ROGER D. BRIDGES
John Sherman
and the Impeachment
of Andrew Johnson
In Irving Brant's recent study of the
impeachment process by the United States
Congress, he characterized the Radical
Republican attempt to remove Andrew
Johnson from the presidency in 1868 as
"the most insidious assault on constitutional
government in the nation's
history." "It was," Brant charged, "carried on in direct
violation of the limitations
deliberately placed in the Constitution to prevent such a
happening. If it had been successful and
had been accepted as a precedent, it
would have converted a government of
divided powers, of checks and balances, into
a congressional dictatorship."1 Few
authorities have reached the extreme con-
clusions Brant has put forward. A
majority of those who have studied the question
have generally divided along two lines.
One group has concluded "conviction defi-
nitely would have demolished the
separation of powers concept and reduced the
presidency to a plaything of the
ascendant group in Congress." More recent writers
have conceded that the impeachment might
have irreparably damaged the presi-
dency but believe it more likely that
the threat of impeachment might have limited
the President's prerogatives and led to
its more frequent use when the Chief Execu-
tive overstepped the bounds of
propriety.2
Whatever the constitutional impact of a
conviction might have been, the attempt
was rooted in real fears by many
Republicans that Johnson was exercising question-
able presidential power, usurping proper
congressional functions, and threatening
to overturn the results of the Civil War
by returning "traitors" to positions of au-
thority in the South. The logical
consequence of such actions, in the eyes of Re-
publican opponents to Johnson, was the
threat to the construction of a Republican
party in the South and the practical, if
not legal, return of southern Negroes to in-
voluntary servitude. Moreover, Johnson's
continued abuse of patronage, one of the
1. Irving Brant, Impeachment: Trials
and Errors (New York, 1972), 4.
2. James E. Sefton, "The
Impeachment of Andrew Johnson: A Century of Writing," Civil War
History,
XIV (June 1968), 142-143. The Sefton
article is an excellent review of impeachment historiography,
ibid., 120-147.
Mr. Bridges is Director of Research at
the Illinois State Historical Library in Springfield.
176
|
prime motivations for passage of the Tenure of Office Act,3 irritated many leading Republicans who were understandably angered by the President's practice of turn- ing out of office good Republicans and giving interim appointments to his own sup- porters. Republicans hoped that even if impeachment failed, the attack would cause Johnson to curb his irritating usurpation of proper congressional leadership.4 Ohio Senator John Sherman shared these views when in 1895 he summed up his explanation for voting to convict Johnson by writing; "I felt bound, with much re-
3. Act of March 2, 1867, U. S. Statues at Large, XIV, 430. This act provided that the President could remove no office holder except with the approval of the Senate while in session. If the Senate was not in session, the President could suspend an office holder but the reasons would have to be presented to the Senate at its next meeting. Cabinet officers were specifically exempted from the provisions of the law which read "That ... [Cabinet members] 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 consent of the Senate." At Sherman's specific insistence, violation of the law was de- fined as a "high misdemeanor." For a discussion of Sherman's role in the passage of the Tenure of Of- fice Act, see Roger Dean Bridges, "The Constitutional World of Senator John Sherman, 1861-1869" (un- published Ph.D. dissertation, University of Illinois, 1970), 290-295. 4. Richard H. Abbot, Cobbler in Congress: The Life of Henry Wilson, 1812-1875 (Lexington, 1972), 200-202; Bridges, "Constitutional World," 289-295; David Donald, Charles Sumner and the Rights of Man (New York, 1970), 330-336; Kenneth M. Stampp, The Era of Reconstruction, 1865-1877 (New York, 1966), 148, 153-154. See also John Sherman's remarks on the floor of the Senate during the effort to repeal the Tenure of Office Act, Congressional Globe, 41 Cong. 1 Sess., 108-111.
177 |
178 OHIO
HISTORY
gret, to vote 'guilty' in response to my
name, but I was entirely satisfied with the re-
sult of the vote, brought about by
several Republican Senators [who voted not
guilty]."5 Commentators,
however, have found Sherman's comment and his ac-
tions throughout the impeachment
proceedings puzzling. Former Supreme Court
Justice George Ticknor Curtis wrote:
"The bias of party must have had a fearful
strength when, although he [Sherman]
upheld the president's power to remove, he
yet condemned the exercise of its
related power to appoint an ad interim successor to
the secretary he had lawfully removed."
David Miller DeWitt in his impeachment
analysis reached essentially the same
conclusion, observing that rather than Johnson
"It was John Sherman who was
convicted, and convicted by himself." James G.
Randall in an article basically
sympathetic to Sherman during the Reconstruction
period mused: "There is something
disingenuous to say the least in John Sherman's
published opinion justifying his vote. .
. . Considering all the facts, one may well
doubt whether John Sherman voted his
true convictions when he answered
'Guilty.'" James E. Sefton, in a
review of impeachment historiography, asserted:
"Sherman simply got himself
hopelessly tangled in his own inconsistencies after
March, 1867."6
Because of the important role Sherman
assumed in the final shaping of the Ten-
ure of Office Act--the basis of
Johnson's impeachment-his vote, and his subsequent
statement of satisfaction at the result
of the trial, the hostile criticism leveled against
him appears justified. Under questioning
at the time the Senate approved the Ten-
ure of Office bill, Sherman stated that
it did not apply to Cabinet members. Al-
though some members of the House of
Representatives chose to construe it other-
wise, Sherman never deviated from his
own interpretation. If Johnson's dismissal
of Stanton did not violate the law; and
if Sherman, despite his own vote of guilty,
was satisfied with the President's
acquittal, what justification is there for the Sena-
tor's satisfaction with the result?
Sherman was a Whig nationalist who
believed the nation was an organic unity
over which Congress exercised hegemony.
