A. I Q. And in a case where a great crime is committed, and when it is necessary to stop the further progress of the crime, that is not unusual. A. Where it was necessary to prevent a crime, I have done the same thing, in habeas corpus cases and in one replevin case, I think.

Q. Where it is a matter of consequence, do you do that? A. Yes, sir. chitar

Q. It is nothing unusual for you to do that in each case? A. It is unusual; I have done it.

By Mr. STANBERY-Have you been often called upon to do it? A. Only in extreme cases.

Mr. BUTLER-I have the honor to object to the warrant and affidavit of Mr. Stanton. I do not think that Mr. Stanton can make testimony against the President or for him by any affidavit he can put in any proceeding between him and Lorenzo Thomas. I do not think the warrant is relevant to this case in any form. The fact that Thomas was arrested can be shown, and that is all. The affidavit apon which he was arrested is certainly res inter alias, That is a matter between Thomas and the President, and this is between Thomas and Stanton; and in no view is it pertinent or relevant to this case, or competent in any form, so far as I am instructed.

Another Legal Discussion.

Mr. EVARTS Mr. Chief Justice, the arrest of General Thomas has been shown in the testimony, and they argue, I think, in their opening, the intention to use force to take possession of the War Office. We now propose to show what that arrest was in the form and substance by the authentic documents of it. through the 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 this opening by showing how it took place, and how the efforts were made in behalf of General Thomas, by habeas corpus, to force the question to a determination in the Supreme Court of the United States.

Mr. BUTLER-I understand, if this affidavit goes in at all, it is then evidence of all that is stated, if they have a right to put it in. alv

Mr. EVARTS-You have a right to your own conclusions from it.

Mr. BUTLER Not from the conclusions; but I think nothing more clearly shows that it cannot be evidence than that fact. Now this was not an attempt of the President to get this matter before the court; it was an attempt of Mr. Stanton to protect himself from violence which had been threatened before. This was made at night, if we may judge from the evidence of the threats made to Wilkeson and Burleigh, and the threats made at Willard's Hotel; being informed of it, he did not know at what hour this man might bring his masqueraders upon him, and thereupon he tried to protect himself. How that relieves the President from crime, because Stanton arrested Thomas, or Thomas arrested Stanton, is more than I can see. 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? Is it not res inter alias-acts done by other parties? We only adverted to ed to the arrest to show What effect it had upon his crime.

Mr. EVARTS-It has already been put in proof by General Thomas that he went to the court upon this arrest. He saw the President, and he told him of his arrest, and that the President immediately replied that that was as he wished it to be. The question in the court now. I propose to show that this is the question that was in the court, to wit, the question of the criminality of a person accused under this Civil Tenure act, and I then propose to sustain the answer of the President, and also the sincerity and substanee of this statement, already in evidence, that this proceeding, having been commenced, as it was, by Mr. Stanton against General Thomas, was immediately taken hold of as the speediest and most rapid mode through a habeas corpus, in which the President or General Thomas, acting in that behalf, would be the actor, in order to bring at once before 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 appealing to the Supreme Court of the United States then in session, from which at once there could have been obtained a determination of the question.

Mr. BUTLER Whenever that is proposed to be shown, propose to show that Thomas was discharged from arrest upon motion by his own counsel, and, therefore, the Senate will be traveling into the question of various facts taking place in another court. I have not yet heard any of the learned counsel say that this does not come within the rule of res inter alias facts done between other parties.

Mr. EVARTS-I did not think it necessary.

Mr. BUTLER-Perhaps that would be a good answer; but whether it is necessary or not, is it not so? Is there a lawyer anywhere that does not understand and does not know that proceedings between two other persons, after a crime was committed, were never yet brought into a case to show that the crime was not committed? Did he see that affidavit? Never. Did he know what was in it? No. All he knew was that this man was carried into court under a process. He never saw a paper, He did not know what was the evidence, but Thomas went and told him "They have arrested me." He said. "That's where I want it to be-in the courts."

This affidavit of Mr. Stanton is excellent reading. It shows the terror and alarm in this good District of Colum bia, when, at night, men well known to be men of conti nency and sobriety, representing important districts in Congress, saw it was their duty to call upon the Judges of the Supreme Court, to call the venerable Clerk of the Court, out at night to get a warrant and take immediate means to prevent the consummation of this crime. It shows the terror and alarm that the unauthorized, illegal and criminal acts of this respondent created. That is all in it. Undoubtedly that is all in the affidavit.trank

Undoubtedly all that can be shown; and then we have before the Senate this appeal to the laws by Mr. Stanton, which this respondent never asked either before or since although furnished with all the panoply of attack or defense in his Attorney-General, he never brought a writ of quo warranto or any process. All that might appear; we should be compelled to have it in, provided it does not open up into regions of unexplored, uncertain, diffuse, improper evidence upon collateral issues. If you are ready to go into it, I am, but I say it does not belong to this case, I think we can make quite as much of it as they can, but it is no portion of this case. It is not the act of the Presi dent; it has nothing to do with the President. The Presi dent never saw these papers; it is not evidence. What Stanton and Thomas did, they themselves must answer. Mr. STANBERY-Mr. Chief Justice and Senators There are two grounds upon which we ask the admission of this evidence. First of all, it is claimed by the managers from what is already in evidence-mark, that already in evidence of the declaration of the President-that he made the removal to bring the question of that law to the consid eration of the courts. That is already in evidence; but as to that the managers say, that is all a pretense-a subter fuge.

Mr. BUTLER-Where in evidence?

Mr. STANBERY-In the speech of the honorable manager who opened this case.

Mr. BUTLER-If you put my speech in evidence I have no objection.

Mr. STANBERY-And here the gentleman has repeated that this is all a pretense, 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 intent. Again upon his intention with regard to the occupation of that office by General Thomas, they have sought to prove that the intentions of the President were not to appeal to the law, but to use threats, intimidations and force; and now all the declarations of General Thomas as to this purpose of intimidation or force the Senate has admitted in evidence against the President, on the mere declarations of Thomas of his intentions to enter that office by force or intimidation, and they are to be considered as declarations of the President.

If the gentlemen think that was sought by the respondent, the prompt arrest of General Thomas the next morning was the only thing that prevented the accomplishment of the purpose that was in the mind of the President aud General Thomas. Who calls that a subterfuge? Now we wish to how by this proceeding, got up at midnight, as the learned manager says, in view of a great crime just committed, or about to be committed, got up under the most pressing necessity. with a judge, as we will show, summoned from his bed at an early hour on the morning of the 22d of February, as though it was an urgent and pressing necessity, either pretended or real on the part of Mr. Stanton to avoid the use of force and intimidation in his removal from that office. We shall show that when they had got him arrested they fixed the time of the trial of the great criminal for the next Wednesday-all this being done on Saturday: that when they got there they had got no criminal and the counsel of General Thomas say: "He is in custody-we surrender him-we do this for the purpose of getting a habeas corpus."

It was not until that was announced that they act. The Counsel for Mr. Stanton say, that this great criminal had been kept in bond for good behavior. We expressly consent not that he should give bonds for his good behavior, but that he should be absolutely discharged and go free: not bound over to keep the peace, but wholly discharged; and, as we shall show you, discharged for the very purpose of preventing the prompt action of the habeas corpus, that the case might be got immediately to the Supreme Court of the United States, the only body in which a decision could be reached. Senators, is not that admissible?

Mr. BUTLER-Mr. President, I do not mean to trouble the Senate with more than one or two statements. First, it is said that Mr. Thomas was discharged wholly. That depended upon the Chief Justice of that court. If we are going to try him by impeachment, wait until after we get through with this case. One trial at a time is sufficient, because he did his duty under the circumstances, and Mr. Stanton, nor you, nor anybody else, has any right to condemn the act of that judge until he is here to defend him

self, and the Chief Justice of the Supreme Court is amply able to do it.

Then there is another point which I wish you to take into consideration. "As to the claim that Thomas had be come a good citizen." I have not agreed to that, and I do not believe that anybody else has. He himself says that on the next morning he agreed to remain neutral until they took a drink together. That next morning he agreed to stop and take a drink and remain neutral. (Laughter.) Mr. STANBERY-Then Stanton took a drink with the "great criminal?"

Mr. BUTLER-He took a drink with the President's "tool," that's all. The thing was settled. The "poor old man" came and complained that he hadn't had anything to eat or drink, and in tender mercy, Mr. secretary Stanton gave him something to drink. He says from that hour be never had any idea of force. Now I want to call the attention of the Senate to another fact, and that is, that they did not tell him to keep the peace. He said he was not told to keep the peace. He said it was necessary for him to make that point, and he said that the judge told him, "This don't interfere in any way with your duties as Secretary of War." But there is still another point. This unconstitutional law has been on the statute books since a year ago last month, and the learned Attorney-General, who sits before me, has never put in a quo warranto.

Mr. STANBERY attempted to say he had prepared a quo warranto.

Mr. BUTLER-I have never heard of it, but it will be the first exhibition that was ever made before a court of the United States. Where is there a quo warranto filed in any court? Where is the proceedings taken under it? And I put it to him as a lawyer, did he ever take one? He is the only man in the United States that could file a quo warranto, and he knows it. He is the only man that could initiate this proceeding, and yet it was not done, and he comes and talks about putting in the quarrels of Mr. Stanton and General Thomas, which are res inter alias in this matter.

