<DOC>
[Hinds Precedents -- Volume III]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:hinds_lxxvi.wais]
Chapter LXXVI.
THE IMPEACHMENT AND TRIAL OF THE PRESIDENT.
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1. Acts setting proceedings in motion. Section 2408.
2. Preliminary investigation ex parte. Section 2409.
3. Initial discussion as to impeachable offenses. Sections
2410-2411.
4. Impeachment voted and articles authorized. Section 2412.
5. Presentation of the impeachment at the bar of the Senate.
Section 2413.
6. Rules for the trial. Section 2414.
7. Articles considered and adopted. Sections 2415, 2416.
8. Choice of managers by the House. Section 2417.
9. Report of additional articles by managers. Sections 2418,
2419.
10. Articles presented in the Senate. Section 2420.
11. Introduction of the Chief Justice. Sections 2421, 2422.
12. House demands process and summons ordered. Section 2423.
13. Return of the summons and calling of respondent. Section
2424.
14. Allowance of time for respondent's answer. Section 2425.
15. As to delay in beginning trial. Section 2426.
16. House determines to attend trial. Section 2427.
17. The respondent's answer. Sections 2428-2429.
18. Time given respondent to prepare for trial. Section 2430.
19. House prepares and presents replication. Sections 2431,
2432.
20. The opening arguments and trial. Section 2433.
21. Order of final arguments. Section 2434.
22. Deliberation and decision by the Senate. Sections 2435-
2443.
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2408. The impeachment and trial of Andrew Johnson, President of the
United States.
The impeachment of President Johnson was set in motion by a
resolution authorizing a general investigation as to the execution of
the laws.
The House referred to the Committee on Reconstruction the evidence
taken by the Judiciary Committee in the first attempt to impeach
President Johnson.
A proposition to impeach President Johnson was held to be privileged,
although at this session a similar resolution had been considered and
negatived.
Secretary Stanton communicated directly to the House the fact of the
President's attempt to remove him.
Sec. 2408
The first attempt to impeach Andrew Johnson, President of the United
States, failed on December 7, 1867,\1\ Thereafter the subject was
debated at length on December 13 \2\ in the Committee of the Whole
House on the state of the Union, but not with any proposition for
action pending, and rather with reference to the questions of law and
fact raised in the preceding discussions.
On January 22, 1868,\3\ Mr. Rufus P. Spalding, of Ohio, moved that
the rules be suspended in order that he might present the following
resolution:
Resolved, That the Committee on Reconstruction be authorized to
inquire what combinations have been made or attempted to be made to
obstruct the due execution of the laws, and to that end the committee
have power to send for persons and papers and to examine witnesses on
oath, and report to this House what action, if any, they may deem
necessary, and that said committee have leave to report at any time.
The motion was agreed to, yeas 103, nays 37; and the resolution being
before the House, motions to lay it on the table, to fix the day to
which the House should stand adjourned, and to adjourn were
successively disagreed to. Then, under operation of the previous
question, the resolution was agreed to, yeas 99, nays 31.
On February 10 \4\ Mr. Thaddeus Stevens, of Pennsylvania, by
unanimous consent, submitted the following resolution; which was agreed
to by the House:
Resolved, That the evidence taken on impeachment by the Committee on
the Judiciary \5\ be referred to the Committee on Reconstruction, and
that the committee have leave to report at any time.
On February 21 \6\ the Speaker laid before the House the following
communication:
War Department,
Washington City, February 21, 1868.
Sir: General Thomas has just delivered to me a copy of the inclosed
order, which you will please communicate to the House of
Representatives.
E. M. Stanton, Secretary of War.
Hon. Schuyler Colfax,
Speaker House of Representatives.
Executive Mansion,
Washington, D. C., February 21, 1868.
Sir: By virtue of the power and authority vested in me, as President,
by the Constitution and laws of the United States, you are hereby
removed from office as Secretary for the Department of War, and your
functions as such will terminate upon the receipt of this
communication.
You will transfer to Bvt. Maj. Gen. Lorenzo Thomas, Adjutant-General
of the Army, who has this day been authorized and empowered to act as
Secretary of War ad interim, all records, books, papers, and other
public property now in your custody and charge.
Respectfully, yours,
Andrew Johnson.
To Hon. Edwin M. Stanton, Washington, D. C.
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\1\ Second session Fortieth Congress, Journal, p. 53; Globe, p. 68.
\2\ Globe, pp. 172-193.
\3\ Journal, pp. 259-262; Globe, pp. 784, 785.
\4\ Journal, p. 330; Globe, p. 1087.
\5\ It was on this evidence that the first attempt to impeach had
been made.
\6\ Journal, p. 382; Globe, pp. 1326, 1327.
Sec. 2409
Mr. Elihu B. Washburne, of Illinois, moved that the communication be
referred to the Committee on Reconstruction. This motion was agreed to
without division, although there were suggestions that the letter
should go to the Judiciary Committee or to a select committee.
On the same day, and thereafter,\1\ Mr. John Covode, of Pennsylvania,
rising to a question of privilege, presented this resolution:
Resolved, That Andrew Johnson, President of the United States, be
impeached of high crimes and misdemeanors.
Mr. Fernando Wood, of New York, having objected, the Speaker \2\
said:
It is a privileged question.
Then, on motion of Mr. George S. Boutwell, of Massachusetts, the
resolution was referred to the Committee on Reconstruction.
2409. President Johnson's impeachment, continued.
The second and successful proposition to impeach President Johnson
was reported from the Committee on Reconstruction.
The second investigation of the conduct of President Johnson was ex
parte.
The full report justifying the proposition to impeach President
Johnson.
On February 22 \3\ Mr. Thaddeus Stevens, of Pennsylvania, presented
from the Committee on Reconstruction the following report:
That in addition to the papers referred to the committee, the
committee find that the President, on the 21st day of February, 1868,
signed and issued a commission or letter of authority to one Lorenzo
Thomas, directing and authorizing said Thomas to act as Secretary of
War ad interim, and to take possession of the books, records, and
papers, and other public property in the War Department, of which the
following is a copy:
Executive Mansion,
Washington, February 21, 1868.
Sir: Hon. Edwin M. Stanton having been this day removed from office as
Secretary for the Department of War, you are hereby authorized and
empowered to act as Secretary of War ad interim, and will immediately
enter upon the discharge of the duties pertaining to that office. Mr.
Stanton has been instructed to transfer to you all the records, books,
papers, and other public property now in his custody and charge.
Respectfully, yours,
Andrew Johnson.
To Brevet Maj. Gen. Lorenzo Thomas,
Adjutant-General of the United States Army, Washington, D. C.
Official copy respectfully furnished to Hon. Edwin M. Stanton.
L. Thomas,
Secretary of War ad interim.
Upon the evidence collected by the committee, which is herewith
presented, and in virtue of the powers with which they have been
invested by the House, they are of the opinion that Andrew Johnson,
President of the United States, be impeached of high crimes and
misdemeanors. They therefore recommend to the House the adoption of the
accompanying resolution.
Resolved, That Andrew Johnson, President of the United States, be
impeached of high crimes and misdemeanors in office.
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\1\ Journal, p. 385; Globe, pp. 1329, 1330.
\2\ Schuyler Colfax, of Indiana, Speaker.
\3\ Journal, p. 390; Globe, p. 1336.
Sec. 2410
This report was signed by Messrs. Stevens, George S. Boutwell, of
Massachusetts, John A. Bingham, of Ohio, C. T. Hulburd, of New York,
John F. Farnsworth, of Illinois, F. C. Beaman, of Michigan, and H. E.
Paine, of Wisconsin. There were no minority views, Mr. James Brooks, of
New York, who dissented, stating that he had not had the time to
prepare them. Mr. James B. Beck, of Kentucky, also a member of the
committee, dissented.
2410. President Johnson's impeachment, continued.
The committee reporting the second proposition to impeach President
Johnson disagreed as to the grounds thereof.
The question whether impeachment must be confined to indictable
offenses was in issue as to the second report favoring impeachment of
President Johnson.
Argument of Mr. Thaddeus Stevens that impeachment is a purely
political proceeding.
The resolution was debated at length on February 22 and 24.\1\ It
appears from this debate that the specific act most relied upon by the
committee was violation of the law known as the tenure-of-office
act,\2\ and which provided in its first section:
That every person holding any civil office to which he has been
appointed by and with the advice and consent of the Senate, and every
person who shall hereafter be appointed to any office, and shall become
duly qualified to act therein, is, and shall be, entitled to hold such
office until a successor shall have been in like manner appointed and
duly qualified, except as herein otherwise provided: Provided, That the
Secretaries of State, of the Treasury, of War, of the Navy, and of the
Interior, the Postmaster-General, and the Attorney-General shall hold
their offices respectively for and during the term of the President by
whom they have been appointed, and for one month thereafter, subject to
removal by and with the advice and consent of the Senate.
And in its sixth section:
That every removal, appointment, or employment made, had, or
exercised contrary to the provisions of this act, and the making,
signing, sealing, countersigning, or issuing of any commission or
letter of authority for or in respect to any such appointment or
employment, shall be deemed and are hereby declared to be high
misdemeanors, and upon trial and conviction thereof every person guilty
thereof shall be punished by a fine not exceeding $10,000, or by
imprisonment not exceeding five years, or both said punishments, in the
discretion of the court.
It was urged generally that the removal of Mr. Stanton and the
appointment of General Thomas ad interim constituted specific
violations of this law. Members of the House who had by their votes
assisted in defeating the first attempt at impeachment, supported the
pending resolution on the ground that it was based on an offense
indictable under Federal law. Thus, Mr. James F. Wilson, of Iowa, who
had submitted the minority views on which the defeat of the former
attempt was based, said \3\ in this case:
The considerations which weighed upon my mind and molded my conduct
in the case with which the Committee on the Judiciary of this House was
charged are not to be found in the present case. The logic of the
former case is made plain, not to say perfect, by its sequence in the
present one. The President was working to an end suspected by others,
known to himself. His then means were not known to the law as crimes or
misdemeanors, either at common law or by statute, and we so pronounced.
He
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\1\ Globe, pp. 1336, 1360, 1382, 1393.
\2\ Act of March 2, 1867, 14 Stat. L., p. 430.
\3\ Globe, pp. 1386, 1387.
Sec. 2411
mistook our judgment for cowardice, and worked on until he has
presented to us, as a sequence, a high misdemeanor known to the law and
defined by statute.
Others who had voted against impeachment in the former instance
expressed similar views. Mr. Thaddeus Stevens, of Pennsylvania, in
closing the debate,\1\ indicated, however, that he did not consider the
case as narrowed to this point alone:
The charges, so far as I shall discuss them, are few and distinct.
Andrew Johnson is charged with attempting to usurp the powers of other
branches of the Government; with attempting to obstruct and resist the
execution of the law; with misprision of bribery; and with the open
violation of laws which declare his acts misdemeanors and subject him
to fine and imprisonment; and with removing from office the Secretary
of War during the session of the Senate without the advice or consent
of the Senate; and with violating the sixth section of the act entitled
``An act regulating the tenure of certain civil offices.'' There are
other offenses charged in the papers referred to the committee which I
may consider more by themselves.
In order to sustain impeachment under our Constitution I do not hold
that it is necessary to prove a crime as an indictable offense, or any
act malum in se. I agree with the distinguished gentleman from
Pennsylvania, on the other side of the House, who holds this to be a
purely political proceeding. It is intended as a remedy for malfeasance
in office and to prevent the continuance thereof. Beyond that, it is
not intended as a personal punishment for past offenses or for future
example.
Impeachment under our Constitution is very different from impeachment
under the English law. The framers of our Constitution did not rely for
safety upon the avenging dagger of a Brutus, but provided peaceful
remedies which should prevent that necessity. England had two systems
of jurisprudence--one for the trial and punishment of common offenders,
and one for the trial of men in higher stations, whom it was found
difficult to convict before the ordinary tribunals. This latter
proceeding was by impeachment or by bills of attainder, generally
practiced to punish official malefactors, but the system soon
degenerated into political and personal persecution, and men were
tried, condemned, and executed by this court from malignant motives.
Such was the condition of the English laws when our Constitution was
framed, and the convention determined to provide against the abuse of
that high power, so that revenge and punishment should not be inflicted
upon political or personal enemies. Here the whole punishment was made
to consist in removal from office, and bills of attainder were wholly
prohibited. We are to treat this question, then, as wholly political,
in which, if an officer of the Government abuse his trust or attempt to
pervert it to improper purposes, whatever might be his motives, he
becomes subject to impeachment and removal from office. The offense
being indictable does not prevent impeachment, but is not necessary to
sustain it. (See Story's Commentaries, Curtis on the Constitution,
Madison, and others.) Such is the opinion of our elementary writers,
nor can any case of impeachment tried in this country be found where
any attempt was made to prove the offense criminal and indictable.
2411. President Johnson's impeachment, continued.
Discussion as to whether President Johnson was justified in
attempting to test the constitutionality of the tenure-of-office law.
It was urged against the proposed resolution that the tenure-of-
office act was unconstitutional, and therefore that the President had
committed no specific violation of law. This view was set forth \2\
most forcibly by Mr. James B. Beck, of Kentucky, a member of the
Committee on Reconstruction:
All questions growing out of the combinations and conspiracies lately
charged upon the President were ruled by the Reconstruction Committee
to be insufficient and were not brought before this House. And the sole
question now before us is, Is there anything in this last act of the
President removing Mr. Stanton and appointing Adjutant-General Thomas
Secretary of War ad interim to justify his impeachment by this House?
I maintain that the President of the United States is in duty bound
to test the legality of every law which he thinks interferes with his
rights and powers as the Chief Magistrate of this nation. When-
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\1\ Globe, p. 1399.
\2\ Globe, pp. 1349-1351.
Sec. 2411
ever he has powers conferred upon him by the Constitution of the United
States, and an act of Congress undertakes to deprive him of those
powers or any of them, he would be false to his trust as the Chief
Executive of this nation, false to the interests of the people whom he
represents, if he did not by every means in his power seek to test the
constitutionality of that law, and to take whatever steps were
necessary and proper to have it tested by the highest tribunal in the
land, and to ascertain whether he has a right under the Constitution to
do what he claims the right to do, or whether Congress has the right to
deprive him of the powers which he claims have been vested in him by
the Constitution of the United States, and that is all that he proposes
to do in this case.
Now, if that is the object, and the only object, of the President, as
I contend the facts show, then I can hardly bring myself to believe
that any set of sane men can seriously entertain the opinion that in
anything the President has done in the removal of Mr. Stanton he has
been guilty of either a high crime or misdemeanor. But ``whom the gods
wish to destroy they first make mad,'' and if ever a party was stricken
with judicial madness and blindness the action of this party now proves
that they are the victims of it.
That the President should be considered guilty of a high crime or
misdemeanor for desiring and attempting to bring to the test of
judicial decision one of the powers with which he considers that the
Constitution has clothed him, and of which power an act of Congress has
attempted to divest him, and that, too, in regard to an officer who
agrees with him in regard to that constitutional power, seems to me an
idea too preposterous to be entertained outside of a lunatic asylum.
The humblest citizen has the undoubted right to try judicially his
constitutional rights. In regard to an officer whose office is created
by the Constitution it is not only the right but the official duty of
the President to bring to the test of judicial decision every power of
which Congress endeavors to deprive him and which he believes is vested
in him by the Constitution. He can not obey the Constitution nor
faithfully fulfill his oath of office without vindicating in a legal,
orderly, and judicial mode those powers. A void act of Congress is no
excuse before a court or even before the bar of enlightened public
opinion for a failure to attempt in a constitutional, legal, and
orderly manner to fulfill his constitutional duties. If, therefore, the
President is guilty of a crime, that crime consists in his believing
that the tenure-of-office bill is unconstitutional or that it does not
apply to the case of Mr. Stanton; for if he does so believe it is a
duty he can not, without violating his oath, decline to bring to the
test of judicial decision whenever the duties of his office require him
to remove an officer under his constitutional authority.
Mr. Beck then quoted Madison, Story, and Kent, and cited the attitude
of Mr. Stanton himself, at the time the President declined to approve
the tenure-of-office act, to show that by the Constitution the right to
remove executive officers was vested solely in the President, and that
he could not be deprived of this power by an act of Congress.
In opposition to this view it was urged,\1\ in the first place, that
on the day before this report was made in the House the Senate had
solemnly passed on the question of prerogative by agreeing to the
following:
Whereas the Senate have read and considered the communication of the
President, stating that he had removed Edwin M. Stanton, Secretary of
War, and had designated the Adjutant-General of the Army to act as
Secretary of War ad interim: Therefore,
Resolved by the Senate of the United States, That under the
Constitution and laws of the United States the President has no power
to remove the Secretary of War and designate any other officer to
perform the duties of that officer ad interim.
Further, it was urged: \2\
The Constitution does not make him a judge of the law, but an
executor thereof, and he is bound to execute that which the law-making
power decrees to be the law of the land. Whatever may be his opinion of
the law as a mere individual member of the national family, he is bound
to yield it to that higher duty which the Constitution imposes on him
as an officer of the state. If his conscience forbid,
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\1\ Globe, p. 1341.
\2\ By Mr. James F. Wilson, of Iowa, Globe, p. 1387.
Sec. 2412
he may resign the trust, but he has no right to retain the power of a
public officer and subordinate that to the judgment of a mere
individual member of the community or nation which has clothed him with
executive power for the enforcement of its laws. As an individual he
maybe justified in an assumption of the risks attendant upon a
disobedience of the law; as a public officer no such plea can be
properly entered in his behalf, for he is not only sworn to execute the
law, but he also possesses the right of resignation. If his conscience
will not permit him to execute a given law, he may resign his trust,
and leave to his successor the performance of a duty which his
judgment, as an individual, will not surrender to his obligations as a
public officer. A willingness to submit to the penalty prescribed for
the violation of a law may, to some extent, excuse disobedience on the
part of a private citizen, and at the same time avail nothing to the
public officer. The latter may at anytime, by resignation, become a
private citizen, but the former can not become a public officer in this
country except by the suffrages of his fellow citizens. If he accepts
the result of their suffrages, he merges his individuality into that
official creature which binds itself by an oath as an executive officer
to do that which, as a mere individual, he may not believe to be just,
right, or constitutional. Such an acceptance removes him from the
sphere of the right of private judgment to the plane of the public
officer, and binds him to observe the law, his judgment as an
individual to the contrary notwithstanding.
The Constitution invests the President with executive power in order
that he may ``take care that the laws be faithfully executed.'' Every
abuse of this power, whether it be by an improper exercise of it or by
neglect or refusal to exercise it at all, is a breach of official duty.
But it is not every breach of official duty that can be charged as a
crime or misdemeanor against the delinquent officer. Whatever doubt may
have arisen in other cases of the criminal character of the official
conduct involved in them, the one we are now considering presents no
basis on which to rest a doubt. Deliberately, not to say defiantly, the
President has violated a penal statute of the United States, and has
thereby committed a high misdemeanor which the law says ``shall be
punished by a fine not exceeding $10,000, or by imprisonment not
exceeding five years, or both said punishments, in the discretion of
the court.'' (Act of March 2, 1847, sec. 6.) All of the circumstances
attendant upon this case show that the President's action was
deliberate and willful. * * *
Mr. Speaker, it has been urged in this debate that the President's
sole object is to secure a judgment of the courts as to the
constitutionality of the act regulating the tenure of certain civil
offices. Such an intent will not justify the commission of a high crime
or misdemeanor. Suppose the courts should hold the act to be
constitutional, would the fact that his intent was to have that
question decided be a good plea to an indictment for a violation of its
provisions? Who is so insane as to assert so preposterous a
proposition? Whoever acts in the way and for the purpose suggested does
it at his peril. The work belongs to the President in this case, not to
the law. This plea in his defense demonstrates that his action was not
the result of inadvertence or of mistaken judgment, and that it is the
fruit of cool calculation and deliberate purpose. He committed a high
misdemeanor in order to secure a judgment of the court.
2412. President Johnson's impeachment, continued.
On the report from the Committee on Reconstruction the House voted
the impeachment of President Johnson.
Forms of resolutions directing the carrying of the impeachment of
President Johnson to the Senate.
The House authorized a committee of seven to prepare articles
impeaching President Johnson, with power to compel testimony.
The impeachment of President Johnson was carried to the Senate by a
committee of two.
The Speaker appointed the committee to carry the impeachment of
President Johnson to the Senate from those favoring impeachment and
from the majority party.
The Speaker appointed the committee to draw articles impeaching
President Johnson from those favoring impeachment and from the majority
party.
Sec. 2413
After full debate, on February 24,\1\ the question was taken on the
resolution proposed by the committee, ``Will the House agree thereto?''
and there appeared yeas 128, nays 47.
So the House determined upon the impeachment of the President.
Immediately thereafter Mr. Thaddeus Stevens proposed the following:
Resolved, That a committee of two be appointed to go to the Senate
and at the bar thereof, in the name of the House of Representatives and
of all the people of the United States, to impeach Andrew Johnson,
President of the United States, of high crimes and misdemeanors in
office, and acquaint the Senate that the House of Representatives will
in due time exhibit particular articles of impeachment against him and
make good the same; and that the committee do demand that the Senate
take order for the appearance of the said Andrew Johnson to answer to
said impeachment.
2. Resolved, That a committee of seven be appointed to prepare and
report articles of impeachment against Andrew Johnson, President of the
United States, with power to send for persons, papers, and records, and
to take testimony under oath.
After an attempted obstruction had been prevented by the adoption,
under suspension of the rules, of an order preventing dilatory motions,
the House agreed to the resolutions by a vote of yeas 124, nays 42.\2\
The Speaker announced as the committee under the first resolution
Messrs. Thaddeus Stevens, of Pennsylvania, and John A. Bingham, of
Ohio. Both were members of the Committee on Reconstruction and had
signed the report, and both belonged to the majority party in the
House.
As the committee under the second resolution the Speaker announced
Messrs. George S. Boutwell, of Massachusetts, Thaddeus Stevens, of
Pennsylvania, John A. Bingham, of Ohio, James F. Wilson, of Iowa, John
A. Logan, of Illinois, George W. Julian, of Indiana, and Hamilton Ward,
of New York. All of these belonged to the majority party in the House
and had voted for the impeachment. The first three were members of the
Committee on Reconstruction.
2413. President Johnson's impeachment, continued.
The ceremonies of presenting the impeachment of President Johnson at
the bar of the Senate.
A message was sent to inform the Senate that a committee would
present the impeachment of President Johnson.
Form of declaration by the chairman of the House committee in
presenting the impeachment of President Johnson in the Senate.
The message of the House impeaching President Johnson was referred to
a committee of seven Senators appointed by the Chair.
The Senate received the message impeaching President Johnson in its
legislative capacity and not as a court.
The committee having impeached President Johnson, returned to the
House and reported orally in the usual form.
On February 25,\3\ in the Senate, the Clerk of the House delivered a
message in form as follows:
Mr. President, I have been directed to inform the Senate that the
House of Representatives has passed the following resolution:
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\1\ Journal, p. 392; Globe, p. 1400.
\2\ Journal, pp. 393, 396; Globe, pp. 1400-1402.
\3\ Senate Journal, p. 217; Globe, p. 1403.
Sec. 2413
``Resolved, That a committee of two be appointed to go to the Senate
and at the bar thereof, in the name of the House of Representatives and
of all the people of the United States, to impeach Andrew Johnson,
President of the United States, of high crimes and misdemeanors in
office, and acquaint the Senate that the House of Representatives will
in due time exhibit particular articles of impeachment against him and
make good the same; and that the committee do demand that the Senate
take order for the appearance of said Andrew Johnson to answer to said
impeachment.''
And that the House has appointed Mr. Thaddeus Stevens and Mr. John A.
Bingham such committee.
Soon thereafter \1\ the Sergeant-at-Arms announced a committee from
the House of Representatives, Mr. Thaddeus Stevens and Mr. John A.
Bingham, who appeared at the bar of the Senate, when the following
occurred:
Mr. Stevens. Mr. President----
The President pro tempore.\2\ The committee from the House of
Representatives.
Mr. Stevens. Mr. President, in obedience to the order of the House of
Representatives, we appear before you, and in the name of the House of
Representatives and of all the people of the United States we do
impeach Andrew Johnson, President of the United States, of high crimes
and misdemeanors in office; and we further inform the Senate that the
House of Representatives will in due time exhibit particular articles
of impeachment against him and make good the same; and in their name we
demand that the Senate take order for the appearance of the said Andrew
Johnson to answer said impeachment.
The President pro tempore. The Senate will take order in the
premises.
The committee of the House thereupon withdrew.
Thereupon Mr. Jacob M. Howard, of Michigan, proposed a resolution as
follows:
Resolved, That the message of the House of Representatives relating
to the impeachment of Andrew Johnson, President of the United States,
be referred to a select committee of seven, to consider and report
thereon.
Mr. James A. Bayard, of Delaware, objected that the Senate in its
legislative capacity might not act on a question of impeachment, and
that it should form itself into a court of impeachment before adopting
the resolution. In answer to this it was stated that this was a mere
preliminary proceeding, and that the procedure followed the precedent
of the trial of Judge Peck.
After the resolution had been amended, on the suggestion of Mr.
Roscoe Conkling, of New York, and in accordance with the precedent in
the trial of Judge Humphreys, by adding after the word ``seven'' the
words ``to be appointed by the Chair,'' the resolution was agreed to.
The President pro tempore thereupon appointed Messrs. Howard, Lyman
Trumbull, of Illinois, Roscoe Conkling, of New York, George F. Edmunds,
of Vermont, Oliver P. Morton, of Indiana, Stephen C. Pomeroy, of
Kansas, and Reverdy Johnson, of Maryland.
On the same day \3\ the committee from the House, having returned
from the Senate, reported orally at the bar of the House through Mr.
Stevens, the chairman, as follows:
Mr. Speaker, in obedience to the order of the House, we proceeded to
the bar of the Senate, and in the name of this body and of all the
people of the United States we impeached, as we were directed to do,
Andrew Johnson, President of the United States, of high crimes and
misdemeanors in office, and we demanded that the Senate should take
order to make him appear before that body to answer for the same,
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\1\ Journal of Senate, p. 217; Globe, pp. 1405, 1406.
\2\ Benjamin F. Wade, of Ohio, President pro tempore.
\3\ House Journal, p. 405; Globe, p. 1421.
Sec. 2414
and announced that the House would soon present articles of impeachment
and make them good; to which the response was, ``Order shall be
taken.''
2414. President Johnson's impeachment, continued.
To prevent dilatory tactics the House adopted, under suspension of
the rules, a special order for consideration of the articles impeaching
President Johnson.
Form of resolution in which the Senate took order for the impeachment
of President Johnson.
For the trial of President Johnson the Senate readopted most of the
existing rules, with amendments and additions.
On February 25,\1\ in the House, Mr. Elihu B. Washburne, of Illinois,
offered, under suspension of the rules, the following:
Resolved, That the rules be suspended, and that it is hereby ordered
as follows:
``When the committee to prepare articles of impeachment of the
President of the United States report the said articles the House shall
immediately resolve itself into the Committee of the Whole thereon that
speeches in committee shall be limited to fifteen minutes each, which
debate shall continue till the next legislative day after the report,
to the exclusion of all other business except the reading of the
Journal; that at 3 o'clock on the afternoon of said second day the
fifteen-minute debate shall cease, and the committee shall then proceed
to consider and vote upon amendments that may be offered under the
five-minute rule of debate, but no merely pro forma amendment shall be
entertained; that at 4 o'clock on the afternoon of said second day the
committee shall rise and report their action to the House, which shall
immediately and without dilatory motions vote thereon: that if the
articles of impeachment are agreed on the House shall then immediately
and without dilatory motions elect by ballot seven managers to conduct
said impeachment on the part of the House; and that during the pendency
of resolutions in the House relative to said impeachment thereafter no
dilatory motions shall be received except one motion on each day that
the House do now adjourn.''
This resolution, which was intended to prevent obstructive action on
the part of the minority, was agreed to, yeas 106, nays 37.
On the same day \2\ by a vote of yeas 105, nays 36, the House agreed
to the following, on motion of Mr. George S. Boutwell, of
Massachusetts:
Resolved, That the committee appointed to prepare and report articles
of impeachment against, Andrew Johnson, President of the United States,
have leave to sit during the sessions of the House.
Resolved further, That the Committee on Reconstruction be authorized
to sit during the sessions of the House.
On February 26,\3\ in the Senate, Mr. Howard, from the select
committee, reported the following resolution; which was agreed to, and
of which the House was duly notified:
Whereas the House of Representatives, on the 25th day of the present
month, by two of their members, Messrs. Thaddeus Stevens and John A.
Bingham, at the bar of the Senate, impeached Andrew Johnson, President
of the United States, of high crimes and misdemeanors in office, and
informed the Senate that the House of Representatives will in due time
exhibit particular articles of impeachment against him and make good
the same, and likewise demanded that the Senate take order for the
appearance of said Andrew Johnson to answer to the said impeachment:
Therefore,
Resolved, That the Senate will take proper order thereon, of which
due notice shall be given to the House of Representatives.
-----------------------------------------------------------------------
\1\ Journal, pp. 407, 408; Globe, pp. 1425, 1426.
\2\ Journal, p. 410; Globe, p. 1427.
\3\ Senate Journal, p. 222; House Journal, p. 418; Globe, pp. 1431,
1453.
Sec. 2415
On February 28,\1\ in the Senate, Mr. Howard, from the select
committee, presented a report ``prescribing certain rules of proceeding
for the Senate when sitting as a high court of impeachment.'' The rules
comprised the rules of the Chase trial, with some modifications in
minor details, and also several new rules. The Senate considered the
report on February 29 and March 2,\2\ and after amending the rules
agreed to them.
2415. President Johnson's impeachment, continued.
The articles impeaching President Johnson were considered in
Committee of the Whole.
At the time of President Johnson's impeachment it was agreed that he
should be described as President and not as Acting President.
On February 29,\3\ in the House, Mr. George S. Boutwell, of
Massachusetts, from the committee appointed to prepare articles of
impeachment, submitted their report, which was at once considered in
Committee of the Whole in accordance with the special order. At the
outset Mr. Boutwell said: \4\
In considering and preparing these articles the committee met with a
difficulty in the outset which it becomes me to present to the
Committee of the Whole House in the beginning of this discussion. That
difficulty is this: What should be the description, so far as the
office is concerned, in which Andrew Johnson should be arraigned for
these misdemeanors; whether as President of the United States or as
Vice President of the United States upon whom the powers and duties of
the office of President had devolved.
After such consideration as the committee were able to give to this
matter during the period of time assigned to the consideration of this
subject they are, I believe I may say, unanimously of opinion that the
manner of description used in the articles we have reported is that
manner of description on which we shall be compelled to rely. Without
undertaking at this moment to advise the House finally as to what they
ought to do upon this branch of the subject, I will venture to suggest
this consideration, derived from the Constitution: That it is only when
the President is on trial before the Senate that the Chief Justice of
the Supreme Court of the United States is to preside. Therefore it
follows that a different court must be organized for the trial of the
Vice-President from that authorized by the Constitution to try the
President.
Later, on March 2,\5\ Mr. John A. Bingham, of Ohio, said:
I desire to say, Mr. Chairman, to the House this question was
considered by the committee, and I was not aware when the report was
made there was a member of that committee who entertained the slightest
doubt on the subject that Andrew Johnson is President of the United
States. I desire to say that he must be impeached, if he be impeached
at all, either distinctively as President of the United States or as
Vice-President of the United States. I desire to say, further, that in
both capacities he can not be impeached at the same time and on the
same trial, for the reason that the court, as was well said by the
chairman of the committee, is differently constituted by the terms of
the Constitution to try the President of the United States. The Chief
Justice of the United States must, by the terms of the Constitution,
preside if the President be tried; the Chief Justice shall not preside
if the Vice-President be tried.
Again, Andrew Johnson is estopped by record in five hundred instances
from denying that he is President of the United States. The Senate of
the United States is estopped; the House of Representatives is
estopped. Your Constitution declares that no bill shall be a law until
it be presented to the President for his approval or disapproval. If he
be not President, if the people have no President, then you can pass no
law. If he be President, then let him be called President on your
record.
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 230, 231; Globe, pp. 1486, 1515; Senate
Report No. 59.
\2\ Senate Journal, pp. 236-252; Globe, pp. 1515-1535, 1568-1603.
\3\ House Journal, pp. 433, 437; Globe, pp. 1542-1559.
\4\ Globe, p. 1544.
\5\ Globe, p. 1615.
Sec. 2416
Mr. Luke P. Poland, of Vermont, said:
We have had some Congressional history to which I call the attention
of the House. In all that has been said upon the subject I have heard
no allusion to the settlement of this question in Congress. The first
instance of the accession of Vice-President to the office of President
was that of John Tyler on the death of President Harrison, in 1841.
Before the first message of Mr. Tyler was sent in at the special
session, as it was called, in 1841 the following proceedings took place
in the House:
``Mr. Wise offered the usual resolution for the appointment of a
committee on the part of the House to join such committee as might be
appointed by the Senate to wait on the President of the United States
and inform him that a quorum of the two Houses had assembled, and that
Congress was ready to proceed to business.
``Mr. McKeon moved to amend the resolution by striking out the word
`President' and inserting the words `Vice President, now exercising the
office of President.' ''
After considerable debate the vote was taken in the House, and the
amendment was rejected. The yeas and nays do not seem to have been
taken.
When the message was sent to the Senate the same question was raised
there. A similar amendment was offered to a similar resolution. There
was more debate than in the House, participated in by Mr. Huntington,
Mr. Allen, Mr. Tappan, Mr. Walker, and Mr. Calhoun. The yeas and nays
were taken on this amendment in the Senate, and were as follows:
``Yeas--Messrs. Allen, Benton, Henderson, Linn, McRoberts, Tappan,
Williams, and Wright--8.
``Nays--Messrs. Archer, Barrow, Bates, Bayard, Berrien, Buchanan,
Calhoun, Choate, Clay of Kentucky, Clayton, Dixon, Evans, Fulton,
Graham, Huntington, Kerr, King, Mangum, Merrick, Miller, Moorehead,
Nicholson, Pierce, Porter, Prentiss, Preston, Rives, Sevier, Simmons,
Smith of Indiana, Southard, Sturgeon, Tallmadge, Walker, White,
Woodbridge, Woodbury, and Young--38.''
So that the question seems to have been settled by a vote of both
Houses at that time, and during the whole administration, nearly four
years of President Tyler and three years of President Fillmore, and now
almost three years of President Johnson, this question has been
regarded as settled by the decision of Congress in 1841.
As appears in the articles of impeachment, this reasoning was
conclusive.
2416. President Johnson's impeachment, continued.
As reported from the committee, the articles impeaching President
Johnson were confined to a few acts chiefly concerning Secretary
Stanton.
Although the charges in the articles impeaching President Johnson
were at first narrowed to a few charges, there was a protest against
the theory that only an indictable offense was impeachable.
A statement as to the sentiments of the House on the nature of the
power of impeachment during the first and second attempts to impeach
President Johnson.
In the case of the Johnson impeachment, the question ``Will the House
agree thereto?'' was put as to each article after they had been open to
amendment.
The first or headline paragraph and the last or reservation clause
were agreed to after the articles impeaching the President had been
agreed to.
Mr. Boutwell stated that in the articles as reported the committee
had confined themselves to the matters brought forward in the present
proceedings, and had not gone into that broad field of general charges
on which the first attempt at impeachment had failed. In the course of
the debate, however, Mr. William Lawrence, of
Sec. 2417
Ohio, argued again that the President might be impeached for other than
indictable offenses, and said in the course of his remarks:\1\
I have taken some pains to ascertain the opinions of members of this
House, and I think there are but few, even among those who voted
against the impeachment of the President in December last, who
entertain the idea or now hold that he must be guilty of an offense
indictable either by the common or statute law to render him liable to
impeachment. Such a doctrine is at variance with the whole theory and
practice in cases of impeachment.
On March 2 \2\ the articles were discussed at length, amended
somewhat, and agreed to. In the Committee of the Whole a committee
amendment in the nature of a substitute was agreed to. When the
articles were reported to the House this substitute was agreed to, and
then, on each article, begining with Article 1, the question was put:
``Will the House agree thereto?'' And on the nine articles the result
was:
----------------------------------------------------------------------------------------------------------------
Yeas. Nays.
----------------------------------------------------------------------------------------------------------------
Article 1............................................................................. 127 42
Article 2............................................................................. 124 41
Article 3............................................................................. 124 40
Article 4............................................................................. 117 40
Article 5............................................................................. 127 42
Article 6............................................................................. 127 42
Article 7............................................................................. 127 42
Article 8............................................................................. 127 42
Article 9............................................................................. 108 41
----------------------------------------------------------------------------------------------------------------
Then, by unanimous consent, the first and last paragraphs were agreed
to, as follows:\3\
Articles exhibited by the House of Representatives of the United
States, in the name of themselves and all the people
of the United States, against Andrew Johnson,
President of the United States, in maintenance and
support of their impeachment against him for high
crimes and misdemeanors in office.
* * * * * *
And the House of Representatives, by protestation, saving to
themselves the liberty of exhibiting at any time hereafter any further
articles or other accusation or impeachment against the said Andrew
Johnson, President of the United States, and also of replying to his
answers which he shall make unto the articles herein preferred against
him, and of offering proof to the same and every put thereof, and to
all and every other article, accusation, or impeachment which shall be
exhibited by them, as the case shall require, do demand that the said
Andrew Johnson may be put to answer the high crimes and misdemeanors in
office herein charged against him, and that such proceedings,
examinations, trials, and judgments may be thereupon had and given as
may be agreeable to law and justice.
2417. President Johnson's impeachment, continued.
The managers of the Johnson impeachment were chosen by ballot.
The Speaker appointed four tellers to count the ballots for managers
of the Johnson impeachment.
-----------------------------------------------------------------------
\1\ Globe. pp. 1549, 1550.
\2\ House Journal, pp. 439-450; Globe. pp. 1603-1618.
\3\ House Journal, p. 450; Globe, p. 1618.
Sec. 2417
Mr. Speaker Colfax tendered to several members of the minority a
place as one of the tellers to count the ballots for managers of the
Johnson impeachment.
Members of the minority declining to serve as tellers to count the
ballots for managers of the Johnson impeachment, the Speaker appointed
all from the majority party.
In the balloting for managers of the Johnson impeachment nominations
were made before the vote.
Mr. Speaker Colfax held that when managers of an impeachment were
elected by ballot the managers, and not the House, chose the chairman.
Usage of the House in the selection of chairman of the managers of an
impeachment. (Footnote.)
The House excused one Member from voting on the ballot for managers
of the Johnson impeachment, but refused to excuse others.
It appears that the minority party generally refrained from
participating in the ballot for managers of the Johnson impeachment.
Forms of resolutions providing for carrying to the Senate the
articles impeaching President Johnson and notifying the Senate thereof.
Then, under the order, the House proceeded\1\ to choose, by ballot,
seven managers to conduct the impeachment.
The Speaker appointed as tellers Messrs. Luke P. Poland, of Vermont;
Rufus P. Spalding, of Ohio; Thomas A. Jenckes, of Rhode Island, and
Samuel S. Marshall, of Illinois. All of these but Mr. Marshall were of
the number voting for the articles of impeachment. Mr. Marshall, at his
request, was excused, and Mr. Samuel J. Randall, of Pennsylvania, was
appointed, but he asked to be excused, on the ground that he did not
wish in any way to participate in the proceedings. Mr. William E.
Niblack, of Indiana, further said that the minority party did not
intend to vote for managers.
The Speaker,\2\ understanding that the minority did not wish to be
represented, appointed Mr. Austin Blair, of Michigan, as fourth teller.
Mr. Luke P. Poland, of Vermont, nominated the following for managers:
Thaddeus Stevens, of Pennsylvania; Benjamin F. Butler, of
Massachusetts; John A. Bingham, of Ohio; George S. Boutwell, of
Massachusetts; James F. Wilson, of Iowa; Thomas Williams, of
Pennsylvania; John A. Logan, of Illinois.
Mr. John A. Peters, of Maine, rising to a parliamentary inquiry,
asked if the order in which the names were presented would determine
who should be chairman.
The Speaker said:
The Chair cannot answer that question. It is a matter that does not
affect the House of Representatives. The managers are to present
themselves at the bar of the Senate. They can settle that matter among
themselves.
Mr. Halbert E. Paine, of Wisconsin, then asked:
Suppose members should designate on their ballots their choice for
chairman, would the gentleman having the greatest number of votes as
such be the chairman?
-----------------------------------------------------------------------
\1\ House Journal, pp. 450, 451; Globe, pp. 1618, 1619.
\2\ Schuyler Colfax, of Indiana, Speaker.
Sec. 2418
The Speaker said:
The Chair would not declare any such result, because it is not in
accordance with the usage for the House to select a chairman. In the
case of the impeachment of Judge Chase, in which Mr. John Randolph was
the leading manager, the House did not select him as such; he was
simply selected by the managers themselves, they deeming it proper to
have him act as their spokesman.\1\
Mr. Michael C. Kerr, of Indiana, on his request, was excused from
voting. Then, a proposition to excuse all who wished to be excused was
objected to, the Chair declining to entertain it except by unanimous
consent.
Thereupon, Mr. Samuel J. Randall, of Pennsylvania, said:
The members on this side do not wish to vote, as they are in favor of
no part of this proceeding, and I know of no way by which they can be
forced to vote. Therefore there is no necessity for excusing them.
The ballot resulted as follows:
Whole number of votes, 118; necessary to a choice, 60; of which--
John A. Bingham 114 G. W. Scofield..... 3
received.
George S. Boutwell. 113 Luke P. Poland..... 3
James F. Wilson.... 112 G. S. Orth......... 2
Benjamin F. Butler. 108 John A. Peters..... 1
Thomas Williams.... 107 Austin Blair....... 1
John A. Logan...... 106 J. C. Churchill.... 1
Thaddeus Stevens... 105 J. F. Benjamin..... I
Thomas A. Jenckes.. 22 C. Upson........... 1
The Speaker thereupon announced the names of the seven elected.
Then, on motion of Mr. Boutwell, the following resolutions were
agreed to:
Resolved, That a message be sent to the Senate to inform them that
this House have appointed managers to conduct the impeachment against
the President of the United States, and have directed the said managers
to carry to the Senate the articles agreed upon by this House, to be
exhibited in maintenance of their impeachment against said Andrew
Johnson, and that the Clerk of the House do go with said message.
Resolved, That the articles agreed to by this House, to be exhibited
in the name of themselves and of all the people of the United States,
against Andrew Johnson, President of the United States, in maintenance
of their impeachment against him of high crimes and misdemeanors in
office, be carried to the Senate by the managers appointed to conduct
said impeachment.
2418. President Johnson's impeachment, continued.
It was held in the Johnson impeachment that the managers or any
Member of the House might propose an additional article as a question
of privilege.
After the House had agreed to articles impeaching President Johnson
the managers reported two additional articles, which were also agreed
to.
On the tenth and eleventh articles in the Johnson impeachment the
House, after debate, concluded to impeach for other than indictable
offenses.
On March 3,\2\ in the House, Mr. Benjamin F. Butler, of
Massachusetts, from the managers and by their instruction, reported an
additional article of impeach-
-----------------------------------------------------------------------
\1\ In the trial of Judge Humphreys, where the managers were
appointed by the Speaker, the first named acted as chairman. In the
Belknap trial the managers were chosen by resolution, and the principle
was recognized that the first named should be chairman.
\2\ House Journal, pp. 461-464; Globe, pp. 1638-1642.
Sec. 2418
ment. This article Mr. Butler had previously offered as an
amendment,\1\ but it had been rejected in Committee of the Whole by a
vote of ayes 45, noes 56, on a statement of Mr. James F. Wilson, of
Iowa, that the committee appointed to frame articles had already
considered it and determined against it. The article proposed (which
subsequently became Article X of the articles as presented in the
Senate) charged the President with bringing his office into contempt by
his utterances.
Mr. William S. Holman, of Indiana, made the point of order that this
was an amendment to a proposition not before the House.
The Speaker \2\ said:
The Chair rules, as he has ruled in all such cases, that this is a
privileged question. And the Chair will also refer to the following
paragraph of the original report adopted by the House yesterday:
``And the House of Representatives, by protestation, saving to
themselves the liberty of exhibiting at any time hereafter any further
articles or other accusation or impeachment against the said Andrew
Johnson,'' etc.
Mr. Charles A. Eldridge, of Wisconsin, made the further point of
order that the managers might not report additional articles. Their
functions were different from those of the committee appointed to
prepare articles
The Speaker ruled:
The Chair overrules the point of order on two grounds. In the first
place, the usage of the House has been, in all cases of impeachment,
that the replication made by the person accused should be referred to
the managers, to which the managers prepare a reply and submit it to
the House before it is sent to the Senate. This follows precisely the
language of the report adopted by the House on yesterday. * * * The
second ground is this: That any Member of the House of Representatives,
whether one of the board of managers or not, can, as a question of
privilege, propose additional articles of impeachment. The Chair makes
his ruling so broad in order to cover the entire case. Such article of
impeachment may come with more formality from the board of managers, or
from a committee specially appointed for the purpose. But the Member
from Wisconsin [Mr. Eldridge], if he sees proper to do so, or any other
Member, can propose articles of impeachment against any officer of the
Government.
Mr. Butler explained the purpose of the article, saying that it
followed the precedent of the eighth article of those preferred against
Judge Chase, which received more votes in favor of conviction than any
other.
Mr. Frederick E. Woodbridge, of Vermont, who had joined with Mr.
James F. Wilson, of Iowa, in arguing that impeachment might be had only
for indictable offenses, and whose views had been followed by the House
in the first attempt at impeachment, now said: \3\
I wish simply to say now, in order that the gentleman from
Massachusetts [Mr. Butler] may answer the objection, that I am opposed
to this article for two reasons. The first is that if the President of
the United States is put on his trial under this specification it will
take a long time, almost equal, perhaps if the counsel desire it, to
the Warren Hastings trial, which, I believe, was about seven years. For
that, if for no other reason, I should be opposed to this article.
The other reason is that there is no offense charged under which a
conviction can be had: The article concludes as follows:
``Which said utterances, declarations, threats, and harangues, highly
censurable in any, and peculiarly indecent and unbecoming in the Chief
Magistrate of the United States, by means whereof said Andrew Johnson
has brought the high office of the President of the United States into
contempt, ridicule, and disgrace, to the great scandal of all good
citizens, whereby said Andrew Johnson, President of the United States,
did commit, and was then and there guilty of, a high misdemeanor in
office.''
-----------------------------------------------------------------------
\1\ Globe, pp. 1615, 1616.
\2\ Schuyler Colfax, of Indiana, Speaker. Globe, p. 1638.
\3\ Globe, pp. 1640, 1641.
Sec. 2419
Now, sir, there axe under the Constitution but two offenses under
which a conviction can be had, namely: High crimes and misdemeanors.
Neither of these is charged in this article. It is not a crime or
misdemeanor in the President to bring himself into public obloquy
before the people by reason of his improper speech. It is not a crime
for him to make remarks when ``swinging round the circle'' or
elsewhere, that may be distasteful to the Congress of the United States
or that may be very improper. I have yet to learn that the President of
the United States, or any civil officer, can be impeached, except for a
high crime or misdemeanor. The gentleman will not pretend that he has
set forth either in this article. He only states that the President had
brought himself into public disgrace by reason of public speeches which
he made before the country. Now, all I ask of my friend is that he will
so frame his article that at least the Senate, sitting as a high court
of impeachment, may entertain it as being properly charged.
To this Mr. Butler replied:
What is the proposition of those gentlemen who insist that the
President can be impeached for those acts only which are indictable as
crimes under some statute? * * * Now, what is this proposition? The
proposition is this, that for the lowest degree of indictable crime, to
wit: An assault and battery, or, as a friend suggests, selling liquor
without license, the President of the United States may be impeached,
but he can not be impeached when he usurps the liberties of the people,
because there is no indictment under any statute against that. He may
be impeached for selling liquor without a license, but he can not be
impeached if he gets into an open barouche with two abandoned women,
one on each side of him, roaring drunk, and rides up and down
Pennsylvania avenue, because there is no statute that I know of against
that. He can not be impeached for any violation of public decency which
does not happen to be an indictable crime. He can not be impeached for
debasing his high office. The statement of this proposition is its best
refutation. Here let me say to my friend from Vermont that I have not
charged in this article that the President has brought himself into
ridicule and contempt. If he had only done that I should have been
quite willing to let him go unpunished [laughter], but I do say that he
brought the high office which he fills--no, which he occupies into
sovereign disgrace, ridicule, and contempt, so that it is hardly
respectable for a decent man to fill hereafter; and is not that an
impeachable misdemeanor? I do not stand upon this point on the weight
of authority of my own words alone. I stand upon the authority of one
of the best lawyers that ever sat upon the bench, Judge Story, of the
Supreme Court of the United States, who uses these words to define what
is impeachable:
``It is a proceeding, probably the fairest that could be devised, by
which the people, through the action of that branch of the Government
which most directly and fully represents themselves, call in question
the fitness of their public officers, and dismiss them if unfit.''
(Story on the Constitution, see. 810.)
Now, is there any one in this House, or outside of this House
anywhere in the country, who would vote that Andrew Johnson is a
``fit'' man to be President of the United States? Who will say ``ay''
to that anywhere? This article has been drawn exactly within the
precedent of Judge Chase's case. Of all the great lawyers who defended
Judge Chase--and he had one, Mr. Wirt, who argued two days in
succession for him--no one ventured to say to the Senate that that
article, if proved, was not a misdemeanor within the provisions of the
Constitution.
Mr. James F. Wilson, of Iowa, stated that he was the only one of the
managers who opposed the article. He did so because he believed the
offense not impeachable and because the article would prolong the
trial.
The question being taken on the article, it was agreed to, yeas 87,
nays 43. Both Messrs. Woodbridge and Wilson voted against it.
Mr. Bingham, by the unanimous instruction of the managers, presented
another article, which was agreed to, yeas 108, nays 82,\1\ and which
became Axticle XI.
2419. President Johnson's impeachment, continued.
The House gave to the managers appointed for the Johnson trial the
power to send for persons and papers.
-----------------------------------------------------------------------
\1\ House Journal, pp. 464, 465; Globe, p. 1642.
Sec. 2419
The articles of impeachment of President Johnson having been amended,
the House gave a new direction for carrying them to the Senate.
The message from the House announcing that articles of impeachment
would be presented against President Johnson contained the names of the
managers.
The Senate having informed the House of its readiness to receive the
managers with the articles impeaching President Johnson, the House as
Committee of the Whole attended its managers to the Senate.
Then Mr. Bingham offered the following resolutions:
Resolved, That the articles agreed to by the House this day, together
with those adopted by the House on yesterday, to be exhibited in the
name of the House of Representatives and of all the people of the
United States against Andrew Johnson, President of the United States,
in maintenance of their impeachment against him for high crimes and
misdemeanors in office, be carried to the Senate by the managers
appointed to conduct said impeachment.
Resolved, That the managers on the part of the House, in the matter
of the impeachment of the President, be, and hereby are, authorized to
appoint a clerk and a messenger, to be paid for their services at the
usual rates during the time that they are employed, and that the
managers have power to send for persons and papers.
Mr. James Brooks, of New York, questioned the propriety of giving to
the managers the power to send for persons and papers; but the
resolutions were agreed to by the House, yeas 96, nays 27.\1\
On March 3,\2\ in the Senate, the following message was received from
the House by its Clerk:
Mr. President, I am directed to inform the Senate that the House of
Representatives has appointed Mr. John A. Bingham, of Ohio; Mr. George
S. Boutwell, of Massachusetts; Mr. James F. Wilson, of Iowa; Mr. B. F.
Butler, of Massachusetts; Mr. J. A. Logan, of Illinois; Mr. Thom
Williams, of Pennsylvania, and Mr. Thaddeus Stevens, of Pennsylvania,
managers to conduct the impeachment against Andrew Johnson, President
of the United States, and has directed the said managers to carry to
the Senate the articles of impeachment agreed upon by the House, to be
exhibited in maintenance of their impeachment against the said Andrew
Johnson.
Thereupon Mr. Jacob M. Howard, of Michigan, offered the following,
which was agreed to:
Ordered, That the Secretary of the Senate inform the House of
Representatives that the Senate is ready to receive the managers
appointed by the House of Representatives to carry to the Senate
articles of impeachment against Andrew Johnson, President of the United
States.
On March 4,\3\ in the House, Mr. Bingham presented this resolution,
which was agreed to:
Resolved, That the House resolve itself into the Committee of the
Whole and attend the managers appointed by the House to the Senate to
present, by its managers, the articles of impeachment exhibited by the
House against Andrew Johnson, President of the United States.
Thereupon the Speaker said:
In the absence of the senior Member of the House, Mr. Washburne, of
Illinois, the gentleman from Massachusetts, Mr. Dawes, will please take
the chair in Committee of the Whole. The Committee of the Whole,
preceded by its chairman, who will be supported by the Clerk and
Doorkeeper, will follow the managers to the Senate Chamber.
-----------------------------------------------------------------------
\1\ House Journal, p. 466; Globe, pp. 1642, 1643.
\2\ Senate Journal, pp. 254, 255; Globe, p. 1622.
\3\ House Journal, p. 470; Globe, p. 1661.
Sec. 2420
Accordingly, at 1 o'clock p.m., the House, as in the Committee of the
Whole preceded by its chairman, Mr. Dawes, who was supported by the
Clerk and Doorkeeper of the House, followed the managers of the House
to the Senate Chamber.
2420. President Johnson's impeachment continued.
The ceremonies of presenting the articles impeaching President
Johnson at the bar of the Senate.
At the presentation of the articles impeaching President Johnson the
Speaker was, by order of the Senate, escorted to a seat beside the
President pro tempore.
Form of declaration of the chairman of the managers of their
readiness to present to the Senate the articles impeaching President
Johnson.
The articles impeaching President Johnson.
The articles impeaching President Johnson were read by the chairman
of the managers and delivered at the table of the Secretary.
The articles impeaching President Johnson were signed by the Speaker
and attested by the Clerk.
The report to the House of the presentation of articles impeaching
President Johnson was made by the chairman of the Committee of the
Whole.
Mr. Speaker Colfax held that the managers of an impeachment were not
a committee. (Footnote.)
The articles impeaching President Johnson were received by the Senate
with the President pro tempore presiding.
In the Senate Chamber,\1\ when the managers \2\ appeared at the bar,
their presence was announced by the Sergeant-at-Arms of the Senate.
The President pro tempore 3 (for the Senate had not yet organized for
the trial) said:
The managers of the impeachment will advance within the bar and take
the seats provided for them.
The managers did this.
Thereupon, at the suggestion of Mr. Thomas A. Hendricks, of Indiana,
a Senator, a seat was provided for the Speaker of the House by the side
of the President of the Senate, and the Speaker was escorted by Mr.
James W. Grimes, of Iowa, a Senator, to a seat at the right of the
President pro tempore.
Mr. Manager Bingham then said:
Mr. President, the managers of the House of Representatives, by order
of the House, are ready at the bar of the Senate, whenever it may
please the Senate to hear them, to present articles of impeachment and
in maintenance of the impeachment preferred against Andrew Johnson,
President of the United States, by the House of Representatives.
The President pro tempore said:
The Sergeant-at-Arms will make proclamation.
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 260-268; Globe, pp. 1647-1649.
\2\ The managers are not a committee. Mr. Speaker Colfax said: ``The
managers have been called a board of managers. Their official title is
simply managers. They are not a committee.'' Globe, p. 1660.
\3\ Benjamin F. Wade, of Ohio, President pro tempore.
Sec. 2420
The Sergeant-at-Arms proclaimed:
Hear ye, hear ye, hear ye. All persons are commanded to keep silence,
on pain of imprisonment, while the House of Representatives is
exhibiting to the Senate of the United States articles of impeachment
against Andrew Johnson, President of the United States.
The managers then rose and remained standing, with the exception of
Air. Stevens, who was physically unable to do so, while Mr. Manager
Bingham read the articles of impeachment, as follows:
Articles exhibited by the House of Representatives of the United
States, in the name of themselves and all the people of the United
States, against Andrew Johnson, President of the United States, in
maintenance and support of their impeachment against him for high
crimes and misdemeanors in office.
Article I.
That said Andrew Johnson, President of the United States, on the 21st
day of February, in the year of our Lord 1868, at Washington, in the
District of Columbia, unmindful of the high duties of his office, of
his oath of office, and of the requirement of the Constitution that be
should take care that the laws be faithfully executed, did unlawfully,
and in violation of the Constitution and laws of the United States,
issue an order in writing for the removal of Edwin M. Stanton from the
office of Secretary for the Department of Wax, said Edwin M. Stanton
having been theretofore duly appointed and commissioned by and with the
advice and consent of the Senate of the United States, as such
Secretary, and said Andrew Johnson, President of the United States, on
the 12th day of August, in the year of our Lord 1867, and during the
recess of said Senate, having suspended by his order Edwin M. Stanton
from said office, and within twenty days after the first day of the
next meeting of said Senate-that is to say, on the 12th day of
December, in the year last aforesaid-having reported to said Senate
such suspension, with the evidence and reasons for his action in the
case and the name of the person designated to perform the duties of
such office temporarily until the next meeting of the Senate, and said
Senate thereafterwards, on the 13th day of January, in the year of our
Lord 1868, having duly considered the evidence and reasons reported by
said Andrew Johnson for said suspension, and having refused to concur
in said suspension, whereby and by force of the provisions of an act
entitled ``An act regulating the tenure of certain civil offices,''
passed March 2, 1867, said Edwin M. Stanton did forthwith resume the
functions of his office, whereof the said Andrew Johnson had then and
there due notice, and said Edwin M. Stanton, by reason of the premises,
on said 21st day of February, being lawfully entitled to hold said
office of Secretary for the Department of War, which said order for the
removal of said Edwin M. Stanton is, in substance, as follows, that is
to say:
``Executive Mansion,
``Washington, D.C., February 21, 1868.
``Sir: By virtue of the power and authority vested in me as President
by the Constitution and laws of the United States you are hereby
removed from office as Secretary for the Department of Wax, and your
functions as such will terminate upon receipt of this communication.
``You Will transfer to Brevet Maj. Gen. Lorenzo Thomas, Adjutant-
General of the Army, who has this day been authorized and empowered to
act as Secretary of Wax ad interim, all records, books, papers, and
other public property now in your custody and charge.
``Respectfully, yours,
Andrew Johnson.
``Hon. Edwin M. Stanton, Washington, D.C.''
Which order was unlawfully issued with intent then and there to
violate the act entitled ``An act regulating the tenure of certain
civil offices,'' passed March 2, 1867; and with the further intent,
contrary to the provisions of said act, in violation thereof, and
contrary to the provisions of the Constitution of the United States,
and without the advice and consent of the Senate of the United States,
the said Senate then and there being in session, to remove said Edwin
M. Stanton from the office of Secretary for the Department of Wax, the
said Edwin M. Stanton being then and there Secretary of Wax, and being
then and there in the due and lawful execution and discharge of the
duties of said office, whereby said Andrew Johnson, President of the
United States, did then and there commit, and was guilty of a high
misdemeanor in office.
Sec. 2420
Article II.
That on said 21st day of February, in the year of our Lord 1868, at
Washington, in the District of Columbia, said Andrew Johnson, President
of the United States, unmindful of the high duties of his office, of
his oath of office, and in violation of the Constitution of the United
States, and contrary to the provisions of an act entitled ``An act
regulating the tenure of certain civil offices,'' passed March 2, 1867,
without the advice and consent of the Senate of the United States, said
Senate then and there being in session, and without authority of law,
did, with intent to violate the Constitution of the United States and
the act aforesaid, issue and deliver to one Lorenzo Thomas a letter of
authority, in substance as follows, that is to say:
``Executive Mansion,
``Washington, D.C., February 21, 1868.
``Sir: Hon. Edwin M. Stanton having been this day removed from office
as Secretary for the Department of War, you are hereby authorized and
empowered to act as Secretary of War ad interim, and will immediately
enter upon the discharge of the duties pertaining to that office.
``Mr. Stanton has been instructed to transfer to you all the records,
books, papers, and other public property now in his custody and charge.
``Respectfully, yours,
Andrew Johnson.
``To Brevet Maj. Gen. Lorenzo Thomas,
``Adjutant-General United States Army, Washington, D.C.''
Then and there being no vacancy in said office of Secretary for the
Department of War, whereby said Andrew Johnson, President of the United
States, did then and there commit, and was, guilty of a high
misdemeanor in office.
Article III.
That said Andrew Johnson, President of the United States, on the 21st
day of February, in the year of our Lord 1868, at Washington, in the
District of Columbia, did commit and was guilty of a high misdemeanor
in office in this, that, without authority of law, while the Senate of
the United States was then and there in session, he did appoint one
Lorenzo Thomas to be Secretary for the Department of War ad interim,
without the advice and consent of the Senate and with intent to violate
the Constitution of the United States, no vacancy having happened in
said office of Secretary for the Department of War during the recess of
the Senate, and no vacancy existing in said office at the time, and
which said appointment, so made by said Andrew Johnson, of said Lorenzo
Thomas' is in substance as follows, that is to say:
``Executive Mansion,
``Washington, D.C., February 21, 1868.
``Sir: Hon. Edwin M. Stanton having been this day removed from office
as Secretary for the Department of War, you are hereby authorized and
empowered to act as Secretary of War ad interim, and will immediately
enter upon the discharge of the duties pertaining to that office.
``Mr. Stanton has been instructed to transfer to you all the records,
books, papers, and other public property now in his custody and charge.
``Respectfully, yours,
Andrew Johnson.
``To Brevet Maj. Gen. Lorenzo Thomas,
``Adjutant-General United States Army, Washington, D.C.''
Article IV.
That said Andrew Johnson, President of the United States, unmindful
of the high duties of his office and of his oath of office, in
violation of the Constitution and laws of the United States, on the
21st day of February, in the year of our Lord 1868, at Washington, in
the District of Columbia, did unlawfully conspire with one Lorenzo
Thomas, and with other persons to the House of Representatives unknown,
with intent, by intimidation and threats, unlawfully to hinder and
prevent Edwin M. Stanton, then and there the Secretary for the
Department of War, duly appointed under the laws of the United States,
from holding said office of Secretary for the Department of War,
contrary to and in violation of the Constitution of the United States
and of the provisions of an act entitled ``An act to define and punish
certain conspiracies,'' approved July 31, 1861, whereby said Andrew
Johnson, President of the United States, did then and there commit, and
was guilty of a high crime in office.
Sec. 2420
Article V.
That said Andrew Johnson, President of the United States, unmindful
of the high duties of his office and of his oath of office, on the 21st
day of February, in the year of our Lord 1868, and on divers other days
and times in said year, before the 2d day of March, A. D. 1868, at
Washington, in the District of Columbia, did unlawfully conspire with
one Lorenzo Thomas, and with other persons to the House of
Representatives unknown, to prevent and hinder the execution of an act
entitled ``An act regulating the tenure of certain civil offices,''
passed March 2, 1867, and in pursuance of said conspiracy did
unlawfully attempt to prevent Edwin M. Stanton, then and there being
Secretary for the Department of War, duly appointed and commissioned
under the laws of the United States, from holding said office, whereby
the said Andrew Johnson, President of the United States, did then and
there commit and was guilty of a high misdemeanor in office.
Article VI.
That said Andrew Johnson, President of the United States, unmindful
of the high duties of his office and of his oath of office, on the 21st
day of February, in the year of our Lord 1868, at Washington, in the
District of Columbia, did unlawfully conspire with one Lorenzo Thomas,
by force to seize, take, and possess the property of the United States
in the Department of War, and then and there in the custody and charge
of Edwin M. Stanton, Secretary for said Department, contrary to the
provisions of an act entitled ``An act to define and punish certain
conspiracies,'' approved July 31, 1861, and with intent to violate and
disregard an act entitled ``An act regulating the tenure of certain
civil offices,'' passed March 2, 1867, whereby said Andrew Johnson,
President of the United States, did then and there commit a high crime
in office.
Article VII.
That said Andrew Johnson, President of the United States, unmindful
of the high duties of his office and of his oath of office, on the 21st
day of February, in the year of our Lord 1868, at Washington, in the
District of Columbia, did unlawfully conspire with one Lorenzo Thomas
with intent unlawfully to seize, take, and possess the property of the
United States in the Department of War, in the custody and charge of
Edwin M. Stanton, Secretary for said Department, with intent to violate
and disregard the act entitled ``An act regulating the tenure of
certain civil offices,'' passed March 2, 1867, whereby said Andrew
Johnson, President of the United States, did then and there commit a
high misdemeanor in office.
Article VIII.
That said Andrew Johnson, President of the United States, unmindful
of the high duties of his office and of his oath of office, with intent
unlawfully to control the disbursements of the moneys appropriated for
the military service and for the Department of War, on the 21st day of
February, in the year of our Lord 1868, at Washington, in the District
of Columbia, did unlawfully and contrary to the provisions of an act
entitled ``An act regulating the tenure of certain civil offices,''
passed March 2, 1867, and in violation of the Constitution of the
United States, and without the advice and consent of the Senate of the
United States, and while the Senate was then and there in session,
there being no vacancy in the office of Secretary for the Department of
War, with intent to violate and disregard the act aforesaid, then and
there issue and deliver to one Lorenzo Thomas a letter of authority in
writing, in substance as follows, that is to say:
``Executive Mansion.
``Washington, D.C., February 21, 1868.
``Sir: Hon. Edwin M. Stanton having been this day removed from office
as Secretary for the Department of War, you are hereby authorized and
empowered to act as Secretary of War ad interim, and will immediately
enter upon the discharge of the duties pertaining to that office.
``Mr. Stanton has been instructed to transfer to you all the records,
books, papers, and other public property now in his custody and charge.
``Respectfully, yours,
Andrew Johnson.
``Brevet Maj. Gen. Lorenzo Thomas,
``Adjutant-General United States Army, Washington, D.C.
whereby said Andrew Johnson, President of the United States, did then
and there commit and was guilty of a high misdemeanor in office.
Sec. 2420
Article IX.
That said Andrew Johnson, President of the United States, on the 22d
day of February, in the year of our Lord 1868, at Washington, in the
District of Columbia, in disregard of the Constitution and the laws of
the United States, duly enacted, as Commander in Chief of the Army of
the United States, did bring before himself then and there William H.
Emory, a major-general by brevet in the Army of the United States,
actually in command of the Department of Washington and the military
forces thereof, and did then and there, as such Commander in Chief,
declare to and instruct said Emory that part of a law of the United
States, passed March 2, 1867, entitled ``An act making appropriations
for the support of the Army for the year ending June 30, 1868, and for
other purposes,'' especially the second section thereof, which
provides, among other things, that ``all orders and instructions
relating to military operations issued by the President or Secretary of
War shall be issued through the General of the Army, and, in case of
his inability, through the next in rank,'' was unconstitutional and in
contravention of the commission of said Emory, and which said provision
of law had been theretofore duly and legally promulgated by general
order for the government and direction of the Army of the United
States, as the said Andrew Johnson then and there well knew, with
intent thereby to induce said Emory, in his official capacity as
commander of the Department of Washington, to violate the provisions of
said act, and to take and receive, act upon, and obey such orders as
he, the said Andrew Johnson, might make and give, and which should not
be issued through the General of the Army of the United States,
according to the provisions of said act, and with the further intent
thereby to enable him, the said Andrew Johnson, to prevent the
execution of an act entitled ``An act regulating the tenure of certain
civil offices,'' passed. March 2, 1867, and to unlawfully prevent Edwin
M. Stanton, then being Secretary for the Department of War, from
holding said office and discharging the duties thereof, whereby said
Andrew Johnson, President of the United States, did then and there
commit and was guilty of a high misdemeanor in office.
Article X.
That said Andrew Johnson, President of the United States, unmindful
of the high duties of his office and the dignity and proprieties
thereof, and of the harmony and courtesies which ought to exist and be
maintained between the executive and legislative branches of the
Government of the United States, designing and intending to set aside
the rightful authority and powers of Congress, did attempt to bring
into disgrace, ridicule, hatred, contempt, and reproach the Congress of
the United States and the several branches thereof, to impair and
destroy the regard and respect of all the good people of the United
States for the Congress and legislative power thereof (which all
officers of the Government ought inviolably to preserve and maintain),
and to excite the odium and resentment of all the good people of the
United States against Congress and the laws by it duly and
constitutionally enacted; and in pursuance of his said design and
intent, openly and publicly, and before divers assemblages of the
citizens of the United States convened in divers parts thereof to meet
and receive said Andrew Johnson as the Chief Magistrate of the United
States, did, on the 18th day of August, in the year of our Lord 1866,
and on divers other days and times, as well before as afterwards, make
and deliver with a loud voice certain intemperate, inflammatory, and
scandalous harangues, and did therein utter loud threats and bitter
menaces as well against Congress as the laws of the United States duly
enacted thereby, amid the cries, jeers, and laughter of the multitudes
then assembled and within hearing, which are set forth in the several
specifications hereinafter written, in substance and effect, that is to
say:
Specification first.--In this, that at Washington, in the District of
Columbia, in the Executive Mansion, to a committe of citizens who
called upon the President of the United States, speaking of and
concerning the Congress of the United States, said Andrew Johnson,
President of the United States, heretofore, to wit, on the 18th day of
August, in the year of our Lord 1866, did, in a loud voice, declare in
substance and effect, among other things, that is to say:
``So far as the executive department of the Government is concerned,
the effort has been made to restore the Union, to heal the breach, to
pour oil into the wounds which were consequent upon the struggle, and
(to speak in common phrase) to prepare, as the learned and wise
physician would, a plaster healing in character and coextensive with
the wound. We thought, and we think, that we had partially succeeded;
but as the work progresses, as reconstruction seemed to be taking place
and the country was becoming reunited, we found a disturbing and
marring element opposing us. In alluding to that element, I shall go no
further than your convention and the distinguished gentleman who has
delivered
Sec. 2420
to me the report of its proceedings. I shall make no reference to it
that I do not believe the time and the occasion justify.
``We have witnessed in one department of the Government every
endeavor to prevent the restoration of peace, harmony, and union. We
have seen hanging upon the verge of the Government, as it were, a body
called, or which assumes to be, the Congress of the United States,
while in fact it is a Congress of only a part of the States. We have
seen this Congress pretend to be for the Union when its every step and
act tended to perpetuate disunion and make a disruption of the States
inevitable. * * * We have seen Congress gradually encroach step by step
upon constitutional rights and violate, day after day and month after
month, fundamental principles of the Government. We have seen a
Congress that seemed to forget that there was a limit to the sphere and
scope of legislation. We have seen a Congress in a minority assume to
exercise power which, allowed to be consummated, would result in
despotism or monarchy itself.''
Specification second.--In this, that at Cleveland, in the State of
Ohio, heretofore, to wit, on the 3d day of September, in the year of
our Lord 1866, before a public assemblage of citizens and others, said
Andrew Johnson, President of the United States, speaking of and
concerning the Congress of the United States did, in a loud voice,
declare in substance and effect among other things, that is to say:
``I will tell you what I did do. I called upon your Congress that is
trying to break up the Government.
* * * * * * *
``In conclusion, beside that, Congress had taken much pains to poison
their constituents against him. But what had Congress done? Have they
done anything to restore the union of these States? No; on the
contrary, they had done everything to prevent it; and because he stood
now where he did when the rebellion commenced he had been denounced as
a traitor. Who had run greater risks or made greater sacrifices than
himself? But Congress, factious and domineering, had undertaken to
poison the minds of the American people.''
Specification third.--In this, that at St. Louis, in the State of
Missouri, heretofore, to wit, on the 8th day of September, in the year
of our Lord 1866, before a public assemblage of citizens and others,
said Andrew Johnson, President of the United States, speaking of and
concerning the Congress of the United States, did, in a loud voice,
declare, in substance and effect, among other things, that is to say:
``Go on. Perhaps if you had a word or two on the subject of New
Orleans you might understand more about it than you do. And if you will
go back--if you win go back and ascertain the cause of the riot at New
Orleans, perhaps you will not be so prompt in calling out `New
Orleans.' If you will take up the riot at New Orleans and trace it back
to its source or its immediate cause, you will find out who was
responsible for the blood that was shed there. If you will take up the
riot at New Orleans and trace it back to the Radical Congress, you will
find that the riot at New Orleans was substantially planned. If you
will take up the proceedings in their caucuses, you will understand
that they there knew that a convention was to be called which was
extinct by its power having expired; that it was said that the
intention was that a new government was to be organized, and on the
organization of that government the intention was to enfranchise one
portion of the population, called the colored population, who had just
been emancipated, and at the same time disfranchise white men. When you
design to talk about New Orleans you ought to understand what you are
talking about. When you read the speeches that were made, and take up
the facts on the Friday and Saturday before that convention sat, you
will there find that speeches were made incendiary in their character,
exciting that portion of the population, the black population, to arm
themselves and prepare for the shedding of blood. You will also find
that that convention did assemble in violation of law, and the
intention of that convention was to supersede the reorganized
authorities in the State government of Louisiana, which had been
recognized by the Government of the United States; and every man
engaged in that rebellion in that convention, with the intention of
superseding and upturning the civil government which had been
recognized by the Government of the United States, I say that he was a
traitor to the Constitution of the United States, and hence you find
that another rebellion was commenced having its origin in the Radical
Congress. * * *
``So much for the New Orleans riot. And there was the cause and the
origin of the blood that was shed; and every drop of blood that was
shed is upon their skirts, and they are responsible for it. I could
test this thing a little closer, but will not do it here to-night. But
when you talk about the causes and
Sec. 2420
consequences that resulted from proceedings of that kind, perhaps as I
have been introduced here and you have provoked questions of this kind,
though it does not provoke me, I will tell you a few wholesome things
that have been done by this Radical Congress in connection with New
Orleans and the extension of the elective franchise.
``I know that I have been traduced and abused. I know it has come in
advance of me here, as elsewhere, that I have attempted to exercise an
arbitrary power in resisting laws that were intended to be forced upon
the Government; that I had exercised that power; that I had abandoned
the party that elected me, and that I was a traitor because I exercised
the veto power in attempting and did arrest for a time a bill that was
called a `Freedman's Bureau' bill; yes, that I was a traitor. And I
have been traduced, I have been slandered, I have been maligned, I have
been called Judas Iscariot, and all that. Now, my countrymen here to-
night, it is very easy to indulge in epithets; it is easy to call a man
a Judas and cry out traitor; but when he is called upon to give
arguments and facts he is very often found wanting. Judas Iscariot--
Judas. There was a Judas, and he was one of the twelve apostles. Oh,
yes; the twelve apostles had a Christ. The twelve apostles had a
Christ, and he never could have had a Judas unless he had had twelve
apostles. If I have played the Judas, who has been my Christ that I
have played the Judas with? Was it Thad. Stevens? Was it Wendell
Phillips? Was it Charles Sumner? These are the men that stop and
compare themselves with the Saviour; and everybody that differs with
them in opinion, and to try and stay and arrest the diabolical and
nefarious policy, is to be denounced as a Judas.
* * * * * * *
``Well, let me say to you, if you will stand by me in this action; if
you will stand by me in trying to give the people a fair chance,
soldiers and citizens, to participate in these offices, God being
willing, I will kick them out. I will kick them out just as fast as I
can.
``Let me say to you, in concluding, that what I have said I intended
to say. I was not provoked into this, and I care not for their menaces,
the taunts, and the jeers. I care not for threats. I do not intend to
be bullied by my enemies nor overawed by my friends. But, God willing,
with your help I will veto their measures whenever any of them come to
me.''
Which said utterances, declarations, threats, and harangues, highly
censurable in any, are peculiarly indecent and unbecoming in the Chief
Magistrate of the United States, by means whereof said Andrew Johnson
has brought the high office of the President of the United States into
contempt, ridicule, and disgrace, to the great scandal of all good
citizens, whereby said Andrew Johnson, President of the United States,
did commit, and was then and there guilty of, a high misdemeanor in
office.
Article XI.
That said Andrew Johnson, President of the United States, unmindful
of the high duties of his office and of his oath of office, and in
disregard of the Constitution and laws of the United States, did
heretofore, to wit, on the 18th day of August, 1866, at the city of
Washington, and the District of Columbia, by public speech, declare and
affirm, in substance, that the Thirty-ninth Congress of the United
States was not a Congress of the United States authorized by the
Constitution to exercise legislative power under the same; but, on the
contrary, was a Congress of only part of the States, thereby denying
and intending to deny that the legislation of said Congress was valid
or obligatory upon him, the said Andrew Johnson, except in so far as he
saw fit to approve the same, and also thereby denying and intending to
deny the power of the said Thirty-ninth Congress to propose amendments
to the Constitution of the United States; and, in pursuance of said
declaration, the said Andrew Johnson, President of the United States,
afterwards, to wit, on the 21st day of February, 1868, at the city of
Washington, in the District of Columbia, did unlawfully and in
disregard of the requirements of the Constitution, that he should take
care that the laws be faithfully executed, attempt to prevent the
execution of an act entitled ``An act regulating the tenure of certain
civil offices,'' passed March 2, 1867, by unlawfully devising and
contriving, and attempting to devise and contrive, means by which he
should prevent Edwin M. Stanton from forthwith resuming the functions
of the office of Secretary for the Department of War, notwithstanding
the refusal of the Senate to concur in the suspension theretofore made
by said Andrew Johnson, of said Edwin M. Stanton from said office of
Secretary for the Department of War, and also by further unlawfully
devising and contriving, and attempting to devise and contrive, means
then and there to prevent the execution of an act entitled ``An act
making appropriations for the support of the Army
Sec. 2421
for the fiscal year ending June 30, 1868, and for other purposes,''
approved March 2, 1867, and also to prevent the execution of an act
entitled ``An act to provide for the more efficient government of the
rebel States,'' passed March 2, 1867; whereby the said Andrew Johnson,
President of the United States, did then, to wit, on the 21st day of
February, 1868, at the city of Washington, commit and was guilty of a
high misdemeanor in office.
And the House of Representatives, by protestation, saving to
themselves the liberty of exhibiting at any time hereafter any further
articles or other accusation or impeachment against the said Andrew
Johnson, President of the United States, and also of replying to his
answers which he shall make unto the articles herein preferred against
him, and of offering proof to the same and every part thereof, and to
all and every other article, accusation, or impeachment which shall be
exhibited by them, as the case shall require, do demand that the said
Andrew Johnson may be put to answer the high crimes and misdemeanors in
office herein charged against him, and that such proceedings,
examinations, trials, and judgments may be thereupon had and given as
may be agreeable to law and justice.
Schuyler Colfax,
Speaker of the House of Representatives.
Attest:
Edward McPherson,
Clerk of the House of Representatives.
Mr. Bingham having concluded the reading of the articles of
impeachment, the President pro tempore informed the managers that the
Senate would take proper order on the subject of the impeachment, of
which due notice would be given to the House of Representatives.
The managers, by their chairman, Mr. Bingham, then delivered the
articles of impeachment at the table of the Secretary, and withdrew,
accompanied by the Members of the House of Representatives.
The Committee of the Whole, having returned to the Hall of the
House,\1\ rose and the Speaker resumed the chair, whereupon Mr. Henry
L. Dawes, of Massachusetts, the chairman, reported:
Mr. Speaker: The House in the Committee of the Whole, by order of the
House, have accompanied their managers to the Senate while they
presented, in the name of the House of Representatives and of all the
people of the United States, articles of impeachment agreed upon by the
House against Andrew Johnson, President of the United States. The
President of the Senate announced that the Senate would take order in
the premises, of which due notice would be given to the House of
Representatives.
2421. President Johnson's impeachment continued.
Resolution providing for introduction of the Chief Justice and the
organization of the Senate for the trial of President Johnson.
The Senate ordered a copy of its rules for the trial of President
Johnson to be sent to the House.
The notice to the Chief Justice to meet the Senate for the trial of
President Johnson was delivered by a committee of three Senators, who
were his escort also.
In the Senate, on the same day, Mr. Howard moved \2\ the adoption of
the following:
Resolved, That at 1 o'clock to-morrow afternoon the Senate will
proceed to consider the impeachment of Andrew Johnson, President of the
United States, at which time the oath or affirmation required by the
rules of the Senate sitting for the trial of an impeachment shall be
administered by the Chief
-----------------------------------------------------------------------
\1\ House Journal, p. 471; Globe, p. 1661.
\2\ Senate Journal, p. 268; Globe, pp. 1657, 1658.
Sec. 2422
Justice of the United States, as the presiding officer of the Senate,
sitting as aforesaid, to each member of the Senate, and that the Senate
sitting as aforesaid will at the time aforesaid receive the managers
appointed by the House of Representatives.
Ordered, That the Secretary lay this resolution before the House of
Representatives.
Ordered, That the articles of impeachment exhibited against Andrew
Johnson, President of the United States, be printed.
Ordered, That a copy of the ``rules of procedure and practice in the
Senate when sitting on the trial of impeachments'' be communicated by
the Secretary to the House of Representatives, and a copy thereof
delivered by him to each member of the House.
Mr. George F. Edmunds proposed a simpler resolution, taking the
ground that the pending resolution, in some respects, provided for what
had already been provided in the rules. But Mr. Howard replied that the
House was not obliged to take cognizance of the rules. The resolutions
and orders were then agreed to as offered. The communication was duly
received in the House.\1\
Thereupon, on motion of Mr. Stephen C. Pomeroy, of Kansas,
Ordered, That the notice to the Chief Justice of the United States to
meet the Senate in the trial of the case of impeachment, and requesting
his attendance as presiding officer, be delivered to him by a committee
of three Senators, to be appointed by the Chair, who shall wait upon
the Chief Justice to the Senate Chamber and conduct him to the chair.
The President pro tempore appointed Messrs. Pomeroy, Henry Wilson, of
Massachusetts, and Charles R. Buckalew, of Pennsylvania, the committee.
2422. President Johnson's impeachment continued.
The ceremonies of inducting the Chief Justice and organizing the
Senate for the trial of President Johnson.
The President pro tempore left the chair at the hour for the Senate
to sit for the trial of the President.
On taking the chair to preside at the trial of President Johnson the
Chief Justice had the oath administered by an associate justice.
Having taken the oath himself the Chief Justice administered it to
the Senators sitting for the trial of President Johnson.
After the oath had been administered to the Senators sitting for the
trial of President Johnson the Sergeant-at-Arms was directed to make
proclamation.
The Senate having organized for the trial of President Johnson, rules
were adopted and the House was notified of the organization and of
readiness to receive the managers.
On March 5 \2\ in the Senate the hour of 1 o'clock having arrived,
the President pro tempore said:
The morning hour having expired, all legislative and executive
business of the Senate is ordered to cease for the purpose of
proceeding to business pertaining to the impeachment of the President
of the United States. The chair is vacated for that purpose.
The President pro tempore then left the chair.
The Chief Justice of the United States entered the Chamber,
accompanied by Mr. Justice Nelson, and escorted by Senators Pomeroy,
Wilson, and Buckalew, the committee appointed for that purpose.
-----------------------------------------------------------------------
\1\ House Journal, p. 475.
\2\ Senate Journal, pp. 809, 810; Globe, p. 1671.
Sec. 2423
The Chief Justice took the chair and said:
Senators: I attend the Senate in obedience to your notice, for the
purpose of joining with you in forming a court of impeachment for the
trial of the President of the United States, and I am now ready to take
the oath.\1\
The oath was administered by Mr. Justice Nelson to Chief Justice
Chase in the following words:
I do solemnly swear that in all things appertaining to the trial of
the impeachment of Andrew Johnson, President of the United States, I
will do impartial justice according to the Constitution and laws. So
help me God.
[The Senators rose when the Chief Justice entered the Chamber and
remained standing till the conclusion of the administration of the oath
to him.]
The Chief Justice. Senators, the oath will now be administered to the
Senators as they will be called by the Secretary in succession. [To the
Secretary.] Call the roll.
The administration of the oath then proceeded until the name of Mr.
Benj. F. Wade, of Ohio, was called, when a question was raised as to
his competency to Vote.\2\
If the managers on the part of the House of Representatives were
present during this proceeding, it was informally, as no mention is
made of their presence.
On March 6 \3\ the question as to Mr. Wade's right to vote was
withdrawn, and the administration of the oath was concluded.
Thereupon the following occurred:
All the Senators present having taken the oath required by the
Constitution, the Senate is now organized for the purpose of proceeding
to the trial of the impeachment of Andrew Johnson, President the United
States. The Sergeant-at-Arms will make proclamation.
The Sergeant-at-Arms. Hear ye, hear ye, hear ye. All persons are
commanded to keep silence on pain of imprisonment while the Senate of
the United States is sitting for the trial of the articles of
impeachment against Andrew Johnson, President of the United States.
After the Chief Justice had submitted the question: ``Shall the rules
of proceeding adopted by the Senate on the 2d of March be the rules of
proceeding in the trial of the impeachment?'', and the same had been
determined in the affirmative, Mr. Howard offered the following order,
which was agreed to:
Ordered, That the Secretary of the Senate notify the House of
Representatives that the Senate is now organized for the trial of the
articles of impeachment against Andrew Johnson, President of the United
States, and is ready to receive the managers of the impeachment at its
bar.
2423. President Johnson's impeachment continued.
The House did not attend the managers in making the formal demand
that the Senate take process against President Johnson.
The House managers having demanded process against President Johnson,
the Senate ordered a summons to issue, returnable on a given date.
-----------------------------------------------------------------------
\1\ The Journal has this record ``By direction of the Chief Justice
the following oath was administered to him,'' etc. The Senate, in
adopting rules for the trial, had assumed that the Chief Justice would
not be sworn. See proceedings on Rule XXIV, section 2080 of this
volume.
\2\ For discussion of this question see section 2061 of this volume.
\3\ Senate Journal, p. 811; Globe, p. 1701.
Sec. 2423
The sessions of the Senate sitting for an impeachment trial may
adjourn for more than three days.
The managers, having returned from demanding that process be issued
against President Johnson, reported verbally to the House.
The managers of the impeachment of President Johnson were given leave
to sit during sessions of the House and power to compel testimony.
A question had arisen in the House \1\ as to whether or not the House
should attend the managers, and Mr. Bingham said:
Mr. Speaker, after consultation with the managers on the part of the
House, I am instructed by them to say to the House that, inasmuch as
this is a mere formal proceeding to-day, they do not suppose it to be
necessary or according to usage to ask the House to attend them to the
bar of the Senate until the issue shall be joined.
In due time the managers (excepting Mr. Stevens), appeared \2\ at the
bar of the Senate, and their presence was announced by the Sergeant-at-
Arms.
The Chief Justice said:
The managers of the impeachment on the part of the House of
Representatives will please take the seats assigned to them.
The managers having been seated in the area in front of the chair,
Mr. Manager Bingham rose and said:
Mr. President, we are instructed by the House of Representatives, as
its managers, to demand that the Senate take process against Andrew
Johnson, President of the United States, that he may answer at the bar
of the Senate upon the articles of impeachment heretofore preferred by
the House of Representatives through its managers before the Senate.
Mr. Howard, a Senator, thereupon moved the following order, which was
agreed to: \3\
Ordered, That a summons do issue, as required by the rules of
procedure and practice in the Senate when sitting on the trial of
impeachments, to Andrew Johnson, returnable on Friday, the 13th day of
March instant, at 1 o'clock in the afternoon.
After a subject relating to an amendment of the rules had been
disposed of, Mr. Howard moved that the Senate sitting for the trial of
the President upon articles of impeachment,\4\ adjourn to Friday, the
13th of March instant, at 1 o'clock afternoon.
This motion was agreed to, and the Chief Justice thereupon declared
the Senate sitting for the trial of impeachments adjourned to the time
named and vacated the chair.
The President pro tempore resumed the chair and called the Senate to
order.\5\
The managers, having returned to the House, appeared at the bar,\6\
and being recognized by the Speaker, Aft. Bingham said:
I have the honor to report, on behalf of the managers in the matter
of the impeachment of Andrew Johnson, President of the United States,
that the Senate has organized for the trial of the impeachment;
-----------------------------------------------------------------------
\1\ Globe, p. 1683.
\2\ Senate Journal, p. 816; Globe, p. 1701.
\3\ Senate Journal, p. 823; Globe, p. 1701.
\4\ The Globe (p. 1701) indicates that Mr. Howard used the word
``court,'' but the Journal does not permit the word.
\5\ Senate Journal, pp. 276--823; Globe, p. 1701.
\6\ House Journal, p. 484; Globe, p. 1711.
Sec. 2424
that in the name of the House of Representatives and in the behalf of
all the people of the United States, the managers have demanded of the
Senate that process be issued against Andrew Johnson, President of the
United States, to answer to the articles heretofore exhibited against
him at the bar of the Senate; and that the Senate has advised us that
process will be issued against him in that behalf, returnable on the
13th instant, at 1 o'clock p.m.
On March 6,\1\ also in the House, Mr. Bingham offered the following:
Resolved, That the managers on the part of the House, in the matter
of the impeachment of the President, be, and hereby are, authorized to
sit during the sessions of the House, and shall have power to send for
persons and papers, administer oaths, and take the testimony of
witnesses.
Mr. Bingham explained that this was desired to enable the managers to
administer oaths to witnesses. The resolution was agreed to, yeas 89,
nays 25.
2424. President Johnson's impeachment continued.
Ceremonies at the return of the summons to President Johnson to
appear and answer the articles of impeachment.
Form used by the Sergeant-at-Arms in calling President Johnson to
appear and answer the articles of impeachment.
President Johnson entered his appearance by a letter addressed to the
Chief Justice and naming the counsel to appear for him.
President Johnson by his own letter and by a paper filed and signed
by his counsel asked forty days in which to prepare his answer.
The House in Committee of the Whole, on notice from the Senate,
attended on the return day of the summons to President Johnson.
The Chief Justice held, in the Senate sitting for the trial of
President Johnson, that the journal should be read before other
proceedings.
On March 13 \2\ at 1 p.m. the Chief Justice entered the Senate
Chamber, resumed the chair, and said (to the Sergeant-at-Arms):
Make proclamation.
The Sergeant-at-Arms. Hear ye! hear ye. All persons are commanded to
keep silence while the Senate of the United States is sitting for the
trial of the articles of impeachment exhibited by the House of
Representatives against Andrew Johnson, President of the United States.
Propositions being made to notify the House of Representatives and
also that several Senators be sworn, the Chief Justice said:
The first business is to read the journal of the last session of the
court. The Senators will be sworn in afterwards.
The Secretary read the journal of the proceedings of the Senate
sitting for the trial of impeachment of Andrew Johnson, President of
the United States, on Friday, March 6, 1868.
Mr. Jacob M. Howard, of Michigan, submitted this order, which was
agreed to:
Ordered, That the Secretary inform the House of Representatives that
the Senate is in its Chamber, and ready to proceed with the trial of
Andrew Johnson, President of the United States, and that seats are
provided for the accommodation of the Members.
This message being received in the House,\3\ that body resolved
itself into Committee of the Whole, with Mr. Elihu B. Washburne, of
Illinois, in the chair, and thereupon attended the managers to the
Senate.
-----------------------------------------------------------------------
\1\ House Journal, p. 481; Globe, p. 1706.
\2\ House Journal, p. 519; Globe, p. 1869.
\3\ Senate Journal, p. 824; Globe Supplement, p. 6.
Sec. 2424
The managers having appeared at the bar, were announced by the
Sergeant-at-Arms and conducted to the position assigned them.
The oath was then administered to several Senators not previously
sworn.
Then the following proceedings occurred: \1\
The Chief Justice. The Secretary of the Senate will read the return
of the Sergeant-at-Arms to the summons directed to be issued by the
Senate.
The Chief Clerk read the following return appended to the writ of
summons:
The foregoing writ of summons, addressed to Andrew Johnson, President
of the United States, and the foregoing precept, addressed to me, were
this day duly served on the said Andrew Johnson, President of the
United States, by delivering to and leaving with him true and attested
copies of the same at the Executive Mansion, the usual place of abode
of the said Andrew Johnson, on Saturday, the 7th day of March instant,
at 7 o'clock in the afternoon of that day.
George T. Brown,
Sergeant-at-Arms of the United States Senate.
Washington, March 7, 1863.
The Chief Clerk administered to the Sergeant-at-Arms the following
oath:
I, George T. Brown, Sergeant-at-Arms of the Senate of the United
States, do swear that the return made and subscribed by me upon the
process issued on the 7th day of March, A. D. 1868, by the Senate of
the United States against Andrew Johnson, President of the United
States, is truly made, and that I have performed said service therein
prescribed. So help me God.
The Chief Justice. The Sergeant-at-Arms will call the accused.
The Sergeant-at-Arms. Andrew Johnson, President of the United States,
Andrew Johnson, President of the United States, appear and answer the
articles of impeachment exhibited against you by the House of
Representatives of the United States.
There being no response, Mr. Reverdy Johnson, of Maryland, a Senator,
made this suggestion:
I understand that the President has retained counsel, and that they
are now in the President's room attached to this wing of the Capitol.
They are not advised, I believe, of the court being organized. I move
that the Sergeant-at-Arms inform them of that fact.
The Chief Justice. If there be no objection, the Sergeant-at-Arms
will so inform the counsel of the President.
The Sergeant-at-Arms presently returned with Hon. Henry Stanbery, of
Kentucky; Hon. Benjamin R. Curtis, of Massachusetts, and Hon. Thomas A.
R. Nelson, of Tennessee, who were conducted to the seats assigned the
counsel of the President.
Then the following occurred:
The Sergeant-at-Arms announced the Members of the House of
Representatives, who entered the Senate Chamber preceded by the
chairman of the Committee of the Whole House (Mr. E. B. Washburne, of
Illinois), into which that body had resolved itself to witness the
trial, who was accompanied by the Speaker and Clerk.
The Chief Justice (to the counsel for the President). Gentlemen, the
Senate is now sitting for the trial of the President of the United
States, upon articles of impeachment exhibited by the House of
Representatives. The court will now hear you.
Mr. Stanbery. Mr. Chief Justice, my brothers Curtis and Nelson and
myself are here this morning as counsel for the President. I have his
authority to enter his appearance, which, with your leave, I will
proceed to read:
``In the matter of the impeachment of Andrew Johnson, President of
the United States.
``Mr. Chief Justice: I, Andrew Johnson, President of the United
States, having been served with a summons to appear before this
honorable court, sitting as a court of impeachment to answer certain
articles of impeachment found and presented against me by the honorable
the House of Repre-
-----------------------------------------------------------------------
\1\ Globe Supplement, p. 6.
Sec. 2424
sentatives of the United States, do hereby enter my appearance by my
counsel, Henry Stanbery, Benjamin R. Curtis, Jeremiah S. Black, William
M. Evarts, and Thomas A. R. Nelson, who have my warrant and authority
therefore, and who are instructed by me to ask of this honorable court
a reasonable time for the preparation of my answer to said articles.
``After a careful examination of the articles of impeachment and
consultation with my counsel, I am satisfied that at least forty days
will be necessary for the preparation of my answer, and I respectfully
ask that it be allowed.
``Andrew Johnson.''
The Chief Justice. The paper will be filed.
Mr. Stanbery. Mr. Chief Justice, I have also a professional statement
in support of the application. Whether it is in order to offer it now
or to wait until the appearance is entered your Honor will decide.
The Chief Justice. The appearance will be considered as entered. You
may proceed.
Mr. Stanbery. I will read the statement.
``In the matter of the impeachment of Andrew Johnson, President of
the United States.
``Henry Stanbery, Benjamin R. Curtis, Jeremiah S. Black, William M.
Evarts, and Thomas A. R. Nelson, of counsel for the respondent, move
the court for the allowance of forty days for the preparation of the
answer to the articles of impeachment, and in support of the motion
make the following professional statement:
``The articles are eleven in number, involving many questions of law
and fact. We have, during the limited time and opportunity afforded us,
considered as far as possible the field of investigation which must be
explored in the preparation of the answer, and the conclusion at which
we have arrived is that with the utmost diligence the time we have
asked is reasonable and necessary.
``The precedents as to time for answer upon impeachments before the
Senate, to which we have had opportunity to refer, are those of Judge
Chase and Judge Peck.
``In the case of Judge Chase time was allowed from the 3d of January
until the 4th of February next succeeding to put in his answer, a
period of thirty-two days; but in this case there were only eight
articles, and Judge Chase had been for a year cognizant of most of the
articles, and had been himself engaged in preparing to meet them.
``In the case of Judge Peck there was but a single article. Judge
Peck asked for time from the 10th to the 25th of May to put in his
answer, and it was granted. It appears that Judge Peck had been long
cognizant of the ground laid for his impeachment, and had been present
before the committee of the House upon the examination of the
witnesses, and had been permitted by the House of Representatives to
present to that body an elaborate answer to the charges.
``It is apparent that the President is fairly entitled to more time
than was allowed in either of the foregoing cases. It is proper to add
that the respondents in these cases were lawyers, fully capable of
preparing their own answers, and that no pressing official duties
interfered with their attention to that business; whereas the
President, not being a lawyer, must rely on his counsel. The charges
involve his acts, declarations, and intentions, as to all which his
counsel must be fully advised upon consultation with him, step by step,
in the preparation of his defense. It is seldom that a case requires
such constant communication between client and counsel as this, and yet
such communication can only be had at such intervals as are allowed to
the President from the usual hours that must be devoted to his high
official duties.
``We further beg leave to suggest for the consideration of this
honorable court that as counsel, careful as well of their own
reputation as of the interests of their client in a case of such
magnitude as this, so out of the ordinary range of professional
experience, where so much responsibility is felt, they submit to the
candid consideration of the court that they have a right to ask for
themselves such opportunity to discharge their duty as seems to them to
be absolutely necessary.
``Henry Stanbery,
``B. R. Curtis,
``Jeremiah S. Black, per H. S.
``William M. Evarts, per H. S.
``Thomas A. R. Nelson,
``Of Counsel for the Respondent.
``March 13, 1868.''
Sec. 2425
2425. President Johnson's impeachment continued.
The Senate denied the motion of President Johnson's counsel that he
be allowed forty days to answer and granted ten days.
The managers urged, in view of Rule VIII, that President Johnson
should answer on the return day, but were overruled.
Review of English precedents as to the distinction between the
pleadings and the trial of an impeachment.
The Senate deliberated in secret session on the application of
President Johnson for time to prepare his answer.
The proceedings of secret sessions of the Senate in the Johnson trial
appear in the Journal, but the debates were not recorded.
Immediately \1\ Mr. Manager Bingham raised the question that under
the language of the eighth rule the motion for continuance was not
allowable, the provision of the rule being that if the respondent
appeared he should answer, the terms of the rule being:
If the accused, after service, shall fail to appear, either in person
or by attorney, on the day so fixed therefor, as aforesaid, or
appearing shall fail to file his answer to such articles of
impeachment, the trial shall proceed nevertheless as upon a plea of not
guilty.
Counsel for the respondent argued that it would be oppressive for the
proceedings to be so hastened, and an innovation upon even the worst
precedents in English history. Assuming, apparently, that they must at
once proceed to trial, they stated that they could not summon their
witnesses until the pleadings were prepared. Mr. Henry Stanbery further
said:
Rule 9 provides:
``At 12 o'clock and 30 minutes afternoon of the day appointed for the
return of the summons against the person impeached.''
This is the return day; it is not the trial day. The letter answers
the gentlemen. According to the letter of the eighth rule they say
``this is the trial day; go on; not a moment's delay; file your answer
and proceed to trial; or without your answer let a general plea of not
guilty be entered, and proceed at once with the trial.'' The ninth rule
says this is the return day, not the trial day. Then the tenth rule
says:
``The person impeached shall then be called to appear and answer the
articles of impeachment against him.''
That is the call made on the return day. The accused is called to
appear and answer. He is here; he appears; he states his willingness to
answer; he only asks a reasonable time to prepare the answer. Then rule
11 speaks ``of the day appointed for the trial.'' That is not this day.
This day, the day which the gentlemen would make the first day of the
trial, is, in your own rules, put down for the return day, and you must
have some other day for the trial day to suit the convenience of the
parties; so that the letter of one rule answers the letter of another
rule.
Mr. Manager Bingham replied that the making up of the issue and the
trial were distinct matters. Citing a precedent, he said:
A very remarkable case in the twelfth volume of State Trials lies
before me, wherein Lord Holt presided, on the trial of Sir Richard
Grahme, Viscount Preston, and others, charged with high treason. In
that case the accused appeared, as the accused by the learned gentlemen
appears this morning, after the indictment presented in the court, and
before plea asked for continuance. The answer that fell from the lips
of the Lord Chief justice was, we are not to consider the question of
trial or the time of trial until plea be pleaded. Let me give his very
words:
-----------------------------------------------------------------------
\1\ Globe Supplement, p. 7.
Sec. 2425
``L. C. Holt. My lord, we debate the time of your trial too early; for
you must put yourself upon your trial first by pleading.''
And when Lord Preston presses him again on the point Lord Chief
Justice Holt responds:
``My lord, we cannot dispute with you concerning your trial till you
have pleaded. I know not what you will say to it; for aught I know
there may be no occasion for a trial. I can not tell what you will
plead; your lordship must answer to the indictment before we can enter
into the debate of this matter.'' (12 State Trials, 664.)
The eighth rule of the Senate, last clause, provides that if the
party appearing shall plead guilty there may be no further proceedings
in the case, no trial about it; nothing remains to be done but to
pronounce judgment under the Constitution. It is time enough for us to
talk about a trial when we have an issue. The rule is a plain one, a
simple one.
And I may be pardoned for saying that I fail to perceive anything in
rules 10 or 11 to which the learned counsel have referred that by any
kind of construction can be supposed to limit the effect of the words
in rule 8, to wit:
``If the accused, after service, shall fail to appear, either in
person or by attorney, on the day so fixed therefor as aforesaid, or
appearing shall fail to file his answer [on the day on which he is
summoned to appear], the trial shall proceed nevertheless as upon a
plea of not guilty.''
When words are plain in a written law there is an end to all
construction; they must be followed. The managers so thought when they
appeared at this bar. All they ask is the enforcement of the rule, not
a postponement of forty days, and at the end of that time to be met
with a dilatory plea--a motion, if you please--to quash the articles,
or a question raising the inquiry whether this is the Senate of the
United States.
The Chief Justice being about to put the motion submitted by the
counsel for the respondent, Mr. George F. Edmunds, of Vermont,
submitted \1\ the following:
Ordered, That the respondent file his answer to the articles of
impeachment on or before the 1st day of April next, and that the
managers of the impeachment file their replication thereto within three
days thereafter, and that the matter stand for trial on Monday, April
6, 1868.
Then, on motion of Mr. Oliver P. Morton, of Indiana, it was voted
``that the Senate retire to deliberate and confer in regard to its
determination of the question.'' The Journal indicates that the Chief
Justice retired with the Senate. The proceedings during the secret
session were recorded in the Journal,\2\ but not in the report of the
trial. As soon as the Senate had assembled in the conference chamber,
Mr. Charles D. Drake, of Missouri, moved \3\ to strike out of Mr.
Edmunds's resolution all after the word ``Resolved'' and insert: ``That
the respondent file answer to the articles of impeachment on or before
Friday, the 20th day of March instant.''
At first this was agreed to, yeas 28, nays 20, but on motion of Mr.
Lyman Trumbull, of Illinois, and by a vote of yeas 27, nays 23, the
vote was reconsidered, and then Mr. Drake's amendment was amended by
striking out the words ``Friday, the 20th,'' and inserting ``Monday,
the 23d.'' The amendment as amended was agreed to, and then the order
as amended was agreed to.
The Senate then returned to its Chamber; and the Chief Justice
announced to the counsel for the President that their motion to be
allowed forty days to pre-
-----------------------------------------------------------------------
\1\ Senate Journal. p. 826; Globe Supplement, p. 826.
\2\ In former trials the Journal did not record the secret sessions.
It seems to have been considered that the Constitution and the rules
required the Journal to be kept. See remarks of Mr. Edmunds, Globe, p.
1886.
\3\ Senate Journal, pp. 826, 827.
Sec. 2426
pare and file answer to the articles of impeachment was denied, and
that the Senate had adopted the following order:
Ordered, That the respondent file answer to the articles of
impeachment on or before Monday, the 23d day of March instant.
2426. President Johnson's impeachment continued.
After argument as to the propriety of delay, the Senate determined
that the trial of President Johnson should proceed immediately after
replication should be filed.
The Chief Justice held, in the Johnson impeachment, that both
managers and counsel might be heard on a motion of a Senator to fix the
time for the trial to begin.
Then, by instruction of the managers, Mr. Manager Bingham submitted
\1\ the following motion:
The managers ask, the Senate respectfully to adopt the following
order:
``Ordered, That upon the filing of a replication by the managers on
the part of the House of Representatives the trial of Andrew Johnson,
President of the United States, upon the articles of impeachment
exhibited by the House of Representatives shall proceed forthwith.''
The question being put on agreeing to the order, there appeared, yeas
25, nays 26. So the order was disagreed to.
Thereupon, Mr. John Sherman, of Ohio, a Senator, offered \2\ the
following:
Ordered, That the trial of the articles of impeachment shall proceed
on the 6th day of April next.
Mr. Henry Wilson, of Massachusetts, a Senator, moved to amend by
striking out ``the 6th day of April'' and inserting ``the 1st day of
April.''
Mr. Manager Butler thereupon asked if the managers might be heard on
the motion.
The Chief Justice replied:
The Chair is of opinion that the managers have a right to be heard
and also the counsel for the accused.
Mr. Manager Butler thereupon argued for a speedy trial. The
precedents for delay, which might be cited from the case of Judge
Chase, were not applicable, since the railroads and telegraph had
revolutionized means of communication. As justifying and enforcing the
need of expedition, Mr. Butler said:
The ordinary delays in court, the ordinary time given in ordinary
cases for men to answer when called before tribunals of justice, have
no application to this case. The rules by which cases are heard and
determined before the Supreme Court of the United States are not rules
applicable to the case at bar; and for this reason, if for no other,
when ordinary trials are had, when ordinary questions are examined at
the bar of any court, there is no danger to the common weal in delay,
the Republic may take no detriment if the trial is postponed; to give
the accused time injures nobody; to grant him indulgence hurts no one,
and may help one, and perhaps an innocent man. But here the House of
Representatives have presented at the bar of the Senate, in the most
solemn form, the Chief Executive officer of the nation. They say (and
they desire your judgment upon their accusation) that he has usurped
power which does not belong to him; that he is at this very time
breaking the laws solemnly enacted by you, the Senate, and those who
present him here, the Congress of the United States, and that he still
proposes so to do.
-----------------------------------------------------------------------
\1\ Senate Journal, p. 827; Globe Supplement, p. 8.
\2\ Senate Journal, pp. 827, 828; Globe Supplement, pp. 8-11.
Sec. 2426
Sir, who is the criminal--I beg pardon for the word--the respondent
at the bar? He is the Chief Executive of the nation, and when I have
said that, I have taken out from all ordinary rules this trial, because
I submit with deference that here and now, for the first time in the
history of the world, has any nation brought its ruler to the bar of
its highest tribunal in a constitutional method, under the rules and
forms prescribed by its Constitution, and therefore all the rules, all
the analogies, all the likeness to a common and ordinary trial of any
cause, civil or criminal, cease at once, are silent, and ought not to
weigh in judgment. Other nations have tried and condemned their kings
and rulers, but the process has always been in violence and subversive
of their constitutions and framework of government, not in submission
to and accordance with it.
When I name the respondent as the Chief Executive, I say he is the
Commander in Chief of your armies; he specially claims that command,
not by force and under the limitations of your laws, but as a
prerogative of his office and subject to his arbitrary will. He
controls, through his subordinates, your Treasury. He commands your
Navy. Thus he has all elements of power. He controls your foreign
relations. In any hour of passion, of prejudice, of revenge for fancied
wrong in his own mind, he may complicate your peace with any nation of
the earth, even while he is being arraigned as a respondent at your
bar. And mark me, sir, may I respectfully submit that the very question
here at issue this day and this hour is, whether he shall control
beyond the reach of your laws, and outside of your laws, the Army of
the United States. The one greatest of all questions here at issue is
whether he shall be able, against law--setting aside your laws, setting
aside the decrees of the Senate, setting aside the laws enacted by
Congress, overriding the legislative power of the country, claiming it
as an attribute of executive power only, to control the great military
arm of this Government, and control it if he chooses at his own good
pleasure, its your ruin and the ruin of the country.
Mr. Nelson, counsel for the respondent, in pleading for delay, said:
Mr. Chief Justice, I need not tell you, nor need I tell many of the
honorable Senators whom I address on this occasion, many of whom are
lawyers, many of whom have been clothed in times past with the judicial
ermine, that in the courts of law the vilest criminal who ever was
arraigned in the United States has been given time for preparation,
time for hearing, The Constitution of the country secures to the vilest
man in the land the right not only to be heard himself, but to be heard
by counsel; and no matter how great his crime, no matter how deep may
be the malignity of the offense with which he is charged, he is tried
according to the forms of law; he is allowed to have counsel;
continuances are granted to him; if he is unable to obtain justice,
time is given to him, and all manner of preparation is allowed him.
If this is so in courts of common law, that are fettered and bound by
the iron rules to which I have adverted, how much more in a great
tribunal like this that does not follow the precedents of law, but that
is aiming and seeking alone to attain justice, ought we to be allowed
ample time for preparation in reference to charges of the nature which
we have here? How much more, sir, should such time be given us?
We are told that the President acted in regard to one of the matters
which is charged against him by the House of Representatives on the
21st of February, and that by the 4th of March--if I did not mistake
the statement of the honorable manager--the House of Representatives
had presented this accusation against the President of the United
States; and, that, therefore, the President, who knew what he was
doing, should be prepared for his defense. Mr. Chief Justice, is it
necessary for me to remind you and honorable Senators that you can upon
a page of foolscap paper prepare a bill of indictment against an
individual which may require weeks in the investigation? Is it
necessary for me to remind this honorable body that it is an easy thing
to make charges, but that it is often a laborious and difficult thing
to make a defense against those accusations?
Reasoning from the analogy furnished by such proceedings at law, I
earnestly maintain before this honorable body that suitable time should
be given us to answer the charges which are made here. A large number
of these charges--those of them connected with the President's action
in reference to the Secretary of War--involve questions of the deepest
importance. They involve an inquiry running back to the very foundation
of the Government; they involve an examination of the precedents which
have been set by different administrations; they involve, in short, the
most extensive range of inquiry. The two last charges that were
presented by the House of Representatives, if I may be pardoned for
using the expression in the view which I entertain of them, open
Pandora's box, and will cause an inves-
Sec. 2427
tigation as to the great differences of opinion which have existed
between the President and the House of Representatives, an inquiry
which, so far as I can perceive, will be almost interminable in its
character.
Mr. Manager Bingham, in arguing against delay, commented on the fact
that no formal application had been made by the accused himself for
delay. Mr. Bingham also referred to the fact that in the case of Judge
Chase the trial had been ordered to proceed on the day the answer was
received.
Mr. Roscoe Conkling, of New York, a Senator, proposed to the order
offered by Mr. Sherman this amendment:
Strike out all after the word ``ordered'' and insert: ``That unless
otherwise ordered by the Senate, for cause shown, the trial of the
pending impeachment shall proceed immediately after replication shall
be filed.''
This amendment was agreed to--yeas 40, nays 10; and then the order as
amended was agreed to, as follows:
Ordered, That, unless otherwise ordered by the Senate for cause
shown, the trial of the pending impeachment shall proceed immediately
after replication shall be filed.
Then, on motion of Mr. Jacob M. Howard, of Michigan,
the Senate sitting for the trial of the President upon articles of
impeachment, adjourned to Monday, the 23d day of March instant, at 1
o'clock p.m.
2427. President Johnson's impeachment continued.
The House, by a standing order, determined to attend in Committee of
the Whole, the trial of President Johnson.
Forms of procedure at the change in the Senate from a legislative
session to a session for the trial of the President.
During the trial of the President the Chief Justice was escorted to
the chair by the chairman of a committee of the Senate.
The House attended at each session of the trial of the President on
notice from the Senate.
The sessions of the Senate for the trial of the President were opened
by proclamation.
The managers were announced when they attended in the Senate for the
trial of the President, but the counsel for respondent entered
unannounced.
The House of Representatives was announced when, as a Committee of
the Whole, it attended the trial of the President.
On March 20,\1\ in the House, Mr. George S. Boutwell, under
suspension of the rules, presented the following resolution, which was
agreed to by the House without division:
Resolved, That on the days when the Senate shall sit for the trial of
the President upon the articles of impeachment exhibited by the House
of Representatives, the House, in Committee of the Whole, will attend
with the managers at the bar of the Senate at the hour named for the
commencement of the proceedings.
On March 23,\2\ in the House, a message was received from the Senate
by their Secretary, that--
-----------------------------------------------------------------------
\1\ Second session Fortieth Congress, House Journal, pp. 549, 550;
Globe, p. 2021.
\2\ House Journal, p. 561; Globe, p. 2071.
Sec. 2428
the Senate is in its Chamber and ready to proceed on the trial of
Andrew Johnson, President of the United States, and that seats are
provided for the accommodation of the Members.
This message was ordered by the Senate before the Chief Justice had
taken his seat as Presiding Officer.\1\
Thereupon, on motion of Mr. Elihu B. Washburne, of Illinois, the
House resolved itself into a Committee of the Whole and with Mr.
Washburne as chairman proceeded to the Senate.
In the Senate, at the hour of 1 o'clock, the President pro tempore\2\
said: \3\
According to the order of the Senate, the chair will be now vacated,
that the Senate may be presided over by the Chief Justice of the United
States for the trial of the impeachment.\4\
Thereupon the Chief Justice of the United States entered the Senate
Chamber, escorted by Mr. Pomeroy, the chairman of the Senate committee
heretofore appointed for that purpose, and took the chair.
The Sergeant-at-Arms made proclamation in the prescribed form; the
managers on the part of the House of Representatives appeared, their
presence was announced by the Sergeant-at-Arms, and they took their
seats; the counsel for the President appeared and took seats,
apparently without announcement, and then the Sergeant-at-Arms
announced the presence of the House of Representatives; and the
Committee of the Whole House, headed by Mr. E. B. Washburne, of
Illinois, the chairman of the Committee of the Whole, and the Clerk of
the House, entered the Chamber, and the Members were conducted to the
seats assigned them.
A Senator who had not taken the oath was sworn, and then the Journal
of the preceding sitting was read.\5\
2428. President Johnson's impeachment continued.
The answer of President Johnson to the articles of impeachment.
The answer of the President took up the articles one by one, denying
some of the charges, admitting others, but denying that they set forth
impeachable offenses and excepting to the sufficiency of others.
President Johnson's answer was signed by himself and counsel.
In his answer President Johnson referred to the Senate as a court.
The answer by President Johnson to the articles of impeachment was
accompanied by two exhibits.
The answer of President Johnson to the articles of impeachment was
read by his counsel.
After the disposition of a question relating to the competency of the
Senate to proceed with the case,\6\ the counsel for the President filed
his answer and by direction of the Chief Justice read it,\7\ beginning
in form as follows:
Senate of the United States, sitting as a court of impeachment for the
trial of Andrew Johnson, President of the United States.
The answer of the said Andrew Johnson, President of the United
States, to the articles of impeachment exhibited against him by the
House of Representatives of the United States.
-----------------------------------------------------------------------
\1\ Globe, pp. 2068, 2069; Senate Journal, p. 334.
\2\ B. F. Wade, of Ohio, President pro tempore.
\3\ Senate Journal, p. 334; Globe, p. 2069.
\4\ Globe supplement, p. 11.
\5\ Senate Journal, pp. 828, 829; Globe pp. 11, 12.
\6\ See section 2060 of this volume.
\7\ Senate Journal, pp. 829-860; Globe supplement, pp. 12-22.
Sec. 2428
answer to article i.
For answer to the first article he says: That * * * , etc.
The answer then proceeds, article by article:
Article I. The answer reviews at length the transactions with
reference to Secretary Stanton and concludes with these specific
denials:
And this respondent, proceeding to answer specifically each
substantial allegation in the said first article, says: He denies that
the said Stanton, on the 21st day of February, 1868 was lawfully in
possession of the said office of Secretary for the Department of War.
He denies that the said Stanton, on the day last mentioned, was
lawfully entitled to hold the said office against the will of the
President of the United States. He denies that the said order for the
removal of the said Stanton was unlawfully issued. He denies that the
said order was issued with intent to violate the act entitled ``An act
to regulate the tenure of certain civil offices.'' He denies that the
said order was a violation of the last-mentioned act. He denies that
the said order was a violation of the Constitution of the United
States, or of any law thereof, or of his oath of office. He denies that
the said order was issued with an intent to violate the Constitution of
the United States or any law thereof, or this respondent's oath of
office; and he respectfully, but earnestly, insists that not only was
it issued by him in the performance of what he believed to be an
imperative official duty, but in the performance of what this honorable
court will consider was, in point of fact, an imperative official duty.
And he denies that any and all substantive matters, in the said first
article contained, in manner and form as the same are therein stated
and set forth, do, by law, constitute a high misdemeanor in office,
within the true intent and meaning of the Constitution of the United
States.
Art. II. The answer in full is as follows:
And for answer to the second article, this respondent says that he
admits he did issue and deliver to said Lorenzo Thomas the said writing
set forth in said second article, bearing date at Washington, D. C.,
February 21, 1868, addressed to Bvt. Maj. Gen. Lorenzo Thomas,
Adjutant-General United States Army, Washington, D. C., and he further
admits that the same was so issued without the advice and consent of
the Senate of the United States, then in session, but he denies that he
thereby violated the Constitution of the United States, or any law
thereof, or that he did thereby intend to violate the Constitution of
the United States, or the provisions of any act of Congress; and this
respondent refers to his answer to said first article for a full
statement of the purposes and intentions with which said order was
issued, and adopts the same as part of his answer to this article; and
he further denies that there was then and there no vacancy in the said
office of Secretary for the Department of War, or that he did then and
there commit, or was guilty of a high misdemeanor in office, and this
respondent maintains and will insist:
1. That at the date and delivery of said writing there was a
vacancy existing in the office of Secretary for the Department of War.
2. That, notwithstanding the Senate of the United States was then
in session, it was lawful and according to long and well established
usage to empower and authorize the said Thomas to act as Secretary of
War ad interim.
3. That, if the said act regulating the tenure of civil offices be
held to be a valid law, no provision of the same was violated by the
issuing of said order or by the designation of said Thomas to act as
Secretary of War ad interim.
Art. III. The answer is as follows, in full:
And for answer to said third article this respondent says that he
abides by his answer to said first and second articles, in so far as
the same are responsive to the allegations contained in the said third
article, and, without here again repeating the same answer, prays the
same be taken as an answer to this third article as fully as if here
again set out at length; and as to the new allegation contained in said
third article, that this respondent did appoint the said Thomas to be
Secretary for the Department of War ad interim, this respondent denies
that he gave any other authority to said Thomas than such as appears in
said written authority set out in said article, by which he authorized
and empowered said
Sec. 2428
Thomas to act as Secretary for the Department of War ad interim; and he
denies that the same amounts to an appointment and insists that it is
only a designation of an officer of that Department to act temporarily
as Secretary for the Department of War ad interim until an appointment
should be made. But, whether the said written authority amounts to an
appointment or to a temporary authority or designation, this respondent
denies that in any sense he did thereby intend to violate the
Constitution of the United States, or that he thereby intended to give
the said order the character or effect of an appointment in the
constitutional or legal sense of that term. He further denies that
there was no vacancy in said office of Secretary for the Department of
War existing at the date of said written authority.
Art. IV. In answer to Article IV the charge of conspiracy was denied,
as also the charge that intimidation and threats were used in
connection with the attempt to supersede Secretary Stanton by General
Thomas; and in concluding, the following exception is taken:
This respondent doth here except to the sufficiency of the
allegations contained in said fourth article, and states for ground of
exception that it is not stated that there was any agreement between
this respondent and the said Thomas, or any other person or persons, to
use intimidation and threats, nor is there any allegation as to the
nature of said intimidation and threats, or that there was any
agreement to carry them into execution, or that any step was taken or
agreed to be taken to carry them into execution, and that the
allegation in said article that the intent of said conspiracy was to
use intimidation and threats is wholly insufficient, inasmuch as it is
not alleged that the said intent formed the basis or became a part of
any agreement between the said alleged conspirators, and, furthermore,
that there is no allegation of any conspiracy or agreement to use
intimidation or threats.
Art. V. The answer in full, with an exception:
And for answer to the said fifth article this respondent denies that
on the said 21st day of February, 1868, or at any other time or times
in the same year before the said 2d day of March, 1868, or at any prior
or subsequent time, at Washington aforesaid or at any other place, this
respondent did unlawfully conspire with the said Thomas, or with any
other person or persons, to prevent or hinder the execution of the said
act entitled ``An act regulating the tenure of certain civil offices,''
or that, in pursuance of said alleged conspiracy, he did unlawfully
attempt to prevent the said Edwin M. Stanton from holding said office
of Secretary for the Department of War, or that he did thereby commit,
or that he was thereby guilty of, a high misdemeanor in office.
Respondent, protesting that said Stanton was not then and there
Secretary for the Department of War, begs leave to refer to his answer
given to the fourth article and to his answer given to the first
article as to his intent and purpose in issuing the orders for the
removal of Mr. Stanton and the authority given to the said Thomas, and
prays equal benefit therefrom as if the same were here again repeated
and fully set forth.
And this respondent excepts to the sufficiency of the said fifth
article, and states his ground for such exception, that it is not
alleged by what means or by what agreement the said alleged conspiracy
was formed or agreed to be carried out, or in what way the same was
attempted to be carried out, or what were the acts done in pursuance
thereof.
Art. VI. The answer in full:
And for answer to the said sixth article, this respondent denies that
on the said 21st day of February, 1868, at Washington aforesaid, or at
any other time or place, he did unlawfully conspire with the said
Thomas by force to seize, take, or possess, the property of the United
States in the Department of War, contrary to the provisions of the said
acts referred to in the said article, or either of them, or with intent
to violate either of them. Respondent, protesting that said Stanton was
not then and there Secretary for the Department of War, not only denies
the said conspiracy as charged, but also denies any unlawful intent in
reference to the custody and charge of the property of the United
States in the said Department of War, and again refers to his former
answers for a full statement of his intent and purpose in the premises.
Sec. 2428
Art. VII. The answer in full:
And for answer to the said seventh article respondent denies that on
the said 21st day of February, 1868, at Washington aforesaid, or at any
other time and place, he did unlawfully conspire with the said Thomas
with intent unlawfully to seize, take, or possess the property of the
United States in the Department of War with intent to violate or
disregard the said act in the said seventh article referred to, or that
he did then and there commit a high misdemeanor in office. Respondent,
protesting that the said Stanton was not then and there Secretary for
the Department of War, again refers to his former answers, in so far as
they are applicable, to show the intent with which he proceeded in the
premises, and prays equal benefit therefrom, as if the same were here
again fully repeated. Respondent further takes exception to the
sufficiency of the allegations of this article as to the conspiracy
alleged upon the same grounds as stated in the exception set forth in
his answer to said article fourth.
Art. VIII. The answer in full:
And for answer to the said eighth article this respondent denies that
on the 21st day of February, 1868, at Washington aforesaid, or at any
other time and place, he did issue and deliver to the said Thomas the
said letter of authority set forth in the said eighth article, with the
intent unlawfully to control the disbursements of the money
appropriated for the military service and for the Department of War.
This respondent, protesting that there was a vacancy in the office of
Secretary for the Department of War, admits that he did issue the said
letter of authority, and he denies that the same was with any unlawful
intent whatever, either to violate the Constitution of the United
States or any act of Congress. On the contrary, this respondent again
affirms that his sole intent was to vindicate his authority as
President of the United States, and by peaceful means to bring the
question of the right of the said Stanton to continue to hold the said
office of Secretary of War to a final decision before the Supreme Court
of the United States, as has been hereinbefore set forth; and he prays
the same benefit from his answer in the premises as if the same were
here again repeated at length.
Art. IX. In answer to Article IX the President reviews his
transactions and conversations with General Emory, admits that he
expressed an opinion that the law in question was unconstitutional,
shows that he expressed the same opinion to the House of
Representatives by message, and summarizes:
Respondent doth therefore deny that by the expression of such opinion
he did commit or was guilty of a high misdemeanor in office; and this
respondent doth further say that the said article nine lays no
foundation whatever for the conclusion stated in the said article, that
the respondent, by reason of the allegations therein contained, was
guilty of a high misdemeanor in office.
Art. X. In answer to this article the President does not admit that
the passages set forth as portions of addresses delivered by him
correctly or justly present his speeches, and demands that, in case the
matter set forth in the article is deemed to constitute a high
misdemeanor cognizable by the court, proof shall be required to be made
of the actual speech. He protests that he has not been unmindful of the
high duties of his office, or the harmonies and courtesies proper
between different branches of the Government, or that he has had
designs against the rightful power and authority of Congress; and that
in all his communications to the Congress and the public he has acted
within and according to his right and privilege as a citizen and his
right and duty as President. And in conclusion he says:
And this respondent says that neither the said tenth article nor any
specification thereof nor any allegation therein contained touches or
relates to any official act or doing of this respondent in the office
of President of the United States or in the discharge of any of its
constitutional or legal duties or responsibilities; but said article
and the specifications and allegations thereof, wholly and in every
part thereof, question only the discretion or propriety of freedom of
opinion or freedom of speech, as exercised by this respondent as a
citizen of the United States in his personal right and capacity, and
without allegation or imputation against this respondent of the
violation of any law of the United States touching or
Sec. 2429
relating to freedom of speech or its exercise by the citizens of the
United States, or by this respondent as one of the said citizens or
otherwise; and he denies that by reason of any matter in said article
or its Specifications alleged he has said or done anything indecent or
unbecoming in the Chief Magistrate of the United States, or that he has
brought the high office of the President of the United States into
contempt, ridicule, or disgrace, or that he has committed or has been
guilty of a high misdemeanor in office.
Art. XI. The President denies specifically the charges, standing upon
his right to freedom of speech as set forth in the answer to the
preceding article, and concludes:
And this respondent, further answering the said eleventh article,
denies that by means or reason of anything in said article alleged this
respondent, as President of the United States, did, on the 21st day of
February, 1868, or at any other day or time, commit, or that he was
guilty of, a high misdemeanor in office.
And this respondent, further answering the said eleventh article,
says that the same and the matters therein contained do not charge or
allege the commission of any act whatever by this respondent, in his
office of President of the United States, nor the omission by this
respondent of any act of official obligation or duty in his office of
President of the United States; nor does the said article nor the
matters therein contained name, designate, describe, or define any act
or mode or form of attempt, device, contrivance, or means, or of
attempt at device, contrivance, or means, whereby this respondent can
know or understand what act or mode or form of attempt, device,
contrivance, or means, or of attempt at device, contrivance, or means,
are imputed to or charged against this respondent, in his office of
President of the United States, or intended so to be, or whereby this
respondent can more fully or definitely make answer unto the said
article than he hereby does.
Having answered article by article, the answer concludes:
And this respondent, in submitting to this honorable court this his
answer to the articles of impeachment exhibited against him,
respectfully reserves leave to amend and add to the same from time to
time, as may become necessary or proper, and when and as such necessity
and propriety shall appear.
Andrew Johnson.
Henry Stanbery,
B. R. Curtis,
Thomas A. R. Nelson,
William M. Evarts,
W. S. Groesbeck,
Of Counsel.
Attached to the answer were two exhibits, one being a message
transmitted to the Senate by the President March 2, 1867, wherein the
right of removal of officers was discussed; and the other a message of
December 12, 1867, relating particularly to the case of Mr. Stanton.
2429. President Johnson's impeachment continued.
The answer of President Johnson to the articles of impeachment having
been read, the question was taken on receiving it and placing it on
file.
On the request of the managers the Senate ordered an attested copy of
the answer of President Johnson to be sent to the House.
The answer of President Johnson having been received, the Senate gave
the managers time to consult the House on a replication.
Sec. 2430
The reading of the answer being concluded, the Chief Justice said:\1\
Senators, you have heard the answer submitted by the counsel for the
President of the United States. Those of you who are in favor of
receiving and ordering this answer to be filed will say ``aye,'' and
those who are of the contrary opinion will say ``no.'' [Having put the
question.] It is so ordered; the answer is received and will be filed.
Thereupon Mr. Manager Boutwell presented a request that a copy of the
answer be furnished to the House of Representatives. The Chief Justice
put the question on the motion suggested by the request of the
managers, and it was agreed to, the formal order being:
Ordered, That the managers have time to consult the House of
Representatives on a replication, and that they be furnished with a
copy of the answer of the respondent; and
Ordered, That the Secretary communicate to the House of
Representatives an attested copy of the answer of the President to the
articles of impeachment, together with a copy of the foregoing order.
2430. President Johnson's impeachment continued.
The answer of President Johnson having been read, his counsel offered
a paper, signed by themselves, asking thirty days to prepare for trial.
The managers contended that President Johnson's request for time to
prepare for the trial should have been signed by himself and under
oath.
The managers opposed President Johnson's request for thirty days to
prepare for trial, citing American and English precedents in argument.
The Senate granted to President Johnson a less time than his counsel
asked to prepare for trial.
In granting to President Johnson time to prepare for trial the Senate
intimated that there should be no delays after the beginning of the
trial.
The Senate retired to consider President Johnson's application for
time to prepare for trial.
The proceedings in the Senate consultation chamber during the Johnson
trial appear in the Journal and Globe; but the debates are not given.
(Footnote.)
Thereupon Mr. Evarts, in behalf of the respondent, submitted the
following motion:\2\
To the Senate of the United States sitting as a court of impeachment:
And now, on this 23d day of March, in the year 1868, the counsel for
the President of the United States, upon reading and filing his answer
to the articles of impeachment exhibited against him, respectfully
represent to this honorable court that after the replication shall have
been filed to the said answer, the due and proper preparation of and
for the trial of the cause will require, in the opinion and judgment of
such counsel, that a period of not less than thirty days should be
allowed to the President of the United States and his counsel for such
preparation, and before the said trial should proceed.
Henry Stanbery,
B. R. Curtis,
Thomas A. R. Nelson,
William M. Evarts,
W. S. Groesbeck,
Of Counsel.
-----------------------------------------------------------------------
\1\ Senate Journal, p. 860; Globe supplement, pp. 22, 23.
\2\ Senate Journal, pp. 860, 861; Globe supplement, pp. 23-28.
Sec. 2430
Mr. Manager Logan, on behalf of the House of Representatives, opposed
the motion on the ground that the reasons given were not sufficient,
and that the trial should be hastened because the respondent was
continuing daily in the misuse of power for which he was arraigned. As
to the precedents he said:
In the many trials we have reported in this and other countries this
application has no precedent.
In the case of Judge Chase his application stated, in substance, that
it was not in his power to obtain information respecting facts, alleged
against him to have taken place in Philadelphia and Richmond, in time
to prepare and put in his answer and proceed to trial before the 5th
clay of March then next following; and further that he could not get
his witnesses or counsel nor prepare his answer, at the same time
disclaiming that this was done for delay. This application was sworn to
by the respondent; he was given time, and the facts show that his
answer was filed and his trial had, and he acquitted in five days' less
time than he swore it would take him to prepare for trial.
In Judge Peck's case his application stated his difficulties in
obtaining witnesses, the distance they lived from Washington, the time
it would require them to travel from St. Louis to Washington, the
necessity for copying and obtaining records; that four years had
elapsed since the transpiring of the acts complained of against him.
This application was also sworn to. If the learned counsel remember the
trial of Queen Caroline before the Parliament of Great Britain, when
time was granted for the procurement of evidence the learned attorney-
general then and there protested against this granting of time becoming
a precedent for any future trial, this application being granted merely
through courtesy to the Queen, when witnesses were deemed absolutely
necessary to protect, if possible, her reputation. This application
differs in form and substance from any that our attention has been
directed to, made by the counsel, signed by themselves, and sworn to by
no one.
Mr. Logan in conclusion said:
I presume no man will doubt that if an application of this kind were
made to a court at law the inquiry would be: ``Have you issued your
subpoenas; have you attempted to get your witnesses; have you attempted
to make any preparation to try the cause?'' And if the counsel would
answer that they had made no preparation whatever; that they had issued
no subpoenas; had made no attempt to procure witnesses or get ready for
the trial of the cause, but merely desired time for thought and
reflection, the application would certainly be denied. And against the
granting of this, not made upon the oath of any person, not signed by
the President, and merely intended for the benefit of counsel, we, the
managers, in the name of the House of Representatives and the whole
people of this Republic, do most solemnly protest.
Later Mr. Manager Bingham urged:
I submit that a question of this magnitude has never been decided
upon a mere presentation of a statement of counsel, in this country or
in any country. To speak more plainly, a motion for continuance arising
on a question of this sort, I venture to say, has never been decided
affirmatively upon such an issue on a mere statement of counsel. If
Andrew Johnson, the accused at this bar, has witnesses that were not
within the process of this court up to this day, but whose attendance
he can hope to procure if time be allowed him, he can make affidavit
before this tribunal that they are material and set forth in his
affidavit what he expects to prove by them. I concede that upon such a
showing there would be something upon which the Senate might properly
act.
Mr. Evarts, of counsel for the respondent, said:
In our estimate of the course of this proceeding before this
honorable court we have not yet arrived at a time when it was the duty
of counsel or was at the charge of the accused to know or consider what
the issues were upon which he was to prepare on his side or expect on
the other the production of proofs. Beyond that, we feel no occasion to
present by affidavit to this honorable court a matter so completely
within its cognizance that our time to plead was fixed so as to offer
us but eight working days for that duty of counsel. * * *
It would seem to me that we are placed thus far in the attitude of a
defendant in a civil or in a public prosecution who upon the issue
joined desires time to prepare for trial. The ordinary course in such a
case is that as matter of right, as matter of absolute and universal
custom, one is not required or expected
Sec. 2430
to give any cause of actual obstruction and difficulty in reference to
a continuance to what is the term of the court, doubtless in most cases
to occur within a brief period after the issue is joined. This court
having no such arrangement and no such possible arrangement of its
affairs in advance, we are obliged at each stage of regular proceeding
to ask your attention as to what you will provide and consider in the
particular case is, according to the general nature of the procedure
and the understood attitude of both parties to it, a just and
reasonable proposition to be made by us as to the time that should be
allowed for the preparation in all respects for this trial after the
issue shall have been joined.
At the conclusion of the discussion between the managers and the
counsel for the respondent Mr. John B. Henderson, a Senator from
Missouri, moved that the application of counsel for the respondent be
postponed until after the filing of the replication. This motion was
disagreed to, yeas 25, nays 28.
The question then recurring on granting the application of counsel
for the respondent, it was denied, yeas 12, nays 41.
Thereupon Mr. Evarts, counsel for the respondent, submitted the
following:
The counsel for the President now move that there be allowed for the
preparation of the President of the United States for the trial, after
the replication shall be filed and before the trial shall be required
to proceed, such reasonable time as shall now be fixed by the Senate.
Pending its consideration the Senate adjourned until the next day,
March 24. When it convened on that day \1\ for the trial the
replication of the House of Representatives was filed, and then the
consideration of the application for time was resumed. In answer to the
request of counsel for the respondent, Mr. Reverdy Johnson, of
Maryland, a Senator, proposed the following:
Ordered, That the Senate proceed to the trial of the President under
the articles of impeachment exhibited against him at the expiration of
ten days from this day, unless for causes shown to the contrary.
To this Mr. Charles Sumner, of Massachusetts, a Senator, proposed an
amendment, which he subsequently withdrew, striking out all after the
word ordered and inserting:
Now that replication has been filed, the Senate, adhering to its rule
already adopted, will proceed with the trial from day to day (Sundays
excepted) unless otherwise ordered on reason shown.
Pending consideration, the Senate voted, yeas 29, nays 23, to retire
for consultation, \2\ and being called to order in their conference
chamber, Mr. Johnson modified his order to read as follows:
Ordered, That the Senate will commence the trial of the President
upon the articles of impeachment exhibited against him on Thursday, the
2d of April.
On motion of Mr. Sumner, and by a vote of yeas 28, nays 24, this
order was amended by striking out ``Thursday, the 2d of April,'' and
inserting ``Monday, the 30th of March instant.''
A proposition to suspend consideration of the subject until the
managers had opened their case and submitted their evidence, was
presented by Mr. George H. Williams, of Oregon, but was disagreed to,
yeas 9, nays 42.
On motion of Mr. Thomas A. Hendricks, of Indiana, and without
division, the order proposed by Mr. Johnson was further amended by
adding the words--
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 862-864; Globe supplement, pp. 28, 29.
\2\ The proceedings in the consultation chamber appear both in the
Journal and Globe. (Globe Journal, p. 863; Globe supplement, p. 28.)
Sec. 2431
and proceed therein with all convenient dispatch, under the rules of
the Senate sitting upon the trial of an impeachment.
The order as amended was then agreed to; and the Senate having
returned to their Chamber, the Chief Justice informed the counsel for
the respondent that the Senate had agreed upon an order in response to
their application, as follows:
Ordered, That the Senate will commence the trial of the President
upon the articles of impeachment exhibited against him on Monday, the
30th of March instant, and proceed therein with all convenient
dispatch, under the rules of the Senate sitting upon the trial of an
impeachment.
2431. President Johnson's impeachment continued.
The form of President Johnson's answer was commented on during
preparation of the replication in the House.
Argument as to whether or not a demurrer is permissible in an
impeachment case.
Comment on the use of the phrase ``all the people'' in the pleadings
in an impeachment case.
Form of resolutions adopting the replication in the Johnson trial and
directing its presentation in the Senate.
In the House, on March 23,\1\ Mr. George S. Boutwell, of
Massachusetts, from the managers, reported a form of replication. In
reporting it he said:
The attention of the managers was called to the peculiar form of the
answer filed by the President. To most of the articles, however, he
makes answer, in substance, that he is not guilty, although the form of
the answer is different from that which has generally been employed in
similar cases. In respect to some of the articles the answer probably
amounts to a demurrer merely. But upon the whole the managers have
chosen to treat the answer of the President to each and every article
as a plea of the general issue of not guilty. And the managers are of
opinion that no advantage can be taken, as against the House of
Representatives, from the form of replication which has been reported
by the managers.
Mr. George W. Woodward, of Pennsylvania, criticising the demurrer,
said:
If I understood the answer of the President to the eleventh article
of impeachment, it amounts to a demurrer to that article. It denies
that there is any impeachable offense charged in the eleventh article.
My own private opinion is that the demurrer or answer is very
conclusive. I do not think there is any impeachable offense charged in
the eleventh article.
The answer of the President putting that point in issue, which is a
legal question and amounts to a demurrer, there should be a special
replication to that part of the answer which relates to the eleventh
article, or a formal rejoinder in demurrer. This general replication
does not join an issue upon that article at all; it is what might be
called a departure in pleading. Here is a demurrer to the eleventh
article which denies that any impeachable offense is charged in it. The
managers do not aver in the replication that the eleventh article
charges any impeachable offense, and therefore there is no issue upon
the record upon that article.
To this Mr. John A. Bingham, of Ohio, replied:
Now, as to the answer of the President, I beg leave to call the
attention of the House and the attention of the gentleman from
Pennsylvania [Mr. Woodward] to the fact that while it does contain much
that is argumentative, much that may be called demurrer, which is never
allowed at all in an impeachment case, which was never introduced into
the proceedings of an impeachment case--for there never was a demurrer
entertained by the Senate in an impeachment case, none ever entertained
in the House of Lords of England; there is no such note of record; it
does not lie; special pleading is unknown to the whole proceeding--yet
this answer of the President to the eleventh article of impeachment, in
its
-----------------------------------------------------------------------
\1\ House Journal, pp. 564, 566; Globe, pp. 2073-2075, 2078-2081.
Sec. 2432
last clause, does expressly deny, and is therefore simply a plea of not
guilty--it expressly denies that he committed a crime. As to form, it
is nothing; substance is everything.
Mr. Fernando Wood, of New York, objected to the language of the
replication, in that it professed to reply in the name of all the
people of the United States; but Mr. Benjamin F. Butler, of
Massachusetts, replied that this form, using the words ``all the
people'' had been in use five hundred years, and had been questioned
only once, in the days of Charles I.
The replication was agreed to on March 24 by a vote of yeas 116, nays
36, whereby the House--
Resolved, That the House hereby adopts the replication to the answer
of the President, as now submitted by the managers.
Thereupon, on motion of Mr. Boutwell, the following was agreed to:
Resolved, That a message be sent to the Senate by the Clerk of the
House informing the Senate that the House of Representatives has
adopted a replication to the answer of the President of the United
States on the articles of impeachment exhibited against him, and that
the same will be presented to the Senate by the managers on the part of
the House.
2432. President Johnson's impeachment continued.
The replication of the House to President Johnson's answer to the
articles of impeachment.
The replication in the Johnson trial was signed by the Speaker and
attested by the Clerk.
The Senate ordered that an authenticated copy of the replication to
President Johnson's answer be furnished to counsel of the respondent.
On March 24 \1\ in the Senate sitting for the trial, the message
authorized by the resolution was received, and immediately upon its
being laid before the Senate, Mr. Manager Boutwell presented the
replication:
In the House of Representatives,
United States, March 24, 1868.
Replication by the House of Representatives of the United States to the
answer of Andrew Johnson, President of the United
States, to the articles of impeachment exhibited
against him by the House of Representatives.
The House of Representatives of the United States have considered the
several answers of Andrew Johnson, President of the United States, to
the several articles of impeachment against him by them exhibited in
the name of themselves and of all the people of the United States, and
reserving to themselves all advantage of exception to the insufficiency
of his answer to each and all of the several article of impeachment
exhibited against said Andrew Johnson, President of the United States,
do deny each and every averment in said several answers, or either of
them, which denies or traverses the acts, intents, crimes, or
misdemeanors charged against said Andrew Johnson in the said articles
of impeachment, or either of them; and for replication to said answer
do say that said Andrew Johnson, President of the United States, is
guilty of the high crimes and misdemeanors mentioned in said articles,
and that the House of Representatives are ready to prove the same.
Schuyler Colfax,
Speaker of the House of Representatives.
Edward McPherson,
Clerk of the House of Representatives.
-----------------------------------------------------------------------
\1\ Senate Journal, p. 862; Globe Supplement, p. 28.
Sec. 2433
Thereupon, on motion of Mr. Reverdy Johnson, of Maryland, a Senator,
it was:
Ordered, That the Secretary of the Senate be directed to furnish the
counsel of the President an authenticated copy of the replication of
the House of Representatives to the answer of the President to the
articles of impeachment exhibited against him by the House of
Representatives.
2433. President Johnson's impeachment continued.
The opening addresses of managers and counsel in the Johnson trial.
The opening addresses in the Johnson trial discussed constitutional
questions and outlined evidence.
Definition of impeachable offenses by counsel for President Johnson.
By consent the managers in the Johnson trial reserved the right to
supply omissions in evidence after they had closed their testimony.
On motion of counsel for President Johnson, the Senate adjourned over
to permit time for preparation of testimony for the defense.
On March 30,\1\ the day set for the commencement of the trial, the
Senate assembled and the proceedings began with the usual proclamation
and ceremonies. The journal having been read, the Chief Justice said:
Gentlemen, managers of the House of Representatives, you will now
proceed in support of the articles of impeachment.
Mr. Manager Benjamin F. Butler then opened the case for the managers,
speaking nearly three hours, and touching on the following topics: (a)
What are impeachable offenses, antagonizing the view that only
indictable offenses are impeachable; (b) whether or not the Senate sat
as a court, taking the view that it did not; (c) and a review of the
issues presented by the articles and the reply, with arguments in
support of the articles. Mr. Butler also presented a brief of the
authorities upon the law of impeachable crimes and misdemeanors,
prepared by Mr. William Lawrence, of Ohio, and revised by himself.\2\
Then the managers proceeded with the testimony, Mr. Manager James F.
Wilson proceeding first with certain documentary evidence. The
presentation of testimony, documentary and oral, continued until
Saturday, April 4,\3\ when it was announced on behalf of the managers
that the case on behalf of the House of Representatives was
substantially closed, but that in looking over their testimony they
might find some omissions which they might wish to supply, and
therefore they did not wish to be precluded from offering them. The
counsel for the President announced that they took no exception to this
reservation.
Thereupon Mr. Benjamin R. Curtis, of Massachusetts, of counsel for
the President, announced that they desired time for preparation of
their testimony, and therefore he would move that ``when this court
adjourns, it adjourn to Thursday next.'' \4\
Thereupon Mr. John Conness, a Senator from California, moved that the
Senate sitting for the trial should adjourn until Wednesday. Mr.
Reverdy Johnson, a
-----------------------------------------------------------------------
\1\ Senate Journal, p. 865; Globe supplement, pp. 29-53.
\2\ Globe supplement, pp. 41-50.
\3\ Senate Journal, pp. 882, 893; Globe supplement, p. 121.
\4\ It will be observed that this was merely an adjournment of the
Senate sitting for the trial and therefore not governed by the rule of
the Constitution. The Senate itself in its legislative capacity was in
session during intervening days.
Sec. 2434
Senator from Maryland, moved an amendment substituting Thursday for
Wednesday, and it was agreed to, yeas 37, nays 10. Then the motion as
amended was agreed to.
At the reconvening on April 9, the managers occupied a brief time in
presenting additional evidence, after which Mr. Benj. R. Curtis, of
counsel for the President, opened the defense, speaking the remainder
of this day and concluding on April 10.\1\ He first reviewed the issues
presented by the articles and the answer, and then argued (a) that
impeachable offenses were ``only high criminal offenses against the
United States, made so by some law of the United States existing when
the acts complained of were done;'' and (b) that the Senate, in trying
an impeachment, was a court.
At the conclusion of Mr. Curtis's opening the presentation of
testimony on behalf of the respondent was begun, and proceeded from day
to day until April 18,\2\ when Mr. William M. Evarts, of counsel,
announced that the defense had concluded its testimony, but would
reserve the privilege to offer proof that might have been overlooked
because of the illness of Mr. Stanbery, to whom had been intrusted the
examination of witnesses.
2434. President Johnson's impeachment continued.
The order of the final arguments in the trial of President Johnson.
Disorder occurring in the galleries during the Johnson trial, they
were cleared.
On April 20 \3\ the managers introduced certain verbal and
documentary evidence, after which, on April 23, the Senate, after
consideration, agreed to \4\ the following:
Ordered, That as many of the managers as desire to do so be permitted
to file arguments or to address the Senate orally; but the conclusion
of the oral argument shall be by one manager, as provided in the
twenty-first rule.
Thereupon Mr. John A. Logan, on behalf of the managers, and in
accordance with the above rule, filed an argument.\5\ On the same day
Mr. Manager George S. Boutwell began an oral argument, which he
concluded on the succeeding day.\6\ Thereupon Mr. Thomas A. R. Nelson,
of counsel for the respondent, began an argument in defense, which he
concluded on the succeeding day, April 24.\7\
On April 25,\8\ after the consideration of business relative to
course of procedure in passing judgment, Mr. William S. Groesbeck,
counsel for the President, continued argument for the defense,
concluding on that day.
On Monday, April 27, Mr. Manager Thaddeus Stevens argued for the
managers.\9\ He was followed on the same day by Mr. Manager Thomas
Williams, who concluded on the next day.\10\
-----------------------------------------------------------------------
\1\ Senate Journal, p. 885; Globe supplement, pp. 123-136.
\2\ Senate Journal, p. 914; Globe supplement, p. 238.
\3\ Senate Journal, p. 914; Globe supplement, p. 239.
\4\ Senate Journal, p. 921; Globe supplement, p. 251.
\5\ Journal, p. 921; Globe supplement, pp. 251-268.
\6\ Journal, p. 921; Globe supplement, pp. 268-286.
\7\ Journal, p. 922; Globe supplement, pp. 286-310.
\8\ Senate Journal, p. 924; Globe supplement, pp. 310-320.
\9\ Senate Journal, p. 925; Globe supplement, pp. 320-324.
\10\ Senate Journal, pp. 925, 926; Globe supplement, pp. 324-335.
Sec. 2435
At the conclusion of Mr. Williams's address, Mr. Manager Benjamin F.
Butler asked and obtained leave of the Senate,\1\ by unanimous consent,
to make ``a short narration of facts, made necessary by what fell from
Mr. Nelson, of counsel for the President, in his speech of Friday
last.'' Mr. Nelson, also by unanimous consent, was permitted to reply.
On April 28,\2\ Mr. William M. Evarts, counsel for the respondent,
then began argument for the defense, which he continued daily until May
1, when he concluded. On the same day Mr. Henry Stanbery began the
concluding argument for the defense, finishing on May 2.\3\
On May 4, 5, and 6,\4\ Mr. Manager John A. Bingham made the
concluding argument for the managers.
At the conclusion of Mr. Bingham's address \5\ there were in the
gallery applause and hisses, whereupon, on motion of Mr. James W.
Grimes, of Iowa, it was--
Ordered, That the Sergeant-at-Arms be directed to clear the
galleries.
In obedience to this order the galleries were completely cleared.
Later the galleries were ordered by the Senate to be reopened.
2435. President Johnson's impeachment continued.
Being excluded from the Johnson trial by a secret session, the House
returned to its Hall and determined to attend again when informed that
the Senate was ready to receive them.
Shortly after, on motion of Mr. George F. Edmunds, of Vermont, the
doors of the Senate were closed for deliberation. The House of
Representatives consequently returned to their Chamber,\6\ and, the
Speaker having resumed the chair, a question was raised as to the
course of procedure.
The Speaker \7\ had read the rule under which the House was acting:
Resolved, That on the days when the Senate shall sit for the trial of
the President upon the articles of impeachment exhibited by the House
of Representatives the House, in Committee of the Whole, will attend
with the managers at the bar of the Senate at the hour named for the
commencement of the proceedings.
and then ruled:
The Chair rules that under this resolution, the Senate having gone
into secret session in their own Chamber for deliberation, and it being
impossible for the managers and the House as in the Committee of the
Whole to attend at the bar of the Senate, it is the duty of the House
to return to its Hall, and here, as the House of Representatives, to
transact business while waiting for any message from the Senate after
the doors of that body have been reopened. * * * The Chair took some
time to examine this resolution, and after consultation with others who
are excellent parliamentarians he has no doubt of the fact in his own
mind that while the Senate is engaged in secret deliberation for one or
four and twenty hours it could not be expected or required of the House
to remain in the Senate corridors, and the Speaker, as representing the
House, could not consent to it without the direct order of the House.
The Chair therefore thinks, the order having been made before the House
proceeded to the Senate,
-----------------------------------------------------------------------
\1\ Senate Journal, p. 926; Globe supplement, pp. 335, 336.
\2\ Senate Journal, pp. 926-930; Globe supplement, pp. 337-368.
\3\ Senate Journal, p. 930; Globe supplement, pp. 368-379.
\4\ Senate Journal, pp. 931, 932; Globe supplement, pp. 379-406.
\5\ Senate Journal, pp. 932, 933; Globe supplement, pp. 406, 407.
\6\ House Journal, pp. 655, 656; Globe, pp. 2365, 2368.
\7\ Schuyler Colfax, of Indiana, Speaker.
Sec. 2436
that when the House returns business should be transacted; and the
Senate having excluded the House from its Chamber, as it has a right to
do under its rules, the House must therefore return to the Hall and
await a message from the Senate.
Thereupon the Speaker recognized Mr. Elihu B. Washburne, chairman of
the Committee of the Whole, who reported:
The Committee of the Whole have, according to order, attended the
managers to the bar of the Senate, sitting as a court of impeachment
for the trial of Andrew Johnson; and the argument having been closed
and the Senate having ordered its doors to be shut for deliberation,
the committee thereupon returned with the managers to the Hall of the
House.
The Speaker appears to have sent a letter to the Senate asking that
the House might be notified when the doors should be opened. This must
have been done informally by the Speaker, but the Chief Justice laid it
before the Senate, whereupon it was-- \1\
Ordered, That the Secretary inform the House of Representatives that
the Senate, sitting for the trial of the President upon articles of
impeachment, will notify the House when it is ready to receive them at
the bar.
2436. President Johnson's impeachment continued.
The Senate declined to make public its debates in secret session on
the final judgment in the Johnson trial.
After the doors of the Senate had been closed,\2\ it resumed
consideration of this resolution, which had been proposed by Mr. George
F. Edmunds, of Vermont, on April 24:
Ordered, That after the arguments shall be concluded, and when the
doors shall be closed for deliberation upon the final question the
official reporters of the Senate shall take down the debates upon the
final question, to be reported in the proceedings.
This order, with pending amendments relating to restriction of
debate, was laid on the table by a vote of 28 yeas, 20 nays.\3\
2437. President Johnson's impeachment continued.
The Senate adopted an order governing its deliberations and voting on
the final question in the Johnson trial.
Deliberation having been had in secret session, the Senate voted on
the articles of impeachment without debate.
While the deliberations on the final question in the Johnson trial
were secret, the Senators were permitted to file written opinions.
Thereupon the Senate proceeded to consider \4\ a proposition
originally submitted by Mr. Charles Sumner, of Massachusetts, on April
24:
Ordered, That the Senate, sitting for the trial of Andrew Johnson,
President of the United States, will proceed to vote on the several
articles of impeachment at 12 o'clock on the day after the close of the
arguments.
After propositions to amend had been considered, the order was laid
on the table, and then, after further consideration, the Senate,
without division, agreed to the following, proposed by Mr. Justin S.
Morrill, of Vermont:
-----------------------------------------------------------------------
\1\ Senate Journal, p. 933; Globe supplement, p. 408.
\2\ Senate Journal, p. 933; Globe supplement, pp. 294, 407.
\3\ While the debates were not taken down, a statement of what was
done in the secret session appears in the Journal and Globe. (Senate
Journal, pp. 933-940; Globe supplement, pp. 407-410.)
\4\ Senate Journal, pp. 934-937; Globe supplement, pp. 408, 409.
Sec. 2438
Ordered, That when the Senate adjourns to-day, it adjourn to meet on
Monday next, at 11 o'clock a.m., for the purpose of deliberation, under
the rules of the Senate, sitting on the trial of impeachments, and that
on Tuesday next following, at 12 o'clock m., the Senate shall proceed
to vote without debate on the several articles of impeachment; and each
Senator shall be permitted to file within two days after the vote shall
have been so taken his written opinion, to be printed with the
proceedings.
2438. President Johnson's impeachment continued.
Having disagreed as to the form of final question in the Johnson
trial, the Senate left it to the Chief Justice.
On May 7 \1\ the Senate proceeded to the consideration of the form in
which the question should be put, and various propositions were
offered, as follows, for amendment to the rules:
By Mr. Charles Sumner, of Massachusetts:
Rule 23. In taking the votes of the Senate on the articles of
impeachment, the Presiding Officer shall call each Senator by his name,
and upon each article propose the following question, in the manner
following: ``Mr. ------, how say you, is the respondent, ------, guilty
or not guilty, as charged in the ------ article of impeachment?''
whereupon each Senator shall rise in his place and answer ``guilty'' or
``not guilty.''
At the suggestion of Mr. Roscoe Conkling, of New York, Mr. Sumner
modified this by striking out the words ``as charged in'' and inserting
``of a high crime or misdemeanor (as the case may be) within.''
Mr. Charles R. Buckalew, of Pennsylvania, proposed to amend by
changing the form of question to the following, which Mr. Sumner
accepted:
Mr. ------, how say you, is the respondent, Andrew Johnson, President
of the United States, guilty or not guilty of a high crime or
misdemeanor (as the case may be) as charged in the article of
impeachment?
Mr. John Conness, of California, proposed to amend by substituting
for the latter portion of Mr. Sumner's proposition, the following:
Each of the articles Nos. 1, 2, 3, 4, 5, 7, 8, 9, 10, and 11 propose
the following question in the manner following: Mr. Senator, how say
you, is the respondent, Andrew Johnson, President of the United States,
guilty or not guilty of a high crime or misdemeanor as charged in this
article? And upon each of the articles Nos. 4 and 6 he shall propose
the following question: Mr. Senator, how say you, is the respondent,
Andrew Johnson, President of the United States, guilty or not guilty of
a high crime charged in this article? Whereupon each Senator shall rise
in his place and answer ``guilty'' or ``not guilty.''
After voting on an amendment proposed by Mr. Thomas A. Hendricks, of
Indiana, which provided for voting separately on the several clauses of
the eleventh article, the whole subject was, on motion of Mr. Sumner,
laid on the table by a vote of, yeas 24, nays 11.
Thereupon, and as appeared later, after an understanding that the
Chief Justice should propose a rule, the Senate adjourned to Monday,
May 11.
2439. President Johnson's impeachment continued.
Views of the Chief Justice on form of final question in the Johnson
trial and on division of the articles for voting.
In the Johnson trial the Senate adopted the form of final question
and method of voting suggested by the Chief Justice.
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 937, 938; Globe supplement, p. 409.
Sec. 2439
On May 11 \1\ the Chief Justice presented the following views, which
were ordered to be entered on the Journal:
Senators: In conformity with what seemed to be the general wish of
the Senate when it adjourned last Thursday, the Chief Justice, in
taking the vote on the articles of impeachment, will adopt the mode
sanctioned by the practice in the cases of Chase, Peck, and Humphreys.
He will direct the Secretary to read the several articles
successively, and after the reading of each article will put the
question of guilty or not guilty to each Senator, rising in his place,
in the form used in the case of Judge Chase:
``Mr. Senator ------, how say you, is the respondent, Andrew Johnson,
President of the United States, guilty or not guilty of a high
misdemeanor, as charged in this article?''
In putting the question on articles 4 and 6, each of which charges a
crime, the word ``crime'' will be substituted for the word
``misdemeanor.''
The Chief Justice has carefully considered the suggestion of the
Senator from Indiana [Mr. Hendricks], which appeared to meet the
approval of the Senate, that in taking the vote on the eleventh
article, the question should be put on each clause, and has found
himself unable to divide the article as suggested. The article charges
several facts, but they are so connected that they make but one
allegation, and they are charged as constituting one misdemeanor.
The first fact charged is, in substance, that the President publicly
declared in August, 1866, that the Thirty-ninth Congress was a Congress
of only part of the States and not a constitutional Congress, intending
thereby to deny its constitutional competency to enact laws or propose
amendments of the Constitution; and this charge seems to have been made
as introductory, and as qualifying that which follows, namely, that the
President, in pursuance of this declaration, attempted to prevent the
execution of the tenure of office act by contriving and attempting to
contrive means to prevent Mr. Stanton from resuming the functions of
Secretary of War after the refusal of the Senate to concur in his
suspension, and also by contriving and attempting to contrive means to
prevent the execution of the appropriation act of March 2, 1867, and
also to prevent the execution of the rebel States governments act of
the same date.
The gravamen of the article seems to be that the President attempted
to defeat the execution of the tenure of office act, and that he did
this in pursuance of a declaration which was intended to deny the
constitutional competency of Congress to enact laws or propose
constitutional amendments, and by contriving means to prevent Mr.
Stanton from resuming his office of Secretary, and also to prevent the
execution of the appropriation act and the rebel States governments
act.
The single substantive matter charged is the attempt to prevent the
execution of the tenure of office act; and the other facts are alleged
either as introductory and exhibiting this general purpose, or as
showing the means contrived in furtherance of that attempt.
This single matter, connected with the other matters previously and
subsequently alleged, is charged as the high misdemeanor of which the
President is alleged to have been guilty.
The general question, guilty or not guilty of a high misdemeanor as
charged, seems fully to cover the whole charge, and will be put as to
this article as well as to the others, unless the Senate direct some
mode of division.
In the tenth article the division suggested by the Senator from New
York [Mr. Conkling] may be more easily made. It contains a general
allegation, to the effect that on the 18th of August, and on other
days, the President, with intent to set aside the rightful authority of
Congress and bring it into contempt, delivered certain scandalous
harangues, and therein uttered loud threats and bitter menaces against
Congress and the laws of the United States enacted by Congress, thereby
bringing the office of President into disgrace, to the great scandal of
all good citizens, and sets forth, in three distinct specifications,
the harangues, threats, and menaces complained of.
In respect to this article, if the Senate sees fit so to direct, the
question of guilty or not guilty of the facts charged may be taken in
respect to the several specifications, and the question of guilty or
not guilty of a high misdemeanor, as charged in the article, can also
be taken.
The Chief Justice, however, sees no objection to putting the general
question on this article in the same manner as on the others; for,
whether the particular questions be put on the specifications
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 938-940; Globe supplement, pp. 409, 410.
Sec. 2440
or not, the answer to the final question must be determined by the
judgment of the Senate, whether or not the facts alleged in the
specifications have been sufficiently proved, and whether, if
sufficiently proved, they amount to a high misdemeanor within the
meaning of the Constitution.
On the whole, therefore, the Chief Justice thinks that the better
practice will be to put the general question on each article without
attempting to make any subdivision, and will pursue this course if no
objection is made. He will, however, be pleased to conform to such
directions as the Senate may see fit to give in this respect.
On motion of Mr. Charles Sumner, of Massachusetts, it was
Ordered, That the questions be put as proposed by the presiding
officer of the Senate, and each Senator shall rise in his place and
answer ``guilty'' or ``not guilty'' only.
2440. President Johnson's impeachment continued.
Form of voting in the Senate on the final question in the trial of
President Johnson.
In the Johnson trial the Senate voted on the articles in an order
different from the numerical order.
By direction of the Senate the Chief Justice announced the result
after the vote on each article in the Johnson trial.
The House in Committee of the Whole attended in the Senate during the
voting on the final question in the Johnson trial.
On May 12,\1\ the day set for voting on the articles of impeachment,
the illness of a Senator caused the voting to be postponed to May 16.
On that day the Chief Justice took his seat at the hour of 12 o'clock,
the usual proclamation was made by the Sergeant-at-Arms, etc., and
then, on motion of Mr. George F. Edmunds, of Vermont, it was--
Ordered, That the Secretary be directed to inform the House of
Representatives that the Senate, sitting for the trial of the President
upon articles of impeachment, is now ready to receive them in the
Senate Chamber.
Soon thereafter the Sergeant-at-Arms announced the presence of the
House of Representatives at the bar, and the Members of the House of
Representatives, as in Committee of the Whole, preceded by Mr. E. B.
Washburne, chairman of that committee, and accompanied by the Speaker
and Clerk, appeared and were conducted to the seats provided for them.
Thereupon, by a vote of yeas 34, nays 19, the Senate agreed to the
following order, offered by Mr. George H. Williams, of Oregon:
Ordered, That the Chief Justice, in directing the Secretary to read
the several articles of impeachment, shall direct him to read the
eleventh article first, and the question shall then be taken on that
article, and thereafter the other ten successively as they stand.
Then, on motion of Mr. Edmunds, it was \2\--
Ordered, That the Senate now proceed to vote upon the articles,
according to the rules of the Senate.
Thereupon the Chief Justice directed the reading of the eleventh
article, which being done, the following procedure occurred:
The Chief Justice. Call the roll.
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 941, 942; Globe supplement, p. 411.
\2\ Senate Journal, pp. 942-945; Globe supplement, p. 411.
Sec. 2441
The Chief Clerk called the name of Mr. Anthony.
Mr. Anthony rose in his place.
The Chief Justice. Mr. Senator Anthony, how say you? Is the
respondent, Andrew Johnson, President of the United States, guilty or
not guilty of a high misdemeanor, as charged in this article?
Mr. Anthony. Guilty.
[This form was continued in regard to each Senator as the roll was
called alphabetically, each rising in his place as his name was called
and answering ``guilty'' or ``not guilty.'' When the name of Mr. Grimes
was called, he being very feeble, the Chief Justice said he might
remain seated. He, however, with the assistance of friends, rose and
answered. The Chief Justice also suggested to Mr. Howard that he might
answer in his seat, but he preferred to rise.]
The Chief Justice did not vote.
Immediately upon the vote being completed, a motion for a recess was
made and disagreed to, whereupon a motion was made to adjourn. Mr.
Reverdy Johnson, of Maryland, asked if it was in order for the Senate
to adjourn while pronouncing judgment.
The Chief Justice said:
The precedents seem to be, except in one case, and that is the case
of Humphreys, that the announcement be not made by the presiding
officer until after the vote has been taken on all the articles. The
Chair will, however, take the direction of the Senate. If they desire
the announcement of the vote which has been taken to be now made he
will make it.
It being the general opinion of the Senate that the announcement be
made, the Chief Justice said:
Upon this article thirty-five Senators vote ``guilty,'' and nineteen
Senators vote ``not guilty.'' Two-thirds not having pronounced guilty,
the President is, therefore, acquitted upon this article.
2441. President Johnson's impeachment continued.
The Senate, overruling the Chief Justice, decided that a motion to
adjourn over was in order during the voting on the articles in the
Johnson trial.
After voting on one article in the Johnson trial, the Senate
adjourned to a day fixed.
Thereupon the question recurred on the motion, made by Mr. George H.
Williams, of Oregon, that the Senate adjourn until Tuesday, the 26th
instant.
Mr. Thomas A. Hendricks, of Indiana, made the point of order that as
the Senate was engaged in executing an order, any motion except the
simple motion to adjourn was not in order.
The Chief Justice ruled \1\ --
A motion that when the Senate adjourns it adjourn to meet at a
certain day could not now be entertained, because the Senate is in
process of executing an order. A motion to adjourn to a certain day
seems to the Chair to come under the same rule. He will, therefore,
decide the motion not to be in order.
Mr. John Conness, of California, having appealed, the decision of the
Chair was overruled, yeas 24, nays 30.\2\
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\1\ Globe supplement, p. 412.
\2\ On May 26, on the same question, the Chief Justice decided as he
had first decided, and was again overruled, 35 to 18. (Globe
supplement, p. 414.)
Sec. 2442
Thereupon the question recurred on the motion of Mr. Williams, which
was agreed to, yeas 32, nays 21, after several amendments proposing a
different day had been disagreed to.
2442. President Johnson's impeachment continued.
The Senate, overruling the Chief Justice, held in order a motion to
rescind its rule governing the voting on the articles of impeachment in
the Johnson trial.
The Senate rescinded its order prescribing the method of voting on
the articles in the Johnson trial, although it was partially executed.
On May 26,\1\ after the Senate had assembled in the usual form, and
after the House of Representatives, informed by message, had attended,
Mr. George H. Williams, of Oregon, offered the following:
Resolved, That the resolution heretofore adopted as to the order of
reading and voting upon the articles of impeachment be rescinded.
Mr. Charles R. Buckalew, of Pennsylvania, having objected, the Chief
Justice held:
The Chief Justice is under the impression that it changes the rule,
and he will state the case to the Senate, in order that the Senate may
correct him if he is wrong. The twenty-second rule of the Senate
provides that--
``On the final question, whether the impeachment is sustained, the
yeas and nays shall be taken on each article of impeachment
separately.''
That necessarily implies that they be taken in their order unless it
is otherwise prescribed by the Senate. Subsequently the framing of a
question to be addressed to the Senators was left to the Chief Justice,
and he stated the views which seemed to him proper to be observed. In
the course of that statement he said that ``he will direct the
Secretary to read the articles successively, and after the reading of
each article will put the question of guilty or not guilty to each
Senator, rising in his place, in the form used in the case of Judge
Chase,'' and then stated the form.
After the statement was made--
``Mr. Sumner submitted the following order; which was considered by
unanimous consent, and agreed to:
``Ordered, That the questions be put as proposed by the presiding
officer of the Senate, and each Senator shall rise in his place and
answer guilty or not guilty, only.''
That was the order under which the Senate was acting until on the
16th of May the Senate adopted the following order moved by the Senator
from Oregon [Mr. Williams]:
``Ordered, That the Chief Justice, in directing the Secretary to read
the several articles of impeachment, shall direct him to read the
eleventh article first, and the question shall then be taken on that
article, and thereafter the other ten successively as they stand.''
This order changing the rule was in order on the 16th of May, having
been voted some days before. Subsequently, after the House had been
notified that the Senate was ready to receive them, the Senator from
Vermont [Mr. Edmunds] moved--
``That the Senate do now proceed to vote upon the articles according
to the order of the Senate just adopted.''
The Senate proceeded to vote upon the eleventh article, and after
that adjourned until to-day. The present motion is to change the whole
of these orders, for changing only the order of the 16th will not reach
the effect intended. It must change, also, the order adopted on the
motion of the Senator from Massachusetts [Mr. Sumner], and also, as the
Chief Justice conceives, the rule. He is of opinion, therefore, that a
single objection will take it over this day, but will submit the
question directly to the Senate without undertaking to decide it, as it
is a matter which relates especially to the present order of business.
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\1\ Senate Journal, p. 946; Globe supplement, p. 413.
Sec. 2443
The Senate, by a vote of yeas 29, nays 25, decided that the motion
was in order. A second point of order, made by Mr. Lyman Trumbull, of
Illinois, that an order partially executed might not be rescinded, was
also overruled, yeas 24, nays 30.
After propositions to amend and to adjourn had been disagreed to, the
motion of Mr. Williams was agreed to.
2443. President Johnson's impeachment continued.
Having voted on three of the eleven articles, the Senate sitting for
the trial of President Johnson adjourned without day.
Before announcing the adjournment voted by the Senate, the Chief
Justice directed the Clerk to enter a judgment of acquittal of
President Johnson.
Form of acquittal entered in the Journal of the trial of President
Johnson.
The acquittal of President Johnson was announced in the House through
the report of the chairman of the Committee of the Whole.
Thereupon, on motion of Mr. Williams, the Senate decided to proceed
to vote on the second article of impeachment.\1\ And the second article
having been read, the question was put in the prescribed form, and the
Chief Justice announced:
Thirty-five Senators have pronounced the respondent, Andrew Johnson,
President of the United States, guilty; nineteen have pronounced him
not guilty. Two-thirds not having pronounced him guilty, he stands
acquitted upon this article.
In a similar manner the Senate determined to vote on the third
article, and the vote having been taken, and having resulted 35 guilty
and 19 not guilty, the acquittal was pronounced as before.
Thereupon Mr. William moved--
That the Senate, sitting for the trial of the President upon the
articles of impeachment, do now adjourn without day.\2\
And there appeared yeas 34, nays 4.
Before announcing the result the Chief Justice said:
The Chief Justice begs leave to remind the Senate that the twenty-
second rule provides that ``if the impeachment shall not, upon any of
the articles presented, be sustained by the votes of two-thirds of the
members present, a judgment of acquittal shall be entered.'' * * * The
Clerk will enter, if there be no objection, a judgment according to the
rules--a judgment of acquittal.
And the Journal has this entry:
The Senate having tried Andrew Johnson, President of the United
States, upon articles of impeachment exhibited against him by the House
of Representatives, and two-thirds of the Senators present not having
found him guilty of the charges contained in the second, third, and
eleventh articles of impeachment, it is therefore
Ordered and adjudged, That the said Andrew Johnson, President of the
United States, be, and he is, acquitted of the charges in said articles
made and set forth.
The Chief Justice then announced the vote on the motion of Mr.
Williams to be yeas 34, nays 16; and thereupon declared the Senate,
sitting as a court of impeachment for the trial of Andrew Johnson,
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 948, 950; Globe supplement, pp. 414, 415.
\2\ Senate Journal, pp. 950, 951; Globe supplement, p. 415.
Sec. 2443
President of the United States, upon articles of impeachment exhibited
against him by the House of Representatives, adjourned without day.
After this adjournment the House of Representatives returned to their
Hall, and the Speaker having resumed the chair, Mr. Washburne, of
Illinois, made the following report:
The Committee of the Whole have, according to order, attended the
managers to the bar of the Senate, sitting as a court of impeachment
for the trial of Andrew Johnson; that the respondent has been declared
to be acquitted on the second and third articles severally preferred by
the House; and that then, without action on the other articles, the
Senate, sitting as a court of impeachment, adjourned sine die.\1\
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\1\ House Journal, p. 735; Globe, p. 2587.