The power conferred by the Constitution upon Congress to impeach and
remove the President for cause, is unquestionably a wise provision. The
natural tendency of the most patriotic of men, in the exercise of power
in great public emergencies, is to overstep the line of absolute
safety, in the conscientious conviction that a departure from strict
constitutional or legal limitations is demanded by the public welfare.
The danger in such departures, even upon apparent necessity, if condoned
or permitted by public judgment is in the establishment of precedents
whereby greater and more dangerous infractions of organic law may be
invited, tolerated, and justified, till government takes on a form of
absolutism in one form or another, fatal to free institutions, fatal to
a government of law, and fatal to popular liberty.
On the other hand, a too ready resort to the power of impeachment as
a remedial agent--the deposition of a public officer in the absence
of proof of the most positive and convincing character of the
impeachability of the offense alleged, naturally tends to the other
extreme, till public officers may become by common consent removable by
impeachment upon insufficient though popular charges--even upon partisan
differences and on sharply contested questions of public administration.
The power of impeachment and removal becomes, therefore, a two-edged
sword, which must be handled with consummate judgment and skill, and
resort thereto had only in the gravest emergencies and for causes so
clearly manifest as to preclude the possibility of partisan divisions or
partisan judgments thereon. Otherwise, too ready resort to impeachment
must inevitably establish and bring into common use a new and dangerous
remedy for the cure of assumed political ills which have their origin
only in partisan differences as to methods of administration. It
would become an engine of partisan intolerance for the punishment and
ostracism of political opponents, under the operation of which the great
office of Chief Magistrate must inevitably lose its dignity, and
decline from its Constitutional rank as a co-ordinate department of
the Government, and its occupant no longer the political head and Chief
Executive of the Nation, except in name.
It was in that sense, and to a pointed degree, that in the impeachment
and trial of Andrew Johnson the quality of coordination of the three
great Departments of Government--the Executive, Legislative, and
Judicial--was directly involved--the House of Representatives as
prosecutor--the President as defendant--the Senate sitting as the trial
court in which the Chief Justice represented the judicial department as
presiding officer.
The anomaly of the situation was increased and its gravity intensified,
by the fact that the President pro tempore of the Senate, who stood
first in the line of succession to the Presidency in case of conviction,
was permitted, in a measure, indeed, forced by his pro-impeachment
colleagues, on a partisan division of the Senate, to sit and vote
as such President pro tempore for the impeachment and removal of the
President whom he was to succeed.
These facts of condition attending and characterizing the trial of
President Johnson, pointedly accentuate the danger to our composite form
of government which the country then faced. That danger, as it had found
frequent illustration in the debates in the House of Representatives on
the several propositions for the President's impeachment preceding the
bringing of the indictment, lay in the claim of superiority of political
function for the Legislative branch over the Executive. The quality
of co-ordination of these departments was repeatedly and emphatically
denied by conspicuous and influential members of that body during the
initial proceedings of the impeachment movement, and even on the floor
of the Senate by the managers of the impeachment. To illustrate:
Mr. Bingham, in the House, Feb. 22nd, 1868, announced the extraordinary
doctrine that "there is no power to review the action of Congress."
Again, speaking of the action of the Senate on the 21st of February, on
the President's message announcing the removal of Mr. Stanton, he said:
"Neither the Supreme Court nor any other Court can question or review
this judgment of the Senate."
The declaration was made by Messrs. Stevens and Boutwell in the House,
that the Senate was its own judge of the validity of its own acts.
Mr. Butler, in his opening speech to the Senate, at the beginning of the
trial, used this language:
A Constitutional tribunal solely, you are bound by no law, either
Statute or Common, which may limit your constitutional prerogative. You
consult no precedents save those of the law and custom of parliamentary
bodies. You are a law unto yourselves, bound only by the natural
principles of equity and justice, and salus populi suprema est lex.
Feb. 24, 1868, Mr. Stevens said in the House:
Neither the Executive nor the Judiciary had any right to interfere with
it (Reconstruction) except so far as was necessary to control it by
military rule until the sovereign power of the Nation had provided for
its civil administration. NO POWER BUT CONGRESS HAD ANY RIGHT TO SAY
WHETHER EVER, OR WHEN, they (the rebel States), should be admitted to
the Union as States and entitled to the privileges of the Constitution
of the United States. * * * I trust that when we come to vote upon
this question we shall remember that although it is the duty of the
President to see that the laws be executed, THE SOVEREIGN POWER OF THE
NATION RESTS IN CONGRESS.
