On the 27th of January, a motion was made by Mr. Spalding in the House of Representatives that the Committee on Reconstruction be authorized to inquire what combinations had been made to obstruct the due execution of law and to report what action, if any, was necessary in consequence thereof. This resolution was adopted by a vote of 99 to 31. A few days later, on the motion of Thaddeus Stevens the evidence taken by the Committee on the Judiciary on the impeachment question was referred to the Committee on Reconstruction. Certain correspondence that had passed between General Grant and President Johnson relating to the retirement of the former from the War Office was also sent to the same committee.
The correspondence between General Grant and the President here referred to gives a fresh illustration of Andrew Johnson's want of tact in dealing with men and events. He first made an accusation that Grant had failed to keep a promise that he had previously given that "if you [Grant] should conclude that it would be your duty to surrender the department to Mr. Stanton, upon action in his favor by the Senate, you were to return the office to me, prior to a decision by the Senate, in order that if I desired to do so I might designate somebody to succeed you." This letter was dated January 31, 1868. Grant replied (February 3) denying that he had made any such promise, and saying that the President in making this accusation had sought to involve him in a resistance to law and thus to destroy his character before the country. Several other letters followed, including one from each member of the Cabinet, who was present when the matter was talked of between the two principals, all confirming the President's statements. The letters of Browning and Seward, however, tended to show that the President's desire was to make up a case for the Supreme Court, to decide whether he had a right under the Constitution to remove a Cabinet officer or not, and that he supposed that Grant had promised to coöperate with him to promote that end; but that whatever Grant might have promised, the sudden action of the Senate led him to believe that he could not delay his retirement without subjecting himself to the chance of fine and imprisonment under the Tenure-of-Office Law.[103]
The quarrel between Johnson and Grant did not, however, help the impeachers, who were voted down in the Committee on Reconstruction, February 13, by 6 to 3, Stevens being in the minority.
Stanton was now in a position of great embarrassment, being a member of the Cabinet by appointment of the Senate, but unable to attend Cabinet meetings. He was endowed with sufficient assurance for most purposes, but not enough to go to the White House and take a seat among gentlemen who would have looked upon him as an intruder and a spy. Johnson was advised by General Sherman and others to leave him severely alone.[104]
If this advice had been followed, Stanton would have been exposed to ridicule ere long and the Senate could not have helped him to ward it off. But Johnson came to his rescue by making a fresh attempt to oust him. Eight days after Thaddeus Stevens's impeachment resolution had been voted down, two to one, in his own committee, the President sent a note to Edwin M. Stanton saying that he had removed him from the office of Secretary of War and appointed Lorenzo Thomas, the Adjutant-General of the Army, as Secretary of War ad interim. The new appointee immediately presented himself at the War Office and showing his authority demanded possession, which Stanton refused to yield.
The tables were instantly turned. Stanton was no longer looked upon as holding an office with nothing to do except to draw his salary, but as a champion of the people defending them against a law-breaking President. Grant had warned Johnson months before that the public looked upon the Tenure-of-Office Law as constitutional until pronounced otherwise by the courts, and that although an astute lawyer might explain it differently the common people would "give it the effect intended by its framers," that is, to protect Stanton.[105]
This was sound advice. The revulsion in the public mind was electrical in suddenness and strength. The House of Representatives, which, on the 7th of December, by nearly two to one had rejected an impeachment resolution recommended by its Judiciary Committee, now (February 24) adopted the same resolution by 128 to 47. Every Republican member who was present, including James F. Wilson, voted in the affirmative. A committee of seven was appointed to prepare articles of impeachment and present them to the Senate. Nine such articles were reported to the House on the 2d of March and two additional ones on the following day, all of which were agreed to, and seven members of the House were appointed as managers to conduct the impeachment, namely: John A. Bingham, George S. Boutwell, James F. Wilson, Benjamin F. Butler, Thomas Williams, John A. Logan, and Thaddeus Stevens.
The trial began on the 5th of March, Chief Justice Chase presiding. The President was represented by Henry Stanbery, Benjamin R. Curtis, William S. Groesbeck, William M. Evarts, and Thomas A. R. Nelson. The House managers were overmatched in point of legal ability by the President's counsel, and still more by the facts in the case. The first eight articles of impeachment were based upon the President's attempt to remove Stanton and appoint Thomas as Secretary of War ad interim, but inasmuch as Senator Sherman had publicly declared that Stanton, being an appointee of Lincoln, was not protected by the Tenure-of-Office Law, and that he ought to be removed anyhow if he refused to resign at the President's request, it was deemed best by the impeachers to divide the offense into two parts. So the first article related only to the removal of Stanton and the second only to the appointment of Thomas. This, it was believed, would enable Sherman to vote not guilty on the first, but guilty on the second. He could vote that the President had a perfect right to remove his Secretary of War, but no right to fill the vacancy, and that any attempt on his part to do so would be a high misdemeanor, punishable by impeachment and removal from office. And so it turned out as regarded Sherman's vote, and also that of Senator Howe, of Wisconsin, who shared Sherman's view that Stanton was not protected by the law.
The ninth article charged the President with having a conversation with General Emory, who commanded the military department of Washington, and saying to him that that portion of the Army Appropriation Act, which provided that all orders relating to military affairs should be issued through the General of the Army, or the officer next in rank, and not otherwise, was unconstitutional, thus seeking to induce said Emory to violate the provisions of said act.