I understand the position to be that primarily, as a judge in court would have the right to do, the presiding officer of the Senate claims the right to rule a question of law, and then if any member of the court chooses to object, it must be done in the nature of an appeal, as taken by one Senator just now. If I am incorrect in my statement of the position of the presiding officer I beg to be corrected.

The CHIEF JUSTICE. The Chief Justice will state the rule which he conceives to be applicable, once more. In this body he is the presiding officer; he is so in virtue of his high office under the Constitution. He is Chief Justice of the United States, and therefore, when the President of the United States is tried by the Senate, it is his duty to preside in that body; and, as he understands, he is therefore the President of the Senate sitting as a court of impeachment. The rule of the Senate which applies to this question is the seventh rule, which declares that "the presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions." He is not required by that rule so to submit those questions in the first instance; but for the dispatch of business, as is usual in the Supreme Court, he expresses his opinion in the first instance. If the Senate who constitute the court, or any member of it, desires the opinion of the Senate to be taken, it is his duty then to ask for the opinion of the

court.

Mr. Manager BUTLER. May I respectfully inquire whether that would extend to a Manager; whether a Manager would have the right to ask that a question of law should be submitted to the Senate?

The CHIEF JUSTICE. The Chief Justice thinks not. It must be by the action of the court or a member of it.

Mr. Manager BUTLER. Then this matter becomes of very important and momentous substance, because the presiding officer, who is not a member of the court, who has no vote in the court, as we understand it, except possibly upon a question of equal division, gives a decision on a question of law, it may be of the first importance, which, if made, precludes the House of Representatives from asking even that the Senate, who are the triers, shall pass upon it. Therefore if this is to be adopted as a rule our hands are tied; and it was in order to get the exact rule that I have asked the presiding officer of the Senate to state, as he has kindly and fully stated, his exact position.

The CHIEF JUSTICE. Mr. Manager, the Chief Justice has no doubt of the right of the honorable Managers to propose any question they see fit to the Senate, but it is for the Senate itself to determine how a question shall be taken.

Mr. Manager BUTLER. I understand the distinction. It is a plain one. The Managers may propose a question to the Senate, and the Chief Justice decides it, and we then cannot get the question we propose before the Senate unless through the courtesy of some Senator. I think I state the position with accuracy; and it is the one to which we object. I again say, respectfully as we ought, but firmly, as we

must.

Now, how are the precedents upon this question? Sorry I am to be obliged to deny the position taken by the presiding officer of the Senate, that the precedents in this country and England are with him. I understand that this question, as a question of precedents in England, has been settled many, many years, hundreds of years. Not expecting that it would arise here, I have not at hand at this moment all the books to which I could refer, but I can give a leading case where this question arose.

If I am not mistaken, it arose in the trial of -Lord Strafford, in the thirty-second year of the reign of Charles II. The House of Lords had a rule prior to the trial of Strafford, by which the Commons were bound to address the lord high steward as his grace or "my lord," precisely as the counsel for the re

as

spondent seem to think themselves obliged to address the presiding officer of this body "Mr. Chief Justice." When the preliminaries of the trial of Strafford and the other popish lords were settled, the Commons objected that, as a part of the Parliament of Great Britain, they ought not to be called upon through their managers to address any individual whatever, and that their address should be made to the Lords in Parliament. A committee of conference between the Commons and Peers was thereupon had, and the rule previously adopted in the House of Lords was, after much consideration, rescinded, and a rule was reported and adopted in that trial, and it has obtained ever since in all other trials. The result of the conference is stated in this way:

"On the 29th of November, 1680, it is agreed at the joint committee, upon the objection made by the Commons to one of the rules laid down by the Lords, viz: That when the Commons should ask any questions at the trial they should apply themselves to the lord steward, that the managers should speak to the Lords as a louse, and say my lords,' and not to the lord high steward, and say my lord' or 'your grace.'

A reason being given that the lord high Steward was not a necessary part of the court, but only as Speaker of the House of Lords, and the Lords themselves were the only body

of triers. When Lord Strafford came to the bar the Lords, conformably to this doctrine, on the 29th of November, 1680, order

"That the Lord Strafford shall be directed to apply himself to the Lords, and not to the lord high steward, as often as he shall have occasion to speak at his trial."

