward midnight. Q. After? A. I cannot be positive of that. About midnight, I presume. Q. IIow soon was it after Burleigh left before you left for the ball 1 A. I think it was about nine o'clock or along about half past nine or some- where there. It was after Ikuleigh left. Q. Did you see anybody but your own family between the time Burleigh left and the tune you started for the ball .' IMPEACHMENT OF THE PRESIDENT. 441 A. Yes. Q, Who? A. A little girl living next door, wlio was going with my daughter to the masquerade ball. Q. A young lady ? A. Yes, sir. Q. You did not discuss this matter Avith her, I take it ? A. I did not. Q. Did you discuss it with anybody after you left Burleigh or Burleigh left you until you got to the ball I A. I did not. I saw no person to discuss it with. . Q. And you did not discuss it at the ball ? A. I did not, Q. And a masquerade ball — I do not know, but I put it interrogatively — is not a good place for contemplation of high ministerial official duties, is it ? A. No, it is not. Q. You did not contemplate your official duties there, did you ? A. I went there, I say, to take charge of two little girls. That was all. Q. And to throw off care, as we all have a right to do] A. No, sir ; I did not go with any such purpose. I had promised them some days before. Q. Ycu went with them? A. I went with them to take charge of them. I went in my present dress [The uniform of a major general.] Q. And when you came home you went to bed immediately 1 A. I did. Q. How early in the morning — how long had you been up before this marshal came 1 A. I generally rise about seven, imless when I go to market. I get up earlier then. Q. How early did you get up this morning, having been out a little late the night before / A. I got up at seven o'clock ; that is my usual houi*. Q. Did the marshal come immediately ? A. The marshal came there about eight o'clock. Q. Before you could get any breakfast ? A. Before I had my breakfast. Q. Did you consult anybody on this question between the time of getting up and the time the marshal came 1 A- I did not. Q. Now, sir, before this the last you said to anybody on this question was that you told Burleigh in solemn earnest you were going to use force, and then, almost immediately, j^ou went to a ball ; from the ball you came home and went to bed ; got up, and saw nobody until the marshal came. When did you change your mind from this solemn determination to use force, although it might bring on bloodshed 1 A. I changed it after I had made use of this to Burleigh, undoubtedly. Q. I know you did, after. When ? A. I suppose very soon. Q. I did not ask you what your supposition is. I asked you when you changed your mind] A. I do not know. Q. When do you first remember having changed your mind? A. I do not know. Q. What is the first remembrance that you have of a different purpose? A. I do not know. You are asking now us to a point of time. 442 IMPEACHMENT OF THE PRESIDENT. Q. No ; I am asking no point of time. Yoii have now a different purpose in your miiul, have you not, from what you told Burleigh ? A. I have. Q. You must have obtained that purpose some time. "When did you change the purpose ? The first time, you remember, you had a different purpose. A. I certainly changed it before I was arrested, and that was at 8 o'clock on tlie morning of the 22d. Q. How do you fix that so certainly ? A. Because on the 22d I had determined not to do so. Q. AVhat time on the 22d 1 A. Before I was arrested, undoubtedly. Q. Why "undoubtedly?" A. I may have thought it over in bed before I got up. Q. Will you swear that you did, and that you changed your purpose then 1 A. I cannot tell the precise moment when I changed my purpose. Q. Did you not tell Mr. Burleigh that the reason why you did not carry out your purpose was the cause of your arrest ? A. I did not. Q. Did you tell him anything to that effect ? A. No. Q. Had you any conversation on that subject with him ? A. I did not see Dr. Burleigh after that, I do not think. Q. 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. A. He must have misunderstood me, then, because the arrest had nothing to do with it. Q. And you did not tell him that ? A. I think not. Q. Do you know not ? A. I will not say I know not ; but 1 am pretty certain I did not. Q. What makes you certain you did not tell him so ? A. Because I had made up my mind not to use force at all. Q. Were you not asked by the board of managers, on the 13th of March, after having heard Burleigh's testimony read, whether it was not true, and did you not say it was all true ? A. 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. Q. Now, Avhy 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? . A. That 1 do not think I told him. Q. And th(! only reason you have for thinking you did not tell him is that you think you must have come to the conclusion before you Avere arrested 1 A. I did, certainly. Q. But you cannot tell us when you did come to that conclusion from any act of memory of yours ? A. Not the particular moment. Mr. Morrill, of Maine. If the parties are willing to pause here, as it is now 5 o'clock Several Sknators. Get through with this witness. Mr. Morrill, of Maine. I would move an adjournment, not otherwise. Mr. JIanager Butlkr. We shall be wholly under the direction of the Sen- ate. We have no objection on our part. The Chief Justick. The Senator from Maine moves Mr. Morrill, of Maine. I do not make the motion unless it suits the con- venience of parties. IMPEACHMENT OF THE PRESIDENT. 443 Mr. Manager I^jl^tler. I will go on. (To the witness.) Now, then, General Thomas, Avhon 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 1 A. No ; quite the reverse. Q. Then when you came to that conclusion you believed you were going to do it against his orders, did you ? A. Not in accordance with them, certainly. Q. 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 1 Mr. Stanbery. He has not said that. Mr. Manager Butler. I am asking him if he did. The Witness. Repeat that question. By Mr. Manager Butler : Q. You say that you came to the solemn determination to use force, and you meant to do it, quite in reverse of the President's orders ? A. I said no such thing. Q. Hear the question. The day before, when you received your appointment, you told him you would obey his orders ? A. I did. Q. The first act that you came to a solemn conclusion about was that you proposed to act the very reverse of his orders 1 A. 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. Q. Did you mean to do that act in obedience to the President's orders or against them 1 A. Not in obedience to the President's orders, for he gave me no orders. Q. You mean to say that you had come to a solemn resolution on your own responsibility to initiate bloodshed 1 A. I said that I would, if I found the doors locked, break them down, and I aftervvard 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. Q. Did you think you were justified in doing what you came to the conclu- sion to do by the President's order ? A. I would have been justified as my own act. Q. Did you believe you were so justified by the President's order? A. No ; not by the President's order — by the appointment wliich he gave me, yes. Q. The appointment he gave you ? A. I had a right then to go and take possession of that office. Q. By force ? A. In any way I pleased. Q. At your pleasure, by force. Now, did you ever ask the President what you should do ? A. I did not. Q. Did you not ever suggest to him that Stanton would resist ? A. I reported to him from day to day that every time I asked him he re- fused. Q. Anything but the refusal 1 A. The refusal was the only thing. Q. Did you ever suggest to him that Stanton would resist 1 A. Resist by force ? Q. Yes, sir. A. No ; I said he refused. 444 IMPEACHMENT OF THE PRESIDENT. Q. Did you not iindorstand in your own mind tlint he Avoiild so resist ? A. I did not know what means he woukl take. Q. I did not ask what you knew. Did you uot in your own mind believe he would resist? A. Yes. Q. Had you any doubt of it ? A. I had not. Q. Did you not know that, if you got in at all, you must get in by force 1 A. Yes. Q. Did you ever report to the President, your superior, that you came to the conclusion that you could not get in, if you got in at all, except by force ? A. I said no such thing to him. Q. Why did you not report to him the conclusiou you came to ? A. I did not think it necessary at all. Q. You reported to him every time Stanton refused ? A. Yes. Q. But you did not think it necessary to report to him that you could not get the office without resistance ? A. No. Q. And you never asked his advice what you should do ? A. No. Q. Nor for his command ? A. No. Q. Nor orders in any way ? A. No. He merely told me to go on and take possession of the office, with- out stating how I was to do it. Q. And how many times over did he keep telling you that as you reported to him ? A. I think I had three interviews with Mr. Stanton. Q. One Friday ? A. One Saturday, one Monday, and one Tuesday ; I think four. Saturday was the time I made the demand. Q. Each time when you made the demand on Mr. Stanton he refused ? A. Yes, sir. Q. Each time you reported it to the President ? A. Yes, sir. Q. During all the time you were certain be would not give up except by force ? A. I was certain he would not give up ; he Avas going to keep it. Q. And, thinking it important to report each time his refusal, you never asked the President how you should get possession of the office? A. I never did. Q. Nor never suggested to him that you could not get it except by force? A. I suggested to him tliat the true plan would be, in order to get possession of the papers, to call u[)on (reneral Grant Q. Leave the papers — the office I am talking about. A. The papers are the tiling. You cannot carry on an office unless you have what is inside of it. Q. I did not ask how you can carry on an office. I ask if you ever reported to him anything more than ]\Ir. Stanton's refusal? A. I never did. Q. You never asked how you were to get possession of the building? A. No. Q. Now, let me come to the matter of papers. Did you afterward liit upon a scheme by which you might get possession of the papers without getting pos- session of the building ? A. Yes, sir. IMPEACHMENT OF THE PRESIDENT. 445 Q. And that was by getting au order of General Grant? A. Yes Mr. EvARTS. He has not stated what it was. By Mr. Manager Butler : Q. Did you write such an order ? A. I wrote the draft of a letter; yes, and gave it to the President. Q. Did you sign it? A. I signed it. Q. And left it with the President for his A. For his consideration. Q. When was that ? A. The letter is dated the 10th of March. Q. That was the morning after you told Karsner you were going to kick him out ? A. That was the morning after. Q. And you carried that letter? A. I had spoken to the President before about that matter. Q. You did not think any bloodshed would come of that letter ? A. None at all. Q. And the letter was to be issued as your order? A. Yes. Q. And before you issued that order, took that way to get hold of the mails or papers, you thought it necessary to consult the President? A. I gave that to him for his consideration. Q. You did think it necessary to consult the President, did you not ? A. I had consulted him before. Q. Either before or after you thought it necessary ? A. It was merely carrying out that consultation. Q. When you thought of getting possession of the mails and papers through an order as Secretary of War you thought it necessary to consult the President ; but you did not think any bloodshed would come from that, did you ? A. No, I did not ; it was a peaceable mode. Q. W^hen you were about taking a peaceable mode in issuing your order you consulted him ? When you had come to the conclusion to run the risk of blood- shed you did not consult him ? Is that so ? A. I did not consult him, Q. Did the President ever give at any of these times any other answer than " Go on and get possession ?" A. No ; not in reference to the office. Q. Did he ever chide you in any way for any means that you were employ- ing ? A. Never. Q. Did he ever find fault that you were doing it differently from what you ought to do ? A. No. Q. Did he ever remark to you in any way about declarations of force until after these impeachment proceedings began ? A. No. Q. They were published and notorious, were they not ? Have you acted as Secretary of War ad interim since ? A. I have given no order whatever. Q. That may not be all the action of a Secretary of War ad interim. Have you acted as Secretary of War ad interim ? A. I have, in other respects. Q. What other respects ? 446 IMPEACHMENT OF THE PRESIDENT. A. I have attended the councils. Q. Cabinet meetings, you mean ? A. Cabinet meetings. Q. Have you been recognized as Secretary of War ad interim 7 A. I have been. Q. Continually? A. Continually. Q. By the President and the other members of the cabinet? A. Yes, sir. Q. Down to the present hour ? A. Down to the present hour. Q. All your action as Secretary of War ad interim has been confined, has it not, to attending cabinet meetings ? A. It has. i have given no order whatever. Q. Have you given any advice to the President? You being one of his con- stitutional advisers, have you given him advice as to the duties of his office, or the duties of yours ? A. The ordinary conversation that takes place at meetings of that kind. I do not know that 1 gave him any particular advice. Q. Did he ever call you in ? A. He has asked me if I had any business to lay before him several times. Q. You never had any? A. I never had any except the case of the note I proposed sending to Gen- eral Grant. Q. I want to inquire a little further about that. He did not agree to send that notice, did he ? A. 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. Q. What was the other mode yoix suggested ? A. 'J'he other mode would be to require the mails to be delivered from the city post oflice. Q. And he told you to draw the order? A. No ; he did not. Q. But you did ? A. I did it of myself, after having this talk. Q. Did he agree to that suggestion of yours ? A. He said he would take it and put it on his own desk. He would think about it. Q. When was that ? A. On the lOlh. Q. Has it been lying there ever since, as far as you know ? A. It has been. Q. He has been considering ever since on that subject? A. I do not know what he has been doing. Q. Has he ever spoken to you or you to him about that order since ? A. Yes. Q. When? A. I may have mentioned it one day at the council, and he said we had better let the matter rest until after the impeachment. 1 think that was it. Q. Until the impeachment trial was over? So it is resting there awaiting this trial, as you understand ? A. Yes, sir. Q. Not to be lirought up till then? IMPEACHMENT OF THE PRESIDENT. 447 A. I so understand. Q. With the exception of that, attending those meetings has been your entire business as Secretary ad interim ? A. Yes, sir. Q. Now, has he ever asked you to know Avhere the troops were about Washington 1 A. He never did. Q. Or whether there had been any changes of troops ? A. He never did. Q. You tell us you attended a masquerade ball that night. Did you keep the President advised of where you were ? A. I did not. Q. Did you tell Colonel Moore where you were ? A. I did not. Q. Did you tell him where you were going ? A. I think not — no. Q. You are pretty sure about that ? A. He might have known I was going to the masquerade ball. I had pro- cured tickets for my children some days before. Q. Did the President in any of the interviews with you, his cabinet coun- sellor, his constitutional adviser, ever suggest to you that he had not removed Mr. Stanton ? A. Never. He always said that Mr. Stanton was out of office ; he took that ground at once. Q. Were you not somewhat surprised when you heard Mr. Curtis say here yesterday that he was not removed 1 A. I do not know anything about that. Q. Did he ever tell you that you were not appointed ? A. No. Q. Have you not always known you were appointed ? A. Yes. Q. Has he not over and over again told you you were appointed ? A. No ; not over and over again. Q. But two or three times 1 A. I do not know that it has come up at all. He may have done it two or three times. Q. 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 ? A. No. Q. And that he had not appointed you ? A. No. Q. Nor none of the cabinet, his constitutional advisers, say, " You are not appointed, general ; you are only here by sujfferance ?" None of them ever said that, did they ? A. None of them ever said that to me. Q. Tell us, if you can, what you meant when you told the President you were going to uphold the Constitution and the laws ? A. Why, to be governed by the Constitution and the laws made in pursuance thereof, of course. Q. You were going to be governed by the Constitution and the laws made in pursuance thereof. Did you include in that the tenure-of-office bill ? A. Yes, sir ; so far as it applied to me. Q. You were going to uphold the Constitution and that particular law ; you bad that in your mind at the time, had you not ? 448 IMPEACHMENT OF THE PRESIDENT. A. Not particularly in my miiul at the time. Q. You did not make any exception of that ? A. No ; I made no exception ; you have got ray language. Q. Has not the President given you directions about other things than taking possession of the War Office ? A. He has told me on several occasions what he wanted. He wanted to get some nominations sent up here. They were on the Secretary's table, on Mr. Stanton's table. Q. And he could not get them 1 A. He did not get them. Q. Well, he could not ? A. I do not say that. Q. What did he tell you, whether he could or could not get them ? A. I do not know whether he could or could not. I could not get them. Q. And he could not, as far as you know ? A. I do not know that he could iiot. Q. And he complained to you 1 A. 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 Secretary of War. By Mr. Stanbery : Q. Did he send them to the President ? A. He did not, to my knowledge. By Mr. Manager Butlrr : Q. Now, at any other of these times, when he has given you directions, has he ever told you he was going to uphold the Constitution and the laws 1 A. No ; I think not. Q. Did he ever tell you he was going to uphold the Constitution and the laws 1 A. That is the only time that conversation occurred between us. Q. Can you give any reason wliy both of you should come to the conclusion that the Constitution and the laws wanted upholding about that time 1 A. No. Q. What had happened to the Constitution and the laws, or was about to hap- pen, that required you both to uphold them 1 A. I do not know that anything was about to happen. Q. Well, what had happtined ? A. Nothing had happened. Q. Why did h(; so solemnly tell you there, upon this occasion, that he was going to uphold the Constitution and laws, and why did you say, " I will uphold the Constitution and laws ]" A. Why, it was the most natural thing in the world. He made the remark to me. Q. Now, about Mr. Karsner, and I will not trouble you much further. Were you examined before the managers about Mr. Karsner's testimony '{ A. It was read to me there. Q. As taken down from his lips 1 A I suppose so. Q. Was it not substantially almost exactly as he gave it here ? A. I do not know how he gave it here exactly. Q. Did not you hear him 1 A. There was one point in it I did not agree to. Q. Did you hear him give it here ? A. Partially. I could not hear all where I was sitting. IMPEACHMENT OF THE PRESIDENT. 449 Q. As it was read over to you there, were you not asked in Karsner's pres- ence if tliere was anything that he said that was not true ? A. The question was asked me and I answered yes. Q. What did you say it was he said that was not true ? A. I think he testified here Q. No ; there ? A. I do not know there. I am speaking now of a portion of the testimony here. Q. You told me you did not hear here, and therefore 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. Karsner's testimony read over to you in his presence 1 A. 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." Q. You were asked if it were correct and you said " Yes." Did you object that any single word was not correct ? A. I did not object to any word. I objected to his manner. Q. How couM you see his manner on paper] A. You asked him to get up and show it. Q. 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 ? A. No ; I did Plot. Q. Then did you not say, when asked for any explanation, that it was play- ful ; was not that the only explanation you gave? A. I said it was playful on my part. Q. Was not that the only explanation you gave before the managers ? A. I do not recollect ; I suppose it was, though. Q. Was not Mr. Karsner then called up and asked whether it appeared play- ful to him? A. Yes ; he was. Q. And did not he testify to you that it was not playful at all, but that you seemed to be very earnest 1 A. Yes ; he did. Q. And did he not illustrate your earnestness by the way you brought your- self down? A. 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 stand firm ; then I straightened myself up in that way. Q. And you think he applied it to the time you were to kick him out? A. Yes, sir. Q. Did you object then that you yourself did not use the words " Kick him out"/" A. 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. Q. That was the 13th of March you were asked before us, was it not? Mr. EvARTS. 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 Butlkr. With great pleasure. 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 witness.) Upon your reinstatement in office as Adjutant Greneral did you address the clerks ? 29 I p 450 IMPEACHMENT OF THE PRESIDENT. A. I did make a sjiort address to each section of them. I sent for the officers iu charge and told them I would like to see the clerks. Q. Was that within three days of the time you were appointed Secretary of War ad interim, ? A. It was between the time I was reinstated as Adjutant General and the time I was appointed Secretary of AYar ; I do not recollect what particular day. Mr. Manager Butler, (to the counsel for the respondent.) The witness is yourt, gentlemen. Mr. Stanbkry. We will ask some questions. Mr. Hendekso.x. Mr. President, I move that the Senate sitting as a court do now adjourn. The motion was agreed to ; and the Senate sitting for the trial of the impeach- ment adjourned. Saturday, April 11, 1S6S. The Chief Justice of the United States entered the Senate chamber at 12 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 pai"t of the House of Representa- tives appeared and took the seats assigned them. The counsel for the respondent also appeared and took their seats. The presence of the House of Representatives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. Wash- burne, the chairman 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 yesterday's proceedings of the Senate sitting for the trial of the impeachment. The Chief Justice. Gentlemen of counsel for the President, you will pro- ceed 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 argument shall be opened and closed by the managers on the part of the House. Mr. Siiermax. I should like to have the proposition repeated. I could not hear it distinctly. The Chief Justice. The honorable manager will please reduce his propo- sition to writing. Mr. Manager Bl\fiHA.M. I will. [After writing the proposition.] ]\Ir. Pres- ident, I desire to read the motion as reduced to writing. Mr. CoNKLlNG. I beg U) state that the voice of the manager is entirely inaudible here. Mr. Manager Bi.xuha.m. "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 President 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. S(mators, 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 IMPEACHMENT OF THE PRESIDENT. 451 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 general rule it should lie over one day for consideration. The Chief Justice. The Chief Justice was about to observe that the propo- sition required sgnie 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. Blckalew. I move that the resolution be laid over for consideration until to-morrow, /rhe Chief Justice. It goes over, of course, if there be objection. Mr. Edmunds. I would inquire of the Chair whetlier the twenty-first rule does not now provide by its terms that this privilege may be extended to the man- agers 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. Frelimghuysbn. 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 proposed by the senator from New Jersey. Mr. Sherman. I withdraw it for the present 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 the counsel for the respondent be per- mitted to speak on the liual 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 objecter^ to, it will lie over. Mr. Howard. I object. Mr. Trumbull. Ah 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 Sen- ate 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 legis- lative session as far as they are applicable. That is the ground of his decision. Mr. CoNKLlNG. The reason for my inquiry was this : the very ride we are dis- cussing provides that a certain thing shall happen " unless otherwise ordered ;" and I supposed a motion otherwise to order was always in order. 452 IMPEA.CHMENT OF THE PRESIDENT. The Chikf Justice. It is competent for the senatorfrom New York to appeal from the decision of the Chief Justice. Mr. Co.\KLii\G. Oh, no, sir ; I merely made the point by way of suggestion to the Chair. Mr. JoHXSON. Mr. Chief Justice, I appeal to the honorable member from Michigan to withdraw The Chief Justice. No debate is in order. Mr. JoH.\so.\. I am not about to debate it, sir. If they are to have an oppor- tunity of addressing the Senate they ought at once to know it on both sides. The Chikf Justice. Gentlemen of counsel for the President, you will please to proceed with the defence. Lorenzo Thomas — examination continued : Mr. Stanbery. General Thomas wishes to make some explanatory state- ments. The Witness. I wish to correct my testimony yesterday in one or two par- ticulars. I read a letter signed by Mr. Stanton addressed to me on the 21st ot February. The date misled 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 handed mo the original, and my impression is that I noted on tliat 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 : Q. Then when you saw the President, on the afternoon of the 21st, you had not yet received that letter from Mr. Stanton ? A. I had not. Q. You then stood upon the interview which you referred to ? A. 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." Q. Are you certain that that was his expression ? A. Positive. I was asked if I could give the date of ray brevet commission. I do not know whether it is important or not, but I have it here. Q. What is the date? A. The brevet of major general 13th of March, 1865. Q. Upon whose recommendation was that ? Who first suggested it ? A. Mr. Stanton gave it to me. Q. DTd you ask hnn for it or did he volunteer it 1 Mr. Manager Butler. That is not in the nature of correction or of expla- nation. Mr. Stanhfuy. lie could not get it yesterday. It was an omitted fact, and he passed it until he could get his commission. Mr. Manager Butlkr. Very good. By Mr Stanbery : Q. How was it; asked for or voluntarily tendered? A. He had more than once said he intended to give it to me, and on this occa- sion, 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. Burli;igh. He said he had it not; that it was at his home. I do not know wh(!ther I said or he said, " It makes no difference." He asked me a number of questions in reference to that. I assented to them all. I never heard that testimony read. IMPEACHMENT OF THE PRESIDENT. 453 Q. You never heard Dr. Burleigh's testimony read ? A. No, sir; nor do I recollect tlie particular questions, except that thoy were asked me, and I assented. I said that Dr. Burleigh, no doubt, would recollect the conversation better than 1. By Mr. Manager Butler : Q. General Thomas, how many times yesterday did you answer that the President told you each time to " take possession of the office ?" A. I have not read over my testimony particularly. I do not know how many times. Q. Was that untrue each time you said it ? A. If 1 said so, it was. " Take charge " were the words of the President. Q. Have you any memorandum by which you can correct that expression ? If so, produce it. A. I have no memorandum with me here ; I do not know that I have any. Q. Have you looked at one since you were on the stand ? A. I have not. Q. How can you tell better to-day than you could yesterday 1 A. Because I read that evidence as recorded. Q You gave it yesterday yourself? A. 1 did. Q. And you could know better what it was by reading it than when you tes- tified to it 1 A. Yes, sir. Q. And you are sure the word was " charge " each time ? A. " Take charge of." Q. And then the three times when you reported to him that Stanton woiald not go out, refused to go out, each time he said, " Take charge of the office?" A. He did. Q. Was your attention called at the time he said that to the difference be- tween taking " charge " of the office and taking " possession " of it ? A. My attention was not called to it. Q. How, then, do you so carefully make that distinction now in your mind ? A. Because I know that that was his expression. I have thought the matter over. Q. You have always known that that was his expression, have you not ? A. Yes. Q. And you have thought the matter over ? A. Yes. Q. Well, then, how could you make such a mistake yesterday ? A. I think the words were put into my mouth. I do not recollect distinctly. Q. The same as Karsner put in about the " kicking out?" A. Yes. Q. And you are rather in the habit, are you, when words are put into your mouth, of using them? A. 1 am not always in the habit. Q. Why was yesterday an exception ? A. I do not know why it was an exception, Q. I want to ask you another question on another subject which was omitted yesterday. A. Certainly. Q. After you and Karsner were summoned here as witnesses, did you go and quarrel with him ? A. I had some words with him in the room here adjoining. Q. Did you call him a liar and a perjurer? A. I did. Q. You called him a liar and perjurer, did you? 454 IMPEACHMENT OF THE PRESIDENT. A. I think I did both ; I certainly did call liim a liar. Q. And a perjurer ? A. I think it is probable I did ; but the " liar" I know. Q. You knew that he and you both were iu the witness-room waiting to be called ? A. I was here. Q. And you knew he was here for that purpose 1 A. I presume I did ; yes. Q, And while lie was there you undertook to talk with him about his testi- mony ? A. I stated to him in the two instances ; I will give them to you Q. Just answer my question, sir ; I have not asked you wliat you said. I only ask you this question, whether you undertook to talk with him about his testimony ? A. 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. Q. Did you speak first or he 1 A. That T do not recollect. Q. Now, then, did you tell him that he was a liar and a perjurer at that time? A. I did tell him he was a liar, and I may have said he was a perjurer. Q. Did you offer violence to him ? A. I did not. Q. Did you speak violently to him ? A. I did not, except in that way. Q. Were you then in full uniform as now ? A. As I am now. Q. There is another question I want to ask you Avhich was omitted. Do you still intend to take charge or possession of the office of Secretary of War? A. I do. Q. Have you said to any person within a few days, " we'll have that fellow," meaning Stanton, " out, if it sinks the ship]" A. Never. Q. Did you say so to Mr. Johnson 1 A. I did not. Q. Anything to that effect ? A. Not that I have any recollection of. Q. Do you know whether you did or not ? A. What Mr. Johnson do you mean ? Q. Mr. B. B. Johnson. A. There was a Mr. Johnson came to see me at my house in reference to another matter, and we may have had some conversation about this. Q. When was it that that Mr. Johnson came to your house to see you about another matter ? A. That 1 hardly recollect. Q. About how long. A. I am trying to recollect now. He came to mc about the business Q. Never mind what his business was. When was it ? A. But I want to call it to mind. I have a right to do that, I think. Q. But not to state it. A. I took no note of the time, and I can hardly tell. It was recently, not very long ago. Q. Within two or three days 1 A. No, sir ; before that time. Q. Within a week 1 A. I think it is more than a week. Q. Let me give you thetlate — on Friday, a week ago yesterday ? A. I cannot srive the date. 1 do not know it. IMPEACHMENT OP THE PRESIDENT. 455 Q. Was it long:er than that ? A. Well, I did not charge my memory with it. It was a familiar conversa- tion we had. Q. Were you joking then? A. Certainly. Q. Oh ! joking ? A. Yes. Q. Did you, jokingly or otherwise, say these words : " And we'll have Stan- ton out of there if we have to sink the ship ?" A. I have no recollection of making use of that expression. Q. Did you make use of one eq^uivalent to that in substance ? A. I have no recollection of it. Q. Have you such a recollection of what you say as to know whether you did or not ? A. I have not. I would rather he would testify himself; he knows it better than I. I cannot recollect all the conversation I had. Q. Do 3'ou deny that you said so ? A. I cannot deny it, because I do not know that I did. Q. You say you would rather he would testify ; and I will try to oblige you in that respect ; but if you did say so, was it true or merely more brag 1 A You may call it as you please ; brag, if you say so. Q. I do not want to put words into your mouth ; what do you call it 1 A. I do not call it " bi-ag." Q. What was it ? A. It was a mere conversation, whatever it may have been. Q. Did you mean what you said, or did you say what you did not mean ? A. I did not mean to use any violence against Mr. Stanton to get him out of office. Q. What did you mean by the expression, " We'll have him out if it sinks the ship ? " A. I have said that I do not know that I used that expression. Q. You have told me also that Mr. 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 he did not say so. ]\Ir. 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. Q. Official business 1 A. I mean business connected with an officer dismissed from the army. Q. Then you were joking on the subject? A. Certainly. Q. Did you ever see Mr. Johnson before ? A. I have no recollection. It is possible I may have seen him. Q. Have you seen him since ? A. I have not to my knowledge. Q. Now, here was a stranger who called on you on official business, business pertaining to your office ? A. Xo, sir. Q. Official business about getting a man reinstated who had been dismissed ? A. Yes. Q. Very good. He called upon you on business connected with the army ? A. That had nothing to do with my office. Q. Now, did you go to joking with him, a total stranger, in this way ? A. I knew him as the lawyer employed by Colonel Belger to get him rein- stated, and Colonel Belger sent him to me. Now you have got it. 456 IMPEACHMENT OF TBE PRESIDENT. Q, Was lie a stranger to you ? A. I think he was. Q. Now, then, being a stranger, having that fixed, will you answer, did you go to joking with this stranger on such a subject ? A. Certainly. We had quite a familiar talk when he was there. He sat with me for some time. Q. And that is the only explanation you can give of that expression ? A. That is sufficient, I think. Q. Whether it is sufficient or not somebody else will judge ; is it the only one you can give ? A. It is the only one I do give. Q. And it is the only one you can give ? A. Yes. Q. A single word now upon another subject; did anybody talk with you about your testimony since you left the stand ? A. Since I left the stand 1 Q. Yes ; since yesterday 1 A. Well, I suppose I have talked with a dozen persons. Q. Such as whom ? A. Several persons met me and said they were veiy glad to hear my tepti- mouy. We did not enter into any particulars about it. I have been met t o-day jocularly about taking an equal drink with the Secrc^tary of War by two or three persons. I have talked in my own family about it. Q. Has anybody talked to you about these points, or have you talked to anybody about these points where you have changed your testimony ? A. I came here this morning and saw the managers, and told them whoreiu I wanted Mr. Manager Butler. The managers ! You do not mean that quite ? Mr. EvARTS. The counsel for the President. The Witness. I saw the counsel for the President, and told them I wished to make corrections. By Mr. Manager Butler. You did not mean the managers ; you meant the counsel ? A. I meant the counsel ; these gentlemen sitting here, [pointing to the coun- sel for the President.] Q. That you had a perfect right to do. Had you talked with anybody before that about these points 1 A. Yes. Q. Whom? A. General Townsend this morning. Q. The Assistant Adjutant (Jeueial] A. Yes. Q. Anybody else ? A. About these points? Q. Exactly. A. No. Q. Are you sure ? A. 1 have said no. I am sure. Q. Now, sir, did you not receive a letter from Mr. Stanton, whether a copy or uot, on the 2l8t of February? A. I did not. Q. You said that he gave you the original, and the date is noted. Have you seen that original ? A. Since'/ Q. Yes. A. I have not. IMPEACHMENT OF THE PRESIDENT. 457 Q. Tlie date was noted on that original. When was that original given you? A. The one I read here on the 22d ? Q. I did not ask you, "the one you read here" — the original; when was that given you ? A. On the 22d. Q. Did you have more than one paper given you ? A. 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. Q,. And that was the 22d ? A. On the 22d, dated the 21st. . Q. Prepared, then, the day before? A. 1 suppose so. It has the date of the day before. Q. Then do you mean to take; all back that was said in the room of Mr. Schriver about your not going on with the of3fice, or their not obeying you on the afternoon of the 21st 1 A. Oh, yes ; it was the 22d, because General Townsend was not there on the 21st. Q. Then on the 21st there was nothing said about his not obeying you? A. I think not. Q. Nothing said to Schriver about not obeying you ? A. I think not. Q. Then there was nothing said about not obeying you on the 21st at all? A. I think not. Q. And you never reported to the President that Stanton would not obey you on the 21st? A. I reported to the President the two conversations I had with him. Q. 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 Butlkr. 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. Q. Then on the 21st there was no such conversation that you testified to? A. Not in reference to that letter — no. Q. Was there any conversation at all as to General Townsend's not obeying you, or General Schriver's not obeying you, on the 21st? A. None. Q. 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? A. All that was not so. Q. Now, upon another matter. When you were examined before the com- mittee A. Which committee? Q. The committee A. I have been examined twice. I only want to know. Q. The committee of the House, not the managers. You Avei-e 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 occurred." He said, 'Well, go along and administer the department.' When* I stated what had occm-red with Mr. 458 IMPEACHMENT OF THE PRESIDENT. Stanton, he said to me, ' You must, just take possession of the department and carry on the business.' " Did you so sw^ear before the committee!' The witness not replying — Q. Let me give you the words again ? A. 1 thought you were waiting for somebody else. I say as I said before, the words were : " Take charge " Q. That is not the question. A. What is the question ? Q. The question is this : in answer to a question which I 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 what had occurred." He said, ' Well, go along and administer the diqiartment.' And did you not proceed to state, "W^hen 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. A. If that is there I suppose I swore to it. I want to make one statement, though. Q. Was it true 1 A. No ; the word used was the other. Mr. Manager Butler. That is all. The Witness. I wish to make one statement 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 transpired. 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 Butler : Q. How was that 1 A. When I was called before that committee 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 reqiu^sted them to postpone the examination until the next morning, or until I could go over the matter. That was not allowed me. Q. Did you make any such request ? A. I (lid twice. Q. Of whom did you make it ? A. To those who were there. Q. Who was there ? A. I think the committee was pretty full. Q. The committee on prepiii-ing the articles of impeachment were there ? A. Yes, sir. Q. That committee you mean, and the committee was full? A. I do not know whether jMr. Stevens was there. He was there a portion of the time. I do not know whether he was there at this particular time. Q. And you tell the Senate now on your oath that you requested the com- mittee to give you time to answer the (juestions, and they refused you ? A. I requested that it might be deferred until the next morning, when I could have an o])portunity 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. 1'hen there is another matter I want to speak about — when 1 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 Oeneraland that of my appointment as Secretary of War ad interim — I supposed they were IMPEACHMENT OF THE PRESIDENT. 459 asking me in reference to the former, and tliat 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 permit me to correct the manuscript, but I put something at the bottom just in a hasty way. I suppose it is on 1 hat paper, [pointing to a manuscript iu the hand of Mr. Manager ]3utler.] I do not know. Q. I will come to that. Now, then, have you got through with your state- ment? A. I have. Q. Very well; then you will answer me a few questions. Did you not come and ask to see your testimony as it Avas taken down by that committee ? A. I went to the clerk and saw him. Q. Did he give you the report which I hold in my hand ? A. 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 member 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 Q. He reported to you that you might make any corrections in writing ? A. Yes, sir. Q. Then, did you read the whole testimony over? A. I think I did ; I am not certain about that. Q. Do you not know you did? A. No ; I do not know that I did. Q. What were you there for? A. I came there to correct the first part of it particularly, and that was the reason 1 went there. I took it for granted that the rest was correct. Q. You did not want to correct any other portion of it ? A. No. Q. And the first part of it only referred to the mistake in the time about your being made Adjutant General or being made Secretary of War ? A. It had reference to the notification given me more particularly. Q. By the President ? A. I had stated the notification Q. The notification by the President to be Secretary of War or Adjutant General, that was mixed? A. That was mixed. Q. That was what you wanted to correct ? A.. I stated that I received that notification from Colonel Moore. Colonel Moore did give mp the notification that I would probably be put back as Adju- tant General, but he did not as Secretary of War. Q. That was what you wished to correct ? A. That was the principal correction I wished to make. Q. And you did not want to correct anything else ? A. If there was anything wrong, I did. My corrections are there, whatever they may be. I suppose that is the paper. Q. You then went over your testimony, did you not, and corrected such por- tions as you pleased ? A. Oh, I had full privilege to do that, of course. Q. And wrote out here portions of two sheets, which are in your handwrit- ing, are they not, of corrections ? Showing the pages to the witness. A. Yes, sir, I corrected in my own handwriting. Q. And signed it " L. Thomas, Adjutant General ?" A. Yes, sir. There are not two sheets, however. There is one sheet and a little more. 460 IMPEACHMENT OF THE PRESIDENT. Q. I said portions of two sheets. Now, sir, having read over your testimony and attempted to correct it, did you correct anything 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 1 A. I do not think I made any such correction as that. Q. You have sworn that it was not true. Why did you not correct it? A. I have said so because I know his expression. Q. Why did you not correct it before ? A. Well, I have thought the matter over. By Mr. Stanbery: Q. General Thomas, I find a report of your testimony as given yesterday, as as you gave it originally on the examination as to the first interview with the President, which 1 will now read to you and see whether it is correctly reported : Q. What occurred between the President and yourself at the second interview on the^lst of Febrnaiy ? Witness. I stated to the President that I had delivered the communication, and that he gave this answer. Mr. Stanukry. What answer? Witness. The answer, "Do you wish me to vacate at once, or will you give me time to take away my private property?" and that I answered "At your pleasure." I then stated tliat after delivering the copy of the letter to him he 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 atten- tion is this : This I mentioned to the President. His answer was, ' ' Very well ; go on and take charge of the office and perform the duty." Did you say that ? A. I said that. Q. It was in the cross-examination that this " possession " came out, was it not ? A. Yes, sir. By Mr. Manager Butler: Q. Then you mean to say that in answer to Mr. Stanbery you put it all right yesterday, and in the answer to me you got it all wrong 1 A. In reference to your examination. Mr. Stanbery. We will see how your examination was by and by. We shall want General Thomas as to Avhat 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. Stanbery : Q. General Sherman, Avere you in Washington last winter? A. I was. Q. What time did you arrive here? A. About the 4th of December last. Q. How long did you remain here ? A. Two months. Q. Till the 4th of February, or about that time? A. Until about the 3d or 4th of February. Q. On what business had you come? A. I came as a meml)er of the Indian peace commissiou by adjournment. Q. Any other business at that time ? IMPEACHMENT OF THE PRESIDENT. 461 A. At that time no other business. Subsequently, by order, I was assigned to a board of oflicers organized under the laws of Congress to submit articles of war and regulations for the army. Q. At what (late was that assignment? A. 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 tea days. Q. About ten days after your arrival here 1 A. About the middle of December that order was issued. Q. Then you had a double duty? A. I had a double duty for a few days. Q. During that time, from the 4th of December until the 3d or 4th of Feb- ruary, had you several interviews with the President? A. I bad. Q. Did you see him alone, when there was no person present but the Presi- dent and yourself ? A. Yes, sir. Q. Did you see him also in company witli General Grant ? A. I saw him in company with General Grant once, and I think twice. Q,. Had you several interviews with him in relation to the case of Mr. Stanton ? A. I had. Mr. Manager Bingham. Mr. President, we desire, without delaying the Senate, to respectfully submit our objections here again, without desiring to 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 declarations 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. Stankery. 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 BiNGHAAf. 1 understand the object is to call out conversations with the President. The ChicF Justice. At present no such question has been asked. ^Ir. Stanbery. Now we will come to the point very quick. (To the witness.) General, 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 removal 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 sub- stance 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. 1 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 ? Tiie Witness, (consulting his memoranda.) The interview i\'ith General Grant and the President, do you refer to ? Mr. Stanbery. No; any interview. I will ask you a question that will 462 IMPEACHMENT OF THE PRESIDENT. relieve you, perhaps. Had you interviews with the President before Mr. Stan- ton came back to the office, while General Grant was yet in it? The Witness. Yes, gir; of a social nature entirely, before that time. Q. Had you iuterviews with him after that ? A. I liad. Q. How long after that ; after Mr. Stanton came back ? A. The day following, I think. Q. Were you and the President alone at that interview the day after? A. General Grant was also present. Q. What did that interview relate to ? A. 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 lo ? Mr. Manager Butler. That gives the substance of it. I object. Meet the question. Mr. Stan'bery, (to the witness.) Did it relate to the occupation of the War Department by Mr. Stanton ? The Witness. It did. Q. Now, what was it ? Mr. Manager Butler. Stop a moment. We object. We ask that it be put in writing. By Mr. Stanbery : Q. 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 writing, was handed to and read by the Secretary, as follows : In that iuterview what conversation took phice between the President and you in rej^ard to the removal of Mr. Stautou .' 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 conversa- tion, general ? The Witness. Yes, sir. [Consulting a memorandum.] According to a mem- orandum which I hold Mr. Stanton re-entered 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 Wednesday, the 14th of January. The Chikf Justice. The Chief Justice thinks the question admissible within the principle madi; by the decision of the Senate relating to a conversation between General Thomas and the President ; but he will put the question to the Senate, if any scaiator desires it. Mr. Con NESS, (hi tliat 1 ask for a vote and the yeas and nays. The yeas and nays were ordered. Mr. Manager Butler. We should like to hear the grounds on which the oflfer 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 Avhich you can put in any possible declara- tion, not the declaration itself. Mr. Stanbery. This ground : we expect to prove by General Sherman IMPEACHMENT OF THE PRESIDENT. 463 Mr. Manag-er Butlkr. I object, sir. I have not asked that. Mr. Standkky. Is it not admissible to say what we expect to prove? Mr, Manager Butlkr. No, sir; that is to get before the court, Mr. Chief Justice Mr. Stanbrrv. " Get before the court !" Mr. Manager Butler. Get before the court or the Senate — that I shoukl 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 the President can be given in evidence. "What those declarations are, in my judgment, it would be improper to state, and unprofessional to state, because that is begging the whole question and attempting to get them before the Senate and the country by the recital of the counsel. That never is permitted.^ The sole question is, whatever the declara- tions are, if any possible declaration can be competent at that time. If the declaration asked for can be competent, you may assume that any possible con- versation can be competent, and then we will assume that this Mr. Stan'BERV. 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. Stamberv. 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. Stambery. We do. Mr. Manager Butler. If the Senate will vote that it is competent, we can- not 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 unanswerable. I can say now in argument, I presume, what I expect to prove. " If," says the honorable 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 President made on that 14th of January can be admitted here !" Now, first of all, what is the issue here ? Let the managers speak for them- selves. 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 argu- ment. Mr. Stanbery. The manager said : Having shown that the Pre-i^iilent wilfully violated an act of Congress, without justifica- tion, both in the removal of Stanton and the ai3])ointment of Thomas, for the purpose of obtaining wrongfully the possession of the War Othce by force, if need be, and certainly by threats and iutiuiidalious, for the purpose of controlling its appropriations through its ad ititirim chief, who shall say that Andrew Johnson is not guilty of the high crime and misde- meanors charged against him in the tirst eight articles ? Again, on page 190, speaking of the orders of removal : These and his concurrent acts show conclusively that his attempt to get the control of the military force of the governinent, by the seizing of the DepartJiiciit of War, was done in pursuance of his general 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 the execu- tion of this very design, every othcer of the army, navy, civil, and diplomatic service of the United States. Again, on page 99 : Failing in this attempt to get full possession of the office through the Senate, he had deter- mined, 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 (juarrels 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 depart- 464 IMPEACHMENT OF THE PRESIDENT. ment of the Atlantic. He attempts to bribe Lieutenant General Sherman to take command of it by promotion to the ranii of general by brevet, trusting that his military services would compel the Senate to coiitirm him. If the respondent can get a general by brevet appointed, ho 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, tlirougli whom he can transmit his orders and comjily with the act which he did not dare transgress, as he had approved it, and get rid of the hated General Grant Sher- man spurned the biibe. The res[)ondent, not discouraged, appointed Major General George II. Thomas to the same brevet rank, but Thomas declined. What stimulated the order of the President just at that time, almost three years after the war closed, lint just after the Senate had reinstated Stanton, to reward military servii-e by the appointment of generals by brevet? Why did his zeal of promotion take that form and ni> other / There were many other meritorious officers of lower raid^ 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 oftice. 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 President, the learned managers have gone back to the fall of 1867, and begin their proof with an intention commenced in the fall, car- ried 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 intention 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 Department 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 one of the ways and means? The difficulty that rests in the minds of my learned friends on the other side is that they cluster everything about the 21st of February, l>r68. 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 J2th of August, 18(J7. ##**## To carry it out there are various things to do. He must get control of the 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 Decem- ber he had got to put that suspension and the reasons tor it before the Senate, and he knew it woidd not live there one moment after it got fairly considered. Now he begins. What is the lirst thing he does ? "To get somebody in the Treasury Department that will mind me precisely as Thomas will, if I can get him in the War Department." That is the iirsl thing; and thereupon, without any vacancy, he must make an appointment. The difficulty that we find is that we are obliged to argue our ease step by step upon a single point of evidence. It is one of the infelicities always of putting in a case that sharp, keen, ingenious counsel can insist at all steps on impaling you upon a point of evidence; and therefore I have got to proeeed a little further. Now, our evidence, if you allow it to come in, is, first, that he made this appointment; that this failing, he sent it to the Senate, and Cooper was rejected. Still determined to have Cooper in, he appointed him ad iiilerim, precisely as this ad intirbn Thomas was appointed, withoid law and against right. We ]mt it as a ])art of the whule machinery by whieh to get hold, to get, if he could, his band into the treasury of the United States, although Mr. Chandler Las just stated there was no way to get it except by a ri'ipiisilion through tlu^ War Department; and at the same mciiieid, to show that this was j)art of the same illegal means, we show yoti that although Mr McCulloeh, the Secretary of the Treasury, must have known that Thomas was ai)pointi'd, yet the President took jjains — we have put in the paper — to serve on Mr. McCulloeh an attested coj)y of tht; apiiointmeut of Thomas ad iiitcritii, in order that he and Coojjcr might recognize his warrants. That is what they put in. U'hoy have got that testimony for that purpose, as they say, to show the intent of ihe I'resident, begun, they say, as early as the I2th of August, 18G7, progressed in by the appointment of Cooper in the IMPEACHMENT OF THE PRESIDENT. 465 fall of 1867, going all tlirougli the subsequent time until it " culminated" on the 21st of February by at last finding the proper tool to do this work in the War OtHce. 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 criiDinal purpose. They do not prove that purpose, or attempt to prove it, by any positive testimony; but they say, " Ave prove certain facts from which we raise a presumption 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, according to the intent of the party. Then they prove certain other acts and declarations which, 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 criminal 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 pur- suing that intent, looking for tools, agents to carry out that intent, and it did not culminate 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 presumption of guilt from the intent of the accused, by proving circumstances which raised that presumption against him, may he not rebut it by proof of other circumstances which show that he 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 circumstances. Take the case of a man charged with passing counterfeit money. You must prove his intent; you must prove his scienter ; you must prove cir- cumstances from which a presumption arises. Did he know the bill was coun- terfeit ? 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 circumstances proved against him? In the first place, by the most general of all presumptions, proof of good character generally. That he is allowed to do to rebut a presumption — the most general of all pre- sumptions — not that he did what was right in that transaction, not that he did certain things or made certain declarations about the same time which explained that the intent was honest, but going beyond that through the whole field of pre- sumptions, for it is all open to him, he may rebut the presumption arising from proof of express facts by the proof of general good character, raising the pre- sumption that he is not a man who would have such an intent. Mr. Manager Butler, We do not object to that proof. jMr. Stanbery, You do not ! Mr. ^Manager Butler, Put in his good character. ;Mr. Stanb^rv. Such a general thing as that! And yet you object to this? Mr. Manager Butler. Put in his good character, and we will take issue on that. Mr. Stanbkrv. 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 positively proved by his own declarations, but where the intent is to be gathered by proof of other facts, which may be guilty or indiffer- ent according to the intent ] What proof is allowed against him to raise this 30 I p 466 IMPEACHMENT OF THE PRESIDENT. preanraption of intent ? Proof of those facts from whicli the mind itself infers a guilty intention. But while the prosecution 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 cannot 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 declara- tions of the defendant from which the inference of innocence would be presumed are, under reasonable limitations, just as admissible as the declarations of the defendant from which the prosecution has attempted to deduce the inference of criminal purpose. I»Jow let us look at the authorities on this point. In the trial of Hardy, reported in Stat6 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 I will read from it pretty largely : Mr. Erskine. I call back this gentleman only for the purpose of asking him one ques- tion, which I could not with propriety ask him before ; you stated, in your former examina- tion, your personal acquaintance with the prisoner at the bar, and your transactions with him before; did you ever hear him state what his plan of reform was? Yes, I have ; he always stated it to be the Duke of Eichmond's plan — universal suffrage and anniuxl Parliauients. Was that said to you publicly, or in the privacy of confidence ? It was said publicly. And he sold me some co|)ies of the Duke of Richmond's letter. Mr. Attorney Genekral. I really must obji'ct 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 circumstances, from the earliest times of our history to the present moment. I am sorry to consuuie the time of the court, but if I am called upon I will repeat to your lordships, verbatim, from the Statt^ Trials, various questions, upon similar occasions, ]iut by different prisoners, by consent of all the judges, all the attorney generals, and solicitor generals, and counsel for the Crown. I only wish to know whether the question is objected to or not. Mr. A I'TORNEY General. It is. Mr. Erskine. I will proceed, and I have much more pleasure in doing it from the manner in wliich the attorncj- general conducted himself rccentl}', because the moment it was stated as a proceeding which, we thouglit, might be serviceable to the prisoner, ami consist- ent with the rules uf Civideiice, lie instantly acceded to its production; therefore, independent of satisfying your lordships, if I can satisfy my learned friend that we are in the regular course, I am persuaded he would be sorry himself that this prisouer should be deprived of the advantage 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 evi- dence of his intent, Avhether it were unlawful or lawful, in the matter as to which he is charged. I read from page IOCS : Now, wliat 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 tlio commission of tliose acts as substantive acts, but he is charged with having in his mind the wicked and detestable |iurpose of aiming at the destruc- tion of tlie king, to put down and bring the king to dcatli, and that in the fullilmeut of that most detestable iuutgination he did the specihc acts cliurged 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 lie agreed to assemble a convention to be held which was not held — that he conspired to hold it, for the purpose of subverting the rule and authority of tho country, and not that ulouo, but that he consented to hold such convention, wliicli conven- tion, in his mind, was to accomplish tlie purpose of the subversion of the government, and IMPEACHMENT OF THE PRESIDENT. 467 that be did aijree to assemble that convention for the purpose of that subversion in fulfil- meut, uot that the other is the cousequguco of it, but iu fnitiiniout of the detestable purpose of compassing the king's death. Here, then, the intention of the mind is the question 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 be comes to the cases : The counsel for Lord George Gordon were the present Lord Keuyon, lord chief justice of the King's l»ench, ajid myself, who have now the honor to speak to the court ; and I was per- mitted to ask the Rev. Erasmus Middletou (the tirst witness, and, therefore, 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 object was to see what intention Lord George Gordon hail, which could be collected only from what passed before — "Did you, at any of these numerous meet- ings of this Protestant Association, which you attended from the tin.e Lord George Gordon became president of that society," (which was two years before^) " till the 2t3th 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 association, 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 lam going to ask ; a cunning, artful man might stand up in a Protestant association, and hold forth great professions when he meant the contrary ; but no man, who reposes confidence in the bosom of a friend, building himself upon the honor and honesty of his friend, when he tells him what his object is, will deceive him. Good God ! if I were to ask people, did not Mr. Hard}-, in the Corresponding Society, say that the Duke of Richmond's plan 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 iu 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 defence he called many persons of quality to speak to his atfection toward the government, and his detestation 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 ]78U and might change upon the subject, but yet the criminal law of England looks out industriously to see how it can interfere iu favor of liberty and life, not trjmg how it can shut out the light, but liow it can let it shine in ; even that question, which I do not think one of the strictest, was suffered to be 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 ; but 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 so 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,) "if you please to give some account of my con- versation ?" 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 probability 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 improba- bility of his being guilty of the crime imputed to him. Doctor Burnet says : " He always expressed 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 ititent on -the part of the President to select a tool to take possession of the War Office, he asked first the General of the army, Grant, and when he failed hjm, who next? The next most honored soldier that we have, Sherman. He was a tool! 468 IMPEACHMENT OF THE PRESIDENT. 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 Ofiice. 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 honorable 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 requisiti(m — that the President had put him there to drive Congress out of these halls, and that he intended to put Sherman there to become his tool 1 Would the gentleman dare to say that? Would the President, in the first place, have dared to make such a proposition 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 Sherman, that could not be made a tool of? And yet this is all to be shut out from the defence of the President ! 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 — 1 forget the date — before a certain association, he was allowed to go into proof running through a period of two years before that in meetings of that same association, that, instead of encouraging risings or insurrections, he had set his face against them. All 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 lime, not during the time when they say the intent arose, but long prior to that time, when, in fiict, 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 of 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 1&G7 with the appointment of Cooper, as the}' say. Tliis 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 circumstance they can against him to raise the presumption that he intended to carry it out. Now, we Avant to show his acts and his declarations during that time to dissipate this idea that the I'resident had any unlawful intent, to show that he was not seeking after n tool, but seeking for an honest, honorable, high-minded soldier — to do what? That which was unlawful? No; but to do that which th(! I'resident thought belonged to him. We will show you that he asked General Sherman if he would take that ofiice U[)on the removal of Mr. Stanton, and then said to (Jeiieral Sherman Mr. Manager Bii'ii,kk. That is not allowable. ^ Mr. Stanhkrv. AVhat ! that 1 cannot slate what we are going to prove? I insist on it as a right. IMPEACHMENT OF THE PRESIDENT. 