The CHIEF JUSTICE. The Chief Justice will subunit the question to the Senate as it is proposed.

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

The yeas and nays were ordered.

Mr. ANTHONY. Let the question be read.

The Secretary again read the question.

The question being taken by yeas and nays, resulted-yeas 23, nays 29; as follows:

YEAS-Messrs. Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morgan, Norton, Patterson of Tennessee, Ross, Sprague, Sumner, Trumbull, Van Winkle, Vickers, and Willey-23.

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

NOT VOTING-Messrs. Saulsbury and Wade-2.

So the Senate decided the question to be inadmissible.

By Mr. STANBERY:

Q. Now, the second interview, General Sherman: when did you say that was? A. The second interview, wherein he offered me that appointment, was on the 30th of January.

Q. In that interview did he again make an offer to you to be Secretary of War ad interim?

A. Very distinctly, sir.

Q. At that interview was anything said in explanation of that offer?

Mr. Manager BINGHAM and Mr. Manager BUTLER. We object.

Mr. EVARTS. The same ruling, of course.

Mr. STANBERY. I only want it to be ruled out, if you object to it. Let us have the ruling upon it.

Mr. Manager BUTLER. I would ask the presiding officer whether that does not exactly fall within the ruling just made?

Mr. EVARTS. We understand that it does, Mr. Butler, and have so stated to the Chair. We have asked our question, and we take the ruling of the court against it.

By Mr. STANBERY:

Q. In these conversations did the President state to you that his object was to take the question before the courts?

Mr. Manager BINGHAM and Mr. Manager BUTLER. Stop a moment. We object to that.

The CHIEF JUSTICE. The counsel will please reduce their question to writing. Mr. Manager BUTLER. I suppose they do not propose

Mr. STANBERY. We have a right to offer it.

Mr. Manager BINGHAM. We have a right to object to it.

Mr. STANBERY. That we understand perfectly. We may state what we propose to prove.

Mr. Manager BUTLER. But then, Mr. President, the courts sometimes say, after they have ruled a question, that it is not within the proprieties of the trial to offer the same thing over and over again. It is sometimes done in a court for the purpose of taking a bill of exceptions or a writ of error on the rulings. If the counsel say that that is the purpose here, we shall not object, because they ought to preserve their rights in all forms. But supposing this to be the court of last resort, if court at all, there can be no proper occasion over and over for throwing themselves against the rulings.

Mr. STANBERY. I do not understand that the ruling was upon this specific question. It was the general question, what was said, that was ruled out those times. I want to make the specific question now, to indicate what we desire to prove. I now put the specific question whether in any of those interviews the

{

President said what was his intention in regard to making the question at law? I have not put that question before.

Mr. Manager BUTLER. And, Mr. President, my remarks were in reply to the distinct admission of the counsel that the question came within the ruling and that he expected it to be ruled out, but still intended to make the offer.

Mr EVARTS. That was the previous question.

Mr. Manager BUTLER. Oh, no; this last one.

Mr. EVARTS. No; you are mistaken about it. Besides, Mr. Chief Justice and Senators, although there is no review by any court of your determinations of interlocutory or of final questions, yet, as the learned managers know, it is entirely competent to bring to the notice of the court that is to pass upon the question in the final judgment the evidence that is supposed to be admissible, in order that it may be, as it is always if properly originated, a matter of argument, that the case is to be disposed of on the ground as if it were admitted; and that we have a right to do, and not be limited to abstractions in the determination of these questions.

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

Mr. EVARTS. And the difference we make between this specific question and the general question which has been excluded, and in regard to which we do not propose to trouble the Senate further, is, that when a general conversation cannot be admitted, if the objection be applicable, and it has been successfully made here, then to exclude a conclusion on a definite point the specific question may be put.

The CHIEF JUSTICE. The counsel will reduce their question to writing. The question being reduced to writing, it was handed by the counsel for the respondent to Mr. Manager Butler, and after inspection, handed by him to the Secretary.

Mr. Manager BUTLER. I object, Mr. President, to the question, both as leading in form, outrageously so, and incompetent under the previous rulings. The CHIEF JUSTICE. The Secretary will read the question.

The Secretary read the question as reduced to writing, as follows:

In either of these conversations did the President say to you that his object in appointing you was that he might thus get the question of Mr. Stanton's right to the office before the Supreme Court?

The CHIEF JUSTICE. Senators, you who are of opinion that the question just read-.

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

The yeas and nays were ordered.

The CHIEF JUSTICE. Senators, you who are of opinion that the question just read is admissible will, as your names are called, answer yea. Those of the contrary opinion will answer nay. The Secretary will call the roll.

Mr. Manager BUTLER. Let the question be again read.

