The fact remains that the President never really tried for a Supreme Court hearing. He and the cabinet later discussed the desirability of securing a writ of quo warranto from the Court, which would bring Stanton and the tenure law into the jurisdiction of the high tribunal, but Johnson did not apply for that writ because it involved a lengthy procedure. A year might pass before the Court acted upon an application. During that year, precisely the remainder of Johnson’s term, Stanton would hold the war office and perform as Secretary. The quo warranto procedure remained unused because the President wanted action, not litigation.
Johnson’s rationale, young Moorfield Storey mused, “was an afterthought, a contingency arising unexpectedly, and could have formed no part of his intention when the order of removal was issued.” For unless Johnson was bent on ousting Stanton, he had no reason for naming Thomas to the interim position and choosing a permanent nominee to succeed Thomas. And Johnson now had a plausible successor in mind as a permanent Secretary. Thomas Ewing, Sr., he planned, would replace Thomas once the general had finished serving as an expendable tool and had pried Stanton loose from the War Department. Obviously the Senate would not confirm Ewing if Stanton still held the office. No wonder the President castigated Thomas to newsman Stillson for “not holding on” at the war office “when Stanton was really scared.” On Saturday morning, February 22, 1868, Johnson’s attention, like that of the nation’s, was fixed on the War Department, not the courts.14
By eleven o’clock Saturday morning Stanton’s office was again crowded with friends; they were seated in a long arc with Stanton in the center facing them. Except for their conversation the building was quiet, for the clerks were away on the holiday weekend. Then Thomas’s voice was heard. Stanton called for him to enter. Everyone said “good morning.” Thomas read from the note that Stanbery had supplied him: “I am ordered by the President of the United States to take charge of the office.” A hush fell on the assembled men.
Then, breaking the silence, Stanton ordered Thomas to return to his adjutant duties. Thomas repeated his first statement, adding: “I shall not obey your orders.” Again Stanton ordered Thomas to abandon his presumptuous demand. “I shall not do so,” Thomas replied. “Then you may stand there, if you please,” Stanton answered, wagging his finger at Thomas; “but you cannot act as Secretary of War; if you do, you do so at your peril.” Thomas again insisted that he was the Secretary, then moved to Inspector General Edmund Schriver’s adjacent office and closed the door, whereupon most of the spectators left. Stanton followed Thomas. Privacy relaxed the men in Schriver’s room. Stanton laughingly asked Thomas whether he really presumed to act as Secretary. The general replied affirmatively. Playing Thomas as a good trial lawyer maneuvers a not too bright witness, Stanton shifted the mood of the conversation to a light plane. He asked after Thomas’s health, noting that the general looked worn. Thomas swallowed the lure: “The next time you have me arrested,” he told Stanton, “please do not do it before I get something to eat.”
Stanton laughed aloud, and said that he had fasted also. He placed an arm around the general’s shoulders and ran his fingers through Thomas’s hair. Turning to Schriver, who was discreetly out of hearing of the conversation, Stanton called out: “Schriver, you have got a bottle here; bring it out.”
Admitting that he kept a little whisky on hand for a dyspeptic ailment, Schriver produced it; Stanton and Thomas divided the meager contents equally and each drank his share at a swallow. Stanton sent a messenger to his home for a full bottle of liquor and while waiting for it the two men chatted amiably for a half hour. They opened the new bottle and had several drinks, joking and smiling the while. Grant peered in rather incredulously, made an inconsequential comment, and withdrew. Meanwhile, Thomas’s attorney and Moore were trying to get into the Department building to see what their charge was up to, but sentries refused them admission. Noon sounded on nearby church bells; a half hour later Thomas emerged and started back to the White House. It had, he later recalled, become a rather pleasant day.
Even while “Ad Interim” Thomas jousted with Stanton, the President was preparing to cast him aside, despite the fact that the aging general had, on Johnson’s behalf, made himself ridiculous and exposed himself to legal penalties. The nomination of Ewing to the post of War Secretary went off to the Senate. But it was too late. The senators had adjourned early that day after a brief session. Ordering Moore to return to the Senate on Monday with the Ewing nomination, the President, showing “some anxiety,” Moore recalled, turned to other matters.
Welles had told him about the incident of the preceding night, when General Emory had summoned his officers to their posts. Johnson called Emory to the White House and indirectly posed the question of the officer’s concept of rightful obedience. Emory replied that he had already consulted lawyers on the issue and they had concluded that he was governed by existing army regulations, including Congress’s law of 1867 which specified that all orders to army commanders must go through the commanding general. Johnson insisted that army officers had to give precedence to his orders as commander in chief over any legislative enactment. But the general, not totally disagreeing, pointed out that Johnson had approved the army order transmitting the 1867 law to the officers, who therefore assumed he also approved the law. Most officers, Emory asserted, would act on this basis.
Altogether it was a frustrating Saturday afternoon for Andrew Johnson. He soon learned, taking the news with great composure, that the House Reconstruction Committee, after a wild session, had recommended that Congress impeach him, and he told Moore, as the secretary has recorded it, that “he has made an issue demanded by his self-respect, and that if he cannot be President in fact, he will not be President in name alone.” Yet the night before, Johnson had assumed that no impeachment would follow his attempt to oust Stanton, that the Senate’s resolution declaring that Thomas might not take the war office would end Congress’s role in the affair.
It was only after hearing of the impeachment resolution that Johnson tried to secure a judicial decision on the tenure law. Heretofore he had expressed no great interest in Thomas’s joust in court that morning. Now he sought to use a court test of the tenure law as a way to keep himself out of Congress’s hands.
Soon after news of the impeachment motion reached the White House, Walter S. Cox, a Washington lawyer of note, arrived at the executive mansion in response to a request from Seward. Cox and Johnson discussed the possibility of getting Thomas jailed so that a quick test of the tenure law might result from efforts to get him out, and it was their hope that a favorable verdict would force Stanton to vacate. With Merrick, Cox agreed that Thomas should refuse to continue bail when he faced Cartter the following Wednesday, and should then submit to arrest. Meanwhile, the general must continue to assert that he was the legitimate War Secretary.15
In these tense days, as rumors of impending violence unsettled the nation, Stanton remained creditably calm. He secretly ordered that if Thomas tried to take the war office by force, it was to be surrendered at once, so that bloodshed might be avoided.
Sunday, February 23, passed quietly. Johnson spent part of the Sabbath with Stanbery, preparing an objection to the Senate resolution that had denied him the power to discharge Stanton. The President seemed cheerful. He enjoyed controversy and this one promised to overshadow all others in the nation’s history. Monday’s events added to the excitement.
At nine o’clock the War Department opened for the beginning of the day’s work. Armed soldiers near the entrance doors snapped to the salute as General Thomas entered. He went to Stanton’s room and repeated the demand for possession. Again Stanton refused. Thomas then went to the offices of Generals Townsend and Schriver, picked up his personal mail, and told them that all Department business must go through him. The officers remained noncommittal and Thomas left the building. Stanton worked on as though nothing untoward was occurring.16
The President, meanwhile, got off to the Senate his answer
to the Friday resolution denying him the right to oust Stanton, along with the nomination of Ewing to replace him. But the major drama was to occur in the House, where, late in the dark, snowy afternoon, by a party vote, the representatives impeached Johnson, essentially for violating the tenure law; the ousting of Stanton and all it symbolized had thrown the weight of congressional opinion against the President. Everyone was conscious of the fact that this was the first time in the country’s history that a chief executive was to face formal legislative condemnation. A sense of drama, of urgency, of crisis, permeated the scene.
Johnson received the news calmly. But nerves were raw. Rumors of clashes of armed men and of the theft of a stock of nitroglycerine in New York City, perhaps to blow in the locked doors of Stanton’s office, received ready credence. Senator Chandler and Representative Logan hand-picked more than a hundred armed men and stationed them in the basement of the building, and almost each night thereafter Stanton shared his siege with volunteer partisans.17
Democrats chortled at these precautions and scorned Stanton as a frightened mouse obsessed with maidenish fears. Welles gloated that “this ridiculous conduct makes Stanton a laughing stock. He eats, sleeps, and stays cooped up in his entrenched and fortified establishment—scarcely daring to look out of the window.” General Sherman, reporting later to Washington to testify at the impeachment trial, was amused when he saw armed sentries barring all War Department entrances but one, where visitors were carefully checked. “Why,” Sherman laughed to Moore, “the Secretary takes more precautions for his protection than I … when travelling through Indian country.”