469 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 loug at the bar not to know that I have that right. The gentleman may answer my argu- ment, but I hope he will not stop it. Mr. Manager Butler. If you look at the book you hold in your hand you will fold that Erskine stopped the attorney general in precisely the same case from which you have quoted, and said, " You must not read a letter." Mr. Stanbery. "Must not read a letter!" 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, J[r. 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 i-ead; 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 cover- ing 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 tnat his intention was fair, honest, and legal ? Undoubtedly such is the law, and it is upon this ground that we ask the intro- duction of the testimony 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," because 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 evidence are founded upon the good sense of mankind, 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 can- not understand this question of evidence; and if the plain rules of fair judg- ment and fair examination are applied to it, as I doubt not they will be, there can be no difficulty in the matter. I agree that I labor, not under any weight of the argument that has just been put forward against me, but labor under the weight of the opinion of the pre- siding officer, who, deciding without argument, has told the Senate that in his opinion this came within the previous ruling, which I supposfe to be the ruling of yesterday. If it did I should not for a moment have troubled the Senate, because I have long since leai"ned, however they may be against me, to bow to the decisions of the tribunal 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 between the President and you in regard to the removal of Mr. Stanton V " What conver- sation;" it does not ask for acts now; pray, gentlemen, keep the distinction. " What conversation took place between you ?" is the question, and upon that the Senate will vote. 470 IMPEACHMENT OF THE PRESIDENT. Now, how is this attempted to be supported 1 I agree that the first part of the argument made by the learned Attorney 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 ?o, I trust, without any immodesty, because he adopted all I said as his own, which is one of the highest compliments 1 ever had paid to me. I thought it was a good argument, senators, Avhen I made it to you; I hoped it would convince yon that it was right; but it foiled. If it can be any better now in the mouth of the Attorney General 1 desire to see the result. I was arguing about putting in the Presi- dent's act in appointing Mr. Cooper. I tried in every way I 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 Oliio 1 I think not. Of course you will allow nie to have so much sclf-gratnlation 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 attempting to prove, not a declaration of Mr. Johnson, 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. 1 do not think that we have that appreciation of him. Whatever appreciation the President might have, we never had that. What do we charge ? We charge that he used the man whom we saw on the stand here before as a tool, and judge ye on your consciences whether he is not on his appearance here a fit instrument. 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 playful to Karsner, playful to Wil- keson ; 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 meiint to have force to the shedding of blood. Mr. EvARTS. lie said exactly the contrary. Mr. Manager Butlkr. I do not understand the gentleman. Mr. EvARTS. lie said exactly the contrary. Mr. Manager Buti.kr. lie said that he had made up his mind to use force to the shedding of blood. Mr. EvARTS. No; to break a door; but when he thought of shedding blood he retracted his opinion. Mr. Manager Butlkr. And he remained of that mind until the next morning. Mr. EvARTS. No; he did not say that. Mr. Manager Butlkr. 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 riglit ? But I j)ass from that ; I am only calling the atten- tion of the Senate to the distinction between the two. Now, then, how is this attempted to be supported? The learned gentleman from Ohio says what? He says " in a counterfeiter's case we have to |)rove the scitntcr." Yes, true ; and how ? By showing the passage of other counterfeit bills ? Yes ; but, gentlemen, did you ever hear, in a case of counterfcithig, the counterfeiter prove that he did not know the bill was bad by proviiig that at some other time he passed a good bill ] I.s not that the proposition ? We try the counterfeit bill, which we have nailed to the counter, of the 21st of Bebru- ary ; and, in order to prove that he did not issue it, he wants to show that he passed a good bill on tlie 14th of January. It does not take a lawyer to under- stand that. That is the proposition. IMPEACHMENT OF THE PRESIDENT. 471 We prove that a counterfeiter passed a bad bill : I am following the illustra- tion of my learned opponent. Having proved that he passed a bad bill, what is the evidence he proposes ] That at some other time he told somebody 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. 1 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. I will take all that is said of him by all good and loyal men, whether for probity, patriotism or 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 gentle- man. Did you ever hear of good character, lawyers of the Senate; laymen of the Senate, did you ever hear a good character proved in that wayl A man'a character is 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 community, 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 1 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 statements of "unprofessional" matter. I read---I wish the gentleman to attend to what I say now — I- read only so much of the argument of Ersk- ine as showed the application of the cases which I read from Erskine'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 argument 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 declarations 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 ques- tion was, what was his character as a loyal man, and upon that the discussion arose from which citations have been made ; and when the discussion finally terminated, gentlemen of the Senate, what was the question 1 ^ 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, e-\jer hear from him what his objects were— whether he has at all mixed himself in that business ? I have very often conversed with him, as I mentioned before, about his plan of reform ; he always adhered to the Duke of Eichinoud's plan, and said that will be the plan that will be adopted in the end. I disagreed with him about that, and that occasioned it more par- ticularly to be marked in myiuemory; we disi)uted about it, and he always ob.stinately adhered to it, and stated that to be the object of tlie society, and his whole object. Was this said in the confidence of private regard or in public company, where it might be said ostentatiously ? I was never in public company with him ; he and another person were with me 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 sinceritiy and truth? I have every n-ason to believe him to be a very sincere, .simi^le, hnucst man. Mr. Attorney Gourdl. If this had been stated at first to be the question meant to be askech 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 John- son's character for sincerity and truth I will not object, I assure you. That was the whole question ahout which the dispute arose in Hardy's case ; and 472 IMPEACHMENT OF THE PRESIDENT. the Attorney General finally said " if I had known that was what you are after I never should have objected." What was Lord George Gordon's case 1 This is an illustration of the diffi- culty of reading from the arguments of counsel, whether they are made here by me or made by Lord Erskine 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 leadiug a mob of Protestants against the House of Parlia- ment ; 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 gestcc. To meet that, what was the defence ? The defence was the insanity of Lord George Gordon, and upon that defence, 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 defence they have got — tbat 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 defence went into Lord George Gordon'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 Russell's case. Lord Russell's case was one of those so elo- quently denounced by the gentleman who opened for tbe President yesterday as one of those cases occurring under the Plantagenets and Tudors which he would not appeal to for authority. They do drink at our fountain sometimes. Tbey have got back now to those cases which they would lay a^ide yesterday. They have come back to them to-day; but what was there ? The whole ques- tion was, what was Lord William Russell's character for loyalty. The question asked the witness was, what Avas 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 himself against the King and against the government ?" to which the answer was "No;" and then followed the question, "Did you ever hear him express himself in favor of insurrection ?" and the answer was " 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 ?" 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 tbat was treasonable, not what he did say; and that was upon tbe question of his good cbaractcr. Let me call your attention to the other point upon which this is i)resscd, and that seems to be the strong point in the case, becaiise my friend said as he opened it, "this is very vital," hoping, I suppose, that by j)ossibilit.y 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. Staxbkkv. Will the learned manager 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 character. Mr. Manager Butlkr. To that I say I have fallen into no such error. Mr. Stanhkrv. One moment, if you please. Mr. Manager Butlkr. No ; I cainiot allow you to interpolate for the purpose of stating that I did not cite correctly. Mr. Stamhery. One moment for a coi-rection. Mr. Manager Butler. I cannot spare a moment, sir. Mr. Stanberv. I wish to* show only that the very question was put and answered under the decision of the court in that case. Mr. l\Lanager Butler. Allow me to say that I read the only question that was put and directly after it was allowed to be put Mr. Stamjery. I shall have to leave it to my associate. IMPEACHMENT OF THE PRESIDENT. 473 Mr. Manager Butler. Certainly. If you will turn to tlie case you will find it, sir. I began with " Mr. Daniel Stuart examined by Mr. Erskine," 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 objec- tion I could have to it." 1 read from where the court decided down to where the question was put and answered, 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 leaving out a portion of a man's speech, and then commenting upon it. Now, senators, what is the other point 1 and it is the only one I feel any trouble about. That is that some gentlemen may think that this question comes within the decision of yesterday. Yesterday we objected to the Presi- dent's declaration after we said the conspiracy had culminated. It was claimed that they had a right to put in Avhat 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 iutent, 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 off"er 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 Genei'al 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, be 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 Sherman, in order to satisfy the Senate that he did not find one in Thomas ! Do these two things hold together ? Does one belong to the other 1 Because he did not find a tool, a proper man to be made an ad interim Secretary, and to sit in his cabinet as an ad interim Secre- tary, in General Sherman, does that prove that thei-efore 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. ^VTien they are offered I shall be willing to let them go in. Let them off"er 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 conver- sation took place between the President and you?" I agree, gentlemen of the Senate — I repeat it even after the criticisms that have been made — that you are a law unto yourselves. Ton 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 overriile the principles of justice and equity, and to allow the case of the people of the United States to be preju- diced by the conversations of the criminal they present at your bar, made in his own defence before the acts done which the people complain of. That I may, I trust, without offence say ; because there is a law that nuist govern us at any and all times, and the single question is — I did not mean to trouble the Senate 474 IMPEACHMENT OF THE PRESIDENT. with it beforo, and never will again on tins 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 newspaper reporters — anKiNi:. 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 thi; 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 busi- ness ? I have very often conversed with him, as I mentioned before, about his plan of reform ; he always adhered to the Duke of Kichmond's plan. And which declaration Mr. Pkssrndkn. Is that the answer? Mr. Manager Wll.SON. That is tlie answer. And which declaration canoe Avithiii the exception to the rule laid down by the chief justice. The final question was then put : From all ihat you havc^ seen of him, what is his character for sincerity a)ul truth? I have every reason to believe him to be a very sincere, simple, honest man. IMPEACHMENT OF THE* PRESIDENT. 479 To which the attorney geneial said : If this had bceu stated at first to the question meant to he asked, I do not see what pos- sible objection 1 could have to it. Mr. Fessenden. Does not that remark apply to both questions? Mr. Manager Wilson. That remark applies* to the last question. The remark was made after the last question was put; but:, as 1 understand it, the two questions are substantially the same, and are connected, and the i-emark of the attorney general applied to both, as the first was the basis, the inducement to the last, Mr. Fesse.vdeiV. They were put consecutively? Mr. Manager BtiTLER. 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 General Sherman 1 It is this : In that interview what conversation took place between the President and you in regard to the removal of Mr. Stanton ? Now, I contend that that calls for just such declai'ations 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 admitted, where are we to stop ? Who may not be put upon the witness-stand and asked for conversations had between him and the President, and at any time since the President entered upon the duties of the presidential ofldce, to show the general intent and drift of his mind and conduct dyring the whole period of his official existence ? And 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 pretence of merely defending the respondent, to try a question of veracity between the General of the army and the President of the United States 1 The interview out of which that question sprung occurred 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 otHcers, and the General of the army, in order that the preponderance 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 before. Mr. Manager WiLso.v. Yes; only the day before. We certainly must insist upon the well-known and long-established rule of evidence being applied to this particular objection, for the purpose of ending now and forever, so far as this case is concerned, these attempts to put in evidence the declarations of the Presi- dent, made, it may be, for the purpose of meeting an impeachment by such weapons of defence. It is offered to be proved now, as tlie counsel inform us, that the President told General Sherman that he desired him to accept an appointment 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 applying to this pretended purpose of the President 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 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 froni office, was without a 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. 480 IMPEACHMENT OF THE PRESIDENT. The cninipcl rofrain from noticing tbis ansAver to the President's assertion, so often uiiide, that he was only endeavoring to manufacture a lawsuit and get a cafie into the courts ; and I am led to believe that the purpose was not the ]iarmle.ss one of getting the Liciitenant General of the army in the position of Secretary of AVar, by way of enabling the respondent to secure a judicial decision of the coute^^ted question to which the President and Secretary Stanton were parties, but for the purpose of getting possession, as we have charged, of that department for his, the respondent's, own purposes, and putting Mr. Stanton in a position where he could not get into court and secure a judgment upon his title to that office — not, 1 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 actnal possession of his office by getting General Sherman 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 of this city, then the Adjutant General of the army, or some other pt-rson equally pliant, could be put into the place vacated by General Sherman, The President 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 of place and power luitil he came to Adjutant General Thomas., Then he found the person who was willing to undertake 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 defence by giving in evidence his own declarations at a time not embraced in any of 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 offence therein. If the officer or the criminal may make his own defi'uce 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 produced by the learned counsel for the President, for under it, and by force of it, the testimony now offered must be excluded. The CiHKF Justice. Senators, the Chief Justice has expressed the opinion that the question now proposed is admissible within the vote of the Senate of yesterday. He will state briefly the grounds of that opinion. The question yesterday had reference to a conversation between the I'resident 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 conver- sation relating to the same subject-matter between the President and General Sherman, which occurred before the note of removal was written and deliv- ered. Both questions were asked for the purpose of proving the intent of the President in the attempt to remove Mr. Stanton. The Chief Justice thinks that proof of a convcjrsation shortly before a transaction is better evidence of the intent of an actor in it than jiroof of a conversation shortly after the transaction. The Seci'etary Avill call the roll. Mr. Dkakk. Will tin; Chief Jnstice bi! so kind as to state the question sub- mitted to the Senate and about to be voted on '( The Chikf Justice. The Secretary will read the question. The Secretary read as follows : Q. In tliat interview wliat conversutiou took place between the I'resiJont and yon iu regard to the removal oi" Mr. Stuntou? IMPEACHMENT OF THE PRESIDENT. 481 The Chief Justice. Upon tliis question the yeas and nays have been tliMnanded, and have been ordered. Senators, you who are of opinion thit 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. Autliony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fesscnden, Fowler, Grimes, Hendricks, Johnson, McXJreery, Morgan, Norton, Pattei"sou of Tennessee, Ross, Sprague, Sumner, Trumbull, Van Winkle, Vickcrs, and Willey — 23. Nays — Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Ednuinds, Ferry, Frelinghuysen, Harlan, Henderson, Howard, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hanipshire, Pomeroy, Ramsey, Sherman, Stewart, Thayer, Tipton, Williams, Wilson, and Yates— 28. Not Voting — ISIessrs. Howe, Saulsbury, and Wade — 3. So the question was ruled to be inadmissible. Mr. Stanbery, (to the witness.) General Sherman, in any of the conversa- tions of the President while you were here, what was said about the department of the Atlantic ? Mr. Manager Butlrr. 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 (^HiEF Justice. The Secretary will read the question. The Secretary read it, as follows : What do you know about the creation of the department of the Atlantic ? Mr. Manager Butler. We have no objection 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 w^e do not see how this is in issue, if the presiding officer Avill instruct the witness, as in the other case, to separate knowledge from hearsay, we shall make no objection. I have no doubt the general knows the distinction himself. I desire to ask, do these gentlemen ask for the President's declarations under this? The Chief Justice. Do the counsel for the President ask for the President's declarations ? Mr. Stanbery. I may misianderstand the honorable managers, but I under- stood them to claim that the I'resident created the department of the Atlantic as a part of his unlawful intent by military force to oust Congress, or some- thing of that kind. Do I understand the gentlemen to abandon all claim in regard to the department of the Atlantic 1 j\Ir. Manager Butler. I am not on the stand, Mr. President. When I am I will answer questions to the best of my ability. The presiding officer asked the leai-ned 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 President'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 statements made by the President. Mr. Stanbery. Is'ot merely that ; what we expect to prove is in what manner the department of the Atlantic was created ; who defined the bounds of the de- partment of the Atlantic ; Avhat was the purpose for which the department was arranged. The Chief Justice. Is this conversation 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 31 IP 482 IMPEACHMENT OF THE PRESIDENT. Mr. Eva R IS. Prior. Mr. Stamjery. Prior to tlie time, I believe. The Chief Justice. The Chief Justice will submit the quer>tiou to the Senate. Mr. ]\ranager Butler. I do not see that there ia any question. I stated The Chief Justice. The Secretary will read the question. The Secretary read it, as follows : "SVliat do you know about the creation of the department of the Atlantic ? Mr. Manager Butler. I suppose a department can only be created by au order. The Chief Justice. Does the honorable manager object to the question as put ? Mr. Manager Butler. I object to the question altogether ; but, if it is to be put at all. I w^ant it expressly, carefully guarded, not to put in any declarations or any information learned from the President. The Chief Justice. The Chief Justice 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. Staxbery, (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 Secretary of War ad interim 1 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. Stanberv. Yes, sir, (handing it to Mr. Majiager Butler.) 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 Senators, the ground, as we understand it, upon which the offer, in the form and to the extent in which our question which was overrnled 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 devo- lution of office then presently upon General Sherman. Mr. Manager Butler. To that we simply say this is not the way to prove executive action. Anything done by tiie Executive we do not object to. Applications made in a closet cannot be put in, whether in tlie form of declara- tions or otherwise. Mr. Sta.n'bery. Of course, Mr. Chief Justice and Senators, if Ave offer to prove the actual appointment of General Sherman to be Secretary of War ad intcrhn, 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 oBer now is, not a declaration, but an act ; a thing proposed by the President to General Sherman, unconnected, if you please, with any declaration of any intention. Let the act speak for itself. Mr. Manager Butler. Verbal or written ] Mr, Stan'bery, Verbal. Would it 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 u[)ou now we have not discussed at all. It is au act; a thing proposed ; an office tendered to a party unaccompanied by any declaration at all. " General Sherman, will you take the ])osition of Secre- tary of War ad iutcrim ? " Is not that au act.'.' Is that a declaration merely IMPEACHMENT OF THE PRESIDENT. 483 of intontion ? Is not that the offer of the office? We claim that it is; and we say, therefore, it does not coinc within the que.'^tion of dechirations at all. He is not declaring anything about 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 you." 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. Mr. Manager BuTLBR. I propose only to claim my right to close the discussion just to call the attention of the Senate to this. Suppose he did offer it, what does that prove 1 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 diffi- culty is, while it is not within the statute of frauds, I think it is within every- thing 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 re.specting your acceptance of the duties of Secretary of War ad interim '! The Chief Justice. The Chief Justice will pnt 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 : Q. Answer the question, if you please. General Sherman. The WiTiVESS, (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 ? A. The President tendered me the office of Secretary of War ad interim on two occasions ; the first was on the afternoon of January 25, and the second on Thursday, the 30th of January. Q. Mr. Stanton was then in office, was he? A. Mr. Stanton was then in office as now. Q. Was any one else present ? A. I think not, sir. Mr. Mooro 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. A. To both of them I replied in writing. My answer to the first is dated on the 27th of January; my answer to the second is dated on the .31st of January. Q. Did yon receive any communication in writing from the President on that subject ? A. £ did not. Q. What was the date of your first letter ? A. The 27th. Q. Is that letter to the President or to General Grant ? A. According to my notes, the letter is 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 record-book. Q, Now, referring to the time when the offer was first made to you by the President, 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 concomitantly with that act? 484 IMPEACHMENT OF THE PRESIDENT. Mr. Mana"-er Butler. I suppose yon mean to except tlie answer? • Mr. SxAXnERY. I ask in reference to that very thing as concomitant with theact. Mr. lifanager Butler. Wg object, for the very plain reason that this is now getting in the conversations again. j\[r. Stanberv. You have got the act. Mr. Manager Butlek. Ah, yes, senators ; I call your attention to the man- ner in which this case is tried. I warned yon 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 1 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 senators 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 the 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 warn- ing 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 id a part of the attending qualifying trait and character of the act itself. Mr. ^lanager Butler. To that I answer, senators, that here was an imma- terial act — mark, an act wholly immaterial. The only qualification that could be put in would be the answer, perhaps, of CTcneral Sherman; that is not ofiered; but the offer is to put in an incompetent conversation as explaining an immaterial act. What is the proposition put forward hei'e ? 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 lie 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 luidertake — no ; it is not worthy of words or assevera- tion. A criminal on trial puts in his act, presses it in, and then s lys, " 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 ^Ir. ]\Ianager Bntler. Mr. Manager Butleu 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 wliit'li tlio foiuli'r of tlie duties of the Secretary of War ad interim was made to you by tlie I'lesideiit, i:tlkk. No, sir. The CiMKF Justice. The question will be read by the Secretary. The Secretary read as follows : At either of these interviews was an3'thing said in reference to the use of threats, intimi- dation, or force, to get possession of the War OfKce, 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 Chi EF Justice. Have the counsel for the President any further questions ? Mr. Stanbery. We are considering, IMr. Chief Justice, whether there is any other question we have to put to General Sherman. Mr. Anthony, (at 4 o'clock and 37 minutes p. m.) 1 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-exam- ine this witness. Mr. Manager Butler. Not at all, if we can only get the other side through with him. Mr. CoNKLlNG. 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. Anthony, and he responded. Mr. Thayer. Mr. President, I rise for information. I desire The (^HIEF 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 defence said in regard The Chief Justice. Debate is not in order. The Secretary will proceed ■with the call. The Secretary concluded the call of the roll, and the result was announced — yeas 20, nays 32 — as follows : Yeas — Messrs. Anthon}-, Pjayard, Buckalew, Davis, Dixon, DooUttle, Edmunds, Fowler, Grimes, Henderson, llendiicks, Howe, .Johnson, McCreery, Morton, Norton, Patterson of Tennessee, Trunihtill, Van Winkle, and Vickers — SO. Nav.s — Messrs. Cameron, Cattell, Ciiandler, Cole, Conkling, Conness, Corhett, Cragin, Drake, Ferry, Fes.senden, Freliiifrhuysen, Harlan, Howard, Mqrj^an, Morrill of Maine, Mor- rill of Vermont, Nye, Patterson of New Hampshire, Ponieroy, Kamsey, Ross, Sherman, 8prag:ne, .Stewart, .Snmner, Thayer, Tipton, ^\'illey, Williams, W^ilson, and Yates — 32. Not voting — Messrs. Saulshiiry and Wade — 2. So the Senate refused to aj:ljourn. Mr. Stanijery. Mr. Chief Justice, I will state to the managers and to the Senate that, under these rulings, we are not now prepared to say that we have any further questions 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 examine him. Mr. Manager Butler. We are very desirous that the examination of this wit- ness should be closed, if possible Mr. Manager Bingham. Oh, no; we have no objection. i\Ir. 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 impeach- ment, adjourned until Monday next at 12 o'clock. IMPEACHMENT OF THE PRESIDENT. 491 Monday, April 13, 1868. The Chief Justice of the United States entered the Senate chamber at 12 o'clock and 5 minutes p. m., and took the chair. The usual proclamation havinj^ been made by the Sergeant-at-arms, The managers of the impeachment on the part of the House of Representa- tives appeared and took the seats assigned them. The counsel for the respondent also appeared and took their seats. The presence of the House of RejH-csentatives 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 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 15 minutes past 12 o'clock. Mr. Stewart, I move that the further reading of the journal be dispensed with. The Chief Justice. If there be no objection, the further reading of the journal will be dispensed with. The Chair hears no objection. Before the counsel for the President proceed, the Chief Justice will state that on Saturday last the senator from New Jersey [Mr. FrelinghuysenJ 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 without 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 manaj^ers 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 Massa- chusetts. The Chief Justice. The question will be on the order as modified. Mr. Manager Williams. j\Ir. President, with your leave, and yours, gentle- men 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 ou 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 trial 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 trifiing extent. I am not here to contest the right of this tribunal sitting as a court, or of any other judicial tribunal, to impose such reasonable limitations upon the freedom of speech as 492 IMPEACHMENT OF THE PRESIDENT. the interests of justice may require, or as may be necessary f o facilitate its proper administration. I admit that time is legitimate consideration; but in the text of Magna Charta, it comes, I tliink, after justice : " we will not sell, we Avill not deny, we will not delay right or justice." It struck me, howev^er, that the effect of this rule was to create a condition of things which was calculated, in some degree, to embarra:*s the gentlemen who have been sent here to conduct this case on the part of the House and the people. The House, acting upon its discretion and upon a full conscious- ness of the importance of this case, has devolved this responsible 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 debate upon this question — I mean the final debate, and I take that to be really and substantially the only import- ant one — 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 concedes in its proceedings here, in the articles 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 imposed upon them by the House of Representatives, if this honorable body had undertaken to say liow 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 tliis way, the managers, as I have observed, would have been relieved, because they could then have distributed 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 them, distribute the parts in this drama, if I may be allowed to call it so, they directed their chairman to make this ap- plication. 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 result in ordinary cases ; and this, I think, will not be considered one of that description. There have been but five cases within our history of impeachments liefore riie Senate of the United States. The first of them was the case of Blount, which was tried, I think, in the year 179S. 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 defence put in — if there can be said to have been a defence put in regularly, where the respondent did not appear by counsel — was insanity. That question was tried in advance ; it was ruh;d against him ; and therenj)on, upon the motion of the members of the House, at the special ins^tance and upon the special order of the House itself, to whom, I believe, the question was then referred, the case was submitted without argument, and a judgment rendered against the defendant. BirEACHMENT OF THE PRESIDENT. 493 The third cnse was that of Justice Chase. There the numher of managers was seven Thi-y 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. llandolph, 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 tin; argument. In none of these cases does there seem to havebeen — I may be mistaken, and stand subject to correction if I am wrong — any question 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 Humphreys. That took place at the commencement of the war. There there was no appearance, and of course no defence, and a sort of judgment was taken by default, something, perhaps, in the nature of a judgment of outlawry. 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 precedents ; but thei-e is one case in British history Avhich is familiar to all of us, which is associated, I may say, with, the school-boy recollection of every 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 Avliich it involved, but by the fact that it was illustrated by the splendid genius of some of the greatest men that England 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 Company — 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 another reason for it, and that was its long duration It continued, I believe, for as long a period as seven years. I beg senators to understand 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 argumenta' tion ^v!\s distributed among all the managers, the articles being numerous, com- plicated, and elaborate, though I su})pose that the fact of all the managers par- ticipating had nothing to do possibly with the prolongation of the time. And now, in view of these precedents, 1 would desire to ask how does the present case compare with them ? Is it an ordinary one ? Why, it dwarfs them all into absolute nothingness. There is nothing in the world's history that com- pares 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 difticulty 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 district court of the United States ? That of a custom-house officer i' No. It is the case of the Chief Magistrate of a great people, of an enquire reaching from ocean to ocean, and comprehending within its circumference forty millions 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 case of a judge of the Supreme Court — and from my habitual 494 IMPEACnMENT OF THE PRESIDENT. 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 impose 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 consequence, or that it was so plain that the judges required no professional research and no argument to aid them. And now I desire only to say in conclusion, in order that I may not be misun- derstood, 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 out- live 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 unwil- ling judge, whatever may be the reasons by which he may be influenced, wliether he may regard the case as too clear a one, or whether he may consider it as so iniimportant as not to be entitled to a reasonable amount of time. I do not know, if you relax this rule, whether I shall be personally able to take advan- tage 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 ad'litional to what may be said by others. I felt it, however, to be my duty to enter my pro- test — and I do it most respectfully — against what may be drawn into a prece- dent hereafter. If in a case like this the argument may be limited to tM'o, how will it be when another supreme judge is arraigned before another Serate for high crimes and misdemeanors ? I take it for granted that, measuring things by their comparative proportions, another Senate 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 Stkvens. Mr. Chief Justice, 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 some- where held responsible for introducing, and a single article only, which I wish to argue at a very brief length ; but I desire that my colleagues siionld have full opjjortunity to exercise 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 gentleman here would occupy, for I find they occupy three days sometimes here. I am 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 posi- tion that I owe it to myself and to the country to give the reasons why I insisted, with what is called obstinacy, in introducing 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 maki- tliis suggestion, and beg the pardon of the Senate for having obtruded thus long upon tlieir time when they ought to proceed. The Chief Justice. Do the counsel i\n- 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. IMPEACHMENT OF THE PRESIDENT. 495 The Chief Justick. The araendment will be read by the clerk. Mr. Frelixghuysb.v. 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 number 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 tinal argunieut as shall choose to do so : Provided, That the trial shall pro- ceed without any further delay or postponement on this account: And provided further, That only one manager shall be heard in the close. The amendment of the senator from Ohio (Mr. Sherman) 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 managers 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 Ilepresentatives 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 consider that in the trial of Judge Prescott, in Massa- chusetts — 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. Webster — 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 tribunal 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 respondent 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, arid as proposed to be modified by the member from Ohio. The Secretary read the order as modified by Mr. Prelinghuysen, 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 under- stand the amendment 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 proviso that the additional time shall not be more than three hours. The time already is indefinite. 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 496 IMPEACHMENT OF THE PRESIDENT. as to tinio. I do not know in what position we pli.onld be if this amondraent 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 maybe no misunder- standing hereafter ; 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 purpose of delay. I think the Senate can have enough confidence iu 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 v^e 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 tis 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 necessary ; every moment neces- sary for the case, not a moment unnecessarily in our best judgment as to how we are to present the case. I 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 important case even before that court Avhich limito each argument of counsel to two hours generally, whenever the court is asked iu an important 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 embawassed. 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 important matters. Now, I hope it is not necessary to suggest that counsel are not here to use unnecessary time, who have a reputation to sustain before the world and before this Senate. I beg them not to decide tliis question upon any idea tliat we have abused the liberty which is or may be accorded to us. Mr. SnHRiMAN. Mr. President, I will Avithdraw my amendment, as I see there will be difficulty in discriminating betAveeu those Avho are limited b}' time and those who are not. The CfiiEF JusTicK. The senator from Ohio withdraws his amendment. The question recurs on the order proposed by the senator from New Jersey, as modiiied by him. Mr. Manager BuTLKR. I do not rise, sir, to debate this question, but simpl)'- to ask the counsel for the President, while they do not ask fdr this, whether they desire it 1 1 should like to know whether they desire this extension ? 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 1 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, I do not, in any event, under any relaxation of the rule, propose to trespa.ss a singh; moment in the closing argument upon the attention of the Senate, but to leave it to the very much better argumentation of my associates. Therefore 1 speak wholly without any wish upon, my own part except that such argumentation may he had as shall convince the country that the case has been fully stated on the one side ami the other. Mr. SuAlNKK. Mr. I'resident, 1 should like to have the resolution reported. The CliiKF JuS'ri(;K. The Secretary will wdA the resolution again. The Secretary read as follows : Ordered, That as iiiuny ui' the iiiaiiagcrs and uf the coun.sel for the President be permitted IMPEACHMENT OF THE PRESIDENT. 497 to speak on tlie final arp^ument as shall choose to Jo so: Provided, That the trial shall pro- ceed without any further delay or jiostponement ou this account : And provided further, That only one manager shall be heard in the close. Mr. Sumner. Mr. Presiflent, I move to strike out the last proviso and insert the substitute which I send f.o the chair. The Chikf 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 only one manager shall be heard in the close. And in lieu thereof to insert : And provided. That according to the practice in cases of impeachment the several mana- gers who speak shall close. Mr. Co.NKMNG. I beg to ask an answer from the counsel for the President to the question propounded by Mr. Manager Butler. Mr. EvARTs. I was rising, Mr. Chief Justice and Senators, to say a word in reference to this question when the senator from Massachusetts sent up an amend- ment CO the Clerk. It Will not be In the power of the counsel for the Presi- dent, if the rule should now be enlarged, to contribute the aid of more than two additional advocates in behalf of the President. The rule was early adopted and known to us, and the arrangement of the number of counsel was accommodated to the rule. Beyond 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 be the odds which we should need to meet, we naturally might feel some interest, par- ticularly if it is a proposition to be entertained by the court that all our oppo- nents should speak after we had g'ot through, and we should have 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 be should have an opportunity to know and reply to the argument of the other. Now, the present rule, very pro gerly as it seems to us, and wholly in accordance with the custom of all matters of forensic debate, thus disposes of the matter by requiring that the managers shall open by one of their number, 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 Justice. Senators, the question is on the amendment proposed by the senator 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 authority 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. William.?) announced his purpose to test the sense of the Senate in regard to whether they will alter the rule at all, the Chief Justice coixceives his motion to be in order. Mr. Williams. I ask for the yeas and nays on the motion. 32 I P 498 IMPEACHMENT OF THE PRESIDENT. The yeas and nays were ordered, and taken. Mr. Anthony. Jly colleague (Mr. Sprague) Ims been called away by a summon? to attend the bedside of a friend with whom he has held the most intimate relations for 20 years, and who sent a request by telegraph that be would come and see him before he died. I make this explanation, as under no ordinary circumstances wobld he have been absent from the service of the Senate even for a single day. The result was announced — yeas 38, nays 10; as follows ; Yeas — Messrs. Buckalew, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Crao-in, Drake, Edmunds, Ferry, Fessendeu, Harlan, Heudersou, Hendricks, Howard, Howe, Jobu.son, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Van Winkle, Viekers, AYilliams, Wilson and Yates — 38. Nays — Messrs. Anthony, Davis, Dixon, Doolittle, Fowler, Grimes, McCreery, Patterson of Tennessee, Trumbull, and Willey — lU. Not voting — Messrs. Bayard, Frelinghuysen, Nye, Saulsbuiy, 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 defence. William T. Sherman's examination continued. By Mr. Stanbery : Question. After the restoration of Mr. Stanton to the War Office upon the vote of the Senate, did you form an opinion as to vrhether the good of the ser- vice required another man in that office than Mr. Stanton ? ]\Ir. 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. StaniTERY. I am perfectly willing to do so, though I can hardly be called to do so at tlie 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 pardon?. 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. Stanbbry. Mr. Chief Justice, my impression was that that rule aj)plied 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 he or any senator shall require it, they shall be conunitted 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 the 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 7 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 cer- tain exceptional cases, cases involving professional skill, &c. ; it is not ueces- IMPEACHMENT OF THE PRESIDENT. 499 sary that I shoulvl enumerate them. It is not to be supposed for a momeut that there is a member of the Seuate who can entertain the opiiiiou that a question of the kind now presented is competent under any possible circvuii- stauces in any tribunal of justice. It must occur to semitors 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 truthfulness or veracity of the witness. There is noth- 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 viola- tion of the laws of the land. It is a question 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 requi- site 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 compe- tent for forty thousand 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 oi- might be indiiferent 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 gentleman know is vital to their case, which they know as well as we know they must make out by some proof or nther) 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 insisted 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, in his place. Upon that question of conduct, senators, what now do we propose to offer to you i* 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 difficulty in which that office was, by the restoration 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 better judge of the good of the service than the distinguished officer who is now about to speak 1 But the gentlemen say what are his opinions more than another man's opinions, if they are merely given as abstract opinions 'i 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 comnmnicate it to the President, that the good of tin; service required Mr. Stanton to leave that department ; and that in your judgment, acting for the good of the service, some other man oiaght to be there 1 This is no declaration of the President we are upon now. This is a commu- nication 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 complica- tion there that must, in some way or other, be got rid of; for look at what the managers have put in evidence ! It appears by Mr. Stanton's own statement, 500 IMPEACHMENT OF THE PRESIDENT, that from the 12th of August, 1867, j\Ir. Stanton had never seon the President, has never entered the Executive Mansion, lias never sat at that board wliere the President's legal advisers, the heads of departmcnls, are bound to be under the Constitution, Will they say that the relations between him and the President had got to that pitcli that Mr, Stanton was uinvilling to go there lest he might not be admitted ? He never made that attempt ; but that is not all : Mr. Stanton says delilierately, on the 4th of March, in his communication to the House of Rep- resentatives, Avhen he sent the correspondence between the President and Gen- eral 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 1 How is the service to be benefited in that way? Certainly 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 tlie army. But what has the Secretary of War become ? One of two things is inevi- table : he is running the War Depaitment without any advice or consultation with the President, or he is doing nothing. Ought that to be the position of a Sec- retary 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 send- ing him a note of apology that he had ever suspended him. By humbling him- self 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 officb and become a mere loctim tcnens ? Then, when. you are consid- ering the conduct, the intentions, and the matter that is in the mind of the Presi- dent 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 Sherman himself, that the good of the service requireil that that difficulty should be ended, but that General Sherman, as I shall undertake to prove, communicated also the opinion of General Grant to the very same point, and when, as I tell you, Ave shall follow it up by the agreement of these two distinguished generals 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 President first suspended him that he would resign, the Senate being here to take care that the President got no improper man there — now, when you are trying the President for his intentions, whether he acted in good faith or had faith, senators, will you shut out from him the advice that he received from these two distinguished officers, and will you allow the managers still to say that he acted without advice, that he acted for the very purpose of removing a 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 yon not extend to him so much charity as to believe that he would he impressed by the opinions of these two distinguished generals? They say they did not intend to make themselves parties to the controversy, but tln.*y 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 testimony, and 1 trust this is not to be ruled out. Mr. Manager BiiTLKU. Mr. President, Senators, I fin-esaw if we did not remain long enough in session, which tin; late hour of the night on Saturday warned us not to do, to finish this witness, so that oidy tin; usual rule of recall- ing 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 ; IMPEACHMENT OF THE PRESIDENT. 501 and now the proposition is to ask General Sherman whether he did not form an opinion that it was necessary that Mr. Stanton shonld be removed. Mr. Stanbeuy. I did not say "removed." Mr. IManager Butler, (to the Secretary.) Allow me to have the question. I believe I am correct. (Obtaining the question.) What is it? Whether the good of the service required a Secretary of War other than Mr. Stauton, and if so, did you not communicate that opinion to the President. Of course there could not be any other Secretary of War but i\[r. 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. Quousque tandem abutere nostra 2>aticntia ? I am not able to say to what^xtent you will go in ofters ; but I am very glad we are told that is to be done and these tentative experiments are to go on, for what pur- pose, senators, you will judge; certainly for no legal purpose. Now, it is 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 President." Well, if you cannot defend the President 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 that has no relevancy, no pertinency, no competency tmder 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 he came to the opinion that this complication, as he called it, shoitld be broken up. I think most of us came to that conclusion — but how? General Sherman might think it was by removing Mr. Stanton ; General 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 counterbalance the weight of the opinion of the House of Represent- atives ? Again, will the next question be put to General Sherman whether, if he thought it was better 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 article 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, because 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 Avas a bad man, therefore it was for the good of the service to put Stanton out, and therefore the President is innocent in putting him out — that seems to be the proposition. Can we go into this region of opinion ? I speak Avholly Avithout reference to the witness. I am now speaking wholly upon the general princi- ple 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 Sherma;i what were your relations with Mr. Stanton ? Have you bad a quarrel with him? Did you 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 Ave shall have to ask — Avhat Avere the grounds of your opinion ? Again, we shall have to go further. We shall have to call as many men on the 502 IMPEACHMENT OF THE PRESIDENT. other side as Ave can. If General Sherman is put in liere as an expert, we shall have to call Cieneral 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 comnuuiieated their o]nnio7is to the President and to ill". Stanton. But I think nothing can more clearly demonstrate the fVict 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 hure on which side would be the most of them. There is another purpose on which this is put in. 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 Avord of comment, as though the intent has got to be proved by somebody that the Pr^ident told he had a wrong intent. That seems to be the proposition as put forward, 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 hiw 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 ihe lav/ supplies the intent, and says that no man can do wrong intending right. That illustrates this question in another view; because, 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 out, does that justify the President in breaking the law of the land to get him out ? Does that aid his intent ? Shall you do evil that good may come ? Can you do that under any statfe of circumstances 1 The question is not whether it was best to have Mr. Stanton out. Upon that question senators may be divided in opinion. 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 Stanton 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 officer in order to get him out I 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 gf't him out. See where you are coming, senators. It is this, that it is a justiHcation for the President or any other executive officer to break the law of the land if he can show that he did v/liat 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. J^et me illustrate: you senators and house of represent- atives, agreeing together 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 impeached 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 Ilepresentatives on the ground that h<; thought he was doing the best for the servicne replevin case I rumcmbor. Q. Where it is a matter of consequence you do these things when called upon ? A. Certninly. Q. It is nothing unusual for you to do it in such cases ? A. It cannot be taid to be unusual. I would do it at any time. By J\[r. Stanberv : Q. Have you often been called upon in the course of your experience at night ? A. Only three times, and this is one of them. Q. Do you know what became cf this extreme case ? What was done with this criminal ? A. I was not present at the examination. Mr. Staxbb^ry, (to the managers.) Are you through with the papers? Mr. Mana;i,-er Butler. I am through with the papers. Mr. Stanbrhy. Very well. Mr. ^lanager Butler. I have the honor to object, Mr, President, to the Avar- rant and affidavit of Mr. Stanton being received as evidence in this cause. I do not think Mr. Stanton can make testimony against the President by any affi- davit that he can \n\i iu, or for him by any proceedings between him and Lo- renzo Thomas. 1 do not think the warrant is relevant to this casein 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 infer 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 pertinent or relevant to this case or competent in any form, so far as I am instructed. Mr. EvARTS. Ml". Chief Justice and Senators, the arrest of Greiieral Thomas was brought into testimony by the managers and they argued, I believe, in their opening, before they had proved it, that that was what prevented General 1'homas from using force to take possession of the War Office. We now pro- pose to show what that arrest was in form and substance by the authentic docu- ments of it, which are tlie warrant 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 foundation, the warrant proceeded. We then propose to follow the opening thus laid, of this proceeding, by showing how it took place and how efforts were made on behalf of General Thomas by habeas corpus to raise the question for the deti'rmiiiation of the Supreme Court of the United States in r<>gard to this act. Mr. ]\[anager Butler. I understand, Mr. President, that if this affidavit goes in at all, it is then evidence of all that it states, if the genthiuen have a right to put it in. Mr. Evarts. I said otherwise ; but you can have your own conclusion. We do not admit it to be so. Mr. Manager Butler, That is my conclusion, and that was what we should claim ; and 1 think nothing more clearly shows that it cannot be evidence than that fact. This was not an attempt of the President to get this matter before the court ; it was an attem|)t 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 tliat night of the threats made to Biirleigli, the threats made to Wilkeson, and tlie threats made at Willards' llottd, and being informed of them he did not know at what hour this man might bring his mas(|ueraders upon him, and thereupon he took care to protect himself at the earliest possible hour. IMPEACHMENT OF THE PRESIDENT. 511 But how that can relieve the President from crime, Iiow tliat shows tliat lie did or did not commit the act comphained of, because Stanton arrested Tliomas or Thomas arrested Stanton, is more than I can conceive. Suppose Stanton had not arrested Thomas, would it show that the President is not guilty here ? Suppose 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 intn- alios acta, things done between 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. EvAKTS. It has already been put in proof by General Thomas that before he went to the court upon this arrest he saw the President and told him of his arrest, and the President immediately replied " that is as it should be ;" or, " that is as we wish it to be, the question 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 person accused under 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 showing that this proceeding, having been commenced as it was by Mr. Stanton against General Thomas, was imme- diately taken hold of as the speediest and most rapid mode, through a Jiaheas corjius, ill which the President or the Attorney General, or (Jeneral Thomas acting in that behalf, would be the actor, in oi'der to bi'ing at once before this court, the supreme court of the District, the question of the validity of his arrest and confinement under an act claimed to be unconstitutional, with an immediate opportunity of appeal to the Supreme Court of the United States then in session, from which at once there could have been obtained a determination of the point. Mr. Manager Butler. And whenever that is proposed to be shown I pro- pose to show that Mr. Thomas was discharged on the motion of his own coun- sel from arrest by the judge. Mr. EvARTS. Very well ; that is afterward ; we will see about that ; we will prove our case ; you can prove yours. Mr. Manager Butler. Admit this, and the Senate will be travelling into the question of the various facts taking place in another court ; and 1 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 necessary. 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 anywhere who does not under- stand that, and who does not know that the proceedings between two otber per- sons, 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 carried 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 aftidavit at that tim'e, 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 ditl not even know for what he was arrested. All he knew was that he was arrested for something or other ; whether it was for being at the masquerade ball the night before, masked, or what it was he could liot tell ; he do^^s not pretend 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 ? " Tnat 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. 512 IMPEACHMENT OF THE PRESIDENT. Now, they propose to put in Mr. Stanton's aflidavit. It is exceedinji^ly good reading, gentlemen of the Senate, and sets forth the case with great lumiuous- ness. It shows tlie 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 stead- fastness, 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 imme- diate means to prevent the consummation of this crime. It shows the terrdr and alarm which the unauthorized, illegal, and criminal acts of this respondent had thrown this city into at that hour. Undoubtedly all that is in tlic 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. Stanton, which this criminal respondent never undertook, either before or since, although furnished with all the panoply of legal attack and defence in the Attorney General. He never brought his q?{i? loarranto ; 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 im- proper evidence, opening entirely new issues. If you are ready to go into it I am ; but I say it does not belong to this cose. 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 nothing to do with the President; the President never saw these papeis upon any evidence here; and what Mr. Thomas did, and what Mr. Stanton did, they themselves must stand by. Mr. StAiXBEIIY. 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 ai-e two grounds upon which we ask the admission of this tes- timony. First of all, there are already in evidence the declarations of the Presi- dent that he made this removal to bring the question of that law to the consid- eration of the courts. That is already in evidence, and as to that the mana- gers say it is all pretense, all a subterfuge. Mr. Manager Butlrr. Where in evidence '? Mr. Stamjery. 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. Stamjery. Not, except as a last resort, for anything. The gentleman has repeated that this is all pretense of asking to get into the courts, that it is a subterfuge, an afterthought, 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 attempted to make against the President upon his intentions with regard to the occupation of the AVar Office by Thomas ? They have sought to prove that the intentions of the President were not to get it by law but to get it by intimidation, 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, intimida- tion, 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 intimidatik)n are to be considered the declarations 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 accomplishment of the jturpose that was in the mind of the President and in the mind of General Tlioinas. Mr. Manager Bu'J ler. I did not eay so. Thomas said so. IMPEACHMENT OF THE TRESIDENT. 513 Mr. Sta\bery. Thomas paid so ! Tlie Senate will bear me witness who said so, who called that a subterfuge, and who called that a pretence ! 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 commit- ted ; got up under the most pressing necessity, with a judge, as we will show, summoned from his bed at an early hour that winter morning, the 22d of Feb- ruary, at 2 o'clock — a judge brought from the bench, such was the urgent and pressing necessity, either pi-etended or real, on the part of iMr. 