Mr. Butler, the leading spirit of the impeachment enterprise, went so
far as to make the revolutionary suggestion of the abrogation of
the Presidential office in the event of final failure to convict the
President--set out in the 8th Chapter.
Mr. Sumner insisted that in no judicial sense was the Senate a Court,
and therefore not bound by the rules of judicial procedure:
If the Senate is a Court bound to judicial forms on the expulsion of the
President, must it not be the same in the expulsion of a Senator? But
nobody attributes to it any such strictures in the latter case. * * In
the case of Blount, which is the first in our history, the expulsion was
on the report of a committee declaring him guilty of a high misdemeanor.
At least one Senator has been expelled on simple formal motion. Others
have been expelled without any formal allegations or formal proofs. * *
* The Constitution provides that "Each House shall determine its rules
of proceeding." The Senate on the expulsion of its own members has
already done this practically and set an example of simplicity. But it
has the same power over its rules of proceeding on the expulsion of the
President, and there can be no reason for simplicity in the one case
not equally applicable in the other. Technicality is as little consonant
with the one as with the other. Each has for its object the PUBLIC
SAFETY. For this a Senator is expelled; for this, also, the President is
expelled. Salus Populi Suprema Lex. The proceedings in each case must be
in subordination to this rule."
Thus, Mr. Sumner would have removed the President by an ordinary
concurrent resolution of Congress.
The purpose of all this was apparent--that the President was in effect,
to be tried and judged before a Court of Public Opinion, and not before
the Senate sitting as a High Court of Impeachment, but BY the Senate
sitting in its legislative capacity--to create the impression in the
minds of Senators that in this high judicial procedure they were still
acting as a legislative body--simply as Senators, and not in a judicial
capacity, as judges and jurors, and therefore not bound specifically by
their oaths as such, to convict only for crime denounced by the law, or
for manifest high political misdemeanors, but could take cognizance
of and convict on alleged partisan offenses and allegations based
on differences of opinion and partisan prejudices and partisan
predilections--that it was not essential that the judgment of Senators
should be confined to the specific allegations of the indictment, but
that the whole range of alleged political and partisan misdemeanors and
delinquencies could be taken into account in seeking a pretext for Mr.
Johnson's conviction.
The superiority of the Legislative branch was thus openly advocated
and insisted, and uncontroverted by any Republican supporting the
impeachment. Mr. Johnson, according to these oft repeated declarations,
was to be tried and convicted, not necessarily for any specific
violation of law, or of the Constitution, but by prevailing public
opinion--public clamor-in a word, on administrative differences
subsisting between the President and the leaders of the dominant
party in and out of Congress, and that public opinion, as concurrent
developments fully establish, was industriously manufactured throughout
the North, on the demand of leaders of the impeachment movement in the
House, through the instrumentality of a partisan press and partisan
public meetings, and in turn reflected back upon the Senate, in the
form of resolutions denunciatory of the President and demanding his
impeachment and removal.
That was in fact, and in a large sense, the incentive to the impeachment
movement, and it was--not confined to a faction, but characterized the
dominant portion of the political party then in the ascendancy in and
out of Congress.
In this state of facts lay largely the vice of the impeachment movement,
and it illustrated to a startling degree the danger in the departure
from established forms of judicial procedure in such cases.
It became apparent, long before the close, that it was but little if
anything more than a partisan prosecution--and that fact became more
generally and firmly fixed, from day to day, as the trial approached
conclusion.
In that state of facts, again, and in that sense, the impeachment of
the President, was an assault upon the principle of coordination that
underlies our political system and thus a menace to our established
political forms, as, if successful, it would, logically, have been
the practical destruction of the Executive Department--and, in view
of previous legislation out of which the impeachment movement had to
a degree arisen, and of declarations in the House and Senate quoted in
this connection, the final and logical result of conviction would have
been the absorption of the Executive functions of the Government by the
Legislative Department, and the consequent declension of that Department
to a mere bureau for the registration of the decrees of the Legislature.