And from that day to the latest trial in Parliament, which is the Earl of Cardigan case in 1841, the rule has been followed. Earl Cardigan being tried in the House of Lords, Lord Chief Justice Denman presided upon that trial, and in that case, as in all the others, the body was universally addressed by counsel on all sides, by prisoner, by managers, by everybody, as" my lords," so that there should be no recognition of any superior right in the presiding officer over any other member of the assembly.

Nor need I upon this matter of precedents stop here. In more than these cases this question his arisen. In Lord Macclesfield's case in 1724, if I remember aright, the point arose whether the presiding officer should decide an incidental question upon the trial; but in every case Lord Chief Justice King referred all questions wholly to the Lords, saying to the Lords "You may decide as you please."

Again, when Lord Erskine presided on the trial of Lord Melville, which was a trial early in the century, conducted with as much care, regard, forms, and with the utmost preservation of decency and order of the proceedings, the question was put to him whether he ruled points of law, and he expressly disclaimed that power; saying in substance, on every ruling of an incidental question, "Unless any noble lord should think that this matter should be further considered in the Chamber of Parliament, I will give my opinion," thereby always submitting the question to the lords in the first

instance.

Again, in Lord Cardigan's case, to which I have just referred, when a question of evidence arose as to whether a card on which the name of Harvey Garnett Tuckett was placed should be given in evidence, the question being whether the man's name was Harvey Garnett Phipps Tuckett or only Harvey Garnett Tuckett, but a question on which the whole trial finally turned when afterward the whole evidence was in, Lord Denman, instead of deciding the question, submitted it to the Lords, as follows:

"The inconvenience of clearing the House is so great that I should rather venture to propose that the decision of this question, if your lordships should be called upon to decide it, had better be postponed."

The question was not at that time pressed. And when the Attorney General of England made his argument upon the evidence Lord Denman arose and apologized to the House of Lords for having allowed him to argue, and said in substance he hoped this would not be drawn into a precedent in criminal trials, but

that he did not think it quite right for him to interfere and stop him. And when, finally, the Lords deliberated with closed doors upon the point taken, and Lord Denman gave an opinion to the Lords upon whether the proof sustained the indictments his lordship said:

"If, my lords, the present were an ordinary case, tried before one of the inferior courts, and the same objection had been taken in this stage to the proof of identity, the judge would consult his notes, and explain how far he thought the objection well founded, and I apprehend that the jury would at once return a verdict of acquittal.

"Your lordships sitting in this High Court of Parliament, unite the functions of both. I have stated my own views, as an individual member of the court, of the question by you to be considered, discussed, and decided. Though I have commenced the debate, it cannot be necessary for me to disclaim the purpose of dictating my own opinion, which is respectfully laid before you with the hope of eliciting those of the House at large. If any other duty is cast upon me, or if there is any more convenient course to be pursued, I shall be greatly indebted to any of your lordships who will be so kind as to instruct me in it. In the absence of any other suggestion, I venture to declare my own judgment, grounded on the reasons briefly submitted, that the Earl of Cardigan is entitled to be declared not guilty."

light of the precedents to which the presiding Now, then, in the light of authority, in the officer has appealed, in the light of reason, object to this claim of power on the part of and in the light of principle, we are bound to the Chief Justice. I say again it is not a mere question of form, for all mere forms we would waive; but it is a question of substance. It is a question whether the House of Representatives can bring, by their own motion, to the Senate a question of law, if the Chief Justice who is presiding chooses to stand between the Senate and the House and its prosecution. That is a question of vital importance, upon which, for the benefit of the people for all time hereafter, if it did not make any difference in this case, I would not yield one hair, because no jot or tittle of the rights of the people or of the House of Representatives, so far as I understand them, shall ever fall to the ground by any inattention or inadvertence or yielding

of mine.

Allow me to state again the proposition declared by the learned presiding officer, because to me it seems an invasion of the privileges of the House of Representatives. It is this: that when the House of Representatives proposes a question of law to the Senate of the United States on the trial by impeachment of the President of the United States, the Chief Justice presiding in this as a court can stand between the House of Representatives and the Senate and decide the question; and then, unless by the courtesy of some Senator who may be induced to make a motion for them, the House of Representatives, through its Managers, cannot get that question of law decided by the Senate.

