American politics (non-partisan) from the beginning to date

by Thomas V. Cooper; Hector T. Fenton

Impeachment Trial of Andrew Johnson.

[^[33]]The events which led to the impeachment of President Johnson, may be briefly stated as follows: On the 21st of February, 1868, the President issued an order to Mr. Stanton, removing him from office as Secretary of War, and another to General Lorenzo Thomas, Adjutant-General of the Army, appointing him Secretary of War ad interim, directing the one to surrender and the other to receive, all the books, papers, and public property belonging to the War Department. As these orders fill an important place in the history of the impeachment, we give them here. The order to Mr. Stanton reads:

“By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon the receipt of this communication. You will transfer to Brevet Major-General Lorenzo Thomas, Adjutant-General of the Army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other public property now in your custody and charge.”

The order to General Thomas reads:

“The Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office. Mr. Stanton has been instructed to transfer to you all the records, books, and other public property now in his custody and charge.”

These orders having been officially communicated to the Senate, that body, after an earnest debate, passed the following resolution:

“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.”

The President, upon the 24th, sent a message to the Senate, arguing at length that not only under the Constitution, but also under the laws as now existing, he had the right of removing Mr. Stanton and appointing another to fill his place. The point of his argument is: That by a special proviso in the Tenure-of-Office Bill the various Secretaries of Departments “shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice of the Senate.” The President affirms that Mr. Stanton was appointed not by him, but by his predecessor, Mr. Lincoln, and held office only by the sufferance, not the appointment, of the present Executive; and that therefore his tenure is, by the express reading of the law excepted from the general provision, that every person duly appointed to office, “by and with the advice and consent of the Senate,” etc., shall be “entitled to hold office until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided.” The essential point of the President’s argument, therefore, is that, as Mr. Stanton was not appointed by him, he had, under the Tenure-of-Office Bill, the right at any time to remove him; the same right which his own successor would have, no matter whether the incumbent had, by sufferance, not by appointment of the existing Executive, held the office for weeks or even years. “If,” says the President, “my successor would have the power to remove Mr. Stanton, after permitting him to remain a period of two weeks, because he was not appointed by him, I who have tolerated Mr. Stanton for more than two years, certainly have the same right to remove him, upon the same ground, namely that he was not appointed by me but by my predecessor.”

In the meantime General Thomas presented himself at the War Department and demanded to be placed in the position to which he had been assigned by the President. Mr. Stanton refused to surrender his post, and ordered General Thomas to proceed to the apartment which belonged to him as Adjutant-General. This order was not obeyed, and so the two claimants to the Secretaryship of War held their ground. A sort of legal by-play then ensued. Mr. Stanton entered a formal complaint before Judge Carter, Chief Justice of the Supreme Court of the District of Columbia, charging that General Thomas had illegally exercised and attempted to exercise the duties of Secretary of War; and had threatened to “forcibly remove the complainant from the buildings and apartments of the Secretary of War in the War Department, and forcibly take possession and control thereof under his pretended appointment by the President of the United States as Secretary of War ad interim;” and praying that he might be arrested and held to answer this charge. General Thomas was accordingly arrested, and held to bail in the sum of $15,000 to appear before the court on the 24th. Appearing on that day he was discharged from custody and bail; whereupon he entered an action against Mr. Stanton for false imprisonment, laying his damages at $150,000.

On the 22d of February the House Committee on Reconstruction, through its Chairman, Mr. Stevens, presented a brief report, merely stating the fact of the attempted removal by the President of Mr. Stanton, and closing as follows:

“Upon the evidence collected by the Committee, which is hereafter presented, and in virtue of the powers with which they have been invested by the House, they are of the opinion that Andrew Johnson, President of the United States, should be impeached of high crimes and misdemeanors. They, therefore, recommend to the House the adoption of the following resolution:

“Resolved, That Andrew Johnson, President of the United States be impeached of high crimes and misdemeanors.”

After earnest debate, the question on the resolution was adopted, on the 24th, by a vote of 126 to 47. A committee of two members—Stevens and Bingham—were to notify the Senate of the action of the House; and another committee of seven—Boutwell, Stevens, Bingham, Wilson, Logan, Julian, and Ward—to prepare the articles of impeachment. On the 25th (February) Mr. Stevens thus announced to the Senate the action which had been taken by the House:

“In obedience to the order of the House of Representatives we have appeared before you, and in the name of the House of Representatives and of all the people of the United States, we do impeach Andrew Johnson, President of the United States, of high crimes and misdemeanors in office. And we further inform the Senate that the House of Representatives will in due time exhibit particular articles of impeachment against him, to make good the same; and in their name we demand that the Senate take due order for the appearance of the said Andrew Johnson to answer to the said impeachment.”

The Senate thereupon, by a unanimous vote, resolved that this message from the House should be referred to a select Committee of Seven, to be appointed by the chair, to consider the same and report thereon. The Committee subsequently made a report laying down the rules of procedure to be observed on the trial.

On the 29th of February the Committee of the House appointed for that purpose presented the articles of impeachment which they had drawn up. These, with slight modification, were accepted on the 2d of March. They comprise nine articles, eight of which are based upon the action of the President in ordering the removal of Mr. Stanton, and the appointment of General Thomas as Secretary of War. The general title to the impeachment is:

“Articles exhibited by the House of Representatives of the United States, in the name of themselves and all the people of the United States, against Andrew Johnson, President of the United States, as maintenance and support of their impeachment against him for high crimes and misdemeanors in office.”

