«Реконструкция и конституция, 1866–1876»

The recall of

Pope and the

appointment

of Meade in

his stead.

desire to hurry up the re-establishment of civil government was rather laudable than otherwise. The President, however, who had in his Attorney-General one of the ablest lawyers of the country, understood well the constitutional limitations upon the General's powers and duties. He recalled the reckless commander and sent the more conservative Meade to take his place, December 28th, 1867.

Before the election came off, however, a bill was introduced into Congress, and passed the House of Representatives, and was making its

Rejection of the

constitution in

Alabama.

way, a little more slowly, but surely, through the Senate, which authorized the election of "State" officers and legislators in the communities suffering reconstruction at the same time that the vote should be taken upon the ratification of the new constitutions and by the same electors. Congress had not a whit more power to do this than the commanders, and the President knew this well enough, but he gave no instructions to Meade, and so the commander permitted the voting for "State" officers and legislators at the same election that the vote was taken upon the question of the ratification of the constitution and by the same electors. But the registered voters refrained from voting upon the question of ratification in sufficient numbers to reduce the vote to several thousand less than half the registration. The proposed constitution was thus rejected under the provision of the Reconstruction Acts which required a vote exceeding the half of the registration, as well as a majority of that vote, for ratification. The "State" government chosen at this same election was thus in the air.

The Senate now passed the House bill providing that the approval of a majority of those voting, no matter what the proportion of the vote to

The statute of Congress

changing the proportion

of votes to registration

in the ratification of a

constitution.

the registration might be, should be regarded as a sufficient ratification of the proposed "State" constitutions for the communities suffering reconstruction; and although this Act was passed more than a month after the vote on the constitution was taken in Alabama, and although, furthermore, General Meade reported that a majority of the registered voters had not voted on the question of ratification, and that he interpreted this to mean that a majority of the registered voters did not want the constitution, yet Congress, as we shall see later, applied this new law of March 11th to the Alabama election which had taken place in the first days of the preceding February.

In the original requirement that the vote to be effective must exceed half of the registration, Congress was still upon the ground of correct

Criticism of

the statute.

principle. When it left this ground it virtually accepted the principle that republican "State" governments may be legitimately created by a minority of the lawful voters against the will of a majority of the lawful voters, and that, too, not by allowing that minority to demonstrate its political superiority to the majority by greater intelligence, or shrewder management, or even by brute force, but by the aid of power coming from without. Now this is not, in correct political science, "State" government in a federal system, autonomous local government, at all. It is provincial government in local affairs, more or less complete as the necessity for the outside aid is more or less continuous. The Republicans had denounced the Johnson "State" governments upon the ground, among other grounds, that they were minority governments, minority governments in the vague and uncertain sense that not a majority of the adult males had been enfranchised, and not in the clear and distinct and unmistakable sense that a minority of the enfranchised, supported by the military power of the United States, might impose its will upon a majority of the enfranchised. There was nothing disloyal in the registered voters of Alabama giving Congress to understand that a majority of them preferred the continuance of the military régime, or the creation of a Territorial government for them by Congress, to the "State" constitution offered them. But it was utter self-stultification for Congress to take the ground that the Johnson "State" governments were unrepublican because they did not enfranchise all adult males of whatever race, color, or condition of mind or estate and overthrow them on that ground, and then proceed to create new "State" governments in their places upon the basis of a minority of the already duly qualified and registered voters. No impartial student, at this day, can view this terrible inconsistency in any other light than that of a high political crime.

While the Senate was proceeding with the bill, another of the Southern communities was rapidly approaching the date fixed for voting upon the

Ratification

in Arkansas.

proposed "State" constitution, viz., Arkansas. The bill was passed by Congress the day before the voting began in Arkansas, but it was not known in Arkansas that it had been passed until near the close of the second day of the election. It could, however, be claimed that it was applicable to the case, and it certainly made all figures unnecessary except in regard to the actual voting. The "State" officers and legislators under the constitution to be adopted were chosen at the same time, by the Congressional electorate in Arkansas, and not by the "State" electorate, created by the new constitution.

In the course of the next two months, April and May, voting upon

Ratification in

North Carolina,

South Carolina,

Georgia, Florida

and Louisiana.

the question of ratifying the new "State" constitutions took place in North and South Carolina, Georgia, Florida and Louisiana. As the Congressional Act of March 11th was in full force at this time, the result was affirmative in all cases.

During the Reconstruction proceedings in Georgia Governor Jenkins had refused to issue an order to the "State" Treasurer to pay a sum of

Second attempt in

Georgia to obstruct

Reconstruction.

forty thousand dollars, on the ground that the "State" legislature (Johnson government) had not made any such appropriation. For this refusal Meade removed him and the "State" Treasurer and Controller General, and appointed military men in their places. These new officers seized the "State" buildings, but Jenkins succeeded in getting away with the money in the treasury. He went to Washington and undertook to institute a proceeding in the Supreme Court of the United States against Generals Grant and Meade to restrain the officers appointed by Meade from levying taxes upon the people of Georgia, and from collecting the same and the other income of the "State," as well as from exercising other functions. The Court gave its permission to the filing of the bill, but put off the hearing of the argument until the next term, and before this arrived, the new constitution had been ratified, and new "State" officers elected along with the ratification. In the other communities mentioned no opposition to the reconstruction process was offered.

