The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-04-17

an ORDER TO OBTAIN VIII VI QtSO tOuTTQJuO lOI
same purposes and We shall expect to follow up this
proof by evidence OF what was done by the witness
In pursuance Of the above employment"
Senator EDMUNDs asked what was the date Of this
interview
Mr. CURTIS replied that it was the 22d of February
Mr.. BUTLER-This testimony has two objections,
Mr. President and Senator's The first is that after
the act was done, and after the impeachment pro-
ceedngs were agreed upon before the House, and
after Mr. Stanton had sought to protect himself from
being turned out Of office by force the President
then sends, as 1t Is proposed to prove for Mr.. Cox
the witness, and gives him certain directions 1t is
alleged that those directions were that he should
sue out a writ Of quo todrranto. l had supposed
that writ OF ono scdrranto was to be filed, II at
ALL by the President But that writ has gone out
Of use an information In the form Of quo Ddrranto
Is proper proceeding. Now, let us see just here
how the case stands. The President had told General
sherman that the reason why he did not apply
to the lawyers was that 1t impossible to make up
case. One OF the Senators asked him to repeat his
answer and he repeated 1t. He says the President
said-.I am told by the lawyers that it is impossible
to make up case" Now, after he had been told
that, and after he had been convinced Of that, he
stil undertakes to show you here that the removal
or Mr.. stanton was In order 10 make up a case,
which he himself has declared it was impossible to
make up he was convinced that no case could by
any possibility be brought into except from the
declarations and threats OF officer Thomas to by
force Mr. Stanton out Of the War Department. He then
the Senate will be quite convinced before we get
through-and, having got him there, he undertakes
to make up case Tor the Senate before which
expect to prove that the President wanted case
made up to go into court and that in pursuance Of
that Mr.. Cox SO acted. Mr.. Cox cannot be allowed
to testify to that for another reason The counsel
themselves have put In the record what imparts
absolute verify and what cannot be cOntradicted by
parole or other evidence, that General Thomas was
dismissed on motion of his counsel, and the case
dismissed. Therefore we object, in the first place,
that these declarations Of the President to his lawyer
after the fact and after he in process of being
impeached shall be put In evidence We object then
that what was done in court may not be proved
except by the record. Then we object further that
tnlS whole proceeding was between other parties
In the court. There is no evidence, so far
as Is put IN here and pasd the whole r record
court and asked 70 have that case carried on or that
he made himself apparent in it, He does not appear
on the record; he does not appear as employing
counsel. 1t looks on the record though it was a
case against General Thomas, and the court dealt
with 1t as against General Thomas. If the President
had decided to have the case decided great con-
stutiOnal non O6Stra the court would have decided
it. All that appears was that this witness appeared
counsel for General Thomas, and the question was
as to whether General Thomas should be held under
bond, or whether under the circumstances he was
likely to appear and answer when the Grand Jury
sat, 1t being then found out that there danger
from his personal action by violence.
Mr.. EvARTS-Mr. Chief Justice and Senator'S
trust that may be excused for saying that OF
the suggestions by the learned and honorable Man
ager appear to us to have hearing the question
OF evidence now before u.s. lie says that the Attor-
ney General has by law no official function in any
court except in the Supreme Court of the United
States, and no quo scdarontO proceedings can be
commenced there. QUO ,CarrdntO proceedings, as
has heretofore been cOntended the part OF the
Managers, and in reference to which dispute has
arisen, can only be made by issuing on the part of
the government and on the part OF the officer who
has been excluded from office; and If 1t may appear
that II this adhesion OF the Attorney General his
approval that the proceedings should be taken by
General Thomas, professional adviser is required,
we shall be able to produce that proof Now, it is
said That because the President told General Sher-
man that it was impossible to make up a case
it is therefore impossible for us to show that he
did attempt to make up a case. This, suppose is u
new application OF the doctrine OF estoppel But the
fact Is simply this, that In advance OF the official
action OF the President toward the removal OF Mr..
stanton, and when General sherman had been asked
to receive from the Chief Executive authority to dis
charge the duties OF that Office al interim, and
while he General Sherman) was revolving in his
own mind what his duty as q citizen and as a friend
and servant of the government was, he asked the
President whether the question could not be de-
cided by lawyers alone without making deposit
of the al interim authority in any officer; and the
President replied that 1t was impossible to make UP
case except by such executive action as TO lay
basis for judicial interference and determination.