Each of the articles commences with a preamble to the effect that the President, “unmindful of the high duties of his office, of his oath of office, and of the requirements of the Constitution that he should take care that the laws be faithfully executed, did unlawfully and in violation of the laws and Constitution of the United States, perform the several acts specified in the articles respectively;” closing with the declaration: “Whereby the said Andrew Johnson, President of the United States, did then and there commit and was guilty of a high misdemeanor in office.” The phraseology is somewhat varied. In some cases the offense is designated as a “misdemeanor,” in others as a “crime.” The whole closes thus:

“And the House of Representatives, by protestation, saving to themselves the liberty of exhibiting at any time hereafter any further articles or other accusation or impeachment against the said Andrew Johnson, President of the United States, and also of replying to his answers which he shall make to the articles herein preferred against him, and of offering proof to the same and every part thereof, and to all and every other article, accusation, or impeachment which shall be exhibited by them as the case shall require, do demand that the said Andrew Johnson may be put to answer the high crimes and misdemeanors in office herein charged against him, and that such proceedings, examinations, trials, and judgments may be thereupon had and given as may be agreeable to law and justice.”

The following is a summary in brief of the points in the articles of impeachment, legal and technical phraseology being omitted:

Article 1. Unlawfully ordering the removal of Mr. Stanton as Secretary of War, in violation of the provisions of the Tenure-of-Office Act.—Article 2. Unlawfully appointing General Lorenzo Thomas as Secretary of War ad interim.—Article 3 is substantially the same as Article 2, with the addition that there was at the time of the appointment of General Thomas no vacancy in the office of Secretary of War.—Article 4 charges the President with “conspiring with one Lorenzo Thomas and other persons, to the House of Representatives unknown,” to prevent, by intimidation and threats, Mr. Stanton, the legally-appointed Secretary of War, from holding that office.—Article 5 charges the President with conspiring with General Thomas and others to hinder the execution of the Tenure-of-Office Act; and, in pursuance of this conspiracy, attempting to prevent Mr. Stanton from acting as Secretary of War.—Article 6 charges that the President conspired with General Thomas and others to take forcible possession of the War Department.—Article 7 repeats the charge, in other terms, that the President conspired with General Thomas and others to hinder the execution of the Tenure-of-Office Act, and to prevent Mr. Stanton from executing the office of Secretary of War.—Article 8 again charges the President with conspiring with General Thomas and others to take possession of the property in the War Department.—Article 9 charges that the President called before him General Emory, who was in command of the forces in the Department of Washington, and declared to him that a law, passed on the 30th of June, 1867, directing that “all orders and instructions relating to military operations, issued by the President or Secretary of War, shall be issued through the General of the Army, and, in case of his inability, through the next in rank,” was unconstitutional, and not binding upon General Emory; the intent being to induce General Emory to violate the law, and to obey orders issued directly from the President.

The foregoing articles of impeachment were adopted on the 2d of March, the votes upon each slightly varying, the average being 125 ayes to 40 nays. The question then came up of appointment of managers on the part of the House to conduct the impeachment before the Senate. Upon this question the Democratic members did not vote; 118 votes were cast, 60 being necessary to a choice. The following was the result, the number of votes cast for each elected manager being given: Stevens of Penn., 105; Butler, of Mass., 108; Bingham, of Ohio, 114; Boutwell, of Mass., 113; Wilson, of Iowa, 112; Williams, of Penn., 107; Logan, of Ill., 106. The foregoing seven Representatives were, therefore, duly chosen as Managers of the Bill of Impeachment. The great body of the Democratic members of the House entered a formal protest against the whole course of proceedings involved in the impeachment of the President. They claimed to represent “directly or in principle more than one-half of the people of the United States.” This protest was signed by forty-five Representatives.

On the 3d the Board of Managers presented two additional articles of impeachment, which were adopted by the House. The first charges, in substance, that

“The President, unmindful of the high duties of his office and of the harmony and courtesies which ought to be maintained between the executive and legislative branches of the Government of the United States, designing to set aside the rightful authority and powers of Congress, did attempt to bring into disgrace the Congress of the United States and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and legislative power thereof, and to excite the odium and resentment of all the good people of the United States against Congress and the laws by it enacted; and in pursuance of his said design openly and publicly, and before divers assemblages convened in divers parts thereof to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did on the 18th day of August, in the year of our Lord 1866, and on divers other days and times, as well before as afterward, make and deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States duly enacted thereby.”

To this article are appended copious extracts from speeches of Mr. Johnson. The second article is substantially as follows:

“The President did, on the 18th day of August, 1866, at the City of Washington, by public speech, declare and affirm in substance that the Thirty-ninth Congress of the United States was not a Congress of the United States, authorized by the Constitution to exercise legislative power under the same, but, on the contrary, was a Congress of only a part of the States, thereby denying and intending to deny that the legislation of said Congress was valid or obligatory upon him, except in so far as he saw fit to approve the same, and did devise and contrive means by which he might prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War; and, also, by further unlawfully devising and contriving means to prevent the execution of an act entitled ‘An act making appropriations for the support of the army for the fiscal year ending June 30, 1868, and for other purposes,’ approved March 2, 1867; and also to prevent the execution of an act entitled ‘An act to provide for the more efficient government of the rebel States,’ passed March 2, 1867, did commit and was guilty of a high misdemeanor in office.”

On the 4th of March the Senate notified the House that they were ready to receive the Managers of the Impeachment. They appeared, and the articles were formally read. The Senate had meanwhile adopted the rules of procedure. Chief Justice Chase sent a communication to the Senate to the effect that this body, when acting upon an impeachment, was a Court presided over by the Chief Justice, and that all orders and rules should be framed by the Court. On the 5th the Court was formally organized. An exception was taken to the eligibility of Mr. Wade as a member of the Court, on the ground that he was a party interested, since, in the event of the impeachment being sustained, he, as President of the Senate, would become Acting President of the United States. This objection was withdrawn, and Mr. Wade was sworn as a member of the Court. On the 7th the summons for the President to appear was formally served upon him. On the 13th the Court was again formally reopened. The President appeared by his counsel, Hon. Henry Stanbery, of Ohio; Hon. Wm. M. Evarts, of New York; Hon. Wm. S. Groesbeck, of Ohio; Hon. Benjamin R. Curtis, of Massachusetts; Hon. Thomas A. R. Nelson, of Tennessee, who asked for forty days to prepare an answer to the indictment. This was refused, and ten days granted; it being ordered that the proceedings should reopen on the 23d. Upon that day the President appeared by his counsel, and presented his answer to the articles of impeachment. This reply was in substance as follows:

