History of the Impeachment of Andrew Johnson,

E >> Edumud G. Ross >> History of the Impeachment of Andrew Johnson,

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The within writ came to hand at 7 o'clock a.m. and was served by
me on the said Lorenzo Thomas at 8 o'clock a.m, and I now return
this writ and bring him before Chief Justice Carter at 9 o'clock
a. m. of to-day.

David S. Gooding,
U. S. Marshal, D. C.

No. 15.

Mr. Johnson, (of the Court,) asked this question of General
Sherman, witness on the stand: When the President tendered to you
the office of Secretary of War, ad interim, on the 27th of
January, 1868, and on the 31st of the same month and year, did
he, at the very time of making such tender, state to you what his
purpose in so doing was?

Counsel for Prosecution objected, and Mr. Drake called for the
yeas and nays, which were taken, as follows:

Yeas--Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle,
Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Johnson,
McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton,
Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van
Winkle, Vickers, Willey--16--16 Republicans and 10 Democrats.

Nays-Cattell, Chandler, Conkling, Conness, Corbett, Cragin,
Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye,
Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson,
Yates--22--all Republicans.

The question was decided to be admissible, and the anawer was
"yes."

No. 16.

The next question, in immediate connection with the last, was:

If he did, state what he said his purpose was?

The yeas and nays were ordered and the vote was:

Yeas--Anthony, Bayard, Buckalew, Cole, Cobertt, Davis, Dixon,
Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson,
Hendricks, Johnson, McCreery, Morton, Norton, Patterson of
Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers,
Willey--26--15 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin,
Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of
Maine, Morrill of Vermont, Nye, Patterson of New Hampshire,
Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson,
Yates--25--all Republicans.

So the question was permitted to be answered, and General Sherman
said:

The President told me that the relations between himself and Mr.
Stanton, and between Mr. Stanton and the other members of the
Cabinet, were such that he could not execute the office which he
filled as President of the United States without making provision
ad interim for that office; that he had the right under the law;
he claimed to have the right, and his purpose was to have the
office administered in the interest of the Army and of the
Country; and he offered me the office in that view. He did not
state to me then that his purpose was to bring it to the Courts
directly; but for the purpose of having the office administered
properly in the interest of the Army and the whole Country. I
asked him why lawyers could not make a case, and not bring me, or
any ofcer of the Army, into the controversy. His answer was that
it was found impossible, or a case could not be made up; but,
said he "if we can bring the case to the Courts, it would not
stand half an hour."

Mr. Butler, of the Prosecution, objected, and after debate,
General Sherman continued:

The question first asked me seemed to restrict me so close to the
purpose that I endeavored to confine myself to that point alone.
On the first day, or first interview, in which the President
offered me the appointment ad interim, he confined himself to
very general terms, and I gave him no definite answer. The second
interview, which was on the afternoon of the 30th, was the
interview during which he made the points which 1 have testified
to. In speaking he referred to the constitutionality of the bill
known as the civil tenure-of-office bill, I think, or the tenure
of civil office bill; and it was the constitutionality of that
bill which he seemed desirous of having tested, and which, he
said, if it could be brought before the Supreme Court properly,
would not stand half an hour. We also spoke of force. I first
stated that if Mr. Stanton would simply retire, although it was
against my interest, against my desire, against my personal
wishes, and against my official wishes, I might be willing to
undertake to administer the office ad interim. Then he supposed
the point was yielded; and I made this point? "Suppose Mr.
Stanton do not yield?" he answered, "Oh! he will make no
objection; you present the order and he will retire." I expressed
my doubt, and he remarked. "I know him better than you do: he is
cowardly." I then begged to be excused from giving him an answer
to give the subject more reflection, and I gave him my final
answer in writing. I think that letter, if you insist on knowing
my views, should come into evidence, and not parol testimony
taken up; but my reasons for declining the office were mostly
personal in their nature.

Mr. Henderson (of the Court) asked this question:

Did the President, on either of the occasions alluded to, express
to you a fixed purpose or determination to remove Mr. Stanton
from his office?

General Sherman answered:

If by removal is meant a removal by force, he never conveyed to
my mind such an impression; but he did most unmistakably say that
he could have no more intercourse with him in the relation of
President and Secretary of War.

Mr. Howard (of the Court) asked the General:

You say the President spoke of force. What did he say about
force?

General Sherman answered:

I enquired, "Suppose Mr. Stanton do not yield? What then shall be
done?" "Oh," said he, "there is no necessity of considering that
question. Upon the presentation of an order he will simply go
away, or retire.

Mr. Henderson (of the Court) asked the question:

Did you give any opinion, or advice to the President on either of
those occasions in regard to the legality or propriety of an ad
interim appointment; and if so, what advice did you give, or what
opinion did you express to him?

Mr. Bingham of the prosecution, objected, and the Chair put the
question to the Senate whether it should be answered. The Senate,
without a division, refused answer to the question, and the
examination of Gen. Sherman closed for that day.

No. 17.

Wednesday, April 15th. The defense offered several extracts from
records of the Navy Department, to prove the practice of the
Government in cases of removal from office by different
Presidents prior to Mr. Johnson. of which the following are
samples:

NAVY AGENCY AT NEW YORK.

1861. June 20. Isaac Henderson was, by direction of the
President, removed from the office of Navy agent at New York, and
instructed to transfer to Paymaster John D. Gibson, of United
States Navy, all the public funds and other property in his
charge. Navy Agency at Philadelphia.

Dec. 26, 1851. James S. Chambers was removed from the office of
Navy Agent at Philadelphia and instructed to transfer to
Paymaster A. E. Watson, U. S. Navy, all the public funds and
other property in his charge.

The prosecution objected and the yeas and nays were ordered.

Yeas--Anthony, Bayard, Buckalew, Cole, Conkling, Corbett, Davis,
Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler,
Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson,
McCreery, Morrill of Maine, Morrill of Vermont, Morton, Patterson
of New Hampshire, Patterson of Tennessee, Ross, Saulsbery,
Sherman, Stewart, Sumner, Trumbull, Van Winkle, Vickers, Willey,
Wilson, Yates--36--25 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Conness, Cragin, Drake, Harlan,
Howard, Morgan, Nye, Pomeroy, Ramsay, Thayer, Tipton,
Williams--15--all Republicans.

So the evidence was admitted.

No. 18.

Thursday, April 16, Mr. Walter S. Cox on the stand. The defense
offered to prove:

That Mr. Cox was employed professionally by the President. in the
presence of General Thomas, to take such legal proceedings in the
case that had been commenced against General Thomas as would be
effectual to raise judicially the question of Mr. Stanton's legal
right to continue to hold the office of Secretary for the
Department of War against the authority of the President, and
also in reference to obtaining a writ of quo warranto for the
same purpose; and we shall expect to follow up this proof by
evidence of what was done by the witness in pursuance of the
above employment.

Mr. Drake demanded the yeas and nays, and they were ordered:

Yeas--Anthony, Bayard, Buckalew, Corbett, Davis, Dixon,
Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks,
Howe, Johnson, McCreery, Morrill of Maine, Morton, Norton,
Patterson of New Hampshire, Patterson of Tennessee, Ross,
Saulsbury, Sherman, Sprague, Sumner, Trumbull, Van Winkle,
Vickers, Willey--29--17 Republicans and 12 Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Cragin, Drake,
Edmunds, Ferry, Harlan, Howard, Morgan, Morrill of Vermont, Nye,
Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson,
Yates--21--all Republicans.

So the testimony was received, and the witness proceeded to
detail the steps he had taken by direction of the President to
procure a judicial determination of General Thomas' right to the
office of Secretary of War and to put him in possession, till
the following question was asked.

No. 19.

What did you do toward getting out a writ of habeas corpus under
the employment of the President.

Prosecution objected, and the yeas and nays were ordered:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson,
McCreery, Morrill of Maine, Morgan, Norton, Patterson of New
Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman,
Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--27--15
Republicans and 12 Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin,
Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of
Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams,
Wilson, Yates--23--all Republicans.

The Senate having decided the evidence to be admissible,

Mr. Cox proceeded:

When the Chief Justice announced that he would proceed as an
examining Judge to investigate the case of General Thomas, and
not as holding Court, our first application to him was to adjourn
the investigation into the Criminal Court then in session, in
order to have the action of that Court. After some little
discussion this request was refused. Our next effort was to have
General Thomas committed to prison, in order that we might apply
to that Court for a habeas corpus, and upon his being remanded by
that Court; if that should be done, we might follow up the
application by one to the Supreme Court of the United States. * *
* The Chief Justice having indicated an intention to postpone
the examination, we directed General Thomas to decline giving any
bail for further appearance, and to surrender himself into
custody, and announce to the Judge that he was in custody, and
then present to the Criminal Court an application for a writ of
habeas corpus. The Counsel on the other side objected that
General Thomas could not put himself into custody, and they did
not desire that he should be detained in custody. The Chief Judge
also declared that he would not restrain General Thomas of his
liberty, and would not hold him or allow him to be held in
custody. Supposing that he must be either committed or finally
discharged, we then claimed that he be discharged, not supposing
that the Counsel on the other side would consent to it, and
supposing that would bring about his commitment, and that we
should then have an opportunity of getting a habeas corpus. They
made no objection, however, to his final discharge, and
accordingly the Chief Justice did discharge him.

No. 20.

The witness, Mr. Cox, was asked by counsel for defense:

After you had reported to the President the result of your
efforts to obtain a writ of habeas corpus, did you do any other
act in pursuance of the original instructions you had received
from the President on Saturday to test the right of Mr. Stanton
to continue in the office; and if so, state what the acts were?

The yeas and nays were ordered on the demand of Mr. Howard.

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Hendricks, Howe, Johnson, McCreery,
Morrill of Maine, Morton, Norton, Patterson of New Hampshire,
Patterson of Tennessee, Ross, Saulsbery, Sherman, Sprague,
Sumner, Trumbull, Van Winkle, Vickers, Willey--27--15 Republicans
and 12 Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin,
Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Morgan,
Morrill of Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer,
Tipton, Williams, Wilson, Yates--23--all Republicans.

So the evidence was admitted, and Mr. Cox continued.

On the same day or the next, I prepared an information in the
nature of a quo warranto. I think a delay of one day occurred in
the effort to procure certified copies of Gen. Thomas' commission
as Secretary of War ad interim, and of the order to Mr. Stanton.
I then applied to the District Attorney to sign the information
in the nature of a quo warranto, and he declined to do so without
instructions or a request from the President or the Attorney
General. This fact was communicated to the Attorney General and
the papers were sent to him. Nothing was done after this time by
me.

No. 21.

The defense offered to prove:

That the President then stated that he had issued an order for
the removal of Mr. Stanton and the employment of Mr. Thomas to
perform the duties ad interim; that thereupon Mr. Perrin said,
"Supposing Mr. Stanton should oppose the order." The President
replied: "There is no danger of that, for General Thomas is
already in the office." He then added: "It is only a temporary
arrangement; I shall send in to the Senate at once a good name
for the office.

Mr. Butler, for prosecution, objected, and the vote was:

Yeas--Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks,
McCreery, Patterson of Tennessee, and Vickers--9--all Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Corbett,
Cragin, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes,
Harlan, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill
of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy,
Ramsay, Ross, Sherman, Sprague, Stewart, Thayer, Tipton,
Trumbull, Van Winkle, Willey, Williams, Wilson, and
Yates---37--36 Republicans and 1 Democrat.

So this testimony was rejected.

No. 22.

Friday, April 17. The defense offered to prove:

That on this occasion (a Cabinet meeting previously mentioned),
the President communicated to Mr. Welles, and the other members
of his Cabinet, before the meeting broke up, that he had removed
Mr. Stanton and appointed General Thomas Secretary of War ad
interim; and that, upon the inquiry by Mr. Welles whether General
Thomas was in possession of the office, the President replied
that he was, and on further question of Welles, whether Mr.
Stanton acquiesced, the President replied that he did; all that
he required was time to remove his papers.