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 S5,000, 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, wlien he got there on that day it turned out thus : " Why, we have got no criminal at all ; General Thomas is just as good a citizen as we have in this community." General 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 pur- pose was announced,- all at once. this great criminal and this great criminal 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 contrary, I dismiss you" And the counsel for Mr. Stanton, who were there on that morning, and who had seen this great criminal pun- ished, or, ot any rate, put under bonds for good behavior, 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 preparation, 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 question could be brought before the courts and decided for any pur- pose of any value. Senators, 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 statements 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 impeachment, wait until after we get through with this case. One trial at a time is sufficient. Is he to be 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 defend himself, 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. I 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 testimony 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 33 I P 514 IMPEACHMENT OF THE PRESIDENT, before, lie has never had an idea of force. What, then, was the use of holding him? Now, I wi.een submitted in due form of law to the Senate of the United States, and his said nomination had been duly assented to and confirmed by and with the advice of the Senate ; and he, the said Edwin M. Stanton, had duly accepted said office, and taken out and subscribed all the oaths required by law, upon his induction into said office, and was in the actual possession of said office and per- forming the duties thereof on the said 21st day of February, A. D. 1868, and he had never resigned said office, or been legally dismissed therefrom, and he claims that he does now legally hold said office, and is entitled to all the rights, privileges, and powers thereof. And the said Edwin M. Stanton on oath further states that on said 2lst day of February, 18G8, in the city of Washington aforesaid, Andrew Johnson, President 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, from the said office of Secretary' for the Department of War, and authorizing and empowering Loreuzo Thomas, Adjutant General of the army of the United States, to act as Secretary of War ad interim, and directing him, the saidTliomas, to iuunedi- ately enter upon the discharge of the duties pertaining to that office. And your affiant further states that the said pretended order of removal of him from the said office of Secretary of War is wholly illegal and void, and contrary to the express provisions of an act duly passed by the Congress of the United States on the 2d day of March, A. D. 1867, entitled "An act regu- lating the tenure of certain civil offices." And your affiant on oath further states that the said Lorenzo Thomas did, on said '^Ist day of February, A. D. 1868, in said city of Washington, accept the said pretended appointment as Secretary' of War ad interim, and on the same day left with your affiant a copy of the said pretended order of the President removing your 516 IMPEACHMENT OF THE PRESIDENT affiant as Secretaiy of .War, and appointing the said Lorenzo Thomas Secretary of War ad interim, ceiiitied by the said Lorenzo Thomas under his own hand as Secretary of War ad interim. And on the same "il.st day of Fehruary, A. D. 18(5:^, in the city of Washington aforesaid, the said Lorenzo Thomas delivered to your affiant the said pretended order of Andrew Johnson, with intent to cause your affiant to deliver to him, the said Thomas, all the I'ecords, books, papers, and other public property now in his (the affiant's) custody and charge as Secretary of War. And your affiant further states on oath, and that he is informed and believes that the said Thomas has, in said city of Washington and District aforesaid, exer- "cised and attempted to exercise the duties of Secretary of War, and to issue orders as such; and your affiant is also informed and believes that tlie said Lorenzo Thomas gives out and threatens that he will forcibly remove your complainant from the building and apartments of the Secretary of War in the War Department, and forcibly take the possession and control thereof under his said pretended appointment by the President of the United States as Sec- retary of War ad interim. Aiid yoiu- afKant alleges that .the appointment under which the said Thomas claims to act, and to hold and perform the duties of Secretary of War, is wholly unauthorized and illegal, and that the said Thomas, by accepting such appointment, and thereunder exercising and attempting to exercise tlie duties of Secretary of War, has violated the provisions of the fifth section of the act above referred to, and thereby has been guilty of a high misdemeanor, and subjected himself to the pains and penalties prescribed in said fifth section against any person committing such oti'euce. AVhereupou your affiant prays that a warrant may be issued against Lorenzo Tliomas, und that he may be thereupon arrested and brought before your honor, and thereupon that he may be dealt with as to the law and justice in such case appertains. EDWIN M. STANTON. Sworn and subscribed before me this 21st day of February, A. D. 18(58. D. k. CAKTTER, dhicf Justice. Sworn to and subscribed before me by Edwin M. Stanton at the city of Washington, in the District of Columbia, this 22d day of February, 1868. B.K. CAllTTE'R, Chiff Justice. The wan-ant is dated the 22d of February, ISGS. Mr. Stanbery. First the 21st and then the 22d. It is dated before 12 o'clock, and then after 12 o'clock. Mr. EvARTS. 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 Columhia, ss ; To David S. Gooding, United States marshal for the District of Columbia : I, David K. Cartter, chief justice of the supreme court of theJDistrict of Columbia, hereby command you 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 court in the city of Washington, forth- with, to answer to the charge of a high misdemeanor in this, that on the 21st day of Feb- ruary, 18t3iS, in the District of Coluuibia, he did unlawfully accept the aiipnintiuent of the office of Secretary of War ad interim, and did then and there unlawfully liold and exercise and attempt to hold and exercise the said office contrary to the provisions ot the act entitled " An act regulating the tenure of certain civil olHces," passed March 2, 1807, and hereof fail not, but nuike due return. Given under my hand and seal of said court this 22d day of February, 1868. fL. s ] D. K. CARTTER, Chief Justice of the Supreme Court of the District of Columbia. Attest : R. J. MEIGS, Clerk. The marshal's return is as follows : Washington City, D. C, Fchruanj 22, 1868. Tlie 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. m., and I now return this writ and bring him before Chief Justice Curtter at nine o'clock a. m. of to-day. DAVID S. GOODING, United States Marshal D. C. By Mr. Stanuery: Q. Mr. Meigs, I perceive this is a judge's warrant at chambers? A. Yes, sir. Q. Are you in the habit of keeping any record further than filing the papers, or did you make any record further than liliug the papers of that proceeding ? IMPEACHMENT OF THE PRESIDENT. 517 A. "When the recognizance was executed that was put upon the docket of the court. You will see that the warrants are marked with a number. Q. The recognizance of bail ? A. 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. Q. AVell, has this defendant been discharged? Mr. Manager Butlek. Stay a moment. That will appear by the record. The Witness. Yes; that will appear by the record. By Mr. Stanberv: Q. Have yon a record of the discharge also 1 A. The docket shows that. Q. Is that the docket of the judge or the docket of the court? A. The docket of the court. Q. Does the judge return the case into court? A. The recognizance of course is returned into court. Q. I am not speaking of the recognizance; I am speaking of this case. A. The recognizance was taken upon that case, and was returned into court, and was entered upon the docket of the court. Q. You make no record of these papers 1 A. No; no record of those papers. They are filed, and constitute a part of the record of the case at court. Q. Have you got your docket with you ? A. No, sir. The subpoena did not require it to be brought, and of course it was not brought. Mr. Stanberv, (to the managers.) We will have the docket if you require it, gentlemen. Do you want that formal matter ? Mr. Manager Butler. A little more than that. Mr. Stanbbry. Do you want us to produce Mr. Manager Butler. I do not want anything, except 1 shall object to any incompetent testimony. Mr. Stanberv. You can take this witness. Mr. Manager Butler. That is all, Mr. Meigs. Mr. Stanbeky. Mr. Meigs, will you bring this docket that contains this entry ? A. Yes, sir. Mr. Manager Butler, (to the witness.) A single word. Will you not extend the record as far as you can, and bring us a certified copy of this case as it will appear after being extended ? Mr. Stanberv. Call Mr. Clephane. Mr. Johnson, (sending a question to the desk.) Mr. Chief Justice, I desire to put a question to General Sherman. He is in the room, I believe. The Chief Justice. The Secretary will read the question. To. whom does the senator 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 Sir. 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 montli 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 Justice. The Chief Justice will submit the question to the Senate. 518 IMPEACHMENT OF THE PRESIDENT. Mr. Drake. Upon that question I ask for the yeas and nays. The yeas and nays wore ordered. The CiMEF Justice. Senators, you wlio are of opinion tliat tlie question pro- posed hy 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 — jNIessrs. Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Fowler, Froiiugbuysen, Grimes, Henderson, Johnson, McCreerv, Morrill of Miiine, Morrill of Vermont, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, and Willey — 26. Navs. — Messrs. Cattell, Chandler, Conkling, Conness, Covbett, Crafrin, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates — 22. Not voting— Messrs. Cameron,. Hendricks, Patterson of New Hampshire, Saulsbury, Sprague, and Wade — G. The Chief Justice. On this question the yeas are 26 and the nays 22. So the question is admitted and will be put to the witness. The secretary will read the question again. The Secretary read the question to the witness, as follows : When the President tendered to you the office of Secretary of War ad interim, on the 27th of January, 18G8, and on the 31st of the same month and year, did lie, 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. Evarts. Answer yes or no, general. Answer. Yes. The Chief Justice. The witness answers that he did. By Mr. Stanbery : Q. What purpose did he state ? Mr. Manager Bingham. To that we 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 open- ing 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 objected 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 question. Does any senator object ? Mr. Manager Butler. We understand that the only question he has been recalled for has been answei-ed. Mr. Evarts. AVe have asked another question. ]Mr. Johnson. J propose to add to it — I thought my question included that — if the President did, what did he state that his purpose was? Mr. Manager BiNGiiAM. To that we object; and we ask the Senate to con- sider that the last clause suggested now by the honorable senator from Mary- land, " and what did the President say," is the very question which the Senate this day did solemnly decide adversely to its 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, M'hat did the President say? making the President's declarations evidence for himself when they are not called out by the government. IMPEACHMENT OF THE PRESIDENT. 519 It was suggested by my associate in argument on Saturday that if tliat method were pursued in the administration of justice, and the declarations of the accused were made evidence for himself at his pleasure, the administration of justice would be impossible in any court. j\[r. Davis. I rise to a question of order. The Chief Justick. 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 Butlkr. 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 trespas:^ing The Chief Justice. The honorable manager will wait one moment. When a member of the court propounds a question it seems to the Chief Justice that it is clearly within 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 com- petent for the managers to object to a member of the court asking a question ; but after the question is asked, it seems to the Chief Justice, that it is clearly com- petent for the managers to state their objections to the questions being answered. Mr. Conn ess. 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 he 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 ? Mr. Johnson. Part of the same question. The Chief Justice. It must be regarded 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 t!) be the question. Mr. Conness. Then I call fur its reading again. The Chief Justice, (to the Secretary.) Read the question. The Secretary read as follows : If he did, state Avhat he said his purpose was ? Mr. Conness. "Did" what? Mr. Drake. I would inquire for information, Mr President, whether, in order to test the introduction of that question, it is necessary 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 competent 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 that. Mr. Manager Bingham. Upon that statement 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 object to the right of the honorable gentleman from Mary- , land to offer his question. Mr. Johnson. I so understand. Mr. Manager Bingha.m. And that is the question that is before the Senate 520 IMPEACHMENT OF THE PRESIDENT. The qiipstion that we raise before the Senate is, that it is incompetent for the accused to make his own decLirations evidence for himself. The Chikf Justice. The Chief Justice has ah-eady 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 composed largely of lawyers 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 found in this fact ; and in accordance with that rule, by which he determined the question submitted on Saturday, he now determines this qixes- tion in the same way. Mr. Drake. I ask for a vote of the Senate upon the question. The Chief Justice. The Secretary will read the question. Mr. Manager Butler. I only want to ask a single question. The Chief Justice understands this, as does the board of managers, as I understand, to be precisely the same question that was ruled upon on last Saturday evening, when the Chief Justice ruled. Mr. Manager Bl\ghaj\i. And this morning, too. The Chief Jus'I'Ice. The Chief Justice does not intend to say that. "What he does say is, that this is a question of the same general import, to show the intent of the President during these transactions. The Secretary will read the question again. Mr. Johnson. I ask that both questions be read, the first and the second, taken in connection with each other. The witness has answered 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 tlie President tendered to you the office of Secretary of War ad intcrivi on the 27th of January, 18(;s, and on the 31st of the same month and year, did he, at the very time of making such tender, state to you what liis purpose in so doing was? The witness having answered this, the question 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 Avas," is admissible, and should be put to the witness, will, as your names are called, answer yea; those of a contrary opinion, nay. The Secretary will call the roll. Mr. ilowE. Before I vote upon the admissibility 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 ofiice was tendered to the witness on the stand was a fact put in by the defence 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. EvARTS. I may be permitted, as counsel, to state that it was put in by the defence. Mr. ]\Ianagcr Bingham. It was put in by the defence. Mr. EvAKTS. I have so stated. Mr. Manager BiNGllAiM. I wish it to be understood distinctly. Mr. IfoWE. The Chief Justice will allow me to remark that putting a question to ascertain the state of the record was entering into debate by no manner of means. The Chief Justice. It may be, however. Mr. UoWE. It may not be. IMPEACHMENT OF THE PRESIDENT. 521 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. Antliony, Bayard, Bnckalew, Cole, Corhett, Davis, Dixoii, Doolittle, Fesseiideu, Fow1(M', Freliuglmysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morton, Norton, Patterson of Tennessee, Ross, Slierinan, Sumner, Trumbull, Van Winkle, Yickers, and Willey — 2G. Nays — Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Crap;in, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Nye, Patter- son of New Hampshire, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates — 25. Not voting — Messrs. Saulsbury, Spraf^ue, and Wade — 3. So the question propounded by Mr. Johnson was held to be admissible. The Witness. May I take the question in my hand 1 (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 "\YiT.\ESS. The conversations were long and covered a great deal of ground ; but I will endeavor to be as precise to the point as possible. The President stated to me that the relations which had grown up between the Secretary of War, Mr. Stanton, and himself Mr. Manager Butler. Stay a moment. I must again interpose, Mr. Presi- dent. The question is simply what the President stated his purpose was, and not to put in his whole declarations. Mr. Johnson. That is all that is asked. That 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 commis- sion. ' Mr. Manager Butler. Yes, sir. ' Mr. Johnson. That is it. The Witness. 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 the relations between himself and Mr. Stanton, and between Mr. Stanton and the other members of the cabinet, were such that he could not execute the oflSce which he filled as President of the United States without making provision ad interim for that ofiice ; that he had the right under the law ; he claimed to have the right, and his purpose was to have the office administered 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 admhustered 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 repeat that last answer. General? The Witness. I asked him why lawyers could not make a case, and not bring me, as 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: Q. On either occasion ? Mr. Johnson. That is my question. 522 IMPEACHMENT OF THE PRESIDENT. The Witness. I'lie conversatiou was very long and covered a great deal o^ ground Mr. ]\raiiager El'tler. I object to tins examination being reneAved by tlie counsel for the President. Mr. Stambkrv. There were two occasions. Has the witness got through both? That is the question. Mr. Manager Butler. Whatever may be the pretence 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, ]\[r. President. The counsel dis- missed 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 examination. 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, dis- missed him as a Avitness in the 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 jude:e, that never yet opened the case to have the witness examined by the counsel who had dis- missed 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 Chikf Justice. The secretary will read the question proposed by the senator from Maryland. The Secretary. The witness having answered " yes " to the previous ques- tion, the question is, " state what he said his purpose was ? " The Chief Justice. Nothing is more usual in courts of justice than to recall witnesses for further examination, especially at the instance of one of the mem- bers of the court. It is very often done at the instance of counsel. It is, how- ever, a matter wholly within the discretion of the court ; and if any senator desires it the Chief Justice will be happy to put it to the court, whether the witness shall be further examined. If not Mr. Williams. I ask for the opinion of the court on that subject, Avhether the counsel can renew the examination of this witness and go beyond the ques- tion propounded by a member of the court. The Chief Justice. The counsel will please reduce the question they pro- pose to writing. The question having been reduced to writing, was seiit to the Secretary's desk, and read as follows : Have 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 question 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 suspected between the witness and counsel ibr wrong j)urj)oses adverse to the administra- tion 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 j)arty shall recall a witness that has been once dismissed from the stand, of course will be obliga- tory upon us ; but we are not aware that anything has occurred in the progress IMPEACHMENT OF THE PRESIDENT. 523 of tlii^ trial to intimate to couusel tliat any such rule had been adopted, or would be applied by this court. Mr. Manager Butler. j\[r. 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 President and you in regard to the removal of Mr. Stanton? 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 conversation at the same time. Then certain other proceedings Avere had, and after those were had the counsel waited some considerable time at the table in consultation, and then got up and asked leave to recall this witness this morning for the pur- pose 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 Avanted a little time to consider whether they would recall him ; they did recall him this morning, and after get- ting 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 counsel for the President in so doing; that could not be supposed possible. He wanted to satisfy his mind. Mr. Johnson. What does the honorable manager mean ? Mr. Manager Butler. I mean precisely what I say, that it cannot be sup- posed possible that he was acting as counsel for the President. Mr Johnson. ]\tr. Chief Justice, if the honorable manager means to impute that in anything I have done in this trial I have been acting as couusel, or in the spirit of couusel, he does not know the man of whom he speaks. I am here to discharge a duty ; and that I propose 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 purpose in any way to depart froni it. Mr. j\Ianager Butler. Again I repeat, so that my language may not be mis- understood, 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 Presi- dent, and there is not some understanding 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 rea- son. I agree it is common to recall witnesses for something that has been over- looked or forgotten ; but I appeal to the presiding ofiicer 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 under- stood that that having been done, the case was opened to the covtnsel on either side to go on and put other questions. The court is allowed to put the ques- tion, because it is supposed that the judge wants to satisfy his mind on a par- ticular point. After the judge has satisfied his mind on that particular 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 Maryland that I meant no imputation. I was putting it right the other way. Mr. Johnson. I am satisfied, Mr. Chief Ju.-tice ; 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 manager that they have no right to do any such thing. 524 IMPEACHMENT OF THE PRESIDENT. Mr. EvARTS. Ml'- Chief Justice, one moment will, I think, show that Mr. Manager BixciHAM. Will the gentleman from New York yield to me a single moment, without pretending to interrupt him ? Mr. President, I desire, on behalf of the managers, here, so that there may be no possible misunder- standing about it, to disclaim, once for all, that it was either intended by my associate, 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 tliink, will satisfy the Senate, Mr. Chief Justice, that the question is not precisely of our right to recall the wit- ness, but the question of right, if it be important to be discussed — and it may be in some future 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 incomplete or without cross-examination ; for some piece of evi- dence might be drawn out that, as it stood, nakedly, would be prejudicial to one side or the other, prejudicial to the side whose witness was recalled, if you please ; and certainly it would be competent, in the ordinary rules of examina- tion, that the counsel should be permitted to place the whole of the fact and the truth — Avithin 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 pro- pounded by the senator from Maryland ; but my objection is made upon the ground that the Senate has repeatedly 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 competent for the counsel for the President to proceed 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 tbat 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, 1H68, and on the 31st of the same month and year, did he, at the very time of makint^ such tender, state to you what his piu'pose in so doing was ? The witness having answered "yes," the next question was : State .wliat he said his purpose was. The questioti now is : Have you answered as to hoth occasions ? Mr. Johnson. That is not my question. Mr. Staxbkry. That is mine; and I want to say one word as to that. Notwithstanding the honorable senator from Maryland has put this ques- tion, 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 Avas closed to us before, and the court has gone into that new evidence that was a sealed book to us, about whicb 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 con- demnatory 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 be was acting in bad faith ; that he meant to use force, I am told the doctrine IMPEACHMENT OF THE PRESIDENT. 525 here now is, " inasmuch as it was brought out by a senator, not by yourselves, ahhoug-h 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 managers, 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 estopped come here, that wherever any question is answered upon the interroga- tory of a senator you must take that answer, without any opportunity to contra- dict the witness or to cross-examine the witness ; that that sacred right cannot be exercised ; that we are estopped not by our own act, 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 1 I say the moment that door is opened and new testimony introduced in the cause we have a right to cross- examine the witness ; a right to explain 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 Bi.\GHAi\i. 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 Avith 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 utterly disap- pointed and confounded the counsel for the accused. What was it? Nothing was said, said the witness, in the first conversation 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, 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 satisfiictory 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!" Well, he is in pursuit of the truth under difficulties. The witness has already sworn to matter of fact that shows the naked, bald falsity of the defence interposed here by the President in his answer, that his only purpose in violat- ing 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 not do to say to the Senate of the United States that he has accounted for it in telling this witness 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 adjudi- cation of this very case in the Supreme Court, to venture to indorse for a mo- ment this utterance of his client made to the Lieutenant General that it was impossible to make up a case. I stand here and assert what the learned coun- sel knows right well, that all that was needful to make iip 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 Ir^ecretary of War ad interim," and to siirrender all the records of the oflice to him, to surrender the property of the office to him, and upon the refusal of the Secretary of War to obey his commandr through his Attor- ney General, who now appears as his attorney in the trial and defence of this 526 IMPEACHMENT OF THE PRESIDENT. case, to .suo out a writ of qno tvarranto. That is the law which we uiulortake to say is settled in this case, notwithstanding his statement to the witness whom they have called here. It is settled in the case of Wallace vs. Ander- son, 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 J ustice Marshall, and I will read the opinion : Mr. Chief Justice Marshall delivered the opinion of the court, that a writ of quo warranto could not be maintained, except at the instance of the p^overnment ; and as this writ was issued by a private individual, without the authority of the government, it could not be sus- tained, whatever might be the right of the prosecutor or of the person claiming to exercise the office in question. The information must, therefore,, be dismissed. That power was not employed by the Executive through the Attorney Gen- eral. 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 legally suing out his writ of quo warranto and trying the question in the courts. But, gentlemen senators, there is something more than that in this case — and I desire merely to refer to it in passing — that the question which the gentle- men 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 interposition of ever^ other tribunal of justice upon God's footstool. What has this question to do with the final decision of the case before the Sen- ate ? I say if your Supreme Court sat to-day in judgment upon this question it has no power and can have none over this Senate. 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 impeachment. 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 f(!ather, and leaves him naked for the avenging hand of justice to reach him without let or hindrance. Mr. EvARTS. Mr. Chief Justice and Senators, I shall enter into no discussions irrelevant to this matter ; but we cannot consent to have matters so misrepre- sented. j\Iy 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 restrictetl from cross-exami- nation undertook, by way of argument, to influence the o{)iiiion of the Si'uate. It had not the remotest application, and, as must liave been apparent to every intelligent observer, was not connected in the least with the actual evidence given. The evidence giv(!n, if it is agreeable to the managers, is extremely satisfactory to us, presenting the very j)oint of the in(|uiry 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 President was that it could not be done, but when on the effect of an ad interim ajjpointment the matter was brought up, the case would not stand half an hour, agreeing with IMPEACEBIENT OF THE PRESIDENT. 527 Mv. Manager Butler iu his hypothetical case in the note that ho wrote for the President to send to the Senate : I felt mj'self constrained to make this removal lest Mr. Stanton should answer tlie infor- mation in the nature of u quo warranto, which I intend the Attorney General shall file at an early day, by saying that he holds the oitice of Secretary of War by the appointment and authority of Mr. Lincoln, which has never been revoked. Mr. Manager Bingham. Mr. President, I desire, iu response to tlie gentleman's remarks, 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 Avas impossible to make up a case without an ad interim appointment. I agree and stated myself in the remarks which I 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 appoint- ment to Lorenzo Thomas or somebody else as Secretary of War ad interim, as he did issue it; but now how does the case stand 1 Had he not made an ad interim appointment six months before this conversation with the Lieutenant General ? Had he not made an ad i^iterivi appointment iu August, 1867, of General Grant ? Ah ! says the gentleman, he only suspended Mr. Stautou then under the tenure-of-office act, and therefore the question could not very well be raised. I have no doubt that will be the answer of the counsel; it is all the answer they can make; but, gentlemen senators, how does such an answer stand with the corrupt answer put in here by the President that he did not make that suspension under the tenure-of-otfice act, but under the Constitu- tion of the United States, and by virtue of the powers vested iu 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 appointment of Secretary ad interim, casting aside your statute, going into courts, forestalling' the power of the people to try him by impeachment for this violation ot law, for this unlawful 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 iu 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 defence the declarations of the accused to Thomas when he went back ^ul reported to him this refusal, " Go on, take possession of the office;" not "lam going to appeal to the courts," not " Go* to the Attorney General for a writ of quo warranto ;" 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 country, is to be got rid of here to-day by his declaration 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 appointment of Secretary ad interim, or an absolute 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, iu violation of the law, directing Lorenzo Thomas to take possession of the War Department, its records, and its property, and to discharge the functions of the office of Secretary of War ad interim, iu 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 528 IMPEACHMEKT OF THE PRESIDENT. by cross-examining, to use their own word, tlieir own witness, because, after failing to get anytliing from him themselves, and the Senate having succeeded in getting words from him that do not suit their purpose, they seek to get rid of the Avhole matter by a further examination. Mr. Davis. Mr. Chief Justice, I ask for information if the question pro- pounded 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 projDound any question 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 rej)ly. The Witness. Where is my answer? Mr. Trumbull. I ask is there not a question pending ? Mr. Davis. I ask that the question be read. The Chief Justice. The Chief Justice will explain the position of thematter to the Senate. The Senator from Maryland desired that the following question should be put to the witness, (G-eneral Sherman.) " When the President ten- dered to you the office of Secretary of War ad interim on the 27th of January, ]86S, 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 ?" To that question the witness replied, " he did" or " yes." That answer having been given, the senator from Maryland propounded the further question, " The wit- ness having answered yes, will he state what he said his purpose was 1" 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 Pi'esident propose this question : " Have you answered as to both occasions ?" That is the same ques- tion 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 question 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 entirely within the discretion of the Senate, but that it is usual, luider such circumstances, to allow counsel to proceed with their inquiries relating to the same subject-matter. Mr. Williams. Mr. President, 1 withdraw my objection to \his question. When the quest*)n was orally put I understood it to be another and diflerent 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 Ju.stice. The Secretary will read the question, and the witness will answer. The Secretary. The question is, ''Have you answered as to both occa- sions ?" The Witness. I should like to hear my answer as far as it had gone. Mr. Johnson. I move that tin; reporter read the answer. The Chief Justice. That will be done. Mr. J. J. Murphy, one of the oflicial reporters 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 necc^i.^ary to state what I bcf^iin to state — tliut the I'resideiit told me tliat the H'latioiis Ix'twceu him.self and Mr. Stanton, and between Mr. Stanton and the other members of tiie cabinet, were such IMPEACHMENT OF THE PRESIDENT. 529 that be coukl not execute the office which he filled as President of the United States withont makiuj:^ provision ad interim for that office ; that he had the rijjht under tlie law ; he claimed to have the ripht; and his purpose was to have the office ailiniuistcred in the interest of tlio army and of ttic country ; and he offered nie the office in that view. He did not state to nie then that his purpose was to bring it to the courts directly ; but for the ptn-pose of having the oflice administered projjcrly in the interest of the army and the whole country. Mr. Stani?i;uy. 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. OoNKLlNG. Will 3'ou not repeat that last answer, general ? The Witness. 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 CQurts, it would not stand half an hour. I think that is all that he stated to me then. Mr. Drake. Now read the pending question. The Secretary. The question is : "Have you answered as to both occa- sion.*?." The WiT.NESS. 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 interview in which the President offered me the appoint- ment ad interim he confined himself to very general terms, and I gave him no definite answer. The second interview, which was on the afternoon of the 30th, not the 3 1st, 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-office 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 he 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 be will retire." I expressed my doubt, and he remarked, " 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 ray final answer 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 nattire. Mr. Johnson. Mr. Chief Justice, with the permission of the Senate I desire to correct a mistake of fact. I thought General Sherman said the 3 1st, but it is the 30th of January, and therefore I desire to have that correction made in my written question. The Chief Justices. If there be no objection 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 writijag. The Chief Justice. The Secretary will read the question of the senator from JMissouri. The Secretary read as follows : Did the President, on either of the occasions alluded to, express to you a fixed resolution or determination to remove Stanton from his office '! The Witness. If by removal is meant a removal by force, he never conveyed to my mind such an impression ; but be did most unmistakably say that he could have no more intercourse with him in the relation of President and Sec- retary of War. 34 I P 530 IMPEACHMENT OF THE PRESIDENT. Mr. Howard. I wish to put a question to the ■witness. I send it to the Chair. The Chirf 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 necessity of considering that question ; upon the presentation of an order he will simply go away," or " retire." Mr. Howard. Is that a full answer to the question ? The Witness. I think it is, sir. Mr. Henderson. Mr. President, I desire 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 President 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 ? ]\Ir. Manager Bingham. Mr. President, we must object to that. Mr. Manager Butler. It has been overruled 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 answered t 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 fi-om Missouri is admissible and should be put to the witness. The question being pat, it was determined in the negative. So the question propounded by Mr. Henderson was decided to be inadmissible. Mr. Stanbery. If no other questions are sought to be put to General Sher- man, I believe we are through with him. The Chief Justice. Do the honorable managers desire to put any ques- tions ? 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 thj-ough. We do not propose to argue that point. The Chief Justice. Gentlemen, General 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. EvAKTS. 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 propose to make any cross-examination at pnsent. Mr. EvARTS. No cross-examination "at present!" We insist that the cross- examination 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 tliemselves on Satur- day made an appeal for leave to recall the witness; and for myself, and as I understood it to f)e for my associate managers, I made no objection. It is for the Senate to determine whether we shall recall him to-morrow. IMPEACHMENT Of THE PRESIDENT. 531 Mr. EvARTS. We have no deesire 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 before dismissing the witness ; but that will be a question for the Senate when General Sherman is recalled. ]\Ir. Manager Butler. This witness has not been called now by the counsel, and therefore we do not cross-examine at present about the matter inquired of by the court. The court's questions are all very Avell ; we cannot 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 : Q. Have you the docket of the supreme court of the District with you now ? A. I have. Q. Will you read the docket entries in the case of the United States vs. Lorenzo Thomas ? Mr. ^lanager 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 a 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. Sta.xberv. It is not a case in which any record was made, as the witness has already told us; but it was a proceeding before 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 BiNtiHAM. We must object to the evidence as incompetent. The Chief Justice. The counsel for the Presideat will please state in writ- ing what they propose to prove. The offer of the counsel for the President was reduced in writing in the foroi' of a question to the witness, as follows : Have you got the docket entries as to the disposition 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 apart of the same' transaction, and is competent evidence ; but he will put the question to the Senate if any senator desires it. [After a pause.] The witness will answer the question. The Witness. The examining magistrate or the judge took the 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 indict- ment. Therefore it was put upon the docket of the court. Mr. Stanbery. Read the docket entries. The Witness. The case is numbered 5711. The United States vs. Lorenzo Thomas. Warrant for his arrest, issued by Hon. Chief Justice Cartter, on the oath of E. M. Stan- ton, to answer the charge of high misdemeanor in that he did unlawfully accept the appoint- ment of the office of Secretary of War nd interim, February 2-i, 1H68. Warrant served by the marshal February 22, 18G8. Eecognizance for bis appearance on the 26th instant, February 22, 1868. Discharged by Chief Justice Cartter, on the motion of the defendant's counsel,. February 26, 1868. Mr. Stanbery. That is all. 532 IMPEACHMENT OF THE PRESIDENT. The Chief Justice. Do the honorable managers desire to cross-examine this witness ? Mr. Manager Butler. We have nothing to ask of" this Avitness, 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, sit- ting as a court of impeachment, adjourn until to-morrow at 12 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 IS; and the Senate, sitting for the trial of the impeachment, adjourned irntil to-morrow at 12 o'clock. Tuesday, Aj^ril 14, 1S68. The Chief Justice of the United States entered the Senate chamber at 12 o'clock and 5 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 Representa- tives appeared and took the seats assigned them. The counsel for the respondent, with the exception of Mr. Stanbery, also appeared and took their seats. The presence of the House of Representatives 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 chamber, and were conducted to the seats pro- vided 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 Justi(;e. If there be no objection the reading of the journal will be dispensed with. The Chair hears no objection. Mr. Sumner. 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 arsju- ment to two on a side unless otherwise ordered, such other managers and counsel as choose may print and file arguments at any time before the argument of the closing manager. The Chief Justice. H' there be no objection the order will be considered now. Mr. Con NESS. I object, Mr. President. The Chief Justice. Objection is made. The order will lie over for one day. Mr Sumner. I beg leave most respectfully to inquire under what rule such an objection can be made. The Chief Justice. The Chief Justice stated on Saturday that in conduct- ing the business of the court he applied, as far as they wen; applicable, the gen- eral rules of the Senate. This has been done upon several occasions, and when objection has been made orders have been laid over to the next day for consideration. Mr. Sumner. Of course it is not for ine 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 Presi- dent, you will {dease proceed with the defence, Mr. EvARTS. jMr. Chief Justice and Senators, it is our misfortune to be obliged to state to the court that since the adjournment yesterday, and not com- IMPEACHMENT OF THE PRESIDENT. 533 ing to our knowledge until just before we came into court this morning, our associate, Mr. Stanbery, is prevented by illness, Avbicli confines bim Avholly, from attending upon tlie court to-day. I bave seen bim, and bave- learned tbe opinion of bis pbysician tbat be will undoubti'dly, in expectation, be able to resume bis duty witbin forty-eigbt bours, and tbere may be some bope tbat be will be able to do so by to-morrow. In tbe suddenness of tbis knowledge to us, and in tbe actual arrangement in reference to tbe proofs, it would be very difficult for us, and almost impossible witb any proper attention to tbe justice of tbe case, to proceed to-day; and we suppose tbat an indulgence, at least for tbe day, would lessen tbe cbance of longer procrastination. Tbe gentlemen of tbe Senate and tbe Cbief Justice will be so good as to bear in mind tbat mucli of the matter to be produced in evidence is witbin tbe personal knowledge of our associate, Mr. Stanbery, and not witbin our own, and we bave to say tbat tbe conduct of tbe proofs bas been accorded to bim. It is, of course, not pleasant for us, and not pleasant for Mr. Stanbery, espe- cially, tbat sucb an occasion as tbis sbould arise for tbe introduction of personal considerations ; but in our best judgment we can only present it to tbe court iu tbe aspect I bave named, and submit it to tbeir discretion wbetber tbe facility and tbe indulgence tbat may be needed on our part should be limited to tbis day or wbetber it sbould extend over tbe two days tbat Ave suppose would assure the restoration of Mr. Stanbery to health. I saw Mr. Stanbery last evening, and, although he bad been a little affected by a cold which he had contracted, I sup- posed him to be, as he supposed himself to be, in a condition of health that would permit bim to go on as usual ; and it was only as we were preparing to come to court tbis morning tbat he himself was obliged to submit to the confinement of his pbysician and to inform us of his situation. Mr. Drake. Mr. President, I would ask a question of tbe counsel for tbe defence. The Chief Justice. The Secretary will read tbe question proposed by tbe senator from Missouri. The Secretary read tbe question, as follows : Cauuot the day be occupied by counsel for tbe respondent in giving in documentary evi- dence ? Mr. EvARTS. It cannot, as we understand the situation of tbe proofs and our duty in regard to them. Mr. Howe. Mr. President, I move tbat tbe Senate, sitting as a court of impeachment, adjourn until to-morrow at 12 o'clock. Tbe motion was agreed to. Tbe Chief Justice. The Senate, sitting as a court of impeachment, stands adjourned until to-morrow at 12 o'clock. Wednesday, April 15, 1S68. The Chief Justice of the United States took the chair. Tbe usual proclamation having been made by the Sergeant-at-arms, The managers of tbe impeachment on tbe part of tbe House of Representa- tives and the counsel for tbe respondent, except Mr. Stanbery, appeared and took tbe seats assigned them respectively. Tbe members of the House of Representatives, as in Committee of tbe Whole, preceded by Mr. Wasbburne, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were conducted to tbe seats provided for them. Tbe Chief Justice. Tbe Secretary will read the journal of yesterday's proceedings. 534 IMPEACHMENT OF THE PRESIDENT. The Secretary read tlie journal of yesterday's proceedings of the Senate sitting for the trial of the impeachment. The Chikf Justice. The first business in order is the consideration of the order submitted by the senator from Massachusetts [Mr. Sumner] yesterday. Mr. SuM.\BR. 1 should like to have it reported. The Chikf JusTict;. 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 argu- ment to two on a side, "unless otherwise ordered," such other managers and counsel as choose may print and file arguments at any time before the argument of the closing manager. The Chief Justfce. 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," iu order that the counsel for the defence may have an opportunity to see what arguments they are to reply to. Mr. SuM.\ER. I have no objection to that. Mr. JoHiN'SON. 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, Iu answer to the motion of the managers, that, under the rule limiting the argu- ment to two on a side, unless otherwise ordered, such other managers and counsel as choose may print and file arguments at any time before the argument of the closing manager. It is proposed to strike out the words "argument of the closing manager," and insert "argument of the opening manager shall be concluded." Mr. EvART.s. Mr. Chief Justice, may we be allowed to make a suggestion iu rcfftence to this order? The Chief Justice. Certainly. Mr. EvARTs. The amendment offered and accepted places, I suppose, the proper restriction 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 iu on the part of the managers ; that is to say, that they shall be filed before we make our reply. On our part, however, it would be proper that we should have the liberty of filing the briefs at any time befiire the closing manager makes his final reply, as a part of our new briefs may be in rejily to the new briefs that are put in on the part of the prosecution. Mr. Manager Bingham. Mr. President and senators,! desire to say, in I'egard to the remark which has just been made by the honorable 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 repliant on behalf of tlie Congress of the United States and of the people would have no oj)portunity 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 opportunity to review what may be filed before they argue, and it gives the counsel for the people the oppor- txmity to review before he argues whatever may be filed here on behalf of the President. Mr. Evarts. Undoubtedly there are inconveniences 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 suggestion would be apj)lied 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 arc obliged to commence our oral argument. Mr. Nelson. Mr. Chief Justice and Senators, I desire to say on this molioa IMPEACHMENT OF THE PRESIDENT. 535 that it was agreed between the counsel for the President that the three of our mimher 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 the imputation made by the managers, that we desired unneces- sarily 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 mana- gers, 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 before the Senate. We have not made any preparation 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 pre- pared with written addresses than we are, so that if the rule is to be extended I respectfully ask the Senate to allow us to address 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 behalf, and as I fully concur with him in the leading measures of his admin- istration, I desire, 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: Prodded, That not more than four days on each side shall 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 Bout WELL. 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 honorable manager desire to address the Senate ? Mr. Manager Boutwell No, sir. The Chief Justice. The question is on the substitute proposed by the sen- ator from California. The question being taken by yeas and nays, resulted — yeas 19, nays 27 ; as follows : Yeas — Messrs. Cameron, Conness, Cragin, Dixon, Doolittle, Fowler, Harlan, Henderson, Hendricks, McCreery, Patterson of Tennessee, Kanisay, Sherman, Stewart, Trumbull, Van Winkle, Willey, Wilson, and Yates — 19. Nays— Messrs. Anthony, Buckalew, Cattell, Chandler, Cole, Conkliug, Davis, Drake, Edmunds, Ferry, Frelin;^'huysen, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Pomeroy, Ross, Saulsbury, Sunmer, Thayer, Tipton, Vickers, and Williams — 27. Not votinc; — Messrs. Bayard, Corbett, Fessendeu, Grimes, Norton, Nye, Sprague, and Wade— 8. So the substitute was rejected. Mr. Doolittle. Mr. Chief Justice, I prefer altogether oral arguments to 530 IMPEACHMENT OF THE PRESIDENT. tlicpo printed ones, and T submit the following as a substitute, understanding that thf^re ai'e six managers on the part of the House and four couii.-^el for the respnudent. ["Order!" "Order!"] I have drawn au order which [•'Order!" "Order!"] The OiiiKF Justice. Order! Order! There can be no debate. Mr. DooLiTTLK. Wliich I ask to have rwid. The Chief Justice. The Secretary will read the amendment proposed by tl)e senator from Wisconsin. The Secretary read as follows : Strike out all after the word "ordered," and insert : Tliat upou the final argfuuient two inauagers of the House open, two coun:?el for the respondent reply ; that two other manat^ers rejoin, to be followed by two other counsel for the respondent; and they iu turn, to be followed by two other managers of the House, who shall conclude the argument. Mr. Drake. 1 move the indefinite postponement of the whole proposition, together with the substitute. The Chief Justice. The senator from Missouri moves the indefinite post- ponement of the order and the proposed substitute. Mr. SUiM.VER. 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 : * Yf,as — Messrs. Anthony, Buckalew, Chandler, Cole, Conkliug, Conuess, Corbett, Davis, Dixon, Drake, Edmunds, Ferry, Fessenden, Grimes, Harlan, Henderson, Hendricks, How- ard, Howe, Johnson, Morgan, Morrill of Maim^ Morrill of Vermont, Morton, Patterson of New Hampsiiire, Pomeroy, Ross, Saulsbury, Sherman, Stewart, Thayer, Tipton, Williams, and Yates — 'M. Nays — Messrs. Cameron. Cattell, Cragin, Doolittle; Fowler, Freliuglniyseu, McCreery, Patterson of Tennessee, Ramsey, Sumner, Trumbull, Van Winkle, Vickers, Willey, and Wilson — 1.5. Not votixg — Messrs. Bayard, Norton, Nye, Spragne, and Wade — 5. So the order and substitute were indefinitely postponed. Mr. Ferry. I now submit an order on which 1 desire action. The Chief .Iustice. The Secretary will read the order proposed by the senator from Connecticut. The Secretary read as follows : Ordered, That the 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 otherwise ordered, at 1 1 o'clock forenoon ; and that there shall be a recess of thirty minutes each day, commencing at 2 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, Cattoll, Chandler, .Cole, Conkling, Conness, Corbett, Cragin, Drake, Ferry, Frelinghnysen, Harlan, Jloward, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Ramsey, Sherman, Stewart, Sumner, Thayer, Williams, and Wilson — 'J4. Nays — Messrs. Antliony, I'.ayard, Buckalew, Davis, Dixon, Doolittle, Edmunds, Fessen- den, Fowler, Grimes, Henderson, Hendricks, Johnsau, McCreery, M(|iton, I'atterson of New Hampshire, Patterson of Tennessee, I'omcroy, Ross, Saulsbury, Tipton, Trumbull, Van Winkle, Vickers, Willey, and Yates — 2(). Not vo'I'INc— Messrs. Norton, Nye, Spiague, and Wade — 4. So the order was rejected. The Chief Justice. Gentlemen of counsel for the President, please proceed with the defence. Mr. Evabts. Mr. Chief Justice and Senators, 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 IMPEACHMENT OF THE PRESIDENT. 537 proper attontion 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 permission of the court, to proceed to-day in putting in the documentary evidence, which will take a very considerable time, and probably we shall not wish to be called upon to proceed with any oral tes- timony until to-morrow, when we shall be happy to do so. Mr. Curtis. Mr. Chief Justice, we desire to bring before the Senate the nom- ination sent by the President of the United States to the Senate on the 21st of February, as I am instructed, 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 evidence. 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 ^lere in evidence the nomination 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 Ji'Stice. 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 unanimous consent. Mr. Edmunds. I desire to say that under the new rules the fact of a nomina- tion being made, it is provided, shall not be a secret communication, 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 injunction of secrecy was nece&sary. Mr. Sher.man. Mr. Chief Justice, if a motion is necessary, I will move that the executive 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 intbruiation or remarks concerning the character or qualifications of any person nomi- nated by the President to otHce 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 : Q. Will you state what document you have before you 1 A. I have th6 original nomination by the President of Thomas Ewing, senior, to be Secretary for the Department of War. Q. Will you please to read it ? . A. The witness read as follows : To the Senate of the United States : I nominate Thomas Ewing, senior, of Ohio, to be Secretary for the Department of War, ANDREW JOHNSON. Washington, D. C, February 22, 1868. Q. On what day was that actually received by you ? A. On the 22d of February. Mr. Curtis. Now, I desire to put in evidence, 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 538 IMPEACHMENT OF THE PRESIDENT. copy, wliicli is the authorized copy. I suppose it will not be objected that we have not obtained it from the proper source 1 3Ir. Manager BuTLER. The mere vehicle 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 impeached by the House, and, of course, it is his declaration attempted to be put in. A declaration by him, after he was impeached, whether made to the Senate or anybody else, it seems to us, cannot be evidence. The exact 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 Representa- tives looking to the impeachment of the President, bringing it before the house ; on the 22d it was acted on and actually voted. Impeachment was actually voted on the 22d. Then intervened Sunday, the 23d. Any message sent ou the 24th, therefore, must have been known to the President to have been after the impeachment. Mr. Curtis. It will be remembered that tlJe honorable managers put in evi- dence 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 man- agers 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 receive 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 argu- ment to the prejudice, and not to the law. Suppose he offers his answer here to-day, is that to be received as evidence 1 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 defence? 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 impeachment was determined upon. We cannot put in his declarations down to to-day. That is a familiar rule of law. They cannot. I only ask the Senate to consider 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 cau send in a message which shall be taken as evidence for him. Mr. Eva UTS. ]\Ir. Chief Justice and Senators, the learned manager asks whether we dare do something. We have not been in the habit of considering the measure for the conduct of forensic disputations to be a question of daring. We are not in the habit of applying such epithets to opponents, nor, hitherto, of receiving them from them. The measure of duty of counsel to the law and the facts is the measure we shall strive to obey, and not the measure of daring, if for no other reason, fur this, that on the rule of law and fact and evidence we might, perhaps, expect sometimes a superiority, but on the measure of daring, never. Now, this ((ucstion arises thus : is the learned manager entirely right in say- ing that the impeachment was voted on the 22d1 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, how- ever, 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, not complaining. They were found soon enough. Now, it is said that because the vote that impeachment should p*-oceed was taken ou the 22d, tliut impairs the credit or the admissibility of the IMPEACHMENT OF THE PRESIDENT. 539 piece of evidence that is laid before the Senate. ]*«[y h-arned associate has dis- tinctly told the situation of the matter. Perhaps both of the!?e 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 knowl- edge of the court. But our learned opponents have j)ut in the language of the resolution of the Senate. Exactly what bearing that bas 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 Senate, 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 of that reso- lution, upon the introduction of the topic by the resolution being offered in evi- dence, ■would be admissible in itself We submit, therefore, that on every prin- ciple, both of law and of discretion, if it may be so said, in regard to the com- pleteness 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 atten- tion of the Senate to the fact, so that the counsel may never be in doubt here- after 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 President 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 Avas recognized after that by him as the Secretary ad interim, and after that Lorenzo Thomas breath- ing 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 dis- obey 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 evidence ? 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. Tlie counsel for the President will please put in writing what they propose to prove. Mr. Manager Butler. 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 Februaiy a resolution was proposed for impeachment and referred to a committee; on liie 22d the committee reported, and that was debated through the 22d and into JNfonday. the 24th, and the actual vote was taken on Monday, the 24th. Mr. Evarts. Late iu the afternoon — .'» o'clock in the afternoon ; so that I was right in the fact. Is there any farther objection made now? 540 IMPEACHMENT OF THE PRESIDENT. ^Ir. ^Manager Butlkr. Certainly. Mr. Mauajjer BiNGMAM. I desire to state the reasons why wp. insist npon this objection. The House of Representatives, as appears by the Journal which has now been furnished us, on the 22d of February, through its committee, reported " that Andrew Johnson be impeached of high crimes and misdemeanors." The discussion 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 another 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 Senate. The Senate having refused to concur in the suspension, refused to acquiesce in the reasons assigned by the President under the tenure-of-office act. Having given the President notice thereof, the President thereupon proceeds, after this notice, to remove him and to appoint a Secretary of War ad ialvrlm, in direct contraven- tion 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, considered the action of the President in this matter of removal and in this matter of appointment 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 21st of February, 186S, the Sen- ate of the United States passed a resolution reciting the action of the President in the premises, to wit, his removal of the Secretary of War, his appointment of a Secretary ad interim, and declaring by solemn resolve that under the Consti- tution 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 iu evidence here in support of the prosecution. It was all con- cluded, as the Senate will notice from what I have said, on the 21st aud 22d of February, 1868. My impression is that the notice was served on the night of the 21st, but, that I 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 presentment made on the 21st or 22d day of February, 1SG8, against this President before the grand inquest of the nation, and he seeks to put iu a declaration made after presentment made, which is cer- tainly tantamount to a warrant for his arrest, for from that moment he was within the power of the people. Although he fled to the remotest ends of the earth he could nevt-r stop for a moment the pi'ogress 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 instituted, 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 vio- lation 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 send- ing a message to the Senate of the United States on the 24th day of February, 18(38. What is it, senators ? Is it any more than a volunteer declaration of the criminal, after the fact, in his own behalf? Does it alter the case in law 1 Does it alter the case in the reason or judgment of any man living, either within the Senate or out of the Senate, that Ik; cliose to put his declaration in his own defence in writing? The law makes no sucli distinctions. I undertake to assert it here, regardh'ss of any attempt to contradict my statement, that there is no law that enabhiS any accused criminal, after the fact, to make declarations, cither orally or in writing, either by message to the Senate or a speech to a mob, to acquit himself or to affect iu any manner his crinunality before the tribunals of IMPEACHMENT OF THE PRESIDENT. 541 justice, or to make evidence wliioh shall be admitted under any form of law upon his own motion to justify his own criminal conduct. 1 do not hesitate to say that every authority wliich the gentlemen can bring into court regulating the rule of evidence in procedures of this sort is directly against the proposition, and for the simple reason that it is a written declaration made bv the accused voluntarily, after the fact, in his own behalf. I read for the information of the Senate the testimony touching this fact of the service of the notice of the action had by the Senate upon the conduct of the President whereof he stands accused before 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 liands of the President of the LTuited States at his office iu the Executive Mansion at 10 o'clock p. m. on the 21st of February, 1868. On the 24th of February, three days afterward, he volunteers a written declar- ation which he now proposes to make evidence in his own behalf before this tri- bunal 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 introduce his whole message, not simply what he says for himself, not sim- ply the arguments that he chooses to present in the form of a written declaration, in vindication of his criminal conduct, in violation of the clearest and 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 2 Lst of February ; but the Sen- ate 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. With- out 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 presence 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 commu- nicated 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 counsel- ors with any such authority, as it never vested the President with authority to suspend the laws, or to violate the laws, or to disregard the laws, or to make ap- pointments iu direct contravention of the laws, and in defiance of the final action of the Senate acting iii 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 Bimgham. 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 1 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 declar- ations, written or unwritten, made after the fact, in his defence. That is the point I take here. 1 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 Senators — Mr. Manager Butler. Do we ever have the close here? Mr. EvARTS. I dare say you have : but I also have the opportimity to speak. No question arises of my irregularity, I take it. Mr. Manager Blngham. No, no. 31r. Evarts. Mr. Chief Justice and Senators, the only apology that the 542 IMPEACHMENT OF THE PRESIDENT. learned manager has made for the course of his remarks is the consumption of your time, and yet he has not hesitated t > 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 Binuham. Will the gentleman 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 attempt to defend himself, or for his counsel to defend him. I did not say that. Mr. EvAKTS. It all comes to the same thing. Everything that is attempted upon our view or liue of the subject in controversy, unless 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 counsel, and so it is repeatedly charged. Now, if the crime was completed on the 2 1st 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 Senate on the 21st of February, after the act of the President had lieen com- pleted, and after that act had been communicated to the Senate, has on the issue of whether that act was right or wrong ? And if the f »ct that it is an expression 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, except as a communication from this branch of the government to the President of the United States of its opin- ion concerning the legality of his action ; and in the same line and in immediate reply the President communicates to the Senate of the United States, openly and in a proper message, his opinions concerning the legality of the act. What would be thought of the government 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 pris- oner as to what he had said then and there in reply 1 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 communication back and forth between the Senate and the President. Mr. Manager Butlkr. A single word, Mr. President, upon that proposition. I think if any sheriff should say to a thief, " Sir, whose watch is that i*" 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 neighbor 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 V Four days afterward, after he has been in jail, after the indictment is being found against him, and while tiie court is in session, he sends an answer 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, lie 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 meant when they gave him any advice, and how they came to give IMPEACHMENT OF THE PRESIDENT. 543 it to him, and under what circumstances thej gave it to hivn, we shall have a different reply to make to that. But at present 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 Avere with him said about it. Mr. EvAHTS. Mr. Chief Justice and Senators, every case is to be regarded according to its circumstances, and yon 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. Ml*. 