George William Curtis
Annotation: In Tennessee Johnson, a 1940s movie about the nation's first presidential impeachment trial, President Johnson (played by Van Heflin) storms into the Senate Chamber and gives an eloquent speech to avert his ouster. In fact, the president's own lawyers kept him out of the Senate chamber, fearing he would lose his temper.
Officially, Johnson was impeached for violating the Tenure of Office Act, which had been passed over Johnson's veto, which prohibited the president from dismissing certain federal officials without Senate approval, and for denouncing Congress as unfit to legislate. But those reasons masked the issues that were more important to Congressional Republicans. Johnson had vetoed 20 Reconstruction bills and had urged southern legislatures to reject the 14th Amendment, guaranteeing equal protection of the laws. He had ordered African American families evicted from land on which they had been settled by the U.S. Army.
Johnson's lawyers sought to portray the dispute as a partisan attack made to look like a legal proceedings. His opponents insisted he had abused his powers and flouted the will of Congress. The House voted 126-47 to impeach Johnson on 11 separate articles. The proceedings were intensively partisan. One Republican Representative even suggested that Johnson, as vice president, had been involved in the plot to assassinate President Lincoln, just so he could succeed him. The chief of the Secret Service gave false reports that the president had an affair with a woman seeking to obtain pardons for former Confederates.
Johnson's attorneys argued the Tenure of Office Act applied to officials appointed by the president, and since Secretary of War Stanton was appointed by Lincoln, not Johnson, he was not covered by the act.
The final vote was 35 to 19, one short of the two-thirds needed for conviction and removal from office. Seven Republicans voted to acquit The Senate voted on two more articles of impeachment, each again just one vote shy of conviction. The chamber never voted on the remaining eight impeachment articles. But Johnson had been defamed. In the future, he no longer obstructed Congress' Reconstruction policies.
President Johnson spent the rest of life seeking vindication. He actively pursued the 1868 Democratic presidential nomination but in the end lost the nomination to New York governor Horatio Seymour, who subsequently lost the election to Republican candidate Ulysses S. Grant. Johnson then moved back to Tennessee, where he ran unsuccessfully for the U.S. Senate in 1869 and the House in 1872. He was elected to the U.S. Senate in 1874 and was greeted by the Senators with thunderous applause, his desk strewn with roses. After a few months, however, he suffered a series of strokes and died. His wife placed a copy of the U.S. Constitution under his head in his coffin.
Document: SHALL THE PRESIDENT BE IMPEACHED? In the course of our political history it has been often said by stump orators, in the rhetorical culmination of their discourses, that the President ought to be impeached; but so serious a measure has never yet been adopted by Congress nor justified by the country. But when two gentlemen like General Butler and Mr. Boutwell, each of whom will be members of the next Congress, announce that they shall take the preliminary steps of impeachment, and when one of them states in detail the grounds upon which he would justify his action, it is but fair to suppose that they mean what they say, and intend to bring the subject before Congress.
Mr. Boutwell says, and with perfect truth, that an impeachment is not a revolutionary measure. It is no more so—indeed, in our history, not as much so—as an election. The Constitution plainly provides for impeachment as it does for any other emergency. It is the only way in which the official offenses of certain officers can be reached. But it is, of course, a measure of the very gravest character—one which in ordinary times would profoundly excite the country, and which in extraordinary times like these would produce an equally extraordinary agitation. It is a remedy which should be invoked only in great emergencies. The offense must be plain, the peril indisputable, to justify the temporary suspension of the executive authority in the person if its constitutional representative. For, unlike other trials, it seems, according to General Butler, that, in case of impeachment, the accused is to be considered guilty until he is proved to be innocent. He may be suspended from his functions until he proves his unblemished right to exercise them.
There are two questions which immediately present themselves. Has the conduct of the President made him liable to impeachment? And if so, would it be wise to impeach him?
We are certainly correct in saying that there is no general conviction at present that the President ought to be impeached. That his Presidency is a national misfortune, and that but for him the country would be rapidly returning to a normal condition, is unquestionable. That he is entirely unfitted by natural capacity and training for the office he holds is painfully conspicuous. That he comprehends neither the causes nor the consequences of the war, and is curiously ignorant both of the American people and of the dominant idea of our politics is undeniable. But these, although misfortunes for the country, are not impeachable offenses. And we are to remember that the President did not thrust himself into his office, but came to it by constitutional election and succession. Much is said of his personal habits, but it is rumor merely. It has not appeared, nor has it been seriously alleged, that he has habits which substantially prevent him from properly fulfilling his official duties.
Ought he then to be impeached for perilous political offenses? He is charged with usurping the prerogative of Congress in settling the questions left by the war, and with a shameful prostitution of official patronage to personal ends. But as to the first charge, his offense thus far is nothing more than a violent and indecent assertion of what is constitutional and of what Congress ought to do. He has expressed opinions, but he has as yet attempted no acts. He has indeed, denounced the opinions of those who differ with him as treason, and their holders as deserving of the gibbet. But this merely shows the mental muddle in which he has been long involved. It is natural to suppose that a man of his passionate temperament will endeavor to enforce his views in some way, and it is the part of wisdom to be watchful and ready. But until that time his views are merely his own opinions, and they are opinions held among a people who thoroughly comprehend the situation.
The President’s abuse of the appointing power, and his total misconception of the relations of the various officers to the Government, are indeed extraordinary, but they are not unprecedented. His conduct is not essentially different from that of other late Presidents, and will lead undoubtedly, as it should, to a legal remedy of a very menacing danger to which the Government is exposed. The whole question of appointment and removal, in its exact constitutional relations, is still an open one, and if the President be guilty of the grossest and baldest attempts at political bribery by patronage, his offense is not so peculiar as to justify, in the public mind, so extraordinary a correction as impeachment.
It would be enough, therefore, to prove the inexpediency, under the circumstances, of an impeachment, that the grounds of action are neither evident nor adequate to the public mind. But there are other reasons which render it especially impolitic. It would unnecessarily embitter and prolong the present party conflict. Under the circumstances—for it is circumstances which determine expediency—it would wear the air of an act of indignant revenge; and it would be curiously disproportioned to the present offense. If, indeed, as Mr. Wendell Phillips seems to suppose, the President is a conscious and malignant conspirator, in concert with others, to put the Government into the hands of its enemies, and to force its friends into the position of rebels, the situation is revolutionary, and demands unusual measures. But the elections show that, whatever may be the foul intentions of any man or party, the great mass of loyal American citizens are neither deceived nor asleep. They have paid a fearful price for their control of the Government, and they do not mean to relinquish it. Mr. Wade Hampton, and Mr. Alexander H. Stephens, and Mayor Monroe, and Raphael Semmes, and the President, and Mr. Seward, and Mr. John T. Hoffman, and Mr. Vallandigham, and Mr. Montgomery Blair, may say and do what they will. They can neither wheedle nor frighten the people who saved the Union from securing it in the way which seems to them most just, most generous, and most enduring. And that security no more requires the impeachment of the President than the hanging of Jefferson Davis.
Harper's Weekly, April 11, 1868, p. 226 THE PRESIDENT’S USURPATIONS The pretense that President Johnson is a martyr to his defense of the Constitution is intended only for the inexperienced. We maintain, on the contrary, that his present position before the country is due to his manifest and bold usurpation of power.
The capitulation of General Lee’s army occurred on the 9th of April 1865. That of General Johnston followed soon after. The death of President Lincoln occurred on the 15th day of April, too soon after these conclusive events for the development of any Presidential policy. The Vice-President took the oath of office as President at this interesting juncture, when he had only to wait for the surrender of the last rebel forces in the southwest—which soon followed—to know that every sword drawn in opposition to the Union had been sheathed. The terms of the capitulation of General Lee and of his associates embraced merely the personnel of their respective armies, leaving to be adjusted with the Union the relations which the revolted States and the great mass of their people should thenceforward occupy. The question embraced that large class which, lately slaves and chattels, had "emerged into the human character."
Two policies were presented for the consideration of President Johnson. One of them, and obviously the correct one, was the convocation of Congress, as the duty of complete adjustment was wholly legislative—following, in that respect, the war power which is bestowed on Congress. The other policy was to adopt the English precedents, which devolve the duty of such adjustments on the Executive—the war power in England being wholly Executive to and including the settlement of the terms of peace. President Johnson chose the latter, and thus commenced his usurpations of authority
In defense of his measures—in which, affecting to represent the Sovereignty of the United States, he gave Governors and governments to States lately in revolt—it is claimed that they were only temporary in their character, and that President Lincoln had set the example. But the action of President Lincoln with respect to Tennessee occurred in the midst of hostilities, when unusual powers appertain to the Commander-in-chief, embracing every thing necessary for success or safety; and the Southern States did not view the action of President Johnson as of a temporary character; on the contrary, it had the appearance of being, and it was treated as being, of a permanent character.
What were the relations of the Southern States to the Union at this juncture? "It is an established principle of international law." Said Mr. Calhoun, "that whenever a country is subdued, even in part, its sovereignty is for the time suspended, and that of the conquering substituted in its place." This was asserted in behalf of the United States with respect to Mexico, but on the question where the power to exercise the substituted sovereignty resided, he observed: "I readily concede to the President, as Commander-in-chief, many and great powers, but they are such as arise out of exigencies immediately connected with the operations of the army, and its success or safety… but when he undertakes to exercise power, on his own authority, over subdued territories unconnected with the operations of the army, he exercises, in my opinion, a power not belonging to him. Congress may by law authorize him to levy contributions or to establish temporary governments in such territory; but it is one thing to exercise it on his own authority, and another to exercise it under the authority of law. The one places him under the control of law, while the other places him above its control."
That this doctrine applies to the States which undertook to secede from the Union, and for this purpose to take upon themselves a new and different character from that they previously had, is obvious from a single test. Were the rebel States during hostilities, when their whole energies were concentrated into a public force and arrayed against the United States, entitled to be represented on the floor of Congress? No one will allege that they were. If they could not take part in Congress in determining how we should conduct the war against them, it follows that they can not take the same part in adjusting the terms of peace. These terms still remain to be arranged. This arrangement must be made upon the rule of international law, that, as one of the results of victory, the sovereignty of the Untied States immediately prevails over a conquered people. Any other idea would enable the Southern States, through means of representation in Congress or in local Legislatures, to obstruct such arrangements as are necessary to the safety of the Union. No other alternative would in that case remain but the further and interminable persecution of the war.
The error of the President in assuming a wholly different state of things—such, for instance, as that the revolted States were still as States in the Union, their rights unimpaired by the war they waged with terrible energy, and in further assuming that his was the authority which could adjust the difficulties—is still operating greatly to the embarrassment of the whole country, which doubtless would have been in as harmonious relations as the circumstances allowed had Congress been convened. The power to assemble "both Houses or either of them… on extraordinary occasions" is expressly conferred in the 3d ¶ of the second Article, and it is clear that the President’s omission to act under this authority was a manifest neglect of the public interest. The desire on the one side to escape the perils of treason—for the army only had been relieved—and the feeling of magnanimity which then extensively prevailed in the North would have found some common ground on which restoration might have been safely based. The President undertook, however, to settle the question—the gravest ever presented for decision—and to admit the Southern States into the Union through the bars which he had thrown down, without consulting that power under our Government which alone has jurisdiction of the question—the legislative power.
The war had created a national debt and a confederate debt, one was to be made operative over the whole Union, the other inoperative everywhere. It had left maimed and disabled soldiers and families on both sides; those of the nation were to be rewarded with pensions, and those of the rebels unprotected by such rewards; it had changed the relations of master and slave so as to require new regulations; and it is perfectly idle to suppose that these and other important questions, and the one which underlies them all, upon whom the suffrage shall hereafter devolve, could be arranged without the intervention of Congress.
It was a grave failure of duty to omit the convocation of Congress, inasmuch as the regular session was not to commence until nearly eight months after General Lee’s capitulation, during which time the ship of state could go on only under very great disadvantages. Was the idea then entertained that Congress was a body "hanging on the verge of the Government," or was the motive for not convening them founded on objects of personal ambition? The same fundamental error of policy which assumed to act independently of Congress and in defiance of Congress, has been persistently followed by the President as each successive step has been taken by that body in prescribing the terms of peace. The country has been kept apart and in difficulty through this obstruction, until at last a direct assault has been made by the Executive upon the Tenure-of-Office Act, and consequently upon the power of Congress.
This Act undertook to protect the Secretary of War against removal. Such was one of its manifest objects, as the President well knew when he suspended Mr. Stanton under its provision, and the Senate, also, under its provisions, had restored Mr. Stanton. It is a mere quibble to say that the immovability of Mr. Stanton was not only not intended but was excepted from the operation of the law. The President himself having settled this point by first suspending Mr. Stanton—as this mode of proceeding had no other authority than the Tenure-of-Office Act—is estopped from now claiming that the same Act gave him the power of removal.
We have undertaken to meet the President’s additional ground, that this Act is unconstitutional, by arguments founded on the specific powers conferred on Congress, wholly at variance with the implied power of removal clamed for the President. Subsequent investigation enables us to present the highest authority for the opinions we have thus advance. Mr. Clay, Mr. Webster (the latter, Vol. 4 of his works, p.179), Mr. Calhoun, and Mr. Clayton, in the debates in 1835 and 1846, agreed in opinion that it is competent for Congress to require, as to all officers, excepting judicial, appointed "by and with the advice and consent of the Senate," that the power of removal shall be exercised only in like manner.
It was not alone in debate that Mr. Calhoun thus committed himself, but in his work on the Constitution of the United States, regarded in the light of a testamentary contribution from his mind, at pages 220, 344, and 369, the doctrine is solemnly asserted that it is wholly in the power of Congress thus to fix the tenure of offices except of the judicial; that the concession made to the President by the Congress of 1789 is unconstitutional; and that it is necessary to the safety of the Union to prevent the exercise of the power of removal by him, without "the advice and consent of the Senate."
That he alone is not the safe depository of this power appears from the fact that he persists in retaining in office all those persons connected with the Internal Revenue Department whose frequent abuses and gross neglect of the public service are the subject of just complaint by those who are immediately responsible to the Secretary of the Treasury.
The country demands to know why these offenders are retained? But one answer can be given. They are the professed friends of the President, and he does not hesitate to consider allegiance to himself as a higher recommendation than would arise from fidelity to their trust or from allegiance to the Government.
Harper's Weekly, May 30, 1868, p. 338 THE OATH AND THE EVIDENCE During the unparalleled excitement over the result of the Impeachment it has been asserted that true statesmanship requires the removal of the President, and that true statesmen would not go mousing about to see exactly what their oaths demand. Impeachment, it is said, and the word is used as meaning conviction and removal, is not only statesmanship but justice and peace. So it is, if it be lawfully accomplished, not otherwise. The assertion as made assumes one thing, that when a President is obnoxious to the party in power and it can control a vote of two-thirds, he should be removed. This may be advisable. The liberties of the citizen may be as secure under such a system as they are under ours. But that is not the question. It is not our system, and it can not be made so without the destruction of the peculiar safeguards which make in great measure the excellence of our system. We have been earnest advocates of Impeachment. It seems to us that the President has deliberately violated the law, and under the circumstances it is clear to us that no good intention can be inferred. The precedent of his offense is perilous, and we think that the necessary facts are established that the President has committed the offense which the Constitution contemplates in providing for impeachment, and that he ought therefore to be removed.
