He pointed out that elections in Northern states early in October had substantially reduced Republican majorities where they did not produce Democratic victories. Stanton’s return to the capital so long before December, the President suggested, meant that he was preparing to resign all claims to the war portfolio before Congress assembled, thus relieving Johnson of any concern over the tenure law.
Nevertheless, the Republicans might still seek an impeachment. Supposing, Johnson asked, the legislators ordered his arrest during an impeachment trial; what would Grant do? What if Stanton, despite rumors to the contrary, demanded the return of his office; would Grant comply?
Grant assured the President that he would not support an attempt by Congress to arrest him, or give Stanton back the keys to the war office short of a court order requiring the return, and in any case not without notification to the President. He convinced Johnson and Sherman that he was moderate in his political views, that he had no ambitions for the presidency, and that he held the war office only to keep the Army out of politics.11
Stanton, comforted by his renewed faith in Grant’s Republicanism, decided to go visiting in Ohio. His health had again worsened and plans for resuming active law practice were necessarily postponed, which aggravated the financial problem. There was some real estate near Steubenville that might be salable, and he could visit his mother and sisters again while avoiding the tensions of the capital until after the beginning of the congressional session, when his case would come up before the Senate.
A spontaneous public demonstration formed in his honor when he reached Columbus on October 15, exhilarating and pleasing him. But the unseasonably hot, humid weather was uncomfortable, and the dust, “stifling on the roads,” was hard on his asthmatic condition. “Already I am anxious to get home,” he wrote Ellen, “or to the mountains where I can breathe.… I am weary and homesick.”
Suddenly the weather changed, and, just as the congressional session opened, a great snowfall promised to trap Stanton in Columbus. “Not for several years have I witnessed such inclemency as there is here,” he told his wife. “Snow and sleet cover the earth—everything is hard frozen—and it is growing colder by the hour. The river is closed with ice. It is fortunate that good coal abounds here but the suffering at other places must be very great.”
Then he learned that the son of his late brother, Darwin, had died. Stanton hired a team and sleigh, and braving the harsh weather, plunged through to Steubenville to arrange for the burial. His feelings, as always, were at low ebb in the presence of death, and uncertainty about his future increased his depression. He wrote Ellen that “your love is the only solace that supports me in despondency, and ill health, and many cares.” Stanton was worried that she might become ill: “When I think of the dreadful consequences to our beloved children if you should be taken away from them, and how unlikely it is that I should remain long to give them even the little care and assistance that would be in my power,… the thought of such calamity to them overwhelms my soul with grief.”
After the funeral, Stanton went on to Gambier to spend his fifty-second birthday with his mother and Pamphila. There was no celebration. He read from the Psalms and the Morning Prayer for Families, walked through the deep, quiet, snow to see the familiar scenes of the town, and visited old friends.
A letter came from Ellen confessing that she was deeply discouraged over their being “all adrift” and that she was “suffering anxiety and perplexity of mind about our present domestic conditions.” He chided her, telling her that always before she had sustained him in adversity: “Why then, dear love, are you discouraged now?” His concern for Ellen, and the magnetic attraction of the events transpiring in the national capital, hurried him back to Washington.12
Ever since the President suspended Stanton in August, the country had waited for the reassembling of Congress. Beyond the probability that the Senate, invoking the tenure law, would send Stanton back to the war office, everything was uncertain.
While political leaders and presidential hopefuls maneuvered to gain advantage from whatever might occur, Stanton had kept silent. He knew that his star was rising in the shifting sweepstakes for the Republican nomination. Considering that he was making absolutely no effort to be advanced to a candidacy for which he had no ambition or interest, the seriousness with which he was mentioned is impressive. As a martyr, Stanton was enjoying more popularity than he had ever known before. His friend Lieber, among others who were hopeful that he would seek a nomination, was worried that he planned to abandon this advantage and “resign immediately after the Senate shall have shown that it rejects Stanton’s suspension. I do not like it.”
It was precisely Stanton’s intention to regain the war office as a vindication for his career and then to resign immediately. But he confided his decision to no one except Ellen and Pamphila. “Why is Stanton so over-reticent, so totally silent, to his best friends?” complained Lieber.13
Republican strategists also had to worry about the possibility that Johnson would not receive Stanton back into the cabinet even if the Senate refused to concur in the suspension. Grant’s position was critical. If he thereafter kept the war portfolio at Johnson’s behest, and added his vast popularity and his control of the Army to the President’s strength, then the Republican position was destroyed and the tenure law rendered futile.
The nation had paid careful attention, therefore, to the President’s message to Congress on December 3, hoping to find in it a hint of Johnson’s intentions toward Stanton. But the only reference to the tenure law was a complaint that it prevented the President from discharging corrupt government agents. Nine days later, as the tenure law required, Johnson reported to the Senate on his suspension of Stanton. The senators thereupon referred the message to a committee and adjourned until the new year.14
Johnson’s first impulse had been to send to the Senate a message stating that long before August 1867 he had lost confidence in Stanton, who not only differed with him but “employed the power, authority, and influence of the War Department to thwart measures from which, in Cabinet council, he alone dissented.” In this draft, Johnson asserted that he let Stanton remain in the cabinet in the hope that the War Secretary would realize his unacceptability and leave of his own accord. The request for Stanton’s resignation which he sent him on August 5, 1867, was merely a spur to achieve this result, but the Secretary, taking refuge behind the tenure law, refused, and so suffered suspension.
But this approach, the President realized, pictured Stanton as an honest, open opponent of White House policies, and Johnson wanted to create an opposite image. In the report which went to the Senate, Johnson portrayed Stanton as a conspirator who had advised vetoing the tenure-of-office bill and now insisted upon obedience to its restrictions; supported the initial steps of reconstruction under Johnson’s program in 1865 and 1866, and then exerted secret efforts to nullify the success of that program; failed to prevent the New Orleans riot and refused to accept the blame for its occurrence. It was an effective, powerful document.15
Immediately upon his return from Ohio, Stanton set to work preparing a counterblast to submit to Senator Howard, of the Military Committee, and the Christmas holidays passed almost unobserved as he completed the retort. In it he admitted that he had openly opposed the tenure law in the cabinet. Not only that, but he had asked congressmen, while the bill was in passage, to stipulate that he was not protected by it. Yet it was now law and he felt that he and the President must abide by it. On the question of reconstruction policy, Stanton accurately described how, in 1865, Johnson had employed the essential portions of the plan the Secretary had drawn up for Lincoln, and then tried to make it over in a manner which the country clearly felt was injurious to its interests and insulting to the war dead. Stanton asserted that the President had violated the democratic process when he sought to nullify Congress’s reconstruction laws through obstructive interpretations. Johnson had forgotten, Stanton tellingly observed, that until mid-1865 his own statements
had noted the provisional character of presidential reconstruction and the dominant role of Congress in the final step of admitting Southern states to representation, which was Lincoln’s position throughout the war. After that Johnson had shifted away from this view to one of plenary executive power, and the trouble had started.
Concerning the New Orleans massacre, Stanton sarcastically agreed that he could not exculpate the President. No one could. Only Johnson’s encouragement to intransigent whites, who were determined to prevent Negroes from exercising rights guaranteed by Congress, had made it possible.
For long months he had stood forth alone in the cabinet, openly opposing the President’s policies. He had forborne from making any reply to the criticisms the President’s supporters had cast on him. Now that Johnson wished to reduce to a matter of personal antagonisms what was truly an opposition of principles, Stanton wished to correct the record.16
But Stanton, despite the assertions of his biographers, never sent his reply to Capitol Hill. Shortly after the new year, he told reporters only that he had no reply to make as an individual to the President’s charges. He was holding himself in check, he confided to his son, because Johnson had offended Congress and the nation, not merely himself. To reply to the President’s assertions would be to dignify them beyond their worth. The Senate and Congress as a whole were going to fight on his behalf, or Stanton would wage no contest at all.
