A Compilation of the Messages and Papers of the Presidents
by
James D. Richardson
Part 13 out of 14
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 Brevet Major-General 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.
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 War, the said Edwin M.
Stanton being then and there Secretary for the Department of War, 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.
ART. II. That on said 21st day of February, A.D. 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_.
Brevet Major-General LORENZO THOMAS,
_Adjutant-General United States Army, Washington, D.C._
SIR: The 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.
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.
ART. III. That said Andrew Johnson, President of the United States, on
the 21st day of February, A.D. 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_.
Brevet Major-General LORENZO THOMAS,
_Adjutant-General United States Army, Washington, D.C._
SIR: The 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.
ART. IV. That said Andrew Johnson, President of the United States,
unmindful of the high duties of his office and his oath of office, in
violation of the Constitution and laws of the United States, on the 21st
day of February, 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, 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.
ART. 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, A.D. 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.
ART. 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, A.D. 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.
ART. 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, A.D. 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.
ART. 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 disbursement of the moneys
appropriated for the military service and for the Department of War,
on the 21st day of February, A.D. 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, and
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_.
Brevet Major-General LORENZO THOMAS,
_Adjutant-General United States Army, Washington, D.C._
SIR: The 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.
whereby said Andrew Johnson, President of the United States, did then
and there commit and was guilty of a high misdemeanor in office.
ART. IX. That said Andrew Johnson, President of the United States, on
the 22d day of February, A.D. 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 the 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.
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_.
IN THE HOUSE OF REPRESENTATIVES, UNITED STATES, _March 3, 1868_.
The following additional articles of impeachment were agreed to, viz:
ART. 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 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, A.D. 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 in 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 committee 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, A.D. 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 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, A.D. 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, besides 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 have 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, A.D. 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 will 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 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 "Freedmen'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
Savior, and everybody that differs with them in opinion, and to try
to stay and arrest their 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.
ART. 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, A.D. 1866, at the city of
Washington, in 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, A.D. 1868, at the city of Washington,
in the District of Columbia, did unlawfully, and in disregard of the
requirement 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 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, A.D. 1868, at the city of Washington, commit and was guilty
of a high misdemeanor in office.
SCHUYLER COLFAX,
_Speaker of the House of Representatives_.
Attest:
EDWARD McPHERSON,
_Clerk of the House of Representatives_.
IN THE SENATE, _March 4, 1868_.
The President _pro tempore_ laid before the Senate the following letter
from the Hon. Salmon P. Chase, Chief Justice of the Supreme Court of the
United States:
WASHINGTON, _March 4, 1868_.
_To the Senate of the United States_:
Inasmuch as the sole power to try impeachments is vested by the
Constitution in the Senate, and it is made the duty of the Chief Justice
to preside when the President is on trial, I take the liberty of
submitting, very respectfully, some observations in respect to the
proper mode of proceeding upon the impeachment which has been preferred
by the House of Representatives against the President now in office.
That when the Senate sits for the trial of an impeachment it sits as a
court seems unquestionable.
That for the trial of an impeachment of the President this court must be
constituted of the members of the Senate, with the Chief Justice
presiding, seems equally unquestionable.
The Federalist is regarded as the highest contemporary authority on the
construction of the Constitution, and in the sixty-fourth number the
functions of the Senate "sitting in their judicial capacity as a court
for the trial of impeachments" are examined.
In a paragraph explaining the reasons for not uniting "the Supreme Court
with the Senate in the formation of the court of impeachments" it is
observed that--
To a certain extent the benefits of that union will be obtained from
making the Chief Justice of the Supreme Court the president of the court
of impeachments, as is proposed by the plan of the Convention, while the
inconveniences of an entire incorporation of the former into the latter
will be substantially avoided. This was, perhaps, the prudent mean.
This authority seems to leave no doubt upon either of the propositions
just stated; and the statement of them will serve to introduce the
question upon which I think it my duty to state the result of my
reflections to the Senate, namely, At what period, in the case of
an impeachment of the President, should the court of impeachment be
organized under oath, as directed by the Constitution?
It will readily suggest itself to anyone who reflects upon the abilities
and the learning in the law which distinguish so many Senators that
besides the reason assigned in the Federalist there must have been still
another for the provision requiring the Chief Justice to preside in the
court of impeachment. Under the Constitution, in case of a vacancy in
the office of President, the Vice-President succeeds, and it was
doubtless thought prudent and befitting that the next in succession
should not preside in a proceeding through which a vacancy might be
created.
It is not doubted that the Senate, while sitting in its ordinary
capacity, must necessarily receive from the House of Representatives
some notice of its intention to impeach the President at its bar,
but it does not seem to me an unwarranted opinion, in view of this
constitutional provision, that the organization of the Senate as
a court of impeachment, under the Constitution, should precede the
actual announcement of the impeachment on the part of the House.
And it may perhaps be thought a still less unwarranted opinion that
articles of impeachment should only be presented to a court of
impeachment; that no summons or other process should issue except
from the organized court, and that rules for the government of the
proceedings of such a court should be framed only by the court itself.
I have found myself unable to come to any other conclusions than these.
I can assign no reason for requiring the Senate to organize as a court
under any other than its ordinary presiding officer for the latter
proceedings upon an impeachment of the President which does not seem
to me to apply equally to the earlier.
I am informed that the Senate has proceeded upon other views, and it is
not my purpose to contest what its superior wisdom may have directed.
All good citizens will fervently pray that no occasion may ever arise
when the grave proceedings now in progress will be cited as a precedent;
but it is not impossible that such an occasion may come.
Inasmuch, therefore, as the Constitution has charged the Chief Justice
with an important function in the trial of an impeachment of the
President, it has seemed to me fitting and obligatory, where he is
unable to concur in the views of the Senate concerning matters essential
to the trial, that his respectful dissent should appear.
S.P. CHASE,
_Chief Justice of the United States_.
PROCEEDINGS OF THE SENATE SITTING FOR THE TRIAL OF THE IMPEACHMENT
OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES.
THURSDAY, MARCH 5, 1868.
THE UNITED STATES _vs_. ANDREW JOHNSON, PRESIDENT.
The Chief Justice of the United States entered the Senate Chamber and
was conducted to the chair by the committee appointed by the Senate for
that purpose.