But we are not the official judges—our party is not the judge—still less are the official accusers the judges. The Constitution provides the judges, and they take an especial oath. But they do not sit as judges upon the President’s political career. Their oath expressly forbids them to do that by binding them to render a judgment according to the evidence offered upon specific charges. If those charges are loosely drawn, if they are not sound in law, if they are unsupported by evidence, it is the accusers not the judges who are responsible. If the accusers have been too eager, if they have taken counsel of passion instead of reason, it is they, not the judges, who have been in error.
That Andrew Johnson has betrayed the party that elected him, that he has lamentably perplexed and delayed reconstruction, that he is virtually in alliance with those who hope to defeat the legitimate consequences of the war, and is, therefore, an enemy of peace and the Union, we have never doubted, and have always steadily maintained. But the intelligence of the Republican party, although acknowledging all this, yet held that impeachment upon the general fact of his delaying and perplexing reconstruction was inexpedient. The House of Representatives, by an immense Republican majority, ratified this view. But when the President attempted the removal of Mr. Stanton it was felt that he had now committed such an act as would justify the solemnity of Impeachment, and the same House, by a unanimous vote of the party, impeached.
But why did they wait until this particular action? Because they knew that there was but one constitutional method of removing the President, and that was by a judicial investigation of specific charges to be supported by evidence; the Managers, upon the part of the House, being the prosecuting counsel; the President’s lawyers, the defense; and the Senate, with the Chief justice presiding, "sitting" "to try" the impeachment. Is it not the Senate, as a legislative or political body, that so sits, but the Senate as a court or judicial body specially sworn to decide upon certain charges according to the evidence not according to "statesmanship," not according to its conviction of the general offenses of the President, not according to its view of party exigencies or of political necessities, but according to the evidence. If, in the judgment of the Senators, the evidence be insufficient, if the specific charges are not honestly proved, they are bound by every consideration of justice and honor and the public peace to render a verdict accordingly. If they should decide that although the evidence, according to which they were sworn to judge, was insufficient, yet that they would find the President guilty because he was bad enough to have done what was charged, they would be guilty of the plainest perjury, and every public trust would be just as much imperiled in their hands as in those of the President, whom they would convict against their oaths.
The theory that impeachment or conviction is statesmanship, justice, and peace, assumes that perjury is a virtue. The removal of the President may, indeed, be justice and peace. A Senator who is sworn to find according to the evidence, but who disregards the evidence and convicts upon a general dissatisfaction with the President, renders a false verdict, and removes him by unjust means; and if he yields to the clamor of his party, and deliberately prostitutes his sincere conviction to popular dictation, he not only fatally disgraces himself, and demoralizes the public conscience, but he betrays civilization.
If the Constitution meant that a two-thirds vote of the Senate should remove the President, it would say so. But when it provides that he shall be removed only after proper trial and the presentation of evidence upon distinct charges against which he may defend himself, it forbids his removal in any other manner whatever. The moment, therefore, that party coercion of the Senate is attempted, every man who believes that our system is in nothing wiser than in this very point, will resist the attempt to overthrow it . The process of Impeachment is a foolish and cumbrous farce if the Senate may remove the President without proved charges; and if it can not, although party threats and the vilest vituperation may ruin a Senator politically, and may even kill him by the mental struggle to which they subject him, yet they can not make the evidence more conclusive, and they can not absolve him from his oath to decide according to the evidence alone.
Harper's Weekly, March 13, 1869, p. 162
ANDREW JOHNSON Andrew Johnson retires from the Presidency without the regret of a single person who does not fear removal from office and with certainly as little general respect as attended the retirement of Mr. Pierce or Mr. Buchanan. They were all, indeed, politicians of the same school, and that the worst school in American politics - a school which demanded moral and intellectual sophistication, and required its followers to defend the worst form of despotism as harmonious with the Democratic principle. It is a school whose political ascendancy in this country for more than a generation not only brought the country to the verge of ruin, but made the name of Democracy odious in the mind of honorable and intelligent men every where. It gave the country such Presidents as Polk, Pierce, Buchanan, and Andrew Johnson. Judged by the tenets of such a school, and by such representative chiefs, what was so natural as the universal official foreign sneer that greeted the beginning of the rebellion?
Mr. Johnson was elected by the Republicans, but he was never in sympathy with the principles of the party. His nomination was a departure from the rule which political managers should never forget, to trust in emergencies none but those who are beyond doubt. Had the war been a question of saving the Union only, Mr. Johnson was as good a candidate as any. But it was a question of saving the Union upon Republican principles, and he was therefore as bad a candidate as could have been selected. The melancholy spectacle of his inauguration was full of foreboding. The black shadows of murderous conspiracy amidst which he took his seat, only deepened the gloom occasioned by his verbose threats of rigor, and the conviction of his dullness and narrowness grew with every speech he made.
In the first development of his policy he claimed to follow the precedent of Mr. Lincoln. But Mr. Lincoln had no Procrustean policy; and it was possible for Mr. Johnson neither to comprehend the character nor to assume what is granted to so few men, the exquisite good sense and sagacity of his predecessor. Among the most melancholy displays of this melancholy Administration have been the reiterations of Senators Dixon and Doolittle that to blame Mr. Johnson was to blame Mr. Lincoln. Whenever that assertion was repeated a profound sense of the hopelessness of debate must have fallen upon the Senate. It is not easy to imagine two men more radically and absolutely different in character, temperament, wisdom, and political principle; and the man who could gravely defend Mr. Johnson’s veto of the Civil Rights Bill, for instance, because Mr. Lincoln wanted to recognize a certain government in Arkansas, might amuse and exasperate, but he could not persuade nor win respect.
When the differences between the President and Congress deepened we strove in these columns, so far as practicable and honorable, to postpone the evil day, and to put the President in the position of one who had left the party that elected him rather than in that of a chief whom the party had deserted. The Philadelphia movement failed, not because there were not shrewd men connected with it, but because it was a deliberate invitation to the conscience and patriotism of the country which had lavished life and money and freed the slaves, to trust every thing in the future to Andrew Johnson, the rebel leaders and the Democratic party. The New Orleans massacre was merely a vivid illustration of the inevitable result of the Philadelphia policy of "peace and fraternity." Then the desperate struggle between the Executive and the Legislative power was joined; and then, unquestionably, except for the perfectly steady attitude of the loyal country at the elections Andrew Johnson would have shown himself as daring as he was dogged. Could he have had his way all that was really gained by the war would have been as far as possible surrendered. He meant to betray and abandon the Freedmen, and the World admits that could they have been kept from the suffrage the ex-rebel States would have been Democratic. With those States restored under ex-rebel ascendancy allied with the kind of Democracy that was revealed in the World during the Presidential campaign, and which saw in Wade Hampton a typical American citizen, and in General Lee a grand old soldier, the work of Andrew Johnson would have been complete.
He failed, and failed utterly; failed so miserably that, in the last weeks of his Administration, he could only revenge himself by absurd attempts wantonly to vex his successor. He nominated to the Senate for consul to Havana a soldier who was conspicuously the enemy of General Grant, and for minister to Chile, General Grant’s brother-in-law and friend. Mr. Johnson’s Administration has had, however, the good result of proving the character of the people. At every moment of his evil career it has been evident that the country condemned him; and undoubtedly it anticipated his removal when he was impeached. There verdict against him failed of the necessary two-thirds vote, but it was recorded in the heart of the people as it will be in history; and the enthusiastic election, as his successor, of the man whom he had sought publicly to brand as a liar, contemptuously dismissed a President who will be remembered for not one wise work or one truly honorable action.