Congress should make policy for the na-
tion and the Chief Executive should
execute that policy. The Ohioan believed that
any other course of action could, and
would, lead to executive usurpation of legiti-
mate legislative powers and substitute
the capricious will of one man for the collec-
tive judgment of men reasoning together,
more or less as equals, in determining the
course the nation should follow. Sherman
had an instinctive horror of a strong ex-
ecutive. In his view a strong President
led, not to a cessation of strife, but rather
created strife. He repeatedly conjured
up the ghost of Andrew Jackson as an ex-
ample of such usurpation. Jackson had
destroyed a sound financial system when he
destroyed the Bank of the United States,
in Sherman's opinion. It was too easy for
passion to obscure common sense when one
exercised too much power. Even dur-
ing the Civil War, with one of his own
party as President, Sherman had been
5. John Sherman's Recollections of
Forty Years in the House, Senate and Cabinet: An Autobiography
(Chicago, 1895), I, 432.
6. George Ticknor Curtis, Constitutional
History of the United States (New York, 1896), II, 700; David
Miller DeWitt, The Impeachment and
Trial of Andrew Johnson, Seventeenth President of the United States
(New York, 1903), 588-591; James G.
Randall, "John Sherman and Reconstruction," Mississippi Valley
Historical Review, XIX (December 1932), 391; Sefton,
"Impeachment," 146.
|
alarmed at some of Lincoln's actions which ran counter to the expressed will of the large Republican majority in Congress.7 Sherman was also a realistic politician who desired to end the strife which fol- lowed the Civil War in order that the nation might resume its normal progress. He saw the nation's finances disrupted by the Civil War and Reconstruction. Peace and order, with protection for rights, property, and life in the South were maintained only by the presence of the Army. So long as there were no guarantees that white southerners would respect the rights of other southerners, the nation could not return to normal and the government resume its role of advancing the na- tion's economy. In Sherman's view, Congress had provided the basic machinery to
7. Sherman developed this argument at some length in a Senate speech, Congressional Globe, 39 Cong., 2 Sess., 306-308, and in his speech at Carson's Grove, Ohio, September 21, 1867, in Cincinnati Com- mercial, September 23, 1867. Near the end of his career Sherman succinctly summarized his philosophy of legislative supremacy when he wrote: "The executive department of a republic like ours should be subordinate to the legislative department." Sherman, Recollections, I, 447. Although Sherman had been circumspect in his public pronouncements about Lincoln during the Civil War, privately he ex- pressed his displeasure in numerous letters to intimates. See Sherman to Andrew Johnson, April 27, 1862, Presidential Papers Microfilm, Reel 4, Andrew Johnson Papers, Manuscripts Division, Library of Congress; Sherman to Salmon P. Chase, September 9, 1862, Chase Papers, Historical Society of Pennsyl- vania; Sherman to W. T. Sherman, November 16, 1862, January 2, July 18, 1863, William T. Sherman Papers, Manuscript Division, Library of Congress, as examples. See also Bridges, "Constitutional World," 31-32,79-81, 115-116, 142-143n, 156n.
179 |
180 OHIO HISTORY
ensure that the nation could be quickly
restored with the rights of all protected.
This was done by proposing the
Fourteenth Amendment and by presenting the
South-in the Reconstruction acts-with
the machinery to erect acceptable forms of
state governments. Unfortunately, so it
seemed to Sherman, one man blocked this
constructive program-Andrew Johnson. If
he could be removed, the nation could
be quickly reunited and sectional
differences gradually obliterated.8
Nevertheless, Sherman was in an awkward
position and could scarcely extricate
himself except by repudiating his
earlier position that the Tenure of Office Act did
not apply to Cabinet members. At the same
time, if he refused to support the im-
peachment articles, he risked ostracism
from the party to which he was devoted and
which he had convinced himself stood for
the principles in which he believed.
Sherman had declared on more than one
occasion that party government was essen-
tial to the workings of a republican
system. Because the United States had only two
parties the alternative to cooperating
with his own Republican party was to work
with the Democracy. For Sherman this was
not a real alternative because the Dem-
ocratic party was the party of
disloyalty and treason and still inimical to sound re-
publican government.9
Although Sherman had chosen to interpret
the Tenure of Office Act as in-
applicable so far as it applied to the
removal of a Cabinet official, his public position
was ambiguous. Johnson had not fired
Stanton. On August 12, 1867, Johnson had
merely suspended Stanton as Secretary of
War and had named General Ulysses
S. Grant as Secretary ad interim. Under
the Tenure of Office Act, Johnson was
obliged to report his reasons for his
action to the Senate, and that body was then to
approve or disapprove the suspension.10
In a political speech a few weeks later the
Ohio Senator declared "that unless
the President can give better reasons for sus-
pending Mr. Stanton than I believe can
be given, or that I have yet heard, I will, as
a Senator, vote to reinstate him as
Secretary of War." The Senate did not consider
Stanton's status until Saturday, January
11, 1868, when it held an executive session.
During discussion of a resolution not to
approve the removal of the secretary, Wis-
consin's James R. Doolittle moved to
amend by stating that the Senate did concur in
Stanton's dismissal. Sherman joined his
Republican colleagues in defeating Doo-
little's amendment ten to thirty-two.
Before passing on the resolution, however, the
Senate adjourned. At Monday's meeting
the Senate refused to concur in the Presi-
dent's action, and although Sherman did
not vote he had already committed himself
to Stanton's retention.11
Meanwhile, the Ohio Senator hoped to
avert direct confrontation on the issue of
Stanton's removal. He concurred with his
brother-General William T. Sherman-
8. See John Sherman to W. T. Sherman, January 6, 1867,
February 23, 1868, W. T. Sherman Papers;
Sherman to Schuyler Colfax, October 20,
1867, Schuyler Colfax Collection, Rush Rhees Library, Univer-
sity of Rochester.
9. On Sherman's understanding of the
Tenure of Office Act see his comments in the Congressional
Globe, 39 Cong. 2 Sess., 1515-17. On the necessity for party
responsibility, see his speech at Canton,
Ohio, August 20, 1867, in Cincinnati Commercial,
August 21, 1867, and his letters to George A. Benedict,
June 24, 1862 (retained copy), John
Sherman Papers, Manuscript Division, Library of Congress; to W. T.
Sherman, October 27, 1870, W. T. Sherman
Papers.