The CHIEF JUSTICE. The Secretary will read the question again.

The Secretary read as follows:

In either of these conversations did the President say to you that his object in appointing you was that he might thus get the question of Mr. Stanton's right to the office before the Supreme Court?

Mr. DOOLITTLE. Mr. Chief Justice, I do not know that I understood the ground of objection of the managers

Mr. Manager BUTLER. As outrageously leading and utterly incompetent and entirely against the ruling of the Senate.

The CHIEF JUSTICE. The Secretary will call the roll.

The Secretary proceeded with and concluded the calling of the roll.

Mr. JOHNSON, (who had not voted.) I ask for the reading of the question. I did not hear it distinctly, and that was the reason I declined to vote.

The CHIEF JUSTICE. The Secretary will read the question.
The Secretary read as follows:

In either of these conversations did the President say to you

Mr. JOHNSON, That will do, sir. I vote in the negative.

Mr. DAVIS, (who had first voted in the affirmative.) Mr. Chief Justice, the question is leading. I vote in the negative.

The result was announced-yeas 7, nays 44; as follows:

YEAS-Messrs. Anthony, Bayard, Fowler, McCreery, Patterson of Tenessee, Ross, and Vickers-7.

NAYS-Messrs. Buckalew, Cameron, Cattell, Chandler. Cole, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Grimes, Harlan, Henderson, Hendricks, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrili of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates-44.

NOT VOTING-Messrs. Saulsbury, Sumner, and Wade-3.

So the question was decided to be inadmissible.

Mr. STANBERY. Mr. Chief Justice and Senators, this question undoubtedly has been overruled upon matter of form at least. I now propose to change the form of it. I do not want to be thrown out upon a mere technicality. I therefore change it.

Mr. Manager BUTLER. Let me see it.

Mr. STANBERY handed the question as written by him to Mr. Manager Butler.

Mr. Manager BUTLER. Mr. President and senators, the question as presented to me is

Was anything said at that conversation by the President as to any purpose of getting the question of Mr. Stanton's right to the office before the courts?

Now, Mr. President and senators, this is the last question precisely, without the leading part of it, I so understand. Now, then, I understand it to be a very well settled rule of trials that where a counsel deliberately puts a question leading in form, and has it passed upon, he cannot afterward withdraw the leading part and put the same question without it. Sometimes this rule has been relaxed in favor of very young counsel, [laughter,] who did not know what a leading question was, but not otherwise. I have seen very young men make mistakes by accident, and I have known the courts to let them up and say, "We will not hold the rule, if you made an accident."

Mr. President, I call your and the Senate's attention to the fact that I three times over objected to the last question as being outrageously leading, and I did it so that there should be no mistake; yet the counsel for the President went on and insisted not only on not withdrawing it, but on putting the Senate to the delay of having the yeas and nays taken. If I had not called their attention to it I agree that perhaps the rule might not be enforced; but I called their attention to it. They are five gentlemen of the oldest men in the profession, to whom this rule is well known. They chose to submit to the Senate a tentative question, and now they propose to try that over again, keeping you voting on forms of questions until your patience is wearied out. That is what they may do. I had the honor to say to the Senate a little while ago that all the rules of evidence are founded upon good sense, and this rule is founded on good sense. It would do no harm in the case of this witness; but the rule is founded on this proposition that counsel shall not put a leading question to a witness, and thus instruct him what they want him to say, and then have it overruled and withdraw it, and put the same question in substance, because you could always instruct a witness in that way. Of course that way was not meant here, because I assume it would do no harm in any form, and the counsel would not do it; but I think the Senate should hold itself not to be played with in this way. If

you choose to sit here and have the yeas and nays called, I can sit here as long as anybody.

Mr. STANBERY. Mr. Chief Justice, this is quite too serious a business that we are engaged in, and the responsibility is too great, the issues are too important, to descend to the sort of controversy that would be introduced here. The gentleman says I am an old lawyer, long at the bar. I hope I never have disgraced the position. I hope I am not in the habit of making factious opposition before any court, high or low, especially not before this body, which has treated us with so much courtesy.

But the learned manager intimates here that I have deliberately put a leading question, resorting to the low tactics of an Old Bailey court, for the purpose of getting time and making factious opposition. I scorn any such imputation.

Leading questions! Undoubtedly the previous question was leading; but was it intended to be leading, intended to draw General Sherman out to say something that otherwise would not be said? The learned manager says “Oh no, it was not intended, so far as General Sherman is concerned, to be a leading question; but so far as the counsel is concerned the purpose was to put it in that form that the counsel might have another opportunity of putting it in a legal form," thus insinuating that deliberately that question was manufactured in a leading form, knowing that it would be rejected on account of form, for the purpose of getting ten or fifteen minutes of time in order to put it in a proper form! Leading questions! Will the honorable manager please to read over the record of this case and see hundreds of leading questions put by him again and again. We got tired of objecting to them. I must be permitted to disclaim any such

intention as this.