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 holiday, and this message sent in on Monday, Sunday intervening, is not an answer according to the ordinary course of prompt and candid treaty between the Senate and President concerning a matter in differ- ence, or an answer to imputation communicated to him. As for the simile of the President being in prison, we have removed that by showing that he was not inifteached 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 wq do not pursue these trivial illustrations. The matter is within the intelligence of the court, and must be disposed 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 Avord, and intend 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 defence 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 defence precisely as unoificial citizens of the United States make defences, 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, cither oral or written, by his own declaration, and incorporate in it, too, the declara- tions 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 Avritten or unwritten, and on their own motion inti'oduce 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 counsel. He has evaded most skilfully the point I took occasion to make in the hearing of the Senate, 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 propo- sition of the extent of this never was made before in any tribunal of justice in tlie United States Avhere any man stood accused of crime, not simply to give his own declarations, but to report the declarations of third persons in his own behalf and throw them before the Senate as testimony. 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 Congress 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 544 IMPEACHMENT OF THE PRESIDENT. colorable excuse (I repeat those words here) for intimating that the President of the United States, charged with the comraissioa of crime on the 2l3t of Feb- ruary, 1S6S, and proved guilty, I undertake to say, by his written confession, to the satisfaction of every intelhgent and unprejudiced mind in and out of the Senate in this country, could proceed to manufacture a defence three days after the fact in the form of a message. That is the point I innke on the gentleman here. He says " What importance, then, do you attach to the action of the Senate '!" We attach precisely this importance to it : that the law of the land enjoined upon the President of the United States the duty to notify the Senate of the suspension of this officer and the reasons therefor, and tlie evidence upon which Ite 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 pur- suance 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 con- clusion that the reasons furnished by the President and the evidence adduced by him for the suspension of the Secretary of War were insufficient, and in accordance with that law the Senate non-concurred 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 Secretaiy of War, that he may, in obedience to the express requirement of the act, forthwith resume the functions of the office from which he has been sus- pended. 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 interitn. General Grant, who had been appointed, in accordance with the provisions of the act, Secretary of War ad inter un in August, 1867 1 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 Presi- dent without excuse before the Senate and before the people for persisting in bis unlawful attempt, in violation of the law of th<' land, to execute the dutii-s 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 tcnure-ofoffice act to decide the question whether the suspensioa should become absolute or whether it should be rejected. lint here is a man defying the action of the Senate, defying the express letter (if the law, that the Secretary of War, in whose suspension they had refused to concur, should forthwith resume the functions of that office, proceeding with his conspiracy with Thomas to remove him and to confer the functions of this office xipon another, regardless of the action of the Senate, regardless of the law regula- ing the tenure of civil offices, regardless of the Constitution, regardless of hid oath, regardless 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 declaration, made three days after the fact, and asks the Senate to receive it as evidence. The Chief Justus. 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 a|)pear3 that tlie Senate, on the 21st of February, passed a resolution, which 1 will take the liberty of reading : Wlit-rcas the Soiiuto luive vcccivt'd mul cimsidercil tho ooniiniuiicution of tlio President stating' tlmt lie iias rciiiovetl IWwiu M. Siuntoii, Secn-tiuy of War, and liad di'signated the Adjutant (Jeneral (>f the army to act as St-ni'tary of War ad iiiteriin : Therefore, Hcsidvid hy the Sntttr of tin: United Stuirs, That tinder tlie Constitution and laws of the United States the Prt'sidcnt has no power to remove the Secretary of War, and to designate any other officer to jjertbnii the duties of the otiice ad interim. IMPEACHMENT OF THE PRESIDENT. 545 That resolution was adoptecl on the 21st of February, and was served, as the evidence before you shows, on the evening of the same day. The message which is now proposed to be introchiced was sent to the Senate on the 24tli day of February. It does not appear to the Oliief Justice that the resolutiitn 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 message which was sent to the Senate on the 24th of February as a vindication of the Presi- dent'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 intro- duction of evidence upon this trial. He will, however, take pleasure in submit- ting 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 inadmissible. Mr. Curtis. Mr. Chief Justice, we wish to put in evidence a table which has been compiled in the office of the Attorney General, which will be found to be, I believe, a convenience in the progress of the trial in the examination of the documentary evidence which will be pvtt in. • Ml'. Drake. Mr. President, we cannot hear the honoi'able counsel. Mr. Curtis. I will endeavor to make myself heard. The Chief Ju.^tice. If senators will observe the rules of the Senate, and the gentlemen 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 this table, so that the nature of its contents may be perceived. It excludes all military and naval officers, all judges, of the constitutional judiciary of the United States, all judges of the Court of Claims, all officers Avhose 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. They are excluded, and with these exceptions " the following is an approximate list of all other executive and ter- ritorial offices of the United States now and heretofore established by statutory designation, with their respective statutory tenures." Then follows the list of officers the table contains. 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 another column showing whether it was for a term definite " unless sooner removed," the first column being for a definite term without any qualification whatever, the second column being for a term definite unless sooner removed, the third column for a term indefinite and not expressly during pleas- ure, and the fourth for a term indefinite, 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 belongs to each of them. Of course this is not off'erd'd 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 Avould 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 results. Here they are all brought tinder the eye, and we desire to have the table printed so that it may be used in argument by counsel on all sides. Mr. ilanager Butler. I observe, Mr. President and senators, that there is one important column missing in this table, if it has to have any eftect on any- body'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 bearing on any 35 1 P 546 IMPEACHMENT OF THE PRESIDENT. 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 tahle is derived from the statutes of the United States. Mr. Manager Butlrr. 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 senator — precisely as (if I may use it as an illustration) 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 obvious. Who has any surety that this is correct ? The commissions are not kept by the At- torney 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 the laws ? Mr. EvARTS. That is what we have stated exactly. Mr. Manager Butler. Put it, then, in your argument. Why should your abstract of the laws be put in evidence any more than anybody else's ? The difference is this : if either of ray friends on the other side under their hand and upon their examination put in their brief an abstract of law I should believe tliat the law was exactly as it purports to be abstracted. 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 everybody 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 cpuntry 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 evidence. 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 senators, there is but a word to be said on this subject. It imparts to the case no primary evidence. It can be veri- fied by oath as being correctly or honestly made up, if that is required. We, upon our professional credit, present it as in our belief a correct statement in a tabular form of the distribution of the statutory 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 gi'eat difference to my mind. Mr. EvARTS. So presenting it, the question is whether you will receive it as the proper and necessary tabular introduction to the documentary evidence con- cerning these different classes of offices in respect to the conduct of the govern- ment in filling or in vacating the 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 present 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 distribution of the offices of the United States according to statute, in order to introduce our practical and actual legal testi- mony aj)propriate to each class. It is submitted to the discretion of the Senate. ]\h-. jManager Boutwkll. Mr. President and senators, this paper, upon examination, does not show that any person was ever appointed 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. IMPEACHMENT OF THE PRESIDENT. 547 Mr. Manager Boutwell. Then I am utterly unable to see how it can be regai-ded as testimouy upon any issue that is before this tribunal. Mr. Trumbull. Mr. President, I move that the paper be printed as a part of the proceedings of the Senate. Mr. EvARTS. That is all we desire. The Ch[ef Justice, It Avill be necessarily printed, having been offered by the counsel for the President. The Chair will put the question, however. You who are of opinion that the paper be printed will say " aye ;" tliose of contrary opinion will say " no." The motion was agreed to. 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Saunp fiisnudza }nq •ajiissajd 3nu -tip djsssjdxj }on puB 'e^iugspai uim% « jo^ •paAoras-i jonoos ssaj ■nn 'ajiuijop ausj ■« ao^j •djtugop caj9j t; jo^ 5 .r: o S (i< Is il I '^-■~ a ? o S-c X J: ® t t •§> ig I-. lb- c III COS 1 X b^ 2^ .^^ ^_ ^ o c <» o ^ .-s r .sJ i^ ° •: fc 'S ° = f- H "^ c o -22 •E'C va H E-i '"^.a q g o o .«; g o o .o O t- a ^ C fc. i a s •— , ^ c s .^ fc a; =*-. t- ^ X '■*-. s- cs s ti I ^ ^ -s 5 fee C * r^— Ota , ;i c; = cs a E -2 a E ~ o o i; he tCS OO p CO S ^ 5 s 5 1"- X o I .= 1 g:' g'.S, ■xC Ji »'x2l5£ r' c t- c ?^ c u c ;> < O aj o < C 00 o - 50 ■a3«d 'oDun[OA. W5 ?0 (O CD (O 1— t lO»OWIOO« r-(fHt-«rHtr CT^h-COOlOCrt "i"r-5<'«'T».c)(MC»i;»cc««cT nnnnr< mnu;>no>ooo>o>a>oa>a>mtno>no)a>a>a>a>o>o>3>ooooo Si cj CI 6< I 00 00 00 00 ■ »o to t*; 10 i-'^ io tn in i.'2 00 OO 00 CD a3!S!2<- f. .00 oo'^o oc (X; ixj TOiTO o 05 a> 01 ct; cjetj w - IMPEAC^ME^'T OF THE PRESIDENT. 551 c a o ■a "5 c c o c •C'C c ^ c o o o ■c o c c c o -c "c -c -c -e c •c c C c c c c c c c •c c c c c •c o o C •c o c c o o O •t i >£ •§ '. ', c . ."C c ; I c ^ '• '"C i *i ; J i c > c '4 i c i < 3 ■i- c c c < "4 ■ • .e-b c o o c ' "111 ' i c i > * >1 H j ^ 4 3 2=" ;> 5 I b i '5 1 ■ . c ;; g - 5 c 1 c D 2 J t a s: c t o ^ J > ^ C 2l 1 for Colorado Territory i for Nevada Territory for Dakota Territory th Mississippi territory 1 for Montana Territorv - X ° >■ c V' \-^<-C-Jr.-^<~-f.\ '- \, > > i- > > > >■ >>>>>?>_>>■ r.-7.-7.-7.v.v.-j:^. v. v. ir. v. 7. v. 7. if. S. in xc^---''?■^;ct~lOc■tlnlr^u^e(c>■^'■^c:0-Jc^c:^5--|(^ltctcooc:s;-t•c^lC•nc»c^t^t~■«■t£ooc:— '^■^•-"■nCT^ cj cj « cj uj C( iTJ 7< tc to a; -.o tc -H r-i ^ r^ ci c» Oi o» CJ cj t) cj X X OD 00 . co COOOOOOOCC»(MC»(riC»C}CJC>CJClC'!C»C!«!^MeCKi-iC«COM'9'«OOSCnOOOOOOIJ;J2J'^J2 552 IMPEA.CIIMENT OF THE PRESIDENT. Sni.inp fqsg3.idx:) jnq 'ajiaifopuj uijs) B JO^J •3.msBaid 3nu -np Aiss3Mix3 )oa pae ooooooooooo "paAoma.i aanoos ssaj -nn 'ajTugsp taaaj b jo j ■3}mijap luas? b jo j ■>2 £ 5 X '» 5 iS oj ,:; a; ;: X k; = s ■ iSxi: o ^ 1. *^ ■"_<-* 2 3 - = = a = =i = «.i S i i 3 'a ^ S) &.&,?- s- a. ^ < O C O O O -^ 3 u i. t. •- I. g t- 5^ 5i =! 5; i -3 =i S g s o c o : c. a > s o >!»0 •8uin[0A t-om>ftoj3i«3£j IMPEACHMENT OF THE PRESIDENT. >0j =2^ m o < fo o o o o o o o o o o o o 3iS "5 =>« O S. ndcjjJcaacScs : a a ;ttO „ ~ S = ?! 5 * . a S I !^ b-^ 2 a 2 ■£ £ g-at: 3 ^^ 3 "r a t! •= ' - " -5 o a 2 'C a -3 O O t^ o al 'p ci -S .• £ as £ o ca S -; -S t: a .„ T! S o a £* o a o ^ a 'a >^S ci C3 03 C3 s rf S ^- s * ca S o 3 ~ 'o o o a _g c o g r^eiis o c o c ; c , c o, 5.-S O X C' *t. i .£f 5 e c s ° a £; 5 X 5f ^ "t;5 a"o aT o "ha s -^ o wQ3 ■s a 0X3 oj c3 3j a* > , o o 's ;a — a a-= •a "3 "C •- •' a 7 a a ! S -5 g a : O ^- Oj O ■s^ a ^ (7J 0» CO t^ O •-I CI lO C< »0 Ci CD :CJO00 1OtO0D — ^00 — C^ C0CCX)O <0J'*mg'-i2»iM'-mnmo>(M(jJMcoco-!!;Qco-*C'«-*C!COC)c>ojci(T>o ^ 3: _ ;*^ ^ a> V, S CO « cc i LI 00 '. OD ^ "^ f-H C ;cjr-i ^ s oo'js "'■' ^ cj jq '■■' CO in i CD a a. 03 ■O fc. ^ <"-> 1-^ QU "^.C^ c; * * 00 :0 'O 'O ci ^- -»ri o iri lo (i*«i! ss: ?S2 , ...,-^ -t-.ao -^_ -2; "«->>'" - >>-' >>2 >, >,4 >.>>>>>,>.>>„_ _ ^ 00 GO 00 00 00 00 ' ■>^s..^«_gr-._._.^ 654 IMPEACHMENT OF THE PEESIDENT. a 3ni.mp fijsssudxj jnn •9jnST!9][d Sni -jnp djsssudxa jon pan 'ejiagapai nuaj b joj e •c t: •psAomai janoos gss] -nn 'ajiugop ra.iaj e jo^ C •ejingop cnjg} b aoj Narao or title of office. o a u O o ^ >> "S > s ! 1 1-1 C-H > o .ca C8 o S III E*ga o »■ o a <^ s 5 £ a; tj o a c 1 c S a c ■5 C s c _o "3 C I c *a "i i '6 ^ to •930,1 CJ in o CO — 1 ■>»< O) T c3 PI — 1 -^««o ■dcunioA. i-> CO iri rj as ao a Ij — 53 » t 3 < . Na\.s — Messrs. Cameron, Cattell, Chandler, Conness, Cragin, Drake, Harlau, Howard, Morgan, Nye, Pomeroy, Ramsey, 'i'hayer, Tiiitun, and Williams — J.'). Not V(»TING— Messrs. Norton, Spragne, and Wade— 3. So the evidence was admitted. Mr. Curtis. Unless the honorable managers desiro tliose documents to be read at length, we do not insist upon it on our part. ]\Ir. Manager Buti.er. We do not desire it. Mr. Curtis. Very well; but 1 su()pose they will be printed. ("Certainly.") IMPEACHMENT OF THE PRESIDENT. 569 Tbe documents tliiis ofleretl in evidence are as follows : United States Navy Departmext, April 9, imS. I hereby ceitity that the aimexed are true statements from tho records of this department. EDGAR T. WELLES, Chief Citric. Be it krown that Edgar T. Welles, whose name is signed to the above certiticate, is now, and was at the time of so sig-ning-, chief clerk in the Navy Department, and that full faith and credit are due to all his official attestations as such. In testimony whereof I have hereunto subscribed my name andcaused the seal of the Navy Department cf the United States to be athxed, at the city of Washington, this 9th day of April, in the year of our Lord 1868, and of the independence of tlu; United States the ninety-second. [L. s. 1 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 other- wise directed, to act as navy agent in addition to his duties as purser of the yard and station. January u, 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 passage to Pensacola. April x;9, 1841. — The President appointed Jackson Morton navy agent at Pensacola. NAVY AGENCY AT BOSTON. February 1, I836. — Purser John N. Todd, United States navy, was directed to assume the duties ot navy agent for the port of Boston, and continue in the performance thereof until further orders from the department. February 1, 1838. — D. D Brodhead, navy agent, Boston, was informed that his requisi- tion for $1U,0U0 had been received and the amoirnt 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 embarrassments of his private affairs, and as the legal term of his appointment would shortly expire, stated that it felt compelled, under the circum- stances of the case, to suggest to him the propriety of tendering at this time his resignation as navy agent. March :3, 183S. — Daniel D. Brodhead, late navy agent at Boston, was requested to pay over to John N. Todd, acting navy agent at Boston, the amount of public funds remaining in-his hands as agent. Daniel D. Brodhead, having, in a letter dated Boston, February 28, 1838, tendered his resignation as navy agent,it was acknowledged and accepted by the department, March 5, 1838. March 24, 1838. — Leonard Jarvis was informed of his having been appointed by the Pres- ident, 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 ofHce of navy agent at New Yt)rk, and instructed to transfer to Paymaster 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 the 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 the 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 Department, 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 at the city of Washington, this 9th day of April, in the year of our Lord 1868, and of the independence of the United States, the ninety-second. [L. S. ] G. WELLES, Secretary of the Navy. 570 IMPEACHMENT OF TEIE PRESIDENT. Navy Dkpautmknt, December ]9, 1840. SrR: Tlip painful duty dovolvos upon me of iuformingf you that liavius^failerl to settle your accounts as required bylaw and the frequent calls of the department, the President' Las directed that you be dismissed the service of the United States. You will, therefore, upon the receipt of this communication, consider your functions as navy agent at Pcnsacola fo liave c(^ased. Until the arrival of your successor, Purser Dudley Walker has been directed to actasuavy anient, to whom you will turn over the funds, books, and papers belonging to the agency at Pensacola. I am, respectfully, &c., J. K. PAULDING. Thomas Easttn, Esq., Lfite Navy Agent, Pensacola. Navy Department, bece.mher 19, l-MO. Sir : I have directed $9,881 to be remitted to you, being the amount of your requisition of the 1st November. You will, until otherwise directed, act as navy agent at Pensacola, 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 stecvmer Warren. I am, respectfully, &c., J. K. PAULDING. Purser Dudley Walker, Care Commodore A. J. Dallas, Nary-yiird, Pensacola. Navy Departmext, January, 5, 1841. Sir : The President of the United States, by and with the advice and consent of the Senate, having appointed you navy agent fur the port of Pensacola, West Florida, for four years, from the "J-ith December, 1841), I have the pleasure to enclose herewith your commission, dated the 5th of January, 1841. I am, respectfully, &c., J. K. PAULDING. George Johnston, Esq., Navy Agunt, ll'as/iington. Navy Department, April 29, 1841. Sir: The President of the United States having appointed you navy agent for the port of Pensacola, West Florida, I have the pleasure to enclose herewith your commission. I enclose to you also a blank bond, which you will execute with at least two sureties, in the sum of $30,000, to be apjjroved by the United States judge or district attorney for the district in which you reside, and return to this department as soon as practicable. I am, respectfully, &c., GEORGE E. BADGER, Jackson Morton, Esq., Navy Agent, Pensacola. Navy Di-:partmext, .July 16, 1841. Sir : The President of the United States, by and with the advice and consent of the Senate, having appointed you navy agent for the- port of Pensacola, Florida, from the 'i9th of April, 1841, I have the pleasure to enclose herewith your commission. I am, respectfully, &c., GEORGE E. BADGE K. Japkson Morton, Esq., Navy Agent, Pensacola. Navy Department, October 2, 1841. Sir: Jackson Morton, Esq., navy agent for Pensacola, has apprised this 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 him all th<' moneys and pjoperty belonging to the agency, and take his receipt for the same, which will bo a sufficient voucher in the settlement of your accounts in the office of the Fourth Auditor. I am, respectfully, cVc, J. I). SIMMS. Acting Secretary of the Nary. I'urser D. Walker, Acting Navy Agent, Pensacola. IMPEACHMENT OF THE PRESIDENT. 571 Navy Dki'autment, Fihruary 1, 1333. SlU: Your requisition for $10,000 liiis bocu received, iuul the iiuiount remitted to Julm N. Todd, jiurser of tin- liostou st;itioii, who hu.s been directed to discharge tlie duties of navy agent until further orders. Tiie department regrets tiuit tlie rei)ortcil embarrassment of your private affairs, and the couditiim of the banks in lioston, particularly that in which you have kept your public accounts, renders this course necessary. As the legal term of your appointment will shortly expire, the department feels compelled, under tlie circumstances of the case, to suggest to you the propriety of tendering at this time your resignation as navy agent. lam, very respectfully, your obedient servant, M. DICKERSON. D. D. Brodhead, Esq., Nary Agent, Boston. Navy Department, February 1, 1833. Sir : I have this day authorized to be remitted to you $10,000 under pay 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 jour present duty, which you will do on receipt of this, and continue in the performance thereof until further orders from the department. I am, respectfully, yoin- 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 Purser Todd was charged with the 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 govern- ment from any supposed responsibility or embarrassment in relation to my position, I have the honor to tender you my resignation as navy agent for this port, believing that you, as well as all others having oifficial business with me, can bear testimony that I have faithfully and satistactorily performed all my duties as a public oificer. I have the honor to be, with great respect, your obedient servant, DANIEL D. BRODHEAD. Hon. M. Dk.'KER.SON, Secretory of the N'ury, Washington, D. C. Navy Department, March 3, 1838. Sir: I request that you will pay over to John N. Todd, acting navy agent at Boston, the amount of public fund's remaining in your hands as navy agent, for which his receipt will be to you a sufficient voucher. \\'hen I last saw you you assured me that I should hear from you in 24 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 the 23th ultimo, resigning your office of navy agent for the port of Bos- ton, has been received, and your resignation is accepted. I am, very respectfully, your obedient servant, ■ M. DICKERSON. D. D. Brodhead, Esq., Late Navy Agent, Boston. Navy Department, March 24, 1338. Sir : Leonard Jarvis, Esq., of Boston, has been appointed navy agent for that port in place of D. D. Brodhead, resigned. You will therefore pay over to Mr. Jarvis the amount of public money in your hands as acting navy agent, and his receipt will be to you a proper voucher in the settlement of your accounts. So much of your requisition of the 13th instant as has been approved will be remitted to the new agent with as little delay as practicable. I am, very respectfuUv, vour obedient servant, M. DICKERSON. John N. Todd, Esq., Acting Navy Agent, Boston. Navy Department, March 24, 1633. Sir : Y'ou having been appointed navy agent for the port tf Boston, I have this day authorized to be remitted to you $53,014 51, under various heads of appropriations, being, the amount of the requisitions of the acting navy agent of the 13th instant, so far as the same were approved. 572 IMPEACHMENT OF THE PRESIDENT. The actinw navy ag^ent, Purser Jolm N. Todd, bas been instructed to pay over to you the public money in bis hands as agent. Instructions with regard to your duties as navy agent will be transmitted to you by the Fourth Auditor of the Treasury. I am, very respectfully, your obedient servant, M. DICKERSON. Leonard Jarvis, Esq., havy Agent, Boston. Navy Department, March 24, 1833. 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 frcMu the 2'id of March, If^'-iS, I have the pleasure to enclose herewith your commission, dated the ■24th of March, ldl38. I am, respectfully, yours, M. DICKERSON. Leonard Jarvis, Esq., Navy Agent, Boston. N.'iVY Department, June 20, 1864. Sir : By direction of the President of the LTnited States, you are hereby removed fiom the oiBce of navy agent at New York, and you will iuunediately transfer to paymaster John D. Gibson, paymaster United States navy, all the public funds and other property in your charge. Aery respectfully, GIDEON WELLES, Secretary of the Nary. Isaac Henderson, Esq., Navy Agent, New York. Navy Department, June 20, 1864. Sir: You are hereby relieved from the inspection of provisions and clothing at tiie Brook- lyn navy yard, and will at once assume the duties usually appertaining to the ofrlce of navy agent at the city of New York. Mr. Henderson has been instructed to turn over to you the public funds and other property in his possession, for which you will receipt to him. You will not permit liim to remove from the office any of the books, papers, or vouchers, until the further order of the dejiartment, but you will allow him to place in the ofdce an agent (should he desire to do so) to juotect his interests and see that the books and papers necessary to the settlement of his accounts are not used in a mariner to destroy their value as vouchers. You will be careful to do nothing to affect in auy way the liability of Mr. Henderson or his sureties to the government. The chief of the bureau of provisions and clothing will explain to you in person the views of the department. Very respectfully, GIDEON WELLES, Secretary of the Navy. Paymaster John D. Giisson, United States Nary, Brooklyn, New York. Navy Department, December 26, 1864. Sir: By direction of the President of the United States you are hereby removed from the ofHce of the navy agent at Philadelphia, and you will immediately 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, Decemher 26, 1864. Sir: Mr. James S. Chambers, navy agent, Philadelphia, has been instrircted to turnover to you the public funds and other government property in his possession, for which you will receipt to him, and you will at once assume the duties usually appertaining to the office of navy agent. You will not permit Mr. Chambers to remove from the otlice any of the books, papers, or vouchers, until the further ordiu' of the department, but you will allow him to place; in the office an agent (should he desire to do so) to protect 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 voucher.s. You will be careful to do nothing to affect in an}' way tlie liability of Mr. Chambers or his sureties to the government. Should Mr. Cliauibers reserve a portion of the funds iu his possession to meet outstanding checks, the assistant treasurer has been requested not to honor them unless indorsed by you as correct. You will see that they have been given for actual government dues. Your office will be kept open at least during the ordinary banking hours in Philadeliihia. Very respectfully, GIDEON WELLi:S, Secretary of the Navy. Paymaster A. E. Watson, United States Navy, Philadelphia. IMPEACHMENT OF THE PRESIDENT. 573 Mr. Curtis. There is one other document from the Navy Department which I suppose i^ not distinguishable from tho?e that hive just been admitted. It purports to be a list of all civil officers of that department appointed for four years under the statute of May 1/), 1820, and removable from offica 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 origin.il appointment, the date of his removal, and by whom removed, in a tabular form. Mr. JoH.NSON. 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 maoagers and examined by them.) Mr. JManager 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 con- tains, 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 nominated in the place. The Chief Justice. The evidence is admitted unless there be some objec- tion. The document is (with the same attestation from the Navy Department as the two preceding ones) as follows : Table B. Civil (ifficers appointed foi- Jour years under the statute of May 15, 1820, and " Remocable from office at i>}easure,^^ who were removed as indicated, their tenns of office not having expired. NAVY agents. Names. Date of original appointment. Term. Date of removal. By whom re- moved. E. Swartwout .. 17 October, 1818 18 March, 1827.... 6 May, 1826 3 March, 1829.... 4 March, 1829.... 1 July, 1829 11 July, 1829 3 March, 1833.... 29 April, 1841 31 August, 1841 ... 1 July, 1844 J April, 1845 8 April, 1845 5 Ji;ne, 1849.... 27 June, 1849 do 24 September, 1849. 1 November, 1850. 5 April, 18.53 .' do The President. Amos Biuuey James Beatty Miles King: J. M. Sherburne.. N. Amory George Harrison . . Not known Do. 17 May, 1810 Do. 27 March. 1810 Do. 25 June, IS28 31 October, 1827. .. 4 years . ...do Do. Do. 21 Noveud)er, 1799. 27 April, 1830 1 1 October, 1833... Do. John Laighton . .. John Thomas 4 years Do. Do. E. C. Wetmore... I. V. Browne S. McCh'llan William B. Scott.. Joseph Hale S. \V. Smith 18 March, 1841 .... 20 September, 1841. 31 August, 1841 ... 8 October, 1848... 19 June, 1840 4 years . ...do.... ...do.... ...do.... ...do.... Do. Do. Do. Do Do. 8 July, 1840 3 July, 1848 ...do.... ...do Do. Do. George Lay all 0. H. Ladd AVilliain Hindman 13 March, 1849 ... ...do Do. 28 June, 1852 do 10 August, 1850... 2-5 August, 1850 1 April, 1858 . ... ...do.-.. ...do.... ...do.... ...do.... ...do Do. Do. B. D. Wright .... E. 0. Perrin William Flinn . 12 April, 1853 28 May, 1853 10 April, 1801 12 April, 1801 16 April, 1801 18 April, 1801 1 May, 18()1 6 May, 1801 ■ 2 May, 1801 20 Juue, 1804 26 December, 1864. Do. Do. Do. N. F. Amnudown. H. G. S. Key .... H. F. Wanlell.... William Badsrcr.. 8 February, 1859 . 27 February, 1860 . 20 May, 1858 do ...do.... ...do.... ...do.... do ]^0. Do. Do. Do. William F. Russell A. E. Sniith Isaac Hiudersou. . J. S. Cluimbers. .. 27 Juue, 1800 16 December, 1857. 19 July. 1801 do ...do.... ...do.... ...do.... ...do.... Do. Do. Do. Do. Mr. Curtis sent a large mass of documents to the managers to be examined. 574 IMPEACHMENT OF THE PRESIDENT. The Ohif.f Justice. Will the counsel ?tate what he proposes to oflFer? Mr. CiRTis. 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 co-extensive with the necessity that arises out of the different cases — death, resignation, sickness, absence, removal. It differs from the scheoule which has been put in by the learned managers, which cov- ered 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. Sir. 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 competent, I call the attention of the Senate to one, the first one that opens, not by any manner the first in order, but the first one that happens : M.4Y27, J836. I hereby appoint C. A. Harris to perform the duties of Acting Secretary of War during the temporary absence of the Secretary for tbe Department of War. ANDREW JACKSON. Now I will turn over to the next page : I hereby authorize and appoint Aaron O. 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 s^t 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 Department 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 0<;tober 16, 1840. Again : Washington City, July 5, 1834. I appoint John Boyle, chief clerk of the Navy Department, Acting Secretary of the Navy, to perform, during tbe absence of the Secretary of the Navy, the duties of the Secretary of the Navy Department. ANDREW JACKSON. 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. ]\Ianagcr 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 Avhat 1 object to; I cannot do so before. 1 have now given you all the forms with two single exceptions. The first exception is that frequently the language; of the letter of appointment, like the one I have read, has been given to cover possible contin- gencies. For instance, Asbury Dickins is appointed to act as St-cretary of the Treasury, "when the Secretary shall be absent," looking to the future, expect- ing that he v.'ould be absent on such a day. Then there an; 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 Quiucy Adams's time, reciting the act of 179.2. There is one in General Jackson's time, reciting that the appointment was under the act of 1792. These are the only three in all this list that recite the act under which they are made. All the others are temporary, are in cases of death or temporary absences from the seat >>i government coming within the exact terms of the law of 1792 or 1795. I have stated what these cases areT Now, the simj)le question is — 1 am not going to argue it — will the Senate permit a series of acts, done under the law, aud exactly in conformity with the law of 1792 and 1795, reciting, where they IMPEACHMENT OF THE PRESIDENT. 575 recited any law, the act of 179.2, to be introduced as evidence upon the trial of a case 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 — tliat is to say, is there such a practice of the j^overnment shown by this as throws any light upon the qui'stion now in i)earing? It goes to the country, it goes to the Senate, that here are a large lot of appointments. True; but these appointments are in con- formity 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 admitted in the answer to be a breach of the law, if the law is constitutional? Mr. (JuKTls." 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 |he acts of Congress when we are putting in evidence. The Chief Justice. The Chief Justice thinks that the evidence is admis- sible 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 evi- dence is admitted. Mr. Curtis. We do not desire to have the documents read. They are very voluminous, and will take time, and it is quite unnecessary 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 authority, designation, or appointment in the following cases : On the 23cl of November, 1819, Christopher Vanderventcr, chief clerk of the War Depart' Dieiit, was authorized by Presideut Monroe, under the act of May 8, 17'J"2, to perform the duties of Secretary of War during the illness of John C. Calhoun, secretary for that depart- ment. Ou the 7th of March, 1825. President J. Q. Adams appointed Samuel L. Southard, Secre- tary of the Navy, to perform the duties of Secretary ot War, that office having become vacant, until the vacancy should be tilled. On the 2b'th of January, 1829, President J. Q. Adams appointed Samuel L. Southard, Sec- retary of the Navy, under the authority conferred by the act of May 8, 1/92, to perform the duties of Secretary of the Treasury until a successor should be appointed to Richard Rush, Secretary of the Treasury, he being unable to perform his duties by severe illness, or until the inability should cease. Ou the 4th of March, 1829, President .Jackson appointed James A. Hamilton to take charge of the Department of State until Governor Van Euren should arrive in the city. Ou the 24th of April, 1829, President Jackson appointed Asbury Dickens Secretary of the Treasury rujtil the return of Mr. Ingham to the city. On the 7lh of July, 1829, President Jackson appointed William B. Lewis acting Secretary of War during the absence of the Secretary. Ou the CJth 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 i9th of August, 1829, President Jackson appointed William B. Lewis acting Sec- retary of War during the absence of the Secretary of War. Ou the 7th of November, 1829, President Jackson appointed J. G. Randolph to perform the duties of Secretary of W^ar until the return of the Secretary, John H. Eaton, he being absent. On the 12th of June, 1830, President Jackson authorized Philip G. Randolph to act as Secretar}' of War while John H. Eaton, tlie Secretary, should be absent. Ou the 8th of March, 1831, President Jackson authorized Philip G. Randolph to act as Secretary of War during the confinement of the Secretary by sickness. Ou the rjth of March, 1831, President Jackson 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. Ou the 12th of May, 1831, President Jack.son authorized .John Boyle to take charge of the office of the Secretary of the Navy and perform its duties imtil a successor to Air. John Branch, the Secretary, who had nuti tied the President lliat he should leave the city " this day," could be appointed, and arrive and take charge of the ofiice. On the 16th of June, 1.-53 J, Presideut Jackson authorized John Boyle, chief clerk of the Navy Department, to act as Secretary of the Navy during the absence from the seat of gov- ernment of Levi Woodbury, the Secretary. 576 IMPEACHMENT OF THE PRESIDENT. On the 18th of Jubo, 1831, Presiilent Jackson authoiized Philip G. Randolph, chief clerk in the War OfHce, to discharge the duties of that office until u successor to Major Eaton should be appointed. On the -Jlt-t of June, 1831, President Jackson appointed Asbury Dickins, chief clerk of the Treasury Drpartinent, to perform the duties required by law of the Secretary of the Treasury until the arrival of Mr. McLaue, appointed successor to Mr. Infjham. On the 'iOth of July, 1831, President Jackson appointed Rofjer B. Taney, Attorney Gen- eral, 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 lOth of August, 1831, President Jackson authorized John Boyle, chief clerk of the Navj' Department, to act as Secretary of the Navy in the absence of the Secretary, Levi W^oodbury, from the seat of government. On the 10th of August, 1831, President Jackson 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 ]2ih 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 Governor Cass. On the 13th of September, 1831, President Jackson appointed Louis McLane, Si^cretary of the Treasury, to take charge of the War Department during the absence of Governor Cass, Secretary, and Roger B. Taney, acting Secretary. On the I8th of October, 1831, President Jackson appointed 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 ]7th of March, 1832, President Jackson authorized Asbury Dickins, chief clerk of the Treasury Department, to take charge of that department and perform the duties of Secre- tary of the Treasury during the indisposition of Mr. McLane. On the 8th of June, 1832, President Jackson authorized John Robb, chief clerk of the War Department, to perform the duties of Secretary of War during the absence of the Secretary. On tlie 16th of Jul.y, 1832, President .Jackson appointed John Robb, chief clerk of the War Department, to act as Secretarj' of War during the absence of the Secretarj-. On the 21st of July, 1833, President Jackson appointed Dauiel Brent, chief clerk of the Department of State, to exercise the duties and perform the functions of Secretary of State '"iu the eveut of the absence from the seat of government of the Secretary during the pres eut summer or approaching autumn, and during 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 ab.-^ence of the Secretary at any time between this date and the 1st of October next." On the I8th of July, l.'^33, President Jackson authorized Asbury Dickins, chief clerk of the Treasury Department, to perform the duties of Secretary of the Treasury iu case of the absence from the seat of government or sickness of the Secretary. On the 8ih of November, J832, 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 I he I2lli 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. On the Cith of May, 1833, President Jackson appointed Asbury Dickins, chief clerk of the Treasury Department, to perform the duties of the Secretary of the Treasury, in the absenc-e of that officer from the seat of government. On the till) of May, 1833, President Jackson appointed John Robb acting Secretary of War during the absence of the Secretary. On the Kit)] of ^May, Ib33, President Jackson authorized I.,ouis McLaue, Secretary of the Treasury, to perform tlie duties and functions of Secretary of State during the absence of Edward Livingston frum the seat uf government. On the 21)tli of May, 1833, Putsident Jackson authorized Asbury Dickins, chief clerk of the Treasury Department, to pi-rform the duties of Secretary of the Treasury foi and during the abseru-e of that officer from llie seat of government. On the .'-th of June, 1833, President Jackson authorized Daniel Brent, chief clerk in the Deitartnient »i' Slate, to act as Secretary of State durnig the absence of the Secretary from the seat of government. On the (ith of .June, 1833, President Jackson appointed John Robb to be acting Secretary of \\'ar during the absence of the Secretary. On the r)tli of June, li^33. President Jackson ajipointed J(din Boyle to bo acting Secretary of the Navy "during the absence at any time witliiu the present year of the honorable Levi Woodbury." On the 13th of June, 1833, President Jackson appointed Daniel Brent to perform the duties IMPEACHMENT OF THE PRESIDENT. 577 of Secretary of State if the Secretary should "be at any time indisposed or absent from i\vi seat of g'ovenniieut. " Ou the lOth of Aup;nst, 1833, President Jackson authorized Asbury Dickins, "should tlie Secretary of State be sick or absent from the seat of t^overnineut before my return to Wasli- iugton," to perform the duties duriucr sueli sickness or absence. On the 2dth of September, IS'SA, President Jackson appointed JoluiKobb actinj^ Secretary of War in the absence of the Secretary. On the 1 1th of NovendxM", 1833, President Jackson authorized Asbury Dickins, chief cleric of the l)epartment of State, to perform the duties of Secretary of State during the ab>ence of the Secretary from the seat of government. On the 2.')th of June, 1834, President Jackson authorized McClintock Young to take charge of tlie Department of the Treasury until a successor to Mr. Taney, resigned, .slioidd be appointed. On the 5th of July, 1834, President .Jackson appointed John Boyle, chief clerk of the Nav3' Department, to be acting Secretary of the Navy during the absence of tlie Secretary. Ou the 8th of July, 1834, President Jackson authorized Asburj' Dickins, chief clerk of the Department of State, to perform the duties of Secretary of State in case of the death, ab- sence from the seatof government, or sickness of the Secretary of State " duringmy absence.'' On , President Jackson authorized John Forsj'th to discharge the duties of Sec- retary of War during the absence of the Secretary. On , President Jackson authorized M. Dickerson to discharge the duties of .Sec- retary of War during the absence of the Secretary. On the 8th of May, ]8;i4. President Jackson appointed Mahlon Dickerson acting Secretary of War during the absence of the Secretary. Ou the lltii 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 I9th of Jaiuiary, 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 Oa the 'id of May, J 835, 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 Jackson appointed Gary A. Harris to act as Secre- tary of War during the absence of the Secretary. On the tith of July, 1835, President Jackson appointed Asbury Dickins to act as Secre- tary 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 of the Treasury " at any periods of absence by the present Secretary during the ensuing mouths." On the 31st of August, 1 835, Presid nt Jackson authorized A.sbury Dickins to act as Secretary of State during the absence of Mr Forsyth from the seat of government. On the 28ch 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. Ou the •2(lth of October, 1835, President Jackson empowered McCliatock Young to per- form the duties of Secretary of State "while the present Secretary is absent from the city of Washington." On the 'i3d of October, 1835, C. A. Harris was appointed by President Jackson to act as Secretary of War during the temporary absence of the 8ecretaiy. On April '29, 183t5, C. A. Harris was appointed by President Jackson to act as Secretary of War during tlie temporary absence of the Secretary. On the 27 th of May, 1836, President Jackson authorized 0. A. Harris to act as Secretary of War during the temporary absence of the Secretary. Ou the 7th of July, J836, Pre.-jideut Jackson empowered Asbury Dickins, chief clerk of the Department of State, to act as Secretary of State " in case of the death, abseuce from the seat of government, or inability of the Secretary during my absence from the seat of government." On the yth of July, 1S3(), President Jackson appointed .John Boyle, chief clerk of the Navy Department, to discharge the duties of Secretary ot the Navy during the abseuce of Mahlon Dickerson, Secretary, from the seat of government. On the 18th of July, 183(i, President Jackson authorized C. A. Harris to act as Secretary of War during the temporary abseuce of that officer from the seat of government. Ou the 8th of September, 18.iG, President Jackson 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 5th of October, 1830, President Jacksou authorized 0. 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, 1(336, President Jacksou autliorized Benjamin F. Butler, Attorney 37 I P 578 IMPEACHMENT OF THE PRESIDENT. General, to act as Secretary of War, that oifice having become vacant, until the vacancy should be filled. On the 2Sth of June, 18:57, Pre-;idcnt Van Buren authorized Aaron O. Dayton, chief clerk of the Department of State, to discharge the duties of Secretary of State during the tempo- rary absence of that officer from the seat of government On the •iOtli of October, J837, President Van ]5iiren autliorized McClintock Young to dis- charge the duties of Secretary of the Treasury "whenever that officer may be absent from tlie seat of government." On the 27th of October, 1837, President Van Buren authorized John Boyle, chief clerk of the Navj' Department, to act as Secretary of the Navy daring tlie absence of the Secretary. On the 21st 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 Secretary. On the Jst of July, 1838, President Van Buren authorized McC. Young to act as Secre- tary 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 functions of Secretary of State " in the event of the ab.seuce 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 Navy during the absence of the Secretary. On the 24th of April, 1839, President Van Buren authorized McClintock Young to perform 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 abseuce of the Secretary from the seat of goverimient. On ttie 15th of June, 1839, President Van Buren authorized McClintock Young to act as Secretary "in the event of the sickness or abseuce 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 (if that officer from the seat of government. On the 16th of October, 184U, President Van Buren autliorized 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 accord- ing to law. On the 19th of March, 1841, President Harrison appointed John D. Simms 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 ihe Departujeut of State, to perform the duties of Secretary of State in the absence of tliat officer from the seat of government. On the 13th of Se])tember, 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 discharge of the duties of head of the Treasury Department. On the 2Uth of October, 1841, President Tyler appointed William S. Derrick to perforin 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 3()th of October, 1841, President Tyler appointed McClintock Young Acting Secre- tary 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 3Uth of June, 1842, President Tyler appointed McClintock Young to perform the duties of Secretary of the Treasury during the abseuce of Hon. Walter Forward from the city of Washington. On the 2Uth 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, 1812, President Tyler appointed McClintock Young to perform the duties of Secretary of the Treasury during the abseuce of Hou. Walter Forwaid from the city of V\' ashington. On the 1st of March, 1843, President Tyler appointed McClintock Young to act as Secre- tary of the Treasury until a successor to Mr. Forwjird should be appointed and enter upou the discharge of his duties. On the 7th of June, 1842, President Tyler appointed McClintock Y'oung to perform the duties of Secretary of the Treasury "during the absence of the Secretary alter the oth instant." IMPEACHMENT OF THE PRESIDENT. 579 On the Otli of May, 18411, President Tyler appointed TTujrh S. Lejrar^ to act as Seeretary orStati' until a successor to Mr. Webster, late Secretary of State, should be appointed, quali- fied, and enter on the discliaro-e of the duties. On the ■'^th of June, ]84:i, Presidi'ut Tyler appointed William S. Derrick to perform the duties of Secretary of State durinjj the absence of Mr. Jjoijare, actinnc Secretary. On the "^Ith of June, 184:5, President Tyler appointed Abel P. Upshur Secretary of State ad interim until a succecsor should be appointed. On the 31st of May, 184'.?, President Tyler appointed Samuel Hume Porter Acting Secre- tary of War during the absence of the Secretary. On the 17th of August, 184;?, President Tyler appointed William S. Derrick Acting Secre- tary of State during the absence of A. P. ITpshur from the seat of government. On the '28th of August, 184:5, President Tyler (.John 0. S|)encer, Secretary of the Treas- ury, "intending to be absent from the seat of government on and after the "iDth instant for two weeks") appointed McCliutock 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 Gene- ral, Secretary of State ad interim until a successor to Mr. Upshur should be appointed. On the 2d of May, 1844, President Tyler appointed McClintock Young to ptnform the duties of Secretary of the Treasury until a successor to J. C. Spencer thould be appointed and qnalificd. . On the "i.^th of September, 1844, President Tyler appointed Richard K. Cralle Acting Sec- retary of State during the absence of John C. Calhoun from the seat of government. Ou the 2d of April, 1845, President Polk appointed John Y'. Mason, Attorney General, to he Secretary of State ad inttrim during the temporary absence of James Buchanan, Secre- tary 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 temporary absence of Mr. iJuchanan from the seat of government. On the 31st of March, 1846, President Polk appointed Nicholas P. Trist to be Acting Secretary of State duiing 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 ^IcClintock Y'oung to perform the duties of Secretary of the Treasury during the absence from the ciiy 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. Ou the :ilst of March, 1847, President Polk appointed Nicholas P. Trist Acting Secretary of State during the absence of Mr. Buchanan from the seat of guvernment. On the 4th of xVugust, 1847, President Polk appointed William S. Derrick to be Acting Secretary of State during the absence of Mr. Buclianan 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. BLiclianan, "to take effect the •28th instant." On the2Istof July, 1847, President Polk appointed McClintock Y'oung to perform the duties of Secretary of the Treasury during the absence from the seat of government of Robert J. Walker, "he intending to be absent after the '22d instant." On the 15th of October, 1847, President Polk ap[)ointed McClintock Y'oung to perform the duties appertaining to the office of Secretary of the Treasury during the absence of Robert J. Walker. On the 9th of December, 1847, President Polk appointed McClintock Y'oung to perform the duties appertaining to the office of Secretary of the Treasury during the sickness of Robert J. Walker. On the lUth 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. Ou tlu! 2t)th 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 Secretary ftom the seat of government. On the 17th of August, 1848, President Polk appointed McClintock Young to act as Sec- retary 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 General, to act as Secretary of State duiiug the temporar}' 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 temporaiy absence of the Secretary. Ou the •2Uth of November, 1848, President Polk appointed Isaac Toucey, acting Secretary of State during the temporary' ab;:ence of Mr. Buchanan from the seat of government. On the 6th of March, 1849, President Taylor appointed McClintock Y'oung to act as Sec- retary of the Trcasiuy until a succ(?s3or to Mr. Walker should Ite duly appoint.-d. 580 IMPEACHMENT OF THE PRESIDENT. On the 8th of March, 1849, Prcsitleut Taylor appointed Reverdy Johnson Attorney Gen- eral, to act as Secretary of War during the temporary absence of the Secretary from the seat of government. On the Jst of October, 1849, President Taylor appointed William S. Derrick, chief clerk of the Department of State, to act as Secretary of State in tiie absence of the Secretary. On the 8th of October, 1849, President Taylor ajipointcd John D. McPhersun Acting Sec- retary of War during the temporary absence of Mr. Crawford "for the ensuing ten days." On the 20th 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 [secre- tary from Washington. On the 2;5d of July, IS.'jO, President Fillmore 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 Fillmore appointed William S. Denick, 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 2'M of December, 1850, President Fillmore appointed William S. Derrick, chief clerk of the State Department, to be Acting Secretary of State during the temj)orary absence of Mr. Webster from the seat of government On the 1st of March, 18.51, President Fillmore appointed William L. Hodge to be Acting Secretary of the Treasury |)oiuted William L. Hodge to be Acting Secretary of the Tnuvsuryiu the abf-ence of Secretary Corwin. On the 1st of March, 18.52, President Fillmore appointed William L. Hodge Acting Secre- tary of the Treasury in the absence of Secrelary Corw'in. On the 19th of March, 1852, President FiUmore appointed William Hunter Acting Secre- tary of State in the absence of Mr. Welisler. On the2()tii of April, 18.52, President Fillmore appointed William L. Hodge Acting Secre- tary of the Treasury during the iudispositicu (if Secretary Corwin. On the 2d of November, l.<>0, President I'illtiKire appointed Charles M. Conrad, Secre- tary of War, to act as Secretary of the Nitvy during the abs(>nce of tluit Secretary. On the 1st of May, 1852, President Fillmore appdiuted William Hunter to act as Secre- tary of State in the absence' of Mr. Webster. IMPEACHMENT OF THE PRESIDENT. 581 On the 10th of May, 18:V2, Presiilcnt Fillmore appointcil William A. Giiiluim, Secretary of till'. Navy, to act as Secretary of War in tiie absence of Mr. Cunratl. On the 2-lth of May, \Sb2, Prosiilent Fillmore apjiointed William L. Hodge to act as Sec- retary of the Treasury in the absence of Secretary Corwin. On the lUth of June, IHVJ, I'resident Fillmore ajipointed William L. Hodge to act as Secretary of the Treasury in the absenci' of Secretary L'or\vin. On the tith of July, I8j2, Piesident 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 ll'th of Angust, 1852, President Fillmore appointed John P. Kennedy Acting Sec- retary of War during the absence of Secretary Conrad. Ou the 27th of August, J 852, President l<"illmore appointed William L. Hodge Acting Secretary of the Treasury in the absence of Secretary Corwin. On the 2d of September, 18.'i2, President Fillmore appointed Charles M. Conrad, Secretary of War, to be Acting Secretaiy of State in the absence of Mr. Webster. Ou the 4th of October, 1852, President Fillmore appointed William L. Hodge to be Acting Secretary of the Treasury, Mr. Secretary Corwin being unable by sickness to perform the duties of the office. Ou 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 a])pointed 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 sickness of Mr. Corwin. On the 3d of March, 1853, President P^illmore appointed William L. Hodge to act as Sec- retary 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 managers.) 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 appointments to fill the places. I believe they are all of that character, thoitgh I am not quite sure. Some of them 1 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 Acting First Assistant Postmaster General ad, interim in place of Horatio King, now Acting Postmaster General under the law. JAMES BUCHANAN. Washington, February 8, 1861. Post Office Dep.\rtment, IVushington, D. C, April 7, 1863. I, Alexander W. Randall, Postmaster General of the United States of America, certify that the foregoing is a true copy of the original order ou tile in this department, together with extracts from the records in said case. In testimony whereof I have hereunto set my hand and caused the seal of the Post Office [L. .s.] Departmeut to be affi.xed at the General Post Office in the city of Washington the day and year above written. ALEX. W. RANDALL, Postinustcr General. New Orleans Post Office, Orleans Parish, Luuisiana, June 2'J, 1860. Samuel F. M.arks, Postmaster. Let this office be pla^^ed temporarily in the hands of a special agent of the department, to be appointed by the Postmaster General, in place ot Samuel F. Marks, removed. JAMES BUCHANAN. Hon. Joseph Holt, Postmaster General. 582 IMPEACHMENT OF THE PRESIDENT. Ji:xE2a, ISfiO. 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 September 4, I860. Drfalcatiun of the lute postmaster of IVcic York city. [Ex. Doc. No. 91, 3(itli Congress, first session. House of Representatives.] Letter of Postmaster General Holt, transmitting report iu reply to resolution of the House of the 5th of June, 18C0. Order of the President, Washington, Mmj 10, 1860. Xew York post office. New York county, New York State — Isaac V. Fowler, postmaster ; $75,0U0 bond. Let this office be placed temporarily in the hands of a special agent of the Post Office Depart- ment, to be appointed by the Postmaster General, in place of Isaac V. Fowler, removed. JAMES BUCHANAN. Hon. Joseph Holt, Postmaster General. H. St. George Oefutt, Special Agent. (See printed report for further proceedings.) January 21, 1861. Milwaukee post office, Wisconsin, Milwaukee county — Mitchell Steever. postmaster, (failed to pay draft ) Let this office be placed temporarily in the hands of a special agent of the Post Office Depart- ment, to be appointed by the Post Office Department. JAMES BUCHANAN. January 25, 1861. D. M. Bull, special ageut, took charge 6th Febraaiy, 1861, and subsequently handed over the same to W. A. Bryant, special ageut, who remained in charge up to 3Jst March, 1861. I hereby appoint St. John B. L. Skinner, now Acting First Assistant Postmaster General, to be Acting Postmaster General ad interiin iu place of Hon. Montgomery Blair, now tempo- rarily absent. ABRAHAM LINCOLN. Washington, Si ptcmber 22, 1862. [Each of these documents is attested by Postmaster General Randall accord- ing to the form before given.] Mr. Ci'RTis. 1 now offtu- in evid nee, reading from the published E.x;ccutive Documents of the Senate, volume four, second session thirty-sixth Congress, page one, a message of President Buchanan to the Senate in respect to the office of Secretary for the Department of War, and the manner in which he had filled that office in place of Mr. Floyd, and accompanying that message is a list of the 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 appointment made in the recess, and those conffrmed 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 read. Mr. Manager Butler. The difficulty that I find with this message, scniators, is, that it is the message of Mr. Buchanan, and cannot be put in evidence any more than the declaration of anybody else. We should like to have ^Ir. Buchanan brought here under oatli, and to cross-examine him as to this. There area great many questions I should like to ask him about his state of mind at this time ; whetlier he had that clearness of perception just then of his duties Avhich would make his messages evidence. But there is a still further objection, 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 statements of those IMPEACHMENT OF THE PRESIDKNT. 583 gentlemen, however respectable, are to be taken here as evidence. Tliey may be retevred to as public documents, perhaps, 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 IHu- sory and calculated to mislead 1 I do not care to argue it any further. Mr. Johnson. What is it offered for 1 Mr. Curtis. I only wish the Senate to understand the purpose with which we offer this, and that will be, as 1 view it, argument enougli. We off'n- it for the purpose of showing (he practice of the government. This is an act done by the head of the 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. j\Ir. Manager Butlke. The practice of the government ! I 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. Senators, you who are of the opinion that the evidence just offered shall be received will please say aye ; those of the contrary opinion, no. [Put- ting the question.] The ayes appear to have it — the ayes have it. The evi- dence is admitted. Mr. Curtis. The message is short, and I desire it to be read. The Secretary read as follows : MESSAGE FROM THE TRESIDENT 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 a resolution of the Senate, pas,sed on the 10th instant, requesting me to inform that body, if not incompatible with the public interest, " wiietber John B. Floyd, whose appointment as Secretary of War was confirmed by the Senate on the 6th of March, 1857, s'ill continues to liold said office, and if not, when and liow said office liecame vacant; and farther to inform the Senate how and by whom the duties of said ofifice are now dis- charged ; 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 hav3 to inform the Senate that John B. Floyd, the late Secretary of tlie War Department, resigned that office on the 29th day of December last, and that on the 1st day of January instant Joseph Holt was authorized by me to perform the duties of the said office until a successor should be appointed or the vacancy filled. Under this authority the duties of the War Department have been performed by Mr. Holt from the day last mentioned to the present time. The power to carry on the business of the government by means of a provisional appointment when a vacancy occurs is expressly given by the act of February 13, 179.5, which enacts "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 any officer of either of the said departments, whose appoint- ment 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 filled : Provided, That no vacancy shall be supplied, in manner aforesaid, for a longer period than six months." It is manifest tliat if the power which this law gives had been withheld the public interest would frequently suffer very serious detriment. Vacancies may occur at any time in the most important offices which cannot be immediately and permanently filled in a manner satisfactory to the appointing power. It was wise to make a provision which would enable the President to avoid a total suspension of business in the interval, and ecpially wise so to limit the executive discretion as to prevent any serious abuse of it. This is what the framers 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 apjioiutments, whether in a vacation or during tiie session of Congress, has been constantly followed dnring every admiiustration from the earliest period of the government, and its perfect lawfulness has never, to my knowUMl<,fe, been questioned or denied. Without going back further than the year 1829, and without taking into the cal- culation any but the chief officers of the several departments, it will be found that provisional 584 IMPEACHM2NT OF THE PRESIDENT. appointments to fill vacancies were made to the number of one Imudred and seventy-nine, from the commeuceuieut of General Jackson's administration to tlie close of General Pierce's. I'his number would probably be preatl}' increased if all the cases which occurred iu tlie sub- ordinate offices and bureaus were added to the count. Some of tliem were made while the Si-nate was in session; some which were made in vacation were continued in force lon^ after the Senate assembled. Sometimes tiie temporary officer was the conunissioned head of another department, sometimes a subordinate in the same department. Somi^times the atfairs of the Navy Department have been directed ad interim by a commodore, and those of the War De- partment by a f^eneral. In most, if not all, of the cases which occurred previous to b''5"2 it is believed that the compensation provided by law for the officer regularly commissioned was paid to the person who discharg^ed the duties ad interim. To pjive the Senate a more detailed and satisfactory view of the subject I send the accompanying tabular statement, certified by tlie Secretary of State, in which the instances are all set forth in which provisional, as well as permanent, appointments were made to the highest executive offices from Jd2'J nearly to the present time, with their respective dates. It must be allowed that these precedents, so numerous and so long continued, are entitled to great respect, since we can scarcely suppose tliat the wise and eminent nieu 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 wilftilly violated the law or the Constitution. The lawfulness of the practice rests upon the exigencies of the public service, which require that the movements of the government shall not be arrested by an accidental vacancy iu one of tie departments ; upon an act of Congress expressly and plainly giving and regulating the power; and upon long and uninterrupted 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 the duties of said office are now discharged." Nor is it necessary to explain further than I have done '•how, when, and by what authority" the provisional appointment has been made. But the resolution makes the additional inquiry "why the fact of said appoiut- ujent has not been communicated to the Senate." I take it for granted that the Senate did not mean to call for the reasons upon which I acted in performing an executive duty, nor to demand an account of the motives which governed me in an act' which the Jaw and the Constitution left to my own discretion. It is sufficient, therefore, for that part of the resolution to say that a provisional or temporary appointment like that iu question is not required by law to be communicated to the Senate, and that there is no instance on record where such communication ever has been made. JAMES BUCHANAN. Washington, January 15, 1801. UNlTb;D STATE.S OF AlMEllICA, Deparlment of Stale : To all to tvhom these presents shall, come, greeting : I certify that the document hereunto annexed contains a correct list, duly examined and compared with the record in this department, of those persons who have been conunissioned 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, Iri^'J, to December 20, 1860, both inclusive. In testimony whereof, I, J. S. Black, Secretary of State of the United States, have liereunto subscribed my naule and caused the seal of the Department of State to be affixed. Done at the city of Washington, this 15th day of January', A. D. 18G1, and of the inde- pendence of the United States of America the eighty-fifth. [SEAL.] J. S. BLACK. IMPEACHMENT OF THE PRESIDENT. 585 A list of the names of those persons, as shown hij the records of the Department of State, who discharged the duties of officers of the cabinet, uJtethcr by ajjpointment made in recess and those confirmed by the Senate, as well as those acting ad interim or simjjfi/ acting. Date of appoiutinent. Charactar of uppoiutuieut. Under President Jackaon. James A. Hamilton Martin Van Biiren Samuel U. lugUam John Macphersou Berrien, John 13i'anch AVilliam T. Barry John H. Eaton Asbury Dickius "William B. Lewift Eichaid H. Bradford AVilliam B. Lewis J. G. Kandolph I'hilip Ct. Randolph J. ti. Randolph John Boyle John Boyle Kdvvard Livingston Levi Woodbury John Bo vie Philip G-" Randolph A-^bury Dickiud Koger 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 Boyle 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 McClintock Young John Forsyth I>evi Woodbury Mahlon Dickerson. John Boyle Asbury Dickins Benjamin F. Butler John Forsyth Mahlou Dickerson Mahlon Dickerson Asbury Dickins Mulilon Dickt-rson Ami IS Kendall Asbuiy Dickins John Boyle Carey C. Harris 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 AVar Secretary of the Navy Secretary of War Secretary of War Secretary of War Si'cretary of War Secretary of the Navy Secretary of the Navy Si'cretary 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. Secretar3^ of State Secretary of War Secretary of the Navy Secretary of State Secretary of State Secretary of the Treasury. Secretary of War Attorney Gi-neral 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 March 4, 1P-3S) March fi, \&J 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, 182.0.... 