That Mr. Cox was employed professionally by the President. in the presence of General Thomas, to take such legal proceedings in the case that had been commenced against General Thomas as would be effectual to raise judicially the question of Mr. Stanton's legal right to continue to hold the office of Secretary for the Department of War against the authority of the President, and also in reference to obtaining a writ of quo warranto for the same purpose; and we shall expect to follow up this proof by evidence of what was done by the witness in pursuance of the above employment.
Mr. Drake demanded the yeas and nays, and they were ordered:
Yeas--Anthony, Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--29--17 Republicans and 12 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--21--all Republicans.
So the testimony was received, and the witness proceeded to detail the steps he had taken by direction of the President to procure a judicial determination of General Thomas' right to the office of Secretary of War and to put him in possession, till the following question was asked.
No. 19.
What did you do toward getting out a writ of habeas corpus under the employment of the President.
Prosecution objected, and the yeas and nays were ordered:
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill of Maine, Morgan, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--27--15Republicans and 12 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--23--all Republicans.
The Senate having decided the evidence to be admissible,Mr. Cox proceeded:
When the Chief Justice announced that he would proceed as an examining Judge to investigate the case of General Thomas, and not as holding Court, our first application to him was to adjourn the investigation into the Criminal Court then in session, in order to have the action of that Court. After some little discussion this request was refused. Our next effort was to have General Thomas committed to prison, in order that we might apply to that Court for a habeas corpus, and upon his being remanded by that Court; if that should be done, we might follow up the application by one to the Supreme Court of the United States. * ** The Chief Justice having indicated an intention to postpone the examination, we directed General Thomas to decline giving any bail for further appearance, and to surrender himself into custody, and announce to the Judge that he was in custody, and then present to the Criminal Court an application for a writ of habeas corpus. The Counsel on the other side objected that General Thomas could not put himself into custody, and they did not desire that he should be detained in custody. The Chief Judge also declared that he would not restrain General Thomas of his liberty, and would not hold him or allow him to be held in custody. Supposing that he must be either committed or finally discharged, we then claimed that he be discharged, not supposing that the Counsel on the other side would consent to it, and supposing that would bring about his commitment, and that we should then have an opportunity of getting a habeas corpus. They made no objection, however, to his final discharge, and accordingly the Chief Justice did discharge him.
No. 20.
The witness, Mr. Cox, was asked by counsel for defense:
After you had reported to the President the result of your efforts to obtain a writ of habeas corpus, did you do any other act in pursuance of the original instructions you had received from the President on Saturday to test the right of Mr. Stanton to continue in the office; and if so, state what the acts were?
The yeas and nays were ordered on the demand of Mr. Howard.
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbery, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--27--15 Republicans and 12 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--23--all Republicans.
So the evidence was admitted, and Mr. Cox continued.
On the same day or the next, I prepared an information in the nature of a quo warranto. I think a delay of one day occurred in the effort to procure certified copies of Gen. Thomas' commission as Secretary of War ad interim, and of the order to Mr. Stanton.
I then applied to the District Attorney to sign the information in the nature of a quo warranto, and he declined to do so without instructions or a request from the President or the Attorney General. This fact was communicated to the Attorney General and the papers were sent to him. Nothing was done after this time by me.
No. 21.
The defense offered to prove:
