THE IMPEACHMENT OF THE PRESIDENT.
1. In the preceding chapters we have traced step by step the development of the theory of reconstruction and the formulation of the reconstruction acts of the 39th and 40th Congresses. We have noticed the wide divergence between the ideas of Johnson and those of the Republican party, and have seen that the whole program was carried over the vetoes of the President by the overwhelming Republican majority. But the contest between the President and Congress, which had been embittered by so many personalities on both sides, did not come to an end with the passage of legislation which fully embodied the congressional theory, but continued until it culminated in a desperate effort of the Republican party to remove Johnson from the presidential chair.
The very conditions under which he assumed the presidential office rendered his position difficult, and made estrangement of the executive and legislative departments an easy matter. On the particular issue of reconstruction Lincoln and Congress were at variance; but the tragic nature of Lincoln’s death caused this matter to be forgotten in the overwhelming sense of the loss of the man who had safely guided the government through the most trying years of its history. But, for a Congress so extremely Northern and Republican, with antagonisms and prejudices which only fratricidal wars can create, to be compelled to work with a man not only a Southerner, but practically a Democrat, must of necessity bring about a crisis.
Moreover, the flourishing condition of the spoils system served to aggravate the antagonism between the two departments. History shows that, while selfish motives are always indignantly repudiated by politicians, they account for many of the more important political movements of the century. With the immense federal patronage at his disposal, Johnson realized that he had a powerful instrument of revenge at hand, and he did not hesitate to use it. At a time when every congressman was under the strongest pressure from his home constituency, inability to gratify the demands of the voracious office-seeker was indeed a cause for bitterness.
We can thus easily distinguish three causes which, working together upon a strongly Republican Congress, resulted in the attempted removal of the President. First, the antagonism arising from different fundamental political ideas, the strained conditions of the times, and the woeful tactlessness of Johnson; second, the almost morbid yet natural fears of the Republican party regarding the sometime seceded States; third, the anger aroused by the use of federal patronage to further the interests of the President.
2. Impeachment, however, was too serious a matter for Congress to enter upon lightly. Art. II, sec. iv, of the Constitution provides for impeachment as follows: “The President, Vice-President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Obviously the President had not committed and would not commit anything that could legally be called treason or bribery: Had he done or would he do anything which could be construed as a high crime or misdemeanor? The answer largely depended upon the person’s point of view. The extreme radical held that Johnson’s whole career as President could be considered as an attempt treasonably to reinstate the Southern States in a position of power. The more moderate Republicans could not be made to acquiesce in this view, and it soon became evident that Johnson would never be brought to trial on impeachment, unless he could be made to violate some clearly defined law. The radical element, however, did not easily accept this situation. By every means possible they tried to force the moderates into line. The whole past career of the President was critically studied, and every act which could by any possible means be construed as a breach of presidential duty was put in the list of offences for which he should be tried. But all to no purpose. Something more tangible must be produced, or the trial would never occur.
3. Notwithstanding the evident indisposition on the part of many to proceed to extreme measures, the radicals determined to force matters to an issue, if possible. Under Mr. James M. Ashley of Ohio as leader, the attack was begun shortly after the opening of the second session of the Thirty-ninth Congress. On December 17, 1866, Mr. Ashley moved to suspend the rules so as to permit him to report a resolution from the Committee on Territories. His motion was not agreed to, and the first step towards impeachment was therefore a failure. The motion is of interest, however, as evidencing the deliberate intention of the radicals to discover some act which would justify impeachment. The resolution provided for a select committee who were to inquire “whether any acts have been done by any officer of the Government of the United States which in contemplation of the Constitution are high crimes or misdemeanors, and whether said acts were designed or calculated to overthrow, subvert or corrupt the Government of the United States, or any department thereof.”
