History of the Impeachment of Andrew Johnson,

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

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The next interrogatory, No. 9, was "when the President asked the
witness (Gen. Sherman,) to accept the War Office, was anything
further said in reference to it?" This was objected to by the
prosecution, and the vote thereon was 23 to 29. Twenty-eight of
the twenty-nine gentlemen thus refusing answer to this question,
afterwards voting to convict the President, after refusing to
bear the testimony of a very important witness in his behalf,
which his counsel proposed to produce and tried in vain to get
before the Senate.

On the tenth interrogatory, by Defense, "whether the President
had stated to the witness, (General Sherman), his object in
asking him to accept the War Office," the vote was 7 to 44
against receiving it, and thirty-one of the gentlemen voting not
to hear this testimony, at the close of the hearing voted to
convict Mr. Johnson of a high misdemeanor in office in the
removal of Mr. Stanton, after refusing to hear his defense.

The next, No. 11, was as to the President's attempt to get a case
before the Supreme Court for a judicial determination of Mr.
Stanton's right to retain the War Office against the President's
wish. This testimony was refused by a vote of 25 to 27--every nay
vote being cast by a Republican, every one of whom at the close
of the trial, voting in effect to convict Mr. Johnson of a high
misdemeanor in office in seeking resort to the courts to test the
legality of an act of Congress passed for the practically sole
purpose of restricting an executive function never before
questioned.

The next interrogatory, No. 12, was whether the witness, (General
Sherman, had formed an opinion whether the good of the service
required a Secretary of War other than Mr. Stanton. It was well
understood that General Sherman believed that for the good of the
service Mr. Stanton ought to retire, and as the Chief Officer of
the Army his opinion was certainly entitled to weight, and the
President had a right to the benefit of his judgment. This
interrogatory was objected to by the Prosecution, and was
rejected by a vote of 18 to 35--thirty-one of the thirty-five
being Republicans, who at the close of the trial voted to convict
Mr. Johnson of a high misdemeanor in the removal of Mr. Stanton,
after refusing him the benefit of the opinion of the Chief
Officer of the Army on a question affecting the military service,
and to which he was in all fairness clearly entitled.

No. 13, General Sherman was asked whether he had advised, the
President to appoint a successor to Mr. Stanton. (It was well
understood that he had.) Answer to this was refused, 18 to
32--thirty of the latter, all Republicans, voting at the close of
the trial to convict Mr. Johnson, after refusing to hear this
important testimony in his behalf. No. 16. The answer to the last
interrogatory, ("if he did, state what his purpose was,") was
received by a majority of one, 26 to 25--every nay vote being a
Republican, and constituting a majority of the Republicans of the
Senate.

No. 21. Mr. O. E. Perrin on the stand, was asked as to the
President's statement that Mr. Stanton would relinquish the
office at once to General Thomas--"that it was only a temporary
arrangement"--that he would "send to the Senate at once the name
of a good man," (which he did). This testimony was rejected by a
vote of 9 to 37--thirty of the latter number being Republicans
who at the close of the trial voted to convict Mr. Johnson of a
high misdemeanor in sending to the Senate the name of Thomas
Ewing, Senior, for appointment as Secretary of War, vice Stanton
removed in assumed violation of the Tenure-of-Office Act.

The next offer of testimony to be rejected was No. 23--Mr. Gideon
Welles, Secretary of the Navy, on the stand, to prove that the
Cabinet had advised the President to veto the Tenure-of-Office
Bill as unconstitutional. The Chief Justice ruled the testimony
admissible for the purpose of showing the intent with which the
President had acted in the transaction. Prosecution objected, and
by a vote of 20 to 29, the decision of the Chief Justice was
overruled. No answer to this interrogatory was permitted, every
vote to refuse this testimony being cast by a Republican, every
one of whom, at the close of the trial, voting to convict and
remove Mr. Johnson for alleged violation of a law which he
believed to be unconstitutional--which he was advised by the head
of the Law Department of the Government was unconstitutional and
therefore not a law which he had sworn to execute, and the
constitutionality of which he had endeavored to get before the
courts for adjudication--those 29 Republicans so voting after
having refused to hear testimony in his defense on these
identical points.