The following oath was administered to the Chief Justice by Associate
Justice Nelson, and by the Chief Justice to the members of the Senate:
I do solemnly swear that in all things appertaining to the trial of
the impeachment of Andrew Johnson, President of the United States, now
pending, I will do impartial justice according to the Constitution and
laws. So help me God.
FRIDAY, MARCH 6, 1868.
THE UNITED STATES _vs_. ANDREW JOHNSON, PRESIDENT.
To accord with the conviction of the Chief Justice[76] that the court
should adopt its own rules, those adopted on March 2 by the Senate
sitting in its legislative capacity were readopted by the Senate sitting
as a court of impeachment. The rules are as follows:
[Footnote 76: See letter from the Chief Justice, pp. 718-720.]
RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON THE TRIAL
OF IMPEACHMENTS.
I. Whensoever the Senate shall receive notice from the House of
Representatives that managers are appointed on their part to conduct an
impeachment against any person, and are directed to carry articles of
impeachment to the Senate, the Secretary of the Senate shall immediately
inform the House of Representatives that the Senate is ready to receive
the managers for the purpose of exhibiting such articles of impeachment
agreeably to said notice.
II. When the managers of an impeachment shall be introduced at the bar
of the Senate and shall signify that they are ready to exhibit articles
of impeachment against any person, the Presiding Officer of the Senate
shall direct the Sergeant-at-Arms to make proclamation, who shall, after
making proclamation, repeat the following words, viz:
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 -------- --------.
after which the articles shall be exhibited; and then the Presiding
Officer of the Senate shall inform the managers that the Senate will
take proper order on the subject of the impeachment, of which due notice
shall be given to the House of Representatives.
III. Upon such articles being presented to the Senate, the Senate shall,
at 1 o'clock afternoon of the day (Sunday excepted) following such
presentation, or sooner if so ordered by the Senate, proceed to the
consideration of such articles, and shall continue in session from day
to day (Sundays excepted) after the trial shall commence (unless
otherwise ordered by the Senate) until final judgment shall be rendered,
and so much longer as may in its judgment be needful. Before proceeding
to the consideration of the articles of impeachment the Presiding
Officer shall administer the oath hereinafter provided to the members of
the Senate then present, and to the other members of the Senate as they
shall appear, whose duty it shall be to take the same.
IV. When the President of the United States, or the Vice-President
of the United States upon whom the powers and duties of the office of
President shall have devolved, shall be impeached, the Chief Justice
of the Supreme Court of the United States shall preside; and in a case
requiring the said Chief Justice to preside notice shall be given to him
by the Presiding Officer of the Senate of the time and place fixed for
the consideration of the articles of impeachment as aforesaid, with a
request to attend; and the said Chief Justice shall preside over the
Senate during the consideration of said articles and upon the trial
of the person impeached therein.
V. The Presiding Officer shall have power to make and issue, by himself
or by the Secretary of the Senate, all orders, mandates, writs, and
precepts authorized by these rules or by the Senate, and to make and
enforce such other regulations and orders in the premises as the Senate
may authorize or provide.
VI. The Senate shall have power to compel the attendance of witnesses,
to enforce obedience to its orders, mandates, writs, precepts, and
judgments, to preserve order, and to punish in a summary way contempts
of and disobedience to its authority, orders, mandates, writs, precepts,
or judgments, and to make all lawful orders, rules, and regulations
which it may deem essential or conducive to the ends of justice; and the
Sergeant-at-Arms, under the direction of the Senate, may employ such aid
and assistance as may be necessary to enforce, execute, and carry into
effect the lawful orders, mandates, writs, and precepts of the Senate.
VII. The Presiding Officer of the Senate shall direct all necessary
preparations in the Senate Chamber, and the presiding officer upon 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 specially provided for. The presiding officer
may, in the first instance, submit to the Senate, without a division,
all questions of evidence and incidental questions; but the same shall,
on the demand of one-fifth of the members present, be decided by yeas
and nays.
VIII. Upon the presentation of articles of impeachment and the
organization of the Senate as hereinbefore provided, a writ of summons
shall issue to the accused, reciting said articles and notifying him to
appear before the Senate upon a day and at a place to be fixed by the
Senate, and named in such writ, and file his answer to said articles of
impeachment, and to stand to and abide the orders and judgments of the
Senate thereon, which writ shall be served by such officer or person as
shall be named in the precept thereof such number of days prior to the
day fixed for such appearance as shall be named in such precept, either
by the delivery of an attested copy thereof to the person accused or,
if that can not conveniently be done, by leaving such copy at the last
known place of abode of such person or at his usual place of business,
in some conspicuous place therein; or, if such service shall be, in the
judgment of the Senate, impracticable, notice to the accused to appear
shall be given in such other manner, by publication or otherwise, as
shall be deemed just; and if the writ aforesaid shall fail of service
in the manner aforesaid, the proceedings shall not thereby abate, but
further service may be made in such manner as the Senate shall direct.
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. If a plea of
guilty shall be entered, judgment may be entered thereon without further
proceedings.
IX. At 12 o'clock and 30 minutes afternoon of the day appointed for the
return of the summons against the person impeached the legislative and
executive business of the Senate shall be suspended and the Secretary of
the Senate shall administer an oath to the returning officer in the form
following, viz:
I, -------- --------, do solemnly swear that the return made by me
upon the process issued on the ---- day of ---- by the Senate of the
United States against -------- -------- is truly made, and that I have
performed such service as herein described.
So help me God.
which oath shall be entered at large on the records.
X. The person impeached shall then be called to appear and answer the
articles of impeachment against him. If he appear, or any person for
him, the appearance shall be recorded, stating particularly if by
himself or by agent or attorney, naming the person appearing and the
capacity in which he appears, If he do not appear, either personally
or by agent or attorney, the same shall be recorded.
XI. At 12 o'clock and 30 minutes afternoon of the day appointed for the
trial of an impeachment the legislative and executive business of the
Senate shall be suspended and the Secretary shall give notice to the
House of Representatives that the Senate is ready to proceed upon the
impeachment of -------- --------, in the Senate Chamber, which chamber
is prepared with accommodations for the reception of the House of
Representatives.
XII. The hour of the day at which the Senate shall sit upon the trial of
an impeachment shall be (unless otherwise ordered) 12 o'clock m., and
when the hour for such sitting shall arrive the Presiding Officer of the
Senate shall so announce; and thereupon the presiding officer upon such
trial shall cause proclamation to be made, and the business of the trial
shall proceed. The adjournment of the Senate sitting in said trial shall
not operate as an adjournment of the Senate, but on such adjournment the
Senate shall resume the consideration of its legislative and executive
business.
XIII. The Secretary of the Senate shall record the proceedings in cases
of impeachment as in the case of legislative proceedings, and the same
shall be reported in the same manner as the legislative proceedings of
the Senate.
XIV. Counsel for the parties shall be admitted to appear and be heard
upon an impeachment.
XV. All motions made by the parties or their counsel shall be addressed
to the presiding officer, and if he or any Senator shall require it they
shall be committed to writing and read at the Secretary's table.
XVI. Witnesses shall be examined by one person on behalf of the party
producing them and then cross-examined by one person on the other side.
XVII. If a Senator is called as a witness, he shall be sworn and give
his testimony standing in his place.
XVIII. If a Senator wishes a question to be put to a witness, or to
offer a motion or order (except a motion to adjourn), it shall be
reduced to writing and put by the presiding officer.
XIX. At all times while the Senate is sitting upon the trial of an
impeachment the doors of the Senate shall be kept open, unless the
Senate shall direct the doors to be closed while deliberating upon
its decisions.
XX. All preliminary or interlocutory questions and all motions shall be
argued for not exceeding one hour on each side, unless the Senate shall
by order extend the time.
XXI. The case on each side shall be opened by one person. The final
argument on the merits may be made by two persons on each side (unless
otherwise ordered by the Senate, upon application for that purpose),
and the argument shall be opened and closed on the part of the House
of Representatives.
XXII. On the final question whether the impeachment is sustained the
yeas and nays shall be taken on each article of impeachment separately,
and 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; but if the person accused in such
articles of impeachment shall be convicted upon any of said articles by
the votes of two-thirds of the members present the Senate shall proceed
to pronounce judgment, and a certified copy of such judgment shall be
deposited in the office of the Secretary of State.
XXIII. All the orders and decisions shall be made and had by yeas and
nays, which shall be entered on the record, and without debate, except
when the doors shall be closed for deliberation, and in that case no
member shall speak more than once on one question, and for not more than
ten minutes on an interlocutory question, and for not more than fifteen
minutes on the final question, unless by consent of the Senate, to be
had without debate; but a motion to adjourn may be decided without the
yeas and nays, unless they be demanded by one-fifth of the members
present.
XXIV. Witnesses shall be sworn in the following form, viz:
You, -------- --------, do swear (or affirm, as the case maybe) that
the evidence you shall give in the case now depending between the
United States and -------- -------- shall be the truth, the whole
truth, and nothing but the truth. So help you God.
which oath shall be administered by the Secretary or any other duly
authorized person.
Form of subpoena to be issued on the application of the managers of
the impeachment, or of the party impeached, or of his counsel:
_To_ -------- --------; _greeting_:
You and each of you are hereby commanded to appear before the Senate of
the United States on the ---- day of ----, at the Senate Chamber, in
the city of Washington, then and there to testify your knowledge in the
cause which is before the Senate in which the House of Representatives
have impeached -------- --------.
Fail not.
Witness -------- --------, and Presiding Officer of the Senate, at
the city of Washington, this ---- day of ----, A.D. ----, and of the
Independence of the United States the ------.
Form of direction for the service of said subpoena:
_The Senate of the United States to_ -------- --------, _greeting_:
You are hereby commanded to serve and return the within subpoena
according to law.
Dated at Washington, this ---- day of ----, A.D. ----, and of the
Independence of the United States the ------.
_Secretary of the Senate_.
Form of oath to be administered to the members of the Senate sitting in
the trial of impeachments:
I solemnly swear (or affirm, as the case may be) that in all things
appertaining to the trial of the impeachment of -------- --------, now
pending, I will do impartial justice according to the Constitution and
laws. So help me God.
Form of summons to be issued and served upon the person impeached.
THE UNITED STATES OF AMERICA, _ss_:
_The Senate of the United States to_ -------- --------, _greeting_:
Whereas the House of Representatives of the United States of America did
on the ---- day of ---- exhibit to the Senate articles of impeachment
against you, the said -------- --------, in the words following:
[Here insert the articles.]
And demand that you, the said -------- --------, should be put to
answer the accusations as set forth in said articles, and that such
proceedings, examinations, trials, and judgments might be thereupon
had as are agreeable to law and justice:
You, the said -------- --------, are therefore hereby summoned to be
and appear before the Senate of the United States of America, at their
chamber, in the city of Washington, on the ---- day of ----, at 12
o'clock and 30 minutes afternoon, then and there to answer to the said
articles of impeachment, and then and there to abide by, obey, and
perform such orders, directions, and judgments as the Senate of the
United States shall make in the premises, according to the Constitution
and laws of the United States.
Hereof you are not to fail.
Witness -------- --------, and Presiding Officer of the said Senate, at
the city of Washington, this ---- day of ----, A.D. ----, and of the
Independence of the United States the ------.
Form of precept to be indorsed on said writ of summons:
THE UNITED STATES OF AMERICA, _ss_:
_The Senate of the United States to_ -------- --------, _greeting_:
You are hereby commanded to deliver to and leave with -------- --------,
if conveniently to be found, or, if not, to leave at his usual place of
abode or at his usual place of business, in some conspicuous place, a
true and attested copy of the within writ of summons, together with a
like copy of this precept; and in whichsoever way you perform the
service, let it be done at least ---- days before the appearance day
mentioned in said writ of summons.
Fail not, and make return of this writ of summons and precept, with your
proceedings thereon indorsed, on or before the appearance day mentioned
in the said writ of summons.
Witness -------- --------, and Presiding Officer of the Senate, at
the city of Washington, this ---- day of ----, A.D. ----, and of the
Independence of the United States the ------.
All process shall be served by the Sergeant-at-Arms of the Senate unless
otherwise ordered by the court.
XXV. If the Senate shall at any time fail to sit for the consideration
of articles of impeachment on the day or hour fixed therefor, the Senate
may by an order, to be adopted without debate, fix a day and hour for
resuming such consideration.
On March 31 Rule VII was amended to read as follows:
VII. The Presiding Officer of the Senate shall direct all necessary
preparations in the Senate Chamber, and the presiding officer on 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 specially provided for, and the presiding
officer on the trial may rule all questions 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.
On April 3 Rule VII was further amended by inserting at the end thereof
the following:
Upon all such questions the vote shall be without a division, unless the
yeas and nays be demanded by one-fifth of the members present, when the
same shall be taken.
On March 13 Rule XXIII was amended to read as follows:
XXIII. All the orders and decisions shall be made and had by yeas and
nays, which shall be entered on the record, and without debate, subject,
however, to the operation of Rule VII, except when the doors shall be
closed for deliberation, and in that case no member shall speak more
than once on one question, and for not more than ten minutes on an
interlocutory question, and for not more than fifteen minutes on the
final question, unless by consent of the Senate, to be had without
debate; but a motion to adjourn may be decided without the yeas and
nays, unless they be demanded by one-fifth of the members present.
On May 7 Rule XXIII was further amended by adding thereto the following:
The fifteen minutes herein allowed shall be for the whole deliberation
on the final question, and not to the final question on each article of
impeachment.
FRIDAY, MARCH 13, 1868.
THE UNITED STATES _vs_. ANDREW JOHNSON, PRESIDENT.
Mr. Henry Stanbery, in behalf of Andrew Johnson, the respondent, read
the following paper:
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 Representatives 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 therefor, 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.
Mr. Stanbery then submitted the following motion:
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, /
THOMAS A.R. NELSON,
_Of Counsel for the Respondent_.
The above motion was denied, and the Senate adopted the following orders:
_Ordered_, That the respondent file answer to the articles of
impeachment on or before Monday, the 23d day of March instant.
_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.
MONDAY, MARCH 23, 1868.
THE UNITED STATES _vs_. ANDREW JOHNSON, PRESIDENT.
The answer of the respondent to the articles of impeachment was
submitted by his counsel, 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.
_Answer to Article I_.--For answer to the first article he says that
Edwin M. Stanton was appointed Secretary for the Department of War on
the 15th day of January, A.D. 1862, by Abraham Lincoln, then President
of the United States, during the first term of his Presidency, and was
commissioned, according to the Constitution and laws of the United
States, to hold the said office during the pleasure of the President;
that the office of Secretary for the Department of War was created by an
act of the First Congress in its first session, passed on the 7th day of
August, A.D. 1789, and in and by that act it was provided and enacted
that the said Secretary for the Department of War shall perform and
execute such duties as shall from time to time be enjoined on and
intrusted to him by the President of the United States, agreeably to the
Constitution, relative to the subjects within the scope of the said
Department; and, furthermore, that the said Secretary shall conduct the
business of the said Department in such a manner as the President of the
United States shall from time to time order and instruct.
And this respondent, further answering, says that by force of the act
aforesaid and by reason of his appointment aforesaid the said Stanton
became the principal officer in one of the Executive Departments of the
Government within the true intent and meaning of the second section
of the second article of the Constitution of the United States and
according to the true intent and meaning of that provision of the
Constitution of the United States; and, in accordance with the settled
and uniform practice of each and every President of the United States,
the said Stanton then became, and so long as he should continue to hold
the said office of Secretary for the Department of War must continue to
be, one of the advisers of the President of the United States, as well
as the person intrusted to act for and represent the President in
matters enjoined upon him or intrusted to him by the President touching
the Department aforesaid, and for whose conduct in such capacity,
subordinate to the President, the President is by the Constitution and
laws of the United States made responsible.
And this respondent, further answering, says he succeeded to the office
of President of the United States upon and by reason of the death of
Abraham Lincoln, then President of the United States, on the 15th day
of April, 1865, and the said Stanton was then holding the said office
of Secretary for the Department of War under and by reason of the
appointment and commission aforesaid; and not having been removed from
the said office by this respondent, the said Stanton continued to hold
the same under the appointment and commission aforesaid, at the pleasure
of the President, until the time hereinafter particularly mentioned,
and at no time received any appointment or commission save as above
detailed.
And this respondent, further answering, says that on and prior to the
5th day of August, A.D. 1867, this respondent, the President of the
United States, responsible for the conduct of the Secretary for the
Department of War, and having the constitutional right to resort to
and rely upon the person holding that office for advice concerning
the great and difficult public duties enjoined on the President by
the Constitution and laws of the United States, became satisfied that
he could not allow the said Stanton to continue to hold the office
of Secretary for the Department of War without hazard of the public
interest; that the relations between the said Stanton and the President
no longer permitted the President to resort to him for advice or to be,
in the judgment of the President, safely responsible for his conduct of
the affairs of the Department of War, as by law required, in accordance
with the orders and instructions of the President; and thereupon, by
force of the Constitution and laws of the United States, which devolve
on the President the power and the duty to control the conduct of the
business of that Executive Department of the Government, and by reason
of the constitutional duty of the President to take care that the laws
be faithfully executed, this respondent did necessarily consider and did
determine that the said Stanton ought no longer to hold the said office
of Secretary for the Department of War. And this respondent, by virtue
of the power and authority vested in him as President of the United
States by the Constitution and laws of the United States, to give effect
to such his decision and determination, did, on the 5th day of August,
A.D. 1867, address to the said Stanton a note of which the following
is a true copy:
SIR: Public considerations of a high character constrain me to say that
your resignation as Secretary of War will be accepted.
To which note the said Stanton made the following reply:
WAR DEPARTMENT,
_Washington, August_ 5, _1867_.
SIR: Your note of this day has been received, stating that "public
considerations of a high character constrain" you "to say that" my
"resignation as Secretary of War will be accepted."
In reply I have the honor to say that public considerations of a high
character, which alone have induced me to continue at the head of this
Department, constrain me not to resign the office of Secretary of War
before the next meeting of Congress.
Very respectfully, yours,
EDWIN M. STANTON.
