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A Constitutional History of the United States
Chapter XLVI - Reconstruction II: Congress Has its Way; Impeachment
by McLaughlin, Andrew C.

Johnson's annual message of December (1866) was restrained, but it dwelt on the theme now utterly distasteful to Congress. That body was not to be won over. The day for such hope was past. A bill granting negro suffrage in the District of Columbia was vetoed by the President and immediately passed over the veto (January 8, 1867). A bill establishing negro suffrage in the territories became a law without the President's signature. The hands on the dial were moving steadily toward the enfranchisement of the black man everywhere. The Republicans, desiring the addition of congressmen from states which would support the party's policies and adopt the fourteenth amendment, passed a bill admitting Colorado, but it was vetoed. A similar measure for admitting Nebraska met presidential disapproval, but was passed over his veto. In each bill admission was made conditional upon the acceptance of negro suffrage. Rejection of the fourteenth amendment by the southern states, except of course Tennessee, simply added to the zeal of the Radicals now firmly intrenched in power.

The congressional leaders had by this time reason for being solicitous, not only concerning the President, but concerning the Supreme Court, which, if not submissive, might cause serious trouble. The Milligan case (1866), to which reference has already been made, declaring the illegality of military tribunals for the trial and punishment of civilians when the civil courts were open, might indicate a readiness of the Court to support the President. It made plain that henceforth the north at least was not to be treated as a theater of war. And what of the south? If the doctrine of the case were given full effect, it appeared to endanger plans for keeping the southern states under military control until the congressional will was complied with. But the worst fears of judicial interference with Reconstruction proved unfounded.

Several cases of importance came before the Supreme Court, two of them to test the validity of congressional Reconstruction: Mississippi v. Johnson,[1] and Georgia v. Stanton.[2] In both cases the Court refused to take jurisdiction. In the first case, the Court declared it had no jurisdiction to entertain a bill to enjoin the President in the performance of his official acts.[3] In the second, the Court said a bill seeking to restrain the Secretary of War and generals acting under him called for the judgment of the Court upon political questions and did not therefore present a case within the proper cognizance of the Court.[4] A state test oath of Missouri, which was intended to keep ex-Confederates and their sympathizers from the exercise of certain professions, was declared by the Court to be an ex post facto law; [5] and a federal provision of somewhat similar character was likewise pronounced invalid.[6]

The contemptuous method by which Thad Stevens and his coadjutors now worked their will justified in a measure the charge that the government was in the hands of an "irresponsible ... directory". Before the end of the thirty-ninth Congress (March 4, 1867) three especially important measures were passed: the Army Appropriation bill, the Tenure of Office Act, and a Reconstruction Act. Particularly obnoxious to any theory of constitutional regularity was a provision of the Army Appropriation bill, which sought to restrict the power of the President as commander-in-chief and directed that the militia in several southern states should not be called into service without the authority of Congress. At least portions of this extraordinary act appear to have been actually dictated by Stanton, Johnson's Secretary of War, who from his seat in the cabinet was prepared to watch the President and protect the interests of the excited and unrelenting coterie in command at the capitol.[7] By the Tenure of Office Act, the President's power to remove officials from office was greatly restricted, and he was thus deprived of the authority to compel obedience to his will. The nature and effect of the act will be discussed in later pages.

