History of the Impeachment of Andrew Johnson,

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The question being taken by yeas and nays, resulted:
Yeas--Anthony, Cole, Fessenden, Fowler, Grimes, Henderson,
Morton, Ross, Sumner, Tipton, Trumbull, Van Winkle, Willey, and
Yates--14--all Republicans.

Nays--Buckalew, Cameron, Cattell, Chandler, Conkling, Conness,
Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry,
Frelinghuysen, Harlan, Hendricks, Howard, Howe, Johnson,
McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Patterson
of New Hampshire, Patterson of Tennessee, Pomeroy, Ramsay,
Sherman, Sprague, Stewart, Thayer, Vickers, Williams, and
Wilson--35--26 Republicans and 9 Democrats.

So the proffered testimony was refused.

GENERAL EMORY'S TESTIMONY.

The Ninth Article of the Impeachment was based upon alleged
military changes in the City of Washington whereby the number of
troops on duty there was rumored to have been largely increased,
with a view to their use in the controversy between the President
and Congress, and more especially for the expulsion of Mr.
Stanton from the War Office in case of his resistance to the
order of the President for his retirement. The wildest rumors of
that character prevailed--that Mr. Johnson proposed to throw off
all disguise and assume direct military control and the
establishment of practically a military dictatorship. Congress
had some months previously enacted that all military orders from
the President should be issued through the General of the
Army--the Congress thereby assuming to practically abrogate a
constitutional function of the Chief Executive.

There was considerable confidence among the supporters of the
impeachment that they would be able to prove these allegations by
General Emory, then in local command of the troops and Department
of Washington. General Emory was called by the prosecution, and
the following was his testimony.

Examined by Mr. Butler:

Question: Will you have the kindness to state, as nearly as you
can what took place then? (Referring to an interview with the
President at the Executive Mansion.)

Answer: I will try and state the substance of it, but the words I
can not undertake to state exactly. The President asked me if I
recollected a conversation he had had with me when I first took
command of the department. I told him that I recollected the
facts of the conversation distinctly. He then asked me what
changes had been made. I told him no material changes, but such
as had been made I could state at once. I went on to state that
in the fall six companies of the 29th infantry had been brought
to this City to winter; but as an offset to that, four companies
of the 12th infantry had been detached to South Carolina on the
request of the Commander of that District; that two companies of
artillery had been detached by my predecessor, one of them for
the purpose of siding in putting down the Fenian difficulties,
had been returned to the command, that although the number of
companies head been increased, the numerical strength of the
command was very much the same, growing out of an order reducing
the artillery and infantry companies from the maximum of the war
establishment to the minimum of the peace establishment. The
President said: "I do not refer to those changes." I replied that
if he would state what changes he referred to, or who made the
report of the changes, perhaps I could be more, explicit. He
said, "I refer to recent changes within a day or two," or
something to that effect. I told him I thought I could assure him
that no changes had been made; that under a recent order issued
for the government of the armies of the United States, founded
upon a law of Congress, all orders had to be transmitted through
General Grant to the army, and in like manner all orders coming
from General Grant to any of his subordinate officers must
necessarily come, if in my department, through me; that if by
chance an order had been given to any junior officer of mine it
was his duty at once to report that fact. The President asked me.
"What order do you refer to?" I replied, "To order number 17 of
the series of 1867." He said, "I would like to see the order,"
and a messenger was dispatched for it. At this time a gentleman
came in who I supposed had business in no way connected with the
business I had in hand, and I withdrew to the farther end of the
room, and while there, the messenger came in with the book of
orders and handed it to me. As soon as the gentleman had
withdrawn, I returned to the President with the book in my hand,
and said I would take it as a favor if he would permit me to call
his attention to that order; that it had been passed in an
appropriation bill, and I thought it not unlikely that it had
escaped his attention. He took the order and read it, and
observed, "This is not in conformity with the Constitution of the
United States, that makes me Commander-in-Chief, or with the
terns of your commission." I replied, "That is the order which
you approved and issued to the army for our government," or
something to that effect. I can not recollect the exact words,
nor do I intend to quote the exact words of the President. He
said, "Am I to understand that the President of the United States
can not give an order except through the General of the Army? Or
General Grant?" I said in reply, that that was my
impression--that that was the opinion that the Army entertain,
and I thought upon that subject they were a unit. I also said, "I
think it is fair, Mr. President, to say to you that when this
order came out, there was considerable discussion on the subject
as to what were the obligations of an officer under that order,
and some eminent lawyers were consulted. I myself consulted
one--and the opinion was given to me decidedly and unequivocally
that we were bound by the order, Constitutional or not
Constitutional. The President observed that "the object of the
law was evident."