They have nothing more to do with this case than the fact which the President, with the excellent taste of his counsel, put in evidence against my objection that Mr. Stanton had, when this man was suffering from want of his breakfast, given him a drink. The offer of the affidavit, &c., was put in writing, and read by the Clerk, and the Chief Justice was understood to decide that it was admissible.

Mr. BUTLER.-Does your Henor understand that the affidavit is admitted?

The Chief Justice-Yes.

Mr. BUTLER I heard one Senator ask for the question. The Chief Justice inquired if any Senators asked for the question, and

Senator CONNESS replied in the affirmative.

The Chief Justice stated the question to be on the admission of the affidavit and warrant, and they were admitted by the following vote:

YEAS.-Messrs. Anthony, Buckalew, Cattell, Cole, Corbett, Cragin, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill (Me.), Morrill (Vt.), Morton, Norton, Patterson (N. H.), Patterson (Tenn.), Pomeroy, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, Willey, Williams, Yates-33.

NAYS. Messrs. Cameron, Chandler, Conkling, Conness, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye, Ramsey, Stewart, Thayer, Tipton, Wilson-17. The papers were then read in evidence.

Mr. STANBERY-Q. I see this is the Judge's warrant at Chambers? A. Yes, sir.

Q. Are you in the habit of keeping any records other than filing the papers or did you make any records further than filing the papers on that proceeding?

Witness was understood to reply in the negative. Q. Has this defendant been discharged? Mr. BUTLER-That appears from the record. Witness-The record shows that; the docket shows that the docket of the court; the recognizance of the court shows it.

Q. Do you make no record of those papers? A. No, sir; they are filed.

Q. Have you got your docket with you? A. No, sir; the subpoena did not require it.

Mr. STANBERY-(as the witness was leaving the stand.) Will you bring this docket that contains this evidence? A. Yes, sir.

Mr. BUTLER-Q. Will you not extend the record as far as you can, and bring up a certified copy of this case? A. Yes, sir.

Reverdy Johnson Puts a Question.

Sherman, Sumner, Trumbull, Van Winkle, Vickers, WI ley-20.

NAYS-Messrs. Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye. Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, Yates-22.

The Secretary read the question put by Senator Johnson? A. He stated to me that his purpose

Mr. BUTLER-Wait a moment; the question is whether he did state it, not what he said. Witness-He did.

Mr. STANBERY-What purpose did he state?
Mr. BUTLER-We object.

Mr. President-The counsel had dismissed this witness, The Chief Justice decided that it was competent to re call the witness.

Senator JOHNSON-I propose to add to the question:If he did, what did he state his purpose was?

Mr. BINGHAM.-Mr. President, we object. We ask the Senate to answer that. The last clause-what did the President say? is the very question upon which the Senate solemnly decided adversely. The last clause, now put to the witness by the honorable Senator from Maryland, is, What did the President say?-making the President's declarations evidence for himself. It was said by my as sociate, in the argument on Saturday, that if that method were pursued in the administration of justice. and the declarations of the accused were made evidence for himself at his pleasue, the administration of justice would be impossible.

Senator DAVIS-I rise to a question of order. It is that the learned manager has no right to object to question pronounced by a member of the court,

Mr. BINGHAM was proceeding to discuss the point, when he was interrupted by

The Chief Justice, who said that, while it was not com→ petent for the managers to object to a member of the court asking a question, it was, in his opinion, clearly com petent to object to a question when asked.

Mr. DRAKE inquired whether it was competent for a Senator to object to the question being put.

The Chief Justice thought not, but said that after it was put it must necessarily depend on the judgment of the court.

Mr. BINGHAM-Mr. President, I hope I may be pardoned for saying that my only purpose is to object to the question, not to object to the right of the honorable Senator from Maryland to offer the question. The point we raise before the Senate ir, that it is incompetent for the accused to make his own declarations evidence for himself, The Chief Justice-Senators: The Chief Justice has already said upon a former occasion that for the purpose of proof of 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 court for its proceedings. This is not an ordinary court, but it is a court composed largely of lawyers and gentlemen engaged in business transactions, who are quite competent to weigh the ques tions submitted to them. The Chief Justice thinks it in accordance with the rule which the Senate has adopted for themselves, and which he has adopted for his guidance Mr. BUTLER-Do I understand the Chief Justice to say that this is precisely the same question that was ruled upon last night?

The Chief Justice-The Chief Justice does not undertake to say that. What he does say is, that it is a question of the same general import, tending to show the intent of the President in this transaction. I wish, if there is any regular mode of doing so, to ascertain another point, and that is, whether the fact that this offer was made by the witness on the stand was first put in by the defense or the prosecution.

The Chief Justice-The Chief Justice will remind the Senate that the question is not debateable.

Mr. EVARTS-I may be permitted to state that it is put in by the defense

Mr. HOWE-I wish the Chief Justice to understand that it is not debating to ask a question. The Chief Justice-It may be.

Mr. HOWE-It may not be.