The Reconstruction measure, which we shall now consider, not only nullified the President's plans but ignored the decision of the Supreme Court concerning the illegality of military commissions. By this measure Congress put military Reconstruction into operation. If the "rebels" would not behave of their own accord, the federal troops would be on hand to suppress disorder. Five military districts were established; it was made the duty of the President to assign to the command of each district a general of the army with sufficient troops to enforce his authority. The duty of this officer was to protect all persons and their property, to suppress disorder, and, if in his judgment it be necessary, to organize military commissions for the trial and punishment of offenders, with the special provision that no sentence of death be carried into effect without the President's approval. Though these provisions were a deliberate establishment of military rule, they were thought by Congress to be justified because of disorders in the southern states. The main purpose of the act was to make certain the adoption of the fourteenth amendment and the acceptance of negro suffrage in the south. To this end, elaborate and explicit provision was made in the fifth section. It provided that the previous sections should be inoperative and the states should be admitted to representation when certain things were done: in each state a convention must be chosen and a new constitution framed and ratified by the people; in selecting delegates and in passing upon the constitution submitted, all males twenty-one years of age or older, of "whatever race, color, or previous condition," except such as were disfranchised because they participated in rebellion or were felons at common law, should have the right to vote; and the same basis of suffrage must be laid down in the constitution. But it was specially provided that no person excluded from the privilege of holding office by the proposed amendment should be entitled to vote for members of the convention or be a member of the convention. The constitution, if adopted, must be submitted to Congress, and the fourteenth amendment must be passed by the legislature of each state. This, however, was not all; for not until the amendment had become part of the federal Constitution was the state to be allowed full representation in Congress and the act of Reconstruction to be no longer in force. To make assurance doubly sure, two supplementary acts were passed within a brief time after the passage of the main measure. The first one (March 23, 1867) contained numerous provisions regulating elections and increasing the power of the commanding general of each district. By this method the southern states were to be compelled not only to adopt the amendment but to grant suffrage to the negroes; in other words, though the amendment left to the states the choice of extending the suffrage or, on the other hand, of having representation cut down, the Reconstruction Act forced the adoption of negro suffrage upon the southern states. The act, together with the two supplemental measures, embodied the main principles by which the Reconstruction process was accomplished: the overthrow of the state governments organized under proclamations of the President; the establishment of military government; and congressional determination of the qualifications of voters.[8]

Johnson, helpless, and in the eyes of northern enthusiasts hopelessly discredited, could nevertheless still indulge in powerful if unavailing argument. His message (largely the work of Jeremiah S. Black) vetoing the Reconstruction Act was able and vigorous.[9] "I submit to Congress", the message said, "whether this measure is not in its whole character, scope, and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure." It is hardly worth our while to pass upon the constitutionality of this method of Reconstruction; it seems almost a trivial task, because so much more was involved than any question of technical regularity. Congress was determined to force the south to adopt negro suffrage; if anyone can find constitutional justification, that will not help him much in an attempt to find ethical or political justification. No historian now fails to lament the spirit of implacable rancor underlying much of the congressional procedure; and this rancor overtops any question of technical constitutional authority, for it left behind it a sense of bitter injustice which persisted for decades; it postponed the cementing of the real spirit of social union and harmony between the sections.

Conditions and events during the summer of 1867 must be briefly if inadequately summarized: (1) the President issued (September 7) a new and fairly comprehensive proclamation extending pardon, with a few general exceptions, to all persons who had directly or indirectly participated in the rebellion; much as the congressional "directory" might chafe and fume, the President could not be stripped of his pardoning power. (2) The military held sway in the southern states. The officers were faced with great perplexities, especially in deciding how much recognition should be given to the civil authorities and to what extent in ordinary civil and criminal matters state laws should prevail. On the whole, the officers must be credited with commendable restraint, in the light of their great authority which might have been grossly abused.[10] (3) The southern states, under military supervision, were moving slowly toward the fulfillment of conditions entitling them to reinstatement, while the more respectable whites as a rule were hesitating or refusing to drink the bitter draught that was held out to them. (4) Congressional leaders, now in a state more like hysteria than anything else, were eyeing Johnson with hostility and unending suspicion. They had already been planning impeachment; and they must have been grievously disappointed by the President's failure to resist the Reconstruction Act and thus to make himself guilty of palpable disregard of law. Unremitting watchfulness might still detect in his conduct some ground for the last and conclusive assault.

