While some of its supporters who had manifestly entered upon the trial with a determination to convict, were still insistent for further prosecution had there been a shadow of ultimate success, there were others who had begun to realize, weeks before the end came, the awkwardness of the predicament in which they had allowed themselves and their party to be placed, and desired to abandon the enterprise.

The strain was becoming too great—there was certain to be a recoil sooner or later. The foundations of the Impeachment were shown to be too slender. There was a future ahead that must be faced, but Senators must preserve their consistency. They could not go before their pro-impeachment constituencies with a record indicating any degree of weakening in the impeachment crusade. They had insisted for months that Mr. Johnson must be removed, and it would be politically inexpedient to retract.

But they wanted somebody to "help them let go."

So the plan of "desultory" procedure herein outlined seems to have "happened"—whether by design or otherwise, is immaterial—and that plan was made easy by the concerted abandonment of the head and front of the indictment—the First Article—which was side-tracked and logically carried with it all that followed, as would manifestly have been the result if the voting had begun on that Article.

While, to degree, the turmoils and bitterness of that time have passed out of public mind, there are still many living who retain a keen remembrance of the struggle and the enmities it produced. There were during the trial many thousands of men in the City of Washington awaiting the Impeachment and removal of the President for the fulfillment of pledges of official appointment based thereon, and their numbers increased as the trial progressed.

These anticipated beneficiaries were naturally not idle in efforts to the stimulation of zeal in the cause of Impeachment, and Senators were importuned at all seasonable and unseasonable hours in behalf of immediate and positive action. The lively anxiety, even anxious haste, of these patriots for their earliest possible entry upon the service of the Government, was emphasized on every corner and at every place of gathering, day and night, and the lobbies of the Capitol were thronged by them during the sessions of the Senate. No opportunity for a word with a Senator in behalf of the immediate deposition of the President, nor any appliance that seemed to promise a successful overture, was overlooked or forgotten.

When these seemed to fail of the desired effect, more direct and, it was hoped, more effective methods were resorted to. The beleaguered Senator was reminded that the applicant represented the united sentiment of the people of the State from which he held his Senatorial seat—that they demanded Mr. Johnson's conviction and removal—that that demand could not be safely denied, trifled with, or delayed; and that if money was wanted, to use the language of a notorious inquisitor of the House, Mr. Butler, speaking of the possibility of securing a designated vote for Impeachment "tell the d——d scoundrel that if he wants money, there is a bushel of it here to be had!" Mr. Butler's message was delivered.

So desperate were the inquisitors, and so close the certainty of the vote, that even a project of kidnapping a Senator under the pretense of taking a trip to Baltimore for much needed rest, where, if the terms to be there proffered were refused, a vacancy was to be created—by assassination, if necessary—then a recess of the Senate to afford time for the appointment by the Governor of that Senator's State of a successor who would vote for the Impeachment, of the President—was entered upon and its execution attempted. But the trip to Baltimore for "rest" was not taken.

These are not pleasant facts to contemplate, but they somewhat conspicuously characterized the conditions of that time, and illustrate the real nature of the impeachment scheme. They boded the control of the Government by the worst element of American politics. It is unnecessary to say here what that control would have involved. During all the previous history of the Government—its wars and political turmoils—the Democratic-Republican forms that characterize its administrations have never faced so insidious or threatening a danger as during that hour. It was a crucial test, and the result a magnificent vindication of the wisdom and patriotism of the founders of our composite form of Government. Its results have but strengthened those forms and broadened the scope of the beneficent political. institutions that have grown up under and characterize its operation.

It was a test such as probably no other form of Government on earth could have successfully passed, and it is to be hoped that its like may never return.



CHAPTER XII. WAS IT A PARTISAN PROSECUTION?

The weakest point in the entire record of the Prosecution of President Johnson, from the indictment by the House of Representatives to the finish in the Senate, (except the Bill of Impeachment itself, was the refusal of the more than three-fourths Republican majority of the Senate to permit the reception of testimony in his behalf. That majority naturally gave them absolute control of the proceedings, and they should have realized from the outset that they could not afford to give it the least tinge of partisan bias.

