The Impeachment of Andrew Johnson
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Harper's Weekly, April 11, 1868, page 226

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The pretense that President Johnson is a martyr to his defense of the Constitution is intended only for the inexperienced. We maintain, on the contrary, that his present position before the country is due to his manifest and bold usurpation of power.

The capitulation of General Lee’s army occurred on the 9th of April 1865. That of General Johnston followed soon after. The death of President Lincoln occurred on the 15th day of April, too soon after these conclusive events for the development of any Presidential policy. The Vice-President took the oath of office as President at this interesting juncture, when he had only to wait for the surrender of the last rebel forces in the southwest—which soon followed—to know that every sword drawn in opposition to the Union had been sheathed. The terms of the capitulation of General Lee and of his associates embraced merely the personnel of their respective armies, leaving to be adjusted with the Union the relations which the revolted States and the great mass of their people should thenceforward occupy. The question embraced that large class which, lately slaves and chattels, had "emerged into the human character."

Two policies were presented for the consideration of President Johnson. One of them, and obviously the correct one, was the convocation of Congress, as the duty of complete adjustment was wholly legislative—following, in that respect, the war power which is bestowed on Congress. The other policy was to adopt the English precedents, which devolve the duty of such adjustments on the Executive—the war power in England being wholly Executive to and including the settlement of the terms of peace. President Johnson chose the latter, and thus commenced his usurpations of authority

In defense of his measures—in which, affecting to represent the Sovereignty of the United States, he gave Governors and governments to States lately in revolt—it is claimed that they were only temporary in their character, and that President Lincoln had set the example. But the action of President Lincoln with respect to Tennessee occurred in the midst of hostilities, when unusual powers appertain to the Commander-in-chief, embracing every thing necessary for success or safety; and the Southern States did not view the action of President Johnson as of a temporary character; on the contrary, it had the appearance of being, and it was treated as being, of a permanent character.

What were the relations of the Southern States to the Union at this juncture? "It is an established principle of international law." Said Mr. Calhoun, "that whenever a country is subdued, even in part, its sovereignty is for the time suspended, and that of the conquering substituted in its place." This was asserted in behalf of the United States with respect to Mexico, but on the question where the power to exercise the substituted sovereignty resided, he observed: "I readily concede to the President, as Commander-in-chief, many and great powers, but they are such as arise out of exigencies immediately connected with the operations of the army, and its success or safety… but when he undertakes to exercise power, on his own authority, over subdued territories unconnected with the operations of the army, he exercises, in my opinion, a power not belonging to him. Congress may by law authorize him to levy contributions or to establish temporary governments in such territory; but it is one thing to exercise it on his own authority, and another to exercise it under the authority of law. The one places him under the control of law, while the other places him above its control."

That this doctrine applies to the States which undertook to secede from the Union, and for this purpose to take upon themselves a new and different character from that they previously had, is obvious from a single test. Were the rebel States during hostilities, when their whole energies were concentrated into a public force and arrayed against the United States, entitled to be represented on the floor of Congress? No one will allege that they were. If they could not take part in Congress in determining how we should conduct the war against them, it follows that they can not take the same part in adjusting the terms of peace. These terms still remain to be arranged. This arrangement must be made upon the rule of international law, that, as one of the results of victory, the sovereignty of the Untied States immediately prevails over a conquered people. Any other idea would enable the Southern States, through means of representation in Congress or in local Legislatures, to obstruct such arrangements as are necessary to the safety of the Union. No other alternative would in that case remain but the further and interminable persecution of the war.

The error of the President in assuming a wholly different state of things—such, for instance, as that the revolted States were still as States in the Union, their rights unimpaired by the war they waged with terrible energy, and in further assuming that his was the authority which could adjust the difficulties—is still operating greatly to the embarrassment of the whole country, which doubtless would have been in as harmonious relations as the circumstances allowed had Congress been convened. The power to assemble "both Houses or either of them… on extraordinary occasions" is expressly conferred in the 3d ¶ of the second Article, and it is clear that the President’s omission to act under this authority was a manifest neglect of the public interest. The desire on the one side to escape the perils of treason—for the army only had been relieved—and the feeling of magnanimity which then extensively prevailed in the North would have found some common ground on which restoration might have been safely based. The President undertook, however, to settle the question—the gravest ever presented for decision—and to admit the Southern States into the Union through the bars which he had thrown down, without consulting that power under our Government which alone has jurisdiction of the question—the legislative power.

The war had created a national debt and a confederate debt, one was to be made operative over the whole Union, the other inoperative everywhere. It had left maimed and disabled soldiers and families on both sides; those of the nation were to be rewarded with pensions, and those of the rebels unprotected by such rewards; it had changed the relations of master and slave so as to require new regulations; and it is perfectly idle to suppose that these and other important questions, and the one which underlies them all, upon whom the suffrage shall hereafter devolve, could be arranged without the intervention of Congress.

It was a grave failure of duty to omit the convocation of Congress, inasmuch as the regular session was not to commence until nearly eight months after General Lee’s capitulation, during which time the ship of state could go on only under very great disadvantages. Was the idea then entertained that Congress was a body "hanging on the verge of the Government," or was the motive for not convening them founded on objects of personal ambition? The same fundamental error of policy which assumed to act independently of Congress and in defiance of Congress, has been persistently followed by the President as each successive step has been taken by that body in prescribing the terms of peace. The country has been kept apart and in difficulty through this obstruction, until at last a direct assault has been made by the Executive upon the Tenure-of-Office Act, and consequently upon the power of Congress.

This Act undertook to protect the Secretary of War against removal. Such was one of its manifest objects, as the President well knew when he suspended Mr. Stanton under its provision, and the Senate, also, under its provisions, had restored Mr. Stanton. It is a mere quibble to say that the immovability of Mr. Stanton was not only not intended but was excepted from the operation of the law. The President himself having settled this point by first suspending Mr. Stanton—as this mode of proceeding had no other authority than the Tenure-of-Office Act—is estopped from now claiming that the same Act gave him the power of removal.

We have undertaken to meet the President’s additional ground, that this Act is unconstitutional, by arguments founded on the specific powers conferred on Congress, wholly at variance with the implied power of removal clamed for the President. Subsequent investigation enables us to present the highest authority for the opinions we have thus advance. Mr. Clay, Mr. Webster (the latter, Vol. 4 of his works, p.179), Mr. Calhoun, and Mr. Clayton, in the debates in 1835 and 1846, agreed in opinion that it is competent for Congress to require, as to all officers, excepting judicial, appointed "by and with the advice and consent of the Senate," that the power of removal shall be exercised only in like manner.

It was not alone in debate that Mr. Calhoun thus committed himself, but in his work on the Constitution of the United States, regarded in the light of a testamentary contribution from his mind, at pages 220, 344, and 369, the doctrine is solemnly asserted that it is wholly in the power of Congress thus to fix the tenure of offices except of the judicial; that the concession made to the President by the Congress of 1789 is unconstitutional; and that it is necessary to the safety of the Union to prevent the exercise of the power of removal by him, without "the advice and consent of the Senate."

That he alone is not the safe depository of this power appears from the fact that he persists in retaining in office all those persons connected with the Internal Revenue Department whose frequent abuses and gross neglect of the public service are the subject of just complaint by those who are immediately responsible to the Secretary of the Treasury.

The country demands to know why these offenders are retained? But one answer can be given. They are the professed friends of the President, and he does not hesitate to consider allegiance to himself as a higher recommendation than would arise from fidelity to their trust or from allegiance to the Government.

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