it to him, and under what circumstances they gave it to him, we shall have a different reply to make to that. But at present we do not want them to put in (to carry out the parallel) what, after he got into jail and consulted with the prisoners in the same room, he says was his answer, and what the prisoners who were with him said about it.

Mr. EVARTS. Mr. Chief Justice and Senators, every case is to be regarded according to its circumstances, and you will judge whether a communication from you to the President of the United States, communicated to him on the 22d of February

Mr. Manager BUTLER. The 21st.

Mr. EVARTS. I understood you to say that you could not say that.

Mr. Manager BUTLER. Ten o'clock at night on the 21st.

Mr. EVARTS. You got at it then. You did not have it before.

Mr. Manager BINGHAM. I read it.

Mr. EVARTS. Ten o'clock at night on the 21st the communication was sent to him. The Senate was not in session on the 22d, as I am informed, more than an hour, it being a holiday, and this message sent in on Monday, Sunday intervening, is not an answer according to the ordinary course of prompt and candid treaty between the Senate and President concerning a matter in difference, or an answer to imputation communicated to him. As for the simile of the President being in prison, we have removed that by showing that he was not impeached until five o'clock in the afternoon of Monday the 24th; and as to the simile that the cabinet were his fellow-prisoners in the same cell, the answer is that they have not been impeached at all. But we do not pursue these trivial illustrations. The matter is within the intelligence of the court, and must be disposed of by it.

Mr. Manager BINGHAM. Mr. President and Senators, I desire to say, once for all, to the Senate, that I have said no word, and intend to say no word, during the progress of this trial, that justifies the assertion of counsel for the President that I deny his right to make a defence either in person or by his counsel. What I insist upon here, and ask the Senate to act upon, is that he shall make a defence precisely as unofficial citizens of the United States make defences, according to the law of the land and not otherwise; that he shall not after the commission of crime manufacture evidence in his own behalf, either oral or written, by his own declaration, and incorporate in it, too, the declarations of third persons and throw it upon the court as testimony. It has never been allowed in any respectable court in this country upon any occasion. When men stood upon trial for their lives they never were permitted after the fact to manufacture testimony by their own declarations, either written or unwritten, and on their own motion introduce it in the courts of justice.

I have another word or two to say in the light of what has dropped from the lips of the counsel. He has evaded most skilfully the point I took occasion to make in the hearing of the Senate, that here is an attempt to introduce not only the written declarations of the accused in his own behalf after the fact, but the declarations of third persons, not under oath, and their conclusions reported in this message of the 24th of February, 1868. I venture to say that a proposition of the extent of this never was made before in any tribunal of justice in the United States where any man stood accused of crime, not simply to give his own declarations, but to report the declarations of third persons in his own behalf and throw them before the Senate as testimony.

One other remark. The gentleman seems to think that the President had a right to send a message to the Senate of the United States which should operate as evidence. I concede that the President of the United States has the right under the Constitution to communicate from time to time to the two houses of Congress such matters as he thinks pertain to the public interest; and if he thinks that is of the public interest he may do so; but I deny that there is any

colorable excuse (I repeat those words here) for intimating that the President of the United States, charged with the commission of crime on the 21st of February, 1868, and proved guilty, I undertake to say, by his written confession, to the satisfaction of every intelligent and unprejudiced mind in and out of the Senate in this country, could proceed to manufacture a defence three days after the fact in the form of a message. That is the point I make on the gentleman here. He says "What importance, then, do you attach to the action of the Senate?" We attach precisely this importance to it: that the law of the land enjoined upon the President of the United States the duty to notify the Senate of the suspension of this officer and the reasons therefor, and the evidence upon which he made the suspension. The law of the land enjoined upon the Senate the duty to act upon the report of the President so made, together with his reasons and the evidence which he adduced, and come to a decision. In pursuance of the requirement of the second section of the tenure-of-office act the Senate of the United States, by an almost unanimous decision, came to the conclusion that the reasons furnished by the President and the evidence adduced by him for the suspension of the Secretary of War were insufficient, and in accordance with that law the Senate non-concurred in the suspension. The law expressly provides that if they concur they shall notify the President. The law, by every intendment, provides that if they non-concur they shall notify the Secretary of War, that he may, in obedience to the express requirement of the act, forthwith resume the functions of the office from which he has been suspended. They did give him that notice. Why should they not notify the Executive, that he may know with whom to communicate, and not be longer communicating with the Secretary of War ad interim, General Grant, who had been appointed, in accordance with the provisions of the act, Secretary of War ad interim in August, 1867?

