Mr. EVARTS. The counsel for the President object to that question as irrelevant and immaterial to any issue in this cause, and as not to be brought in evidence against the President by any support given by the testimony already in, which would, under any ruling of this court, or on any principle of law, permit these declarations or statements of General Thomas made to the clerks of the War Department antecedent to the time of the issue of the orders by the President, which are in evidence, as to what he, Thomas, would do when he, Thomas, if at all, should become Secretary of War.

Mr. Manager BUTLER. Mr. President, I do not desire to argue this question, for the reason that I think it falls within the question last discussed. If Thomas, as was the ground we put the last question upon, was a co-conspirator with the President, how can either my learned friends on the other side or the Senate know when that conspiracy commenced? You will observe the question carries with it this state of facts: Thomas had been removed from the office of Adjutant General for many years under President Lincoln under the administration of Mr. Stanton of the War Office. That is a fact known to all men who know the history of the war. Just before he made him Secretary of War ad interim, the President restored Thomas to the War Office as the Adjutant General of the army. That was the first step to get him in condition to make a Secretary of War of him. That was the first performance of the President, the first act in the drama. He had to take a disgraced officer, and take away his disgrace, and put him into the Adjutant General's office, from which he had been by the action of President Lincoln and Mr. Stanton suspended for years, in order to get fit instrument on which to operate; get him in condition. That was part of the training for the next stage. Having got him in that condition, he being sufficiently virulent toward Mr. Stanton for having suspended him from the office of Adjutant General, the President then is ready to appoint him Secretary ad interim, which he does within two or three days thereafter.

We charge that the whole procedure shows the conspiracy. Here is the taking up of this disgraced officer and restoring him to a position in the War Office when he was a known enemy of Mr. Stanton's, feeling aggrieved, undoubtedly, that Mr. Stanton had deposed him, and putting him in there so that he might have some official station; and then, after having done that, Mr. Thomas goes to seducing clerks to get them ready to receive him when he should be brought into the War Office itself as its head. Now, I propose to show his acts, the acts of one of these co-conspirators, clustering about the point of time just before the period when he was going to break down the doors of this office with crowbars and axes and force, as has been testified as he said he was, that he was trying to seduce the clerks and employés from their allegiance. We insist it is all a part of one transaction, and entirely comes within the ruling which has just been made. I believe I have stated the matter as the managers desired I should.

Mr. EVARTS. The question which led to the introduction of this witness's statements of General Thomas's statements to him, of his intentions, and of the President's instructions to him, General Thomas, was based upon the claim that the order of the President of the 21st of February, upon Mr. Stanton for removal, and upon General Thomas to take possession of the office, created and proved a conspiracy; and that thereafter, upon that proof, declarations and intentions were to be given in evidence. That step has been gained, and, in the judgment of this honorable court, in conformity with the rules of law and of evidence. That being gained, it is similarly argued that if, on a conspiracy proved, you can introduce declarations made thereafter, by the same rule you can introduce declarations made theretofore; and that is the only argument which is presented to the court for the admission of this evidence.

So far as the statements of the learned manager relate to the office, the position, the character, and the conduct of General Thomas, it is sufficient for me to

say that not one particle of evidence has been given in this cause bearing upon any one of those topics. If General Thomas has been a disgraced officer; if these aspersions, these revilings are just, they are not justified by any evidence before this court. And if, as matter of fact, applicable to the situation upon which this proof is sought to be introduced, the former employments of General Thomas, and the recent restoration of him to the active duties of Adjutant General are pertinent, let them be proved; and then we shall have at least the basis of fact of General Thomas's previous relations to the War Department, to Mr. Stanton, and to the office of Adjutant General.

And now, having pointed out to this honorable court that the declarations sought to be given in evidence of General Thomas to affect the President with his intentions are confessedly of a period antecedent to the date to which any evidence whatever before this court brings the President and General Thomas in connection, I might leave it safely there. But what is there in the nature of the general proof sought to be introduced that should affect the President of the United States with any responsibility for these general and vague statements of an officer of what he might or could or would do, if thereafter he should come into the possession of power over the department?

