As the Fourteenth Amendment was not declared adopted or a part of the Constitution for more than a year after the transmission of that dispatch, and as the Constitution of the United States prohibits any abridgment of the freedom of speech, and as this remark was unaccompanied by any act in violation of law, it is difficult to see how it could be construed into an impeachable offense. Moreover, saying nothing of the good taste or propriety of that dispatch, Mr. Johnson was opposed to the proposed amendment, and had the same right to oppose it, or to characterize it or the members of Congress favoring it, as had any private citizen, or as had the members of Congress to characterize his action in the premises, without being called to account therefor.
The second count of that article was:
Violation of the Tenure-of-Office Act of March 2nd, 1867, in seeking to prevent the resumption by Mr. Stanton of the office of Secretary of War.
This clause had been very effectually disposed of by Messrs. Sherman and Howe several days before the vote was taken on the Eleventh Article, when they pointed out the fact that the language cage of the first section of the Tenure-of-Office Act clearly excepted, and was intended by the Senate, to except Mr. Stanton and all other persons then in Mr. Johnson's Cabinet who had been originally appointed by Mr. Lincoln and were still holding over under Mr. Johnson without having been recommissioned by him; and that Mr. Johnson had therefore the legal right and power to remove them at his pleasure.
And so convincing had been the argument of those gentlemen at that time, that there was unanimous consent on the pro-impeachment side of the Senate, on two different occasions, to set aside the First Article, of which the alleged unlawful attempt to remove Mr. Stanton was practically the principal accusation. Not illogically, that unanimous consent to abandon the First article by thus setting it aside, and afterwards refusing to put it to a vote, may be said to have been equivalent to a vote of its insufficiency.
It is pertinent to suggest here that the President believed the Tenure-of-Office Act to be unconstitutional, as it was clearly an attempted abridgment of his power over his Cabinet which had never before been questioned by Congress. The only method left him for the determination of that question was in the course he took, except by an agreed case, but it is manifest from the record that no such agreement could be had, as an effort thereto was made in the Thomas case in the District Court, but failed, the prosecution withdrawing the case at the point where that purpose of the President became manifest.
The third count was:
Attempting to prevent the execution of the Army appropriation Act of March 2nd, 1867.
The means specified in this alleged attempt was the appointment of Mr. Edward Cooper to be Assistant Secretary of the Treasury, with power to draw warrants on the Treasury without the consent of the Secretary—the purpose being to show that, with General Thomas acting as Secretary of War, and Mr. Cooper as Assistant Secretary of the Treasury to honor General Thomas' drafts, and thus, in control of expenditures for the support of the Army, a conspiracy was sought to be proven whereby the President intended and expected to defeat the Reconstruction Acts of Congress by preventing the use of the Army for its enforcement.
Mr. Johnson, of the Court, asked this question: