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History of the Impeachment of Andrew Johnson, President of the United States by Edumud G. Ross

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letter to the President, (page 10) and another on the 7th of
August, 1867. On page 13 it is said that Patterson and Marguiendo
acquiesce in the decision. On page 13 it is shown that other
parties are in averse possession. On page 15 it is asserted that
the contest is between citizens of the United States, and can be
settled in the courts of the United States. The contest now seems
to be between Patterson and Marguiendo and Thomas B. Webster &
Co.

On the 14th of December, 1859, Judge Black, as Attorney General,
rejected the claim of W. J. Kendall to an island in the Carribean
Sea, called Cayo Verde, and Mr. Seward seems to regard the two
cases as resting on the same principle in his report of 17th of
January, 1867.

On the 22d of July, 1867, Judge Black addressed a letter to the
President enclosing a brief. On the 7th of August, 1867, he
addressed another communication to the President. On the 7th of
February, 1868, an elaborate an able communication was sent to
the President, signed by W. J. Shaffer, attorney for Patterson
and Marguiendo, and Black, Lamon &, Co., counsel, in which they
criticised with severity the report of Mr. Seward and asked the
President to review his decision.

According to the best information I can obtain, I state that ON
THE 9TH OF MARCH, 1868, General Benjamin F. Butler addressed a
letter to J. W. Shaffer, in which he stated that he was "clearly
of the opinion that, under the claim of the United States its
citizens have the exclusive right to take guano there," and that
he had never been able to understand why the executive did not
long since assert the rights of the government, and sustain the
rightful claims of its citizens to the possession of the island
IN THE MOST FORCIBLE MANNER consistent with the dignity and honor
of the Nation.

The letter was concurred in and approved of by John A. Logan, J.
A. Garfield, W. H. Koontz, J. K. Moorhead and John A. Bingham, on
the same day, 9th of March, 1868.

This letter expressing the opinion of Generals Butler, Logan and
Garfield was placed in the hands of the President by Chauncey F.
Black, who, on the 16th of March, 1868, addressed a letter to him
in which he enclosed a copy of the same with the concurrence of
Thaddeus Stevens, John A. Bingham, J. G. Blaine, J. K. Moorhead
and William H. Koontz.

After the date of this letter, and while Judge Black was the
counsel of the respondent in this cause, he had an interview with
the President, in which he urged immediate action on his part and
the sending an armed vessel to take possession of the island; and
because the President refused to do so, Judge Black, on the 19th
of March, 1868, declined to appear further as his counsel in this
case.

Such are the facts in regard to the withdrawal of Judge Black,
according to the. best information I can obtain.

The island of Alta Vela, or the claim for damages, is said to
amount in value to more than a million dollars, and it is quite
likely that an extensive speculation is on foot. I have no
reason to charge that any of the managers are engaged in it,
and presume that the letters were signed, as such communications
are often signed, by members of Congress, through the importunity
of friends.

Judge Black no doubt thought it was his duty to other clients to
press this claims but how did the President view it?

Senators, I ask you for a moment to put yourself in the place of
the President of the United States, and as this is made a matter
of railing accusation against him, to consider how the President
of the United States felt it.

There are two or three facts to which I desire to call the
attention of the Senate and the country in connection with these
recommendations. They are, first, that they were all gotten up
after this impeachment proceeding was commenced against the
President of the United States.

Another strong and powerful fact to be noticed in vindication of
the President of the United States, in reference to this case
which has been so strongly preferred against him, is that these
recommendations were signed by four of the honorable, gentlemen
to whom the House of Representatives have intrusted the duty of
managing this great impeachment against him.

Of course exception was taken to this statement, and to the
revisal inferences therefrom, and the authenticity of the
signatures mentioned at first denied, and then an effort made to
explain them away, but it is unsuccessful.

The incident left a fixed impression, at least in the minds of
many of the Senators, that an effort had been made to coerce the
President, in fear of successful impeachment, into the
perpetration of a cowardly and disgraceful international act, not
only by his then Chief of Counsel, but also by a number of his
active prosecutors on the part of the House.

It would be difficult to fittingly characterize this scandalous
effort to pervert a great State trial into an instrumentality for
the successful exploitation of a commercial venture which was by
no means free from the elements of international robbery.

Yet to Mr. Johnson's lasting credit, he proved that he possessed
the honesty and courage to dare his enemies to do their worst--he
would not smirch his own name and disgrace his country and his
great office, by using its power for the-promotion of an
enterprise not far removed from a scheme of personal plunder, let
it cost him what it might. It was a heroic act, and bravely,
unselfishly, modestly performed.

CHAPTER IX. EXAMINATION OF WITNESSES AND THEIR TESTIMONY.

The initial proceedings to the taking of testimony, while to a
degree foreshadowing a partisan division in the trial, also
demonstrated the presence of a Republican minority which could
not at all times, be depended upon to register the decrees of the
more radical portion of the body. The first development of this
fact came in the defeat of a proposition to amend the rules in
the interest of the prosecution, and again on the examination of
Mr. Burleigh, a delegate from Dakota Territory in the House of
Representatives and a witness brought by the prosecution on March
31st. Mr. Butler, examining the witness, asked the question:

Had you on the evening before seen General Thomas? * * * Had you
a communication with him?

Answer. Yes sir.

Mr. Stanbery objected, and the Chief Justice ruled that the
testimony was competent and would be heard "unless the Senate
think otherwise."

To this ruling Mr. Drake objected and appealed from the decision
of the Chair to the Senate. It appeared to be not to the ruling
per se, that Mr. Drake objected, but to the right of the Chair to
rule at all upon the admissibility of testimony. Mr. Drake
representing the extremists of the dominant side of the Chamber.
There seemed to be apprehension of the effect upon the Senate of
the absolute judicial fairness of the rulings of the Chief
Justice, and the great weight they would naturally have, coming
from so just and eminent a jurist. After discussion, Mr. Wilson
moved that the Senate retire for consultation.

The vote on this motion was a tie, being twenty-five for and
twenty-five against retiring, whereupon the Chief Justice
announced the fact of a tie and voted "yea;" and the Senate
retired to its consultation room, where, after discussion and
repeated suggestions of amendment to the rules, the following
resolution was offered by Mr. Henderson:

Resolved, That rule 7 be amended by substituting therefor the
following:

The presiding officer of the Senate shall direct all necessary
preparations in the Senate Chamber, and the presiding officer in
the trial shall direct all the forms of proceeding while the
Senate are sitting for the purpose of trying an impeachment, and
all forms during the trial not otherwise provided for. And the
presiding officer on the trial may rule all questions of of
evidence and incidental questions, which ruling shall stand as
the judgment of the Senate, unless some member of the Senate
shall ask that a formal vote be taken thereon, in which case it
shall be submitted to the Senate for decision; or he may, at his
option, in the first instance, submit any such question to a vote
of the members of the Senate.

Mr. Morrill, of Maine, moved to amend the proposed rule by
striking out the words "which ruling shall stand as the judgment
of the Senate," which was rejected without a division.

Mr. Sumner then moved to substitute the following:

That the chief justice of the United States, presiding in the
Senate on the trial of the President of the United States, is not
a member of the Senate, and has no authority under the
Constitution to vote on any question during the trial, and he
can pronounce decision only as the organ of the Senate, with its
assent.

It is not insisted here that there was any sinister purpose in
this proposition, yet the possibilities, in case of its adoption,
were very grave. Like the wasp, the sting was in the tail--"he
(the chief justice;) can pronounce decision only as the organ of
the Senate, WITH ITS ASSENT! Had that rule been adopted, suppose
the Senate, with, its vote of forty-two Republicans and twelve
Democrats, upon failure of conviction by a two-thirds vote had
refused or refrained on a party vote from giving "its assent" to
a judgment of acquittal?

The vote upon this proposed amendment was as follows:

For its adoption--Messrs. Cameron, Cattell, Chandler, Conkling,
Conness, Corbett, Cragin, Drake, Howard, Morgan, Morrill of
Maine, Morton, Nye, Pomeroy, Ramsay, Stewart, Sumner, Thayer,
Tipton, Trumbull, Williams, Wilson--22--all Republicans.

Against its adoption--Messrs. Bayard, Buckalew, Cole, Davis,
Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler,
Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery,
Morrill of Vermont, Norton, Patterson of New Hampshire, Patterson
of Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers,
Willey--26--15 Republicans and 11 Democrats.

So the resolution was rejected--every aye vote a Republican, and
all but one, Mr. Trumbull, afterwards voting to impeach the
President at tHe close of the trial--eleven Democrats and
fifteen Republicans voting nay.

Mr. Drake then offered the following:

It is the judgment of the Senate that under the Constitution the
Chief Justice presiding over the Senate in the pending trial has
no privilege of ruling questions of law arising thereon, but that
all such questions shall be submitted to a decision by the Senate
alone.

It would be difficult to formulate a proposition better
calculated to taint the proceedings with a partisan bias than
this one by Mr. Drake. The impeachment movement was in a very
large sense, if not entirely, a partisan enterprise. It had its
origin in partisan differences, and was based mainly on
differences as to public policies at issue between the two great
parties of the country--and while it was expected that every
political. friend of the President would vote against the
impeachment, it was DEMANDED, and made a test of party fealty,
that every Republican Senator should vote for his conviction.
Therefore, and perhaps it was not illogical from these premises,
party leaders of Mr. Drake's inclination should not relish the
influence the legal, unbiased and non-partisan rulings of the
Chief Justice might have upon his more conservatively inclined
fellow partisans of the body.

Mr. Drake called for the yeas and nays, which were ordered, and
the vote was yeas 20, nays 30. The personality of this vote was
very much the same as on the previous proposition.

The rule proposed by Mr. Henderson was then adopted. The
conference closed shortly after, and the session of the Senate
was resumed.

The next day, April 1st, Mr. Sumner renewed in the Senate his
proposition submitted at the Conference the day before but not
acted upon, to change the rules of the Senate in the following
form:

It appearing from the reading of the Journal yesterday that on a
question where the Senate were equally divided, the Chief
Justice, presiding on the trial of the President, gave a casting
vote; it is hereby ordered that, in the judgment of the Senate,
such vote was without authority under the Constitution of the
United States.

The proposition was put to vote with the following result:

Yeas--Messrs. Cameron, Chandler, Cole, Conkling, Conness, Cragin,
Drake, Howard, Howe, Morgan, Morrill of Maine, Morton, Norton,
Ramsay, Stewart, Sumner, Thayer, Tipton, Trumbull, Williams,
Wilson--21--10 Republicans and 1 Democrat.

Nays--Messrs. Anthony, Bayard, Buckalew, Corbett, Davis, Dixon,
Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen,
Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of
Vermont, Patterson of Tennessee, Ross, Sherman, Sprague, Van
Winkle, Vickers, Willey--26--16 Republicans and 10 Democrats.

So the proposed order was rejected. The trial then proceeded. The
answers to a very large proportion of the interrogatories
propounded to the witnesses, on both sides, were unimportant,
having very little bearing, either way, upon the case.
Twenty-eight of those interrogatories, however, were more or less
important, and were challenged, seven by the defense, and
twenty-one by the prosecution. For convenience of reference,
these interrogatories are numbered from one to twenty-eight,
inclusive, with the answers thereto, when permitted to be
answered, as follows:

Question submitted by Mr. Butler, of the prosecution, April 1st,
1868, to Mr. Walter A. Burleigh, witness on the stand, called for
the prosecution:

No. 1.

You said yesterday, in answer to my question, that you had a
conversation with General Lorenzo Thomason the evening of the
21st of February last. State if he said anything as to the means
by which he intended to obtain or was directed by the President
to obtain possession of the War Department. If so, state all he
said, as nearly as you can?

Mr. Stanbery objected.

Mr. Drake called for the yeas and nays, which were ordered, and
the vote was as follows:

Yeas--Anthony, Cameron, Cattell, Chandler, Cole, Conkling,
Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden,
Fowler, Frelinghuysen, Grimes, Henderson, Howard, Howe, Morgan,
Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of
New Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart,
Sumner, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams,
Wilson--39--all Republicans.

Nays-Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks,
Johnson, McCreery, Norton, Patterson of Tennessee, Vickers--
11--all Democrats.

So, the Senate decided that the question should be answered.

General Butler repeated the interrogatory, and Mr. Burleigh's
answer was as follows:

On the evening of February 21st last, I learned that General
Thomas had been appointed Secretary of War ad interim, I think
while at the Metropolitan Hotel. I invited Mr. Leonard Smith, of
Leavenworth, Kas., to go with me up to his house and see him. We
took a carriage and went up. I found the General there ready to
go out with his daughters to spend the evening at some place of
amusement. I told him I would not detain him if he was going out;
but he insisted on my sitting down and I sat down for a few
moments. I told him I had learned he had been appointed Secretary
of War. He said he had; that he had been appointed that day, I
think; that after receiving his appointment from the President he
went to the War Office to show his authority, or his appoiniment,
to Secretary Stanton, and also his order to take possession of
the office; that the Secretary remarked to him that he supposed
he would give him time to remove his personal effects, or his
private papers, or something to that effect; and the answer was
"certainly." He said that in a short time the Secretary asked him
if he would give him a copy of his order, and he replied
"certainly," and gave it to him. He said that it was no more
than right to give him time to take out his personal effects. I
asked him when he was going to assume the duties of the office.
He remarked that he should take possession the next morning at
ten o'clock, which would be the 22nd; and I think in that
connection he stated that he had issued some order in regard to
the observance of the day; but of that I am not sure. I remarked
to him that I should be up at that end of the avenue the next
day, and he asked me to come in and see him. I asked him where I
could find him. and he said in the Secretary's room up stairs. I
told him I would be there. Said he, "be there punctually at 10
o'clock." Said I, "you are going to take possession to-morrow?"
"Yes." Said he, "suppose Stanton objects to it--resists?" "Well,"
said he,"I expect to meet force by force. Or use force."

Mr. Conkling: "Repeat that."

The witness. I asked him what he would do if Stanton objected, or
resisted. He said he would use force, or resort to force. Said I,
"Suppose he bars the doors?" His reply was. "I will break them
down." I think that was about all the conversation that we had
there in that connection.

No. 2.

The next disputed interrogatory put by General Butler to the
witness was:

Shortly after this conversation about which you have testified,
and after the President restored Major General Thomas to the
office of Adjutant General, if you know the fact that he was so
restored, were you present in the War Department, and did you
hear Thomas make any statements to the officers and clerks, or
either of them, belonging to the War Office, as to the rules and
orders of Mr. Stanton or of the War Office which he, Thomas,
would make, revoke, relax, or rescind, in favor of such officers
or employes when he had control of the affairs therein? If so,
state as near as you can when it was such conversation occurred,
and state all he said, as near as you can.

Mr. Howard demanded the yeas and nays and they were ordered and
were as follows:

Yeas--Anthony Cameron, Cattell, Chandler, Cole, Conkling,
Conness, Corbett, Cragin, Drake, Henderson Howard, Howe, Morgan,
Morrill of Vermont, Morton, Nye, Patterson of New Hampshire,
Pomeroy, Ramsey, Ross, Sprague, Stewart, Sumner, Thayer, Tipton,
Trumbull, Wilson--28--all Republicans.

Nays--Bayard, Buckalew, Davis, Dixon, Doolittle, Edmunds, Ferry,
Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson,
McCreery, Morrill of Maine, Norton, Patterson of Tennessee,
Sherman, Van Winkle, Vickers, Willey, Wilson--22--11 Republicans,
11 Democrats.

So the Senate decided that the question should be answered.

Mr. Butler: With the leave of the President, I will put this
question by portions.

Did you hear Thomas make any statement to the officers or clerks,
or either of them, belonging to the War Office, as to the rules
and orders of Mr. Stanton, or of the office, which he, Thomas,
would revoke, relax, or rescind, in favor of such officers and
employes when he had control therein?

Answer: The General remarked to me that he had made an
arrangement to have all the heads, or officers in charge of the
different departments of the office come in with their clerks
that morning, as he wanted to address them. He stated that the
rules which had been adopted for the government of the clerks by
his predecessor were of a very arbitrary character, and he
proposed to relax them. I suggested to him that perhaps I had
better go. He said, "no, not at all--remain," and I sat down and
he had some three or four officers--four or five, perhaps--come
in, and each one brought in a roomful of clerks, and he made an
address to each company as they came in, stating to them that he
did not propose to hold them strictly to the letter of the
instructions; but when they wanted to go out they could go out,
and when they wanted to come in they could come in; that he
regarded them all as gentlemen. and supposed they- would do their
duty, and he should require them to do their duty; but so far as
their little indulgences were concerned--I suppose such as going
out across the street or something of that kind--he did not
intend to interfere with them; all he expected was that they
would do their duty. I waited until he concluded, and we took a
walk, and I came away.

Mr. Samuel Wilkinson testified in response to an interrogatory by
Mr. Butler:

I asked him (Thomas) to tell me what had occurred that morning
between him and the Secretary of War in his endeavor to take
possession of the War Department. He hesitated to do so till I
told him that the town was filled with rumors of the change that
had been made, of the removal of Mr. Stanton and the appointment
of himself. He then said that since the affair had become public
he felt relieved to speak to me with freedom about it. He drew
from his pocket a copy, or rather the original, of the order of
the President of the United States, directing him to take
possession of the War Department immediately. He told me that he
had taken as a witness of his action General Williams, and had
gone up into the War Department and had shown to Edwin M. Stanton
the order of the President, and had demanded by virtue of that
order the possession of the War Department and its books and
papers. He told me that Edwin M. Stanton, after reading the
order, had asked him if he would allow him sufficient time for
him to get together his books, papers, and other personal
property and take away with him; that he told him that he would
allow to him all necessary time to do so, and had then withdrawn
from Mr. Stanton's room. He further told me, that day being
Friday, that the next day would be what he called a dies non,
being the holiday of the anniversary of Washington's birthday,
when he had directed that the War Department should be closed,
that the day thereafter would be Sunday, and that on Monday
morning he should demand possession of the War Department and of
its property, and if that demand was refused or resisted he
should apply to the General-in-Chief of the Army for a force
sufficient to enable him to take possession of the War
Department; and he added that he dd not see how the General of
the Army could refuse to obey his demand for that force. He then
added that under the order that the President had given to him he
had no election to pursue any other course than the one that he
indicated; that he was a subordinate officer directed by an order
from a superior officer, and that he must pursue that course.

Hon. T. W. Ferry, called by the Prosecution, testified from
memoranda taken down at the time of the demand of General Thomas
for possession of the War Office (Mr. Ferry being present), as
follows:

War Department
Washington, Feb. 22, 1867.

In the presence of Secretary Stanton, Judge Kelley, Morehead,
Dodge, Van Wyck, Van Horn, Delano, and Freeman Clarke, at 25
minutes past 12 m., General Thomas, Adjutant-General, came into
the Secretary of War Office, saying"Good morning," the Secretary
replying "Good morning, sir." Thomas looked around and said, "I
do not wish to disturb you gentlemen, and will wait." Stanton
said, "Nothing private here; what do you want?" Thomas demanded
of Secretary Stanton the surrender of the Secretary of War
Office. Stanton denied it to hint, and ordered him back to his
own office as Adjutant-General. Thomas refused to go. "I claim
the office of Secretary of War, and demand it by order of the
President."

Stanton: "I deny your authority to act, and order you back to
your own office."

Thomas: "I will stand here. I want no unpleasantness in the
presence of these gentlemen."

Stanton: "You can stand there if you please, but you can not act
as Secretary of War. I am Secretary of War. I order you out of
this office and to your own." Thomas: "I refuse to go, and will
stand here."

Stanton: "How are you to get possession? Do you intend to use
force?"

Thomas: "I do not care to use force, but my mind is made up as to
what I shall do. I want no unpleasantness, though. I shall stay
here and act as Secretary of War."

Stanton: "You shall not, and I order you, as your superior, back
to your own office."

Thomas: "I will not obey you. but will stand here and remain
here."

Stanton: "You call stand there if you please. I order you out of
this office to your own. I am Secretary of War, and your
superior."

Thomas then went into opposite room across hall (General
Schriver's) and commenced ordering General Schriver and General
Townsend. Stanton entered, followed by Moorhead and Ferry, and
ordered those generals not to obey or pay any attention to
General Thomas' orders; that he denied his assumed authority as
Secretary of War ad interim, and forbade their obedience of his
directions. "I am Secretary of War, and I now order you, General
Thomas out of this place to your own quarters."

Thomas: "I will not go, I shall discharge the functions of
Secretary of War."

Stanton: "You will not."

Thomas: "I shall require the mails of the War Department to be
delivered to me and shall transact the business of the office."

Stanton: "You shall not have them, and I order you to your room."

No. 3.

On Tuesday, April 2nd, the prosecution pmt in evidence a letter
front the President to Gen. Grant, dated Feb. 10, 1868, in answer
to a prior letter front the General. The President's letter, as
introduced in evidence, purported to contain certain enclosures
relating to the subject matter of the President's letter. The
following is that portion of the President's letter which speaks
of the enclosures accompanying and included therein:

GENERAL: The extraordinary character of your letter of the 3rd
instant would seem to preclude any reply on my part; but the
manner in which publicity has been given to the correspondence of
which that letter forms a part, and the grave questions which are
involved, induce me to take this mode of giving, as a proper
sequel to the communications which have passed between its, the
statements of the five members of the cabinet who were present on
the occasion of our conversation on the 14th ultimo. Copies of
the letters which they have addressed to me upon the subject are
accordingly herewith enclosed.

Counsel for the President objected that the letter introduced by
the prosecution was not evidence in the case unless the managers
should also produce the enclosures therein referred to and made a
part of the same. The following was the vote on sustaining the
objection:

Yeas--Bayard, Conkling, Davis, Dixon, Doolittle, Fowler, Grimes,
Henderson, Hendricks, Johnson, McCreery, Morrill of Vermont
Norton, Patterson of Tennessee, Ross, Sprague, Trumbull, Van
Winkle, Vickers and Willey--20--10 Republicans and 10 Democrats.

Nays--Anthony, Buckalew, Cameron, Cattell, Chandler, Cole,
Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden,
Frelinghuysen, Howard, Howe, Morgan, Morrill of Maine, Nye,
Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart,
Sumner, Thayer, Tipton, Williams, and Wilson--29--28 Republicans
and 1 Democrat.

So the evidence offered by the prosecution was admitted as
offered, without the enclosures referred to, the objection by the
defense not being sustained. (For these rejected enclosures see
appendix.)

No. 4.

The prosecution offered to prove (Mr. Geo. A. Wallace, of the
Treasury Department, on the stand):

That after the President had determined on the removal of Mr.
Stanton, Secretary of War, in spite of the action of the Senate,
there being no vacancy in the office of Assistant Secretary of
the Treasury, the President unlawfully appointed his friend and
theretofore private secretary, Edmund Cooper, to that position,
as one of the means by which he intended to defeat the tenure of
civil office act and other laws of Congress.

After debate and Mr. Wallace's answer in explanation of the
usages of the department in the disbursement of moneys, during
which it was shown that no moneys could be drawn out of the
treasury on the order of the assistant secretary except when
authorized by the Secretary of the Treasury to draw warrants
therefor, a vote was taken, and resulted as follows:

Yeas--Anthony, Cameron, Cattell, Chandler, Cole, Conkling,
Corbett, Cragin, Drake, Howard, Howe, Morgan, Morrill of
Vermont, Nye, Pomeroy, Ramsey, Ross, Sprague, Sumner, Thayer,
Tipton and Wilson---22--all Republicans.

Nays--Bayard, Buckalew, Conness, Davis, Dixon, Doolittle,
Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes,
Henderson, Hendricks, Johnson, McCreery, Morrill of Maine,
Norton, Patterson of New Hampshire, Patterson of Tennessee,
Sherman, Stewart, Trumbull, Van Winkle, Vickers, Willey and
Williams--27--16 Republicans, 11 Democrats.

So the testimony was not received, as it was shown in the debate
thereon that it would prove nothing against the President which
the prosecution had expected to prove.

No. 5.

Friday April 3rd, the Prosecution offered two telegraphic
messages, one from Lewis E. Parsons to Andrew Johnson, and the
other Mr. Johnson's answer, as follows:

Montgomery, Ala., Jan. 17, 1867.

Legislature in session. Efforts making to reconsider vote on
Constitutional Amendment. Report from Washington says it is
probable an enabling act will pass. We do not know what to
believe. I find nothing here.

(The State Legislature had previously rejected the Constitutional
Amendment.)

The response is:

U. S. Military Telegraph. Executive Office,
Washington D. C., Jan. 17, 1867.

What possible good can be obtained by reconsidering the
Constitutional Amendment? I know of none in the present posture
of affairs; and I do not believe that the people of the whole
country will sustain any set of individuals in attempts to
change the whole character of our Government by enabling acts or
otherwise. I believe, on the contrary, that they will eventually
uphold all who have patriotism and courage to stand by the
Constitution, and who place their confidence in the people. There
should be no faltering on the part of those who are honest in
their determination to sustain the several co-ordinate
Departments of the Government in accordance with its original
design.
Andrew Johnson.
Hon. L. E. Parsons, Montgomery, Alabama.

The yeas and nays were demanded by Mr. Drake, and were as
follows:

Yeas--Anthony, Cameron. Cattell, Chandler, Cole, Conkling,
Conness, Corbett, Cragin, Drake, Henderson, Howard, Morgan,
Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy,
Ramsay, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton,
Willey, Wilson--27--all Republicans.

Nays--Buckalew, Davis, Dixon, Doolittle, Edmunds, Ferry,
Fessenden, Fowler, Frelinghuysen, McCreery, Morrill of Maine,
Norton, Patterson of Tennessee, Trumbull, Van Winkle, Vickers,
Williams--17--8 Democrats and 9 Republicans.

So the testimony was decided admissible, and was claimed by Mr.
Manager Boutwell to be in substantiation of the charges contained
in the eleventh article.

No. 6.

The prosecution offered in evidence a copy of the Cleveland
Leader, a newspaper purporting to contain a speech delivered by
Mr. Johnson at the City of Cleveland, Ohio, on September 30th,
1866, as evidence against the President. It was objected to by
the defense, and on the call by Mr. Conness and Mr. Sumner the
yeas and nays were ordered, and the vote was as follows:

Yeas--Anthony, Cameron, Cattell. Chandler, Cole, Conkling,
Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden,
Frelinghuysen, Henderson, Howard, Johnson, Morgan, Morrill of
Maine, Morrill of Vermont, Norton, Nye, Patterson of New
Hampshire, Pomeroy, Ramsay, Ross, Sherman, Sprague, Stewart,
Sumner, Thayer, Tipton, Van Winkle, Willey, Williams--35--33
Republicans and 2 Democrats.

Nays--Buckalew, Davis, Dixon, Doolittle, Fowler, Hendricks, Howe,
McCreery, Patterson of Tennessee, Trumbull, Vickers--11--8
Democrats and 3 Republicans.

So the evidence was received. It related to the tenth article,
and was based on a certain speech delivered by Mr. Johnson at
Cleveland, Ohio.

No. 7.

Saturday, April 10th, 1868, General Lorenzo Thomas on the stand,
called by the Defense. Mr. Stanbery asked him, with reference to
certain interviews with the President: What occurred between the
President and yourself at that second interview on the 21st
(February)?

Mr. Drake demanded the yeas and nays, and they were ordered and
were as follows:

Yeas--Anthony, Bayard, Buckalew, Cattell, Cole, Conkling,
Corbett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden,
Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe,
Johnson, McCreery, Morgan, Morrill of Maine, Morrill of Vermont,
Morton, Norton, Patterson of New Hampshire, Patterson of
Tennessee, Pomeroy, Ross, Sherman, Sprague, Stewart, Sumner,
Tipton, Trumbull, Van Winkle, Vickers, Willey, Williams, Wilson,
Yates--42-31 Republicans and 11 Democrats.

Nays--Cameron, Chandler, Conness, Cragin, Drake, Harlan, Howard,
Nye, Ramsay, Thayer--10--all Republicans.

So the testimony was received, and General Thomas' answer was:

I stated to the President that I had delivered the communication,
and that Mr. Stanton gave this answer: "Do you wish me to vacate
at once, or will you give me time to take away my private
property?" and that I replied, "At your pleasure." I then said
that after delivering the copy of the letter to him, he said: "I
do not know whether I will obey your instructions or resist
them." This I mentioned to the President. and his answer was:
"Very well, go and take charge of the office and perform the
duties." * * *

Question by Mr. Stanbery: What first happened to you the next
morning?

Answer: The first thing that happened to me the next morning was
the appearance at my house of the marshal of the district, with
an assistant marshal and a constable, and he arrested me.

Question: What time in the morning was that?

Answer: About 8 o'clock, before I had my breakfast. The command
was to appear forthwith. I asked if he would permit me to see the
President. * * * He went with me to the President's and went into
the room where the President was. I stated that I had been
arrested, at whose suit I did not know. He said. every well, that
is the place I want it inthe courts." * * * I was required to
give bail in $5,000. I asked the judge what it meant. He said it
was simply to present myself there at half past ten the following
Wednesday. I asked him if it suspended me from any of my
functions. He said, "no, it has nothing to do with them." * * * I
went immediately from there, first stopping at the President's on
my way, and stating that I had given bail. He made the same
answer, "very well, we want it in the courts."

Question: Did the President at any time prior to or including the
9th of March, authorize or direct you to use force, intimidation
or threats, to get possession of the War Office?

Answer: He did not.

No. 8.

April 11, Gen. Sherman was called by the defense. In the course
of his examination Mr. Stanbery asked him the following question:

In that interview, (referring to a previously mentioned interview
between the General and the President in the presence of Gen.
Grant) what conversation took place between the President and
you in regard to the removal of Mr. Stanton?

Mr. Butler objected and the yeas and nays were ordered.

Yeas--Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morgan,
Norton, Patterson of Tennessee, Ross, Sprague, Sumner, Trumbull,
Van Winkle, Vickers, and Willey--23--22 Republicans and 11
Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Corbett,
Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Henderson,
Howard, Morrill of Maine, Morrill of Vermont. Morton, Nye,
Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart,
Thayer, Tipton, Williams, Wilson and Yates--28--all Republicans.

So the proffered testimony was refused.

No. 9.

Counsel for defense put the following question to Gen. Sherman:

At the first interview at which the tender of the duties of the
Secretary of War ad interim was made to you by the President, did
anything further pass between you and the President in reference
to the tender or your acceptance of it?

Mr. Drake demanded the yeas and nays, and they were as follows:

Yeas--Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morgan,
Norton, Patterson of Tennessee, Ross, Sprague, Sumner, Trumbull,
Van Winkle, Vickers, and Willey--23--12 Republicans and 11
Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Corbett,
Cragin, Drake, Edmunds, Ferry, Frelinhuysen, Harlan, Henderson,
Howard, Howe, Morrill of Maine, Morrill of Vermont, Morton, Nye,
Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Stewart,
Thayer, Tipton, Williams, Wilson and Yates--29--all Republicans.

So the proffered testimony was refused.

No. 10.

The next question put to Gen. Sherman by the Defense was:

In either of these conversations did the President say to you
that his object in appointing you was that he might thus get the
question of Mr. Stanton's right to the office before the Supreme
Court?

Objected to by Prosecution, and yeas and nays were taken:

Yeas--Anthony, Bayard, Fowler, McCreery, Patterson of Tennessee,
Ross, and Vickers--7--4 Democrats, 3 Republicans.

Nays--Buckalew, Cameron, Cattell, Chandler, Cole, Conkling,
Conness, Corbett, Cragin, Davis, Dixon, Doolittle, Drake,
Edmunds, Ferry, Fessenden, Frelinghuysen, Grimes, Harlan,
Henderson, Hendricks, Howard, Howe, Johnson, Morgan, Morrill of
Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New
Hampshire, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Thayer,
Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson, and
Yates--44--37 Republicans and 7 Democrats.

So this proffered testimony was refused.

No. 11.

Mr. Stanbery, for Defense, suggested that the question had
undoubtedly been overruled upon matter of form, at least, and put
it again in this form.

Was anything said at either of those interviews by the President,
as to any purpose of getting the question of Mr. Stanton's right
to the office before the courts?

This was put and determined in the negative without a division,
when Mr. Henderson offered it again in this form: Did the
President, in tendering you the appointment of Secretary of War
ad interim. express the object or purpose of so doing?

Prosecution again objected, and the yeas and nays were taken:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson,
McCreery, Morrill of Maine, Morton, Norton, Patterson of
Tennessee, Ross, Sherman, Sprague, Sumner, Trumbull, Van Winkle.
Vickers. and Willey-25--14 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan,
Howard, Howe, Morgan, Morrill of Vermont, Nye, Patterson of New
Hampshire, Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams,
Wilson, and Yates--27--all Republicans.

So the proffered evidence was refused.

No. 12.

April 13, 1868--General Sherman's examination continued:

Question: After the restoration of Mr. Stanton to office, did you
form an opinion whether the good of the service required a
Secretary of War other than Mr. Stanton; and if so, did you
communicate that opinion to the President?

Mr. Conness called for the yeas and nays and they were ordered,
and resulted:

Yeas--Anthony, Bayard, Buckalew, Dixon, Doolittle. Fowler,
Grimes, Hendricks, Johnson, McCreery Patterson, of Tennessee,
Ross, Trumbull, Van Winkle and Vickers--15--6 Republicans and 9
Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Davis, Drake, Edmunds, Fessenden, Frelinghuysen,
Harlan, Henderson, Howard, Howe, Morgan, Morrill of Maine,
Morrill of Vermont, Morton, Norton, Nye, Patterson of New
Hampshire, Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton,
Willey, Williams, Wilson and Yates--35--33 Republicans and 2
Democrats.

So the proffered testimony was refused.

No. 13.

The next question asked of Gen. Sherman was by Senator Johnson:

Question: Did you at any time, and when, before the President
gave the order for the removal of Mr. Stanton as Secretary of
War, advise the President to appoint some other person than Mr.
Stanton?

Mr. Drake demanded the yeas and nays, which were as following:

Yeas--Anthony, Bayard, Buckalew, Dixon, Doolittle, Edmunds,
Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson,
McCreery, Patterson of Tennessee, Ross, Trumbull, Van Winkle,
Vickers--18-9--Republicans and 9 Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Dixon, Drake, Ferry, Frelinghuysen, Harlan,
Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont,
Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay,
Sherman, Stewart, Thayer, Tipton, Willey Williams, Wilson,
Yates--33--30 Republicans and 2 Democrats.

So the proffered testimony was refused.

No. 14.

Counsel for defense offered:

A warrant of arrest of Gen. Thomas, dated February 22, 1868, and
the affidavit on which the warrant issued.

(This warrant had been issued on the affidavit of Mr. Stanton.)

The yeas and nays were as follows:

Yeas--Anthony, Bayard, Buckalew, Cattell, Cole, Corbett, Cragin,
Davis, Dixon, Doolittle, Fessenden, Fowler, Frelinghuysen,
Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of
Maine, Morrill of Vermont, Morton, Norton, Patterson of New
Hampshire, Patterson of Tennessee, Pomeroy, Ross, Sherman,
Sumner, Trumbull, Van Winkle, Vickers, Willey, Williams,
Yates--34--24 Republicans and 10 Democrats.

Nays--Cameron, Conkling, Chandler, Conness, Drake, Edmunds,
Ferry, Harlan, Howard, Howe, Morgan, Nye, Ramsay, Stewart,
Thayer, Tipton, Wilson--17--all Republicans.

So the warrant was received in evidence.

That warrant was issued by Judge Carter, Chief Justice of the
Supreme Court of the District of Columbia, upon the complaint of
Edwin M. Stanton, and charged Thomas with attempting forcibly to
seize and take possession of the War Office, in violation of the
fifth section of the Tenure-of-Office Act. The warrant was as
follows:

UNITED STATES OF AMERICA, DISTRICT OF COLUMBIA.

To David S. Gooding, United States Marshal for the District of
Columbia:

I, David K. Carter, Chief Justice of the Supreme Court for the
District of Columbia, hereby command you to arrest Lorenzo
Thomas, of said District, forthwith, and that you have the said
Lorenzo before me at the chambers of the said Supreme Court in
the City of Washington, forthwith, to answer to the charge of a
high misdemeanor in this, that on the 21st day of February, 1868,
in the District of Columbia, he did unlawfully accept the
appointment of the office of Secretary of War ad interim, and did
then and there unlawfully hold and exercise and attempt to hold
and exercise the said office contrary to the provisions of the
act entitled "An Act regulating the tenure of certain civil
offices, passed March 2, 1867, and hereof fail not, but make due
return.

Given under my hand and seal of said court this 22nd day of
February, 1868,

D. K. Carter.
Chief Justice of the Supreme Court of the District of Columbia.

Attest: R. J. Meigs, Clerk.
(Marshal's Return).
Washington, D. C.,
February 22, 1868.

The within writ came to hand at 7 o'clock a.m. and was served by
me on the said Lorenzo Thomas at 8 o'clock a.m, and I now return
this writ and bring him before Chief Justice Carter at 9 o'clock
a. m. of to-day.

David S. Gooding,
U. S. Marshal, D. C.

No. 15.

Mr. Johnson, (of the Court,) asked this question of General
Sherman, witness on the stand: When the President tendered to you
the office of Secretary of War, ad interim, on the 27th of
January, 1868, and on the 31st of the same month and year, did
he, at the very time of making such tender, state to you what his
purpose in so doing was?

Counsel for Prosecution objected, and Mr. Drake called for the
yeas and nays, which were taken, as follows:

Yeas--Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle,
Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Johnson,
McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton,
Patterson of Tennessee, Ross, Sherman, Sumner, Trumbull, Van
Winkle, Vickers, Willey--16--16 Republicans and 10 Democrats.

Nays-Cattell, Chandler, Conkling, Conness, Corbett, Cragin,
Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Nye,
Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson,
Yates--22--all Republicans.

The question was decided to be admissible, and the anawer was
"yes."

No. 16.

The next question, in immediate connection with the last, was:

If he did, state what he said his purpose was?

The yeas and nays were ordered and the vote was:

Yeas--Anthony, Bayard, Buckalew, Cole, Cobertt, Davis, Dixon,
Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson,
Hendricks, Johnson, McCreery, Morton, Norton, Patterson of
Tennessee, Ross, Sherman, Sumner, Trumbull, Van Winkle, Vickers,
Willey--26--15 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin,
Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of
Maine, Morrill of Vermont, Nye, Patterson of New Hampshire,
Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson,
Yates--25--all Republicans.

So the question was permitted to be answered, and General Sherman
said:

The President told me that the relations between himself and Mr.
Stanton, and between Mr. Stanton and the other members of the
Cabinet, were such that he could not execute the office which he
filled as President of the United States without making provision
ad interim for that office; that he had the right under the law;
he claimed to have the right, and his purpose was to have the
office administered in the interest of the Army and of the
Country; and he offered me the office in that view. He did not
state to me then that his purpose was to bring it to the Courts
directly; but for the purpose of having the office administered
properly in the interest of the Army and the whole Country. I
asked him why lawyers could not make a case, and not bring me, or
any ofcer of the Army, into the controversy. His answer was that
it was found impossible, or a case could not be made up; but,
said he "if we can bring the case to the Courts, it would not
stand half an hour."

Mr. Butler, of the Prosecution, objected, and after debate,
General Sherman continued:

The question first asked me seemed to restrict me so close to the
purpose that I endeavored to confine myself to that point alone.
On the first day, or first interview, in which the President
offered me the appointment ad interim, he confined himself to
very general terms, and I gave him no definite answer. The second
interview, which was on the afternoon of the 30th, was the
interview during which he made the points which 1 have testified
to. In speaking he referred to the constitutionality of the bill
known as the civil tenure-of-office bill, I think, or the tenure
of civil office bill; and it was the constitutionality of that
bill which he seemed desirous of having tested, and which, he
said, if it could be brought before the Supreme Court properly,
would not stand half an hour. We also spoke of force. I first
stated that if Mr. Stanton would simply retire, although it was
against my interest, against my desire, against my personal
wishes, and against my official wishes, I might be willing to
undertake to administer the office ad interim. Then he supposed
the point was yielded; and I made this point? "Suppose Mr.
Stanton do not yield?" he answered, "Oh! he will make no
objection; you present the order and he will retire." I expressed
my doubt, and he remarked. "I know him better than you do: he is
cowardly." I then begged to be excused from giving him an answer
to give the subject more reflection, and I gave him my final
answer in writing. I think that letter, if you insist on knowing
my views, should come into evidence, and not parol testimony
taken up; but my reasons for declining the office were mostly
personal in their nature.

Mr. Henderson (of the Court) asked this question:

Did the President, on either of the occasions alluded to, express
to you a fixed purpose or determination to remove Mr. Stanton
from his office?

General Sherman answered:

If by removal is meant a removal by force, he never conveyed to
my mind such an impression; but he did most unmistakably say that
he could have no more intercourse with him in the relation of
President and Secretary of War.

Mr. Howard (of the Court) asked the General:

You say the President spoke of force. What did he say about
force?

General Sherman answered:

I enquired, "Suppose Mr. Stanton do not yield? What then shall be
done?" "Oh," said he, "there is no necessity of considering that
question. Upon the presentation of an order he will simply go
away, or retire.

Mr. Henderson (of the Court) asked the question:

Did you give any opinion, or advice to the President on either of
those occasions in regard to the legality or propriety of an ad
interim appointment; and if so, what advice did you give, or what
opinion did you express to him?

Mr. Bingham of the prosecution, objected, and the Chair put the
question to the Senate whether it should be answered. The Senate,
without a division, refused answer to the question, and the
examination of Gen. Sherman closed for that day.

No. 17.

Wednesday, April 15th. The defense offered several extracts from
records of the Navy Department, to prove the practice of the
Government in cases of removal from office by different
Presidents prior to Mr. Johnson. of which the following are
samples:

NAVY AGENCY AT NEW YORK.

1861. June 20. Isaac Henderson was, by direction of the
President, removed from the office of Navy agent at New York, and
instructed to transfer to Paymaster John D. Gibson, of United
States Navy, all the public funds and other property in his
charge. Navy Agency at Philadelphia.

Dec. 26, 1851. James S. Chambers was removed from the office of
Navy Agent at Philadelphia and instructed to transfer to
Paymaster A. E. Watson, U. S. Navy, all the public funds and
other property in his charge.

The prosecution objected and the yeas and nays were ordered.

Yeas--Anthony, Bayard, Buckalew, Cole, Conkling, Corbett, Davis,
Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler,
Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson,
McCreery, Morrill of Maine, Morrill of Vermont, Morton, Patterson
of New Hampshire, Patterson of Tennessee, Ross, Saulsbery,
Sherman, Stewart, Sumner, Trumbull, Van Winkle, Vickers, Willey,
Wilson, Yates--36--25 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Conness, Cragin, Drake, Harlan,
Howard, Morgan, Nye, Pomeroy, Ramsay, Thayer, Tipton,
Williams--15--all Republicans.

So the evidence was admitted.

No. 18.

Thursday, April 16, Mr. Walter S. Cox on the stand. The defense
offered to prove:

That Mr. Cox was employed professionally by the President. in the
presence of General Thomas, to take such legal proceedings in the
case that had been commenced against General Thomas as would be
effectual to raise judicially the question of Mr. Stanton's legal
right to continue to hold the office of Secretary for the
Department of War against the authority of the President, and
also in reference to obtaining a writ of quo warranto for the
same purpose; and we shall expect to follow up this proof by
evidence of what was done by the witness in pursuance of the
above employment.

Mr. Drake demanded the yeas and nays, and they were ordered:

Yeas--Anthony, Bayard, Buckalew, Corbett, Davis, Dixon,
Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks,
Howe, Johnson, McCreery, Morrill of Maine, Morton, Norton,
Patterson of New Hampshire, Patterson of Tennessee, Ross,
Saulsbury, Sherman, Sprague, Sumner, Trumbull, Van Winkle,
Vickers, Willey--29--17 Republicans and 12 Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Cragin, Drake,
Edmunds, Ferry, Harlan, Howard, Morgan, Morrill of Vermont, Nye,
Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams, Wilson,
Yates--21--all Republicans.

So the testimony was received, and the witness proceeded to
detail the steps he had taken by direction of the President to
procure a judicial determination of General Thomas' right to the
office of Secretary of War and to put him in possession, till
the following question was asked.

No. 19.

What did you do toward getting out a writ of habeas corpus under
the employment of the President.

Prosecution objected, and the yeas and nays were ordered:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Johnson,
McCreery, Morrill of Maine, Morgan, Norton, Patterson of New
Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sherman,
Sprague, Sumner, Trumbull, Van Winkle, Vickers, Willey--27--15
Republicans and 12 Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin,
Drake, Edmunds, Ferry, Harlan, Howard, Howe, Morgan, Morrill of
Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams,
Wilson, Yates--23--all Republicans.

The Senate having decided the evidence to be admissible,

Mr. Cox proceeded:

When the Chief Justice announced that he would proceed as an
examining Judge to investigate the case of General Thomas, and
not as holding Court, our first application to him was to adjourn
the investigation into the Criminal Court then in session, in
order to have the action of that Court. After some little
discussion this request was refused. Our next effort was to have
General Thomas committed to prison, in order that we might apply
to that Court for a habeas corpus, and upon his being remanded by
that Court; if that should be done, we might follow up the
application by one to the Supreme Court of the United States. * *
* The Chief Justice having indicated an intention to postpone
the examination, we directed General Thomas to decline giving any
bail for further appearance, and to surrender himself into
custody, and announce to the Judge that he was in custody, and
then present to the Criminal Court an application for a writ of
habeas corpus. The Counsel on the other side objected that
General Thomas could not put himself into custody, and they did
not desire that he should be detained in custody. The Chief Judge
also declared that he would not restrain General Thomas of his
liberty, and would not hold him or allow him to be held in
custody. Supposing that he must be either committed or finally
discharged, we then claimed that he be discharged, not supposing
that the Counsel on the other side would consent to it, and
supposing that would bring about his commitment, and that we
should then have an opportunity of getting a habeas corpus. They
made no objection, however, to his final discharge, and
accordingly the Chief Justice did discharge him.

No. 20.

The witness, Mr. Cox, was asked by counsel for defense:

After you had reported to the President the result of your
efforts to obtain a writ of habeas corpus, did you do any other
act in pursuance of the original instructions you had received
from the President on Saturday to test the right of Mr. Stanton
to continue in the office; and if so, state what the acts were?

The yeas and nays were ordered on the demand of Mr. Howard.

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Hendricks, Howe, Johnson, McCreery,
Morrill of Maine, Morton, Norton, Patterson of New Hampshire,
Patterson of Tennessee, Ross, Saulsbery, Sherman, Sprague,
Sumner, Trumbull, Van Winkle, Vickers, Willey--27--15 Republicans
and 12 Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Cragin,
Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Morgan,
Morrill of Vermont, Nye, Pomeroy, Ramsay, Stewart, Thayer,
Tipton, Williams, Wilson, Yates--23--all Republicans.

So the evidence was admitted, and Mr. Cox continued.

On the same day or the next, I prepared an information in the
nature of a quo warranto. I think a delay of one day occurred in
the effort to procure certified copies of Gen. Thomas' commission
as Secretary of War ad interim, and of the order to Mr. Stanton.
I then applied to the District Attorney to sign the information
in the nature of a quo warranto, and he declined to do so without
instructions or a request from the President or the Attorney
General. This fact was communicated to the Attorney General and
the papers were sent to him. Nothing was done after this time by
me.

No. 21.

The defense offered to prove:

That the President then stated that he had issued an order for
the removal of Mr. Stanton and the employment of Mr. Thomas to
perform the duties ad interim; that thereupon Mr. Perrin said,
"Supposing Mr. Stanton should oppose the order." The President
replied: "There is no danger of that, for General Thomas is
already in the office." He then added: "It is only a temporary
arrangement; I shall send in to the Senate at once a good name
for the office.

Mr. Butler, for prosecution, objected, and the vote was:

Yeas--Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks,
McCreery, Patterson of Tennessee, and Vickers--9--all Democrats.

Nays--Cameron, Cattell, Chandler, Conkling, Conness, Corbett,
Cragin, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes,
Harlan, Howard, Howe, Johnson, Morgan, Morrill of Maine, Morrill
of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy,
Ramsay, Ross, Sherman, Sprague, Stewart, Thayer, Tipton,
Trumbull, Van Winkle, Willey, Williams, Wilson, and
Yates---37--36 Republicans and 1 Democrat.

So this testimony was rejected.

No. 22.

Friday, April 17. The defense offered to prove:

That on this occasion (a Cabinet meeting previously mentioned),
the President communicated to Mr. Welles, and the other members
of his Cabinet, before the meeting broke up, that he had removed
Mr. Stanton and appointed General Thomas Secretary of War ad
interim; and that, upon the inquiry by Mr. Welles whether General
Thomas was in possession of the office, the President replied
that he was, and on further question of Welles, whether Mr.
Stanton acquiesced, the President replied that he did; all that
he required was time to remove his papers.

Mr. Butler objected and the yeas and nays were ordered.

Yeas--Anthony, Bayard, Buckalew, Cole, Conkling, Corbett, Davis,
Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson,
McCreery, Morton, Patterson of Tennessee, Ross, Saulsbery,
Sherman, Sprague, Sumner, Trumbull, Van Winkle, Vickers,
Willey--26--15 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Conness, Cragin, Drake, Edmunds, Ferry,
Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine,
Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsay,
Stewart, Thayer, Tipton, Williams, Wilson, Yates--2-3-all
Republicans.

So the testimony was received, and the following proceeding was
had Mr. Evarts, of Counsel for the President. Mr. Welles on the
stand:

Please state, Mr. Welles, what communication was made by the
President to the Cabinet on the subject of the removal of Mr.
Stanton and the appointment of General Thomas, and what passed at
the time?

Mr. Welles: As I remarked, after the Departmental business had
been disposed of, the President remarked, as usual when he had
anything to communicate himself, that before they separated it
would be proper for him to say that he had removed Mr. Stanton
and appointed the Adjutant General Lorenzo Thomas, Secretary ad
interim. I asked whether General Thomas was in possession. The
President said he was; that Mr. Stanton required some little time
to remove his writings, his papers; I said, perhaps, or I asked,
"Mr. Stanton, then, acquiesces?" He said he did, as he considered
it. * * *

Question: Now, sir, one moment to a matter which you spoke of
incidentally. You were there the next morning about noon?

Answer: I was.

Question: Did you then see the appointment of Mr. Ewing?

Answer: I did.

Question: Was it made out before you came there, or after, or
while you were there?

Answer: While I was there.

Question: And you then saw it?

Answer: I saw it.

Question by Mr. Johnson (of the Court): What time of the day was
that?

Answer: It was about twelve.

* * * Question by Mr. Evarts: Did you become aware of the
Tenure-of-office bill, as it is called, at or about the time that
it passed Congress?

Answer: I was aware of it.

Question: Were you present at any Cabinet meeting at which, after
the passage of that Act, it became the subject of consideration?

Answer: Yes, on two occasions. The first occasion when it was
brought before the Cabinet was on the 26th of February, 1867.

Question: Who were present?

Answer: All the Cabinet were present.

Question: Was Mr. Stanton there?

Answer: Mr. Stanton was there, I think, on that occasion.

Question: This civil tenure act was the subject of consideration
there?

Answer: It was submitted.

Question: As a matter of consideration in the Cabinet?

Answer: For consultation for the advice and opinion of members.

Question: How did he submit the matter to your consideration?

Mr. Butler objected and demanded that the offer be put in
writing.

No. 23.

That the President at a meeting of the Cabinet, while the bill
was before the President for his approval, laid before the
Cabinet the tenure-of-civil-office bill for their consideration
and advice to the President respecting his approval of the bill:
and thereupon the members of the Cabinet then present gave their
advice to the President that the bill was unconstitutional and
should be returned to Congress with his objections, and that the
duty of preparing a message, setting forth the objections to the
constitutionality of the bill, was devolved on Mr. Seward and Mr.
Stanton; to be followed by proof as to what was done by the
President and Cabinet up to the time of sending in the message.

After argument the yeas and nays were taken:

Yeas--Anthony Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson,
McCreery, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van
Winkle, Vickers, and Willey--20--9 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan,
Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont,
Patterson of New Hampshire, Pomeroy, Ramsay Sherman, Sprague,
Stewart, Thayer, Tipton, Williams, Wilson, and Yates--29--all
Republicans.

So this testimony was rejected.

No. 21.

Counsel for Defense offered to prove:

That at the meetings of the Cabinet at which Mr. Stanton was
present, held while the tenure-of-civil-office bill was before
the President for approval, the advice of the Cabinet in regard
to the same was asked by the President and given by the Cabinet,
and thereupon the question whether Mr. Stanton and the other
Secretaries who had received their appointment from Mr. Lincoln
were within the restrictions upon the President's power of
removal from office created by said act was considered, and the
opinion expressed that the Secretaries appointed by Mr. Lincoln
were not within such restrictions.

The yeas and nays were ordered, and the vote was:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson,
McCreery, Patterson of Tennessee, Ross, Saulsbury, Sherman,
Sprague, Trumbull, Van Winkle, Vickers, and Willey--22--11
Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole. Conness. Corbett, Cragin,
Drake, Edmunds, Ferry, Frelinghusen, Harlan, Howard, Howe,
Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New
Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton, Williams,
Wilson, and Yates--26--all Republicans.

So this testimony was rejected.

No. 25.

Counsel for defense offered to prove:

That at the Cabinet meetings between the passage of the
tenure-of-civil office bill and the order of the 21st of
February, 1868, for the removal of Mr. Stanton. upon occasions
when the condition of the public service, as affected by the
operation of that bill, came up for the consideration and advice
of the Cabinet, it was considered by the President and Cabinet
that a proper regard to the public service made it desirable that
upon some proper case a judicial determination of the
constitutionality of the law should be obtained.

The question being taken by yeas and nays, resulted:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson,
McCreery, Patterson of Tennessee, Ross, Saulsbury Trumbull, Van
Winkle, and Vickers--19--8 Republicans and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan,
Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont,
Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Sprague,
Stewart, Thayer, Tipton, Willey, Williams, Wilson and
Yates--30--all Republicans.

So the proffered testimony was rejected.

No. 26.

Counsel for defense put this question to witness, (Mr. Welles,
then Secretary of the Navy.)

Was there, within the period embraced in the inquiry in the last
question, and at any discussions or deliberations of the Cabinet
concerning the operation of the tenure-of-civil-office act and
the requirements of the public service in regard to the service,
any suggestion or intimation whatever touching or looking to the
vacation of any office by force or getting possession of the same
by force?

Counsel for prosecution objected, and the vote was:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Edmunds,
Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery,
Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle,
and Vickers--18--8 Republicans and 10 Democrats.

Nay-s-Cattell, Chandler, Cole, Conkling, Conness, Corbett,
Cragin, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan,
Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire,
Pomeroy, Ramsay, Sherman, Stewart, Thayer, Tipton, Willey,
Williams, Wilson, and Yates--26--all Republicans.

So the proffered testimony was rejected.

No. 27.

Defense offered to prove:

That at the meetings of the Cabinet at which Stanton was present,
held while the tenure-of-civil-office bill was before the
President for approval, the advice of the Cabinet in regard to
the same was asked by the President, and given the Cabinet, and
thereupon the question whether Mr. Stanton and the other
Secretaries who had received their appointments from Mr. Lincoln
were within the restrictions upon the President's power of
removal from office created by said act, was considered and the
opinion expressed that the Secretaries appointed by Mr. Lincoln
were not within such restrictions.

Mr. Johnson: I ask that the question propounded by the Senator
from Ohio (Mr. Sherman) shall now be read.

The Secretary read the question as follows:

State if, after the 2d of March, 1867, the date of the passage of
the tenure-of-office act, the question whether the Secretaries
appointed by President Lincoln were included within the
provisions of that act came before the Cabinet for discussion;
and if so, what opinion was given on this question by members of
the Cabinet to the President.

The yeas and nays were ordered; and being taken resulted:

Yeas--Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle,
Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery,
Patterson of Tennessee, Ross, Saulsbury, Sherman, Trumbull, Van
Winkle, Vickers, and Willey--20--9 Republican and 11 Democrats.

Nays--Cameron, Cattell, Chandler, Cole, Conkling, Conness,
Corbett, Cragin, Edmunds, Ferry, Frelinghuysen, Harlan, Howard,
Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of
New Hampshire, Pomeroy, Ramsay, Stewart, Thayer, Tipton,
Williams, Wilson, and Yates--26--all Republicans.

So the proffered testimony was rejected.

No. 28.

The Prosecution proposed to put in evidence the nomination of
Lieutenant General Sherman, to be General by brevet, sent to the
Senate on the 13th of February, 1868, also the nomination of
Major General George H. Thomas to be Lieutenant General by
brevet, and to be General by brevet, sent to the Senate on the
21st of February, 1868.

The question being taken by yeas and nays, resulted:
Yeas--Anthony, Cole, Fessenden, Fowler, Grimes, Henderson,
Morton, Ross, Sumner, Tipton, Trumbull, Van Winkle, Willey, and
Yates--14--all Republicans.

Nays--Buckalew, Cameron, Cattell, Chandler, Conkling, Conness,
Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry,
Frelinghuysen, Harlan, Hendricks, Howard, Howe, Johnson,
McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Patterson
of New Hampshire, Patterson of Tennessee, Pomeroy, Ramsay,
Sherman, Sprague, Stewart, Thayer, Vickers, Williams, and
Wilson--35--26 Republicans and 9 Democrats.

So the proffered testimony was refused.

GENERAL EMORY'S TESTIMONY.

The Ninth Article of the Impeachment was based upon alleged
military changes in the City of Washington whereby the number of
troops on duty there was rumored to have been largely increased,
with a view to their use in the controversy between the President
and Congress, and more especially for the expulsion of Mr.
Stanton from the War Office in case of his resistance to the
order of the President for his retirement. The wildest rumors of
that character prevailed--that Mr. Johnson proposed to throw off
all disguise and assume direct military control and the
establishment of practically a military dictatorship. Congress
had some months previously enacted that all military orders from
the President should be issued through the General of the
Army--the Congress thereby assuming to practically abrogate a
constitutional function of the Chief Executive.

There was considerable confidence among the supporters of the
impeachment that they would be able to prove these allegations by
General Emory, then in local command of the troops and Department
of Washington. General Emory was called by the prosecution, and
the following was his testimony.

Examined by Mr. Butler:

Question: Will you have the kindness to state, as nearly as you
can what took place then? (Referring to an interview with the
President at the Executive Mansion.)

Answer: I will try and state the substance of it, but the words I
can not undertake to state exactly. The President asked me if I
recollected a conversation he had had with me when I first took
command of the department. I told him that I recollected the
facts of the conversation distinctly. He then asked me what
changes had been made. I told him no material changes, but such
as had been made I could state at once. I went on to state that
in the fall six companies of the 29th infantry had been brought
to this City to winter; but as an offset to that, four companies
of the 12th infantry had been detached to South Carolina on the
request of the Commander of that District; that two companies of
artillery had been detached by my predecessor, one of them for
the purpose of siding in putting down the Fenian difficulties,
had been returned to the command, that although the number of
companies head been increased, the numerical strength of the
command was very much the same, growing out of an order reducing
the artillery and infantry companies from the maximum of the war
establishment to the minimum of the peace establishment. The
President said: "I do not refer to those changes." I replied that
if he would state what changes he referred to, or who made the
report of the changes, perhaps I could be more, explicit. He
said, "I refer to recent changes within a day or two," or
something to that effect. I told him I thought I could assure him
that no changes had been made; that under a recent order issued
for the government of the armies of the United States, founded
upon a law of Congress, all orders had to be transmitted through
General Grant to the army, and in like manner all orders coming
from General Grant to any of his subordinate officers must
necessarily come, if in my department, through me; that if by
chance an order had been given to any junior officer of mine it
was his duty at once to report that fact. The President asked me.
"What order do you refer to?" I replied, "To order number 17 of
the series of 1867." He said, "I would like to see the order,"
and a messenger was dispatched for it. At this time a gentleman
came in who I supposed had business in no way connected with the
business I had in hand, and I withdrew to the farther end of the
room, and while there, the messenger came in with the book of
orders and handed it to me. As soon as the gentleman had
withdrawn, I returned to the President with the book in my hand,
and said I would take it as a favor if he would permit me to call
his attention to that order; that it had been passed in an
appropriation bill, and I thought it not unlikely that it had
escaped his attention. He took the order and read it, and
observed, "This is not in conformity with the Constitution of the
United States, that makes me Commander-in-Chief, or with the
terns of your commission." I replied, "That is the order which
you approved and issued to the army for our government," or
something to that effect. I can not recollect the exact words,
nor do I intend to quote the exact words of the President. He
said, "Am I to understand that the President of the United States
can not give an order except through the General of the Army? Or
General Grant?" I said in reply, that that was my
impression--that that was the opinion that the Army entertain,
and I thought upon that subject they were a unit. I also said, "I
think it is fair, Mr. President, to say to you that when this
order came out, there was considerable discussion on the subject
as to what were the obligations of an officer under that order,
and some eminent lawyers were consulted. I myself consulted
one--and the opinion was given to me decidedly and unequivocally
that we were bound by the order, Constitutional or not
Constitutional. The President observed that "the object of the
law was evident."

The following is that portion of the act referred to:

"Section 2. Be it further enacted: That the headquarters of the
General of the Army of the United States shall be at the City of
Washington, and all orders and instructions relating to military
operations issued by the President and Secretary of War shall be
issued through the General of the Army, and in case of his
inability, through the next in rank. The General of the, Army
shall not be removed, suspended, or relieved from command or
assigned to duty elsewhere than at said headquarters except at
his own request WITHOUT THE PREVIOUS APPROVAL OF THE SENATE; and
any orders or instructions relating to Military operations issued
contrary to the requirements of this section, shall be null and
void. And any officer who shall issue orders or instructions,
contrary to the provisions of this section, shall be deemed
guilty of a misdemeanor in office; and any officer of the Army
who shall transmit, convey or obey any orders or instructions so
issued contrary to the provisions of this section, knowing that
such orders were so issued shall be liable to imprisonment for
not less than two nor more than twenty years upon conviction
thereof in any Court of competent jurisdiction."

By turning to the Congressional Record of that day, it will be
found that Mr. Johnson was perfectly aware of the existence of
the foregoing provision of the Act of Congress in the bill
referred to, at the time he returned the bill to the House with
his signature. His reasons for so signing it are set out in the
following communication to the House accompanying the bill

The act entitled "An act making appropriations for the support of
the Army for the year ending June 30, 1868, and for other
purposes," contains provisions to which I must call attention.
There are propositions contained in the second section which in
certain cases deprives the President of his Constitutional
functions of Commander in Chief of the Army, and in the sixth
section, which denies to ten States of the Union their
Constitutional right to protect themselves in any emergency, by
means of their own militia. These provisions are out of place in
an appropriation act, but I am compelled to defeat these
necessary appropriations if I withhold my signature from the act.
Pressed by these considerations, I feel constrained to return the
bill with my signature, but to accompany it with my earnest
protest against the section which I have indicated.

Andrew Johnson.
Washington, D. C., March 2, 1868.

That Congress was to expire by limitation at 12 o'clock on the
4th, thirty-six hours later. If Mr. Johnson had vetoed the bill,
as under ordinary conditions it would have been his duty to the
Constitution and to himself to do, its re-passage through the two
Houses in that limited time would have been impossible, and the
appropriations carried by the bill for the support of the Army
would have been lost. To save them Mr. Johnson submitted to the
indignity put upon him by Congress in denying him a guaranteed
and manifest Constitutional right and power. In that act Mr.
Johnson illustrated a magnanimity and a consciousness of public
responsibility that was most creditible to himself, and in marked
contrast to the action of Congress toward him.

CHAPTER X. A CONFERENCE HELD AND THE FIRST VOTE TAKEN.

A few days prior to the day set for taking the vote on the
several Articles of Impeachment, and after the conclusion of
testimony, it was proposed that there be a private session for
conference of the Senate on a day named, May 11th, to give
Senators an opportunity to declare themselves on the pending
impeachment.

Neither the precise object or the utility of a conference were
then apparent, but the result was somewhat of a surprise to those
who had, up to that time, been undoubtingly confident of the
President's conviction. Comparatively few Senators had previously
declared their position. Very few, if any of the Republican
Senators had indicated a disposition to vote against any of the
articles, but the silence of a number of them, and their refusal
to commit themselves even to their associates, was a source of
uneasiness in Senatorial Impeachment circles. Hence, possibly,
the suggestion of a "conference."

It was taken for granted that every Democratic Senator would vote
against the impeachment. But the idea was not to be entertained
that the "no" votes would extend beyond the Democratic coterie of
twelve. There were, however, anxious misgivings as to that. There
was too much silence--too much of saying nothing when so little
that might be said would go so far to relieve an oppressive
anxiety.

So a session for "conference" was ordered and held, much to the
surprise of gentlemen whose silence had become somewhat
oppressive, and was becoming equally painful to those who wanted
a conference." It savored of an attempt to "poll the Senate" in
advance of judgment. It was resolved at the session of May 7th,
to hold a session for deliberation on the following Monday, May
11th. The most surprising development of that session was the
weakness of the bill of indictment at the very point where it was
apparently strongest--the first Article. Two conspicuous and
influential Senators--Messrs. Sherman of Ohio, and Howe of
Wisconsin--declared, and gave convincing reasons therefor, that
they would not vote for the impeachment of Mr. Johnson on that
Article.

In his remarks on this occasion, after giving a history of the
enactment of the Tenure-of-Office law, the first section of which
specifically excepts from its operation such members of Mr.
Johnson's Cabinet as had been appointed by Mr. Lincoln and still
remaining, though not recommissioned by Mr. Johnson, Mr. Sherman
said:

I can only say as one of the Senate conferees, under the solemn
obligations that now rest upon us in construing this Act, that I
did not understand it to include members of the Cabinet not
appointed by the President, and that it was with extreme
reluctance and only to secure the passage of the bill that, in
the face of the votes of the Senate I agreed to the report
LIMITING AT ALL the power of the President to remove heads of
Departments. * * * I stated explicitly that the Act as reported
did not protect from removal the members of the Cabinet appointed
by Mr. Lincoln, that President Johnson might remove them at his
pleasure; and I named the Secretary of war as one that might be
removed. * * * I could not conceive a case where the Senate would
require the President to perform his great executive office upon
the advice and through heads of Departments personally obnoxious
to him, and whom he had not appointed, and, therefore, no such
case was provided for. * * * Can I pronounce the President guilty
of crime, and by that vote aid to remove him from his high office
for doing what I declared and still believe he had a legal right
to do. God forbid: * * * What the President did do in the removal
of Mr. Stanton he did under a power which you repeatedly refused
to take from the office of the President--a power that has been
held by that officer since the formation of the Government. and
is now limited only by the words of an Act, the literal
construction of which does not include Mr. Stanton. * * * It
follows, that as Mr. Stanton is not protected by the
Tenure-of-Civil-Office Act, his removal rests upon the Act of
1789, and he according to the terms of that Act and of the
commission held by him, and in compliance with the numerous
precedents cited in this cause, was lawfully removed by the
President, and his removal not being contrary to the provisions
of the Act of March 2nd 1867, the 1st, 4th, 5th, and 6th
Articles, based upon his removal, must fail.

On this point, Mr. Howe said:

If Mr. Stanton had been appointed during the present Presidential
term. I should have no doubt he was within the security of the
law. But I cannot find that, either in fact or in legal
intendment, he was appointed during the present Presidential
term. It is urged that he was appointed by Mr. Lincoln, and such
is the fact. It is said that Mr. Lincoln's term is not yet
expired. Such I believe to be the fact. But the language of the
proviso is, that a Secretary shall hold not during the term of
MAN by whom he is appointed, but during the TERM of the PRESIDENT
by whom he may be appointed. Mr. Stanton was appointed by the
President in 1862. The term of that President was limited by the
Constitution. It expired on the 4th of March, 1865. That the same
incumbent was re-elected for the next term is conceded, but I do
not comprehend how that fact extended the former term.

Entertaining these views, and because the first Article of the
Impeachment charges the order of removal as a violation of the
Tenure-of-Office Act, I am constrained to hold the President not
guilty upon that Article.

These declarations, coming from two gentlemen of distinction and
influence in the party councils, both of whom Had actively
participated in framing the Tenure-of-Office Act, became at once
the occasion of genuine and profound surprise, and it is
unnecessary to say that they tended largely to strengthen the
doubts entertained by others as to the sufficiency of all the
other allegations of the indictment. They naturally and logically
reasoned that the removal of Mr. Stanton, set out in the first
Article, constituted, in effect, the essence of the indictment,
and that all that followed, (save the 10th Article was more in
the nature of specifications, or a bill of particulars, than
otherwise--that if no impeachable offense were set out in the
first Article, then none was committed, as that Article
constituted the substructure of all the rest--its essence and
logic running through and permeating practically all--and that
without that Article, there was no coherence or force in any of
them, and consequently nothing charged against the President that
was impeachable, as he had not violated the Tenure-of-Office law,
and was not charged with the violation of any other law.

That conference developed, further, that a large majority of the
Articles of Impeachment were objectionable to and would not be
supported by a number of Republican Senators.

Mr. Edmunds would not support the 4th, 8th, 9th, and 10th
Articles, being "wholly unsustained by proof," but would support
the 11th, though apparently doubtful of its efficiency.

Mr. Ferry could not support the 4th, 5th, 6th, 7th, 9th, or 10th
Articles.

Mr. Howard declared that he would not support the 9th Article.

Mr. Morrill of Vermont, would not support the 4th, 6th, 9th, or
10th Articles, as they were unproven.

Mr. Morrill, of Maine, Mr. Yates, Mr. Harlan, and Mr. Stewart,
would vote to convict on the Articles relating to the removal of
Mr. Stanton--uncommitted on all others.

Mr. Fessenden, Mr. Fowler, Mr. Grimes, Mr. Henderson, Mr.
Trumbull, and Mr. Van Winkle, each declared, at that conference,
their opposition to the entire list of the Articles of
Impeachment.

But eighteen Republicans committed themselves at that conference,
for conviction, out of twenty-four who filed opinions. While it
was taken for granted that the six Democrats who had failed to
declare their position at that conference would oppose
conviction, the position of the eighteen Republicans who had
failed to declare themselves became at once a source of very
grave concern in impeachment circles. Out of that list of
eighteen uncommitted Republicans, but one vote was necessary to
defeat the impeachment. This condition was still farther
intensified by the fact that eight of the eleven Articles of
Impeachment were already beaten in that conference, and
practically by Republican committals, and among them the head and
front and foundation of the indictment--the First Article--by
Messrs. Sherman and Howe, two conspicuous Republican leaders.

A forecast of the vote based on these committals as to the
several Articles, would be against the First Article, twelve
Democrats and eight Republicans, one more than necessary for its
defeat--the eight "not guilty" votes including Messrs. Sherman
and Howe.

Against the Fourth Article--twelve Democrats and nine
Republicans--including Messrs. Edmunds, Ferry, and Morrill of
Vermont.

Against the Fifth Article--twelve Democrats and eight
Republicans-including Messrs. Edmunds and Ferry.

Against the Sixth Article--twelve Democrats and nine
Republicans-including Messrs. Ferry, Howe, and Morrill of
Vermont.

Against the Seventh--Article-twelve Democrats and seven
Republicans--including Mr. Ferry.

Against the Eighth Article--twelve Democrats and seven
Republicans--including Mr. Edmunds.

Against the Ninth Article--twelve Democrats and twelve
Republicans--including Messrs. Sherman, Edmunds, Ferry, Howe,
Howard, and Morrill of Vermont.

Against the Tenth Article--twelve Democrats and ten
Republicans--including Messrs. Edmunds, Sherman, Ferry, and
Morrill of Vermont.

It is somewhat conspicuous that but three gentlemen--Messrs.
Sumner, Pomeroy, and Tipton, in their arguments in the
Conference, pronounced the President guilty on all the
charges--though five others, Messrs. Wilson, Patterson of New
Hampshire, Frelinghuysen, Cattell, and Williams, pronounced the
President guilty on general principles, without specification;
and Messrs. Morrill of Maine, Yates and Stewart, guilty in the
removal of Mr. Stanton, without further specification of charges.

As but one vote, in addition to the twelve Democratic and the six
Republican votes pledged against conviction at the Conference,
was necessary to defeat impeachment on the three remaining
Articles--the 2nd, 3rd, and 11th--and as nearly a half of the
Republicans of the Senate had failed to commit themselves, at
least in any public way, the anxiety of the advocates of
Impeachment became at once, and naturally, very grave. How many
of the eighteen Republicans who had failed to declare themselves
at that Conference might fail to sustain the Impeachment, became,
therefore, a matter of active solicitude on all sides, especially
in impeachment circles in and out of the Senate. Republican
committals in the Conference had rendered absolutely certain the
defeat of every Article of the Impeachment except the Second,
Third, and Eleventh, and the addition of but a single vote from
the eighteen uncommitted Republicans to the "No" side, would
defeat them.

It was under this unfavorable condition of the Impeachment cause,
that the Senate assembled on May 16th, 1868, for the purpose of
taking final action on the indictment brought by the House of
Representatives, the trial of which had occupied the most of the
time of the Senate for the previous three months, and which had
to a large degree engrossed the attention of the general public,
to the interruption of legislation pending in the two Houses of
Congress, and more or less to the embarrassment of the commercial
activities of the country.

For the first time in the history of the government, practically
eighty years, the President of the United States was at the bar
of the Senate, by virtue of a constitutional warrant, on an
accusation of the House of Representatives of high crimes and
misdemeanors in office, and his conviction and expulsion from
office demanded in the name of all the people. No event in the
civil history of the country had ever before occurred to so
arouse public antipathies and public indignation against any
man-and these conditions found special vent in the City of
Washington, as the Capitol of the Nation, as it had become during
the trial the focal point of the politically dissatisfied element
of the entire country. Its streets and all its places of
gathering had swarmed for many weeks with representatives of
every State of the Union, demanding in a practically united voice
the deposition of the President.

On numbers of occasions during the previous history of the
Government there had been heated controversies between the
Congress and the Executive, but never before characterized by the
intensity, not infrequently malevolence, that had come to mark
this and never before had a division between the Executive and
the Congress reached a point at which a suggestion of his

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