History of the Impeachment of Andrew Johnson, President of the United States Part 25

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 const.i.tuting 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 a.s.sumed 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 unconst.i.tutional. 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 unconst.i.tutional--which he was advised by the head of the Law Department of the Government was unconst.i.tutional and therefore not a law which he had sworn to execute, and the const.i.tutionality 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 a.s.sumed 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 const.i.tutionality 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 Const.i.tutional 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 att.i.tude 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 CONSt.i.tUTIONAL POWER OF IMPEACHMENT.

The power conferred by the Const.i.tution 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 const.i.tutional 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 inst.i.tutions, 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 alleged, 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 a.s.sumed 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 Const.i.tutional 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 ill.u.s.tration 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 ill.u.s.trate:

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 Const.i.tutional tribunal solely, you are bound by no law, either Statute or Common, which may limit your const.i.tutional 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 ent.i.tled to the privileges of the Const.i.tution 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 n.o.body 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 Const.i.tution 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 Const.i.tution, 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 ill.u.s.trated 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 a.s.sault 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 Const.i.tution wisely defined the respective spheres of the several departments, and those definitions const.i.tute unmistakable admonition to each as to trespa.s.s by either upon the political territory of its coordinates.

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

"The Const.i.tution 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, p.r.o.nounce 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 a.s.sumed 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: