It is pertinent to suggest here that the President believed the Tenure-of-Office Act to be unconstitutional, as it was clearly an attempted abridgment of his power over his Cabinet which had never before been questioned by Congress. The only method left him for the determination of that question was in the course he took, except by an agreed case, but it is manifest from the record that no such agreement could be had, as an effort thereto was made in the Thomas case in the District Court, but failed, the prosecution withdrawing the case at the point where that purpose of the President became manifest.
The third count was:
Attempting to prevent the execution of the Army appropriation Act of March 2nd, 1867.
The means specified in this alleged attempt was the appointment of Mr. Edward Cooper to be Assistant Secretary of the Treasury, with power to draw warrants on the Treasury without the consent of the Secretary--the purpose being to show that, with General Thomas acting as Secretary of War, and Mr. Cooper as Assistant Secretary of the Treasury to honor General Thomas' drafts, and thus, in control of expenditures for the support of the Army, a conspiracy was sought to be proven whereby the President intended and expected to defeat the Reconstruction Acts of Congress by preventing the use of the Army for its enforcement.
Mr. Johnson, of the Court, asked this question:
The Managers are requested to say whether they propose to show whether Mr. Cooper was appointed by the President in November, 1867, as a means to obtain unlawful possession of the public money, other than by the fact of the appointment itself?
Mr. Manager Butler answered:
We certainly do.
Mr. Butler read the law on this subject, passed March 2nd, 1867, as follows:
That the Secretary of the Treasury shall have power, by appointment under his hand and official seal, to delegate to one of the Assistant Secretaries of the Treasury authority to sign in his stead all warrants for the payment of money into the public Treasury and all warrants for the disbursments from the public Treasury of money certified by the accounting officers of the Treasury to be due upon accounts duly audited and settle by them;and such warrants signed shall be in all cases of the same validity as if they had been signed by the Secretary of the Treasury himself.
Mr. William E. Chandler, who had been Assistant Secretary of the Treasury, was on the witness stand, called by the prosecution.
Mr. Butler asked whether it was the practice of the Assistant Secretary to act as Secretary in case of removal of the Secretary.
Answer: I am not certain that it is, without his appointment as Acting Secretary by the President.
Mr. Fessenden, of the Court, propounded this interrogatory?
1st--Has it been the practice, since the passage of the law, for an Assistant Secretary to sign warrants unless especially appointed and authorized by the Secretary of the Treasury?
2nd--Has any Assistant Secretary been authorized to sign any warrants except such as are specified in the Act?
The witness answered as to the first:
It has not been the practice for any Assistant Secretary since the passage of the Act to sign warrants except upon an appointment by the Secretary for that purpose in accordance with the provisions of the Act. Immediately upon the passage of the Act, the Secretary authorized one of his Assistant Secretaries to sign warrants of the character described in the Act, and they have been customarily signed by that Assistant Secretary in all cases since that time.
As to the second question the answer was:
No Assistant Secretary has been authorized to sign warrants except such as are specified in this Act, unless when acting as Secretary.
That disposed of the third count in the Eleventh Article, and the testimony was rejected by a vote of yeas 22, nays 27.
These answers to tire interrogatories seemed to prove the reverse of what the Prosecution had expected. The accusation of the Third count was not sustained.
As to the Fourth count of the Eleventh Article, that Mr. Johnson sought to prevent the execution of the "Act to provide for the more efficient government of the rebel States," passed March 2nd, 1867, by the removal of Mr. Stanton from the War Office, the proceedings of the trial disclose no testimony of a sufficiently direct character for specification, except, possibly, a number of speeches delivered at different points by Mr. Johnson, which are set out in the Tenth Article of the Impeachment. As that Article was by unanimous consent abandoned and never put to vote, all its allegations logically fell as unproven.
There was, therefore, no force and little coherency in the Eleventh Article. It fell of its own weight. Every one of its several averments had been disproven, or at least not proven. It was to a good degree a summing up--an aggregation, of the entire bill of indictment on the several distinct forms of offenses charged--a crystallization of the whole.
The entire impeachment scheme was in reality beaten by the vote on that Article, and the adjournment of ten days then taken could have been only in the hope on the part of the majority that ultimate success on some one of the remaining Articles could be made possible, in some way, legitimate or otherwise, in part by the importunate throng of visitors to the Capitol who were vociferously and vindictively urging Mr. Johnson's removal largely for reasons personal to themselves--but more especially through the efforts of the House of Representatives to discipline one or more of the anti-impeaching Republicans of the Senate.
