As Colfax later expressed it, the Republicans believed that “a Majority of the Supreme Court are evidently determined to overthrow all our Reconstruction laws.” To be sure, Congress had already overridden adverse Court judgments. But if Stanton’s case against Thomas served the President’s interests, then Stanton had opened a way for Thomas to win the war office. If Stanton refused to answer a summons from the Court, he would be involved in a gesture of open defiance against the high tribunal, an act that was personally and professionally repugnant to him. In the frenzied atmosphere of the moment, either course might precipitate the violence that everywhere threatened. Unlike the President, Stanton did not permit his emotions to oversway his better judgment. He called Cartter in and acted to avoid spreading the conflict to the courts.3 Stanton gained a great advantage from his careful, lawyerlike preplanning.
On Wednesday, February 26, during the same hours when the House decided to impeach the President, Thomas appeared in Cartter’s chambers accompanied by his counsel, Cox and Merrick. Stanton was represented by his friends Riddle and Carpenter, and his son, now in training for a law career, served them as clerk. Carpenter first tried for a postponement, which Thomas’s counsel prevented. Then Judge Cartter asserted that no trial was in progress; he was merely serving as a magistrate to inquire whether a crime had been committed.
Merrick took alarm at this. He asked Cartter for a writ of habeas corpus to release Thomas from the nominal imprisonment that he was theoretically suffering. Carpenter countered that the application for the writ was out of order. As Thomas no longer threatened violence against Stanton, the Secretary wished to drop the charges.
No, thundered Cox. His client, Thomas, had committed a crime, was under arrest, and now wished to refuse bail. Cartter dryly remarked that his knowledge of the general’s high character would not allow him to deprive Thomas of his liberty. The judge declared that he would report the offense that had occurred to the forthcoming term of the District grand jury the following December. That body would decide whether an indictment and a trial should follow.
It took less than twenty minutes. Claiming that he had been “euchred,” Thomas and his disgruntled counsel left the courtroom after lodging a countersuit against Stanton, claiming false arrest and malicious prosecution—a suit that Thomas never carried through. The general’s lawyers had played into Stanton’s hands and lost their gamble because of inferior planning and contempt for the prowess of the opposition. Stanton was rarely guilty of these failings.4
Stanton, like Grant, believed that the campaign against Johnson would be brief. But the hectic February days settled down to long weeks of barely lessened tension. This unexpected extension of uncertainty, and the boredom of his self-imposed incarceration at the war office, added to Stanton’s nervous irritability. Rumors that he was giving up were frequent, and they inspired a Stanton supporter in Ohio to plead with him to “never faulter … Cling to the old orifice [sic] like an eagle doth to her prey.… Say Sick Andy is an old s—t.… I will assist you as soon as I can get my dog cart I will come to Washington to fight for you.”5
Although Stanton smiled at such earthy expressions of support, they sustained his conviction that he was again a leader in a vital conflict in which the life of the nation was at stake. While the battle raged, he had to work out with Grant prosaic ways of keeping the Army going although neither man was welcome at the White House. From the last week in February until the impeachment trial should end—and no one knew when that would be—the Army would lack a commander in chief and have two Secretaries of War. Lorenzo Thomas sat in on cabinet meetings and periodically restated his claim to Stanton’s place, but no one was paying much attention to the poor old man any more.
Fortunately, most army officers and civilian employees assumed that Grant and Stanton were running things. Townsend relates that Johnson, Stanton, Thomas, and Grant sent him orders for execution, “and by a little tact I managed to avoid any question of jurisdiction or other difficulty.” Equally important, the Treasury Department continued to honor Stanton’s drafts and bills and the President never permitted Thomas to sign any warrants for public funds. On the other hand, Johnson took to corresponding directly with general officers on duty in the South and elsewhere. Some, like Hancock, responded to the gambit and replied to the White House. Most others, like Meade, sent answers to the President’s inquiries through the army channels centering in Grant’s and Stanton’s offices.6 The net result of these pragmatic institutional adjustments was that Stanton remained War Secretary in title and in fact so far as the Army and the War Department’s functions were concerned.