The President's messages, able and courageous as they were, sometimes were couched in unnecessarily vigorous terms. The annual message of December, 1867, contained at least one unfortunate passage, for the eager watchers were ready to make use of every misstep and to put the worst construction upon his every word. By the beginning of December a dignified protest would have been sufficient; he could make no impression; and he had carried out the measures that had been passed over his veto, or had allowed them to be carried out. Having said that a faithful magistrate would concede much to honest error and not adopt forcible means of opposition, he proceeded in his message to say: "It is true that cases may occur in which the Executive would be compelled to stand on its rights, and maintain them regardless of all consequences. If Congress should pass an act which is not only in palpable conflict with the Constitution, but will certainly, if carried out, produce immediate and irreparable injury to the organic structure of the Government, and if there be neither judicial remedy for the wrongs it inflicts nor power in the people to protect themselves without the official aid of their elected defender — if, for instance, the legislative department should pass an act even through all the forms of law to abolish a coordinate department of the Government — in such a case the President must take the high responsibilities of his office and save the life of the nation at all hazards." He believed the Reconstruction acts, though plainly unconstitutional, not to be of such a character as to justify his using "the high responsibilities of his office". Why, then, did he utter a theoretical assertion, even if it were sound doctrine? Was he threatening to resist forcibly impeachment and removal? If impeachment were successful, it would bring into the presidential office Ben Wade of Ohio, the president pro tem of the Senate, one of the crew who were determined to handle the ship; it would come near to the establishment of Congress on the throne. This passage in the message was undoubtedly connected with Johnson's fixed intention, not to resist orderly impeachment, but to oppose any attempt to suspend him, and also to oppose any unconstitutional assaults upon the presidency as a coordinate branch of the government.[11]

Efforts to impeach the President had begun early in the year (1867), but for a time the movement did not meet with success. The diligence of the committee, seeking acts and words that would condemn the culprit, beggars description; the very effort to describe it is humiliating and distasteful.[12] Judged by the precepts of plain common sense, the whole project was as foolish as it proved to be futile. A resolution to impeach was defeated in December, and it looked as if the crisis were passed. But not so. No policy of "thorough" is abandoned until it is finished. Johnson had now only a little over a year to serve: if the ignominy of removal was to be put upon him, there was need for haste. His difficulties in dealing with Stanton, the War Secretary, gave the anxious patriots a chance to win.

We must now return to the Tenure of Office Act passed the preceding March, for upon that act depended in large measure the hopes of those determined upon Johnson's dismissal from office. The act provided in its first and crucial section that "every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate ... 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 for one month thereafter, subject to removal by and with the advice and consent of the Senate." By the terms of the act the President might, during a recess of the Senate, suspend any officer (except judges) whom he deemed guilty of misconduct or to be incapable, and he might designate another person to perform temporarily the duties of the suspended officer until the next meeting of the Senate and until the Senate acted upon the matter. In case of such suspension the President was to make, within twenty days after the next meeting of the Senate, a report to the Senate, giving the evidence and reasons for his action. If the Senate should not concur, the officer removed must be reinstated. Any person accepting any office or attempting to exercise its powers, contrary to the provisions of the act, should be deemed guilty of a high misdemeanor punishable by fine or imprisonment or both.

This famous act, it is needless to say, ran counter to the practices of the government from the beginning. Constitutional authority for its passage need not here receive long discussion. Possibly it is safe to say that, had it not been for the history of the preceding eighty years and the development of the presidential office during that time, the constitutionality of the act might be open to serious debate; or, let us say, as a purely theoretical problem the authority of the Senate to agree or not agree to removals might be considered defensible, particularly in cases where the act establishing the office provided for the Senate's consent.[13] But history, if not inexorable logic, was arrayed against Congress.

Of chief importance were the express mention of cabinet officers and the words used in the act concerning their terms of office. When the measure was before Congress, the two houses had differed, one from the other, concerning the propriety of taking from the President the power to remove his cabinet members; the result of the controversy was the adoption of the compromise which appears in the proviso quoted in the preceding paragraph. But the compromise, possibly intentionally obscure, does not readily reveal its meaning, for even here we find removal dependent on the Senate's consent. Apparently, however, the clause might be so interpreted as to permit, without the Senate's consent, the removal of the cabinet members who had been appointed by Lincoln and were still in office [14] — an exceedingly important interpretation, as matters turned out.

