Such a course would be subversive of all discipline, and expose the best disposed officers to the chances of ruinous litigation.' "The power

itself is confined to the Executive of the Union, to him who is, by the Constitution, the commander of the militia, when called into the actual service of the United States; whose duty it is to take care that the laws be faithfully executed,' and whose responsibility for an honest discharge of his official obligations is secured by the highest sanction. He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to call forth the militia: his orders for this purpose are in strict conformity with the provisions of the law, and it would seem to follow, as a necessary consequence, that every act done by a subordinate officer, in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders will be given to carry the power into effect; and it cannot, therefore, be a correct inference that any other person has a just right to disobey them."

Apply the principles here enunciated to the case at bar, and they become its perfect supports. If the President has a right to contest and refuse to obey the laws enacted by Congress, his subordinates may exercise the same right and refuse to obey his orders. If he may exercise it in one case, they may assert it in any other. If he may challenge the laws of Congress, they may question the orders of the Presi dent. It is his duty to enforce the laws of the nation, and it is their duty to obey his orders. If he may be allowed to defy the legislative will, they may be allowed to disregard the executive order. This begets confusion; and the affairs of the public are made the sport of the contending factions and conflicting agents. No such power belongs to either. To Congress is given the power to enact laws, and while they remain on the statute-book it is the constitutional duty of the President to see to their faithful execution. This duty rests upon all of his subordinates. Its observance by all, the President included, makes the executive department, though it be acting through ten thousand agents, a unit. Unity produces harmony, harmony effects directness of action, and this secures a due execution of the laws. But if the President may disregard the law because he has been advised by his Cabinet and believes that the Congress violated the Constitution in its enactment, and his subordinates may, following his example, disobey his orders and directions, the object and end of an executive unity is defeated, anarchy succeeds order, force, irresponsible and vicious, supplants law, and ruin envelops the Republic and its institutions. If the views which I have imperfectly presented are correct, and such I believe them to be, the testimony to which we object must be excluded from your consideration, and thus will be determined one of the most important questions encircled by this case.

If I have been able to arrest your attention, and to center it upon the question which I have imperfectly discussed, the time occupied by me will not be without profit to the nation. I have endeavored to show that the royal fiction which asserts that "the king can do no wrong" cannot be applied to the President of the United States in such manner as to shield him from the just condemnation of violated law. The king's crimes may be expiated by the vicarious atonement of his ministers; but the President is held personally amenable to the impeaching power of the House of Representatives. Concede to the President immunity through the advice of his Cabinet officers, and you reverse by your decision the theory of our Constitution. Let those who will, assume this responsibility. I leave it to the decision of the Senate.

Mr. CURTIS. Mr. Chief Justice and Senators, I have no intention of attempting to make a reply to the elaborate argument which has now been addressed to you by one of the honorable Managers touching the merits of this case. The time for that has not come. The testimony is not yet before you. The case is not in a condition for you to consider and pass upon those merits, whether they consist in law or fact. The simple question now before the Senate is whether a certain offer of proof which we have placed before you shall be carried out into evidence. Of course that inquiry involves another. That other inquiry

is whether the evidence which is offered is pertinent to any matter in issue in this case, and when it is ascertained that the evidence is pertinent I suppose it is to be received. Its credibility, its weight, its effect finally upon the merits of the case or upon any question involved in the case, is a subject which cannot be considered and decided upon preliminarily to the reception of the evidence. And, therefore, leaving on one side the whole of this elaborate argument which has now been addressed to you, I propose to make a few observations to show that this evidence is pertinent to the matter in issue in this case.

or unsound, whether it will finally prove in the judgment of the Senate that this evidence is immaterial or not, this is not the time to exclude it upon the ground that an examination of the merits hereafter and a decision upon those merits will show that it is immaterial. When that is shown the evidence can be laid aside. If the other conclusion should be arrived at by any one Senator, or by the body generally, then they will be in want of this evidence which we now offer.

In reference to this question, Senators, is it not pertinent evidence? I do not intend to enter into the constitutional inquiry which was started yesterday by an honorable Manager as to the particular character of this Cabinet council. One thing is certain: that every President from the origin of the Government has resorted to oral consultations with the members of his Cabinet and oral discussions in his presence of questions of public importance arising in the course of his official duty. Another thing is equally certain, and that is, that although the written letter remains, and therefore it would appear with more certainty what the advice of a Cabinet councilor was if it were put in writing, yet that every practical man, who has had occasion in the business affairs of life and every lawyer and every legis lator knows that there is no so satisfactory mode of bringing out the truth as an oral discussion, face to face, of those who are engaged in the subject; that it is the most suggestive, the most searching, the most satisfactory mode of arriv

The honorable Manager has read a portion of the answer of the President, and has stated that the House of Representatives has taken no issue upon that part of the answer. As to that, and as to the effect of that admission by the honorable Manager, I shall have a word or two to say presently. But the honorable Manager has not told you that the House of Rep resentatives, when the honorable Managers brought to your bar these articles, did not intend to assert and prove the allegations in them which are matters of fact. One of these allegations, Mr. Chief Justice, as you will find by reference to the first article and to the second article and to the third article, is that the President of the United States in removing Mr. Stanton and in appointing General Thomas intentionally violated the Constitution of the United States, that he did these acts with the intention of violating the Constitution of the United States. Instead of saying, "it is whollying at a conclusion; and that solitary written immaterial what intention the President had; it is wholly immaterial whether he honestly believed that this act of Congress was unconstitutional; it is wholly immaterial whether he believed that he was acting in accordance with his oath of office, to preserve, protect, and defend the Constitution when he did this act"instead of averring that, they aver that he acted with an intention to violate the Constitution of the United States.