A triangular command structure emerged, in which two points, army headquarters and the war office, possessed the power to run the Army, and the third, the White House, was blunted. Remarkably, none of the triad threatened this precarious equilibrium by trying to reinstate or to transfer army commanders in the South; undoubtedly all thought that the results of the impeachment trial would provide these partisan laurels in due course. Upsetting the boat now might provoke the crises that each contender in his own way wished to avoid. Meanwhile, for the White House, Stanton and Grant did not exist. Next door, at the War Department, there was nothing for the President to do. One of the essential functions of the American executive was in suspense while the trial proceeded.
The ease with which army headquarters fell in with congressional rhythms of operation indicates that the commander-in-chief function can in our system find a focus other than the President, at least during a nonwar period, and recalls the operations under the Articles of Confederation. For example, the reports that Stanton and Grant would normally have made to the President now went directly to chairmen of congressional committees. The war office sent to Capitol Hill reports on the number of Negro voters in the South who did not cast ballots and the number of disfranchised whites; in another instance they offered conclusions concerning the buoying effects of postwar Supreme Court decisions on intransigent Southern whites and the resulting diminution of the morale of the army officers on reconstruction duty.
Together with Grant, Stanton reviewed army reorganization plans, prepared suggestions for Congress on legislation concerning wartime damage claims against the Army issuing from self-proclaimed Southern Unionists, and sought to untangle the contradictions between the now ratified Fourteenth Amendment’s disability clause and Congress’s reconstruction laws, so that army officers in the South might follow consistent policies. Grant no longer held that the occupation forces were independent of the war office or of army headquarters, but only of the President, now that Congress had interposed itself between the White House and the military.
Along with these serious matters, Stanton found time to attend to less pressing concerns. His orders closed the Department on the third anniversary of Lincoln’s murder and required army posts everywhere to fire salute guns each half hour from sunrise to sunset. He attended to the routine tasks of appointing members to the Board of Supervisors for the Military Academy, and after receiving from the popular sculptor John Rogers a statuette showing him, Grant, and Lincoln in an imaginary “Council of War,” Stanton complimented the artist on his sensitive execution of the dead President.
As ever, Stanton was concerned over problems of health. Hearing that Hitchcock was ailing, Stanton sent the aging officer his wishes that “the opening spring would restore your health,” along with the admission that his own was none too good. Hitchcock’s reply gratified Stanton, for the general, who had sharply criticized him during the war, wrote: “I … am glad once more to see your handwriting dated at the War Department.”7 Only the result of the impeachment would determine how long Stanton would stay there.
On March 1, the House managers—Bingham, Boutwell, Butler, Logan, Stevens, Williams, and Wilson—presented articles of impeachment to the Senate. Except for a catchall clause, the eleven-point indictment amounted to restatements that Johnson had illegally ousted Stanton, broken the tenure law, and sought to use the Army
for his own purposes. March passed suspensefully in parliamentary technicalities. Doubtless the interval was beneficent in reducing passions, and Storey noted that “Stanton has been known to take a short walk in the grounds of the War Department, ready to run back to his room, if Lorenzo Thomas should show his head around the corner.”
Stanton was irked to be a mere spectator of the trial, although daily reports of congressmen and other visitors supplemented the full accounts of the Senate proceedings which filled the public press. He read four newspapers daily during the trial. Still, he wanted more personal estimates. His oldest son became a familiar fixture in the Senate’s visitors’ gallery, where space was a rare prize, and he was soon joined by Ellen’s mother, Mrs. James Hutchison, “that noble woman with the silver hair,” who had come to stay with Ellen while Stanton was absent from home but spent almost all her time at the Senate.