The next disputed interrogatory was No. 24--that Mr. Johnson's
Cabinet had advised him that the Secretaries who had been
appointed by Mr. Lincoln and still holding, (Mr. Stanton, Mr.
Seward, and Mr. Welles,) were removable by the President,
notwithstanding the assumed restriction of the Tenure-of-Office
Act. The Chief Justice ruled this testimony to be admissible.
Objection was made by the Prosecution, and a vote taken, and the
interrogatory was rejected--22 to 26--every nay vote being a
Republican, every one of whom at the close of the trial, voting
to convict and remove Mr. Johnson from office, after having
refused to hear this very important testimony in his behalf.

Defense next offered to prove (No. 25) that it was determined by
the President, with the concurrence of the Cabinet, that an
agreed case for the determination of the constitutionality of the
Tenure-of-Office Act should be made. This testimony was objected
to, and a vote taken, which was 19 to 30. Every one of the
gentlemen voting to reject this testimony, Mr. Johnson's right to
which cannot with any possible showing of fairness be
successfully disputed, were Republicans, and after so voting, at
the close of the trial, declared by their several verdicts that
he had been fairly proven guilty of a high misdemeanor in office,
by violation of the Tenure-of-Office Act in seeking a judicial
determination of the validity of a disputed Act of Congress, and
should be expelled from office.

No. 26, was as to any suggestion by the President of the
employment of force for the vacation of any office, (relating of
course, to the War Office.) Mr. Johnson had been charged with
seeking the removal of Mr. Stanton by force, should he resist.
Knowing perfectly that the answer would be in the negative, the
Senate refused to permit answer to this interrogatory, by a vote
of 18 to 26, every one of the twenty-six gentlemen at the
close of the trial in effect voting that the President was guilty
as charged, of seeking to remove Mr. Stanton by violence, after
refusing to hear either his denial or witnesses in his behalf on
that point.

No. 27. Defense proposed to prove that the Cabinet had advised
the President that the Tenure-of-Office Act did not prevent the
removal of those members who had been originally appointed by Mr.
Lincoln. This testimony, which, if permitted answer, would, in
the minds of unprejudiced people, have at once set aside the
entire impeachment scheme, was not permitted answer. The vote was
20 to 26--every one of the twenty-six gentlemen who voted to
reject that most important and conclusive testimony in Mr.
Johnson's behalf, at the close of the examination voting to
convict him of a high misdemeanor in office by violating the
Tenure-of-Office Act in removing Mr. Stanton from the office of
Secretary of War--after refusing this offer to prove by his
Cabinet advisers; the witness himself, (Mr. Welles, and his
testimony, if received, was to be followed by that of Mr. Seward
and Mr. Stanton, all of whom had been appointed by Mr. Lincoln
and not re-appointed by Mr. Johnson,) that that act did not apply
to or protect them against removal at the pleasure of the
President. So that on eighteen of these twenty-one disputed
interrogatories put in behalf of the Defense, a majority of the
Republicans of the Senate refused in every instance to hear
testimony, after having sworn to give Mr. Johnson a fair and
impartial trial.

But the most flagrant case of unfairness to the defendant in this
examination of witnesses occurred in the treatment of
interrogatory No. 3, put by the prosecution, in their
introduction of a letter from the President to General Grant,
purporting to enclose letters from different members of the
Cabinet in substantiation of the position of the President in the
controversy then pending between Gen. Grant and himself. These
letters were enclosed with, and specifically referred to and made
a part of the President's communication, and were necessary to a
correct apprehension of the controversy, from the President's or
any other standpoint.

Being so enclosed and referred to in the letter transmitting and
enclosing them, they became quite as much a part of the
President's communication as his own letter which enclosed them.
Counsel for Defense objected to the introduction of the
President's letter without the enclosures, but the objection was
not sustained and the letters were not permitted to be
introduced, but the letter enclosing and referring to them was.
The vote on the production of the enclosures was, yeas 20, nays
29--twenty-eight of the thirty-eight Republicans present, voting
to exclude this essential testimony in the President's behalf,
and twenty-seven of the number afterwards voted to convict him of
a high misdemeanor in office in removing Mr. Stanton from the War
Office, after refusing him the benefit of the testimony of his
Constitutional Cabinet advisers in this important matter.

It is possible that under other conditions this proceeding might
have been legitimate and proper; but Mr. Johnson was on trial
under grave charges, before the highest, and supposably fairest
tribunal on earth, and had a right to the benefit of the
testimony of his cabinet, in full, and more especially when that
testimony was presented in a distorted and garbled shape by his
accusers. Moreover, every member of the Court had the right to
know what was in those letters, if any part of the correspondence
was to be received. But whether or not Mr. Johnson had the right
to the testimony in his behalf which it was claimed these
enclosures contained, he certainly had the right to resist the
introduction of mutilated testimony against him. The purpose of
the trial was to ascertain the facts in the case--all the facts
bearing on either side. The Court was sitting and the witnesses
were called for that purpose, and no other.

This record shows, that in but three instances out of twenty-one,
did a majority of the Republicans of the Senate vote to receive
testimony offered in the President's behalf--that on one
interrogatory there was an equal division--that on seventeen of
the twenty-one interrogatories put by the Defense, a majority of
the Republicans voted to exclude testimony, in several cases by a
two-thirds vote--and that but nine of the twenty-one
interrogatories put in behalf of the President were by Republican
votes permitted to be answered--also that, as a rule which had
very rare exceptions, such interrogatories in behalf of the
President as were permitted answer, were so permitted by very
close majorities.

It is undoubted that every Republican member of the Senate
entered upon that trial in the expectation that the allegations
of the Prosecution would be sustained, but it was also expected
that a fair, free, full, open investigation of all the charges
preferred would be had, and that all the information possible to
be obtained bearing upon the case, pro and con, would be admitted
to testimony--but that expectation was not realized.

To sum up this feature of the proceeding--the Republican majority
of the Senate placed themselves and their party in the attitude
of prosecutors in the case--instead of judges sworn to give the
President an impartial trial and judgment that their course had
the appearance, at least, of a conspiracy to evict the President
for purely partisan purposes, regardless of testimony or the
facts of the case-that public animosity against Mr. Johnson had
been manufactured throughout the North by wild and vicious
misrepresentations for partisan effect--that practically the
entire Republican Party machinery throughout the country was bent
to the work of prosecution. The party cry was "Crucify him!"
"Convict him anyway, and try him afterwards!" With rare
exceptions, the Republican Party of the country, press and
people, were a unit in this insensate cry.

They were ready to strike, but not to hear.

There can be but one conclusion from these premises, established
by the record of the trial--that the entire proceeding, from its
inception in the House of Representatives to its conclusion in
the Senate, was a thoroughly partisan prosecution on the part of
the majority in both Houses, and that the country was saved from
the shameful spectacle, and the dangerous consequences of such a
proceeding, by the intervention and self-sacrifice of a few
gentlemen who proposed to respect the obligation of their oath,
and give Mr. Johnson, so far as in their power, a fair trial and
judgment--and not having had such a trial--to give him the
benefit of what he claimed he could prove in his own behalf and
was not permitted to--and a verdict of "Not Guilty," regardless
of consequences to themselves.

What every member of the Court had sworn to do was "impartial
justice" to Andrew Johnson, and nothing less. The Counsel on
neither side had taken that oath, but the Court had; and its
performance of that oath was impossible without possession of all
the information relating to and bearing upon the case that it was
reasonably possible to obtain. That is the essential ingredient
and characteristic of a fair trial.

THAT ESSENTIAL INGREDIENT OF JUDICIAL FAIRNESS WAS NOT SHOWN TO
MR. JOHNSON IN THIS CASE BY THE REPUBLICAN MAJORITY OF THE
SENATE, as the official record of the trial clearly establishes.
It was an ill-disguised and malevolent partisan prosecution.

CHAPTER XIII. THE CONSTITUTIONAL POWER OF IMPEACHMENT.

The power conferred by the Constitution upon Congress to impeach
and remove the President for cause, is unquestionably a wise
provision. The natural tendency of the most patriotic of men, in
the exercise of power in great public emergencies, is to overstep
the line of absolute safety, in the conscientious conviction that
a departure from strict constitutional or legal limitations is
demanded by the public welfare.

