Download Impeachment of Andrew Johnson Background Information Director

The Institute for Domestic and International Affairs, Inc.
19 - 22 April 2007
Impeachment of Andrew Johnson
Background Information
Director: Matt Korostoff
© 2007 Institute for Domestic & International Affairs, Inc. (IDIA)
This document is solely for use in preparation for Rutgers Model
Congress 2007. Use for other purposes is not permitted
without the express written consent of IDIA. For more
information, please write us at [email protected]
Introduction _________________________________________________________________ 1
Background _________________________________________________________________ 2
Impeachment American Style _______________________________________________________ 2
Reconstruction and the Rise of Andrew Johnson _______________________________________ 6
Johnson’s Reconstruction Plan ______________________________________________________ 9
Johnson and Congress ____________________________________________________________ 13
The Law of Impeachment _________________________________________________________ 18
Legal Questions of the Johnson Case ________________________________________________ 19
Current Status ______________________________________________________________ 22
Conclusion _________________________________________________________________ 26
Works Cited ________________________________________________________________ 27
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Introduction
In 1865 the United States, still recovering from the costliest and bloodiest war in
its history, took on the difficult question of reconciliation. It was to be a question that
aroused the passions of every leading political figure of the day and drastically altered the
nature of American federalism. The question of how the south should be reconstructed in
the wake of the Civil War would cut right to the heart of the Constitution and, ultimately,
would result in the impeachment of Andrew Johnson.
Johnson was an anomaly in American history, as he
Andrew Johnson
rose to the presidency quite unexpectedly. In the name of
“balancing the ticket,” like many other vice presidents, he
was nominated alongside a president with whom he had
fundamental political differences.
Had party insiders
anticipated the death of Lincoln, it is reasonable to suppose
that they may have blocked the nomination of Andrew
Johnson. Nonetheless, Democrat Andrew Johnson ascended
to the presidency from within the Republican Party at the precise moment when the two
parties faced their greatest division.
Johnson’s temperament was a political liability, and he was notoriously hardheaded and uncompromising. “There is nothing like starting out on principle,” he had
been known to say, “When you start out right with principles clearly defined, you can
hardly go wrong.” 1 Johnson had been once heard to say, when challenged on his
reconstruction policy “I am right. I know I am right, and I am damned if I do not adhere
to it.”2
Similarly intransigent were Republican leaders Thaddeus Stevens in the House of
Representatives and Charles Sumner in the Senate. The two had strikingly different
characters but shared a single-minded devotion to humiliating the former Confederacy
1
Michael Les Benedict, The Impeachment and Trial of Andrew Johnson, (New York: W.W. Norton & Co., 1973), 3.
Gene Smith, High Crimes and Misdemeanors: The Impeachment and Trial of Andrew Johnson (New York:
William and Morrow Co., 1976), 145.
2
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and securing the rights of southern (though not necessarily northern) Blacks. These
policy goals comprised a higher law for the Radical Republicans, and the pursuance of
these goals necessitated the repudiation of the Constitution on more than one occasion.
The clash of these titans would shake the government to its core. It is critical to
bear in mind, though, that while the notion of disunion seems exceedingly unlikely in
modern America, such an occurrence was easily imaginable in the 1860s: it had been that
same decade that the Confederacy had risen up to challenge the United States. In 1848,
only two decades prior, the governments of France, Germany, Italy, and Greece had been
violently overthrown, further demonstrating the transience of world governments at the
time. Thus the seemingly excessive rhetoric employed by Johnson, Stevens, and Sumner
was in response to dangers that they understandably thought real. What appear as petty
policy disputes through historical eyes reasonably appeared to the statesmen of the 1860s
as fundamental challenges to the continuation of the American experiment.
Johnson would pursue a policy that he felt reflected Lincoln’s goals of conciliation
to the South. This policy, imperfectly and unevenly executed, would be intolerable to the
Radical Republicans. Johnson’s ability to achieve consensus would be inhibited by what
some attribute to characteristics of vanity and racism and the Radicals would exact brutal
revenge on him for all of his shortcomings.
The immediate reason for the impeachment of Andrew Johnson was his violation
of the Tenure of Office Act, which required that he receive consent from the Senate
before removing cabinet officials. When Johnson removed his secretary of war on 21
February 1868, he was impeached by the House for high crimes and misdemeanors.
Andrew Johnson became the first president to be impeached because of deep divides on
policy and the direction of the nation.
Background
Impeachment American Style
The English meaning of impeachment was substantially different from the modern
American understanding. English parliamentarians devised impeachment in order to
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reach nobility whose social status prohibited punishment by ordinary indictments.
English parliaments could convene an impeachment proceeding against any person other
than the king, whether they held a public office or not.
Furthermore, though the
American Constitution definitively states that the Senate may impose no sentence other
than removal from office and disqualification for future offices, the House of Commons
could impose any sentence, up to and including death. Impeachment in England, in many
ways, was a replacement for the courts in situations where the courts found themselves
politically impotent.
At the Constitutional Convention of 1787, few ideas were of more importance
than preventing the tyranny of the chief executive. Nonetheless, the records of debate on
the impeachment process are decidedly spotty. The Convention consciously maintained
secrecy and all records flow from personal notes and private letters. The first mention of
presidential impeachment in the Convention was a resolution stating that the Constitution,
when finalized, should provide for the impeachment of the president on the grounds of
“malpractice or neglect of duty.”3 Once this resolution had traveled through the various
committees of the convention, a draft of Article II emerged which strictly defined the
Malversation:
Misconduct in public office
grounds for presidential impeachment as “neglect of duty,
malversation, or corruption.” This early wording would seem
to indicate that the original intent of impeachment was extra-legal, if not political. 4
Impeachment, these early drafts would seem to suggest, was seen as a means of removing
a president who pursued unfavorable policies or conducted his business unfaithfully. The
clause was quickly struck and clarified. The grounds for impeachment were severely
limited to “treason and bribery” which was expanded to “treason, bribery, and
maladministration.”5 As with all legislative history, this can be read two ways. First, it is
possible to conclude that the delegates of the Constitutional Convention, having directly
3
Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis, Second Edition
(Chicago: University of Chicago Press, 2000), 8.
4
Usage note: All matters of state that involve policy formation are by definition political. This is distinct from
“ideological” which is often incorrectly used interchangeably. All impeachments, no matter how legally justified,
are political acts.
5
Ibid—To footnote 37?
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looked at the idea of using the broad term “maladministration,” rejected it in favor of a
more limited term.
The obvious meaning of this interpretation is that the framers
believed that impeachment should be for a defined set of illegal activities. Alternatively,
one could construe that, because the framers spoke of the impeachment power in broad
sense in every draft of the Constitution other than the final one, they believed they were
creating a broad extra-legal power. It is not possible to say with certainty that either
answer is correct, but an examination of the post-colonial meaning of the law provides
some compelling evidence. The early American understanding of the language “high
crimes and misdemeanors” can only be described in reference to its meaning within the
English system. Though there is debate regarding the degree to which the American
system is intentionally modeled on the English system, the impact of English common
law on the Constitutional provisions for impeachment is hard to deny.6
Confronted with these facts of English impeachment as it was understood to the
framers of the Constitution it is tempting to conclude that the English understanding of
impeachment was an entirely distinct concept from American impeachment, which
inconveniently bears the same name.
The differences between early British and
American impeachment reflect the fundamental differences in the nature of government.
If impeachment was designed to reach those whose nobility prohibited retribution by
indictment, the elimination of official aristocracy in America would seem to make
impeachment an obsolete piece of parliamentary trivia.
None in the American
government would be above indictment by grand jury leaving little if any room for
impeachment.
American impeachment represented a conscious choice to separate
criminal from political proceedings. English proceedings were simultaneously criminal
and political; American proceedings would be purely political.
Of the five federal
impeachments that occurred in the United States prior to 1868, not one was for an offence
6
U.S. House of Representatives, Committee on the Judiciary, 93rd Congress 2nd Session, Constitutional Ground for
Impeachment). H.R. REP. NO. 93-1305 (1974). Available online here: http://www.washingtonpost.com/wpsrv/politics/special/clinton/stories/watergatedoc.htm.
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that would have been indictable if it had been committed in the private sector.7
The amorphous and extra-legal nature of the constitutional provisions on
impeachment leaves one wondering what limits, if any, are placed on the House of
Representatives. Both the text of the Constitution and the English and early-American
precedents are fairly silent on the matter.
Most scholars, however, contend that
impeachment is not to be used for policy disputes or differences of opinion.8 At the very
least, the framers and those who ratified the Constitution appear to have understood the
impeachment provisions in this way. Edmund Randolph, a notable member of the both
Constitutional Convention and the Virginia ratification convention, argued in 1788 that,
were impeachment permitted for matters of divergent opinions, “it would be impossible
to discover whether the error in opinion resulted from a willful mistake of the heart, or an
involuntary fault of the head.”9 One member of the North Carolina ratifying convention
commented that in the Constitution as he understood it, the president could not be
impeached for “want of judgment.”10
Although this view is rarely contested, its utility is inherently limited by the
impeachment procedure. As precedent shows, incompetence, insanity, and alcohol use
are all impeachable offences. 11 The line between deliberate maladministration and
accidental incompetence is not clear.
Furthermore, considering that the goal of
impeachment is not to administer punishment but rather to secure the state against harm,
it seems peculiar that an official’s motivation for acting against the interests of the state
should come into question at all. Presumably, an “ignominious treaty” which results
from insanity should be no more or less repugnant than one that results from a poorly
reasoned opinion. History seems to indicate that the test of impeachability for any
offense against the state, is whether or not the individual offender acted in good faith.
Were one to reject this test it would call the entire impeachment process into question.
7
Benedict, 29.
Ronald Rotunda, “An Essay on the Constitutional Parameters of Federal Impeachment,” in the Kentucky Law
Journal Vol. 76, (1987) p. 726.
9
Qtd in Gerhardt, 19.
10
Ibid.
11
Berger, 189
8
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Reconstruction and the Rise of Andrew Johnson
The Civil War was in many ways the central event in American history. In those
four years of violence, the United States answered all the basic questions of government
that had eluded the founding fathers and the framers of the Constitution. This was a
conflict far outside the scope politics; the division it created was total, deeply scarring,
and highly personal to all involved. In one illustrative example, in February 1861, upon
the news of South Carolina’s secession, Senator Lawrence Keitt of that state, would be
heard to shout “Oh thank God, thank God! I feel like a boy let out of school!” Over the
next three months, every state that would come to comprise the Confederate States of
America (CSA) withdrew from the Union, taking their elected officials with them. The
exodus was near total, leaving both houses of Congress dominated by Northern
Republicans. Only one congressman from a CSA state chose to remain loyal to the
Union and continue in his elected post: Senator Andrew Johnson of Tennessee.
For Johnson, a lifelong Democrat, the issue of disunion was far simpler than it was
for most. The Constitution did not permit states to come and go from the Union as they
pleased. To take up arms against the United States was treason and the punishment for
treason was death. Furthermore, though Johnson had owned eight slaves in Tennessee,
slavery had never been an essential part of his livelihood, as it had for the wealthy
southern gentry. As he was fond of telling his constituents, he had worked as a tailor
before entering politics. Learning to read and write only in adulthood, Johnson was as far
from the southern planter aristocracy as was conceivable. Johnson bore an immense
resentment for members of the wealthy class that he felt had marginalized and insulted
him for his modest upbringing. His class consciousness would inform every decision he
made throughout the political conflict that eventually lead to his impeachment.
During the four years of disunion that followed, perhaps no man was more
dedicated to the idea of punishing the disloyal than Andrew Johnson. He spoke of
hangings and vengeance ad nauseam, often substituting anti-traitor rhetoric for
substantive political discourse. His loyalty earned him a post as military governor of
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Tennessee in conquered Union territory, which comprised little more than the city of
Nashville and the surrounding area. It was here that he would earn his reputation for
pursuit of Union loyalty. He subjected suspected rebel sympathizers to strict loyalty oaths,
which required that they swear to pray for Union military victories.