It is therefore not material to discuss in detail the instances of the two interrogatories put by counsel for the Prosecution and rejected, Nos. 4 and 28, because it was shown that their answer would prove nothing against the President, but rather to his vindication, and their rejection could not have occurred but for the intervention of many more nay Republican than Democratic votes—but will pass to the analyzation of the votes on the twelve interrogatories propounded by counsel for Defense and rejected, which rejections could not have occurred but by the intervention of a large preponderance, in every instance, of the Republican votes cast thereon, and many of them by a unanimous Republican vote.

Without doubt, many of these votes on the admissibility of testimony were governed by, the usual rules prevailing in the courts, but it was deemed by others that every question not manifestly frivolous, or not pertinent, should be permitted answer without objection, regardless of such rules—that the Senate sitting for the trial of an Impeachment of the President of the United States—the occasion a great State Trial—should not be trammeled or belittled by the technicalities common to ordinary court practice—that the Senate was composed supposedly of gentlemen and lawyers of high standing in their profession and familiar with public affairs and public law—that they were sitting in a semi-judicial capacity—not merely as Senators or jurors, but, judges also—judges of fact as well as of law—and constituted the highest trial body known to our laws—a tribunal from which there was no appeal—that each of its members had taken a solemn oath to "do impartial justice" in this cause, absolutely unswerved by partisan or personal considerations, and that as such each member had not only the right, but it was his duty under his oath, as well, to hermit no obstacle or condition to unnecessarily keep from him a knowledge of all available facts pertinent to the cause, no matter on which side they might weigh—to help or to hurt. That the body, each member for himself, was the proper party to determine the admissibility of testimony, as Mr. Manager Boutwell had declared in his opening argument, "AFTER HE HAD HEARD IT,"and knew its trend an purport. Every member of that body had the right to know all the witness knew about the case, and, moreover, the witnesses were brought for the purpose, and for the sole purpose, of telling what they knew.

The same assurance of absolute fairness as that of Mr. Boutwell, was also given by Mr. Bingham, another of the Managers of the Prosecution on the part of the House, in his opening plea before the Senate: "It is," said he, "certainly very competent for the Senate, as it is competent for any court of justice in the trial of cases where questions of doubt arise, to HEAR THE EVIDENCE, and, where they themselves are the judges of both the law and the fact, to DISMISS SO MUCH OF IT AS THEY MAY FIND INCOMPETENT, if any of it be incompetent. * * * Under the Plea of Not Guilty, as provided in the rules, every conceivable defense that the accused party could make to the Articles here preferred, can be admitted."

Mr. Manager Butler also said, on the same occasion: "Upon this so great trial, I pray let us not belittle ourselves with the analyses of the common law courts, or the criminal courts, because nothing is so dangerous to mislead us."

These and other like assurances were given of the widest reasonable latitude in the reception of testimony in the trial then opening. There was thus every reason to expect that Mr. Johnson would have a fair trial. But no sooner had the Prosecution completed its examination of witnesses, in which but seven interrogatories had been objected to of the long list proffered by the Prosecution, than a different rule seemed to have been established for the treatment of proffered testimony, and a large mass of relevant and valuable testimony in behalf of the President was ruled out on objection of the Prosecution, as inadmissible, and, as a rule that, had very few exceptions, on partisan divisions of the Senate.

Of course it will not be admitted, nor is it here charged, that these refusals to hear testimony were because of any fear that the answers would have any improper force or effect upon the Senate. Nor will it signify to say that the President's attorneys could not have proved what they offered to prove. They hail the right to an opportunity to so prove, and the denial of that right and opportunity was not only a denial of a manifest right of the attorneys, but especially in this case, a more flagrant denial of the rights of the accused, and not only that, but they amounted to an impugnment of the discretion of the Senate.

It is conspicuous, too, that while the defense objected to but seven of the interrogatories submitted by the Prosecution, and five of them were permitted answer by the vote of the Senate; twenty-one of the proffers of testimony by the defense were objected to by the prosecution and but nine of them permitted answer: and that condition was aggravated by the fact that the numerical strength of the majority party in the Senate was sufficient to determine absolutely the disposition of every question, and they could therefore afford to be strictly fair to the accused, and by the further fact that the objections to testimony offered in behalf of the defense were as three to one of the objections to testimony offered in behalf of the prosecution.

These denials of testimony in behalf of the defense were unfortunate. That practice lowered the dignity of the occasion and of the proceeding, as they could but have given ground for criticism of partisan bias and a vindictive judgment in case of successful impeachment. Most, if not all these rejected interrogatories implied important information in possession of the witnesses which the Senate had a right to, and which the party offering had the right to have produced. Moreover, it was the right and the duty of the Senate to know what the witness was presumed to know, and then to judge, each Senator for himself, of the relevancy of the testimony.

As stated, the principal averment against the President, was his alleged violation of the Tenure-of-Office Act in the removal of Mr. Stanton from the office of Secretary of War, presented in various phases throughout the Articles of Impeachment.

In illustration of the treatment of testimony offered in the President's behalf by a majority of the Republican Senators, the record shows that on the eighth disputed interrogatory, the second put by the defense, General Sherman being on the witness stand:—Defense asked as to a certain conversation relating to that removal, had between the General and the President at an interview specified. The prosecution objected to the question being answered, and a vote of the Senate was demanded. The vote was—for receiving the testimony, 23; against receiving it, 28. Of the latter number, twenty-seven, all Republicans, voted at the close of the trial to convict the President of violating the Tenure-of-Office Act, in the removal of Mr. Stanton, after refusing to hear testimony in his behalf on that charge.

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.

As John C. Calhoun wrote, in the early days of the Republic:

"The Constitution has not only made a general delegation of the legislative power to one branch of the Government, of the executive to another, and of the judicial to the third, but it has specifically defined the general powers and duties of each of those departments. This is essential to peace and safety in any Government, and especially in one clothed only with specific power for national purposes and erected in the midst of numerous State Governments retaining exclusive control of their local concerns.* * * Were there no power to interpret, pronounce and execute the law, the Government would perish through its own imbecility, as was the case with the Articles of Confederation; or other powers must be assumed by the legislative body, to the destruction of liberty." Again, as was eloquently and forcefully said by Daniel Webster in the U. S. Senate in 1834:

"The first object of a free people is the preservation of their liberty, and liberty is only to be preserved by maintaining constitutional restraints and just division of political power. Nothing is more deceptive or more dangerous than the pretense of a desire to simplify government. The simplest governments are despotisms; the next simplest, limited monarchies; but all republics, all governments of law, must impose numerous limitations and qualifications of authority and give many positive and many qualified rights. In other words, they must be subject to rule and regulation. This is the very essence of free political institutions. The spirit of liberty is, indeed, a bold and fearless spirit; but it is also a sharp-sighted spirit: it is a cautious, sagacious, discriminating, far-seeing intelligence; it is jealous of encroachment, jealous of power, jealous of man. It demands checks; it seeks for guards; it insists on securities; it entrenches itself behind strong defenses, and fortifies itself with all possible care against the assaults of ambition and passion. It does not trust the amiable weaknesses of human nature, and, therefore, it will not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic purpose come along with it. Neither does it satisfy itself with flashy and temporary resistance to illegal authority. Far otherwise. It seeks for duration and permanence; it looks before and after; and, building on the experience of ages which are past, it labors diligently for the benefit of ages to come. This is the nature of constitutional liberty; and this is our liberty, if we will rightly understand and preserve it. Every free government is necessarily complicated, because all such governments establish restraints, as well on the power of government itself as on that of individuals. If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we will place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions; and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries."

Each department is supreme within its own constitutionally prescribed limits, and the Supreme Court is made the umpire for the definition of the limits and the protection of the rights of all. Neither Congress, nor the Executive, are authorized to determine the constitutionality and therefore the validity of their acts, or the limits of their jurisdiction under the Constitution, but the Supreme Court is so authorized, and it is the umpire before which all differences in that regard must be determined. It is the tribunal of last resort, save the people themselves, before whom both Senate and House, and the Executive, must bow, and its decision is final in the interpretation of the Constitution.

A due regard, therefore, for the interpretation of law and the division of powers thus established, constitutes the great safeguard upon which the harmonious and successful operation of our political system depends. On its religious observance rests, primarily, the preservation of our free institutions and the perpetuation of our peculiar system of popular government. That quality of co-ordination—of the equality of the several Departments as adjusted by the Organic Act—constitutes the balance wheel of our political system.

The logical effect of the doctrines promulgated by the House of Representatives in that regard, and re-echoed on the floor of the Senate, in the press and on the stump throughout the North, were therefore not only revolutionary, but destructive. To have removed the President upon accusations in reality based upon partisan and personal—not amounting even to substantial political differences—would have been the establishment of a precedent of the most dangerous character.

In a large sense, the American system of politics and of government was on trial, quite as much as was Andrew Johnson. The extreme element of American politics was in absolute control in the House of Representatives, and practically so, in the Senate. The impeachment and removal of the President on unsubstantiated, or even remotely doubtful charges, simply: because of a disagreement between himself and Congress as to the method of treating a great public emergency, would have introduced a new and destructive practice into our political system.

Logically, the introduction of such a practice on that occasion would have been construed as a precedent for the treatment of future public emergencies. Thus, it would have tended to disturb the now perfect adjustment of the balance of powers between the co-ordinate branches. That quality of absolute supremacy of the several departments in their respective spheres, or functions, and of co-ordination or equality in their relations to each other, established by the Constitution as a guarantee of the perpetuity of our political system, would have been endangered, and the result could not have been otherwise than disaster in the future.

Logically, the Presidency would in time have been. degraded to the position of a mere department for the execution of the decrees of the legislative branch. Not illogically, the Supreme Court would have been the next object of attack, and the legislature have become, by this unconstitutional absorption of the powers of Government, the sole, controlling force—in short the Government.

That would, in time, by equally logical sequence, have been the natural, inevitable result—and the end. The wreckage of the Great Republic of the age would have been strown upon the sands of the political seashore—relics of the disregard of the checks and balances established by the wisdom of its framers, in the fundamental law—and all for the satisfaction of personal ambitions and the hates of factional animosities.

History affords too many illustrations of that tendency to decadence and disruption from disregard of the proper and necessary checks and balances in the distribution and equalization of the powers of government, to permit us to doubt what the final end would have been had the President been removed on the unsubstantiated accusation preferred by the House of Representatives, Our peculiar system of political government—a Democratic Republic—passed the danger point of its history in that hour.

It was indeed a narrow escape. The history of civilization records no precisely similar condition. The country then passed the most threatening period of its history—but passed it safely. The result was the highest possible testimonial to the strength and endurance of properly adjusted Democratic institutions that history records.

It emphasized not only the capacity of the American people for intelligent and orderly self-government, but also the strength and endurance of our popular forms. It was a profound surprise to those habituated to different political conditions. They had witnessed with astonishment the quiet disbandment of millions of men but as yesterday engaged in mortal strife—the vast armies as peacefully returning to former vocations as though from a great parade—and now, from a state of civil convulsion that in many another nation would have produced armed collision and public disorder, they saw an entire people quietly accepting the verdict of the highest authoritive body of the land, and practically dismissing the subject from thought. It was a splendid world-wide tribute to the strength and endurance of our system of popular government.

Yet the conclusion must not be deduced that the power of impeachment is not a wise provision of our Constitution, nor in any sense inconsistent with our popular forms. Conditions may, and are not unlikely to arise, some day, when the exercise of the power to impeach and remove the President may be quite as essential to the preservation of our political system as it threatened to become in this instance destructive of that system. Should that day ever come, it is to be hoped that the remedy of impeachment, as established by the Constitution, may be as patriotically, as fearlessly, and as unselfishly applied as it was on this occasion rejected.



SUPPLEMENT.

Copy of letter addressed to each of the members of the Cabinet present at the conversation between the President and General Grant on the 14th of January, 1868, and the answers thereto:

Executive Mansion, Washington, D. C., February 5, 1868.

Sir:—The Chronicle of this morning contains a correspondence between the President and General Grant, reported from the War Department, in answer to a resolution of the House of Representatives. I beg to call your attention to that correspondence, and especially to that part of it which refers to the conversation between the President and General Grant, at the Cabinet meeting on Tuesday, the 14th of January, and to request you to state what was said in that conversation.

Very respectfully yours, Andrew Johnson.

Washington, D. C., February 5, 1868.