The first eight articles in the Bill of Impeachment, as briefly summed up in our last record, are based upon the action of the President in ordering the removal of Mr. Stanton, and the temporary appointment of General Thomas as Secretary of War. The gist of them is contained in the first article, charging the unlawful removal of Mr. Stanton; for, this failing, the others would fail also. To this article a considerable part of the President’s answer is devoted. It is mainly an amplification of the points put forth in the Message of February 24th, in which he gave his reasons for his orders. The President cites the laws by which this department of the administration was created, and the rules laid down for the duties pertaining to it; prominent among which are: that the Secretary shall “conduct the business of the department in such manner as the President of the United States shall from time to time order and instruct;” and that he should “hold the office during the pleasure of the President;” and that Congress had no legal right to deprive the President of the power to remove the Secretary. He was, however, aware that the design of the Tenure-of-Office Bill was to vest this power of removal, in certain cases, jointly in the Executive and the Senate; and that, while believing this act to be unconstitutional, yet it having been passed over his veto by the requisite majority of two-thirds, he considered it to be his duty to ascertain in how far the case of Mr. Stanton came within the provisions of this law; after consideration, he came to the conclusion that the case did not come within the prohibitions of the law, and that, by that law he still had the right of removing Mr. Stanton; but that, wishing to have the case decided by the Supreme Court, he, on the 12th of August, issued the order merely suspending, not removing, Mr. Stanton, a power expressly granted by the Tenure-of-Office Act, and appointed General Grant Secretary of War ad interim. The President then recites the subsequent action in the case of Mr. Stanton; and, as he avers, still believing that he had the constitutional power to remove him from office, issued the order of February 21st, for such removal, designing to thus bring the matter before the Supreme Court. He then proceeds formally to deny that at this time Mr. Stanton was in lawful possession of the office of Secretary of War; and that, consequently, the order for his removal was in violation of the Tenure-of-Office Act; and that it was in violation of the Constitution or of any law; or that it constituted any official crime or misdemeanor.

In regard to the seven succeeding articles of impeachment the President, while admitting the facts of the order appointing General Thomas as Secretary of War ad interim, denies all and every of the criminal charges therein set forth. So of the ninth article, charging an effort to induce General Emory to violate the law, the President denies all such intent, and calls attention to the fact that while, for urgent reasons, he signed the bill prescribing that orders to the army should be issued only through the General, he at the same time declared it to be, in his judgment, unconstitutional; and affirms that in his interview with General Emory he said no more than he had before officially said to Congress—that is, that the law was unconstitutional.

As to the tenth article, the first of the supplementary ones, the President, while admitting that he made certain public speeches at the times and places specified, does not admit that the passages cited are fair reports of his remark; denies that he has ever been unmindful of the courtesies which ought to be maintained between the executive and legislative departments; but he claims the perfect right at all times to express his views as to all public matters.

The reply to the eleventh article, the second supplementary one, is to the same general purport, denying that he ever affirmed that the Thirty-ninth Congress was not a valid Congress of the United States, and its acts obligatory only as they were approved by him; and denying that he had, as charged in the article, contrived unlawful means for preventing Mr. Stanton from resuming the functions of Secretary of War, or for preventing the execution of the act making appropriations for the support of the army, or that to provide for the more efficient government of the rebel States. In his answer to this article the President refers to his reply to the first article, in which he sets forth at length all the steps, and the reasons therefor, relating to the removal of Mr. Stanton. In brief, the answer of the President to the articles of impeachment is a general denial of each and every criminal act charged in the articles of impeachment.

The counsel for the President then asked for a delay of thirty days after the replication of the managers of the impeachment should have been rendered, before the trial should formally proceed. This was refused, and the managers of the impeachment stated that their replication would be presented the next day: it was that,

“The Senate will commence the trial of the President upon the articles of impeachment exhibited against him on Monday, the 30th day of March, and proceed therein with all dispatch under the rules of the Senate, sitting upon the trial of an impeachment.”

The replication of the House of Representatives was a simple denial of each and every averment in the answer of the President, closing thus:

“The House of Representatives ... do say that the said Andrew Johnson, President of the United States, is guilty of the high crimes and misdemeanors mentioned in the said articles, and that the said House of Representatives are ready to prove the same.”

The trial began, as appointed, on March 30. There being twenty-seven States represented, there were fifty-four Senators, who constituted the Court, presided over by Chief Justice Salmon P. Chase, of Ohio. Senators: California, Cole, Conness; Connecticut, Dixon, Ferry; Delaware, Bayard, Saulsbury; Indiana, Hendricks, Morton; Illinois, Trumbull, Yates; Iowa, Grimes, Harlan; Kansas, Pomeroy, Ross; Kentucky, Davis, McCreery; Maine, Fessenden, Morrill (Lot M.); Maryland, Johnson, Vickers; Massachusetts, Sumner, Wilson; Michigan, Chandler, Howard; Minnesota, Norton, Ramsay; Missouri, Drake, Henderson; Nebraska, Thayer, Tipton; Nevada, Nye, Stewart; New Hampshire, Cragin, Patterson (J. W.); New Jersey, Cattell, Frelinghuysen; New York, Conklin, Morgan; Ohio, Sherman, Wade; Oregon, Corbett, Williams; Pennsylvania, Buckalew, Cameron; Rhode Island, Anthony, Sprague; Tennessee, Fowler, Patterson (David); Vermont, Edmunds, Merrill, (J. S.); West Virginia, Van Winkle, Willey; Wisconsin, Doolittle, Howe.

Managers for the Prosecution: Messrs. Bingham, Boutwell, Butler, Logan, Stevens, Williams, Wilson.

Counsel for the President. Messrs. Curtis, Evarts, Groesbeck, Nelson, Stanbery.

The following was the order of procedure: The Senate convened at 11 or 12 o’clock, and was called to order by the president of that body, who, after prayer, would leave the chair, which was immediately assumed by the Chief Justice, who wore his official robes. The prosecution was mainly conducted by Mr. Butler, who examined the witnesses, and, in conjunction with the others, argued the points of law which came up. The defense, during the early part of the trial, was mainly conducted by Mr. Stanbery, who had resigned the office of Attorney-General for this purpose, but, being taken suddenly ill, Mr. Evarts took his place. According to the rule at first adopted, the trial was to be opened by one counsel on each side, and summed up by two on each side; but this rule was subsequently modified so as to allow as many of the managers and counsel as chose to sum up, either orally or by filing written arguments.

THE PROSECUTION.

The whole of the first day (March 30) was occupied by the opening speech of Mr. Butler. After touching upon the importance of the case, and the wisdom of the framers of the Constitution in providing for its possible occurrence, he laid down the following proposition, supporting it by a copious array of authorities and precedents:

“We define, therefore, an impeachable high crime or misdemeanor to be one, in its nature or consequences, subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives, or for any improper purpose.”

He then proceeded to discuss the nature and functions of the tribunal before which the trial is held. He asked: “Is this proceeding a trial, as that term is understood, so far as relates to the rights and duties of a court and jury upon an indictment for crime? Is it not rather more in the nature of an inquest?” The Constitution, he urged, “seems to have determined it to be the latter, because, under its provisions, the right to retain and hold office is the only subject to be finally adjudicated; all preliminary inquiry being carried on solely to determine that question, and that alone.” He then proceeded to argue that this body now sitting to determine the accusation, is the Senate of the United States, and not a court. This question is of consequence, he argued, because, in the latter case, it would be bound by the rules and precedents of common law-statutes; the members of the court would be liable to challenge on many grounds; and the accused might claim that he could only be convicted when the evidence makes the fact clear beyond reasonable doubt, instead of by a preponderance of the evidence. The fact that in this case the Chief Justice presides, it was argued, does not constitute the Senate thus acting a court, for in all cases of impeachment, save that of the President, its regular presiding officer presides. Moreover, the procedures have no analogy to those of an ordinary court of justice. The accused merely receives a notice of the case pending against him. He is not required to appear personally, and the case will go on without his presence. Mr. Butler thus summed up his position in this regard:

“A constitutional tribunal solely, you are bound by no law, either statute or common, which may limit your constitutional prerogative. You consult no precedents save those of the law and custom of parliamentary bodies. You are a law unto yourselves, bound only by the natural principles of equity and justice, and that salus populi suprema est lex.”

Mr. Butler then proceeded to consider the articles of impeachment. The first eight, he says, “set out, in several distinct forms, the acts of the President in removing Mr. Stanton and appointing General Thomas, differing, in legal effect, in the purposes for which, and the intent with which, either or both of the acts were done, and the legal duties and rights infringed, and the Acts of Congress violated in so doing.” In respect to all of these articles, Mr. Butler says, referring to his former definition of what constituted an impeachable high crime:

“All the articles allege these acts to be in contravention of his oath of office, and in disregard of the duties thereof. If they are so, however, the President might have the power to do them under the law. Still, being so done, they are acts of official misconduct, and, as we have seen, impeachable. The President has the legal power to do many acts which, if done in disregard of his duty, or for improper purposes, then the exercise of that power is an official misdemeanor. For example, he has the power of pardon; if exercised, in a given case, for a corrupt motive, as for the payment of money, or wantonly pardoning all criminals, it would be a misdemeanor.”

Mr. Butler affirmed that every fact charged in the first article, and substantially in the seven following, is admitted in the reply of the President; and also that the general intent to set aside the Tenure-of-Office Act is therein admitted and justified. He then proceeded to discuss the whole question of the power of the President for removals from office, and especially his claim that this power was imposed upon the President by the Constitution, and that it could not be taken from him, or be vested jointly in him and the Senate, partly or in whole. This, Mr. Butler affirmed, was the real question at issue before the Senate and the American people. He said:

“Has the President, under the Constitution, the more than royal prerogative at will to remove from office, or to suspend from office, all executive officers of the United States, either civil, military or naval, and to fill the vacancies, without any restraint whatever, or possibility of restraint, by the Senate or by Congress, through laws duly enacted? The House of Representatives, in behalf of the people, join issue by affirming that the exercise of such powers is a high misdemeanor in office. If the affirmative is maintained by the respondent, then, so far as the first eight articles are concerned—unless such corrupt purposes are shown as will of themselves make the exercise of a legal power a crime—the respondent must go, and ought to go, quit and free.

This point as to the legal right of the President to make removals from office, which constitutes the real burden of the articles of impeachment, was argued at length. Mr. Butler assumed that the Senate, by whom, in conjunction with the House, the Tenure-of-Office Act had been passed over the veto of the President, would maintain the law to be constitutional. The turning point was whether the special case of the removal of Mr. Stanton came within the provisions of this law. This rested upon the proviso of that law, that—

“The Secretaries shall hold their office during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.”