Now, when we introduce evidence here, or offer to introduce evidence here, bearing on this question of intent, evidence that before forming any opinion upon this subject he resorted to proper advice to enable him to form a correct one, and that when he did form and fix opinions on this subject it was under the influence of this proper advice, and that consequently when he did this act, whether it was lawful or unlawful, it was not done with the intention to violate the Constitution-when we offer evidence of that character, the honorable Manager gets up here and argues an hour by the clock that it is wholly immaterial what his intention was, what his opinion was, what advice he had received and in conformity with which he acted in this matter.

The honorable Manager's argument may be a sound one; the Senate may ultimately come to that conclusion after they have heard this cause; that is of discussion into which I do not enter; but before the Senate can come to the consideration of those questions they must pass over this allegation; they must either say, as the honorable Manager says, that it is wholly immaterial what opinion the President formed or under what advice or circumstances he formed it, or else it must be admitted by Senators that it is material, and the evidence must be considered.

Now, how is it possible at this stage of the inquiry to determine which of these courses is to be taken by the honorable Senate? If the Senate should finally come to the conclusion that it is wholly immaterial this evidence will do no harm. On the other hand, if the Senate should finally come to the conclusion that it is material what the intention of the President was in doing these acts, that they are to look to see whether there was or not a willful violation of the Constitution, then they will have excluded the evidence upon which they could have determined that question, if it should thus prove to be material.

I respectfully submit, therefore, that whether the argument of the honorable Manager is sound

opinions, composed in the closet, away from the collision between mind and mind which brings out new thoughts, new conceptions, more accurate views, are not the best mode of arriving at a safe result. And under the influence of these practical considerations undoubtedly it is that this habit, beginning with General Washington-not becoming universal by any means until Mr. Jefferson's time, but from that day to this continuing a constant practice-has been formed. President Johnson found it in existence when he went into office, and he continued it.

I therefore say that when the question of his intention comes to be considered by the Senate, when the question arises in their minds whether the President honestly believed that this was an unconstitutional law, when the particular emergency arose, when if he carried out or obeyed that law he must quit one of the powers which he believed were conferred upon him by the Constitution, and not be able to carry on one of the departments of the Government in the manner the public interests required when that question arises for the consideration of the Senate, then they ought to have before them the fact that he acted by the advice of the usual and proper advisers that he resorted to the best means within his reach to form a safe opinion upon this subject, and that therefore it is a fair conclusion that when he did form that opinion it was an honest and fixed opinion which he felt he must carry out in practice if the proper occasion should arise. It is in this point of view, and this point of view only, that we offer this evidence.

The honorable Senator from Michigan has proposed a question to the counsel for the President, which is this:

Do not the counsel for the accused consider that the

validity of the tenure-of-office bill was purely a question of law?

I will answer that part of the question first. The constitutional validity of any bill is of course a question of law which depends upon a comparison of the provisions of the bill with the law enacted by the people for the government of their agents. It depends upon whether those agents have transcended the authority which the people gave them, and that comparison of the Constitution with the law is, in the sense that was intended undoubtedly by the honorable Senator, a question of law.

The next branch of the question is "whether that question is to be determined on this trial by the Senate."

That

That is a question I cannot answer. is a question that can be determined only by the Senate themselves. If the Senate should find that Mr. Stanton's case was not within this law, then no such question arises, then there is no question in this particular case of a conflict between the law and the Constitution. If the Senate should find that these articles have so charged the President that it is necessary for the Senate to believe that there was some act of turpitude on his part connected with this matter, some mala fides, some bad intent, and that he did honestly believe, as he states in his answer, that this was an unconstitutional law, that an occasion had arisen when he must act accordingly under his oath of office, then it is immaterial whether this was a constitutional or unconstitutional law; be it the one or be it the other, be it true or false that the President has committed a legal offense by an infraction of the law, he has not committed the impeachable offense with which he is charged by the House of Representatives. And, therefore, we must advance beyond these two questions before we reach the third branch of the question which the honorable Senator from Michigan propounds, whether the question of the constitutionality of this law must be determined on this trial by the Senate. In the view of the President's counsel there is no necessity for the Senate to determine that question. The residue of the inquiry is:

Do the counsel claim that the opinion of the Cabinet officers touching that question

That is, the constitutionality of the law→ is competent evidence by which the judgment of the Senate might be influenced?

Certainly not. We do not put them on the stand as experts on questions of constitutional law. The judges will determine that out of their own breasts. We put them on the stand as advisers of the President to state what advice, in point of fact, they gave him, with a view to show that he was guilty of no improper intent to violate the Constitution. We put them on the stand, the honorable Senator from Michigan will allow me to answer, for the same purpose for which he doubtless, in his extensive practice, has often put lawyers on the stand. A man is proceeded against by another for an improper arrest, for a malicious prosecution. It is necessary to prove malice and want of probable cause. When the want of probable cause is proved the malice is inferable from it; but then it is perfectly well settled that if the defendant can show that he fairly laid his case before counsel, and that counsel informed him that that was a probable case, he must be acquitted; the malice is gone. That is the purpose for which we propose to put these gentlemen on the stand, to prove that they acted as advisers, that the advice was given, that it was acted under; and that purges the malice, the improper intent.