Sir:—-Your note of this date was handed to me this evening. My recollection of the conversation at the Cabinet meeting on Tuesday, the 14th of January, corresponds with your statement of it in the letter of the 31st ultimo, in the published correspondence. The three points specified in that letter, giving your recollection of the conversation, are correctly stated.

Very respectfully, Gideon Welles.

To the President.

Treasury Department, February 6, 1868.

Sir:—I have received your note of the 5th instant, calling my attention to the correspondence between youself and General Grant, as published in the Chronicle of yesterday, especially to that part of it which relates to what occurred at the Cabinet meeting on Tuesday the 14th ultimo, and requesting me to state what was said in the conversation referred to.

I cannot undertake to state the precise language used, but I have no hesitation in saying that your account of that conversation. as given in your letter to General Grant under date of the 31st ultimo. substantially and in all important particulars accords with my recollection of it.

With great respect, your obedient servant. Hugh McCulloch. To the President.

Post Office Department Washington, February 6, 1868.

Sir:—I am in receipt of your letter of the 5th of February, calling my attention to the correspondence published in the Chronicle between the President and General Grant, and especially to that part of it which refers to the conversation between the President and General Grant at the Cabinet meeting on Tuesday, the 14th of January, with a request that I state what was said in that conversation. In reply, I have the honor to state that I have read carefully the correspondence in question, and particularly the letter of the President to General Grant, dated January 31, 1868. The following extract from your letter of the 31st January to General Grant is, according to my recollection, a correct statement of the conversation that took place between the President and General Grant at the Cabinet meeting on the 14th of January last. In the presence of the Cabinet the President asked General Grant whether, "in conversation which took place after his appointment as Secretary of War ad interim, he did not agree either to remain at the head of the War Department and abide any judicial proceedings that might follow the non-concurrence by the Senate in Mr. Stanton's suspension, or, should he wish not to become involved in such a controversy, to put the President in the same position with respect to the office as he occupied previous to General Grant's appointment by returning it to the President in time to anticipate such action by the Senate." This General Grant admitted.

The President then asked General Grant if, at the conference on the preceding Saturday, he had not, to avoid misunderstanding, requested General Grant to state what he intended to do; and further, if in reply to that inquiry he (General Grant) had not referred to their former conversations, saying that from them the President understood his position, and that his (General Grant's) action would be consistent with the understanding which had been reached. To these questions General Grant replied in the affirmative.

The President asked General Grant if, at the conclusion of their interview on Saturday, it was not understood that they were to have another conference on Monday, before final action by the Senate in the case of Mr. Stanton.

General Grant replied that such was the understanding, but that he did not suppose the Senate would act so soon; that on Monday he had been engaged in a conference with General Sherman, and was occupied with "many little matters," and asked if General Sherman had not called on that day.

I take this mode of complying with the request contained in the President dent's letter to me, because my attention had been called to the subject before, when the conversation between the President and General Grant was under consideration.

Very respectfully, your obedient servant, Alexander W. Randall, Postmaster General. To the President.

Department of the Interior, Washington, D. C., February 6, 1868.

Sir:—I am in receipt of yours of yesterday, calling my attention to a correspondence between yourself and General Grant, published in the Chronicle newspaper, and especially to that part of said correspondence "which refers to the conversation between the President and General Grant at the Cabinet meeting on Tuesday, the 14th of January," and requesting me "to state what was said in that conversation."

In reply, I submit the following statement: At the Cabinet meeting on Tuesday, the 14th of January, 1868, General Grant appeared and took his accustomed seat at the board. When he had been reached in the order of business the President asked him, as usual, if he had anything to present?

In reply, the General, after referring to a note which he had that morning addressed to the President, inclosing a copy of the resolution of the Senate refusing to concur in the reasons for the suspension of Mr. Stanton, proceeded to say that he regarded his duties as Secretary of War ad interim terminated by that resolution, and that he could not lawfully exercise such duties for a moment after the adoption of the resolution by the Senate. That the resolution reached him last night, and that this morning he had gone to the War Department, entered the Secretary's room, bolted one door on the inside, locked the other on the outside, delivered the key to the Adjutant General, and proceeded to the headquarters of the Army, and addressed the note above mentioned to the President, informing him that he (General Grant) was no longer Secretary of War ad interim.

The President expressed great surprise at the course which General Grant had thought proper to pursue, and, addressing himself to the General, proceeded to say, in substance, that he had anticipated such action on the part of the Senate, and being very desirous to have the constitutionality of the Tenure-of-Office bill tested, and his right to suspend or remove a member of the Cabinet decided by the judicial tribunals of the country, he had some time ago, and shortly after General Grant's appointment as Secretary of War ad interim, asked the General what his action would be in the event that the Senate should refuse to concur in the suspension of Mr. Stanton, and that the General had agreed either to remain at the head of the War Department till a decision could be obtained from the court or resign the office in the hands of the President before the case was acted upon by the Senate, so as to place the President in the same situation he occupied at the time of his (Grant's) appointment.

The President further said that the conversation was renewed on the preceding Sunday, at which time he asked the General what he intended to do if the Senate should undertake to reinstate Mr. Stanton; in reply to which the General referred to their former conversation upon the same subject, and said. "You understand my position, and my conduct will be conformable to that understanding:" that he (the General) then expressed a repugnance to being made a party to a judicial proceeding, saying that he would expose himself to fine and imprisonment by doing so, as his continuing to discharge the duties of Secretary of War ad interim, after the Senate should have refused to concur in the suspension of Mr. Stanton would be a violation of the Tenure-of-Office bill. That in reply to this he (the President) informed General Grant he had not suspended Mr. Stanton under the Tenure-of-Office bill, but by virtue of the powers conferred on him by the Constitution: and that, as to the fine and imprisonment, he (the President) would pay whatever fine was imposed and submit to whatever imprisonment might be adjudged against him (the General.) That they continued the conversation for some time, discussing the law at length, and that they finally separated without having reached a definite conclusion, and with the understanding that the General would see the President again on Monday.

In reply, General Grant admitted that the conversation had occurred, and said that at the first conversation he had given it as his opinion to the President that in the event of non-concurrence by the Senate in the action of the President in respect to the Secretary of War the question would have to be decided by the court; that Mr. Stanton would have to appeal to the court to reinstate him in office; that he would remain in till they could be displaced and the outs put in by legal proceeding; and that he then thought so, and had agreed that if he should change his mind he would notify the President in time to enable him to make another appointment, but that at the time of the first conversation he had not looked very closely into the law; that it had recently been discussed by the newspapers, and that this had induced him to examine it more carefully, and that he had come to the conclusion that if the Senate should refuse to concur in the, suspension Mr. Stanton would thereby be reinstated. and that he (Grant) could not continue thereafter to act as Secretary of War ad interim, without subjecting himself to fine and imprisonment; and that he came over on Saturday to inform the President of this change in his views, and did so inform him, that the President replied that he had not suspended Mr Stanton under the Tenure-of-Office bill, but under the Constitution, and appointed him (Grant) by virtue of the authority derived from the Constitution, &c.; that they continued to discuss the matter some time, and finally he left without any conclusion having been reached, expecting to see the President again on Monday. He then proceeded to explain why he had not called on the President on Monday, saying that he had had a long interview with General Sherman; that various little matters had occupied his time till it was late, and that he did not think the Senate would act so soon, and asked, "did not General Sherman call on you on Monday?"

I do not know what passed between the President and General Grant on Saturday, except as I learned it from the conversation between them at the Cabinet meeting on Tuesday, and the foregoing is substantially what then occurred. The precise words used on the occasion are not, of course, given exactly in the order in which they were spoken, but the ideas expressed and the facts stated are faithfully preserved and presented. I have the honor to be, sir, with great respect, your obedient servant.

O. H. Browning. The President.

Department of State, Washington, February 6, 1868.