This respondent, as President of the United States, was thereon of
opinion that, having regard to the necessary official relations and
duties of the Secretary for the Department of War to the President of
the United States, according to the Constitution and laws of the United
States, and having regard to the responsibility of the President for
the conduct of the said Secretary, and having regard to the permanent
executive authority of the office which the respondent holds under
the Constitution and laws of the United States, it was impossible,
consistently with the public interests, to allow the said Stanton to
continue to hold the said office of Secretary for the Department of War;
and it then became the official duty of the respondent, as President of
the United States, to consider and decide what act or acts should and
might lawfully be done by him, as President of the United States, to
cause the said Stanton to surrender the said office.
This respondent was informed and verily believed that it was practically
settled by the First Congress of the United States, and had been so
considered and uniformly and in great numbers of instances acted on by
each Congress and President of the United States, in succession, from
President Washington to and including President Lincoln, and from the
First Congress to the Thirty-ninth Congress, that the Constitution of
the United States conferred on the President, as part of the executive
power and as one of the necessary means and instruments of performing
the executive duty expressly imposed on him by the Constitution of
taking care that the laws be faithfully executed, the power at any and
all times of removing from office all executive officers for cause to be
judged of by the President alone. This respondent had, in pursuance of
the Constitution, required the opinion of each principal officer of the
Executive Departments upon this question of constitutional executive
power and duty, and had been advised by each of them, including
the said Stanton, Secretary for the Department of War, that under
the Constitution of the United States this power was lodged by
the Constitution in the President of the United States, and that,
consequently, it could be lawfully exercised by him, and the Congress
could not deprive him thereof; and this respondent, in his capacity of
President of the United States, and because in that capacity he was both
enabled and bound to use his best judgment upon this question, did, in
good faith and with an earnest desire to arrive at the truth, come to
the conclusion and opinion, and did make the same known to the honorable
the Senate of the United States by a message dated on the 2d day of
March, 1867 (a true copy whereof is hereunto annexed and marked A), that
the power last mentioned was conferred and the duty of exercising it in
fit cases was imposed on the President by the Constitution of the United
States, and that the President could not be deprived of this power
or relieved of this duty, nor could the same be vested by law in the
President and the Senate jointly, either in part or whole; and this has
ever since remained and was the opinion of this respondent at the time
when he was forced as aforesaid to consider and decide what act or acts
should and might lawfully be done by this respondent, as President of
the United States, to cause the said Stanton to surrender the said
office.
This respondent was also then aware that by the first section of "An act
regulating the tenure of certain civil offices," passed March 2, 1867,
by a constitutional majority of both Houses of Congress, it was enacted
as follows:
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 such 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 may have been appointed and one month thereafter,
subject to removal by and with the advice and consent of the Senate.
This respondent was also aware that this act was understood and intended
to be an expression of the opinion of the Congress by which that act
was passed that the power to remove executive officers for cause might
by law be taken from the President and vested in him and the Senate
jointly; and although this respondent had arrived at and still retained
the opinion above expressed, and verily believed, as he still believes,
that the said first section of the last-mentioned act was and is wholly
inoperative and void by reason of its conflict with the Constitution of
the United States, yet, inasmuch as the same had been enacted by the
constitutional majority in each of the two Houses of that Congress, this
respondent considered it to be proper to examine and decide whether the
particular case of the said Stanton, on which it was this respondent's
duty to act, was within or without the terms of that first section of
the act, or, if within it, whether the President had not the power,
according to the terms of the act, to remove the said Stanton from the
office of Secretary for the Department of War; and having, in his
capacity of President of the United States, so examined and considered,
did form the opinion that the case of the said Stanton and his tenure of
office were not affected by the first section of the last-named act.
And this respondent, further answering, says that although a case thus
existed which, in his judgment, as President of the United States,
called for the exercise of the executive power to remove the said
Stanton from the office of Secretary for the Department of War; and
although this respondent was of opinion, as is above shown, that under
the Constitution of the United States the power to remove the said
Stanton from the said office was vested in the President of the United
States; and although this respondent was also of the opinion, as is
above shown, that the case of the said Stanton was not affected by
the first section of the last-named act; and although each of the
said opinions had been formed by this respondent upon an actual case,
requiring him, in his capacity of President of the United States, to
come to some judgment and determination thereon, yet this respondent,
as President of the United States, desired and determined to avoid, if
possible, any question of the construction and effect of the said first
section of the last-named act, and also the broader question of the
executive power conferred upon the President of the United States by
the Constitution of the United States to remove one of the principal
officers of one of the Executive Departments for cause seeming to him
sufficient; and this respondent also desired and determined that if,
from causes over which he could exert no control, it should become
absolutely necessary to raise and have in some way determined either
or both of the said last-named questions, it was in accordance with the
Constitution of the United States, and was required of the President
thereby, that questions of so much gravity and importance, upon which
the legislative and executive departments of the Government had
disagreed, which involved powers considered by all branches of the
Government, during its entire history down to the year 1867, to have
been confided by the Constitution of the United States to the President,
and to be necessary for the complete and proper execution of his
constitutional duties, should be in some proper way submitted to that
judicial department of the Government intrusted by the Constitution
with the power, and subjected by it to the duty, not only of
determining finally the construction and effect of all acts of Congress,
but of comparing them with the Constitution of the United States
and pronouncing them inoperative when found in conflict with that
fundamental law which the people have enacted for the government of
all their servants. And to these ends, first, that through the action
of the Senate of the United States the absolute duty of the President
to substitute some fit person in place of Mr. Stanton as one of his
advisers, and as a principal subordinate officer whose official conduct
he was responsible for and had lawful right to control, might, if
possible, be accomplished without the necessity of raising any one
of the questions aforesaid; and, second, if this duty could not
be so performed, then that these questions, or such of them as might
necessarily arise, should be judicially determined in manner aforesaid,
and for no other end or purpose, this respondent, as President of the
United States, on the 12th day of August, 1867, seven days after the
reception of the letter of the said Stanton of the 5th of August,
hereinbefore stated, did issue to the said Stanton the order
following, namely:
EXECUTIVE MANSION,
_Washington, August 12, 1867_.
Hon. EDWIN M. STANTON,
_Secretary of War_.
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 suspended
from office as Secretary of War, and will cease to exercise any and all
functions pertaining to the same.
You will at once transfer to General Ulysses S. Grant, 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.
To which said order the said Stanton made the following reply:
WAR DEPARTMENT,
_Washington City, August 12, 1867_.
The PRESIDENT.
SIR: Your note of this date has been received, informing me that by
virtue of the powers vested in you as President by the Constitution
and laws of the United States I am suspended from office as Secretary
of War, and will cease to exercise any and all functions pertaining to
the same; and also directing me at once to transfer to General Ulysses
S. Grant, 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 my custody and charge.
Under a sense of public duty, I am compelled to deny your right under
the Constitution and laws of the United States, without the advice and
consent of the Senate and without legal cause, to suspend me from office
as Secretary of War, or the exercise of any or all functions pertaining
to the same, or without such advice and consent to compel me to transfer
to any person the records, books, papers, and public property in my
custody as Secretary.
But inasmuch as the General Commanding the armies of the United States
has been appointed _ad interim_, and has notified me that he has
accepted the appointment, I have no alternative but to submit, under
protest, to superior force.
And this respondent, further answering, says that it is provided in and
by the second section of "An act regulating the tenure of certain civil
offices" that the President may suspend an officer from the performance
of the duties of the office held by him, for certain causes therein
designated, until the next meeting of the Senate and until the case
shall be acted on by the Senate; that this respondent, as President
of the United States, was advised, and he verily believed, and still
believes, that the executive power of removal from office confided to
him by the Constitution as aforesaid includes the power of suspension
from office at the pleasure of the President; and this respondent, by
the order aforesaid, did suspend the said Stanton from office, not until
the next meeting of the Senate or until the Senate should have acted
upon the case, but, by force of the power and authority vested in him by
the Constitution and laws of the United States, indefinitely and at the
pleasure of the President; and the order, in form aforesaid, was made
known to the Senate of the United States on the 12th day of December,
A.D. 1867, as will be more fully hereinafter stated.
And this respondent, further answering, says that in and by the act of
February 13, 1795, it was, among other things, provided and enacted that
in case of vacancy in the office of Secretary for the Department of
War it shall be lawful for the President, in case he shall think it
necessary, to authorize any person to perform the duties of that office
until a successor be appointed or such vacancy filled, but not exceeding
the term of six months; and this respondent, being advised and believing
that such law was in full force and not repealed, by an order dated
August 12, 1867, did authorize and empower Ulysses S. Grant, General of
the armies of the United States, to act as Secretary for the Department
of War _ad interim_, in the form in which similar authority had
theretofore been given, not until the next meeting of the Senate and
until the Senate should act on the case, but at the pleasure of the
President, subject only to the limitation of six months in the said
last-mentioned act contained; and a copy of the last-named order was
made known to the Senate of the United States on the 12th day of
December, A.D. 1867, as will be hereinafter more fully stated; and in
pursuance of the design and intention aforesaid, if it should become
necessary, to submit the said questions to a judicial determination,
this respondent, at or near the date of the last-mentioned order, did
make known such his purpose to obtain a judicial decision of the said
questions, or such of them as might be necessary.
And this respondent, further answering, says that in further pursuance
of his intention and design, if possible, to perform what he judged to
be his imperative duty, to prevent the said Stanton from longer holding
the office of Secretary for the Department of War, and at the same time
avoiding, if possible, any question respecting the extent of the power
of removal from executive office confided to the President by the
Constitution of the United States, and any question respecting the
construction and effect of the first section of the said "Act regulating
the tenure of certain civil offices," while he should not by any act of
his abandon and relinquish either a power which he believed the
Constitution had conferred on the President of the United States to
enable him to perform the duties of his office or a power designedly
left to him by the first section of the act of Congress last aforesaid,
this respondent did, on the 12th day of December, 1867, transmit to the
Senate of the United States a message, a copy whereof is hereunto
annexed and marked B, wherein he made known the orders aforesaid and
the reasons which had induced the same, so far as this respondent then
considered it material and necessary that the same should be set forth,
and reiterated his views concerning the constitutional power of removal
vested in the President, and also expressed his views concerning the
construction of the said first section of the last-mentioned act, as
respected the power of the President to remove the said Stanton from
the said office of Secretary for the Department of War, well hoping that
this respondent could thus perform what he then believed, and still
believes, to be his imperative duty in reference to the said Stanton
without derogating from the powers which this respondent believed were
confided to the President by the Constitution and laws, and without
the necessity of raising judicially any questions respecting the same.
And this respondent, further answering, says that this hope not having
been realized, the President was compelled either to allow the said
Stanton to resume the said office and remain therein contrary to the
settled convictions of the President, formed as aforesaid, respecting
the powers confided to him and the duties required of him by the
Constitution of the United States, and contrary to the opinion formed
as aforesaid that the first section of the last-mentioned act did not
affect the case of the said Stanton, and contrary to the fixed belief
of the President that he could no longer advise with or trust or be
responsible for the said Stanton in the said office of Secretary for the
Department of War, or else he was compelled to take such steps as might
in the judgment of the President be lawful and necessary to raise for a
judicial decision the questions affecting the lawful right of the said
Stanton to resume the said office or the power of the said Stanton to
persist in refusing to quit the said office if he should persist in
actually refusing to quit the same; and to this end, and to this end
only, this respondent did, on the 21st day of February, 1868, issue the
order for the removal of the said Stanton, in the said first article
mentioned and set forth, and the order authorizing the said Lorenzo
Thomas to act as Secretary of War _ad interim_, in the said second
article set forth.
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 regulating 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.
_Answer to Article II_.--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 Brevet
Major-General 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_.
_Answer to Article III_.--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 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.
_Answer to Article IV_.--And for answer to said fourth 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 Lorenzo Thomas, or with the said Thomas and any
other person or persons, with intent, by intimidations and threats,
unlawfully to hinder and prevent the said Stanton from holding said
office of Secretary for the Department of War, in violation of the
Constitution of the United States or of the provisions of the said act
of Congress in said article mentioned, or that he did then and there
commit or was guilty of a high crime in office. On the contrary thereof,
protesting that the said Stanton was not then and there lawfully the
Secretary for the Department of War, this respondent states that his
sole purpose in authorizing the said Thomas to act as Secretary for the
Department of War _ad interim_ was, as is fully stated in his answer to
the said first article, to bring the question of the right of the said
Stanton to hold said office, notwithstanding his said suspension, and
notwithstanding the said order of removal, and notwithstanding the said
authority of the said Thomas to act as Secretary of War _ad interim_, to
the test of a final decision by the Supreme Court of the United States
in the earliest practicable mode by which the question could be brought
before that tribunal.