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 Julv 20, 1831 Augusts, 1831 August 10, 1831 August 10, 1831 September 12, 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 Novembers, 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, 18.33 June 13, 1833 August 10, 18.33 September 23, 18.33. September 28, 1833. October 22, 1833... November 11, 1833. November 15, 1833. June 25, 18.34.' June 27, 1834 June 27, 1834 June 30, 1834 July 5, 1834 ........ July 8, 1834 No date No date No date October 8, 18.34.... October 11, 1834... January 19, 1835... Mayl, 1835 Ma/2, 1835 May 7, 18.35 May 18, 1835. Actirg. Regular. Regular. Regular. Regular. Regular. Regular. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Acting. R^g^^la^. 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. Actnig. Acting. Acting. Acting. Acting. Acting. Acting. Acting. Regular. Acting. Acting. Acting. 586 IMPEACHMENT OF THE PRESIDENT. List of names — Continued. Anbury Dickins .Secretary of State JlcCliiitoek Yuung Siciftary of the Treasury Aslniry Dickius Secretary of State Asbiiry Dickins McCliutni'k Young Carey C. Harris Carey C- Harris Asbury Dickius Carey C. Harris Asbury Dickius John Koyle C. A. Harris C. A. Harris B. F. Butler B. F. Butler Under President Van Biiren. Joel R. Poinset Secretary of War. A. O. Dayton 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 McCliutock Young John Boyle James K. Paulding . Felix Grundy John Boyle SlcCliutock Young . Aaron Vail MeClincock Young . Aaron Vail McClmtock Young . Henry D. Gilpin ... John M. Niles J. L. Martin J. L. Martin , McClintock Young . J. L. Martin Under Presidents Harrison and Tyler. Thomas Ewing Daniel Webster John Bell George E. Badger John J. Crittenden Francis Granger John D. Simms Daniel Fletcher Webster. McCliutock Young Walter Forward A. P. TIpshur Charles A. Wicklirte Hu^'h S. Legare John McLean John C. Spencer William S. Derrick McCliutock Young McCliutock Young McCliutock Young McClintock Young McClintock Young McCliutock Young John C. Spencer James Madison Porter McClintock Young Hugh S. Legare AVilliam S. Derrick Abel P Upshur .Samuel Hume Porter AV'illiam .S. lierrick John Nelson A. P. Up>hur l)avid Heiishaw McCliutock Young John Nelson Tiiomas W. Gilmer William Wilkins John Y. Mason Jd of September, ]S')3, President Pierce appointed Peter G. Wa.sliingtou to dis- charge the duties of Secretary of the Treasury during the absence of Secretary Guthrie from the seat of government. On the !i-tli of September, 1853, President Pierce appointed A. Dudley Manu, Assistant Secretary of State, to l)e acting Secretary of Slate during the temporary absence of Mr. Marcy from tlie seat of government. On the Pith of April, 1H54, President Pierce appointed Peter G. Washington to discharge the duties of Secretary of the Treasury during tlie temporary absence of Secretary Guthrie from Washington. On the '21st of August, 18.")4, President Pierce appointed William Hunter to perform the duties of Secretary of State during the absence of Mr. Marcy from the seat of government. IMPEACHMENT OF THE PRESIDENT. 591 On the 29tb of Aiis'ust, 1851, Pii'sidoiit Pierce appointed Archibald Campbell to be acting Secretary of War during the absence of the Secretary from flie seat of government. Oq the 5th of October, 1854, I'rcsidejit Pierce appointed Peter G. Washington to dis- charge the duties of Secretary of the Treasury during the absence of Secretary Guthrie from Wasliington. On the oOth of October, 18.34, President Pierce appointed Archibald Campbell, chief clerk of the War Departnieut, 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 Washington. 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 Secre- tary 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 Secietar)' of the Treasury during the absence of Secretary Guthrie from Wash- ington. On the 9th of October, 1856, President Pierce appointed A. Campbell acting Secretary of War, during the temporary absence of the Secretary. On the 19th of January, 1857, President Pierce appointed Archibald Campbell, acting Sec- retary of War, during the temporary absence of the Secretary. On the od of March, 1857, President Pierce appointed Colonel Samuel Cooper, Adjutant General of the army, to be acting Secretary of War. On the 2:5d of April, 1857, President Buchanan appainted Philip Clayton to discharge the duties o* Secretary ot the Treasury during the absence from Wasliington of Secretary Cobb. On the 1st of June, 1857, President Buchanan appointed John Appleton to be acting Sec- retary of State during the absence of Secretary 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 llith of July, 1858, President Buchanan appointed Philip Clayton to discharge the duties of Secretary of the Treasury during the absence from AVasliingtou of Secretary Cobb. On the 20th of August, 1858, President Buchiiuan appointed John Appleton, Assistant Sec- retary of State, to discharge the duties of Secretary of State during the absence of Secretary Cass from Washington. On the 2t)th of April, 1859, President Buchanan appointed Philip Clayton to act as Secre- tary of the Treasury during the temporary absence of the Secretary of the Treasury. On the 5th of July, 1859, President Buchanan appointed William K. Drinkard to be act- ing vSecretary 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 W^ashingtou, "from and after the 1st of August." On the 3Uth of August, 1359, President Buchanan appointed Philip Clayton to act as Sec- retary of the Treasury during the absence from Washington of Secretary Cobb. On the 3Uth May, 186U, President Buchanan appointed Philip Clayton to act as Secretary of the Treasury during the absence from W^ashington of Secretary Cobb. On the 26th of June, 186U, President Buchanan appointed W^illiam H. Trescott to dis- charge the duties of Secretary of State during the absence of ihe Secretary of State from Washington. 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 Buchanan appointed Philip Clayton to discharge the duties of Secretary of the Treasury during the absence of Secretary Cobb from Washington. On the 22d of October, i860, President Buchanan appointed Philip Claytou to discharge the duties of Secretary of the Treasury during the absence of Secretary Cobb from Wash- ington. On the 26th of November, I860, President Buchanan appointed Philip Claytou to dis- charge the duties of Secretary of the Treasury during the sickness of Secretary Cobb. On the 13tli of December, 1860. President Buchanan appointed W^illiam Hunter, chief clerk of the Department of State, to act as Secretary of State until au apjjointee should be regularly comuiissioned. 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 tilled. On the 2d of August, 1861, President Lincoln appointed Thomas A. Scott to act as Sec- retary of War during the temporary absence of Secretary Cameron from the seat of govern- ment. On the 8th of August, 1861, President Lincoln appointed George Harrington to discharge 592 IMPEACHMENT OF THE PRESIDENT. the duties of Secretary of the Treasury during- the temporary absence from Washiiif^ton of Salmon P. Chase. On the 27th of Aiin-ust, l-'fil. President Lincoln appointed Frederick W. Seward, Assistant Secretary of State, ti) be actings Secretary of State during the temporarj' absence from tlie seat of government of William H. Seward. On the 3d of September, 1H(;|, President Lincoln appointed George Harrington to act as Secretary of the Treasury during the absence of S. P. Chase from Washington. On the '^fith of September, IfBl, President Lincoln appointed William L. Hodge to be acting Secretary of the Treasury during the absence of the Secretary, "commencing from the 27th instant." On the 2d of November, ]8(i]. President Lincoln appointed George Harrington to discharge the duties of Secretary of the Treasury' during the absence ot Salmon P. Chase from Wash- ington. On the 4th of November, 1861, President Lincoln appointed Frederick W. Seward, Assist- ant Secretary of State, to be acting Secretary of State during the temporary absence of William H. Seward from the seat of government. On the loth of November, 1S61, President Lincoln appointed George Harrington to dis- charge the duties of Secretary of the Treasury during the absence of S. P. Chase from Washington. On the 18th of December, 1861, President Lincoln appointed George Harrington to dis- charge the duties of Secretary of the Treasuary during the absence of S. P. Chase from Washington. On the 4th of January, ]8fi'2, President Lincoln, "pursuant to the act of Congress in such case made and provided," the Secretary of State being absent from the seat of government, appointed Frederick W. Seward, Assistant 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 (ith of February, 18(i2, 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 government, 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, 186'i, President Lincoln 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 government, President Lincoln autliorized William Hunter, chief clerk of the Department of State, to per- form 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 din^ing the absence of Salmon P. Chase from Wasinno-ton. 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, I8()2, 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 Lincoln authorized. Frederick W. Seward, Assist- ant 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, 186:?, President Lincoln appointed George Hamngton to discharge the duties of Secretary of the Treasiuy during the absence of the Secretary, Salmon P. Chase. On the llith of March, 18()3, PresidiMit Lincoln appointed George Harrington to discharge the duties of Secretary of the Treasury , President I^incoln, the Secretary of State being absent, . authorized Frederick W. Seward, Assistant Secretary, to act as Secretaiy of State. On the 11th of April, 1864, President Lincoln, the Secretary of State being absent, author- ized Frederick W. Seward, Assistant Secretary, to act as Secretary of State. On the I4th of April, 18(i4, President Lincoln ai)pointed George Harrington to discharge tlie duties of Secretary of tlie Treasury during the absence of the Secretary, Salmon P. Chase. On the 27th of April, 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 7th of June, 18()4, President Lincoln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of Secretary Salmon P. Chase. On the 3tlth of June, 1804, President Lincoln 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. Cliase, resigned, should be commissioned, or until further orders. On the 11th of July, 1804, 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, 18(54, President Lincoln appointed George Harrington to discharge the duties of Secretary of the Treasury during the absence of Secretary Fessenden. On the '29th of August, 1864, President Lincoln 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 aiithorized 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 Lincoln 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 Lincoln authorized Frederick W. Seward, Assistant Secretary of State, to act as Secretary of State " dirring the present temporary absence ot William H. Seward." On the 1st of February, 1865, President Lincoln authorized Frederick W. Seward, Assistant Secretary of State, to discharge the duties of Secretary of State during the absence of Wil- liam H. Seward. On the 4th of March, 1865, President Lincoln authorized George Harrington, Assistant Secretary of the Treasury, to perform the duties of Secretary of the Treasury until a succes- sor to Mr. Fessenden should be commissioned and qualified, or until further orders. On the 10th of April, 1865, President Lincoln 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 15th of April, 1865, President Johnson appointed William Hunter to perform the duties of Secretary of State unUl otherwise ordered. Secretary Seward being sick. On the 26th of July, 1865, President Johnson appointed William Hunter to be acting Sec- retary of State in the absence of William H. Seward. On the 15th of August, 1865, President Johnson 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, Assistant Secretary, of the Treasury, to perform the duties of the Secretary of the Treasury during the absence of Secretary McCulloch. On the 4th of October, 1865, President Johnson 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 discharge the duties of Secretary of the Treasury during the absence of Secretary McCulloch. On the 2(Uh 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 130th of December, 1865, President Johnson authorized William Hunter to discharge the duties of Secretary of State, the Secretary being absent. On the 15th of May, 1866, President Johnson authorized F. W. Seward, Assistant Secre- tary of State, to discharge the duties of Secretary of State, the Secretary being absent. On the 4th of August, 1866, President Johnson appointed William E. Chandler to discharge the duties of Secretary of the Treasury during the temporary absence of Secretary McCulloch. 38 I P 594 IMPEACHMENT OF THE PRESIDENT. On the 10th of August, ISGfi, President Johnson authorized Henry Stanbery, Attorney General, to discharge the duties of Secretary of State during the ab.^ence of that Secretary. On the 18th of September, IHfjG, Pn^sident 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 Johnson autliorized Frederick W. Seward, Assist- . ant Secretary of State, to discharge the duties of Secretary of State during the illness of ^Yilliam H. Seward. , On the 29th of October, 1866, President Johu.son authorized William Hunter, Second Assistant Secretary of State, to discharge the duties of Secretary of State during the absence of William H. Seward. On the 5th of November, 1866, Pre.sident Johnson authorized William E. Chandler to perform the duties of Secretary of the Treasury during the temporary absence of Secretary McCulloch. On the 2Uth 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 2od of April, 1867, President Johnson authorized Frederick W. Seward, Assistant Secretary of State, to act as Secretary of State during the absence of William H. Seward. On the 1st of June, 1867, President Johnson authorized F. W. Seward, Assistant Secre- tary of State, to act as Secretary of State during the absence of Secretary W. H. Seward. On the 23d of July, 18t)7, President Johnson atithorized William Hunter, Second Assist- ant Secretary of State, to discharge the duties of Secretary of State during the absence of William H. Seward. On the Kith 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 Johnson 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 loth 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 Johnson 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 nuw put in evidence, so tliat it may be printed in connec- tion with this documentary evidence, statements furnished by the Secretary of the Senate under the order of the Senate ; one showing the beginning and ending ofyeach legislative session 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 objection. The Chief Justice. The evidence is received. The documents are as follows : Statement of the beginning and ending of each legislative session of Congress, from 1789 (!o 1868. Congress. Session. Began. Ended. 1 1 Congress. Session. Began. Ended. l8t Ist 2d 3d Ist 2d lnt 2d Ist 2d Ist 2d 3d l8t 2d 1st 2d Ist 2d l»t Mar. 4, 1789 .Sent. 29. 1789. 9th....* 10th loth 11th nth 11th 12th 12th Kith 13th 13tli 14th 14th 1.5th 15th ICth lOth 17th ;i7th 2d Ist 2d 1st 2d 3d Ist 2d 1st 2d 3d 1st 2d lat 2d 1st 2d Ist 2d Dec. 1, 1806 Oct. 26, 1807 Nov. 7, 1808 May 22, 1809 Nov. 27,1809 Dec. 3, 1810 Mar. 3,1807. 1st Jan. 4, 1790 Aug. 12, 1790. Dec- 6,1790 Mar. 3, 1791. Oct. 24, 1791 May 8, 1792. Nov. 5,1792 Mar. 2,1793. Dec. 2,1793 .Tune 9, 1794. Nov. 3, 1794 Mar. 3, 1795. Dec. 7, 1795 ! Juuo 1, 179fi. Dec. .">, 1796 1 Mar. 3, 1797. May 1.5, 1797 i Julv 10. 1797. Apr. 25, 1808. l8t Sd Mar. 3,1809. Juno 28, 1809. 2d. 3d May 1, 1810. Mar. 3,1811. 3d Nov. 4,1811 July 6, 1812. 4th Nov. 2, 1812 May 24, 1813 Dec. 6, 1813 Sept. 19, 1814 Dec. 4, 1815 Dec. 2, 1816 Dec. 1, 1817 Nov. 16, 1818 Dec. 6, 1819 Nov. 13, 1820 Dec. 3, 1821 Dec. 2, 1822 Mar. 3,1812. 4th ,'jth Aug. 2,1813. Apr. 18,1814. 5th 5th Nov. 13, 1797 Dec. 3, 1798 July l(i, 1798. Mar. 3, 1799. Mar. 3, 181.5. Apr. 30, 18l(). 6th Dec. 2, 1799 Nov. 17, 1800 Dec. 7, 1801 May 14, 1800. .Mar. 3,1801. Mav 3. 1802. Mar. 3, 1817. 6th Aiir. 20, 1818. 7th Mar. .3, 1819. 7th Dec. 6, 1802, Mar. 3,1803. Oct. 17, 1803 i Mar. 27, 1804. Nov. 5, 1804 Mar. 3, 1805. Dec.l 2, 1805 Apr. 21, 1806. May 1.5, 1820. feth Mar. 3,1821. 8th ath May 8, 1822. Mar. 3,1823. IMPEACHMENT OF THE PRESIDENT. 595 Stateincnt of the beginning and ending of each legislative session of Congress, from 1789 to 1868— Continued. Congress. Session. leth 1st -• 2d 1st 2d 1st 2d 1st 2d Ist 2d 1st 2d 1st 2d 1st 2d 3d 1st 2d 1st 2d 3d 1st 2d lat IStli l!)th litth 2()th 20th 21st 21st 25(1 22d 23(1 23d 24th 2-lth 25th 25th 25th 2()th 26th 27th 2~th 27th 2Sth 28th 29th Began. Congress. Session. Began. Ended. Dec. Dec. Dec. Dec. Dec. Dec. Dec. Dec. Dec. Dec. Dec. Dec. Dec. Dec. Sept. Dec. Dec. Dec. Dec. Miiy Dec. Dec. Dec. Dec. Dec. 1,182;! 6, 1824 5, 1825 4, 18v;6 3. 1827 1. 1828 7, 1809 6, 1830 5,1831 3, 1832 2, 1833 1, 1834 7, 1835 5. 18.36 4, 1837 4. 18.37 .3, 1838 2, 1839 7, 1840 31, 1841 6,1841 5. 1842 4. 1843 2. 1844 1. 1845 May 27,1824. Mm-. 3, 1825. May 22, 1826. Mar. 3 4827. May 26, 1828. Mar. 3, 1829. May 31, 1830. Mar. 3, 1831. July 16,1832. Jlar. 2, 1833. June 30, 1834. JIar. 3, 1835. July 4, 1836. Mar. 3, 1837. Oct. 16,1837. ■July 9, 1838. Mar. 3, 1839. July 21, 1840. Mar. 3,1841. Sept. 13, 1841. Aug. 31, 1842. Mar. 3, 1843. June 11, 1844. Mar. 3, 1845. Aug. 10, 1846. 29th 30th 30th 31st 31st 32d 32d 33d 33d 34th 34th 34th 35th 35th 36th 36th 37th 37th 37th 38th 38th 39th 39th 40th 40th 2d.: 1st , 2d. 1st 2d., Ist , 2d., 1st , 2d., Ist . 2d.. 3d.. 1st . 2d.. Ist . 2d.. 1st . 2d.. 3d.. Ist . 2d.. 1st . 2d.. 1st . 2d.. Dec. 7 Dec. 6, Dec. Dec. 3, Dec, Dec Dec. 6, Dec. Dec. Dec. Aug. 21 Dec. 1 Dec. Dec. Dec. Dec. July Dec. Dec. Dec. Dec. Dec. Dee. March 4 Dec. ,1846 ,1817 :, 1848 :, 1849 I, 1850 , 1851 ; 18.52 ., 18.53 , 18.'')4 , 18.55 , 1856 , 18.56 , 1857 ;, 18.58 , 1859 :, I860 , 1861 :, 1861 , 1862 , 1863 , 1864 , 1665 . 1866 ,1867 ;, 1867 Mar. 3, Aug. 14 Mar. 3, ."^(■pt. 30, Mar. 3, Aug. 31 Mar. 3, Aug. 7 Mar. 3, Aug. 18, Aug. 30, Mar. 3, June 14 Mar. 3 June 25, Mar. 2, Aug. 6, July 17, Mar. 3, July 4 Mar. 3, July 25, Mar. Dec. , 1847. , 1848. 1. 1849. 1. 1850. , 1851. ,1852. , 1853. , 1854. , 1855. !, 1856. ', 1856. , 1857. , 1858. , 1859. , 1860. , 1861. , 1861. ', 1862. :, 1863. , 1864. 1,1865. ; 1866. , 1867. , 1867. Office Secretary of 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 heginning and ending of each special session of the Senate from 1789 to 1868. Began. Ended. March 4, 1797 March 4, 1797. March 4, IbOl March 5, 1801. March 4, 1809 March 7, ]809. March 4, 1817 March 6, 1817. March 4, 1825 March 9, 182.5. 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 1], 1853. March 4, 1857 March 14, 1857. June 15, 1858 .June 16, 18.58- March 4, 1859 March 10, 1859. Juue 2P, 1860 Juue 28, 1860. March 4, 1 861 March 28, 1 861 . March 4, 1863 / March 1 4, 1863. March 4, 1865 March 11, 1865. April 1, 1867 April 20, 1867. Office Secretary of the Senate, A'pril 16, 1868. I certify that the foregoing statement i.s correct, as appears by the records of the Senate. J. W. FORNEY, Secretary. Mr. Curtis. The Sergeaut-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. 596 IMPEACHMENT OF THE PRESIDENT. Answer. I reside in Georgetown, in this District. lam a lawyer by profession. Q. How long have you been in the practice of the law ? A. Some twenty years, 1 think. Q. In this city 1 A. Yes, sir. Q. In what courts ? A. In the courts of this District and, most of the time, in the Supreme Court of the United States. Q. Were you connected professionally with the matter of General Thomas before the criminal court of this District or before a magistrate ? A. I was. Q. When and under what circumstances did your connection with that mat- ter begin ? A. On Saturday, the 22d of February Mr. Manager Butler. Stop a moment, please. If I heard the question cor- rectly, the inquiry put to the witness was, when and under what circumstances did your connection with the case of Thomas before the Supreme Court, or the chief justice of the District, commence 1 Mr. Curtis. That was the question in substance. Mr. Manager Butler. To that we must object. It is impossible to see how the employment 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 defence then produced the warrant and affidavit and the record of his acquittal. I do not propose to argue it ; but I ask the atten- tion of the Senate to the question whether the employment of Mr. Cox by Mr. Thomas as counsel, the circumstances under which he was employed, and the declaration 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 Gene- ral Thomas employed Mr. Cox as his counsel ; that we cannot 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 propose 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 cir- cumstances you were employed in that matter? IVIr. 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 otlier, in my judg- ment, 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 introductory question, but will submit it to the Senate if it is desired. (After a pause, to the witness.) You can answer the question. A. On Saturday, the 22d of February, a messenger called at my house with a carriage, and stated that IMr. 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 WuiWESS. Nothing was said by Mr. Seward. The messenger stated further that he was directed to take me immediately to the I'resident's House. I accomijunicd him to the President's House, and found the President and Gen- eral 'ITiomas there alone. IMPEACHMENT OF THE PRESIDENT. 597 By Mr. Curtis : Q. At wliat hour, or about what liour? A. At about tive o'clock iu the afternoon. After I was seated the President stated Mr. Manager Butler. Stop a moment. I object to the statement of the President at 5 o'clock iu the afternoon. [Laughter.] The CiiiKK Justice. Will the counsel for the President state the object of this testimony 1 ]\[r. 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 : ^Ye oifer to prove that Mr. Cox was employed professionally by the President, iu the pres- ence of General Thomas, to take such legal proceeding's 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 Secretary for the Department of War against the authority of the President, and also in reference to obtaining a writ of (juo loarranto for the same purpose ; and we shall expect to follow up this proof by evidence of what was done by the witness in pursuance of the above employment. Mr. Edmu\ds. 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 wdl ask his question. Mr. Edmuxds. 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 tlie act done, and after the matter was in course of impeachment, was in proceeding before the House, and after Mr. Stanton had, to protect himself, made an afii- davit that he expected to be turned out of his otfice by force, the President sent, as is proposed to be proved, for Mr. Cox, the witness, and gave him certain directions. It is alleged that those directions were that he should prepare a quo warranto. I had supposed that siich a quo tcarranto was to be filed by the Attor- ney General, if at all, but that that process had substantially gone out of use, and an information iu the nature of a writ of quo uarranto 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 'Sherman that the reason w^hy 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 lawyers 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 make the removal, and he undertakes to show to you here that he made the removal to make up a case which he himself declared was impossible to be made up. It is apparent that no case would by possibility have got into a court except for the declarations and the threats of this officer Thomas to turn by force Stanton out of the War Oftice. That having been done, 598 IMPEACHMENT OF THE PRESIDENT. he sends for a very proper counsel, as I have no doubt the Senate will be quite convinced before we get through. Jle sends for a very proper 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 tase 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 them- selves have put in the record (which imports absolute verity and cannot be contra- dicted by parol or other evidence) that General Thomas was dismissed upon the motion of his counsel. Upon the motion of his counsel the case was dis- missed. Therefore we object, in the first place, that tliis declaration of the President to his lawyer after the fact and after he was in process of being im- peached for that fact, shall not be put in evidence in view of the circumstances. We object, then, that Avhat 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 constitutional 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 gentleman 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 Senators, I will first notice some of the suggestions made by the learned and honorable manager that seem to us not to have any particular bearing upon the question of evidence now submitted to yoit, but which may be noticed. He says that the Attorney General alone can insti- tute a quo warranto. The Attorney General has by law no official function in any court except the Supreme Court of the United States, and a qvo 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 man- agers, 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 General is qiiite a different matter, and it might appear that if this adhe- sion 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 doc- trine of estoppel. It is impossible for us to see any other a))propriatencss in it. But the fact is simply this : that when, in advance of the official action of tlie President to or towards the removal of Mr. Stanton, and when General Sher- man was asked to receive from the Chief Executive the authority to discharge the duties of tliis office ad interim, and wlu'ii General Sherman was revolving iu his own mind his duty as a citizen and as a friend and servant of the govern- IMPEACHMENT OF THE PRESIDENT. 599 merit and sought to inquire why this matter which the 'President desired to te?t and to have his presence in the controversy to enabre him to test, could not be tested by the Lawyers alone, without bringing in a deposit of the ad interim authority in any otKcer, the President replied that it was impossible to make up a case except by such executive action as should lay the basis for judicial inter- ference and determination. Then, in advance, the President did not anticipate the necessity of being driven to this judicial controversy, because, in the alter- native of General Sherman's adceptiug this trust thus reposed in him, the Pres- ident 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 Pres- ident on the 21st of February this designation to take charge of the office from Mr. Stanton if he retired, a*nd his report to the President in the first instance of what was regarded as an equivalent 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 President'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 afternoon 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 Presi- dent did take it up as his controversy between the Constitution 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 recurd between the United States and General Thomas in that criminal complaint, but the state of facts as regards the action and purpose 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 notjcontain 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 appear by the record that the Presi- dent made this his conti'oversy and attempted these objects and pursued this purpose. Certainly it does not ; and if any lawyer can see how and why and in what possible method of application in tlie i-ecord 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 pre- cluded by some of these suggestions and arguments ; but still the matter would be v/holly aside from the real point of inquiry here. Now, 3Ir. Chief Justice and Senators, we are not to be judged by the mea- sure of the proof that we are able to oii'er throu^di this witness, as regards the effect and value of the entire evidence bearing upon this point as it shall be drawn from this Avitness and from other witnesses, and from other forms of tes- timony. 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. Stanton to this form of resignation or retirement demanded 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 desired,. but impos.sible without the antecedent proceedings upon which a proper footing could be gained in the courts, *he then did, with such GOO IMPEACHMENT OF THE PRESIDENT. promptness and such decision, and sucli clear and unequivocal purpose as will be indicated in the evidence, assume immediately that service and that duty ; and it will appear that the opportunity thus presented to him for a more rapid determination than a quo tcarranto or an information in the nature of a. quo war- ranto would permit being seized, it was prevented by the action of Mr. Stanton, the prosecutor, and of the court, upon the movements of the prosecution to get the case out of court, as frivolous and unimportant in its proceeding against Gen- eral Thomas, and becoming formidable and ofPensive when it gave an opportu- nity 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 President proceeded as he might with instructions that the only other recourse of judicial determination by an infor- mation in the nature of quo warranto was resorted to. Mr. Manager Butlkr. Mr. President, I am very glad for an opportunity afforded me by the remarks of the learned counsel for tjie 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 just sat down. I will not be long. I pray you, senators, to remember that I have never referred to this argument, although it has been a sort of rmde viecvm with the counsel of the defence ever since it was delivered. When I Avas 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 tn^eachery of his accidental chief. But whatever may be the construction of the " tenure-of-civil-office act" by others, or as regards otliers, Andrew Johnson, the respondent, is conchrded upon it. He permitted Mr. Stanton to exercise the duties of his oliice in spite of it, if that office were affected by it. He suspended him under its provision ; he reported that suspension to the Senate with liis reasons therefor, in accordance with its provi.-^ions ; and the Senate, acting' under it, declined to concur with him, whereby ISIr. Stanton was reinstated. In the well-knowu language of the law, is not the respondent esto])ped 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 President was estopped from trying hi& case before the Senate of the United States and showing the unconstitutionality of the law, as was argued 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 denyiag the legal propriety of that position or the constitutional propriety of it ; and thereupon it was argued that I claimed 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 downward, 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 wliere the doctrine of estoppel should apply, senators, in this case, and that is that coHusel should be estopped from misrepiesenting the argu- ment of their opponents and tluni 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. 1 have not said that the President was estoppc-d from showing that he attempted to put this man forward as his counsel by his declaration to General Thomas. 1 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 defence by calling this counsel in. It is ask(Hl what lawyer could suppose that it would appear of record that the President of the United Slates was engaged iu this controversy ? Fair dealing, IMPEACHMENT OF THE PRESIDENT. 601 lioiiosty of purpose, upriglitness of action, frankness of political position, would have made it ap))areut. The President of the United States, if be employed counsel for Mr. Thomas in this case, should have sent his counsel into court, and they should have there said: " j\Ir. Chief Justice, Ave are 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 pur- pose we want to get a decision of the Supreme Court of the United States." If then the chief justice of this District had refused to hear that case, there mio;'ht be some ground for the harsh word "evasion" which the counsel 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 Air. 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 motion 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 Lave put in the fact that he was discharged at the motion of his own counsel, and they come back to us and tell us — what ? That they want to show through Ml". Cox that the chief justice evaded this p:iint, for nobody else made that deci- sion If you allow Mr. Cox to come in and say what the President told him, if you can put in his declarations 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 to try whether the proceedings iu the supreme court of this District were regular or otherwise. It is — I will not say designedly — but artistically contrived for the purpose 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 ivarranto. 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 tvarranto cannot be prosecuted, except in the name of the Attorney General, for any public office ; and if any case can be found and shown in this country 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 q^io loarranto, whether by Cox or Staubery, 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 defence ? 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 '? Plas it ever been said here until since that time? Never, never. I will not object to any writ of quo warranto, or information in the nature of a quo ivarranto, 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 filed 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 on from now until next July, ay, and from next July until the following March, precisely as his defenders iu the House of Representatives threatened they would if we carried on this impeach- ment. "Forewarned, fn-earraed," senators. His defenders in the House of Representatives when, we were arguing this matter — it has gone into history — 602 IMPEACHMENT OF THE PRESIDENT. said, "Yon mny impeach him, but if you do we will make you take all the forms, and hi>5 ofScial life will be ended before you can got through the forms of impeachment; we will protract it till next March." That was the threat, and then, in pursuance of that threat, although your summons required him to file his ansAver 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 answer 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 on the trial, and but a part of six have been expended on the trial by the counsel for the defence ; and the rest, twenty-odd working days, with the whole country pausing while ihis is going on, with murders going on through the southern country 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 any legal rule, and if it were here it could have no effect. Mr. Ferry. ]\[r. 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 contradict or vary the statement of the docket entries produced by them to the effect that General Thomas was discharged by Chief Justice Cartter on the motion of the defendant's counsel ? Mr. Curtis, Mr. Chief Justice, I will respond 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 employment by the President of this professional gentleman for the purposes indicated is entirely consistent with everything that appears on the docket. This is evidence, not of declarations, as the senator must perceive, but of acts, because it is well set- tled, as all lawyers 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 employment for a particular purpose of an agent, whether professional or otherwise, is an act, and may always be proved vaJeat 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 show that 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, 1 have nothing to say. It does not seem to me, however pertinent the}' may be, that they require any reply. Mr. Manager Wilson". IMr. President, I beg the indulgence of the Senate for a moment, and I must ask the members of this body to pass u))on what we regard to be the real question involved in the objection which has been inter- posed to the testimony now offered by the counsel for the respondent. On the 21st day of February, 1868, the President of the United States issued an order removing Edwin M. Stanton from the office of the Secretary for the Department of War. On that same day he issued a letter of authority to Lorenzo Thomas directing him to take cliarge of the Department of War and to discharge the duties of the office of Secretary of War ad ivterim. 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 IMPEACHMENT OF THE PRESIDENT. 603 the respondent 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 con- stitutionality of the tenure-of-office act. Now, 1 submit to this honorable body that no act, no declaration of the Pres- ident 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 consti- tute the body of the crime with which the President stands charged. Did he purposely and wilfully issue an order to i-emove the Secretary of War ? Did he purposely and wilfully issue an order appointing Lorenzo Thomas Secretary of War ad interim ? If he did thus issue the orders, the law raises the pre- sumption 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 offence under and by virtue of its provisions, and the oflFence thus being 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 Represen- tatives, the President became alarmed at the state of affairs, and concluded 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 President at the time the act was done ; and if we succeed in establishing that intent, either by proof or by pre- sumption 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 Senators, 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 punishment, in the discretion of the judge, of six cents fine, so by peremptory necessity it becomes in this court a complete and perfect crime under the Constitution, which must require his removal from office, and that anything 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, and there was a purpose of injury to the public interest and to the public 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 move- ment either to procure Mr. Stanton's retirement, as was desired, or to have the necessary footing for judicial proceedings. If thi.s 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 direc<^ion 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 an 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 arguments and escape from them at the 604 IMPEACHMENT OF THE PRESIDENT. same breath. I offer this evidence to prove that the whole purpose and intent of the Pre.xident of the United States, in his action in reference to the occupancy of the othce of Secretary of War, had this extent and no more : to obtain a peaceable delivery of that trust from one holding 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, and it 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 Butlkr. I desire, Mr. Chief Justice, simply to read an authority to settle the question as to a quo tonrranto. I read from 5 Wheatou's Reports, pa^e 291, the case of Wallace vs. Anderson : EiTor to the circuit court of Ohio. This was an iuformatiou for a quo warranto, bvougjht to try the title of the defenciant to the office of principal surveyor of the Virgiuia military bounty lands north of the river Ohio, and between the rivers Scioto and Little Miami. The defendant had been appointed to the office by the State of Yirj^inia, and continued to exercise its duties until the year 18J8, during all which time his official acts were recognized by the United States. In that year he was removed by the governor and council of Virginia, and the plaintiff appointed in his place. The ^yrit was brought, by consent of both parties, to try the title to the office, waiving all questions of form and of jurisdiction. * * * * » » Mr. Chief Justice Marshall delivered the opinion of the court, that a writ of quo warranto could not be maintained except at the instance of the government ; and as this writ was i.ssued by a private individual, 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 exercise the office in question. The iuformatiou must therefore be dismissed. Judgment reversed. Mr. CuuTis. I wish to remark, Mr. Chief Jus'.ice, in reference to that author- ity, 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 Avhat otEcer is to represent the public, in Avhose name the informa- tion 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 proceedings in behalf of the United States, in the circuit 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 tbe United States. What partic- ular 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 appli- cation by Mr. Cox to the district attorney to obtain his signature to the proper information and the obtaining of that signature. The Chikf Justick. Senators, the counsel for the President offer to prove that the witness, Mr. Cox, was employed professionally by the President in the presence of General Thomas to take such legal proceedings iu 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 reference to obtaining a writ of quo toarravto for the same purpose, and they state that they expect to follow up this proof by evidence of what was done by the witness in pursuance of the above employment. The first article of impeach- ment, which may, perhaps, for this purpose, be taken as a sample of the rest, relating 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 IMr. Stanton, proceeds : " Which order was miluwfully issued with intent then and thin'e to violate the act entitled 'An act regulatuig the tenure of certaiu civil offices,' " »fcc. The article charges, first, that the act was done unlawfully, and then it IMPEACHMENT OF THE PRESIDENT. 605 charges that it was done with intent to accomplish a certain resnlt. Tliat intent the President denies, and it is to establish that denial by pi-oof 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 presence 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, M^hich the Cliief Justice understands to be in the nature of facts, he thinks ai'e admis- sible in evidence. The Senate has already, i;pon a former occasion, decided by a sidemu vote that evidence of the declarations 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, offered by the honorable [managers. It seems to me that the evidence now offered comes within the principle of those decis- ions ; 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 gentlemen 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 question, 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, Corbett, Davis, Dixon, Doolittle, Fessen- den, Fowler, Frelinghuysen, Grimes, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Eoss, Sauls- bury, Sherman, Sprague, Sumner, Truaibull, Van Winkle, Viekers, and Willey — 29. Nays — Messrs. Cameron, Cattell, Chandler, Conkling, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Morgan, Morrill of Vermont, Nye, Pomeroy, Kamsey, 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 President, General Thomas, and yourself, on that occasion ? A. In referring to the appointment of General Thomas as Secretary of War ad interim, the President stated that Mr. Stanton had refused to surrender pos- session of the Department to General Thomas, and that he desired the necessary legal proceedings to be instituted 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 authorities, but that he would be glad if I would confer with him. I promised to do so, and stated that I would examine the subject immediately, and soon after took leave. Q. When you left did you leave the President and General Thomas there 1 A. I did. Q. About what time in the day was it that you left ? A. 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. Q. State now anything which you did subsequently in consequence of this employment 1 Mr. Manager Butler. Does the presiding officer rule that anything that Mr. Cox did afterward tends to show the President's intent ? The Chief Justice. The Chief Justice considers it within the principle of the ruling of the Senate. 606 IMPEACHMENT OF THE PRESIDENT. The WiTXKSS. After reflecting upon the subject, supposing tliat the Presi- dent's desire was to have the questions in controversy Mr. Manager Butler, I take it the witness's suppositions are not to go in, are they, Mr. President 1 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 "conclusions!" The witness is asked what did he do, not what his conclusinns were. Mr. Curtis. That is an act for a lawyer, a pretty important act for a lawyer, to c(yme 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 Butlkr. I object to the conclusion, and should like to have the ruling of the presiding officer upon that. The Witness. 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 conclusions ; but he will put the question to the Senate if desired. [After a pause, to the witness.] Go on. The Witness. The proceeding by giio loarranto 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 act, I thought the best mode of proceeding was in the first instance Mr. Manager Butler. I object now to his thoughts. Stop somewhete. 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 : Q. To proceed how ? A. To proceed before the examining 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 tlie writ, could examine and see whether Mr. Manager Butler. 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 reaffonings 'I The Chief Justice. In refennice 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 witness in writing, if any senator desires the judgment of the Senate; if not, the witness will proceed. Mr. Thayer. 1 ask ]\Ir. Howard. I ask that the question may be reduced to writing, so that we may 'understand it. IMPEACHMENT OF THE PRESIDENT. 607 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 couclusions j'ou arrived at as to the proper course to be taken to accomplish the iustniiitious given you by the President. Mr. ]\[anager 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 conclu- sions. What he did was one thing; Avhat he thought, and Avhat he determined, and what he wished, and what he hoped, depend so much on the state ot 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 conclusion, then, that the mo,-t expedi- tious way of raising the questions in controversy before the Supreme Court wag 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 Monday morning, and this course met with his approval. I then proceeded to act iu conjunction with the counsel whom General Thomas had engaged to act in his defence in the first instance. By Mr, Curtis : Q. Who was that ? A. 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 cham- bers or a justice of the peace ; whereas General Thomas had been arrested and partially examined before one of the justices of the supreme court of the Dis- trict of Columbia at chambers, and had been held to appear for further exami- nation 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 announced 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 proceedings 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 cannot 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 Senators, 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 announced 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 magisterial 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 magistrate 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 him- 608 IMPEACHMENT OF THE PRESIDENT. self has said that Chief Justice Cartter announced that he was going to open the court. Now, if the Senate want to tiy Chief Justice Cartter, and whether he has done rightly or wrongly, I only desire that he should have counsel here to defend him. 1 never before heard the proceedings of a court or a magistrate sitting in a case undertaken to be proved io a tribunal where he was riot on trial by the declarations of the counsel of the criminal who got beaten, or who succeeded, either. The Chief Justice. The Chief Justice will submit the question to the Sen- ate. Counsel 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 the employment of the President ? 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 Avas 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 understand. We do not wish to be char- acterized about it, though. The Chief Justice. Senators, you who are of opinion that the question is admissible 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 towards gettiug out a writ of habeas corpus under the employment of the President ? 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. EvAKTS. No change whatever. The question has been read three times. It is intended to call out what the witness did toward getting out a writ of habeas corjms, 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 ; we meant by that in the court. Mr. Manager Butler. A judge or magistrate 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 President ? The Secretary proceeded to call the roll. My. Sherman. Mr. Chief Justice, T desire to state that my friend from Mis- souri [Mr. llendersonj is sick and unable to attend in his place in the Senate to-day. lie wished me to make that announcement. The call of the roll having been concluded, the result was announced — yeas, 27 ; nays, 23 ; as follows : YtAS — Messrs. Anthony, Bayard, liuckalew, Davis, Dixon, Doolittlo, Fossendcn, Fowler, IMPEACHMENT OF THE PRESIDENT. 609 Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill of Maine, Morgan, Norton' Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Sumner, TninibuU, Van Winkle. Vickers, and Willey — 27. Nays — Messrs. Cameron, Cattell, Chandler, Conklingj, Conness, Cragin, Drake, Edmunds, Ferry, Harlan. Howard, Howe, Morgan, Morrill of Veruiout, Nye, Pomeroy, Ramsey, Stew- art, Thayer, Tipton, Williams, Wilson, and Yates — 23. Not voting — Messrs. Cole, Corbett, Henderson, and Wade — 4. So the Senate decided the question to be admissible. Mr. CuRTfs, (to the witness.) State now, Mr. Cox, what you did in order ta obtain a writ of habeas corpus, pursuant to the instruction of the President ? A. When the chief justice announced that he would proceed as an examin- ing judge to investigate the case of Genei'al 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 discussion this request was refused. Our next eflfort 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. Car- penter and Riddle, applied to the judge then for a postponement of the examination Mr. Manager Butler. Stop a moment. Does this also include what was done by the other people there ? The Chief Ju.stice. 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 examination, we directed General Thomas to decline giving any bail for further appearance, and to surrender himself into custody, and announce to the judge that he was in custody, and then presented to the criminal court an appli- cation for a writ of habeas corpus. The counsel on the other side objected that General Thomas could not put himself into custody, and they did not desire that he should be detained in custody. The chief justice also declared that he would not restrain General Thomas of his liberty, and would not hold him or allow him to be held in custody. Supposing 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 supposing 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 dis- charge, and accordingly the chief justice did discharge him. Immediately after that I went, in company 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 interview with the Presid' nt put in, Mr. President 1 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 Presi- dent of the failure of this attempt, he then i-eceived from the President other instructions upon this subject to follow up the attempt in another way. ■ Mr. Manager Bingham. Do I understand — I ask for information of the coun- sel — 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. Representatives ? Ml-. Curtis. Yes. Mr, Manager Bl'vgham Two daya after he was presented here % 39 I P 610 IMPEACHMENT OF THE PRESIDENT. Mr. Curtis. Yes. Mr, Manager Bixgham. And you are asking for the President's declarations after he was arraigned hero for this crime to prove his innocence 1 We ask the vote of the Senate on it. Mr. Curtis. We do not ask for declarations, Mr. Manager ; we ask for acts. Mr. Manager Bingham. Acts consisting in words two days after his arraign- ment 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 Chikf Justice. The Chief Justice thinks this evidence incompetent. The declarations 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 immediate 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 tvarranto The rea- sons why, and the time at which, and the circumstances under which the habeas corpvs 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 proceeding 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 -Iustice. The Chief Justice may have misapprehended the inten- tion 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 obtain 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 transac- tion came to a close. Now, the offer is to prove conversations with the Presi- dent afrer the termination of that effort in the supreme court of the District of Columbia. The Chief Justice do' s not think that is within the intent of the Senate ; 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." (l^utting the question.) The question is determined in the negative. The evidence is not received, Mr. Cur lis, (to the witness.) Mr. Cox, after you had reported to the Presi- dent 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 constitutionality of the t(!nure-of-()ffice act? Mr. Manager Butler. Wait. If what the President did himself, after he was impeached, after the 26th of February, cannot be given in evidence, I do not see that what his counsel did for him may be. 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 Avas put and I objected to it. Mr. EvAKTS, It has not been rednc(,'d 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 bad reported to the President the result of your eflforts to obtain a writ of habeas IMPEACHMENT OB^ THE PRESIDENT. 611 eorptts, did you do any act in pursuance of the orip^inal instructions you had received from the President on Saturday, to test the right of Mr. Stautou to continue in the office; and if so, state what the acts were ? The Chief Justice. The Chief Justice thinks that this question is inadmis- sible 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 allowable. Does the senator desire the vote of the Senate on the question 1 Mr. D(tOLlTTLB. Yes, sir. The Chief Justice. The qurstion 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 United States, unmindful of the hi^h 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 aud times in said year, before the 2d day of March, in the year of our Lord 1868, at Washington, in tiie District of Columbia, did unlawfully conspire with oue 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 cer- tain civil offices," passed March 2, 1867, and in pursuance of said conspiracy did unlawfully attempt to prevent Edwin M. Stanton, then aud there being Secretary for the Departmeat of War, duly appointed and commissioned under the laws of ihe United States, from holding said office, wheieby the said Andrew Johnson, President ot the United States, did theu 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 Avith a view to obtain evidence bearing upon that article of the impeachment 1 Mr. EvARTs. Yes, any article whatever that indicates as part of his intent or within any time alleged to be with an unlawful purpose. We propose to show the lawful and peaceful purpose. Mr. How^E. 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. HowR. No, the offer to prove. I should like to have tha-t read again. The Chief Justice. The offer which was made by the counsel, and which the Senate admitted, will be read by the Secretary. The Secretary read as follows : We offer to prove that Mr. Cox was employed professionally by the President in the pres- ence of General Thomas, to take such legal proceedings in the case that had been com- menced against against General Thomas as would be effectual to raise judicially the ques tion of Mr. Stanton's legal right to continue to hold the office of Secretary for the Depart- ment of War agamst the authority of the President, and also in reference to obtaining a writ of qua warranto for the same purpose, and we shall expect to follow up this proof by evidence of what was done by the witness 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 conspire. Tne Chief Justice thinks it is admissible with t'lat view under the ruling upon the first offer. He will, however, put the question to the Senate if any senator desires it. Mr. Con NESS. The vote of the Senate is asked. 612 IMPEACHMENT OF THE PRESIDENT. The Chfef Justice. The senator from California asks for the vote of the Senate. Senators, you who are of the opinion that the question ia 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 follows : That said Andrew Johnson, President of the United States, unmindful of the hi^h duties of his office, and of his oath of office, on the 21st day of Febniarj, in the j^ear of our Lord 1868, and on divers other days and tin)es 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 witli other persons to the House of Representatives unknown, to prevent and hinder the execution of an act entitled, "An act regulating the tenure of cer- tain civil offices," passed March 2, 1867 ; and in pursuance of said conspiracy did unlawfully attem))t to prevent Edwiu 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. The Chirf Justice. The Secretary will now read the question proposed to be put to the M'itness. 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 tlie 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, Bnckalew, Davis, Dixon, Doolittle, Fessendeu, Fowler, Grimes, Hendricks, Howe, Johnson, McCreery, Murrill of Maine, Morton. Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, and Willey— 27. Na>s — Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Cragin, Drake, Edmunds, FeiTy, Frelinj;hiiysen, Harlan, Howard, Morgan, Morn il of Vermont, Nye, Pomeroy, Ram- sey, 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 the same day or the next, I forget which, I prepared an information in the natui'e of a quo warranto. I think a delay of one day occurred in the effort to procure certified copies of General Thomas's commis- sioQ as Secretary of War ad interim, and of the order to Mr. Stanton. I theii 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 Attor- ney General, and the papers were sent to him. We also gave it as our opinion to him that it would not be Mr. Manager Butler. Stop. We object to the opinion given by these gen- tlemen to the Attorney General as tending to show the President's motives or intent. Mr. Curtis. We do not insist upon it if the other side object. (To the wit- ness.) i ou can now proceed to state anything that was done after this time. The Witness. Nothing was done after this time by me. The papers were return* d to me recently. Mr Curtis, (to the managers) The witness is now yours, gentlemen, for cross- examination . Mr. Con NESS. I move that the Senate take a recess for fifteen minutes.. The motion was agreed to ; and at the expiration of the recess the Chief Justice resumed the chair aud called the Senate to order. IMPEACHMENT OF THE PRESIDENT. 613 Walter S. Cox cross-examined. By Mr. Manager Butler : Question. You stated tliat you had been practicing law here in Washington some twenty years ? Answer, Yes, sir. Q. Here all the time ? A. Always. Q. Was any other counsel associated with you by the President ? A. No, sir ; not to my knowledge. Q, Were you counsel in that case for the President or for General Thomas ? A. I considered myself counsel for the President. Q. Did you so announce yourself to Chief Justice Cartter ? A. I did not, Q. Then you appeared before him as counsel for Thomas 1 A. I did in that proceeding. Q. And he did not understand in any way, so far as you know, that you were desiring to do anything there on behalf of the President? A. 1 had mentioned the fact to Judge Cartter pi-ivately, out of court, that I had been sent for and directed to take charge of or institute proceedings. Q. As counsel for the President ? A. Yes, sir ; that I had been sent for by the President. Q. But did you tell him that you were coming into his court as counsel for the President ? A, I did not. I do not know whether, when I told him, 1 had then deter- mined to proceed in that way. Q. 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? A. I do not think I did. Q. Had either the court or the counsel any means of knowing that that was your purpose or the President's purpose, so far as you were concerned ? A. 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. Q. Nothing only what they might infer ? A. Precisely. Q. They might infer that? A. I had no conversation with them before the result. Q. I am not speaking now of conversations with counsel outside of the court, but I am speaking of proceedings in court ? A. Precisely so. Q. And so far as the proceedings in court were concerned — and I ask for nothing else — there was no intimation, direct or indirect, 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 propriety of any law ? A. There was none that I remember in the presence of the judge on the bench acting at that time — no other than private information. Q. 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 ? A. None. Q. 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, appear- ing 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? 614 IMPEACHMENT OF THE PRESIDENT. A. Because I did not think they would consent to it. "We did not desire to let them know our object at the time. Q. Then, as I understand you, you concealed your object from them ? A. We rather did, I think. Q. Then they acted as they did act, whether rightly or wrongly, under that concealment, did they ? A. They seemed to divine the object before we got through and to endeavor to defeat it. Q. And they only seemed to divine it from the course they took ? That is the only reason they had for seeming to divine it ? A. Yes, sir. Q. You say you prepared the papers for an information in the nature of a quo warranto ? A. Yes, sir. Q. On what day was that ? A. That was either on Wednesday, the 26th, or the next day. Q. The 26th or 27th of February? A. Yes, sir ; I think it was the 27th. Q. That was after the President was impeached ? A, Yes, sir. Q. Did you see the President between the time that you reported to him and the time when you prepared this paper 1 A. I did not. I have never seen him since. Q. You prepared that paper and carried it to the Attorney General, did you not 1 A. First, to the disti'ict attorney, or rather I spoke to him without presenting the paper. Q. You spoke to him and he said he must have some order from the Attorney General or the President before he could act] A. Yes, sir. Q. And then you went to the Attorney General ? A. I did not go in person; I sent the papers. Q. Did you send a note with them 1 A. I do not remember. Q. You simply sent the papers ? A. I sent a message, either written or verbal ; I do not know which. Q. By whom ? A. I think by Mr. Merrick or Mr. Bradley ; I cannot say which. Q. What Bradley ? A. Joseph H. Q. The elder or younger? A. The elder. | Q. Was he concerned in the matter ? * A. He appeared in court with us merely as an adviser, as a friend of General Thomas. Q. Joseph H. Bradley appeared in the courts of the I^istrict ? A. He did not appear in liis character as attorney of the court. He appeared in person, not in the character of aa attorney. Q. He appeared in person, but did not appear as an attorney? A. Yes, sir. Q. Did he say anything ? j A. Nothing to the court or to the judge. Q. Is this Mr. Bradley the same man who was disbarred ? A. The same. Q. So that he could not appear. Now, since you sent those papers to the | Attorney General, have you ever received them back ? , 1 1 IMPEACHMENT OF THE PRESIDENT. 615 A. I have. Q. When? A. A few days ago. Q. By " a few days ago" when do you mean ? Since you have been sum- moned as a witness 1 A. I think not — just before, I believe. Q. Just before ? A. I believe so. Q. Preparatory to your being summoned as a witness ] A. Not that I am aware of. Q, After or before this case was opened : before or after the trial began ? A. After. Q. How long after ? A. I caauot say. I think it was four or five days ago, as near as I can come to it. Q. 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 communication was ; I only ask the fact whetlier you had any communication ? A. None in person. Q. Had you any in writing ? A. No, sir. Q. Then you had none in any way, if you had none either in person or in writing 1 A. Yes, sir ; through Mr. Merrick, to whom it was more convenient to aee him than it was to»me. Q. So you can only know by what Mr. Merrick said ? A. That is all. Q. Of that I will not ask you; you say the papers were returned to you. Where are they now ? A. I have tbem in my pocket. Q. "Were they not returned to you for the purpose of your having them when you should be called as a witness 1 Do you not so understand it ? A. No, sir ; they came with a message. Q. How soon before you were summoned 1 A. Not more than a day or two, I think. Q. On the same day 1 A. I think a day or two before ; I am not very sure. Q. To your knowledge have those papers, up to the hour in which we are speaking, been presented to any judge of any court 1 A. They have not. . Q. Up to the hour that we are speaking have you been directed either by the Attorney General or the President to present that application to any judge of any court 1 A. The papers came to me with a direction that Mr. Merrick and myself should use our discretion. Q. They came with a written message ? A. No ; a verbal one, through Mr. Merrick to me, or rather it was communi- cated to him, and by him to me. Q. But Mr. Merrick, if I understand you, was not associated with you in this proceeding as counsel for the President, because I asked you if the President had any other counsel 1 A. He was not, as I understood it ; he was counsel for General Thomas. Q. Was this a movement on the part of General Thomas ? The Witness. Which movement ? 616 IMPEACHMENT OF THE PRESIDENT. Mr. Manager Butler. This movement for an information in the nature of a quo warranto. A. It was not. It would be on the part of the United States on his relation Q. On the relation of General Thomas ? A. Yes, sir. Q. Now, sir, have you received in writing, or verbally to yourself, any direc- tions, either from the President or the Attorney General, to file those papers ] A. No positive directions. Q. Any positive or unpositive from him to you ? A. Not immediately. Q. I do not mean through Mr. Merrick. A The only communication I received was through him. Q. Now, sir, if you please, state from whom did Mr. Merrick bring you a direction or communication ? A. From the Attorney General. Q. Who 1 Use names, if you please. A. The Attorney General, Mr. Stanbery. Q. Five days ago ! Mr. Stanbery resigned as Attorney General, we have heard, some fortnight ago or more. How could it come to you from the Attor- ney General five days -ago ? A. I mean Mr. Stanbery. Q. You have never received any direction, even through Mr. Merrick, from the Attorney General, but some sort of direction from the President's counsel, through Mr. Merrick ? A. All I received was Q. Excuse me; just hear my question. • The Witness. Repeat it, if you please. Mr Manager Butlrr. Have you received any communication, through Mr. Merrick or anybody else, from the Attorney General of the United States — not the resigned Attorney General of the United States ? A. I have not from any other person than Mr. Stanbery. Q. And you have not received any from him, either verbally or otherwise, while he was Attorney General ? A. I have not. Q. When you sent in the papers was he then Attorney General 1 A. I believe so. Q. Will you not think, and make yourself certain on that point ? A. I do not know when he resigned. If you can inform me when that was, I can answer. Q. And the resignation made no difference in your action, so that you do not remember it ? A. I do not think he could have resigned 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. Q. And wei e returned by him to you four or five days ago ? A. I cannot be precise as to that — five or six days, or four or five days. Q. Long after he resigned, at any rate ? A. I believe it was. Q. So that when you told us that Mr. Merrick had brought a communication from the Attorney General you meant from Mr. Stanbery ? A. I did. Q. And you have received no communication from the President or from the Attorney General as to what should be done with those proceedings ? A. No, sir. Q. Then, so far as you know, since you have prepared those papers, there IMPEACHMENT OF THE PRESIDENT. 617 has not been any direction or any effort from the President or the Attorney General — leaving out Mr. Stanbery, for he is not Attorney General now — from the President or tlie Attorney General to have anything done with tliose papers ? A. There has been no direction, and there has been no Q. Communication ? A. Communication to me since the papers were forwarded to the office of the Attorney General. Q. Now, sir, we will go to the court for a moment. Did not Mr. Merrick or yourself make the motion to have Mr. Thomas discharged ? A. We did. Q. Had he not been in custody under his recognizance up to the time of that motion ? A. We claimed that he was, but the other side denied it. Q. And to settle that question you moved his discharge ? A. Yes, sir. Q. And that was granted 1 A. It was. Q. Did you make that motion? A. I did. Q. So that, in fact, General Thomas was discharged bj' the court from cus- tody on the motion of the President's counsel 1 Mr. Curtis. He has not said "from custody." The WiTNKSS. Discharged from further attendance. By Mr. Manager Butler : Q. Excuse me. If he was not discharged from custody, what was he dis- charged from? A. He was discharged from the complaint, or from any further detention or examination, I suppose. Q, From "further detention?" He could not be detained without being in custody ? A. 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. Q. 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? A. He was. Q. Now, then, was that information signed by any Attorney General, past, current, or to come, so far as you know ? A. It was not. Richard T. Merrick sworn and examined. By Mr. Curtis : Q. Where do you reside 1 A. In Washington city. Q. And what is your profession ? A. I am a lawyer by profession. Q. How long have you been in that profession ? A. Nineteen or twenty years, or over. In 1847 I was admitted. Q. Were you employed professionally in any way in connection with the matter of General Thomas before Chief Justice Cartter ? A. I was employed by General Thomas on the morning of the 22d of Feb- ruary, to conduct the proceedings instituted against him, and which brought him before Chief Justice Cartter. 618 IMPEACHMENT OF THE PRESIDENT. Q. In the course of that day, the 22d of February, did you have an inter- view, in company with General Thomas or otherwise, with the President of the United States 1 A. Aftet- the action taken by the chiei justice on the case sitting at cham- bers 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 affidavit and the bond filed by General Thomas, and communicating to the President what had transpired in regard to the case. Q. Did you communicate to him what had transpired ? A. I did. Mr. Manager Butler. I did not understand what the question was. Mr. Curtis. The question is, did he communicate to the President what had transpired in regard to the case 1 Mr, Manager Butler. I submit, Mr. President, that that is wholly immate- rial. 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 evidence is cumulative only, and is admissible. He will put the question to the Senate if any senator desires it. The counsel will I'educe their question to writing. Mr. Manager Butler. Upon the whole 1 will not press the objection. The Chief Justice. The objection is withdrawn. Mr. Curtis, (to the witness.) State whether you communicated to the President, in the presence of General Thomas, what had transpired in reference to the case ? A. My recollection is that I communicated what had transpired to the Presi- dent in the absence of General Thomas in the first instance, for he was not at the Executive Mansion when I called ; but during the interview General Thomas arrived, and the same communication was again made in a general conversation, in which the Attorney General, Mr. Stanbery, the President, General Thomas, and myself participated. Q. I wish now you would state whether, either from the President himself, or from the Attorney General in his presence, you received any instructions or sugges^tions as to the course to be pursued by you in reference to General Thomas's case? Mr. Manager Butler. Stay a moment. By Mr. Curtis: Q. 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 Butlkr. What date was it? The Witness. The 22d of February. By Mr. Curtis: Q. Now, the hour of the day, as near as you can fix it? A. I think the proceedings before Chief Justice Cartter at chambers took place between 10 and hiilf-past 10 o'clock; to the best of my recollection about 10 o'clock. Immediately aft(^r they terminated, (and they extended through only a very brief period, for it Avas simply to give a bond,) I ordered copies of the papers to be made, and as soon as tliey were raad(^ I took them to the Fxecutiv(! Mansion. I think it occupied probably from 30 minutes to an hour to make the copies, and my impression is that 1 reached the Executive Mansion by noon. Q. 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 IMPEACHMENT OF THE PRESIDENT. 619 the President, any directions or suggestions as to the course to be taken by yeu as counsel in that case. Mr. Manager Butlbr. Do you ask now for the conversations? Mr. Curtis. I ask for suggestions or directions to this gentleman. I 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 entirely upon what was said. They might amount to verbal acts, as they are called in the books ; and if this gentle- man so received and acted upon them 1 suppose they then pass out of the range of mere talk or declarations. The question is whether he received instructions or suggestions from the President or the Attorney General. Mr. Manager Butler. It will be perceived 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 Presi- dent'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 regarded as acts or declarations. That is all. Mr. EvARTS. It does not follow that these instructions were to defend Mr. Thomas. The point of the inquiry is that the instructions were to make inves- tigations in this proceeding whether steps could be taken in behalf of the Presi- dent. You cannot anticipate what the answer is to be by the objections. We offer to show that the Attorney General, in the presence 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 President ; 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 in his declarations as part of this defence. 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 12, noon, on the 22d of February, upon the first commuuicatiou to the President of the situation of General Thomas's case, the President, or the Attorney General in his presence, gave the attorneys certain directions as to obtaining a writ of habeas corpus for the purpose of testing judicially the right of Mr. Stanton to con- tinue 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 senator 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 presence, 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 Sec- retar}' contrary to the will of the President % A. The Attorney General, upon learning from me the situation of the case, asked if it was possible in any way to get it to the Supreme v^ourt immediately* 620 IMPEACHMENT OF THE PRESIDENT. I told him I was nf)t prepared to answer that question. He then said : " Look, at it and see whether you can take it up to the Supreme Court immediately upon a habeas corpus and have a decision from that tribunal." I told him I would. Q. Subsequent to this time did you come in communication with any gentle- man acting as counsel for the President in reference to this matter, and who was that gentleman, if any ? Mr. JoHNSOA'. What is the question? We did not hear it. Mr. Curtis. The question is, whether, subsequent to this time, he came into communication with any other legal gentleman acting as counsel for the Presi- dent, and who he was 't A. I examined the question as requested by the Attorney (Tcneral, 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 : Q. Stating the result of that examination ? A. Stating the result of that examination. 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: Q. You wrote him a note on this subject? A. I wrote him a note on this subject, and on the following Monday or Tues- day, this being Saturday, I met Mr. Cox, who was the counsel of the Presi- dent, 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, havinu; come to the same conclusion, agreed to con- duct the case together in harmony with a view of accomplishing the contem- plated result of getting it to the Supreme Court on a habeas corpus. Q. State now anything which you and Mr. Cox did for the purpose of accomplishing that result. A. Having formed our plan of proceeding, we went into court on the day on which, according to the bond, General Thomas was to appear before Judge Cartter at chambers. Mr. JoH.\.soN. What day was that? The Witness. That was, I think, on Wednesday, 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. 1 respectfully submit once again, Mr. President, that the acts of General Thomas's counsel, under the direction of the Attorney Gen- eral, after the Pre.sident 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 repre- senting the President. I should have stated that on Tuesday night, by appointment, I 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 I desire may be reduced to writing, if it is ever to be done, before I argue it ; because 1 have argued one or two questions here, and then another question appeared when it came to be reduced to writing. IMPEACHMENT OF THE PRESIDENT. G21 The Chief Justice. The counsel will please reduce their question to writing. The qupstion was reduced to writing, and read by the Secretary, as follows : What, if anything^, did you and Mr. Cox do iu reference to accomplishing the result you have spoken of? Mr. Manager Botler. Does that include what was done in court? Mr. Curtis It includes what was done by the chief justice as a magistrate or iu 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, sii-. 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 befoi-e 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. • A. We went into the room in the City Hall in which the criminar court holds its session, 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 sug- gested 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. .^tanton or for the government, 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 indisposition. To that motion, after consultation with my asso- ciate, Mr. Cox, and Mr. Joseph H. Bradley, who appeared in person as advisory counsel for General Thomas, I rose and objected to the postponeim^nt, stating that I was constrained to object, notwithstanding the plea of personal indispo- sition, to which I always yielded; but I objected now for the reason that this was a case involving a question of great 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 detiiment to the public service, and he earnestly urged the court to a post- ponement. The chief justice thereupon said — I think he remarked that it was the first time he knew of a case iu which the plea of a personal indisposition of counsel was not acceded to by the other side; that it was generally sufficient, and went on to remark upon the motion further in such a munner that I con- cluded he would continue the case until the following day; and as soon as we saw that he would contiime 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 sub- mitted to the judge 622 IMPEACHMENT OF THE PRESIDENT. Mr. Manager Butler. Mr. President, I wish it simply understood, that I may- clear my t^kirts of this matter, that tliis all goes in under our objection, and under the ruling of the presiding officer. The Chirf Justice. It goes in under the direction of the Senate of the United States. (I'o the witness.) Proceed, sir. The Witness. We then announced to the judge that General Thomas's bail had surrendered him, or that he was in custody of the marshal, and the marshal was advancing toward him at the time. I think that Mr. Bradley 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 presiding. , 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, repre- senting that General Thomas was in custody of the marshal, 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 ai-ight I have seen the petition since, and it was not signed. When handed to me Gen- eral 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. Curtis : Q. Well, sir, after you had read it what occurred? A. 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 — I remember that expression, I think, of Mr. Carpenter's — for an accused party to insist upon ])Utting himself inj.il 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 custody. 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 ihe counsel, he should neither put him in cus- tody nor demand bond, and was himself satisfied there was no necessity for pur- suing 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 reference to the alternatives presented of his being placed in custody or discharged upon tlie record, we moved for his discharge iu order to bring up the question otHcially of his com- mitment. He was thereupon discharged. Mr. CuKris. I believe that is all we wish to examine Mr. Merrick upon. Cross-examined by Mr. Manager Butler : Q. Were you counsel, Mr. Merrick, for Surratt ? A. I was, sir. Q. Was Mr. Cox ? A. \li' was not. Q. Was Mr. Bradley, who was advisory counsel in this proceeding? A. He was. Q. When you got to the Executive Mansion that morning, Thotnas was not there, you tell us ? I IMPEACHMENT OF THE PRESIDENT. 623 A. I think not. That is my recollection. Q. Did yon learn whether he had been there ? A. I do not recollect whether I did or not. Had I so learned I probably should have recollected it. Q. Did you not learn that Thomas was then over at the War Department? A. I do not recollect that I did, and think I did not. Q. Did 3'on not learn when he returned that he had come from the War Department ? A. 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 1 Answer. I reside on Long Island, near Jamaica. Q. How long have you been a resident of that region ? A. I have been a resident of Long Island over ten years. Q. Previous to that time where had you resided ? A. Memphis, Tennessee. Q. Are you personally acquainted with the President of the United States? A. I am. Q. And how long a time have you been so personally acquainted with him? A. 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. Q. And has that acquaintance continued until the present time ? A. It has. Q. Were you in the city of Washington in the month of February last ? A. I was. Q. And for what period of time ? A. I came here, I think, about the 1st day of February, or near that time, and remain( d until about the 1st of March or last of February. Q. During that time were you at a hotel or at a private residence 1 A. At a private boarding house. Q. Did you have an interview with the President of the United States on the 21st of February ? A. I did. Q. Alone, or in company with whom 1 A. In company with a member of the House of Representatives. Q. Who was he ? A. Mr. v^elye, of Rochester, New York. Q. 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 formally 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 introduce him. By Mr. Evarts: Q. When did this occur ? A. On the 20th. Q. The day before? A. The day before — on the 20th. 624 IMPEACHMENT OF THE PRESIDENT. Q. Your vi?it, then, on the 21st was on tbis inducement? A. I made the appointment for the next day. I informed Mr. S lye that it was cabinet day, and it would be no use to go until 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. Q. You went there, and you took up Mr. Selye ? A. 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. Q. Did you have any difficulty in getting in 1 A. AVe had. Mr. Kershard, the usher at the door, when I handed him Mr. Selye's card and mine, said that the President had some of bis 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. ^lanager 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 j\Ir. Selye was a member of Congress mentioned 1 A. That was mentioned, that Mr. Selye was a member of Congress. Q. And so you got in? A. And so we got in. Q. Then you went up-stairs ; and were you immediately admitted, or other- wise ? A. We were up-stairs then when this took place ; in the ante-room near the President's reception room. Q. Very well ; then you went in after a while ? A. Yes, sir; we went in. Q. Was the President alone when you went in ? A. He was alone. Q. And did you introduce Mr. Selye ? A. I introduced Mr. Selye. Q. As a member of Congress ? A. As a member of Congress from the Rochester district. Q. Before this time had you heard that any order for the removal of Mr. Stanton had been made ? A. I had heard nothing of it. Q. Nor had Mr. Selye, so far as you know ? A. He had not. I found him lying down when I got to his room, about two o'clock, and he complained of being unwell. Q. So far as you know, he had heard nothing of it ? A. So far as 1 know, he had heard nothing of it. Q. Did you then hear from the President of the removal of i\[r. Stanton ? Mr. Manager liuTLKR. Stay a moment. We feel it our duty to object to the statement of the President to this person or Mr. Selye or anybody else, declara- tions made to parties in the country generally. There can be no end to this kind of evidence ; everybody may be brought here. Wliere 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 time to have considered about the public interest was when the trial was comm(!nced or promoted. We are not to be excluded from a defence 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 reducnig to writing our offer. Mr. Manager Butler. The question simply is what* was said between the IMPEACHMENT OF THE PRESIDENT. 625 President and Mr. Selye cantl Mr. Perrin. That is the question that I had the honor to object to. '^h•. EvARTS. AVe are reducing it to form in order that it may be passed upon. The offer, having been reduced to Avriting, was read by the Secretary, as follows : We offer to prove that the Presideut then stated that he had issued an order for the removal of Mr. Stanton and the euiploynieiit of General Thomas to perform the duties «(/ interim; that thereupon Mr. Perrin said, " Supposiuj^ Mr. Stanton should ojipose the order;" the President replied, "There is no daiifrer of that, for General Tlioituis is already in the otKce." He then added, "It is only a temporary arrangement ; I shall send in to the Senate at once a good name for the olSce." 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 gestae: This is mere nar- ration, 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 impeachment ? Mr. EvARTS. Mr. Chief Justice, I am not aware that the credit of this testi- mony 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 heai-d. 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 tbe time necessary to accommodate his private convenience, and that he then stated to these gentlemen, " I have removed Mr. Stanton and appointed General Tiiomas ad interim,^^ which was their first intelligence of the occurrence ; 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 any- body 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 arrange- ment; 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 pur- pose in this matter, both in respect to any force as threatened or suggested by anybody else being imputable to him at this time, and upon the question of whether this appointment of General Thomas had any other purpose than what 40 IP 626 IMPEACHMENT OF THE PRESIDENT. appeared upon its face, a nominal appointment, to raise tlie question of whether Mr. Stanton would retire or not, and determined, as it seemed to be for the moment, by the acquiescence of Mr. Stanton, was then oidy 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 tlien stated tliat he had issued an order for the removal of Mr. Stantou and the employment of Mr. Thomas to perform the duties ad interim ; that thereupon Mr. Porrin said, "Supposing Mr. Stanton should oppose the order." The President replied : "There is no danger of that, for General Tiiomas is already in the office." He then added : " It is only a temporary arrangement ; I shall send in to 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 considerable discussion, but to leave this objec- tion imder 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 chai^ge, are evidence against a prisoner, and are not evidence for him, because the presumption upon which c!eclarations are evidence is, that no man would declare anything against himself unless it were true ; but everj' man, if he was in a difficulty, or in the view to any difficulty, would make declarations for himself. — 24 Stale Trials, 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 provisions. I leave this objection to the decision of the Senate upon that rule. Mr. EvARTS. It may truly be said, I suppose, 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 attitude 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 President. 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 appli- cable in reference both to the point of why the appointment of Grcneral Thomas was made and with what limitation of purpose in so appointing him, and as bear- ing also upon the question of whether he was using or jnstitying force. May not declarations that are drawn from supposed coadjutors of his, with a view of fixing upon him the responsibility of the same, be rebutted by liis statements at the same period in this open and appanMitly truthfid manner, unconnected with any agitation or any questions of difficulty or any lis mota 1 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. Ewiug, sr., of Ohio, for the j)]ace 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 him- self ; but that at the very moment that he was performing the act of removing Mr. Stanton and appointing General Tliomas, and had supposed that it had quietly been acceded to, he then and there had the purpose not of making an appointment of CJeneral Thomas that was to hold,Avhich should supersede proper action of the Senate; but at the very moment, having used this-necessary appoint- ment for the purpose of testing the question of tlu; Constitution and of the law, he then proposed to send to the Senate of the United States a uominatiou for the office. IMPEACHMENT OF THE PRESIDENT. 627 Mr.'l\[anao;ev Butler. Mr. President, tliere are one or two new facts now put in, or pretended facts, upon wliicli this evidence is pressed. Ttje more material one is that this was before any- controversy arose between the President and Congress upon the subject of Mr. Stanton. If that Avere so, then it might pos- sibly 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 tlic Senate had restored Mr. Stanton ? Had he not tried to get him out and had they not })ut him back? Had he not been beseeching 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, irp in this trouble V And yet the President's counsid rise here in their place and put this evidence before you, because it was his declaration 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 appurtenances belonging to our official position, but I never was aware before that one of them was that what was said to us was evi- dence because 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, prepare 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 i.s said' to a member of Congress. And yet it is just as pertinent, just as competent, in my judgment, as this declaration. We ai'e to have these kinds of declara- tions 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 1 was up before, to suggest that the fact of this being made to a gentleman Avho is on the stump would make it more or less competent ; only to show that so far as the evidence goes, so far as they choose to put in his profession, it is utterly outside of this case. I do not think it would make it more or less evidence because it should have been made to a woman; 1 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 judgment, 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 President'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 President 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 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 the threat of the House and its very prompt exe- cution 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 state- ment by him unaffected by any such considerations as those. The Chief Justice. Senators, the Chief Justice is unable to determine the precise extent to which the Senate regards its own decisions as applicable. He has understood the decision to be that, for the purpose of showing intent, evi- dence may be given of conversations with the President at or near the time of 628 IMPEACHMENT OF THE PRESIDENT. the transaction. It is said that this evidence is distinguishable from that which has been ah'ead j introduced. The Chief Justice is not able to distiniruish it ; but he will submit directly to the Senate the question ■whether it is admissible or not. Mr. Co.XNESS. I ask for the yeas and nays on that question. The yeas and nays were ordered. The question being taken by yeas and nays, resulted — yeas, 9 ; nays, 37 ; as follows : Yeas — Messrs. Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks, McCreery, Pat- terson of Tennessee, and Vickers — 9. Nays — Messrs. Cameron, Cattell, Chandler, Conklingf, Conness, Corbett Cragin, Drake, Ferry, Fessendeu, Fowler, Fieliugliuysen, Grimes, Harhui, Howard, Howe, .Jolmson, Mor- jran, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Ponieroy, Ramsey, Koss, Sherman, Sjiragne, Stewart, Thayer, Tipton, Trumbull, Van Win- kle, Willey, Williams, Wilson, and Yates — 37. Not votixg — Messrs. Anthony, Cole, Edmunds, Henderson, Norton, Sanlsbury, Sumner, and Wade— 8. So the Senate decided the question to be inadmissible. Mr. EvARTS. This evidence being excluded, we have no other questions to ask of the witness. Mr. Manager Butler. We have none, sir. Mr. EvARTS. We have reached a point, ^Tr. Chief Justice and Senators, at which it will be convenient to us that we should not be i-equired to produce more evidence to-day. Mr. Manager Butler. Mr. President, I hope upon this movement for delay the President's coitnsel 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 because of the sickness of counsel. We should have been glad to have Mr. Stanbery hei-e, but these gentlemen present can try this case. There are four of them. When a motion to postpone the case cf Thomas before Chief Justice Cartter 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 administra- tion cannot wait for the sickness of counsel." " I thank thee, -lew, for teaching me that word." The President's counsel there well told us M^hat 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. We cannot wait now, on the same ground, for the sickness of the learned Attorney General ( and why should we ? Why should not this President be called upon now to go on 1 We have been here thirty-three working days since the President actually filecl 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 I'resident, and there have been four adjournments on the days we have worked earlier than the usual time of adjournment, in order to accommo- date the President. Now, the whole legislation of this country is stopping; the House of Repre- sentatives has to be, day by day, h(;re at your bar. The taxes of the country cannot be revised because this trial is in the way. The approj)riations for car- rying on the government cannot be passed because this trial is in the way. Nothing can be done, and the whole! country waits upon us and our action, aud it is not time now for the exhibitions of courtesy. Larger, liigher, greater inter- ests are at stake than such questions of ceremony. Ear be it from- me not to desire to be courteous, and not to desire that we should have our absent and sick friend here to take part with us; but the interests of the people are greater than the interests of any one individual. Gentlemen of the Senate, this is the closing up of a war wherein three hundred thousand men laid di;wn their lives IMPEACHMENT OF THE PRESIDENT. 629 to save the country. In one day we sacrificed them by tens and twenties of thousands on the fiehl of battle, and shall the country wait now in its march to safety because of the sickness of one man and jiause for an indefinite time — because the duration of sickness is always indefinite? More than that, I have here iu my baud testimony of what is going on this day and this hour in the south. ]\[r. Curtis. We object to the introduction of any testimony. Mr. EvARTS. We object to the relevancy of it here. Mr. Manager Butlkr. 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 doue ou this great criminal these murders will cease. Mr. Curtis rose. Mr. Manager Butler. I cannot be interrupted. 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 country. Mr. Chief Justice, in Alabama your register of bank- ruptcy, appointed by yourself. General Spencer, of Tuscaloosa, is driven to-day from his duties and his home by the Ivu-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 1 While we are being courteous the true Union men of the south are being murdered, and on our heads and ou 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 — S 10,800,000 of your gold has been sold at a sacrifice to your treasury, and by whom? More than one-half of it, $5,600,t)00, by one ]\[cGinnis, whom the Senate would not permit to hold office ; and over $10,000 iu currency, of which I 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 different dates, as taken from the best tables, 'i'he 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 January last there have been bought in the city of New York alone, ou 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 per cent, above tlie market price, and since February 20, -Si 4,181,600 worth. Mr. Manager LoG.\.\. Below. Mr. Manager Butlkr. No ; I mean what I say, above. I never make mis- takes iu such matters. I know what I say. From the 3d of January to the 28th of January, by such purchases, the price of bonds Avas 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 day of February down to the 4th of April, when the managers of impeachment on the part of the House of Representa- tives felt it their duty to take this testimony of the assistant treasurer at New York under oath. Now, I say, for the safety of the finances of the people, for the progress of 630 IMPEACHMENT OF THE PRESIDENT. the legislation of the people, for the safety of the true and loyal men, black and white, in the south who have perilled 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 ])roceed ; let us come to a determination of this issue. If the President of the United Statr-s goes free and acquit, then the country must deal with that state of facts as it arises ; but if he, as the House of Representatives instructs me, and as I 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 and all these nuirders come, in the name of Heaven let us have an end of them and see to it that Ave 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 I am mistaken as to time wasted ; but let us see ; let me give you day and date. The articles of impeachment were pre- sented on March 4, and the summons was returnable March 13, at which time the President, by its terms, Avas 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 replication 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 the 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 evidence till the 11th (12th being Sunday) and 13th. Because of sickness, adjourned again over till Wednesday, 14th. Wednesday adjourned early, because counsel could go no further. Thui-sday, 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 rrsed by the counsel for the President, and tAventy-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. TJien the opening consumed parts of two days. On the next day they said they were not qrrite ready to go through with General Sher- man, and you again adjourned earlier than usual. Then we lost almost all of Monday in discussing the questions which.wei'e raised. We adjourned early on Monday, as you remember, and on the next day there was an adjournment almost immediately after the b'enate met, because of the learned Attorney Gen^ eral. 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 case with a great State trial in England, at which were present Lord Chief Justice Eyre, Lord Chief Baron McUonald, 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 9 o'clock in the morning until 1 o'clock at night, and they thus sat therefrom Tuesday until Friday night at 1 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 coirrt 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 2 and 3 o'clock in the morning, and he was regularly in court at 9 o'clock on the following morning. That ia the way cases of great consequence arc tried in England. That is IMPEACHMENT OF THE PRESIDENT. 631 tlie way other courts pit. I am not complaining here, senators, understand me. I am only contmstiiig the delays given, the kindnesses shown, the courtesies extended in this greatest of all chses, 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 sacrifices we would be ready. We only ask that now the counsel for the President shall be likewise readj^aud go on without these interminable 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 carried out, by these con- tinued 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, because 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 standing by my side for the Union I can hear of now only as laid in the cold grave by the assassin's band. 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 cool- ness with which judicial proceedings should be carried on, to address you upon this agonizing topic. I say nothing of the threats of assassination made every hour and upon every occasion, even when objection to testimony is made by the managers. I say nothing of the threats made against the lives of the great offi- cers 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 threats, these unseemly' libels on our former government, will go away when this man goes out of the White House. Mr. CoNi\ESS. Mr. President, I offer the following order : Ordered, That on each day hereafter the Senate, sitting as a court of impeachment, shall meet at 11 o'clock a. m. Mr. SuMNKR. I send to the Chair a substitute 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 the delay of this trial, and in pursu- ance of the order already adopted to proceed with all convenient despatch, the Senate ^v•ill sit from 10 o'clock in the forenoon to G 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 con- sider 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 consideration. 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 appropriate to anything that has pro- ceeded from me. I, at the opening of the court this morning, stated how we might be situated, and added that when that point of time arrived I should sub- mit 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 consequences seem to press upon the honorable managers except at the precise point of time when some of 632 IMPEACHMENT OF THE PRESIDENT. their months are open occupying your attention with their long harangues. J^f you will look at the reports of the discussious 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 i^ taken up with debates on the pro(hiction of our evidence by tbese 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. Camekun. Mr. President, I should like to inquire whether the word " harangue " be in order here? j\Ir. Manager Butler. So far as I am concerned it is of no consequence. Mr. DooLiTTLE. Mr. Chief Justice, I should like to know whether the har- angue itself was in order, not the word 1 Mr. Ferry. Mr. President, I move that the Senate, sitting as a court of impeachment, adjourn. Mr. SuAi.xER. I move that the adjournment be until 10 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 impeach- ment, adjourned until to-morrow at 12 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-arms, The managers of the impeachment on the part of the House of Representa- tives and the counsel for the respondent, except Mr. Stanbery, appeared and took the seats assigned to them respectively. The members of the House of Representatives, as in Committee of the Whole, preceded by Mr. E. B. Washburne, chairman of that committee, and accom- panied by the Speaker and Clerk, appeared and were conducted to the seats pro- vided for them. The Chief Justice. The Secretary will read the journal of yesterday's pro- ceedings. Mr. Stewart. I move that the reading of the journal be dispensed with. The Cmt;^ Justice. If there be no objection it will be so ordered. The Chair hears none. It is so ordered. During the sitting of yesterday the sena- tor from California [Mr. Conness] offered an order that the Senate, sitting as a court of impeachment, meet hereafter at 11 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, Tliat on each day hereafter the Senate, sitting as a court of impeachment, shall meet at Jl o'clock a. m. The Chief Justice. Does the senator from Massachusetts desire to offer his amendment ? Mr. Sumner. I did offer it, Mr. President, yesterday. The Chief Justice. The amendment offered by the senator from Massa- chusetts will be read. The Secretary read the amendment, as follows : Strike out all after the word "ordered" and insert: That consideriuf^ the public interests whicii sutier from the delay of this trial, and in piirsu- auco of the order already adopted to proceed with all couveuieut despatch, the Seuato will sit IMPEACHMENT OF THE PRESIDENT. 633 from 10 o'clock iu the tbrcuoou to G o'clock iu the af'ternoou, with such brief recess as may be ordered. Mr. Sumner. On that I sliould 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 Maine, Pomeroy, Eamsey, Stewart, Sunnier, Thayer, Tipton, and Yates — J 3. Nays — Messrs. Anthony, Cattell, Couness, Davis, Dixon, Doolittle, Drake, Ferry, Fes- senden. Fowler, Freliughuysen, Grimes, Hendricks, Howard, Howe, Jolmson, Morg'an, ISiorrill of Vermont, ISIorton, Patterson of New Hampshire, Patterson of Tennessee, Koss, Saulsbury, Sherman, Trumbull, Van Winkle, Vickers, Willey, Williams, and Wilson — 30. Not voting — Messrs. Bayard, Buckalew, Coukliug, Cragiu, Edmunds, Heuderson, McCreery, Norton, 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. CoMNESS. On that I ask for the yeas and nays. The yeas and nays were ordered. Mr. CoMNESS. 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 11 o'clock a. ui. The question, being taken by yeas and nays, resulted — yeas, 29 ; nays, 14 ; as follows : Yeas — Messrs. Cameron, Cattell, Chandler, Cole, Coiikling, Conness, Corbett, Cragin, Drake, Ferry, Freliughuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Thayer, Tipton, Willey, Williams, Wilson, aud Yates — 29. Nays — Messrs. Anthony, Davis, Dixon, Doolittle, Fowler, Grimes, Hendricks, .Johnson, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Wiukle, and Vickers — 14. Not voting — Messrs. Bayard, Buckalew, Edmunds, Fessenden, Henderson, McCreery, Morton, Norton, Nye, Sprague, and Wade — II. 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 the Senate of yesterday, as published in the Globe of this morning, certain tabular statements incorporated in the remarks of Mr. Manager Butler upon the question of adjournment, wliich tabular statements were neither spoken of in the discussion, nor offered or received in evidence : Therefore, Ordered, That such tabular statements be omitted from the proceedings of the trial as pub- lished by rule of 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 consideration. The Chief Justice. There is no objection. It is before the Senate. Mr. Manager Butler. I only desire to say, sir, that I stated the effect of the tabular statements yesterday. I did not read them at length, because it would take too much time. Mr. He.\uricks. 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 made here upon hi:n, 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 pro- posed by the senator from Connecticut. Upon that question of order, if the 634 IMPEACHMENT OF THE PRESIDENT. Senate desire to debate it, it will be proper to retire for consultation. If no senator moves that order, tbe Chair conceives that it is proper that the honorable manager should be heard in explanation. Mr. Manager Butlrr. 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 df 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 Secretaiy 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. Th2 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 understood the senator from Indiana to inquire if under the rules he could be permitted to make an explanation, or to make a defence of the Secretary of the Treasury ? The Chief Justice. The rules positively prohibit debate. Mr. Anthony. But by unanimous consent I suppose the rule could be sus- pended. 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 Connecticut will please say ay; those of the contrary 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 tbe President, you will please proceed with the defence. Mr. Curtis. The Sergeant-at-arms will call William W. Armstrong. William W. Armstrong sworn and examined. By Mr. Curtis : Question. Please state your name in full. Answer. William W. Armstrong. Q. Where do you reside? A. 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 iu 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 Seuate chamber must be suspended By Mr. Curtis: Q. Repeat, if you please, what is your residence? A. Cleveland, Ohio. Q. What is your occupation or business ? A. I am one of the editors and proprietors t)f the Cleveland Plaindealer. Q. Were you at Cleveland at the time of the visit mtido to that city by Presi- dent Johnson ia the summer of 186G? A. I was. Q. Were you present at the formal reception of the President by any com- mittee or body of men ? IMPEACHMENT OF THE PRESIDENT. 635 A. I was. Q. State by whom he was received. A. The President and his party arrived at Cleveland about half-past 8 o'clock in the evening, and were escorted to the Kennard House. After par- taking of a supper the President was escorted on to the balcony of the Kennard House, and there was formally welcomed to the city of Cleveland, on behalf of the municipal authorities and th<> citizens, by the president of the city council. Q. Did the President respond to that address of welcome ? A. He did. Q. What was the situation of this balcony in reference to the street, in refer- ence to its exposure and publicity, and whether or not there was a large crowd of persons present 1 A. There was a very large crowd of persons present, and there were quite a large number of peo})le on the balcony. Q. How did it proceed after the President began to respond 1 A. For a few moments there were no interruptions, and 1 judge from what the President said that he did not intend Mr. Manager Butlkr. Excuse me. Stop a moment, if you please. I object to what the witness supposed were the President's intentions. By Mr. Curtis : Q. From what you heard and saw was the President in the act of ranking a continuous address to the assembly, or was he interrupted by the crowd, and describe how the affair proceeded ? A. 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 siid that he had simply come tliere to make the acquaintance of the people, and bid them good-bye. 1 think that was about the substance of the first paragraph of his speech. He apologized for the non-appearance of General Grant, and then pro- ceeded with his speech. Q. 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 1 Describe what occurred. A. Well, sir, I did not hear all of the speech. Q. Did you hear calls upon him from the crowd, and interruptions 1 A. I did, quite a number of them. Q. 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 1 A. That I cannot say. Q. Can you say Avhether these interruptions and calls upon the President were responded to by his remarks 1 A. Some of them were. Q. Were the interruptions kept up during the continuance of the address, or was he allowed to proceed without interruption ? A. They were kept up very nearly to the conclusion of the President's speech. Q. What was the character of the crowd ? Was it orderly or disorderly ? A. Well, sir, the large majority of the crowd were orderly. Q. As to the rest ? A. There was a good deal of disorder. Q. Was that disorder confined to one or two persons, or did it affect enough to give a character to the interruptions 1 A. I have no means of ascertaining how many were engaged in the interrup- tions. Q. That is not what I asked you. I ask you whether there was enough to give a general character to the interruptions 1 A. There were quite a number of voices. Whether they were all from the same persons or not I am not able to say. 636 IMPEACHMENT OF THE PRESIDENT. Cross-examined by Mr. Manager Butler : Q. F. W. Pelton, esq., was the president of the city council, was he not ? A. I believe so. Q. Was not his address on the balcony to the President simply in the hear- ing of those who were on the balcony, and did not the President after he had received that welcome address then step forward to speak to the multitude ? A. 1 believe that after Mr. Pelton addressed the President several of the dis- tinguished gentlemen who accompanied the party were presented, and then, in response to calls, the President presented himself. Q. Presented himself in response to the crowd ] A. In response to the Mr. Curtis. In response to what? The WrrNESs. In response to the calls. By Mr. Manager Butler : Q. Would you say that this was a correct or incorrect report of that proceed- ing : About 10 o'clock, the supper being over, tlie party retired to the balcony, where the President was formally welcomed to the Forest City by F. W. Pelton, esq., president of the city conncil, as follows : " Mr. President : On behalf of the municipal authorities of the city I cordially extend to you the hospitalities of the citizens of Cleveland. We recognize you as the Chief Mtigis- trate of this now free republic and the chosen guardian of their rights and liberties. We are grateful for the opportunity afforded by yoi\r visit to our city to honor you as our Chief Magis- trate, and again I extend to you and to the distinguished members of your party a hearty welcome. " Was that about the substance of Mr. Peltou's address ? A. That was about the substance, I think. Q. Then : The President and several members of his party then appeared at the front of the balcony and were introduced to the people ? A. Yes, sir. Q. Then : The vast multitude that filled the streets below was boisterous, and sometimes bitter and sarcastic in their calls, interludes, and replies, though sometimes exceedingly apt. Would you say that Avas about a fair representation ? A. 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. Q. But, whenever they did come, would that be a fair representation of them '? A. What is your question, sir 1 Q. " The vast multitude that filled the streets below was boisterous, and some- times bitter and sarcastic in their calls ?" A. They were to some extent. Q. "They istencd with attention part of the time, and at other times com- pletely drown'ed the President's voice with their vociferations." Was that so? A. Yes, sir, that was so. Q. " After all the presentations had been made, loud calls were made for the President, who appeared and spoke as folloAvs :" Now I will only read the first part to see if you will agree with me as to how soon the interruptions came in. Fem.ow-citizens : It is not for the j)ur)>ose of making a speech that I now appear before you. I am aware of the great curiosity which prevails to see strangers who have notoriety and distinction in the country. I know u large laimber of you desire to see General Grant, and to hear what he has to say. [A voice: "Three cheers for Grant."] Was not that the first interru})tion? A. That was the first interruption. Q. "But you cannot see him to-night.. He is extremely ill." Now, then, was there any interru])tion after that until he spoke of Stephen A. Douglas, and was not that simply the introduction of applause ? IMPEACHMENT OF THE PRESIDENT. 637 A. There were three cheers, I believe, given for Stephen A. Uonghis at that time. Q. Then lie went on without interruption, did he not, until these words came in : I come bofore you las aa American citizen simply, and not as tlie Chief Map^istrate clothed in the insig-nia 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? A. I do not remember that paragraph in the speech. Q. You do not remember whether that was there or not 1 Now, sir, do you remember any other interruption until he came to the paragraph — There was, two years aiyo, 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, '' Unfortunate !" " Too bad ?" A. I did not hear them. Q. Do you know whether they were or were not said ? A. I do not. Mr. Manager Butler. I Avill not trouble you any further. Barton Able sworn and examined. By Mr. Curtls : Question. State your full name. Answer. Barton Able. Q. Where do you reside 1 A. In St. Louis, Q. What is your occupation ? A. I am engaged in the mercantile business, and collector of internal revenue for the first district of Missouri. Q. Were you at St. Louis in the summer of 1866, at the time when President Johnson visited that city ? A. Yes, sir. Q. Were you upon any committee connected with the reception of the Presi- dent ? A. I was upon the committee of reception from the Merchants' Union Exchange. Q. Where did the reception take place 1 A. The citizens of St. Louis met the President and party at Alton, in Illinois, some 24 miles^ above St. Louis. My recollection is that the mayor of the city received him at the Lindell Hotel, in St. Louis. Q. You speak of being on a committee of some mercantile association. What was that association 1 A. The merchants and business men of the city had an exchange for doing business, where they met daily. Q. Not a political association ? A. No, sir.* Q. Did the President make a public address or an address to the people in St. Louis while he was there ? A. He made a speech in the evening at the Southern Hotel to the citizens. Q. Were you present at the hotel before the speech was made ? A. Yes, sir. Q. As one of the committee you have spoken of? A. Yes, sir. Q. Please to state under what circumstances the President was called upon to speak ? A. I was in one of tlie parlors of the hotel with the committee and the Pres- ident, 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 6 38 IMPEACHSfENT OF THE PRESIDENT. care to mnke any speecli. The same tiling was repeated two or tliree 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. Q. What did the committee say 1 Did they say anything 1 A. A portion of the committee, two or three of them, said, after some consul- tation, that they presumed he might as well do it. There was a large crowd of citizens on the outside in front of the hotel. Q. 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 characterize the speech he intended to make ? A. My understanding of it was that he did not care to make a speech at all. Ml". Clrtis. That you have already explained. Mr. Manager Butlek. Mr. Able, please not give your opinion, but give facts. By Mr. Curtis : Q. You have already explained that he manifested reluctance, and how he manifested it. Now, 1 want to know if he said anything as to his purpose in going out ? If so, I should like to have you state it, if you remember. A. I understood from his acceptance that his intention was to make a short speech when he went out. Q. Did you or not hear what he said, or were you in a position so that you could hear what he said 1 A. I heard his conversation with the committee. Q. I do not mean that ; I mean after he went out and began to speak ? A. Very little of it. Q. Was it a large crowd or a small one ? A. A large crowd. Q. Were you present ftir enough to be able to state what the demeanor of the crowd was toward the President?. A. I heard from the inside — I was not oh the balcony of the hotel at all ; but I heard from the parlor one or two interruptions. I do not recollect but one of them. Q. You remained in the parlor all the time, I understand you ? A. Between the parlor and the diniug-room, where the banquet was spread. Q. You were not on the balcony I A. No, sir. Cross-examined by Mr. Manager Butlkr : Q. You met the President at Alton, and you, yourself, as one of this com- mittee, made him an address on board the steamer where he was received, did you not ? A. I introduced him to the committee of reception from St. Louis. Q. The committee of reception from St. Louis met him, then, ou board the steamer? A. On board the steamer. Q. And you introduced him with a little speech? A. Yes, sir. Q. Then Captain Eads, who was the chairman of the citizens or the spokes- man of the citizens, made him an address, did he ? A. Yes, sir. Q. An address of welcome, and to that the President made a response, did he ? A. Yes, sir. Q. And in that address he was listened to with propriety by them, as became his place and the ceremony ? A. I observed nothing to the contrary. Q. You so supposed. Then you went to the Liudell Hotel ? IMPEACHMENT OF THE PRESIDENT. 639 A. I did not go to the Lindell Hotel at the time. Q. The President went, did he not ? A. Yes, sir ; the President was entertained at the Lindell Hotel. Q. And en. route, to the Lindell Plotel he was escorted by a procession, was he not, of the military and civic societies ? A. From the landing ; yes, sir. Q, A procession of the benevolent societies ] A. 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. Q. Were you at the Lindell Hotel at all % A. Yes, sir. Q. When he got there he was received by the mayor, was he not ? A. I Avas not there when he arrived at the Lindell Hotel. Q. Were you there wheu he was received by the mayor ? A. No, sir. Q. You do not know whether the mayor made him a speech of welcome or not there % A. Only from what I saw in the press. Q. Nor do you know whether the President responded there ? A. I was not present. Q. What time in the day was this wheu he got to the Lindell Hotel, as near as you can say % A. 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. Q. Can you not tell about what time they got there 1 A. Well, it was probably between 1 and 5 o'clock. Q. After that did you go with the President from the Lindell Hotel to the Southern Hotel ? * A. 1 do not recollect whether I accompanied him from the one hotel to the other or not. Q. He did go from the one to the other ? A. Yes, sir. Q. There was to be a banquet for him and his suite at the Southern Hotel that night, was there not ? A. Yes, sir. Q. At which there was intended to be speaking to him and by him, I suppose 1 A. There were to be toasts and responses ; yes, sir. Q. And what time was that banquet to come off"? A. I do not recollect the exact hour; I think somewhere about 9 o'clock. Q. At the time the President was called upon b}' the crowd were you waiting for the banquet? A. 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. Q. The citizens being introduced to him, I suppose ? A. Yes, sir. Q. He then went out on to the balcony. Did you hear any portion of the speech ? A. Only such portions of it as I could catch from the inside occasionally. I did not go on to the balcony at all. Q. Could you see on to the balcony where he stood from where you were 1 A. I could see on to the balcony, but I do not know whether I could see precisely where he stood or not. Q. While he was making that speech, and when he came to the sentence, " I will neither be bullied by my enemies nor overawed by my friends," was there anybody on the balcony trying to get him back ? A. I could hardly answer that question. I was not there to see. 640 IMPEACHMENT OF THE PRESIDENT. Q. You said you could see on to the balcony, but you were not certain that you could see him. You might have seen such an occurrence as that? A. I did not. Q. You did not see. Can you tell whether it was so or not, from your own knowledge 1 A. I should think if I could not see it I could not tell. Q. I only wanted to make certain upon that point. A. Well, sir, I am positive on that point. Q. You have no knowledge on the subject. Who was on the balconv beside him ? A. I suppose the balcony will hold perhaps two hundred people. There was a good many people on there ; I could not tell how many. Q. Give me some one of the two hundred, if you know anybody who was there ? A. I think Mr. Howe was there. My recollection is that the President walked out with ]\Ir. Howe. Q. Was General Frank Blair there at any time ? A. I have no recollection of it, if he was. Q. Did the President afterward make a speech at the banquet 1 A. A short one. Q. Was the crowd a noisy and boisterous one after awhile ? A. 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 por- tion of the time. George Knapp sworn and examined. By Mr. Curtis : Question. What is your full name ? Answer. George Knapp. Q. Where do you reside ? A. St. Louis. Q. What is your business ? A. I am one of the publishers and proprietors of the Missouri Republican. Q. Were you in St. Louis at the time the President visited that city in the summer of 1866 ? A. I was. Q. Were you present at the Southern Hotel before Mr. Johnson went out to make a speech to the people ? A. I was. Q. Were you in the room where the President was 1 A. I was. Q. Please state what occurred between the President and citizens, or the com- mittee of citizens, in respect to his going out to make a speech. A. The crowd on the outside had called repeatedly for the President, and some conversation 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 thmk I suggested, that he ouerht to e-o out. Some further conversation occurred, I think, between him and Ca]:)tain Able Q. The gentleman who has just left the stand? A. Yes, sir; Captain Barton Able, and 1 think I said to him that Ik; ought to go out and show himself to the people and alicnys wanting. He went upon the cross and there was painfully nailed by these unbelievers that I have spoken of lure to-nii;ht and there shed his l)lood that you and I might live (cheers) nor the judge ("vuice "nor the Moses.") I know there is some that talk And manage /\ the atfairs ot state. The people of Missouri as well as other States know that A my efforts have all this traduction and detraction that has let us fight A enemies And in parting with you now A leave the government in your hands, re-co£-nized. Cross-examined by Mr. Manager Butler : Q. How long have you been troubled with your unfortunate affliction ? A. To what do you refer"? Q. I understood you were a little deaf. Is that so ? A. 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. Q. Did you hear my question] A. Yes. Q. How long have you been deaf, if you have been deaf at all 1 A. Partially deaf for the last two years, I should think. Q. About what time did it commence 1 A. I cannot state that. Q. As near as you can. You know when you became deaf, do you not ? A. I know I was not deaf when you made your St. Louis speech, in 1866. Q. 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 us when that was 1 A. That was on the 13th of October, 1866. Q. You were not deaf then ? A. No Q. How soon after that did you become deaf ? A. Perhaps a month. [Laughter.] Q. You are quite sure it Avas not at that time 1 A. Quite sure it was not that time, because I heard some remarks the crowd made which you did not. [Laughter.] Q. I have no doubt you heard very much that I did not. Now, suppose we confine ourselves to this matter. About a month after that you became deaf? 648 IMPEACHMENT OF THE PRESIDENT. A. Partially. Q. Partially deaf, as now ? A. I recovered from that sickness. I became sick again the first part of this year. Q. Now, will you have the kindness to state whether you have your notes ? The Witness. Of the President's speech? Mr. Manager Butler. Yes, sir. A. I have not. Q. When did you see them last ? A. The last recollection 1 have of them is when Mr. Walbridge was sum- moned before the Reconstruction Committee to give testimony on the New Orleans riot. Q. Did you and he then go over that speech together? A. We went over only a part of it. Q. The part that referred to New Orleans ? A. Yes, sir. Q. But the part that referred to New Orleans you went over with him ? A. I did. Q. 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 ? A. There was. Q. What was it? A. He asked me to compare notes with him Q. 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. EvAKTS. I submit, Mr. Chief Justice, that as he is asked the precise question what the difference was that arose upon that comparison, 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 comparison. 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 WiTNEoS. When we proceeded to compare 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, " AVhen 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, exciting that popu- lation called the black j)opulation to take up arms and prepare for the shedding of blood," I called Mr. AValbridge's attention to the (qualifying words, "if the facts are as stated." lie 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 : Q. What other difference was there ? A. There was another diff<'rence. Q. In the New Orleans matter? A. Yes, sir; the President's words, I think, were that they there knew a convention was to be called which was extinct by reason of its power having expired. There was a difference in the words "by reason of.'' IMPEACHMENT OF THE PRESIDENT. 649 Q. What was that differonce ? A. The words " by reason of." Q. Were they in or out of Walbridge's report ? A. They were in my report. Q. And were not in Walbridge's report ? A. They were not. Q. Any other difference ? A. No other. That was as f;ir as we proceeded with the report as 1o the New Orleans riot. The latter part of the report was not compared at all, nor was the first part. Q. Now, have you the report as it appeared in the Republican of Monday morning before you ? A. I have. Q. 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 1 A. [The witness produced a new paper.] Yes, sir ; I have it. Q. Now, I will read from the report put in evidence here : Fellow-citizens of St. Louis : In being introduced to you to-night, it is not for the purpose of making a speech. It is true I am proud to meet so many of my fellow-citizens here ou this occasion, and under the favorable circumstances that I do. [Cry, "How about British subjects?"] We will attend to John Bull after a while, so far as that is concerned. [Laugh- ter and loud cheers.] I have just stated that I was not here for the purpose of making a speech." The WjTNES.^i. "Afn 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 ?" A. Of course I do. Q. I will read on : I was not here for the purpose of making a speech ; but after being introduced, simply to tender my cordial 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 circumstances upon some of the questions that agitate and distract the public mind at this time" A. " Questions which agitate." Q. " Which agitate" instead of " that agitate ?" A. Yes. Q. And then it goes on : Questions that have grown out of a fiery ordeal we have just passed tlirough, and which I think as impo«tant as those we have just passed by. The time has come when it seems to me that all ought to be prepared 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 have peace ; when the bleeding arteries should be tied up. [A voice, "New Orleans;" "Goon."] It is so far all right except those two corrections ? A. Yes, sir. Q. 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. Q. Are you dealing with a memorandum ? A. It is the official proceedings. Q. You are comparing yourself with the official proceedings as you go on, where you have noted these corrections 1 A. Yes, sir, in the official proceedings. Q. Then you are going on with a copy of the official proceedings and noting the differences 1 A. Yes ; but I can make the memoranda Avithout 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 650 IMPEACHMENT OF THE PRESIDENT. I should go on MiLh tlie New Orleans part. AVliy do you wish anything about it ? The WiTMKSS. You were proceeding- to make corrections, and when you came to the New Orleans part you stopped. By Mr. Manager Butler : Q. Well, I will take this portion of it The Witness. Any portion. , Q. " Judaas, Judas Iscariot, Judaas 1" A. One Judas too many there. [Laughter.] Q. " There was a Judas once," You are sure he did not speak Judas four times, are you 1 A. Yes, sir. Q. How many times did he speak it ? A. Please read it again. Q. I asked how many times he did speak Judas 1 A. Three times. Q. Well, I believe we have got " Judaas, Judas Iscariot, Judaas." That is only three times. Why did you say one too many 1 A. You have it four times there. Q. I beg your pardon. I have only said it three times. " Judaas, Judas Iscariot, Judaas." The Witness. Are not those words italicised 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 italicised. Q. Do you mean to say that the President did not, speak those words with emphasis ? A. I mean to say that he did not speak them in that way. Q. I read : There was a Judas once, one of the twelve apostles. Oh ! yes, and these twelve apostles had a Christ. [A voice, " And a IMoses, too." Great laug^hter.] 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. A. The word " yes" should not be stretched out with dashes between each letter, as there. Mr. Manager Butler. The "yes" isnot here stretched out. Is there any other question 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 therq are as I read ? If I have played the Judas, Avho has beeu my Christ that I have played the Judas with ? Was it Thad. Stevens? Was it Wendell riiillips? Was it Ciiarles Sumner? [Hisses and cheers.] An; these tlio men that set tip and compare themselves witji the Saviour of men, and everybody that ditters with them in opinion, and try to stay «fc arrest their diabolical and nefarious policy, is to be denounced as a Judas. A. "And that try." ' Q. " Differ with them in opinion, and ///ai try to stay and arrest their diabolical and nefarious policy, is to be denounced as a Judas. [' Hurrah for Andy,' and cheers."] Am I right so far, sir? A. I think 80. Q. Is that a fair specimen of the sixty corrections 1 A. There are four in the next three lines. Q. Is that a fair specimen of the sixty corrections ? Answer the question. Mr. EvARTS. Mr. Chief Justice, I suppose the corrections, the whole of which we have put in evidence, will show for themselves. IMPEA.CHMENT OF THE PRESIDENT. G51 Mr. ^[auager Butlrr. I am cross-exainininj>- the witupss. Mr. EvAiiTS. It has nothing to do witli the matter of evidence. Mr. Manager Butler. I am asking a question of the witness on cross-exam- ination, ;ind I prefer that he shouhl not be instructed. Mr. EvARTS. No instruction. We thought we should save time by putting in the memorandum ; but it seems that the cross-examination 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, compared with the whole paper, Avill appear by the comparison the coiu-t make between the two pieces of evidence. Mr. Manager Butlbr. I am 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, 1 will put it in Avriting if the Chief Justice desires. Mr. EvARTS. It is no question of credibility ; it is a mere question of ju-dg- ment 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 corrections which you have indi- cated in answer to my questions are of the same average character with the other corrections of the sixty i The Witness. There are two or three corrections in that which you have read. The Chief Justice. Is the question objected to ? Mr. EvARTS. We object to the question. It requires a re-examination of the whole subject. 