Let us look

I should be inclined to deem it my duty, and I believe my associate Managers will agree with me if we are put in that position, to ask leave to withdraw and take instruction from the House before we lay the rights of the House, bound hand and foot, at the feet of any one man, however high or good or just he may be; for, as I respectfully bring to your attention, it is a question of most momentous consequence, although not so great, not of so much consequence now, when we have a learned, able, honest, candid, patriotic Chief Justice in the chair, as it may be hereafter. forward tq the time which may come in the history of this nation when we get a Jeffries as lord high steward or Chief Justice. I want, then, that the precedent set in this good time, by good men, when everything is quiet, when the country is not disturbed, to be such as to hold any future Jeffries as did the precedents of old; for this brings to my mind Jeffries' conduct on an exactly similar question, when he was held bound by the precedents of the House of Lords. In the trial of Lord Delamere, Chief Justice Jeffries, being lord high steward, presiding, said to the earl as he came to plead I give substance now, not words"My lord, you had better confess and throw yourself on the mercy of the king, your master;

he is the fountain of all mercy, and it will be better for you so to do." The accused earl replied to him: "Are you, my lord, one of my judges, that give me such advice here on my trial for my death?" Jeffries, quailing before the indignant eye of the man whose rights he was interfering with, said: "No, I am not one of your judges; I only advise you as a friend." I desire the precedents fixed now in good time, as strong as they were before Jeffries's time, so that hereafter, when we get a Jeffries, if we ever have that misfortune, he shall be bound by them. We have had a Johnson in the presidential chair; and we cannot tell who may get into the chair of the Chief Justice in the far future; but, if we do ever get a Jeffries in that chair, I want the precedent upon this point so settled now that it cannot be in any way disturbed, so as to hold him to the true rule as with hooks of steel.

The CHIEF JUSTICE. The Chair will state the question for the consideration of the Senate. The honorable Manager put a question to the witness. It was objected to on the part of the counsel for the President. The Chief Justice is of opinion that it is his duty to express his judgment upon that question, subject to having the question put upon the requisition of any Senator to the Senate. Are you ready for the question?

Mr. GRIMES. The question is, whether the judgment of the Chief Justice shall stand as the judgment of the Senate?

The CHIEF JUSTICE. Yes, sir.

Mr. DRAKE. No, sir. I raise the question that the presiding officer of the Senate had no right to make a decision of that question. The CHIEF JUSTICE. The Senator is not in order.

Mr. DRAKE. I wish that question put to the Senate, sir.

The CHIEF JUSTICE. The Senator will come to order.

Mr. CONKLING. Mr. President, I rise for information from the Chair. I beg to inquire whether the question upon which the Senate is about to vote is whether the proposed testimony be competent or not, or whether the presiding officer be competent to decide that question or not?

The CHIEF JUSTICE. It is the last question, whether the Chair in the first instance may state his judgment upon such a question. That is the question for the consideration of the Senate. The yeas and nays will be called.

Mr. CONKLING. Before the yeas and nays are called, I beg that the whole of the latter clause of the seventh rule may be read for the information of the Senate.

The CHIEF JUSTICE, (to the Secretary.) || Read the rule.

Mr. HOWARD. Read the whole of the rule. The Secretary read as follows:

"VII. The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer upon the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. The presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions; but the same shall, on the demand of one fifth of the members present, be decided by yeas and nays."

Mr. Manager BINGHAM. Mr. President, after consultation with my associate Managers, I ask leave to make some additional remarks

to the Senate before this vote be taken and to call the attention of Senators especially to rule seven to which the President made reference. We think ourselves justified in asking the Senate to consider that rule seven does not contemplate any departure from the long established usage governing proceedings of this character; in other words, that rule seven simply does provide that, "The presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions; but the same shall, on the demand of one fifth of the members present, be decided by yeas and nays." We respectfully submit to the Senate, with all respect to the presiding officer, that

his rule means no more than this: that if no question be raised by the Senators and one fifth do not demand the yeas and nays, it authorizes the presiding officer simply to take the sense of the Senate upon all such questions without a division, and there it ends.

I beg leave further to say to the Senators, in connection with what has fallen already from my associate, that I look upon this question now involved in the decision of the presiding officer as settled by the very terms of the Constitution itself. The Constitution of the United States, as the Senators will remember, provides that the Senate shall have the sole

power to try all impeachments. The expres sion, "the sole power," as the Senate will doubtless agree, necessarily means the only power. It includes everything pertaining to the trial. Every judgment that must be made is a part of the trial, whether it be upon a preliminary question or a final question. It seems to me that the words were incorporated in the Constitution touching this procedure in impeachment in the very light of the long continued usage and practice in Parliament. It is settled, I beg leave to remind Senators, in the very elaborate and exhaustive report of the Commons of England upon the Lords' Journals that the peers alone decide all questions of law and fact arising in such a trial.