The question as modified was again read.

The Chief Justice submitted it to the Senate, and it was admitted by the following vote:

YEAS.-Messrs. Anthony, Bayard, Buckalew, Cole, Corbett, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, MoCreery, Morton, Norton, Patterson (Tenn.), Ross, Sher man, Sumner, Trumbull, Van Winkle, Vickers, Willey-26. NAYS.-Messrs. Cameron, Chandler, Cattell, Conkling, Conness, Cragin, Drake, Edmunds, Ferry, Harlan, How. ard, Howe, Morgan, Morrill (Me.), Morrill (Vt.), Nye, Patterson (N. H.), Pomeroy, Ramsey, Stewart, Tipton, Wil

The question having been put to the witness, General Sherman replied as follows:-The conversations were long and covered a great deal of ground, but I will endeavor to be as precise upon the point as possible. The President stated to me that the relations which had grown up be tween the Secretary of War (Mr. Stanton) and himself

Mr. BUTLER-I must again interpose an objection. The question is for the witness simply to state what the Presi dent said his purpose was, and not to introduce his whole declarations. I pray that the point may be submiited to the Senate whether we will have the whole of the long conversation between the President and the witness, or whether we shall have nothing but the purpose expressed by the President?

Witness-I intended to be very precise in my statement of the conversation, but it appeared to me necessary to

state what I began to state-the President told me that the relations between himself and Mr. Stanton and between Mr. Stanton and other members of the Cabinet were such that he could not execute the duties of the office which he filled as President of the United States without making nominations, ad interim, for the office of Secretary of War, and that he had the right under the law, and that his purpose was to have the office administered in the inte rests of the army and of the country, and he offered me the office in that view; he did not state to me then that is purpose was to bring it into the courts directly, but for the purpose of having the office administered properly in the interests of the country and of the whole country. (Sensation in the court). I asked him why the lawyers Could not make the case? I did not wish to be brought, as an officer of the army, into the controversy.

Senator CONKLING-Please repeat that last answer, General.

Witness-I asked him why lawyers could not make a ce, and not bring me as an officer into the controversy; his answer was that it was found impossible, or that a case could not be made up, but, said he, "If we could bring the case into the courts it would not stand for an hour."

Mr. STANBERY-Have you answered as to both occasions?

Witness-The conversation was very long, and covered a good deal of ground.

Mr. BUTLER-I object to this examination being renewed by the counsel for the President, whatever may be the pretense under which it is renewed. I hold with due order that this cannot be allowed. See how it is attempted. Counsel had dismissed the witness. He was gone, and was was brought back at the request of one of the judges.

Mr. STANBERY-I must interrupt the learned gentleman to say that we did not dismiss the witness. On the con trary both sides asked to retain him, the learned manager (Mr. Butler) saying at the time that he wanted to give him a private examination. (Laughter.)

Mr. BUTLER-I must deny that. I want no private examination. I say the witness was dismissed from the stand, and that he was called back by one of the judges. It is not in any court wherein I ever practiced. allowed, after the question is put by the judge, for the counsel on either side to resume the examination of the witness after having dismissed him.

Senator JOHNSON asked for the reading of the ques tions as proposed by himself, and they were read by the Clerk.

The Chief Justice-Nothing is more usual in courts of Justice than to recall witnesses for further examination, especially at the instance of any member of the court. It is frequently done at the instance of counsel. It is, how. ever, one of those questiona properly within the discretion of the court. If the Senate desire I shall put the question to the Senate whether the witness shall be further examined.

Mr. EVARTS-May we be heard upon the question?
The Chief Justice-Certainly.

Mr. EVARTS-The question Mr. Chief Justice and Senators, whether a witness may be recalled, is always a question within the discretion of the court, and it is alwaye allowed, unless there be suspicion of bad faith, or unless there be special circumstances where collusion is suspected. Courts frequently may lay down a rule that neither party shall call a witness who has been once dismissed from the stand, and of course we will obey whatever rule the Senate may adopt in this case, but we are not aware that anything has occurred showing a necessity for the adoption of such a rule.

Mr. BUTLER-When the witness was on the stand on Saturday, this question was asked of him:-"At that interview what conversation took place between the President and you in relation to the removal of Mr. Stanton?" That question was objected to, and after argument the Senate solemnly decided that it should not be put. That was exactly the same question as this. Then other proceedings were had, and after considerable delay the counsel for the President got up and asked permission to recall this witness this morning. The Senate gave that permission. This morning they recalled the witness. and put to him such questions as they pleased. Then the witness was sent away, and then one of the judges desired to put a question to satisfy his own mind. Of course he was not acting as counsel for the President; that cannot be supposed.

Benator JOHNSON, rising-What does the honorable manager mean?

Mr. BUTLER-I mean precisely what I say, that it cannot be supposed that the Senator was acting for the President.

Senator JOHNSON-Mr. Chief Justice, if the honorable manager means to impute that in anything I have done in this trial I have been acting as counsel, or in the spirit of counsel, he does not know the man of whom he speaks. I am here to discharge a duty, and that duty I purpose to discharge. I know the law as well as he does.

Mr. BUTLER-Again I repeat, so that my language may not be misunderstood, that it cannot be supposed that he was acting as counsel for the President. Having put his question to satisfy his mind upon something which he wanted to know, how can it be that that opens the case so as to allow the President's counsel to go on to a new examination? How do we know that he is not acting as counsel for the President, and that there is not some understanding between them, which I do not charge? How can the President's counsel know what satisfied the Senator's mind? He recalls a witness for the purpose of satisfying his own mind.

I agree that it is common to recall witnesses for some

thing overlooked or forgotten, but I have never known that, where a member of the court wants to satisfy him self by putting some question that opens up the case to the counsel on the other side, who puts other questions. The court is allowed to put questions, because a judge may want to satisfy his mind on a particular point; but having satisfied himself on that particular point, there is an end of the matter, and it does not open the case. I trust that I have answered the honorable Senator from Maryland that I make no imputation on him, but am putting it right the other way.

Senator JOHNSON-I am satisfied. Mr. Chief Justice, rise to say that I did not know that the counsel proposed to ask any question of the witness, and I agree with the honorable manager that they have no right to do any such thing. (Sensation in the court.)

Mr. BINGHAM-1 desire, on behalf of the managers, to say that there shall be no possible misunderstanding, to disclaim once for all that there was no intent by my asso ciate who has just taken his seat, or any intent by the managers at any time, or in any way to question the right and the entire propriety of Senators calling on any wit ness, and putting any question which they may see fit. We impute no improper motive to any Senator in doing so, but recognize his perfect right to do so, and the entire pro priety of it.

Mr. EVARTS-A moment's consideration, I think, will satisfy the Senate and the Chief Justice that the question is not precisely as to the right to recall a witness, but as to whether a witness having been recalled to answer the question of one of the judges, the counsel on the other side is obliged to leave that portion of the evidence incomplete, Some evidence might be brought out, which, as it stood noted, might be prejudicial to one side or the other, and certainly it would be competent under the ordinary rules of examination, that the counsel should be permitted to place the matter before the court within the proper rules of evidence.

Reverdy Johnson's Services.

Mr. STANBERY-The honorable Senator from Mary land having put his question to the witness, a new door has been opened which was closed upon us before. New evidence has been gone into which was a concealed book to us, and about which we could neither examine or cross-examine. It was closed to us by a decision of the court on Saturday, but it is now opened to us by the ques tion of the Senator. Now, is it possible, that we must take an answer for better for worse to a question which we did not put. If in that answer the matter had been condemnatory to the President; if the answer had been that the President told the witness expressly that he in tended to violate the law; that he was acting in bad faith; that he meant to use force, are we to be told that because the fact was brought out by a Senator and not by our selves, we cannot put one question to elicit the whole truth?

This is not testimony of our seeking. Suppose it has been brought out by the Senator. Is the Secretary of War sacred against the pursuit of the true and sacred right of examination? Does the doctrine of "estoppel" come in here, that whenever a question is answered on the prerogative of a Senator we must take the answer without any opportunity of testing it further? If so, then we are estopped, not by our act, not by the testimony which we called out ourself, but by the act of another, and we are shut out from the truth because a Senator has chosen to put a question. We hold that the door has been opened, that new testi mony has been introduced into the case, and that we have a right to cross-examine the witness to explain the testi mony, to controvert it, if we can, to impeach the very witness who testifies to it, if we can. We are entitled to use every weapon which a defendant has put into his hands. Mr. BINGHAM-Although the Senate cannot fail to have observed the extraordinary remarks which have just fallen from the lips of the honorable counsel for the Pres dent, it is perfectly apparent to intelligent men, whether on the floor of the Senate or in those galleries, that the counsel for the Presidont have attempted to obtain, through this witness, the mere naked declarations of the accused to rebut the legal presumption of his guilt, arising from his having done an unlawful act.

