Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The President's
appearance
entered by
his counsel.

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.

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.

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.

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.

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.

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.

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.

Judge Curtis was so influenced by the consideration that to claim such a power for the President would give him a double veto upon all of the acts of Congress, a veto when acting as a part of the legislature in the enactment of law, and then a purely executive veto which could be overcome only by an adverse judicial decision, that he expressed his contention on the subject in very cautious language. He declared that the President claimed no such general power as that, but he said "when a question arises whether a particular law has cut off a power confided to him by the people through the Constitution, and he alone can raise that question, and he alone can cause a judicial decision to come between the two branches of the Government to say which of them is right, and after due deliberation, with the advice of those who are his proper advisers, he settles down firmly upon the opinion that such is the character of the law, it remains to be decided by you, Senators, whether there is any violation of his duty when he takes the needful steps to raise that question and have it peacefully decided."

The great lawyer refused thus to commit himself upon this fundamental question of constitutional law. And well he might, for to recognize any such power in the President would be to enable him to rule with such arbitrariness as to upset the principles and practices of all free government. The President can constitutionally defend his prerogatives with the veto power, a power which nothing short of a two-thirds majority of both Houses of Congress can overcome, and he has no other power of defence confided to him by the Constitution. He must execute the laws passed over his veto upon matters which in his opinion touch his executive prerogatives, just the same as upon all other matters, and if persons not connected with the administration of the laws do not call such measures in question before the courts, the remedies provided by the Constitution for the people of the United States are either the election of members of Congress who will repeal the enactments, or else the amendment of the Constitution so as to repeal them. It was, however, a question whether, in showing the sole purpose of making an issue before the courts, the President would not clear himself of any criminal intent. Happily his case did not require this, as was demonstrated by his counsel and by Senators Trumbull and Fessenden in their opinions.

The law governing the President's case was perfectly clear to anyone who could divest himself of political prejudice and of personal

The law in
the case.

It will be remembered that in the Tenure-of-Office bill as it originated in the Senate the members of the Cabinet were entirely excepted from its operation; that the House in passing the bill included them; that the Senate would not agree to their inclusion; that the bill was then sent to a conference committee; that this committee invented the compromise contained in the proviso; that this proviso was understood to give to each President the power to choose his own Cabinet officers once during his term, and therefore to remove any Cabinet officer not originally appointed by him, but holding under a commission from a former President, and remaining in office only by the sufferance of the existing President; that this was especially the true meaning of the proviso in regard to those Cabinet officers then in office, but who had been appointed and commissioned by Mr. Lincoln during his first term to hold during the pleasure of the President; and that it was upon this explanation of the meaning of the proviso that the Senate voted the resolution of the conference committee.

From all this it is entirely clear that the President had the legal power to remove Mr. Stanton, no matter whether the Tenure-of-Office Act was constitutional or not, simply because his case was excepted by the proviso in the first article in the Act from the operation of the Act, and was left to the operation of the laws in existence at the time the Act was passed. There is little question now that that Act was not in accordance with a fair interpretation of the Constitution, but it was not at all necessary to hold that view in order to clear the President of the accusation of having violated the Constitution and the laws of the land.

The law in reference to the ad interim appointment, or designation, of General Thomas was equally plain to the impartial eye. The Constitution provides only for vacancies that may happen during the recess of the Senate, and empowers the President to fill all such by granting commissions which shall expire at the end of its next session. By an act of May 8th, 1792, Congress empowered the President, in case of the death, sickness, or absence from the seat of government, of the Secretary of State, the Secretary of the Treasury, or the Secretary of War, whether these events should occur during a session, or a recess, of the Senate, "to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness should cease."

Another act of Congress of February 13th, 1795, empowered the President, in case of vacancy from any cause in the offices of Secretary of State, Secretary of the Treasury, or Secretary of War, happening either during a recess or a session of the Senate, "to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed or such vacancy be filled," provided, however, that no one vacancy should be supplied in that manner for a longer time than six months.

It will be seen that neither of these statutes provided for the temporary filling of vacancies in any of the Departments, except those of State, the Treasury, and War. In practice, however, the Presidents have followed the analogies of the law of 1795, when it became necessary, in their opinion, to make a temporary designation in the other Departments. On the 22d of September, 1862, President Lincoln appointed J. B. L. Skinner Postmaster-General ad interim. It was Mr. Lincoln himself who called the attention of Congress to the fact that he had no literal legal authority for this, and who on January 2d, 1863, asked Congress to extend the Act of May 8th, 1792, so as to cover the cases of the other Departments, and empower the President to make ad interim appointments to fill vacancies in these Departments happening on account of death, sickness, or absence from the seat of government. Why the President did not ask for the extension of the Act of February 13th, 1795, which covered all vacancies happening from whatever cause, instead of the Act of 1792, which covered those only which might happen from death, sickness, or absence from the seat of government, we do not know. We only know that in January, 1863, both the President and Congress were greatly pressed by the exigencies of the war, and did things generally in haste and without much consideration. In answer to the President's suggestion, Congress passed the Act of February 20th, 1863, extending the Act of 1792 so as to cover all the executive Departments in the cases of vacancy provided for in that Act, viz., by cause of death, sickness, or absence from the seat of Government—adding resignation—and limiting the President, however, in these appointments to persons already officers in one or the other of the Departments, and providing that no one vacancy should be so supplied for a longer period than six months. The vacancies which might happen from expiration of term or by removal were not at all provided for by the Act of 1863; and as the Act of 1863 did not expressly repeal the Act of 1795, but only declared that "all acts and parts of acts inconsistent with this act are hereby repealed," the Act of 1795 remained in force as to all vacancies caused by expiration of term or by removal, whether happening during a recess or a session of the Senate.