It is settled, in other words, that the peers alone are the judges in every case of the law and the fact; that the lord chancellor presid ing is but a ministerial officer to keep order; to present for the decision of the peers the various questions as they arise; to take their judgment upon them; and there his authority

stops.

And this doctrine is considered so well settled, I may be permitted to say further, (here speaking from recollection of that which I have, however, carefully examined,) that it is carried into the great text-books of the law and finds a place in the fourth Institute of Coke, wherein he declares that the peers are the judges of the law and fact, and conduct the whole proceedings according to the law and usage of Parliament.

As I understand this question as it is presented here, I agree with my associate that it is of very great importance, not only as touching the admissibility of evidence-for we certainly have no ground of complaint of the presiding officer for the ruling he made touching the admissibility of the evidence which we offer through this witness-but as touching every other question that can arise; for example, questions that may involve the validity, legality, if you please, of any of the charges preferred in these articles. If such a ruling were asked here of the presiding officer, we submit that it is not competent for him to pronounce any judgment on the subject, that it is alone for the Senate to determine; and they determine it simply for the reason, as I said before, that they have the sole power to try all questions involved in the case.

We stand, then, upon what we believe has been the uniform practice touching this ques tion in England, and we consider that the President presiding now in the Senate has no more power over this question before the Senate than has the lord chancellor, when he presides over the deliberations of the peers, to decide any question. Being himself a peer, he has but

his own vote. I do not think a case can be found wherein it was consented by the peers that the lord chancellor should give a decision in any case which is to stand as the judgment of the court without consulting the peers. That is the position that we assume, and we ask it to be understood and considered by the Senate. We understand that the question upon which the vote of the Senate is to be had is, whether the Senate shall decide that the presiding officer, himself not being a member of that body which is invested with the sole power to try impeachments, and therefore to decide all questions in the trial, can himself make a decision, which decision is to stand as the judg ment of this tribunal unless reversed by a

subsequent action of the Senate. That we understand to be the question that is submitted, and upon which the Senate is about to

vote.

Mr. Manager BUTLER. And that the Managers cannot raise the question.

Mr. Manager BINGHAM. It is also sug gested by my associate that there is also involved in the question the further proposition that the Managers, in the event of such decision being made by the presiding officer, cannot call even for a review of that decision by the Senate.

Mr. WILSON. I move that the Senate retire for the purpose of consultation. Several SENATORS. No, no.

Mr. SHERMAN. Before that is done I desire to submit a question to the Managers in accordance with the rule.

The CHIEF JUSTICE. Does the Senator from Massachusetts withdraw his motion? Mr. WILSON. I withdraw it for a moment. Mr. SHERMAN. I send to the Chair a question.

The CHIEF JUSTICE. The Secretary will read the question.

The Secretary read the question of Mr. SHERMAN, as follows:

I ask the Managers what are the precedents in the cases of impeachment in the United States upon this point? Did the Vice President, as Presiding Officer, decide preliminary questions, or did he submit them in the first instance to the Senate?

further.

Mr. Manager BOUTWELL. Mr. President and gentlemen of the Senate, I am very much indisposed to ask the attention of the Senate As a question concerning the rights of the House in this proceeding, it seems to me of the gravest character; and yet I can very well foresee that the practical assertion. on all questions arising in a protracted trial of the principle which the Managers assert here in behalf of the House is calculated to delay the proceeding, and very likely at times to involve us in temporary difficulties. In what I say I speak with the highest personal respect for the Chief Justice who presides, being fully assured that in the rulings he might make upon questions of law and the admissibility of testimony he would always be guided by that conscientious regard for the right for which he is eminently distinguished.