The following is that portion of the act referred to:

"Section 2. Be it further enacted: That the headquarters of the
General of the Army of the United States shall be at the City of
Washington, and all orders and instructions relating to military
operations issued by the President and Secretary of War shall be
issued through the General of the Army, and in case of his
inability, through the next in rank. The General of the, Army
shall not be removed, suspended, or relieved from command or
assigned to duty elsewhere than at said headquarters except at
his own request WITHOUT THE PREVIOUS APPROVAL OF THE SENATE; and
any orders or instructions relating to Military operations issued
contrary to the requirements of this section, shall be null and
void. And any officer who shall issue orders or instructions,
contrary to the provisions of this section, shall be deemed
guilty of a misdemeanor in office; and any officer of the Army
who shall transmit, convey or obey any orders or instructions so
issued contrary to the provisions of this section, knowing that
such orders were so issued shall be liable to imprisonment for
not less than two nor more than twenty years upon conviction
thereof in any Court of competent jurisdiction."

By turning to the Congressional Record of that day, it will be
found that Mr. Johnson was perfectly aware of the existence of
the foregoing provision of the Act of Congress in the bill
referred to, at the time he returned the bill to the House with
his signature. His reasons for so signing it are set out in the
following communication to the House accompanying the bill

The act entitled "An act making appropriations for the support of
the Army for the year ending June 30, 1868, and for other
purposes," contains provisions to which I must call attention.
There are propositions contained in the second section which in
certain cases deprives the President of his Constitutional
functions of Commander in Chief of the Army, and in the sixth
section, which denies to ten States of the Union their
Constitutional right to protect themselves in any emergency, by
means of their own militia. These provisions are out of place in
an appropriation act, but I am compelled to defeat these
necessary appropriations if I withhold my signature from the act.
Pressed by these considerations, I feel constrained to return the
bill with my signature, but to accompany it with my earnest
protest against the section which I have indicated.

Andrew Johnson.
Washington, D. C., March 2, 1868.

That Congress was to expire by limitation at 12 o'clock on the
4th, thirty-six hours later. If Mr. Johnson had vetoed the bill,
as under ordinary conditions it would have been his duty to the
Constitution and to himself to do, its re-passage through the two
Houses in that limited time would have been impossible, and the
appropriations carried by the bill for the support of the Army
would have been lost. To save them Mr. Johnson submitted to the
indignity put upon him by Congress in denying him a guaranteed
and manifest Constitutional right and power. In that act Mr.
Johnson illustrated a magnanimity and a consciousness of public
responsibility that was most creditible to himself, and in marked
contrast to the action of Congress toward him.

CHAPTER X. A CONFERENCE HELD AND THE FIRST VOTE TAKEN.

A few days prior to the day set for taking the vote on the
several Articles of Impeachment, and after the conclusion of
testimony, it was proposed that there be a private session for
conference of the Senate on a day named, May 11th, to give
Senators an opportunity to declare themselves on the pending
impeachment.

Neither the precise object or the utility of a conference were
then apparent, but the result was somewhat of a surprise to those
who had, up to that time, been undoubtingly confident of the
President's conviction. Comparatively few Senators had previously
declared their position. Very few, if any of the Republican
Senators had indicated a disposition to vote against any of the
articles, but the silence of a number of them, and their refusal
to commit themselves even to their associates, was a source of
uneasiness in Senatorial Impeachment circles. Hence, possibly,
the suggestion of a "conference."

It was taken for granted that every Democratic Senator would vote
against the impeachment. But the idea was not to be entertained
that the "no" votes would extend beyond the Democratic coterie of
twelve. There were, however, anxious misgivings as to that. There
was too much silence--too much of saying nothing when so little
that might be said would go so far to relieve an oppressive
anxiety.

