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.
Andrew Johnson.
Washington, D. C., March 2, 1868.
That Congress was to expire by limitation at 12 o'clock on the
4th, thirty-six hours later. If Mr. Johnson had vetoed the bill,
as under ordinary conditions it would have been his duty to the
Constitution and to himself to do, its re-passage through the two