But I also foresee that if the Managers acting for the House in the case now before the Senate and before the country, and acting, I may say, in behalf of other generations and of other men who unfortunately may be similarly situated in future times, should admit that the Chief Justice of the Supreme Court of the United States, sitting here as the presiding officer of this body for a specified purpose, and for a specified purpose only, has a right to decide, even as preliminary to the final judgment of the Senate, questions of law and evidence which in the end may be vital in the decision of this tribunal upon the question of the guilt or the innocence of the person arraigned, they would make a surrender, in substance, of the constitutional rights of the House and the constitutional rights of the Senate sitting as the tribunal to try impeachments presented by the House of Representatives. With all deference I maintain that the language of the Constitution, in these words:

"When the President of the United States is tried the Chief Justice shall preside"

is conclusive without argument. He presides here not as a member of this body; for if that were assumed the claim would be in derogation, nay, in violation, of another provision of the Constitution which confides to the Senate the sole power of trying all impeachments. I know of no language which could be used more specific in its character, more inclusive and exclusive in its terms. The language includes, as has here been maintained by Mr. Manager BUTLER in the opening argument, all the members of the Senate, all the men chosen under the Constitution and representing the several States of the Union, whatever may be their

Drake, Ferry, Howard, Howe, Morgan, Morrill of Maine, Morton, Nye, Ramsey, Sherman, Stewart, Sumner, Thayer, Tipton, and Wilson-18.

NOT VOTING-Messrs. Grimes, Harlan, Wade, and Yates-4.

So the motion to postpone was agreed to.

Mr. HENDERSON submitted the following resolution:

Resolved, That Rule 7 be amended by substituting therefor the following:

The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer on the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. And the presiding officer on the trial may rule all questions of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision; or he may, at his option, in the first instance submit any such question to a vote of the members of the Senate.

Mr. MORRILL, of Maine, moved to amend the proposed rule by striking out the words "which ruling shall stand as the judgment of the Senate."

After debate,

Mr. SUMNER called for the yeas and nays on his amendment, and they were ordered; and being taken, resulted-yeas 22, nays 26; as follows:

YEAS-Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Howard, Morgan, Morrill of Maine, Morton, Nye, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams, and Wilson-22.

NAYS-Messrs. Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers, and Willey-26.

NOT VOTING-Messrs. Anthony, Grimes, Harlan, Saulsbury, Wade, and Yates-6.

So the amendment of Mr. SUMNER was rejected.

Mr. DRAKE moved to amend the resolu tion by striking out all after the word "that" and inserting:

It is the judgment of the Senate that under the Constitution the Chief Justice presiding over the Senate in the pending trial has no privilege of ruling questions of law arising thereon, but that all such questions should be submitted to a decision by

the Senate alone.

After debate,

Mr. DRAKE called for the yeas and nays, and they were ordered; and being taken, resulted yeas 20, nays 30; as follows:

YEAS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Drake, Ferry, Howard, Howe, Morgan, Morrill of Maine, Morton, Nye, Ramsey, Stewart. Sumner, Thayer, Tipton, and Wilson-20. NAYS-Messrs. Anthony, Bayard, Buckalew, Corbett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, Willey, and Williams-30.

NOT VOTING-Messrs. Grimes, Harlan, Wade, and Yates-4.

So the amendment was rejected. The question recurring on the rule proposed. by Mr. HENDERSON, after debate,

Mr. FERRY called for the yeas and nays, and they were ordered; and being taken, resulted in yeas 31, nays 19; as follows:

YEAS-Messrs. Anthony, Bayard, Buckalew, Cameron, Corbett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler. Frelinghuysen, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, Willey, and Williams-31.

NAYS-Messrs. Cattell, Chandler, Cole, Conkling. Conness, Drake, Ferry, Howard, Howe, Morgan,

Morrill of Maine, Morton, Nye, Ramsey, Stewart, Sumner. Thayer, Tipton, and Wilson-19.

NOT VOTING-Messrs. Grimes, Harlan, Wade, and Yates-4.

So the resolution submitted by Mr. HENDERSON was agreed to.

Mr. SUMNER submitted the following reso. lution:

Resolved, That the Chief Justice of the United States presiding in the Senate on the trial of the President of the United States is not a member of the Senate, and has no authority under the Constitution to vote on any question during the trial.

Mr. HENDRICKS objected to the recep tion of the proposition, as it did not relate to the matter on which the Senate had retired to confer; and he moved that the Senate return to the Senate Chamber; which motion was agreed to.

The Senate returned to its Chamber at eighteen minutes past six o'clock p. m.

The CHIEF JUSTICE. The Senate has had under consideration the question before it when it retired, and has directed me to report the rule adopted, which will be read by the Secretary.

The SECRETARY. The seventh rule, as now amended, reads:

The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer on the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. And the presiding officer on the trial may rule all questions of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon; in which case it shall be submitted to the Senate for decision, or he may, at his option, in the first instance submit any such question to a vote of the members of the Senate.

The CHIEF JUSTICE. Gentlemen Managers on the part of the House of Representatives, you will please state your question.

Mr. Manager BUTLER. Will you spare us a moment for consultation? The chairman of the Managers is out.

Mr. TRUMBULL. Mr. President, unless the Managers desire that we should continue now in session to take immediate action, I would propose that the Senate adjourn until half past twelve o'clock to-morrow.

Mr. FERRY and others. The rules fix twelve o'clock.

Mr. TRUMBULL. Very well; until twelve o'clock. If the Managers desire to submit any particular action at this moment I will withdraw the motion; if not, I insist upon it.

Mr. WILLIAMS. I move, first, that the rules, as amended, be printed for the use of the Senate.

The CHIEF JUSTICE. The Senator from Oregon moves that the rules, as amended, be printed for the use of the Senate.

The question being put, the motion was agreed to.

Mr. TRUMBULL. I now renew my motion that the Senate, sitting as a court of impeachment, adjourn.

Mr. Manager BUTLER. We have nothing to oppose to the motion.

The CHIEF JUSTICE. Have the counsel for the President anything to propose?

Messrs. STANBERY and EVARTS indicated that they had not.

The CHIEF JUSTICE. It is moved that the Senate, sitting as a court of impeachment, adjourn until to-morrow at twelve o'clock.

The motion was agreed to; and the Chief Justice declared the Senate, sitting as a court of impeachment, adjourned until to-morrow at twelve o'clock.

WEDNESDAY, April 1, 1868.

The Chief Justice of the United States entered the Senate Chamber at five minutes past twelve o'clock and took the chair.

The usual proclamation having been made by the Sergeant-at-Arms,

The Managers of the impeachment on the part of the House of Representatives appeared and took the seats assigned them.

The counsel for the respondent also appeared and took their seats.

The presence of the House of Representatives was next announced, and the members of the House, as in Committee of the Whole, headed by Mr. E. B. WASHBURNE, the chairman of the committee, accompanied by the Speaker and Clerk, entered the Chamber, and were conducted to the seats provided for them.

The CHIEF JUSTICE. The Secretary will read the minutes of the last day's proceedings.

The Secretary read the Journal of the proceedings of the Senate yesterday sitting for the trial of the impeachment.

Mr. SUMNER. Mr. President, I send to the Chair an order which is in the nature of a correction of the Journal.

The CHIEF JUSTICE. The Secretary will read the order proposed.

The Secretary read as follows:

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

Mr. SUMNER. On that question I ask for the yeas and nays.

The yeas and nays were ordered; and being taken, resulted-yeas 21, nays 27; as follows: YEAS-Messrs. Cameron, Chandler, Cole, Conkling, Conness, Cragin, Drake, Howard, Howe, Morgan, Morrill of Maine, Morton, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams, and Wilson-21.

NAYS-Messrs. Anthony, Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers, and Willey-27.

NOT VOTING-Messrs.Cattell, Harlan, Nye, Saulsbury, Wade, and Yates-6.

So, the proposed order was rejected.

The CHIEF JUSTICE. Senators, during the proceedings yesterday a question was submitted by the Managers on the part of the impeachment in relation to evidence, and that question was objected to by the counsel for the President. The Managers will now please to submit that question in writing.

Mr. Manager BUTLER presented the question in writing at the Secretary's desk.

The CHIEF JUSTICE. The Secretary will read the question.

The Secretary read the following question proposed to be put to the witness, WALTER A. BURLEIGH:

"You said yesterday, in answer to my question, that you had a conversation with General Lorenzo Thomas on the evening of the 21st of February last. State if he said anything as to the means by which he intended to obtain, or was directed by the President to obtain, possession of the War Department? If so, state all he said as nearly as you can."

Mr. STANBERY. We object, Mr. Chief Justice.

desire to

The CHIEF JUSTICE. Do you make any observations to the court? Mr. STANBERY. We do, sir. The CHIEF JUSTICE. The question will be submitted to the Senate.

Mr. HOWARD. What is the question? The CHIEF JUSTICE. The Secretary will read the question again.

The Secretary again read the question. Mr. FRELINGHUYSEN. Mr. President, I desire to submit a question.

The CHIEF JUSTICE. The Secretary will read the question submitted by the Senator from New Jersey [Mr. FRELINGHUYSEN] to the Managers.

The Secretary read as follows:

Do the Managers intend to connect the conversation between the witness and General Thomas with the respondent?