This respondent did not conspire or agree with the said Thomas, or any
other person or persons, to use intimidation or threats to hinder or
prevent the said Stanton from holding the said office of Secretary for
the Department of War, nor did this respondent at any time command
or advise the said Thomas, or any other person or persons, to resort
to or use either threats or intimidation for that purpose. The only
means in the contemplation or purpose of respondent to be used are set
forth fully in the said orders of February 21, the first addressed to
Mr. Stanton and the second to the said Thomas. By the first order the
respondent notified Mr. Stanton that he was removed from the said office
and that his functions as Secretary for the Department of War were to
terminate upon the receipt of that order; and he also thereby notified
the said Stanton that the said Thomas had been authorized to act as
Secretary for the Department of War _ad interim_, and ordered the said
Stanton to transfer to him all the records, books, papers, and other
public property in his custody and charge; and by the second order this
respondent notified the said Thomas of the removal from office of the
said Stanton, and authorized him to act as Secretary for the Department
of War _ad interim_, and directed him to immediately enter upon the
discharge of the duties pertaining to that office and to receive the
transfer of all the records, books, papers, and other public property
from Mr. Stanton then in his custody and charge.
Respondent gave no instructions to the said Thomas to use intimidation
or threats to enforce obedience to these orders. He gave him no
authority to call in the aid of the military or any other force to
enable him to obtain possession of the office or of the books, papers,
records, or property thereof. The only agency resorted to, or intended
to be resorted to, was by means of the said Executive orders requiring
obedience. But the Secretary for the Department of War refused to obey
these orders, and still holds undisturbed possession and custody of that
Department and of the records, books, papers, and other public property
therein. Respondent further states that in execution of the orders so by
this respondent given to the said Thomas he, the said Thomas, proceeded
in a peaceful manner to demand of the said Stanton a surrender to him of
the public property in the said Department, and to vacate the possession
of the same, and to allow him, the said Thomas, peaceably to exercise
the duties devolved upon him by authority of the President. That, as
this respondent has been informed and believes, the said Stanton
peremptorily refused obedience to the orders so issued. Upon such
refusal no force or threat of force was used by the said Thomas, by
authority of the President or otherwise, to enforce obedience, either
then or at any subsequent time.
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 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.
_Answer to Article V_.--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 the 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 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.
_Answer to Article VI_.--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.
_Answer to Article VII_.--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.
_Answer to Article VIII_.--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 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.
_Answer to Article IX_.--And for answer to the said ninth article
the respondent states that on the said 22d day of February, 1868, the
following note was addressed to the said Emory by the private secretary
of the respondent:
EXECUTIVE MANSION,
WASHINGTON, D.C.,
_February 22, 1868_.
GENERAL: The President directs me to say that he will be pleased to have
you call upon him as early as practicable.
Respectfully and truly yours,
WILLIAM G. MOORE,
_United States Army_.
General Emory called at the Executive Mansion according to this request.
The object of respondent was to be advised by General Emory, as
commander of the Department of Washington, what changes had been made in
the military affairs of the department. Respondent had been informed
that various changes had been made which in no wise had been brought to
his notice or reported to him from the Department of War or from any
other quarter, and desired to ascertain the facts. After the said Emory
had explained in detail the changes which had taken place, said Emory
called the attention of respondent to a general order which he referred
to, and which this respondent then sent for, when it was produced. It is
as follows:
GENERAL ORDERS, No, 17.
WAR DEPARTMENT,
ADJUTANT-GENERALS OFFICE,
_Washington, March 14, 1867_.
The following acts of Congress are published for the information and
government of all concerned:
* * * * * * *
"II.--PUBLIC--No. 85.
"An act making appropriations for the support of the Army for the year
ending June 30, 1868, and for other purposes.
* * * * * * *
"SEC. 2. _And 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 or 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.
* * * * * * *
"Approved, March 2, 1867."
* * * * * * *
By order of the Secretary of War:
E.D. TOWNSEND,
_Assistant Adjutant-General_.
Official:
-------- --------,
_Assistant Adjutant-General_.
General Emory not only called the attention of respondent to this order,
but to the fact that it was in conformity with a section contained in an
appropriation act passed by Congress. Respondent, after reading the
order, observed:
This is not in accordance with the Constitution of the United States,
which makes me Commander in Chief of the Army and Navy, or of the
language of the commission which you hold.
General Emory then stated that this order had met the respondent's
approval. Respondent then said in reply, in substance:
Am I to understand that the President of the United States can not give
an order but through the General in Chief, or General Grant?
General Emory again reiterated the statement that it had met
respondent's approval, and that it was the opinion of some of the
leading lawyers of the country that this order was constitutional. With
some further conversation, respondent then inquired the names of the
lawyers who had given the opinion, and he mentioned the names of two.
Respondent then said that the object of the law was very evident,
referring to the clause in the appropriation act upon which the order
purported to be based. This, according to respondent's recollection,
was the substance of the conversation had with General Emory.
Respondent denies that any allegations in the said article of any
instructions or declarations given to the said Emory then or at any
other time contrary to or in addition to what is hereinbefore set forth
are true. Respondent denies that in said conversation with said Emory he
had any other intent than to express the opinion then given to the said
Emory, nor did he then or at any time request or order the said Emory
to disobey any law or any order issued in conformity with any law,
or intend to offer any inducement to the said Emory to violate any
law. What this respondent then said to General Emory was simply the
expression of an opinion which he then fully believed to be sound,
and which he yet believes to be so, and that is that by the express
provisions of the Constitution this respondent, as President, is made
the Commander in Chief of the armies of the United States, and as such
he is to be respected, and that his orders, whether issued through the
War Department, or through the General in Chief, or by any other channel
of communication, are entitled to respect and obedience, and that such
constitutional power can not be taken from him by virtue of any act of
Congress. Respondent doth therefore deny that by the expression of such
opinion he did commit or was guilty of a high misdemeanor in office;
and the respondent doth further say that the said Article IX 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.