On the other hand, the opponents of the proposed "State" constitution in Mississippi went into a most earnest and energetic campaign against

Rejection of

the Constitution

in Mississippi.

its ratification and succeeded, at the election on June 22d, in rejecting the same by between seven and eight thousand majority. Many of the better class of negroes voted with their old masters, that is with such of these as were allowed by the Congressional acts to register and vote, against ratification. Those in favor of ratification claimed that fraud was practised by their opponents, in the face of the fact that they had the elections in their own hands, and they petitioned the military authorities to put the proposed constitution, notwithstanding its rejection at the polls, into operation. This these authorities refused to do.

ГЛАВА IX

THE ATTEMPT TO REMOVE THE PRESIDENT

Grant in the War Office—The President's Message of December 3d, 1867—The President's Special Message Concerning the Suspension of Stanton—The Senate Resolution in Regard to the Suspension of Stanton—Grant's Disobedience toward the President—The Unbearable Situation in which the President now Found Himself—The Dismissal of Stanton from Office—General Thomas Appointed Secretary of War ad interim—Stanton's Resistance—Thomas and the President—The Attitude of the Senate toward the Dismissal of Stanton—The Movements in the House of Representatives—The Arrest of General Thomas—Thomas's Second Attempt to Take Possession of the War Office—The House Resolution to Impeach the President—The Withdrawal of Stanton's Complaint against Thomas—The Fear of the Republicans to Test the Tenure-of-Office Act before the Courts—The Managers of Impeachment—The Charges against the President—The President's Answer to the Complaint—The Withdrawal of Mr. Black from the President's Counsel—The Contents of the President's Answer—The Replication of the House to the President's Answer—The Trial—Conduct of the Managers—The Evidence in the Case—The Argument—The Law in the Case—Mr. Stanton's Violation of Law—The Nomination of General Schofield to be Secretary of War—The Vote upon Impeachment—The Truth of the Matter—The Abdication of Stanton—Schofield's Confirmation as Secretary of War and His Acceptance of the Office.

During this same period, another act in the drama of Reconstruction was being played, a fit companion piece to what was occurring in the unhappy communities of the South. It was the attempt to dispose of the President, and the presidency, by the impeachment of the President.

The history of the President's relations to Mr. Stanton, his Secretary of War, has already been given down to the suspension of Mr. Stanton in

Grant in the

War Office.

August of 1867, and the designation of General Grant to succeed him ad interim. Grant immediately assumed the duties of the office, and Mr. Stanton then regarded General Grant as a friend of the President in the controversy between himself and the President.

In his annual Message to Congress, the Fortieth Congress, of December 3d, 1867, the President said nothing directly in regard to his

The President's Message

of December 3d, 1867.

suspension of Mr. Stanton from office. He put forward a strong argument, couched in moderate and respectful language, against the policy and constitutionality of the Reconstruction Acts, as measures establishing martial law in times of peace, and as doing it for the purpose of establishing negro rule over the Southern communities, and he urged the repeal of these Acts, and the immediate admission of the Representatives and Senators from these communities, or "States" as he considered them, to their seats in Congress. What he said upon these subjects is, for the most part, entirely convincing to the impartial mind, at this day, and all of it was apparently animated with true patriotism and earnest desire to promote the common weal. At the close of the argument, however, the President introduced into his Message some ambiguous expressions which were unfortunate, to say the least, and which roused to a high degree the suspicions and the hatred already entertained against him by the radical Republicans.

He wrote as follows: "How far the duty of the President 'to preserve, protect, and defend the Constitution' requires him to go in opposing an unconstitutional act of Congress is a very serious and important

question, on which I have deliberated much and felt extremely anxious to reach a proper conclusion. Where an act has been passed according to the forms of the Constitution by the supreme legislative authority, and is regularly enrolled among the public statutes of the country, Executive resistance to it, especially in times of high party excitement, would be likely to produce violent collision between the respective adherents of the two branches of the Government. This would be simply civil war, and civil war must be resorted to only as the last remedy for the worst of evils. Whatever might tend to provoke it should be most carefully avoided. A faithful and conscientious magistrate will concede very much to honest error, and something even to perverse malice, before he will endanger the public peace; and he will not adopt forcible measures, or such as might lead to force, as long as those which are peaceable remain open to him or to his constituents. It is true that cases may occur in which the Executive would be compelled to stand on its rights, and maintain them regardless of all consequences. If Congress should pass an act which is not only in palpable conflict with the Constitution, but will certainly, if carried out, produce immediate and irreparable injury to the organic structure of the Government, and if there be neither judicial remedy for the wrongs it inflicts nor power in the people to protect themselves without the official aid of their elected defender—if, for instance, the legislative department should pass an act even through all the forms of law to abolish a co-ordinate department of the Government—in such a case the President must take the high responsibilities of his office and save the life of the nation at all hazards. The so-called Reconstruction Acts, though as plainly unconstitutional as any that can be imagined, were not believed to be within the class last mentioned.

The people were not wholly disarmed of the power of self-defence. In all the Northern 'States' they still held in their hands the sacred right of the ballot, and it was safe to believe that in due time they would come to the rescue of their own institutions. It gives me pleasure to add that the appeal to our common constituents was not taken in vain, and that my confidence in their wisdom and virtue seems not to have been misplaced." These last words referred undoubtedly to the recent rejection, by popular vote, in a number of the most important Northern "States," of proposed amendments to "State" constitutions conferring suffrage upon negroes.

Most of the Republicans in Congress interpreted this whole paragraph in the Message as a threat to violate the Reconstruction Acts, although

The interpretation placed

by the Republicans on

the President's Message.

this was disavowed, rather indistinctly it is true, and to violate also the Tenure-of-Office Act. It is very difficult to say what the President was aiming at in giving such a warning to a body already excited against him to a high degree. It was certainly a faux pas of the worst kind, to say the least about it.

Just nine days later the President sent his special Message to the Senate in regard to his suspension of Mr. Stanton. The gist of it was

The President's special

Message concerning the

suspension of Stanton.

that mutual confidence between himself and Mr. Stanton no longer existed, and that when he asked Mr. Stanton to resign Mr. Stanton had declined to do so and had strongly intimated that his reason for declining was his own lack of confidence in the President's patriotism and integrity. The President claimed that such an attitude, on the part of a subordinate toward his superior, was unendurable, was in fact official misconduct of a grave order, and he also referred to Stanton's withholding Baird's telegram from him just before the New Orleans riot. The President furthermore discussed Mr. Stanton's letter in reply to his order to him suspending him from office and commanding him to turn over the records and property of the office to General Grant. This letter contained a declaration by Mr. Stanton denying the right of the President, under the Constitution and laws, to suspend him from office, without the advice and consent of the Senate, and without legal cause, and affirming that he yielded, under protest, to the superior force wielded by the General of the Army who had been designated to succeed him.

This contention of Mr. Stanton that the President could not suspend him under the Constitution and laws of the United States gave the President the opportunity of saying that Mr. Stanton must be claiming the protection of the Tenure-of-Office Act of March 2d, 1867, and of revealing to the Senate Mr. Stanton's most decided condemnation of that Act when it was a bill before the President. The President asserted that Mr. Stanton, as every other member of his Cabinet, advised him that the bill was unconstitutional, in that it was a dangerous encroachment upon the President's constitutional prerogatives, and urged him to veto it. He also said that all the members of his Cabinet who had been appointed by Mr. Lincoln—and Stanton was one of these—appeared to be of the opinion that their tenures were not fixed or affected by the provisions of the bill. The conclusion arrived at by the President evidently was that the Tenure-of-Office Act did not cover Mr. Stanton's case, but left it under the law and practice existing before the passage of that measure, and that if it did cover it, the Act was unconstitutional, and was so considered by Mr. Stanton himself, and every other member of the Cabinet.

It is hardly credible that the President intended to recognize the validity of the Act by sending this Message to the Senate. It is true that the second section of the Act provided that the President might suspend an officer during a recess of the Senate, and designate an ad interim successor, and must, within the first twenty days of the next meeting of the Senate, report the suspension to the Senate, and it does appear, from a casual view, that the President was acting under the authority of this provision, or rather under the duty imposed by it, in suspending instead of removing Mr. Stanton and in making this report of Mr. Stanton's suspension to the Senate. But the President could claim that he was proceeding under his general constitutional power and duty of suspending from office, as a power included in the power of removal, and of sending such communications as he saw fit to Congress or to either House thereof. And the fact that he disputed the constitutionality of the Act in the Message itself is good internal evidence that he did not consider that he was in any way acting under the authority granted to him by it, or in any way estopping himself, so to speak, from making future declarations against the constitutionality of the Act, or even from disobeying its requirements.

The Senate, however, conceived at once that the President was acting under the Tenure-of-Office Act, and after considerable discussion,

The Senate resolution

in regard to the

suspension of Stanton.

passed a resolution, on the 13th day of January, 1868, which provided that, "having considered the evidence and reasons given by the President in his report of December 12th, 1867, for the suspension of Edwin M. Stanton from the office of Secretary of War, the Senate does not concur in such suspension." The body then instructed its secretary to send copies of this resolution to the President, General Grant and Mr. Stanton. It is also evident that General Grant supposed the President was acting under the Tenure-of-Office Act both in suspending Stanton, in appointing himself ad interim, and in making report of these proceedings to the Senate; for upon receiving his copy of the Senate's resolution from the secretary of the Senate, he immediately left the room of the Secretary of War, locking the door after him and giving the key to the Adjutant-General, and repaired to the official head-quarters of the General of the army. Stanton manifestly regarded the matter in the same way, for upon receiving his copy of the notice of the Senate's action, he went to the room of the Secretary of War, and resumed the duties of Secretary of War without further ceremony. He did not even go to see Grant, but sent word over to the head-quarters of the General of the army summoning Grant to wait upon him in the Secretary's room.