Mr. Manager BINGHAM. I desire to say a word or two in reply. I am willing to concede that any question beyond what may have been said by one who is shown to have entered into a conspiracy before the transaction is not admissible. I concede it, however, subject to this exception: that the Senate being the triers of the fact as well as the law, will remember that the rule of evidence has been so extended on very similar occasions in courts of justice as to allow of declarations of this sort so shortly anterior to the time in which the conspiracy is shown to have been actually entered into to go to the jury and allow them to determine what weight ought to be attached to them. That is the principle upon which the question is put. It is qualified by the words " shortly before. Suppose it were within two or three days, and the act done on the part of the co-conspirator was an act tending to bring about the result sought to be accomplished by that which was afterward mutually agreed upon between them; is there any one here to doubt that it is evidence tending to show that beyond the facts, so far as they have been traced, some understanding, some arrangement was entered into, and, if you please, a voluntary one, on the part of the man who afterward became by solemn agreement a party to the conspiracy-a voluntary act committed on his part in order to commend him to the chief in the conspiracy itself. The general rule as stated in the book would admit, I am satisfied, of that latitude of construction. I read from Roscoe's Criminal Evidence, p. 88:

The evidence in conspiracy is wider than, perhaps, in any other case, other principles as well as that under discussion tending to give greater latitude in proving this offence. Taken by themselves the acts of a conspiracy are rarely of an unequivocally guilty character, and they can only be properly estimated when connected with all the surrounding circumstances. Not only, as in the cases before mentioned, may the acts and declarations of the prisoner himself on former occasions be admitted when referable to the point in issue, but also the acts and declarations of other persons-

Meaning, of course, on former occasions, supplying the ellipsis

with whom he has conspired, may, if referable to the issue, be given in evidence against him.

That is the general rule; and yet I admit if it were so framed as not in probability to connect itself with the transaction, it ought not to be received; but the question is so restricted-and we do not stand here to claim it unless it falls out on the evidence that it is nearly connected in point of time with the operations of these parties-and the testimony itself manifestly, as is explained by the manager on the part of the House who has put the question, indicates a desire and purpose on the part of Thomas to make his arrangements with the employés of the War Department.

The CHIEF JUSTICE. The Chief Justice is of opinion that no sufficient foundation has been laid for the introduction of this testimony. He will submit the question to the Senate with great pleasure if any senator desires it. The question is ruled to be inadmissible.

Mr. HOWARD. Mr. President

Mr. Manager BUTLER. I respectfully

The CHIEF JUSTICE. The senator from Michigan. Does the senator desire the question to be taken by the Senate?

Mr. HOWARD. Yes, Mr. President.

Mr. Manager BUTLER. I was about rising to ask the Senate if they would not relax the rule, and when the managers on the part of the House of Representatives and the people have a question which they deem of consequence to their case allow that to be put to the Senate upon the motion of the House of Repre

sentatives.

The CHIEF JUSTICE. The Secretary will read the question.

The Secretary read as follows:

Q. Shortly before this conversation about which you have testified, and after the President restored Major General Thomas to the office of Adjutant General, if you know the fact that he was so restored, were you present in the War Department, and did you hear Thomas make any statement to the officers and clerks, or either of them, belonging to the War Office, as to the rules and orders of Mr. Stanton, or of the office which he, Thomas, would revoke, relax, or rescind in favor of such officers and employés when he had control of the affairs therein? If so, state as near as you can when it was such conversation occurred, and state all he said as nearly as you can.

THE CHIEF JUSTICE. The question is, Shall the question proposed by Mr. Manager Butler be put to the witness?

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

The yeas and nays were ordered; and being taken, resulted-yeas 28, nays 22; as follows:

YEAS-Messrs. Anthony, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Henderson, Howard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, and Wilson-28.

NAYS-Messrs. Bayard, Buckalew, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Sherman, Van Winkle, Vickers, Willey, and Williams-22. NOT VOTING-Messrs. Harlan, Saulsbury, Wade, and Yates-4.

The CHIEF JUSTICE. On this question the yeas are 28 and the nays 22. So the Senate decides that the question shall be put to the witness.

Mr. Manager BUTLER. With the leave of the President, I will put this question by portions. [To the witness.] Shortly before the conversation about which you have testified, and after the President restored Major General Thomas to the office of Adjutant General, if you know the fact that he was so restored, were you present in the War Department?

A. Yes, sir; I was.

By the CHIEF Justice:

Q. Did you know the fact that he was so restored?
A. He told me so. He was acting in the office.

By Mr. Manager BUTLER :

Q. Did you hear Thomas make any statement to the officers and clerks, or either of them, belonging to the War Office, as to the rules and orders of Mr. Stanton, or of the office, which he, Thomas, would revoke, relax, or rescind in favor of such officers and employés when he had control therein? If so, state when this conversation was as near as you can.

A. Soon after General Thomas was restored to his position as Adjutant General I had occasion to go to his office to transact some business with him; and

after transacting the business I invited him to take a short walk with me. general remarked that he had made an arrangement

The

Mr. EVARTS. Mr. Butler, your question was "when ?"
Mr. Manager BUTLER, (to the witness.) When was this?

A. Soon after General Thomas's restoration to office as Adjutant General.
Q. How long before the time when he was appointed Secretary of War?

A. I should think not more than a week or ten days. I have no definite means of knowing now.

Q. Go on.

A. He remarked to me

Mr. EVARTS. Wait a moment, Mr. Witness. I understood your question, Mr. Butler, allowed by the Senate, to refer to statements made by General Thomas at the War Office, as heard by this witness, to clerks there of the department. The witness is now proceeding to state what took place in a walk between him and General Thomas.

The WITNESS. No, sir; we had not taken the walk. I am not in the habit of testifying before courts, and you will pardon me for a little latitude. Mr. Manager BUTLER. He had not said that they took the walk. Mr. EVARTS. This, I understand, is only inducement, Mr. Butler. Mr. Manager BUTLER. The inducement to the conversation.

The WITNESS. The general remarked to me that he had made an arrangement to have all the heads or officers in charge of the different departments of the office come in with their clerks that morning, and he wanted to address them. He stated that the rules which had been adopted for the government of the clerks by his predecessor were of a very arbitrary character, and he proposed to relax them. I suggested to him that perhaps I had better go. Said he, "No; not at all; remain;" and I sat down, and he had some three or four officers-four or five perhaps come in, and each one brought in a room-full of clerks, and he made an address to each company as they came in, stating to them that he did not propose to hold them strictly to the letter of the instructions; but when they wanted to go out they could go out, and when they wanted to come in they could come in; that he regarded them all as gentlemen, and supposed they would do their duty, and he should require them to do their duty; but so far as their little indulgences were concerned-I suppose such as going out across the street or something of that kind-he did not propose to interfere with them; all he expected was that they would do their duty. I waited until he concluded, and we took the walk, and I came away. I remarked to the general he would make a very fine politician.

Q. Did he say anything as to the character of the orders that existed before? A. He said that they were very harsh and arbitrary-nothing more than that, that I know of—and he proposed to relax them.

Q. You have told us that you had known General Thomas for some time. Had he been off duty as Adjutant General of the army for some time before this?

A. Yes, sir.

Q. How long?

A. I am not able to tell you; some two or three years, I should think.

Mr. STANBERY. Mr. Chief Justice, we object to this mode of proving orders for removal.

Mr. Manager BUTLER. I will not press it a hair. I will get the order. Mr. STANBERY. Especially do we object when it is said to disgrace an officer. We would rather see the proof than hear the assertion.

Mr. Manager BUTLER. Does the gentleman, when he makes the gesture accompanying those words, mean my assertion? For I am going to prove it upon the oath of a witness.

Mr. STANBERY. Is the gentleman speaking to me? What was the question?

Mr. Manager BUTLER. Whether you mean my assertion, or the assertion of the witness?

The CHIEF JUSTICE. This controversy does not appear to have any proper relation to the case on trial.

Mr. Manager BUTLER, (to the witness.) Had he been away from the city, and not in the Adjutant General's office for a considerable period of time? A. Yes, sir; he had been sent south.

Mr. STANBERY. That will not do.

Mr. Manager BUTLER, (to the witness.) How lately had he returned to the office when he made this speech?

A. I am not able to say; but a very few days.

Q. Since you had the conversation about breaking down the doors of the War Office by force, have you seen General Thomas ?

A. Yes, sir; I have.

Q. Were you called upon by the managers to give your testimony in their room?

Q. Was it taken down in short-hand?

A. I am not able to say how it was taken down; I did not see it.

Q. After it was taken down after you gave it, was General Thomas called in? A. He told me he was to be called in. I did not see him go in. I saw him on the floor of the House, and he told me he had been summoned and was going up as soon as some one came for him.

Q. Did you see him after he had been up?

A. I did.

Q. What did he tell you as to your testimony?

Mr. EVARTS. That we object to.

The CHIEF JUSTICE, (to the managers.) The honorable managers will reduce the question to writing.

Mr. Manager BUTLER. I have heard the objection. I propose to show, if I am allowed, that Mr. Burleigh's testimony before the managers, which I propose to put in his hand and identify in a moment, was read to General Thomas, containing exactly what he has testified here, and General Thomas said it was all true, and never informed Mr. Burleigh that it was not true. I do this by way

of settling the question, that there can be no mistake about itMr. STANBERY. For what purpose?

The CHIEF JUSTICE. The manager will reduce his question to writing, it being objected to.

Mr. Manager BUTLER. Well, I will not press it to take time by an argument. (To the witness.) Have you had any conversation since, with him, as to this conversation about which you have testified?

A. I have.

Q. What has he said about it?

Mr. STANBERY, Mr. EVARTS, and Mr. CURTIS. That we object to.

Mr. Manager BUTLER. I propose to put in subsequent declarations confirming exactly the declarations which have been allowed to be put in. I suppose I can put in the same declarations twice.

The CHIEF JUSTICE. The question will be reduced to writing, if objected to. Mr. Manager BUTLER. I will ask a single question before that, so as to fix the date. (To the witness.) When did you see him, as near as you can recollect?