Again on January 7 resolutions looking to impeachment were offered by Mr. Ashley and two other persons. Mr. Ashley’s resolution was adopted, while the others were referred to the Committee on Reconstruction and the Committee on the Judiciary. The resolutions which were referred gave as a reason for impeachment, “the purpose of securing the fruits of the victories gained on the part of the republic during the late war, waged by rebels and traitors against the life of the nation”—a decidedly strong statement to make, in view of the predominance of the Republican party at the time, and its ability to render nugatory any attempt of the President to take away from the republic “the fruits of the victories gained.” Exaggerated expressions of this sort show how far the contest had degenerated from a conflict of opinions as to the constitutional position of the revolted States, into a personal warfare. Another significant reason for impeachment given in these resolutions was, that it was necessary in order to give “effect to the will of the people as expressed at the polls during the recent elections by a majority numbering in the aggregate more than four hundred thousand votes.” It has already been shown how disastrously the campaign resulted for Johnson, and how it furnished popular sanction for the radical reconstruction legislation which was passed over the presidential vetoes. But, to assume that a popular expression of disapproval of the President’s political program made impeachment a moral necessity, was to assume a novel position. It was also declared in these resolutions that the President was to be impeached for the high crimes and misdemeanors “of which he is manifestly and notoriously guilty, and which render it unsafe longer to permit him to exercise the powers he has unlawfully assumed.”
These expressions seeming to be too indefinite, the specific charges submitted by Mr. Ashley met with more favor, and were accordingly adopted. These charges centered about an alleged “usurpation of power and violation of law” which was to be found in corrupt uses of the appointing, pardoning, and veto powers, improper disposition of public offices and corrupt interference in elections. These were clinched again by the general charge that the President had “committed acts which, in contemplation of the Constitution, are high crimes and misdemeanors,”—a charge obviously introduced to include any points which might in the future be made against him.
4. As the event proved, the attempt to bring matters to a successful issue in the 39th Congress was a failure. The Committee on the Judiciary went to work vigorously, calling many witnesses and collecting as much material as possible; but on the 28th of February it reported, with only one dissenting, voice, that in spite of all its efforts not enough testimony had been gathered to warrant any report beyond a recommendation that the investigation be continued. The ninth member of the committee, Mr. Rogers of New Jersey, reported emphatically that a careful examination of the subject had convinced him that “there is not a particle of evidence to sustain any of the charges,” and that “the case is wholly without a particle of evidence upon which an impeachment could be founded.” He further declared that but little of the testimony taken would be admitted in the courts, and that the whole matter should be dropped, as it would certainly end “in a complete vindication of the President.” Logically, the standpoint of Mr. Rogers was a correct one. From a strictly legal view of the case, there was very serious doubt as to the advisability of attempting impeachment; but the opponents of the President counted upon their large majority to force the matter, and the line of action recommended by the majority of the committee was adopted.
As has been seen, the 40th Congress assembled immediately upon the adjournment of the 39th; and on March 7, 1867, the new Judiciary Committee was authorized to proceed with the investigation, and to continue it during any recess the House might take. By another resolution agreed to March 29, the committee was requested to report immediately upon the reassembling of Congress, which was to be in the following July, if political conditions seemed to require it.[180]
The committee accordingly continued its investigations, but, though the radicals felt sure that it was composed of men who would favor impeachment, it at first reported by a majority of five to four against impeachment. A recommitment resulted in the conversion of one member of the committee[181] to impeachment views; and on November 25 Mr. Boutwell, of Massachusetts, reported from the committee a resolution impeaching the President for high crimes and misdemeanors.
5. The debate on this resolution was entered upon in December, 1867, and was marked by the effort on the part of the radicals to support a most indefinite and general charge. In spite of the thoroughness of the investigation of the Judiciary Committee, in which neither time nor expense had been spared, the attitude of the moderates was justified. Nothing had been unearthed which from the legal standpoint could be considered a high crime or misdemeanor. Failing in this, Mr. Boutwell assumed the ground that the evidence showed that President Johnson had been deliberately using his office to bring back, so far as possible, the Democratic party into power, and that his efforts to restore the insurrectionary States to their former power had been in the interest of the rebellion.
Although most Republicans at this time could not believe that the inhabitants of the Southern States were sincere in their protestations of a desire to lay aside all differences and once more become loyal citizens, there were many who could not agree to Mr. Boutwell’s definition of high crimes and misdemeanors; and these moderate Republicans, aided by the Democrats, defeated the resolution by a vote of one hundred and eight to fifty-seven.[182] The attempt to impeach without definite legal charges had failed.
But the President soon gave the House the very opportunity it desired. While the direct attack upon the President was being carried on by means of the effort to impeach him, an indirect attack was made by the legislative limitation of his powers. One of the cries of alarmists had been that there was danger that the President might in some way take advantage of his constitutional position as commander-in-chief of the army and navy, so as to injure the government and advance his own interests. Some went even farther and declared that he designed with the aid of the army to overthrow the government, and place the United States in the power of the rebels. Such charges, viewed from the standpoint of history, seem too absurd for consideration, but during the reconstruction period the feverish condition of the country made possible the acceptance of almost any startling rumor.
6. But even those who did not apprehend that Johnson would use the army for any improper purpose, were willing to limit his power and prestige by depriving him of his military authority; and this was accordingly done by a section introduced into the army appropriation bill.[183] This section required all orders to the army to be made through the General of the Army, thus practically making his approval of them necessary. It also prevented the President or the Secretary of War from removing, suspending or relieving from command the General of the Army, and even forbade his being assigned for duty away from headquarters, except at his own request. This had the effect of taking away from the President all his constitutional powers as commander-in-chief. As the section was put as a rider on an appropriation bill and a veto must cover the whole bill, Johnson contented himself with a simple protest and returned the act with his signature.[184]
7. The attack upon the civil powers of the President was made through the Tenure-of-Office Act.[185] As the violation of this act was the ground of the most serious charge in the impeachment trial, a somewhat detailed study of its provisions, and of the views expressed by the President in his veto of it, is advisable. The bill provided that “every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate,” and every person so appointed in the future, should be entitled to hold such office until a successor should have been appointed in like manner, that is to say, with the advice and consent of the Senate. The only liberty of action allowed the President was during the recess of the Senate, when he was permitted to suspend an officer until the next meeting of the Senate, and appoint a pro tempore official. Within twenty days after the meeting of the Senate, however, he was required to give his reasons for the suspension. If the Senate approved of the removal, a permanent appointment was to be made; if they refused to concur, the suspended officer was immediately to resume his duties. Any violation of this act by the President was made an impeachable offense, by the declaration that “every removal, appointment, or employment made, had, or exercised, contrary to the provisions of this act * * * are hereby declared to be high misdemeanors.” The other provisions were of minor importance, and do not require notice here.
The veto message of the President was a calm, dignified and judicial discussion of the constitutionality of the bill, and was in every way a creditable document, sustaining fully the high character of his previous vetoes. He called attention to the fact that the whole question of the authority of the President in cases of removal from office had been discussed thoroughly in Congress as early as 1789, and decided in favor of the President. He quoted Madison’s argument to prove that all executive power, except what is specifically excepted, is vested in the President, and that as no exception was made as to the power of removal, it must be vested in him. He also cited many possible cases, in which it would be absolutely necessary for the President to possess the power of removal.[186] A decision of the Supreme Court was referred to,[187] in which it was observed that both the legislative and the executive department had assumed in practice that the power of removal was vested in the President alone. When, for instance, the Departments of State, War and the Treasury were created in 1789, provision was made for a subordinate who should take charge of the office “when the head of the Department should be removed by the President of the United States.” Story, Kent and Webster were all quoted as affirming the same legislative construction of the Constitution. The great practical value of the power during the Civil War was noticed, and its present and future necessity strongly urged; and the message closed with an earnest appeal to Congress not to violate the original spirit of the Constitution.