There is no question now in any calm and impartial mind that the Senate acted most inconsiderately, not to say wrongfully, in passing that

Criticism of the

Senate resolution.

resolution. The situation was a perfectly plain one. The President and Stanton could not work together, since they had lost all confidence in each other. Common-sense and common decency required in such a case the retirement of the subordinate. The Senate itself had committed itself to this view in the discussion and votes upon the Tenure-of-Office bill, in its original form and in its final form. General Grant, the man who stood first in the confidence of the whole people, was in possession of the War Office. He had held it already nearly six months, and had in that short time improved the administration of it very greatly. At the end of the six months, at farthest, the President was held by the law of 1795, a law whose constitutionality he did not dispute, to make a nomination to the Senate of a permanent incumbent. The Senate would then be able to prevent the appointment of any person to the office who did not have the confidence of the Senate and the country. No possible harm could thus have come to the country from acquiescing in Stanton's suspension, and it is hard to see that anything but harm did come to it in not doing so. No perfectly fair and unprejudiced mind could have failed to see that then; but the radical Republicans—and most of the Republicans in Congress at that moment were radical, or at least intensely partisan—were bent upon attacking and destroying the President in any way they could. They were ready to lay traps for him, and then to so excite him by encroachments upon the prerogatives and the dignity of his office as to make him fall into them. They were determined to sustain Stanton against the President, the subordinate against his lawful superior, simply because they despised the President. They claimed that the welfare of the country demanded it, and most of them probably thought so, but everybody can see the fallacy of that now, and anybody fit to be a Senator of the United States ought to have been able to see it then.

It is also a question whether General Grant did not act hastily, and inconsiderately, not to say wrongfully, in yielding the post without

Criticism

of General

Grant's act.

dispute to Mr. Stanton. The President certainly understood General Grant to promise him to hold on to the office in case the Senate should not approve of Stanton's suspension, and thereby compel Stanton to have recourse to the courts to regain possession, and thus secure a judicial determination of the constitutionality of the Tenure-of-Office Act, or to give the office back to the President before the Senate reached its

determination, so that he might have opportunity to put it into the hands of a man who would be willing to incur this responsibility; and the President was able to back this understanding by the testimony of five members of his Cabinet. On the other hand, General Grant was just as sincere in his view that his remarks to the President on the subject did not amount to a promise, and if they did, he had fulfilled it when on the 11th of January, two days before the Senate acted, he indicated to the President his unwillingness to involve himself in a lawsuit to test the constitutionality of the Tenure-of-Office Act. It is true that when he spoke with the President, on the 11th, he did not offer to resign the office, and that it was understood that he would see the President again on the subject, and that he did not see the President, nor attempt to see him, before the Senate acted. But he explained this apparent failure to keep faith by saying that he was extremely busy during the two days between the 11th and the 13th, and that the Senate had acted much more hastily than he expected it would.

There is little doubt that General Grant thought the Senate would acquiesce in Stanton's suspension, and was taken by surprise when it did not do so, and that until the action of the Senate on the 13th, he had never seriously considered that any opportunity or necessity for a judicial proceeding would arise. When, then, the alternative was suddenly presented to him of obeying the Tenure-of-Office Act, or disputing its constitutionality by forcibly holding possession of the War Office, he decided that it would be wrong for the General of the army to assume the attitude of defiance to Congress, whatever a civilian might consider his duty to be. He thought that such an act on his part would look like a contest between the civil and military powers of the Government, and he was unwilling to provoke it.

The President blundered very seriously when he did not accept the explanation from General Grant and drop the matter. The General was

The President's

blunder in his

attitude toward

Grant.

friendly in his feelings toward the President, and when Stanton repossessed himself of the War Office in his cavalier way, without seeking any understanding with Grant, and sent the General a rude summons to wait upon him, the General was very naturally and properly indignant with Stanton. The way was here open for the President to make a close friend of General Grant, by simply appreciating Grant's point of view in surrendering the War Office, and saying nothing more about it. But the President was not a prudent man when crossed in his purposes. He generally thought that the motives of all men who differed with him were bad. He showed in this trait his common origin and his vulgar breeding. He thought that Grant had deceived him and made a scapegoat of him, and he resolved to have it out with him. He did not seem to understand at all that in an issue of veracity between General Grant and himself, the country would believe Grant, no matter who told the truth, and who the lie. The utter impossibility of coming out winner in a contest with a national hero, no matter what the merits of the case might be, does not seem to have occurred to him at all. And so he plunged into that unfortunate controversy with General Grant in the public prints, which made Grant his enemy for life, at a time when he needed most his friendship, and might have had it by the exercise of a little common prudence.

The outcome of this whole course of crimination and recrimination was that the country came to the belief that the President first tried to

The result of the

controversy between

the President and

General Grant.

force the responsibility of a violation of the Tenure-of-Office Act upon the popular General of the army, and then, when the General foiled him in his purpose, undertook to impugn his honor and his integrity, and destroy his character before the public. An impartial study of the facts and the correspondence will not sustain any such view now, but in the state of feeling then prevailing, no such impartial study was possible. The President ought to have known this, and to have controlled his indignation until a more propitious time.

General Grant's letter closing the controversy is dated February 11th. In the interval between his quitting the War Office and this latter

Grant's disobedience

toward the President.

date, the President instructed the General not to obey any orders from Stanton until he knew they came from the President. This instruction was given, first, verbally on January 19th. Grant demanded, on January 24th, a written order from the President on the subject, and repeated this request on the 28th. The President replied on the 29th that "General Grant is instructed, in writing, not to obey any order from the War Department, assumed to be issued by the direction of the President, unless such order is known by the General commanding the armies of the United States to have been authorized by the Executive." Grant responded, on January 30th, that he had been informed by the Secretary of War that he (the Secretary) had not received from the Executive any order or instructions limiting or impairing his authority to issue orders to the army as had theretofore been his practice under the law and the customs of the Department, and that while this authority to the War Department was not countermanded it would be satisfactory evidence to him (the General) that any orders issued from the War Department by the formal direction of the President were authorized by the Executive. This was coming very nearly up to the

line between obedience and disobedience on the part of the General of the army toward the constitutional Commander-in-chief of the army and navy of the United States. The General must have himself felt that he was on rather shaky ground, for in the closing paragraph of his letter of February 11th he disclaimed any intention of disobeying "any legal order of the President distinctly communicated." But this was still an ambiguous situation. Who was to determine whether an order of the President to the General was legal or not? If the President, then there was no need of qualifying the word "order" by the word "legal." The language used, therefore, indicates that the General considered it within his power to decide this question. But if the subordinate can determine upon the legality of the orders of his superior, and disobey them in case he considers them illegal, then farewell to all discipline in civil or military service. It is very clear from these expressions of the General that Stanton's successful insubordination was already exercising its demoralizing influence, and was confusing the minds of those high in command in regard to the interpretation of their duties and responsibilities.

The situation was utterly unbearable for the President. Here was the constitutional Executive of the United States, the Commander-in-chief

The unbearable situation

in which the President

now found himself.

of the army and the navy, virtually excluded by one of his own subordinates from any relation to the business of one of the most important departments of the Government for which he alone was responsible, and his subordinate sustained in this attitude by the legislative branch of the Government.

Matters were now rapidly approaching a crisis which could be avoided only by the resignation of the President or by the retreat of the

The dismissal of

Stanton from office.

Senate from its indefensible position. If both stood firm the clash must follow, and that too very quickly. On the 21st (February) it came. The President addressed an order of that date to Mr. Stanton dismissing him from the office of Secretary of War, and another order of the same date to General Lorenzo Thomas, Adjutant-General of the army, commanding him to take possession of the War Office and administer its affairs ad interim. He, on the same date, informed the Senate of his action, and transmitted to that body a copy of the orders to Stanton and Thomas.

Upon receiving the order, General Thomas repaired immediately to the Secretary's room in the War Office, and handed to Mr. Stanton both of

General Thomas

appointed Secretary

of War ad interim.

the documents, they having been put into his hands by the President's private secretary. Upon reading the one addressed to himself, Mr. Stanton immediately asked General Thomas whether he wished him to vacate at once or would give him time to remove his private property. Thomas replied, "act as you please." Stanton then read the order addressed to Thomas designating him Secretary ad interim, and asked Thomas for a copy of it.

Thomas then left the Secretary's room and went into his old room, the Adjutant-General's room, to have a copy of the order made. He returned

Stanton's resistance.

at once with it, and when he handed it to Mr. Stanton, the latter said: "I do not know whether I will obey your instructions, or whether I will resist them." General Thomas had certified the correctness of the copy, and had signed himself Secretary of War ad interim. The two then went into General Schriver's room just across the hallway, and there Stanton declared outright that Thomas should not issue orders as

Secretary of War, and that if he did he (Stanton) would countermand them, and he then and there directed General Schriver and General Townsend, both of whom were present, to disobey any orders coming from General Thomas as Secretary of War. Mr. Stanton then caused General Townsend to prepare a written order to Thomas, signed by Mr. Stanton as Secretary of War, which was as follows: "Sir: I am informed that you presume to issue orders as Secretary of War ad interim. Such conduct and orders are illegal, and you are hereby commanded to abstain from issuing any orders other than in your capacity as Adjutant-General of the army."

General Thomas then went over to the White House to see the President about the matter. He told the President of his conversation with Mr.

Thomas and

the President.

Stanton, and repeated to him Stanton's replies verbatim. The President simply said to him: "Very well; go and take charge of the office and perform the duties." Thomas did not, however, return to the Secretary's room in the War Office that day, and did not see Mr. Stanton again on that day.

While these things were occurring in the executive offices matters were seething at the other end of the avenue. The Senate was deliberating,

The attitude of the

Senate toward the

dismissal of Stanton.

if we may call such a stormy procedure as took place a deliberation, upon the President's communication. It very quickly passed the following resolution: "Whereas, the Senate have received and considered the communication of the President stating that he had removed Edwin M. Stanton, Secretary of War, and had designated the Adjutant-General of the army to act as Secretary of War ad interim: Therefore, Resolved by the Senate of the United States, That under the Constitution and laws of the United States the President has no power to remove

the Secretary of War and designate any other officer to perform the duties of that office ad interim." A copy of this resolution was sent to the President, another copy to Mr. Stanton, and another to General Thomas.

The excitement in the other House was still more intense and irrational. The Senate resolution had hardly passed when the radical

The movements in the

House of Representatives.

Mr. Covode presented a motion to the effect that "Andrew Johnson, President of the United States, be impeached of high crimes and misdemeanors." This resolution was referred to the Committee of the House on Reconstruction, which was, as we have seen, composed of members nearly all of whom were radical Republicans.

Encouraged and strengthened by these movements in the legislature, and hearing that Thomas had threatened to force his way into the office,

The arrest of

General Thomas.

Mr. Stanton resolved to forestall all possible movements of General Thomas for gaining possession of the office of Secretary of War. He procured a warrant of arrest for the General, and on the next morning, the morning of the 22d, the warrant was served on General Thomas just after he had risen from his bed, and before he had taken his morning meal. The officers who arrested him, the Marshal of the District, and his assistant, and a constable, took the General at once before Judge Cartter, the Chief Justice of the District of Columbia. On the way from the General's residence to the court-room, the General asked the officers to allow him to see the President, and inform the latter of his arrest. The Marshal went with the General to the White House, and was present at the interview between the General and the President. It lasted but a moment. The General told the President that he was under arrest. The President replied that he was satisfied to have the case go into the courts, that he wanted it judicially determined. He then directed the General to go to the Attorney-General, Mr. Stanbery. The Marshal permitted him to call at Mr. Stanbery's apartment in his hotel, and inform the Attorney-General of his arrest. He then took him before Judge Cartter. Nobody was with the General before the Judge, except the officers who had arrested him. The Judge held him to bail in the sum of five thousand dollars to appear on the following Wednesday morning, the 26th. After about an hour friends of the General came in and signed his bail bond, and the General was released, the Judge informing him that he was not suspended from any of his official functions. The General then went back to the White House and informed the President of his release under bail, and the President again replied that he wanted the case in the courts.

Finally, the General went over to the rooms of the Secretary of War. There he found some six or eight members of Congress with Mr. Stanton,

Thomas's second

attempt to take

possession of

the War Office.

evidently awaiting the dénouement. He demanded the office. Stanton ordered him to his room as Adjutant-General. He refused to obey. He demanded the office of the Secretary of War a second and a third time, and a second and a third time Stanton refused to yield it to him and ordered him to his room as Adjutant-General. The General then left the room of the Secretary of War, and went across the hall into General Schriver's room. Stanton followed him and asked him if he insisted on acting as Secretary of War. The General replied that he did, and would demand the mails of the War Office. The two then fell into a friendly chat, General Thomas saying that he had had nothing to eat or drink that day and requesting Mr. Stanton the next time he might have him arrested not to do it before breakfast, and Stanton appealing to Schriver to bring out his whiskey, which Schriver did, and the two men, Thomas and Stanton, drank a little together on Stanton's invitation. With this Thomas's attempt to get possession of the War Office seems to have ended. On the same day the President sent to the Senate for confirmation as Secretary of War the name of Thomas Ewing, Sr. Mr. Ewing was a man of undoubted ability and of the purest loyalty. He had been one of Lincoln's best friends and supporters and was the father-in-law of General Sherman; but the Senate denied that the President had any power to send in a nomination, that is, denied that there was a vacancy.

On the same day, also, the 22d, the Reconstruction Committee of the House, to whom the resolution for impeaching the President had been

The House resolution to

impeach the President.

referred, reported it back with the recommendation that it be passed, and the chairman, Mr. Thaddeus Stevens, urged that it might pass without debate. But the members began at once to debate it hotly, and continued to do so through the day and deep into the night. The following day was Sunday, the 23d. The House had, therefore, one day of recess in which to cool down. But on Monday the angry determination of the Republican leaders was even more manifest than on the preceding Saturday. All day long the war of words went on. The reproach and the odium heaped upon the President were simply immeasurable. Read from the point of view of to-day, and at this distance from the event, most of it appears highly extravagant, and some of it ridiculous and even puerile. Late in the afternoon the vote was reached, by application of the previous question rule. The House resolved to impeach the President before the Senate by a vote of 126 to 47. All those voting in the affirmative were Republicans, and all those voting in the negative were Democrats.

By another strict party vote the House authorized the Speaker to appoint a committee to acquaint the Senate with its resolution to

The committee of the

House on impeachment.

impeach the President before that body, and another committee to draw up the articles of impeachment. The Speaker, Mr. Colfax, appointed Mr. Stevens and Mr. Bingham to constitute the first committee, and Mr. Boutwell, Mr. Stevens, Mr. Bingham, Mr. Wilson, Mr. Logan, Mr. Julian and Mr. Ward to constitute the second. This committee immediately set about its work, and on the 29th was ready to report.

Meanwhile the day for General Thomas to appear in court, February 26th, arrived. By this time the General had taken legal advice, and the plan

The withdrawal of Stanton's

complaint against Thomas.

of his counsel was to refuse to give further bail, allow him thus to be committed to jail, then sue out a writ of Habeas Corpus from a United States judge, and bring in this way the question of the constitutionality of the Tenure-of-Office Act to judicial determination. But Judge Cartter foiled this plan, according to the word of Judge Luke P. Poland of Vermont, who drew the complaint against Thomas, by declining to make any further order requiring bail, and on the same day Mr. Stanton withdrew the complaint, and the case was thus prevented from reaching the United States courts at all.

There is little doubt that the Republicans were afraid to have the Tenure-of-Office Act tested judicially. They preferred recourse to the

The fear of the Republicans

to test the Tenure-of-Office

Act before the courts.

Court of Impeachment to settle the matter so far as President Johnson was concerned. It is true that Stanton alleged that he brought the case against Thomas in order to test judicially the right of Thomas to the office of Secretary of War, and that he withdrew the complaint as superfluous after the House of Representatives had resolved to impeach the President, but that may have been a mere legal form of excuse.