Stanton was behaving ridiculously, even though millions of Americans believed as he did that physical violence was not only possible but probable. He was hurt when an old friend, Roswell Marsh, chided him for the security preparations around the War Department: “No one will steal it now.” But Stanton also knew that in the eyes of most persons he respected, his holdout was heroic rather than burlesque. Mrs. M. L. Pomeroy, the wife of the Kansas senator, depicted him as a valiant defender of human rights against executive tyranny, and asserted to Stanton that congressmen, generals, and journalists were behind him. Cabinet officers such as Browning shared his fears that “danger of a civil war seems imminent.” Moderate men such as George Templeton Strong and John Sherman agreed that Johnson had brought crisis to a country which, still recovering from the strains of the war years, might not be able to endure the new test. So Stanton found the courage to wait.18
1 S. Van Vleit to Sherman, May 29, 1868, W. T. Sherman Papers, LC; Morse, Welles Diary, III, 278–80.
2 W. T. Sherman to T. Ewing, Sr., Feb. 22, 1868, Ewing Family Papers, LC; Morse, Welles Diary, III, 289.
3 Feb. 17, 1868, Moore notebook, Johnson Papers, LC; Morse, Welles Diary, III, 281.
4 Mrs. Martha Johnson Patterson to Johnson, Feb. 10, 1868, Johnson Papers, LC; Morse, Welles Diary, III, 282; “Notes of Colonel W. G. Moore,” loc. cit., 119, 120; April 9, 1868, Moore notebook, Johnson Papers, LC; Townsend, Anecdotes, 125; McCulloch, op. cit., 143–6.
5 W. T. Sherman to T. Ewing, Sr., Feb. 22, 1868, Ewing Family Papers, LC; Morse, Welles Diary, III, 289; Townsend, Anecdotes, 125.
6 Morse, Welles Diary, III, 284; “Notes of Colonel W. G. Moore,” loc. cit., 120–1; Washington Chronicle, Feb. 22, 1868; Hesseltine, Grant, 113–14.
7 Horace White, The Life of Lyman Trumbull (Boston, 1913), 308–9; David M. DeWitt, Impeachment and Trial of Andrew Johnson (New York, 1903), 346–7 (hereafter cited as DeWitt, Impeachment); E. L. Stanton to Stanton, Feb. 21, 1868, Stanton MSS.
8 Messages to Stanton, Feb. 21, 1868, in Stanton MSS; Townsend, Anecdotes, 133n.; other data in Flower, Stanton, 333–4; Washington Chronicle, Feb. 22, 1868.
9 Morse, Welles Diary, III, 289; Conness, Some of the Men and Measures of the War and Reconstruction Period (Boston, 1882), 18–20; Gorham, Stanton, II, 440; U. S. Senate, Trial of Andrew Johnson (Washington, 1868), I, 663–5 (hereafter cited as Senate, Trial).
10 Senate, Trial, I, 210, 220–3; Gorham, Stanton, II, 439.
11 Ms notes by Stanton on conversation with Cartter, dated “12:30 A.M., Feb. 22, 1868,” owned by the estate of Benjamin P. Thomas; Gorham, Stanton, II, 441; Senate, Trial, I, 427–8.
12 Thayer, “A Night with Stanton in the War Office,” McClure’s Magazine, VIII, 441–2; Robert D. Clark, The Life of Matthew Simpson (New York, 1956), 259.
13 Feb. 22, 1868, Moore notebook, Johnson Papers, LC; Senate, Trial, I, 427–8.
14 Stillson to Barlow, Feb. 22, 1868, Barlow Papers, HL; Howe, Portrait of an Independent, 95–7. Lloyd Paul Stryker, Andrew Johnson (New York, 1929), 566; and R. W. Winston, Andrew Johnson (New York, 1928), 424, like most authors treating these events, accept Johnson’s assertions uncritically.
15 Senate, Trial, I, 164–76, 427–32, 556–7, 605–9, 705; II, 170–1; Townsend, Anecdotes, 126–9; Morse, Welles Diary, III, 288–90; Boutwell, op. cit., II, 110–11; “Notes of Colonel W. G. Moore,” loc. cit., 121–2.
16 “Notes of Colonel W. G. Moore,” loc. cit., 122; Townsend, Anecdotes, 129; Senate, Trial, I, 215; Washington Intelligencer and Evening Express, both Feb. 27, 1868.