The presidential veto of the Tenure of Office Act was vigorous and strong. The cabinet unanimously condemned the act. No one was more outspoken than Stanton. He was "very emphatic and seemed glad of an opportunity to be in accord with his colleagues." [15] Seward appears to have written the veto message, with Stanton's assistance.[16]

In midsummer, Johnson asked for Stanton's resignation and the Secretary refused to offer it; evidently by Sherman's definition he was no gentleman. The President then suspended him (August 12) and authorized General Grant to act as Secretary of War ad interim. Thereupon Stanton, though denying the right of the President to suspend him, turned over the office to Grant. Soon after the meeting of Congress in December, Johnson transmitted to the Senate his reasons for taking this action; he not only maintained his right on general principles to remove a cabinet officer, but assigned reasons for the suspension of Stanton. The sending of the message could possibly be considered an acknowledgment of the constitutionality and binding force of the Tenure of Office Act. When the Senate refused to concur in the suspension, Grant withdrew (January 14, 1868). Stanton once again assumed office, fully prepared to watch over the destinies of the republic. Some five weeks passed, and Johnson, having decided to test his power, ordered Stanton's removal from the secretaryship and authorized General Lorenzo Thomas to act as Secretary of War ad interim (February 21, 1868). Stanton refused to obey, and the Senate declared the President had no power to remove him and appoint another. Stanton continued on guard.

General Thomas, after demanding the office from Stanton, was arrested and released on bail. Excitement ran high. Johnson, on being informed by Thomas of the arrest, said, "Very well, that is the place I want it in — the courts." The question at issue received no judicial determination, however, for the Stanton attorneys did not ask for Thomas's imprisonment, but they consented to his discharge; and thus vanished the opportunity to obtain judicial decision on the constitutionality of the Tenure of Office Act.[17]

Unable longer to endure the contumacious man in the White House, the war gods in Congress were now prepared to strike. A resolution of impeachment passed the House, February 24, 1868, and in the early days of March eleven articles of impeachment were adopted.[18] The first eight articles, with formidable prolixity, charged the President with various high crimes and misdemeanors, especially with violating the Tenure of Office Act, but with other offenses also. The ninth article accused the President of unlawful conversation with a general of the army with intent to induce him to disregard and to violate the act which provided that military orders should issue only from the general of the army — an accusation which in the end proved to be trivial and of no consequence. Article ten, the work of the doughty Ben Butler, whose presence was to darken Republican counsels for some years to come, was a potpourri of the foolish things said by Johnson on various public occasions; these "utterances, declarations, threats, and harangues" were pronounced "peculiarly indecent ... in the Chief Magistrate of the United States," bringing the presidential office "into contempt, ridicule, and disgrace...." The eleventh article, coming from the hand of Stevens, charged Johnson with making various unconstitutional declarations and with attempting to prevent the execution of the Tenure of Office Act and other acts, all of these charges being so woven together as to serve as a blanket indictment.[19]

The charges as a whole appear now to be a decided anticlimax, almost amusing in fact, after all the flurry, the fervid declamation, and the extravagant denunciation in which Congress had indulged. For, unless the disregard of the Tenure of Office Act constituted an impeachable offense, nothing very tangible was set forth. The use of language shocking to Butler — and to far more sensitive souls — , however deplorable such language was (almost as bad indeed as things said by some of the President's accusers), could scarcely be deemed a constitutional misdemeanor; and while the contemptuous references to Congress were reprehensible and in the worst possible taste, they did not reach the stage of absolute illegality. Had the accusers been able to discover actual refusal of the President to carry out the Reconstruction measures, the attack would have had far greater force. On the whole, the refusal to obey the Tenure of Office Act and Johnson's unsuccessful plans to get possession of the office of the Secretary of War formed the burden of the serious charges against him.

The House managers conducting the case against the President were anxious not to countenance anything in the conduct of the trial which would distinctly imply that the Senate was sitting as a judicial tribunal and was bound by the principles of law and the rules of evidence commonly accepted and applied in courts of justice. The question early arose concerning the right of the Chief Justice to pass upon admissibility of evidence, and in fact whether he was only a presiding officer and in no proper sense a member of the trial body. The accusers of the President did not desire interference. The Senate decided that the "presiding officer" might rule on the admissibility of evidence and that the rule should stand unless there was objection, in which case the question should be passed on by the Senate itself. "We claim and respectfully insist," said Butler in the opening address for the House managers of the prosecution, "that this Tribunal has none of the attributes of a judicial Court as they are commonly received and understood.... We suggest, therefore, that we are in the presence of the Senate of the United States convened as a constitutional tribunal, to inquire into and determine whether Andrew Johnson, because of malversation in office, is longer fit to retain the office of President of the United States, or hereafter to hold any office of honor or profit.... You are a law unto yourselves, bound only by the natural principles of equity and justice, and that salus populi suprema est lex." [20] According to this reasoning, senators could properly vote on political grounds and decree the removal of Johnson from office because they thought removal would be beneficial and salutary.

The House managers, in order to carry out the theory that the Senate was not sitting as a court and that the proceeding was not a "trial", commonly addressed the presiding officer as "Mr. President". The counsel for the President, on the other hand, attempted to guard and protect the judicial character of the tribunal and to repel the assumption that the Senate was merely a political body. "Mr. Chief Justice," said Benjamin R. Curtis, the distinguished Ex-Justice who had written the famous dissenting opinion in the Dred Scott case, "I am here to speak to the Senate of the United States sitting in its judicial capacity as a court of impeachment, presided over by the Chief Justice of the United States, for the trial of the President of the United States. This statement sufficiently characterizes what I have to say. Here party spirit, political schemes, foregone conclusions, outrageous biases can have no fit operation." This final sentence is sufficient to disclose the proper nature of the proceedings, and it makes clear also the objectionable character of the attack by the President's accusers. The lamentable and shameful fact is that the counsel for the defense found it necessary to make any such announcement. The House managers were intent upon defining an impeachable offense so broadly as to allow them to make charges of impropriety and abuse of discretion and not be compelled to show that the President had been guilty of a criminal act or even of distinct disobedience to positive law. "We define, therefore," Butler declared, "an impeachable high crime or misdemeanor to be one in its nature or consequences subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives, or for any improper purpose." [21]

The charge of violating the Tenure of Office Act was debated at length. It was in fact the center of the trial; for the other accusations were too flimsy to be relied upon. Johnson's counsel asserted the President's authority to remove officials; they referred to the practices and precedents of preceding decades; they declared that the duty of seeing that laws are faithfully executed involved the duty of removing officials who, in the President's judgment, were not co÷perating with him in that imperative obligation.[22]

But did the President have the constitutional authority to refuse obedience to the act? The act, said his accusers, had been passed and it was his duty to obey it; having refused obedience and having acted in open violation of the act, he was a lawbreaker and guilty of a high crime and misdemeanor. Johnson's counsel could not with safety rely openly and frankly on the President's right to disregard the law and treat it as unconstitutional and void; and Curtis, for the defense, announced a doctrine by which he hoped to avoid the difficulty. The President, he said, took no extreme ground: "When a law has been passed through the forms of legislation, either with his assent or without his assent, it is his duty to see that that law is faithfully executed so long as nothing is required of him but ministerial action. He is not to erect himself into a judicial court and decide that the law is unconstitutional, and that therefore he will not execute it; for, if that were done, manifestly there never could be a judicial decision.... His idea of his duty is, that if a law is passed over his veto which he believes to be unconstitutional, and that law affects the interests of third persons, those whose interests are affected must take care of them, vindicate them, raise questions concerning them, if they should be so advised....

"But when, senators, a question arises whether a particular law has cut off a power confided to him by the people, through the Constitution, and he alone can raise that question, and he alone can cause a judicial decision to come between the two branches of the government to say which of them is right, and after due deliberation, with the advice of those who are his proper advisers, he settles down firmly upon the opinion that such is the character of the law, it remains to be decided by you whether there is any violation of his duty when he takes the needful steps to raise that question and have it peacefully decided." [23]

This seems to be a practical solution of the problem; and certainly no more extreme position could have been wisely taken by the President's defenders. But it assumes that the Supreme Court is a final arbiter for settling disputes between departments of the government; it shows how far the authority and function of the Court had risen since the early days when courts assumed their right to refuse to respect a law which they deemed unconstitutional. To present an opinion differing from that of the learned Ex-Justice may be rare presumption; but the writer ventures to suggest that the President, in pure theory, can refuse to carry out any unconstitutional law; if, however, a court of impeachment finds the law valid, his refusal to enforce it properly subjects him to the penalty of removal from office. In such a case the Senate, and not the judiciary, is the court.[24] We may even raise the question whether the Senate, sitting as a constitutional tribunal, is technically bound by the decision of the Supreme Court concerning the validity of an act.

