whether the honorable managers can put in evidence a resolve of the Senate transmitted to the President of the United States with reference to the removal of Mr. Stanton, and refuse to receive a reply which the President made to that resolve. Mr. BUTLER-I have only to say that this is an argu ment of prejudice and not of law. Will my learned friends opposite dare to say that they have read of a case where, after the indictment of a criminal, the respondent was allowed to put in evidence his statement of his own defense? If so, where does that right cease? We put in the resolve referred to because it is a part of the transaction of the removal of Mr. Stanton. It was made before impeachment was determined upon, and now we are asked to admit the criminal's declarations made after that day. I only ask the Senate to consider of it as a precedent hereafter, as well as being a great wrong upon the people, that after indictment, after impeachment, the President can send in a message which shall be taken as evidence. Mr. EVARTS-The learned managers ask wheeher we dare to do something. We have not been in the habit of considering the measure for the conducting of forensic disputations to be a question of daring. We are not in the habit of applying such epithets to opponents; nor hitherto in the habit o receiving them from them. The measure of duty of counsel is the measure which we shall strive to obey, and not the measure of daring. If for no ether reason thau this-that on rules of law, of fact and evidence, we may perhapa expect some superiority, but on measures of daring, never. (Laughter.). Is the learned manager entirely right in saying that the impeachment was voted on the 22d of February? The 22d was on Saturday, and unless I am mistaken, a vote was not taken until the following Monday. Mr. BUTLER The vote was taken on Saturday, the 22d of February. Mr. EVARTS-That is that articles of impeachment shall be brought in. Mr. BUTLER-Yes, sir. Mr. EVARTS-The articles, however, were not voted until the 24th. Now, it is said that because the vote that the impeachment should proceed was taken on the 22d of February, that impugns the admissibility of the evidence proposed to be laid before the Senate, My learned associate has distinctly stated the situation of the matter. Perhaps both of these transactions-the vote in the Senate and this message-may be within the range of argument. But the managers have put in evidence this transaction of the Senate, and exactly what bearing this has as a part of the res gesto, the removal of Mr. Stanton, which took place before the resolution was passed by the Senate, it was not easy to see. It was, however, received as proper evidence, and the reason why we did not consider it objectionable was because we supposed, as a matter of course of right, that this message, which is an answer to that resolution on the introduction of the topic before offered in evidence, would be admissible in testimony. We submit, therefore, that in every principle of law and of discussion in reference to the completeness of the record on the point, this message of the President should be allowed to be read and given in evidence. Mr. BUTLER-I simply desire to call the attention of the Senate to the fact, whether that is a matter of daring or of professional knowledge. Neither counsel have stated any possible reason which is proper should be received in evidence. We put in the resolve of the Senate to show that. notwithstanding that resolve was served on the President on the night of the 21st of February, he still went on and treated this Lorenzo Thomas as Secretary of War ad interim; that Lorenzo Thomas was thus recognized by him after that as the Secretary ad interim, and that after that Lorenzo Thomas was carrying out his design to take possession of the office by force. We offered it in order to show that the President of the United States was determined on disobeying the law of the land, and that notice was served upon him for the purpose of having him know the action of the Senate, so that he might stay his hand. Now, can a prepared argument, made after that, and after he was impeached by the House of Representatives, be put in evidenee? One ounce of action in obe-dience to the law and the resolution of the Senate would have been a great deal better than pages of argument. I will not use the word "dare," for I know that counsel would dare to do all that good lawyers would dare to do in favor of their client, but I will say that the gentlemen have not shown any sound reason on which this can be done. The Chief Justice directed the counsel for the President to put in writing what they proposed to prove. While they were engaged in doing so, Mr. BUTLER stated that, for fear there might be some mistake, he had sent the Clerk of the House for the record of the proceedings on impeachment. Mr. McPherson, Clerk of the House, having come in soon afterwards, and handed the House Journal to Mr. Butler, the latter said-I find upon examination that the state of the record is this:-On the 21st of February the resolution of impeachment was prepared and referred to a committee on the 22d the committee reported, and that report was debated through the 22d and into Monday, the 24th, and the actual vote was taken on Monday. the 24th. Mr. EVARTS-Late in the afternoon; five o'clock; so that I was correct. Argument of Mr. Bingham. Mr. BINGHAM-I rise to state a further reason why we insist upon this objection. The House of Representatives, as appears by the journal now furnished, voted on the 22d of February that Andrew Johnson be impeached of high crimes and misdemeanors. On the day preceding the 22d of February it appears that the Senate of the United States proceeded to consider another message of the Presi dent, in which he had reported to the Senate that he had removed from the Department of War Edward M. Stanton, then Secretary of War by previous action of the Senate. The Senate refused to concur in the suspensionrefused to acquiesce in the reasons assigned by the President under the Tenure of Office act, having given the President notice thereof. The President proceeds thereupon to remove him, and to appoint Lorenzo Thomas as Secretary of War ad interim, in direct contravention of the express words of the act itself and of the action of the Senate. The record shows that on the 21st of February, 1868. the Senate of the United States passed a resolution reciting the action of the President in the premises, to wit:-The removal of the Secretary of War, and his appointment of Secretary ad interim, and declaring that under the Constitution and laws of the United States the President had no power to make the removal or to make the appointment of Secretary ad interim. That was the aetion of the Senate, and notice of that action was served on the President on the night of the 21st of February. Now what takes place? Here is a presentment made on the 21st or 22d of February, 1868, against the President before the grand inquest of the nation. After that presentment he was within the power of the people, although he had fled to the remotest end of the earth. He could not have stopped for a moment the proper course of this inquiry to final judgment, even though personal process had never been served upon him. It is so provided in the text of the Constitution. It is to be challenged by no man. After these proceedings thus insti tuted, and two days after the effect of the action of the Senate being made known to him, and three days after the effect of the commission of his crime, the President enters deliberately on the task of justifying himself before the nation for a violation of its laws; for a violation of its Constitution; for a violation of his oath of office; for his defiance of the Senate; for his defiance of the people-by sending a message to the Senate of the United States, on the 24th day of February, 1868. What is it, Senators, any more than the voluntary declaration of the criminal after the fact, made in his own behalf? Does it alter the case in law? Does it alter the case in the reason or the judgment of any man living, either within the Senate or outside of the Senate, that he chooses to put his declaration in his own defense in writing? The law makes no such distinction. 1 undertake to assert here, regardless of any attempt to contradict my statement, that there is no law by which anybody accused criminally, after the fact, can make declarations, either oral or in writing, either by a message to the Senate or a speech to a mob, that can be given as evidence to acquit himself, or to affect in any manner his criminality within a tribunal of justice; or to make evidence which should be admitted upon any form of law, upon his motion, to justify his own criminal conduct. I do not hesitate to say that every authority which the gentleman can bring into court relating to rules of evidence in proceedings of this sort, is directly against the proposition, and for the simple reason that this is a written declaration, made by the accused voluntarily after the fact, in his own behalf. I read for the information of the Senate the testimony touching this fact of the service of the notice of the action had by the Senate, and of the conduct of the President, whereof he stands accused. Mr. William H. McDonald, Chief Clerk of the Senate, testifies, on page 148: "An attested copy of the foregoing resolutions was delivered by me into the hands of the President, at his office in the Executive Mansion, about ten o'clock P. M., on the 21st of February, 1868." And on the 24th of February, three days afterwards, the President volunteers a written declaration, which his counsel now propose to make evidence in his behalf before this tribunal of justice. Of course, it is evidence for no purpose whatever, except for the purpose of exculpating him of the criminal accusations preferred against him. Senators will bear with me while I make one further remark. The proposition is to introduce this whole message, not simply what the President says for himself, not simply the argument which he chooses to present in the form of a written declaration in vindication of his criminal conduct, but the declaration of third persons. The Senate is asked to accept this, too, as evidence on the trial of the accused; the declarations of third persons, whom he calls his constitutional advisers. He states their opinions with.. out giving their language. He gives their conclusions, and those conclusions are to be thrown before the Senate as part of the evidence. I beg leave to say here, in the presence of the Senate, that there is no colorable excuse for the President or his counsel coming before the Senate to say that he has any right to attempt to shelter himself from a violation of the laws of his country under the opinion of any member of his Cabinet. The Constitution never vested his Cabinet counsellors with any such authority, as it never vested the President with authority to suspend the laws, or to violate the laws, or to make appointments in direct contravention to the laws, and in defianee of the fiat of the Senate acting in express obedience to the law. There is no tolerable excuse for these proceedings; I say it with all respect for the learned counsel, and I challenge now the production of authority in any respectable court that ever allowed any man, high or low, officially or unofficially, to introduce his own declarations, written or unwritten, made after the fact in his defense. That is the point I take here. I beg 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 the Senate. Mr. Evarts States His Views. Mr. EVARTS-Mr. Chief Justice and Senators:-The only apology which the learned manager has made for the course of his remarks is an apology for the consumption of your time, and yet he has not hesitated to say, and again to repeat that there is no color of justification for the attempt of the Prosident of the United States to defend himself, or for the effort that his counsel make to defend him. We do not receive our law from the learned manager. Mr. BINGHAM, rising-Will the gentleman allow me? Mr. BINGHAM-The gentleman misrepresents me. Mr. EVARTS-1 do not misrepresent the honorable manager. Mr. BINGHAM-I did not say that there was no color of excuse for the President's attempt to defend himself, or for the counsel's attempt to defend him, but that there was no color of excuse for offering this testimony. Mr. EVARTS-It all comes to the same thing. Everything that is admitted on our view or line of the subject in controversy, except it conform to the prelimindry view which the learned managers choose to throw down, is regarded as wholly outside of the color of law and of right on the part of the President and his counsel, and is so repeatedly charged, Now, if the crime was completed on the 21st, which is not only the whole bases of this argument of the learned manager, but of every other argument on the evidence which I had the honor of hearing from him, I should like to know what application and relevancy the resolution had which was passed by the Senate on the 21st of February, after the act of the President had been completed, and after the act had been communicated to the Senate? There can be no single principle of the law of evidence on which that view can be proved on behalf of the managers, and on which the reply of the President can be excluded. What would be thought in a criminal prosecution of the prosecutor giving in evidence what a magistrate or a sheriff had said to the accused concerning the deed, and then shut the mouth of the accused as to what he had said then and there in reply. The only possible argument by which what was said to him could be given in evidence, is that, unreplied to, it might be construed into an admission or submission. If the sheriff were to say to the prisoner, "You stole that watch," and if that could be given in evidence, and the prisoner's reply. "It was my watch, and I took it because it was mine," could not be given in evidence, that would be precisely the same proposition which is being applied here by the learned managers to this action had between the President and the Senate. Mr. BUTLER-If the thief did not make a reply until four days afterwards, and then sent in a written statement as to who owned the watch," was putting also in what his neighbor said would be a more appropriate illustration. I take the illustration as a good and excellent one. The sheriff says to the prisoner, "Where did you get that watch?" Four days afterwards the prisoner sends to the sheriff, after he had been in jail, after an indictment had been found against him, a written answer, and claims in his defense that that answer may be read; not only that, but he goes on to put in that which everybody else said, or what four or five other men said, and claims that that may be given in evidence. If it is desirous to know what the Cabinet said, let the members of the Cabinet! be brought here, and let us crossexamine them, and find out what they meant when they gave this advice, and how they came to give it, and under what pressure. But at present we do not want the President to put in the advice of the Cabinet. Mr. EVARTS-Mr. Chief Justice and Senators: -Every case is to be regarded according to its circumstances, and you will judge whether a communication from the Senate to the President on the 22d of February could well have been answered sooner than the 24th of February. Mr. BUTLER-It was communicated on the 21st of February Mr. EVARTS-I understood you to say that you could not state whether it was the 21st or the 22d. Mr. BUTLER--It was at ten o'clock on the night of the 21st. Mr. EVARTS-Very well; it was communicated at ten o'clock on the night of the 21st of February. The Senate was not in session on the 22d more than an hour, it being a holiday. Then Sunday intervening I ask whether an answer to that communication, sent on Monday, the 24th, is not an answer, according to the ordinary course of prompt and candid dealing between the President and the Senate, concerning the matter in difficulty? As far as the simile about the President being in prison goes, I will remove that by saying that he was not impeached until five o'clock P. M. of Monday, the 24th, but we need not pursue these trivial illustrations. The matter is in the hands of the court, and must be disposed of by the court. Mr. Bingham Resumes. Mr. BINGHAM-I desire to say once for all that I have aid no word, and intend to say no word during the progress of the trial that would justify the assertion of the counsel for the President in saying that we deny them the right to make defenses of the President. What I ineist upon here, what I ask the Senate to act upon is, that he shall make a defense precisely as an unofficial citizen of the United States makes defense-according to the law of the land, and not otherwise. That he shall not, after the commission of a crime, manufacture evidence in his own behalf, either orally or in writing, by his own decla tions, and incorporate into them the declarations of third persons. It has never been allowed in any respectable court in this country. When men stand on trial for their lives they never are per mitted, after the fact, to manufacture testimony by their own declarations, either written or unwritten, and on their own motion introduced them into a court of justice, I have another word to say in the light of what has dropped from the lips of the counsel, that he has evaded most skillfully the point which I took occasion to make in the hearing of the Senate, that here is an attempt to introduce not only written declarations of the accused in his own behalf after the fact, but declarations of third persons not under oath. I venture to say that a proposition to the extent of this never was made before in any tribunal of justice in the United States where any man was accused of crime-a proposition not merely to give his own declaration, but to report the declarations of third persons in his own behalf and throw them before a court as evidence. 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 a right under the Constitution to communicate from time to time to the two Houses of Congress such matter as he thinks pertain to the public interest, and if he thinks this matter pertained to te public interest, he might send a message, but I deny that there is any tolerable excuse. I repeat my words here for intimating that the President of the United States, being charged with the commission of a crime on the 21st of February, 1868-being proved guilty, I undertake to say proved guilty, by his written confession, to the satisfaction of every intelligent and unprejudiced mind in or out of the Senate in this country-can proceed to manufacture evidence in his own behalf, in the form of message, three days after the fact. That is the point that I make here. We are asked, what importance then do we attach to the action of the Senate? I answer, that we attach precisely this importance to it, that the law of the land enjoins upon the President of the United States the duty to notify the Senate of the suspension of an officer, and the reason therefor, and the evidence on which he made the suspension, and the law of the land enjoins upon the Senate the duty to act upon the report of the President, so made, and to come to a decision upon that report, and upon the evidence accompanying it, in pursuance of the requirement of the second section of the Tenure of Office act. The Senate of the United States, by an almost unanimous decision, came to the conclusion that the reasons furnished by the President and the evidence adduced by him for the suspension of the Secretary of War were unsatisfactory. In accordance