Conscious of the natural tendency to infringement by a given Department
of the Government upon the functions of its coordinates, the framers of
the Constitution wisely defined the respective spheres of the several
departments, and those definitions constitute unmistakable admonition
to each as to trespass by either upon the political territory of its
coordinates.
As John C. Calhoun wrote, in the early days of the Republic:
"The Constitution has not only made a general delegation of the
legislative power to one branch of the Government, of the executive
to another, and of the judicial to the third, but it has specifically
defined the general powers and duties of each of those departments. This
is essential to peace and safety in any Government, and especially in
one clothed only with specific power for national purposes and erected
in the midst of numerous State Governments retaining exclusive control
of their local concerns.* * * Were there no power to interpret,
pronounce and execute the law, the Government would perish through its
own imbecility, as was the case with the Articles of Confederation; or
other powers must be assumed by the legislative body, to the destruction
of liberty." Again, as was eloquently and forcefully said by Daniel
Webster in the U. S. Senate in 1834:
"The first object of a free people is the preservation of their liberty,
and liberty is only to be preserved by maintaining constitutional
restraints and just division of political power. Nothing is more
deceptive or more dangerous than the pretense of a desire to simplify
government. The simplest governments are despotisms; the next simplest,
limited monarchies; but all republics, all governments of law, must
impose numerous limitations and qualifications of authority and give
many positive and many qualified rights. In other words, they must
be subject to rule and regulation. This is the very essence of free
political institutions. The spirit of liberty is, indeed, a bold
and fearless spirit; but it is also a sharp-sighted spirit: it is a
cautious, sagacious, discriminating, far-seeing intelligence; it is
jealous of encroachment, jealous of power, jealous of man. It demands
checks; it seeks for guards; it insists on securities; it entrenches
itself behind strong defenses, and fortifies itself with all possible
care against the assaults of ambition and passion. It does not trust the
amiable weaknesses of human nature, and, therefore, it will not permit
power to overstep its prescribed limits, though benevolence, good
intent, and patriotic purpose come along with it. Neither does
it satisfy itself with flashy and temporary resistance to illegal
authority. Far otherwise. It seeks for duration and permanence; it looks
before and after; and, building on the experience of ages which are
past, it labors diligently for the benefit of ages to come. This is the
nature of constitutional liberty; and this is our liberty, if we will
rightly understand and preserve it. Every free government is necessarily
complicated, because all such governments establish restraints, as well
on the power of government itself as on that of individuals. If we will
abolish the distinction of branches, and have but one branch; if we will
abolish jury trials, and leave all to the judge; if we will then ordain
that the legislator shall himself be that judge; and if we will
place the executive power in the same hands, we may readily simplify
government. We may easily bring it to the simplest of all possible
forms, a pure despotism. But a separation of departments, so far as
practicable, and the preservation of clear lines of division between
them, is the fundamental idea in the creation of all our constitutions;
and, doubtless, the continuance of regulated liberty depends on
maintaining these boundaries."
Each department is supreme within its own constitutionally prescribed
limits, and the Supreme Court is made the umpire for the definition of
the limits and the protection of the rights of all. Neither Congress,
nor the Executive, are authorized to determine the constitutionality
and therefore the validity of their acts, or the limits of their
jurisdiction under the Constitution, but the Supreme Court is so
authorized, and it is the umpire before which all differences in that
regard must be determined. It is the tribunal of last resort, save the
people themselves, before whom both Senate and House, and the Executive,
must bow, and its decision is final in the interpretation of the
Constitution.
A due regard, therefore, for the interpretation of law and the division
of powers thus established, constitutes the great safeguard upon which
the harmonious and successful operation of our political system depends.
On its religious observance rests, primarily, the preservation of our
free institutions and the perpetuation of our peculiar system of popular
government. That quality of co-ordination--of the equality of the
several Departments as adjusted by the Organic Act--constitutes the
balance wheel of our political system.
The logical effect of the doctrines promulgated by the House of
Representatives in that regard, and re-echoed on the floor of the
Senate, in the press and on the stump throughout the North, were
therefore not only revolutionary, but destructive. To have removed
the President upon accusations in reality based upon partisan and
personal--not amounting even to substantial political differences--would
have been the establishment of a precedent of the most dangerous
character.