Much argument was used by the defense to show that it was at the best doubtful whether the Tenure of Office Act really protected Stanton in the possession of his office. Johnson, in his answer, declared that on full consideration he had reached the conclusion that the "case of the said Stanton and his tenure of office were not affected" by the act.[25] What was meant by the statement that the cabinet officers should "hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter"? Stanton had been appointed by Lincoln. The act might well appear to have for its purpose a recognition of the right of a president to choose his own cabinet and not be bound by the choice of his predecessor. Was Johnson filling Lincoln's term, and was he therefore obliged to retain Lincoln's cabinet, or did Lincoln's term end with his death? If Johnson had found the wrong exit from the obscurity of a perplexing passage, should he be convicted of a high crime or misdemeanor?

After weeks of argument and examination of witnesses, the trial came to an end. The first vote was taken on the eleventh article (May 16, 1868). There were fifty-four senators; thirty-six votes were needed to convict. The ballot showed thirty-five votes for conviction and nineteen for acquittal. Ten days later, the Senate voted on articles two and three; the former declared Johnson guilty of a high misdemeanor in violating the Tenure of Office Act; the latter charged him with a like offense in appointing Thomas Secretary of War ad interim. The votes on these articles resulted as before: nineteen senators again voted "not guilty". Whereupon the Senate "sitting as a court of impeachment" adjourned without day. Among the nineteen were seven Republicans, who, though not belonging to the most extreme faction, had been opposed to Johnson and his methods. To them must go the honor — it is now considered an honor — of acting with bravery, resisting public clamor, and facing ostracism and banishment from their party. They were Fessenden of Maine, Fowler of Tennessee, Grimes of Iowa, Henderson of Missouri, Ross of Kansas, Trumbull of Illinois, and Van Winkle of West Virginia. It seems hard indeed, and it marks the depths to which rank partisanship had sunk, that men like Fessenden and Trumbull, able and honest, whose services had been of inestimable value to their party and to the cause of the union, should have to suffer the slings and arrows of petty and ignorant abuse.

Upon the acquittal of Johnson, Stanton "relinquished charge of the War Department". The President nominated General Schofield "in place of Edwin M. Stanton, removed". The words quoted are significant of the purposeful tenacity of the two men. But Johnson had the victory. When Grant became President he recommended the total repeal of the Tenure of Office Act, and it was modified by Congress. In Cleveland's term it was finally and totally repealed.

The result of the trial is of great significance in constitutional history. Johnson could be found guilty of no direct violation of law. Stanton must now be adjudged guilty of gross impropriety and of holding office without constitutional authority; and, in light of his whole line of conduct, this is a mild and extra-merciful sentence of condemnation. Had Johnson been engaged in an attempt to seize the war office and order the army to resist Congress and the Reconstruction acts, Stanton's refusal to obey his superior might have been morally justifiable, whether or not it was technically legal; but as he had been closely associated with the President for years, he must have known that to charge Johnson with such purposes was preposterous. If the impeachment had been successful, the result might have been accepted as a precedent of momentous influence on our constitutional system. "Once set the example", said Trumbull, in giving the reasons for his vote, "of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient cause, and no future President will be safe who happens to differ with a majority of the House and two thirds of the Senate on any measure deemed by them important, particularly if of a political character." The trial stands to-day as the most regrettable and shameful exhibition of personal spite and ruthless partisanship in American history.[26]

[1] 4 Wallace 475 (1867).

[2] 6 Wallace 50 (1867).

[3] "It will hardly be contended that Congress [the Court] can interpose, in any case, to restrain the enactment of an unconstitutional law; and yet how can the right to judicial interposition to prevent such an enactment ... be distinguished, in principle, from the right to such interposition against the execution of such a law by the President? ... Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance." 4 Wallace 475, 500. We should notice that the general principle remains, that, unless the act complained of is distinctly political, the agents of the President may be held responsible for unconstitutional and hence illegal acts. See Little v. Barreme, 2 Cranch 170 (1804). "But when he [the president] exceeds his authority, or usurps that which belongs to one of the other departments, his orders, commands, or warrants protect no one, and his agents become personally responsible for their acts. The check of the courts, therefore, consists in their ability to keep the Executive within the sphere of his authority by refusing to give the sanction of law to whatever he may do beyond it, and by holding the agents and instruments of his unlawful action to strict accountability." T. M. Cooley, The General Principles of Constitutional Law (4th ed.), p. 203.

[4] Pointing out the argument that the matters in controversy were political and therefore not judicial, the Court said: "This distinction results from the organization of the government into the three great departments ... and from the assignment and limitation of the powers of each by the Constitution." 6 Wallace 50, 71. Cf. Luther v. Borden, 7 Howard I (1849), where Taney laid down the principle: "Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so." In this connection Kendall v. United States, 12 Peters 524 (1838), is of interest, where the Court held that the Postmaster-General, being charged with a purely ministerial duty, could be ordered to perform it.

[5] Cummings v. Missouri, 4 Wallace 277 (1867).

[6] Ex parte Garland, 4 Wallace 333 (1867).

[7] Though he sent a message of protest, Johnson, not to defeat the appropriation, signed the bill. It provided that all orders and instructions relating to military operations should be issued through the General of the Army; that the General should not be removed or assigned to command elsewhere than at Washington, except at his own request, without the previous approval of the Senate (!). It was necessary, it seems, to have General Grant at Washington, lest the President should misbehave. Johnson, in protest, said the bill virtually deprived the President of his functions as commander-in-chief, and that it denied to the states mentioned the constitutional right to protect themselves in any emergency by means of their own militia. In the former of these two charges, and perhaps in both, his position was unquestionably sound. Johnson's message is in McPherson, op. cit., p. 178. Dunning says Stanton was the source of the legislation obliging the President as commander-in-chief to consult the Senate before issuing certain orders to his subordinate. Dunning speaks of Stanton's "amazing record of duplicity". See Dunning, Reconstruction, p. 91, and G. S. Boutwell, Reminiscences, II, pp. 107-108.

[8] Cf. Dunning, Essays, p. 126.

[9] W. A. Dunning, "More Light on Andrew Johnson," Am. Hist. Rev., XI, p. 585.

[10] Dunning, who certainly holds no brief for the congressional policy of "thorough", says, "It would be hard to deny that, so far as the ordinary civil administration was concerned, the rule of the generals was as just and efficient as it was far-reaching." "Yet equity and sound judgment are sufficiently discernible in their conduct of civil affairs to afford a basis for the view that military government, pure and simple, unaccompanied by the measures for the institution of negro suffrage, might have proved for a time a useful aid to social readjustment in the South, as preliminary to the final solution of political problems." Essays, pp. 174-175.

[11] For discussion in the cabinet, see Welles, Diary, III, pp. 237-238; Dunning, "More Light on Andrew Johnson," loc. cit., pp. 589-591. Grant was at that time a member of the cabinet. Johnson had polled the cabinet, and Dunning says that it appears "not unlikely that one leading motive in Johnson's project to poll the cabinet was to secure a formal committal of General Grant to the policy of resistance in case an attempt should be made by the radicals to depose the President." The message and the cabinet paper were drafted by Black. Ibid., p. 592.

[12] The nature of the attack may be illustrated by a few words of J. M. Ashley, who asserted that Johnson had come into office "through the door of assassination", was guilty of black and infamous crimes, and was a "loathing [loathsome?] incubus".

[13] For an argument to the effect that, under some circumstances, an official may not be legally removed from office without the Senate's consent, see especially the dissenting opinion of Justice Holmes in the case of Myers v. U. S.. 272 U. S. 52 (1926). The majority of the Court sustained the presidential authority to remove. See the discussion in a preceding chapter of the present volume in regard to Jackson's removal of Duane.

[14] Some of the Senators persuaded themselves that the clause was unimportant and not worth a controversy. "I have no doubt", said Williams of Oregon, "that any Cabinet minister who has a particle of self respect ... would decline to remain in the Cabinet after the President had signified to him that his presence was no longer needed." Hendricks, on the contrary, said, "The very person who ought to be turned out is the very person who will stay in. A gentleman, of course, would not." Sherman said the House conferees were "very tenacious" and that "the general purpose of the bill ... ought not to be endangered by a dispute on a collateral question." "I think that no gentleman, no man with any sense of honor, would hold a position of Cabinet officer after his chief desired his removal...." Sherman maintained that the provision did not apply "to the present President. The Senator [Doolittle] shows that himself, and argues truly that it would not prevent the present President from removing the Secretary of War, the Secretary of the Navy and the Secretary of State." Not all of the Senators at that time knew Stanton as they were to know him. See D. M. Dewitt, The Impeachment and Trial of Andrew Johnson, pp. 196-199.

