the presiding officer of the Senate shall direct all the forms of proceedings when the Senate is sitting for the purpose of trying an impeachment, and all forms during the trial, not otherwise especially provided for; and the presiding officer, on the trial, may rule on all questions of evidence and on incidental questions, which decision will stand as the judgment of 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. BUTLER intimated that the managers desired to retire for consultation.

Senator TRUMBULL said that unless the managers desired the Senate to continue in session, he would now move an adjournment.

The managers intimated that they did not. Senator TRUMBULL then made the motion for adjournment to twelve o'clock to-morrow, which was carried.

The Chief Justice vacated the Chair, and the Senate having resumed its legislative session adjourned at twenty minutes past six.

The Senate Consultation.

When the Senate retired from their Chamber this afternoon, Mr. Henderson moved to postpone the pending question on appeals, with a view to take up the rules. This was agreed to by the following vote:YEAS-Messrs. Anthony, Bayard, Buckalew, Cameron, Cattell, Cole, Corbett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen Henderson, Hendricks, Johnson. McCreery, Morrill (Vt.). Norton, Patterson (N. H.), Patterson (Tenn.), Pomeroy, Ross, Sanlsbury, Sprague, Trumbull, Van Winkle, Vickers, Willey and Williams-32.

NAYS. Messrs. Chandler, Conkling, Conness, Drake. Ferry, Howard, Howe, Morgan, Morrill (Me.), Morton, Nye, Ramsey, Sherman, Stewart, Sumner, Thayer, Tipton and Wilson-18.

Mr. HENDERSON then moved amendments to the seventh rule, when a motion was made and disagreed to to strike out from the same the words which provide that the ruliugs on questions of evidence and incidental questions shall stand as the judgment of the Senate.

Mr. SUMNER offered an amendment to Mr. Henderson's proposition, as follows:

That the Chief Justice, presiding in the Senate, in 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.

This was rejected by the following vote:Yeas.-Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Howard, Morgan, Morrill (Me.), Morton, Nye, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams and Wilson-22. Nays.-Messrs. Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill (Vt.), Norton, Patterson (N.H.), Patterson (Tenn.) Ross, Sherman, Sprague, Van Winkle, Vickers and Willey-26.

Mr. Drake moved an amendment to Mr. Henderson's proposition, as follows:-"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 therein, but that all such questions should be submitted to and decided by the Senate. This was disagreed to by the foliowing vote:

Yeas.-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Drake, Ferry, Howard, Howe, Morgan, Morrill (Me.), Morton, Nyc, Ramsey, Stewart, Sumner, Thayer, Tipton and Wilson-20.

Nays.-Messrs. Anthony, Bayard, Buckalew, Corbett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Johnson, McCreery, Morrill (Vt.), Morton, Patterson (N. H.), Patterson (Tenn.), Pomeroy, Ross, Saulsbury, Sherman, Van Winkle, Vickers, Willey-30.

Mr. SHERMAN submitted the following, which was rejected by a vote of 25 to 25:

"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."

Finally, the Senators agreed to Mr. Henderson's amendment to the seventh rule, as reported at the close of the trial report.

The following was the final vote:

YEAS-Messrs. Anthony, Bayard, Buckalew, Cameron, Corbett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, JohnBon, McCreery, Morrill (Vt.), Norton, Patterson (N. H.), Patterson (Tenn.), Pomeroy, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, Willey and Williams-31.

NAYS-Messrs. Cattell, Chandler, Cole, Conkling, Drake Ferry, Howard, Howe, Morgan, Morrill (Mc.), Norton, Nye, Ramsey, Stewart, Sumner, Thayer, Tipton and Wilson-13.

PROCEEDINGS OF WEDNESDAY, APRIL 1.

The Opening Prayer.

The Senate met at 12 o'clock. Prayer was offered by Rev. James J. Kane, of Brooklyn, N. Y. He asked a blessing upon this great court, assembled for the trial of the most momentous question which has arisen during the existence of the nation; the records of the past show that a like crisis in other nations has been followed by war and bloodshed. He prayed that God would avert the danger. Many in our borders sought a pretext to make the sword leap from the scabbard and make it drank with the blood of their fellows. He asked that God would turn to naught the counsel of the ungodly and the craftiness of the enemies of our country; to remember the blood that has already been shed, as well of our martyred President as of those who died in the field or hospital for the country.

He especially prayed that the representatives of the people should be endowed with wisdom and discretion; that the Executive be guided by wisdom, whether he remain President or not, and that all his acts be marked by prudence and moderation; that his constitutional advisers be also guided by the spirit of wisdom, as well as all the rest of those in authority over us; that the nation may be prepared to receive the decision of the great event and abide by it; that our especial blessing may rest upon those who have the management of this trial, so that the result may redound to the honor and glory of God.

Arrival of the Managers.

At ten minutes past twelve o'clock the Sergeant-atArms of the Senate announced the managers of the impeachment on the part of the House of Representatives.

All the managers, except Mr. Stevens, entered and took seats at the tables on the left side of the area, in front of the Secretary's desk. Subsequently Mr. Stevens comes in and takes his seat. The counsel for the President are already seated at the right hand side. The Sergeant-at-arms then announced the House of Representatives of the United States. The members of the House enter in pairs, headed by Mr. Washburne (Ill.), Chairman of the Committee of the Whole, attended by Mr. McPherson, Clerk, and Mr. Buxton, Assistant Doorkeeper, and closely followed by the Speaker, Mr. Dawes, Mr. Covode and Mr. Windom. These take their seats on chairs in the front aisle. The members generally file off to the right and left, and take the chairs that are placed on the eastern and western angles.

The Journal,

The Secretary then proceeded to read the journal of the proceedings yesterday. The reading occupied a quarter of an hour.

Senator SUMNER (Mass.) then rose and said, Mr. President, I send to the Chair an order in the nature of a correction of the journal.

The Chief Justice ordered the paper to be read.
The Clerk read it, as follows:-

It appearing, on the reading of the journal of yesterday, that on a question where the Senate was equally divided, the Chief Justice presiding on the trial of the President gave the casting vote, it is hereby declared that, in the judgment of the Senate, such vote was without authority of the Constitution of the United States.

On that question Senator SUMNER asked for the yeas and nays.

The vote was taken, and it resulted-Yeas 21, nays 27, as follows:

YEAS.-Messrs. Cameron, Chandler, Cole, Conkling, Connces, Cragin, Drake, Howard, Howe, Morgan, Morrill (Me.), Morton, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams, and Wilson-21.

NAYS-Messrs. Anthony. Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill (Vt.), Norton, Patterson (N. H.), Patterson (Tenn.), Ross, Sherman, Sprague, Van Winkle, Vickers, and Willey-27.

So the order was rejected.

The Contested Interrogatory.

The Secretary then read the following form of question proposed by Mr. Butler, one of the managers, to the witness, W. A. Burleigh, who was on the stand yesterday: "You said yesterday, in answer to my question, that you had a conversation with General Lorenzo Thomas on the evening of the 21st of February last. State if he said anything as to means by which he intended to obtain, or was directed by the President to obtain possession of the War Department. State all that he said as nearly as you can."

Mr. STANBERY, counsel for the President, objected to the question.

The Chief Justice was about to submit to the Senate, when

Senator FRELINGHUYSEN submitted the following question in writing to the managers:-"Do the managers intend to connect this conversation between the witness and General Thomas with the respond

ents ?"

Mr. BUTLER, one of the manageas, rose and said that if that question was to be argued before the Senate the managers would endeavor to answer it.

On the question being repeated by the Chief Justice, Mr. BUTLER rose and said:-If the question is to -be argued on the one side the other will endeavor to answer the question submitted by the Senator from New Jersey.

In the course of the argument Senator TRUMBULL called for the reading of the question to the witness.

After it was read the Chief Justice asked whether the managers proposed to answer the question of the Senator from New Jersey.

Mr. BUTLER again rose. If there is to be no argument I will answer the question proposed, but 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. I can say that we do propose to connect the respondent with the question.

Argument of Mr. Stanbery.

The Chief Justice was about to put the question, when Mr. STANBERY rose to argue it. He said:Mr. Chief Justice and Senators. We have at length reached the domain of law, where we have to argue no longer questions of mere form and modes of procedure, but questions that are proper to be argued by lawyers and to be decided by a court.

The question now, Mr. Chief Justice and Senators, is whether any foundation has been laid, either in the articles themselves or in any testimony as yet given, for using any of the declarations of General Thomas in evidence against the President. General Thomas is not on trial. It is the President and the President alone that is on trial, and the testimony to be offered must be testimony which is binding on him. It is agreed that the President was not present on the evening of the 21st of February, when General Thomas made those declarations. They were made in the absence of the President.. He had no opportunity of hearing them or of contradicting them. If they are to be used against him they must be made by some person speaking for him, by authority. First of all, what foundation is there for the declarations of Gen. Thomas to be given in evidence, as to what he intended to do, or what the President had authorized him to do?

It will be seen, that by the first article the offense charged against the President is, that he issued a written order to Mr. Stanton for his removal, adding that General Thomas was authorized to receive the transfer of the books, records, papers and property of the department. Now the offense laid in that article is not as to anything that was done under the order; not as to any animus by which it was issued; but the order in itself is simply the gravamen of the offense. So much for the first article. Now, what is the second? It is that on the same day, the 21st 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 offense intended to violate a certain act. Then we come to the fourth article. Senators will observe that in the three first articles the offense charged is issuing certain orders in violation either of the Constitution or the act known as the Tenure of Office act, but in the fourth article the managers of the House proceed to charge us with an entirely new offense against a totally

different statute, and that is a conspiracy between General Thomas and the President, and other persons unknown; by force, in one article, and by intimidation in another, to endeavor to 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 31, 1861. These are the only eharges which have any relevancy to the question now pending.

I need not refer to the other articles, in which the offenses charged against the President arise out of his relations to General Emory, his speeches made at the Executive mansion, in August, 1866; at Cleveland, on the 3d of September, 1866, and at St. Louis, on the 8th of September, 1866. Now what proof has yet been made under these first eight articles? The proof is simply, so far as this question is concerned, the production in evidence of the order removing Mr. Stanton, and of the order to General Thomas. There they are to speak for themselves. As yet we have not had one particle of what was said by the President, either before or after the issuing of the orders.

The only foundation yet laid for the introduction of the testimony used is the production of the President's orders. The attempt now is, by the declarations of General Thomas, to show with what intent the President issued these orders, not by producing General Thomas here to testify as to what the Presi dent told him, but without having General Thomas sworn at all, to bind the President by General Thomas' declarations, not made under oath, and made without any cross-examination or contradiction. Now, Senators, what foundation is laid to show the authority given by the President to General Thomas to speak for him as to his intent. You must find that foundation, if at all, in the orders themselves.. What are those orders? I will read them. The first is the order to Mr. Stanton:

EXECUTIVE MANSION, WASHINGTON, D. C., Feb. 21, 1868. Sir: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication.

You will transfer to Brevet Major-General Lorenzo Thomas, Adjutant-General of the army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers and other public property now in your custody and charge, ANDREW JOHNSOY. To Hon. Edwin M, Stanton, Washington, D. C. So much for that. Then comes the order to General Thomas, which I will read to the Senate:

Respectfully yours,

Sir: Hon. Edvin 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 Secre tary of War ad interim, and will immediately enter upon 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

Respectfully, yours,

ANDREW JOHNSON.

To Brevet Major-General Lorenzo Thomas, AdjutantGeneral United States Army, Washington, D. C.

There they are. They are orders made by the President to two of his subordinates-an order directing one of them to vacate his office and transfer the public property in his possession to another party, and an order to that other party to take possession of the office and to act as Secretary of War ad interim.

Gentlemen, does that make a conspiracy? Is that proof of a conspiracy, or tending to a conspiracy? Does that make General Thomas an agent of the President, in such a sense as that the President would be bound by everything he says or does even within the scope of his agency? If it makes him his agent, does this letter of authority authorize him to do anything but that which he is commanded to do-go there and demand possession, and receive a transfer of the records of the department? Does it authorize him to go beyond the letter and meaning of authority given him? Why certainly not.

In the first place, it must be either on the footing of a conspiracy between General Thomas and the President, or on the policy of an agency in which the President is principal, and General Thomas is the agent. That the declarations of General Thomas, either as co-conspirator or as agent, are to be given against the President. There is no other ground on which these hearsay declarations could be given as evidence.

I agree that when a conspiracy is established, or when it is partially established, when testimony is given tending to prove it, and a proper foundation laid of a conspiray in which A, B and C are con

cerned, then the declarations of one of the conspirators, made while the conspiracy is in process and made in furtherance of the conspiracy, not outside of it, may be given in evidence as against the other co-conspirators and binds the others. So, too, I agree, that where an agency is established either by parole, proof or by writing, and when established by writing that is the measure of the agency, and you cannot extend it by parole. The acts done and the declarations made in pursuance of that agency, are binding on the principal.

Now, I ask this honorable court where there is anything like a conspiracy here? Where is there any proof establishing any agency between General Thomas and the President, in which the President is the principal aud General Thomas the agent? I do not admit that this letter of authority constitutes such agency at all. I do not admit that the President is bound by any declarations made by General Thomas on the footing of his being an agent of the President; but if he were, if this were a case of principal and agent, then I say that the letter of authority to General Thomas is that which binds the President, and nothing beyond it, The object here is to show that General Thomas declared that it was his intention, and the intention of the President, in executing that authority, to use force, intimidation and threats. Suppose a principal gives authority to his agent to go and take possession of a house in the occupancy of another, does that authorize him when he goes there to commit an assault and battery on the tenant, or to drive him out vi et armis?

Is the principal to be made a criminal by the act of his agent, acting simply on the authority to take peaceable possession of a house, by the consent of the party in posession, or is the principal to be bound by the declaration of the agent when the authority is in writing and does not authorize such a declaration ? Who of us here would be safe in giving any authority to another if that were the rule by which we were to be governed? What, Senators, has the President done that he is to be held, either as a conspirator or as a principal giving authority to an agent? Does the President appoint General Thomas as his agent in any individual matter of his, to take possession of an office which belongs to him, or to take possession of papers that are his property? Not at all. What is the nature of this order? It is in the customary form; it is the designation of an officer already known to the law, to do what? To exercise a positive duty; to perform the duties of a public officer.

The President is the only authority which gives this power. Is the person whom he appoints his agent? When he accepts the appointment, does he act under these circumstances as the agent of the principal to carry out a private enterprise or perform a private action? Certainly not. He at once become the officer of the law, liable as a public officer to removal and impeachment, to indictment and prosecution for anything that he does in violation of his duty. Are all the officers of the United States who have been appointed in this way the agents of the President when the President gives them a commission, either a permanent or temporary one, to fill a vacancy or to fill an office? Are the persons so designated and appointed his agents? Is he bound by everything they do? If they take a bribe, is it a bribe to him? If they commit an assault and battery, is the assault and battery committed by him? If they exceed their authority does he become liable? Why, not at all. If third parties are injured by them in the exercise of the power which he has given them, he can give third parties the power to come back upon the President as the responsible party, on the principle of respondent superior. Why there is no principle of law or justice in it. He clothes him not with his authority, but with the authority of his office. A public officer is appointed; he stands under obligations not to his principal, not to the President, but to the law itself; and if he does any act which injures a third person, or violates any law, it is he who is responsible and not the President.

Senators: I should almost apologize to this honorrable court, composed as it is so largely of lawyers, for arguing so clear a point. I understood the learned manager (Mr. Butler) to say that they expected hereafter to connect the President with these declarations of General Thomas.

Mr. BUTLER-I did not say hereafter.

Mr. STANBERY-Does the learned manager say that he has heretofore done it?

Mr. BUTLER made an answer not heard by the reporters.

Mr. Butler's Reply.

Mr. BUTLER then rose and said:-Mr. President and Senators-The gravity of the question presented to the Senate for its decision has induced the President's counsel to argue at length, knowing that largely on that question, and on the testimony to be adduced under it on one of these articles of impeachment, the fate of their client must stand. It is the great question, and, therefore, I must ask the attention of the Senate and of the presiding officer, as well I may, to some considerations which, in my mind, determine it. But, before I do that, I beg leave to state the exact status of the case up to the point at which the question is propounded. And I may say, without offense to the learned counsel for the President, that in making the objection, they have entirely ignored the answer of the President. It appears, then, that on or about the 12th of August last, the President conceived the idea of removing Edwin M. Stanton from the office of Secretary of War, at all hazards, claiming the right and power to do so against the provisions of the act known as "the Civil Tenure of Office act."

Therefore the decision of the question in one of its aspects will decide the great question here at issue at this hour, which is, is that act to be treated as a law? Is it an act of Congress, valid and not to be infringed by the act of any executive officer? Because, if that is a law, then the President admits that he undertook to remove Mr. Stanton in violation of that law, and that he issued the order to General Thomas for that purpose only. His palliation is, that he did so to make a judicial case. But he intended to issue the order to General Thomas, and General Thomas was to act under it in violation of the provisions of that act. Am I not right on this proposition? That being so, then we have the President on his side intending to violate the law, and we have him then issuing the order in violation of the law. We have him then calling to his aid in the violation, of that law, an officer of the army.

Now, then, in the light of that law, what is the next thing we find? We find that the President issued an order to General Thomas to take possession of the War Department. Counsel say that it is an order in the usual form. I take issue with them. There are certain ear-marks about that order which show that it is not in the usual form. It is in the words of an imperative command. It is not "You are authorized and empowered to take possession of the War Department, etc., but it is, "You will immediately enter upon