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 corrections, 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 1 Mr. Manager Butler. I want you to stop me when there is anything wrong. The Witness. "la the days when there ware ;" we?-e is right. Mr. Manager Butler. It reads in mine " zvare," and in yours it reads " we?-e ?" A. Yes; and then in 'the next line there is a "ware" again. It should be " were." Q. What is the next? A. There is another " ware." Q, That is, it should be " were " instead of " tvare ?" A. Yes, sir, Q. Those are the three corrections you want to make there? Are those the only corrections there ? A. Then there is one before " lanbelievers." Q. What is it? A. " Were " for " ware." Q. Are those all ? The WiTNE.. Rightniire G. M. Hanson Austin Wiley Anson Dart Joel Palmer J. W. Ncsniith K. R. Geary W. H. Rector W. W. Miller n. P. Kendall C H. Hale W. H. Waterman W. P. Richardson Daniel Vanderslico. .. R. W. Turuus C. H. Mix St. A. D. lialcombe . . Office. Superintendent at Saint Louis, Missouri.* Central superintendency.* North superintendency.* North superinteudeucj'.* North superintendency.* North superintendency.* South superintendency. t South superintendency.* South superintendency.* South superintendency.* New Me.xico superintendency.* New Mexico superintendency. t New Mexico superintendeucy.t Arizona supi-rintemleney.* California superintendency. t Southern Distriet California superintendency. North District California superintendency.* North District California superintendency.* Oregon superintendency.! Oregon superinlendency.t Oregon superiiiti'udency.* Oregon superintendency.* Oregon superintendeucy.t Washington Territory superintendency.! Washington Territorj' superintendency. t Washington Territory superinlendency.t Washington Territory superintendency.* Creut Nenialia agency.* Great Nemaha ageucy.1 Omaha agency. t Wiiniebugo agency. t Winnebago agency.* recess. t Senate consented to appointment of his successor. IMPEACHMENT OF THE PRESIDENT. A. — Removals of su-perintendcnts, &fc. — Coutiuued. 655 April 29, ISfil '. March 16, lHfi2 August 13, 1856 Septprabcr 11, 1857.. March 23, 1861 September 20, 1864.. January 4, 1866 April 27, 1859 April 18, 186L Juue 3, ]858 May 7, 1864 , March 16, 1865 March 27, 1861 April 18, 1864 June 3, 1858 March 13, 1859 April 3, 1858 April 15, 1861 October—, 1850 April 14, 1862 Augusta, 1866 May29, 1849 Aprils, 1861 •March 6, 1862 September 25, 1866... April 18, 1853 July 31, 1861 August 22, 1866 March 16, 1865 July 6, 1858 July 26, I860 April 19, 1861 March 6,1 862 April 5, 1849 April 18, 1853 Aprils, 1861 April 16, 1861 . . June 9, 1865 March 11, 1852 . James L. Gillis 11. W. DePuy K. G. Murphy Charles E. Flanders. Joseph 'R. Brown . . . W. W. Ross William Daily R. C. Miller M. C. Dickey Royal Baldwin C. D. Keith Abram Bennett Thomas B. Sykes... Fielding Johnson A. Arnold Francis Tymony Max. McCauslin. Seth Clover F. Fitzpatrick J. A. Cady Vital Jarot R. C. S. Brown R. J. Cowart John Crawford Justin Harland William Wilson D. H. Cooper Isaac Colman P. P. Elder A. H. McKissack Samuel A. Blaiu Matthew Leeper J. J. Humphreys James Logan P. H. Raiford W. H. Garrett William Quesenbury. G. A. Cutler , ,o ,-,/., 'EX\?i% WampoTe June 13, 186L | a. P. Dennison Name. November 2. 1854 . July 16, 1861 Julv 10, 1851 August 13, 1856 July 16, 1661 January 21. 1863 July 17. 1861 September 1, 1852 May 1, 18.53 May 13, 1857 March 21, 1865 May 3, 1853 July 26, 1861 April 30, 1861....: . June 21, 1866 July 22, 1852 April 11, 18.53 April .30, 1861 March 24, 1865 August 4, 1862 March 21, 1865... ^P"l ^l- 1?53. I i: B. Lambdin T .K 1 6^^1 sm'^ M^- H- Redtield .... July 16, 1861 J. S. Grefforv tP"'f'1861 AndrewKph^ey June 7, 1864 p -w Catch im-n 7^'«'r.T^' ^^^^ <^''^'-'''' Hutching;. 00^^3^7863 •:::::::^"rR^;r^''- March 14, 1861.... ' "'•^^^ea June 7, 1864. May 11,1865 '. September 21, 1866 April 2.3, 18.53 March 25, 1861... March 23, 1861... April 20, 1865 November 9, 1866. April 18, 18.53 March 25, 1861... . S. H. Culver J. F. Miller H. H. Spalding E. A. Starling Daniel Newcomb . . . Benjamin R. Biddle. Wesley B. Gasnell.. A. R. Wooley Michael Steck Lorenzo Labadi Jose A. Mansinares. E. H. Wingtield.... Michael Steck . . J. T. Russell Toribio Romero R. H. Weightman . . S. M. Baird S. F. Kendrick John Ward W. F. M. Arny L. J. Keithly , Office. Pavenee agency.* Pawnee agency. t St. Peter's agency. t St. Peter's agency.* St. Peter's agency.t Pottawatomie agency.* Ottoe and Missouria agency.t Upper Arkansas agency.* Kansas agency.* Kickapoo agency.t Kickapoo agency, t Kickapoo agency.* Delaware agency.t Delaware agency.t Shawnee agency.t Sac and Fox agency.* Osage River agency.t Osage River agency.* Upper Platte agency.* Upper Platte agency.t Upper Platte agency.* Cherokee agency.* Cherokee agency.* Cherokee agency.t Cherokee agency.* Choctaw agency.* Choctaw and Chickasaw agency.t Choctaw and Chickasaw agency.* Neosho agency.* Wichita agency.* Wichita agency.t Wichita, agency.* Wichita agency.t Creek agency.* Creek agency.* Creek agency.* Creek agency.t Crepk agency.* Warm Springs (Oregon) agency t Warm Springs (Oregon) agency.* Grande Ronde (Oregon) agency.* Grande Ronde (Oregon) agency.t Siletz (Oregon"! agency.* Siletz (Oregon) agency.* Siletz (Oregon) agency.t Siletz (Oregon) agency.t Umatilla (Oregon) agency.t An Indian agent in New Mexico.t An Indian agent in New Mexico.* An Indian agent in New Mexico.* An Indian agent in New Mexico.* An Indian agent in New Mexico.* An Indian agent in New Mexico.t An Indian agent in New Mexico.t An Indian agent in New Mexicoit An Indian agent in New Mexico' f An Indian agent in New Mexico.t An Indian agent in New Mexico * An Indian agent in New Mexico * An Indian agent in New Mexico.* An Indian agent in New Mexico.* Crow Creek agency.* Yancton agency.t Ponca ageucy.t Uintah Valley (Utah) agency.* Uintah Valley (Utah) agency.t Flathead (Montana) agency.* Blackfeet (Montana) agency.t •R „ T„ 1 1 Blackfeet (Montana) agency.* A A R^^,ln« Yakama (Washington Territory) agency ■ Simton Wh ?e y Yakama (Washington Territor^ af eS V! -iiueon nmtely Indian agent m Colorado.* •' « .' nam Kryson ,s,nith river (California) agency * llvxtl"""^^ Mackinac (Michigan) ageScy.* ' l^Tt*'^: Mackinac (Michigan) agency.t William Bryson . . Willi A.M. J. W. Lynde A.C.Morrill ... Edwin Clark .. J. S. Watrous. . Cyrus K. Drew Chippi'was of the Mississippi t Chippewas of flie Mississippi.- Cluppewas of the Mississippi * Chippewas of Lake Superior.* Chippewas cf Lake Superior. f ' During the recess. tSenate consented to appointment of his successor. 656 IMPEACHMENT OF THE PRESIDENT. B. — Registers of land offices removed during the recess of the Senate. Name of officer. Location of office. State. Aprils, 1849 April?, 1849 April 12, lrt49 April 12, 1849 April 14, 1849 May 8, 1849 Mav 8, 1849 Mav8, 1849 May 8, 1849 May 8, 1849 May 8, 1849 May 8, 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 21, 1849 May 24, 1849 May 31, 1849 June 4,1849 June 4,1849 Jiine 4,1849 Jtine 11, 1849 June 14, 1849 June 14, 1849 June 25, 1849 June 25, 1849..:.. July J2, 1849 July 12, 1849 July 12, 1849 July 16, 1849 July 27, 1849 October 10, 1849.. October 10, 1849.. October 10, 1849.. November 1, 1849. October 13, 1850.. October 13. 1850.. June 13, 18G1 July 14, 1855 July 24; 1855 October 2, 1855 ... March 2(5, 1S5G April 3, 1857 March 19, 1857 March 20,1857 March 28, 1857.... September 22, 1858 AprillC, 1859 May 3, 1859 SepteinlKT 19, 1860 April 1, 186L April 9, 1861 April 9, 1H61 April 9,1861 April 9, 1861 Muv 9, 1861 May 15, 1S61 April 2,1861 April 2,1861 April 2, 1861 April 2. 1861 April 9, 1861 April 9, 1(^61 April 10,1861 April 15. 1861 April 15, 1861 April 18, 1861 April 18,1861 Aiiril 22, 1861 April 26, 1861 April 26, 1861 April 30, 1861 Muv 3, 1861 May 30, 1861 Juno 13, 18UI John Gardner Thomas Tiger J. H. McBri.le Abraham Edwards . John F. Reed John Bruton John Miller E.P.Dickson B. P. Jett Hiram Smith Henry L Biscoe S. 15. Furwell B. R. Cowherd J.B. Hunt J. W. Rush J. S. Mayes CD. Strickland, jr.. Bernhart Heun Charles Neally Warner Lewis J. W. Barrett Jolin Barlow Albert W. Parrig Elisha Taylor D. P. Richardson M. Mclntire J. C. Sloo Thomas J. Hodson.. George H. Walker. . Hugh P. Caperton . . John Taj-lor R. K. McLaughlin . . Lewis St. Martin Benjamin Sherman . Wiiiiara E. Russell . Harmon Alexander. Samuel Holmes Nathaniel Bolton Jacob Freaman Franklin Cannon William MeNair Alausou Saltmarsh. . D. B. Graham La Fayette Mosher. E. W. Martin W. P. Davis Henry L. Biscoe Fielding L. Dowsing Diedrick Upson George W. Sweet. .. James H. Birch J. O. Henning Abner C. Smith Samuel Clark Daniel Shaw John' McEnery W. T.Galloway Ira Munson E. P. Hart , Matthew Keller William McDaniels . J. R. Bennett Pi4er White Isaac W. Griffith . . . Lewis S. Hills J. M. Stockdale S. P. Yeonians E. O. F. Hastings... A. C. Bradford Isaac AV. Smith Charles S. Benton . . James C. Dow Jesse Morin James E. Jones David R. Currnn . . . Samuel B. Garrett.. John A. I'arker O. P. Richardson Henry L. Brown Warren 11. Graves. . Benjamiu Jeuuings . Winamac Fort Wayne Springfield Kalamazoo Jeffersonville . . Clarksville Batesville Fayetteville Washington . Champagnole... Helena Dixon Jackson Sault Ste. Marie Crawfordsville. . Vincennes Green.sljurg Fairtield Iowa City Dubuque Springfield Genesee Mineral Point . . Detroit Monroe Opelousas Shawneetown . . Tallahassee Milwaukee Lebanon Detianee Vandalia New Orleans Ionia Danville Palestine Quincy Indianapolis Kaskaskia Jackson Fayette Cahaba Montgomery Roseburg Elba Danville Helena Columbus Winona Sauk Rapids Plattsburg Hudson Fore.st City Buchanan Superior Monroe Eau Claire San Fraucisco . . Vi.salia Los Angeles Humboldt Chat field Marquette Des Moines Council BlntTs .. Fort Dodge Sioux City Marysville Stockton ( >lyinpia La Crosse lli-nderson Fon Scott Lecompton . IMcnasha Junction City . . Oiiuilm Santa F6 Bonneville Springfield Oregon City. ... Indiana. Indiana. Missouri. Michigan. Indiana. Arkansas. Arkansas. Arkansas. Arkansas. Arkansas. Arkansas. Arkansas. Arkansas. Michigan. Indiana. Indiana. Louisiana. Iowa. Iowa. Inwa. Illinois. Michigan. Wisconsin. Michigan. Louisiana. Louisiana. Illinois. Florida. Wisconsin. Alabama. Ohio. Illinois. Louisiana. Michigan. Illinois. Illinois. Illinois. Indiana. Illinois. Missouri. ilissouri. Alabama. Alabama. Oregon. Alabama. Illinois. Arkansas. Mississippi, Minnesota. Minnesota. Missouri. Wisconsin. Minnesota. Minnesota. Wisconsin. Louisiana. Wisconsin. California. California. California. California. Minnesota. Michigan. lowu. Iowa. Iowa. Iowa. California. California. Washington Territory. Wisconsin. Missouri. Kansas. Kansas. Kansas. Kansas. Nebraska. New Mexico. Missouri. Missouri. Oregon. IMPEACHMENT OF THE PRESIDENT. B. — Registers of land offices removed, Sfc. — Continued. 657 Date. Name of offioer. Location of office. State. June 22, 1861 August?, 1861 (»hio. September 9, 1861... March 18 1866 William E. Keeper - . G. W. Bnartlmau Simon Jones Koyal Bueli H. C. Dripgs S. T. Davis G.W.Martin Illinois. September 26, 1866.. September 24, 1866.. Nebraska City September 24, 1866. . Octobers, 1866. October 27, 1866 Michigan. Invva. Sioux City November 5, 1866 . . . C. R. Dorsey The above dates are those upon which the successors of the above-named persons were appointed. C. — Receivers of j^tihlic moneys removed during the recess of the Senate. Name of oflBcer. Location of oifice. March 28. 1849 March 30, 1849 April 7, 1849 April 7,1849 , April 12, 1849 April 12. 1H49 May7,1849 May 8, 1819 May 8,1849 May 8, 1849 May 8,1849 May 8, 1849 Mav8, 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 June 25, 1849 July 12, 1849 July 27, 1849 August 9, 1849 August 25, 1849.... August 25, 1849 ... October 10, 1849 ... October 10, 1849 . - . Decembfr 1, 1849 .. September 4, 1855. . October 8, 1855 October 10, 1855 . . . September 1.1, 1856. August 19, 1858 September 19, 1860 September 21, 1860 April 1, 1861 March 30, 1861 June 13, 1861 March 30, 1861 April 2, 1861 April 2, 1861 April 2, 1861 April 2, 1861 42 I P John G. Winston Elisha Morrow J. D. G. Nelson James P. Drake Mitchell Hinsdill Thomas Dyer Lemuel R. Lincoln W. Adams D. J. Chapman JIatthew Deeper D. T. Witter M. F. Rainey George Jeffries John Domeut .• W. W. Leland M. A. Patterson David C. Glenn , Paschal Beanette Bennett W.Eugle Samuel Wise Theodore Gillespie Verplanck Van Antwerp. . Eiios Lowe George McHenry A. G. Herndon John Parsons J. A. Hplfen.stien Braxton Parrish J. H. Westbrook Frederick Hall W. L. Hendei'son Samuel Leech Daniel Gregory John B. Filhiol Hiram Rodgers Nicholas B. Smith J. M. B. Tucker Daniel Ashby , L. R. Noell , John G. Cameron H. W. Palfrey James Larkius A. S. Bryant , J. C. Clarbonie Thomas C. Shoemaker E. B. Dean , Christopher H. Dodds John D. Evans John E. Perkins J. H. McKenny William J. Slartin Thomas McXuUy Isaac Cooper , A. H. Palmer , Thomas Sargent , Robert Means Lebanon Green Bay Fort Wayne Indianapolis Kalamazoo Chicago Little Rock Clarksville Batesville Fayetteville Washington Champagnole Helena Dixon Pontotoc Sault Ste. Marie . Jackson Mineral Point Crawfordsville . . . Viucennes Greensburg Fairfield Iowa City Dubuque Springfield Newmansville . . . Milwaukee Shawneetown . .. Columbus Ionia Defiance Stillwater Vandalia Monroe Quincy 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 Alabama. Wisconsin. Indiana. Indiana. Michigan. Illinois. Arkansas. Arkansas. Arkansas. Arkansas. Arkansas. Arkansas. Arkansas. Illinois. Mississippi. Michigan. Jlississippi. 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 Kanss Wisconsin. • Louisiana. Minnesota. Wisconsin. Minnesota. Oregon. Ohio. Iowa. Iowa. Iowa. Iowa. 658 V IMPEACHMENT OF THE PRESIDENT. C. — Receivers oj" public vioneys removed, c^c. — Continued. Date. Name of officer. Location of oflSce. State. April 9, 1861 April 9, 1861 April 9, 1861 April 9, 1861 April 9, 1861 April 9. 1861 AprillO, 1861 April 15, 1861 Koveraber 10, 1860 . 1 Marysville j California. Les Angeles California. (Jalit'oniia. AVashington Territory l\li«iniiri J. M. S. Van Cleare Olympia Marquette Michigan. April 22, 1861 April 26, 1861 April 26, 1861 May 24, 1861 May 18, 1861 May 20, 1861 May 30. 1861 Juae 11 1861 Junction City | Kansas. W. A. Street Santa Fe New Mexico. Baytield Wisconsin. Springfield Missouri. June 13, 1861 Oregon City Oregon. May 27,1861 June 22, 1861 September 9 1861 C. B. Sraitb Chariesi C. Campbell Indianapolis | Indiana. Octobers, 1861 July 30, 1863 :. March 16, 1864 John J. McClelland Menasha Wisconsin. ■ , Nebraska. New Mexico. John Greiner W. B. Mitchell Santa Fe September 18, 1866.. September 18, 1866.. September 24, 1866.. March 30, 1865 September 9. 1865 .. St. Cloud J. S. McFarland . ... W. H. H. Waters Nebraska City ; Nebraska. St. Cloud I Minnesota. Charles A. Gillmau J. L. Collins 1 The above dates are those upon which the .successors of the above-named persons were appointed. D. — Receivers of puhlic moneys removed dnrivg sessions of tlic Senate, that body advising and consenting to the appointments of their successors. Name of officer. Location of office. State. July 31, 1852 December 22, 1857 May 17, 18.58 June 3, 1858 December 22, 1858 March 8, 1859 January 16, 18.59.. February 14, 1860 February 14, 1860 May 28, "1860 January 16.1860.. March 18, 1861.... March 2.5, 1861 JIarch2.5, 1861 March 23, 1861 March 23, 1861.... March 23, 1861.... March 2.5, 1861.... March 27,1861.... March 27, 1861.... July 19, 1861 July 22, 1861 July 16, 1861 March 6, 1862 March 12,1863.... January 26, 1864. . June 7, 1864 May 4, 1866 July 14, 1866 Henry Acker Harvey Whittington James P. Downer Edward Conner E. B. Dean, jr Robert J. Giaveriat JohnC. Turk Thomas C. Hunt Jlilton H. Abbott Samuel L. Hayes Dave Shaiv Peter F. Wilson Oscar A. Sterens W. L. P. Little Benjamin F. Tillotson Albert G.Kllis W.H.Mower Henry J. Wilson James D. Reynolds Sinniicl E. Adams Theodore Rodolf John J. TurnbraUKh Nathaniel B. Holdou Richard C. Vaughn James Conipton George E. Briggs B. F.Reynolds John Griemer Alfred H. Carrigan Sault Ste. Marie . Plattsburg Ogden Springfield Superior Marquette Dakota City Natchitoches Cambridge St. Cloud Superior Omaha Traverse City . .. East Saginaw . . . St. Peter Stevens's Point. . Sunrise City Ionia Falls St. Croix... St. Cloud La Crosse Ironton Warsaw Nebraska City... Marysville Roseburg Falls of St. Croix Santa F6 Wiwhington Michigan. Missouri. Kansas. Illinois. Wisconsin. Michigan. Nebraska. Louisiana. Alinnesota. Minnesota. Wisconsin. Nebra.-f the terms of the bills which it may pass. Of these expressions of the legishiti\e will the Constitution says : Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to tho President of the United States ; and if he approve IMPEACHMENT OF THE PRESIDENT. 683 ho shall sign it, but if not ho shall return it with his objections to that house in which it shall have originated, who shall enter the objoctinn at largo on their journal, and proceed to recou.sider it. If, after such recousideratioii, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by wliich it shall likewise be recousidered, and, if approved by two-thirds of that house, it shall become a \&\v. (Article 1, section?.) Thus laws are made. But laws cannot execute themselves. However wise, just, necessary 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 exacttiess the philoso- phy of government, 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 shoidd comply with the condition "before he enter on the execu- tion of his office." Chief among the executive duties imposed by the Consti- tution and secured by the oath is the one contained in the injunction that the President "shall take care that the laws be faithfully executed." (Article 2, section 3.) What laws? Those which may have been passed by the legisla- tive department in manner and form as declared by that section of the Consti- tution heretofore recited. The President is clothed with no discretion in this regard. Whatever is declared by the legislative power to be the law the Pres- ident 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 decision and execute the law which that constitutional voice has spoken into existence. If this be not true, then the executive power is superior to the legislative power. _ If the executive will may declare what is and what is not law, why was a legislative department established at all? Why impose on the President 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 the executive department is to accomplish this purpose ; and without it, be the form of government whatever it may, it will be utterly worthless for offence or defence; for the redress of grievances or the protection of rights ; for the happiness or good order or safety of the people. (Story on the Constitution, vol. 2, p. 419.) De Tocqueville, in his work on Democracy in America, in opening the chap- ter 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 the people, and nevertheless sufficiently strong to act without restraint in its own sphere. It was indispensable to the maintenance of the repub- lican form of government that the representative of the executive power should be subject to the will of the 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 created an executive power strong enough to execute 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 execu- tive agent with such proper restraints and limitations as would confine 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 ; provided for the selection of the person to be intrusted with its exer- cise ; determined the restraints and limitations which should rest upon, guide, and control it and him, and, out of abundant caution, decreed that — The President * * * * of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misde- meanors. (Article 3, section 4.) 684 IMPEACHMENT OF THE PRESIDENT. It is preposterous for the respondent to attempt to defend himself against the corrective power of this grand remedy by interposing the opinions or advice of the principal officers of the executive departments, either as to the hody of his offence or the intent with which he committed it. Ilis highest duty is to "take care that the laws he faithfully executed;" and if he fail in this particu- lar he must fail in all, and anarchy will usurp the throne of order. The laws are hut expressions of the national will, which c*n be made known only through the enactments of the legislative department of the government. A criminal failure to execute that will (and every willful failure, no matter what its inducement may be, is ciimiual) may justly call into action the remedial power of impeachment. This power is, by the express terms of the Constitu- tion, confided to one branch of the legislative department, in these words : The House of Representatives » » * * gjiaH have the sole power of inipeachriieut. CArticle 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 balanced 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 Senate 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 frequt^ntly change the political complexion of the House of Ilepresentalives, and this is the more immediate check provided to balance the possible hasty action of the representatives. Wise, considirate, and safe to the perfect work of demonstra- tion is this admirable adjustment of the powers with which we are now dealing. The executive power was created 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 Executive to the contrary not- withstanding. 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 [leople's will — refuses or neglects to enforce the legislative decrees of the nation, or wil- fully violates the same, what constituent elements of governmental power could be more properly charged with the right to present and ihe 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 gov- ernment could so well understand and adjudge of a perverse and criminal refusal to obey, or a wilful declination to execute, the national will, as those joining in its expression 1 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 judg- ment of the two several branchi^s of the legislative department, regardless of the opinions of cabinet officers, or of the decisions of the judicial department. The respondent has jilaccd himself within this power of impeachment by trampling on the constitutional 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, different from the constitution of Great Britain. The latter is, to a great extent, unwritten, and is, in all regards, subject to such changes as Par- liament may enact. An act of Parliament may change the constitution of England, In this country the rule is different. The Congress may enact no IMPEACHMENT OF THE PEESIDEI^T. 685 law in conflict with the Constitution. The enactments of Parliament become a part of the Briti'^h constitution. The will of Parliament is supreme. The will of Congress is subordinate to the written Constitution of the United State?, 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 England tolerate no encroachments on their powers from any other estate of the realm. The Parliament 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 permeating the two constitutions may be jllustrated by certain parliamentary and ministerial action connected with the American revolution, and which wi 1 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 tlie opinion of this house, that the further prosecution of offensive war on the continent of North America, for the purpose of reducing: the revolted colonies to obedience by force, will be the means of weakening the efforts of this country api'aiust lier European enemies, dangerously to increase the nmtual enmity, so fatal to the interests both of Great Britain and America ; and by preventing a happy reconciliation with that country, to frustrate the earnest desire graciou.sly expressed by his Majesty to restore the blessing of public tran- quillity. (Hansard, vol. 22, p. 1071.) The Commons passed the resolution. The ministry did not seem to catch its true spirit, and, therefoi-e, on March the 4th next following, General Conway moved another resolution in these more express and emphatic terms, to wit : That after the solemn declaration of the opinion of this house in their humble address presented to his Majesty on Friday last, and his Majesty's assurance of his gracious inten- tion, in pursuance of their advice, to take such measures as shall a])pear to his Majesty to be most couduciVe to the restoration of harmony between Great Britain and the revolted colonies, so esSential to the prosperity of both, this house will consider as enemies to his Majesty and this country all those who shall endeavor to frustrate his Majesty's paternal care for the ease and happiness of his people, by advising or by any means attempting the further pro-ecutiou of offensive war on the continent of North America, for the purpose of reducing the revolted colonies to obedience by force. (Ibid., p. lOSi). ) * This resolution led to an animated debate. The temper of the Commons was equal to the directness of the resolution. The ministry saw this and understood exactly its meaning. They were disposed to avoid the implied censure, and attempted to show, by expressions of a determination to observe and respect the opinion of the house as declared in the first resolution, tliat 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 house had resolved that peace should be made with America, and the answer given from the 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 tliat answer? He was not of the disposition of tlio.'je who complained of majorities in that house who condemned them, and by factious and seditious misrepresentations held them out to the public in the most odious colors; a majority of that house was, in parliamentary language, the house itself; it could never make him change a single opinion, yet he bowed to that opinion wliich was sanctioned by the majority; though he might not be a convert to such opinion, still he held 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 right of that house to command; it was the duty of a minister 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, daring, infamous enough to advise his sovereign to differ in opinion from his Parliament, so he could not think the present motion, which must suppose the existence of such a minister, could be at all necessary. (Ibid., p. 109U.) And again he said : To the policy of that resolution he could not subscribe ; but as Parliament had thought 6S6 IMPEACHMENT OF THE PRESIDENT. proper to pass it, and as ministers wpre bound to obey the orders of Parliament, so he should make that re.solutiou the standard of his future conduct. (Ibid., p. ]1U7.) These protpatation.s of Lord Nortli did not arrest the action of the Commons. The resolution 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 declaring ■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 ditfer in opinion from his Parliament. This grand action of the Commons and its results disclosed the sublinlest feature of the British constitution. It was made to appear how thoroughly, under that constitution, the executive power was dependent on the legislative will of the nation. The doctrine that " the King can do no wrong," while it protected 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 I'oar 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 u?e 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 facts in English history ; and they fashioned our government 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 President ; 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 cannot pursue any other course of action without endangering the public weal. The (Consti- tution 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 ordinary processes as would attach to and apply in case he were a mere civilian or the humblest citi- zen; while in the latter it subjects him to the power of the House of Representa-' tives 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 pardi)n3 for offences against the United States," it is also expressly declared that this power shall not extend to " cases of impeachment." (Article 2, section 2 ) Tne same person, if he be a civil officer, may be uidicted for a violation of law and impeached for the same act. If convicted in both cases he may be pardontnl in the former, but in thi^ latter he is beyond the reach of forgiveni'ss. Tlie relief provided for the disobedient citizen is denied to the offending officer. I have already observed that the Constitution 4)f the United States distributes the powers of the government among three departments. First in the order of constitutional arrangement is the legislative dej)artment ; 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 legislative power, in other words the IMPEACHMENT OF THE P ESIDENT. 687 law-making power, is " vested in a Congress of the United States." The acts of Congress constitute the municipal law of the reiDublic. Municipal law is a rule of action proscribed by the supreme power of a State, command- ing 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 requirements. Next in the order of its distribution of powers the Constitution names the executive department. This is proper and logical ; for the will — the law — of tlie 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 eflFect. Tbe 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, didy enjoined 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 Con- gress. 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 beyond." (Rawle on the Constitution, p. 134.) Undoubtedly he possesses the right to recommend the enactment and to advise the repeal of laws. He may also, as I have before remarked, obstruct the passage of laws by interposing his veto. Beyond these means of changing, directing or obstructing the national will he may not go. When the Irtw-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 time being, with the execu- tive power of the republic may reject as utterly erroneous the conc!u.--ions arrived at by those invested with the legislative power ; but the officer must submit and execute the law. He has no discretion 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 doctrine in these words : To the Chief Executive Magistrate of the Union is confided the solemn duty of seeing the laws faithfully executed. That he may be able to meet this duty with a power equal to its performance he nominates 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 President the power of absolute removal, concedes to him the powej to suspend officers and to supply their places temporarily. For the same reason the land and naval forces are under his orders as their ("ommander-in- chief ; but his power is to be used only "in the manner prescribed by the legislative depart- ment. He cannot 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 President a broad discretion in the use of the means by which they are to be e.xecuted, 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 say- ing how, that implies the power to use such mean.s as may be necessary and proper to accom- plish the end of tlie legislature. But where the mode of performing a duty is pointed out by statute, that is the exclusive mode, and no other can be followed. The United States have no common law to fall back upon when the written law is defective. If, therefore, au act of 688 IMPEACHMENT OF THE PRESIDENT. Congress declares that a certain thiiior shall be done by a particular oflBcer, it cannot be done by a different officer. The af^eucy which the law furnishes for its own execution must be used to the exclusion of all others. (Opinion of Attorney General Black, November '20, 1860.) This is a very clear statement of the doctrine wliich I have been endeav- oring to enforce, and on which the particular branch of this case now com- manding our attention rests. If we drift away from it we unsettle the very foundations of the government, and endanger its .stability to a d(;gree which may well alarm the most hopeful minds, and appal the most courageous. A departure from this view of the character of the executive power, and from the nature of the duty and obligation resting upon the officer charged there- with, would surround this nation with perils of most fearful proportions. Such a departure would not only justify fhe respondent in his refusal to obey and execute the law, but also ap{)rove his usurpation of the judicial |)ower when he resolved that he would not observe the legislative will, because, in his judgment, it did not conform to the provisions of the Constitution of the United States touching the subjects embraced in the articles of impeachment 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 1 Will it not naturally and inevitably lead to a consolidation of the several powers of the government, in the executive department? And would this be the end? Would it not rather be but the beginning 1 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 touching his own sphere of action, determine how far the direc- tions 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 judg- ment? Jt was remarked by the Supreme Court of the United States in the case of Martin vs. Mott, (12 Wheaton, 19,) that — If a superior officer has a right to contest.the orders of the President, upon his own doubts as to the exigency (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 sul)ject him to responsibility in a civil suit, in which his defence must finally rest upon his ability to establish the facts by competent proofs. Such a course would bo sub- versive of all discipline, and expose the best disposed officers to the chances of ruinous liti- gation. * # . # * The power itself is confined to the executive of the Union, to him who is, by the Constitution, the commander of the militia, when called into the actual service of the United States ; whot^e dut}' it is " to take care that the laws be faithfully exe- cuted," and whose responsibility for an honest discharge of his official obligations is secured by the highest sanction. He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to call forth the militia; his orders for this pur- pose are in strict conformity with the provisions of the law, and it would seein to follow, as a necessary consequence, that every act done by a subordinate officer, in obedience to such orders, is ecjually justifiable. The law contemplates that, under such circumstances, orders will be given to carry the 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 thoy become its perfect supports. If the President has a right to contest and refuse to obey the laws gnacted by Congress, "liis 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 Congress, they may (j nation the orders of the President. It is his duty to enforce the laws of the nation, and it is their duty to obey his orders. If he may be allowed to defy the legislative ■will, they may be allowed to disregard the executive order. This beg(its confu- sion ; and the affairs of the public are made the sport of the contending ffictions 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 con- stitutional duty of the President to see to their faithful execution. This duty rests upon all of his subordinates. Its observance by all, the President included, makes the executive department, though it be acting through tAi thousand IMPEACHMENT OF THE PRESIDENT. 689 agent?, a unit. Unity produces harmony, harmony effects directness of action, .and this secures a due execution of the laws. But if the President may disre- gard the hiw because he has been advised by his cabinet and believes that the Congress viohited the Constitution in its enactment, 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 con- sideration, 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 centre 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 the royal fiction which asserts that "the king can do no wrong" cannot 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 atone- ' ment of his ministers ; but the President is held personally amenable to the impeaching power of the House of Representatives. Concede to the President immunity through the advice of his cabinet officers, and you reverse by your decision the theory of our Constitution. Let those who will, assume this respon- sibility. I leave it to the decision of the Senate. Mr. Curtis. Mr. Chief Justice and Senators. 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 before 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 pertinent to any matter in issue in this case, and when it is ascertained that the evidence is pertinent I suppose it is to be received. Its credibility, 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 considered 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 matter 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 honor- able manager, I shall have a word or two to say presently. But the honorable manager has not told you that the House of Representatives, when the honor able 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 allega- tions, Mr. Chief Justice, as you will find by reference to the first article and to the second 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 defend the Constitu- tion when he did this act" — instead of averring that, they a\er that he acted with an intention to violate the Constitution of the United States. 44 I p 690 IMPEACHMENT OF THE PRESIDENT. Now, when we inti'odtice evidence here, or offer to introduce evidence bere, bearing on this question of intent — evidence that, before forming any opinion - upon this subject, be resorted to proper advice to enable him to form a correct one, and that when be did form and fix opinions on this siabject it was under the influence of this proper advice, and that consequently when be did this act, whether it was lawful or unlawful, it was not done with the intention to violate the Constitution — when we oft'er evidence of that character, the honorable man- ager gets up bere and argues an hour by the clock that it is wholly immaterial what his intention was, what bis opinion was, what advice be bad received, and in conformity with which be 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 consideratiim 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 be formed it, or else it must be admitted by senators that it is material, and the evidence must be considered. Now, bow 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 evidenge will do uo barm. On the other band, if the Senate should finally come to the conclu- sion 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 wilful violation of the Constitution, then they will have excluded the evidence upon which they could have determined that question, if it should thus prove to 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 evidence is immaterial or not, this is not the time to exclude 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 evi- dence can be laid aside. If the other conclusion should be arrived 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 counsel. One thing i:? certain : that every President from the origin of the government has resorted to oral consultations with the members of bis cabinet and oral dis- cussions in bis presence of questions of public importance arising in the course of bis 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 councillor 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 legislator 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 arriving 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 conceptioiis, more accurate views, are not the best mode of arriving at a sab; result. And under the influence of these practical considerations undoubtedly it is that this habit, beginning with General Washington — not becoming universal by any mfiins until Mr. Jeffer- son's time, but from that day to this continuing a constant practice — has been formed. President Johnson found it in existence when he went into office, and he continued it. IMPEACHMENT OF THE PRESIDENT. 691 I therefore say that when the questioH of his intention comes to be considered by the Senate, 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 government in the manner the public interests required — when that question arises for the consid- eration 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 there- fore 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 not the counsel for the accused consider that the validity of the tenure-of-office 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 government of their agents. It depends upon whether those agents have transcended the authority which the people gave them ; and that comparison 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 deter- mined on this trial by the Senate." That is a question I cannot answer. That is a question that can be deter- mined only by the Senate themselves. If the Senate 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 conflict between the law and the Con- stitution. 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 accord- ingly 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 offence by an infraction of the law, he 'has not committed the impeachable offence with which he is charged by the House of Representatives. And, therefore, we must advance beyond these two questions before we reach the third branch of the question which the hon- orable senator from Michigan propounds, whether the question of the constitu- tionality of this law must be determined on this trial by the Senate. In the view of the President's counsel there is no necessity for the Senate to determine that question. The residue of the inquiry is: ■Do the counsel claim that the opinion of the cabinet officers touching that question — That is, the constitutionality of the law — is competent evidence by which the judgment of the Senate might be influenced? Certainly not. We do not put them on the stand as experts on questions of con- stitutional law. The judges will determine that out of their own breasts. We put them ou the stand as advisers of the Pi-esident to state what advice, 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 692 IMPEACHMENT OF THE PRESIDENT. he doubtless, in his extensive practice, has often put lawyers on the stand. A man is proceeded against by another for an improper arrest, for a malicious pros- ecution. It is necessary to prove malice and want of probable cause. When the want of probable cause is proved, the malice is inferable from it ; but then it is perfectly well settled 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 honorable 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 manap:er3 deny the statement made by the President in his message of December 12, 1867, to the Senate, as given in evidence 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-office act , and is the evidence offered to corrobo rate that statement, or for what other object is it oifered ? We now understand, from what the honorable manager has said this morning, that the House of Representatives has taken no issue on that part of our answer ; that the honorable managers do not understand that they have traversed or denied that part of our answer. We did understand before this question was proposed to us that the lionorable managers had themselves put in evidence the message of the President of the 12th of December, 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 enacted. They have put that in evidence themselves. Nevertheless, senators, this is an affair, as you perceive, of the utmost gravity in any possible 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 sup- pose all that the managers would be prepared to admit might be — certainly they have made no broader admission — that the President said these things in a mes- sage to the Senate ; but from the experience we have had thus far in this trial we thought it not impossible that the managers, or some one of them speaking in behalf of himself and the others, might say that the President had told a falsehood, and we wish therefore to place ourselves right before the Senate on this subject. We desire to examine these gentlemen to show what passed on this subject, and we wish to do it for the purposes I have stated. Mr. Williams. Before the learned gentleman concludes I desire to submit a question to him. The Chief Justice. The Secretary will read tlic question proposed by the senator from Oregon. The chief clerk road as follows : Is tlie advice given to the President by his cabinet, with a view of preparing a veto mes- sage, pertinent to prove the right of the President to disregard the law alter 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 ia to show that he honestly believed that this was an uncon- IMPEACHMENT OF THE PRESIDENT. 693 stitutional law. Whether he should treat it as such in a particular instance is a matter depending upon his own personal responsibility without advice. That ia 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 President that he may disregard a law simply because he believes it to be unconstitutional. Pie 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 satisfying 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 Chikf Justicb. Senators, the question now before the Senate, as the Chief Justice conceives, respects not the weight, but the admissibility of the evi- dence 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. Stan- ton from the office of Secretary of War, that this order was made unlawfully, and that it was made with intent to violate the tenure-of-office act, and in viola- tion of the Constitution of the United States. The same charge in substance 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 testimony is admissible for the purpose of show- ilig the intent with which the President has acted in this transaction. He will submit the question to the Senate if any senator desires it. Mr. Howard. I call for the yeas and nays. The CHtKF Ju.«TiCE. The senator from Michigan desires that the question be submitted 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, answer 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 ofi'er. The question being taken by yeas and nays, resulted — yeas 20, nays 29; as follows : Yeas — Me.ssrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Heudev-sou, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Sauls- bury, Trumbull, Van Winkle, Viekers, and Willey — 20. Nays — Messrs. Cameron, Cattell, Chandler, Cole, Conkling^, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Freliughuysen. Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Sprague, Stewart, 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 o the bill to the President until his message sending in his objections was comj pleted, was the question whether Mr. Stanton was within the operation of the civil-tenure act the subject of consideration and determination ? Mr. Man"ager Butler. Stop a moment. We object. The Chief Justice. The counsel will please propose their question in writing. Mr. Ev^KTS. I will make an offer, witl| the permission of the Chief Justice. 694 IMPEACHMENT OF THE PRESIDENT. The oflfer was reduced to writing, and read by the chief clerk, as follows : We offer to prove that at the meetingrs of the cabinet at which Mr. Stanton vvas present, held while the temiri_>-of-office bill was before the President for approval, the advice of the cabinet in rej^ard to the same was asked by the President and {riven by the cabinet ; and therenpon the qjiestion whether Mr. Stanton and the other Secretaries who had received their appointment from Mr. Lincoln Avere witliin the restriction.s upon the President's power of removal from otiice cnmted by said act was considered, and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions. Mr. Manager Butler. We object, Mr. Pre.sident and senators, that this is only asking the advice of the cabinet as to the construction of a law. The last question was as to the constitutionality of a law, and advice as to law we sup- pose to be wholly included within the last ruling of the Senate. We do not propose to argue it. Mr. EvARTS. We do not so regird 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 itff'er 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 considerations 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 senators of this body, as to the importance or pertinence of evidence as bearing upon the ques- tion of the constitutionality of a law, as tending to justify or explain or aft'ect 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 may be applied to the President's conduct ; in the first place, as respects the law itself, tliat 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 applica- tion which should fasten upon the President Secretaries whom he never had selected or appointed, which formed the subject of so much opinion in the Sen- ate, and also in the House of Representatives, was made a subject of inquiry and opinion by the President himself, and that his action concerning which he is now broughtin question here in the removal of Mr. Stanton, was based upon his opinion after proper and diligent eiforts 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 not do it with intent of violating the law, but that he did it with the intent of exercising a well-known, perfectly 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 within obedience t<) 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 opinions, on the attitude in which the President stood in regard to his right to expect from Mr. Stanton an acquiescence in th'e exercise of the power of removal, which stood upon the Constitution in Mr. Stanton's opinion, and which was not affected by the law in Mr. Stanton's opinion ; and thus to raise precisely and detinitely in this asptict the qualifications of the President's course and conduct in this behalf as intending an aj)plieaiion of force, or contemplating the possibility of the need of an application of lorce. IMPEACHMENT OF THE PRESIDENT. 695 Mr. Manager B(iti,ek. Without intending to debate this proposition, I desire to call the attention of the Senate to the fact that the que.'-tiou seeks to inquire whether the cabinet, including Mr. Stanton, did not advise the President that the bill as presented for his consideration 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 3Sth 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 contrary, the advice does not seem to have had opera- tion on Ills mind. Mr. Manager Boutwell. Read the words. Mr. Manager Butler. I will. To the Senate of the United States : I have carefully examined tlie 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 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 be, entitled to hold such office until a successor shall have been appointed b^' 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, ;uid of the Interior, the Postmaster General, and the Attor- ney General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one mouth thereafter, subject to removal by and with the advice and consent of the Senate. These provisions are qualified by a reservation 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 liniiied by law." In eft'ect 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, Congress is well aware, is by no means a new one." And then he goes on to argue upon the debate 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 41st page, after having exhausted the argu- ment 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 is supported by the 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 the executive authority, and the par- ticipation 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 oflicer for the execution of the 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 should 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 President's power to defi- ance, as the President says in his message, because he believed that th« law d'd not allow him to be touched. Now, does this evidence tend to show that the President 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 removed 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 696 IMPEACHMENT OF THE PRESIDENT. himself within the law and protected by it, but that his nerve would not be suffi- cient to meet General Thomas, lliat was the President's proposition to General 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 tliese offers are wholly illusory and deceptive. They do not show the thing contended for; they canuot show it ; they have no tendency to show it, and whether tJiey have or have not, the Senate, by solemn decision, have said that the advice of cabinet otiicers 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. EvAKTS Mr. Chief Justice and Senators, the reference to the a'gument 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 prin- cipal officers of the departments. The minor consideration 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 discussion by the President of the United States in sending in his objections to the bill on constitutional 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 unfortunate inbis reference to the con- duct 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 authorized 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 expec- tation and calculation of the President that the attempt would be recognized as suitable by Mr. Stanton because he, Mr. Stanton, did not believe 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 Constitution, 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 testi- mony is proper to be taken into consideration by the Senate, sitting as a court of impeachment; biit he is unable to determine what extent the Senate is dis- posed to give to its previous ruling, or how far they consider that ruling appli- cable to the present (juestion. He will therefore direct the Secretary to read the offer to prove, and will then submit the question directly lo 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 tliat at tlie mcetiiipfs of the ciibinct at which Mr. Stanton was present, held wliile the tenure-of-civil-office bill was betuie the President for npiuoval, the adviee ot" the ciibiuet in rejjard to the same was asked by the President and given by tlie cabinet, and tlierenjjon the question whether Mr. Stanton and the other Secretaries who had received their a[)pointnient from Mr. Lincoln were within the restrictions upon the Presid>'nt's jiower of removal from office created by said act was considered, and the opinion expressed that the Secretaries appointed by Mr. Liucolu were not within such restrictions. IMPEACHMENT OF THE PRESIDENT. 697 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 : Yeas — Messrs. Anthony, Bajanl, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Heudorson, Hendricks. Johnson, McCreery, Patterson of Tennessee, Ross, Sauls- bury, Sherman, Sprague, Trunihull, Van Winkle, Vickers, and Willey — 22. Nays — Messrs. Cameron, Cattell, Chandler, Cole. Conuoss, Corbett, Cragin, Drake, Edmunds, Ferry, Frelincrhuyseu, Harlan, Howard, Howe, Mor<,^an, Morrill of Slaine, Mor- rill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Stewart, Thayer, Tij^ton, Williams, Wilson, and Yates — 2(). Not voting— Slessrs. Conkling, Morton, Norton, Nye, Sunnier, and Wade — 6. So the evidence proposed to be offered was decided to be inadmissible. Mr. EVAKTS, (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 subject of the public service as affected by the operation of that act come up for the consideration of the cabiuet ? Mr. Manager Biitlkr. 1 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 : Q. Was it considered repeatedly? A It was on two occasions, if not more. Q. During those considerations and discussions was the question of the importance of having some determination judicial in its character of the con- stitutionality 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 considered, it is not very important. Mr. Evarts. That is all. Mr. Manager Butler. Then it is not to get in that there was any particular consideration on a given point. In other words, to make myself plain, by asking a series of well-contrived 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. EvAR'i'S. Yes ; but the honorable manager will be so good as to remem- ber that the rulings of the Senate have expressly determined that all that pro- perly bears upon the question of the intent of the President in making 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 examined 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. 698 IMPEACHMENT OF THE PRESIDETT. The offer of the counsel for the re;?ponikiit was reduced to writing and handed to the managers. Mr. ^Manager Butlek. By " the removal " do I i;nderPtaud down to the 21st of February, 1S6S ? Mr. EvAR'is. Yes, sir. Mr. Manager Bltlkk. ^May I insert these words : " 2l8t of February, 1868?' Mr. EvART.-!. You may alter the word "removal" to "order of the 2 1st of February, 1868, fur the removal." The Chief. .Justice. The Secretary will read the off^-r made by the counsel for the President. The offer wad handed to the desk and read, as follows : We offer to prove that at the cabinet meetings between the passage of the tennre-of-civil- office bill and the order of the 21st of February, I6ij"i, for the removal of Mr. Stanton, upnii occasions when the condition of the public service as affected by the operation of that bill came up for the consideration and advice 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 case a judicial determination on the constitutionality of the law should be obtained. Mr. Manager Butler. Mr. President and Senators, we, of the managers, object, and we should like to have this question determined in the minds of t'le senators upon this principle. We understand here that the determination of the Senate is, that cabinet discussions, of whatever nature, shall not be put in as a shield to 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 get in by detail and at retail — if I may use that expression — evidence which in its wholesale character cauuot 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 consulted upon the desirability of get- ting up a case to test the constitutionality of the law. It is eitlier material or immaterial. It might possibly 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 material. 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 th'a condition of things, that they propose to justify the President's act by the advice of his subordinates, and substitute 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 inadvertence. The President then presented it to you for your revision, and you passed it again notwithstanding his constitutional argutuent 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 solemn deliberation and argument, again decided that Mr. Stanton was within its provisions so as to be protected by it, and that the law was eon- Btitutional. Then he removed Mr. Stanton on the 21st of February, and pre- sented the same question to you again; and again, after solemn argument, you decided that Mr. Stanton was within its provisions and that the law was consti- tutional. Now they offer to show the discussions of the cabinet upon its con- stitutionality to overrule the quadruple opinion solemnly expressed by the Senate upon these very questions — four times upon the constitutionality of the law, and twice upon its constitutionality and upon the fact that Mr. Stanton was within it. Is that testimony to be put in here? The proposition whether it was desirable to have this constitutional question raised is the one presented. If it was any other constitutional question in any other case, then it is wholly IMPEACHMENT OF THE PRESIDENT. 699 immaterial. If it is this case, then you are trying that question, and they pro- pose 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 managers as being taxed, seems to be, in their judgment, a sort of unilateral p^itience, and not open to impiessious upon opposite sides. Now, senators, the proposition can be very briefly submitted to you. By decisive determinations upon certain questions of evidence arising in tbis cause, you have decided that, at least, what in point of time is s© near to this action of the President 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 question that the record will confirm my statement. Now, my present inquiry is to show that within this pciriod, thus extensively and comprehensively named for the present, in his official duty and in his consultations concerning his official duty with the heads of departments, it became apparent that the operation of this law raised embarrassments in the public service, and rendered it important as a practical matter that there should be a determination concerning the constitutionality of the law, and that it was desirable that upon a proper case such a determination should be had. I submit the matter to the Senate with these observations. The Chief Justice. The Secretary will read the offer to prove. The chief clerk read the offer. The Chief Justice. The Chief Justice will submit the question to the Senate. Mr. Oomness called for the yeas and nays, and they were ordered. Mr. Henderson. Mr. President, I desire to submit a question to the mana- gers before I vote. I send it to the desk. The Chief Justice. The question propounded to the honorable managers by the senator from Missouri will be read. The chief clerk read as follows : If the President shall be convicted, he must be removed from office. If his f^uilt should be so gi'eat as to demand such punishment, he may be disqualified to bold and enjoy 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 •'vidence 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 verdict of guilty is rendered, then circumstances of mitigation, such aa good character or possible commission of the crime by inadvertence, can be given, but not upon the issue. Mr. Coi\KLii\G. Is that the rule of practice before this tribunal? Mr. Manager Butler. I do not know as there are any rules of practice here. Mr. CoNKLiiNG. Would that be applicable 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 nt 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 apphcable at all, it must be given to influence that event. There is an appre- ciable time in this tribunal, as in all others, between a verdict of guilty and the act of judgment ; and if any such evidence can be given at all, it must, in my judgment, be given at that time. It certainly cannot be given for any other purpose. I have already stated that we do not believe it to be competent at all, and I 700 IMPEACHMENT OF THE PKESIDENT. am so instructed by my associates ; but, if ever competent, it cannot be com- petent until the time arrives for the consideration of the judgment. If I may ask a question, I would inquire, do the Presdent's counsel offer this evidence in mitigation ? 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 Jistick. The Secretary will read the offer to prove once more. The offer was read as follows : We offer to prove that at tlio cabinet meetings between the passaji^e of the tennre-of-civil-office bill and the order of the •21st of February, Jd6S, for the removal of Mr. Stanton, ujjon occa- sions when the condition of the public service, as affected by the of)enition of that bill, came up for the consideration and advice 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 case a judicial determination on the constitutionality of the law should be obtained. » The Chief Justice. Senators, yon 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 Secre- tary 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, Fes.senden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Sauls- bury, Trumbull, Van Winkle, and Vickers — 19. Nays — Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Sprague, 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 inadmissible. Mr. A.NTHO.w, (at 2 o'clock p. m.) I move that the Senate take a recess for fifteen minutes. The motion was agreed to, and at the expiration of the recess the Chief Justice resumed the chair. GiDEO\ Welles's examination continued. By Mr. EvART5 : Q. Mr. Welles, was there within the period embraced in the inquiry in the last question, and at any discussions or deliberations of the cabinet concerning the operations of the civil-teuurS act, or the requirements of the public service in respect to the same, any suggestion or intimation of any kind touching or looking to the vacation of any office, or obtaining possession of the same by force 1 A. Never, on any occasion k Mr. Manager Butler. Stop a moment. We object. The Chief Ju.stice. 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 the period embraced in the inquiry in the last question, and at any discussions or deliberations of tlie cabinet concerning the operation of the tenure-of-civil- office act and the HMjuiremenis of the put^lic service in regard to the same, any suggestion or intimation whatever touching or looking to the vacatmn of any otlice by force or getting pos- session of the same by force. Mr. ]\Ianager Butler. To that we object. We think it wholly within the pre- vious ruling ; and if it were not, it would he incompetent upon another g'ouiul — 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. IMPEACHMENT OF THE PRESIDENT. 701 Mr. Ev'ARTS. We may hereafter call persons to testify that lie (livent up at the same time. Q. Have you not heard since yesterday that the court did not sit on Saturdays 1 A. No, sir. Q. Have you heard anything on that subject? A. No, sir. Q. Do you know whether they sit on Saturdays or not? A. I do not. Q. You do not know upon that matter ? A. I do not. Q. 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 ? A. Well, I heard of two or three things that evening. Q. I am now speaking of the olficers of the regiment. A. I understand. Q. Did you learn that there was any other movement of troops except an Older to an ofiicer of the regiment *to meet General Emory ? A. I heard tlial the officers of the regiment were required to meet at head- quarters that evening. IMPEACHMENT OF THE PRESIDENT. 703 Q. At what time ? A. That evening. Mr. EVARTS. The 21st. By Mr. Manager Butler : Q. The evening of the 21st ? A. The evening of the 21st. Q. And that the officers were called to headquarters ? A. The officers were called to headquarters. Q. Did you learn whether it was to give them directions about keepiug away from a masquerade or going to it as a reason why they were called to head- quarters ? A. I did not hear the reasons. If I had heard the reasons perhaps they would have satisfied me. I do not know how that may be. Q. You did not hear 'the reasons 1 A. No ; I knew the fact that they had been called to meet at headquarters that evening, which was an unusual order, and were called from a party, I believe. Q. What party 1 A. A party that was in F or G street, I think ; a reception. Q. 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 ? A. I do not recollect that I spoke of others. I spoke of that. Q. Had you any other in your mind yesterday but that 1 A. There were some other movements in my mind ; but perhaps not con- nected with General Emory, unless they were called there for a purpose. Q. There was none communicated to you, whatever might have been in your mind, was there 1 A. What do you mean by " none communicated 1" Q. No other mo-vemeuts were communicated to you, whatever may have been in your mind, that evening ? A. I heard of movements that evening, or heard of appearances. I heard that the War Department was lighted up, which was an unusual matter. Q. You heard that the Wal- Department was lighted up ? A. I 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. Q. Then the movement was the call of the officers of one regiment to meet General Emory. How many officers did you hear were called ? A. I did not hear the number of officers. I heard that General Emory's son and his orderlies, one or two, had called at a party, requesting that any officers belonging to the fifth regiment, and, I believe, to his own, should repair forthwith to headquarters ; which was thought to be a very unusual movement. Q. I did not ask for your thoughts about it. A. Well, I thought it was. Q. Those officers were asked to come to headquarters. That was all you stated to the President of movements of troops ? A. I will not say that was all. Q. Is it all that you remember that you did ? A. 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 iutreuchment 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 Q. Excuse me; I am only asking what you stated, not what you think you did not state. A. I say I do not know that I stated that. Q. And I am asking for what you stated. 704 IMPEACHMEXT OF THE PRESIDENT. A. I eay I do not know tliat I stated to the President that the War Dopart- Kient was lighted up that night. Q. I do not ask you for what you do not know you stated, but wiiat 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 stated, and I 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 I heard in regard to him. Whether I alluded to the other facts in my 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 f^icts were. The 22d was to be kept as a holiday ? A. It is a half holiday, I believe. The War Department closed that oiiice ; but I suppose 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 tlie Fourth of July and the 25th of December. The War Department has some- times Mr. Manager Butlrr. Excuse me; I did not ask you for your legal opinion. The Witness. I am not giving a legal opinion. I am stating facts. Mr. Manager Butler. You say it is in violation of law. I suppose that is a legal opinion I The Witness. You can read the law and see what it is. Q. I am only asking you whether, in fact, it is kept as a holiday ? A. 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. Q. How was it at the War Department? A. I understood — if you will allow me to state that — that the War Depart- ment was closed on that day. I have understood it was closed on other days; but the Navy Department had not be<'n closed in that way. Q. I do not want any comparison between the Navy and War Departments. I only ask the ffxct 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 holi- day or not ? A. 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. Q. Are you employed in the Navy Department ] A. Yes, sir; I am chief clerk of the department. Q., (presenting a paper to the witness.) Please look at this paper and say if that is a blank form of navy agent's commissions as used in the department ? A. It is the blank form that was used. Q. Before the civil tenure bill ? A. Yes, sir. Mr. Evarts. We propose to offer it in evidence. (Tlie document was handed to Mr. Manager Butler.) Mr. Manager BuTLER. We have no ohjectiou to ihat. Do you want it read? Mr. Evarts. No. IMPEACHMENT OF THE PRESIDENT. 705 The doeument thus put in evidence is as follows : President of the United States of America: To all who shall sec these presents, greeting : Know ye, that reposing^ special trust and eoiifidenco in the patriotism, fidelity, and abilities of , 1 do, by and with the advice and consent of the Senate of the United States, appoint hiui navy agent for the . He is therefore carefully and dilipfently to discharp^o the duties of navy agent, by doing and performing ail manner of things thereunto appertaining ; and he is to observe and follow the orders and directions which he may from time to time receive from the President of the United States and Secretary of the 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 [l. s. ] Lord one thousand eight hundred and , and in the year of the independ- ence of the United States. By the President : Secretary of the Nary. Registered. By Mr. Evarts : Q. Do you remember on Friday, the 21st of February, that your attention was drawn to some movement, or supposed movement, connected with military organization here ? A. I do. Q. At what hour of the day was that? A. I should suppose it was about five o'clock. Q. What was it, and how was it brought to your attention 1 A. I was attending a small reception, and the lady of the house informed Mr. Manager Butler. Excuse me. You need^ot 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. ]\Iauager Butler. I beg your pardon ; 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, I do not care ? Mr. Manager Butler. No, sir ; the question should be, what information did he give to his father ] Mr. Evarts. I want to prove that he gave the sarae'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 WiT.N'ESS. General Emory had sent his orderlies there that afternoon requesting certain officers named to me to report to headquarters immediately, and that after that General ' Emory's son, Dr. Tom. Emory, had come there with the request that any officers of two branches of the service — I do not 45 I P 706 IMPEACHMENT OF THE PRESIDENT. recall what two branches, cavalry and infantry or cavalry and artillery — should report at headquarters immediately. Air. Co\i\KSS. 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 ? Mr. CoxNESS. Yes, sir. Mr. EvARTS, (to witness.) Be so good as to repeat it. A. That General Emory had sent certain orderlies requesting officers, who were named, to report at headquarters without delay, and had also sent his son, requesting that any officers of two branches of the service, cavahy and infantry, or cavalry and artillery, should report at headquarters immediately. Q. After this, did you communicate this to your fother 1 A. I did, sir. Q. At what time ? A. I should suppose it was about 7 o'clock. Q. The same evening ? A. The same evening, between 7 and S o'clock. Q. Were you sent on any message to the President concerning this ? A. I was. Q. By your father 1 A. I was sent by him over to the President's. Q. Did you go ? A. 1 did. Q. At what hour in the evening ? A. Between 8 and 9 o'clock ; shortly after I went home. Q. Was it on an occasion of any engagement of the President ? A. The President was engaged at dinner. Q. Was it a diplomatic dinner 1 A. It was a state dinner. I do not remember precisely the character of it. Q. Did you see him? A. I did not see him on that account. Q. And you reported to your father ? A. I reported to him that I did not see him; that there was nobody at the President's Mansion to communicate with. Q. Was anything further done that night that you know of on the siibject? A. Nothing further that I know of. No cross-examination. Mr. EvARTS. Mr. Chief Justice and Senators, we have in attendance, to give their evidence, the Secretary of State, the Secretary of the Treasury, the Secre- tary of the Interior, and the Postmaster General, and we offer them as witnesses to the same ])oints 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 exam- ination, of course it must be considered as covered by the rulings already made. Mr. Williams. I did not fully understand 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 t()ld to him by this lady, or whether it was communicated to him by the ofhcers? A. If 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 interrogated concerning, and that the rulings of the Senate liave covered. If the objection is made, it must be considered as covered by that ruling. Mr. IManager Butler. We object. We have not objected that Mr. Welles IMPEACHMENT OF THE PRESIDENT. 707 was not a credible witness, but only tliat the testimony to be given was not proper. Mr. EvARTS. I understand that. AlexAxXDer W. Randall sworn and examined. By Mr. EvARTS : Question. Mr. Randall, you are Postmaster General ? Answer. I am, sir. Q. Prom what time have you held that office ? A. I was appointed in July, 18G6 ; I have held it from that time. Q. Before that time had you been in the department ; and if so, in what capacity ? A. I had been from the ftili of 1862. I was First Assistant Postmaster General. Q. Since the passage of the civil-tenure act, have cases arisen in the postal service in which officers came in question for their conduct and duty in the service ? A. They have. Q. Do you remember the case of Foster Blodgett ? A. I do. Q. What was he ? A. He was postmaster at Augusta, in Georgia. Q. Was there any suspension of Mr. Blodgett in his office or in its duties 1 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 writing I desire it to be produced. Mr. EvARTS. 1 expect to produce it. The Witness. There was. Q. By whom was it made 1 A. It was made by me. Q. As Postmaster General 1 A. As Postmaster General. Q. Had the President anything to do with it ? A. Nothing at all. Q. Did he know of it ? A. Not when it was done, nor before it. Q., (handing some papers to the witness.) Please look at these papers and say if they are the official papers of that act ? A. Yes, sir ; they are certified to be by me as Postmaster General. Q. Did you receive a complaint against Mr. Blodgett? A. There was one ; yes, sir. Q. And was it upon that complaint that your action was taken ? A. It was. Q. In what form did the complaint come to you, and of what foct ? Mr. Manager Butler. Let the complaint itself state. Mr. EvARTS. I have asked in what form it came. Mr. Manager Butler. The complaint Avill 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 verbally, both. 708 IMPEACHMENT OF THE PRESIDENT. Mr ^fanager Butlkr. 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 ? A. 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 consequence. Mr. Evarts. Whose care do you refer to? Mr. Manager Butler. The man who did it. Mr. Evarts. Who is that? Mr. Manager Butler. I do not know. This Mr. Blodgett is now attempted to be affected in his absence, and I feel a little bound to take care of him, l)ecause, being called as a witness here, he must be dealt justly with. The ])apers they now offer refer to the evidence of Mr. Blodgett's misconduct, and the evidence is not produced here, not even a recital of it ; and therefore 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. EvAR'i'S. Mr. Chief Justice and senators, the honorable managers chose, for some reason and ground best known to themselves, to offer in evidence as a part of this incrimination 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 whichis the inculpation of Mr. Blodgett. Mr. Evakts. 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 produce the complaint. Mr. Evarts. Well, we will not wrangle about it. I offer the official act of the department in the removal of A[r. Blodg(!tt. Mr. Manager Butler. And 1 object that it is not fair play unless you bring in the complaint. 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 y(tu brought in testimony. Mr. Manager Butler. Wc 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. Yon made it iiicul]);ition, and we wanl Id pr(tve what the act was. Mr. Manager Butlkr. 'J'heu produce the Mhole thing on Avhich it was grounded. IMPEACHMENT OF THE PRESIDENT. 709 Mr. Johnson. What is the paper? Mr. Grimks. I call for the reading of the paper. Mr. EvARTS. If you want the iiulictineut produced it may certainly be pro- duced ; but the fact that it is not here is no legal objection to these papers. Mr. JoMNSON". What is the paper produced ? The Ohfef 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 Chif^f Justice. It will be necessary 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 action of the department. I oflFer in evidence the official action of the Post Office Department 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 offi^r to writing. Mr. Sherman. I think Ave have a right to ask for the reading of the letters to know upon what we are called to vote. The Chief Justice. The Senate undoubtedly 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 themselves. The Chief Justice. The usual mode of proposing to prove is by stating the nature of the proof proposed to be 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. Undoubtedly it is competent for the Senate to order it to be read. Mr. Sherman. If the counsel Avill 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 testimony by the managers. Mr. iManager Butler. We will not object further. We think we can get in the indictment 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 depart- ment against Foster Blodgett, postmaster at Augusta, Georgia, that he has been indicted iu the United States district court for the southern district of Georgia for perjury: It is Ordered, That said Foster Blodgett be suspended from the ofiice of postmaster at Augusta, Georgia, aforesaid ; and that George W. Summers be designated as special agent of this department to take charge of the post office thereat and discharge all its duties until further action shall be had ])y the President and Senate of the United States. ALEX. W. RANDALL, Postmaster General. Post Office Department, Washington, D. C, April \7, 1868. This is to certify that the foregoing, marked A, is a true copy of an original order on file in this department. 710 IMPEACHMENT OF THE PRESIDENT. lu witness wliereof, I liave liereunto set my liMiid, auil caused the seal of the Post Office Departnieut to be aflixed, at the General I'ost OtHce ia the city of Washington, District ot Columbia, the day and year first above written. [L. s.] . ALEXANDER W. RANDALL, Postmaster General. B. Thk Post Office Department To whom it may concern : Know ye, that Foster Blodgett having been suspended 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 public property thereat, and to discharge all the duties of the aforesaid office, VVitness my hand and the seal of said department at Washington this 3d day of Jan- uary, A. D. 1866. [L. s.] ALEXANDER W. RANDALL, Postmaster Oineral. Post Office Department, ffushington, D. C, Aprd 17, 136S. 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 Department to be affixed at the General Post Office in the city of Washington, District of Columbia, the day and year first above written. [L. s.] ALEXANDER W. RANDALL, Postmaster General. C. Post Office Depatrment, Appointment Office, January 3, 16G8. Sir: Enclosed please 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, Georgia. So soon as the same shall have been executed and placed in the mail addressed to this department, you will then exhibit the enclosed commission to Foster Blod- gett, or to the person in charge of the post office at Augusta aforesaid, take possession of the public property thereafter, and enter on the full discharge of all the duties thereof, as required by the postal laws and regulations. You will continue to conduct the office in the same manner as though you were postmaster until the President and Senate shall have taken further action in the premises. Your salary will be at the rate of $1,G0U a year, with .$3 per diem for subsistence. Very respectfully, your obedient servant, ST, JOHN B. L. SKINNER, First Assistant Postmaster General. George W. Summers, Esq., Aii^usta, Georgia. Post Office Department, Washington, April 17, 1868. This is to certify 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 Department to be affixed at the General Post Office in the city of Washington, District of Columbia, the day and year first above written. [L. S.] ALEX. W. RANDALL, Postmaster General. D. Post Office Department, Apppuintment Office, Janiianj 3, 18G8. Sir: a copy of the bill of indictment found against you in the United States district court for the southern district of Georgia, for jjcrjury, lias been placed on file in tiiis department, and in consecjuence thereof the I'ostmaster tieM(M-al has made an order suspending you from the office of postmaster at Augusta, Georgia, and designated George W. Sununers as special agent of tiiis department, to take cliarge of the aforesaid post office and all the public prop- erty thereat. You are, therefore, required to deliver to said George W. Summers the mail key and all IMPEACHMENT OF THE PRESIDENT. 711 the public property in j-our possession, upon the exliibition of his conunission and demand tor 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, »fcc., ST. JOHN B. I.. SKINNER, First Assistant Pustmaster Central. Foster Blodoett, Esq., Augusta, Georgia. Post Office Department, IVushinglon, April 17, 1868. This is to cerUfy that the foregoing, marked D, is a true copy of a letter on record in this department. In witness whereof I have hereunto set mj' hand and caused the seal of the Post Office Department to be aflixed at the General Post Office, in the city of Washington, District of Columbia, the day and the year first above mentioned. [L. s.l ALEX. W RANDALL, Postmaster General. Cvoss-examinQd by Mr. Manager Butler : Q. Is the post office iu Augusta one that is within the appointment of the President under the law ? A. It is. Q. Was Mr. Blodgett appointed by the President ? A. He was. Q. When? A. I cannot tell you that. Q. Some time ago ? A. Yes, sir ; some time ago ; and confirmed by the Senate. Q. Under what law did you, as Postmaster General, suspend him 1 A. Under the law of necessity. Q. Any other ? A. 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. Q. 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 ? A. No, sir ; not without referring to my notes. Q. Well, sir, refer to your notes. Of course I do not mean that unwritten law — the law of necessity ? A. 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 Q. 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 1 A. I can make no further reference than I did to that law, except my authority to appoint special agents. Q. What statute did you do this under? A. Appoint the special agent ? Q. What statute did you do this act under? What statute do you justify yourself by ? A. I do not justify myself under any particular statute. Q. What general statute ? A. No general statute. Q. Then under no statute whatever, either particular or general, do you jus- tify yourself- Now, sir, do you mean to say that this took place on the 3d of January ? A. The fore part of January. Q. The paper is dated the 3d. A. The fore part of January. Mr, Johnson. What is the date of the paper, Mr. Manager ? 712 IMPEACHMENT OF THE PRESIDENT. Mr, Manager Butler. They are all dated the 3d of January, 1868. (To the witness.) Now, sir, have you ever communicated this case to the President ? A. I di.i. Q. When? A. I do not recollect ; some time after it was done. Q. About how long 1 A. Perhaps a week. Q. More? A. I do not remember about that ; a few days afterwards. Q. Did you take any advice of the President, or consent, or order, before you made this removal ? A. I did not. t^. Was the verbal complaint the same or different from the written complaint against Foster Blodgett ? A. It was the same. It was the statement that he had- been indicted by the district attorney. (^ The statement that he had been indicted 1 A. Yes, sir. Q. And was there any other complaint ? A. And a copy of the indictment. Q. Was there any other complaint than that ? A. I do not remember now whether there was any other or not. Q. Who made the complaint to you ? A. The district attorney of that district stated to me the fact that an indict- ment had been found against him. Q. Did he state it to you in person ? A. Yes, sir. Q. Did you ask him to forward you a copy ? A. No, sir. Q,. Did he do so ? A. He did, or somebody did. Q. Somebody did. Do you know who ? A. I cannot tell, unless he did. Q. Did yon prepare these papers here ? A. I ordered them to be prepared. Q. You ordered all the papers to be prepared ? A. I did. Q. Why is not a copy of the indictment here, then ? A. It was not inquired for, and I did not think of it. Q,. If it was not inquired for, w^ho made the inquiry for the papers ? A. One of the attorneys asked me about the case. Q. One of the counsel asked' you about the case, the papers I am talking about now ? A. He asked me what was the conditilodgett, 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 be taken and subscribed by him, tlis said Foster Blodgett, before entering upon the duties of the office aforesaid, to wit, the office of deputy postmaster at Augusta aforesaid; and being so required by law, he, the said Foster Blodgett, came in his ctwn proper i)eis()n before David S. Koath, a judge of the court of ordinary for the county of liichmoiid, in the State of Georgia and within the district afore- said, and within the jurisdiction of this court, on the 5th day of September, in the year of our Lord 1866, at Augusta aforesaid, within the county, State, and district aforesaid, and then and there was duly sworn and touk his corpural oath before the said David S. Koath, a judge of the coiu't of ordinary for the county uf Kichmund, in the State of Georgia and district 'aforesaid, he, the said David S. Koath, i)eing then and there duly authorized by law, and having then and there suilicient and comi)etent power to administer the said oath to the said Foster Ulodgett in that behalf, and that thereupi>n tho said Foster Blodgett having so sworn as aforesaid, and not having (he fear of (iod belure his eyes, but having been moved and seduced Ijy the instigation of the devil, then and there, to wit, on the day and year aforesaid and at the place last aforesaid, before the said David S. Koath, judge of the court i>f ordinary as aforesaid, (he, the said Koath, having then and there competent authority to lulminister the said eath as aforesaid,) iqion ids oath aforesaid, sworu to before the said David S. Koath, ou IMPEACHMENT OF THE PRESIDENT. 721 the fSth day of September, in the year of our Lord 18(1(1, falsely, wilfully, and corruiitly did swear to the piu-poit and eifcet following ; tiiat is to .say: "I, Foster Hlodi^ctt, (uieanino^ the said Foster Blodgett, ) beinj^ appointed deputy post- master at Aug'usta, in the county of Kichinond, and State of tieorgia, do swear that I will faithfully perform all the duiies re([uirc'd of me, and atistaiu from anythini';' forliidden by the laws in relation to the establishment of the post othee and post roads in the United States; and that I will honestly and truly account for and pay over any mone-ys belonging to the said United States which may come into my possession or control ; and I do further solemidy 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 encourage- ment to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any oltice whatever, under any authority or pre- tended authority, in hostility to the United States; that I have not yielded a voluiitar}' sup- port to any pretended government, authority, power, or constitution withiu the United States hostile or inimical thereto ; and I do further swear that to the best of my knowledge and ability I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion ; and that I will well and faithfully discharge the duties of the oftice on which I am about to enter, so help me God." Whereas in truth and in fact the said Foster Blodgett before the time of taking the said oath as aforesaid, had voluntarily borne arms against the United States aforesaid, lie, the said Foster Blodgett, having been at that time, that is to say, at the time when he bore arms as aforesaid, a citizen ot the United States aforesaid ; and whereas in truth and in fact, he, the said Foster Blodgett, being a citizen as aforesaid, before that time, that is to say, before the time of the taking of the oath, voluntarily had given aid to persons engaged in armed hos- tility 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 in fact, he, the said Foster Blodgett, being a citizen of the United States as aforesaid, had before that time, that is to say, before the time of the taking of the said oath as afoi'esaid, accepted an office, to wit, the office of the captaincy of an artillery company in the service of 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 in hostility to the United States aforesaid ; and whereas in truth and in tact, he, the said Foster Blodgett, being a citizen as aforesaid, had before that time, that is to say, before the time of the takiug of the said oath, yielded a voluntary support to a pretended government of Georgia, the same being at that time, that is to say, at the time he, said Fos- ter Blodgett, yielded a voluntary support thereto, a pretended authority in power within the United States and hostile thereto. And so the jiuors aforesaid, upon their oaths aforesaid, do say that the said Foster Blodgett, by 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, wilfully, and corruptly, in manner and form aforesaid did, in the southern district of (ieorgia, and withiu the jurisdiction of this court, commit wilful and corrupt, perjury, contrary to the forms of the statute in such case made and provided, and against the peace and dignity of the United States. HENRY S. FITCH, United States Attorney for Georgia. [Indorsement.] United States of America, southern district of Georgia, United States district court, Novem- ber term, 1867. United States ) vs. > Indictment for perjury. Foster Blodgett. ) Witnesses: James A. Bennett, Ambrose R. Wright, Dr. M. J. Jones, John N. W^ray, Avera D'Antiquac, George W^. Vennnrey, Allen Phillips, John L. Ellis. A true bill : HENRY BINGHAM, Foreman. Savannah, JNovember 27, 1867. Filed November 29, 1867. JAMES Mcpherson, cicrk. Mr. Johnson. Does it charge that he was a captaiu in the rebel service? Mr. Manager Butlkr. He was charged with being a captain in a vohinteer 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.) 4C I P 722 IMPEACHMENT OF THE PRESIDENT. A. These are copies of the papers that are on file. I can only swear to them as copies of papers on file. I believe these are correct copies. Q. And that is a copy of his answer ? Will you look at it 1 A. Yes, sir. I have read it all over ; I think it is. Q. The notice left here on the 3d of January, we have learned by the paper which was put in on Saturday ? A. I think it was the 3d of January. Q. And on the 10th he returned this answer ? A. Yes, sir. Mr. Manager Butler. I propose to offer it. It is : Washington, D. C, January 10, 1863. Hon. A. W. Randall : Sir 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 defences. We put in evidence nothing hut the official action of the government through the Post Office De- partment, and that only in answer to an oral statement concerning it which Mr. 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'a suspension. We submit to the Senate that the proof is irrelevant. Mr. Manager Butler. Mr. President, the case stands thus : Mr. Foster Blod- gett, who is mayor of the city of Augusta, appointed by General Pope, and a member of the constitutional convention Mr. EvARTS. No part of that statement is in evidence. Mr. Manager Butler. I propose to put it in evidence, and am stating my case. I have got it all here. He was a member of the constitutional conven- tion and an active Union man The Chief Justice. The honorable manager will please reduce his offer to prove to v/riting. 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 he reduced to writing now, in order that the Senate may pass upon the question whether they will receive the evidence. Mr. Manager Butlkr. They cannot until I make the statement, sir. The Chief Justice. The Chief Justice thinks that the same rule which was applied to 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 h^ar that class of evidence. Mr. Johnson. Does the manager propose to offer that paper in evidence itself? Mr. Manager Butler. T 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 stop{)ed. I assume, Mr. President — I never have assumed any differ- ent — that the same rule will be applied to-day as yesterday. I do not want to be understood as asking anything ditferent The Chief Justice. The honorabh; 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 therefore requires that the nature of the evidence that he proposes to put before the Senate shall be reduced to writing, as haa been done heretofore. lie will make the ordinary offer to prove, and then the Senate will judge whether they will receive the evidence or not. IMPEACHMENT OF THE PRESIDENT. 126 Mr. Manager BtiTLER. I was trying to state that this was a part of the record produced 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 Cmt'.F Ji'STICK. Does the honorable manager decline to put his state- ment in writing? Mr. Manager Butlrr, I am not declining to put the statement in writing, sir. The Chiep Justice. Then the honorable manager will have the goodness to put it in writing. Mr. Manager Butler. I can do it, sir, by taking sufficient time. The Chiep 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 Blodf^ett, the mayor of Augiista, Georgia, appointed bj Gen- eral Pope, and a member of the constitutional convention of Georo-ia, being-, because of his loyalty, obnoxious to some portion of the citizens lately in rebellion against tlie United States, by the testimony of sucli citizens an indictment was procured to be found against him ; that said indictment being sent to the Postmaster General, he thereupon, without authority of law, suspended said Foster Blodgett from office indefinitely, without any other complaint against him and without any hearing, and did not send to the Senate the report of such sus- pension, the 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 Post- master General's notice of such suspension, being a portion of the papers on file in the Post Oifice Department, upon which the action of the Postmaster General was taken, a portion of which have been put in evidence by the counsel of the President, and that Mr. Blodgett is shown by the evidence in the record to have always been friendly to the United States and oyal to the government. That is the offer. On this we wish to be heard at such time as the Chair will peimit. Mr. EvARTS. We object to the evidence, Mr. Chief Justice and Senators, as being wholly irrelevant to this case. The evidence concerning Foster Blodgett was produced on the part of the managers, and on their part was confined to hie oral testimony that he had received certain commissions under which he held the office of postmaster at Augusta ; that he had been suspended in that office by the Executive of the United States in some form of its action, and there was a superadded negative conclusion of his that his case had not been sent to the Senate. In taking up that case the defence offered nothing but the official action of the Post Office Department, coupled with the evidence of the head of that d''partment that it was his own act, without previous knowledge or subse- quent direction of the President of the United States. In that official order, thus a part of the action of the department, it appears that the ground of it was an indictment against Mr. Blodgett. A complaint was made that that indict- ment was not produced. 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 Postmaster G-eneral. Mr. Manager Butlrr. I know you do not mean to misstate — his answer to the Postmaster General's notice, not to the indictmtsnt. Mr. EvARTS. His answer to the accusation and the evidence concerning the accusation as placed before the Postmaster General, I understood. Mr. Manager Butler. Not an answer to the indictment. Mr. EvARTS. An answer to the indictment so far as it was the accusation before the Post Office Department. I understood you to say so ; that is, you propose to prove that he was friendly to the United States, and always had" been, notwithstanding he had been a captain in the rebel troops. I understood you to say so ; and now the honorable manager states that this papex*, which is part of his evidence to sustain Mr. Blodgett's loyalty and defeat the accusation against him, in which INIr. Blodgett may be entirely right for aught I know, is a letter written by him ten days after his suspen.-?ion ; and the honorable man- ager states that that letter of his, written to the Postmaster General ten days 70> IMPEACHMENT OF THE PRESIDENT. after his suspension, was a part of the papers upon which the Postmaster Gen- eral 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 incrimination ; and 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 dis- paragement of Foster Blodgett. It is evidence introduced by us to show the action of the Post Office Department in the susyiension, 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 evidence is rightly put in on their part, we of course can meet it on ours ; and we shall have an interesting excursion from the impeach- ment 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 w^ho 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 Butueu. Mr. President and Senators, I think npw 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, 186S, without any fault on his part, so far as his official duties were concerned, and without any adjudication or conviction of any crime, and a man placed in his office as special agent with the same salary and a little more; so that it amounted to a removal and putting a man into the office as now appears by the papers presented. Mr. Blodgett testified that up to the day be 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 ]a.w, these facts are put in, and these facts are yet undisputed. They called Mr. Postmaster General Randall on Saturday, and he produced, 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 informing Mr. Blodgett that he had been sus- pended from office. That letter states precisely that it was upon an indictment for perjury, not setting out the indictment, so as to leave us to infer that Foster Blodgett had in some controversy between neighbor and neighbor, or citizen and citizen, somewhere committed wilful and corrupt perjury, and tliat it was 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 compelled 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 certain 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 inadvertences 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 cor- rectnesH ; 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 ou file, that is a part of the case. IMPEACHMENT OF THE PRESIDENT. 725 Now, I have not said to tlio Senate that this paper was that upon wliich ^Fr. Randall acted in suspending him, but I do say it is a part of the proceedings in the ease, and it is a ^laper on which Rfr. Randall acted in not returning that suspension through the President to the Sc^nate. It may be said that Mr. Ran- dall 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 depart- ment. I had the honor to explain to the Senate some days ago that I under- stood 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 under- stood that the kind of acts which a man does where the law does not require him to do them are officious 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 repudiation is ruined as far as it cau be ; the tribunal the law has appointed before which he could have a hearing, 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 1 When he simply says that, the answer is to put in the fact that he was indicted in order to blacken his reputa- tion and send it out to the country. I never saw Foster Blodgett until the day he was brought upon this stand. I have no interest in him any more than any other gentleman of position in the south. [ 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 constitutional 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 1 It is said to be the letter of Mr. Blodgett. True, it is ; but it also contains exhibits and other papers which establish the facts beyond* controversy. 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 while he was only a captain in a militia company, and called into service and bound to obey the powers tliat be, and he was indicted because he yielded to the power of the State of Georgia to compel him to hold the com- mission ; and taking no commission, he had either to go or lose his life ; and be 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 ihe 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 Blodgett will come and take his place beside the proud- est of you. I say under these circumstances I feel it my duty to put this 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 Representatives brought here, and who is now being oppressed by the entire power of the executive government of 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 district attorney and he cannot get a trial down there, and they will nut report him up here, and he cannot get a trial 726 IMPEACHMENT OF THE PRESIDENT. here. It appeals to your justice. I do not propose to go into any excursion in trying tiie case of Foster 131odgett. I only propose to put in all the papers that were on file ir the Post Office Department about this case that be.ir 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 without my picking out and putting iu from the same bundle such as please us. Mr. EvART-S. We do not put in 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 evi- dence. 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 Butlek. Stop a moment. Perhaps I will amend the offer a little, though not in substance. With leave, sir, I will withdraw 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 honorable 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 record showing the alleged causes for the suspension of Foster Blodgett as deputy postmaster at Augusta, Georgia, we now propose to give in evidence the residue of said record, including the papers on iile in the said case, for the purpose of showing the wliole of the case as the same was presented to the Postmaster General before and at the time of the suspension 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 Sen- ate. 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 aye ; contrary opinion no. (Putting the question.) The noes have it. The evidence is not received. Mr. AxTHONV. I should like to have the yeas aud nays on that, if not too late. The Chief Justice. It is too late. If there be no objection, however, the Chief Justice will put the question on taking the yeas aud nays. There seems to be no objection. Mr. Came ROM. 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 President said or anybody else I shall not object. The Wii'M'.ss. I expressed to a gentleman this morning a wish 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 that I passed uj)on this last week. The copy of this indict'ueut 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 statcMuents of the circumstances under which it was found. Under the teuure-of-office law, if we acted uuder IMPEACHMENT OF THE PRESIDENT. 727 that, the Presidont would have no j)ower, as I understood it, to suspend any officer during the session of the Senate. Tlie only thing he could do would be to send up the name of some man in his place, removing Mr. Blodgett. It occurred to me that this violation of the law by Mv. Blodgett might be merely a technical violation of the law. If it was a technical violation 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 violation 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 suspen- sion 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 wliat action ought to be taken. Those are the circumstances under which this thing was done. By Mr. Manager Butler : Q. Why did you not report it to the President for his action ? A. I told the President what I had done. Q. When? A. Afterward ; as I stated before. Q. Why did you not report it before you undertook to take the responsibility ? Did you not suppose he would turn him out ? A. Because the only thing he could do, if he did anything, was to send to the Senate some other nomination, turning this man out. Q. 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 somebody in place of this man, removed ; and you thought, breaking the law, you could do something better 1 A. 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 vio- lation of the law on which he was indicted, and if he was an honest man. That was the reason I was disposed to ascertain the facts. It may have been a tech- nical 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, Q. Was the Senate in session on the 3d of January last ? A. I cannot tell you whether it was iu session on that day or not. Q. Was there not a recess ? A. There may have been ; I do not remember now. Q. Then the reason that the Senate was in session did not apply to this case 1 A. 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 of the Constitution, I do not remember whether the Senate was actually in session on that particular day. Q. Y(ju deemed it to be in session, and you treated it as if in session 1 A. I considered the session as continuing. Mr. Manager Butler. That is all. Mr. CoNNESS. I should like to ask a question of the 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 proposed by the senator from California has been submitted in writing, and will be read by the Secretary. 728 IMPEACHMENT OF THE PRESIDENT. The question propounded Ly Mr. Conness was read, as follows : Have you ever takcu any step since your act suspeuding Foster Blodgett in further investi- gatiou of liis case ? A. Ye.-?, sir; in trying to secure information. There is considerable informa- tion among the papers here on the subject. Mr. JIanager Buti^er. That is what we offered to put in; The Witness. Bvyond 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. Cl'RTIS. 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 of the Atlantic. Mr. Manager Butler. It is put in to shoAv part of the action of the Presi- dent 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 connection with General Thomas's testimony. The only connection the honorable manager states is that he learned from Gen- eral Thomas when he was restored, as if he did not know that before. It was all public when he was restored. It does not connect itself at all with any evi- dence we have produced. If it is put on the ground that it was forgotten or overlooked, that is another matter ; but to bring it in as rebutting is a consider- tion 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 coirntry from the newspapers, because they are not always the best sources of knowledge. I say that General Thomas testifies that on the 13th of February the President made an order that he should be restored to his position 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 le4;ter 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 of the res gcsfce, and the Senate has so often allowed testimony to come in to that effect, tliat I cannot conceive why this cannot be competent. It is part of the things done by the President on the same day, or the day before Thomaa was restored. I do not mean to say a word on the question whether it is rebut- ting ; I do not understand that that rule belongs here. The Chief Justice. On the part of the honorable managers, it is proposed to give in evidence an order establishing the department of the Atlantic. The Chief Justice will submit the question to the Senate. Mr. Anthonv. I ask for the yeas and nays. The yeas and nays were ordered. Mr. BucKALKW. Mr. President, I ask for the reading of a question submitted to General Sherman by the counsel for the defence in reference to this very matter, if our clerk Avill turn to the record he will find that a question was put to General Sherman as to the establishment of the department of the Atlantic, which was ruled out. IMPEACHMENT OF THE PRESIDENT, 729 The Chief Justice. The Secretary will read the question referred to. Mr. Manager Butlek. We shall not trouble the Senate. This being a mat- ter of public document, I suppose we cau 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. ]\[anagpr Butler. I have now, Mr. President and Senators, a list pre- pared as carefully 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 correljitive list to that put in by the counsel, showing the number of officers and tlie amount of salaries which would be affected by the President. In order to bring it before the Senate I will read the recapitulation only thus : In the Navy, War, State, Interior, Post OfBce, Attorney General, Agriculture, Education, and Treasury, the officers are 41,5r)3; the grand total of their emoluments is $21,1S(J,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 auy objection? Mr. Evarts. If it shows what it is there is no objection. The document is as follows : Navy Department, as per Navy Register for 1S6S. Office. Number. Annual pay. Total. 1 $8, 000 00 $8, 000 00 1 3, 500 00 3, 500 00 1 3, 500 00 3, 500 00 1 10, 000 00 10, 000 00 1 7. 000 00 7, 000 00 9* 5, 000 00 45, 000 00 24* 4, 000 00 96, 000 00 49* 3, 500 00 171,500 00 9U* 2, 800 00 • 252, (iOO 00 i;ifi* 2, 343 00 318, (148 00 45* 1, 875 00 84, 375 00 29* 1, 500 00 43, 500 00 52* 1, 200 00 62, 400 00 157* 800 00 125, 6110 00 14* 3, 500 00 49, 000 00 :58* 2, 800 00 106,400 00 28* 2,343 00 65,301 00 42* 1,875 00 78, 750 00 28* ] , 500 00 42, 000 00 1* 4, 000 00 4, 000 00 12* 3, 500 00 30, 000 00 .30* 2, 800 00 84, COO 00 36* 2, 343 00 84, 348 00 39* 1,875 00 73,125 00 26* 1,500 00 39, OUO CO 1* 4, (100 00 4, 000 00 4* 3, 500 00 14, 000 00 34* 2,800 00 95, 200 00 11* 2, 343 00 25, 773 00 88* 1, 875 00 165,000 00 13J* 1, 500 00 196, 500 00 94* 800 00 19,200 00 7* 2, 800 00 19, (iOO 00 11* 2, 343 00 25. 773 00 4* 2, 800 00 11,200 00 7* 2, 343 00 16,401 00 1,210 2, 4C4, 594 00 Secretary Assistant Secretary Solicitor and Judge Advocate General . Admiral Vice-admiral Rear-admiral Commodores Captaius Commanders Lieutenant commanders Lieutenants Masters Ensigns Midshipmen Surgeons as captains Surgeons as commanders Surgeons as lieutenant commanders Passed assistant surgeons as lieutenants Assistant surgeons as masters Payruaster as commodore Paymasters as captains Paymasters as commanders - Pa j'masters as lieutenant commanders Passed assistant paymasters as lieutenants Assistant paymasters as masters ■ Cbief engineer as commodore Chief engineers as captaini Chief engineers as commanders Chief engineers as lieutenant commanders First assistant engineers as lieutenants Second assistant engineers as masters Third assistant engineers as midshipmen after graduation Chaplains as commanders Chaplains as lieutenant commanders Professors of mathematics as commanders Professors of mathematics as lieutenant commanders Total 730 IMPEACHMENT OF THE PRESIDENT. Navy Dejyartment, as per Navy Register for 186S — Continued. Office. WARRANT OFFICERS. Boatswains Gunners , Carpenters as gunners Sailmakers as gunners CONSTRUCTORS. Naval constructor as commodore , Naval conBtructor as captaiu , Naval constructors as commanders Naval constructor as lieutenant commander. Assistant naval constructors as masters RETIRED AND RESERVED LIST. Rear- admiral Commodores Captains Commanders Lieutenant commanders Masters (not in the line of promotion) Midshipman Surgeons as captains Surgeons as commanders Surgeons as lieutenant commanders Passed assistant surgeons as lieutenants Assistant surgeons as masters Paymasters as captains Paymaster as commander Chief engineer as lieutenant commander First assistant engineers as lieutenants Second assistant engineers as masters Chaplains as commanders Chaplain as lieutenant commander , Professor as commander Professor as lieutenant commander Naval constructor as captain Boatswains Gunners Carpenters Sailmakers MARINE CORPS. Brigadier general and commandant Majors, (staff) Captains, (staff) Colonel, (line) Lieutenant colonels, (line) Majors, (line) Captains, (line) First lieutenants, (line) Second lieutenants, (line) Number. 'Annual pay, $1,000 00 1, 000 00 1, 000 00 1 , 000 00 $4, 000 00 3, ,500 00 2, 800 UO 2, 343 00 1, 500 00 236 89 82, 000 00 1, 800 00 1, 600 00 1, 400 00 1, 300 00 t0 1,530 (K) 45 1,530 00 45 1, 530 00 4.50 1,410 00 450 1,350 00 SUMMARY. Total number of officers, 3,033. Total amount of their .salaries, $4,907,831 04. IMPEACHMENT OF THE PRESIDENT. 733 Department of State, as per official register o/lSGS, Officer. Secretary Assistant Secretaries Envoys extraordinary, &c Envoys extraordinary, &c , Envoys 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. lnterpret<»r 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 Consuls Consuls Consuls , Consuls Consuls Consuls Vice-consul Vice-istrlct attorneys, States and Territories Marshals' courts , Chief justices, Territories , Chief justices. Territories Chief justices, Territories Associate justices. Territories Associate justices, Territories Associate justices. Territories , Number. Annual salary. $8, ono no ■i.-M) (10 *2.50 00 *:.'r,IJ 0() 2, 500 00 a, 0011 01) 1, 800 00 2, 500 00 2,0110 00 1, 800 00 Total annual salary. $8, 000 no :!, 500 (10 15, Olio 00 15,0110 00 5, 0(K) 00 (), 000 00 5, 400 00 10,000 00 12,000 00 10. coo 00 90, 700 00 * And fees. Department of Agriculture, as jier Official Register, 1865. 1 s:? oon 00 $3 000 00 Department of Education, as per law creating Department. 1 $4, 000 00 $4 000 00 ' Treasury Department, as per Official Register, 1865. Secretary Assistant Secretaries Comptroller Comptroller Commissioner of Customs Auditors Treasurer Assistant Treasurer Assistant Treasurer Assistant Treasurer Assistant Treasurers Assistant Treasurer United States depositary United States depositaries United States depositaries United States depositary United States depositary United .States depositaries United States depositaries United States depositaries United States depositary United States depositary United States depositary Register Assistant register Chief of loan branch Comptroller National Currency Bureau Deputy comptroller Solicitor Chief of first division Assistant of tirst division Commissioner of Internal Revenue Deputy commissioner of internal revenue Assessors of internal revenue Collectors of internal revenue Deputy collectors Supervising architect of Bureau of Construction, (Coast Survey) .. . Assistant supervising architect of Bureau of Construction, (Coast Survey.) Superintendent of United States Coast .Survey First assistant superintendent Second assistant superintendent Hydrographic inspector * And fees. 4 1 1 1 1 1 1 1 1 1 1 1 1 1 22(i 210 1 1 1 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, COO 00 1, 500 00 1, 400 00 1, 3011 00 I, 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 (10 2, 5(.0 00 4, 000 00 2. 750 00 *1, .5(J0 (10 *1,5(I0 00 1 , .5i;0 00 .3, 000 00 2, 000 00 6, 000 00 3, 500 00 2, 500 00 2, 825 00 $8, 000 00 7, 000 00 3, 500 00 3, 000 00 3, 000 00 18,000 (X) 5, 000 00 2, 81)0 00 G, 000 00 4, 500 00 8, 000 00 1, 000 00 2, 500 00 6, 000 00 3, 600 00 1, CDO 00 1, .500 00 2,800 00 7, 800 00 4, 800 00 1, 000 00 750 00 480 00 3, 000 00 2, OOO 00 2, 01)0 00 5, 000 00 2, 500 00 3. 500 00 3, 000 00 2, .500 00 4, 01)0 00 2, 750 00 602, 008 90 408, 23!) 66 324, 000 00 3, OI'O 00 2, 000 00 6, 000 00 3,500 00 5, 000 00 2, 825 00 736 IMrEACHMENT OF THE PRESIDENT. Treasury Department, as per Official Register, 1SG5 — Continued. OfBcer. DiBbnrsing ap:ent of Coast Survey Atisistant and foreman of weiRhts and measures Director of mint at Pliiladelpliia Treasurer of mint at Philadelphia Melter and refiner of mint at Philadelphia Assayer of mint at Philadelphia '. Chief coiner of mint at Pliilailelphia Engraver of mint at Phihideliihia Superintendent of branch mint at San Francisco Treasurer of branch mint at San Francisco Assayer of branch mint at San Francisco Melter and refiner of branch mint at San Francisco. 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 of branch mint at Denver Assistant treasurer at Denver Superintendent of assay office at New York Assayer of assay office at New York Melter and retiner of assay office at New York Deputy treasurer of assay office at New York Accountant at assay office at New York Weigh clerk at assay office at New York Special agent Special agents Special agents Special agents Special agents Supervising inspectors of steamboats Local inspectors of steamboat hulls Local inspectors of steamboat boilers Captains revenue-cutter service First lieutenants revenue-cutter service Second lieutenants revenue-cutter service Third lieutenants revenue-cutter service Chief engineers revenue-cutter service First assistant engineers revenue-cutter service Second assistant engineers revenue-cutter service... Chief clerk of Light-House Board Physicians, &c., at marine hospitals Nuttiber. Annual salary. $2, 500 00 2, 500 OO 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 (10 3, 000 00 2, 500 OU 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, 40U 00 1,200 00 900 00 2, 000 00 1,023 Total annua salary. $2, 500 CO 2, .500 (0 3, 500 00 2, 0(M) 00 2.0(X) 00 2, 000 00 2, 000 00 2, 000 00 4, 500 00 4, 500 00 3.000 00 3,000 (M) 3,000 (10 2, 000 00 1, 8(J() 00 1, 8110 on 1,800 00 500 00 3, 500 00 3, OUO 00 3, 000 00 3,000 00 2, 500 00 2, 500 (H) 5. 000 00 21,000 00 5,000 00 52, 560 00 3, 650 00 1.3,500 00 23, 9(»0 00 23, 900 00 61,200 00 37, 8(^)0 00 19, 200 00 43,200 00 25,200 00 22.800 00 16, 200 00 2, 000 00 18,800 uO a, 036, 263 56 RECAPITUL.A.TION — TREASURY DEPART.MK.S'T. Total number of officers, 1,023. Total annual salary, §2,036,263 56. RECAPITULATION TOTAL. Department. Number of oflBcers. Total annual salary. Navy War State Interior Post Office Attorney General. Agricultural Education Treasury Grand totals ,720 ,033 394 548 722 'l46 1 1 ,023 , 171, 773 00 ,91)7,831 04 797, 600 00 457, 870 00 ,811,699 27 90, 700 00 3, 000 00 4, 000 00 , 036, 263 56 21,130,TJ6 87 Errors excepted Mr. Manager Butlkr. Mr. President, I liave the honor to offer now from the files of the Senate, in the first place, the message of Andrew Johnson nominat- ing Lieutenant General William T. Sherman to be General by brevet in the army of the United State.s on tlu; i;jlh day of February, 1SG8, Mr. EvARTS. Under what article is that ollered ] With what intent ? IMPEACHMENT OF THE PRESIDENT. 737 ^[r. l\[anager Butlkr. That is under the eleventh article and under the tenth. Jlr. EvAKTS. The tenth is the speeches. I^Ir. Manager Ik'TLHt!. I should say the ninth ; I beg pardon. Jlr. EvARTS. That is the Emory article. Mv. iSIanager Butler. That is the General I'^mory article. !Mr. EvARTS. Do you offer this on the ground that the conferring the brevet on General Sherman was with intent to obstrnct the reconstruction act ? Mr. ^[anager Butlbr. 1 offer it valeat quantum. I referred to it in the argu- ment I have already made. The statement which I made in the opening npou that question has been twice read — once, 1 believe, by yourself, and once, 1 am certain, by Mr. Curtis. Mr. EvARTS. It does not seem to us, Mr. Chief Justice and Senators, to be relevant, and it certainly is not rebutting. We liave offered no evidence bear- ing upon the only evidence you offered under the eleventh article, which was the telegrams between Governor Parsons and the President on the subject of reconstruction. We have offered no evidence on that subject, and we do not see that this appointment Mr. Manager Butlkr. They may be both passed upon at once to save time. I offer, also, the appointment by brevet of George H. Thomas to be Lieutenant General and then General by brevet, two brevets on the 21st, the same day that j\Ir. Stanton was removed. Mr. EvARTs. What was the last paper? Mr. Jlauager Bi:tler. The last paper was the appointment by brevet of iMajor General George H. Thomas first to be Lieutenant General by brevet and then General by brevet ; and that was done on the same day that Mr. Stanton was removed, the 21st of Eebruary. Mr. EvARTS. Mr. Chief Justice and Senators, it is very apparent that this does not rebut any evidence we have offered. It is, then, offered as evidence- in-chief, that the conferring of brevets on these two officers is in some v,':.}' witiiin the evil intents that are alleged in these articles. We submit that on that question there is nothing in this evidence that imports any such evil intent. Mr. Manager Butler. I only wish to say upon this that we do not under- stand that this case is to be tried upon the qaestiou of whether evidence is rebutting evidence or otherwise, because we understand that to-day the House of Hepresentatives may bring a new article of impeachment if they choose, and go on Avith it ; but we have a right to put in any evidence which would be com- petent at any stage of the cause anywhere. Mr. EvARTS rose. Mr. Manager Butler. Excuse me a moment. Mr. Evarts. I wish to ask a question. When does our right to give in evi- dence end ? Mr. Manager Butler. When you get through with competent and pertinent evidence, I suppose. Mr. Evarts. I supposed there was a different rule for us? Mr. Manager Butler. No, sir; that is the rule that I am claiming now, put- ting in competent and pertinent evidence, not a different rule. I beg you will not misunderstand me. In many of the States — I can instance the State of New Hampshire — I am sure the rule of rebutting evidence does not obtain in their courts at all. Each party calls such pertinent and competent evidence as he has up to the hour when he says he has got through from time to time ; and in some other of the States it is so applicable, and no injustice is done to any- body. The Chief Ju.stice. The Chief Justice will submit the question to the Sen- ftte. The honorable managers propose to put in evidence the nomination sent by the President to the Senate on the 13th of February, 18(jS. of Lieutenant General Sherman to be General by brevet, aud the nomination of M.yor General 47 I p 738 IMPEACHMENT OF THE PRESIDENT. George H. Thomas, pent to the Senate on the 21.-t of February, ISGS, to be Lieutenant General by l)revet and General by brevet. Mr. A\THO;\v called for the yeas and nays; and they were ordered. Mr. IIuWAKD. I a?k that the offer may be a«ain read. It is not understood. The Chikf Justice. The Chief Justice will stnte it. The ofler was not reduced to writing. It is very brief, and the Chief Justice will state it. Mr. How A no. I respectfully ask that the Chair will again announce it to the Senate. The CiilBF JrsTicr,. He Avas about to do so. The honorable managers pro- pose to put in evidence the nomination of Lieutenant General Sherman. to be General by brevet, sent to the Senate on the 13th of February, 1868; also, the nomination of Major General George H. Thomas to be Lieutenant General by brevet and to be General by brevet, sent to the Senate on the 21st of February, 1868. Senators, you who are of opinion that this evidence shall be received will, as your names are called, answer yea ; those of the contrary opinion, nay. The question being taken by yeas and nays, resulted — yeas, 14, nays 35; us follows : Yeas — Messrs. Antliony, Cole, Fessenden, Fowler, Grimes, Henderson, Morton, Eoss, Sumner, Tipton, Trumbull, Van Winkle, Willey, and Yates — 14. Navs — Messns. IJuckalew, Cameron, C'attell, Chandler, Conkling:, Conness, Corbett, Crag^in, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Frelinfi^huj'sen, Harlan, Hen- dricks, Howard, Howe, Johnson, McCreerv. Morg-an, Morrill of Elaine, Morrill of Vermont, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ramsev, Sherman, Sprague, Stewart. Thayer, Vickers, Williams, and Wilson — '.]'>. Not voting — Messrs. Bayard, Norton, Nye,' Saulsbury, and Wade — 5. So the Senate refused to receive the evidence offered. Mr. Manager Bltlkr. Mr. President, I have the honor to say that the case on the part of the managers is closed, and all witnesses who are here under the subpoena of the Senate, at the instance of the managers, may be discharged. The Chief- Justice. Docs the Chief Justice understand that the case oii the part of the President is closed ? Mr. EvARTS. We are able to make the same announcement as regards wit- nesses who are attending on the part of the defi-nce under subpoena ; and this announcement on both sides, we assume, precludes almost necessarily any attempt to proceed with evidence again. The Chief Justice. The honorable managers will please proceed with their argument. Mr. Ma\ager Boutwell. Mr. Chief Justice and Senators, it has fallen to me, upon the judgment of the managers, to make the first argument on the part of the House of Representatives in the close. It is very likely that I shall be obliged to occupy the largej." part of a day in presenting' to the honorable Senate the views which I shall feel it my duty to offer. Under these circumstances, I have to ask that the Senate will do me tlie favor to adjourn until to-morrow morning at the usual houi-, when I .«hall be prepared to proceed. Mr. JoH\S().\. Mr. Chief Justice, I move that the Senate, as a court of impeach- ment, adjourn until 11 o'clock to-morrow. Several Si;.\at()H8. Say 12 o'clock. The Chief Justice. The rule now fixes 11 as the hour of meeting. Jlr. EvAUTS. Mr. Chief Justice, may I be heard a moment 1 The Chief Justici;. On a motion to adjourn no debate is iu order. Mr. Johnson. I withdraw the motion. Ml-. EvAl'.TS. Of course I do not rise with the view of making the least objec- tion to the suggestion on the part of the honorable- manager, which seems to us to be entirely reasonable, but to couple v/ith it a statement to which 1 beg the attention of the court for a moment. Our learned associate, Mi: Stanbery, has, from the outset, been ndied upon by the President and by the associate counsel to make the final argument in this cause ; and there are many reasons, IMPEACHMENT OF THE TRESIDENT. 739 professional aiul others, wliy we should all wish that this purpose should he carried out. It has heen his misfortune, in the midst of this trial, and after it had proceeded for a fortnight, to he taken suddenly ill. The illness, of no great gravity, is yielding to the remedies prescribed and to the progress of time, so that he now occuj)ies his parlor, as we found him this morning. The summing. up of a cause of this M-eight in many aspects, regarding the testimony ?.nd the subject and the situation, is, of course, a labor of no ordinary magnitude, physi- cal and otherwise, and Mr. Stanbery is of the o])inion, in which we concur, that he will need an interval of two days, added to what in the course of the trial would probably bring him to his feet in the argument, to have the adequate strength for that purpose. It might have been left until the day on which he should have appeared, and then have the request made for a day or two's relief in this regard ; but it occurred to us to be fairer to the managers that the inter- val of repose should be interposed at a time when it would be useful and valua- ble to them also, as the proofs are not entirely printed in the proper form for reference, and the latter voluminous evidence on the subject of appointments and the routine of the practice of the government is such as to require considerable investigation in order to point out to the Senate the efficacy on the one side of, or the answer on the other to, the proofs. It is, therefore, our duty now to suggest, (coupling it with the suggestion of the managers, that until to morrow should be given for the propriety of the more agreeable introduction of the argu- ment on their part,) that we ask that you consider this statement which I have made to you, and see whether it is not better in all respects that the matter should now be disposed of. I think the managers will concur that this is the proper time to consider it and accommodate matters to the providential inter- ference with the leader of the President's counsel and his contideutial friend and adviser. ]\Ir. Johnson. What is the motion ? Mr. EvARTS. The suggestion is that an interval of two days should be given now, instead of waiting till Mr. Staubery shall come in ; and I understand the managers will agree it is better it should occur now than later. Mr. Yates. I move that the Senate adjourn until Wednesday. Mr. Manager Boutwell. Mr. President Mr. Yates. I withdraw the rnotion if the managers desire to be heard. Mr. Manager Boutwell. Mr. President, if it shall be the pleasure of the Senate to consider favorably the request made by the learned counsel for the respondent, which is a question of public duty on which I can express no opin- ion, I certainly should desire that the time to be granted should be granted at once. I may say that if I had consulted my own feelings exclusively I should have made the request for a day more of time for further examination of the record and more careful preparation than I have yet been able to make ; but under the circumstances of the trial I did not feel at liberty to ask that favor or considera- tion upon my own account. I have only now to say that if it is the judgment of the Senate that time should be granted to the learned counsel M'ho is to close for the respondent it would certainly be very desirable on my part that the time should be granted at once, and that we uv\y ail have the benefit of it in pre- paring Avhat we deem it proper to say. Mr. Evahts. One word, if I may be indulged. The honorable senators will also perceive that if Mr. Stanbeiy's resolution and (expectation should be disap- pointed, it is then a matter of some importance for us of the defence to supply his place as well as we may on an unexpected emergency, and a little time in that behalf also would be valuable to us. Mr. Johnson. Mr. Chief Justice, I move that the Senate, sitting as a court of impeachment, adjourn until Thurs'day morning. Several senators. Say Wednesday. 740 IMPEACHMENT OF THE PRESIDENT ]\rr. !Managor Logan. If the gentleman will witlidraw the motion for a moment, 1 desire to make a request of the Senate. ^Ir. J()ll.\SO.\. Certainly; or rather I would submit the motion in this form: that when the Senate, sitting as a court of impfachraout, adjourns to-day, it adjourn to meet at eleven o'clock on Wednesday morning. Mv. DooLlTTLE. I suggest twelve o'clock instead of eleven. [No, no.] The Chief Justfck. The rule now fixes eleven as the hour of meeting. 'Mv. Manager Logan. I merely desire to make a request. Is this the proper time to do it, sir? « The Chief Justice. It is. Mr. Manager Logan. Mr. President and Senators, I desire to make a request of the Senate before the adjournment, as doubtless that will be granted upon the statement of the honorable counsel for the President and the managers, as they both seem to desire this extension of time. I have not presumption enough to ask of the Senate permission to address them on the issues presented for their consideration, nor do I desire to do so ; but I ask that I may be permitted to tile to-day the printed argament which I have prepared, that it may become a part of the record, without taking the time of the Senate, inasmuch as the evi- dence on both sides, for the prosecution on the part of the people and for the respondent, has been closed. Mr. Stewaut. Mr. President, I move that leave be granted to the manager to file his argument. The Chief Justice. That involves a change of the rules, and it cannot be done if there is any objection. Mr. BucKALEW. I object. Mr. Johnson. May I ask the honorable manager whether the argument is now in print? Mr. Manager Logan. It is, and I am ready to file it at once, Mr. S TEWAUT. I make the motion that leave be granted, and that the mana- ger furnish a copy of his argument to the other side. The Chief Justice. The order cannot be made except by unanimous con- sent, as it involves a change of the rules. Is there unanimous consent? Mr. BucKALinv. I object. Mr. Wilson. I ask that the rule bearing on this matter be read. The Chief Justice. The Secretary will read the twenty-first rule. The chief clerk read as follows : XXI. Tlie case, on cacli side, shall be opened by one, person. The final arp^iiment on tho merits may be made by two persons on each side, (unless otherwise ordered by the Senate, upon application for that purpose,) and the av;■:■;>;«>!) r i fifif i mM^ ^i«^'^*i»j»j«j*;»v«.'«.'«j'>>>j'