10. James D. Richardson, comp., A
Compilation of the Messages and Papers of the Presidents,
1789-1897 (Washington, 1900), VI, 556.
11. Sherman's speech at Carson's Grove,
Ohio, September 21, 1867, in Cincinnati Commerical, Sep-
tember 23, 1867; DeWitt, Impeachment,
320-322; Senate Journal, 40 Cong., 2 Sess., 961-962.
Sherman and Johnson 181
that the imbroglio could be easily
solved by the appointment of Ohio Governor
Jacob D. Cox as Secretary of War.
Sherman believed Cox would be quickly con-
firmed by the Senate. General Sherman's
father-in-law Thomas Ewing, Sr., and
Reverdy Johnson urged the President to
appoint Cox, but Johnson refused, prefer-
ring to retain Grant in the ad
interim position.12
Later in January, following Grant's
resignation as ad interim Secretary, Johnson
attempted to persuade General Sherman to
accept the secretaryship. The Gen-
eral's reasons for refusal were that he
desired to stay clear of political intrigues in
Washington; that Johnson could ignore
Stanton and issue orders directly through
Grant, thus avoiding further
difficulties with Stanton; and finally General Sherman
said he wished to avoid legal
entanglement. Senator Sherman and Ewing both
agreed with the General that he should
avoid becoming entangled with the Presi-
dent in any way.13
By appointing General Lorenzo Thomas ad
interim Secretary on February 21,
1868, Johnson provided Sherman with an
escape from his dilemma on impeach-
ment. Sherman chose to construe Thomas'
appointment, while Congress was in
session, as a violation of the Tenure of
Office Act because it forbade temporary ap-
pointments under such circumstances. In
Sherman's opinion, the designation of
Thomas as acting secretary complicated
matters for "Thomas is a fool & has in-
volved the President far more than he
probably designed." Too late to avoid a con-
frontation, Johnson sent to the Senate
the nomination of General Sherman's father-
in-law, Thomas Ewing, Sr., as Secretary
of War. In any event, the Ohio Senator
thought Johnson could have avoided the
whole controversy if he had immediately
appointed Ewing who probably would have
been confirmed.14 Sherman observed
that Johnson also could have avoided the
problems "if he had followed [W. T. Sher-
man's] advice, to have made Stanton
anxious to resign, or what is worse, to have
made his position ridiculous." Even
so, Sherman asserted: "I mean to give Johnson
a fair and impartial trial, and to
decide nothing until required to do so, and after a
full argument. I regard him as a foolish
and stubborn man, doing even right things
in a wrong way, and in a position where
the evil that he does is immensely increased
by his manner of doing it."15
Upon receiving notification of the
President's impeachment the Senate organized
a special committee to prepare rules
governing the trial. During discussion of the
proposed rules a serious disagreement
developed over whether the Senate, when sit-
ting on impeachment, should be
considered a court. The majority party was split
on this question and debated it at
length. Sherman held that the Senate was sitting
12. DeWitt, Impeachment, 322-323;
William Cox Cochran, "Political Experiences of Major General
Jacob Dolson Cox," (Cincinnati,
1940), II, 1144, typewritten manuscript in Jacob Dolson Cox Papers, Li-
brary of Congress; William T. Sherman, Memoirs
of William T. Sherman, (2 vols. in one, New York,
1891), II, 421-422.
13. At the same time, Johnson was maneuvering
to bring General Sherman to Washington as com-
mander of a new Atlantic Division. The
General was also opposed to this for the same reasons he de-
clined the secretaryship. W. T. Sherman
to Johnson, January 31, 1868, T. Ewing to W. T. Sherman, Jan-
uary 25, 1868, in Sherman, Memoirs, II,
425-427; Sherman to W. T. Sherman, February 13, 1868, W. T.
Sherman Papers; DeWitt, Impeachment, 340-343.
14. Richardson, Messages and Papers, VI,
621; Sherman to W. T. Sherman, February 23, 1868, W. T.
Sherman Papers. In this letter Sherman
also said it was likely Ewing could be confirmed.
15. Sherman to W. T. Sherman, March 1,
1868, in Rachel Sherman Thorndike, ed., The Sherman Let-
ters: Correspondence Between General
Sherman and Senator Sherman from 1837 to 1891 (1894 reprint,
New York, 1969), 313-314.
182 OHIO HISTORY
as a court; evidence and judgments
therefore should be in conformity with its func-
tion as a special judicial body. He
noted that the framers of the Constitution had
spoken of an impeachment court; the same
form was followed in the proceedings
against Judge Samuel Chase and Senator
William Blount. Despite Sherman's ob-
jections, the Senate eventually agreed
to refer to itself as "The Senate sitting for the
trial of an Impeachment." The
dichotomy of understanding remained, however,
for the President's counsel and some
Senators continued to consider the Senate as a
court, while the House managers and
other Senators considered the Senate as a po-
litical body. In agreeing to accept
evidence not admissible in a court of law, how-
ever, the Senate denied the view that it
was a court.16
Chief Justice Salmon P. Chase, who was
to preside in the impeachment trial of
the President, contended the Senate sat
as a court in such proceedings and sent a
letter supporting his view. The Senate
disregarded his opinion. When the House
managers presented the Articles of
Impeachment, they were given to the Senate
with president pro tem Benjamin
Wade in the Chair. Following the reading of the
articles the Senate resolved to begin
the trial the following day and notified the
Chief Justice and the House of its
intention.
The Articles of Impeachment, not adopted
by the House of Representatives until
March 2 and 3, 1868, are lengthy and
repetitive, and therefore difficult to sum-
marize adequately. In the main, however,
the provisions were as follows. Articles
one, four, five, and six charged Johnson
with illegally removing Stanton from office.
Articles two, three, seven, and eight
charged the President with illegally appointing
Lorenzo Thomas ad interim Secretary
of War while the Senate was in session. Ar-
ticle nine alleged that Johnson had
conspired with General William H. Emory to
violate the Command of the Army Act.
Article ten accused Johnson of exceeding
the bounds of propriety in his personal
and political conduct as President. The
eleventh article was a general summary
of the preceding articles, but included addi-
tional charges that he questioned the
legality of the Thirty-ninth Congress and
that he had illegally attempted to
prevent the effective execution of the Tenure of
Office Act, the First Reconstruction
Act, and the Command of the Army Act.17
While Senators were taking the
impeachment trial oath, another lengthy dis-
cussion developed when Senator Thomas
Hendricks of Indiana questioned the right
of Wade to take the oath and vote in the
trial. Hendricks argued that the Con-
stitution in effect prohibited the Vice
President from presiding at an impeachment
of the President and since there was no
Vice President, the restriction applied to
Wade as successor to the President.
Sherman held that as a member of the Union
Ohio was entitled to participate and
vote in the proceedings. The fact that Wade
had a vested interest in the outcome did
not bar him from exercising his con-
16. Senate Journal, 40 Cong., 2
Sess., 217-218, 236-239, 241-252; Sherman's remarks in Congressional
Globe, 40 Cong., 2 Sess., 1521-22; DeWitt, Impeachment, 377-378.
Johnson's trial was the first one in
which the Senate did not refer to itself
as a "High Court of Impeachment." Subsequent proceedings
have been entitled "The Senate
sitting for the trial of..." U. S. Senate, "Extracts from the Journal
of
the United States Senate in All Cases of
Impeachment . . . 1798-1904," Senate Document No. 876, 62
Cong., 2 Sess.
17. Senate Journal, 40 Cong., 2
Sess., 798-808; DeWitt, Impeachment, 388-389. For Chase's conduct
during the trial see M. Kathleen
Perdue, "Salmon P. Chase and the Impeachment Trial of Andrew John-
son," Historian, XXVII
(November 1964), 75-92. Congressional Globe, 40 Cong., 2 Sess., 1603-18,
1638-43; Supplement to the
Congressional Globe, 40 Cong., 2 Sess., 3-5.
Sherman and Johnson
183
stitutional right to represent Ohio.
Moreover, Sherman pointed out, the President's
son-in-law David Patterson was already
sworn as a member of the special tribunal.
The Ohio junior Senator referred to his
own situation when a candidate for Speaker
of the House in 1859 remarking that by
his own decision he had not voted on ques-
tions related to his candidacy. At the
same time, however, neither he nor anyone
else questioned his right to vote if he
so desired. Although next in line for the Presi-
dency, Wade was not the Vice President
of the United States. He was a Senator
from the state of Ohio and under the
Constitution entitled to vote. Charles Sum-
ner, among others, supported Sherman's
contention and eventually opposition to
Wade's right to participate in the trial
was withdrawn.18
In preliminary arguments, Johnson's
counsel denied the Tenure of Office Act pro-
tected Stanton from removal. The
President's right of removal was lodged in the
Constitution and could not be infringed
upon by Congress. The suspension of
Stanton and appointment of Grant ad
interim the President claimed to have taken
under the provisions of the Act of
February 13, 1795. He justified designation of
Thomas as ad interim Secretary on
the ground that a vacancy existed in the office
and someone had to be authorized to act
until an appointment could be made. He
also disavowed a conspiracy to prevent
Stanton from executing the powers of his of-
fice. Johnson averred his actions were
predicated in the hope that the whole matter
might be settled by the Supreme Court.
The President denied that he at any time
conspired to circumvent the Command of
the Army Act or issued orders contrary to
the law despite his avowed belief that
it unconstitutionally infringed upon his pow-
ers as Commander-in-Chief of the Army.
He denied that he had committed any
act unbecoming a Chief Executive while
in office. Finally, the President asserted he
had not questioned the right of the
Thirty-ninth Congress to legislate for the nation
but had vetoed legislation he considered
unconstitutional. He declared he could
not be impeached for stating his
opinions. Thus the President denied there were
any grounds for charging him with
"high crimes and misdemeanors." His counsel
then asked for forty days in order to
prepare for the trial. Sherman favored grant-
ing the additional time, but the Senate
refused the request.19
From the beginning of the trial the
House managers pursued the case along two
fronts. They argued that in removing
Stanton, appointing Thomas, and attacking
Congress and its Reconstruction program,
the President was guilty of impeachable
offenses-high crimes and misdemeanors.
Simultaneously, the managers also held
impeachment was a political rather than
judicial procedure and the Senate need
only be convinced of the President's
unfitness in order to remove him from office.
The latter argument was important for
many Senators were of the opinion that the
Tenure of Office Act had not been
violated. At the same time, however, proof of
unfitness to hold office would be
difficult to establish. Further, impeachment as a
political weapon could prove to be a
dangerous precedent and upsetting to Ameri-
can political institutions.
18. Congressional Globe, 40
Cong., 2 Sess., 1671, 1675; Senate Journal, 40 Cong., 2 Sess., 810-811;
Moorfield Storey, Charles Sumner (Boston, 1900),
349-350; DeWitt, Impeachment, 390-391.
19. The arguments and Senate action may
be found in the Supplement to the Congressional Globe, 40
Cong., 2 Sess., 12-28. Johnson's claim
that he wanted to test the Tenure of Office Act has been effec-
tively refuted by Benjamin P. Thomas and
Harold M. Hyman, Stanton: The Life and Times of Lincoln's
Secretary of War (New York, 1962), 589-590.
184 OHIO HISTORY
Defense contended the Tenure of Office
Act did not apply and made effective use
of Sherman's statements to that effect.
Further, they noted Lincoln appointed
Stanton and thus, even if the act
applied to a Cabinet officer, the Secretary of War
was unprotected. Defense counsel also
argued Johnson was bound by his oath to
uphold the Constitution and his efforts
to test the constitutionality of the Tenure Act
in the courts was justified. They
claimed impeachment proceedings were judicial in
nature; therefore, the President must be
found guilty of an offense within the ordi-
nary meaning of the law. Counsel warned
that if impeachment were a political de-
vice as the House managers claimed, the
constitutional checks and balances would
be overturned and the nation would be
subjected to the same kind of problems
which imperiled the nation during the
Articles of Confederation period when Con-
gress combined legislative and executive
functions.20
During the trial Sherman kept his
counsel and refused to commit himself on im-
peachment. In mid-March he informed his
brother he would have nothing to say
on impeachment matters until the trial
was over. He wrote his Ohio confidant
Warner Bateman essentially the same
thing, adding, "I hope to see the proceedings
so conducted that all will acknowledge
that the trial was fair & becoming the histori-
cal character of the event."21
Sherman's reticence was natural. He was a longtime
friend of the President. Even after
Sherman broke with him over Reconstruction,
he apparently remained on cordial terms
with Johnson for on February 23, 1868, in
an effort to settle a misunderstanding
between General Sherman and the President,
the Ohio Senator had called on him.22
Nevertheless, Sherman thought Johnson
unfit for the office of President. He in-
formed his brother that the best
interests of the nation might be served if Johnson
were convicted and removed from office. At the same
time the Ohio Senator re-
vealed his motives for supporting the
impeachment trial which he considered "un-
questionably lawful." With Johnson
displaced, the Republican party would then
have full Reconstruction responsibility.
The southern states could be quickly reor-
ganized and admitted to representation
well before the coming presidential election.
The restoration of southern states to
representation would remove any doubts as to
the right of southerners to vote in the
election.23
Sherman's mistrust of Johnson continuing
in office was further manifested in the
Ohio Senator's participation in an
effort to have General John M. Schofield ap-
pointed Secretary of War before the
impeachment trial ended. In mid-April Wil-
liam M. Evarts, Johnson's counsel,
approached Schofield on the possibility of ac-
20. The arguments in the impeachment
trial are conveniently summarized in DeWitt, Impeachment,
404-514. Shorter summaries may also be
found in J. G. Randall and David Donald, The
Civil War and
Reconstruction (Boston, 1961), 610-612; Stampp, Reconstruction, 152;
Curtis, Constitutional History, II,
697-698.
21. Sherman to W. T. Sherman, March 15,
1868, W. T. Sherman Papers; Sherman to Warner M. Bate-
man, March 16, 1868, Warner M. Bateman
Papers, Western Reserve Historical Society.
22. Sherman to W. T. Sherman, February
23, 1868, W. T. Sherman Papers. Sherman had sat by John-
son's side in the Senate, campaigned
with him in Ohio and Indiana in 1864, and defended his course as
late as February 1866. Sherman, Recollections,
I, 348, 365-368, 427-428. The dispute grew out of the
publication of one of General Sherman's
letters to the President in which he suggested his willingness to
see Stanton and attempt to persuade him
to resign. A Johnson correspondent reported: "The other day
Senator Sherman, cut to the quick by
thoughts of your undeserved persecution and the conduct of the
Senate, actually shed tears."
Thomas W. Egan to Johnson, March 16, 1868, Andrew Johnson Papers.
23. Sherman to W. T. Sherman, March 1,
1868, W. T. Sherman Papers.
Sherman and Johnson 185
cepting the secretaryship. Evarts intimated that if leading Republicans
could be
assured Johnson would not interfere with
southern Reconstruction they would be
content to allow Johnson to remain in
office. By that time it was apparent that con-
viction might boomerang on the
Republican party and cause them to lose the presi-
dential election. Evarts implied that
the Republican leaders who wanted some se-
curity for the future conduct of Johnson
were Senators Trumbull, Fessenden, and
Sherman. Apparently as a result of these
behind-the-scenes maneuverings, John-
son nominated Schofield, giving
Republican leaders the assurances they wanted
that Reconstruction would be safe even
if Johnson were acquitted.24
Despite Sherman's participation in the
movement to secure Schofield's nomi-
nation, he still could not be counted on
to vote for Johnson's acquittal. A Washing-
ton correspondent wrote that Sherman
would probably vote to convict Johnson on
all the articles except those relating
directly to Stanton's removal. The same corre-
spondent reported that Sherman
"expressed the opinion, yesterday morning, to a
distinguished gentleman from Ohio here,
that he saw no reason to change from the
position taken when the Tenure-of-office
Bill passed-that Cabinet officers were not
included within its provisions."25
This view was confirmed with the
publication of Sherman's opinions expressed in
the Senate executive session. Under the
trial rules, May 11 was set aside for Sena-
tors to consider arguments on the
articles. Sherman labored long over his opinion
which he delivered that day. Able to
speak on only eight of the articles before his
time expired, he indicated that he would
vote to convict the President on articles
two, three, seven, and eight. Although
the full text of Sherman's views on the re-
maining three articles were not known in
detail before their publication at the close
of the trial, it was common knowledge
that he intended to vote guilty on the elev-
enth article.26
Sherman held that while Senators were
bound by their oath to be impartial in
judgment, they were "not bound to
technical definitions of crimes and mis-
demeanors." A willful violation of
the law, breach of moral obligation of office, or
actions bringing into contempt the
office of President must be considered impeach-
able offenses. Sherman examined what he
considered the principal charges against
Johnson: "that he willfully and
purposely violated the Constitution and the laws, in
the order for the removal of Mr.
Stanton, and in the order for the appointment of
General Thomas as Secretary of War ad
interim."
The Ohio Senator considered the two
actions separable, and noted the House had
divided them into separate articles of
impeachment. He reviewed first the Execu-
tive's removal power and concluded this
type of action was not conferred by the
24. James Lee McDonough and William T.
Alderson, eds., "Republican Politics and the Impeachment
of Andrew Johnson," Tennessee
Historical Quarterly, XXVI (Summer 1967), 177-183. Schofield was not
confirmed until after the trial. Senate
Journal, 40 Cong., 2 Sess., 968-969.
25. Washington Chronicle in
Cincinnati Commercial, May 7, 1868.
26. Sherman's opinion in secret session
was published in Cincinnati Commercial, May 13, 1868. It is
identical to the opinion filed after the
close of the trial through the first eight articles. For the complete
opinion, see Supplement to the
Congressional Globe, 40 Cong., 2 Sess., 446-451. A much corrected man-
uscript draft of Sherman's opinion is in
the John Sherman Papers, Mansfield Public Library, Mansfield,
Ohio. A brief summary of Sherman's
remarks appeared in the New York Times, May 12, 1868, along
with those of several other Senators. It
was known that Sherman would probably vote guilty on the elev-
enth article. Cincinnati Commercial, May
15, 1868.
Constitution as it was the decision of the President acting alone. Appointment and removal of officers were jointly shared under the Constitution, Sherman said, by the Senate and the President. The Ohio Senator cited the debates in the first Congress on the question of removal and admitted it had agreed the power was an incident of the executive office. At the same time, however, legislators disagreed as to whether that power was conferred by the Constitution or by Congress in establishing the Cabinet offices. Congress had finally agreed to extend to the President unlimited power of removal because of the enormous prestige of, and trust in,General Wash- ington. The Senator insisted, however, that over the years since 1789, Congress had steadily restricted the President's removal power in officers other than the Cabinet. Sherman then listed the limitations put on the President's removal power prior to 1867 as precedent for the further restriction of removals under the Tenure of Office Act. Finally, the Ohio Senator said that in offices created by Congress that body could place restrictions on dismissals just as it did on appointments. If Congress did not share this power in offices it created, the President would have an enormous and dangerous power beyond legislative control. Thus he regarded "the tenure-of- office act as constitutional and as binding on the President to the same extent as if it had been approved by him." On the question of whether a President could refuse to execute an act he believed unconstitutional, the Senator was brief and explicit. If the President refused to ad- minister a law passed over his veto by a two-thirds majority in both houses, he did so at his own peril. The Constitution provided a means for the President to exercise his judgment of a bill in the veto power, but Congress could override the President's opinion. The law then must be considered constitutional unless interpreted other- wise in a case brought before the Supreme Court. The President could not be tried before the Supreme Court for a violation of the law, however, "but must be tried be- fore a court that in its legislative and executive capacity had already thrice consid- ered this law [Tenure of Office Act] and held it valid." Thus a willful violation of
186 |
Sherman and Johnson
187
an act so clearly held constitutional by
Congress would be an impeachable offense.
Having established the constitutionality
of a congressional limitation on the Presi-
dent's removal power, and having
established a violation of such limitation to be an
impeachable offense, Sherman considered
Johnson's right to remove Stanton as Sec-
retary of War. The Ohio Senator reasoned
that on the basis of the law establishing
the Department of War the President had
authority to remove at pleasure the Secre-
tary. Sherman admitted that when the
trial began he assumed the President's right
of dismissal was restricted to periods
when the Senate was recessed. Such was not
the case, however, for the debates in
the first Congress had not distinguished be-
tween removals made while Congress was
in session and those made during recess.
Further, the commissions under which
Cabinet officials held their posts were "'dur-
ing the pleasure of the President... for
the time being.'" However unwise such a
provision might be, it was legal and
thus up to March 2, 1867, the President had an
unrestricted right to remove Cabinet
officers. Sherman reviewed the legislative his-
tory of the Tenure of Office Act with
particular attention to his own construction
that neither Stanton, nor any member
appointed by Lincoln, was protected. The
Ohio Senator said he and the Senate had
acquiesced in the House demand of a limi-
tation on the President's right to
remove a Cabinet officer appointed during his term
of office plus thirty days, but no
longer. Thus Stanton was not protected by the
Tenure of Office Act and his removal
violated no law of Congress.
The Ohio Senator next turned to articles
dealing with the appointment of an ad
interim Secretary while Congress was in session. He noted that
under the Con-
stitution the President was required to
make all appointments "by and with the ad-
vice and consent of the Senate,"
although Congress could vest the appointment of
inferior officers "in the President
alone, in the courts of law, or in the heads of de-
partments." Permission was
specifically granted to make recess appointments
which must expire at the close of the
Senate's next session.27 A 1795 law, which
Sherman considered of doubtful
constitutionality, had authorized the President to
appoint a temporary secretary for up to
six months without securing approval of the
Senate.28 But it was repealed
by the act of February 20, 1863,29 which provided that
vacancies in heads of departments,
caused by death, resignation, illness, of absence,
could be temporarily filled by naming
another secretary, or a subordinate official in
one of the departments. The temporary
secretary could act up to six months until
the vacancy was filled by the return of
the secretary or the appointment of a succes-
sor by the usual constitutional mode.
Neither of these acts provided for the ap-
pointment of an ad interim secretary
in the event of a removal by the President
while the Senate was in session. Johnson
had acted under the law when he sus-
pended Stanton during Congress' recess
the preceding summer, but his remedy un-
der it was exhausted when the Senate
refused to concur and the War Secretary was
restored to office. Then Johnson had
willfully violated the act by temporarily filling
the vacancy with Thomas. The law made
such an action a penal offense and called
it a high misdemeanor.30 That
Johnson willfully violated the act was proven, the
27. U. S. Constitution, Art. II,
sec. 1, par. 2-3.
28. Act of February 13, 1795, U. S.
Statutes at Large, I, 415.
29. Ibid., XII, 656.
30. This provision was inserted in the
bill on Sherman's insistence. See Congressional Globe, 39 Cong.,
2 Sess., 389-390.
188 OHIO HISTORY
Senator insisted, by letters to General
Grant and conversations with General Sher-
man. Johnson might have sent the Senate
a nominee for the office of Secretary of
War but had not. Sherman believed the
Senate would have confirmed any fit man
nominated, but the President chose not
to name anyone until after he violated the
law and the Constitution by an ad
interim appointment. Should this defiance of law
go unchecked it would set a dangerous
precedent, "one which . . . would place the
President above and beyond the
law."
Sherman summarily dispensed Johnson's
claim that he wished to have a Supreme
Court test of the constitutionality of
the Tenure of Office Act. The Ohio Senator
said the President could have ordered
the removal of Stanton, and upon his refusal,
might have secured a writ of quo
warranto which would have brought the act to the
attention of the federal courts.31
Sherman charged Johnson chose not to use this le-
gal remedy because if he succeeded in
removing Stanton unilaterally, the President
would immediately be enabled to take
unchecked control of all executive agencies
and bureaus "and thus control, by
his will, the purse and the sword." Inasmuch as
all this was done willfully and for the
purpose of violating a constitutional law, the
President was guilty on the articles
relating to the appointment of Thomas.