So a session for "conference" was ordered and held, much to the
surprise of gentlemen whose silence had become somewhat
oppressive, and was becoming equally painful to those who wanted
a conference." It savored of an attempt to "poll the Senate" in
advance of judgment. It was resolved at the session of May 7th,
to hold a session for deliberation on the following Monday, May
11th. The most surprising development of that session was the
weakness of the bill of indictment at the very point where it was
apparently strongest--the first Article. Two conspicuous and
influential Senators--Messrs. Sherman of Ohio, and Howe of
Wisconsin--declared, and gave convincing reasons therefor, that
they would not vote for the impeachment of Mr. Johnson on that
Article.

In his remarks on this occasion, after giving a history of the
enactment of the Tenure-of-Office law, the first section of which
specifically excepts from its operation such members of Mr.
Johnson's Cabinet as had been appointed by Mr. Lincoln and still
remaining, though not recommissioned by Mr. Johnson, Mr. Sherman
said:

I can only say as one of the Senate conferees, under the solemn
obligations that now rest upon us in construing this Act, that I
did not understand it to include members of the Cabinet not
appointed by the President, and that it was with extreme
reluctance and only to secure the passage of the bill that, in
the face of the votes of the Senate I agreed to the report
LIMITING AT ALL the power of the President to remove heads of
Departments. * * * I stated explicitly that the Act as reported
did not protect from removal the members of the Cabinet appointed
by Mr. Lincoln, that President Johnson might remove them at his
pleasure; and I named the Secretary of war as one that might be
removed. * * * I could not conceive a case where the Senate would
require the President to perform his great executive office upon
the advice and through heads of Departments personally obnoxious
to him, and whom he had not appointed, and, therefore, no such
case was provided for. * * * Can I pronounce the President guilty
of crime, and by that vote aid to remove him from his high office
for doing what I declared and still believe he had a legal right
to do. God forbid: * * * What the President did do in the removal
of Mr. Stanton he did under a power which you repeatedly refused
to take from the office of the President--a power that has been
held by that officer since the formation of the Government. and
is now limited only by the words of an Act, the literal
construction of which does not include Mr. Stanton. * * * It
follows, that as Mr. Stanton is not protected by the
Tenure-of-Civil-Office Act, his removal rests upon the Act of
1789, and he according to the terms of that Act and of the
commission held by him, and in compliance with the numerous
precedents cited in this cause, was lawfully removed by the
President, and his removal not being contrary to the provisions
of the Act of March 2nd 1867, the 1st, 4th, 5th, and 6th
Articles, based upon his removal, must fail.

On this point, Mr. Howe said:

If Mr. Stanton had been appointed during the present Presidential
term. I should have no doubt he was within the security of the
law. But I cannot find that, either in fact or in legal
intendment, he was appointed during the present Presidential
term. It is urged that he was appointed by Mr. Lincoln, and such
is the fact. It is said that Mr. Lincoln's term is not yet
expired. Such I believe to be the fact. But the language of the
proviso is, that a Secretary shall hold not during the term of
MAN by whom he is appointed, but during the TERM of the PRESIDENT
by whom he may be appointed. Mr. Stanton was appointed by the
President in 1862. The term of that President was limited by the
Constitution. It expired on the 4th of March, 1865. That the same
incumbent was re-elected for the next term is conceded, but I do
not comprehend how that fact extended the former term.

Entertaining these views, and because the first Article of the
Impeachment charges the order of removal as a violation of the
Tenure-of-Office Act, I am constrained to hold the President not
guilty upon that Article.

These declarations, coming from two gentlemen of distinction and
influence in the party councils, both of whom Had actively
participated in framing the Tenure-of-Office Act, became at once
the occasion of genuine and profound surprise, and it is
unnecessary to say that they tended largely to strengthen the
doubts entertained by others as to the sufficiency of all the
other allegations of the indictment. They naturally and logically
reasoned that the removal of Mr. Stanton, set out in the first
Article, constituted, in effect, the essence of the indictment,
and that all that followed, (save the 10th Article was more in
the nature of specifications, or a bill of particulars, than
otherwise--that if no impeachable offense were set out in the
first Article, then none was committed, as that Article
constituted the substructure of all the rest--its essence and
logic running through and permeating practically all--and that
without that Article, there was no coherence or force in any of
them, and consequently nothing charged against the President that
was impeachable, as he had not violated the Tenure-of-Office law,
and was not charged with the violation of any other law.

That conference developed, further, that a large majority of the
Articles of Impeachment were objectionable to and would not be
supported by a number of Republican Senators.

Mr. Edmunds would not support the 4th, 8th, 9th, and 10th
Articles, being "wholly unsustained by proof," but would support
the 11th, though apparently doubtful of its efficiency.

Mr. Ferry could not support the 4th, 5th, 6th, 7th, 9th, or 10th
Articles.

Mr. Howard declared that he would not support the 9th Article.

Mr. Morrill of Vermont, would not support the 4th, 6th, 9th, or
10th Articles, as they were unproven.

Mr. Morrill, of Maine, Mr. Yates, Mr. Harlan, and Mr. Stewart,
would vote to convict on the Articles relating to the removal of
Mr. Stanton--uncommitted on all others.

Mr. Fessenden, Mr. Fowler, Mr. Grimes, Mr. Henderson, Mr.
Trumbull, and Mr. Van Winkle, each declared, at that conference,
their opposition to the entire list of the Articles of
Impeachment.

But eighteen Republicans committed themselves at that conference,
for conviction, out of twenty-four who filed opinions. While it
was taken for granted that the six Democrats who had failed to
declare their position at that conference would oppose
conviction, the position of the eighteen Republicans who had
failed to declare themselves became at once a source of very
grave concern in impeachment circles. Out of that list of
eighteen uncommitted Republicans, but one vote was necessary to
defeat the impeachment. This condition was still farther
intensified by the fact that eight of the eleven Articles of
Impeachment were already beaten in that conference, and
practically by Republican committals, and among them the head and
front and foundation of the indictment--the First Article--by
Messrs. Sherman and Howe, two conspicuous Republican leaders.

A forecast of the vote based on these committals as to the
several Articles, would be against the First Article, twelve
Democrats and eight Republicans, one more than necessary for its
defeat--the eight "not guilty" votes including Messrs. Sherman
and Howe.

Against the Fourth Article--twelve Democrats and nine
Republicans--including Messrs. Edmunds, Ferry, and Morrill of
Vermont.

Against the Fifth Article--twelve Democrats and eight
Republicans-including Messrs. Edmunds and Ferry.

Against the Sixth Article--twelve Democrats and nine
Republicans-including Messrs. Ferry, Howe, and Morrill of
Vermont.

Against the Seventh--Article-twelve Democrats and seven
Republicans--including Mr. Ferry.

Against the Eighth Article--twelve Democrats and seven
Republicans--including Mr. Edmunds.

Against the Ninth Article--twelve Democrats and twelve
Republicans--including Messrs. Sherman, Edmunds, Ferry, Howe,
Howard, and Morrill of Vermont.

Against the Tenth Article--twelve Democrats and ten
Republicans--including Messrs. Edmunds, Sherman, Ferry, and
Morrill of Vermont.

It is somewhat conspicuous that but three gentlemen--Messrs.
Sumner, Pomeroy, and Tipton, in their arguments in the
Conference, pronounced the President guilty on all the
charges--though five others, Messrs. Wilson, Patterson of New
Hampshire, Frelinghuysen, Cattell, and Williams, pronounced the
President guilty on general principles, without specification;
and Messrs. Morrill of Maine, Yates and Stewart, guilty in the
removal of Mr. Stanton, without further specification of charges.

As but one vote, in addition to the twelve Democratic and the six
Republican votes pledged against conviction at the Conference,
was necessary to defeat impeachment on the three remaining
Articles--the 2nd, 3rd, and 11th--and as nearly a half of the
Republicans of the Senate had failed to commit themselves, at
least in any public way, the anxiety of the advocates of
Impeachment became at once, and naturally, very grave. How many
of the eighteen Republicans who had failed to declare themselves
at that Conference might fail to sustain the Impeachment, became,
therefore, a matter of active solicitude on all sides, especially
in impeachment circles in and out of the Senate. Republican
committals in the Conference had rendered absolutely certain the
defeat of every Article of the Impeachment except the Second,
Third, and Eleventh, and the addition of but a single vote from
the eighteen uncommitted Republicans to the "No" side, would
defeat them.

It was under this unfavorable condition of the Impeachment cause,
that the Senate assembled on May 16th, 1868, for the purpose of
taking final action on the indictment brought by the House of
Representatives, the trial of which had occupied the most of the
time of the Senate for the previous three months, and which had
to a large degree engrossed the attention of the general public,
to the interruption of legislation pending in the two Houses of
Congress, and more or less to the embarrassment of the commercial
activities of the country.

For the first time in the history of the government, practically
eighty years, the President of the United States was at the bar
of the Senate, by virtue of a constitutional warrant, on an
accusation of the House of Representatives of high crimes and
misdemeanors in office, and his conviction and expulsion from
office demanded in the name of all the people. No event in the
civil history of the country had ever before occurred to so
arouse public antipathies and public indignation against any
man-and these conditions found special vent in the City of
Washington, as the Capitol of the Nation, as it had become during
the trial the focal point of the politically dissatisfied element
of the entire country. Its streets and all its places of
gathering had swarmed for many weeks with representatives of
every State of the Union, demanding in a practically united voice
the deposition of the President.

On numbers of occasions during the previous history of the
Government there had been heated controversies between the
Congress and the Executive, but never before characterized by the
intensity, not infrequently malevolence, that had come to mark
this and never before had a division between the Executive and
the Congress reached a point at which a suggestion of his
constitutional ostracism from office had been seriously
entertained, much less attempted.

But it had now come. The active, intense interest of the country
was aroused, and everywhere the division among the people was
sharply defined and keen, though the numerical preponderance, it
cannot be denied, was largely against the President and insistent
upon his removal.

The dominant party of the country was aroused and active for the
deposition of the President. Public meetings were held throughout
the North and resolutions adopted and forwarded to Senators
demanding that Mr. Johnson be promptly expelled from office by
the Senate--and it had become apparent, long before the taking of
the vote, that absolute, swift, and ignominious expulsion from
office awaited every Republican Senator who should dare to
disregard that demand.

Under these conditions it was but natural that during the
trial, and especially as the close approached, the streets of
Washington and the lobbies of the Capitol were thronged from day
to day with interested spectators from every section of the
Union, or that Senators were beleaguered day and night, by
interested constituents, for some word of encouragement that a
change was about to come of that day's proceeding, and with
threats of popular vengeance upon the failure of any Republican
Senator to second that demand.

In view of this intensity of public interest it was as a matter
of course that the coming of the day when the great controversy
was expected to be brought to a close by the deposition of Mr.
Johnson and the seating of a new incumbent in the Presidential
chair, brought to the Capitol an additional throng which long
before the hour for the assembling of the Senate filled all the
available space in the vast building, to witness the culmination
of the great political trial of the age.

Upon the closing of the hearing--even prior thereto, and again
during the few days of recess that followed, the Senate had been
carefully polled, and the prospective vote of every member from
whom it was possible to procure a committal, ascertained and
registered in many a private memoranda. There were fifty-four
members--all present. According to these memoranda, the vote
would stand eighteen for acquittal, thirty-five for
conviction--one less than the number required by the Constitution
to convict. What that one vote would be, and could it be had,
were anxious queries, of one to another, especially among those
who had set on foot the impeachment enterprise and staked their
future control of the government upon its success. Given for
conviction and upon sufficient proofs, the President MUST step
down and out of his place, the highest and most honorable and
honoring in dignity and sacredness of trust in the constitution
of human government, a disgraced man and a political pariah. If
so cast upon insufficient proofs or from partisan considerations,
the office of President of the United States would be
degraded--cease to be a coordinate branch of the Government, and
ever after subordinated to the legislative will. It would have
practically revolutionized our splendid political fabric into a
partisan Congressional autocracy. Apolitical tragedy was
imminent.

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