The extended argument upon this point, made by Mr. Butler, was to the effect that Mr. Stanton having been appointed by Mr. Lincoln, whose term of office reached to the 4th of March, 1869, that of Mr. Stanton existed until a month later, unless he was previously removed by the concurrent action of the President and Senate. The point of the argument is, that Mr. Johnson is merely serving out the balance of the term of Mr. Lincoln, cut short by his assassination, so that the Cabinet officers appointed by Mr. Lincoln held their places, by this very proviso, during that term and for a month thereafter; for, he argued, if Mr. Johnson was not merely serving out the balance of Mr. Lincoln’s term, then he is entitled to the office of President for four full years, that being the period for which a President is elected. If, continues the argument, Mr. Stanton’s commission was vacated by the Tenure-of-Office Act, it ceased on the 4th of April, 1865; or, if the act had no retroactive effect, still, if Mr. Stanton held his office merely under his commission from Mr. Lincoln, then his functions would have ceased upon the passage of the bill, March 2, 1867; and, consequently, Mr. Johnson, in “employing” him after that date as Secretary of War, was guilty of a high misdemeanor, which would give ground for a new article of impeachment.

After justifying the course of Mr. Stanton in holding on to the secretaryship in opposition to the wish of the President, on the ground that “to desert it now would be to imitate the treachery of his accidental chief,” Mr. Butler proceeded to discuss the reasons assigned by the President in his answer to the articles of impeachment for the attempt to remove Mr. Stanton. These, in substance, were, that the President believed the Tenure-of-Office Act was unconstitutional, and, therefore, void and of no effect, and that he had the right to remove him and appoint another person in his place. Mr. Butler urged that, in all of these proceedings, the President professed to act upon the assumption that the act was valid, and that his action was in accordance with its provisions. He then went on to charge that the appointment of General Thomas as Secretary of War ad interim, was a separate violation of law. By the act of February 20, 1863, which repealed all previous laws inconsistent with it, the President was authorized, in case of the “death, resignation, absence from the seat of Government, or sickness of the head of an executive department,” or in any other case where these officers could not perform their respective duties, to appoint the head of any other executive department to fulfil the duties of the office “until a successor be appointed, or until such absence or disability shall cease.” Now, urged Mr. Butler, at the time of the appointment of General Thomas as Sectary of War ad interim, Mr. Stanton “had neither died nor resigned, was not sick nor absent,” and, consequently, General Thomas, not being the head of a department, but only of a bureau of one of them, was not eligible to this appointment, and that, therefore, his appointment was illegal and void.

The ninth article of impeachment, wherein the President is charged with endeavoring to induce General Emory to take orders directly from himself, is dealt with in a rather slight manner. Mr. Butler says, “If the transaction set forth in this article stood alone, we might well admit that doubts might arise as to the sufficiency of the proof;” but, he adds, “the surroundings are so pointed and significant as to leave no doubt in the mind of an impartial man as to the intents and purposes of the President”—these intents being, according to Mr. Butler, “to induce General Emory to take orders directly from himself, and thus to hinder the execution of the Civil Tenure Act, and to prevent Mr. Stanton from holding his office of Secretary of War.”

As to the tenth article of impeachment, based upon various speeches of the President, Mr. Butler undertook to show that the reports of these speeches, as given in the article, were substantially correct; and accepted the issue made thereupon as to whether they are “decent and becoming the President of the United States, and do not tend to bring the office into ridicule and disgrace.”

After having commented upon the eleventh and closing article, which charges the President with having denied the authority of the Thirty-ninth Congress, except so far as its acts were approved by him, Mr. Butler summed up the purport of the articles of impeachment in these words:

“The acts set out in the first eight articles are but the culmination of a series of wrongs, malfeasances, and usurpations committed by the respondent, and, therefore, need to be examined in the light of his precedent and concomitant acts to grasp their scope and design. The last three articles presented show the perversity and malignity with which he acted, so that the man as he is known may be clearly spread upon record, to be seen and known of all men hereafter.... We have presented the facts in the constitutional manner; we have brought the criminal to your bar, and demand judgment for his so great crimes.”

The remainder of Monday, and a portion of the following day, were devoted to the presentation of documentary evidence as to the proceedings involved in the order for the removal of Mr. Stanton and the appointment of General Thomas. The prosecution then introduced witnesses to testify to the interviews between Mr. Stanton and General Thomas. They then brought forward a witness to show that General Thomas had avowed his determination to take forcible possession of the War Office. To this Mr. Stanbery, for the defense, objected. The Chief Justice decided the testimony to be admissible. Thereupon Senator Drake took exception to the ruling, on the ground that this question should be decided by the Senate—not by the presiding officer. The Chief Justice averred that, in his judgment, it was his duty to decide, in the first instance, upon any question of evidence, and then, if any Senator desired, to submit the decision to the Senate. Upon this objection and appeal arose the first conflict in the Senate as to the powers of its presiding officer. Mr. Butler argued at length in favor of the exception. Although, in this case, the decision was in favor of the prosecution, he objected to the power of the presiding officer to make it. This point was argued at length by the managers for the impeachment, who denied the right of the Chief Justice to make such decision. It was then moved that the Senate retire for private consultation on this point. There was a tie vote—25 ayes and 25 nays.—The Chief Justice gave his casting vote in favor of the motion for consultation. The Senate, by a vote of 31 to 19, sustained the Chief Justice, deciding that “the presiding officer may rule on all questions of evidence and on incidental questions, which decision will stand as the judgment of the Senate for decision, or he may, at his option in the first instance, submit any such question to a vote of the members of the Senate.” In the further progress of the trial the Chief Justice, in most important cases, submitted the question directly to the Senate, without himself giving any decision. Next morning (April 1) Mr. Sumner offered a resolution to the effect that the Chief Justice, in giving a casting vote, “acted without authority of the Constitution of the United States.” This was negatived by a vote of 27 to 21, thus deciding that the presiding officer had the right to give a casting vote. The witness (Mr. Burleigh, delegate from Dakotah,) who had been called to prove declarations of General Thomas, was then asked whether, at an interview between them, General Thomas had said anything as “to the means by which he intended to obtain, or was directed by the President to obtain, possession of the War Department.” To this question Mr. Stanbery objected, on the ground that any statements made by General Thomas could not be used as evidence against the President. Messrs. Butler and Bingham argued that the testimony was admissible, on the ground that there was, as charged, a conspiracy between the President and General Thomas, and that the acts of one conspirator were binding upon the other; and, also, that in these acts General Thomas was the agent of the President. The Senate, by 39 to 11, decided that the question was admissible. Mr. Burleigh thereupon testified substantially that General Thomas informed him that he had been directed by the President to take possession of the War Department; that he was bound to obey his superior officer; that, if Mr. Stanton objected, he should use force, and if he bolted the doors they would be broken down. The witness was then asked whether he had heard General Thomas make any statement to the clerks of the War Office, to the effect that, when he came into control, he would relax or rescind the rules of Mr. Stanton. To this question objection was made by the counsel of the President on the ground of irrelevancy. The Chief Justice was of opinion that the question was not admissible, but, if any Senator demanded, he would submit to the Senate whether it should be asked. The demand having been made, the Senate, by a vote of 28 to 22, allowed the question to be put, whereupon Mr. Burleigh testified that General Thomas, in his presence, called before him the heads of the divisions, and told them that the rules laid down by Mr. Stanton were arbitrary, and that he should relax them—that he should not hold them strictly to their letters of instruction, but should consider them as gentlemen who would do their duty—that they could come in or go out when they chose. Mr. Burleigh further testified that, subsequently, General Thomas had said to him that the only thing which prevented him from taking possession of the War Department was his arrest by the United States marshal. Other witnesses were called to prove the declarations of General Thomas. Mr. Wilkeson testified that General Thomas said to him that he should demand possession of the War Department, and, in case Mr. Stanton should refuse to give it up, he should call upon General Grant for a sufficient force to enable him to do so, and he did not see how this could be refused. Mr. Karsener, of Delaware, testified that he saw General Thomas at the President’s house, told him that Delaware, of which State General Thomas is a citizen, expected him to stand firm; to which General Thomas replied that he was standing firm, that he would not disappoint his friends, but, that, in a few days, he would “kick that fellow out,” meaning, as the witness supposed, Mr. Stanton.