[15] Welles, Diary, III, pp. 50-51. "Every member of my Cabinet advised me that the proposed law was unconstitutional. All spoke without doubt or reservation, but Mr. Stanton's condemnation of the law was the most elaborate and emphatic." Johnson's message to the Senate, December 12, 1867. Richardson, Messages and Papers, VI, p. 587.

[16] Dewitt, op. cit., p. 203. Dunning says, "... it was brought out in the impeachment trial that Seward wrote it...." Dunning, "More Light on Andrew Johnson," loc. cit., XI, p. 583. As to Stanton's participation, see Welles, Diary, III, p. 54.

[17] The story, a highly dramatic one, is told in Trial of Andrew Johnson, I, especially p. 427 ff. and p. 607 ff. The attorneys for Thomas "directed General Thomas to decline giving any bail for further appearance, and to surrender himself into custody, and announce to the judge that he was in custody, and then presented to the criminal court an application for a writ of habeas corpus. The counsel on the other side objected that General Thomas could not put himself into custody, and they did not desire that he should be detained in custody." The Thomas counsel, supposing that the Stanton counsel would not consent, then asked that Thomas be discharged, and he was discharged. Ibid., I, p. 609.

[18] They are to be found in McPherson, op. cit., pp. 266-270; Trial, I, pp. 6-10.

[19] "It will be seen that all of these articles, except the tenth, charge violations either of the Constitution of the United States, of the tenure-of-office act, of the conspiracy act of 1861, of the military appropriation act of 1867, or the of the [sic] reconstruction act of March 2, 1867. The tenth article ... does not charge a violation either of the Constitution of the United States or of any act of Congress. Five of these articles charge a violation of the Constitution.... Seven ... charge violations of the tenure-of-office act.... Two of the articles charge a violation of the conspiracy act of 1861.... Two of them charge violations of the appropriation act of March 2, 1867.... One only charges a violation of the reconstruction act of March 2, 1867, and that is article eleven." Stanbery, in his address to the Senate, May 2, 1868. Trial, II, P. 363.

[20] Ibid., I, p. 90.

[21] Trial, I, p. 88. Italics of the original omitted. Before this time there had been five cases of impeachment, all but one of the accused officers being judges. Of one case the Senate had declined to take jurisdiction; in two instances the accused was acquitted. Judge Pickering had been convicted and removed from office, not for any indictable offense but for misconduct on the bench, and as a matter of fact, he was insane. Judge Humphreys was found guilty of serious acts favoring the cause of the Confederacy and was likewise removed (1862).

[22] See especially the final address of Henry Stanbery, Trial, II, p. 359 ff.

[23] Ibid., I, p. 387.

[24] Burgess agrees with Curtis and appears to go even further in the way of denying the right of the President to refuse execution of a law: "He must execute the laws passed over his veto upon matters which in his opinion touch his executive prerogatives, just the same as upon all other matters...." Reconstruction and the Constitution, p. 183. Curtis said that if after the President has taken competent and proper advice "he finds that he cannot allow the law to operate in the particular case without abandoning a power which he believes has been confided to him by the people, it is his solemn conviction that it is his duty to assert the power and obtain a judicial decision thereon."

[25] Answer to Article I. McPherson, op. cit., p. 273.

[26] It may be appropriate to quote a few words of Butler's opening address as illustrative of the spirit and the acrimony of the day. He quoted the foolish things which the President had said in the "swing around the circle", and then declared: "We can say this man was not the choice of the people for the President of the United States. He was thrown to the surface by the whirlpool of civil war.... By murder most foul he succeeded to the Presidency, and is the elect of an assassin to that high office, and not of the people.... We can remove him — as we are about to do — from the office he has disgraced by the sure, safe, and constitutional method of impeachment...." Trial, I, p. 119.


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