I am not surprised at the feeling with which the honor) able gentleman has discussed this question. If I heard aright the testimony which fell from the witness, it is tes timony which utterly disappointed 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 it was said by the President that it was impossible to make up a case by which to ap peal to the courts,"

These declarations of the President, standing in due form, yet not satisfactory to the counsel, are brought up. to be sure, on a question from the honorable Senator from Maryland; but there is no satisfaction to the counsel, and now they tell the Senate that they have a right to cross examine. To cross-examine whom? To cross-exame their own witnesses. For what purpose? In search of the truth, they say. Well, it is in pursuit of the truth under difficul ties. (Laughter.) The witness has already sworn to mat ters of fact. That shows the naked falsity of the defense interposed here by the President-that his only purpose in violating the law was to test the validity of the law in the courts. Why did he not 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 by telling this witness that a case could not be made up. The learned gentleman who

as just taken his seat is too familiar with the law of the country, too familiar with the able adjudications in this very case in the Supreme Court, to venture to indorse for a moment these utterances of his client made to the Lieutenant-General, that it was impossible to make up a CABO. I staud here to assert what the learned gentleman knows right well, that all that was needful to make up a case was for the President of the United States to do what he did do in the first instance, issue an order directing Mr. Stanton to Surrender the office of Secretary of War to Lorenzo Thomas, to surrender all the records and property of the office to him, and on the Secretary of War's refusal to obey that order, to exercise the authority which is yosted in the President alone, through his AttorneyGeneral, who now appears as his attorney in the trial in the defense in this case, and to issue out this writ of quo arranto.

That is the law which we undertake to say is settled in the case of Wallace, 5 Wheaton, the opinions of the Court boing delivered by Chief Justice Marshall, and no member of the court dissenting. It was declared by the Chief Justice as the opinion of the court that a writ quo warranto could not be maintained except at the instance of government. That power, therefore, was vested in the AttorneyGeneral. Let the President's counsel in some other way than by this declaration, obtain what is sought to be reached by cross-examination of their own witness. But, Senators, there is something more than that in this case, and I desire simply to refer to it here in passing.

The question which arises here in argument now is, in substance and in fact, whether having violated the Constition and laws of the United States in the manner shown here. They cannot at last strip the people of the power which they retain to themselves by impeachment, to hold such malefactors to answer before the Senate of the United States, to the exclusion of the interposition of every tribunal of justice on God's footstool. What has this question to do with the final decision in this case. I say that if Your Supreme Court was sitting to-day in judgment on this question it would have no influence over the action of this Senate. The question belongs to the Senate excluively. The words of the Constitution are that "the Senate shall have sole power to try impeachments."

The sole or only power to try impeachments includes the power to determine the law and the facts arising in the case. It is in vain that the decision of the Supreme Court, or of the Circuit Courts, or of the District Court, or of any other court outside of this high tribunal, is invoked for the decision of any question arising between all the people and their guilty President. We protest against the speech that has been made here; we protest, also, against the attempt to cross-examine this witness to get rid of the matter already stated so truthfully by the witness, which clearly makes against their client, strips him naked for the avenging hands of justice to reach him without let or hindrance. Mr. EVARTS-Mr. Chief Justice and Senators, I cannot consent to leave matters so misrepresented. My learned associate, arguing on a hypothetical case, asked whether, If evidence elicited on the question of a judge should be injurious to a party, the party would be restricted from Cross-examination. It had not the remotest application te, and as must have been apparent to every Senator, was not connected in the least with the evidence given.

The evidence given is agreeable to the managers-is extremely satisfactory to us. On inquiry of the President by the Lieutenant-General, whether lawyers could not make up a case without an ad interim appointment, the President said it could not be done; but that when there was an ad interim appointment the case could not stand half an hour.

Mr. BINGHAM-I desire in response to remark very briefly that instead of the counsel for the President bettering his client's case, he has made it worse by the attempt to explain the positions of the President to the witness, as to its being impossible to make up a case without an ad interim appointment. But how does the case stand? Has not the President made an ad interim appointment three months before this conversation with the LieutenantGeneral? Has he not made an ad interim appointment of General Grant in August, 1867? "Ah!" say the gentlemen, "he only suspended Mr. Stanton then under the Tenure of Office act, and therefore, the question could not be very well raised." I have no doubt that that will be the answer of the counsel, and it is all the answer they caa make.

But, gentlemen, Senators, how does such an answer put in here by the President, that he did not make that ispension under the Tenure of Office act, but under the ConEtitution of the United States, and by virtue of the power vested in him by that Constitution? He cannot play fast and loose in that way in the presence of the Senate, and of the people of the country. "Why did he not sue out his writ of quo warranto, in August last, when he made his appointment of Secretary of War ad interim?

Why did he not go into the courts forestalling the power of the people to try him by impeachment for violation of law, for this unlawful act, which by the law of every country where the common law obtains, carries the crimi nal intent with it and on its face, which he cannot drive trom the records by any false statement, nor swear from the record in any shape or form by any mere declarations of his own. Now one word more and I have done with this matter.

He tells General Thomas. They got that evidence in, and now they want to contradict that evidence too. That after Mr. Stanton refused to obey General Thomas' orders, and after he had ordered Thomas to go to his own place. and Thomas refused to obey his orders, he tells Thomas, I say, not that he was going into the courts; not that he

should apply to the Attorney-General for a quo warranto. There was no intimation of that sort, but there was a de claration of the accused to Lorenzo Thomas on the night of the 21st of February, after he had committed this crime against the laws and the Constitution of his country, that Thomas should go and take possession of his office and dis charge his functions as Secretary of War al interim.

