in any manner his criminality before the tribunals of justice, or to make evidence which shall be admitted under any form of law upon his own motion to justify his own criminal conduct. I do not hesitate to say that every authority which the gentlemen can bring into court regulating the rule of evidence in procedures of this sort is directly against the proposition, and for the simple reason that it is a written declaration made by the accused voluntarily, after the fact, in his own behalf. I read for the information of the Senate the testimony touching this fact of the service of the notice of the action had by the Senate upon the conduct of the President whereof he stands acccused before the Senate. It is as follows. On page 109 of the trial Mr. McDonald testified: "An attested copy of the foregoing resolution was delivered by me into the hands of the President of the United States at his office in the Executive Mansion at ten o'clock p. m. on the 21st of February, 1868." On the 24th of February, three days after ward, he volunteers a written declaration which he now proposes to make evidence in his own behalf before this tribunal of justice. Of course it is evidence for no purpose whatever, except for the purpose of exculpating him from the criminal accusation preferred against him. It is for no other purpose. Senators will bear with me while I make a further remark. The proposition is to introduce his whole message, not simply what he says for himself, not simply the arguments that he chooses to present in the form of a written declaration, in vindication of his criminal conduct, in violation of the clearest and plainest provisions of law, and in direct defiance of the action of the Senate and of the notice it had served on him on the night of the 21st of February; but the Senate will bear with me when I say, what they do know, that this message reports the declarations of third persons, and of course the Senate are asked to accept these, too, as evidence in the trial of the accused at their bar. He reports in this message the declarations of third persons whom he has pleased to call his "constitutional advisers." He states their opinions. Without giving their language he gives the conclusions, and those conclusions are to be drawn before the Senate as matter of evidence. I beg leave to say here, in the presence of the Senate, that there is no colorable excuse for the President or for his counsel coming before the Senate to say to them, whether it be communicated in his written message or otherwise, that he has any right to attempt to shelter himself for a violation of the laws of the country under the opinions of any member of his Cabinet. The Constitution never vested his Cabinet counselors with any such authority, as it never vested the Presi dent with authority to suspend the laws or to violate the laws or to disregard the laws or to make appointments in direct contravention of the laws, and in defiance of the final action of the Senate acting in express obedience to the requirement of the law. Mr. Manager BUTLER, (after examining the message.) You are right. He reports the opinion of his Cabinet. Mr. Manager BINGHAM. I was aware that I was right. There is no colorable excuse for this proceeding. I say it with all respect to the learned counsel, and I challenge now the production of authority from any respectable court that ever allowed any man, high or low, official or unofficial, to introduce his own declarations, written or unwritten, made after the fact, in his defense. That is the point I take here. I beg the pardon of the Senate for having detained them so long in the statement of a proposition so simple, and the law of which is so clearly settled running through centuries. I submit the question to them. Mr. EVARTS. Mr. Chief Justice and Sen ators Mr. Manager BUTLER. Do we ever have the close here? Mr. EVARTS. I dare say you have; but I SUPPLEMENT-12. also have the opportunity to speak. No question arises of my irregularity, I take it. Mr. Manager BINGHAM. No, no. Mr. EVARTS. Mr. Chief Justice and Senators, the only apology that the learned Manager has made for the course of his remarks is the consumption of your time, and yet he has not hesitated to say, and again to repeat, that there is not a color of justification for the attempt of the President of the United States to defend himself or for the efforts that his counsel make. Mr. Manager BINGHAM. Will the gentleman allow me to correct him? I do not think the gentleman intends to misrepresent me here. Mr. EVARTS. I do not misrepresent you. Mr. Manager BINGHAM. I did not say, then, if the gentleman pleases, that there was no colorable excuse for the President to attempt to defend himself or for his counsel to defend him. I did not say that. Mr. EVARTS. It all comes to the same thing. Everything that is attempted upon our view or line of the subject in controversy, unless it conforms to the preliminary view that the learned Managers choose to throw down, is regarded as outside of the color of law or of right on the part of the President or his counsel, and so it is repeatedly charged. Now, if the crime was completed on the 21st of February, which is not only the whole basis of this argument of the learned Managers, but of every other argument upon the evidence that I have had the honor of hearing from them, I should like to know what application or relevancy the resolution passed by the Senate on the 21st of February, after the act of the President had been completed, and after that act had been communicated to the Senate, has on the issue of whether that act was right or wrong? And if the fact that it is an expression of opinion relieves the testimony from the possibility of admission, what was this but an expression of the opinion of the Senate of the United States in the form of a resolution regarding a past act of the President? There could be, then, no single principle of the law of evidence upon which this fact put in proof in behalf of the Managers could be admitted, except as a communication from this branch of the Government to the President of the United States of its opinion concerning the legality of his action; and in the same line and in immediate reply the President communicates to the Senate of the United States, openly and in a proper message, his opinions concerning the legality of the act. What would be thought of the Government that, in a criminal prosecution, by way of inculpating a prisoner, should give in evidence what a magistrate or a sheriff had said to him concerning the crime imputed, and then shut the mouth of the prisoner as to what he had said then and there in reply? Why, the only possibility, the only argument for affecting the prisoner with criminality for what had been said to him, was that, unreplied to, it might be construed into admission or submission; and to say that the prisoner, when told "You stole that watch," could not give in evidence his reply, "It was my own watch, and I took it because it was mine," is precisely the same proposition that is being applied here by