8. The passage of the bill over the veto placed Johnson in a situation in which a collision was almost sure to come. As the chief executive of the country he was charged with the duty of carrying out the provisions of the reconstruction acts, notwithstanding his strong personal repugnance to them. Under the advice of Attorney-General Stanbery he had construed the acts literally, and he had thus frustrated in part the object of the legislation. But the co-operation of the army was necessary, and unfortunately for President Johnson, the Secretary of War, Mr. Stanton, strongly opposed his views, and conducted himself as far as possible in accordance with the wishes of the congressional majority. The continued friction between the President and the Secretary of War seemed to President Johnson to necessitate Stanton’s retirement, but repeated hints to that effect were not recognized by the latter. Finally, on August 5, 1867, the President informed him that “public considerations of a high character constrained” him to say that his resignation would be accepted. The Secretary’s prompt reply was that “public considerations of a high character” constrained him not to resign until the next session of Congress. A week later, August 12, the President formally suspended him and appointed General Grant Secretary ad interim.[188] Stanton then submitted “under protest to superior force.”
When Congress met in December the President reported his suspension of Stanton, and after long discussion the Senate, on January 13, 1868, refused to concur.[189] When informed of this action of the Senate, General Grant immediately turned over the Secretary’s office to Stanton, thus definitely committing himself to the congressional interpretation of the law. Grant’s action was a sore disappointment to the President. Johnson had refused to accept the Tenure-of-Office Act as constitutional, and had purposed to make this a test case. In the correspondence which passed between him and General Grant after the latter’s acquiescence in the action of the Senate, Johnson claimed that it was understood that Grant was either to refuse to give up the office to Stanton, or, if he should be unwilling to take so prominent a part in the contest, to resign and permit the office to be filled with some one whose views agreed with the President’s, so that Stanton, if he sought to regain the office, might be compelled to resort to the courts. In this way the constitutionality of the act could be tested. Johnson’s statements as to the understanding with Grant were substantially endorsed by the Cabinet, on the strength of a conversation between Johnson and Grant at a cabinet meeting. Grant, however, firmly denied that there was any such agreement or understanding.[190]
A few days after Stanton had resumed his duties as Secretary of War, the President sought to put in operation a plan for rendering his possession of the office ineffective. On January 19, he ordered General Grant, in charge of the army, to disregard all of Stanton’s orders unless he knew directly from the President that they were the latter’s orders.[191] The order was repeated in writing at Grant’s request on January 29. On the following day, Grant refused to carry it out, declaring that an order from Secretary Stanton would be considered satisfactory evidence that it was authorized by the Executive.[192] This correspondence between Johnson and Grant was subsequently called for by Congress, and an attempt was made to frame articles of impeachment on the ground that the President was instructing Grant to disobey the orders of his superior. Careful examination of the legal bearings of the question convinced a majority of the Reconstruction Committee that nothing would be gained by inserting charges based on this correspondence. The President had shrewdly worded his communication so as not to violate any legal technicalities.[193]
Having failed in his first two attacks upon Stanton, Johnson finally resorted to a still stronger measure. Completely ignoring the Tenure-of-Office Act, he addressed a letter to Stanton, February 21, removing him from office, and directing him to transfer all the property of the War Department to Adjutant General Lorenzo Thomas. Thomas, having received his appointment as secretary ad interim, proceeded to the office and formally demanded possession. Stanton avoided giving a direct answer to the demand, and on the following morning Gen. Thomas was arrested for violation of the Tenure-of-Office Act. After bail had been procured he renewed his demand, but Stanton ignored his appointment. Several plans were devised by the President and Thomas’ lawyers to make the contest center around Thomas, but the congressional managers decided to drop the matter, and concentrate their energies upon a presidential impeachment.[194]
The last step of the President opened the way for immediate action. Violation of the Tenure-of-Office Act was explicitly declared an impeachable offense, and as to the flagrancy of its violation by the order of February 21 there could be no question. Many of the wavering Republicans now had their doubts of the expediency of impeachment cleared away, and on February 24 the resolution formally impeaching the President of “high crimes and misdemeanors in office” was passed.[195]