Senator DAVIS inquired of the Chief Justice whether the questions proposed by Senator Johnson had been fully answered,

The Chief Justice said it was impossible for him to reply to that question. The witness only could reply to that. Mr. DAVIS asked that the questions of Senator Johnson be read.

(They were accordingly read).

The Chief Justice ruled only the objection of the question proposed by Mr. Stanbery, that it was not a matter fairly within the discretion of the court, but it was usual under such circumstances to allow counsel to continue the inquiry to the same subject matter.

The questions and answers were read by the reporter, and then Mr. Stanbery's question was put to the witness, as follows:

"Have you answered as to both occasions?"

Witness-The question first asked me seemed to restrict me so closely to the purpose that I endeavored to confine myself to that point alone. The first day, or the first in terview in which the President offered me the appointment ad interim; he confined himself to general terms, and I gave him no definite answer. The second interview, on the afternoon of the 30th, not the 31st as the question puts it, was the interview during which he made the point which I have testified to, and in speaking or referring to the constitution ality of the bill known as the Tenure of Office act; it was the constitutionality of that bill which he seemed desirous of having decided when he said, "If it could be brought before the Supreme Court pro perly, it would not stand half an hour" I said, that if Mr. Stanton would simply resign, although it was against my interest, against my desire and against my personal wishes and 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, "supposing Mr. Stanton will not yield?" he answered, "Oh, he will make no opposition. You present the order and he will retire" I expressed my doubt, and he remarked, "I know him better than you do: he is cowardly" (laughter in court); I then begged to be excused from an answer; I gave the subject more reflection, and gave him my final answer in writing; I think that letter, if you insist on knowing my views, should come in evi dence, and not parole testimony taken of it.

But my reasons for declining the office were mostly personal in their nature.

Senator HENDERSON submitted in writing, the following question:-Did the President, on either of the occagions alluded to, express to you a conviction, resolution or determination to remove Mr. Stanton from his office?

Witness-If by removal by force, he never conveyed to my mind such an impression; but he did most unmis takably say that he could have no more intercourse with him on the relations of President and Secretary of War. Senator HOWARD proposed the following question in writing:-You say the President spoke of force. What did he say about force?

A. I inquired, "supposing Mr. Stanton does not yield, what then was to be done?" "Oh. said he, there is no necessity of considering that question; on the presentation of an order he will retire."

Senator HOWARD-Is that a full answer to the question?

Witness-I think it is.

Senator HENDERSON proposed the following question in writing: Did you give any opinion or advice to the President on either of these occasions in reference to the legality or principle of an ad interim appointment, and if so, what advice did you give, or what opinions did you express to him?

Mr. BINGHAM-That we must object to.

Mr. BUTLER That question has been overruled once to-day.

The Chief Justice put the question to the Senate and the Senate refused to admit it.

Mr. STANBERY stated that he had no further question to ask the witness.

Mr. BUTLER remarked that he did not know that the counsel for the President had anything to do with the examination.

The Chief Justice asked the managers whether they do sired to cross-examine the witness?

Mr. BINGHAM said they did not at present desire to ask him any questions, but they would probable call him to

morrow.

General Sherman remarked, I am summoned before your committee to-morrow.

Mr. EVARTS insisted that the cross-examination should procoed before the witness was allowed to leave the stand. Mr. BINGHAM said, we do not propose to cross-examine him at present.

Mr. EVARTS insisted that the cross-examination should proceed.

Mr. BINGHAM remarked that the counsel for the Presi dent had asked on Saturday for leave to recall the witness, and that the managers made no objection. It was for the Senate to determine whether the managers might call him to-morrow.

Mr. EVARTS said, we have no desire to be restrictive in

Mr. STANBERY asked the witness to read from his books the records of the case of the United States vs. Lorenzo Thomas.

Mr. BUTLER objected that the docket entry of a court until the record is made up, is nothing more than the minutes from which the record is to be extended, and is not evidence.

The Chief Justice asked the managers whether they objected?

Mr. BUTLER-I have objected.

The Chief Justice directed the question to be educed to writing.

Being reduced to writing it was read as follows:-Have you got the docket entries as to the disposition of the case of the United States vs. Lorenzo Thomas; if so, will you produce and read them?

The Chief Justice-The Chief Justice thinks that this is a part of the same transaction. He will put the question to the Senate if any one desires it.

No vote having been called for, the Chief Justice directed the witness to answer the question.

The witness handed the record to the reading clerk, who read as follows:

No. 5711. United States vs. Lorenzo Thomas, Warrant for his arrest issued by Hon, Chief Justice Cartter, on the oath of E. M. Stanton. to answer a charge of high misdemeanor, in that he did unlawfully accept an appointment to the office of Secretary of War ad interim. Warrant served by the Marshal; recognizance for his appearance on Monday, the 26th inst.; discharged by Chief Justice Cartter on motion of defendant's counsel,

The witness was not cross-examined.

Senator JOHNSON moved that the court do now adjourn.

Senator HENDERSON called for the yeas and nays, but they were not ordered,

The question was taken by division, and the motion was carried by 24 to 18, so the court, at quarter of five o'clock adjourned, and the Senate immediately after adjourned.

PROCEEDINGS OF TUESDAY, APRIL 14.

The court was opened in due form. On motion, the reading of the journal was dispensed with.

Mr. STANBERY was absent at the opening. Mr. SUMNER offered and sent to the Chair the following order:—

Arguments of Counsel.

Ordered, That in answer to the motion of the managers in reference to the limiting of the final argument, unless otherwise ordered, such other managers and counsel as choose may print and tile their remarks at any time on the closing argument.

The Chief Justice-If there be no objection, it will be so ordered.

Mr. CONNESS-I object, Mr. President.

Mr. SUMNER-I would respectfully ask under what rule such objection can be made?

The Chief Justice replied that on several occasions he had decided the rules of the Senate to be the rules of the court as far as applicable.

Mr. SUMNER-Of course, it is not for me to argue the question, but I beg leave to remind the chair of the rule under which this order was made. The Chief Justice-It will lie over.

To the Counsel-The counsel for the President will proceed with the defense.

Illness of Mr. Stanbery.

Mr. EVARTS rose and said it was the misfortune of the President's counsel toe obliged to state to the court that since the adjournment yesterday Mr. Stanbery had been seized with an illness which prevented his attendance this morning. He (Mr. Evarts) had geen Mr. Stanbery this morning, and had learned that in the opinion of the physician he would undoubtedly be able to resume his duties within forty-eight hours.

There might be some hope that he could not do so to-morrow. In view of the suddenness of the occur rence and of their arrangements in regard to proofs, it would be difficult and almost impossible with any propriety, with proper attention to the case, to proceed to-day, and they supposed that an indulgence at least for to-day would lessen the chances of longer procrastination. The Senate would bear in mind that much of their proposed evidence was within the perBonal knowledge of Mr. Stanbery, and not within that of his associates. It was, of course, unpleasant to them to introduce these personal considerations, bnt in their best judgment it was necessary to submit the motion to the discretion of the Senate, whether the indulgence should be limited to this day or extended to the time necessary for the restoration of Mr. Stanbery, whom he had seen last evening, and supposed that he would be able to go on this morning as usual, as had Mr. Stanbery, and had only learned this morning that Mr. Stanbery would be confined by direction of his physician.

Mr. DRAKE sent the following to the Chair, and was read:-Cannot this day be occupied by the counsel for the respondent in giving in documentary evidence?

Mr. EVARTS-It cannot, as we understand the na ture and condition of the proofs.

Adjournment until To-day.

On motion of Mr. HOWE, the Senate, sitting a court, adjourned until to-morrow at twelve o'clock, Messrs. Sumner and Pomeroy only voting nay,

PROCEEDINGS OF WEDNESDAY, APRIL 15.

The court was opened in due form, and the managers and members of the House were announced and took their places.

Messrs. Stevens and Williams were absent at the opening, but appeared shortly afterward. Mr. Stanbery was also absent.

The Managers' Speeches.

After the journal was read,

The Chief Justice stated the question to be on the order of Senator Sumner, submitted yesterday, which was read, as follows:

Ordered, That in answer to the motion of the managers, under the rule limiting the argument on a side unless otherwise ordered, such other managers and counsel for the Presidentt as choose may print and file arguments at any time before the closing argument on the part of the managers.

Senator EDMUNDS-I move to amend the order s it will read, "may print and file arguments at any time before the argument of the opening manager should be concluded, in order that the counsel for the defense mny see it and reply to it."

Senator SUMNER-I have no objection to that.
The order as amended was read.

Mr. EVARTS-Mr. Chief Justice, may I be allowed to ask a question? The amendment offered and aocepted places, I suppose, the proper restrictions upon the arguments to be filed on the part of the managers? Several Senators-We cannot hear.

Mr. EVARTS, in a louder tone--The restriction proposed to be placed on this liberty by the amend ment puts the matter on a proper basis, I suppose, as regards the printed briefs, that may be put in on the part of the managers; that is, that they shall be filed before we make our reply. On our part, it would be proper that we should have the opportunity to file makes his reply, so we may have an opportunity of the brief at any time before the closing manager replying in our brief to that of the managers.

Mr. BINGHAM-Mr. President:-I desire to say that it would seem, if the order be made as it is sug gested, that additional arguments made by the coun sel in behalf of the President need not be filled till the close of the arguments made orally to the Senate, the managers on behalf of the people would have no op