The CHIEF JUSTICE. Are the Managers prepared to reply to the question?

Mr. Manager BUTLER. Mr. President, if the point is to be argued, with the leave of the Senate we will endeavor to answer that question in the argument.

The CHIEF JUSTICE. It is to be argued. The honorable Manager will proceed, if he

desires.

Mr. Manager BUTLER. The answer is, || Mr. President, if you will allow me to repeat it, that, as I understand, the point raised is to be argued on the one side and the other, we will endeavor to answer the question submitted by the Senator from New Jersey in the course of our argument.

Mr. TRUMBULL. Mr. President, I should like to hear the question read again, as I think the answer to the inquiry of the Senator from New Jersey is in the question propounded by the Managers, as I heard it.

The CHIEF JUSTICE. The Secretary will read the question again. Senators will please give their attention.

The Secretary again read the question of Mr. Manager BUTLER.

The CHIEF JUSTICE. Do the Managers propose to answer the question of the Senator from New Jersey?

Mr. Manager BUTLER. If there is to be no argument, Mr. President, I will answer the question proposed. If there is to be an argument on the part of the counsel for the President, we propose, as a more convenient method, to answer the question in the course of our argument, because otherwise we might have to make an argument now. I can say that we do propose to connect the respondent with this testimony.

The CHIEF JUSTICE. Senators

Mr. STANBERY. Is it in order now, Mr. Chief Justice, for us to argue the question?

The CHIEF JUSTICE. If the counsel desire to submit any observations to the Senate, they may do so.

Mr. STANBERY. Mr. Chief Justice and Senators, we have at length reached the domain of law; we are no longer to argue questions of mere form or modes of procedure, but have come at last to a distinct legal question, proper to be argued by lawyers and to be considered by lawyers.

The question now, Mr. Chief Justice and Senators, is, whether any foundation is laid, either in the articles or in any testimony yet given, why the declarations of General Thomas should be used in evidence against the Presi dent. General Thomas is not on trial; it is the President, the President alone, and the testimony to be offered must be testimony that is binding upon him or admissible against him.

It is agreed that the President was not present on the evening of the 21st of February, when General Thomas made these declarations. They were made in his absence. He had no opportunity of hearing them or contradicting them. If they are to be used against him, it is because they were uttered by some one speaking for him, who was authorized by him to make these declarations of his intentions and his purposes.

Now, first of all, what foundation is laid why the declarations of General Thomas as to what he intended to do, or what the President had authorized him to do, should be given in evidence against the President? It will be seen that by the first article the offense charged against the President is that he issued a certain order to Mr. Stanton for his removal; ordering his removal, and adding that General Thomas was authorized to receive from him a transfer of the books, papers, records, and property in the Department. Now, the of fense laid in that article is not as to anything that was done under it, but simply that in itself the mere issuing of that order is the gravamen of the offense charged. So much for the first article.

What is the second? That on the same day, the 21st of February, 1868, the President issued a letter of authority to General Thomas, and the gravamen there is the issuing of that letter of authority, not anything done under it.

What next? The third article goes upon the same letter of authority, and charges the issuing of it to be an offense with intention to violate a certain statute.

Then we come to the fourth article, which charges a conspiracy. Senators will observe that in the three first articles the evidence

charged is issuing certain orders, nothing beyond, as in violation either of the Constitution or of the act called the tenure-of-office act. But by the fourth article the Managers proceed to charge us with an entirely new offense against a totally different statute, and that is a conspiracy between General Thomas and the President and other persons unknown, by "force' in one article, "by intimidation and threats" in another, to hinder and prevent Mr. Stanton from holding the office of Secretary of War, and that in pursuance of that conspiracy certain acts were done which are not named, with intent to violate the conspiracy act of July, 1861.

or tending to have a conspiracy? Does that make General Thomas an agent of the President in such a sense as that the President is to be bound by everything he says and everything he does even within the scope of his agency? If it makes him his agent, does this letter of authority, this written authority, authorize him to do anything but that which he is commanded to do-go there and demand possession, go there and receive a transfer from the person? Does it authorize him to use force? Does it authorize him to go beyond the letter and the meaning of the authority which is given him? Not at all.

Now, in the first place, it must be either on the footing of a conspiracy between General Thomas and the President or upon the footing of a direct agency, in which the President is the principal and General Thomas is the agent, that the declarations of General Thomas, either as coconspirator or as agent of a principal, in evidence. I do not know any other ground upon which the learned Managers can place the admissibility of this hearsay declaration, not under oath, by a party not on the record.

These are the only charges that have any relevancy to the question which is now put. I need not refer to the other articles, in which offenses are charged against the President arising out of his declarations to General Emory, the speeches made, one at the Executive Mansion in August, 1866, another at Cleve-acting within his authority, are to be admitted land on the 3d day of September, 1866, and another at St. Louis on the 8th of September, 1866. For the present they are out of the way. Now, what proof has yet been made under the first eight articles? The proof is simply, so far as this question is concerned, the production in evidence of the orders themselves. There they are to speak for themselves. As yet we have not had one particle of proof of what was said by the President, either before or after he gave those orders or at the time that he gave those orders-not one word. The only foundation now laid for the introduction of this testimony is the production of the orders themselves. The attempt made here is, by the declarations of General Thomas, to show with what intent the President issued those orders; not by producing him here to testify what the President told him, but without having him sworn at all, to bind the President by his declarations not made under oath; made without the possibility of cross-examination or contradiction by the President himself; made as though they are made by the authority of the President.

Now, Senators, what foundation is laid to show such authority, given by the President to General Thomas, to speak for him as to his intent, or even as to General Thomas's intent, which is quite another question. You must find the foundation in the orders themselves, for as yet you have no other place to look for it. Now, what are these orders? That issued to General Thomas is the most material one; but, that I may take the whole, I will read also that issued and directed to Mr. Stanton himself. He says to Mr. Stanton, by his order of February 21, 1868:

"SIR: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication.

You will transfer to Brevet Major General Lorenzo Thomas, Adjutant General of the Army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other public property now in your custody and charge.'

So much for that. Then the order to General Thomas of the same day is:

SIR: Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office.

Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge.

Respectfully, yours, ANDREW JOHNSON. To Brevet Major General LORENZO THOMAS, Adjutant General United States Army, Washington, D. C.

There they are; they speak for themselves, orders made by the President to two of his subordinates; an order directing one of them to vacate his office and to transfer the books and public property in his possession to another party, and the order to that other party to take possession of the office, receive a transfer of the books, and act as Secretary of War ad interim. Gentlemen, does that make them conspirators? Is that proof of a conspiracy

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I agree that when a proper foundation is laid by proof of a conspiracy in which A, B, and C are concerned then the declarations of any one of the conspirators, made while the conspiracy is in process, made, too, in furtherance of the conspiracy, not outside of it, not in reference to any other unlawful act, but in reference to the very unlawful act agreed upon, may be admitted. I concede that, under these circumstances, the declaration of any one conspirator binds all his fellows, although made in their absense. So, too, I agree, Senators, that when an agency is established, either by parol proof or by writing-and when established by writing that is the measure of the agency, and you cannot extend it by parol proofwhen an agency is constituted either by parol proof or by writing to do a certain thing, the acts, and, under certain circumstances, the declarations of the agent, made in performance of that authority, not outside of it, but in performance of it, bind the principal.

Now, I ask this honorable court where is there any evidence yet establishing anything like a conspiracy between the President and General Thomas? Where is there any proof yet establishing any agency between General Thomas and the President, in which the President was principal and General Thomas the agent, save this letter of authority? I do not admit that this letter of authority constitutes the relation of principal and agent at all. I do not admit that the President is to be bound by any declarations made by General Thomas on the footing that he is agent of the President; but if he were, if this were a case strictly of principal and agent, then I say this letter of authority gives no authority to General Thomas to bind his principal beyond the express authority so given.

The object of this proof, as we are told by the learned Manager, is to show that General Thomas declared that it was his intention and the intention of the President, in executing that authority, to use force, intimidation, and threats. Does the authority authorize anything of that sort, even if it were a case of principal and agent? Suppose a principal gives authority to his agent to go and take possession of a house of his in the occupation of a tenant, and to receive from that tenant the delivery of the house; does it authorize the agent to go there manu forti to commit an assault and battery upon the tenant, to drive him out vi et armis, or even scarcely to use the molliter manus? I submit not. Is the principal to be made a criminal by the act of his agent acting simply under an authority which purports only to give a right of peaceable possession and of surrender by the consent of the party in possession? Is the principal to be bound by any excess of authority used by his agent in executing it; or is he, when the authority is in writing and does not authorize force to be bound by the declarations of the agent that