with the law, the Senate non-concurred in the suspension. The law expressly provides that if the Senate concur, they shall notify the President. The law, by every intendment, provides that if the Senate non-concur they shall notify the Secretary of War that he may, in obedience to the express requirements of the act, forthwith, resume the functions of his office from which he was sus pended. The Senate in this case did give that notice. Why should it not also notify the Executiee that he might know with whom to communicate, and that he might not be longer communicating with a Secretary of War ad interim? The gentleman, I trust, is answered as to the importance and propriety of our introducing this evidence. But there was another reason for it. It was to leave the President without an excuse before the Senate and before the people for persisting in his unlawful attempt in violating a law of the land, by executing the duties of the office of Secretary of War through another person than Edwin M. Stanton. It was his business to submit to the final decision of the Senate, whether the suspension should become absolute or should be rejected. But here is a man defying the action of the Senate; defying the express letter of the law that the Secretary of War, in whose suspension the Senate had refused to concur, should forthwith resume his functions; proceding with his Iconspiracy with General Thomas to confer the functions of that office on another, regardless of the law regulating the tenure of office, regardless of the Constitution, regardless of his oath and regardless of the rights of the American people; and he winds up the farce by coming before the Senate with his written declaration, which is of no higher authority than his oral declarations made three days after the fact, and he asks the Senate to consider that as evidence. Chief Justice Chase Decides. The Chief Justice-Senators:-There is no branch of the law where there is more difficulty to lay precise rules than that which regards the intent with which an act is done. In the present case it appears that the Senate on the 21st of February passed a resolution which I will take the liberty of reading:-"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, Resolved, By the Senate of the United States, 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." That resolution was adopted on 21st of February, and was served on the evening of the same day. The message now proposed to be offered in evidence was sent to the Senate on the 24th of February. It does not appear to the Chief Justice that the resolution of the Senate called for an answer, and, therefore, the Chief Justice must regard the message of the 24th of February as a vindication of the President's act, addressed to the Senate. It does not appear to the Chief Justice that that comes within any of the rules of evicence which would justify its being received in evidence on this trial. The Chief Justice, however, will take the views of the Senate in regard to it. No vote being called for, the Chief Justice ruled the evidence inadmissible. Tenure of Office, Mr. CURTIS then offered to put in evidence a tabular statement compiled at the office of the Attorney-General, containing a list of Executive officers of the United States, with their statutory tenures or act of Congress creating the office, the name or title of the office, showing whether the tenure was for a definite time, at the pleasure of the President, or for a term indefinite. He said that of course, it was not strictly evidence, but it had been compiled as a matter of convenience, and he desired to have it printed, so that it might be used in argument by counsel on both sides. After some objection and interlocutory remarks by Mr. BUTLER, the paper was, on motion of Mr. TRUMBULL, ordered to be printed, as a part of the proceedinge. Mr. CURTIS then offered in evidence, papers in the case of the removal of Mr. Pickering, by President Adams, remarking that it was substantially the same as had been put in evidence by Mr. Butler, except that it was more formal. A Correction. The witness, Mr. Dewitt C. Clark, here desired to make a correction of his testimony to the effect that the messuage of the President was not delivered to him on the 22d of February, but on the 24th of February; that it was brought up by Mr. Moore, the President's Private Secretary, on the 22d of February, but that the Senate not being in session, Mr. Moore returned it to the Executive Mansion, and brought it back on the 24th. Mr. CURTIS-Q. Do I understand your statement now to be that Colonel Moore brought it and delivered it to you on the 22d of February? A. He brought it up on the 21st; he did not deliver it to me as the Senate was not in session. Q. He took it away and brought back on the 24th? A. Yes. Mr. BUTLER-Q. How did vou know that he brought it here on the 22d? A. Only by information from Colonel Moore. Q. Then you have been telling us what Colonel Moore told you? A. That is all. Then we don't want any more of what Colonel Moore told you. Secretary Moore Recalled. William G. Moore, the President's Private Secretary, was recalled and examined as follows: Q. By Mr. CURTIS.-What is the document that you hold in your hand? A. The nomination of Thomas Ewing, Sr., of Ohio, as Secretary for the Department of War. Q. Did you receive that from the President of the United States? A. I did. Q. On what date? A. On the 22d of February, 1868. Q. About what hour? A. I think it was about twelve o'clock. Q. And before what hour? A. Before one o'clock. Q. Was the Senate then in session, or had it_adjourned? A. It had, after a very brief session, adjourned. Q. What did you do with the document in consequence? A. I returned with it to the Executive Mansion. Q. Were you apprised before you reached the Capitol, that the Senate had adjourned? A. I was not. Q. What did you do with the document in consequence? A. I returned with it to the Executive Mansion, after having visited the House of Representatives. Q. Was anything more done with the document by you, and if so, when and what did you do? A. I was directed by the President on Monday, the 24th of February, 1868, to deliver it to the Senate. Q. What did you do in consequence? orders. Cross-examined by Mr. BUTLER. A. I obeyed the Q. Was that as it is now, or was it in a sealed envelope? A. It was in a sealed envelope. Q. Did you put it in yourself? A. I did not. Q. How do you know what was in the envelope? A. It was the only message that was to go that day; I gave it to the clerk, who sealed and handed it to me, Q. Did you unseal it or examine it till you delivered it on the 24th? A. Not to my recollection. Q. Did you show it to anybody here on the 22d? A. No, sir; it was sealed. Q. Have you spoken this morning with Mr. Clarke on the subject? A. He asked me on what date I had delivered the message, and I told him it was the 24th. Mr. BUTLER-That is all. President Tyler's Appointments. Mr. CURTIS then put in evidence, without objection, certified copies of the appointment by President Tyler, on the 29th of February, 1844. of John Nelson, AttorneyGeneral, to discharge the duties of Secretary of State ad interim, until a successor to Mr. Ushur should be appointed, and of the subsequent confirmation by the Senate, on March 6, 1844, of John C. Calhoun to that office. Also, the appointment by President Fillmore, on July 23, 1850, of Winfield Scott as Secretary of War, ad interim, in place of George W. Crawford, and of the confirmation by the Senate, on August 25, 1850, of Charles M. Conrad as Secretary of War. Buchanan's Cabinet. Mr. CURTIS also offered in evidence the appointment by Mr. Buchanan, in January, 1861, of Moses Kelley as acting Secretary of the Interior. Mr. BUTLER inquired whether counsel had any record of what had become of the Secretary of the Interior at that time, whether he had resigned or had run away, or what? (Laughter.) Mr. CURTIS said he was not informed, and could not speak either from the record or from recollection. Miscellaneous Removals and Appointments. Mr. CURTIS also offered in evidence the appointment by President Lincoln of Caleb B. Smith as Secretary of the Interior. Mr. CURTIS also offered in evidence a document relating to the removal from office of the Collector and Appraiser of Merchandise in Philadelphia, Mr. BUTLER objected to putting in evidence the letter of removal signed by McClintock Young, Acting Secretary of the Treasury. Mr. CURTIS inquired whether the manager wanted evidence that McClintock Young was Acting Secretary of the Treasury? Mr. BUTLER replied that he did not. Mr. CURTIS remarked that the documents were certified by the Secretary of the Treasury as coming from the records of that department. They were offered in evidence to show the fact of the removal by Mr. Young, who stated that it was by direction of the President. Mr. BUTLER-The difficulty is not removed. It is an attempt by Mr. McClintock Young, admitted to have been Acting Secretary of the Treasury, to remove officers by reciting that he is directed by the Presdent so to do. If this is evidence we have got to go into the question of the right of Mr. Young to do this act, and whether an ap praiser is one of the inferior officers whom the Secretary of the Treasury may remove, or whom the President may remove without the advice and consent of the Senate. It is not an act of the President in removing the head of a department, and it is remarkable as the only case to be found to warrant any such removal. If it is evidence at all, it only proves that rule by the exception. Mr. CURTIS-I understand the manager to admit that Mr. Young was acting Secretary of the Treasury. Mr. BUTLER-Yes, sir. Mr. CURTIS-I take this act of his, therefore, as having been done by the Secretary of the Treasury. He says that he proceeded by order of the President. I take it to be well settled, judicially especially, that whenever the head of a department says he acts by order of the Presi dent, he is presumed to tell the truth. It requires no evidence to show that he acts by order of the President. No such evidence was ever given. No record is ever made of the direction which the President gives to one of the heads of departments to proceed in a transaction of this kiad. But when the head of a department says that he acts by order of the President, all courts and all bodies presume that he tells the truth. The Chief Justice ruled that the act of the Secretary of the Treasury was the act of the President, but said he would put the question to the Senate if any Senator desired it. No vote being called for, the testimony was admitted. Mr. CURTIS-I now offer in evidence a document from the Navy Department. While the document was being examined by Mr, Butler Senator CONKLING moved that the court take a recess for fifteen minutes. Senator SUMNER moved, as an amendment, that business shall be resumed forthwith after the expiration of the fifteen minutes. The question was put on Senator Sumner's amendment, and it was rejected. The court then, at a quarter past two, took a recess for fifteen minutes. Mr. Butler Resumes. After the recess, Mr. BUTLER proceeded to state the grounds of his objections. He said the certificate was not that the paper was not a copy of a record from the Navy Department, but simply that the annexed is a mere statement from the records of this department, under the head of memoranda. It was a statement made up by the chief clerk of the Navy Department of matters that he had been asked to, or volunteered to furnish, leaving out many things that would be necessary in order to show the bearing of the paper on the case. He read one of the cases enumerated, the appointment of Mr. Morton as Navy Agent at Pensacola, and said the paper did not show what the consequent action was, nor whether the Senate was then in session, nor whether the President sent another appointment to the Senate at the same moment. It was merely a statement verified as being made from the record by somebody not under oath, and on it there were occa sional memoranda in pencil, apparently made by other persons. Mr. CURTIS-Apply India rubber to that. Mr. BUTLER-Yes, sir; but it is not so much what is stated as what is left out. Everything that is of value is left out. There are memorandas made up from the records, that A. B. was removed: but the circumstances under which he was removed; who was nominated in his place, and when that person was nominated, does not appear. It only appears that somebody was appointed at Pensacola. Mr. JOHNSON-Are the dates given? Mr. BUTLER-The dates are given in this way. On the 19th of December such a person is removed. Then, on the 5th of January, Johnson was informed that he was appointed. He must have been nominated to the Senate before that. Non constat. He was nominated. Then Johnson was lost on the voyage, and on the 29th another man was appointed. But the whole of the value is gone, because they have not given us the record. Who has any commission to make memoranda from the record as evidence before the Senate? And then the certificate says:The word "copy" stricken out and written is a true statement from the record a statement such as Mr. Edgar Welles or somebody else was chosen to make. I never heard that anybody had a right to come in and certify a memoranda from a record and put it in evidence. That is one paper. Then, again, in the next paper, although it alleges they are true copies of record from the office, they are letters about the appointment and removal of officers-navy agents again. But, being so removed and appointed, only a portion of the correspondence is given when the nominations were sent in. I do not mean to say that my friends on the other side chose to leave them out, but whoever prepared this for them has chosen to leave out the material facts, whether the Senate was in session or whether others were sent. I want to call the attention of the Senate still further. All these appointments contained in these papers, all they have offered are by the act of the 15th of May, 1820, appointed under the laws of the United States, for four years, all lists of attorneys and collectors of customs, and providing that they shall be removable from office at pleasure, so enacted by the laws that created them, and the counsel are going to show that under that law, in some particular instances, were removed at pleasure, but not the manner of their removal, and then they attempted to show that by memoranda, made up by young Welles, certified by Gideon Welles. Is that evidence? Mr. CURTIS-I understancd the substancd of the objection made to these documents to be two. The first objection is that these are only memoranda from the records, and it is said that it is not proper to adduce in evidence such statements of results made from the records; that instead of giving a paper containing the name of the officer, the office that he holds, the date when he was removed, and the person by whose orders he was removed, there should be an extended copy of the entire act, and all the papers relating to it. Now, in the first place, I wish the Senate to call to mind that the only document of this character, relating to removals from office, which has been put in by the honorable managers is a document from the Department of State, which contains exactly those memoranda of facts:"Schedule B-List of appointments of heads of departments made by the President at any time during the session of the Senate-Timothy Pickering, Postmaster-General, June 1, 1794," etc. This is a list extracted out of the records of the Department of the Secretary of State, containing the names of officers, the office they held, the date when they were removed, and the authority by which they were removed. It is simply ertified by the Secretary of State. This is a copy which I hold in my hands, and I am not prepared to say how it was certified. It is in evidence, and I think it will be found to be simply a letter from the Secretary of State, saying there were found from the records of his department these facts, and not any formal certificate. If, however, the Senate should think that it is absolutely necessary, or under the circumstances of these cases, proper to require their certificate of the copies of the entire acts instead of taking the names, dates and other particulars from the records, in the form in which we have thought most convenient, which certainly takes up less time and space than the other would, we must apply for and obtain them. If there is a technical difficulty of that sort, it is one which we must remove. We propose, when we have closed the offer of this species of proof, to ask the Senate to direct its proper officer to make a certificate from its records from the beginning to the end of all sessions of the Senate, from the origin down to the present time. That is what we shall call for at the proper time, and that will supply that part of the difficulty which the gentleman suggests. The other part is, that it does not appear that the President did not follow these removals by the proper nominations. Well, it does not appear, but if the gentleman proposes to argue that the President did follow them up by immediate nominations, he will find undoubtedly that the records of the Navy Department, from which this statement comes, can furnish no such thing Therefore that objection is groundless. Mr. BUTLER said the President's counsel had judged well; that when the managers had taken any particular course, that must be the right one, the one which they ought to follow, the managers would accept as being the last exposition, so far as they were concerned. But the difficulty was that he (Mr. Butler) had asked them if they objected to the testimony in question, and they made no objection. If they had, he might have been more formal. They went to the wrong sources for evidence. These things were to be sought for only in the State Department. where appeared all the circumstances connected with the removal or appointment of any officer, by and with the advice and consent of the Senate, and they could have got all these particulars there, precisely as given in the case of Mr. Pickering. Mr. CURTIS-Does the honorable manager understand that under the laws of the United States all of these of ficers must be commissioned by the Secretary of State, and the fact appear in his department, including the offi cers of the Interior, the Treasury, the War and the Navy Departments? Documentary Evidence. Mr. BUTLER-With the single exception of the Treasury, I do, and it will go appear. Mr. BUTLER proceeded to say that the commissions of the persons named in the memoranda as appointed, could have been found in the State Department. If it were a mere matter of form, he would care nothing about it, and if the counsel would say that they would put in the exact dates of the nominations, he would have no objection. Instead of that they sought to put in part of a transaction, leaving the prosecution to look up the rest of it. He quoted from Brightley's Digest, that all books, papers, and documents of the War, Navy, Treasury, and Post Office Departments, and the Attorney-General's office, may be copied and certified under seal, as in the State Department and with the same force and effect. This law of February 22, 1849, referred to that in regard to the Secretary of State, which was dated February 15, 1789, and which made such copies of records, when properly certified, legal evidence equally with the original paper. It gave no right to make extracts like these, which were the gloss, the interpretation, the collation, the diagnosis of the record to the clerk of that department. The Chief Justice stated that he would submit the question to the Senate. Senator HENDRICKS asked whether the managers objected on the ground that the papers should be given in full, so far as they relate to any particular question. Mr. BUTLER replied in the affirmative. Mr. CONKLING sent the following question to the Chair:--Do the counsel for the respondent rely upon any statute other than that referred to? Mr. CURTIS did not mean that any officer was anthorized to state what he pleased as evidence. They did not offer these documents as copies of records relating to the cases named in the documents themselves; they were documents of the same character as that which the managers had put in. Mr. EDMUNDS asked whether the evidence was offered as touching any question or final conclusion of fact, or merely as giving the Senate.the history of the practice under consideration. Mr. CURTIS-Entirely for the last purpose. Mr. BUTLER said if this evidence did not go to any issue of fact, the managers would have no objection. Mr. CURTIS--I would say, lest there should be a misapprehension, that it went to matters of practice under the law. Mr. BUTLER-Well, if it goes to matters of fact, we object that it is not proper evidence. Mr. EVARTS thought it might be of service to call attention to the record in regard to the letter of the Secretary of State, put in evidence by the managers. He read the letter heretofore published in regard to the appointments of heads of departments. Mr. HOWARD submitted the following question:-Do the counsel regard these memoranda as legal evidence of this practice of the government, and are they offered as such? Mr. CURTIS replied that the documents were not full copies of any record, and were not, therefore, strictly and especially legal evidence for any purpose; they were extracts of evidence from the records. By way of illustration he read as follows:-Isaac Henderson was, by direc tion of the President, removed from the office of Navy Agent at New York, and instructed to transfer to Paymas ter John D. Gibson, of the United States Navy, all the public funds and other property in his charge. That was not offered to prove the merits and causes of the removal, but simply to show the practice of the government under the laws, instead of putting in the whole of the documents in the case. They had taken the only fact of any importance to the inquiry. Should the Senate decide to adhere to the technical rule of evidence, the counsel for the President must go to the records and have them copied in full. Mr. BOUTWELL said if the counsel did not prove the document, it did not prove any record. The first thing to Drove a practice was to prove one or more cases under it. The vital objection to this evidence was that it related to a class of officers-navy agents-who were then and are now appointed under a special provision of the law creating the offices, and which takes them entirely out of the line of precedents for the purposes of this trial. Naval officers were created under a statute of the year 1850, in which a tenure of office was established for the office so created of four years, removable at pleasure. It was unnecessary to go into the circumstances that led to that provision being made, but the practice under it could not in any degree enlighten this tribunal upon the issue on which it is called upon to pass. The counsel could see that it was no evidence in regard to the practice relative to removals not made under that statute. Mr. CURTIS said the counsel might have been under a misapprehension respecting the views of the managers in conducting this prosecution, but they had supposed that the managers meant to attempt to maintain that, even if Mr. Stanton, at the time when he was removed, held at the pleasure of the President, even if he was not within the tenure of Office act, inasmuch as the Senate was in session; it was not competent for the Senate to remove him, and that although Mr. Stanton might have been removed, by the President not being within the Tenure of Office act, his place could not be even temporarily supplied by an order to General Thomas, the Senate being in session. It was offered with a view to show that whether the Senate was in session or not, the President could make an ad interim appointment. If the managers would agree that if Mr. Stanton's case was not within the Tenure of Office act, the President might remove him during the session of the Senate, and might lawfully make an ad interim appoint ment. They (the counsel) did not desire to put this in evidence. Senator SHERMAN-I would like to ask the counsel whether the papers now offered in evidence contain the date of the appointment and the character of the offices? Mr. BUTLER-To that we say that they only contain the date of the removals, but do not give us the date of the nomination. Mr. CURTIS again read the case of the removal of Isaac Henderson, by way of illustration, stating that it contained the date of the removals. The Chief Justice put the question to the Senate, stating that, in his opinion, the evidence was competent in substance; whether it was so in form was for the Senate to decide. The evidence was admitted by the following vote:YEAS.-Messrs. Anthony, Bayard, Buckalew, Cole, Corbett, Conkling. Davis, Dixon, Doolittle, Edmunds, Fessenden. Ferry, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill (Me.), Morrill (Vt.), Morton, Patterson (N.H.), Patterson (Tenn.), Ross, Saulsbury, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Vickers, Willey. Wilson, Yates-36. NAYS.-Messrs. Cameron, Cattell, Chandler, Conness, Cragin, Drake, Harlan, Howard, Morgan, Nye, Pomeroy, Ramsey, Thayer, Tipton, Williams-15. By consent, the documents were considered as read, Mr. CURTIS-There is another document from the Navy Department which, I suppose, is not distinguished from those which have been just admitted. It purports to be a list of civil officers appointed for four years under the statute of the 15th of May, 1820. and removable from office at pleasure, with their removals so indicated, the term of office not having expired. Then comes a list giving the name of the officer, the date of his general appointment, the date of his removal, and by whom removed, in a tabular form. Mr. BUTLER called attention to the fact that it did not contain the statement whether the Senate was in session. Mr. CURTIS-We shall get that in another form. No objection being made the paper was admitted in evidence. Mr. CURTIS, producing other documents-Here are documents from the Department of State, showing the removal of heads of departments, not only during the session of the Senate, but