Three days after this, as we have seen, the committee charged with preparing the articles of impeachment reported to the House. They were

The managers

of impeachment.

debated until March 3d, when they were adopted by a strict party vote, and the managers to conduct the prosecution were elected. They were Messrs. Bingham, Boutwell, Wilson, Butler, Williams, Logan and Stevens.

The charges against

the President.

Disregarding the legal order and form of the eleven articles of impeachment, we may say briefly that the charges against the President were:

First, that he violated the Tenure-of-Office Act in issuing an order deposing Stanton from the office of Secretary of War, and another order appointing Thomas to the office of Secretary of War ad interim.

Second, that he violated the Anti-conspiracy Act of July 31, 1861, in conspiring with Thomas to expel Stanton by force from the War Office, and to seize upon the property and papers of the United States in the War Office, and to unlawfully disburse the money appropriated for the military service and the Department of War.

Third, that he violated the Act of March 2, 1867, which, among other things, directed that the military orders and instructions of the President and Secretary of War should be issued through the General of the army, by attempting to induce General Emory, the commander of the troops around Washington, to disregard this law and take his orders immediately from the President.

And fourthly, that he committed high misdemeanors in his speeches denouncing the Thirty-ninth Congress, and declaring it to be a Congress of only a part of the "States."

These charges were presented by the managers of the impeachment to the Senate on March 5th, the day upon which the Senate organized itself as

The charges

presented to

the Senate.

a Court of Impeachment, by assembling under the presidency of the Chief Justice of the United States, who administered the oath to the Senators as members of the court. The court directed its sergeant-at-arms to serve its summons upon the President to appear before its bar and answer to the charges preferred against him, and then adjourned to the 13th of the month. On the 13th the court reassembled. The chief clerk read the return of the sergeant-at-arms to the writ of summons, to the effect that he had served the writ upon the President at seven o'clock

The President's

appearance

entered by

his counsel.

P.M. of Saturday, the 7th day of the month; and the President entered his appearance by his counsel, Henry Stanbery, Benjamin R. Curtis, Jeremiah S. Black, William M. Evarts and Thomas A. R. Nelson, and asked for forty days for the preparation of his answer to the charges. The first four of these men were the most noted constitutional lawyers of the country, and the fifth was one of Mr. Johnson's loyal Tennessee friends and his chief ally in the Union cause in Tennessee during the years of sorest trial. Mr. Stanbery had resigned the office of Attorney-General of the United States in order to take the leading part in the defence of the President.

The managers on the part of the House very ungenerously objected to giving the President any time at all for the preparation of his answer

The President's answer

to the complaint.

further than what he had had since the service of the summons upon him, but the Senate resolved to give him ten days, that is until March 23d. Upon the latter day the Senate resumed its sitting as a Court of Impeachment, and the President's counsel appeared with his answer to the charges made against him.

An incident occurred at this point in the history of the procedure, which should be related, although it interrupts somewhat the thread of

The withdrawal of

Mr. Black from the

President's counsel.

the narrative. It was the disappearance of Mr. Black from among the counsel for the President, and the appearance of Mr. Groesbeck in his place. It was the gossip among the enemies of the President, and this gossip was sedulously spread abroad throughout the whole country by them, that Black on examining the case had become convinced of the President's guilt and had retired from the case for this reason, and for the further reason that he had become disgusted with the President's conduct. It did not become known until later that during this time Judge Black was counsel for a firm composed of one Patterson and one Marguiendo, which firm claimed a guano island in the West Indies, called Alta Vela, and that one of Judge Black's colleagues in the prosecution of the Patterson-Marguiendo claim, one J. W. Shaffer, procured a letter of the date of the 9th of March, 1868, that is one week after the House of Representatives had resolved to impeach the President, signed by General Benjamin F. Butler and approved by John A. Logan, J. A. Garfield, W. H. Koontz, J. K. Moorhead, Thaddeus Stevens, J. G. Blaine and John A. Bingham, some of them the most bitter among the President's enemies, which contained the statement that these gentlemen were clearly of the opinion that the citizens of the United States had the exclusive right to the guano beds of Alta Vela island, and an expression of their surprise that the President had not upheld this right by force against the claims of the Dominican Government to the island, and caused this letter to be placed in the hands of the President on the 16th day of March, and that on the 17th or 18th of March Judge Black had an interview with the President and urged him to send an armed vessel of the United States to Alta Vela to take possession of the island, and that the President, viewing this approach to him at this time as an attempt to take advantage of his situation, refused, and that on the next day, the 19th of March, Judge Black declined to appear further as the President's counsel in the impeachment trial.

It must have taken a good deal of self-control on the part of the President, in possession of all these facts, to keep them quietly to himself for more than a month from the time of Judge Black's retirement from his case, while his enemies were pointing the finger of a supposed triumphant scorn at him as being unworthy to have so honest a man as Judge Black among his counsel, and then to allow them to be given out only under provocation from the managers of the impeachment, taunting him with his treatment of Judge Black, and with Judge Black's withdrawal from his case.