Thursday, April 2d.—Various witnesses were introduced to testify to the occurrences when General Thomas demanded possession of the War Department. After this General Emory was called to testify to the transactions which form the ground of the ninth article of impeachment. His testimony was to the effect that the President, on the 22d of February, requested him to call; that, upon so doing, the President asked respecting any changes that had been made in the disposition of the troops around Washington; that he informed the President that no important changes had been made, and that none could be made without an order from General Grant, as provided for in an order founded upon a law sanctioned by the President. The President said that this law was unconstitutional. Emory replied that the President had approved of it, and that it was not the prerogative of the officers of the army to decide upon the constitutionality of a law, and in that opinion he was justified by the opinion of eminent counsel, and thereupon the conversation ended.

The prosecution then endeavored to introduce testimony as to the appointment of Mr. Edmund Cooper, the Private Secretary of the President, as Assistant Secretary of the Treasury, in support of the eighth and eleventh articles of impeachment, which charge the President with an unlawful attempt to control the disposition of certain public funds. This testimony, by a vote of 27 to 22, was ruled out.

The prosecution now, in support of the tenth and eleventh articles of impeachment, charging the President with endeavoring to “set aside the rightful authority of Congress,” offered a telegraphic dispatch from the President to Mr. Parsons, at that time (January 17, 1867) Provisional Governor of Alabama, of which the following is the essential part:

“I do not believe the people of the whole country will sustain any set of individuals in the attempt to change the whole character of our Government by enabling acts in this way. I believe, on the contrary, that they will eventually uphold all who have patriotism and courage to stand by the Constitution, and who place their confidence in the people. There should be no faltering on the part of those who are honest in their determination to sustain the several coördinate departments of the Government in accordance with its original design.” The introduction of this was objected to by the counsel for the President, but admitted by the Senate, the vote being 27 to 17.

The whole Friday, and a great part of Saturday, (April 3d and 4th,) were occupied in the examination of the persons who reported the various speeches of the President which form the basis of the tenth article, the result being that the reports were shown to be either substantially or verbally accurate. Then, after some testimony relating to the forms in which commissions to office were made out, the managers announced that the case for the prosecution was substantially closed. The counsel for the President thereupon asked that three working days should be granted them to prepare for the defense. This, after some discussion, was granted by the Senate by a vote of 36 to 9, and the trial was adjourned to Thursday, April 9th.

THE DEFENSE.

The opening speech for the defense, occupying the whole of Thursday, and a part of Friday, was made by Mr. Curtis. Reserving, for a time, a rejoinder to Mr. Butler’s argument as to the functions of the Senate when sitting as a Court of Impeachment, Mr. Curtis proceeded to a consideration of the articles of impeachment, in their order, his purpose being “to ascertain, in the first place, what the substantial allegations in each of them are, what is the legal proof and effect of these allegations, and what proof is necessary to be adduced in order to sustain them.” The speech is substantially an elaboration of and argument for the points embraced in the answer of the President. The main stress of the argument related to the first article, which, as stated by Mr. Curtis, when stripped of all technical language, amounts exactly to these things:

“First. That the order set out in the article for the removal of Mr. Stanton, if executed, would have been a violation of the Tenure-of-Office Act.

“Second. That it was a violation of the Tenure-of-Office Act.

“Third. That it was an intentional violation of the Tenure-of-Office Act.

“Fourth. That it was in violation of the Constitution of the United States.

“Fifth. That it was intended by the President to be so.

“Or, to draw all these into one sentence, which I hope may be intelligible and clear enough, I suppose the substance of this first article is that the order for the removal of Mr. Stanton was, and was intended to be, a violation of the Constitution of the United States. These are the allegations which it is necessary for the honorable managers to make out in order to support that article.”

Mr. Curtis proceeded to argue that the case of Mr. Stanton did not come within the provisions of the Tenure-of-Office Act, being expressly excepted by the proviso that Cabinet officers should hold their places during the term of the President by whom they were appointed, and for one month thereafter, unless removed by the consent of the Senate. Mr. Stanton was appointed by Mr. Lincoln, whose term of office came to an end by his death. He argued at length against the proposition that Mr. Johnson was merely serving out the remainder of Mr. Lincoln’s term. The object of this exception, he said, was evident. The Cabinet officers were to be “the immediate confidential assistants of the President, for whose acts he was to be responsible, and in whom he was expected to repose the gravest honor, trust, and confidence; therefore it was that this act has connected the tenure of office of these officers with that of the President by whom they were appointed.” Mr. Curtis gave a new interpretation to that clause in the Constitution which prescribes that the President “may require the opinion, in writing, of the principal officer in each of the executive departments upon any subject relating to the duties of their several offices.” He understood that the word “their” included the President, so that he might call upon Cabinet officers for advice “relating to the duties of the office of these principal officers, or relating to the duties of the President himself.” This, at least, he affirmed, had been the practical interpretation put upon this clause from the beginning. To confirm his position as to the intent of the Tenure-of-Office Act in this respect, Mr. Curtis quoted from speeches made in both houses at the time when the act was passed. Thus, Senator Sherman said that the act, as passed—

“Would not prevent the present President from removing the Secretary of War, the Secretary of the Navy, or the Secretary of State; and, if I supposed that either of these gentlemen was so wanting in manhood, in honor, as to hold his place after the politest intimation from the President of the United States that his services were no longer needed, I certainly, as a Senator, would consent to his removal at any time, and so would we all.”

Mr. Curtis proceeded to argue that there was really no removal of Mr. Stanton; he still held his place, and so there was “no case of removal within the statute, and, therefore, no case of violation by removal.” But, if the Senate should hold that the order for removal was, in effect, a removal, then, unless the Tenure-of-Office Act gave Mr. Stanton a tenure of office, this removal would not have been contrary to the provisions of this act. He proceeded to argue that there was room for grave doubt whether Mr. Stanton’s case came within the provisions of the Tenure-of-Office Act, and that the President, upon due consideration, and having taken the best advice within his power, considering that it did not, and acting accordingly, did not, even if he was mistaken, commit an act “so wilful and wrong that it can be justly and properly, and for the purposes of this prosecution, termed a high misdemeanor.” He argued at length that the view of the President was the correct one, and that “the Senate had nothing whatever to do with the removal of Mr. Stanton, whether the Senate was in session or not.”

Mr. Curtis then went on to urge that the President, being sworn to take care that the laws be faithfully executed, must carry out any law, even though passed over his veto, except in cases where a law which he believed to be unconstitutional has cut off a power confided to him, and in regard to which he alone could make an issue which would bring the matter before a court, so as to cause “a judicial decision to come between the two branches of the Government, to see which of them is right.” This, said he, is what the President has done. This argument, in effect, was an answer to the first eight articles of impeachment.

The ninth article, charging the President with endeavoring to induce General Emory to violate the law by receiving orders directly from him, was very briefly touched upon, it being maintained that, as shown by the evidence, “the reason why the President sent for General Emory was not that he might endeavor to seduce that distinguished officer from his allegiance to the laws and Constitution of his country, but because he wished to obtain information about military movements which might require his personal attention.”

As to the tenth article, based upon the President’s speeches, it was averred that they were in no way in violation of the Constitution, or of any law existing at the time when they were made, and were not therefore, impeachable offenses.

The reply to the eleventh article was very brief. The managers had “compounded it of the materials which they had previously worked up into others,” and it “contained nothing new that needed notice.” Mr. Curtis concluded his speech by saying that—“This trial is and will be the most conspicuous instance that has ever been, or even can be expected to be found, of American justice or of American injustice; of that justice which is the great policy of all civilized States; of that injustice which is certain to be condemned, which makes even the wisest man mad, and which, in the fixed and unalterable order of God’s providence, is sure to return and plague the inventor.”

At the close of this opening speech for the defense, General Lorenzo Thomas was brought forward as a witness. His testimony, elicited upon examination and cross-examination, was to the effect that, having received the order appointing him Secretary of War ad interim, he presented it to Mr. Stanton, who asked, “Do you wish me to vacate the office at once, or will you give me time to get my private property together?” to which Thomas replied, “Act your pleasure.” Afterward Stanton said, “I don’t know whether I will obey your instructions.” Subsequently Thomas said that he should issue orders as Secretary of War. Stanton said he should not do so, and afterward gave him a written direction, not to issue any order except as Adjutant-General. During the examination of General Thomas a question came up which, in many ways, recurred upon the trial. He was asked to tell what occurred at an interview between himself and the President. Objection was made by Mr. Butler, and the point was argued. The question was submitted to the Senate, which decided, by a vote of 42 to 10, that it was admissible. The testimony of General Thomas, from this point, took a wide range, and, being mainly given in response to questions of counsel, was, apparently, somewhat contradictory. The substance was that he was recognized by the President as Secretary of War; that, since the impeachment, he had acted as such only in attending Cabinet meetings, but had given no orders; that, when he reported to the President that Mr. Stanton would not vacate the War Department, the President directed him to “take possession of the office;” that, without orders from the President, he had intended to do this by force, if necessary; that, finding that this course might involve bloodshed, he had abandoned this purpose, but that, after this, he had, in several cases, affirmed his purpose to do so, but that these declarations were “merely boast and brag.” On the following day General Thomas was recalled as a witness, to enable him to correct certain points in his testimony. The first was the date of an unimportant transaction; he had given it as taking place on the 21st of February, whereas it should have been the 22d. The second was that the words of the President were that he should “take charge,” not “take possession” of the War Department. In explanation of the fact that he had repeatedly sworn to the words “take possession,” he said that these were “put into his mouth.” Finally, General Thomas, in reply to a direct question from Mr. Butler, said that his testimony on these points was “all wrong.”

