History of the Impeachment of Andrew Johnson, President of the United States Part 21

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 pa.s.sage 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 Hamps.h.i.+re, 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 Hamps.h.i.+re, 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 Was.h.i.+ngton 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 a.s.sume direct military control and the establishment of practically a military dictators.h.i.+p. 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 a.s.suming to practically abrogate a const.i.tutional 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 Was.h.i.+ngton. 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 a.s.sure 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 pa.s.sed 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 Const.i.tution 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, Const.i.tutional or not Const.i.tutional." 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 Was.h.i.+ngton, 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 a.s.signed 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 ent.i.tled "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 Const.i.tutional functions of Commander in Chief of the Army, and in the sixth section, which denies to ten States of the Union their Const.i.tutional 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. Was.h.i.+ngton, 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 Const.i.tution and to himself to do, its re-pa.s.sage 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 Const.i.tutional right and power. In that act Mr. Johnson ill.u.s.trated 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.

CHAPTER X. -- A CONFERENCE HELD AND THE FIRST VOTE TAKEN.

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 a.s.sociates, 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 pa.s.sage 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 p.r.o.nounce 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. G.o.d 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 Const.i.tution. It expired on the 4th of March, 1865. That the same inc.u.mbent 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 partic.i.p.ated 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, const.i.tuted, 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 const.i.tuted 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.