This is a matter of great importance to us. We deem it to be so. The interests of our client are in our hands, to defend him the best way we can. We wish it to appear what we desire to prove and what we are anxious to prove. We do not want to make any more argument upon it. We submit it to the judgment of the Senate. We put the question as to the matter which we seek to prove, that it may appear what it is that we seek to prove, to use every effort in our power, not factiously, but honorably, properly, not to argue again and again the same point, but simply to have the opportunity of having our questions put before the Senate and decided.

The CHIEF JUSTICE. The Secretary will read the question.

The Secretary read as follows:

Was anything said at that conversation by the President as to any purpose of getting the question of Mr. Stanton's right to the office before the courts?

Mr. EVARTS. We desire to alter the first phrase by striking out the words "at that conversation," and inserting "at either of these interviews," so as to cover the same ground as before.

The CHIEF JUSTICE. The question will be so modified. The Secretary will read the question as modified."

The Secretary read as follows:

Was anything said at either of those interviews by the President as to any purpose of getting the question of Mr. Stanton's right to the office before the courts?

The CHIEF JUSTICE put the question on the admissibility of this question, and it was determined in the negative.

Mr. HENDERSON. I desire to ask a question of the witness, and I send it to the desk in writing.

The CHIEF JUSTICE. The Secretary will read the question proposed by the senator from Missouri.

The Secretary read as follows:

Did the President, in tendering you the appointment of Secretary of War ad interim express the object or purpose of so doing?

Mr. Manager BINGHAM. Mr. President, we must object to that question, as

being within the ruling already settled by the court, and submit it to the Senate. It is both leading and incompetent.

The CHIEF JUSTICE. The Chief Justice will submit the question to the Senate. Senators, you who are of the opinion that the question proposed by the senator from Missouri

Messrs. DOOLITTLE and THAYER called for the yeas and nays, and they were

ordered.

Mr. DRAKE. I ask for the reading of the question again.

The Secretary again read the question propounded by Mr. Henderson. Mr. DOOLITTLE. Mr. Chief Justice, I have risen for the purpose of moving that the Senate go into consultation on this important question; but as I see that there may not be time to-night to go into consultation, I move that the court adjourn until Monday at 12 o'clock. ["No!" "No!"]

The CHIEF JUSTICE. The question is on the motion of the senator from Wisconsin, that the Senate, sitting as a court of impeachment, adjourn until Monday at 12 o'clock.

The motion was not agreed to.

The CHIEF JUSTICE. The question recurs on the admissibility of the question proposed by the senator from Missouri, [Mr. HENDERSON.] Senators, you who are of opinion that the question is admissible and should be put to the witness will, as your names are called, answer yea; those of the contrary opinion will answer The Secretary will call the roll.

nay.

The question being taken by yeas and nays, resulted-yeas 25, nays 27; as follows:

YEAS-Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, and Willey-25.

NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates-27.

NOT VOTING-Messrs. Saulsbury and Wade-2.

So the question proposed by Mr. Henderson was decided to be inadmissible. Mr. TRUMBULL, (at 4 o'clock) I move that the Senate, sitting as a court of impeachment, adjourn until Monday at 12 o'clock.

Mr. STEWART, Mr. SUMNER, and Mr. THAYER called for the yeas and nays, and they were ordered; and being taken, resulted-yeas 25, nays 27; as follows: YEAS-Messrs. Bayard, Buckalew, Cameron, Cattell, Corbett, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morton, Norton, Patterson, of Tennessee, Ramsey, Sprague, Trumbull, Van Winkle, and Vickers-25.

NAYS-Messrs. Anthony, Chandler, Cole, Conkling, Conness, Cragin, Drake, Edmunds, Ferry. Harlan, Howard, Morgan, Morrill of Maine, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Willey, Williams, Wilson, and Yates-27.

NOT VOTING-Messrs. Saulsbury and Wade-2.

So the Senate refused to adjourn.

Mr. Manager BUTLER, (to the counsel for the respondent.) Have you anything further with this witness, gentlemen?

Mr. STANBERY. I propose to put a question which I will send to the managers. The question was sent in writing to Mr. Manager Butler.

Mr. Manager BUTLER. The question proposed is:

At either of these interviews was anything said in reference to the use of threats, intimidation, or force, to get possession of the War Office, or the contrary?

We object for the reason that it is leading, and the substance of it has been voted upon at least three times.

Mr. ÉVARTS. Do you say it is leading?

Mr. STANBERY. I do not understand that it is leading.