In a large sense, the American system of politics and of government was
on trial, quite as much as was Andrew Johnson. The extreme element
of American politics was in absolute control in the House of
Representatives, and practically so, in the Senate. The impeachment and
removal of the President on unsubstantiated, or even remotely doubtful
charges, simply: because of a disagreement between himself and Congress
as to the method of treating a great public emergency, would have
introduced a new and destructive practice into our political system.
Logically, the introduction of such a practice on that occasion would
have been construed as a precedent for the treatment of future public
emergencies. Thus, it would have tended to disturb the now perfect
adjustment of the balance of powers between the co-ordinate branches.
That quality of absolute supremacy of the several departments in their
respective spheres, or functions, and of co-ordination or equality in
their relations to each other, established by the Constitution as a
guarantee of the perpetuity of our political system, would have been
endangered, and the result could not have been otherwise than disaster
in the future.
Logically, the Presidency would in time have been degraded to the
position of a mere department for the execution of the decrees of the
legislative branch. Not illogically, the Supreme Court would have been
the next object of attack, and the legislature have become, by this
unconstitutional absorption of the powers of Government, the sole,
controlling force--in short the Government.
That would, in time, by equally logical sequence, have been the natural,
inevitable result--and the end. The wreckage of the Great Republic
of the age would have been strown upon the sands of the political
seashore--relics of the disregard of the checks and balances established
by the wisdom of its framers, in the fundamental law--and all for
the satisfaction of personal ambitions and the hates of factional
animosities.
History affords too many illustrations of that tendency to decadence
and disruption from disregard of the proper and necessary checks
and balances in the distribution and equalization of the powers of
government, to permit us to doubt what the final end would have been had
the President been removed on the unsubstantiated accusation preferred
by the House of Representatives, Our peculiar system of political
government--a Democratic Republic--passed the danger point of its
history in that hour.
It was indeed a narrow escape. The history of civilization records
no precisely similar condition. The country then passed the most
threatening period of its history--but passed it safely. The result
was the highest possible testimonial to the strength and endurance of
properly adjusted Democratic institutions that history records.
It emphasized not only the capacity of the American people for
intelligent and orderly self-government, but also the strength and
endurance of our popular forms. It was a profound surprise to those
habituated to different political conditions. They had witnessed with
astonishment the quiet disbandment of millions of men but as yesterday
engaged in mortal strife--the vast armies as peacefully returning to
former vocations as though from a great parade--and now, from a state of
civil convulsion that in many another nation would have produced
armed collision and public disorder, they saw an entire people quietly
accepting the verdict of the highest authoritive body of the land,
and practically dismissing the subject from thought. It was a splendid
world-wide tribute to the strength and endurance of our system of
popular government.
Yet the conclusion must not be deduced that the power of impeachment is
not a wise provision of our Constitution, nor in any sense inconsistent
with our popular forms. Conditions may, and are not unlikely to arise,
some day, when the exercise of the power to impeach and remove the
President may be quite as essential to the preservation of our political
system as it threatened to become in this instance destructive of that
system. Should that day ever come, it is to be hoped that the remedy
of impeachment, as established by the Constitution, may be as
patriotically, as fearlessly, and as unselfishly applied as it was on
this occasion rejected.
SUPPLEMENT.
Copy of letter addressed to each of the members of the Cabinet present
at the conversation between the President and General Grant on the 14th
of January, 1868, and the answers thereto:
Executive Mansion, Washington, D. C., February 5, 1868.
Sir:--The Chronicle of this morning contains a correspondence between
the President and General Grant, reported from the War Department, in
answer to a resolution of the House of Representatives. I beg to call
your attention to that correspondence, and especially to that part of
it which refers to the conversation between the President and General
Grant, at the Cabinet meeting on Tuesday, the 14th of January, and to
request you to state what was said in that conversation.
Very respectfully yours, Andrew Johnson.
Washington, D. C., February 5, 1868.
Sir:---Your note of this date was handed to me this evening. My
recollection of the conversation at the Cabinet meeting on Tuesday, the
14th of January, corresponds with your statement of it in the letter
of the 31st ultimo, in the published correspondence. The three points
specified in that letter, giving your recollection of the conversation,
are correctly stated.
Very respectfully, Gideon Welles.
To the President.
Treasury Department, February 6, 1868.
Sir:--I have received your note of the 5th instant, calling my attention
to the correspondence between yourself and General Grant, as published in
the Chronicle of yesterday, especially to that part of it which relates
to what occurred at the Cabinet meeting on Tuesday the 14th ultimo, and
requesting me to state what was said in the conversation referred to.
I cannot undertake to state the precise language used, but I have no
hesitation in saying that your account of that conversation, as given in
your letter to General Grant under date of the 31st ultimo substantially
and in all important particulars accords with my recollection of it.
With great respect, your obedient servant. Hugh McCulloch. To the
President.
Post Office Department Washington, February 6, 1868.
Sir:--I am in receipt of your letter of the 5th of February, calling my
attention to the correspondence published in the Chronicle between the
President and General Grant, and especially to that part of it which
refers to the conversation between the President and General Grant at
the Cabinet meeting on Tuesday, the 14th of January, with a request that
I state what was said in that conversation. In reply, I have the honor
to state that I have read carefully the correspondence in question, and
particularly the letter of the President to General Grant, dated January
31, 1868. The following extract from your letter of the 31st January to
General Grant is, according to my recollection, a correct statement of
the conversation that took place between the President and General Grant
at the Cabinet meeting on the 14th of January last. In the presence of
the Cabinet the President asked General Grant whether, "in conversation
which took place after his appointment as Secretary of War ad interim,
he did not agree either to remain at the head of the War Department and
abide any judicial proceedings that might follow the non-concurrence by
the Senate in Mr. Stanton's suspension, or, should he wish not to
become involved in such a controversy, to put the President in the same
position with respect to the office as he occupied previous to General
Grant's appointment by returning it to the President in time to
anticipate such action by the Senate." This General Grant admitted.
The President then asked General Grant if, at the conference on the
preceding Saturday, he had not, to avoid misunderstanding, requested
General Grant to state what he intended to do; and further, if in reply
to that inquiry he (General Grant) had not referred to their former
conversations, saying that from them the President understood his
position, and that his (General Grant's) action would be consistent with
the understanding which had been reached. To these questions General
Grant replied in the affirmative.
The President asked General Grant if, at the conclusion of their
interview on Saturday, it was not understood that they were to have
another conference on Monday, before final action by the Senate in the
case of Mr. Stanton.
General Grant replied that such was the understanding, but that he did
not suppose the Senate would act so soon; that on Monday he had been
engaged in a conference with General Sherman, and was occupied with
"many little matters," and asked if General Sherman had not called on
that day.
I take this mode of complying with the request contained in the
President's letter to me, because my attention had been called
to the subject before, when the conversation between the President and
General Grant was under consideration.
Very respectfully, your obedient servant, Alexander W. Randall,
Postmaster General. To the President.
Department of the Interior, Washington, D. C., February 6, 1868.
Sir:--I am in receipt of yours of yesterday, calling my attention to
a correspondence between yourself and General Grant, published in the
Chronicle newspaper, and especially to that part of said correspondence
"which refers to the conversation between the President and General
Grant at the Cabinet meeting on Tuesday, the 14th of January," and
requesting me "to state what was said in that conversation."
In reply, I submit the following statement: At the Cabinet meeting on
Tuesday, the 14th of January, 1868, General Grant appeared and took his
accustomed seat at the board. When he had been reached in the order
of business the President asked him, as usual, if he had anything to
present?
In reply, the General, after referring to a note which he had that
morning addressed to the President, inclosing a copy of the resolution
of the Senate refusing to concur in the reasons for the suspension of
Mr. Stanton, proceeded to say that he regarded his duties as Secretary
of War ad interim terminated by that resolution, and that he could not
lawfully exercise such duties for a moment after the adoption of the
resolution by the Senate. That the resolution reached him last night,
and that this morning he had gone to the War Department, entered the
Secretary's room, bolted one door on the inside, locked the other on the
outside, delivered the key to the Adjutant General, and proceeded to the
headquarters of the Army, and addressed the note above mentioned to the
President, informing him that he (General Grant) was no longer Secretary
of War ad interim.