Constantly
threatening hangings and firing squads, Johnson once jailed a group of ministers for
objecting to his Draconian methods. He commandeered area slaves and put them into
service for the Union army with food and supplies provided by their former masters. The
penalty for those who objected was expulsion from the city.
It was this iron-fistedness that earned him a place on the Republican Party ticket
for the presidential election of 1864. Republicans had risen to national prominence only
in the previous decade, principally on the question of slavery and its implications for
American politics. They now thought it important to show that they were more than just
a one issue regional coalition. They renamed themselves the Union party and nominated
Southern Democrat Andrew Johnson for vice president in order to demonstrate national
solidarity. In the absence of electors from the seceded southern states, Republicans won
handily. Although Johnson’s background made him a convenient illustration of supposed
broad-based support for the Republican Party, the notion of Andrew Johnson in an actual
leadership role was somewhat less than desirable as Republican Party bosses remained
leery of Johnson’s country ways and frank manner of speech. The public image of
Johnson as an unruly politician was famously reinforced on 4 March 1865 when he
appeared before Congress to take his vice presidential oath of office while intoxicated.
Barely one month into Lincoln’s second term, two of the most momentous events
in American history occurred. On 3 April 1865, the Confederate Capital at Richmond
fell, and six days later on 9 April year, General Robert E. Lee’s Confederate Army of
Northern Virginia surrendered at Appomattox Court House in Virginia. The official
surrender ceremony took place on 12 April that year, and celebrations began in
Washington. Two days later Lincoln, relieved of the threat of disunion for the first time
in his presidency, chose to unwind with a play at Ford’s Theatre. There, he was shot in
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the head by John Wilkes Booth and expired the next morning. He was the first president
in American history to be assassinated.
As historians are fond of lamenting, had Lincoln survived, the course of American
government might have been very different.
Before his death, Lincoln gave some
indication of what his policy toward reconstruction might be. “With malice toward
none,” he famously said in his second inaugural “let us...bind up the nation’s wounds, to
care for him who shall have borne the battle and for his widow and his orphan, to do all
which may achieve a just and lasting peace.”12 Lincoln saw neither wisdom nor legal
grounding in treating the southern states as conquered territories. There was no need,
Lincoln and Johnson would both argue, to discuss readmission of the Confederate states
to the Union, because it was impossible to leave the Union in the first place. “There is
too much desire on the part of some of our very good friends to be masters...to treat the
people not as fellow citizens...I do not sympathize in these feelings.”13 Lincoln’s policy
on rebuilding the South was best summarized by his oft repeated maxim “let ‘em up
easy.”14
Johnson joined with Lincoln in these beliefs. Presumably, if Tennessee had been
out of the Union, Johnson could not have served as senator or vice president, and
therefore could not be the commander-in-chief. “In all essentials,” Johnson remarked in
his first cabinet meeting, “[my policy on reconstruction] would be the same as that of the
late president.” 15 Although he would later change his course, to Johnson’s mind,
however, he had maintained a consistent position both during and after the war. Once,
when speaking before large Union crowd, Johnson made mention of Jefferson Davis.
The crowd shouted back that Davis should be hanged, with which Johnson emphatically
agreed calling back “leniency for the masses—halters for the leaders!”16 Johnson had
always wanted the opportunity to hang Jefferson Davis and Robert E. Lee, but at war’s
12
Chester G. Hearn, The Impeachment of Andrew Johnson (Jefferson, North Carolina: McFarland & Company,
2000), 41.
13
Ibid, 44.
14
Qtd in Smith, 95.
15
Hearn, 46.
16
Qtd in Smith, 66.
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end doing so appeared impossible. There were difficult jurisdictional issues surrounding
Davis, and due to repeated government mismanagement of the case he would have to be
tried either by an unreliable federal circuit judge or by a Virginia jury, where acquittal
was nearly guaranteed.17 As such, Davis was set free without trial. Grant had given his
word of honor to Lee at Appomattox Court House that the Confederate general would go
unharmed, and Johnson had no intention of turning the most revered man in the country
into a liar. Thus after four years of nearly psychotic obsession with hanging traitors, only
one man, Captain Henry Wirz, the commander of the infamous Andersonville Prison,
was ever executed. Unable to make examples of any of the high profile traitors he sought,
Johnson set about “let[ting] ’em up easy” as he believed Lincoln might have done.
Lincoln and Johnson truly did share views on most relevant subjects, though they
often arrived at these conclusions in different ways. What distinguished Johnson from
Lincoln was his manner of dealing with his adversaries. Johnson was confrontational,
and willing to go to war with the radical Congress in a way that Lincoln never would
have.
He was so single-mindedly focused on the rightness of his views that any
compromise was out of the question. Johnson lacked the finesse for which Lincoln was
famous. Lincoln, it was said, could convince any adversary to do his bidding all the
while believing he had acted of his own free will. Thus, unwilling or unable to conceive
that any view other than his own could have merit, Johnson and Congress were on a
collision course from the beginning.
Johnson’s Reconstruction Plan
On 15 April 1865, the day of Lincoln’s death and Andrew Johnson’s inauguration,
Senator Charles Sumner (R-MA) met with Johnson in his temporary residence to discuss
the future of the South. 18
Sumner had been the unquestioned leading light of
congressional abolitionism and was now among the loudest speakers for freedman
17
Roy Franklin Nichols, “United States vs. Jefferson Davis, 1865-1869,” The American Historical Review Vol. 31,
No. 2 (Jan., 1926), pp. 266-284.
18
Johnson had arrived in Washington so recently that he had yet to acquire a permanent residence. He allowed the
grieving Mary Todd Lincoln to remain in the White House as long as she desired.
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equality and suffrage. The former Confederate states, Sumner said, had undertaken
something from which they could not simply be absolved by waging war against the
North and could no longer be considered states. They would have to accept the terms
given them by the North before they could be permitted to have representation in
Congress. Sumner also believed that the newly freed slaves must be given a vote and
parcels of land. Johnson pacified Sumner by concurring with every proposal he made.19
Sumner returned to his allies reporting that the president was in their camp.
As Sumner would soon discover, the president was decidedly not in their camp.
On 29 May 1865, with Congress still out of session, the president issued two
proclamations outlining his policy of reuniting the country.
The first detailed the
conditions under which troops would be withdrawn from the South. Each state was
required to hold a constitutional convention and form a new government. The newly
elected state legislatures were required to nullify the secessions resolutions of 1861, ratify
the Thirteenth Amendment prohibiting slavery, and repudiate all debts incurred while
they were part of the CSA.20 Once they had done these things, they would assume all the
rights and privileges they had enjoyed prior to the war—the apparent contradiction of
making re-entry requirements to states that, in Johnson’s view, had never left the Union
does not seem to have bothered the president.
The second proclamation pardoned all those who had taken part in the rebellion
other than high ranking officers and men owning property in excess of $20,000. The
exceptions amounted to approximately 14,000 individuals who would be given the
opportunity to individually request a pardon, which nearly all of them did successfully.
Johnson vainly reveled in the role reversal, as he thoroughly embarrassed those who
came before him. Despite the indignity and much to Johnson’s delight, all those seeking
a pardon willingly took their loyalty oath. Thus, writes Michael Les Benedict, “When the
39th Congress of the United States convened in December 1865 ... Johnson believed the
19
20
Hearn, 52
Benedict, 6-7.
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process of restoration nearly over.”21
Johnson’s reconstruction scheme realized all the worst fears of the Radicals. The
new southern constitutions universally prohibited Blacks from voting and the new
legislatures passed “Black Codes” which were designed to maintain strict control over
freedmen and maintain them in a state of subservience. Blacks could not serve on a jury,
and, in many states, faced employment laws that amounted to slavery. In Mississippi and
South Carolina for instance, Blacks were required to enter into year long employment
contracts with White masters.22 Those who attempted to flee the contract were pursued
as fugitives.
Those found without employment were charged with vagrancy and
auctioned off to pay the accompanying fine.23 In theory, Blacks had been given their
freedom, but had not been turned into citizens. Without the power of the vote or any
other civil protection thought fundamental to a functioning democracy, and now without
masters for their protection, Blacks, Republicans rightly feared, would become helpless
targets to an enraged South. 24 This mattered little to Johnson, who had repeatedly
affirmed his antipathy for Blacks, and once said that Fredrick Douglass was “just like any
nigger, and he would sooner cut a white mans throat than not.”25 While it was common
throughout the Civil War for officials in Washington to affirm that they were fighting to
save the Union, not to end slavery, Johnson’s greatest liability seems to have been that he
actually meant it. Johnson’s willingness to tolerate Black Codes was an egregious insult
to northern abolitionist such as Charles Sumner, who had always considered Black civil
rights to be the primary question of the American Civil War. In the mind of many
northerners, allowing the southern gentry to return Blacks to a state of servitude would be
to completely invalidate the cost of the war. “Lives had not been sacrificed,” writes
21
Ibid.
Blacks received the title “servant” while whites maintained the title “master.”
23
Ellis P. Oberholtzer, History of the United States Since the Civil War (New York: The Macmillan Company,
1917), volume I, 128-129.
24
For an interesting discussion on the realization of these fears see David M. Oshinsky, Worse Than Slavery (New
York: The Free Press, 1996).
25
Smith, 58.
22
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historian W.R. Brock “to restore the world of 1860.”26
The true significance of Johnson’s actions is somewhat difficult to quantify. By
some accounts, the proclamations emboldened the citizens of the Couth against
reconstruction led by the Radicals. Southern news papers resumed reference to the
defunct CSA as “the Confederacy” rather than the defeatist “rebel states.” “Men who had
fought four years to destroy the country,” writes historian Gene Smith, “were now
experts at giving lectures on their rights under the Constitution.” 27 Shortly after the
opening of the congressional session, General Carl Schurz published a report based on a
three month tour of the South concluding that nothing had changed in the attitudes of the
South and that no one expressed penitence. General Grant also released a report which
reached the exact opposite conclusion, stating that southerners generally “accept the
situation.”28 Republican congressmen charged that Grant had been ordered to reach that
conclusion.
Strictly speaking, Johnson had used only the powers delegated to him by the
Constitution: the power to command the armed forces and the power to grant pardons.
He had used these powers, however, to form policy of critical importance. Whether or
not the Constitution permits the executive to use his procedural tools to accomplish
substantive ends is an open question without textual resolution within the Constitution.
In Johnson’s view, he had secured the loyalty of the South, ended slavery, and solved the
difficult issue of Confederate war debt. These actions, he emphatically believed, were
what the Constitution mandated; to ask more of the southern states would be to treat them
as conquered territories. As thousands of southern army officers and aristocrats flocked
to Johnson’s office to willingly take an oath of loyalty, Johnson appears to have
genuinely believed that he was restoring the Union. 29
Johnson would spend the
remainder of the congressional recess reestablishing the post offices, federal courts,
26
Qtd in Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, Massachusetts: Harvard University
Press, 1973), 265. This the preeminent work of American scholarship on impeachment, and an absolute must read
for this all impeachment cases.
27
Smith, 111.
28
Ibid, 137.
29
Benedict,7.
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customhouses, and seaports throughout the South.30
By December 1865, every former Confederate state was under the control of
former Confederate officials.31 Liberated by the stream of presidential pardons, many
southern states elected former Confederates as their representatives to the 39th Congress.
Among the ex-rebels who arrived in Washington was Alexander Stephens, former vice
president of the CSA. To Republican legislators, the outrage was unbearable, possibly
treasonous. For this reason, when the Radicals convened on Capitol Hill on 4 December
1865, they were prepared to go to war with the president.
Johnson and Congress
On 4 December 1865, southern delegates took their seats for the first time in four
years. Under the strict instruction of Republican leader Thaddeus Stevens (R-PA), House
Clerk and established Radical Edward McPherson called the role for representatives, and
simply omitted all southern congressmen. These individuals could not object to the
omission because non-members of the body could offer no motions. Thus, without any
form of due process, the South was prevented from rejoining Congress.32 The move was
a direct attack on Johnson’s Reconstruction plan. Johnson had argued that the South had
never left the Union and that the process of restoration was nearly complete. If he was
wrong in this regard, it followed logically that southern delegates could not be admitted
to Congress. Blocking southern congressmen from taking office was an unambiguous
indictment of Johnson’s doctrine.
The legality of this maneuver is difficult to judge. Since beginning his term as
clerk in 1863 McPherson had never had occasion to read the role for the Southern
delegates, and failing to do so now may have seemed consistent to him. The Constitution
explicitly gives each house of Congress the power to accept and reject members,33 but by
tradition this had been done on an individual basis and had always been put to a vote.
30
Hearn, 69.
Benedict, 40.
32
Smith, 135.
33
US Constitution Art. I Sec. 5 Cl. 1. “Each House shall be the Judge of the Elections, Returns and Qualifications
of its own Members.”
31
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Under these circumstances, a small but influential group unilaterally decided the
membership of the House of Representatives. There has never been a procedure for
expelling or readmitting states, so the question of whether the Confederacy had ever left
the Union was open. It seemed natural that Congress should make some declaration as to
the legal standing of the southern states, but first they would need to convene, and before
they could convene they would have to call the roll. Because non-states cannot send
representatives to Congress, to call the southern states at roll was necessarily to
acknowledge their membership in the Union. Thus, if the southern states were called at
roll, a congressional resolution declaring them outside the Union would be logically
inconsistent. To ask the question of southern membership in the Union, it seemed, was to
answer the question.
Once they had convened without the southern states, the House and Senate voted to form the Joint
Committee on Reconstruction, which would take the reigns of Reconstruction from Johnson. As a
stipulation of the law, no former Confederate state could be admitted without the consent of the
Joint Committee. Johnson responded calmly and eloquently the next day with a message in which
he extolled the principles and values of the Constitution. In this message, he laid out the argument
that would guide him through the coming crisis. Johnson stated that “the whole cannot exist
without the parts, nor the parts without the whole.” In other words, in order to reconstruct the U.S.,
it would be necessary for all states to adopt the thirteenth amendment, and come together to form a
new, strong United States.34
Congress had little interest in the message, and some changed the subject by asserting
that Johnson had not written it.
In February 1866, the conflict would escalate to a full-fledged constitutional crisis.
Among the first actions of the Joint Committee on Reconstruction was the Freedman’s
Bureau Bill, which provided for the establishment of a government agency, which would
work within southern states to integrate former slaves into society. Johnson vetoed the
bill on 19 February 1866, and in his veto message to Congress, he listed among his
primary complaints with the bill the fact that the southern states had been denied the
opportunity to vote on it. Johnson was denying the legitimacy and legality of Congress;
as long as the Radicals denied membership to eleven southern delegations, Johnson
34
Hearn, 69.
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would seem to have argued, all legislation was illegitimate.35 It is nearly impossible to
overstate the importance of this line of reasoning. Though Johnson would pursue this
policy inconsistently, the apparent implication of Johnson’s veto message is that
Congress no longer existed as a legal body. The Radicals failed to muster the votes to
override, but never again would Johnson see an important veto sustained.
Three days after the veto, Johnson appeared on the White House balcony to
address a crowd that had gathered for George Washington’s birthday. He again indicted
the legitimacy of Congress referring to the Joint Committee on Reconstruction as “an
irresponsible central directory” and asked if the southern rebellion was “the only kind of
rebellion.”36 “[There are men] still opposed to the restoration of the Union.... I am free to
say to you that I am still in the [battle] field.”37
In order that they might more easily achieve the super-majority required to
override a presidential veto, the Senate Radicals resorted to unseating one of their own
members. Without bothering to give a non-ideological pretense, on 27 March 1866 they
removed Senator John Stockton (D-NJ), whom the New Jersey government promptly
replaced with a Radical.38 This along with a number of other political maneuvers gave
the Republicans the votes they needed to override practically any veto they chose. They
would use this newfound weapon the same day to override the president’s earlier veto of
the Civil Rights Bill. This was the first time in American history that an important
presidential veto had been overridden, and the implications were profound. No longer
did it seem that there was there any hope for reconciliation of the two branches.
The Radicals employed their newfound parliamentary weapon with great success.
Their political position was enhanced still further by the fact that at least one Radical,
Secretary of War Edward M. Stanton, operated within the cabinet to disrupt and spy on
the president. Stanton had been appointed by Lincoln and continued under Johnson as a
show of faith to the Republicans. Stanton had little respect for Johnson and would assert
35
Smith, 144.
Hearn, 80. A deliberate reference to the oligarchy that ruled France between 1795 and 1799.
37
Smith, 158.
38
Ibid, 162.
36
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his authority in a way that he never had under Lincoln. Following the president’s break
with Congress, Stanton began to flaunt his radicalism.
By the summer 1866, the lack of progress toward racial equality had disheartened
southern Blacks and Republicans. In Memphis, three days of anti-Black riots followed a
fight between a Black Union veteran and a local police officer, and more than forty
Edwin M. Stanton
Blacks were killed.
Republican organizers began to take
matters into their own hands.
In New Orleans, Radicals
organized a convention of loyalists and freedmen with the
goal of amending the Louisiana Constitution to allow for
Black suffrage.
When it became clear that the local
government would not give its ascendancy to the convention,
violence seemed unavoidable.
Commander of the New
Orleans Garrison, Absalom Baird, urgently wired Stanton for
orders from the president. Stanton, possibly suspecting that the president would instruct
that the convention be postponed until a judicial ruling could be had, did not respond to
the message for ten days. When the convention began on 30 July 1866, it was attacked
by a mob of New Orleans police and ex-Confederates, killing more than 200 people.
Stanton’s actions were not publicly known and northern newspapers openly
charged Johnson with orchestrating the “New Orleans Massacre.”
Stanton falsely
instructed Charles Sumner that he in fact had requested action, and Congress almost
universally accepted these reports. Meanwhile, the Radicals focused on shoring up their
strangle hold on national power. On the news that the state of Tennessee had ratified the
Fourteenth Amendment guaranteeing Black citizenship they rushed to admit Tennessean
delegates to both houses of Congress; it was no coincidence that Tennessee had elected
Republican delegates.
Fed up with the Republicans, Johnson announced the formation of the National
Union Party, a deliberate reference to the Union ticket Lincoln and Johnson had run
under in 1864. He went on a spectacular whistle stop “swing around the circle” tour of
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the country, campaigning for National Union candidates for the mid-term elections of
1866. He was poorly received and the Republicans won a solid two-thirds majority in
Congress.
The election victory emboldened Republican leader Stevens, who now sought to
bind the hands of the president to a policy of Radical Reconstruction before adjournment
Thaddeus Stevens
in March 1867. Congress passed a series of laws which have
come down through history as the “Force Bills.” The first
and most significant was the Military Reconstruction Act of
1867.
Despite two years of rule under the so-called
“Johnson Governments” in every former confederate state,
the South would become a conquered territory.39 It would be
divided into five military districts, each commanded by an
army general with total political authority.
The district
general could choose to allow the Johnson Governments to exercise some authority, but
he would have the final word on all matters of state. Johnson said that the Act subverted
every principle of democratic government, but his opinion no longer had any bearing on
the actions of Congress.
Instead, Congress passed two laws limiting the authority of the president. The
first was the Army Appropriations Act, which directed that the president must issue all
military orders through the General of the Army. In a breach of protocol, the bills were
written by Johnson’s own Secretary of War Edwin Stanton. Finally, Congress passed the
Tenure of Office Act, which forced the president to receive the consent of the Senate to
remove civil officers who had been appointed with that same consent. 40
As the 39th Congress concluded, it was an accepted fact that Johnson would not
accept the fetters that had been placed upon him. At best, Congress believed, Johnson
39
Smith, 190.
US Constitution Art. II Sec. 2 Cl. 2. “[The president] shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
40
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would work to during the summer recess to undue all that had been done during the
preceding Congress. For this reason the 40th Congress convened only thirty minutes after
the 39th Congress ended. Attorney General Henry Stanbery noted that the Constitution
gave the president the power to call special sessions of Congress and that to do so without
presidential authority was “absolutely illegal.”41 But legality no longer concerned the
Radicals; as far as they were concerned, the fate of the nation hung in the balance. If the
Constitution mandated that the Union should be restored to its prewar state, then the
Radicals would make short work of “that worthless bit of old parchment.”42 There was
little doubt as to what the theme of the 40th Congress would be in the minds of the
Radicals: already awaiting consideration was a resolution proposed by James Ashley.
Reported from the House Judiciary Committee on 2 March 1867 and deferred to the next
Congress, the resolution charged that President Andrew Johnson should be impeached for
“high crimes and misdemeanors.”43
The Law of Impeachment
On 21 February 1868, when the House of Representatives began impeachment
proceedings, that Johnson would be found guilty and removed from office was almost a
foregone conclusion. By contrast, many of the basic legal questions which modern legal
A priori:
Knowledge, judgments, and principles which
are true without verification or testing. It is
universally true.
scholars have all but settled were still very much
open. That is to say, while the Radicals seemed
to have dedicated themselves to the idea of
convicting and removing Johnson a priori, the legal justification was uncertain.
Some wondered whether the nature of Johnson’s term was in any way altered by
the fact that he rose to the presidency by succession rather than election. Members of
Congress questioned if the power to remove civil officers implied by the power to
nominate to the Senate, and if the president was compelled to follow a law regardless of
its constitutionality. While it may be tempting to judge the case of Andrew Johnson
41
Smith, 200.
Thaddeus Stevens, qtd. Ibid, 220.
43
Congressional Quarterly, Robert A. Diamond ed., Impeachment and the US Congress (Washington D.C., 1974), 3.
42
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through modern legal eyes, it is essential to bear in mind that in 1868, these questions
were open and hotly contested.
It is clear that the framers of the Constitution regarded impeachment as one of the
most important legal checks in the American system. The Constitution declares in
Article II, Section 4, that “[t]he President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.” Article I, Section 3 clarifies
further:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they
shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the Concurrence of two thirds of the
Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but
the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.
The language employed in these passages has caused legal scholars no small amount of
strife.
The history of this language provides a compelling insight into the way
impeachment was designed and understood.
Legal Questions of the Johnson Case
On 2 March 1868 Congress passed the Tenure of Office Act in order to prevent
the president using his patronage power to remove Republican civil servants of the South.
The relevant portion of the Act is as follows:
That every person holding any civil office to which he has been appointed by and with the advice
and consent of the Senate … shall be entitled to hold such office until a successor shall have been
appointed by the President, with the advice and consent of the Senate …. [T]he Secretaries of
State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the
Attorney General, shall hold their offices respectively for and during the term of the President by
whom they may have been appointed, and for one month thereafter, subject to removal by and
with the advice and consent of the Senate.44
When the president dismissed his secretary of war in February of 1868 he was charged
44
“History of the Impeachment of Andrew Johnson: Chapter V. The Tenure-Of-Office Act,” from The Avalon
Project at Yale Law School, 1996 < http://www.yale.edu/lawweb/avalon/treatise/andrew_johnson/chap_05.htm>
(accessed December 28, 2006).
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with violating this law. On its face, it would appear that Edwin Stanton could not have
been covered by the act.