The gentleman, I trust, is answered as to the importance and propriety of introducing this evidence; but there was further reason for it, to leave the President without excuse before the Senate and before the people for persisting in his unlawful attempt, in violation of the law of the land, to execute the duties of the office of the Secretary of War through another person than Edwin M. Stauton. It was his business to submit to the final decision of that arbiter constituted by the tenure-of office act to decide the question whether the suspension should become absolute or whether it should be rejected.

But here is a man defying the action of the Senate, defying the express letter of the law, that the Secretary of War, in whose suspension they had refused to concur, should forthwith resume the functions of that office, proceeding with his conspiracy with Thomas to remove him and to confer the functions of this office upon another, regardless of the action of the Senate, regardless of the law regulaing the tenure of civil offices, regardless of the Constitution, regardless of his oath, regardless of the rights of the American people; and he winds up the farce and the defiant guilt of which he stands convicted by act before the Senate with his written declaration, which is of no higher authority than his oral declaration, made three days after the fact, and asks the Senate to receive it as evidence.

The CHIEF JUSTICE. There is, perhaps, senators, no branch of the law in which it is more difficult to lay down precise rules than that which relates to evidence of the intent with which an act is done. In the present case it appears that the Senate, on the 21st of February, passed a resolution, which I will take the liberty of reading :

Whereas the Senate have received and considered the communication of the President stating that he has removed Edwin M. Stanton, Secretary of War, and had designated the Adjutant General of the army to act as Secretary of War ad interim: Therefore,

Resolved by the Snate of the United States, That under the Constitution and laws of the United States the President has no power to remove the Secretary of War, and to designate any other officer to perform the duties of the office ad interim.

That resolution was adopted on the 21st of February, and was served, as the evidence before you shows, on the evening of the same day. The message which is now proposed to be introduced was sent to the Senate on the 24th day of February. It does not appear to the Chief Justice that the resolution of the Senate called for an answer, or that there was any call upon the President to answer from the Senate itself; and therefore he must regard the message which was sent to the Senate on the 24th of February as a vindication of the President's act addressed by him to the Senate; and it does not appear to the Chief Justice to come within any of the rules which have been applied to the introduction of evidence upon this trial. He will, however, take pleasure in submitting the question to the Senate if any senator desires it. (After a pause.) If no senator desires that the question be submitted to the Senate, the Chief Justice rules the evidence to be inadmissible.

Mr. CURTIS. Mr. Chief Justice, we wish to put in evidence a table which has been compiled in the office of the Attorney General, which will be found to be, I believe, a convenience in the progress of the trial in the examination of the documentary evidence which will be put in.

Mr. DRAKE. Mr. President, we cannot hear the honorable counsel.

Mr. CURTIS. I will endeavor to make myself heard.

The CHIEF JUSTICE. If senators will observe the rules of the Senate, and the gentlemen who are in the chamber and the persons in the galleries will abstain from conversation, it will be much easier to hear the counsel.

Mr. CURTIS. I will read the headings of this table, so that the nature of its contents may be perceived. It excludes all military and naval officers, all judges of the constitutional judiciary of the United States, all judges of the Court of Claims, all officers whose appointment is vested in the President alone, the heads of departments, or the courts of law, and all public ministers, consuls, and other agents of foreign intercourse. They are excluded, and with these exceptions "the following is an approximate list of all other executive and territorial offices of the United States now and heretofore established by statutory designation, with their respective statutory tenures."

Then follows the list of officers the table contains. In the first place the date of the act of Congress by which the office was created, the volume and page of the Statutes at Large, and next comes the name or title of the office. The fourth column shows whether the tenure of the office was for a definite term. Then there is another column showing whether it was for a term definite "unless sooner removed," the first columr being for a definite term without any qualification whatever, the second column being for a term definite unless sooner removed, the third column for a term indefinite and not expressly during pleasure, and the fourth for a term indefinite, but expressly "during pleasure." Mr. Manager BUTLER. Before you put that in we wish to object.