Mr. Butler objected and the yeas and nays were ordered.

Yeas--Anthony, Bayard, Buckalew, Cole, Conkling, Corbett, Davis,
Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson,
McCreery, Morton, Patterson of Tennessee, Ross, Saulsbery,
Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers,
Willey--26--15 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Conness, Cragin, Drake, Edmunds, Ferry,
Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine,
Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay,
Stewart, Thayer, Tipton, Williams, Wilson, Yates--2-3-all
Republicans.

So the testimony was received, and the following proceeding was
had Mr. Evarts, of Counsel for the President. Mr. Welles on the
stand:

Please state, Mr. Welles, what communication was made by the
President to the Cabinet on the subject of the removal of Mr.
Stanton and the appointment of General Thomas, and what passed at
the time?

Mr. Welles: As I remarked, after the Departmental business had
been disposed of, the President remarked, as usual when he had
anything to communicate himself, that before they separated it
would be proper for him to say that he had removed Mr. Stanton
and appointed the Adjutant General Lorenzo Thomas, Secretary ad
interim. I asked whether General Thomas was in possession. The
President said he was; that Mr. Stanton required some little time
to remove his writings, his papers; I said, perhaps, or I asked,
"Mr. Stanton, then, acquiesces?" He said he did, as he considered
it. * * *

Question: Now, sir, one moment to a matter which you spoke of
incidentally. You were there the next morning about noon?

Answer: I was.

Question: Did you then see the appointment of Mr. Ewing?

Answer: I did.

Question: Was it made out before you came there, or after, or
while you were there?

Answer: While I was there.

Question: And you then saw it?

Answer: I saw it.

Question by Mr. Johnson (of the Court): What time of the day was
that?

Answer: It was about twelve.

* * * Question by Mr. Evarts: Did you become aware of the
Tenure-of-office bill, as it is called, at or about the time that
it passed Congress?

Answer: I was aware of it.

Question: Were you present at any Cabinet meeting at which, after
the passage of that Act, it became the subject of consideration?

Answer: Yes, on two occasions. The first occasion when it was
brought before the Cabinet was on the 26th of February, 1867.

Question: Who were present?

Answer: All the Cabinet were present.

Question: Was Mr. Stanton there?

Answer: Mr. Stanton was there, I think, on that occasion.

Question: This civil tenure act was the subject of consideration
there?

Answer: It was submitted.

Question: As a matter of consideration in the Cabinet?

Answer: For consultation for the advice and opinion of members.

Question: How did he submit the matter to your consideration?

Mr. Butler objected and demanded that the offer be put in
writing.

No. 23.

That the President at a meeting of the Cabinet, while the bill
was before the President for his approval, laid before the
Cabinet the tenure-of-civil-office bill for their consideration
and advice to the President respecting his approval of the bill:
and thereupon the members of the Cabinet then present gave their
advice to the President that the bill was unconstitutional and
should be returned to Congress with his objections, and that the
duty of preparing a message, setting forth the objections to the
constitutionality of the bill, was devolved on Mr. Seward and Mr.
Stanton; to be followed by proof as to what was done by the
President and Cabinet up to the time of sending in the message.

After argument the yeas and nays were taken:

Yeas--Anthony Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson,
McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van
Winkle, Vickers, and Willey--20--9 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan,
Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont,
Patterson of New Hampshire, Pomeroy, Ramsay Sherman, Sprague,
Stewart, Thayer, Tipton, Williams, Wilson, and Yates--29--all
Republicans.

So this testimony was rejected.

No. 21.

Counsel for Defense offered to prove:

That at the meetings of the Cabinet at which Mr. Stanton was
present, held while the tenure-of-civil-office bill was before
the President for approval, the advice of the Cabinet in regard
to the same was asked by the President and given by the Cabinet,
and thereupon the question whether Mr. Stanton and the other
Secretaries who had received their appointment from Mr. Lincoln
were within the restrictions upon the President's power of
removal from office created by said act was considered, and the
opinion expressed that the Secretaries appointed by Mr. Lincoln
were not within such restrictions.

The yeas and nays were ordered, and the vote was:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson,
McCreery, Patterson of Tennessee, Ross, Saulsbury, Sherman,
Sprague, Trumbull, Van Winkle, Vickers, and Willey--22--11
Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole. Conness. Corbett, Cragin,
Drake, Edmunds, Ferry, Frelinghusen, Harlan, Howard, Howe,
Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New
Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams,
Wilson, and Yates--26--all Republicans.

So this testimony was rejected.

No. 25.

Counsel for defense offered to prove:

That at the Cabinet meetings between the passage of the
tenure-of-civil office bill and the order of the 21st of
February, 1868, for the removal of Mr. Stanton. upon occasions
when the condition of the public service, as affected by the
operation of that bill, came up for the consideration and advice
of the Cabinet, it was considered by the President and Cabinet
that a proper regard to the public service made it desirable that
upon some proper case a judicial determination of the
constitutionality of the law should be obtained.

The question being taken by yeas and nays, resulted:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson,
McCreery, Patterson of Tennessee, Ross, Saulsbury Trumbull, Van
Winkle, and Vickers--19--8 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan,
Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont,
Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Sprague,
Stewart, Thayer, Tipton, Willey, Williams, Wilson and
Yates--30--all Republicans.

So the proffered testimony was rejected.

No. 26.

Counsel for defense put this question to witness, (Mr. Welles,
then Secretary of the Navy.)

Was there, within the period embraced in the inquiry in the last
question, and at any discussions or deliberations of the Cabinet
concerning the operation of the tenure-of-civil-office act and
the requirements of the public service in regard to the service,
any suggestion or intimation whatever touching or looking to the
vacation of any office by force or getting possession of the same
by force?

Counsel for prosecution objected, and the vote was:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Edmunds,
Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery,
Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle,
and Vickers--18--8 Republicans and 10 Democrats.

Nay-s-Cattell, Chandler, Cole, Conkling, Conness, Corbett,
Cragin, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan,
Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire,
Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Willey,
Williams, Wilson, and Yates--26--all Republicans.

So the proffered testimony was rejected.

No. 27.

Defense offered to prove:

That at the meetings of the Cabinet at which Stanton was present,
held while the tenure-of-civil-office bill was before the
President for approval, the advice of the Cabinet in regard to
the same was asked by the President, and given the Cabinet, and
thereupon the question whether Mr. Stanton and the other
Secretaries who had received their appointments from Mr. Lincoln
were within the restrictions upon the President's power of
removal from office created by said act, was considered and the
opinion expressed that the Secretaries appointed by Mr. Lincoln
were not within such restrictions.

Mr. Johnson: I ask that the question propounded by the Senator
from Ohio (Mr. Sherman) shall now be read.

The Secretary read the question as follows:

State if, after the 2d of March, 1867, the date of the passage of
the tenure-of-office act, the question whether the Secretaries
appointed by President Lincoln were included within the
provisions of that act came before the Cabinet for discussion;
and if so, what opinion was given on this question by members of
the Cabinet to the President.

The yeas and nays were ordered; and being taken resulted:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery,
Patterson of Tennessee, Ross, Saulsbury, Sherman, Trumbull, Van
Winkle, Vickers, and Willey--20--9 Republican and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Edmunds, Ferry, Frelinghuysen, Harlan, Howard,
Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of
New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton,
Williams, Wilson, and Yates--26--all Republicans.

So the proffered testimony was rejected.

No. 28.

The Prosecution proposed to put in evidence the nomination of
Lieutenant General Sherman, to be General by brevet, sent to the
Senate on the 13th of February, 1868, also the nomination of
Major General George H. Thomas to be Lieutenant General by
brevet, and to be General by brevet, sent to the Senate on the
21st of February, 1868.

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