The President expressed great surprise at the course which General Grant
had thought proper to pursue, and, addressing himself to the General,
proceeded to say, in substance, that he had anticipated such action
on the part of the Senate, and being very desirous to have the
constitutionality of the Tenure-of-Office bill tested, and his right
to suspend or remove a member of the Cabinet decided by the judicial
tribunals of the country, he had some time ago, and shortly after
General Grant's appointment as Secretary of War ad interim, asked the
General what his action would be in the event that the Senate should
refuse to concur in the suspension of Mr. Stanton, and that the General
had agreed either to remain at the head of the War Department till a
decision could be obtained from the court or resign the office in the
hands of the President before the case was acted upon by the Senate, so
as to place the President in the same situation he occupied at the time
of his (Grant's) appointment.
The President further said that the conversation was renewed on the
preceding Sunday, at which time he asked the General what he intended to
do if the Senate should undertake to reinstate Mr. Stanton; in reply to
which the General referred to their former conversation upon the same
subject, and said. "You understand my position, and my conduct will be
conformable to that understanding:" that he (the General) then expressed
a repugnance to being made a party to a judicial proceeding, saying that
he would expose himself to fine and imprisonment by doing so, as his
continuing to discharge the duties of Secretary of War ad interim,
after the Senate should have refused to concur in the suspension of Mr.
Stanton would be a violation of the Tenure-of-Office bill. That in reply
to this he (the President) informed General Grant he had not suspended
Mr. Stanton under the Tenure-of-Office bill, but by virtue of the powers
conferred on him by the Constitution: and that, as to the fine and
imprisonment, he (the President) would pay whatever fine was imposed
and submit to whatever imprisonment might be adjudged against him (the
General.) That they continued the conversation for some time, discussing
the law at length, and that they finally separated without having
reached a definite conclusion, and with the understanding that the
General would see the President again on Monday.
In reply, General Grant admitted that the conversation had occurred, and
said that at the first conversation he had given it as his opinion to
the President that in the event of non-concurrence by the Senate in the
action of the President in respect to the Secretary of War the question
would have to be decided by the court; that Mr. Stanton would have to
appeal to the court to reinstate him in office; that he would remain in
till they could be displaced and the outs put in by legal proceeding;
and that he then thought so, and had agreed that if he should change his
mind he would notify the President in time to enable him to make another
appointment, but that at the time of the first conversation he had not
looked very closely into the law; that it had recently been discussed
by the newspapers, and that this had induced him to examine it more
carefully, and that he had come to the conclusion that if the Senate
should refuse to concur in the suspension Mr. Stanton would thereby be
reinstated, and that he (Grant) could not continue thereafter to act
as Secretary of War ad interim, without subjecting himself to fine and
imprisonment; and that he came over on Saturday to inform the President
of this change in his views, and did so inform him, that the President
replied that he had not suspended Mr Stanton under the Tenure-of-Office
bill, but under the Constitution, and appointed him (Grant) by virtue of
the authority derived from the Constitution, &c.; that they continued to
discuss the matter some time, and finally he left without any conclusion
having been reached, expecting to see the President again on Monday.
He then proceeded to explain why he had not called on the President on
Monday, saying that he had had a long interview with General Sherman;
that various little matters had occupied his time till it was late, and
that he did not think the Senate would act so soon, and asked, "did not
General Sherman call on you on Monday?"
I do not know what passed between the President and General Grant on
Saturday, except as I learned it from the conversation between them at
the Cabinet meeting on Tuesday, and the foregoing is substantially
what then occurred. The precise words used on the occasion are not, of
course, given exactly in the order in which they were spoken, but
the ideas expressed and the facts stated are faithfully preserved
and presented. I have the honor to be, sir, with great respect, your
obedient servant.
O. H. Browning.
The President.
Department of State, Washington, February 6, 1868.
Sir: The meeting to which you refer in your letter was a regular Cabinet
meeting. While the members were assembling, and before the President
had entered the Council Chamber, General Grant, on coming in, said to
me that he was in attendance there, not as a member of the Cabinet, but
upon invitation, and I replied by the inquiry whether there was a change
in the War Department. After the President had taken his seat business
went on in the usual way of hearing matters submitted by the several
secretaries. When the time came for the Secretary of War General
Grant said that he was now there not as Secretary of War, but upon the
President's invitation, that he had retired from the War Department. A
Blight difference then appeared about the supposed invitation, General
Grant saying that the officer who had borne his letter to the President
that morning, announcing his retirement from the War Department, had
told him that the President desired to see him at the Cabinet, to which
the President answered, that when General Grant's communication was
delivered to him the President simply replied that he supposed General
Grant would be very soon at the Cabinet meeting. I regarded the
conversation thus begun as an incidental one. It went on quite
informally, and consisted of a statement, on your part, of your views in
regard to the understanding of the tenure upon which General Grant had
assented to hold the War Department ad interim, and of his replies by
way of answer and explanation. It was respectful and courteous on both
sides. Being in this conversational form, its details could only have
been preserved by verbatim report. So far as I know, no such report
was made at the time. I can give only the general effect of the
conversation.
Certainly you stated that although you had reported the reasons for Mr.
Stanton's suspension to the Senate, you nevertheless held that he would
not be entitled to resume the office of Secretary of War, even if the
Senate should disapprove of his suspension, and that you had proposed
to have the question tested by judicial process, to be applied to
the person who should be the incumbent of the Department, under your
designation of Secretary of War ad interim in the place of Mr. Stanton.
You contended that this was well understood between yourself and Gen.
Grant; that when he entered the War Department as Secretary ad interim
he expressed his concurrence in a belief that the question of Mr.
Stanton's restoration would be a question for the courts; that in a
subsequent conversation with General Grant you had adverted to the
understanding thus had, and that General Grant expressed his concurrence
in it: that at some conversation which had been previously held General
Grant said he still adhered to the same construction of the law, but
said if he should change his opinion he would give you seasonable notice
of it, so that you should in any case, be placed in the same position in
regard to the War Department that you were while General Grant held
it ad interim. I did not understand General Grant as denying, nor as
explicitly admitting, these statements in the form and full extent
to which you made them. The admission of them was rather indirect and
circumstantial, though I did not understand it to be an evasive one.
He said that, reasoning from what occurred in the case of the police in
Maryland, which he regarded as a parallel one, he was of opinion, and
so assured you, that it would be his right and duty, under your
instructions, to hold the War Office after the Senate should disapprove
of Mr. Stanton's suspension until the question should be decided upon
by the courts; that he remained until very recently of that opinion, and
that on the Saturday before the Cabinet meeting a conversation was held
between yourself and him in which the subject was generally discussed.
General Grant's statement was, that in that conversation he had stated
to you the legal difficulties which might arise, involving fine and
imprisonment under the civil tenure bill, and that he did not care to
subject himself to those penalties; that you replied to this remark,
that you regarded the civil tenure bill as unconstitutional, and did
not think its penalties were to be feared, or that you would voluntarily
assume them; and you insisted that General Grant should either retain
the office until relieved by yourself according to what you claimed was
the original understanding, between yourself and him, or, by seasonable
notice of change of purpose on his part, put you in the same situation
which you would be if he adhered. You claimed that General Grant finally
said in that Saturday's conversation that you understood his views, and
his proceedings thereafter would be consistent with what had been so
understood. General Grant did not controvert nor can I say that he
admitted this last statement. Certainly General Grant did not at
any time in the Cabinet meeting insist that he had in the Saturday's
conversation either distinctly or finally advised you of his
determination to retire from the charge of the War Department otherwise
than under your own subsequent direction. He acquiesced in your
statement that the Saturday's conversation ended with an expectation
that there would be a subsequent conference on the subject, which he, as
well as yourself, supposed could seasonably take place on Monday.
You then alluded to the fact that General Grant did not call upon you
on Monday, as you had expected from that conversation. General Grant
admitted that it was his expectation or purpose to call upon you on
Monday. General Grant assigned reasons for the omission. He said he was
in conference with General Sherman; that there were many little matters
to be attended to. He had conversed upon the matter of the incumbency
of the War Department with General Sherman, and he expected that General
Sherman would call upon you on Monday. My own mind suggested a
further explanation, but I do not remember whether it was mentioned or
not-namely, that it was not supposed by General Grant on Monday that the
Senate would decide the question so promptly as to anticipate further
explanation between yourself and him if delayed beyond that day. General
Grant made another explanation--that he was engaged on Sunday with
General Sherman, and, I think, also on Monday, in regard to the War
Department matter, with a hope, though he did not say in an effort,
to procure an amicable settlement of the affair of Mr. Stanton, and he
still hoped that it would be brought about.
I have the honor to be, with great respect, your obedient servant,
William H. Seward.
To the President.