On Thursday, March 5th, 1868, the Senate of the United States was organized for the trial of the charges brought against Andrew Johnson, President of the United States, by the House of Representatives—Honorable Salmon P. Chase, Chief Justice of the United States, presiding.
The following gentlemen appeared as managers of the prosecution on the part of the House:
Hon. John A. Bingham, of Ohio; Hon. George S. Boutwell, of Massachusetts; Hon. James F. Wilson, of Iowa; Hon. John A. Logan, of Illinois; Hon. Thomas F. Williams, of Pennsylvania; Hon. Benjamin F. Butler, of Massachusetts; and Hon. Thaddeus Stevens, of Pennsylvania.
The following gentlemen appeared as counsel for the President:
Messrs. Henry Stanbery, of Kentucky; Benjamin R. Curtis, of Massachusetts; Thomas A. R. Nelson, of Tennessee; William M. Evarts, of New York, and William S. Groesbeck, of Ohio.
The following gentlemen comprised the United States Senate, sitting for the trial of the President:
California-Cornelius Cole, (R)-John Conness, (R). Connecticut-James Dixon, (D)-Orris S. Ferry, (R). Delaware-Willard Saulsbury, (D)-James A. Bayard, (D). Illinois-Lyman Trumbull, (R)-Richard Yates, (R). Indiana-Oliver P. Morton, (R)-Thomas A. Hendricks, (D). Iowa-James W. Grimes, (R)-James Harlan, (R). Kansas-Samuel C. Pomeroy, (R)-Edmund G. Ross, (R). Kentucky-Thomas C. McCreary, (D)-Garrett Davis, (D). Massachusetts-Charles Sumner, (R)-Henry Wilson, (R). Maine-William Pitt Fessenden, (R)-Lot M. Morrill, (R). Maryland-Reverdy Johnson, (D)-George Vickers, (D). Michigan-Zachariah Chandler, (R)-Jacob M. Howard, (R). Missouri-John B. Henderson, (R)-Charles D. Drake, (R). Minnesota-Alexander Ramsay, (R)-Daniel S. Norton, (D). New York-Roscoe Conkling, (R)-Edwin D. Morgan, (R). Nevada-James W. Nye, (R)-William M. Stewart, (R). Nebraska-Thomas W. Tipton, (R)-John M. Thayer, (R). New Jersey-Alexander G. Cattell, (R)-F. T. Frelinghuysen, (R). New Hampshire-Alexander H. Craigin, (R)-Jas. W. Patterson, (R). Ohio-John Sherman, (R)-Benjamin F. Wade, (R). Oregon-Henry W. Corbett, (R)-Geo. H. Williams, (R). Pennsylvania-Simon Cameron, (R)-Charles R. Buckalew, (D). Rhode Island-Henry B. Anthony, (R)-William Sprague, (R). Tennessee—David T. Patterson, (D)-Joseph S. Fowler, (R). Vermont-George F. Edmunds, (R)-Justin S. Morrill, (R). West Virginia-W. T. Willey,(R)-Peter (3. Van Winkle, (R). Wisconsin-James R. Doolittle, (D)-Timothy O. Howe, (R). [Forty-two Republicans and twelve Democrats.]
The House bringing the Impeachment was three-fourths Republican—the Senate that tried it was more than three-fourths Republican—the managers on the part of the House were all Republicans—the counsel for the President were three Democrats and one Republican—the President on trial was a Democrat—the interrogatories propounded to witnesses were generally received or rejected, according as their probable answers would make for or against the President—the people of the country at large were, as a rule, rigidly divided on party lines relative to the case, Republicans demanding the conviction of the President and Democrats urging his acquittal. The Chief Justice presiding in the trial was the only strictly nonpartisan factor in the case.
The answer of the President to the Articles of Impeachment having been presented on the 23rd of March, 1868—the replication of the House duly made, and all the preliminary steps completed, the proceedings in the actual trial commenced on the 30th day of March, 1868. Gen. Butler, one of the managers on the part of the House, made the opening argument for the prosecution, from which the following extracts are taken:
The first eight articles set out in several distinct forms the acts of the respondent removing Mr. Stanton from office, and appointing Mr. Thomas, ad interim, differing in legal effect in the purposes for which and the intent with which, either or both of the acts were done, and the legal duties and rights infringed, and the acts of Congress violated in so doing.
All the articles allege these acts to be in contravention of his oath of office, and in disregard of the duties thereof.
If they are so, however, the President might have the POWER to do them under the law; still, being so done, they are acts of official misconduct, and as we have seen, impeachable.
The President has the legal power to do many acts which, if done in disregard of his duty, or for improper purposes, then the exercise of that power is an official misdemeanor.
Ex. gr: he has the power of pardon; if exercised in a given case for a corrupt motive, as for the payment of money, or wantonly pardoning all criminals, it would be a misdemeanor. Examples might be multiplied indefinitely.
Article first, stripped of legal verbiage, alleges that, having suspended Mr. Stanton and reported the same to the Senate, which refused to concur in the suspension, and Stanton having rightfully resumed the duties of his office, the respondent, with knowledge of the facts, issued an order which is recited for Stanton's removal, with intent to violate the act of March 2, 1867, to regulate the tenure of certain civil offices, and with the further intent to remove Stanton from the office of Secretary of War, then in the lawful discharge of its duties, in contravention of said act without the advice and consent of the Senate, and against the Constitution of the United States.
Article 2 charges that the President, without authority of law, on the 21st of February, 1868, issued letter of authority to Lorenzo Thomas to act as Secretary of War ad interim, the Senate being in session, in violation of the tenure-of-office act, and with intent to violate it and the Constitution, there being no vacancy in the office of Secretary of War.
Article 3 alleges the same act as done without authority of law, and alleges an intent to violate the Constitution.
Article 4 charges that the President conspired with Lorenzo Thomas and divers other persons, with intent, by INTIMIDATION AND THREATS, to prevent Mr. Stanton from holding the office of Secretary of War, in violation of the Constitution and of the act of July 31, 1861.
Article 5 charges the same conspiracy with Thomas to prevent Mr. Stanton's holding his office, and thereby to prevent the execution of the civil tenure act.
Article 6 charges that the President conspired with Thomas to seize and possess the property under the control of the War Department by FORCE, in contravention of the act of July 31, 1861, and with intent to disregard the civil tenure-of-office act.
Article 7 charges the same conspiracy, with intent only to violate the civil tenure-of-office act.
Articles 3d, 4th, 5th, 6th and 7th may all be considered together, as to to the proof to support them.
It will be shown that having removed Stanton and appointed Thomas, the President sent Thomas to the War Office to obtain possession; that having been met by Stanton with a denial of his rights, Thomas retired, and after consultation with the President, Thomas asserted his purpose to take possession of the War Office by force, making his boast in several public places of his intentions so to do, but was prevented by being promptly arrested by process from the court.
This will be shown by the evidence of Hon. Mr. Van Horn, a member of the House, who was present when the demand for possession of the War office was made by General Thomas, already made public.
By the testimony of the Hon. Mr. Burleigh, who, after that, in the evening of the twenty-first of February, was told by Thomas that he intended to take possession of the War Office by force the following morning, and invited him up to see the performance. Mr. Burleigh attended, but the act did not come off, for Thomas had been arrested and held to bail.
By Thomas boasting at Willard's hotel on the same evening that he should call on General Grant for military force to put him in possession of the office, and he did not see how Grant could refuse it. Article 8 charges that the appointment of Thomas was made for the purpose of getting control of the disbursement of the moneys appropriated for the military service and Department of War.
In addition to the proof already adduced, it will be shown that, after the appointment of Thomas, which must have been known to the members of his cabinet, the President caused a formal notice to be served on the Secretary of the Treasury, to the end that the Secretary might answer the requisitions for money of Thomas, and this was only prevented by the firmness with which Stanton retained possession of the books and papers of the War office. It will be seen that every fact charged in Article 1 is admitted by the answer of the respondent; the intent also admitted as charged; that is to say, to set aside the civil tenure-of-office act, and to remove Mr. Stanton from the office of the Secretary for the Department of War without the advice and consent of the Senate, and, if not justified, contrary to the provisions of the Constitution itself.
The only question remaining is, does the respondent justify himself by the Constitution and laws?
On this he avers, that by the Constitution, there is "conferred on the President as a part of the executive power, the power at any and all times of removing from office all executive officers for cause, to be judged of by the President alone, and that he verily believes that the executive power of removal from office, confided to him by the Constitution, as aforesaid, includes the power of suspension from office indefinitely."
Now, these offices, so vacated, must be filled, temporarily at least, by his appointment, because government must go on; there can be no interregnum in the execution of the laws in an organized government; he claims, therefore, of necessity, the right to fill their places with appointments of his choice, and that this power can not be restrained or limited in any degree by any law of Congress, because, he avers, "that the power was conferred, and the duty of exercising it in fit cases was imposed on the President by the Constitution of the United States, and that the President could not be deprived of this power, or relieved of this duty, nor could the same be vested by law in the President and the Senate jointly, either in part or whole."
This, then, is the plain and inevitable issue before the Senate and the American people:
Has the President, under the Constitution, the more than kingly prerogative at will to remove from office and suspend from office indefinitely, all executive officers of the United States, either civil, military or naval, at any and all times, and fill the vacancies with creatures of his own appointment, for his own purposes, without any restraint whatever, or possibility of restraint by the Senate or by Congress through laws duly enacted?
The House of Representatives, in behalf of the people join this issue by affirming that the exercise of such powers is a high misdemeanor in office.
If the affirmative is maintained by the respondent, then, so far as the first eight articles are concerned—unless such corrupt purposes are shown as will of themselves make the exercise of a legal power a crime—the respondent must go, and ought to go quit and free.
Therefore, by these articles and the answers thereto, the momentous question, here and now, is raised whether the PRESIDENTIAL OFFICE ITSELF (IF IT HAS THE PREROGATIVES AND POWER CLAIMED FOR IT) OUGHT, IN FACT, TO EXIST AS APART OF THE CONSTITUTIONAL GOVERNMENT OF A FREE PEOPLE, while by the last three articles the simpler and less important inquiry is to be determined, whether Andrew Johnson has so conducted himself that he ought longer to held any constitutional office whatever. The latter sinks to merited insignificance compared with the grandeur of the former.
If that is sustained, then a right and power hitherto unclaimed and unknown to the people of the country is engrafted on the Constitution most alarming in its extent, most corrupting in its influence, most dangerous in its tendencies, and most tyrannical in its exercise.
Whoever, therefore, votes "not guilty" on these articles votes to enchain our free institutions, and to prostrate them at the feet of any man who, being President, may choose to control them.
A few days after this, Judge Curtis, of the President's counsel, spoke on behalf of the President. The first and principal Government of the Articles of Impeachment against Mr. Johnson was violation of the Office-Tenure Act, which had been passed the year before for the undisguised purpose of restricting the President's power to remove his Cabinet officers, particularly, his War Minister, Mr. Stanton. It was apparent that Mr. Butler had been embarassed in his plea by the proviso of that Act, that members of the Cabinet should hold "during the term of the President by WHOM THEY MAY HAVE BEEN APPOINTED and for one month longer."
Mr. Butler had asked—By whom was Mr. Stanton appointed? By Mr. Lincoln. Whose presidential term was he holding tinder when the bullet of Booth became a proximate cause of this trial? Was not this appointment in full force at that hour. Had any act of the respondent up to the 12th day of August last vitiated or interfered with that appointment? Whose Presidential term is the respondent now serving out? His own, or Mr. Lincoln's. If his own, he is entitled to four years up to the anniversary of the murder, because each presidential term is four years by the Constitution, and the regular recurrence of those terms is fixed by the Act of May 8, 1792. If he is serving out the remainder of Mr. Lincoln's term, then his term of office expires on the 4th of March, 1869, if it does not before.
Judge Curtis struck his first blow at the weak point of General Butler's speech. He said:
There is a question involved which enters deeply into the first eight Articles of Impeachment and materially touches two of the others; and to that question I desire in the first place to invite the attention of the court, namely—whether MR. STANTON'S CASE COMES UNDER THE TENURE-OF-OFFICE ACTS? * * * I must ask your attention therefore to the construction and application of the first section of that act, as follows: "that every person holding an official position to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office and shall become duly qualified to act therein, is and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein OTHERWISE PROVIDED." Then comes what is otherwise provided. "PROVIDED, HOWEVER, That the Secretaries of State, Treasury, War, Navy, and Interior Departments, the Postmaster General and Attorney General, shall hold their offices respectively for AND DURING THE TERM OF THE PRESIDENT BY WHOM THEY MAY HAVE BEEN APPOINTED."
The first inquiry which arises on this language, is as to the meaning of the words "for and during the term of the President." Mr. Stanton, as appears by the commission which has been put in the case by the Honorable Managers, was appointed in January, 1862, during the first term of President Lincoln. Are the words "during the term of the President," applicable to Mr. Stanton's case? That depends upon whether an expounder of this law, judicially, who finds set down in it as a part of the descriptive words, "DURING THE TERMS OF THE PRESIDENT," HAS ANY RIGHT TO ADD, "AND DURING ANY OTHER TERM FOR WHICH HE MAY BE AFTERWARDS ELECTED."
I respectfully submit no such judicial interpretation can be put on the words. Then, if you please, take the next step: "During the term of the President by whom he was appointed." At the time when this order was issued for the removal of Mr. Stanton, was he holding the term of the President by whom he was appointed? The Honorable Managers say yes; because, as they, say, Mr. Johnson is merely serving out the residue of Mr. Lincoln's term. But is that so under the provisions of the Constitution of the United States? * * Although the President, like the Vice President, is elected for a term of four years, and each is elected for the same term, the President is not to hold the office absolutely during four years. The limit of four years is not an absolute limit. Death is a limit. "A conditional limitation," as the lawyers call it, is imposed on his tenure of office. And when the President dies his term of four years, for which he was elected and during which he was to hold provided he should so long live, terminates, and the office devolves upon the Vice President. For what period of time? FOR THE REMAINDER OF THE TERM FOR WHICH THE VICE PRESIDENT WAS ELECTED. And there is no more propriety, under the provisions of the Constitution of the United dictates, in calling the term during which Mr. Johnson holds the office of President, after it was devolved upon him, a part of Mr. Lincoln's term, then there would be propriety in saying that one sovereign who succeeded another sovereign by death, holds his predecessor's term.** They (the Cabinet officers) were to be the advisers of the President; they were to be the immediate confidential assistants of the President, for whom he was to be responsible, but in whom he was expected to repose a great amount of trust and confidence; and therefore it was that this Act has connected the tenure-of-office of these Secretaries to which it applies with the President by whom they were appointed. It says, in the description which the Act gives of the future tenure-of-office of Secretaries, that a controlling regard is to be had to the fact that the Secretary whose tenure is to be regulated was appointed by some particular President; and during the term of that President he shall continue to hold his office; but as for Secretaries who are in office, not appointed by the President, we have nothing to say; we leave them as they heretofore have been. I submit to Senators that this is the natural, and, having regard to the character of these officers, the necessary conclusion, that the tenure-of-office of a Secretary here described is a tenure during the term of service of the President by whom he was appointed; that it was not the intention of Congress to compel a President of the United States to continue in office a Secretary not appointed by himself. * * *
Shortly after this, occurred one of the most amusing and interesting incidents of the trial. Mr. Boutwell, who was altogether a matter-of-fact man, though at times indulging in the heroics, ventured, in the course of his argument, upon a flight of imagination in depicting the punishment that should be meted out to Mr. Johnson for venturing to differ with Congress upon the constitutionality of an act of that body. He said:
Travelers and astronomers inform us that in the Southern heavens, near the Southern cross, there is a vast space which the uneducated call the "hole in the sky," where the eye of man, with the aid of the powers of the telescope, has been unable to discover nebulae, or asteroid, or comet, or planet, or star, or sun. In that dreary, cold, dark region of space, which is only known to be less infinite by the evidences of creation elsewhere, the great author of celestial mechanism has left the chaos which was in the beginning. If this earth were capable of the sentiments and emotions of justice and virtue which in human mortal beings are the evidences and pledge of our divine origin and immortal destiny, it would heave and throb with the energy of the elemental forces of nature, and project this enemy (referring to President Johnson) of two races of men into that vast region, there forever to exist in a solitude eternal as life or as the absence of life, emblematical of, if not really, that outer darkness of which the Savior of mankind spoke in warning to those who are enemies to themselves and of their race and of God.
Mr. Evarts followed Mr. Boutwell, and in the course of his argument referred to this paragraph in Mr. Boutwell's speech in the following humorously sarcastic vein, during the delivery of which, the Senate was repeatedly convulsed with laughter. Mr. Evarts said:
I may as conveniently at this point of the argument as at any other pay some attention to the astronomical punishment which the learned and honorable manager Mr. Boutwell, thinks should be applied to this novel case of impeachment of the President. Cicero, I think it is, who says that a lawyer should know everything, for sooner or later, there is no fact in history, science or human knowledge that will not come into play in his arguments. Painfully sensitive of my ignorance, being devoted to a profession which "sharpens and does not enlarge the mind," I yet can admire without envy the superior knowledge evinced by the honorable manager. Indeed, upon my soul, I believe he is aware of an astronomical fact which many professors of the science are wholly ignorant of; but nevertheless, while some of his colleagues were paying attention to an unoccupied and unappropriated island on the surface of the seas, Mr. Manager Boutwell, more ambitious, had discovered an untenanted and unappropriated region in the skies, reserved, he would have us think, in the final councils of the Almighty as the place of punishment for deposed and convicted American Presidents.
At first, I thought that his mind had become so enlarged that it was not sharp enough to observe that the Constitution has limited the punishment, but on reflection I saw that he was as legal and logical as he was ambitious and astronomical; for the Constitution has said "remove from office," and has put no limit to the distance of removal so that it may be without the shedding of a drop of his blood or taking a penny of his property, or confining his limbs. Instant removal from office and transportation to the skies. Truly this is a great undertaking, and if the learned manager can only get over the obstacle of the laws of nature, the Constitution will, not stand in his way.
He can contrive no method but that of a convulsion of the earth that shall project the deposed President to this indefinitely distant space; but a shock of nature of so vast an energy and for so great a result on him might unsettle even the footing of the firm members of Congress. We certainly need not resort to so perilous a method as that. How shall we accomplish it? Why, in the first place, nobody knows where that space is but the learned manager himself, and he is the necessary deputy to execute the judgment of the court. Let it then be provided that, in case of your sentence of deposition and removal from office, the honorable and astronomical manager shall take into his own hands the execution of the sentence. With the President made fast to his broad and strong shoulders, and having already assayed the flight by imagination, better prepared than anybody else to execute it in form, taking the advantage of ladders as far as ladders will go to the top of this great capitol, and spurning there with his foot the crest of Liberty, let him set out upon his flight while the two houses of Congress and all the people of the United States shall shout—"Sic itur ad astra!" But here a distressing doubt strikes me. How will the manager get back. He will have got far beyond the reach of gravitation to restore him, and so ambitious a wing as his should never stoop to a downward flight. Indeed, as he passes through the constellations, the famous question of Carlyle (by which he derides the littleness of human affairs upon the scale of the measure of the heavens,) "What thinks Bootes as he drives his hunting dogs up the zenith in their leash of sidereal fire?" will force itself on his notice. What, indeed, will Bootes think of this new constellation? Besides, reaching this space beyond the power of Congress ever to send for persons and papers, how shall he return, and how decide in the contest there become personal and perpetual—the struggle of strength between him and the President? In this new revolution thus established forever, who shall decide which is the sun and which is the moon? Who determine the only scientific test, which reflects hardest upon the other?
Gen. Logan, one of the managers, appeared for the prosecution, upon the close of the examination of witnesses. The following is a brief extract from his very long and labored argument, and relates to the Tenure-of-Office Act:
It is a new method of ascertaining the meaning of a law, plain upon its face, by resorting to legislative discussions, and giving in evidence opinions affected by the law. As a matter of fact; it is well known the act was intended to prevent the very thing Mr. Johnson attempted in the matter of Mr. Stanton's removal. I think this manner of defense will not avail before the Senate. The law must govern in its natural and plain intendment, and will not be frittered away by extraneous interpretation. The President in his veto message admits substantially this construction.
The proviso does not change the general provisions of the Act, except by giving a more definite limit to the tenure-of-office, but the last paragraph of the Act puts the whole question back into the hands of the Senate according to the general intention of the Act, and provides that even the Secretaries are subject to removal by and with the advice and consent of the Senate.
The Act first provides that all persons holding civil offices at the date of its passage appointed by and with the advice and consent of the Senate, shall only be removed in the same manner. This applies to the Secretary of War. This proviso merely gives a tenure running with the term of the President and one month thereafter, subject to removal by and with the advice and consent of the Senate. The law clearly gives Mr. Stanton a right to the office from the 4th of March, 1865, till one month after the 4th of March, 1869, and he can only be disturbed in that tenure by the President by and with the advice and consent of the Senate.
Yet, although Mr. Stanton was appointed by Mr. Lincoln in his first term, when there was no tenure-of-office fixed by law, and continued by Mr. Lincoln in his second term, it is argued that his term expired one month after the passage of the Tenure-of-Office Act, March 2nd, 1867, for the reason that Mr. Lincoln's term expired at his death. This is false reasoning; the Constitution fixed the term of the President at four years, and by law the commencement of his term is the 4th of March. Will it be said that when Mr. Johnson is deposed by a verdict of the Senate, that the officer who will succeed him will serve for four years? Certainly not. Why? Because he will have no Presidential term, and will be merely serving out a part of the unexpired term of Mr. Lincoln, and will go out of office on the 4th of March, 1869, at the time Mr. Lincoln would have retired by expiration of his term, had he lived. * * *
The only question, then, which remains, is simply this: Has the accused violated that (Tenure-of-Office) Act? No one knows better than this accused the history of, and the purpose to be secured by, that Act. It was ably and exhaustively discussed on both sides, in all aspects. In the debates of Congress it was subsequently reviewed and closely analyzed in a Veto Message of the respondent. No portion of that Act escaped his remark, and no practical application which has been made of it since did he fail to anticipate. He knew before he attempted its violation that more than three-fourths of the Representatives of the people in Congress assembled had set their seal of disapprobation upon the reasons given in the Veto Message and had enacted the law by more than the constitutional number of votes required. Nay, more; he was repeatedly warned, by investigations made looking toward just such a proceeding as now being witnessed in this court, that the people had instructed their Representatives to tolerate no violation of the laws constitutionally enacted.
Mr. Groesbeck, in behalf of the defense, said in closing his argument:
What is to be your judgment, Senators, in this case? Removal from office and perpetual disqualification? If the President has committed that for which he should be ejected from office it were judicial mockery to stop short of the largest disqualifications you can impose. It will be a heavy judgment. What is his crime in its moral aspects, to merit such a judgment? Let us look to it.
He tried to pluck a thorn out of his very heart, for the condition of things in the War Department, and consequently in his Cabinet, did pain him as a thorn in his heart. You fastened it there, and you are now asked to punish him for attempting to extract it. What more? He made an ad interim appointment to last for a single day. You could have terminated it whenever you saw fit. You had only to take up the nomination which he had sent to you, which was a good nomination, and act upon it and the ad interim vanished like smoke. He had no idea of fastening it upon the department. He had no intention of doing anything of that kind. He merely proposed that for the purpose, if the opportunity should occur, of subjecting this law to a constitutional test. That was all the purpose it was to answer. It is all for which it was intended. The thing was in your hands from the beginning to the end. You had only to act upon the nomination, and the matter was settled. Surely that was no crime.
I point you to the cases that have occurred—of ad interim appointment after ad interim appointment; but I point especially to the case of Mr. Holt, where the Senate in its legislative capacity examined it, weighed it, decided upon it, heard the report of the President and received it as satisfactory. That is, for the purpose of this trial, before the same tribunal, res adjudicate, I think, and it will be so regarded.
What else did he do? He talked with an officer about the law. That is the Emory Article. He made intemperate speeches, though full of honest, patriotic sentiments; when reviled, he should not revile again; when smitten upon one cheek he should turn the other.
But, the gentleman who spoke last on the part of the managers, "he tried to defeat pacification and restoration." I deny it in the sense in which he presented it—that is, as a criminal act. Here, too, he followed precedent and trod the path in which were the footsteps of Lincoln, and which was bright with the radiance of his divine utterance, "charity for all, malice toward none." He was eager for pacification. He thought that the war was ended. The drums were all silent—the arsenals were all shut; the roar of the canon had died away to the last reverberation; the armies were disbanded; not a single army confronted us in the field. Ah, he was too eager, too forgiving, too kind. The hand of conciliation was stretched out to him and he took it? It may be he should have put it away; but was it a crime to take it? Kindness, forgiveness a crime! Kindness a crime! Kindness is omnipotent for good, more powerful than gunpowder or canon. Kindness is statesmanship. Kindness is the highest statesmanship of heaven itself. The thunders of Sinai do but terrify and distract; alone they accomplish little; it is the kindness of Calvary that subdues and pacifies.
What shall I say of this man? He is no theorist; he is no reformer; I have looked over his life. He has ever walked in beaten paths, and by the light of, the Constitution. The mariner, tempest-tossed in mid-sea, does not more certainly turn to his star for guidance than does this man in trial and difficulty to the star of the Constitution. He loves the Constitution. It has been the study of his life. He is not learned and scholarly like many of you; he is not a man of many ideas or of much speculation but by a law of the mind he is only the truer to that he does know. He is a patriot, second to no one of you in the measure of his patriotism. He loves his country; he may be full of error; I will not canvass now his views; but he loves his country; he has the courage to defend it, and I believe to die for it if need be. His courage and patriotism are not without illustration. My colleague (Mr. Nelson) referred the other day to the scenes which occurred in this Chamber when he alone of twenty-two Senators remained; even his State seceded, but he remained. That was a trial of his patriotism, of which many of you, by reason of your locality and of your life-long associations, know nothing. How his voice rang out in this hall in the hour of alarm for the good cause, and in denunciation of the rebellion! But he did not remain here; it was a pleasant, honorable, safe, and easy position; but he was wanted for a more difficult and arduous and perilous service. He faltered not, but entered upon it. That was a trial of his courage and patriotism of which some of you who now sit in judgment on more than his life, know nothing. I have, often thought that those who, dwelt at the North, safely distant from the collisions and strifes of the war, knew little of its actual, trying dangers. We who lived on the border know more. Our horizon was always red with flame; and it sometimes burned so near us that we could feel its heat upon the outstretched hand. But he was wanted for a greater peril, and went into the very furnace of the war, and there served his country long and well. Who of you have done more? Not one. * * * It seems cruel, Senators, that he should be dragged here as a criminal, or that any one who served his country and bore himself well and bravely through that trying ordeal, should be condemned upon miserable technicalities.
If he has committed any gross crime, shocking alike and indiscriminately the entire public mind, then condemn him; but he has rendered services to the country that entitle him to kind and respectful consideration. He has precedents for everything he has done, and what excellent precedents! The voices of the great dead come to us from the grave sanctioning his course. All our past history approves it. How can you single out this man, now in this condition of things, and brand him before the world, put your brand of infamy upon him because he made an ad interim appointment for a day, and possible may have made a mistake in attempting to remove Stanton? I can at a glance put my eye on Senators here who would not endure the position he occupied. You do not think it is right yourselves. You framed this civil tenure law to give each President his own Cabinet, and yet his whole crime is that he wants harmony and peace in his.
Senators, I will not go on. There is a great deal that is crowding on my tongue for utterance, but it is not from my head; it is rather from my heart; and it would be but a repetition of the vain things 1 have been saying the past half hour But I do hope you will not drive the President out and take possession of his office. I hope this, not merely as counsel for Andrew Johnson, for Andrew Johnson's administration is to me but as a moment, and himself as nothing in comparison with the possible consequences of such an act. No good can come of it, Senators, and how much will the heart of the nation be refreshed if at last the Senate of the United States can, in its judgment upon this case, maintain its ancient dignity and high character in the midst of storms, and passion, and strife.
A somewhat startling incident, which for the moment threatened unpleasant results, occurred in the course of the trial. In his opening speech for the prosecution, Mr. Manager Boutwell used this language, speaking of the President:
The President is a man of strong will, of violent passions, of unlimited ambition, with capacity to employ and use timid men, adhesive, subservient men, and corrupt men, as the instruments of his designs. It is the truth of history that he has injured every person with whom he has had confidential relations, and many have escaped ruin only by withdrawing from his society altogether. He has one rule of his life: he attempts to use every man of power, capacity, or influence within his reach. Succeeding in his attempts, they are in time, and usually in a short time, utterly ruined. If the considerate flee from him, if the brave and patriotic resist his schemes or expose his plans, he attacks them with all the energy and patronage of his office, and pursues them with all the violence of his personal hatred. He attacks to destroy all who will not become his instruments, and all who become his instruments are destroyed in the use. He spares no one. * * * Already this purpose of his life is illustrated in the treatment of a gentleman who was of counsel for the respondent, but who has never appeared in his behalf.
The last paragraph of the above quotation manifestly referred to a disagreement between the President and Judge Black, which led to the retirement of that gentleman from the Management of the Defense of the President, a few days prior to the beginning of the trial.
To this criticism of the President, Judge Nelson, of Counsel for Defense, responded a few days later, with the following statement:
It is to me, Senators, a source of much embarrassment how to speak in reply to the accusation which has thus been preferred against the President of the United States. * * *
In order that you may understand what I have to say about it I desire to refer the Senate to a brief statement which I have prepared on account of the delicacy of the subject; and, although I have not had time to write it out as I would have desired to do, it will be sufficient to enable you to comprehend the facts which I am about to state. You will understand, Senators, that I do not purport to give a full history of what I may call the Alta Vela case, as to which a report was made to the Senate by the Secretary of State upon your call. A mere outline of the case will be sufficient to explain what I have to say in reference to Judge Black:
Under the guano act of 1856, William T. Kendal on the one side, and Patterson and Marguiendo on the other, filed claims in the Secretary of State's office to the island which is claimed by the government of St. Domingo.
On the 17th of June, 1867, the examiner of claims submitted a report adverse to the claim for damages against the Dominican government. On the 22d of July, 1867, Mr. Black addressed a letter to the President, (page 10) and another on the 7th of August, 1867. On page 13 it is said that Patterson and Marguiendo acquiesce in the decision. On page 13 it is shown that other parties are in averse possession. On page 15 it is asserted that the contest is between citizens of the United States, and can be settled in the courts of the United States. The contest now seems to be between Patterson and Marguiendo and Thomas B. Webster & Co.
On the 14th of December, 1859, Judge Black, as Attorney General, rejected the claim of W. J. Kendall to an island in the Carribean Sea, called Cayo Verde, and Mr. Seward seems to regard the two cases as resting on the same principle in his report of 17th of January, 1867.
On the 22d of July, 1867, Judge Black addressed a letter to the President enclosing a brief. On the 7th of August, 1867, he addressed another communication to the President. On the 7th of February, 1868, an elaborate an able communication was sent to the President, signed by W. J. Shaffer, attorney for Patterson and Marguiendo, and Black, Lamon &, Co., counsel, in which they criticised with severity the report of Mr. Seward and asked the President to review his decision.
According to the best information I can obtain, I state that ON THE 9TH OF MARCH, 1868, General Benjamin F. Butler addressed a letter to J. W. Shaffer, in which he stated that he was "clearly of the opinion that, under the claim of the United States its citizens have the exclusive right to take guano there," and that he had never been able to understand why the executive did not long since assert the rights of the government, and sustain the rightful claims of its citizens to the possession of the island IN THE MOST FORCIBLE MANNER consistent with the dignity and honor of the Nation.
The letter was concurred in and approved of by John A. Logan, J. A. Garfield, W. H. Koontz, J. K. Moorhead and John A. Bingham, on the same day, 9th of March, 1868.
This letter expressing the opinion of Generals Butler, Logan and Garfield was placed in the hands of the President by Chauncey F. Black, who, on the 16th of March, 1868, addressed a letter to him in which he enclosed a copy of the same with the concurrence of Thaddeus Stevens, John A. Bingham, J. G. Blaine, J. K. Moorhead and William H. Koontz.
After the date of this letter, and while Judge Black was the counsel of the respondent in this cause, he had an interview with the President, in which he urged immediate action on his part and the sending an armed vessel to take possession of the island; and because the President refused to do so, Judge Black, on the 19th of March, 1868, declined to appear further as his counsel in this case.
Such are the facts in regard to the withdrawal of Judge Black, according to the best information I can obtain.
The island of Alta Vela, or the claim for damages, is said to amount in value to more than a million dollars, and it is quite likely that an extensive speculation is on foot. I have no reason to charge that any of the managers are engaged in it, and presume that the letters were signed, as such communications are often signed, by members of Congress, through the importunity of friends.
Judge Black no doubt thought it was his duty to other clients to press this claims but how did the President view it?
Senators, I ask you for a moment to put yourself in the place of the President of the United States, and as this is made a matter of railing accusation against him, to consider how the President of the United States felt it.
There are two or three facts to which I desire to call the attention of the Senate and the country in connection with these recommendations. They are, first, that they were all gotten up after this impeachment proceeding was commenced against the President of the United States.
Another strong and powerful fact to be noticed in vindication of the President of the United States, in reference to this case which has been so strongly preferred against him, is that these recommendations were signed by four of the honorable, gentlemen to whom the House of Representatives have intrusted the duty of managing this great impeachment against him.
Of course exception was taken to this statement, and to the revisal inferences therefrom, and the authenticity of the signatures mentioned at first denied, and then an effort made to explain them away, but it is unsuccessful.
The incident left a fixed impression, at least in the minds of many of the Senators, that an effort had been made to coerce the President, in fear of successful impeachment, into the perpetration of a cowardly and disgraceful international act, not only by his then Chief of Counsel, but also by a number of his active prosecutors on the part of the House.
It would be difficult to fittingly characterize this scandalous effort to pervert a great State trial into an instrumentality for the successful exploitation of a commercial venture which was by no means free from the elements of international robbery.
Yet to Mr. Johnson's lasting credit, he proved that he possessed the honesty and courage to dare his enemies to do their worst—he would not smirch his own name and disgrace his country and his great office, by using its power for the-promotion of an enterprise not far removed from a scheme of personal plunder, let it cost him what it might. It was a heroic act, and bravely, unselfishly, modestly performed.
The initial proceedings to the taking of testimony, while to a degree foreshadowing a partisan division in the trial, also demonstrated the presence of a Republican minority which could not at all times, be depended upon to register the decrees of the more radical portion of the body. The first development of this fact came in the defeat of a proposition to amend the rules in the interest of the prosecution, and again on the examination of Mr. Burleigh, a delegate from Dakota Territory in the House of Representatives and a witness brought by the prosecution on March 31st. Mr. Butler, examining the witness, asked the question:
Had you on the evening before seen General Thomas? * * * Had you a communication with him?
Answer. Yes sir.
Mr. Stanbery objected, and the Chief Justice ruled that the testimony was competent and would be heard "unless the Senate think otherwise."
To this ruling Mr. Drake objected and appealed from the decision of the Chair to the Senate. It appeared to be not to the ruling per se, that Mr. Drake objected, but to the right of the Chair to rule at all upon the admissibility of testimony. Mr. Drake representing the extremists of the dominant side of the Chamber. There seemed to be apprehension of the effect upon the Senate of the absolute judicial fairness of the rulings of the Chief Justice, and the great weight they would naturally have, coming from so just and eminent a jurist. After discussion, Mr. Wilson moved that the Senate retire for consultation.
The vote on this motion was a tie, being twenty-five for and twenty-five against retiring, whereupon the Chief Justice announced the fact of a tie and voted "yea;" and the Senate retired to its consultation room, where, after discussion and repeated suggestions of amendment to the rules, the following resolution was offered by Mr. Henderson:
Resolved, That rule 7 be amended by substituting therefor the following:
The presiding officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer in the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise provided for. And the presiding officer on the trial may rule all questions of of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision; or he may, at his option, in the first instance, submit any such question to a vote of the members of the Senate.
Mr. Morrill, of Maine, moved to amend the proposed rule by striking out the words "which ruling shall stand as the judgment of the Senate," which was rejected without a division.
Mr. Sumner then moved to substitute the following:
That the chief justice of the United States, presiding in the Senate on the trial of the President of the United States, is not a member of the Senate, and has no authority under the Constitution to vote on any question during the trial, and he can pronounce decision only as the organ of the Senate, with its assent.
It is not insisted here that there was any sinister purpose in this proposition, yet the possibilities, in case of its adoption, were very grave. Like the wasp, the sting was in the tail—"he (the chief justice;) can pronounce decision only as the organ of the Senate, WITH ITS ASSENT!" Had that rule been adopted, suppose the Senate, with, its vote of forty-two Republicans and twelve Democrats, upon failure of conviction by a two-thirds vote had refused or refrained on a party vote from giving "its assent" to a judgment of acquittal?
The vote upon this proposed amendment was as follows:
For its adoption—Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Howard, Morgan, Morrill of Maine, Morton, Nye, Pomeroy, Ramsay, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams, Wilson—22—all Republicans.
Against its adoption—Messrs. Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers, Willey—26—15 Republicans and 11 Democrats.
So the resolution was rejected—every aye vote a Republican, and all but one, Mr. Trumbull, afterwards voting to impeach the President at tHe close of the trial—eleven Democrats and fifteen Republicans voting nay.
Mr. Drake then offered the following:
It is the judgment of the Senate that under the Constitution the Chief Justice presiding over the Senate in the pending trial has no privilege of ruling questions of law arising thereon, but that all such questions shall be submitted to a decision by the Senate alone.
It would be difficult to formulate a proposition better calculated to taint the proceedings with a partisan bias than this one by Mr. Drake. The impeachment movement was in a very large sense, if not entirely, a partisan enterprise. It had its origin in partisan differences, and was based mainly on differences as to public policies at issue between the two great parties of the country—and while it was expected that every political friend of the President would vote against the impeachment, it was DEMANDED, and made a test of party fealty, that every Republican Senator should vote for his conviction. Therefore, and perhaps it was not illogical from these premises, party leaders of Mr. Drake's inclination should not relish the influence the legal, unbiased and non-partisan rulings of the Chief Justice might have upon his more conservatively inclined fellow partisans of the body.
Mr. Drake called for the yeas and nays, which were ordered, and the vote was yeas 20, nays 30. The personality of this vote was very much the same as on the previous proposition.
The rule proposed by Mr. Henderson was then adopted. The conference closed shortly after, and the session of the Senate was resumed.
The next day, April 1st, Mr. Sumner renewed in the Senate his proposition submitted at the Conference the day before but not acted upon, to change the rules of the Senate in the following form:
It appearing from the reading of the Journal yesterday that on a question where the Senate were equally divided, the Chief Justice, presiding on the trial of the President, gave a casting vote; it is hereby ordered that, in the judgment of the Senate, such vote was without authority under the Constitution of the United States.
The proposition was put to vote with the following result:
Yeas—Messrs. Cameron, Chandler, Cole, Conkling, Conness, Cragin, Drake, Howard, Howe, Morgan, Morrill of Maine, Morton, Norton, Ramsay, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams, Wilson—21—10 Republicans and 1 Democrat.
Nays—Messrs. Anthony, Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Patterson of Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers, Willey—26—16 Republicans and 10 Democrats.
So the proposed order was rejected. The trial then proceeded. The answers to a very large proportion of the interrogatories propounded to the witnesses, on both sides, were unimportant, having very little bearing, either way, upon the case. Twenty-eight of those interrogatories, however, were more or less important, and were challenged, seven by the defense, and twenty-one by the prosecution. For convenience of reference, these interrogatories are numbered from one to twenty-eight, inclusive, with the answers thereto, when permitted to be answered, as follows:
Question submitted by Mr. Butler, of the prosecution, April 1st, 1868, to Mr. Walter A. Burleigh, witness on the stand, called for the prosecution:
No. 1.
You said yesterday, in answer to my question, that you had a conversation with General Lorenzo Thomason the evening of the 21st of February last. State if he said anything as to the means by which he intended to obtain or was directed by the President to obtain possession of the War Department. If so, state all he said, as nearly as you can?
Mr. Stanbery objected.
Mr. Drake called for the yeas and nays, which were ordered, and the vote was as follows:
Yeas—Anthony, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson—39—all Republicans.
Nays-Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Vickers—11—all Democrats.
So, the Senate decided that the question should be answered.
General Butler repeated the interrogatory, and Mr. Burleigh's answer was as follows:
On the evening of February 21st last, I learned that General Thomas had been appointed Secretary of War ad interim, I think while at the Metropolitan Hotel. I invited Mr. Leonard Smith, of Leavenworth, Kas., to go with me up to his house and see him. We took a carriage and went up. I found the General there ready to go out with his daughters to spend the evening at some place of amusement. I told him I would not detain him if he was going out; but he insisted on my sitting down and I sat down for a few moments. I told him I had learned he had been appointed Secretary of War. He said he had; that he had been appointed that day, I think; that after receiving his appointment from the President he went to the War Office to show his authority, or his appointment, to Secretary Stanton, and also his order to take possession of the office; that the Secretary remarked to him that he supposed he would give him time to remove his personal effects, or his private papers, or something to that effect; and the answer was "certainly." He said that in a short time the Secretary asked him if he would give him a copy of his order, and he replied "certainly," and gave it to him. He said that it was no more than right to give him time to take out his personal effects. I asked him when he was going to assume the duties of the office. He remarked that he should take possession the next morning at ten o'clock, which would be the 22nd; and I think in that connection he stated that he had issued some order in regard to the observance of the day; but of that I am not sure. I remarked to him that I should be up at that end of the avenue the next day, and he asked me to come in and see him. I asked him where I could find him and he said in the Secretary's room up stairs. I told him I would be there. Said he, "be there punctually at 10 o'clock." Said I, "you are going to take possession to-morrow?" "Yes." Said he, "suppose Stanton objects to it—resists?" "Well," said he, "I expect to meet force by force. Or use force."
Mr. Conkling: "Repeat that."