To respond to the question of the honorable Senator from Maryland, he will allow me to say that it is a question which the Managers can answer much better than the President's counsel.

Cabinet unanimously, including Mr. Stanton, that this law would be unconstitutional if enacted. They have put that in evidence themselves.

Nevertheless, Senators, this is an affair, as you perceive, of the utmost gravity in any possible aspect of it; and we did not feel at liberty to avoid or abstain from the offering of the members of the President's Cabinet that they might state to you, under the sanction of their oaths, what advice was given. I suppose all that the Managers would be prepared to admit might be certainly they have made no broader admission-that the President said these things in a message to the Senate; but from the experience we have had thus far in this trial wethought it not impossible that the Managers, or some one of them speaking in behalf of himself and the others, might say that the President had told a falsehood, and we wish therefore to place ourselves right before the Senate on this subject. We desire to examine these gentlemen to show what passed on this subject, and we wish to do it for the purposes I have stated.

Mr. WILLIAMS. Before the learned gentleman concludes I desire to submit a question to him.

The CHIEF JUSTICE. The Secretary will read the question proposed by the Senator from Oregon.

The Chief Clerk read as follows:

Is the advice given to the President by his Cabinet with a view of preparing a veto message pertinent to prove the right of the President to disregard the law after it was passed over his veto?

Mr. CURTIS. I consider it to be strictly pertinent. It is not of itself sufficient; it is not enough that the President received such advice; he must show that an occasion arose for him to act upon it which in the judgment of the Senate was such an occasion that you could not impute to him wrong intention in honestly believed that this was an unconstituacting. But the first step is to show that he

tional law. Whether he should treat it as such in a particular instance is a matter depending upon his own personal responsibility without advice. That is the answer which I suppose is consistent with the views we have of this

case.

Mr. CURTIS. It is:

Do the counsel for the President understand that the Managers deny the statement made by the President in his message of December 12, 1867, to the Senate, as given in evidence by the Managers at page 45 of the official report of the trial that the members of the Cabinet gave him

That is, the President

the opinion there stated as to the tenure-of-office act; and is the evidence offered to corroborate that statement, or for what other object is it offered?

We now understand, from what the honorable Manager has said this morning, that the House of Representatives has taken no issue on that part of our answer; that the honorable Managers do not understand that they have traversed or denied that part of our answer. We did also understand before this question was proposed to us that the honorable Managers had themselves put in evidence the message of the President of the 12th of December, 1867, to the Senate, in which he states that he was advised by the members of the

the President issued an order for the removal of Mr. Stanton from the office of Secretary of War, that this order was made unlawfully, and that it was made with intent to violate the tenureof-office act and in violation of the Constitution of the United States. The same charge in substance is repeated in the articles which relate to the appointment of Mr. Thomas, which was necessarily connected with the transaction. The intent, then, is the subject to which much of the evidence on both sides has been directed; and the Chief Justice conceives that this testimony is admissible for the purpose of showing the intent with which the President has acted in this transaction. He will submit the question to the Senate if any Senator desires it.

Mr. HOWARD. I call for the yeas and nays. The CHIEF JUSTICE. The Senator from Michigan desires that the question be submit ted to the Senate, and calls for the yeas and nays.

The yeas and nays were ordered. The CHIEF JUSTICE. Senators, you who are of opinion that the proposed evidence is admissible will, as your names are called, answer yea; those of the contrary opinion, nay. Mr. DRAKE. I ask for the reading of the offer of counsel.

The CHIEF JUSTICE. The Secretary will read the offer.

The Chief Clerk read the offer.

The question being taken by yeas and nays, resulted-yeas 20, nays 29; as follows:

YEAS-Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, Vickers, and Willey-20.

NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Thayer, Tipton, Williams, Wilson, and Yates-29.

NOT VOTING-Messrs. Morton, Norton, Nye, Sumner, and Wade-5.

So the Senate decided the evidence to be inadmissible.

Gideon WELLES-examination continued. By Mr. EVARTS:

Question. At the Cabinet meetings held at the period from the presentation of the bill to the President until his message sending in his objections was completed was the question whether Mr. Stanton was within the operation of the civil-tenure act the subject of consideration and determination?

Mr. Manager BUTLER. Stop a moment. We object.

The CHIEF JUSTICE. The counsel will please propose their question in writing. Mr. EVARTS. I will make an offer, with the permission of the Chief Justice.

The offer was reduced to writing, and read by the Chief Clerk, as follows:

We offer to prove that at the meetings of the Cabinet at which Mr. Stanton was present, held while the tenure-of-office bill was before the President for approval, the advice of the Cabinet in regard to the same was asked by the President and given by the Cabinet; and thereupon the question whether Mr. Stanton and the other Secretaries who had received their appointment from Mr. Lincoln were within the restrictions upon the President's power of removal from office created by said act was considered, and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions.

Mr. Manager BUTLER. We object, Mr. President and Senators, that this is only asking the advice of the Cabinet as to the construction of a law. The last question was as to the constitutionality of a law, and advice as to law we suppose to be wholly included within the last ruling of the Senate. We do not propose to argue it.

Mr. EVARTS. We do not so regard the matter; and even if the ruling should be so rightly construed, still, Mr. Chief Justice and Senators, it would be proper for us to make this offer accepting your ruling, if it were not a matter for debate. We understand that the disposition of the question of evidence already made may turn upon any one of several considerations quite outside of the present inquiry; as, for instance, if it should be held to have turned upon considerations suggested by some of the questions put by one or more of the Senators of this body, as to the importance or pertinence of evidence as bearing upon the question of the constitutionality of a law, as tending to justify or explain or affect with intent the act alleged of a violation of the law.

The present evidence sought to be introduced is quite of another complexion, and has this purpose and object in reference to several views that may be applied to the President's conduct; in the first place, as respects the law itself, that a new law confessedly reversing, or, as was frequently expressed in the debates of the Houses which passed the law, "revolutionizing the action of the Government" in respect to this exercise of executive power, and in respect to this particular point also of whether it had any efficacy or was intended to have any application which should fasten upon the President's

Secretaries whom he never had selected or appointed, which formed the subject of so much opinion in the Senate, and also in the House of Representatives, was made a subject of inquiry and opinion by the President himself, and that his action concerning which he is now brought in question here in the removal of Mr. Stanton, was based upon his opinion after proper and diligent efforts to get at a correct opinion, whether Mr. Stanton was within the law; and, therefore, that his conduct and action was not in the intent of violating the law which, it is said here, cannot be qualified even under these charges by showing that he did not do it with intention of violating the Constitution.

The point now is that he did not do it with intent of violating the law, but that he did it with the intent of exercising a well-known, perfectly established constitutional power, deemed by him, on the advice of these his Cabinet, not to be embraced within the law; and if the question of the intent of his violation of duty, of the purpose and the motive and the object and the result, the injury to the public service or the order of the State is to form a part of the inquiry, then we bring him by one mode of inquiry within obedience to the Constitution as he was advised, and by this present object of inquiry within obedience to the law as he was advised.

So, too, it has a bearing from the presence of Mr. Stanton and his assent to these opinions, on the attitude in which the President stood in regard to his right to expect from Mr. Stanton an acquiescence in the exercise of the power of removal, which stood upon the Constitution in Mr. Stanton's opinion, and which was not affected by the law in Mr. Stanton's opinion; and thus to raise precisely and definitely in this aspect the qualifications of the President's course and conduct in this behalf as intending an application of force, or contemplating the possibility of the need of an application of force.

Mr. Manager BUTLER. Without intending to debate this proposition, I desire to call the attention of the Senate to the fact that the question seeks to inquire whether the Cabinet, including Mr. Stanton, did not advise the President that the bill as presented for his consideration did not apply to Mr. Stanton and those in like situation with him. I desire to

call the attention of the Senate to Exhibit A, on the 38th page, which is the veto message, wherein the President vetoes the bill expressly upon the ground that it does include all his Cabinet, so that if they advised him to the contrary, the advice does not seem to have had operation on his mind.

Mr. Manager BOUTWELL. words.

Mr. Manager BUTLER. I will. "To the Senate of the United States:

Read the

"I have carefully examined the bill to regulate the tenure of certain civil offices. The material portion of the bill is contained in the first section, and is of the effect following, namely:

"That every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be, entitled to hold such office until a successor shall have been appointed by the President, with the advice and consent of the Senate, and duly qualified; and that the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.

"These provisions are qualified by a reservation in the fourth section, that nothing contained in the bill shall be construed to extend the term of any office the duration of which is limited by law.' In effect the bill provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law without the advice and consent of the Senate of the United States. The bill, in this respect, conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means

a new one."

And then he goes on to argue upon the debate of 1789, which wholly applied to Cabinet officers, and you will find that that is the gist of the President's whole argument. Then, on

the forty-first page, after having exhausted the argument as to the Cabinet officers, he says:

"It applies equally to every other officer of the Government appointed by the President whose term of duration is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of the head of the department, because he is invested generally with the executive authority, and the participation in that authority by the Senate was an exception to a general principle, and ought to be taken strictly. The President is the great responsible officer for the exccution of the laws."

But I must ask attention to the point that there is some additional reason to have this evidence go in because Mr. Stanton gave such construction to the law. It was offered in the last proposition voted upon to show that Mr. Stanton gave advice as to the constitutionality of the law; so that in this respect the two propositions stand precisely alike in principle, and cannot be distinguished.

It is said this evidence should be admitted to show that the President when he removed Stanton and put in Thomas, supposed that Stanton did not believe himself to be within the law and protected in office by its enactments. Mr. Stanton had just been reinstated under the law; had refused to resign because he could not be touched under the law; had put the President's power to defiance, as the President says in his message, because he believed that the law did not allow him to be touched. Now, does this evidence tend to show that the President thought Mr. Stanton would agree that he was not kept in office by the law, and go out when he put in Mr. Thomas? Does any sane man believe that the President thought that Mr. Stanton would yield on the ground that he was not covered by the law when he was removed and Mr. Thomas appointed? The President did not put his belief on any such ground; he put it on the ground that Stanton was a coward, and would not dare resist; not that he did not believe himself within the law and protected by it, but that his nerve would not be sufficient to meet General Thomas. That was the President's proposition to General Sherman; it was a reliance on the nerves of the man, not upon his construction of the law. Therefore, I must call your attention to the fact that these offers are wholly illusory and deceptive. They do not show the thing contended for; they cannot show it; they have no tendency to show it, and whether they have or have not, the Senate, by solemn decision, have said that the advice of Cabinet officers is not the legal vehicle of proof by which the fact is to be shown to the Senate, even if it were competent to be proved in any manner.

Mr. EVARTS. Mr. Chief Justice and Senators, the reference to the argument of the President's message, which is contained on page 38 and the following pages of the record, seems hardly to require any attention. The President is there arguing against the bill as a

President's conduct in attempting a removal of Mr. Stanton because he was not under the bill, or whether it bears upon the rightful expectation and calculation of the President that the attempt would be recognized as suitable by Mr. Stanton because he, Mr. Stanton, did not believe he was within the bill.

It will be observed that the President had a perfect right to suppose that Mr. Stanton would not attempt to oppose him, the President, in the exercise of an accustomed authority of the Chief Executive since he, Mr. Stanton, believed it to be unlawful; and if the Executive had been advised by Mr. Stanton on this very point that he, Mr. Stanton, was not protected by the restrictions of the civil tenure-of-office bill, then the President had a right to suppose that when the executive authority given by the Constitution, as it was understood by Mr. Stanton, was not impeded by the operation of the special act of Congress, Mr. Stanton of course would yield to this unimpeded constitutional power.

The CHIEF JUSTICE. Senators, the Chief Justice is of opinion that this testimony is proper to be taken into consideration by the Senate sitting as a court of impeachment; but he is unable to determine what extent the Senate is disposed to give to its previous ruling, or how far they consider that ruling applicable to the present question. He will therefore direct the Secretary to read the offer to prove, and then will submit the question directly to the Senate. Mr. DRAKE. On that I ask for the yeas and nays.

The Chief Clerk read the offer, as follows: We offer to prove that at the meetings of the Cabinet at which Mr. Stanton was present, held while the tenure-of-civil-office bill was before the President for approval, the advice of the Cabinet in regard to the same was asked by the President and given by the Cabinet, and thereupon the question whether Mr. Stanton and the other Secretaries who had received their appointment from Mr. Lincoln were within the restrictions upon the President's power of removal from office created by said act, was considered and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions.

The CHIEF JUSTICE. On this question the Senator from Missouri asks for the yeas and nays.

The yeas and nays were ordered; and being taken, resulted-yeas 22, nays 26; as follows: YEAS-Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Sherman. Sprague, Trumbull, Van Winkle, Vickers, and Willey-22.

NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates-26.

NOT VOTING-Messrs. Conkling, Morton, Norton, Nyc, Sumner, and Wade-6.

So the evidence proposed to be offered was decided to be inadmissible.

Mr. EVARTS, (to the witness.) Mr. Welles, at any of the Cabinet meetings held between the time of the passage of the civil-tenure act and the removal of Mr. Stanton did the sub

its general application to the officers of the Government, including the principal officers of the Departments. The minor consideration of whether or not it by its own terms reached the particular persons who held their commissions from President Lincoln could not by any possibility have been the subject of discussion by the President of the United States in sending in his objections to the bill on constitutional grounds. It was not a constitutional question whether the bill included the officers who had received their commissions from President Lincoln, or did not exclude them.

The learned Manager seems equally unfortunate in his reference to the conduct of Mr. Stanton upon the preliminary proceeding of his suspension under the 'civil-tenure act, for no construction can be put upon Mr. Stanton's conduct there except that he did not think he was under the act, I suppose, because he said he did not yield to the act which authorized suspension, but yielded to force. So much for that."

Now, I come to the principal inquiry; and that is whether or not it bears either upon the

operation of that act come up for the consideration of the Cabinet.

Mr. Manager BUTLER. I object.

Mr. EVARTS. This is merely introductory. Mr. Manager BUTLER. "Yes" or "no?" Mr. EVARTS. Yes.

Mr. Manager BUTLER. We do not object to that.

The WITNESs. I answer yes.
By Mr. EVARTS:

Question. Was it considered repeatedly. Answer. It was on two occasions, if not more. Question. During those considerations and discussions was the question of the importance of having some determination judicial in its character of the constitutionality of this law considered?

Mr. Manager BUTLER. Stay a moment; we object.

Mr. EVARTS. It only calls for "yes" or

no.

Mr. Manager BUTLER. If it means only to get in "yes" or "no," whether it was considered, it is not very important.

Mr. EVARTS. That is all.

Mr. Manager BUTLER. Then it is not to get in that there was any particular consideration on a given point. In other words, to make myself plain, by asking a series of well-contrived questions, one might get in pretty much what was done in the Cabinet by "yes" or "no" answers. We object to it as immaterial; and now we, perhaps, might have it settled at once, as well as ever. If this line of testimony is immaterial, then it is immaterial whether the matter was considered in the Cabinet. If the determination of the Senate is that what was done in the Cabinet should not come in here, then whether it was done is wholly immaterial, and is as objectionable as what was done.

Mr. EVÄRTS. Yes; but the honorable Manager will be so good as to remember that the rulings of the Senate have expressly determined that all that properly bears upon the question of the intent of the President in making the removal and appointing the ad interim holder of the office with a view of raising the judicial question is admissible, and has been admitted.

Mr. Manager BUTLER. We never have heard that ruling. It may have escaped us, perhaps.

Mr. EVARTS. By examining the record you will find it.

Mr. Manager BUTLER. We have examined it with great care; but we shall not find that, we think. Will you have the kindness to read that ruling?

Mr. EVARTS. It is in the memory of the

Mr. EVARTS. Yes, sir.

Mr. Manager BUTLER. May I insert these words: "21st of February, 1868?"

Mr. EVARTS. You may alter the word "removal" to "order of the 21st of February, 1868, for the removal."

The CHIEF JUSTICE. The Secretary will read the offer made by the counsel for the President.

The offer was handed to the desk and read, as follows:

We offer to prove that at the Cabinet meetings between the passage of the tenure-of-civil-office bill and the order of the 21st of February, 1868, for the removal of Mr. Stanton upon occasions when the condition of the public service was affected by the operation of that bill came up for the consideration and advice of the Cabinet it was considered by the President and Cabinet that a proper regard to the public service made it desirable that upon some proper case a judicial determination on the constitutionality of the law should be obtained.

sibly be material in one view if they mean to say that they consulted upon getting up this case in the mode and manner that it is brought here, and only in that event could it be material.. Does the question mean to ask if they consulted and agreed together to bring up this case in the form in which it has been done? If they agreed upon any other proceeding it is wholly immaterial; but if they agreed upon this case, then we are in this condition of things, that they propose to justify the President's act by the advice of his subordinates, and substitute their opinion upon the legality of his action in this case for yours.

Senators, you passed this tenure-of-office act. That might have been done by inadvertence. The President then presented it to you for your revision, and you passed it again notwithstanding his constitutional argument upon it. The President then removed Mr. Stanton, and presented its unconstitutionality again, and presented also the question whether Mr. Stanton was within it, and you, after solemn deliberation and argument, again decided that Mr. Stanton was within its provisions so as to be protected by it, and that the law was constitutional. Then he removed Mr. Stanton on the 21st of February, and presented the same question to you again, and again, after solemn argument, you decided that Mr. Stanton was within its provisions and that the law was constitutional. Now they offer to show the discussions of the Cabinet upon its constitutionality to overrule the quadruple opinion solemnly expressed by the Senate upon these very questions-four times upon the constitutionality of the law, and twice upon its constitutionality and upon the fact that Mr. Stanton was within it. Is that testimony to be put in here? The proposition whether it was desirable to have this constitutional question raised is the one presented. If it was any other constitutional question in any other case, then it is wholly immaterial. If it is this case, then you are trying that question, and they propose to substitute the judgment of the Cabinet for the judgment of the Senate.

Mr. EVARTS. I must, I think, be allowed to say that the patience of the Senate, which is so frequently referred to by the learned Managers as being taxed, seems to be, in their judg ment, a sort of unilateral patience, and not open to impressions upon opposite sides. Now, Senators, the proposition can be very briefly submitted to you.

By decisive determinations upon certain questions of evidence arising in this cause you have decided that, at least, what in point of time is so near to this action of the Presi dent as may fairly import to show that in his action he was governed by a desire to raise a question for judicial determination shall be admitted. About that there can be no question that the record will confirm my statement. Now, my present inquiry is to show that within this period, thus extensively and comprehensively named for the present, in his official duty and in his consultations concerning his official duty with the heads of De

tion of this law raised embarrassments in the public service and rendered it important as a practical matter that there should be a determination concerning the constitutionality of the law, and that it was desirable that upon a proper case such a determination should be had. I submit the matter to the Senate with these observations.

Mr. Manager BUTLER. Mr. President and Senators, we, of the Managers, object, and we should like to have this question determined in the minds of the Senators upon this principle.partments, it became apparent that the operaWe understand here that the determination of the Senate is, that Cabinet discussions, of what ever nature, shall not be put in as a shield to the President. That I understand, for one, to be the broad principle upon which this class of questions stand and upon which the Senate has voted; and, therefore, these attempts to get around it, to get in by detail and at retail-if I may use that expression-evidence which in its wholesale character cannot be admitted, are simply tiring out and wearing out the patience of the Senate. I should like to have it settled, once for all, if it can be, whether the Cabinet consultations upon any subject are to be a shield. Upon this particular offer, however, I will leave the matter with the Senate after a single suggestion.

It is offered to show that the Cabinet consulted upon the desirability of getting up a case to test the constitutionality of the law. It is either material or immaterial. It might pos

The CHIEF JUSTICE. The Secretary will read the offer to prove.

The Chief Clerk read the offer.

The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate.

Mr. CONNESS called for the yeas and nays, and they were ordered.

Mr. HENDERSON. Mr. President, I desire to submit a question to the Managers before I vote. I send it to the desk.

The CHIEF JUSTICE. The question propounded to the honorable Managers by the Senator from Missouri will be read.

The Chief Clerk read as follows:

If the President shall be convicted, he must bo removed from office.

If his guilt should be so great as to demand such punishment, he may be disqualified to hold and enjoy any office under the United States.

Is not the evidence now offered competent to go before the court in mitigation?

Mr. Manager BUTLER. Mr. President and Senators, I am instructed to answer to that, that we do not believe this would be evidence in any event; but all evidence in mitigation of punishment must be submitted after verdict and before judgment, save where the jury fix the punishment in their verdict, which is not the case here. Evidence in mitigation never is put in to influence the verdict; but if a verdict of guilty is rendered, then circumstances of mitigation, such as good character or possible commission of the crime by inadvertence, can be given, but not upon the issue.

Mr. CONKLING. Is that the rule of practice before this tribunal?

Mr. Manager BUTLER. I do not know as there are any rules of practice here.

Mr. CONKLING. Would that be applicable to this tribunal?

I say

Mr. Manager BUTLER. I am asked by the honorable Senator from New York whether it would be applicable before this tribunal. Under the general practice of impeachments judgment is never given by the House of Peers until demanded by the Commons. Whether that may be applicable here or not I do not mean at this moment to determine. judgment never is given until demanded, and as this judgment is to be given as a separate act, if evidence in mitigation is applicable at all, it must be given to influence that event. There is an appreciable time in this tribunal, as in all others, between a verdict of guilty and the act of judgment; and if any such evidence can be given at all it must, in my judgment, be given at that time. It certainly cannot be given for any other purpose.

I have already stated that we do not believe it to be competent at all, and I am so instructed by my associates; but, if ever competent, it cannot be competent until the time arrives for the consideration of the judgment. If I may ask a question, I would inquire do the President's counsel offer this evidence in mitigation, because if they do that will raise another question. We shall not object to it, perhaps, even now, in mitigation, because that will be a confession of guilt. [Laughter.]

The CHIEF JUSTICE. The Secretary will read the offer to prove once more.

The offer was read as follows:

We offer to prove that at the Cabinet meetings between the passage of the tenure-of-civil-office bill and the order of the 21st of February, 1868, for the removal of Mr. Stanton, upon occasions when the condition of the public service was affected by the operation of that bill came up for the consideration and advice of the Cabinet, it was considered by the President and Cabinet that a proper regard to the public service made it desirable that upon some proper case a judicial determination on the constitutionality of the law should be obtained.

The CHIEF JUSTICE. Senators, you who are of opinion that the evidence offered by the counsel for the President should be received will, when your names are called, answer yea; those of the contrary opinion, nay. The Secretary will call the roll.

The question being taken by yeas and nays, resulted-yeas 19, nays 30; as follows:

YEAS- Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, and Vickers-19.

NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramscy, Sherman, Sprague, Stewart, Thayer, Tipton, Willey, Williams, Wilson, and Yates-30.

NOT VOTING-Messrs. Morton, Norton, Nye, Sumner, and Wade-5.

So the Senate ruled the offer to be inadmissible.

Mr. ANTHONY, (at two o'clock p. m.) I move that the Senate take a recess for fifteen minutes.

The motion was agreed to; and at the expiration of the recess the Chief Justice resumed the chair.

GIDEON WELLES's examination continued. By Mr. EVARTS:

Question. Mr. Welles, was there within the period embraced in the inquiry in the last question, and at any discussions or deliberations of the Cabinet concerning the operations of the civil tenure act, or the requirements of the public service in respect to the same, any suggestion or intimation of any kind touching or looking to the vacation of any office, or obtaining possession of the same by force?

Answer. Never, on any occasionMr. Manager BUTLER. Stop a moment. We object.

The CHIEF JUSTICE. The counsel for the President will please reduce the question to writing.

The question was reduced to writing and sent to the desk and read, as follows:

Was there, within the period embraced in the inquiry in the last question, and at any discussions or deliberations of the Cabinet concerning the operation of the tenure of civil office act and the requirements of the public service in regard to the same, any suggestion or intimation whatever touching or looking to the vacation of any office by force or getting possession of the same by force.

Mr. Manager BUTLER. To that we object. We think it wholly within the previous ruling; and if it were not, it would be incompetent upon another ground-that to show that the President did not state to A, B, or C that he meant to use force by no means proves that he did not tell E, F, and G.

Mr. EVARTS. We may hereafter call persons to testify that he did not tell E, F, and G, and that would not prove that he did not tell A, B, and C.

Mr. Manager BUTLER. And so on to the end of the alphabet.

Mr. EVARTS. Yes; and so on to the end of time. The question is, Mr. Chief Justice and Senators, a negative to exclude a conclusion; and if the subject of force or the purpose of force is within the premises of this issue and trial, evidence on the part of the President to show that in all the deliberations for his official conduct force never entered into contemplation is, as I suppose, rightfully offered on our part.

Mr. Manager BUTLER. We object to the question, whether he told his Cabinet he would or would not use force, as wholly immaterial and as within the last ruling.

The CHIEF JUSTICE. The Chief Justice does not understand the honorable Manager to object to it as leading.

Mr. Manager BUTLER. No; it is not worth while to take that objection. We wish to come to substance.

The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate.

Mr. GRIMES. I ask for the yeas and nays. The yeas and nays were ordered. The CHIEF JUSTICE. The Secretary will read the question.

The Chief Clerk again read the question.

The CHIEF JUSTICE. Senators, you who are of opinion that this question is admissible, will, as your names are called, answer yea; those of the contrary opinion, nay.

Mr. FERRY. I was requested by the Senator from Missouri [Mr. DRAKE] to state that he was called away by sickness in his family.

The question being taken by yeas and nays, resulted-yeas 18, nays 26; as follows:

YEAS-Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Edmunds. Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Patterson of Tennessec, Ross, Saulsbury, Trumbull, Van Winkle, and Vickers-18.

NAYS-Messrs. Cattell, Chandler, Cole, Conkling. Conness, Corbett, Cragin, Ferry, Frelinghuysen, Harlan Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Stewart, Thayer, Tipton, Willey, Williams, Wilson, and Yates-26.

NOT VOTING-Messrs. Cameron, Doolittle, Drake, Henderson, Morton, Norton, Nye, Sprague, Sumner, and Wade-10.

So the Senate decided the question to be inadmissible.

Mr. EVARTS. We are through with the witness.

Cross-examined by Mr. Manager BUTLER : Question. Mr. Welles you were asked if you were Secretary of the Navy, and you said you held under a commission, and you gave the date of the commission?

Answer. March, 1861.

Question. You have had no other?
Answer. No other.

Question. And you have been Secretary of the Navy down to to-day?

Answer. I have continued to this time. Question. Has Lorenzo Thomas acted as a member of the Cabinet down to to day from the 21st of February?

Answer. He has met in the Cabinet since that time.

Question. Did he meet as a member or outsider?

Mr. EVARTS. I submit, Mr. Chief Justice, that this is no cross-examination upon any matter we have examined upon, as far as General Thomas is concerned.

Mr. Manager BUTLER. I waive it. I will not have a word upon that.

By Mr. Manager BUTLER:

Question. Now, then, you told us of something said between you and the President about a movement of troops. I want to know a little more accurately when that was. In the first place what day was it?

Answer. It was on the 22d of February.

Question. Do you know whether they sit of Saturdays, or not?

Answer. I do not.

Question. You do not know upon that mat

ter?

Answer. I do not.

Question. Now, sir, did you learn that there was any other movement of troops, except an order upon one officer of the regiment to meet General Emory?

Answer. Well, I heard of two or three things that evening.

Question. I am now speaking of the officers of the regiment?

Answer. I understand.

Question. Did you learn that there was any other movement of troops except an order to an officer of the regiment to meet General Emory?

Answer. I heard that the officers of the regiment were required to meet at headquarters that evening.

Question. At what time?
Answer. That evening.
Mr. EVARTS. The 21st.
By Mr. Manager BUTLER:

Question. The evening of the 21st?
Answer. The evening of the 21st.

Question. And that the officers were called to headquarters?

Answer. The officers were called to headquarters.

Question. Did you learn whether it was to

Answer. None at all.

Question. What time was it?

Answer. It was not far from twelve o'clock. Question. I understood you to fix that time of day by something that happened with the Attorney General. What was that?

Answer. I called on the President on the 22d, about twelve o'clock. The reception for official business at the Navy Department is from eleven to twelve. I left as soon as I well could, after that matter was over, and therefore it was a little before twelve, I suppose. When I arrived at the President's and called on him, the Atttorney General was there. While there, the nomination of Mr. Ewing was made out.

Question. Never mind about that; I am not now speaking of that.

Answer. I am speaking of that. The Pri vate Secretary wished to get it up to the Senate as early as he could; and Mr. Stanbery remarked that he wished to be here, I think, about twelve; that he had some appointment about twelve; and it had got to be nearly that time then.

Question. I understood you to say that he had some appointment in the Supreme Court. Was that so?

Answer. I will not be sure that it was. Question. Did you not state yesterday that he had an appointment in the Supreme Court? Answer. Perhaps I inferred that it was there; I cannot say that he said it was at the Supreme Court, or where it was.

Question. Did you not so testify yesterday?
Answer. Perhaps I did.

Question. How was the fact?
Answer. He had an engagement.

Question. How was the fact as to your testimony yesterday-not what perhaps you did, but how do you remember you testified on that point yesterday?

Answer. I presume I testified that he was to come here at twelve o'clock to the Supreme Court, because that was my inference. I supposed it was so. He had an engagement at twelve o'clock, and wanted to get away as soon as he could; and it was in connection with the nomination of Mr. Ewing, which went up at the same time.

Question. Have you not heard since yesterday that the court did not sit on Saturdays? Answer. No, sir.

Question. Have you heard anything on that subject?

Answer. No, sir.

a masquerade or going to it as a reason why they were called to headquarters?

Answer. I did not hear the reasons. If I had heard the reasons perhaps they would have satisfied me. I do not know how that may be.

Question. You did not hear the reasons?

Answer. No; I knew the fact that they had been called to meet at headquarters that evening, which was an unusual order, and were called from a party, I believe.

Question. What party?

Answer. A party that was in F or G street, I think; a reception.

Question. That they were called from a party to go to headquarters. Now, sir, that was all the movement of troops you spoke of yesterday to us, was it not?

Answer. I do not recollect that I spoke of others. I spoke of that.

Question. Had you any other in your mind yesterday but that?

Answer. There were some other movements in my mind; but perhaps not connected with General Emory, unless they were called there for a purpose.

Question. There was none communicated to you, whatever might have been in your mind, was there?

Answer. What do you mean by "none communicated?

Question. No other movements were communicated to you, whatever may have been in your mind, that evening?

Answer. I heard of movements that evening, or heard of appearances. I heard that the War Department was lighted up, which was an unusual matter.

Question. You heard that the War Department was lighted up?

Answer. I did. I do not know that I alluded to that to President Johnson; but that was one of the circumstances that I heard of the evening before.

Question. Then the movement was the_call of the officers of one regiment to meet General Emory. How many officers did you hear were called?

Answer. I did not hear the number of offi cers. I heard that General Emory's son and his orderlies, one or two, had called at a party, requesting that any officers belonging to the fifth regiment, and, I believe, to his own, should repair forthwith to headquarters; which was thought to be a very unusual movement.

Question. I did not ask for your thoughts about it?

Answer. Well, I thought it was.