9. On March 2, the first nine articles of impeachment were adopted; two additional articles were added on the 3d; and on the 4th they were presented to the Senate. On March 30, the trial began. The articles charged the President with high crimes and misdemeanors in respect of the order for the removal of Stanton, the appointment of Thomas as Secretary of War ad interim, the attempt to hinder Stanton in the exercise of his lawful duties, the wilful violation of the Tenure-of-Office Act, the attempt to seize the properties of the War Department, the attempt unlawfully to disburse moneys through the appointment of Thomas, an attempt to make General Emory violate the Tenure-of-Office Act, the attempt to injure the good reputation of the legislative department by speeches delivered at various specified places, and his determined opposition to the reconstruction policy as outlined in the various acts of Congress.[196]
These articles were very sweeping, and were designed as a sort of drag-net to include all of the complaints which could possibly be brought against the President. Yet the House of Representatives, previous to the attempted removal of Secretary Stanton, after the most searching examination into the President’s record, had failed to find sufficient ground on which to base an impeachment. Therefore the only charges that deserved really serious attention were those growing out of the violation of the Tenure-of-Office Act. In the President’s reply to the charges he explains his attitude on this matter. In his opinion the Tenure-of-Office Act was unconstitutional. The very fact that he as Executive was legally held responsible for the acts of the Secretary of War made it necessary for him to exercise the power of removal or of indefinite suspension. He had at first complied with the letter of the act in order to avoid a further struggle with Congress; but, having been frustrated by Congress in his design, the only alternative that remained to him, in view of his strained relations with the Secretary of War, was the latter’s unconditional removal.
10. The President’s case, as to the constitutionality of his action and the unconstitutionality of the Tenure-of-Office Act, was strong, and was presented with great ability by the President’s counsel. But, from the very beginning, it was obvious that the case would be determined mainly on political lines.
If the Republican party could hold all the Republican Senators to the decision of the majority, a verdict of guilty was assured. Consequently, the strongest efforts were made to bring all into line. But some proved recalcitrant. The prospect that the President of the United States was to be forced out of his office as a punishment for his opposition to the Legislative Department was not edifying. Hitherto the presidential office had possessed great dignity. To be sure, Johnson’s conduct had gone far towards the destruction of that dignity, but a conviction on impeachment charges would drag down the office immeasurably. Some of the Senators also realized that the tendency of Congress during the whole struggle had been towards an encroachment upon the executive powers, and that there was serious danger that the balance of the governmental system might be destroyed. While, therefore, they strongly disapproved of Johnson’s conduct, they felt unwilling to expose the government to the shock which would accompany his removal from the presidential chair. The trial proceeded slowly and the case was ably contested by counsel on both sides; but the prosecution was practically brought to a close on May 16, by the vote which was taken on the eleventh article of impeachment. This article was chosen for the first test of strength, because it embodied those charges which had caused the most feeling, and which were best calculated to cause Senators to cast aside judicial restraints and vote according to their prejudices. But, seven Republicans refused to line themselves with the radical majority. They and the twelve Democratic Senators voted for acquittal. Thirty-five Republicans voted “guilty,” but this lacked one of the needful two-thirds majority. Ten days later another vote was taken on the second and third articles, with the same result. The fight was then given up, and the court of impeachment was declared adjourned.
11. It was a fortunate thing for the country that the attempt failed. The convulsions of the Civil War had unsettled most seriously our conceptions of the relations of the three co-ordinate departments of the government. Lincoln had not hesitated to assume powers totally outside the ordinary functions of the Executive. The country had sustained him in this; but, with the return of peace, and with Johnson in the presidential chair, Congress had determined to resume its powers. Again the country responded, but the violence of the reaction caused the pendulum to swing too far in the opposite direction; and our institutions were placed in greater danger than the were in before. But, just as the Civil War had settled the question as to the indissolubility of the Union, so no less emphatically did the failure of the impeachment trial confirm the equality of the three departments of our government.