The witness. I asked him what he would do if Stanton objected, or resisted. He said he would use force, or resort to force. Said I, "Suppose he bars the doors?" His reply was. "I will break them down." I think that was about all the conversation that we had there in that connection.
No. 2.
The next disputed interrogatory put by General Butler to the witness was:
Shortly after this conversation about which you have testified, and after the President restored Major General Thomas to the office of Adjutant General, if you know the fact that he was so restored, were you present in the War Department, and did you hear Thomas make any statements to the officers and clerks, or either of them, belonging to the War Office, as to the rules and orders of Mr. Stanton or of the War Office which he, Thomas, would make, revoke, relax, or rescind, in favor of such officers or employes when he had control of the affairs therein? If so, state as near as you can when it was such conversation occurred, and state all he said, as near as you can.
Mr. Howard demanded the yeas and nays and they were ordered and were as follows:
Yeas—Anthony Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Henderson Howard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, Wilson—28—all Republicans.
Nays—Bayard, Buckalew, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Sherman, Van Winkle, Vickers, Willey, Wilson—22—11 Republicans, 11 Democrats.
So the Senate decided that the question should be answered.
Mr. Butler: With the leave of the President, I will put this question by portions.
Did you hear Thomas make any statement to the officers or clerks, or either of them, belonging to the War Office, as to the rules and orders of Mr. Stanton, or of the office, which he, Thomas, would revoke, relax, or rescind, in favor of such officers and employes when he had control therein?
Answer: The General remarked to me that he had made an arrangement to have all the heads, or officers in charge of the different departments of the office come in with their clerks that morning, as he wanted to address them. He stated that the rules which had been adopted for the government of the clerks by his predecessor were of a very arbitrary character, and he proposed to relax them. I suggested to him that perhaps I had better go. He said, "no, not at all—remain," and I sat down and he had some three or four officers—four or five, perhaps—come in, and each one brought in a roomful of clerks, and he made an address to each company as they came in, stating to them that he did not propose to hold them strictly to the letter of the instructions; but when they wanted to go out they could go out, and when they wanted to come in they could come in; that he regarded them all as gentlemen, and supposed they would do their duty, and he should require them to do their duty; but so far as their little indulgences were concerned—I suppose such as going out across the street or something of that kind—he did not intend to interfere with them; all he expected was that they would do their duty. I waited until he concluded, and we took a walk, and I came away.
Mr. Samuel Wilkinson testified in response to an interrogatory by Mr. Butler:
I asked him (Thomas) to tell me what had occurred that morning between him and the Secretary of War in his endeavor to take possession of the War Department. He hesitated to do so till I told him that the town was filled with rumors of the change that had been made, of the removal of Mr. Stanton and the appointment of himself. He then said that since the affair had become public he felt relieved to speak to me with freedom about it. He drew from his pocket a copy, or rather the original, of the order of the President of the United States, directing him to take possession of the War Department immediately. He told me that he had taken as a witness of his action General Williams, and had gone up into the War Department and had shown to Edwin M. Stanton the order of the President, and had demanded by virtue of that order the possession of the War Department and its books and papers. He told me that Edwin M. Stanton, after reading the order, had asked him if he would allow him sufficient time for him to get together his books, papers, and other personal property and take away with him; that he told him that he would allow to him all necessary time to do so, and had then withdrawn from Mr. Stanton's room. He further told me, that day being Friday, that the next day would be what he called a dies non, being the holiday of the anniversary of Washington's birthday, when he had directed that the War Department should be closed, that the day thereafter would be Sunday, and that on Monday morning he should demand possession of the War Department and of its property, and if that demand was refused or resisted he should apply to the General-in-Chief of the Army for a force sufficient to enable him to take possession of the War Department; and he added that he did not see how the General of the Army could refuse to obey his demand for that force. He then added that under the order that the President had given to him he had no election to pursue any other course than the one that he indicated; that he was a subordinate officer directed by an order from a superior officer, and that he must pursue that course.
Hon. T. W. Ferry, called by the Prosecution, testified from memoranda taken down at the time of the demand of General Thomas for possession of the War Office (Mr. Ferry being present), as follows:
War Department Washington, Feb. 22, 1867.
In the presence of Secretary Stanton, Judge Kelley, Morehead, Dodge, Van Wyck, Van Horn, Delano, and Freeman Clarke, at 25 minutes past 12 m., General Thomas, Adjutant-General, came into the Secretary of War Office, saying, "Good morning," the Secretary replying "Good morning, sir." Thomas looked around and said, "I do not wish to disturb you gentlemen, and will wait." Stanton said, "Nothing private here; what do you want?" Thomas demanded of Secretary Stanton the surrender of the Secretary of War Office. Stanton denied it to him, and ordered him back to his own office as Adjutant-General. Thomas refused to go. "I claim the office of Secretary of War, and demand it by order of the President."
Stanton: "I deny your authority to act, and order you back to your own office."
Thomas: "I will stand here. I want no unpleasantness in the presence of these gentlemen."
Stanton: "You can stand there if you please, but you can not act as Secretary of War. I am Secretary of War. I order you out of this office and to your own." Thomas: "I refuse to go, and will stand here."
Stanton: "How are you to get possession? Do you intend to use force?"
Thomas: "I do not care to use force, but my mind is made up as to what I shall do. I want no unpleasantness, though. I shall stay here and act as Secretary of War."
Stanton: "You shall not, and I order you, as your superior, back to your own office."
Thomas: "I will not obey you, but will stand here and remain here."
Stanton: "You call stand there if you please. I order you out of this office to your own. I am Secretary of War, and your superior."
Thomas then went into opposite room across hall (General Schriver's) and commenced ordering General Schriver and General Townsend. Stanton entered, followed by Moorhead and Ferry, and ordered those generals not to obey or pay any attention to General Thomas' orders; that he denied his assumed authority as Secretary of War ad interim, and forbade their obedience of his directions. "I am Secretary of War, and I now order you, General Thomas out of this place to your own quarters."
Thomas: "I will not go, I shall discharge the functions of Secretary of War."
Stanton: "You will not."
Thomas: "I shall require the mails of the War Department to be delivered to me and shall transact the business of the office."
Stanton: "You shall not have them, and I order you to your room."
No. 3.
On Tuesday, April 2nd, the prosecution put in evidence a letter from the President to Gen. Grant, dated Feb. 10, 1868, in answer to a prior letter front the General. The President's letter, as introduced in evidence, purported to contain certain enclosures relating to the subject matter of the President's letter. The following is that portion of the President's letter which speaks of the enclosures accompanying and included therein:
GENERAL: The extraordinary character of your letter of the 3rd instant would seem to preclude any reply on my part; but the manner in which publicity has been given to the correspondence of which that letter forms a part, and the grave questions which are involved, induce me to take this mode of giving, as a proper sequel to the communications which have passed between us, the statements of the five members of the cabinet who were present on the occasion of our conversation on the 14th ultimo. Copies of the letters which they have addressed to me upon the subject are accordingly herewith enclosed.
Counsel for the President objected that the letter introduced by the prosecution was not evidence in the case unless the managers should also produce the enclosures therein referred to and made a part of the same. The following was the vote on sustaining the objection:
Yeas—Bayard, Conkling, Davis, Dixon, Doolittle, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont Norton, Patterson of Tennessee, Ross, Sprague, Trumbull, Van Winkle, Vickers and Willey—20—10 Republicans and 10 Democrats.
Nays—Anthony, Buckalew, Cameron, Cattell, Chandler, Cole, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Howard, Howe, Morgan, Morrill of Maine, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Sumner, Thayer, Tipton, Williams, and Wilson—29—28 Republicans and 1 Democrat.
So the evidence offered by the prosecution was admitted as offered, without the enclosures referred to, the objection by the defense not being sustained. (For these rejected enclosures see appendix.)
No. 4.
The prosecution offered to prove (Mr. Geo. A. Wallace, of the Treasury Department, on the stand):
That after the President had determined on the removal of Mr. Stanton, Secretary of War, in spite of the action of the Senate, there being no vacancy in the office of Assistant Secretary of the Treasury, the President unlawfully appointed his friend and theretofore private secretary, Edmund Cooper, to that position, as one of the means by which he intended to defeat the tenure of civil office act and other laws of Congress.
After debate and Mr. Wallace's answer in explanation of the usages of the department in the disbursement of moneys, during which it was shown that no moneys could be drawn out of the treasury on the order of the assistant secretary except when authorized by the Secretary of the Treasury to draw warrants therefor, a vote was taken, and resulted as follows:
Yeas—Anthony, Cameron, Cattell, Chandler, Cole, Conkling, Corbett, Cragin, Drake, Howard, Howe, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsey, Ross, Sprague, Sumner, Thayer, Tipton and Wilson—-22—all Republicans.
Nays—Bayard, Buckalew, Conness, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of New Hampshire, Patterson of Tennessee, Sherman, Stewart, Trumbull, Van Winkle, Vickers, Willey and Williams—27—16 Republicans, 11 Democrats.
So the testimony was not received, as it was shown in the debate thereon that it would prove nothing against the President which the prosecution had expected to prove.
No. 5.
Friday April 3rd, the Prosecution offered two telegraphic messages, one from Lewis E. Parsons to Andrew Johnson, and the other Mr. Johnson's answer, as follows:
Montgomery, Ala., Jan. 17, 1867.
Legislature in session. Efforts making to reconsider vote on Constitutional Amendment. Report from Washington says it is probable an enabling act will pass. We do not know what to believe. I find nothing here.
(The State Legislature had previously rejected the Constitutional Amendment.)
The response is:
U. S. Military Telegraph. Executive Office, Washington D. C., Jan. 17, 1867.
What possible good can be obtained by reconsidering the Constitutional Amendment? I know of none in the present posture of affairs; and I do not believe that the people of the whole country will sustain any set of individuals in attempts to change the whole character of our Government by enabling acts or otherwise. I believe, on the contrary, that they will eventually uphold all who have patriotism and courage to stand by the Constitution, and who place their confidence in the people. There should be no faltering on the part of those who are honest in their determination to sustain the several co-ordinate Departments of the Government in accordance with its original design. Andrew Johnson. Hon. L. E. Parsons, Montgomery, Alabama.
The yeas and nays were demanded by Mr. Drake, and were as follows:
Yeas—Anthony, Cameron. Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Henderson, Howard, Morgan, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Willey, Wilson—27—all Republicans.
Nays—Buckalew, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Trumbull, Van Winkle, Vickers, Williams—17—8 Democrats and 9 Republicans.
So the testimony was decided admissible, and was claimed by Mr. Manager Boutwell to be in substantiation of the charges contained in the eleventh article.
No. 6.
The prosecution offered in evidence a copy of the Cleveland Leader, a newspaper purporting to contain a speech delivered by Mr. Johnson at the City of Cleveland, Ohio, on September 30th, 1866, as evidence against the President. It was objected to by the defense, and on the call by Mr. Conness and Mr. Sumner the yeas and nays were ordered, and the vote was as follows:
Yeas—Anthony, Cameron, Cattell. Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Henderson, Howard, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Van Winkle, Willey, Williams—35—33 Republicans and 2 Democrats.
Nays—Buckalew, Davis, Dixon, Doolittle, Fowler, Hendricks, Howe, McCreery, Patterson of Tennessee, Trumbull, Vickers—11—8 Democrats and 3 Republicans.
So the evidence was received. It related to the tenth article, and was based on a certain speech delivered by Mr. Johnson at Cleveland, Ohio.
No. 7.
Saturday, April 10th, 1868, General Lorenzo Thomas on the stand, called by the Defense. Mr. Stanbery asked him, with reference to certain interviews with the President: What occurred between the President and yourself at that second interview on the 21st (February)?
Mr. Drake demanded the yeas and nays, and they were ordered and were as follows:
Yeas—Anthony, Bayard, Buckalew, Cattell, Cole, Conkling, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ross, Sherman, Sprague, Stewart, Sumner, Tipton, Trumbull, Van Winkle, Vickers, Willey, Williams, Wilson, Yates—42-31 Republicans and 11 Democrats.
Nays—Cameron, Chandler, Conness, Cragin, Drake, Harlan, Howard, Nye, Ramsay, Thayer—10—all Republicans.
So the testimony was received, and General Thomas' answer was:
I stated to the President that I had delivered the communication, and that Mr. Stanton gave this answer: "Do you wish me to vacate at once, or will you give me time to take away my private property?" and that I replied, "At your pleasure." I then said that after delivering the copy of the letter to him, he said: "I do not know whether I will obey your instructions or resist them." This I mentioned to the President and his answer was: "Very well, go and take charge of the office and perform the duties." * * *
Question by Mr. Stanbery: What first happened to you the next morning?
Answer: The first thing that happened to me the next morning was the appearance at my house of the marshal of the district, with an assistant marshal and a constable, and he arrested me.
Question: What time in the morning was that?
Answer: About 8 o'clock, before I had my breakfast. The command was to appear forthwith. I asked if he would permit me to see the President. * * * He went with me to the President's and went into the room where the President was. I stated that I had been arrested, at whose suit I did not know. He said, "very well, that is the place I want it in the courts." * * * I was required to give bail in $5,000. I asked the judge what it meant. He said it was simply to present myself there at half past ten the following Wednesday. I asked him if it suspended me from any of my functions. He said, "no, it has nothing to do with them." * * * I went immediately from there, first stopping at the President's on my way, and stating that I had given bail. He made the same answer, "very well, we want it in the courts."
Question: Did the President at any time prior to or including the 9th of March, authorize or direct you to use force, intimidation or threats, to get possession of the War Office?
Answer: He did not.
No. 8.
April 11, Gen. Sherman was called by the defense. In the course of his examination Mr. Stanbery asked him the following question:
In that interview, (referring to a previously mentioned interview between the General and the President in the presence of Gen. Grant) what conversation took place between the President and you in regard to the removal of Mr. Stanton?
Mr. Butler objected and the yeas and nays were ordered.
Yeas—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—22 Republicans and 11 Democrats.
Nays—Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Henderson, Howard, Morrill of Maine, Morrill of Vermont. Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Williams, Wilson and Yates—28—all Republicans.
So the proffered testimony was refused.
No. 9.
Counsel for defense put the following question to Gen. Sherman:
At the first interview at which the tender of the duties of the Secretary of War ad interim was made to you by the President, did anything further pass between you and the President in reference to the tender or your acceptance of it?
Mr. Drake demanded the yeas and nays, and they were as follows:
Yeas—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—12 Republicans and 11 Democrats.
Nays—Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinhuysen, Harlan, Henderson, Howard, Howe, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Williams, Wilson and Yates—29—all Republicans.
So the proffered testimony was refused.
No. 10.
The next question put to Gen. Sherman by the Defense was:
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?
Objected to by Prosecution, and yeas and nays were taken:
Yeas—Anthony, Bayard, Fowler, McCreery, Patterson of Tennessee, Ross, and Vickers—7—4 Democrats, 3 Republicans.
Nays—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, Morrill 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—37 Republicans and 7 Democrats.
So this proffered testimony was refused.
No. 11.
Mr. Stanbery, for Defense, suggested that the question had undoubtedly been overruled upon matter of form, at least, and put it again in this form.
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?
This was put and determined in the negative without a division, when Mr. Henderson offered it again in this form: Did the President, in tendering you the appointment of Secretary of War ad interim. express the object or purpose of so doing?
Prosecution again objected, and the yeas and nays were taken:
Yeas—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—14 Republicans and 11 Democrats.
Nays—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—all Republicans.
So the proffered evidence was refused.
No. 12.
April 13, 1868—General Sherman's examination continued:
Question: After the restoration of Mr. Stanton to office, did you form an opinion whether the good of the service required a Secretary of War other than Mr. Stanton; and if so, did you communicate that opinion to the President?
Mr. Conness called for the yeas and nays and they were ordered, and resulted:
Yeas—Anthony, Bayard, Buckalew, Dixon, Doolittle. Fowler, Grimes, Hendricks, Johnson, McCreery Patterson, of Tennessee, Ross, Trumbull, Van Winkle and Vickers—15—6 Republicans and 9 Democrats.
Nays—Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Drake, Edmunds, Fessenden, Frelinghuysen, Harlan, Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Willey, Williams, Wilson and Yates—35—33 Republicans and 2 Democrats.
So the proffered testimony was refused.
No. 13.
The next question asked of Gen. Sherman was by Senator Johnson:
Question: Did you at any time, and when, before the President gave the order for the removal of Mr. Stanton as Secretary of War, advise the President to appoint some other person than Mr. Stanton?
Mr. Drake demanded the yeas and nays, which were as following:
Yeas—Anthony, Bayard, Buckalew, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Trumbull, Van Winkle, Vickers—18-9—Republicans and 9 Democrats.
Nays—Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Dixon, Drake, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Willey Williams, Wilson, Yates—33—30 Republicans and 2 Democrats.
So the proffered testimony was refused.
No. 14.
Counsel for defense offered:
A warrant of arrest of Gen. Thomas, dated February 22, 1868, and the affidavit on which the warrant issued.
(This warrant had been issued on the affidavit of Mr. Stanton.)
The yeas and nays were as follows:
Yeas—Anthony, Bayard, Buckalew, Cattell, Cole, Corbett, Cragin, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, Willey, Williams, Yates—34—24 Republicans and 10 Democrats.
Nays—Cameron, Conkling, Chandler, Conness, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye, Ramsay, Stewart, Thayer, Tipton, Wilson—17—all Republicans.
So the warrant was received in evidence.
That warrant was issued by Judge Carter, Chief Justice of the Supreme Court of the District of Columbia, upon the complaint of Edwin M. Stanton, and charged Thomas with attempting forcibly to seize and take possession of the War Office, in violation of the fifth section of the Tenure-of-Office Act. The warrant was as follows:
UNITED STATES OF AMERICA, DISTRICT OF COLUMBIA.
To David S. Gooding, United States Marshal for the District of Columbia:
I, David K. Carter, Chief Justice of the Supreme Court for the District of Columbia, hereby command you to arrest Lorenzo Thomas, of said District, forthwith, and that you have the said Lorenzo before me at the chambers of the said Supreme Court in the City of Washington, forthwith, to answer to the charge of a high misdemeanor in this, that on the 21st day of February, 1868, in the District of Columbia, he did unlawfully accept the appointment of the office of Secretary of War ad interim, and did then and there unlawfully hold and exercise and attempt to hold and exercise the said office contrary to the provisions of the act entitled "An Act regulating the tenure of certain civil offices, passed March 2, 1867, and hereof fail not, but make due return.
Given under my hand and seal of said court this 22nd day of February, 1868,
D. K. Carter. Chief Justice of the Supreme Court of the District of Columbia.
Attest: R. J. Meigs, Clerk. (Marshal's Return). Washington, D. C., February 22, 1868.
The within writ came to hand at 7 o'clock a.m. and was served by me on the said Lorenzo Thomas at 8 o'clock a.m, and I now return this writ and bring him before Chief Justice Carter at 9 o'clock a. m. of to-day.
David S. Gooding, U. S. Marshal, D. C.
No. 15.
Mr. Johnson, (of the Court,) asked this question of General Sherman, witness on the stand: When the President tendered to you the office of Secretary of War, ad interim, on the 27th of January, 1868, and on the 31st of the same month and year, did he, at the very time of making such tender, state to you what his purpose in so doing was?
Counsel for Prosecution objected, and Mr. Drake called for the yeas and nays, which were taken, as follows:
Yeas—Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, Willey—16—16 Republicans and 10 Democrats.
Nays-Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates—22—all Republicans.
The question was decided to be admissible, and the answer was "yes."
No. 16.
The next question, in immediate connection with the last, was:
If he did, state what he said his purpose was?
The yeas and nays were ordered and the vote was:
Yeas—Anthony, Bayard, Buckalew, Cole, Cobertt, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, Willey—26—15 Republicans and 11 Democrats.
Nays—Cameron, Cattell, Chandler, Conkling, Conness, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates—25—all Republicans.
So the question was permitted to be answered, and General Sherman said:
The President told me that the relations between himself and Mr. Stanton, and between Mr. Stanton and the other members of the Cabinet, were such that he could not execute the office which he filled as President of the United States without making provision ad interim for that office; that he had the right under the law; he claimed to have the right, and his purpose was to have the office administered in the interest of the Army and of the Country; and he offered me the office in that view. He did not state to me then that his purpose was to bring it to the Courts directly; but for the purpose of having the office administered properly in the interest of the Army and the whole Country. I asked him why lawyers could not make a case, and not bring me, or any officer of the Army, into the controversy. His answer was that it was found impossible, or a case could not be made up; but, said he "if we can bring the case to the Courts, it would not stand half an hour."
Mr. Butler, of the Prosecution, objected, and after debate, General Sherman continued:
The question first asked me seemed to restrict me so close to the purpose that I endeavored to confine myself to that point alone. On the first day, or first interview, in which the President offered me the appointment ad interim, he confined himself to very general terms, and I gave him no definite answer. The second interview, which was on the afternoon of the 30th, was the interview during which he made the points which I have testified to. In speaking he referred to the constitutionality of the bill known as the civil tenure-of-office bill, I think, or the tenure of civil office bill; and it was the constitutionality of that bill which he seemed desirous of having tested, and which, he said, if it could be brought before the Supreme Court properly, would not stand half an hour. We also spoke of force. I first stated that if Mr. Stanton would simply retire, although it was against my interest, against my desire, against my personal wishes, and against my official wishes, I might be willing to undertake to administer the office ad interim. Then he supposed the point was yielded; and I made this point? "Suppose Mr. Stanton do not yield?" he answered, "Oh! he will make no objection; you present the order and he will retire." I expressed my doubt, and he remarked. "I know him better than you do: he is cowardly." I then begged to be excused from giving him an answer to give the subject more reflection, and I gave him my final answer in writing. I think that letter, if you insist on knowing my views, should come into evidence, and not parol testimony taken up; but my reasons for declining the office were mostly personal in their nature.
Mr. Henderson (of the Court) asked this question:
Did the President, on either of the occasions alluded to, express to you a fixed purpose or determination to remove Mr. Stanton from his office?
General Sherman answered:
If by removal is meant a removal by force, he never conveyed to my mind such an impression; but he did most unmistakably say that he could have no more intercourse with him in the relation of President and Secretary of War.
Mr. Howard (of the Court) asked the General:
You say the President spoke of force. What did he say about force?
General Sherman answered:
I enquired, "Suppose Mr. Stanton do not yield? What then shall be done?" "Oh," said he, "there is no necessity of considering that question. Upon the presentation of an order he will simply go away, or retire."
Mr. Henderson (of the Court) asked the question:
Did you give any opinion, or advice to the President on either of those occasions in regard to the legality or propriety of an ad interim appointment; and if so, what advice did you give, or what opinion did you express to him?
Mr. Bingham of the prosecution, objected, and the Chair put the question to the Senate whether it should be answered. The Senate, without a division, refused answer to the question, and the examination of Gen. Sherman closed for that day.
No. 17.
Wednesday, April 15th. The defense offered several extracts from records of the Navy Department, to prove the practice of the Government in cases of removal from office by different Presidents prior to Mr. Johnson, of which the following are samples:
NAVY AGENCY AT NEW YORK.
1861. June 20. Isaac Henderson was, by direction of the President, removed from the office of Navy agent at New York, and instructed to transfer to Paymaster John D. Gibson, of United States Navy, all the public funds and other property in his charge. Navy Agency at Philadelphia.
Dec. 26, 1851. James S. Chambers was removed from the office of Navy Agent at Philadelphia and instructed to transfer to Paymaster A. E. Watson, U. S. Navy, all the public funds and other property in his charge.
The prosecution objected and the yeas and nays were ordered.
Yeas—Anthony, Bayard, Buckalew, Cole, Conkling, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbery, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Vickers, Willey, Wilson, Yates—36—25 Republicans and 11 Democrats.
Nays—Cameron, Cattell, Chandler, Conness, Cragin, Drake, Harlan, Howard, Morgan, Nye, Pomeroy, Ramsay, Thayer, Tipton, Williams—15—all Republicans.
So the evidence was admitted.
No. 18.
Thursday, April 16, Mr. Walter S. Cox on the stand. The defense offered to prove:
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—15 Republicans 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:
That the President then stated that he had issued an order for the removal of Mr. Stanton and the employment of Mr. Thomas to perform the duties ad interim; that thereupon Mr. Perrin said, "Supposing Mr. Stanton should oppose the order." The President replied: "There is no danger of that, for General Thomas is already in the office." He then added: "It is only a temporary arrangement; I shall send in to the Senate at once a good name for the office."
Mr. Butler, for prosecution, objected, and the vote was:
Yeas—Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks, McCreery, Patterson of Tennessee, and Vickers—9—all Democrats.
Nays—Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates—-37—36 Republicans and 1 Democrat.
So this testimony was rejected.
No. 22.
Friday, April 17. The defense offered to prove:
That on this occasion (a Cabinet meeting previously mentioned), the President communicated to Mr. Welles, and the other members of his Cabinet, before the meeting broke up, that he had removed Mr. Stanton and appointed General Thomas Secretary of War ad interim; and that, upon the inquiry by Mr. Welles whether General Thomas was in possession of the office, the President replied that he was, and on further question of Welles, whether Mr. Stanton acquiesced, the President replied that he did; all that he required was time to remove his papers.
Mr. Butler objected and the yeas and nays were ordered.
Yeas—Anthony, Bayard, Buckalew, Cole, Conkling, Corbett, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morton, Patterson of Tennessee, Ross, Saulsbery, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey—26—15 Republicans and 11 Democrats.
Nays—Cameron, Cattell, Conness, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates—2-3-all Republicans.
So the testimony was received, and the following proceeding was had Mr. Evarts, of Counsel for the President. Mr. Welles on the stand:
Please state, Mr. Welles, what communication was made by the President to the Cabinet on the subject of the removal of Mr. Stanton and the appointment of General Thomas, and what passed at the time?
Mr. Welles: As I remarked, after the Departmental business had been disposed of, the President remarked, as usual when he had anything to communicate himself, that before they separated it would be proper for him to say that he had removed Mr. Stanton and appointed the Adjutant General Lorenzo Thomas, Secretary ad interim. I asked whether General Thomas was in possession. The President said he was; that Mr. Stanton required some little time to remove his writings, his papers; I said, perhaps, or I asked, "Mr. Stanton, then, acquiesces?" He said he did, as he considered it. * * *
Question: Now, sir, one moment to a matter which you spoke of incidentally. You were there the next morning about noon?
Answer: I was.
Question: Did you then see the appointment of Mr. Ewing?
Answer: I did.
Question: Was it made out before you came there, or after, or while you were there?
Answer: While I was there.
Question: And you then saw it?
Answer: I saw it.
Question by Mr. Johnson (of the Court): What time of the day was that?
Answer: It was about twelve.
* * * Question by Mr. Evarts: Did you become aware of the Tenure-of-office bill, as it is called, at or about the time that it passed Congress?
Answer: I was aware of it.
Question: Were you present at any Cabinet meeting at which, after the passage of that Act, it became the subject of consideration?
Answer: Yes, on two occasions. The first occasion when it was brought before the Cabinet was on the 26th of February, 1867.
Question: Who were present?
Answer: All the Cabinet were present.
Question: Was Mr. Stanton there?
Answer: Mr. Stanton was there, I think, on that occasion.
Question: This civil tenure act was the subject of consideration there?
Answer: It was submitted.
Question: As a matter of consideration in the Cabinet?
Answer: For consultation for the advice and opinion of members.
Question: How did he submit the matter to your consideration?
Mr. Butler objected and demanded that the offer be put in writing.
No. 23.
That the President at a meeting of the Cabinet, while the bill was before the President for his approval, laid before the Cabinet the tenure-of-civil-office bill for their consideration and advice to the President respecting his approval of the bill: and thereupon the members of the Cabinet then present gave their advice to the President that the bill was unconstitutional and should be returned to Congress with his objections, and that the duty of preparing a message, setting forth the objections to the constitutionality of the bill, was devolved on Mr. Seward and Mr. Stanton; to be followed by proof as to what was done by the President and Cabinet up to the time of sending in the message.
After argument the yeas and nays were taken:
Yeas—Anthony Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, Vickers, and Willey—20—9 Republicans and 11 Democrats.
Nays—Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay Sherman, Sprague, Stewart, Thayer, Tipton, Williams, Wilson, and Yates—29—all Republicans.
So this testimony was rejected.
No. 21.
Counsel for Defense offered to prove:
That at the meetings of the Cabinet at which Mr. Stanton was present, held while the tenure-of-civil-office bill was before the President for approval, the advice of the Cabinet in regard to the same was asked by the President and given by the Cabinet, and thereupon the question whether Mr. Stanton and the other Secretaries who had received their appointment from Mr. Lincoln were within the restrictions upon the President's power of removal from office created by said act was considered, and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions.
The yeas and nays were ordered, and the vote was:
Yeas—Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, and Willey—22—11 Republicans and 11 Democrats.
Nays—Cameron, Cattell, Chandler, Cole. Conness. Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghusen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, and Yates—26—all Republicans.
So this testimony was rejected.
No. 25.
Counsel for defense offered to prove:
That at the Cabinet meetings between the passage of the tenure-of-civil office bill and the order of the 21st of February, 1868, for the removal of Mr. Stanton upon occasions when the condition of the public service, as affected by the operation of that bill, came up for the consideration and advice of the Cabinet, it was considered by the President and Cabinet that a proper regard to the public service made it desirable that upon some proper case a judicial determination of the constitutionality of the law should be obtained.
The question being taken by yeas and nays, resulted:
Yeas—Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury Trumbull, Van Winkle, and Vickers—19—8 Republicans and 11 Democrats.
Nays—Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Sprague, Stewart, Thayer, Tipton, Willey, Williams, Wilson and Yates—30—all Republicans.
So the proffered testimony was rejected.
No. 26.
Counsel for defense put this question to witness, (Mr. Welles, then Secretary of the Navy.)
Was there, within the period embraced in the inquiry in the last question, and at any discussions or deliberations of the Cabinet concerning the operation of the tenure-of-civil-office act and the requirements of the public service in regard to the service, any suggestion or intimation whatever touching or looking to the vacation of any office by force or getting possession of the same by force?
Counsel for prosecution objected, and the vote was:
Yeas—Anthony, Bayard, Buckalew, Davis, Dixon, Edmunds, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, and Vickers—18—8 Republicans and 10 Democrats.
Nays-Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Willey, Williams, Wilson, and Yates—26—all Republicans.
So the proffered testimony was rejected.
No. 27.
Defense offered to prove:
That at the meetings of the Cabinet at which Stanton was present, held while the tenure-of-civil-office bill was before the President for approval, the advice of the Cabinet in regard to the same was asked by the President, and given the Cabinet, and thereupon the question whether Mr. Stanton and the other Secretaries who had received their appointments from Mr. Lincoln were within the restrictions upon the President's power of removal from office created by said act, was considered and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions.
Mr. Johnson: I ask that the question propounded by the Senator from Ohio (Mr. Sherman) shall now be read.
The Secretary read the question as follows:
State if, after the 2d of March, 1867, the date of the passage of the tenure-of-office act, the question whether the Secretaries appointed by President Lincoln were included within the provisions of that act came before the Cabinet for discussion; and if so, what opinion was given on this question by members of the Cabinet to the President.
The yeas and nays were ordered; and being taken resulted:
Yeas—Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Sherman, Trumbull, Van Winkle, Vickers, and Willey—20—9 Republican and 11 Democrats.
Nays—Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, and Yates—26—all Republicans.
So the proffered testimony was rejected.
No. 28.
The Prosecution proposed to put in evidence the nomination of Lieutenant General Sherman, to be General by brevet, sent to the Senate on the 13th of February, 1868, also the nomination of Major General George H. Thomas to be Lieutenant General by brevet, and to be General by brevet, sent to the Senate on the 21st of February, 1868.
The question being taken by yeas and nays, resulted: Yeas—Anthony, Cole, Fessenden, Fowler, Grimes, Henderson, Morton, Ross, Sumner, Tipton, Trumbull, Van Winkle, Willey, and Yates—14—all Republicans.
Nays—Buckalew, Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Hendricks, Howard, Howe, Johnson, McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ramsay, Sherman, Sprague, Stewart, Thayer, Vickers, Williams, and Wilson—35—26 Republicans and 9 Democrats.
So the proffered testimony was refused.
GENERAL EMORY'S TESTIMONY.
The Ninth Article of the Impeachment was based upon alleged military changes in the City of Washington whereby the number of troops on duty there was rumored to have been largely increased, with a view to their use in the controversy between the President and Congress, and more especially for the expulsion of Mr. Stanton from the War Office in case of his resistance to the order of the President for his retirement. The wildest rumors of that character prevailed—that Mr. Johnson proposed to throw off all disguise and assume direct military control and the establishment of practically a military dictatorship. Congress had some months previously enacted that all military orders from the President should be issued through the General of the Army—the Congress thereby assuming to practically abrogate a constitutional function of the Chief Executive.
There was considerable confidence among the supporters of the impeachment that they would be able to prove these allegations by General Emory, then in local command of the troops and Department of Washington. General Emory was called by the prosecution, and the following was his testimony.
Examined by Mr. Butler:
Question: Will you have the kindness to state, as nearly as you can what took place then? (Referring to an interview with the President at the Executive Mansion.)
Answer: I will try and state the substance of it, but the words I can not undertake to state exactly. The President asked me if I recollected a conversation he had had with me when I first took command of the department. I told him that I recollected the facts of the conversation distinctly. He then asked me what changes had been made. I told him no material changes, but such as had been made I could state at once. I went on to state that in the fall six companies of the 29th infantry had been brought to this City to winter; but as an offset to that, four companies of the 12th infantry had been detached to South Carolina on the request of the Commander of that District; that two companies of artillery had been detached by my predecessor, one of them for the purpose of siding in putting down the Fenian difficulties, had been returned to the command, that although the number of companies head been increased, the numerical strength of the command was very much the same, growing out of an order reducing the artillery and infantry companies from the maximum of the war establishment to the minimum of the peace establishment. The President said: "I do not refer to those changes." I replied that if he would state what changes he referred to, or who made the report of the changes, perhaps I could be more, explicit. He said, "I refer to recent changes within a day or two," or something to that effect. I told him I thought I could assure him that no changes had been made; that under a recent order issued for the government of the armies of the United States, founded upon a law of Congress, all orders had to be transmitted through General Grant to the army, and in like manner all orders coming from General Grant to any of his subordinate officers must necessarily come, if in my department, through me; that if by chance an order had been given to any junior officer of mine it was his duty at once to report that fact. The President asked me. "What order do you refer to?" I replied, "To order number 17 of the series of 1867." He said, "I would like to see the order," and a messenger was dispatched for it. At this time a gentleman came in who I supposed had business in no way connected with the business I had in hand, and I withdrew to the farther end of the room, and while there, the messenger came in with the book of orders and handed it to me. As soon as the gentleman had withdrawn, I returned to the President with the book in my hand, and said I would take it as a favor if he would permit me to call his attention to that order; that it had been passed in an appropriation bill, and I thought it not unlikely that it had escaped his attention. He took the order and read it, and observed, "This is not in conformity with the Constitution of the United States, that makes me Commander-in-Chief, or with the terns of your commission." I replied, "That is the order which you approved and issued to the army for our government," or something to that effect. I can not recollect the exact words, nor do I intend to quote the exact words of the President. He said, "Am I to understand that the President of the United States can not give an order except through the General of the Army? Or General Grant?" I said in reply, that that was my impression—that that was the opinion that the Army entertain, and I thought upon that subject they were a unit. I also said, "I think it is fair, Mr. President, to say to you that when this order came out, there was considerable discussion on the subject as to what were the obligations of an officer under that order, and some eminent lawyers were consulted. I myself consulted one—and the opinion was given to me decidedly and unequivocally that we were bound by the order, Constitutional or not Constitutional." The President observed that "the object of the law was evident."
The following is that portion of the act referred to:
Section 2. Be it further enacted: That the headquarters of the General of the Army of the United States shall be at the City of Washington, and all orders and instructions relating to military operations issued by the President and Secretary of War shall be issued through the General of the Army, and in case of his inability, through the next in rank. The General of the Army shall not be removed, suspended, or relieved from command or assigned to duty elsewhere than at said headquarters except at his own request WITHOUT THE PREVIOUS APPROVAL OF THE SENATE; and any orders or instructions relating to Military operations issued contrary to the requirements of this section, shall be null and void. And any officer who shall issue orders or instructions, contrary to the provisions of this section, shall be deemed guilty of a misdemeanor in office; and any officer of the Army who shall transmit, convey or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued shall be liable to imprisonment for not less than two nor more than twenty years upon conviction thereof in any Court of competent jurisdiction.
By turning to the Congressional Record of that day, it will be found that Mr. Johnson was perfectly aware of the existence of the foregoing provision of the Act of Congress in the bill referred to, at the time he returned the bill to the House with his signature. His reasons for so signing it are set out in the following communication to the House accompanying the bill.
The act entitled "An act making appropriations for the support of the Army for the year ending June 30, 1868, and for other purposes," contains provisions to which I must call attention. There are propositions contained in the second section which in certain cases deprives the President of his Constitutional functions of Commander in Chief of the Army, and in the sixth section, which denies to ten States of the union their Constitutional right to protect themselves in any emergency, by means of their own militia. These provisions are out of place in an appropriation act, but I am compelled to defeat these necessary appropriations if I withhold my signature from the act. Pressed by these considerations, I feel constrained to return the bill with my signature, but to accompany it with my earnest protest against the section which I have indicated.
Andrew Johnson. Washington, D. C., March 2, 1868.
That Congress was to expire by limitation at 12 o'clock on the 4th, thirty-six hours later. If Mr. Johnson had vetoed the bill, as under ordinary conditions it would have been his duty to the Constitution and to himself to do, its re-passage through the two Houses in that limited time would have been impossible, and the appropriations carried by the bill for the support of the Army would have been lost. To save them Mr. Johnson submitted to the indignity put upon him by Congress in denying him a guaranteed and manifest Constitutional right and power. In that act Mr. Johnson illustrated a magnanimity and a consciousness of public responsibility that was most creditable to himself, and in marked contrast to the action of Congress toward him.
A few days prior to the day set for taking the vote on the several Articles of Impeachment, and after the conclusion of testimony, it was proposed that there be a private session for conference of the Senate on a day named, May 11th, to give Senators an opportunity to declare themselves on the pending impeachment.
Neither the precise object or the utility of a conference were then apparent, but the result was somewhat of a surprise to those who had, up to that time, been undoubtingly confident of the President's conviction. Comparatively few Senators had previously declared their position. Very few, if any of the Republican Senators had indicated a disposition to vote against any of the articles, but the silence of a number of them, and their refusal to commit themselves even to their associates, was a source of uneasiness in Senatorial Impeachment circles. Hence, possibly, the suggestion of a "conference."
It was taken for granted that every Democratic Senator would vote against the impeachment. But the idea was not to be entertained that the "no" votes would extend beyond the Democratic coterie of twelve. There were, however, anxious misgivings as to that. There was too much silence—too much of saying nothing when so little that might be said would go so far to relieve an oppressive anxiety.
So a session for "conference" was ordered and held, much to the surprise of gentlemen whose silence had become somewhat oppressive, and was becoming equally painful to those who wanted a conference. It savored of an attempt to "poll the Senate" in advance of judgment. It was resolved at the session of May 7th, to hold a session for deliberation on the following Monday, May 11th. The most surprising development of that session was the weakness of the bill of indictment at the very point where it was apparently strongest—the first Article. Two conspicuous and influential Senators—Messrs. Sherman of Ohio, and Howe of Wisconsin—declared, and gave convincing reasons therefor, that they would not vote for the impeachment of Mr. Johnson on that Article.
In his remarks on this occasion, after giving a history of the enactment of the Tenure-of-Office law, the first section of which specifically excepts from its operation such members of Mr. Johnson's Cabinet as had been appointed by Mr. Lincoln and still remaining, though not recommissioned by Mr. Johnson, Mr. Sherman said:
I can only say as one of the Senate conferees, under the solemn obligations that now rest upon us in construing this Act, that I did not understand it to include members of the Cabinet not appointed by the President, and that it was with extreme reluctance and only to secure the passage of the bill that, in the face of the votes of the Senate I agreed to the report LIMITING AT ALL the power of the President to remove heads of Departments. * * * I stated explicitly that the Act as reported did not protect from removal the members of the Cabinet appointed by Mr. Lincoln, that President Johnson might remove them at his pleasure; and I named the Secretary of war as one that might be removed. * * * I could not conceive a case where the Senate would require the President to perform his great executive office upon the advice and through heads of Departments personally obnoxious to him, and whom he had not appointed, and, therefore, no such case was provided for. * * * Can I pronounce the President guilty of crime, and by that vote aid to remove him from his high office for doing what I declared and still believe he had a legal right to do. God forbid: * * * What the President did do in the removal of Mr. Stanton he did under a power which you repeatedly refused to take from the office of the President—a power that has been held by that officer since the formation of the Government, and is now limited only by the words of an Act, the literal construction of which does not include Mr. Stanton. * * * It follows, that as Mr. Stanton is not protected by the Tenure-of-Civil-Office Act, his removal rests upon the Act of 1789, and he according to the terms of that Act and of the commission held by him, and in compliance with the numerous precedents cited in this cause, was lawfully removed by the President, and his removal not being contrary to the provisions of the Act of March 2nd 1867, the 1st, 4th, 5th, and 6th Articles, based upon his removal, must fail.
On this point, Mr. Howe said:
If Mr. Stanton had been appointed during the present Presidential term. I should have no doubt he was within the security of the law. But I cannot find that, either in fact or in legal intendment, he was appointed during the present Presidential term. It is urged that he was appointed by Mr. Lincoln, and such is the fact. It is said that Mr. Lincoln's term is not yet expired. Such I believe to be the fact. But the language of the proviso is, that a Secretary shall hold not during the term of MAN by whom he is appointed, but during the TERM of the PRESIDENT by whom he may be appointed. Mr. Stanton was appointed by the President in 1862. The term of that President was limited by the Constitution. It expired on the 4th of March, 1865. That the same incumbent was re-elected for the next term is conceded, but I do not comprehend how that fact extended the former term.
Entertaining these views, and because the first Article of the Impeachment charges the order of removal as a violation of the Tenure-of-Office Act, I am constrained to hold the President not guilty upon that Article.
These declarations, coming from two gentlemen of distinction and influence in the party councils, both of whom had actively participated in framing the Tenure-of-Office Act, became at once the occasion of genuine and profound surprise, and it is unnecessary to say that they tended largely to strengthen the doubts entertained by others as to the sufficiency of all the other allegations of the indictment. They naturally and logically reasoned that the removal of Mr. Stanton, set out in the first Article, constituted, in effect, the essence of the indictment, and that all that followed, save the 10th Article was more in the nature of specifications, or a bill of particulars, than otherwise—that if no impeachable offense were set out in the first Article, then none was committed, as that Article constituted the substructure of all the rest—its essence and logic running through and permeating practically all—and that without that Article, there was no coherence or force in any of them, and consequently nothing charged against the President that was impeachable, as he had not violated the Tenure-of-Office law, and was not charged with the violation of any other law.
That conference developed, further, that a large majority of the Articles of Impeachment were objectionable to and would not be supported by a number of Republican Senators.
Mr. Edmunds would not support the 4th, 8th, 9th, and 10th Articles, being "wholly unsustained by proof," but would support the 11th, though apparently doubtful of its efficiency.
Mr. Ferry could not support the 4th, 5th, 6th, 7th, 9th, or 10th Articles.
Mr. Howard declared that he would not support the 9th Article.
Mr. Morrill of Vermont, would not support the 4th, 6th, 9th, or 10th Articles, as they were unproven.
Mr. Morrill, of Maine, Mr. Yates, Mr. Harlan, and Mr. Stewart, would vote to convict on the Articles relating to the removal of Mr. Stanton—uncommitted on all others.
Mr. Fessenden, Mr. Fowler, Mr. Grimes, Mr. Henderson, Mr. Trumbull, and Mr. Van Winkle, each declared, at that conference, their opposition to the entire list of the Articles of Impeachment.
But eighteen Republicans committed themselves at that conference, for conviction, out of twenty-four who filed opinions. While it was taken for granted that the six Democrats who had failed to declare their position at that conference would oppose conviction, the position of the eighteen Republicans who had failed to declare themselves became at once a source of very grave concern in impeachment circles. Out of that list of eighteen uncommitted Republicans, but one vote was necessary to defeat the impeachment. This condition was still farther intensified by the fact that eight of the eleven Articles of Impeachment were already beaten in that conference, and practically by Republican committals, and among them the head and front and foundation of the indictment—the First Article—by Messrs. Sherman and Howe, two conspicuous Republican leaders.
A forecast of the vote based on these committals as to the several Articles, would be against the First Article, twelve Democrats and eight Republicans, one more than necessary for its defeat—the eight "not guilty" votes including Messrs. Sherman and Howe.
Against the Fourth Article—twelve Democrats and nine Republicans—including Messrs. Edmunds, Ferry, and Morrill of Vermont.
Against the Fifth Article—twelve Democrats and eight Republicans-including Messrs. Edmunds and Ferry.
Against the Sixth Article—twelve Democrats and nine Republicans-including Messrs. Ferry, Howe, and Morrill of Vermont.
Against the Seventh—Article-twelve Democrats and seven Republicans—including Mr. Ferry.
Against the Eighth Article—twelve Democrats and seven Republicans—including Mr. Edmunds.
Against the Ninth Article—twelve Democrats and twelve Republicans—including Messrs. Sherman, Edmunds, Ferry, Howe, Howard, and Morrill of Vermont.
Against the Tenth Article—twelve Democrats and ten Republicans—including Messrs. Edmunds, Sherman, Ferry, and Morrill of Vermont.
It is somewhat conspicuous that but three gentlemen—Messrs. Sumner, Pomeroy, and Tipton, in their arguments in the Conference, pronounced the President guilty on all the charges—though five others, Messrs. Wilson, Patterson of New Hampshire, Frelinghuysen, Cattell, and Williams, pronounced the President guilty on general principles, without specification; and Messrs. Morrill of Maine, Yates and Stewart, guilty in the removal of Mr. Stanton, without further specification of charges.
As but one vote, in addition to the twelve Democratic and the six Republican votes pledged against conviction at the Conference, was necessary to defeat impeachment on the three remaining Articles—the 2nd, 3rd, and 11th—and as nearly a half of the Republicans of the Senate had failed to commit themselves, at least in any public way, the anxiety of the advocates of Impeachment became at once, and naturally, very grave. How many of the eighteen Republicans who had failed to declare themselves at that Conference might fail to sustain the Impeachment, became, therefore, a matter of active solicitude on all sides, especially in impeachment circles in and out of the Senate. Republican committals in the Conference had rendered absolutely certain the defeat of every Article of the Impeachment except the Second, Third, and Eleventh, and the addition of but a single vote from the eighteen uncommitted Republicans to the "No" side, would defeat them.
It was under this unfavorable condition of the Impeachment cause, that the Senate assembled on May 16th, 1868, for the purpose of taking final action on the indictment brought by the House of Representatives, the trial of which had occupied the most of the time of the Senate for the previous three months, and which had to a large degree engrossed the attention of the general public, to the interruption of legislation pending in the two Houses of Congress, and more or less to the embarrassment of the commercial activities of the country.
For the first time in the history of the government, practically eighty years, the President of the United States was at the bar of the Senate, by virtue of a constitutional warrant, on an accusation of the House of Representatives of high crimes and misdemeanors in office, and his conviction and expulsion from office demanded in the name of all the people. No event in the civil history of the country had ever before occurred to so arouse public antipathies and public indignation against any man-and these conditions found special vent in the City of Washington, as the Capitol of the Nation, as it had become during the trial the focal point of the politically dissatisfied element of the entire country. Its streets and all its places of gathering had swarmed for many weeks with representatives of every State of the union, demanding in a practically united voice the deposition of the President.
On numbers of occasions during the previous history of the Government there had been heated controversies between the Congress and the Executive, but never before characterized by the intensity, not infrequently malevolence, that had come to mark this and never before had a division between the Executive and the Congress reached a point at which a suggestion of his constitutional ostracism from office had been seriously entertained, much less attempted.
But it had now come. The active, intense interest of the country was aroused, and everywhere the division among the people was sharply defined and keen, though the numerical preponderance, it cannot be denied, was largely against the President and insistent upon his removal.
The dominant party of the country was aroused and active for the deposition of the President. Public meetings were held throughout the North and resolutions adopted and forwarded to Senators demanding that Mr. Johnson be promptly expelled from office by the Senate—and it had become apparent, long before the taking of the vote, that absolute, swift, and ignominious expulsion from office awaited every Republican Senator who should dare to disregard that demand.
Under these conditions it was but natural that during the trial, and especially as the close approached, the streets of Washington and the lobbies of the Capitol were thronged from day to day with interested spectators from every section of the union, or that Senators were beleaguered day and night, by interested constituents, for some word of encouragement that a change was about to come of that day's proceeding, and with threats of popular vengeance upon the failure of any Republican Senator to second that demand.
In view of this intensity of public interest it was as a matter of course that the coming of the day when the great controversy was expected to be brought to a close by the deposition of Mr. Johnson and the seating of a new incumbent in the Presidential chair, brought to the Capitol an additional throng which long before the hour for the assembling of the Senate filled all the available space in the vast building, to witness the culmination of the great political trial of the age.
Upon the closing of the hearing—even prior thereto, and again during the few days of recess that followed, the Senate had been carefully polled, and the prospective vote of every member from whom it was possible to procure a committal, ascertained and registered in many a private memoranda. There were fifty-four members—all present. According to these memoranda, the vote would stand eighteen for acquittal, thirty-five for conviction—one less than the number required by the Constitution to convict. What that one vote would be, and could it be had, were anxious queries, of one to another, especially among those who had set on foot the impeachment enterprise and staked their future control of the government upon its success. Given for conviction and upon sufficient proofs, the President MUST step down and out of his place, the highest and most honorable and honoring in dignity and sacredness of trust in the constitution of human government, a disgraced man and a political pariah. If so cast upon insufficient proofs or from partisan considerations, the office of President of the United States would be degraded—cease to be a coordinate branch of the Government, and ever after subordinated to the legislative will. It would have practically revolutionized our splendid political fabric into a partisan Congressional autocracy. Apolitical tragedy was imminent.
On the other hand, that vote properly given for acquittal, would at once free the Presidential office from imputed dishonor and strengthen our triple organization and distribution of powers and responsibilities. It would preserve the even tenor and courses of administration, and effectively impress upon the world a conviction of the strength and grandeur of Republican institutions in the hands of a free and enlightened people.
The occasion was sublimely and intensely dramatic. The President of the United States was on trial. The Chief Justice of the Supreme Court was presiding over the deliberations of the Senate sitting for the trial of the great cause. The board of management conducting the prosecution brought by the House of Representatives was a body of able and illustrious politicians and statesmen. The President's counsel, comprising jurists among the most eminent of the country, had summed up for the defense and were awaiting final judgment. The Senate, transformed for the occasion into an extraordinary judicial tribunal, the highest known to our laws, the Senators at once judges and jurors with power to enforce testimony and sworn to hear all the facts bearing upon the case, was about to pronounce that judgment.
The organization of the court had been severely Democratic. There were none of the usual accompaniments of royalty or exclusivism considered essential under aristocratic forms to impress the people with the dignity and gravity of a great occasion. None of these were necessary, for every spectator was an intensely interested witness to the proceeding, who must bear each for himself, the public consequences of the verdict, whatever they might be, equally with every member of the court.
The venerable Chief Justice, who had so ably and impartially presided through the many tedious weeks of the trial now about to close, was in his place and called the Senate to order.
The impressive dignity of the occasion was such that there was little need of the admonition of the Chief Justice to abstention from conversation on the part of the audience during the proceeding. No one there present, whether friend or opponent of the President, could have failed to be impressed with the tremendous consequences of the possible result of the prosecution about to be reached. The balances were apparently at a poise. It was plain that a single vote would be sufficient to turn the scales either way—to evict the President from his great office to go the balance of his life's journey with the brand of infamy upon his brow, or be relieved at once from the obloquy the inquisitors had sought to put upon him—and more than all else, to keep the honorable roll of American Presidents unsmirched before the world, despite the action of the House.
The first vote was on the Eleventh and last Article of the Impeachment. Senators voted in alphabetical order, and each arose and stood at his desk as his name was called by the Chief Clerk. To each the Chief Justice propounded the solemn interrogatory—"Mr. Senator—, how say you—is the respondent, Andrew Johnson, President of the United States, guilty or not guilty of a high misdemeanor as charged in this Article?"
Mr. Fessenden, of Maine, was the first of Republican Senators to vote "Not Guilty." He had long been a safe and trusted leader in the Senate, and had the unquestioning confidence of his partisan colleagues, while his long experience in public life, and his great ability as a legislator, and more especially his exalted personal character, had won for him the admiration of all his associates regardless of political affiliations. Being the first of the dissenting Republicans to vote, the influence of his action was feared by the impeachers, and most strenuous efforts had been made to induce him to retract the position he had taken to vote against conviction. But being moved on this occasion, as he had always been on others, to act upon his own judgment and conviction, though foreseeing that this vote would probably end a long career of conspicuous public usefulness, there was no sign of hesitancy or weakness as he pronounced his verdict.
Mr. Fowler, of Tennessee, was the next Republican to vote "Not Guilty." He had entered the Senate but two years before, and was therefore one of the youngest Senators, with the promise of a life of political usefulness before him. Though from the same State as the President, they were at political variance, and there was but little in common between them in other respects. A radical partisan in all measures where radical action seemed to be called for, he was for the time being sitting in a judicial capacity and under an oath to do justice to the accused according to the law and the evidence. As in his judgment the evidence did not sustain the charge against the President such was his verdict.
Mr. Grimes, of Iowa, was the third anti-impeaching Republican to vote. He had for many years been a conspicuous and deservedly influential member of the Senate. For some days prior to the taking of the vote he had been stricken with what afterwards proved a fatal illness. The scene presented as he rose to his feet supported on the arms of his colleagues, was grandly heroic, and one never before witnessed in a legislative chamber. Though realizing the danger he thus incurred, and conscious of the political doom that would follow his vote, and having little sympathy with the policies pursued by the President, he had permitted himself to be borne to the Senate chamber that he might contribute to save his country from what he deemed the stain of a partisan and unsustained impeachment of its Chief Magistrate. Men often perform, in the excitement and glamour of battle, great deeds of valor and self sacrifice that live after them and link their names with the honorable history of great events, but to deliberately face at once inevitable political as well as physical death in the council hall, and in the absence of charging squadrons; and shot and shell, and of the glamor of military heroism, is to illustrate the grandest phase of human courage and devotion to convictions. That was the part performed by Mr. Grimes on that occasion. His vote of "Not Guilty" was the last, the bravest, the grandest, and the most patriotic public act of his life.
Mr. Henderson of Missouri, was the fourth Republican Senator to vote against the impeachment. A gentleman of rare industry and ability, and a careful, conscientious legislator, he had been identified with the legislation of the time and had reached a position of deserved prominence and influence. But he was learned in the law, and regardful of his position as a just and discriminating judge. Though then a young man with a brilliant future before him, he had sworn to do justice to Andrew Johnson "according to the Constitution and law," and his verdict of "Not Guilty" was given with the same deliberate emphasis that characterized all his utterances on the floor of the Senate.
Mr. Ross, of Kansas, was the fifth Republican Senator to vote "Not Guilty." Representing an intensely Radical constituency—entering the Senate but a few months after the close of a three years enlistment in the union Army and not unnaturally imbued with the extreme partisan views and prejudices against Mr. Johnson then prevailing—his predilections were sharply against the President, and his vote was counted upon accordingly. But he had sworn to judge the defendant not by his political or personal prejudices, but by the facts elicited in the investigation. In his judgment those facts did not sustain the charge.
Mr. Trumbull, of Illinois, was the sixth Republican Senator to vote against the Impeachment. He had been many years in the Senate. In all ways a safe legislator and counsellor, he had attained a position of conspicuous usefulness. But he did not belong to the legislative autocracy which then assumed to rule the two Houses of Congress. To him the Impeachment was a question of proof of charges brought, and not of party politics or policies. He was one of the great lawyers of the body, and believed that law was the essence of justice and not an engine of wrong, or an instrumentality for the satisfaction of partisan vengeance. He had no especial friendship for Mr. Johnson, but to him the differences between the President and Congress did not comprise an impeachable offense. A profound lawyer and clear headed politician and statesman, his known opposition naturally tended to strengthen his colleagues in that behalf.
Mr. Van Winkle, of West Virginia, was the seventh and last Republican Senator to vote against the Impeachment. Methodical and deliberate, he was not hasty in reaching the conclusion he did, but after giving the subject and the testimony most careful and thorough investigation, he was forced to the conclusion that the accusation brought by the House of Representatives had not been sustained, and had the courage of an American Senator to vote according to his conclusions.
The responses were as follows:
Guilty—Anthony, Cameron, Cattell, Cole, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morton, Morrill of Maine, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Sprague, Stewart, Sumner, Tipton, Thayer, Wade, Williams, Wilson, Willey, Yates.
Not Guilty—Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, Vickers.
Not Guilty—19. Guilty—35—one vote less than a Constitutional majority.
THE FINAL VOTE TAKEN.
The defeat of the Eleventh Article was the second official set-back to the Impeachment movement—the first being the practical abandonment of the First Article by the change in the order of voting.
The vote had been taken on what its friends seemed to consider its strongest proposition; the Eleventh Article having been so framed as to group the substance, practically, of all the pending ten Articles. The impeachers had staked their cause upon that Article, and lost. They seemed not to have contemplated the possibility of its defeat. So confident were they of its success, in which event it would be immaterial what became of the other Articles, that they apparently had agreed upon no order of procedure after that should have been defeated. They were in the condition of a flock of game into which the sportsman had fired a shot and broken its ranks. They were dazed, and for a moment seemed not to know what next to do, or which way to turn. They did not dare now go back to the fated First Article, according to the program agreed upon, as Mr. Sherman and Mr. Howe had demonstrated its weakness, and they were fearful of going to the Second or Third, as in the then temper of the anti-impeachers it was manifest there would be little hope for either of them, and the other eight had been already beaten without a vote, at the conference previously held, and by Republican commitals.
The Chief Justice ordered the reading of the First Article, according to the order agreed upon, but before that could begin, apparently to gain time for recovery, Mr. Williams moved that the Senate take a recess of fifteen minutes, but the motion was not agreed to.
The Chief Justice again ordered the reading of the First Article, but again, before the clerk could begin the reading, Mr. Williams intervened to move an adjournment to Tuesday, the 26th day of the month.
After numerous conflicting motions relating to the date of the proposed reassembling, and several roll calls thereon, the anti-impeachers generally insisting on proceeding at once to vote on the other articles of impeachment, the motion of Mr. Williams to adjourn to June 26th, prevailed.
Of course the purpose, and the only purpose then apparent, of that adjournment, was to gain time, apparently in the hope of more favorable developments in the next ten days.
The supposably strongest count of the indictment having been beaten, it was apparent that it would be folly to hazard a vote on any other at that time. There was a possibility that changes might occur in the personnel of the Senate in the interim. As but one article had been put to vote, and as that was beaten by the lack of a single vote, there seemed a further possibility that influences could be brought to bear, through the industry of the House, as was very soon after developed, to secure the support of an anti-impeaching Senator on at least one of the articles of impeachment yet to be voted upon. A vacancy in the ranks of the anti-impeaching Republicans to be filled by an impeaching appointee might happen. Many contingencies were possible during the next ten days for a reversal of the action of the Senate just had. At all events, everything would be hazarded by permitting further immediate action, while the situation could be rendered no worse by delay, and time and other mollifying conditions and influences might bring changes more promising of success.
The anti-impeachment Republicans had not long to wait for the development of the purpose of the recess, at least so far its supporters in the House were concerned. Immediately upon the adjournment of the Senate, the House re-assembled, and the following proceeding was had:
Mr. Bingham: I have been directed by the Managers on the part of the House of Representatives, in the matter of the Impeachment of Andrew Johnson, to report the following preamble and resolutions for consideration at this time:
Whereas, information has come to the Managers which seems to them to furnish probable cause to believe that improper or corrupt means have been used to influence the determination of the Senate upon the Articles of Impeachment submitted to the Senate by the House of Representatives against the President of the United States; therefore.
Be it Resolved, That for the further and more efficient prosecution of the Impeachment of the President, the Managers be directed and instructed to summon and examine witnesses under oath, to send for persons and papers, and employ a stenographer, and appoint sub-committee to take testimony; the expense thereof to be paid from the Contingent Fund of the House.
This resolution was immediately and without debate adopted by a vote of 88 to 14. It would be stating it mildly to say that the House was in a tumult. The Republican leaders were wild with rage. They had selected for the first vote what they deemed the strongest point in their indictment, and lost; and their vengeance now turned upon those Republican Senators who had failed to support them. Hence the adjournment of the Senate for ten days to afford them time to discipline the recusants and force an additional vote for conviction on the next ballot.
The conspicuous indelicacy of this move was two-fold: 1st, in that the House proposed to investigate the action of a co-ordinate branch of Congress: and 2nd, that the trial not being concluded, it had to a pointed degree the appearance of an attempt to intimidate Senators who had voted against conviction into changing their votes at the next ballot in fear of an inquisition for alleged corruption. In that sense it was an act of intimidation—a warning. It was an ill-disguised threat and a most unseemly proceeding—yet there was not one among the supporters of the Impeachment to condemn it, and few who failed openly to justify it. Partisan rancor and personal and political hostility to the President had reached a point that condoned this indelicacy of the House towards the Senate, and justified the public assault upon the dissenting Republican Senators, and the insult to the Senate itself.
The demand for adjournment and delay seemed to have been understood by the impeaching majority of the Senate, and was of course promptly granted and further voting postponed, and the Senate adjourned to May 26th.
The next ten day were days of unrest—of anxiety to all who were involved or in any way interested in the impeachment proceeding. While the result of the 16th gave hope and comfort to the opponents of impeachment, it caused little or no perceptible discouragement to its more radical friends. They were more active and persistent than ever. The footsteps of the anti-impeaching Republicans were dogged from the day's beginning to its end and far into the night, with entreaties, considerations and threats, in the hope of securing a reversal of the result of the 16th. The partisan press of the States represented by the anti-impeaching Republicans came daily filled with vigorous animadversions upon their action, and not a few threats of violence upon their return to their constituents. But it was in vain.
The Senate reassembled on the 26th of May to complete the vote on the articles of impeachment. After the usual preliminary proceedings, Mr. Williams moved to begin the voting on the Second Article, which was had with the same result as on the 11th—and then the Third, and still with the same result. It then became manifest that it was useless to go farther, as all the balance had been rendered certain of defeat, and by still more decisive votes—a considerable number of those so far voting for impeachment having committed themselves in the previous conference against all the balance. So, to save themselves from being forced to vote against impeachment on any of the articles, there was a unanimous vote of the impeachers to abandon the case and adjourn—and with it went glimmering the visions of office, and spoils, and the riotous assaults on the public treasury that had for months been organizing for the day when Mr. Johnson should be put out and Mr. Wade put in, with the political board clear for a NEW DEAL.