Neither did the Tenure-of-Office Act of 1867 repeal the Act of 1795 in regard to first vacancies happening among the Secretaries of Departments by other causes than those provided for in the Act of 1863, either expressly or by implication, since these first vacancies were expressly excepted from the operation of the Act of 1867, by the proviso attached to the first article. And even if it should be held that the Act of 1867 did repeal that of 1795 entirely, yet, in that it did not forbid the President to make ad interim appointments in the cases where a Secretary's term expired, or a Secretary was lawfully removed by him, the President's designation of Thomas could not be considered as a violation of law but only as an act without warrant of law, the very kind of an act committed by Mr. Lincoln in his appointment of Skinner as Postmaster-General ad interim in 1862, and committed by other Presidents in other cases.

The managers made much of the argument that the President had recognized the validity of the Tenure-of-Office Act in suspending Stanton the preceding August, and reporting his suspension to the Senate, and in notifying the Secretary of the Treasury of the suspension, as provided in the Act, and asserted that he was therefore estopped from denying its constitutionality. But while it can be easily shown that these acts of the President did not at all militate against his claim that other parts of the statute were unconstitutional, still this was not at all necessary to the President's defence, under the view here advanced of the relations between the Acts of 1867, 1863, and 1795. It made no difference, under this view, whether the Act of 1867 was, or was not, constitutional and valid. In either case the President had violated no law, either constitutional or statutory.

The fact is that Mr. Stanton and those who abetted him were the violators of law. Every official act which he committed after receiving

Mr. Stanton's
violation of law.

It is now known that during the trial some of these men expressed to one of the President's counsel the belief that Mr. Johnson could not be

The nomination of
General Schofield to
be Secretary of War.

Fifty-four Senators from the twenty-seven "States" represented constituted the membership of the Court of Impeachment under the

The vote upon
impeachment.

The truth of the whole matter is that, while Mr. Johnson was an unfit person to be President of the United States—which may be also affirmed

The truth of
the matter.

So soon as the Court of Impeachment pronounced its acquittal of the President, Mr. Stanton addressed to the President a letter announcing

The abdication of Stanton.

The Senate now confirmed the nomination of General Schofield to be Secretary of War. The General at once accepted the appointment and

Schofield's confirmation
as Secretary of War and
his acceptance of the office.

Some of Stanton's friends have tried to make out that but for Stanton's resistance and the impeachment, and its nearness to success, Johnson would have appointed a tool of his own to the War Office and have rode rough-shod over the laws of the land, and that he was frightened out of this purpose, and frightened into an implied agreement with certain Senators and General Schofield that the Reconstruction laws should be executed as Stanton understood them, and not as the President understood them. There is little ground for any such assumptions. There is certainly none in the character of the men whom the President asked to take the War Office, Grant, Sherman and Ewing; and it must be remembered that through Mr. Stanbery, in the case of Mississippi vs. Johnson, he had long before announced to the Southerners that his opposition to the Reconstruction Acts ceased with his unsuccessful veto of them, and that he should execute them both in letter and in spirit. It was Republican Senators who suggested to the President's counsel the nomination of General Schofield, a man entirely friendly with the President and acceptable to him. Neither the President nor the President's counsel approached any Senator with the proposition. It was the Republican Senators who were frightened, rather than the President or his counsel. These Senators knew that the law and the evidence were with the President, and that the Republican party was on trial, as much so as the President; and they knew that, if the Republican Senate should, upon the showing made by the President's counsel of the law and the evidence in the case, convict the President and remove him from office, the party would stand arraigned before the people for having destroyed the constitutional balance between the executive and the legislature in order to gain a partisan end. They recognized the dilemma into which the hot-headed leaders of the party in the House of Representatives had, by their hasty impeachment procedure, brought the party, and they were very much relieved to secure any understanding with the President's counsel whereby the chance of averting the catastrophe to the party, as well as to the country, might be increased. The suspicion that Mr. Stanton was playing his part for the purpose of securing the Republican nomination for the presidency in 1868, rather than from any motives of disinterested patriotism, has about as little foundation as has the theory of salutary terror, produced by the impeachment, controlling the President's subsequent actions against his own preconceived plans and purposes. Both of these speculations are no valid parts of the history of this great transaction. What we have as certain facts are that the judgment was an acquittal, that it was rendered in accordance with law and evidence, and that it preserved the constitutional balance between the executive and the legislature in the governmental system of the country; and that for this the judgment of history coincides with the judgment of the court.