But to return to the President's answer to the charges against him. Disregarding again legal verbiage and order, the President answered

The contents of the

President's answer.

substantially that Stanton's case was not affected by the Tenure-of-Office Act, and that he held his office, according to the Constitution and laws of the United States, and the wording of his commission, at the pleasure of the President; that even if Stanton's case were covered by the Act, the President was within his right and was not thereby committing any crime or misdemeanor at all, to so act as to make up an issue before the Supreme Court of the United States, whereby the constitutionality of the Act might be tested; that the authority given to General Thomas to act as Secretary of War ad interim was not an appointment nor an attempt to make an appointment, but was only a designation of a person to act temporarily until an appointment could be made by and with the consent of the Senate, a thing which the President was empowered to do by the Act of February 13th, 1795, still in force; that he had not entered into any conspiracy with Thomas or anybody else to force Stanton out of the War Office, or to seize the property and papers of the United States in the War Office, that he could not in fact do so, since Stanton was not lawfully in the War Office, and since the President of the United States was the ultimate lawful custodian of the property and papers of the United States in the War Office, but that his communications with Thomas were orders from the President to a subordinate officer, to whom the President gave no authority to use force for their execution, and who did not use any force in his attempts to execute them, the intention of the President only being, if his authority should be resisted by Mr. Stanton, to create an issue before the Supreme Court of the United States, and secure thereby a judicial determination of the rights and powers of the parties concerned, and not to do anything unlawful; that he had never undertaken to induce General Emory to take his orders immediately from himself in violation of the Act of March 2d, 1867, which provided that all of the military orders and instructions issuing from the President and the Secretary of War should pass through the hands of the General of the Army, but that he had only expressed to General Emory, as he had to Congress, his conviction that the Act was in violation of the Constitution, which latter conferred upon the President the Commandership-in-chief of the army and the navy; and finally, that his speeches were simply the expression of his opinions as a free citizen of the Republic, which right was guaranteed to him and to every other citizen by the Constitution of the country, and could not be made out in any way to have any of the qualities of a crime or a misdemeanor, and that his declaration that the Thirty-ninth Congress was a Congress of only a part of the "States" was intended by him in no other sense than that of an assertion that ten "States" of the Union were not represented in it, all of which ought to be so represented when they should send loyal men to take seats therein, and that he had never intended by this declaration to deny the validity of the acts of the Congress or its power to originate and adopt an amendment to the Constitution of the United States.

After the filing of this answer, the counsel of the President asked the Court of Impeachment for thirty days' time after the replication of the House of Representatives to this answer should be filed for the preparation of the President's case. But the managers on the part of the House again very ungenerously opposed giving them any time at all for this purpose. The debate over this point lasted until after the replication of the House was filed on the following day, that is on the 24th of March. The Court of Impeachment then decided to give them until March 30th, and ordered the trial to proceed on that day.

The replication filed by the House of Representatives, on the 26th, was

The replication of

the House to the

President's answer.

an exception to the answer of the President as insufficient, a denial of all the averments of the answer, a declaration of the guilt of the President of the high crimes and misdemeanors charged, and an offer to prove the same.

On the 30th, the trial opened with the fierce, not to say brutal, attack of Mr. Butler on the President. During the entire course of the

The trial.

Conduct of

the managers.

trial, from the 30th of March until the 16th of May, the managers followed a line of conduct which no impartial student of this day can fail to condemn, and which, even in that time of hostile passion against the President, lost to them a large measure of popular favor. They tried to prevail upon the Court of Impeachment to regard itself as a political body instead of a court, to renounce all limitations upon its powers, and to accept common rumors against the President as good evidence of his guilt. On the other hand, they objected to the introduction of evidence by the President to prove the purpose of his acts, and to show the advice upon which he had proceeded in their commission. They succeeded in inducing the Court of Impeachment to refuse to hear the President's evidence upon these points, although the Chief Justice had ruled in favor of its reception. There is no doubt that their cause was greatly weakened in the public esteem by this manifestation of partisanship on the part of the court.

The evidence in the case showed no conspiracy with Thomas to do anything, and no orders to him to use any force in what he was

The evidence

in the case.

authorized to do, and no attempt to induce General Emory to violate any law or any orders received from or through the General of the Army or any other legal authority. The case, thus, rested chiefly upon the question as to whether the President had violated the Tenure-of-Office Act; and the transactions of the President in regard to this subject were matters of record.

When one, at this lapse of time from the events, peruses the calm, dignified, convincing and masterful arguments of the President's counsel, and compares them with the passionate, partisan

The argument.

harangues of the managers, it is very difficult to understand how the latter could have made any serious impression at all. There was only a single point upon the law seemingly involved in the case in regard to which they held the better reason. That was the claim on their part that the President had no right to violate an act of Congress for the purpose of testing its validity before the United States courts, or for any other purpose. They argued with much force that to allow the President the power to violate an act of Congress, or to omit to execute an act of Congress, in order to make up an issue before the courts upon the question of its constitutionality, would be virtually to attribute to the President the once hated royal power of suspending the law at the pleasure of the Executive. They contended that the veto power was placed in the hands of the President for the purpose of allowing him to be heard at the proper time, and to act at the proper time, in regard to the passage of any law, and that no other power was given him in relation to the subject; that after he had exhausted this power, he was bound to execute the legislation of Congress, and could not suspend it or violate it for any purpose whatsoever; and that the constitutionality of any of the acts of Congress could be raised before the courts only by persons not charged with the execution of the law and having such interests affected by the act in question as would warrant a judicial procedure.