In the first weeks of Johnson’s trial Stanton helped Grant collect from army records all the information sustaining their position against the President, and sent it on to the impeachment managers.8 Stanton’s son helped Butler keep surveillance over possible prosecution witnesses. Army agents spied on defense witnesses who arrived in Washington and tried to rush them to the Senate before they could be defiled by communication with the White House. Grant openly supported anti-Johnson sentiment among the senators after testifying at the trial. Partisanship was the order of the day.
On the other side, Johnson was indulging in surreptitious surveillance over Stanton. He employed an army officer on War Department duty who, though a radical in politics, was devoted to Hancock and through that medium transmitted full reports on the Secretary’s actions to the White House. Johnson knew how strained Stanton’s nerves were and believed that the Secretary was cracking as the weeks passed.
Indeed, by mid-April, Stanton had to have a break. He and Ellen slipped quietly out of the capital for a blessedly calm weekend in Baltimore. In his absence Eddie remained in the war office as a kind of deputy. After returning from this stolen interlude, Stanton began to leave the war office each evening to go home for dinner and rest. Eddie held the fort, and he was under orders to send a courier and a carriage to the Stanton home at once if an emergency arose.
Impeachment concerns followed Stanton home. One evening, Butler and Boutwell, needing something with which to frighten doubtful senators, asked for a list of civil and military officers whom Johnson might remove if the impeachment failed. Wearily, Stanton worked through the entire night assembling the list and the next morning put War Department clerks to copying it for the use of the impeachment managers.
Unable by nature to remain a bystander, Stanton wrote anti-Johnson editorials for the powerful New York Tribune. John Russell Young, of that newspaper, in his frequent visits with Stanton played the great guessing game that had captured the imagination of the nation—how would the senators vote? Every sort of rumor, any chance remark, shifted the tallying. As by late April the indications grew that the President would escape conviction by the barest margin because of the “defection” of one or two senators, Stanton grew despondent and angry by turns. Colonel Moore heard Johnson’s spy report on April 23 that “Stanton was furious … he cursed and swore terrifically, declaring that such men as Fessenden, Grimes, Trumbull, and Sherman had gone back on him.”
Through Young he planted an article in the Tribune predicting ferocious penalties against any Republican senator “that proves recreant to his country in this hour of its agony,” and he applauded Young’s essays repeating the theme. To Stanton, the only just verdict the Senate could reach was a conviction of Andrew Johnson. He was no longer the impersonal lawyer. Like Johnson, Stanton was engaged in a crusade.9
As the weeks dragged by, every public event was given a significance in terms of the impeachment. A Republican victory in a New Hampshire election early in March inspired Sickles, who, at Stanton’s suggestion and with Grant’s approval, stumped there for radical candidates, to wire Stanton: “New Hampshire sustains you by a splendid majority.”
Stanton had placed a particular importance on the outcome of that state election. For the Supreme Court had before it McCardle’s petition alleging that the reconstruction laws were unconstitutional. Along with Colfax, Grant, and others, Stanton believed that if the New Hampshire balloting had favored the Democrats, then the ever untrustworthy Court would have immediately given a verdict in favor of McCardle. The President would then have had Welles send marines to enforce the decision and to oust Stanton from his office at the same time.
Despite their achievement in New Hampshire, Republican strategists still feared that the President was readying a coup through the Court. There were reports that Justices Nelson, Clifford, and Davis were surreptitious visitors at the White House. What if, while the impeachment trial was in progress, the Court did declare that the reconstruction laws were invalid? Then pro-Johnson sentiment in the Senate would rise spectacularly.10
Congress side-stepped the dangerous McCardle issue. Late in March it passed over Johnson’s veto a measure retroactively denying to the Court jurisdiction in the kind of appeal that McCardle had lodged. But the possibility still remained that the jurists would not acquiesce in this extraordinary diminution of their power.