17 DeWitt, Impeachment, 358; Morse, Welles Diary, III, 292, 297; Detroit Post, Chandler, 296; “Notes of Colonel W. G. Moore,” loc. cit., 122.
18 Gideon to John Welles, March 1, 1868, Welles Papers, LC; April 7, 1868, Moore notebook, Johnson Papers, LC, on General Sherman; Marsh to Stanton, March 9, 1868, Stanton MSS; Mrs. Pomeroy to Stanton, ca. March 1, 1868, owned by Mrs. Van Swearingen; Browning, Diary, II, 182; Strong, Diary, IV, 193; Thorndike, Sherman Letters, 313–14; W. A. Russ, Jr., “Was There a Danger of a Second Civil War during Reconstruction?” MVHR, XXV, 39–58.
CHAPTER XXIX
CLING TO THE OLD “ORIFICE”
MORE THAN anything else, Stanton was concerned about Ellen’s reaction to all this. He feared that her strong views might find expression in some way permanently damaging to their life together. This was the one price which he would not pay for continuing on at the war office.
On Monday night, the twenty-fourth, Stanton realized that he might be in for a long siege and that he must make some housekeeping preparations. He sent Sergeant Koerth to the Stanton home for a supply of food, clothing, blankets, and pillows. The sergeant, arriving there, received an unexpected reception. In her anger with her husband for disregarding his personal and family interests, and from her frantic fear for his safety, Ellen refused to send the linens and food. She told Koerth to convey her insistence to Stanton that he quit the Department, resign the disputed portfolio, and come home.
Koerth returned empty-handed. When he reported to Stanton on Ellen’s reaction, the Secretary smiled and said: “Koerth, go to your own house and bring blankets, pillows, and such cooking utensils as we may need.” In the predawn darkness Koerth fulfilled his mission. He then stopped at a farmers’ market near the Capitol to purchase meat and vegetables.
Stanton was delighted when he saw the food. Suddenly ravenously hungry, he prepared an Irish stew. The sun rose as he put it over the fire which had been burning all night. Watching the flames, Stanton and the sergeant succumbed to the exhaustion that gripped them both and fell asleep. In the full light of the morning Stanton suddenly wakened. “Koerth! Koerth! Wake up, man,” he shouted, “the stew is burning!” But they were too late to save the meal. Ruefully the Secretary rolled himself up in a blanket and returned to the couch, where he wrote a note to Ellen pleading for her understanding.1
The Stantons’ oldest son and Senator Sumner became intermediaries between the beleaguered Secretary and his distressed, stubborn wife. They softened Ellen’s bitterness at her husband’s self-destructive course of action, and on Tuesday afternoon, which for Stanton had already been highlighted by a brief visit from Grant, a clerk informed him that Ellen was waiting outside in their carriage.
Leaping up from his desk, Stanton rushed out into the chill street without bothering to don a coa
t, pushed past the surprised sentries and the crowding reporters, and sat with Ellen for an hour. They quarreled, he defending the rectitude of his course, she seeking to persuade him to give up. But he would not. When Ellen drove off she was angrier than ever before in their marriage. Stanton returned sadly to the dreary office where he must spend an unknown number of weeks to come.
A few days later he was overjoyed when a note from Ellen admitted that she was resigned to his continuing the struggle. He answered in a grateful mood: “My Dear Wife. Your very kind note of this evening gives me great comfort. Harassed with care and earnest responsibility, suffering in health, and with no chance for immediate release,… I have longed much to see you during the past week, but knowing your aversion to the War Office, I have not asked you to come while hoping your love might draw you hither. If in a moment of disappointment and suffering I said anything to occasion you pain, or do you injustice I humbly crave your forgiveness.” At least Stanton had Ellen’s acquiescence if not her complete backing in his perilous adventure.2
Stanton’s concern over Ellen did not diminish his awareness of the legal and political dangers in which he was involved. Soon after Ellen had left on Tuesday, Stanton received a note from Congressman William Pile, who had learned that General Thomas, due to appear before Judge Cartter the next day, was going to refuse to continue bail and then seek a writ of habeas corpus should Cartter order his imprisonment. It seemed probable that, if the general was refused by Cartter and then appealed to the Supreme Court, the judges would declare that he was illegally in arrest and that Stanton was guilty of felonious misconduct. Thus the war office fortress might be breached, which was what the President most wanted.
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