The danger in such departures, even upon apparent necessity, if
condoned or permitted by public judgment is in the establishment
of precedents whereby greater and more dangerous infractions of
organic law may be invited, tolerated, and justified, till
government takes on a form of absolutism in one form or another,
fatal to free institutions, fatal to a government of law, and
fatal to popular liberty.

On the other hand, a too ready resort to the power of impeachment
as a remedial agent--the deposition of a public officer in the
absence of proof of the most positive and convincing character of
the impeachability of the offense alledged, naturally tends to
the other extreme, till public officers may become by common
consent removable by impeachment upon insufficient though popular
charges--even upon partisan differences and on sharply contested
questions of public administration.

The power of impeachment and removal becomes, therefore, a
two-edged sword, which must be handled with consummate judgment
and skill, and resort thereto had only in the gravest emergencies
and for causes so clearly manifest as to preclude the possibility
of partisan divisions or partisan judgments thereon. Otherwise,
too ready resort to impeachment must inevitably establish and
bring into common use a new and dangerous remedy for the cure of
assumed political ills which have their origin only in partisan
differences as to methods of administration. It would become an
engine of partisan intolerance for the punishment and ostracism
of political opponents, under the operation of which the great
office of Chief Magistrate must inevitably lose its dignity, and
decline from its Constitutional rank as a co-ordinate department
of the Government, and its occupant no longer the political head
and Chief Executive of the Nation, except in name.

It was in that sense, and to a pointed degree, that in the
impeachment and trial of Andrew Johnson the quality of
coordination of the three great Departments of Government--the
Executive, Legislative, and Judicial--was directly involved--the
House of Representatives as prosecutor--the President as
defendant--the Senate sitting as the trial court in which the
Chief Justice represented the judicial department as presiding
officer.

The anomaly of the situation was increased and its gravity
intensified, by the fact that the President pro tempore of the
Senate, who stood first in the line of succession to the
Presidency in case of conviction, was permitted, in a measure,
indeed, forced by his pro-impeachment colleagues, on a partisan
division of the Senate, to sit and vote as such President pro
tempore for the impeachment and removal of the President whom he
was to succeed.

These facts of condition attending and characterizing the trial
of President Johnson, pointedly accentuate the danger to our
composite form of government which the country then faced. That
danger, as it had found frequent illustration in the debates in
the House of Representatives on the several propositions for the
President's impeachment preceding the bringing of the indictment,
lay in the claim of superiority of political function for the
Legislative branch over the Executive. The quality of
co-ordination of these departments was repeatedly and
emphatically denied by conspicuous and influential members of
that body during the initial proceedings of the impeachment
movement, and even on the floor of the Senate by the managers of
the impeachment. To illustrate:

Mr. Bingham, in the House, Feb. 22nd, 1868, announced the
extraordinary doctrine that "there is no power to review the
action of Congress." Again, speaking of the action of the Senate
on the 21st of February, on the President's message announcing
the removal of Mr. Stanton, he said: "Neither the Supreme Court
nor any other Court can question or review this judgment of the
Senate."

The declaration was made by Messrs. Stevens and Boutwell in the
House, that the Senate was its own judge of the validity of its
own acts.

Mr. Butler, in his opening speech to the Senate, at the beginning
of the trial, used this language:

A Constitutional tribunal solely, you are bound by no law, either
Statute or Common, which may limit your constitutional
prerogative. You consult no precedents save those of the law and
custom of parliamentary bodies. You are a law unto yourselves,
bound only by the natural principles of equity and justice, and
salus populi suprema est lex.

Feb. 24, 1868, Mr. Stevens said in the House:

Neither the Executive nor the Judiciary had any right to
interfere with it (Reconstruction) except so far as was necessary
to control it by military rule until the sovereign power of the
Nation had provided for its civil administration. NO POWER BUT
CONGRESS HAD ANY RIGHT TO SAY WHETHER EVER, OR WHEN, they (the
rebel States), should be admitted to the Union as States and
entitled to the privileges of the Constitution of the United
States." * * * "I trust that when we come to vote upon this
question we shall remember that although it is the duty of the
President to see that the laws be executed, THE SOVEREIGN POWER
OF THE NATION RESTS IN CONGRESS.