The tenth article did not allege the
violation of any law, the Senator observed,
and he did not think the fact that
Johnson had exceeded the bounds of propriety in
his personal habits was sufficiently
serious to warrant conviction. Nor would the
Senator remove the President for
criticizing the actions of Congress. The Senate
"must guard against making crimes
out of mere political differences, or the abuse of
freedom of speech, or of the expression
of personal weakness, wrath, or imbecility."
The wiser course was to allow "'a
temporary evil than to shake the foundations" of
government when not accompanied by
specific illegal actions.
In the Ohioan's opinion the President's
greatest offense was obstruction of con-
gressional efforts to secure republican
forms of government in the southern states.
The President had promoted opposition to
the proposed Fourteenth Amendment in
the South. He had erected governments in
the southern states without authority
and by his actions "has prolonged
civil strife; postponed reconstruction and re-
union; and aroused again the spirit of
rebellion overcome and subdued by war."
The President had failed to utilize the
constitutional powers at his command "to
protect loyal people in the rebel
States" and as a result they were mistreated and
property was destroyed by organized
terrorists. When these offenses were added to
a willful violation of an express law,
there could be no doubt that the President was
guilty of the charges contained in the
eleventh article and that he had committed an
impeachable offense.
In view of the opposition of Sherman and
others conviction of the President on
the first article seemed unlikely while
the eleventh was apparently the strongest,
since it contained charges "more
specifically set out in the second, third, seventh,
and eighth articles." Accordingly,
at the close of the session Senator Williams
moved to alter the order of voting by
taking the eleventh article first.32
31. Thomas and Hyman, Stanton, 589-590,
have advanced the same view.
32. On May 16 the Senate agreed to
Williams' motion, Senate Journal, 40 Cong., 2 Sess., 938-942.
DeWitt, Impeachment, 591, wrote
that the articles were manipulated to accommodate Sherman's views in
order "that he might find
standing-room with his party in convicting the President without too os-
tentatiously convicting himself."
Sherman and Johnson
189
Although the Senate had scheduled the
vote on the articles of impeachment for
May 12, it rescheduled the vote for May
16 when it was revealed that Senator Jacob
Howard of Michigan was too ill to attend
the earlier session and it was obvious that
every vote was necessary if Johnson was
to be convicted. With the postponement
Sherman gave notice he desired action on
a bill to admit Arkansas to representa-
tion. He called up the bill the
following day, May 13, remarking that Congress
must act at once for the state's
legislature was in session without authority. The
state had complied with all the
conditions set by Congress and therefore was en-
titled to representation. Trumbull
objected that the state should not be admitted
without first being examined by the
Judiciary Committee. Sherman replied that
conditions in Arkansas were such that
the government should be legitimized as rap-
idly as possible. With no legal authority
the situation in Arkansas could quickly be-
come chaotic with life and property
jeopardized.
Reverdy Johnson opposed immediate
admission and cited the pending vote in the
impeachment trial as the reason. The
Maryland Democrat said that few Senators
had the time or interest to look into
matters relating to Arkansas owing to Johnson's
trial. Further, the nation would suspect
dishonorable motives if action were taken
so precipitately. It would appear that
Republican Senators were so eager to convict
the President that two additional
members would be admitted who might partici-
pate in the remainder of the trial. The
Maryland Senator thought the additional
Senators could vote if they so desired.
Sherman denied his move for the rapid ad-
mission of Arkansas was motivated by the
need for additional votes in the trial.
He was only concerned to have a lawful
authority established quickly, he said, be-
cause the provisional government was no
longer respected and the military present
was insufficient in numbers to prevent
the lawlessness existing in Arkansas. It is
possible the Ohio Senator had another
motive in mind, however, and that was that
if the Senate passed the bill already
passed by the House, Johnson's action in the
matter might push the undecided Senators
into support of impeachment. Nevada
Senator Nye expressed openly that he, at
least, felt such would be the result of presi-
dential inaction or a veto. Eventually
the Senate postponed action on the admis-
sion of Arkansas until the conclusion of
Johnson's trial. Sherman acquiesced,
agreeing that it was probably the proper
thing to do. Nevertheless, he pointed out
that even if the Senate acted there was
little possibility the Arkansas Senators would
be seated before the impeachment vote
for the measure could be held by the Presi-
dent beyond the day the trial was
scheduled to end.33
The Senate transacted little business
during the remainder of the week. Indeed,
the nation's lawmakers had virtually
abandoned their legislative function during the
trial. The feeling of the majority party
was probably summed up in Sumner's state-
ment that it was "'incongruous and
improper to be sending bills to the President for
signature when he is being tried for
high crimes and misdemeanors.'" Enormous
pressure was exerted on doubtful
Senators to convict the President. During the fi-
nal week before the first vote was taken
the pressure was increased as northern
Radicals and southern Unionists clamored
for the President's conviction.34
33. Congressional Globe, 40
Cong., 1 Sess., 2417, 2426-39; DeWitt, Impeachment, 561.
34. DeWitt, Impeachment, 524-549,
Sumner's quote on p. 394; Hans L. Trefousse, "The Acquittal of
Andrew Johnson and the Decline of the
Radicals," Civil War History, XIV (June 1968), 156-158. Sher-
man apparently did not save any letters
received on the subject of impeachment.
190 OHIO
HISTORY
The Senate sitting for the trial of the
President assembled at noon, Saturday, May
16, to vote on the articles of
impeachment. After adopting Williams' resolution in
order to vote on the eleventh article
first, the voting began. The result was in doubt
until Kansas Republican Edmund G. Ross
voted "not guilty." As expected, Sher-
man voted "guilty" on the
eleventh article and the final tally was thirty-five voting
"guilty," nineteen "not
guilty." With the failure to convict the President, Sherman
now joined those opposed to conviction
in an unsuccessful attempt to prevent ad-
journment before a decision was reached
on all the articles.35
In the period following Johnson's
acquittal on the eleventh article, recalcitrant
Republican Senators received more
attention and abuse in an effort to induce at
least one of them to vote guilty on a
subsequent article when balloting resumed.
Meantime, the Republican National
Convention had met and nominated Ulysses
S. Grant and Schulyer Colfax for
President and Vice President. The party included
in its platform a denunciation of
Johnson and declared him "justly impeached for
high crimes and misdemeanors, and
properly pronounced guilty thereof by the vote
of thirty-five Senators."36
The Senate reassembled for the
impeachment trial on May 26; Republicans were
still hopeful a conviction could be
obtained on one or more of the remaining arti-
cles. Certain that Johnson could not be
convicted on the first article, Williams
moved to rescind the previous
"order of reading and voting upon the articles of im-
peachment." Senators favoring
acquittal of the President staged a losing battle to
avoid the change. Sherman consistently
supported changing the order for he
wished to avoid the first article on
which he was committed to vote not guilty. Ulti-
mately the Senate agreed to commence
voting on the second article. With the re-
sult on the second and third articles
identical to that on the eleventh article the Sen-
ate voted to adjourn the trial sine
die, ending the United States' first and only im-
peachment trial of a President.37
Sherman had accepted impeachment
reluctantly and only after he believed the
President posed a genuine threat to
Republican plans of Reconstruction. In oppos-
ing congressional programs the
President, in the Ohioan's estimation, had usurped
powers legitimately within the purview
of the legislative branch of government.
Moreover, the President had acted in
opposition to the expressed will of loyal Amer-
icans through their duly elected
representatives. Had the President's willfulness
gone unchecked, the erosion of power to
the presidency which had begun during the
Civil War might have irreparably damaged
the separation and balance of power
among the three co-equal branches of the
federal government and led eventually to
authoritarianism. The President would have
usurped Congress' right to set policy
for the nation and would have combined
it with execution in one branch of the gov-
ernment beyond the control of Congress
and the Courts. A main thrust of im-
peachment, in Sherman's view, was to
redress the balance before it got out of hand.
The very fact that conviction failed by
such a narrow margin would, it could be
argued, serve as a deterrent to
executive usurpation in the future. Although John-
son was not convicted, the pressure
exerted by the proceedings forced him to behave
35. Senate Journal, 40 Cong., 2 Sess., 941-945; DeWitt, Impeachment, 551-554.
36. Ibid., 563-574; Walter L.
Fleming, ed., Documentary History of Reconstruction: Political, Military,
Social, Religious, Educational and
Industrial, 1865 to the Present (New
York, 1906), I, 480.
37. Senate Journal, 40 Cong., 2
Sess., 945-951; DeWitt, Impeachment, 574-576.
Sherman and Johnson 191
more circumspectly. He appointed a
Secretary of War acceptable to a majority of
Republicans. He ceased his overt
hostility to congressional Reconstruction and ac-
quiesced in the building of southern
state governments on a basis of universal male
suffrage. With the President's
acquiescence in black participation in the southern
political process, the Republican
Sherman expected to achieve another major goal.
He believed his party would attain a
competitive, if not majority, status in the
South, assuring the beneficial results
of the Civil War and the continued leadership
of the Republican party in the nation.
Thus the satisfaction Sherman expressed
over the results of impeachment may well
have been genuine, for as he wrote to a
friend following the failure to convict
on the eleventh article, and before the final
votes on articles two and three:
"Now that it has failed I hope our friends will drop
the unfruitful task & go to
legitimate legislative business."38 The future seemed se-
cure.
38. Sherman to Warner M. Bateman, May
25, 1868, Bateman Papers; Sherman, Recollections, I, 432.
On Johnson's acquiescence after
impeachment, see Thomas and Hyman, Stanton, 612. These authors
also contend that impeachment was
essentially a conservative move. See also Alfred H. Kelly, "Com-
ment on Harold H. Hyman's Paper, in
Harold H. Hyman, ed., New Frontiers of the American Recon-
struction (Urbana, 1966), 53. Compare this view with the sharply
contrasting one in Sefton, "Impeach-
ment of Johnson," 129-130.
ROGER D. BRIDGES
John Sherman
and the Impeachment
of Andrew Johnson
In Irving Brant's recent study of the
impeachment process by the United States
Congress, he characterized the Radical
Republican attempt to remove Andrew
Johnson from the presidency in 1868 as
"the most insidious assault on constitutional
government in the nation's
history." "It was," Brant charged, "carried on in direct
violation of the limitations
deliberately placed in the Constitution to prevent such a
happening. If it had been successful and
had been accepted as a precedent, it
would have converted a government of
divided powers, of checks and balances, into
a congressional dictatorship."1 Few
authorities have reached the extreme con-
clusions Brant has put forward. A
majority of those who have studied the question
have generally divided along two lines.
One group has concluded "conviction defi-
nitely would have demolished the
separation of powers concept and reduced the
presidency to a plaything of the
ascendant group in Congress." More recent writers
have conceded that the impeachment might
have irreparably damaged the presi-
dency but believe it more likely that
the threat of impeachment might have limited
the President's prerogatives and led to
its more frequent use when the Chief Execu-
tive overstepped the bounds of
propriety.2
Whatever the constitutional impact of a
conviction might have been, the attempt
was rooted in real fears by many
Republicans that Johnson was exercising question-
able presidential power, usurping proper
congressional functions, and threatening
to overturn the results of the Civil War
by returning "traitors" to positions of au-
thority in the South. The logical
consequence of such actions, in the eyes of Re-
publican opponents to Johnson, was the
threat to the construction of a Republican
party in the South and the practical, if
not legal, return of southern Negroes to in-
voluntary servitude. Moreover, Johnson's
continued abuse of patronage, one of the
1. Irving Brant, Impeachment: Trials
and Errors (New York, 1972), 4.
2. James E. Sefton, "The
Impeachment of Andrew Johnson: A Century of Writing," Civil War
History,
XIV (June 1968), 142-143. The Sefton
article is an excellent review of impeachment historiography,
ibid., 120-147.
Mr. Bridges is Director of Research at
the Illinois State Historical Library in Springfield.
176