Reminiscences of Sixty Years in Public Affairs, Vol. 2

by George S. Boutwell

The answer of the respondent, considered in connection with the arguments that were made by his counsel, sets forth the ground upon which the Republican members of the Senate may have voted that the President was not guilty of the two principal offences charged, viz: that in his speeches he had denounced and brought into contempt, intentionally, the Congress of the United States; and, second, that his attempted removal of Edwin M. Stanton was a violation of the Tenure of Office Act. In the President's answer to article ten, which contained the allegation that in his speech at St. Louis, in the year 1866, he had used certain language in derogation of the authority of the Congress of the United States, it was averred that the extracts did not present his speech or address accurately. Further than that, it was claimed that the allegation under that article was not "cognizable by the court as a high misdemeanor in office." Finally, it was claimed that proof should be made of the "actual" speech and address of the President on that occasion. The managers were not able to meet the demand for proof in a technical sense. The speech was reported in the ordinary way, and the proof was limited to the good faith of the reporters and the general accuracy of the printed report in the newspapers. In this situation as to the charges and the answer, it is not difficult to reach the conclusion that members of the Senate had ground for the vote of not guilty upon the several charges in regard to the speeches that were imputed to the President.

Judge Curtis, in his opening argument, furnished a technical answer to the article in which the President was charged with the violation of the Tenure of Office Act, in his attempt to remove Mr. Stanton from the office of Secretary of the Department of War. Judge Curtis gave to the proviso to that statute an interpretation corresponding to the interpretation given to criminal statutes. Mr. Stanton was appointed to the office in the first term of Mr. Lincoln's administration. The proviso of the statute was in these words: "Provided that the Secretaries of State, of the Treasury, of War, etc., shall hold their offices for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to their removal by and with the advice of the Senate." The proviso contained exceptions to the body of the statute, by which all civil officers who held appointments by and with the advice and consent of the Senate were secure in their places unless the Senate should assent to their removal. It was the object of the proviso to relieve an incoming President of Secretaries who had been appointed by his predecessor. The construction of the proviso, as given by Judge Curtis, was fatal to the position taken by the managers. It was claimed by the managers that the sole object of the proviso was the relief of an incoming President from the continuance of a Secretary in office beyond thirty days after the commencement of his term, and that it had no reference whatever to the right of the President to remove a Secretary during his term.

There were incidents in the course of the proceedings that possess historical value. By the Constitution the Chief Justice of the Supreme Court is made the presiding officer in the Senate when the President is put upon trial on articles of impeachment. Chief Justice Chase claimed that he was to be addressed as "Chief Justice." That claim was recognized by the counsel for the President and by some members of the Senate. The managers claimed that he was there as the presiding officer, and not in his judiciary capacity. He was addressed by the managers and some of the Senators as "Mr. President."

There was a difference of opinion in the Senate, and a difference between the managers and the counsel for the respondent, as to the right of the presiding officer to rule upon questions of law and evidence arising in the course of the trial. Under the rule of the Senate as adopted, the rulings of the President were to stand unless a Senator should ask for the judgment of the Senate.

Other instances occurred which do not possess historical value, but were incidents unusual in judicial proceedings. When the Judiciary Committee of the House was entering upon the investigation of the conduct of President Johnson, General Butler expressed the opinion that upon the adoption of articles of impeachment by the House the President would be suspended in his office until the verdict of the Senate. As this view was not accepted by the committee, I made these remarks in my opening speech to the House after a review of the arguments for and against the proposition:

"I cannot doubt the soundness of the opinion that the President, even when impeached by the House, is entitled to his office until he has been convicted by the Senate."

This view was accepted.

At the first meeting of the managers I was elected chairman by the votes of Mr. Stevens, General Logan, and General Butler. Mr. Bingham received the votes of Mr. Wilson and Mr. Williams. Upon the announcement of the vote, Mr. Bingham made remarks indicating serious disappointment and a purpose to retire from the Board of Managers. I accepted the election, and acted as chairman at the meeting. At the next meeting, and without consultation with my associates, I resigned the place and nominated Mr. Bingham. The nomination was not objected to, and Mr. Bingham took the chair without comment by himself, nor was there any comment by any other person. The gentlemen who had given me their votes and support criticized my conduct with considerable freedom, and were by no means reconciled by the statement which I made to them. Having reference to the nature of the contest and the condition of public sentiment, I thought it important that the managers should avoid any controversy before the public, especially as to a matter of premiership in the conduct of the trial. It seemed to be important that the entire force of the House of Representatives should be directed to one object, the conviction of the accused. Beyond this, Mr. Bingham and Mr. Wilson had been opposed to the impeachment of Mr. Johnson when the attempt was first made in the House of Representatives. I thought it important to combine the strength that they represented in support of the proceeding in which we were then engaged. If Mr. Stevens had been in good health, he would have received my support and the support of General Butler and General Logan. At that time his health was much impaired, but his intellectual faculties were free from any cloud.

Another incident occurred which does not require explanation, and which may not be open to any explanation. After the report of the Judiciary Committee, and its rejection by the House of Representatives, I was surprised to receive an invitation from the President to dine with him at what is known as a State dinner. I assumed that arrangements had been made for a series of such dinners, and that the invitation had been sent out by a clerk upon a prearranged plan as to the order of invitations. When the matter had passed out of my mind, but before the day named for the dinner, I received a call on the floor of the House from Mr. Cooper, son-in-law of the President and secretary in the Executive Mansion. He asked me if I had received an invitation to dine with the President. I said I had. Next he said, "Have you answered it?" I said, "No, I have not." That was followed by the further question, "Will you answer it?" I said, "No, I shall not." That ended the conversation.

After the decision in the Senate had been made, the managers proceeded under the order of the House to investigate the truthfulness of rumors that were afloat, that money and other valuable considerations had been used to secure the acquittal of the President. That investigation established the fact that money had been in the possession of persons who had been engaged in efforts to secure the acquittal of the President. Those persons, with perhaps a single exception, were persons who had no official connection with the Government, and none of them were connected with the Government at Washington. As to most of them, it appeared that they had no reasons, indeed no good cause, why they should have taken part either for the conviction of the President or in behalf of his acquittal. The sources from which funds were obtained did not appear, nor was there evidence indicating the amount that had been used, nor the objects to which the money had been applied. It should be said as to Senators, that there was no evidence implicating them in the receipt of money or other valuable considerations. One very important fact not then known to the managers appeared afterwards in the report of the Treasury Department, showing a very large loss by the Government during the last eighteen months of Mr. Johnson's administration. In that period the total receipts from the duties on spirits amounted to $41,678,684.34. During the first eighteen months of General Grant's administration, when the rates of duties and taxation remained the same, the total receipts of revenue from spirits amounted to $82,417,419.85, showing a difference of $40,738,735.51. It is not easy to explain in full this money loss in one branch of the public service. Something may be attributed to the fact that persons obtained nominations for office by representations to the President that they were his friends and supporters, and would continue to be so, under all circumstances. When their nominations came to the Senate, they made representations of an opposite character. When they had received their appointments, they very naturally allied themselves with the President's policy, inasmuch as they could not be easily removed except upon an initiative taken by him. This deficiency occurred in the states and districts in which the money should have been collected and through the agents employed there. It other words, no part of the deficiency ever passed into the Treasury of the United States.