the learned Managers to this communication back and forth between the Senate and the President. Mr. Manager BUTLER. A single word, Mr. President, upon that proposition. I think if any sheriff should say to a thief, "Sir, whose watch is that?" and the thief could not make a reply until four days afterward, after he was indicted, a written statement, then, as to whose watch it was, and putting in what his neighbors said about it, would never be received. I take the illustration; it is a good one, an excellent illustration. A sheriff says to a prisoner, "Where did you get that watch?" Four days afterward-after he has been in jail, after the indictment is being found against him, and while the court is in session, he sends an answer to the sheriff and says that answer must be given in evidence, and not only that, but he puts in that answer what everybody else said, what four or five men said to him, as is the case in this message. He is not content with putting in his own answer, but he puts in the view of the Cabinet. Now, we object. If they will fetch the Cabinet here and let us crossexamine them and find out what they meant when they gave him any advice, and how they came to give it to him, and under what cir cumstances they gave it to him, we shall have a different reply to make to that. But at pres ent 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. The Mr. Manager BINGHAM. I read it. Mr. EVARTS. Ten o'clock at night on the 21st the communication was sent to him. 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 defense 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 defense precisely as unofficial citizens of the United States make defenses, 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 skillfully 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 defense 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 evi-. dence 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. Stanton. 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 regulating 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 Senate 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 column 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 is 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 Senator-precisely as (if I may use it as an illus tration) 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 any body 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 ab stracted. 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 into 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 differ ent 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. Exclusively of 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; the following is an approximate list of all other Executive and Territorial Officers of the United States now and heretofore, by statutory designation, with their respective statutory tenure, namely: March 3, 1817. March 30, 1822. March 30, 1822. March 30, 1822.. September 9, 1850.... September 9, 1850..... September 9, 1850.... June 12, 1838.. do. do. do. 1110 do. do. do. do. do. do. 447 Governor of Territory of New Mexico.. do. 448 Secretary of Territory of New Mexico.. do. 449 450 Chief justice and associate justices...... Attorney for Territory of New Mexico....... do. do. 450 Marshal for Territory of New Mexico. do. 453 Governor of Utah Territory.. do. 453 Secretary of Utah Territory.. do. 455 Chief and associate justices.. do. June 12, 1838.. June 12, 1838. June 12, 1838. August 14, 1848.. Attorney and marshal... Governor of Iowa Territory. Secretary of Iowa Territory. Chief and associate justices.. Attorney and marshal... do. do. do. Governor of Oregon Territory. do. August 14, 1848. Secretary of Oregon Territory. do. August 14, 1848. Chief and associate justices... August 14, 1848... Attorney and marshal.... do. do. March 3, 1849.. Secretary of Minnesota Territory. do. Chief and associate justices.. March 3, 1849. 9 406 Attorney and marshal...... do. Governor of Washington Territory. do. March 2, 1853. Secretary of Washington Territory. do. March 2, 1853.. Chief and associate justices........ do. March 2, 1853. Attorney and marshal.... do. May 30, 1854... Governor of Nebraska Territory. do. May 30, 1854.. May 30, 1854.. Secretary of Nebraska Territory.. Chief and associate justices... do. do. May 30, 1854.. Attorney for Nebraska Territory.. do. May 30, 1854.. Marshal for Nebraska Territory. do. May 30, 1854.. 10 284 May 30, 1854.. 10 284 Governor of Kansas Territory. Secretary of Kansas Territory. do. do. May 30, 1854.. 10 286 Chief and associate justices.. do. May 30, 1854.. Attorney and marshal.. do. February 24, 1863. Governor of Arizona Territory. do. February 24, 1863. Secretary of Arizona Territory.. do. February 24, 1863. Judges for Arizona Territory... do. February 24, 1863. Attorney and marshal.... do. February 24, 1863... Surveyor general of Arizona Territory... do. February 28, 1861. Governor of Colorado Territory. do. February 28, 1861.. February 28, 1861. Chief and associate justices..... do. February 28, 1861. Attorney and marshal... do. March 2, 1861. 12 239 Governor of Dakota Territory. do. do. Remarks. Act vests appointment in the President alone. Tenure "during good behavior." Mr. CURTIS. Mr. Chief Justice, we now desire to put in evidence rather in a more formal manner than has been done heretofore, although the substantial facts have been brought before the Senate, we believe, by the honorable Managers themselves, the proceedings which took place at the time of the removal of Mr. Pickering by Mr. Adams, accompanied by a certificate that the letters to and from various persons between the 29th of June, 1799, and the 1st of May, 1802, have been for many years missing from the files of the Department of State. The correspondence itself, therefore, cannot be produced from the originals, or from copies of the originals, but no doubt they are correct, as those letters were read the other day by the honorable Managers from a volume of Mr. Adams's works. They are the same letters. The letters are not here; they are not in the Department; but they are printed in that volume and were read from the volume the other day. Mr. Manager BUTLER. Wait a moment. We are not certain about this. [After an examination of the documents offered in evidence.] Do I understand the counsel for the President to say that these papers show anything different from what was shown by the Managers? Mr. CURTIS. No. I stated that in substance the matter was now before the Senate, but we wanted the formal documents to be put in. Mr. Manager BUTLER. The only difficulty I find is this: that you do not put in all; you do not put in what was done on the 12th of May as well as the 13th of May, 1800. Mr. CURTIS. We put in what there is here. Mr. EVARTS. You have already put in the other. Mr. Manager BUTLER. Very good. Mr. CURTIS. We offer these documents from the Department of State. Mr. Manager BUTLER. Very well. The documents thus offered in evidence are as follows: UNITED STATES OF AMERICA, Department of State: To all to whom these presents shall come, greeting: |