The Court also had before it a case that had emerged from Georgia against Generals Meade and Ruger, in which the jurists were petitioned to enjoin those officers from enforcing the assertedly unconstitutional reconstruction laws in that state. But on March 23 Stanton wrote happily to Meade that the jurists had specified “personal service of notice on the defendants” in Washington. This meant that the judges were seeking a way out so as to avoid a direct clash with Congress. Stanton, as anxious as the members of the Court to stabilize the dangerous situation, suggested to Meade: “If you & General Ruger … have any business in Florida or elsewhere the notice can not be served personally, & I think the Court will be glad of it, so as to let the matter stand over until December. Can you not take an inspection [tour] immediately … & let your destination be known only to yourself?”
Next day he wired Meade even better news. The Court, thoroughly cowed by the ferocity of Republican reaction to the Milligan, test oath, and McCardle cases, had refused to entertain the petition for the injunction. Congress’s new law limiting the jurisdiction of the tribunal would be obeyed. The appellant’s counsel—Jeremiah Black, Montgomery Blair, and David Dudley Field—were left gasping in outraged helplessness. In effect, Stanton exulted, the Court was out of the reconstruction picture. Congress had only the President left to fight. Impeachment could proceed with far less threat of violence.11
Mountains of testimony accumulated as a parade of witnesses offered their observations to the Senate. There were few surprises, and Grant, whose appearance as a witness was anticipated as the spearhead of a spectacular onslaught against Johnson, gave careful, restrained accounts of the facts he knew and refused to deal with inferences. Thus the total testimony amounted to a recital of the bare facts of Stanton’s suspension as seen from opposite viewpoints. Johnson’s trial became an interminable lawyers’ duel after April 20, when the taking of testimony ended.
Three days later, at the suggestion of William Evarts, one of his counsel, Johnson tried to swerve the Republicans away from carrying the trial through to a verdict. He wrote out a nomination of General Schofield as Stanton’s successor, at the same time withdrawing the nomination of Ewing, which was still before the Senate. Johnson told Moore that “the idea was to relieve some of the Senators of the opposition” of the necessity of voting against him in order to uphold Stanton, and to show them that he would not put an extremist in the war office if acquitted. Moore protested that Schofield was at that moment a house guest of Grant’s. The President shrugged this off, insisting that Schofield was trustworthy and that if he was Grant’s friend, so much the better. But the radical Republican leaders in the Senate put Schofield’s nomination aside to await the outcome of the trial.12
As April neared i
ts end and the termination of the trial drew closer, speculation on the senators’ votes reached new peaks of intensity. Stanton continued to be pessimistic over the probable outcome of the trial. Apparently very few persons, even among the Secretary’s friends, spared a thought for the query Lieber addressed to Sumner: What would be the effects on Stanton of a not-guilty vote combined with the President’s “ferretlike vindictiveness”?
Grant was taking care of his future by chancing a run for the presidency. If acquitted by the Senate, Johnson merely remained in the White House. But whatever the decision at the impeachment, Stanton’s fate and future were undecided.
Waiting quietly at the war office, he kept his uncertainties and fears to himself and remained out of the public eye as much as possible, ignoring the fact that he was again being considered as a possible competitor against Grant for the Republican presidential nomination. “What a president he would make,” Lieber mused. “And then the Southerners hate him so delightfully. It makes one’s mouth water.”
But Lieber concluded that though Stanton, in his opinion, was “by far the fittest” potential candidate, Grant was the one who would win both the nomination and the election. In any case, Stanton made it plain that he was not interested in any elective office. The beleaguered Secretary just had no self-serving ambition, Lieber concluded, even though “he could easily turn his semi-dismissal into a very proper lever to be lifted into the place where now the incorrigible trickster sits.”
Lieber’s estimate of Stanton’s determination to leave political life permanently is convincingly sustained by Stanton’s own statements and the opinions of other informed persons.13 Nonetheless, Johnson and his supporters and other presidential aspirants, such as Chase, continued to depict Stanton as a man of overweening ambition for office as well as power.
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