The initial proceedings to the taking of testimony, while to a degree foreshadowing a partisan division in the trial, also demonstrated the presence of a Republican minority which could not at all times, be depended upon to register the decrees of the more radical portion of the body. The first development of this fact came in the defeat of a proposition to amend the rules in the interest of the prosecution, and again on the examination of Mr. Burleigh, a delegate from Dakota Territory in the House of Representatives and a witness brought by the prosecution on March 31st. Mr. Butler, examining the witness, asked the question:
Had you on the evening before seen General Thomas? * * * Had you a communication with him?
Answer. Yes sir.
Mr. Stanbery objected, and the Chief Justice ruled that the testimony was competent and would be heard "unless the Senate think otherwise."
To this ruling Mr. Drake objected and appealed from the decision of the Chair to the Senate. It appeared to be not to the ruling per se, that Mr. Drake objected, but to the right of the Chair to rule at all upon the admissibility of testimony. Mr. Drake representing the extremists of the dominant side of the Chamber. There seemed to be apprehension of the effect upon the Senate of the absolute judicial fairness of the rulings of the Chief Justice, and the great weight they would naturally have, coming from so just and eminent a jurist. After discussion, Mr. Wilson moved that the Senate retire for consultation.
The vote on this motion was a tie, being twenty-five for and twenty-five against retiring, whereupon the Chief Justice announced the fact of a tie and voted "yea;" and the Senate retired to its consultation room, where, after discussion and repeated suggestions of amendment to the rules, the following resolution was offered by Mr. Henderson:
Resolved, That rule 7 be amended by substituting therefor the following:
The presiding officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer in the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise provided for. And the presiding officer on the trial may rule all questions of of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision; or he may, at his option, in the first instance, submit any such question to a vote of the members of the Senate.
Mr. Morrill, of Maine, moved to amend the proposed rule by striking out the words "which ruling shall stand as the judgment of the Senate," which was rejected without a division.
Mr. Sumner then moved to substitute the following:
That the chief justice of the United States, presiding in the Senate on the trial of the President of the United States, is not a member of the Senate, and has no authority under the Constitution to vote on any question during the trial, and he can pronounce decision only as the organ of the Senate, with its assent.
It is not insisted here that there was any sinister purpose in this proposition, yet the possibilities, in case of its adoption, were very grave. Like the wasp, the sting was in the tail--"he (the chief justice;) can pronounce decision only as the organ of the Senate, WITH ITS ASSENT! Had that rule been adopted, suppose the Senate, with, its vote of forty-two Republicans and twelve Democrats, upon failure of conviction by a two-thirds vote had refused or refrained on a party vote from giving "its assent" to a judgment of acquittal?
The vote upon this proposed amendment was as follows:
For its adoption--Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Howard, Morgan, Morrill of Maine, Morton, Nye, Pomeroy, Ramsay, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams, Wilson--22--all Republicans.
Against its adoption--Messrs. Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers, Willey--26--15 Republicans and 11 Democrats.
So the resolution was rejected--every aye vote a Republican, and all but one, Mr. Trumbull, afterwards voting to impeach the President at tHe close of the trial--eleven Democrats and fifteen Republicans voting nay.
Mr. Drake then offered the following:
It is the judgment of the Senate that under the Constitution the Chief Justice presiding over the Senate in the pending trial has no privilege of ruling questions of law arising thereon, but that all such questions shall be submitted to a decision by the Senate alone.
It would be difficult to formulate a proposition better calculated to taint the proceedings with a partisan bias than this one by Mr. Drake. The impeachment movement was in a very large sense, if not entirely, a partisan enterprise. It had its origin in partisan differences, and was based mainly on differences as to public policies at issue between the two great parties of the country--and while it was expected that every political. friend of the President would vote against the impeachment, it was DEMANDED, and made a test of party fealty, that every Republican Senator should vote for his conviction. Therefore, and perhaps it was not illogical from these premises, party leaders of Mr. Drake's inclination should not relish the influence the legal, unbiased and non-partisan rulings of the Chief Justice might have upon his more conservatively inclined fellow partisans of the body.
Mr. Drake called for the yeas and nays, which were ordered, and the vote was yeas 20, nays 30. The personality of this vote was very much the same as on the previous proposition.
The rule proposed by Mr. Henderson was then adopted. The conference closed shortly after, and the session of the Senate was resumed.
The next day, April 1st, Mr. Sumner renewed in the Senate his proposition submitted at the Conference the day before but not acted upon, to change the rules of the Senate in the following form:
It appearing from the reading of the Journal yesterday that on a question where the Senate were equally divided, the Chief Justice, presiding on the trial of the President, gave a casting vote; it is hereby ordered that, in the judgment of the Senate, such vote was without authority under the Constitution of the United States.
The proposition was put to vote with the following result:
Yeas--Messrs. Cameron, Chandler, Cole, Conkling, Conness, Cragin, Drake, Howard, Howe, Morgan, Morrill of Maine, Morton, Norton, Ramsay, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams, Wilson--21--10 Republicans and 1 Democrat.
Nays--Messrs. Anthony, Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont, Patterson of Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers, Willey--26--16 Republicans and 10 Democrats.
So the proposed order was rejected. The trial then proceeded. The answers to a very large proportion of the interrogatories propounded to the witnesses, on both sides, were unimportant, having very little bearing, either way, upon the case. Twenty-eight of those interrogatories, however, were more or less important, and were challenged, seven by the defense, and twenty-one by the prosecution. For convenience of reference, these interrogatories are numbered from one to twenty-eight, inclusive, with the answers thereto, when permitted to be answered, as follows:
Question submitted by Mr. Butler, of the prosecution, April 1st, 1868, to Mr. Walter A. Burleigh, witness on the stand, called for the prosecution:
No. 1.
You said yesterday, in answer to my question, that you had a conversation with General Lorenzo Thomason the evening of the 21st of February last. State if he said anything as to the means by which he intended to obtain or was directed by the President to obtain possession of the War Department. If so, state all he said, as nearly as you can?
Mr. Stanbery objected.
Mr. Drake called for the yeas and nays, which were ordered, and the vote was as follows:
Yeas--Anthony, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson--39--all Republicans.
Nays-Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Vickers-- 11--all Democrats.
So, the Senate decided that the question should be answered.
General Butler repeated the interrogatory, and Mr. Burleigh's answer was as follows:
On the evening of February 21st last, I learned that General Thomas had been appointed Secretary of War ad interim, I think while at the Metropolitan Hotel. I invited Mr. Leonard Smith, of Leavenworth, Kas., to go with me up to his house and see him. We took a carriage and went up. I found the General there ready to go out with his daughters to spend the evening at some place of amusement. I told him I would not detain him if he was going out; but he insisted on my sitting down and I sat down for a few moments. I told him I had learned he had been appointed Secretary of War. He said he had; that he had been appointed that day, I think; that after receiving his appointment from the President he went to the War Office to show his authority, or his appoiniment, to Secretary Stanton, and also his order to take possession of the office; that the Secretary remarked to him that he supposed he would give him time to remove his personal effects, or his private papers, or something to that effect; and the answer was "certainly." He said that in a short time the Secretary asked him if he would give him a copy of his order, and he replied "certainly," and gave it to him. He said that it was no more than right to give him time to take out his personal effects. I asked him when he was going to assume the duties of the office. He remarked that he should take possession the next morning at ten o'clock, which would be the 22nd; and I think in that connection he stated that he had issued some order in regard to the observance of the day; but of that I am not sure. I remarked to him that I should be up at that end of the avenue the next day, and he asked me to come in and see him. I asked him where I could find him. and he said in the Secretary's room up stairs. I told him I would be there. Said he, "be there punctually at 10 o'clock." Said I, "you are going to take possession to-morrow?" "Yes." Said he, "suppose Stanton objects to it--resists?" "Well," said he,"I expect to meet force by force. Or use force."
Mr. Conkling: "Repeat that."
The witness. I asked him what he would do if Stanton objected, or resisted. He said he would use force, or resort to force. Said I, "Suppose he bars the doors?" His reply was. "I will break them down." I think that was about all the conversation that we had there in that connection.
No. 2.
The next disputed interrogatory put by General Butler to the witness was:
Shortly after this conversation about which you have testified, and after the President restored Major General Thomas to the office of Adjutant General, if you know the fact that he was so restored, were you present in the War Department, and did you hear Thomas make any statements to the officers and clerks, or either of them, belonging to the War Office, as to the rules and orders of Mr. Stanton or of the War Office which he, Thomas, would make, revoke, relax, or rescind, in favor of such officers or employes when he had control of the affairs therein? If so, state as near as you can when it was such conversation occurred, and state all he said, as near as you can.
Mr. Howard demanded the yeas and nays and they were ordered and were as follows:
Yeas--Anthony Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Henderson Howard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, Wilson--28--all Republicans.
Nays--Bayard, Buckalew, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Sherman, Van Winkle, Vickers, Willey, Wilson--22--11 Republicans, 11 Democrats.
So the Senate decided that the question should be answered.
Mr. Butler: With the leave of the President, I will put this question by portions.
Did you hear Thomas make any statement to the officers or clerks, or either of them, belonging to the War Office, as to the rules and orders of Mr. Stanton, or of the office, which he, Thomas, would revoke, relax, or rescind, in favor of such officers and employes when he had control therein?
Answer: The General remarked to me that he had made an arrangement to have all the heads, or officers in charge of the different departments of the office come in with their clerks that morning, as he wanted to address them. He stated that the rules which had been adopted for the government of the clerks by his predecessor were of a very arbitrary character, and he proposed to relax them. I suggested to him that perhaps I had better go. He said, "no, not at all--remain," and I sat down and he had some three or four officers--four or five, perhaps--come in, and each one brought in a roomful of clerks, and he made an address to each company as they came in, stating to them that he did not propose to hold them strictly to the letter of the instructions; but when they wanted to go out they could go out, and when they wanted to come in they could come in; that he regarded them all as gentlemen. and supposed they- would do their duty, and he should require them to do their duty; but so far as their little indulgences were concerned--I suppose such as going out across the street or something of that kind--he did not intend to interfere with them; all he expected was that they would do their duty. I waited until he concluded, and we took a walk, and I came away.
Mr. Samuel Wilkinson testified in response to an interrogatory by Mr. Butler:
I asked him (Thomas) to tell me what had occurred that morning between him and the Secretary of War in his endeavor to take possession of the War Department. He hesitated to do so till I told him that the town was filled with rumors of the change that had been made, of the removal of Mr. Stanton and the appointment of himself. He then said that since the affair had become public he felt relieved to speak to me with freedom about it. He drew from his pocket a copy, or rather the original, of the order of the President of the United States, directing him to take possession of the War Department immediately. He told me that he had taken as a witness of his action General Williams, and had gone up into the War Department and had shown to Edwin M. Stanton the order of the President, and had demanded by virtue of that order the possession of the War Department and its books and papers. He told me that Edwin M. Stanton, after reading the order, had asked him if he would allow him sufficient time for him to get together his books, papers, and other personal property and take away with him; that he told him that he would allow to him all necessary time to do so, and had then withdrawn from Mr. Stanton's room. He further told me, that day being Friday, that the next day would be what he called a dies non, being the holiday of the anniversary of Washington's birthday, when he had directed that the War Department should be closed, that the day thereafter would be Sunday, and that on Monday morning he should demand possession of the War Department and of its property, and if that demand was refused or resisted he should apply to the General-in-Chief of the Army for a force sufficient to enable him to take possession of the War Department; and he added that he dd not see how the General of the Army could refuse to obey his demand for that force. He then added that under the order that the President had given to him he had no election to pursue any other course than the one that he indicated; that he was a subordinate officer directed by an order from a superior officer, and that he must pursue that course.
Hon. T. W. Ferry, called by the Prosecution, testified from memoranda taken down at the time of the demand of General Thomas for possession of the War Office (Mr. Ferry being present), as follows:
War Department Washington, Feb. 22, 1867.
In the presence of Secretary Stanton, Judge Kelley, Morehead, Dodge, Van Wyck, Van Horn, Delano, and Freeman Clarke, at 25 minutes past 12 m., General Thomas, Adjutant-General, came into the Secretary of War Office, saying"Good morning," the Secretary replying "Good morning, sir." Thomas looked around and said, "I do not wish to disturb you gentlemen, and will wait." Stanton said, "Nothing private here; what do you want?" Thomas demanded of Secretary Stanton the surrender of the Secretary of War Office. Stanton denied it to hint, and ordered him back to his own office as Adjutant-General. Thomas refused to go. "I claim the office of Secretary of War, and demand it by order of the President."
Stanton: "I deny your authority to act, and order you back to your own office."
Thomas: "I will stand here. I want no unpleasantness in the presence of these gentlemen."
Stanton: "You can stand there if you please, but you can not act as Secretary of War. I am Secretary of War. I order you out of this office and to your own." Thomas: "I refuse to go, and will stand here."
Stanton: "How are you to get possession? Do you intend to use force?"
Thomas: "I do not care to use force, but my mind is made up as to what I shall do. I want no unpleasantness, though. I shall stay here and act as Secretary of War."
Stanton: "You shall not, and I order you, as your superior, back to your own office."
Thomas: "I will not obey you. but will stand here and remain here."
Stanton: "You call stand there if you please. I order you out of this office to your own. I am Secretary of War, and your superior."
Thomas then went into opposite room across hall (General Schriver's) and commenced ordering General Schriver and General Townsend. Stanton entered, followed by Moorhead and Ferry, and ordered those generals not to obey or pay any attention to General Thomas' orders; that he denied his assumed authority as Secretary of War ad interim, and forbade their obedience of his directions. "I am Secretary of War, and I now order you, General Thomas out of this place to your own quarters."
Thomas: "I will not go, I shall discharge the functions of Secretary of War."
Stanton: "You will not."
Thomas: "I shall require the mails of the War Department to be delivered to me and shall transact the business of the office."
Stanton: "You shall not have them, and I order you to your room."
No. 3.
On Tuesday, April 2nd, the prosecution pmt in evidence a letter front the President to Gen. Grant, dated Feb. 10, 1868, in answer to a prior letter front the General. The President's letter, as introduced in evidence, purported to contain certain enclosures relating to the subject matter of the President's letter. The following is that portion of the President's letter which speaks of the enclosures accompanying and included therein:
GENERAL: The extraordinary character of your letter of the 3rd instant would seem to preclude any reply on my part; but the manner in which publicity has been given to the correspondence of which that letter forms a part, and the grave questions which are involved, induce me to take this mode of giving, as a proper sequel to the communications which have passed between its, the statements of the five members of the cabinet who were present on the occasion of our conversation on the 14th ultimo. Copies of the letters which they have addressed to me upon the subject are accordingly herewith enclosed.
Counsel for the President objected that the letter introduced by the prosecution was not evidence in the case unless the managers should also produce the enclosures therein referred to and made a part of the same. The following was the vote on sustaining the objection:
Yeas--Bayard, Conkling, Davis, Dixon, Doolittle, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont Norton, Patterson of Tennessee, Ross, Sprague, Trumbull, Van Winkle, Vickers and Willey--20--10 Republicans and 10 Democrats.
Nays--Anthony, Buckalew, Cameron, Cattell, Chandler, Cole, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Howard, Howe, Morgan, Morrill of Maine, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Sumner, Thayer, Tipton, Williams, and Wilson--29--28 Republicans and 1 Democrat.
So the evidence offered by the prosecution was admitted as offered, without the enclosures referred to, the objection by the defense not being sustained. (For these rejected enclosures see appendix.)
No. 4.
The prosecution offered to prove (Mr. Geo. A. Wallace, of the Treasury Department, on the stand):
That after the President had determined on the removal of Mr. Stanton, Secretary of War, in spite of the action of the Senate, there being no vacancy in the office of Assistant Secretary of the Treasury, the President unlawfully appointed his friend and theretofore private secretary, Edmund Cooper, to that position, as one of the means by which he intended to defeat the tenure of civil office act and other laws of Congress.
After debate and Mr. Wallace's answer in explanation of the usages of the department in the disbursement of moneys, during which it was shown that no moneys could be drawn out of the treasury on the order of the assistant secretary except when authorized by the Secretary of the Treasury to draw warrants therefor, a vote was taken, and resulted as follows:
Yeas--Anthony, Cameron, Cattell, Chandler, Cole, Conkling, Corbett, Cragin, Drake, Howard, Howe, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsey, Ross, Sprague, Sumner, Thayer, Tipton and Wilson---22--all Republicans.
Nays--Bayard, Buckalew, Conness, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of New Hampshire, Patterson of Tennessee, Sherman, Stewart, Trumbull, Van Winkle, Vickers, Willey and Williams--27--16 Republicans, 11 Democrats.
So the testimony was not received, as it was shown in the debate thereon that it would prove nothing against the President which the prosecution had expected to prove.
No. 5.
Friday April 3rd, the Prosecution offered two telegraphic messages, one from Lewis E. Parsons to Andrew Johnson, and the other Mr. Johnson's answer, as follows:
Montgomery, Ala., Jan. 17, 1867.
Legislature in session. Efforts making to reconsider vote on Constitutional Amendment. Report from Washington says it is probable an enabling act will pass. We do not know what to believe. I find nothing here.
(The State Legislature had previously rejected the Constitutional Amendment.)
The response is:
U. S. Military Telegraph. Executive Office, Washington D. C., Jan. 17, 1867.
What possible good can be obtained by reconsidering the Constitutional Amendment? I know of none in the present posture of affairs; and I do not believe that the people of the whole country will sustain any set of individuals in attempts to change the whole character of our Government by enabling acts or otherwise. I believe, on the contrary, that they will eventually uphold all who have patriotism and courage to stand by the Constitution, and who place their confidence in the people. There should be no faltering on the part of those who are honest in their determination to sustain the several co-ordinate Departments of the Government in accordance with its original design. Andrew Johnson. Hon. L. E. Parsons, Montgomery, Alabama.
The yeas and nays were demanded by Mr. Drake, and were as follows:
Yeas--Anthony, Cameron. Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Henderson, Howard, Morgan, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Willey, Wilson--27--all Republicans.
Nays--Buckalew, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Trumbull, Van Winkle, Vickers, Williams--17--8 Democrats and 9 Republicans.
So the testimony was decided admissible, and was claimed by Mr. Manager Boutwell to be in substantiation of the charges contained in the eleventh article.
No. 6.
The prosecution offered in evidence a copy of the Cleveland Leader, a newspaper purporting to contain a speech delivered by Mr. Johnson at the City of Cleveland, Ohio, on September 30th, 1866, as evidence against the President. It was objected to by the defense, and on the call by Mr. Conness and Mr. Sumner the yeas and nays were ordered, and the vote was as follows:
Yeas--Anthony, Cameron, Cattell. Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Henderson, Howard, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Van Winkle, Willey, Williams--35--33 Republicans and 2 Democrats.
Nays--Buckalew, Davis, Dixon, Doolittle, Fowler, Hendricks, Howe, McCreery, Patterson of Tennessee, Trumbull, Vickers--11--8 Democrats and 3 Republicans.
So the evidence was received. It related to the tenth article, and was based on a certain speech delivered by Mr. Johnson at Cleveland, Ohio.
No. 7.
Saturday, April 10th, 1868, General Lorenzo Thomas on the stand, called by the Defense. Mr. Stanbery asked him, with reference to certain interviews with the President: What occurred between the President and yourself at that second interview on the 21st (February)?
Mr. Drake demanded the yeas and nays, and they were ordered and were as follows:
Yeas--Anthony, Bayard, Buckalew, Cattell, Cole, Conkling, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ross, Sherman, Sprague, Stewart, Sumner, Tipton, Trumbull, Van Winkle, Vickers, Willey, Williams, Wilson, Yates--42-31 Republicans and 11 Democrats.
Nays--Cameron, Chandler, Conness, Cragin, Drake, Harlan, Howard, Nye, Ramsay, Thayer--10--all Republicans.
So the testimony was received, and General Thomas' answer was:
I stated to the President that I had delivered the communication, and that Mr. Stanton gave this answer: "Do you wish me to vacate at once, or will you give me time to take away my private property?" and that I replied, "At your pleasure." I then said that after delivering the copy of the letter to him, he said: "I do not know whether I will obey your instructions or resist them." This I mentioned to the President. and his answer was: "Very well, go and take charge of the office and perform the duties." * * *
Question by Mr. Stanbery: What first happened to you the next morning?
Answer: The first thing that happened to me the next morning was the appearance at my house of the marshal of the district, with an assistant marshal and a constable, and he arrested me.
Question: What time in the morning was that?
Answer: About 8 o'clock, before I had my breakfast. The command was to appear forthwith. I asked if he would permit me to see the President. * * * He went with me to the President's and went into the room where the President was. I stated that I had been arrested, at whose suit I did not know. He said. every well, that is the place I want it inthe courts." * * * I was required to give bail in $5,000. I asked the judge what it meant. He said it was simply to present myself there at half past ten the following Wednesday. I asked him if it suspended me from any of my functions. He said, "no, it has nothing to do with them." * * * I went immediately from there, first stopping at the President's on my way, and stating that I had given bail. He made the same answer, "very well, we want it in the courts."
Question: Did the President at any time prior to or including the 9th of March, authorize or direct you to use force, intimidation or threats, to get possession of the War Office?
Answer: He did not.
No. 8.
April 11, Gen. Sherman was called by the defense. In the course of his examination Mr. Stanbery asked him the following question:
In that interview, (referring to a previously mentioned interview between the General and the President in the presence of Gen. Grant) what conversation took place between the President and you in regard to the removal of Mr. Stanton?
Mr. Butler objected and the yeas and nays were ordered.
Yeas--Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morgan, Norton, Patterson of Tennessee, Ross, Sprague, Sumner, Trumbull, Van Winkle, Vickers, and Willey--23--22 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Henderson, Howard, Morrill of Maine, Morrill of Vermont. Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Williams, Wilson and Yates--28--all Republicans.
So the proffered testimony was refused.
No. 9.
Counsel for defense put the following question to Gen. Sherman:
At the first interview at which the tender of the duties of the Secretary of War ad interim was made to you by the President, did anything further pass between you and the President in reference to the tender or your acceptance of it?
Mr. Drake demanded the yeas and nays, and they were as follows:
Yeas--Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morgan, Norton, Patterson of Tennessee, Ross, Sprague, Sumner, Trumbull, Van Winkle, Vickers, and Willey--23--12 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinhuysen, Harlan, Henderson, Howard, Howe, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Williams, Wilson and Yates--29--all Republicans.
So the proffered testimony was refused.
No. 10.
The next question put to Gen. Sherman by the Defense was:
In either of these conversations did the President say to you that his object in appointing you was that he might thus get the question of Mr. Stanton's right to the office before the Supreme Court?
Objected to by Prosecution, and yeas and nays were taken:
Yeas--Anthony, Bayard, Fowler, McCreery, Patterson of Tennessee, Ross, and Vickers--7--4 Democrats, 3 Republicans.
Nays--Buckalew, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Grimes, Harlan, Henderson, Hendricks, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates--44--37 Republicans and 7 Democrats.
So this proffered testimony was refused.
No. 11.
Mr. Stanbery, for Defense, suggested that the question had undoubtedly been overruled upon matter of form, at least, and put it again in this form.
Was anything said at either of those interviews by the President, as to any purpose of getting the question of Mr. Stanton's right to the office before the courts?
This was put and determined in the negative without a division, when Mr. Henderson offered it again in this form: Did the President, in tendering you the appointment of Secretary of War ad interim. express the object or purpose of so doing?
Prosecution again objected, and the yeas and nays were taken:
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sprague, Sumner, Trumbull, Van Winkle. Vickers. and Willey-25--14 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates--27--all Republicans.
So the proffered evidence was refused.
No. 12.
April 13, 1868--General Sherman's examination continued:
Question: After the restoration of Mr. Stanton to office, did you form an opinion whether the good of the service required a Secretary of War other than Mr. Stanton; and if so, did you communicate that opinion to the President?
Mr. Conness called for the yeas and nays and they were ordered, and resulted:
Yeas--Anthony, Bayard, Buckalew, Dixon, Doolittle. Fowler, Grimes, Hendricks, Johnson, McCreery Patterson, of Tennessee, Ross, Trumbull, Van Winkle and Vickers--15--6 Republicans and 9 Democrats.
Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Drake, Edmunds, Fessenden, Frelinghuysen, Harlan, Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Willey, Williams, Wilson and Yates--35--33 Republicans and 2 Democrats.
So the proffered testimony was refused.
No. 13.
The next question asked of Gen. Sherman was by Senator Johnson:
Question: Did you at any time, and when, before the President gave the order for the removal of Mr. Stanton as Secretary of War, advise the President to appoint some other person than Mr. Stanton?
Mr. Drake demanded the yeas and nays, which were as following:
Yeas--Anthony, Bayard, Buckalew, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Trumbull, Van Winkle, Vickers--18-9--Republicans and 9 Democrats.
Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Dixon, Drake, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Willey Williams, Wilson, Yates--33--30 Republicans and 2 Democrats.
So the proffered testimony was refused.
No. 14.
Counsel for defense offered:
A warrant of arrest of Gen. Thomas, dated February 22, 1868, and the affidavit on which the warrant issued.
(This warrant had been issued on the affidavit of Mr. Stanton.)
The yeas and nays were as follows:
Yeas--Anthony, Bayard, Buckalew, Cattell, Cole, Corbett, Cragin, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, Willey, Williams, Yates--34--24 Republicans and 10 Democrats.
Nays--Cameron, Conkling, Chandler, Conness, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye, Ramsay, Stewart, Thayer, Tipton, Wilson--17--all Republicans.
So the warrant was received in evidence.
That warrant was issued by Judge Carter, Chief Justice of the Supreme Court of the District of Columbia, upon the complaint of Edwin M. Stanton, and charged Thomas with attempting forcibly to seize and take possession of the War Office, in violation of the fifth section of the Tenure-of-Office Act. The warrant was as follows:
UNITED STATES OF AMERICA, DISTRICT OF COLUMBIA.
To David S. Gooding, United States Marshal for the District of Columbia:
I, David K. Carter, Chief Justice of the Supreme Court for the District of Columbia, hereby command you to arrest Lorenzo Thomas, of said District, forthwith, and that you have the said Lorenzo before me at the chambers of the said Supreme Court in the City of Washington, forthwith, to answer to the charge of a high misdemeanor in this, that on the 21st day of February, 1868, in the District of Columbia, he did unlawfully accept the appointment of the office of Secretary of War ad interim, and did then and there unlawfully hold and exercise and attempt to hold and exercise the said office contrary to the provisions of the act entitled "An Act regulating the tenure of certain civil offices, passed March 2, 1867, and hereof fail not, but make due return.
Given under my hand and seal of said court this 22nd day of February, 1868,
D. K. Carter. Chief Justice of the Supreme Court of the District of Columbia.
Attest: R. J. Meigs, Clerk. (Marshal's Return). Washington, D. C., February 22, 1868.
The within writ came to hand at 7 o'clock a.m. and was served by me on the said Lorenzo Thomas at 8 o'clock a.m, and I now return this writ and bring him before Chief Justice Carter at 9 o'clock a. m. of to-day.
David S. Gooding, U. S. Marshal, D. C.
No. 15.
Mr. Johnson, (of the Court,) asked this question of General Sherman, witness on the stand: When the President tendered to you the office of Secretary of War, ad interim, on the 27th of January, 1868, and on the 31st of the same month and year, did he, at the very time of making such tender, state to you what his purpose in so doing was?
Counsel for Prosecution objected, and Mr. Drake called for the yeas and nays, which were taken, as follows:
Yeas--Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, Willey--16--16 Republicans and 10 Democrats.
Nays-Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--22--all Republicans.
The question was decided to be admissible, and the anawer was "yes."
No. 16.
The next question, in immediate connection with the last, was:
If he did, state what he said his purpose was?
The yeas and nays were ordered and the vote was:
Yeas--Anthony, Bayard, Buckalew, Cole, Cobertt, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morton, Norton, Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers, Willey--26--15 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--25--all Republicans.
So the question was permitted to be answered, and General Sherman said:
The President told me that the relations between himself and Mr. Stanton, and between Mr. Stanton and the other members of the Cabinet, were such that he could not execute the office which he filled as President of the United States without making provision ad interim for that office; that he had the right under the law; he claimed to have the right, and his purpose was to have the office administered in the interest of the Army and of the Country; and he offered me the office in that view. He did not state to me then that his purpose was to bring it to the Courts directly; but for the purpose of having the office administered properly in the interest of the Army and the whole Country. I asked him why lawyers could not make a case, and not bring me, or any ofcer of the Army, into the controversy. His answer was that it was found impossible, or a case could not be made up; but, said he "if we can bring the case to the Courts, it would not stand half an hour."
Mr. Butler, of the Prosecution, objected, and after debate, General Sherman continued:
The question first asked me seemed to restrict me so close to the purpose that I endeavored to confine myself to that point alone. On the first day, or first interview, in which the President offered me the appointment ad interim, he confined himself to very general terms, and I gave him no definite answer. The second interview, which was on the afternoon of the 30th, was the interview during which he made the points which 1 have testified to. In speaking he referred to the constitutionality of the bill known as the civil tenure-of-office bill, I think, or the tenure of civil office bill; and it was the constitutionality of that bill which he seemed desirous of having tested, and which, he said, if it could be brought before the Supreme Court properly, would not stand half an hour. We also spoke of force. I first stated that if Mr. Stanton would simply retire, although it was against my interest, against my desire, against my personal wishes, and against my official wishes, I might be willing to undertake to administer the office ad interim. Then he supposed the point was yielded; and I made this point? "Suppose Mr. Stanton do not yield?" he answered, "Oh! he will make no objection; you present the order and he will retire." I expressed my doubt, and he remarked. "I know him better than you do: he is cowardly." I then begged to be excused from giving him an answer to give the subject more reflection, and I gave him my final answer in writing. I think that letter, if you insist on knowing my views, should come into evidence, and not parol testimony taken up; but my reasons for declining the office were mostly personal in their nature.
Mr. Henderson (of the Court) asked this question:
Did the President, on either of the occasions alluded to, express to you a fixed purpose or determination to remove Mr. Stanton from his office?
General Sherman answered:
If by removal is meant a removal by force, he never conveyed to my mind such an impression; but he did most unmistakably say that he could have no more intercourse with him in the relation of President and Secretary of War.
Mr. Howard (of the Court) asked the General:
You say the President spoke of force. What did he say about force?
General Sherman answered:
I enquired, "Suppose Mr. Stanton do not yield? What then shall be done?" "Oh," said he, "there is no necessity of considering that question. Upon the presentation of an order he will simply go away, or retire.
Mr. Henderson (of the Court) asked the question:
Did you give any opinion, or advice to the President on either of those occasions in regard to the legality or propriety of an ad interim appointment; and if so, what advice did you give, or what opinion did you express to him?
Mr. Bingham of the prosecution, objected, and the Chair put the question to the Senate whether it should be answered. The Senate, without a division, refused answer to the question, and the examination of Gen. Sherman closed for that day.
No. 17.
Wednesday, April 15th. The defense offered several extracts from records of the Navy Department, to prove the practice of the Government in cases of removal from office by different Presidents prior to Mr. Johnson. of which the following are samples:
NAVY AGENCY AT NEW YORK.
1861. June 20. Isaac Henderson was, by direction of the President, removed from the office of Navy agent at New York, and instructed to transfer to Paymaster John D. Gibson, of United States Navy, all the public funds and other property in his charge. Navy Agency at Philadelphia.
Dec. 26, 1851. James S. Chambers was removed from the office of Navy Agent at Philadelphia and instructed to transfer to Paymaster A. E. Watson, U. S. Navy, all the public funds and other property in his charge.
The prosecution objected and the yeas and nays were ordered.
Yeas--Anthony, Bayard, Buckalew, Cole, Conkling, Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbery, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Vickers, Willey, Wilson, Yates--36--25 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Conness, Cragin, Drake, Harlan, Howard, Morgan, Nye, Pomeroy, Ramsay, Thayer, Tipton, Williams--15--all Republicans.
So the evidence was admitted.
No. 18.
Thursday, April 16, Mr. Walter S. Cox on the stand. The defense offered to prove:
That Mr. Cox was employed professionally by the President. in the presence of General Thomas, to take such legal proceedings in the case that had been commenced against General Thomas as would be effectual to raise judicially the question of Mr. Stanton's legal right to continue to hold the office of Secretary for the Department of War against the authority of the President, and also in reference to obtaining a writ of quo warranto for the same purpose; and we shall expect to follow up this proof by evidence of what was done by the witness in pursuance of the above employment.
Mr. Drake demanded the yeas and nays, and they were ordered:
Yeas--Anthony, Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--29--17 Republicans and 12 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--21--all Republicans.
So the testimony was received, and the witness proceeded to detail the steps he had taken by direction of the President to procure a judicial determination of General Thomas' right to the office of Secretary of War and to put him in possession, till the following question was asked.
No. 19.
What did you do toward getting out a writ of habeas corpus under the employment of the President.
Prosecution objected, and the yeas and nays were ordered:
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill of Maine, Morgan, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--27--15 Republicans and 12 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin, Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--23--all Republicans.
The Senate having decided the evidence to be admissible,
Mr. Cox proceeded:
When the Chief Justice announced that he would proceed as an examining Judge to investigate the case of General Thomas, and not as holding Court, our first application to him was to adjourn the investigation into the Criminal Court then in session, in order to have the action of that Court. After some little discussion this request was refused. Our next effort was to have General Thomas committed to prison, in order that we might apply to that Court for a habeas corpus, and upon his being remanded by that Court; if that should be done, we might follow up the application by one to the Supreme Court of the United States. * * * The Chief Justice having indicated an intention to postpone the examination, we directed General Thomas to decline giving any bail for further appearance, and to surrender himself into custody, and announce to the Judge that he was in custody, and then present to the Criminal Court an application for a writ of habeas corpus. The Counsel on the other side objected that General Thomas could not put himself into custody, and they did not desire that he should be detained in custody. The Chief Judge also declared that he would not restrain General Thomas of his liberty, and would not hold him or allow him to be held in custody. Supposing that he must be either committed or finally discharged, we then claimed that he be discharged, not supposing that the Counsel on the other side would consent to it, and supposing that would bring about his commitment, and that we should then have an opportunity of getting a habeas corpus. They made no objection, however, to his final discharge, and accordingly the Chief Justice did discharge him.
No. 20.
The witness, Mr. Cox, was asked by counsel for defense:
After you had reported to the President the result of your efforts to obtain a writ of habeas corpus, did you do any other act in pursuance of the original instructions you had received from the President on Saturday to test the right of Mr. Stanton to continue in the office; and if so, state what the acts were?
The yeas and nays were ordered on the demand of Mr. Howard.
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbery, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--27--15 Republicans and 12 Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Morgan, Morrill of Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--23--all Republicans.
So the evidence was admitted, and Mr. Cox continued.
On the same day or the next, I prepared an information in the nature of a quo warranto. I think a delay of one day occurred in the effort to procure certified copies of Gen. Thomas' commission as Secretary of War ad interim, and of the order to Mr. Stanton. I then applied to the District Attorney to sign the information in the nature of a quo warranto, and he declined to do so without instructions or a request from the President or the Attorney General. This fact was communicated to the Attorney General and the papers were sent to him. Nothing was done after this time by me.
No. 21.
The defense offered to prove:
That the President then stated that he had issued an order for the removal of Mr. Stanton and the employment of Mr. Thomas to perform the duties ad interim; that thereupon Mr. Perrin said, "Supposing Mr. Stanton should oppose the order." The President replied: "There is no danger of that, for General Thomas is already in the office." He then added: "It is only a temporary arrangement; I shall send in to the Senate at once a good name for the office.
Mr. Butler, for prosecution, objected, and the vote was:
Yeas--Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks, McCreery, Patterson of Tennessee, and Vickers--9--all Democrats.
Nays--Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates---37--36 Republicans and 1 Democrat.
So this testimony was rejected.
No. 22.
Friday, April 17. The defense offered to prove:
That on this occasion (a Cabinet meeting previously mentioned), the President communicated to Mr. Welles, and the other members of his Cabinet, before the meeting broke up, that he had removed Mr. Stanton and appointed General Thomas Secretary of War ad interim; and that, upon the inquiry by Mr. Welles whether General Thomas was in possession of the office, the President replied that he was, and on further question of Welles, whether Mr. Stanton acquiesced, the President replied that he did; all that he required was time to remove his papers.
Mr. Butler objected and the yeas and nays were ordered.
Yeas--Anthony, Bayard, Buckalew, Cole, Conkling, Corbett, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morton, Patterson of Tennessee, Ross, Saulsbery, Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--26--15 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Conness, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, Yates--2-3-all Republicans.
So the testimony was received, and the following proceeding was had Mr. Evarts, of Counsel for the President. Mr. Welles on the stand:
Please state, Mr. Welles, what communication was made by the President to the Cabinet on the subject of the removal of Mr. Stanton and the appointment of General Thomas, and what passed at the time?
Mr. Welles: As I remarked, after the Departmental business had been disposed of, the President remarked, as usual when he had anything to communicate himself, that before they separated it would be proper for him to say that he had removed Mr. Stanton and appointed the Adjutant General Lorenzo Thomas, Secretary ad interim. I asked whether General Thomas was in possession. The President said he was; that Mr. Stanton required some little time to remove his writings, his papers; I said, perhaps, or I asked, "Mr. Stanton, then, acquiesces?" He said he did, as he considered it. * * *
Question: Now, sir, one moment to a matter which you spoke of incidentally. You were there the next morning about noon?
Answer: I was.
Question: Did you then see the appointment of Mr. Ewing?
Answer: I did.
Question: Was it made out before you came there, or after, or while you were there?
Answer: While I was there.
Question: And you then saw it?
Answer: I saw it.
Question by Mr. Johnson (of the Court): What time of the day was that?
Answer: It was about twelve.
* * * Question by Mr. Evarts: Did you become aware of the Tenure-of-office bill, as it is called, at or about the time that it passed Congress?
Answer: I was aware of it.
Question: Were you present at any Cabinet meeting at which, after the passage of that Act, it became the subject of consideration?
Answer: Yes, on two occasions. The first occasion when it was brought before the Cabinet was on the 26th of February, 1867.
Question: Who were present?
Answer: All the Cabinet were present.
Question: Was Mr. Stanton there?
Answer: Mr. Stanton was there, I think, on that occasion.
Question: This civil tenure act was the subject of consideration there?
Answer: It was submitted.
Question: As a matter of consideration in the Cabinet?
Answer: For consultation for the advice and opinion of members.
Question: How did he submit the matter to your consideration?
Mr. Butler objected and demanded that the offer be put in writing.
No. 23.
That the President at a meeting of the Cabinet, while the bill was before the President for his approval, laid before the Cabinet the tenure-of-civil-office bill for their consideration and advice to the President respecting his approval of the bill: and thereupon the members of the Cabinet then present gave their advice to the President that the bill was unconstitutional and should be returned to Congress with his objections, and that the duty of preparing a message, setting forth the objections to the constitutionality of the bill, was devolved on Mr. Seward and Mr. Stanton; to be followed by proof as to what was done by the President and Cabinet up to the time of sending in the message.
After argument the yeas and nays were taken:
Yeas--Anthony Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, Vickers, and Willey--20--9 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay Sherman, Sprague, Stewart, Thayer, Tipton, Williams, Wilson, and Yates--29--all Republicans.
So this testimony was rejected.
No. 21.
Counsel for Defense offered to prove:
That at the meetings of the Cabinet at which Mr. Stanton was present, held while the tenure-of-civil-office bill was before the President for approval, the advice of the Cabinet in regard to the same was asked by the President and given by the Cabinet, and thereupon the question whether Mr. Stanton and the other Secretaries who had received their appointment from Mr. Lincoln were within the restrictions upon the President's power of removal from office created by said act was considered, and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions.
The yeas and nays were ordered, and the vote was:
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, and Willey--22--11 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Cole. Conness. Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghusen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, and Yates--26--all Republicans.
So this testimony was rejected.
No. 25.
Counsel for defense offered to prove:
That at the Cabinet meetings between the passage of the tenure-of-civil office bill and the order of the 21st of February, 1868, for the removal of Mr. Stanton. upon occasions when the condition of the public service, as affected by the operation of that bill, came up for the consideration and advice of the Cabinet, it was considered by the President and Cabinet that a proper regard to the public service made it desirable that upon some proper case a judicial determination of the constitutionality of the law should be obtained.
The question being taken by yeas and nays, resulted:
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury Trumbull, Van Winkle, and Vickers--19--8 Republicans and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Sprague, Stewart, Thayer, Tipton, Willey, Williams, Wilson and Yates--30--all Republicans.
So the proffered testimony was rejected.
No. 26.
Counsel for defense put this question to witness, (Mr. Welles, then Secretary of the Navy.)
Was there, within the period embraced in the inquiry in the last question, and at any discussions or deliberations of the Cabinet concerning the operation of the tenure-of-civil-office act and the requirements of the public service in regard to the service, any suggestion or intimation whatever touching or looking to the vacation of any office by force or getting possession of the same by force?
Counsel for prosecution objected, and the vote was:
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Edmunds, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, and Vickers--18--8 Republicans and 10 Democrats.
Nay-s-Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Willey, Williams, Wilson, and Yates--26--all Republicans.
So the proffered testimony was rejected.
No. 27.
Defense offered to prove:
That at the meetings of the Cabinet at which Stanton was present, held while the tenure-of-civil-office bill was before the President for approval, the advice of the Cabinet in regard to the same was asked by the President, and given the Cabinet, and thereupon the question whether Mr. Stanton and the other Secretaries who had received their appointments from Mr. Lincoln were within the restrictions upon the President's power of removal from office created by said act, was considered and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions.
Mr. Johnson: I ask that the question propounded by the Senator from Ohio (Mr. Sherman) shall now be read.
The Secretary read the question as follows:
State if, after the 2d of March, 1867, the date of the passage of the tenure-of-office act, the question whether the Secretaries appointed by President Lincoln were included within the provisions of that act came before the Cabinet for discussion; and if so, what opinion was given on this question by members of the Cabinet to the President.
The yeas and nays were ordered; and being taken resulted:
Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Patterson of Tennessee, Ross, Saulsbury, Sherman, Trumbull, Van Winkle, Vickers, and Willey--20--9 Republican and 11 Democrats.
Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson, and Yates--26--all Republicans.
So the proffered testimony was rejected.
No. 28.
The Prosecution proposed to put in evidence the nomination of Lieutenant General Sherman, to be General by brevet, sent to the Senate on the 13th of February, 1868, also the nomination of Major General George H. Thomas to be Lieutenant General by brevet, and to be General by brevet, sent to the Senate on the 21st of February, 1868.
The question being taken by yeas and nays, resulted: Yeas--Anthony, Cole, Fessenden, Fowler, Grimes, Henderson, Morton, Ross, Sumner, Tipton, Trumbull, Van Winkle, Willey, and Yates--14--all Republicans.
Nays--Buckalew, Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Hendricks, Howard, Howe, Johnson, McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Ramsay, Sherman, Sprague, Stewart, Thayer, Vickers, Williams, and Wilson--35--26 Republicans and 9 Democrats.
So the proffered testimony was refused.
GENERAL EMORY'S TESTIMONY.
The Ninth Article of the Impeachment was based upon alleged military changes in the City of Washington whereby the number of troops on duty there was rumored to have been largely increased, with a view to their use in the controversy between the President and Congress, and more especially for the expulsion of Mr. Stanton from the War Office in case of his resistance to the order of the President for his retirement. The wildest rumors of that character prevailed--that Mr. Johnson proposed to throw off all disguise and assume direct military control and the establishment of practically a military dictatorship. Congress had some months previously enacted that all military orders from the President should be issued through the General of the Army--the Congress thereby assuming to practically abrogate a constitutional function of the Chief Executive.
There was considerable confidence among the supporters of the impeachment that they would be able to prove these allegations by General Emory, then in local command of the troops and Department of Washington. General Emory was called by the prosecution, and the following was his testimony.
Examined by Mr. Butler:
Question: Will you have the kindness to state, as nearly as you can what took place then? (Referring to an interview with the President at the Executive Mansion.)
Answer: I will try and state the substance of it, but the words I can not undertake to state exactly. The President asked me if I recollected a conversation he had had with me when I first took command of the department. I told him that I recollected the facts of the conversation distinctly. He then asked me what changes had been made. I told him no material changes, but such as had been made I could state at once. I went on to state that in the fall six companies of the 29th infantry had been brought to this City to winter; but as an offset to that, four companies of the 12th infantry had been detached to South Carolina on the request of the Commander of that District; that two companies of artillery had been detached by my predecessor, one of them for the purpose of siding in putting down the Fenian difficulties, had been returned to the command, that although the number of companies head been increased, the numerical strength of the command was very much the same, growing out of an order reducing the artillery and infantry companies from the maximum of the war establishment to the minimum of the peace establishment. The President said: "I do not refer to those changes." I replied that if he would state what changes he referred to, or who made the report of the changes, perhaps I could be more, explicit. He said, "I refer to recent changes within a day or two," or something to that effect. I told him I thought I could assure him that no changes had been made; that under a recent order issued for the government of the armies of the United States, founded upon a law of Congress, all orders had to be transmitted through General Grant to the army, and in like manner all orders coming from General Grant to any of his subordinate officers must necessarily come, if in my department, through me; that if by chance an order had been given to any junior officer of mine it was his duty at once to report that fact. The President asked me. "What order do you refer to?" I replied, "To order number 17 of the series of 1867." He said, "I would like to see the order," and a messenger was dispatched for it. At this time a gentleman came in who I supposed had business in no way connected with the business I had in hand, and I withdrew to the farther end of the room, and while there, the messenger came in with the book of orders and handed it to me. As soon as the gentleman had withdrawn, I returned to the President with the book in my hand, and said I would take it as a favor if he would permit me to call his attention to that order; that it had been passed in an appropriation bill, and I thought it not unlikely that it had escaped his attention. He took the order and read it, and observed, "This is not in conformity with the Constitution of the United States, that makes me Commander-in-Chief, or with the terns of your commission." I replied, "That is the order which you approved and issued to the army for our government," or something to that effect. I can not recollect the exact words, nor do I intend to quote the exact words of the President. He said, "Am I to understand that the President of the United States can not give an order except through the General of the Army? Or General Grant?" I said in reply, that that was my impression--that that was the opinion that the Army entertain, and I thought upon that subject they were a unit. I also said, "I think it is fair, Mr. President, to say to you that when this order came out, there was considerable discussion on the subject as to what were the obligations of an officer under that order, and some eminent lawyers were consulted. I myself consulted one--and the opinion was given to me decidedly and unequivocally that we were bound by the order, Constitutional or not Constitutional. The President observed that "the object of the law was evident."
The following is that portion of the act referred to:
"Section 2. Be it further enacted: That the headquarters of the General of the Army of the United States shall be at the City of Washington, and all orders and instructions relating to military operations issued by the President and Secretary of War shall be issued through the General of the Army, and in case of his inability, through the next in rank. The General of the, Army shall not be removed, suspended, or relieved from command or assigned to duty elsewhere than at said headquarters except at his own request WITHOUT THE PREVIOUS APPROVAL OF THE SENATE; and any orders or instructions relating to Military operations issued contrary to the requirements of this section, shall be null and void. And any officer who shall issue orders or instructions, contrary to the provisions of this section, shall be deemed guilty of a misdemeanor in office; and any officer of the Army who shall transmit, convey or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued shall be liable to imprisonment for not less than two nor more than twenty years upon conviction thereof in any Court of competent jurisdiction."
By turning to the Congressional Record of that day, it will be found that Mr. Johnson was perfectly aware of the existence of the foregoing provision of the Act of Congress in the bill referred to, at the time he returned the bill to the House with his signature. His reasons for so signing it are set out in the following communication to the House accompanying the bill
The act entitled "An act making appropriations for the support of the Army for the year ending June 30, 1868, and for other purposes," contains provisions to which I must call attention. There are propositions contained in the second section which in certain cases deprives the President of his Constitutional functions of Commander in Chief of the Army, and in the sixth section, which denies to ten States of the Union their Constitutional right to protect themselves in any emergency, by means of their own militia. These provisions are out of place in an appropriation act, but I am compelled to defeat these necessary appropriations if I withhold my signature from the act. Pressed by these considerations, I feel constrained to return the bill with my signature, but to accompany it with my earnest protest against the section which I have indicated.
That Congress was to expire by limitation at 12 o'clock on the 4th, thirty-six hours later. If Mr. Johnson had vetoed the bill, as under ordinary conditions it would have been his duty to the Constitution and to himself to do, its re-passage through the two Houses in that limited time would have been impossible, and the appropriations carried by the bill for the support of the Army would have been lost. To save them Mr. Johnson submitted to the indignity put upon him by Congress in denying him a guaranteed and manifest Constitutional right and power. In that act Mr. Johnson illustrated a magnanimity and a consciousness of public responsibility that was most creditible to himself, and in marked contrast to the action of Congress toward him.