Another reason impelling Stanton to silence was the failure of the impeachment resolution against the President which the House of Representatives had wrestled with for a year. With this encouragement, Johnson proceeded to insist upon the removal of Generals Pope and Ord from their Southern commands and, according to Chandler, to predict victory in the coming struggle with the Senate over Stanton. Taking all this into account, Stanton held off from increasing the dangerous tensions already existing.17
A third factor holding Stanton back from publicizing his rejoinder to Johnson’s message was the effectiveness of the President’s communication to Congress. Even the Nation and the Cleveland Leader, firmly in sympathy with Republican tenets, admitted the impressive characteristics of the Chief Executive’s statement and expressed the hope that it might not begin a mere squabble in print between Stanton and Johnson. Better, these influential journals stated, that Stanton let the Senate do his pleading for him.
And last, Grant was paying attention to him again. Grant’s secretary, Adam Badeau, visited the Stanton home on New Year’s Day and left a copy of the Military History of U. S. Grant, inscribed in affectionate and respectful terms. Probably Badeau also left with Stanton Grant’s advice to keep silent in order that, together with their allies in Congress, they might answer the President with greater force than Stanton could muster alone. As he had done since Appomattox, Stanton accepted Grant’s leadership, and a few days later the Intelligencer, a Johnson organ, was worriedly reporting that Grant, Stanton, and Senator Howard were meeting secretly with other Republican congressmen.18
At one of these meetings Stanton gave Howard his rebuttal to Johnson’s accusations against him. It became one of the sources for the senator’s report on the suspension. Howard leaked Stanton’s defense to the newspapers before his committeemen saw it, so that Stanton, after all, got his views before the public without initiating a personal exchange between himself and the President.
Grant, meanwhile, was resisting terrific pressure to take sides openly. Writing to Fessenden, to whose opinions Stanton was always respectful, John Binney felt that the general was wise in keeping silent. “Should he give any disclosures of his views on reconstruction prematurely, his political enemies would endeavor to destroy him as a Presidential candidate,” Binney asserted. “Besides, in his present position as General of the Armies and Secretary of War, it is better that he should interfere in politics as little as possible.”19
Grant was interfering, and on a large scale, but secretly. He could still jump whatever way became necessary. Of all the major participants in this unsavory situation, Grant was the only one who could not lose. Stanton could not win.
Still holding to an exalted view of his opportunities, the President and his close advisers again looked to the Supreme Court in the first days of 1868 to serve their political purposes, and to defend in the name of civil liberty their conservative principles. The Court, Johnson hoped, would follow the clear line of the Milligan decision and declare the reconstruction acts unconstitutional. As the least result, Grant would surely abandon his flirtation with the Republicans. “He will feel that the foundation of radical reconstruction is gone,” prophesied Senator Doolittle, the Democratic leader.20
It is difficult to understand how the President arrived at a judgment that he and the Court could overmatch the legislators, even if the jurists might be willing to stand up and defy Congress. Since the Milligan and test oath decisions a year before, the Republicans had subjected the Court to an intense barrage of criticism. Proposals to limit the jurisdiction of the tribunal, to require that two thirds of the judges be in agreement before a verdict could be reached, to reduce its membership, even to abolish it altogether, though not enacted into law, reflected the passionate temper of the congressmen. The jurists were to prove their sensitivity to these threats.
Johnson was less sensitive, even though Congress had severely limited his control over large segments of the government. The President might have gauged his weakness by the existence of the tenure act, the legislation restricting his control over the Army’s commanding general, the autonomy of the army units in the South under the reconstruction laws, and the statute of July 1866 that prevented him from appointing new members to the Supreme Court in the event of vacancies. Notwithstanding, Johnson jumped at the first opportunity to force the issue of the constitutionality of the reconstruction laws, and to seek a judicial verdict that would nullify the popular will.
The chance came in late 1867 when a Mississippi editor, William McCardle, a former Confederate colonel, libeled General Ord and was tried before a military commission. McCardle sought a writ of habeas corpus from a federal judge in order to bring his case before a civil tribunal. Denied this, McCardle’s counsel, Stanton’s former associate Jeremiah Black, exploited a provision of the law Stanton and Grant had obtained from Congress to protect army officers in the South against the actions of civil courts, and thereby secured a Supreme Court hearing for an appeal on behalf of McCardle. In his appeal, Black alleged that Congress’s exercise of martial law in the postwar South was as offensive as executive sponsorship of military rule in the wartime North, which the Court had condemned in Milligan’s case.
Johnson blundered in permitting Black, his confidential adviser, to take on the McCardle appeal; Black’s presence linked the White House with the attack on Congress and the Army. The President made a more serious error when he and Stanbery refused to provide Ord with a federal attorney to conduct his defense, as long-standing policy and recent legislation required.
Grant asked Stanton and Senator Trumbull to conduct Ord’s defense, and Stanton brought in Matthew H. Carpenter, of Wisconsin. These three very able lawyers commenced work on a brief sustaining the legitimacy of the reconstruction laws. Congress, meanwhile, began preparing a measure of self-defense against the Court.21
Months were to pass before the Court made a decision on McCardle. But the effects of the case were significant in January 1868. Grant, angry with the President because of his treatment of Ord, advised Stanton to abandon the self-restraint which had characterized his demeanor since his return to Washington. Across town, where the debate on Stanton’s suspension was under way in the Senate Military Committee’s rooms, Doolittle was reviving the old charges that Stanton had deliberately sabotaged the wartime prisoner-exchange system. Unwilling to remain quiet under this attack, Stanton sent to Senator Fessenden copies of the official documents on that vexed subject, though not those that would reveal Grant’s role in formulating the Union policy. In a powerful blast at Stanton’s Democratic critics
, delivered while the Senate was in executive session, Fessenden defended the War Secretary. Stanton arranged to have the speech made public, and he wrote that it “has delivered me from revilers and persecutors who sought to destroy my good name and has covered them with confusion.”22
Another effect of the McCardle appeal was the encouragement it afforded the President. Having convinced himself that every move the Republicans made must redound in his favor, Johnson shrugged off Doolittle’s warning on the morning of Saturday, January 11, that the Military Committee was ready to recommend that the Senate order the return of Stanton to the cabinet; indeed, he seemed pleased at the opportunity for battle.
Events that day offered further corroboration of Johnson’s lack of realism. Probably through Stanton, Grant for the first time became aware that if the Senate sustained Stanton under the tenure law, and he refused to turn back the war office to him, a $10,000 fine and a five-year prison term could result. Hurrying to the White House, Grant told the President that he was not going to run the risk. He would give up the portfolio to Stanton the moment the Senate voted in his favor.
For an hour Johnson pleaded with Grant, even offering to pay the fine himself and serve any sentence the general might incur by retaining the war office. Grant would not budge.
By this time neither man really heard the other. Johnson finally terminated the meeting with a request that Grant return to the White House on Monday, the thirteenth, to continue the discussion, and always insisted later that Grant acquiesced, implying also that he would not give up the war office without notice to the President. It appears most likely that Johnson misinterpreted as agreement what Lieber called “that awful silence upon which Grant prides himself.”23
Confused, Grant spent Sunday with General Sherman. There emerged from this meeting a plan to have Johnson nominate Governor Jacob Cox, of Ohio, as War Secretary before the Senate decided on Stanton’s suspension. As a moderate Republican, Cox should gain quick bipartisan confirmation and the Senate would not vote on Stanton at all. Grant could then resign the temporary portfolio, retaining, of course, his army commission, and avoid all the pitfalls yawning before him. Johnson would gain the services of the popular and perhaps pliant Cox, who would add luster to his tarnished administration. Sherman would achieve his object of withdrawing his friend and the Army from politics. Only Stanton would be left without benefit, thrown over, ridiculous and humiliated. If the Senate approved a substitute for him, or failed to vote on his suspension, then it indirectly sanctioned his removal and, by implication, the charges Johnson had leveled against him.
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