during the recess, and covering all causes. The purpose being to show a practice of the government, so extensive with the necessity that arose out of the different cases of death, resignation, sickness, absence or removal. It differs from the schedule which has been put by the manager to cover the heads of depart list is furnished as an appendix to the message, and I wish the message to be read. Mr. BUTLER-The difficulty I find in the message is this: It is the message of Mr. Buchanan, and can't be put in evidence in this case any more than the declarations of any one else. We should like to have Mr. Buchanan brought here on oath and cross-examined as to this. There are a good many questions that I should like to ask himfor instance, as to his state of mind at that time, and whether he had any clear perception of his duties at the time. (Laughter.) But a still further objection to it is that most of the message consists of statements of Mr. Jeremiah S. Black, who concluded that he would not have anything to do with this case anyhow. (Laughter.) I do not think that the statements of that gentleman, however respectable, are to be taken here as evidence. They might be referred to, perhaps, as public documents, but I do not believe they can be put in as evidence. How do we know how correctly Mr. Black and his clerks make up this list. Are you going to put in his statements of what was done, and put it upon us, or upon yourselves, to examine and see whether they are not all illusory and calculated to mislead. I do not care to argue the question any further. Mr. CURTIS-I offer it to show the practice of the government. Mr. BUTLER. I object, once for all, to the practice of the government being shown by the acts of James Buch anan, alias Jeremiah Black. The Chief Justice put the question to the Senate, and the testimony was admitted without a division. The Clerk then read Mr. Buchanan's message in refer ence to filling the office of Secretary of War, caused by the resignation of Mr. Floyd. Mr. CURTIS-I now desire to move for an order on the proper officer of the Senate to furnish, so that we may put into the case, a statement of the dates of the beginning and end of each session of the Senate, including its Executive as well as its legislative sessions, from the origin of the government down to the present time. That will enable us, by comparing the dates with those facts which we have put into the case, to see what was done within, and also done without the sessions of the Senate. The Chief Justice was understood to say that that order would be required to be made in legislative session. Mr. CURTIS then said, we have concluded our documentary evidence as at present advised. We may pos sibly desire, perhaps, to offer some additional evidence of that character, but as we now understand it we shall have no more to offer. The court then, on motion of Senator JOHNSON, adjourned till noon to-morrow. PROCEEDINGS OF THURSDAY, APRIL 16. ments only, because that applies only to removals during being present. Mr. Stanbery was again absent. On the session of the Senate. It includes them, but it includes a great deal more matter. Mr. BUTLER read several of the records, being temporary appointments during the absence of incumbents. All, he said, were of that character with two exceptions. One was that frequently such appointments were made to cover possible contingencies, as when Asbury Dickens was appointed to act as Secretary of the Treasury when that officer shall be absent. There were three cases. One in President Monroe's time, one in President Adams' time, and one in President Jackson's time, all reciting that the appointment was under the act of 1792. All the others were temporary, Would the Senate admit a series of acts done exactly in conformity with the law of 1792 and 1795 as evidence in a case in violation of the acts of March 2, 1867, and February 20, 1868? Would that throw any light upon what was admitted in the answer to be a breach of the law, if it comes within it? Mr. CURTIS did not wish to reply, taking it for granted that the Senate would not settle any question as to the merits of the case when they were public in the evidence. The evidence was admitted, no oblection being made, and was considered as read. Mr. CURTIS then offered documents from PostmasterGeneral's office,showing the removal of postmasters during the session of the Senate, and the ad interim appointments to fill such places. No objection being made, they were read. A Message of President Buchanan. Mr. CURTIS-I now offer in evidence from the Journal of the Senate, vol. 4, second session, Thirty-sixth Congress, page 1, the message of President Buchanan to the Senate in reference to the office of Secretary for the Department of War, and to the manner in which he had filled that office in place of Mr. Floyd; accompanything that message is a list of the names of persons, as shown by the records of the State Department, who discharged the duties of Cabinet officers, whether by appointments made during the recess of the Senate, or as ad iniertm appointments, and his The court was opened in due form, all the managers motion, the reading of the journal was dispensed with, Mr. Sumner's Paper. Senator SUMNER rose and said:-Mr. Chief Justice: I sent to the Chair a declaration of opinions to be adopted by the Senate, as an answer to the constantly recurring questions on the admissibility of testimony. The paper was read by the Clerk, expressing the opinion that, considering the character of this proceeding, being a trial of impeachment before the Senate of the United States, and not a proceeding by indictment in an inferior court, and that members are judges of the law as well as of fact, from whose decision there is no appeal, and that, therefore, the ordinary reasons for the exclusion. of evidence do not exist, and, therefore, it is deemed advisable that all evidence, not trivial or obviously irrelevant, shall be admitted, it being understood that in order to decide its value it shall be carefully considered on its final judgment. Mr. CONNESS moved to lay the paper on the table, which was agreed to by the following vote: YEAS.-Messrs. Buckalew. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Freling huysen, Harlan, Howard, Howe, Johnson, Morgan, Morrill (Me.), Morrill (Vt.), Patterson (N. H.), Pomeroy, Ramsey, Saulsbury, Stewart, Thayer, Tipton, Williams, Yates-33. NAYS. Messrs. Anthony, Fowler, Grimes, Morton, Patterson (Tenn.). Sherman, Sumner, Van Winkle, Vickers, Willey, Wilson-11. The Chief Justice directed the court to proceed. |