Mr. Butler, the leading spirit of the impeachment enterprise,
went so far as to make the revolutionary suggestion of the
abrogation of the Presidential office in the event of final
failure to convict the President--set out in the 8th Chapter.

Mr. Sumner insisted that in no judicial sense was the Senate a
Court, and therefore not bound by the rules of judicial
procedure:

If the Senate is a Court bound to judicial forms on the expulsion
of the President, must it not be the same in the expulsion of a
Senator? But nobody attributes to it any such strictures in the
latter case. * * In the case of Blount, which is the first in our
history, the expulsion was on the report of a committee declaring
him guilty of a high misdemeanor. At least one Senator has been
expelled on simple formal motion. Others have been expelled
without any formal allegations or formal proofs. * * * The
Constitution provides that "Each House shall determine its rules
of proceeding." The Senate on the expulsion of its own members
has already done. this practically and set an example of
simplicity. But it has the same power over its rules of
proceeding" on the expulsion of the President, and there can be
no reason for simplicity in the one case not equally applicable
in the other. Technicality is as little consonant with the one as
with the other. Each has for its object the PUBLIC SAFETY. For
this a Senator is expelled; for this, also, the President is
expelled. Salus Populi Suprema Lex. The proceedings in each case
must be in subordination to this rule."

Thus, Mr. Sumner would have removed the President by an ordinary
concurrent resolution of Congress.

The purpose of all this was apparent--that the President was in
effect, to be tried and judged before a Court of Public Opinion,
and not before the Senate sitting as a High Court of Impeachment,
but BY the Senate sitting in its legislative capacity--to create
the impression in the minds of Senators that in this high
judicial procedure they were still acting as a legislative
body--simply as Senators, and not in a judicial capacity, as
judges and jurors, and therefore not bound specifically by their
oaths as such, to convict only for crime denounced by the law, or
for manifest high political misdemeanors, but could take
cognizance of and convict on alleged partisan offenses and
allegations based on differences of opinion and partisan
prejudices and partisan predilections--that it was not essential
that the judgment of Senators should be confined to the specific
allegations of the indictment, but that the whole range of
alleged political and partisan misdemeanors and delinquencies
could be taken into account in seeking a pretext for Mr.
Johnson's conviction.

The superiority of the Legislative branch was thus openly.
advocated and insisted, and uncontroverted by any Republican
supporting the impeachment. Mr. Johnson, according to these oft
repeated declarations, was to be tried and convicted, not
necessarily for any specific violation of law, or of the
Constitution, but by prevailing public opinion--public clamor-in
a word, on administrative differences subsisting between the
President and the leaders of the dominant party in and out of
Congress, and that public opinion, as concurrent developments
fully establish, was industriously manufactured throughout the
North, on the demand of leaders of the impeachment movement in
the House, through the instrumentality of a partisan press and
partisan public meetings, and in turn reflected back upon the
Senate, in the form of resolutions denunciatory of the President
and demanding his impeachment and removal.

That was in fact, and in a large sense, the incentive to the
impeachment movement, and it was--not confined to a faction, but
characterized the dominant portion of the political party then in
the ascendancy in and out of Congress.

In this state of facts lay largely the vice of the impeachment
movement, and it illustrated to a startling degree the danger in
the departure from established forms of judicial procedure in
such cases.

It became apparent, long before the close, that it was but little
if anything more than a partisan prosecution--and that fact
became more generally and firmly fixed, from day to day, as the
trial approached conclusion.

In that state of facts, again, and in that sense, the impeachment
of the President, was an assault upon the principle of
coordination that underlies our political system and thus a
menace to our established political forms, as, if successful, it
would, logically, have been the practical destruction of the
Executive Department--and, in view of previous legislation out of
which the impeachment movement had to a degree arisen, and of
declarations in the House and Senate quoted in this connection,
the final and logical result of conviction would have been the
absorption of the Executive functions of the Government by the
Legislative Department, and the consequent declension of that
Department to a mere bureau for the registration of the decrees
of the Legislature.

Conscious of the natural tendency to infringement by a given
Department of the Government upon the functions of its
coordinates, the framers of the Constitution wisely defined the
respective spheres of the several departments, and those
definitions constitute unmistakable admonition to each as to
trespass by either upon the political territory of its
coordinates.

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