Mr. CURTIS. One moment. The names of the offices are given, and then there are carried out in these columns what tenure belongs to each of them. Of course this is not offered as strictly evidence, but it has been compiled as a table which it will be found very convenient to refer to in argument, but which it would be necessary to consult and turn over a great number of statutes of the United States in order to make use of or arrive at these results. Here they are all brought under the eye, and we desire to have the table printed so that it may be used in argument by counsel on all sides.

Mr. Manager BUTLER. I observe, Mr. President and senators, that there is one important column missing in this table, if it has to have any effect on anybody's mind, and that is a column showing whether the Senate was or was not in session at the time any one of these officers was removed.

Mr. CURTIS. It has nothing to do, allow me to say, Mr. Manager, with removals at all. It is the tenure of office merely. It has no bearing on any

question of removal. It merely gives the statute tenures of these different offices; and there are no facts here stated; everything is derived from the statutes. All that is in the table is derived from the statutes of the United States.

Mr. Manager BUTLER. The difficulty that we find is that this is proposed to be made a portion of the evidence. It may be printed and appended to the argument of either gentleman or sent as argument to the table of any senatorprecisely as (if I may use it as an illustration) I sent my brief-as an abstract from the laws; but to offer it in evidence and to have it printed except in that way is what we object to. The reason for the objection must be obvious. Who has any surety that this is correct? The commissions are not kept by the Attorney General. They are in the Department of State.

Mr. EVARTS. This has nothing to do with commissions.

Mr. Manager BUTLER. Then this is a mere abstract of the laws?

Mr. EVARTS. That is what we have stated exactly.

Mr. Manager BUTLER. Put it, then, in your argument. Why should your abstract of the laws be put in evidence any more than anybody else's? The difference is this: if either of my friends on the other side under their hand and upon their examination put in their brief an abstract of law I should believe that the law was exactly as it purports to be abstracted. But they do not claim that they have examined this table-that this is their work. It is done in the Attorney General's office. Now, I have not so much confidence in everybody in the Attorney General's office that I am willing to take his abstract of laws and have it put in these solemn proceedings. If Mr. Binckley, for instance, the Assistant Attorney General, should prepare any paper of this sort, I should look it over a great while before I should give it great weight, and, I think, the country would from their knowledge. If Mr. Stanbery, if either of the learned gentlemen before me, will examine this and say that from their examination it is correct, and they make it a part of their argument, I am content; but until that is done I object to its going in evidence. Until that is done I object, and, as my associate says, we shall object then. It is not evidence in any form.

Mr. EVARTS. Mr. Chief Justice and senators, there is but a word to be said on this subject. It imparts to the case no primary evidence. It can be verified by oath as being correctly or honestly made up, if that is required. We, upon our professional credit, present it as in our belief a correct statement in a tabular form of the distribution of the statutory provisions concerning the tenure of office that are in force under the government of the United States.

Mr. Manager BUTLER. Allow me, without interrupting the gentleman, here to ask whether he has examined it so as to know, of his own knowledge, that it is so, because that will make a great difference to my mind.

Mr. EVARTS. So presenting it, the question is whether you will receive it as the proper and necessary tabular introduction to the documentary evidence concerning these different classes of offices in respect to the conduct of the government in filling or in vacating the places. We did not expect an objection to be made, least of all upon so vague a notion as Mr. Binckley's political character, which we are not prepared to defend, and he is not present to defend himself. We submit it to the Senate. They can treat it, if you please, as a presentation by us now presently of the distribution of the offices of the United States according to statute, in order to introduce our practical and actual legal testimony appropriate to each class. It is submitted to the discretion of the Senate.

Mr. Manager BOUTWELL. Mr. President and senators, this paper, upon examination, does not show that any person was ever appointed to office or was removed from office.

Mr. EVARTS. So we have stated, over and over again, that it comes out of the statutes bodily.

Mr. Manager BOUTWELL. Then I am utterly unable to see how it can be regarded as testimony upon any issue that is before this tribunal.

Mr. TRUMBULL. Mr. President, I move that the paper be printed as a part of the proceedings of the Senate.

Mr. EVARTS. That is all we desire.

The CHIEF JUSTICE. It will be necessarily printed, having been offered by the counsel for the President. The Chair will put the question, however. You who are of opinion that the paper be printed will say "aye;" those of contrary opinion will say "no."

The motion was agreed to.

The table thus ordered to be printed is as follows: