Reminiscences of Sixty Years in Public Affairs, Vol. 2

by George S. Boutwell

General Grant replied:

"I meant if the North carried enough members in favor of the admission of the South. I did not hear him say that he would recognize them as the Congress, I merely heard him ask the question, 'Why would they not be the Congress?'"

At this point, and without further discussion of the purpose of Mr. Johnson in regard to the reorganization of the Government, I think it may be stated without injustice to him, that while he was opposed to secession at the time the Confederate Government was organized, and thenceforward and always without change of opinion, yet he was also of opinion that the act of secession by the several States had not disturbed their legal relations to the National Government. Acting upon that opinion, he proceeded to reorganize the State governments, and with the purpose of securing the admission of their Senators and Representatives without seeking or accepting the judgment of Congress upon the questions involved in the proceeding. On one vital point he erred seriously and fundamentally as to the authority of the President in the matter. From the nature of our Government there could be no escape in a legal point of view from the conclusion that, whatever the relations were of the seceding States to the General Government, the method of restoration was to be ascertained and determined by Congress, and not by the President acting as the chief executive authority of the nation. In a legal and constitutional view, that act on his part, although resting upon opinions which he had long entertained, and which were entertained by many others, must be treated as an act of usurpation.

The facts embodied in the charges on which Mr. Johnson was impeached by the House and arraigned before the Senate were not open to doubt, but legal proof was wanting in regard to the exact language of his speeches. The charges were in substance these: That he had attacked the integrity and the lawful authority of the Congress of the United States in public speeches made in the presence of the country. The second charge was that he had attempted the removal of Mr. Stanton from the office of Secretary of War, and that, without the concurrence of the Senate, he had so removed him, contrary to the act of Congress, known as the Tenure of Office Act. In the first investigation into the conduct of Andrew Johnson, he was described in the resolution as "Vice-President of the United States, discharging at present the duties of President of the United States." The resolution was adopted by the House of Representatives the seventh day of March, 1867. A large amount of testimony was taken, and the report of the committee, in three parts, by the different members, was submitted to the House the fourth day of the following December. The majority of the committee, consisting of George S. Boutwell, Francis Thomas, Thomas Williams, William Lawrence, and John C. Churchill, reported a resolution providing for the impeachment of the President of the United States, in these words: "Resolved, that Andrew Johnson, President of the United States, be impeached of high crimes and misdemeanors." It will be observed that in the resolution for his impeachment he is described as "President of the United States," while in the resolution authorizing the inquiry into his conduct he is described as "Vice- President, discharging at present the duties of the President of the United States." This question received very careful consideration by the committee, and the conclusion was reached that he was the President of the United States, although he had been elected only to the office of Vice-President. As that question was not raised at the trial by demurrer or motion, it may now be accepted as the established doctrine that the Vice-President, when he enters upon the duties of President, becomes President of the United States. The extended report that was made by the majority of the committee was written by Mr. Williams. The summary, which was in the nature of charges, was written by myself. That summary set forth twenty-eight specifications of misconduct on the part of the President, many of which, however, where abandoned when the articles of impeachment were prepared in February, 1868.

In the discussion of the committee there were serious differences of opinion upon provisions of law. The minority of the committee, consisting of James F. Wilson, who was chairman of the Judiciary Committee, Frederick E. Woodbridge, S. S. Marshall, and Charles R. Eldridge, maintained the doctrine that a civil officer under the Constitution of the United States was not liable to impeachment except for the commission of an indictable offence. This doctrine had very large support in the legal profession, resting on remarks found in Blackstone. On the other hand, Chancellor Kent, in his Commentaries, had given support to the doctrine that a civil officer was liable to impeachment who misdemeaned himself in office. The provision of the Constitution is in these words:

"The President, Vice-President, and all Civil Officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

The majority of the Judiciary Committee, in the controversy which arose in the committee and in the House of Representatives, maintained that the word "misdemeanors" was used in a political sense, and not in the sense in which it is used in criminal law. In support of this view attention was called to the fact that the party convicted was liable only to removal from office, and therefore that the object of the process of impeachment was the purification and preservation of the civil service. In the opinion of the majority, it was the necessity of the situation that the power of impeachment should extend to acts and offences that were not indictable by statute nor at common law. The report of the Judiciary Committee, made the twenty-fifth day of November, was rejected by the House of Representatives.

The attempt of the President to remove Mr. Stanton from the office of Secretary for the Department of War revived the question of impeachment, and on Monday, the twenty-fourth day of February, 1868, the House of Representatives "resolved to impeach Andrew Johnson, President of the United States, of high crimes and misdemeanors." The articles of impeachment were acted on by the House of Representatives the second day of March, and on the fourth day of March they were presented to the Senate through Mr. Bingham, chairman of the managers, who was designated for that duty.

The articles were directed to the following points, namely: That the President, by his speeches, had attempted "to set aside the rightful authority and powers of Congress"; that he had attempted "to bring into disgrace, ridicule, hatred, contempt, and reproach the Congress of the United States and the several branches thereof"; and "that he had attempted to incite the odium and resentment of all the good people of the United States against Congress and the laws by them duly and constitutionally enacted." Further, it was alleged that he had declared in speeches that the "Thirty-ninth Congress of the United States was not a Congress of the United States authorized by the Constitution of the United States to exercise legislative power in the same."

A further charge, and on which greater reliance was placed, was set forth in these words: "That he had denied and intended to deny the power of the Thirty-ninth Congress to propose amendments to the Constitution of the United States." These articles were in substance the articles that had been rejected by the House of Representatives in 1867. Finally, as the most important averment of all, the President was charged with an "attempt to prevent the execution of the act entitled 'An Act Regulating the Tenure of Certain Civil Offices,' passed March 2, 1867, by unlawfully devising and contriving and attempting to contrive means by which he could prevent Edwin M. Stanton from forthwith resuming the function of the office of the Secretary for the Department of War, notwithstanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew Johnson of the said Edwin M. Stanton from said office of Secretary for the Department of War." In various forms of language these several charges were set forth in the different articles of impeachment—eleven in all. The eleventh article, which was prepared by Mr. Stevens, embodied the summary of all the charges mentioned. It is to be observed that in the eleventh article there is no allegation that the President had committed an offence that was indictable under any statute of the United States or that would have been indictable at common law. It may be assumed, I think, that for this country, at least, the question that was raised at the beginning and argued with great force, and by which possibly the House of Representatives may have been influenced in the year 1867, has been settled in accord with the report of the majority of the Judiciary Committee. The House decided that the President was impeachable for misdemeanors in office. With stronger reason it may be said that every other civil officer is bound to behave himself well in his office. He cannot do any act which impairs his standing in the place which he holds, or which may bring discredit upon the public, and especially he may not do any act in disregard of his oath to obey the laws and to support the Constitution of the country. The eleventh article was the chief article that was submitted to a vote in the Senate. The question raised by that article is this in substance: Is the President of the United States guilty in manner and form as set forth in this article? On that question thirty- five Senators voted that he was guilty, and nineteen Senators voted that he was not guilty. Under the Constitution the President was found not guilty of the offences charged, but the majority given may be accepted, and probably will be accepted, as the judgment of the Senate that the President of the United States is liable to impeachment and removal from office for acts and conduct that do not subject him to the process of indictment and trial in the criminal courts. At this point I express the opinion that something has been gained, indeed that much has been gained, by the decision of the House of Representatives, supported by the opinions of a large majority in the Senate.