In reference to the statement made by General Emory that this respondent
had approved of said act of Congress containing the section referred to,
the respondent admits that his formal approval was given to said act,
but accompanied the same by the following message, addressed and sent
with the act to the House of Representatives, in which House the said
act originated, and from which it came to respondent:
WASHINGTON, D.C., _March 2, 1867_.
_To the House of Representatives_:
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. These provisions
are contained in the second section, which in certain cases virtually
deprives the President of his constitutional functions as 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 sections which I have indicated.
Respondent, therefore, did no more than to express to said Emory the
same opinion which he had so expressed to the House of Representatives.
_Answer to Article X_.--And in answer to the tenth article and
specifications thereof the respondent says that on the 14th and 15th
days of August, in the year 1866, a political convention of delegates
from all or most of the States and Territories of the Union was held
in the city of Philadelphia, under the name and style of the National
Union Convention, for the purpose of maintaining and advancing certain
political views and opinions before the people of the United States, and
for their support and adoption in the exercise of the constitutional
suffrage in the elections of Representatives and Delegates in Congress
which were soon to occur in many of the States and Territories of the
Union; which said convention, in the course of its proceedings, and
in furtherance of the objects of the same, adopted a "Declaration of
principles" and "An address to the people of the United States," and
appointed a committee of two of its members from each State and of one
from each Territory and one from the District of Columbia to wait upon
the President of the United States and present to him a copy of the
proceedings of the convention; that on the 18th day of said month of
August this committee waited upon the President of the United States
at the Executive Mansion, and was received by him in one of the rooms
thereof, and by their chairman, Hon. Reverdy Johnson, then and now
a Senator of the United States, acting and speaking in their behalf,
presented a copy of the proceedings of the convention and addressed the
President of the United States in a speech of which a copy (according
to a published report of the same, and, as the respondent believes,
substantially a correct report) is hereto annexed as a part of this
answer, and marked Exhibit C.
That thereupon, and in reply to the address of said committee by their
chairman, this respondent addressed the said committee so waiting upon
him in one of the rooms of the Executive Mansion; and this respondent
believes that this his address to said committee is the occasion
referred to in the first specification of the tenth article; but this
respondent does not admit that the passages therein set forth, as if
extracts from a speech or address of this respondent upon said occasion,
correctly or justly present his speech or address upon said occasion,
but, on the contrary, this respondent demands and insists that if
this honorable court shall deem the said article and the said first
specification thereof to contain allegation of matter cognizable by
this honorable court as a high misdemeanor in office within the intent
and meaning of the Constitution of the United States, and shall receive
or allow proof in support of the same, that proof shall be required
to be made of the actual speech and address of this respondent on
said occasion, which this respondent denies that said article and
specification contain or correctly or justly represent.
And this respondent, further answering the tenth article and the
specifications thereof, says that at Cleveland, in the State of Ohio,
and on the 3d day of September, in the year 1866, he was attended by a
large assemblage of his fellow-citizens, and in deference and obedience
to their call and demand he addressed them upon matters of public and
political consideration; and this respondent believes that said occasion
and address are referred to in the second specification of the tenth
article; but this respondent does not admit that the passages therein
set forth, as if extracts from a speech of this respondent on said
occasion, correctly or justly present his speech or address upon said
occasion, but, on the contrary, this respondent demands and insists that
if this honorable court shall deem the said article and the said second
specification thereof to contain allegation of matter cognizable by this
honorable court as a high misdemeanor in office within the intent and
meaning of the Constitution of the United States, and shall receive or
allow proof in support of the same, that proof shall be required to be
made of the actual speech and address of this respondent on said
occasion, which this respondent denies that said article and
specification contain or correctly or justly represent.
And this respondent, further answering the tenth article and the
specifications thereof, says that at St. Louis, in the State of
Missouri, and on the 8th day of September, in the year 1866, he was
attended by a numerous assemblage of his fellow-citizens, and in
deference and obedience to their call and demand he addressed them upon
matters of public and political consideration; and this respondent
believes that said occasion and address are referred to in the third
specification of the tenth article; but this respondent does not admit
that the passages therein set forth, as if extracts from a speech of
this respondent on said occasion, correctly or justly present his speech
or address upon said occasion, but, on the contrary, this respondent
demands and insists that if this honorable court shall deem the said
article and the said third specification thereof to contain allegation
of matter cognizable by this honorable court as a high misdemeanor in
office within the intent and meaning of the Constitution of the United
States, and shall receive or allow proof in support of the same, that
proof shall be required to be made of the actual speech and address of
this respondent on said occasion, which this respondent denies that the
said article and specification contain or correctly or justly represent.
And this respondent, further answering the tenth article, protesting
that he has not been unmindful of the high duties of his office or of
the harmony or courtesies which ought to exist and be maintained between
the executive and legislative branches of the Government of the United
States, denies that he has ever intended or designed to set aside the
rightful authority or powers of Congress, or attempted to bring into
disgrace, ridicule, hatred, contempt, or reproach the Congress of the
United States, or either branch thereof, or to impair or destroy the
regard or respect of all or any of the good people of the United States
for the Congress or the rightful legislative power thereof, or to excite
the odium or resentment of all or any of the good people of the United
States against Congress and the laws by it duly and constitutionally
enacted. This respondent further says that at all times he has, in his
official acts as President, recognized the authority of the several
Congresses of the United States as constituted and organized during his
administration of the office of President of the United States.
And this respondent, further answering, says that he has from time
to time, under his constitutional right and duty as President of the
United States, communicated to Congress his views and opinions in
regard to such acts or resolutions thereof as, being submitted to him
as President of the United States in pursuance of the Constitution,
seemed to this respondent to require such communications; and he has
from time to time, in the exercise of that freedom of speech which
belongs to him as a citizen of the United States, and, in his political
relations as President of the United States to the people of the United
States, is upon fit occasions a duty of the highest obligation, expressed
to his fellow-citizens his views and opinions respecting the measures
and proceedings of Congress; and that in such addresses to his
fellow-citizens and in such his communications to Congress he has
expressed his views, opinions, and judgment of and concerning the actual
constitution of the two Houses of Congress, without representation
therein of certain States of the Union, and of the effect that in wisdom
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