Sir: The meeting to which you refer in your letter was a regular Cabinet meeting. While the members were assembling, and before the President had entered the Council Chamber, General Grant, on coming in, said to me that he was in attendance there, not as a member of the Cabinet, but upon invitation, and I replied by the inquiry whether there was a change in the War Department. After the President had taken his seat business went on in the usual way of hearing matters submitted by the several secretaries. When the time came for the Secretary of War General Grant said that he was now there not as Secretary of War, but upon the President's invitation, that he had retired from the War Department. A Blight difference then appeared about the supposed invitation, General Grant saying that the officer who had borne his letter to the President that morning, announcing his retirement from the War Department, had told him that the President desired to see him at the Cabinet, to which the President answered, that when General Grant's communication was delivered to him the President simply replied that he supposed General Grant would be very soon at the Cabinet meeting. I regarded the conversation thus begun as an incidental one. It went on quite informally, and consisted of a statement, on your part, of your views in regard to the understanding of the tenure upon which General Grant had assented to hold the War Department ad interim, and of his replies by way of answer and explanation. It was respectful and courteous on both sides. Being in this conversational form, its details could only have been preserved by verbatim report. So far as I know, no such report was made at the time. I can give only the general effect of the conversation.

Certainly you stated that although you had reported the reasons for Mr. Stanton's suspension to the Senate, you nevertheless held that he would not be entitled to resume the office of Secretary of War, even if the Senate should disapprove of his suspension. and that you had proposed to have the question tested by judicial process, to be applied to the person who should be the incumbent of the Department, under your designation of Secretary of War ad interim in the place of Mr. Stanton. You contended that this was well understood between yourself and Gen. Grant; that when he entered the War Department as Secretary ad interim he expressed his concurrence in a belief that the question of Mr. Stanton's restoration would be a question for the courts; that in a subsequent conversation with General Grant you had adverted to the understanding thus had, and that General Grant expressed his concurrence in it: that at some conversation which had been previously held General Grant said he still adhered to the same construction of the law, but said if he should change his opinion he would give you seasonable notice of it, so that you should in any case, be placed in the same position in regard to the War Department that you were while General Grant held it ad interim. I did not understand General Grant as denying, nor as explicitly admitting, these statements in the form and full extent to which you made them. The admission of them was rather indirect and circumstantial. though I did not understand it to be an evasive one. He said that, reasoning from what occurred in the case of the police in Maryland, which he regarded as a parallel one, he was of opinion, and so assured you, that it would be his right and duty, under your instructions, to hold the War Office after the Senate should disapprove of Mr. Stanton's suspension until the question should be decided upon by the courts; that he remained until very recently of that opinion, and that on the Saturday before the Cabinet meeting a conversation was held between yourself and him in which the subject was generally discussed.

General Grant's statement was, that in that conversation he had stated to you the legal difficulties which might arise, involving fine and imprisonment under the civil tenure bill, and that he did not care to subject himself to those penalties; that you replied to this remark, that you regarded the civil tenure bill as unconstitutional. and did not think its penalties were to be feared, or that you would voluntarily assume them; and you insisted that General Grant should either retain the office until relieved by yourself according to what you claimed was the original understanding, between yourself and him, or, by seasonable notice of change of purpose on his part, put you in the same situation which you would be if he adhered. You claimed that General Grant finally said in that Saturday's conversation that you understood his views, and his proceedings thereafter would be consistent with what had been so understood. General Grant did not controvert nor can I say that he admitted this last statement. Certainly General Grant did not at any time in the Cabinet meeting insist that he had in the Saturday's conversation either distinctly or finally advised you of his determination to retire from the charge of the War Department otherwise than under your own subsequent direction. He acquiesced in your statement that the Saturday's conversation ended with an expectation that there would be a subsequent conference on the subject, which he, as well as yourself, supposed could seasonably take place on Monday.

You then alluded to the fact that General Grant did not call upon you on Monday, as you had expected from that conversation. General Grant admitted that it was his expectation or purpose to call upon you on Monday. General Grant assigned reasons for the omission. He said he was in conference with General Sherman; that there were many little matters to be attended to. He had conversed upon the matter of the incumbency of the War Department with General Sherman, and he expected that General Sherman would call upon you on Monday. My own mind suggested a further explanation, but I do not remember whether it was mentioned or not-namely, that it was not supposed by General Grant on Monday that the Senate would decide the question so promptly as to anticipate further explanation between yourself and him if delayed beyond that day. General Grant made another explanation—that he was engaged on Sunday with General Sherman, and, I think, also on Monday, in regard to the War Department matter, with a hope, though he did not say in an effort, to procure an amicable settlement of the affair of Mr. Stanton, and he still hoped that it would be brought about.

I have the honor to be, with great respect, your obedient servant,

William H. Seward. To the President.

THE END