Lieutenant-General Sherman was then called as a witness. After some unimportant questions, he was asked in reference to an interview between himself and the President which took place on the 14th of January: “At that interview what conversation took place between the President and you in reference to Mr. Stanton?” To this question objection was made by Mr. Butler, and the point was elaborately argued. The Chief Justice decided that the question was admissible within the vote of the Senate of the previous day; the question then was as to the admissibility of evidence as to a conversation between the President and General Thomas; the present question was as to a conversation between the President and General Sherman. “Both questions,” said the Chief Justice, “are asked for the purpose of procuring the intent of the President to remove Mr. Stanton.” The question being submitted to the Senate, it was decided, by a vote of 28 to 23, that it should not be admitted. The examination of General Sherman was continued, the question of the conversation aforesaid being frequently brought forward, and as often ruled out by the Senate. The only important fact elicited was that the President had twice, on the 25th and 30th of January, tendered to General Sherman the office of Secretary of War ad interim.

On Monday, April 13th, after transactions of minor importance, the general matter of the conversations between the President and General Sherman again came up, upon a question propounded by Senator Johnson—“When the President tendered to you the office of Secretary of War ad interim, did he, at the very time of making such tender, state to you what his purpose in so doing was?” This was admitted by the Senate, by a vote of 26 to 22. Senator Johnson then added to his question, “If he did, what did he state his purpose was?” This was admitted by a vote of 25 to 26. The testimony of General Sherman, relating to several interviews, was to the effect that the President said that the relations between himself and Mr. Stanton were such that he could not execute the office of President without making provision to appoint a Secretary of War ad interim, and he offered that office to him (General Sherman), but did not state that his purpose was to bring the matter directly into the courts. Sherman said that, if Mr. Stanton would retire, he might, although against his own wishes, undertake to administer the office ad interim, but asked what would be done in case Mr. Stanton would not yield. To this the President replied, “He will make no opposition; you present the order, and he will retire. I know him better than you do; he is cowardly.” General Sherman asked time for reflection, and then gave a written answer, declining to accept the appointment, but stated that his reasons were mostly of a personal nature.

On the 14th the Senate adjourned, on account of the sudden illness of Mr. Stanbery. It reassembled on the 15th, but the proceedings touched wholly upon formal points of procedure and the introduction of unimportant documentary evidence. On the 16th Mr. Sumner moved that all evidence not trivial or obviously irrelevant shall be admitted, the Senate to judge of its value. This was negatived by a vote of 23 to 11.

The 17th was mainly taken up by testimony as to the reliability of the reports of the President’s speeches. Mr. Welles, Secretary of the Navy, was then called to testify to certain proceedings in Cabinet Council at the time of the appointment of General Thomas. This was objected to. The Chief Justice decided that it was admissible, and his decision was sustained by a vote of 26 to 23. The defense then endeavored to introduce several members of the Cabinet, to show that, at meetings previous to the removal of Mr. Stanton, it was considered whether it was not desirable to obtain a judicial determination of the unconstitutionality of the Tenure-of-Office Act. This question was raised in several shapes, and its admission, after thorough argument on both sides, as often refused, in the last instance by a decisive vote of 30 to 19. The defense considered this testimony of the utmost importance, as going to show that the President had acted upon the counsel of his constitutional advisers, while the prosecution claimed that he could not plead in justification of a violation of the law that he had been advised by his Cabinet, or any one else, that the law was unconstitutional. His duty was to execute the laws, and, if he failed to do this, or violated them, he did so at his own risk of the consequences. With the refusal of this testimony, the case, except the final summings up and the verdict of the Senate, was virtually closed.

The case had been so fully set forth in the opening speeches of Messrs. Butler and Curtis, and in the arguments which came up upon points of testimony, that there remained little for the other counsel except to restate what had before been said.

After the evidence had been closed the case was summed up, on the part of the managers by Messrs. Boutwell, Williams, Stevens, and Bingham in oral arguments, and Mr. Logan, who filed a written argument, and on the part of the President by Messrs. Nelson, Groesbeck, Stanbery, and Evarts. Many of these speeches were distinguished by great brilliancy and power, but, as no new points were presented, we omit any summary.

The Court decided to take a vote upon the articles on Tuesday, the 12th of May, at 12 o’clock, M. A secret session was held on Monday, during which several Senators made short speeches, giving the grounds upon which they expected to cast their votes. On Tuesday the Court agreed to postpone the vote until Saturday, the 16th. Upon that day, at 12 o’clock, a vote was taken upon the eleventh article, it having been determined to vote on that article first. The vote resulted in 35 votes for conviction, and 19 for acquittal.

The question being put to each Senator, “How say you, is the respondent, Andrew Johnson, President of the United States, guilty or not guilty of a high misdemeanor as charged in the article?”—those who responded guilty were Senators Anthony, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill, of Vermont, Morrill, of Maine, O. P. Morton, Nye, Patterson, N. H. Pomeroy, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Wade, Willey, Williams, Wilson and Yates.

Those who responded not guilty were Senators Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, M’Creery, Norton, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle and Vickers.

The Constitution requiring a vote of two-thirds to convict, the President was acquitted on this article. After taking this vote the Court adjourned until Tuesday, May 26th, when votes were taken upon the second and third articles, with precisely the same result as on the eleventh, the vote in each case standing 35 for conviction and 19 for acquittal. A verdict of acquittal on the second, third, and eleventh articles was then ordered to be entered on the record, and, without voting on the other articles, the Court adjourned sine die. So the trial was ended, and the President acquitted.

The political differences between President Johnson and the Republicans were not softened by the attempted impeachment, and singularly enough the failure of their effort did not weaken the Republicans as a party. They were so well united that those who disagreed with them passed at least temporarily from public life, some of the ablest, like Senators Trumbull and Fessenden retiring permanently. President Johnson pursued his policy, save where he was hedged by Congress, until the end, and retired to his native State, apparently having regained the love of his early political associates there.