by H. W. Brands
In the same month the Republicans passed the Tenure of Office Act. The Republicans realized that Johnson could frustrate their legislative purposes by staffing federal positions with persons hostile to their policies. To limit Johnson’s chances of doing so, the Tenure of Office Act forbade the president from removing individuals whose appointments had required Senate confirmation, without Senate endorsement of the removal. Johnson deemed the measure unconstitutional and vetoed it. The Republicans again overrode his veto.
“One of the most ridiculous veto messages that ever emanated from any president,” was how Grant characterized Johnson’s failed argument against the reconstruction law. Grant learned that Jeremiah Black, attorney general under James Buchanan, had drafted Johnson’s message. “It is a fitting end to all our controversy…,” Grant wrote Elihu Washburne, “that the man who tried to prove at the beginning of our domestic difficulties that the nation had no constitutional power to save itself is now trying to prove that the nation has not now the power, after a victory, to demand security for the future.” Grant cautioned Washburne that this letter was for his eyes only. “Do not show what I have said on political matters to anyone. It is not proper that a subordinate should criticize the acts of his superiors in a public manner.”
Grant’s efforts to keep his politics private met with diminishing success. Each week made clearer that the army was a political instrument in reconstruction and consequently that the commanding general of the army was a political figure. Grant’s troops represented federal authority in the South, but with the president and Congress at loggerheads it was unclear which federal authority they represented. When the troops tried to protect freedmen against rioters, as Sheridan’s troops did in New Orleans, they pleased the Radicals in Congress, who considered such protection necessary and appropriate. But they angered the president, who deemed the Southern states masters again of their domains. Grant appealed for guidance to his superiors, but Edwin Stanton told him one thing and Johnson another.
In his quandary Grant adopted a more advanced position politically than he had ever imagined he would. He wrote to Edward Ord at Little Rock urging him to exert what influence he could to get Arkansas to approve the Fourteenth Amendment. Ratification was inevitable eventually, he said, and Southern resistance would simply cause Congress to take harsher measures. “Delay may cause further demands, but it is scarcely in the realm of possibility that less will be accepted.” He still acknowledged the wall that separated, or ought to separate, civilian affairs from those of the military. “It is not proper that officers of the Army should take part in political matters,” he told Ord. But he found a door in the wall through which, in the case at hand, a conscientious officer must step. “This is hardly to be classed as a party matter. It is one of National importance. All parties agree to the fact that we ought to be united and the status of every state definitely settled. They only differ as to the manner of doing this. It ought to be seen that no way will succeed unless agreed to by Congress.”
Significantly, Grant did not say “unless agreed to by the President.” He recognized where political power was coming to rest, at least for the moment, and in the escalating fight between the legislature and the executive he sided increasingly with the former. Yet he resisted any overt identification with the Republicans as Republicans. “There is but little difference between the parties,” he wrote Sherman.
The Republicans, however, identified with him. So did Johnson, when he could. Grant lamented being the object of such political fascination. “No matter how close I keep my tongue, each try to interpret from the little let drop that I am with them,” he told Sherman. He said he sometimes wished he could relinquish command of the army and spend a year abroad. “But to leave now would look like throwing up a command in the face of the enemy.” To Elihu Washburne he wrote, “I am not egotistical enough to suppose that my duties cannot be performed by others just as well as myself, but Congress has made it my duty to perform certain offices, and whilst there is an antagonism between the executive and legislative branches of the Government, I feel the same obligation to stand at my post that I did whilst there were rebel armies in the field to contend with.”
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THE STRUGGLE ESCALATED. AFTER JOHNSON ATTEMPTED TO SABOTAGE enforcement of the Reconstruction Act, the Republicans launched an impeachment effort. The House Judiciary Committee called Grant as a witness. Members asked if he had advised the president regarding reconstruction. He answered that he had. They asked what policies he had recommended for the South. “I was not in favor of anything or opposed to anything particularly,” he said unhelpfully. “I was simply in favor of having a government there. That was all I wanted. I did not pretend to give my judgment as to what it should be. I was perfectly willing to leave that to the civil department.” Grant was on public record as having supported speedy reconstruction; committee members inquired if he had expressed a similar opinion to the president in private? “I may have done so, and it is probable that I did,” Grant said. “I do not recollect particularly. I know I conversed with the president very frequently.” But there was less to the discussions than might appear, he added. “I do not suppose that there were any persons engaged in that consultation who thought of what was being done at that time as being lasting—any longer than until Congress would meet and either ratify that or establish some other form of government. I know it never crossed my mind that what was being done was anything more than temporary.”
The impeachment rumblings grew louder with the spring, then diminished when Congress recessed for the summer. Johnson took the opportunity of the legislators’ absence to demand Stanton’s resignation. The secretary of war refused, as Johnson expected. Johnson suspended him.
Grant wished he hadn’t. He warned the president against “the great danger to the welfare of the country” in defying Congress. He acknowledged that Johnson was within the letter of the law, which allowed for the suspension of officeholders while Congress was in recess. But the president’s action contravened the spirit of the law. “It certainly was the intention of the legislative branch of the government to place cabinet ministers beyond the power of executive removal,” Grant told Johnson. “And it is pretty well understood that, so far as cabinet ministers are affected by the Tenure of Office bill, it was intended specially to protect the Secretary of War, who the country felt great confidence in.” Johnson’s legal advisers sought loopholes in the law, but such an approach missed the point, Grant said. “The meaning of the law may be explained away by an astute lawyer, but common sense, and the mass of loyal people, will give to it the effect intended by its framers.” Grant knew he was being forward in expressing himself so freely. But his sense of duty required nothing less. “Allow me to say as a friend, desiring peace and quiet, the welfare of the whole country, north and south, that it is in my opinion more than the loyal people of this country (I mean those who supported the government during the great rebellion) will quietly submit to, to see the very man of all others who they have expressed confidence in removed.… I know I am right in this matter.”
His disapproval of Johnson’s course didn’t prevent Grant from accepting Johnson’s appointment of him as acting successor to Stanton. He refused to consider becoming the actual secretary of war, believing Johnson wrong constitutionally and politically. But he believed he owed it to the army and the country to fill the post until the controversy could be resolved.
He entered his new post on good terms with his predecessor. “In notifying you of my acceptance,” he told Stanton, “I cannot let the opportunity pass without expressing to you my appreciation of the zeal, patriotism, firmness and ability with which you have ever discharged the duties of Secretary of War.” He initially concluded this sentence with the clause: “and also the regret I now feel at seeing you withdraw from them.” But he crossed it out, apparently wanting to remain officially noncommittal as to Stanton’s removal.
He thought he might have more influence with Johnson th
an Stanton had. The president obviously wanted some of Grant’s popularity to rub off on him, and he presumably would hesitate to adopt policies Grant thought ill advised. Grant tested his influence just days after taking over the War Department. Phil Sheridan enforced the federal writ too harshly for many Texans, who appealed to the president for Sheridan’s removal. Johnson told Grant to reassign Sheridan but invited him to comment on the reassignment before he sent the order out. Grant urged Johnson to think again. “It is unmistakably the expressed wish of the country that General Sheridan should not be removed from his present command,” Grant said, without specifying how he had ascertained the country’s will. “This is a republic where the will of the people is the law of the land. I beg that their voice may be heard.” The country, especially the South, was watching. “General Sheridan has performed his civil duties faithfully and intelligently. His removal will only be regarded as an effort to defeat the laws of Congress. It will be interpreted by the unreconstructed element in the South, those who did all they could to break up this government by arms, and now wish to be the only element consulted as to the method of restoring order, as a triumph. It will embolden them to renewed opposition to the will of the loyal masses, believing they have the Executive with them.”
Grant’s plea failed. Johnson understood where his political support, such as it was, lay. The Republicans would never accept him; his sole hope for continuation in power was to expand his base among the Democrats, including those who called for Sheridan’s removal. Besides, he believed the principle of executive independence was at stake. If he couldn’t remove Stanton and reassign Sheridan, the presidency might become an impotent appendage of the legislature. He reiterated his instruction to Grant, who duly withdrew Sheridan from Texas.
The decision made Grant realize the political waters were deeper than he thought. “I feel that your relief from command of the 5th District is a heavy blow to reconstruction,” he told Sheridan. “The act of removal will be interpreted as an effort to defeat the law and will encourage opposition to it.… I do not know what to make of present movements in this capital, but they fill me with alarm.” To William Sherman, who offered sympathy at Grant’s awkward position, he replied, “It is truly an unenviable one, and I wish I had never been in it. All the romance of feeling that men in high places are above personal considerations, and act only from motives of pure patriotism and for the general good of the public, has been destroyed. An inside view proves too truly very much the reverse. I am afraid to say on paper all I fear and apprehend.”
When the Republicans returned to Washington in November, they were spoiling for a fight. A first attempt in the House to vote articles of impeachment failed when a majority decided that, though Johnson had made himself obnoxious, he hadn’t committed the “high crimes and misdemeanors” specified by the Constitution as sole grounds for removal. If Johnson had been looking to patch over his differences with the Republicans, he could have taken this as an opportunity. But he was as determined as they were to have matters out, and he stood on his right to remove Stanton.
Grant again found himself in the crossfire. Sherman was in Washington that winter crafting a new code of army regulations. “Our place of meeting was in the room of the old War Department, second floor, next to the corner room occupied by the Secretary of War, with a door of communication,” Sherman remembered. “While we were at work it was common for General Grant and, afterward, for Mr. Stanton to drop in and chat with us on the social gossip of the time.” As the controversy between Johnson and the Republicans intensified, Grant told Sherman that he had only recently read the tenure of office law carefully. “It was different from what he had supposed,” Sherman said. “In case the Senate did not consent to the removal of Secretary of War Stanton, and he (Grant) should hold on, he should incur a liability of ten thousand dollars and five years’ imprisonment.” Grant was uncomfortable heading the War Department on even an interim basis; the prospect of prison and financial ruin made continuing in the post utterly impossible. Sherman asked him if he had told this to Johnson. He said he had not but would do so soon.
What happened next became a subject of rancorous disagreement. “Learning on Saturday, the 11th instant”—that is, of January 1868—“that the Senate had taken up the subject of Mr. Stanton’s suspension,” Grant wrote Johnson in subsequent recapitulation, “after some conversation with Lieutenant General Sherman and some members of my staff, in which I stated that the law left me no discretion as to my action should Mr. Stanton be reinstated, and that I intended to inform the President, I went to the President for the sole purpose of making this decision known and did so make it known.” Johnson at their meeting—on January 14—disputed Grant’s interpretation of the tenure law, saying that he had appointed Grant under the terms of the Constitution, not of any statute, and that Grant therefore was not governed by the act. Grant demurred. “I stated that the law was binding on me, constitutional or not, until set aside by the proper tribunal. An hour or more was consumed, each reiterating his views on this subject, until getting late, the President said he would see me again.” Grant was sure he had made his intentions plain. “From the 11th to the Cabinet meeting on the 14th instant, a doubt never entered my mind about the President fully understanding my position, namely that if the Senate refused to concur in the suspension of Mr. Stanton, my powers as Secretary of War ad interim would cease, and Mr. Stanton’s right to resume at once the functions of his office would under the law be indisputable.”
Later on January 14 Grant received official notice that the Senate had refused to support Stanton’s suspension. He immediately forwarded the notice to Johnson with a letter of his own. “According to the provisions of Section 2 of ‘An Act Regulating the Tenure of Certain Civil Offices,’ my functions as Secretary of War, ad interim, ceased from the moment of the receipt of the within notice,” he told the president.
Johnson called a meeting of the cabinet and told Grant he should come. Johnson treated Grant as though he were still war secretary. Grant reminded him that he had been removed by the Senate order. Johnson thereupon related his version of the conversations they had had. He said that Grant had agreed to remain as war secretary until removed by the courts or to resign and allow the president to name another secretary. Grant rejected Johnson’s version—“though to soften the evident contradiction my statement gave, I said (alluding to our first conversation on the subject) the President might have understood me in the way he said, namely that I had promised to resign if I did not resist the reinstatement,” Grant later recalled. He added, “I made no such promise.”
Johnson insisted that he had made the promise. And in a long, angry letter to Grant that got into the papers, he said that four of the five cabinet secretaries present at the meeting attested that he had.
“I confess my surprise that the Cabinet officers referred to should so greatly misapprehend the facts in the matter,” Grant replied. He refused to retreat. Referring to the letter to Johnson in which he had stated his understanding of their conversations, he said, “I here reassert the correctness of my statements in that letter, anything in yours in reply to it to the contrary notwithstanding.” He said he had accepted the job of acting war secretary simply to ensure continuity in army policy in the South, not to enable Johnson to fire Stanton. And in a tone he had never imagined he would take toward a commander in chief, he concluded: “Mr. President, where my honor as a soldier and integrity as a man have been so violently assailed, pardon me for saying I can but regard this whole matter, from the beginning to the end, as an attempt to involve me in the resistance of law, for which you hesitated to assume the responsibility in orders, and thus to destroy my character before the country.”
If Johnson hadn’t been so unpopular, Grant might have had to work harder to explain the discrepancy between what he said he had told Johnson and the cabinet and what Johnson and the four cabinet members said they had heard. But Johnson’s removal of Stanton eliminated what scruples most
Republicans in Congress still had about going after Johnson, and within days the big story in Washington was the first impeachment of a president in American history. The nine articles of impeachment approved by the House alleged various high crimes and misdemeanors, but the central one was Johnson’s failure to fulfill his constitutional obligation to ensure that the laws of the United States—in particular the Tenure of Office Act—be faithfully executed.
Some of the Radical Republicans apparently believed that the mere threat of removal would compel Johnson to resign. Moorfield Storey, Charles Sumner’s secretary, predicted privately that Johnson would growl till the last moment before retreating like a “thoroughly ill-bred dog” and submitting his resignation. Eliza Johnson, the president’s wife, viewed the prospect of eviction from the White House ambivalently. “But for the humiliation and Mr. Johnson’s feelings,” she told a friend, “I wish they would send us back to Tennessee—if it were possible, give us our poverty and peace again, so that we might learn how to live for our children and ourselves. I have not seen a happy moment since I came to this house.”
But Johnson had always been a scrapper, and he scrapped now. It helped him that the Republicans in the Senate, where the trial would be held, weren’t as unified as their counterparts in the House. Though Sumner confidently declared that “never in history was there a great case more free from all just doubt,” a number of his colleagues weren’t so sure—about Sumner, if not about Johnson. William Fessenden of Maine, the Senate Republican leader, despised Sumner. After the first impeachment attempt had failed, Fessenden took comfort that the failure frustrated Sumner. “His bitterness beats wormwood and gall,” Fessenden said. He subsequently characterized Sumner as “the most cowardly dog in the parish.”