Then In advance the President did not anticipate the
necessity OF being driven to this judicial controversy,
because in the alternative OF General Shermans ac-
cepting the trust thus rcposed in him the President
expected the retirement OF Mr. Stanton and that by
his acquiescence need would arise for further con-
troversy i'll court or elsewhere. That is the cOnd
ton of the proof as 1t now stands before the Senate
or aS we shall contend that 1t now stands in REFER
ence to what occurred between the President and
General Sherman. We have already seen in the proof
that General Sherman received from the President
on the 2Ist day of February this designation to take
charge OF the Office from Mr. Stanton, II he retired
his report 10 the President in the FIRST instance OF
what required as equivalent to an acquiescence
by Mr. stanton in that demand for the Office and its
surrender to General Thomas. 1t is then shown in
evidence that General Thomas was arrested on the
morning Of the I'D OF February and that before he
went 10 the court he communicated the fact Of his
arrest to the President and recclged the Presidents
response that that he wished IL should bc-to
have the matter IN court Now, we proceed TO show
that the evening of the same day, the matter be-
ing thus IN court the President did take 1t up his
controversy TO be determined by the highest
judicial tribunal OF the country, by the most
rapid method which the law and the competent
ADVISERS as to the law could afford. But we are met
by the objection that the matter 10 he proved In the
state OF the record between the United States aud
General Thomas Ia not in that criminal complaint,
but In the stae OF facts regards the action and
purpose Of the President Of the United States in
attempting TO produce before the tribunal OF the
country for solemn judicial determination the mat
ter in controversy; that because the record OF crmi
nal charge against General Thomas does not con-
tain the name or action OF the President Of the
United States we cannot show therefore, what the
action OF the President was The learned Managers
say II does not appear by the record that the Pres
dent made this Ills controversy. Certainly IL does
sble method the President could appear on the
record Of prosecution against General Thomas.
But this Is wholly aside from the point OF inquiry
here Now, Mr.. Chief Justice and Senator's we are
not to be Judged by the Of proof we are able
to offer through this witness as regards the effect and
value OF The entire evidence bearing on this point
1t shall be drawn from this witnes and from other
witnesses, and from other forms Of TESTIMONY
We state here distinctly, 30 as not to be msunder-
stood, that by this unexpected resistance of Mr.
Stanton to this form Of removal the President was
obliged to ind resource In the law, when he had
contemplated ~ thing impossible without antece.
dent proceedings, on which proper footing could
be had In court, and that then he did, with such
promptness, anu such decision, and such clear and
unequivocal purpose, as Will be Indicated in
the evideuce. assume Immediately that duty
II will appear that method thus presented TO him
for more speedy determination OF the matter than
quo tcdgTantO, or information In the nature OF "A
quo ,cd,Tdnto would present, was provided by the
action Of Mr.. stanton, the prosecution, and OF
IA IN movement ft.t.
to get the case out Of court frvous aud unmpor-
taut In its proceedings against General Thomas and
becoming formidable and offensive when IL gave an
opportunity to the President of the United States by
habeas corpus to get an instant decision In the SUI
preme Court Of the United states. We then propose
SHOW that this opportunity being thus evaded the
President proceeded 10 adopt the only other resource
Of judicial determination By Information IN the ma
ture OF a quo trdirdHfO.
Mr.. BUTLER-I am very glad to have an opportunity
afforded me by the remarks OF the learned counsel
for the President 10 deal q moment with the
doctrine OF estoppel. deny that an argu-
m,nt has been founded to the prejudice OF
my case by OF the argument which