An analysis of the Eleventh, Article shows that it comprised four distinct counts, or accusations.
First—That Mr. Johnson had said that the Thirty-Ninth Congress was not a Congress of the United States, but a Congress of only part of the States, and therefore had no power to propose amendments the Constitution.
The latter clause of this accusation was the only portion of the first count that received any consideration during the trial, and the only testimony brought in its support was the Parsons-Johnson telegraphic correspondence set out in Interrogatory No. 5.
In that dispatch, referring to then pending Constitutional amendment (the 14th) Mr. Johnson referred to Congress as "a set of individuals." Mr. Manager Boutwell declared this expression to be "the gist of the offense of this particular telegraphic dispatch."
Counsel for defense objected to this testimony, but it was received by a vote of yeas twenty-seven, nays seventeen.
As the Fourteenth Amendment was not declared adopted or a part of the Constitution for more than a year after the transmission of that dispatch, and as the Constitution of the United States prohibits any abridgment of the freedom of speech, and as this remark was unaccompanied by any act in violation of law, it is difficult to see how it could be construed into an impeachable offense. Moreover, saying nothing of the good taste or propriety of that dispatch, Mr. Johnson was opposed to the proposed amendment, and had the same right to oppose it, or to characterize it or the members of Congress favoring it, as had any private citizen, or as had the members of Congress to characterize his action in the premises, without being called to account therefor.
The second count of that article was:
Violation of the Tenure-of-Office Act of March 2nd, 1867, in seeking to prevent the resumption by Mr. Stanton of the office of Secretary of War.
This clause had been very effectually disposed of by Messrs. Sherman and Howe several days before the vote was taken on the Eleventh Article, when they pointed out the fact that the language cage of the first section of the Tenure-of-Office Act clearly excepted, and was intended by the Senate, to except Mr. Stanton and all other persons then in Mr. Johnson's Cabinet who had been originally appointed by Mr. Lincoln and were still holding over under Mr. Johnson without having been recommissioned by him; and that Mr. Johnson had therefore the legal right and power to remove them at his pleasure.
And so convincing had been the argument of those gentlemen at that time, that there was unanimous consent on the pro-impeachment side of the Senate, on two different occasions, to set aside the First Article, of which the alleged unlawful attempt to remove Mr. Stanton was practically the principal accusation. Not illogically, that unanimous consent to abandon the First article by thus setting it aside, and afterwards refusing to put it to a vote, may be said to have been equivalent to a vote of its insufficiency.
It is pertinent to suggest here that the President believed the Tenure-of-Office Act to be unconstitutional, as it was clearly an attempted abridgment of his power over his Cabinet which had never before been questioned by Congress. The only method left him for the determination of that question was in the course he took, except by an agreed case, but it is manifest from the record that no such agreement could be had, as an effort thereto was made in the Thomas case in the District Court, but failed, the prosecution withdrawing the case at the point where that purpose of the President became manifest.
The third count was:
Attempting to prevent the execution of the Army appropriation Act of March 2nd, 1867.
The means specified in this alleged attempt was the appointment of Mr. Edward Cooper to be Assistant Secretary of the Treasury, with power to draw warrants on the Treasury without the consent of the Secretary—the purpose being to show that, with General Thomas acting as Secretary of War, and Mr. Cooper as Assistant Secretary of the Treasury to honor General Thomas' drafts, and thus, in control of expenditures for the support of the Army, a conspiracy was sought to be proven whereby the President intended and expected to defeat the Reconstruction Acts of Congress by preventing the use of the Army for its enforcement.
Mr. Johnson, of the Court, asked this question:
The Managers are requested to say whether they propose to show whether Mr. Cooper was appointed by the President in November, 1867, as a means to obtain unlawful possession of the public money, other than by the fact of the appointment itself?
Mr. Manager Butler answered:
We certainly do.
Mr. Butler read the law on this subject, passed March 2nd, 1867, as follows:
That the Secretary of the Treasury shall have power, by appointment under his hand and official seal, to delegate to one of the Assistant Secretaries of the Treasury authority to sign in his stead all warrants for the payment of money into the public Treasury and all warrants for the disbursments from the public Treasury of money certified by the accounting officers of the Treasury to be due upon accounts duly audited and settle by them; and such warrants signed shall be in all cases of the same validity as if they had been signed by the Secretary of the Treasury himself.
Mr. William E. Chandler, who had been Assistant Secretary of the Treasury, was on the witness stand, called by the prosecution. Mr. Butler asked whether it was the practice of the Assistant Secretary to act as Secretary in case of removal of the Secretary.
Answer: I am not certain that it is, without his appointment as Acting Secretary by the President.
Mr. Fessenden, of the Court, propounded this interrogatory?
1st—Has it been the practice, since the passage of the law, for an Assistant Secretary to sign warrants unless especially appointed and authorized by the Secretary of the Treasury?
2nd—Has any Assistant Secretary been authorized to sign any warrants except such as are specified in the Act?
The witness answered as to the first:
It has not been the practice for any Assistant Secretary since the passage of the Act to sign warrants except upon an appointment by the Secretary for that purpose in accordance with the provisions of the Act. Immediately upon the passage of the Act, the Secretary authorized one of his Assistant Secretaries to sign warrants of the character described in the Act, and they have been customarily signed by that Assistant Secretary in all cases since that time.
As to the second question the answer was:
No Assistant Secretary has been authorized to sign warrants except such as are specified in this Act, unless when acting as Secretary.
That disposed of the third count in the Eleventh Article, and the testimony was rejected by a vote of yeas 22, nays 27.
These answers to tire interrogatories seemed to prove the reverse of what the Prosecution had expected. The accusation of the Third count was not sustained.
As to the Fourth count of the Eleventh Article, that Mr. Johnson sought to prevent the execution of the "Act to provide for the more efficient government of the rebel States," passed March 2nd, 1867, by the removal of Mr. Stanton from the War Office, the proceedings of the trial disclose no testimony of a sufficiently direct character for specification, except, possibly, a number of speeches delivered at different points by Mr. Johnson, which are set out in the Tenth Article of the Impeachment. As that Article was by unanimous consent abandoned and never put to vote, all its allegations logically fell as unproven.
There was, therefore, no force and little coherency in the Eleventh Article. It fell of its own weight. Every one of its several averments had been disproven, or at least not proven. It was to a good degree a summing up—an aggregation, of the entire bill of indictment on the several distinct forms of offenses charged—a crystallization of the whole.
The entire impeachment scheme was in reality beaten by the vote on that Article, and the adjournment of ten days then taken could have been only in the hope on the part of the majority that ultimate success on some one of the remaining Articles could be made possible, in some way, legitimate or otherwise, in part by the importunate throng of visitors to the Capitol who were vociferously and vindictively urging Mr. Johnson's removal largely for reasons personal to themselves—but more especially through the efforts of the House of Representatives to discipline one or more of the anti-impeaching Republicans of the Senate.
The allegation of the Second Article, put to vote on the 26th, and beaten by the same vote as was the Eleventh, was a corollary of the First-violation of the Tenure-of-Office Act in the appointment of General Thomas as Secretary of War ad interim, WITHOUT THE ADVICE AND CONSENT OF THE SENATE. This was the first declaration ever made in the Senate that an ad interim or merely temporary appointment to fill a vacancy, required confirmation by that body. The power to make such an appointment is so clearly possessed by the President without consultation of the Senate-had been so uniformly exercised by every preceding President without question, that argument on that point would be superfluous.
In reality the essence of the Second Article, as of the First, was the removal of Mr. Stanton. If the President could remove him without the consent of the Senate, which was clearly established in the debate in the conference by Messrs. Sherman and Howe, the way was clear for the appointment of an act interim Secretary, to the end that the office be filled until such time as the President would be prepared to refill the place with a Secretary on consultation with the Senate. That was the very thing he attempted to do on the 22nd of February, the day after Mr. Stanton's removal, when he sent to the Senate the nomination of Thomas Ewing, Senior, to be Secretary of War, for the action of that body.
The Third Article was so closely analagous to the Second, that an analysis of it would be in the nature of repetition. If there were any distinctions between them, they were so finely drawn that they amounted simply to a distinction without a difference—a characteristic, indeed, of a large part of the eleven Articles of Impeachment—a characteristic so conspicuous that it was not deemed worth while by the majority to go further in their submission to the Court.
These three Articles—the Second, Third and Eleventh—being the only Articles of the entire list of eleven put to a vote, and having been taken up and passed upon out of their numerical but in the order of their supposed availability—must therefore be regarded as confessedly the strongest and most likely of the entire list to command the support of the Senate. They were selected and set out for the test. That selection was equivalent to saying, "we put the Impeachment cause to test on these three Articles. If they fail, we have nothing more to offer."
They were put to test and failed. They failed because of their innate weakness. Failed because they proved nothing. Failed because not a single allegation of the entire indictment was or could be proven or tortured into all impeachable offense. Not a remark made by the President or an act performed in all the long and bitter controversy that had subsisted between himself and Congress could be brought nearer to the impeachment mark, in fact, few if any of them so near, as had been the every day rule in the House of Representatives during the previous two years in their treatment of the President. Yet nobody thought of impeaching members of the House for their every day personal vituperations against him.
Bill after bill had been offered in Congress, and law after law enacted, with apparently the sole purpose of hampering the Constitutional authority apparently functions of the President—even the assumption of Executive powers and judicial functions by Congress—the not remote purpose of which seemed to be his entrapment into some measure of resistance upon which could be based an indictment. The House seemed to be literally "lying in wait" for him, with traps set on every side for his ensnarement.
At last, after two years of this sort of scheming and impatient and anxious waiting, the opportunity seemed to have offered in the alleged violation of the Tenure-of-Office Act. The fosterers of the impeachment crusade, weary with their long vigil and growing desperate with every additional day's delay, clutched at the new turn of affairs like a drowning man at a floating straw, and with the avidity of a starved gudgeon at a painted fly.
It was not strange that this sort of diplomacy, developed and exposed as it was in the Senate, in spite of the unfair and partisan maneuvering of the prosecution to prevent it, should have reacted, and contributed to turn against the impeachment movement gentlemen who entered upon the investigation under oath to give Mr. Johnson a fair, non-partisan trial. The only surprise was that, after the exposure of the malignant partisan spirit that sat in judgment upon Mr. Johnson, and the utter and absolute failure to prove any violation of law on his part, but on the contrary, a determination to preserve from infringement the functions of his office and prevent a revolution from fundamental political forms by the absorption of the Executive authority by the legislative branch of the government—that even a majority, and more especially, that nearly two-thirds of the Senate, could have been found at the close in support of the Impeachment.
This record will serve to explain the omission to vote on the First Article—Messrs. Sherman and Howe being precluded from supporting it in consequence of the position taken by them in the controversy between the two Houses of Congress over the first section of the Tenure-of-Office Bill while that bill was pending, and to avoid defeat on the first vote taken, which was inevitable on that Article—and also to explain, so far as any explanation is possible, the zig-zag method of conducting the ballot—skipping all the first ten Articles and going down to the bottom of the list for the first vote, with the promise of then going back to the first Article and continuing to the end, but instead, skipping that for the second time, and starting in again on the Second and then the Third.
Of course, the natural effect of this battle-dore and shuttle-cock method of treating so grave a matter as an impeachment of the President of the United States, added to the effect of the manifest unfairness of the majority in their treatment of testimony offered in the President's defense—was to disgust some who doubtless entered upon the trial honestly inclined to vote for Andrew Johnson's impeachment, but wanted it done fairly and openly, without any suppression of pertinent testimony or juggling for a verdict—and amusing to others, who viewed it as proof of weakness in the indictment, and of misgiving as to the result on the part of its supporters.
To still others it was more than that. It was not only an indication of weakness, but of a determination to take every possible advantage, fair and unfair, to save votes for conviction. The impeachers not unnaturally feared the effect of the defeat of the First Article by the nay votes of Messrs. Sherman and Howe, and probably other Republicans, which was certain to follow the submission of that Article to a vote. Its only allegation was the unlawful removal of Mr. Stanton from the office of Secretary of War in violation of the Tenure-of-Office Act. That alleged offense was repeated in varied but more or less specific forms, in every succeeding Article of the Impeachment except the Tenth, and constituted the sum and substance—the gravamen—of the entire indictment. It was the basis upon which the impeachment super-structure had been erected. Without that Article there was not only no foundation, but no coherence in the recital of Mr. Johnson's alleged offenses, and when that fell by its abandonment, the entire impeachment scheme fell with it—as, if there were nothing in the First Article on which to hang an impeachment, there could be nothing in those that followed and were but an amplification—a mere exploitation—of the First.
In substantiation of this view of the First Article, the declaration of Mr. Boutwell to that effect is here inserted. Mr. Boutwell was chairman of the committee of the House appointed to prepare the Articles of Impeachment upon which Mr. Johnson was tried. On his report of these Articles to the House he said, after speaking particularly of the Tenth Article:
The other Articles are based upon facts which are of public knowledge, growing out of the attempt of the President to remove Secretary Stanton from the office of Secretary for the Department of War.
That is, that the basis of the entire accusation was the alleged violation of the Tenure-of-Office Act in the removal of Mr. Stanton, as recited in the First Article.
So, after taking the vote on the Second and Third Articles and their defeat by the same vote as that on the Eleventh, it became manifest that further effort to the impeachment of the president on any of the remaining eight Articles would be useless, and Mr. Williams moved that the Senate, sitting as a Court of Impeachment, adjourn sine die, which motion was carried by the following vote:
Yeas—Anthony, Cameron, Cattell, Chandler, Cole, Conkling Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Van Winkle, Wade. Willey, Williams, Wilson, Yates—34.
Nays—Bayard, Buckalew, Davis, Dixon, Doolittle, Fowler, Henderson, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Vickers—16.
Every Senator present who had voted for conviction voted to abandon the prosecution and end the trial, and every Senator present who had voted against conviction, voted to continue and go through the indictment.
Of course, it was useless to go farther with any hope of success, as, it will be seen by this record, all the remaining Articles were dead, beaten in caucus before the voting commenced, and by the professed friends and leaders of the movement.
Possibly it was the anticipation of this effect of the abandonment of the First Article, that was the "sickness" to which Mr. Edmunds, at the outset of the voting, ten days before, ascribed the peculiar order of taking the vote.
It is not intended to aver that there was any privity or concert in this particular manipulation—yet it is suggestive. The Impeachment had been dragging since the 22nd of February, to May 26th—more than three months,—and had been everywhere the engrossing topic of the time. It was becoming tiresome-not only to the Senate, but to the general public.
Notwithstanding the City of Washington was still filled with people who had been waiting weary weeks and months for the deposition of Mr. Johnson and the accession of Mr. Wade to the Presidency, for the fulfillment of pledges of appointment based thereon, and who were still importunate for impeachment, the business element of the country at large was tiring of it and its depressing effect upon the commercial activities. Even Senators and Congressmen were being moved to a sense of the obstructive and somewhat ridiculous phases the impeachment movement was beginning to take on—and not a few of those who in its earlier stages had honestly favored the movement, inside as well as outside the membership of both Houses of Congress, had begun to realize the actual nature and purposes, as also the shallowness of the impeachment movement that from whatever motives it had originated, it had degenerated very much into a game of personal ambition—of vindictiveness—and office getting and spoils—and practically nothing higher.
While some of its supporters who had manifestly entered upon the trial with a determination to convict, were still insistent for further prosecution had there been a shadow of ultimate success, there were others who had begun to realize, weeks before the end came, the awkwardness of the predicament in which they had allowed themselves and their party to be placed, and desired to abandon the enterprise.
The strain was becoming too great—there was certain to be a recoil sooner or later. The foundations of the Impeachment were shown to be too slender. There was a future ahead that must be faced, but Senators must preserve their consistency. They could not go before their pro-impeachment constituencies with a record indicating any degree of weakening in the impeachment crusade. They had insisted for months that Mr. Johnson must be removed, and it would be politically inexpedient to retract.
But they wanted somebody to "help them let go."
So the plan of "desultory" procedure herein outlined seems to have "happened"—whether by design or otherwise, is immaterial—and that plan was made easy by the concerted abandonment of the head and front of the indictment—the First Article—which was side-tracked and logically carried with it all that followed, as would manifestly have been the result if the voting had begun on that Article.
While, to degree, the turmoils and bitterness of that time have passed out of public mind, there are still many living who retain a keen remembrance of the struggle and the enmities it produced. There were during the trial many thousands of men in the City of Washington awaiting the Impeachment and removal of the President for the fulfillment of pledges of official appointment based thereon, and their numbers increased as the trial progressed.
These anticipated beneficiaries were naturally not idle in efforts to the stimulation of zeal in the cause of Impeachment, and Senators were importuned at all seasonable and unseasonable hours in behalf of immediate and positive action. The lively anxiety, even anxious haste, of these patriots for their earliest possible entry upon the service of the Government, was emphasized on every corner and at every place of gathering, day and night, and the lobbies of the Capitol were thronged by them during the sessions of the Senate. No opportunity for a word with a Senator in behalf of the immediate deposition of the President, nor any appliance that seemed to promise a successful overture, was overlooked or forgotten.
When these seemed to fail of the desired effect, more direct and, it was hoped, more effective methods were resorted to. The beleaguered Senator was reminded that the applicant represented the united sentiment of the people of the State from which he held his Senatorial seat—that they demanded Mr. Johnson's conviction and removal—that that demand could not be safely denied, trifled with, or delayed; and that if money was wanted, to use the language of a notorious inquisitor of the House, Mr. Butler, speaking of the possibility of securing a designated vote for Impeachment "tell the d——d scoundrel that if he wants money, there is a bushel of it here to be had!" Mr. Butler's message was delivered.
So desperate were the inquisitors, and so close the certainty of the vote, that even a project of kidnapping a Senator under the pretense of taking a trip to Baltimore for much needed rest, where, if the terms to be there proffered were refused, a vacancy was to be created—by assassination, if necessary—then a recess of the Senate to afford time for the appointment by the Governor of that Senator's State of a successor who would vote for the Impeachment, of the President—was entered upon and its execution attempted. But the trip to Baltimore for "rest" was not taken.
These are not pleasant facts to contemplate, but they somewhat conspicuously characterized the conditions of that time, and illustrate the real nature of the impeachment scheme. They boded the control of the Government by the worst element of American politics. It is unnecessary to say here what that control would have involved. During all the previous history of the Government—its wars and political turmoils—the Democratic-Republican forms that characterize its administrations have never faced so insidious or threatening a danger as during that hour. It was a crucial test, and the result a magnificent vindication of the wisdom and patriotism of the founders of our composite form of Government. Its results have but strengthened those forms and broadened the scope of the beneficent political institutions that have grown up under and characterize its operation.
It was a test such as probably no other form of Government on earth could have successfully passed, and it is to be hoped that its like may never return.
The weakest point in the entire record of the Prosecution of President Johnson, from the indictment by the House of Representatives to the finish in the Senate, except the Bill of Impeachment itself, was the refusal of the more than three-fourths Republican majority of the Senate to permit the reception of testimony in his behalf. That majority naturally gave them absolute control of the proceedings, and they should have realized from the outset that they could not afford to give it the least tinge of partisan bias.
It is therefore not material to discuss in detail the instances of the two interrogatories put by counsel for the Prosecution and rejected, Nos. 4 and 28, because it was shown that their answer would prove nothing against the President, but rather to his vindication, and their rejection could not have occurred but for the intervention of many more nay Republican than Democratic votes—but will pass to the analyzation of the votes on the twelve interrogatories propounded by counsel for Defense and rejected, which rejections could not have occurred but by the intervention of a large preponderance, in every instance, of the Republican votes cast thereon, and many of them by a unanimous Republican vote.
Without doubt, many of these votes on the admissibility of testimony were governed by, the usual rules prevailing in the courts, but it was deemed by others that every question not manifestly frivolous, or not pertinent, should be permitted answer without objection, regardless of such rules—that the Senate sitting for the trial of an Impeachment of the President of the United States—the occasion a great State Trial—should not be trammeled or belittled by the technicalities common to ordinary court practice—that the Senate was composed supposedly of gentlemen and lawyers of high standing in their profession and familiar with public affairs and public law—that they were sitting in a semi-judicial capacity—not merely as Senators or jurors, but, judges also—judges of fact as well as of law—and constituted the highest trial body known to our laws—a tribunal from which there was no appeal—that each of its members had taken a solemn oath to "do impartial justice" in this cause, absolutely unswerved by partisan or personal considerations, and that as such each member had not only the right, but it was his duty under his oath, as well, to hermit no obstacle or condition to unnecessarily keep from him a knowledge of all available facts pertinent to the cause, no matter on which side they might weigh—to help or to hurt. That the body, each member for himself, was the proper party to determine the admissibility of testimony, as Mr. Manager Boutwell had declared in his opening argument, "AFTER HE HAD HEARD IT," and knew its trend an purport. Every member of that body had the right to know all the witness knew about the case, and, moreover, the witnesses were brought for the purpose, and for the sole purpose, of telling what they knew.
The same assurance of absolute fairness as that of Mr. Boutwell, was also given by Mr. Bingham, another of the Managers of the Prosecution on the part of the House, in his opening plea before the Senate: "It is," said he, "certainly very competent for the Senate, as it is competent for any court of justice in the trial of cases where questions of doubt arise, to HEAR THE EVIDENCE, and, where they themselves are the judges of both the law and the fact, to DISMISS SO MUCH OF IT AS THEY MAY FIND INCOMPETENT, if any of it be incompetent. * * * Under the Plea of Not Guilty, as provided in the rules, every conceivable defense that the accused party could make to the Articles here preferred, can be admitted."
Mr. Manager Butler also said, on the same occasion: "Upon this so great trial, I pray let us not belittle ourselves with the analyses of the common law courts, or the criminal courts, because nothing is so dangerous to mislead us."
These and other like assurances were given of the widest reasonable latitude in the reception of testimony in the trial then opening. There was thus every reason to expect that Mr. Johnson would have a fair trial. But no sooner had the Prosecution completed its examination of witnesses, in which but seven interrogatories had been objected to of the long list proffered by the Prosecution, than a different rule seemed to have been established for the treatment of proffered testimony, and a large mass of relevant and valuable testimony in behalf of the President was ruled out on objection of the Prosecution, as inadmissible, and, as a rule that, had very few exceptions, on partisan divisions of the Senate.
Of course it will not be admitted, nor is it here charged, that these refusals to hear testimony were because of any fear that the answers would have any improper force or effect upon the Senate. Nor will it signify to say that the President's attorneys could not have proved what they offered to prove. They hail the right to an opportunity to so prove, and the denial of that right and opportunity was not only a denial of a manifest right of the attorneys, but especially in this case, a more flagrant denial of the rights of the accused, and not only that, but they amounted to an impugnment of the discretion of the Senate.
It is conspicuous, too, that while the defense objected to but seven of the interrogatories submitted by the Prosecution, and five of them were permitted answer by the vote of the Senate; twenty-one of the proffers of testimony by the defense were objected to by the prosecution and but nine of them permitted answer: and that condition was aggravated by the fact that the numerical strength of the majority party in the Senate was sufficient to determine absolutely the disposition of every question, and they could therefore afford to be strictly fair to the accused, and by the further fact that the objections to testimony offered in behalf of the defense were as three to one of the objections to testimony offered in behalf of the prosecution.
These denials of testimony in behalf of the defense were unfortunate. That practice lowered the dignity of the occasion and of the proceeding, as they could but have given ground for criticism of partisan bias and a vindictive judgment in case of successful impeachment. Most, if not all these rejected interrogatories implied important information in possession of the witnesses which the Senate had a right to, and which the party offering had the right to have produced. Moreover, it was the right and the duty of the Senate to know what the witness was presumed to know, and then to judge, each Senator for himself, of the relevancy of the testimony.
As stated, the principal averment against the President, was his alleged violation of the Tenure-of-Office Act in the removal of Mr. Stanton from the office of Secretary of War, presented in various phases throughout the Articles of Impeachment.
In illustration of the treatment of testimony offered in the President's behalf by a majority of the Republican Senators, the record shows that on the eighth disputed interrogatory, the second put by the defense, General Sherman being on the witness stand:—Defense asked as to a certain conversation relating to that removal, had between the General and the President at an interview specified. The prosecution objected to the question being answered, and a vote of the Senate was demanded. The vote was—for receiving the testimony, 23; against receiving it, 28. Of the latter number, twenty-seven, all Republicans, voted at the close of the trial to convict the President of violating the Tenure-of-Office Act, in the removal of Mr. Stanton, after refusing to hear testimony in his behalf on that charge.
The next interrogatory, No. 9, was "when the President asked the witness (Gen. Sherman,) to accept the War Office, was anything further said in reference to it?" This was objected to by the prosecution, and the vote thereon was 23 to 29. Twenty-eight of the twenty-nine gentlemen thus refusing answer to this question, afterwards voting to convict the President, after refusing to bear the testimony of a very important witness in his behalf, which his counsel proposed to produce and tried in vain to get before the Senate.
On the tenth interrogatory, by Defense, "whether the President had stated to the witness, (General Sherman), his object in asking him to accept the War Office," the vote was 7 to 44 against receiving it, and thirty-one of the gentlemen voting not to hear this testimony, at the close of the hearing voted to convict Mr. Johnson of a high misdemeanor in office in the removal of Mr. Stanton, after refusing to hear his defense.
The next, No. 11, was as to the President's attempt to get a case before the Supreme Court for a judicial determination of Mr. Stanton's right to retain the War Office against the President's wish. This testimony was refused by a vote of 25 to 27—every nay vote being cast by a Republican, every one of whom at the close of the trial, voting in effect to convict Mr. Johnson of a high misdemeanor in office in seeking resort to the courts to test the legality of an act of Congress passed for the practically sole purpose of restricting an executive function never before questioned.
The next interrogatory, No. 12, was whether the witness, (General Sherman), had formed an opinion whether the good of the service required a Secretary of War other than Mr. Stanton. It was well understood that General Sherman believed that for the good of the service Mr. Stanton ought to retire, and as the Chief Officer of the Army his opinion was certainly entitled to weight, and the President had a right to the benefit of his judgment. This interrogatory was objected to by the Prosecution, and was rejected by a vote of 18 to 35—thirty-one of the thirty-five being Republicans, who at the close of the trial voted to convict Mr. Johnson of a high misdemeanor in the removal of Mr. Stanton, after refusing him the benefit of the opinion of the Chief Officer of the Army on a question affecting the military service, and to which he was in all fairness clearly entitled.
No. 13, General Sherman was asked whether he had advised, the President to appoint a successor to Mr. Stanton. (It was well understood that he had.) Answer to this was refused, 18 to 32—thirty of the latter, all Republicans, voting at the close of the trial to convict Mr. Johnson, after refusing to hear this important testimony in his behalf. No. 16. The answer to the last interrogatory, ("if he did, state what his purpose was,") was received by a majority of one, 26 to 25—every nay vote being a Republican, and constituting a majority of the Republicans of the Senate.
No. 21. Mr. O. E. Perrin on the stand, was asked as to the President's statement that Mr. Stanton would relinquish the office at once to General Thomas—"that it was only a temporary arrangement"—that he would "send to the Senate at once the name of a good man," (which he did). This testimony was rejected by a vote of 9 to 37—thirty of the latter number being Republicans who at the close of the trial voted to convict Mr. Johnson of a high misdemeanor in sending to the Senate the name of Thomas Ewing, Senior, for appointment as Secretary of War, vice Stanton removed in assumed violation of the Tenure-of-Office Act.
The next offer of testimony to be rejected was No. 23—Mr. Gideon Welles, Secretary of the Navy, on the stand, to prove that the Cabinet had advised the President to veto the Tenure-of-Office Bill as unconstitutional. The Chief Justice ruled the testimony admissible for the purpose of showing the intent with which the President had acted in the transaction. Prosecution objected, and by a vote of 20 to 29, the decision of the Chief Justice was overruled. No answer to this interrogatory was permitted, every vote to refuse this testimony being cast by a Republican, every one of whom, at the close of the trial, voting to convict and remove Mr. Johnson for alleged violation of a law which he believed to be unconstitutional—which he was advised by the head of the Law Department of the Government was unconstitutional and therefore not a law which he had sworn to execute, and the constitutionality of which he had endeavored to get before the courts for adjudication—those 29 Republicans so voting after having refused to hear testimony in his defense on these identical points.
The next disputed interrogatory was No. 24—that Mr. Johnson's Cabinet had advised him that the Secretaries who had been appointed by Mr. Lincoln and still holding, (Mr. Stanton, Mr. Seward, and Mr. Welles,) were removable by the President, notwithstanding the assumed restriction of the Tenure-of-Office Act. The Chief Justice ruled this testimony to be admissible. Objection was made by the Prosecution, and a vote taken, and the interrogatory was rejected—22 to 26—every nay vote being a Republican, every one of whom at the close of the trial, voting to convict and remove Mr. Johnson from office, after having refused to hear this very important testimony in his behalf.
Defense next offered to prove (No. 25) that it was determined by the President, with the concurrence of the Cabinet, that an agreed case for the determination of the constitutionality of the Tenure-of-Office Act should be made. This testimony was objected to, and a vote taken, which was 19 to 30. Every one of the gentlemen voting to reject this testimony, Mr. Johnson's right to which cannot with any possible showing of fairness be successfully disputed, were Republicans, and after so voting, at the close of the trial, declared by their several verdicts that he had been fairly proven guilty of a high misdemeanor in office, by violation of the Tenure-of-Office Act in seeking a judicial determination of the validity of a disputed Act of Congress, and should be expelled from office.
No. 26, was as to any suggestion by the President of the employment of force for the vacation of any office, (relating of course, to the War Office.) Mr. Johnson had been charged with seeking the removal of Mr. Stanton by force, should he resist. Knowing perfectly that the answer would be in the negative, the Senate refused to permit answer to this interrogatory, by a vote of 18 to 26, every one of the twenty-six gentlemen at the close of the trial in effect voting that the President was guilty as charged, of seeking to remove Mr. Stanton by violence, after refusing to hear either his denial or witnesses in his behalf on that point.
No. 27. Defense proposed to prove that the Cabinet had advised the President that the Tenure-of-Office Act did not prevent the removal of those members who had been originally appointed by Mr. Lincoln. This testimony, which, if permitted answer, would, in the minds of unprejudiced people, have at once set aside the entire impeachment scheme, was not permitted answer. The vote was 20 to 26—every one of the twenty-six gentlemen who voted to reject that most important and conclusive testimony in Mr. Johnson's behalf, at the close of the examination voting to convict him of a high misdemeanor in office by violating the Tenure-of-Office Act in removing Mr. Stanton from the office of Secretary of War—after refusing this offer to prove by his Cabinet advisers; the witness himself, (Mr. Welles, and his testimony, if received, was to be followed by that of Mr. Seward and Mr. Stanton, all of whom had been appointed by Mr. Lincoln and not re-appointed by Mr. Johnson,) that that act did not apply to or protect them against removal at the pleasure of the President. So that on eighteen of these twenty-one disputed interrogatories put in behalf of the Defense, a majority of the Republicans of the Senate refused in every instance to hear testimony, after having sworn to give Mr. Johnson a fair and impartial trial.
But the most flagrant case of unfairness to the defendant in this examination of witnesses occurred in the treatment of interrogatory No. 3, put by the prosecution, in their introduction of a letter from the President to General Grant, purporting to enclose letters from different members of the Cabinet in substantiation of the position of the President in the controversy then pending between Gen. Grant and himself. These letters were enclosed with, and specifically referred to and made a part of the President's communication, and were necessary to a correct apprehension of the controversy, from the President's or any other standpoint.
Being so enclosed and referred to in the letter transmitting and enclosing them, they became quite as much a part of the President's communication as his own letter which enclosed them. Counsel for Defense objected to the introduction of the President's letter without the enclosures, but the objection was not sustained and the letters were not permitted to be introduced, but the letter enclosing and referring to them was. The vote on the production of the enclosures was, yeas 20, nays 29—twenty-eight of the thirty-eight Republicans present, voting to exclude this essential testimony in the President's behalf, and twenty-seven of the number afterwards voted to convict him of a high misdemeanor in office in removing Mr. Stanton from the War Office, after refusing him the benefit of the testimony of his Constitutional Cabinet advisers in this important matter.
It is possible that under other conditions this proceeding might have been legitimate and proper; but Mr. Johnson was on trial under grave charges, before the highest, and supposably fairest tribunal on earth, and had a right to the benefit of the testimony of his cabinet, in full, and more especially when that testimony was presented in a distorted and garbled shape by his accusers. Moreover, every member of the Court had the right to know what was in those letters, if any part of the correspondence was to be received. But whether or not Mr. Johnson had the right to the testimony in his behalf which it was claimed these enclosures contained, he certainly had the right to resist the introduction of mutilated testimony against him. The purpose of the trial was to ascertain the facts in the case—all the facts bearing on either side. The Court was sitting and the witnesses were called for that purpose, and no other.
This record shows, that in but three instances out of twenty-one, did a majority of the Republicans of the Senate vote to receive testimony offered in the President's behalf—that on one interrogatory there was an equal division—that on seventeen of the twenty-one interrogatories put by the Defense, a majority of the Republicans voted to exclude testimony, in several cases by a two-thirds vote—and that but nine of the twenty-one interrogatories put in behalf of the President were by Republican votes permitted to be answered—also that, as a rule which had very rare exceptions, such interrogatories in behalf of the President as were permitted answer, were so permitted by very close majorities.
It is undoubted that every Republican member of the Senate entered upon that trial in the expectation that the allegations of the Prosecution would be sustained, but it was also expected that a fair, free, full, open investigation of all the charges preferred would be had, and that all the information possible to be obtained bearing upon the case, pro and con, would be admitted to testimony—but that expectation was not realized.
To sum up this feature of the proceeding—the Republican majority of the Senate placed themselves and their party in the attitude of prosecutors in the case—instead of judges sworn to give the President an impartial trial and judgment that their course had the appearance, at least, of a conspiracy to evict the President for purely partisan purposes, regardless of testimony or the facts of the case-that public animosity against Mr. Johnson had been manufactured throughout the North by wild and vicious misrepresentations for partisan effect—that practically the entire Republican Party machinery throughout the country was bent to the work of prosecution. The party cry was "Crucify him!" "Convict him anyway, and try him afterwards!" With rare exceptions, the Republican Party of the country, press and people, were a unit in this insensate cry.
They were ready to strike, but not to hear.
There can be but one conclusion from these premises, established by the record of the trial—that the entire proceeding, from its inception in the House of Representatives to its conclusion in the Senate, was a thoroughly partisan prosecution on the part of the majority in both Houses, and that the country was saved from the shameful spectacle, and the dangerous consequences of such a proceeding, by the intervention and self-sacrifice of a few gentlemen who proposed to respect the obligation of their oath, and give Mr. Johnson, so far as in their power, a fair trial and judgment—and not having had such a trial—to give him the benefit of what he claimed he could prove in his own behalf and was not permitted to—and a verdict of "Not Guilty," regardless of consequences to themselves.
What every member of the Court had sworn to do was "impartial justice" to Andrew Johnson, and nothing less. The Counsel on neither side had taken that oath, but the Court had; and its performance of that oath was impossible without possession of all the information relating to and bearing upon the case that it was reasonably possible to obtain. That is the essential ingredient and characteristic of a fair trial.
THAT ESSENTIAL INGREDIENT OF JUDICIAL FAIRNESS WAS NOT SHOWN TO MR. JOHNSON IN THIS CASE BY THE REPUBLICAN MAJORITY OF THE SENATE, as the official record of the trial clearly establishes. It was an ill-disguised and malevolent partisan prosecution.
The power conferred by the Constitution upon Congress to impeach and remove the President for cause, is unquestionably a wise provision. The natural tendency of the most patriotic of men, in the exercise of power in great public emergencies, is to overstep the line of absolute safety, in the conscientious conviction that a departure from strict constitutional or legal limitations is demanded by the public welfare.
The danger in such departures, even upon apparent necessity, if condoned or permitted by public judgment is in the establishment of precedents whereby greater and more dangerous infractions of organic law may be invited, tolerated, and justified, till government takes on a form of absolutism in one form or another, fatal to free institutions, fatal to a government of law, and fatal to popular liberty.
On the other hand, a too ready resort to the power of impeachment as a remedial agent—the deposition of a public officer in the absence of proof of the most positive and convincing character of the impeachability of the offense alleged, naturally tends to the other extreme, till public officers may become by common consent removable by impeachment upon insufficient though popular charges—even upon partisan differences and on sharply contested questions of public administration.
The power of impeachment and removal becomes, therefore, a two-edged sword, which must be handled with consummate judgment and skill, and resort thereto had only in the gravest emergencies and for causes so clearly manifest as to preclude the possibility of partisan divisions or partisan judgments thereon. Otherwise, too ready resort to impeachment must inevitably establish and bring into common use a new and dangerous remedy for the cure of assumed political ills which have their origin only in partisan differences as to methods of administration. It would become an engine of partisan intolerance for the punishment and ostracism of political opponents, under the operation of which the great office of Chief Magistrate must inevitably lose its dignity, and decline from its Constitutional rank as a co-ordinate department of the Government, and its occupant no longer the political head and Chief Executive of the Nation, except in name.
It was in that sense, and to a pointed degree, that in the impeachment and trial of Andrew Johnson the quality of coordination of the three great Departments of Government—the Executive, Legislative, and Judicial—was directly involved—the House of Representatives as prosecutor—the President as defendant—the Senate sitting as the trial court in which the Chief Justice represented the judicial department as presiding officer.
The anomaly of the situation was increased and its gravity intensified, by the fact that the President pro tempore of the Senate, who stood first in the line of succession to the Presidency in case of conviction, was permitted, in a measure, indeed, forced by his pro-impeachment colleagues, on a partisan division of the Senate, to sit and vote as such President pro tempore for the impeachment and removal of the President whom he was to succeed.
These facts of condition attending and characterizing the trial of President Johnson, pointedly accentuate the danger to our composite form of government which the country then faced. That danger, as it had found frequent illustration in the debates in the House of Representatives on the several propositions for the President's impeachment preceding the bringing of the indictment, lay in the claim of superiority of political function for the Legislative branch over the Executive. The quality of co-ordination of these departments was repeatedly and emphatically denied by conspicuous and influential members of that body during the initial proceedings of the impeachment movement, and even on the floor of the Senate by the managers of the impeachment. To illustrate:
Mr. Bingham, in the House, Feb. 22nd, 1868, announced the extraordinary doctrine that "there is no power to review the action of Congress." Again, speaking of the action of the Senate on the 21st of February, on the President's message announcing the removal of Mr. Stanton, he said: "Neither the Supreme Court nor any other Court can question or review this judgment of the Senate."
The declaration was made by Messrs. Stevens and Boutwell in the House, that the Senate was its own judge of the validity of its own acts.
Mr. Butler, in his opening speech to the Senate, at the beginning of the trial, used this language:
A Constitutional tribunal solely, you are bound by no law, either Statute or Common, which may limit your constitutional prerogative. You consult no precedents save those of the law and custom of parliamentary bodies. You are a law unto yourselves, bound only by the natural principles of equity and justice, and salus populi suprema est lex.
Feb. 24, 1868, Mr. Stevens said in the House:
Neither the Executive nor the Judiciary had any right to interfere with it (Reconstruction) except so far as was necessary to control it by military rule until the sovereign power of the Nation had provided for its civil administration. NO POWER BUT CONGRESS HAD ANY RIGHT TO SAY WHETHER EVER, OR WHEN, they (the rebel States), should be admitted to the union as States and entitled to the privileges of the Constitution of the United States. * * * I trust that when we come to vote upon this question we shall remember that although it is the duty of the President to see that the laws be executed, THE SOVEREIGN POWER OF THE NATION RESTS IN CONGRESS.
Mr. Butler, the leading spirit of the impeachment enterprise, went so far as to make the revolutionary suggestion of the abrogation of the Presidential office in the event of final failure to convict the President—set out in the 8th Chapter.
Mr. Sumner insisted that in no judicial sense was the Senate a Court, and therefore not bound by the rules of judicial procedure:
If the Senate is a Court bound to judicial forms on the expulsion of the President, must it not be the same in the expulsion of a Senator? But nobody attributes to it any such strictures in the latter case. * * In the case of Blount, which is the first in our history, the expulsion was on the report of a committee declaring him guilty of a high misdemeanor. At least one Senator has been expelled on simple formal motion. Others have been expelled without any formal allegations or formal proofs. * * * The Constitution provides that "Each House shall determine its rules of proceeding." The Senate on the expulsion of its own members has already done this practically and set an example of simplicity. But it has the same power over its rules of proceeding on the expulsion of the President, and there can be no reason for simplicity in the one case not equally applicable in the other. Technicality is as little consonant with the one as with the other. Each has for its object the PUBLIC SAFETY. For this a Senator is expelled; for this, also, the President is expelled. Salus Populi Suprema Lex. The proceedings in each case must be in subordination to this rule."
Thus, Mr. Sumner would have removed the President by an ordinary concurrent resolution of Congress.
The purpose of all this was apparent—that the President was in effect, to be tried and judged before a Court of Public Opinion, and not before the Senate sitting as a High Court of Impeachment, but BY the Senate sitting in its legislative capacity—to create the impression in the minds of Senators that in this high judicial procedure they were still acting as a legislative body—simply as Senators, and not in a judicial capacity, as judges and jurors, and therefore not bound specifically by their oaths as such, to convict only for crime denounced by the law, or for manifest high political misdemeanors, but could take cognizance of and convict on alleged partisan offenses and allegations based on differences of opinion and partisan prejudices and partisan predilections—that it was not essential that the judgment of Senators should be confined to the specific allegations of the indictment, but that the whole range of alleged political and partisan misdemeanors and delinquencies could be taken into account in seeking a pretext for Mr. Johnson's conviction.
The superiority of the Legislative branch was thus openly advocated and insisted, and uncontroverted by any Republican supporting the impeachment. Mr. Johnson, according to these oft repeated declarations, was to be tried and convicted, not necessarily for any specific violation of law, or of the Constitution, but by prevailing public opinion—public clamor-in a word, on administrative differences subsisting between the President and the leaders of the dominant party in and out of Congress, and that public opinion, as concurrent developments fully establish, was industriously manufactured throughout the North, on the demand of leaders of the impeachment movement in the House, through the instrumentality of a partisan press and partisan public meetings, and in turn reflected back upon the Senate, in the form of resolutions denunciatory of the President and demanding his impeachment and removal.
That was in fact, and in a large sense, the incentive to the impeachment movement, and it was—not confined to a faction, but characterized the dominant portion of the political party then in the ascendancy in and out of Congress.
In this state of facts lay largely the vice of the impeachment movement, and it illustrated to a startling degree the danger in the departure from established forms of judicial procedure in such cases.
It became apparent, long before the close, that it was but little if anything more than a partisan prosecution—and that fact became more generally and firmly fixed, from day to day, as the trial approached conclusion.
In that state of facts, again, and in that sense, the impeachment of the President, was an assault upon the principle of coordination that underlies our political system and thus a menace to our established political forms, as, if successful, it would, logically, have been the practical destruction of the Executive Department—and, in view of previous legislation out of which the impeachment movement had to a degree arisen, and of declarations in the House and Senate quoted in this connection, the final and logical result of conviction would have been the absorption of the Executive functions of the Government by the Legislative Department, and the consequent declension of that Department to a mere bureau for the registration of the decrees of the Legislature.
Conscious of the natural tendency to infringement by a given Department of the Government upon the functions of its coordinates, the framers of the Constitution wisely defined the respective spheres of the several departments, and those definitions constitute unmistakable admonition to each as to trespass by either upon the political territory of its coordinates.
As John C. Calhoun wrote, in the early days of the Republic:
The Constitution has not only made a general delegation of the legislative power to one branch of the Government, of the executive to another, and of the judicial to the third, but it has specifically defined the general powers and duties of each of those departments. This is essential to peace and safety in any Government, and especially in one clothed only with specific power for national purposes and erected in the midst of numerous State Governments retaining exclusive control of their local concerns.* * * Were there no power to interpret, pronounce and execute the law, the Government would perish through its own imbecility, as was the case with the Articles of Confederation; or other powers must be assumed by the legislative body, to the destruction of liberty. Again, as was eloquently and forcefully said by Daniel Webster in the U. S. Senate in 1834:
The first object of a free people is the preservation of their liberty, and liberty is only to be preserved by maintaining constitutional restraints and just division of political power. Nothing is more deceptive or more dangerous than the pretense of a desire to simplify government. The simplest governments are despotisms; the next simplest, limited monarchies; but all republics, all governments of law, must impose numerous limitations and qualifications of authority and give many positive and many qualified rights. In other words, they must be subject to rule and regulation. This is the very essence of free political institutions. The spirit of liberty is, indeed, a bold and fearless spirit; but it is also a sharp-sighted spirit: it is a cautious, sagacious, discriminating, far-seeing intelligence; it is jealous of encroachment, jealous of power, jealous of man. It demands checks; it seeks for guards; it insists on securities; it entrenches itself behind strong defenses, and fortifies itself with all possible care against the assaults of ambition and passion. It does not trust the amiable weaknesses of human nature, and, therefore, it will not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic purpose come along with it. Neither does it satisfy itself with flashy and temporary resistance to illegal authority. Far otherwise. It seeks for duration and permanence; it looks before and after; and, building on the experience of ages which are past, it labors diligently for the benefit of ages to come. This is the nature of constitutional liberty; and this is our liberty, if we will rightly understand and preserve it. Every free government is necessarily complicated, because all such governments establish restraints, as well on the power of government itself as on that of individuals. If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we will place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions; and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries.
Each department is supreme within its own constitutionally prescribed limits, and the Supreme Court is made the umpire for the definition of the limits and the protection of the rights of all. Neither Congress, nor the Executive, are authorized to determine the constitutionality and therefore the validity of their acts, or the limits of their jurisdiction under the Constitution, but the Supreme Court is so authorized, and it is the umpire before which all differences in that regard must be determined. It is the tribunal of last resort, save the people themselves, before whom both Senate and House, and the Executive, must bow, and its decision is final in the interpretation of the Constitution.
A due regard, therefore, for the interpretation of law and the division of powers thus established, constitutes the great safeguard upon which the harmonious and successful operation of our political system depends. On its religious observance rests, primarily, the preservation of our free institutions and the perpetuation of our peculiar system of popular government. That quality of co-ordination—of the equality of the several Departments as adjusted by the Organic Act—constitutes the balance wheel of our political system.
The logical effect of the doctrines promulgated by the House of Representatives in that regard, and re-echoed on the floor of the Senate, in the press and on the stump throughout the North, were therefore not only revolutionary, but destructive. To have removed the President upon accusations in reality based upon partisan and personal—not amounting even to substantial political differences—would have been the establishment of a precedent of the most dangerous character.
In a large sense, the American system of politics and of government was on trial, quite as much as was Andrew Johnson. The extreme element of American politics was in absolute control in the House of Representatives, and practically so, in the Senate. The impeachment and removal of the President on unsubstantiated, or even remotely doubtful charges, simply: because of a disagreement between himself and Congress as to the method of treating a great public emergency, would have introduced a new and destructive practice into our political system.
Logically, the introduction of such a practice on that occasion would have been construed as a precedent for the treatment of future public emergencies. Thus, it would have tended to disturb the now perfect adjustment of the balance of powers between the co-ordinate branches. That quality of absolute supremacy of the several departments in their respective spheres, or functions, and of co-ordination or equality in their relations to each other, established by the Constitution as a guarantee of the perpetuity of our political system, would have been endangered, and the result could not have been otherwise than disaster in the future.
Logically, the Presidency would in time have been degraded to the position of a mere department for the execution of the decrees of the legislative branch. Not illogically, the Supreme Court would have been the next object of attack, and the legislature have become, by this unconstitutional absorption of the powers of Government, the sole, controlling force—in short the Government.
That would, in time, by equally logical sequence, have been the natural, inevitable result—and the end. The wreckage of the Great Republic of the age would have been strown upon the sands of the political seashore—relics of the disregard of the checks and balances established by the wisdom of its framers, in the fundamental law—and all for the satisfaction of personal ambitions and the hates of factional animosities.
History affords too many illustrations of that tendency to decadence and disruption from disregard of the proper and necessary checks and balances in the distribution and equalization of the powers of government, to permit us to doubt what the final end would have been had the President been removed on the unsubstantiated accusation preferred by the House of Representatives, Our peculiar system of political government—a Democratic Republic—passed the danger point of its history in that hour.
It was indeed a narrow escape. The history of civilization records no precisely similar condition. The country then passed the most threatening period of its history—but passed it safely. The result was the highest possible testimonial to the strength and endurance of properly adjusted Democratic institutions that history records.
It emphasized not only the capacity of the American people for intelligent and orderly self-government, but also the strength and endurance of our popular forms. It was a profound surprise to those habituated to different political conditions. They had witnessed with astonishment the quiet disbandment of millions of men but as yesterday engaged in mortal strife—the vast armies as peacefully returning to former vocations as though from a great parade—and now, from a state of civil convulsion that in many another nation would have produced armed collision and public disorder, they saw an entire people quietly accepting the verdict of the highest authoritive body of the land, and practically dismissing the subject from thought. It was a splendid world-wide tribute to the strength and endurance of our system of popular government.
Yet the conclusion must not be deduced that the power of impeachment is not a wise provision of our Constitution, nor in any sense inconsistent with our popular forms. Conditions may, and are not unlikely to arise, some day, when the exercise of the power to impeach and remove the President may be quite as essential to the preservation of our political system as it threatened to become in this instance destructive of that system. Should that day ever come, it is to be hoped that the remedy of impeachment, as established by the Constitution, may be as patriotically, as fearlessly, and as unselfishly applied as it was on this occasion rejected.
SUPPLEMENT.
Copy of letter addressed to each of the members of the Cabinet present at the conversation between the President and General Grant on the 14th of January, 1868, and the answers thereto:
Executive Mansion, Washington, D. C., February 5, 1868.
Sir:—The Chronicle of this morning contains a correspondence between the President and General Grant, reported from the War Department, in answer to a resolution of the House of Representatives. I beg to call your attention to that correspondence, and especially to that part of it which refers to the conversation between the President and General Grant, at the Cabinet meeting on Tuesday, the 14th of January, and to request you to state what was said in that conversation.
Very respectfully yours, Andrew Johnson.
Washington, D. C., February 5, 1868.
Sir:—-Your note of this date was handed to me this evening. My recollection of the conversation at the Cabinet meeting on Tuesday, the 14th of January, corresponds with your statement of it in the letter of the 31st ultimo, in the published correspondence. The three points specified in that letter, giving your recollection of the conversation, are correctly stated.
Very respectfully, Gideon Welles.
To the President.
Treasury Department, February 6, 1868.
Sir:—I have received your note of the 5th instant, calling my attention to the correspondence between yourself and General Grant, as published in the Chronicle of yesterday, especially to that part of it which relates to what occurred at the Cabinet meeting on Tuesday the 14th ultimo, and requesting me to state what was said in the conversation referred to.
I cannot undertake to state the precise language used, but I have no hesitation in saying that your account of that conversation, as given in your letter to General Grant under date of the 31st ultimo substantially and in all important particulars accords with my recollection of it.
With great respect, your obedient servant. Hugh McCulloch. To the President.
Post Office Department Washington, February 6, 1868.
Sir:—I am in receipt of your letter of the 5th of February, calling my attention to the correspondence published in the Chronicle between the President and General Grant, and especially to that part of it which refers to the conversation between the President and General Grant at the Cabinet meeting on Tuesday, the 14th of January, with a request that I state what was said in that conversation. In reply, I have the honor to state that I have read carefully the correspondence in question, and particularly the letter of the President to General Grant, dated January 31, 1868. The following extract from your letter of the 31st January to General Grant is, according to my recollection, a correct statement of the conversation that took place between the President and General Grant at the Cabinet meeting on the 14th of January last. In the presence of the Cabinet the President asked General Grant whether, "in conversation which took place after his appointment as Secretary of War ad interim, he did not agree either to remain at the head of the War Department and abide any judicial proceedings that might follow the non-concurrence by the Senate in Mr. Stanton's suspension, or, should he wish not to become involved in such a controversy, to put the President in the same position with respect to the office as he occupied previous to General Grant's appointment by returning it to the President in time to anticipate such action by the Senate." This General Grant admitted.
The President then asked General Grant if, at the conference on the preceding Saturday, he had not, to avoid misunderstanding, requested General Grant to state what he intended to do; and further, if in reply to that inquiry he (General Grant) had not referred to their former conversations, saying that from them the President understood his position, and that his (General Grant's) action would be consistent with the understanding which had been reached. To these questions General Grant replied in the affirmative.
The President asked General Grant if, at the conclusion of their interview on Saturday, it was not understood that they were to have another conference on Monday, before final action by the Senate in the case of Mr. Stanton.
General Grant replied that such was the understanding, but that he did not suppose the Senate would act so soon; that on Monday he had been engaged in a conference with General Sherman, and was occupied with "many little matters," and asked if General Sherman had not called on that day.
I take this mode of complying with the request contained in the President's letter to me, because my attention had been called to the subject before, when the conversation between the President and General Grant was under consideration.
Very respectfully, your obedient servant, Alexander W. Randall, Postmaster General. To the President.
Department of the Interior, Washington, D. C., February 6, 1868.
Sir:—I am in receipt of yours of yesterday, calling my attention to a correspondence between yourself and General Grant, published in the Chronicle newspaper, and especially to that part of said correspondence "which refers to the conversation between the President and General Grant at the Cabinet meeting on Tuesday, the 14th of January," and requesting me "to state what was said in that conversation."
In reply, I submit the following statement: At the Cabinet meeting on Tuesday, the 14th of January, 1868, General Grant appeared and took his accustomed seat at the board. When he had been reached in the order of business the President asked him, as usual, if he had anything to present?
In reply, the General, after referring to a note which he had that morning addressed to the President, inclosing a copy of the resolution of the Senate refusing to concur in the reasons for the suspension of Mr. Stanton, proceeded to say that he regarded his duties as Secretary of War ad interim terminated by that resolution, and that he could not lawfully exercise such duties for a moment after the adoption of the resolution by the Senate. That the resolution reached him last night, and that this morning he had gone to the War Department, entered the Secretary's room, bolted one door on the inside, locked the other on the outside, delivered the key to the Adjutant General, and proceeded to the headquarters of the Army, and addressed the note above mentioned to the President, informing him that he (General Grant) was no longer Secretary of War ad interim.
The President expressed great surprise at the course which General Grant had thought proper to pursue, and, addressing himself to the General, proceeded to say, in substance, that he had anticipated such action on the part of the Senate, and being very desirous to have the constitutionality of the Tenure-of-Office bill tested, and his right to suspend or remove a member of the Cabinet decided by the judicial tribunals of the country, he had some time ago, and shortly after General Grant's appointment as Secretary of War ad interim, asked the General what his action would be in the event that the Senate should refuse to concur in the suspension of Mr. Stanton, and that the General had agreed either to remain at the head of the War Department till a decision could be obtained from the court or resign the office in the hands of the President before the case was acted upon by the Senate, so as to place the President in the same situation he occupied at the time of his (Grant's) appointment.
The President further said that the conversation was renewed on the preceding Sunday, at which time he asked the General what he intended to do if the Senate should undertake to reinstate Mr. Stanton; in reply to which the General referred to their former conversation upon the same subject, and said. "You understand my position, and my conduct will be conformable to that understanding:" that he (the General) then expressed a repugnance to being made a party to a judicial proceeding, saying that he would expose himself to fine and imprisonment by doing so, as his continuing to discharge the duties of Secretary of War ad interim, after the Senate should have refused to concur in the suspension of Mr. Stanton would be a violation of the Tenure-of-Office bill. That in reply to this he (the President) informed General Grant he had not suspended Mr. Stanton under the Tenure-of-Office bill, but by virtue of the powers conferred on him by the Constitution: and that, as to the fine and imprisonment, he (the President) would pay whatever fine was imposed and submit to whatever imprisonment might be adjudged against him (the General.) That they continued the conversation for some time, discussing the law at length, and that they finally separated without having reached a definite conclusion, and with the understanding that the General would see the President again on Monday.
In reply, General Grant admitted that the conversation had occurred, and said that at the first conversation he had given it as his opinion to the President that in the event of non-concurrence by the Senate in the action of the President in respect to the Secretary of War the question would have to be decided by the court; that Mr. Stanton would have to appeal to the court to reinstate him in office; that he would remain in till they could be displaced and the outs put in by legal proceeding; and that he then thought so, and had agreed that if he should change his mind he would notify the President in time to enable him to make another appointment, but that at the time of the first conversation he had not looked very closely into the law; that it had recently been discussed by the newspapers, and that this had induced him to examine it more carefully, and that he had come to the conclusion that if the Senate should refuse to concur in the suspension Mr. Stanton would thereby be reinstated, and that he (Grant) could not continue thereafter to act as Secretary of War ad interim, without subjecting himself to fine and imprisonment; and that he came over on Saturday to inform the President of this change in his views, and did so inform him, that the President replied that he had not suspended Mr Stanton under the Tenure-of-Office bill, but under the Constitution, and appointed him (Grant) by virtue of the authority derived from the Constitution, &c.; that they continued to discuss the matter some time, and finally he left without any conclusion having been reached, expecting to see the President again on Monday. He then proceeded to explain why he had not called on the President on Monday, saying that he had had a long interview with General Sherman; that various little matters had occupied his time till it was late, and that he did not think the Senate would act so soon, and asked, "did not General Sherman call on you on Monday?"
I do not know what passed between the President and General Grant on Saturday, except as I learned it from the conversation between them at the Cabinet meeting on Tuesday, and the foregoing is substantially what then occurred. The precise words used on the occasion are not, of course, given exactly in the order in which they were spoken, but the ideas expressed and the facts stated are faithfully preserved and presented. I have the honor to be, sir, with great respect, your obedient servant.
O. H. Browning.
The President.
Department of State, Washington, February 6, 1868.
Sir: The meeting to which you refer in your letter was a regular Cabinet meeting. While the members were assembling, and before the President had entered the Council Chamber, General Grant, on coming in, said to me that he was in attendance there, not as a member of the Cabinet, but upon invitation, and I replied by the inquiry whether there was a change in the War Department. After the President had taken his seat business went on in the usual way of hearing matters submitted by the several secretaries. When the time came for the Secretary of War General Grant said that he was now there not as Secretary of War, but upon the President's invitation, that he had retired from the War Department. A Blight difference then appeared about the supposed invitation, General Grant saying that the officer who had borne his letter to the President that morning, announcing his retirement from the War Department, had told him that the President desired to see him at the Cabinet, to which the President answered, that when General Grant's communication was delivered to him the President simply replied that he supposed General Grant would be very soon at the Cabinet meeting. I regarded the conversation thus begun as an incidental one. It went on quite informally, and consisted of a statement, on your part, of your views in regard to the understanding of the tenure upon which General Grant had assented to hold the War Department ad interim, and of his replies by way of answer and explanation. It was respectful and courteous on both sides. Being in this conversational form, its details could only have been preserved by verbatim report. So far as I know, no such report was made at the time. I can give only the general effect of the conversation.
Certainly you stated that although you had reported the reasons for Mr. Stanton's suspension to the Senate, you nevertheless held that he would not be entitled to resume the office of Secretary of War, even if the Senate should disapprove of his suspension, and that you had proposed to have the question tested by judicial process, to be applied to the person who should be the incumbent of the Department, under your designation of Secretary of War ad interim in the place of Mr. Stanton. You contended that this was well understood between yourself and Gen. Grant; that when he entered the War Department as Secretary ad interim he expressed his concurrence in a belief that the question of Mr. Stanton's restoration would be a question for the courts; that in a subsequent conversation with General Grant you had adverted to the understanding thus had, and that General Grant expressed his concurrence in it: that at some conversation which had been previously held General Grant said he still adhered to the same construction of the law, but said if he should change his opinion he would give you seasonable notice of it, so that you should in any case, be placed in the same position in regard to the War Department that you were while General Grant held it ad interim. I did not understand General Grant as denying, nor as explicitly admitting, these statements in the form and full extent to which you made them. The admission of them was rather indirect and circumstantial, though I did not understand it to be an evasive one. He said that, reasoning from what occurred in the case of the police in Maryland, which he regarded as a parallel one, he was of opinion, and so assured you, that it would be his right and duty, under your instructions, to hold the War Office after the Senate should disapprove of Mr. Stanton's suspension until the question should be decided upon by the courts; that he remained until very recently of that opinion, and that on the Saturday before the Cabinet meeting a conversation was held between yourself and him in which the subject was generally discussed.
General Grant's statement was, that in that conversation he had stated to you the legal difficulties which might arise, involving fine and imprisonment under the civil tenure bill, and that he did not care to subject himself to those penalties; that you replied to this remark, that you regarded the civil tenure bill as unconstitutional, and did not think its penalties were to be feared, or that you would voluntarily assume them; and you insisted that General Grant should either retain the office until relieved by yourself according to what you claimed was the original understanding, between yourself and him, or, by seasonable notice of change of purpose on his part, put you in the same situation which you would be if he adhered. You claimed that General Grant finally said in that Saturday's conversation that you understood his views, and his proceedings thereafter would be consistent with what had been so understood. General Grant did not controvert nor can I say that he admitted this last statement. Certainly General Grant did not at any time in the Cabinet meeting insist that he had in the Saturday's conversation either distinctly or finally advised you of his determination to retire from the charge of the War Department otherwise than under your own subsequent direction. He acquiesced in your statement that the Saturday's conversation ended with an expectation that there would be a subsequent conference on the subject, which he, as well as yourself, supposed could seasonably take place on Monday.
You then alluded to the fact that General Grant did not call upon you on Monday, as you had expected from that conversation. General Grant admitted that it was his expectation or purpose to call upon you on Monday. General Grant assigned reasons for the omission. He said he was in conference with General Sherman; that there were many little matters to be attended to. He had conversed upon the matter of the incumbency of the War Department with General Sherman, and he expected that General Sherman would call upon you on Monday. My own mind suggested a further explanation, but I do not remember whether it was mentioned or not-namely, that it was not supposed by General Grant on Monday that the Senate would decide the question so promptly as to anticipate further explanation between yourself and him if delayed beyond that day. General Grant made another explanation—that he was engaged on Sunday with General Sherman, and, I think, also on Monday, in regard to the War Department matter, with a hope, though he did not say in an effort, to procure an amicable settlement of the affair of Mr. Stanton, and he still hoped that it would be brought about.
I have the honor to be, with great respect, your obedient servant,
William H. Seward.
To the President.
The End