Stanton had been appointed during Lincoln’s term and
continued by Johnson. However, the Radicals pointed to Article II Section I of the
Constitution which stated the “[the president] shall hold his office during the term of four
years” and that “In case of the removal of the President from office, or of his death,
resignation, or inability to discharge the powers and duties of the said office, the same
shall devolve on the Vice President.” The Radicals argued that Johnson assumed the
“powers and duties” of the presidency but had no term of his own and was instead
serving out Lincoln’s term.45 Johnson countered that it had been established practice that
when the vice president assumed the presidency he became president in his own right, not
simply “acting president” as had been contended in the early days of John Tyler’s
ascension to the presidency following the death of William Henry Harrison. Besides
which, Johnson argued, Stanton had been confirmed by the Senate only in Lincoln’s first
term and continued at the pleasure of the president into his second term. As such,
Stanton’s protection under the Tenure of Office Act should have expired in April 1865,
prior Lincoln’s death and a full two years before the act was even written. The radicals
countered that the act specified the secretary of war maintained his tenure “during the
term of the president by whom they may have been appointed” and made no requirement
that he be confirmed by the Senate a second time, should the president enjoy a second
term.
Supposing that Stanton was within the protection of the Act, there may have been
still further reason for Johnson to believe that he was not bound by the act. In his veto
message to Congress in March 1867, he stated, “I conceive that if any power whatever is
in the Executive, it is in the power of appointing, overseeing, and controlling those who
execute the laws.” Implicitly contained within every Constitutional right is an opposing
negative right; the right of speech implies the right of silence, and the power of Congress
to declare war implies the power to declare war’s end. Similarly, Johnson believed, the
45
Berger, 287.
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power to appoint necessarily contained the power to dismiss. As evidence of this,
Johnson appealed to tradition and the debates of the first Congress, which seemed to
affirm his view.
In August 1867, as Johnson drew closer to dismissing Stanton, he sent a message
to Congress detailing his reasons for believing that it was his right to do so.
He
commented that when the law had first come across his desk:
Every member of my cabinet advised me that the proposed law was unconstitutional. All spoke
without doubt or reservation; but Mr. Stanton’s condemnation of the law was the most elaborate
and emphatic. He referred to the Constitutional provisions, the debates in Congress ... to the
decisions of the Supreme Court, and to the usage from the beginning of the Government through
every successive administration, all concurring to establish the right of removal as vested in the
President. To all these he added the weight of his own deliberate judgment, and advised me that it
was my duty to defend the power of the President from usurpation and veto the law.46
Johnson, believing the law to be unconstitutional and believing that he had Stanton’s
concurrence on the matter, treated the law as though it were void. This tack raises a
serious Constitutional question. It is established constitutional principle that the Judiciary
Branch may invalidate a statute which it judges repugnant to the Constitution. The
president is not considered to have an equivalent right. As constitutional scholar Edward
S. Corwin writes:
[The president] is under obligation ‘to take care that the laws are faithfully executed.’ And, he
was endowed by the Constitution with a qualified veto upon acts of Congress …. [T]his power
being exercised, [his] power of self-defense is at an end; and once a statute has been duly enacted,
whether over his protest of with his approval, he must promote its enforcement.47
This line of reasoning generally conforms to the language of the Constitution, but leaves
the presidency in a difficult legal position. If it is true that the president must wait for all
statutes to be challenged in court before treating them as void, then in any statute
speaking exclusively to the conduct of the president can never be challenged and
redressed.
To avoid this condition, Chief Justice Salmon Chase suggested that the
president is compelled to execute all laws faithfully “except in the case where it directly
attacks and impairs the executive power.”48 Chase argued further that in order to uphold
46
“History of the Impeachment of Andrew Johnson,” supra note 58.
Qtd. in Berger, 298.
48
Qtd ibid, 308.
47
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the presidential oath of office, the president has both a right and a duty to ignore such a
law “so far at least as it may be necessary to bring the question of its constitutionality
before the judicial tribunals.”
Without any amenable resolution to the question of
Johnson’s authority under the Tenure of Office Act, the legality of Johnson’s actions was
very much an open question.
Current Status
On 7 March 1868, the third day of the special session of the fortieth Congress,
Representative James Ashley (R-OH) again proposed his resolution to impeach Andrew
Johnson for high crimes and misdemeanors. In it he made no specific charges other than
general usurpation – it was his belief that Johnson had overstepped his authority, and had
usurped a power reserved to Congress. The resolution was considered throughout the
year, and would not be reported on until 25 November, when it was declined by the
whole House.
The fact that impeachment proceedings were under way in the House does not
seem to have had any impact on Johnson’s actions. Instead, he set about responding to
Henry Stanbery
the Force Bills. The first order of business was to defang
the Military Reconstruction Act.
For this, he worked
through his attorney general, Henry Stanbery. He asked
Stanbery to write a legal opinion of the law and present his
findings to Congress. Stanbery unsurprisingly found that
the law gave little power to the military district
commanders. He said that the district commander could
only punish criminal offences that occurred after the
military Reconstruction Act was passed, thus ruling out
prosecutions for war crimes or treason. He also ruled out the idea that the military
government could enforce the Civil Rights Act. Where the federal courts were opened,
Stanbery said, their jurisdiction took precedence over military tribunals. Furthermore, he
determined that district commanders had no authority to remove members of the civilian
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government and that the civilian government should not be considered subordinate to the
military government.49 For civilian southern governments to be equal or superior to the
military government necessarily meant considering them full-fledged states.
Presumably, Stanbery’s opinion expressed the Johnson’s views, but it did not
constitute an executive order in and of itself. General Ulysses Grant instructed his
generals to enforce the law within their best understanding until they received direct
orders to do otherwise. Congress then passed a supplementary Reconstruction Act which
again declared the superiority of district commanders. Substantively, this was identical to
the first Reconstruction Act and had no effect other than clarify and restore the state
affairs in the South to what had existed prior to Stanbery’s opinion.
Johnson, however, had still further means of disrupting the Military
Reconstruction Act. Generals were not subject to the restrictions of the Tenure of Office
Act and therefore served at the pleasure of the president. In one example, General John
Pope, commander of the Third Military District, incurred Johnson’s wrath for dismissing
the civilian governor and treasurer of Georgia, who had illegally refused to pay the costs
of that state’s Constitutional Convention. Though Pope had conformed to the plain
language of the Reconstruction Act, he would be replaced with a commander more
sympathetic to Johnson’s policies. 50 The new commander, General George Meade,
would directly order the soldiers in his command to consider themselves subordinate to
the state civil authority. He permitted members of the Johnson Administration to remain
after their terms had expired and allowed the courts to exclude Blacks from juries.51
Removing left-leaning commanders proved to be a very effective means of
disrupting the military aspect of Reconstruction. By January 1868, Johnson had removed
every commander committed to civil rights and Radical Reconstruction. Congress passed
yet another supplementary Reconstruction Act which again declared that the district
commanders had supreme legal authority. In addition, this act declared that only General
49
Benedict, 53.
Ibid, 90.
51
Ibid.
50
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Grant could remove district commanders and Grant himself was given the power to
remove any civil officer from any military district. The bill declared that any attempt to
subvert its plain meaning was a “high misdemeanor.” With this move, Congress had
played the last card short of impeachment.
After continuous conflict with Edward Stanton, Johnson requested his resignation,
which Stanton promptly declined. By its plain language, the Tenure of Office Act
permitted the president to suspend Stanton temporarily while Congress was out of session,
which he did replacing him with Grant ad interim. The senate would never acquiesce to
Stanton’s permanent removal, so upon reflection Johnson resolved himself to the idea
that he would violate the Tenure of Office Act, hoping to see the matter resolved in court,
where he said the act was sure to be deemed unconstitutional. In order to successfully
compel Stanton’s leave, Johnson would need a figure strong enough to directly confront
Stanton in his office. For this, the natural choice was Grant, who would need only to
remain in the position he had occupied ad interim for nearly half of a year. After
waffling between loyalty to Johnson and loyalty to Stanton for several days, Grant
informed the president that he would only accept orders from the secretary of war. Given
that Johnson was prohibited from giving orders to anyone other than Grant, this would
effectively nullify the president’s power as commander-in-chief.
Johnson began looking for other reliable military men. First, he turned to General
William T. Sherman, and proposed that Sherman come to Washington and serve as
General of the Army as a counterweight to Grant. The request shocked Sherman who
believed that a split between the commands of two generals was likely to lead to civil war.
Sherman wrote to his brother, Senator John Sherman, to express his fear that the
president planned to use him “to beget violence,”52 leading some to speculate that the
president was planning a coup.
Johnson proposed that Sherman instead come to
Washington to serve as secretary of war, which he declined. Johnson then ran through a
list of military men of lesser stature to take Stanton’s post, all of whom declined.
52
Ibid, 225.
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Having exhausted all credible options, Johnson was left with little other choice
than Adjutant General of the Army Lorenzo P. Thomas. Not respected in Washington,
no one desired to see him in a position of such great authority. On the morning of 21
February 1868, Johnson sent Thomas to Stanton’s office to assume the duties of secretary
of war. Thomas directed Stanton, his superior until that moment, that he had been
dismissed and that he should vacate the office. Stanton told Thomas that he needed time
to think the order over, asserting that “I don’t know whether I shall obey your orders or
not.” 53
Thomas said he would give
Stanton the night to think the issue over.
When the president announced
that Thomas had been appointed,
Congress went into absolute crisis,
believing that Johnson’s coup had
begun. The Senate went into executive
session, meeting around the clock.
Stanton was flooded with messages
from senators instructing him to remain
in his office, including one from
Charles Sumner which read simply
“Stick.”
The House convened to
consider
anew
the
question
of
impeachment. The next morning on the
second
anniversary
of
Johnson’s
inflammatory remarks on the White
House
balcony
the
Philadelphia
JOHNSON VS. STANTON.
~~~~~~~~~~~~~~~~
“A.J.” Resumes Active Hostilities
~~~~~~~~~~~~~~~~
DEPOSES THE SECRETARY OF WAR
~~~~~~~~~~~~~~~~
Gen. Lorenzo Thomas as His Successor
~~~~~~~~~~~~~~~~
A DECIDED SENSATION IN THE SENATE
~~~~~~~~~~~~~~~~
Committee of Senators Visit Secretary Stanton
~~~~~~~~~~~~~~~~
THEY REQUEST HIM TO REMAIN IN OFFICE
~~~~~~~~~~~~~~~~
Mr. Stanton Decides to Hold On
~~~~~~~~~~~~~~~~
HE WILL REMAIN IN HIS OFFICE DAY AND NIGHT
~~~~~~~~~~~~~~~~
And Yield Only to Force
~~~~~~~~~~~~~~~~
Proceedings of the Senate in Executive Session
~~~~~~~~~~~~~~~~
JOHNSON’S ACTIONS DISAPPROVED
~~~~~~~~~~~~~~~~
His Communication Returned to Him
~~~~~~~~~~~~~~~~
HOW THE HOUSE RECEIVED THE NEWS
~~~~~~~~~~~~~~~~
A Resolution of Impeachment Offered
~~~~~~~~~~~~~~~~
IT IS TO BE ACTED UPON TO-DAY
~~~~~~~~~~~~~~~~
Violation of the Tenure of Office Act
Inquirer bore the headline at right.54
53
Ibid, 227.
William H. Rehnquist, Grand Inquests: The historic Impeachments of Justice Samuel Chase and President
Andrew Johnson (New York: William Morrow and Company, 1992), 144.
54
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Conclusion
In the midst of a national crisis with the possibility of violence, the House of
Representatives began debate on the impeachment of Andrew Johnson for the second
time in just one year. The deliberations of this committee will begin 21 February 1868.
The direct use of any fact or event that occurred after that date is strictly prohibited.
Although all those involved and initial conditions will be as they were then, how you
choose to handle the situation is an open question and may diverge significantly from the
historical actions of the House of Representatives.
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Works Cited
Berger, Raoul. Impeachment: The Constitutional Problems (Cambridge, Massachusetts:
Harvard University Press, 1973).
Diamond, Robert A. ed., Congressional Quarterly, Impeachment and the US Congress
(Washington D.C., 1974).
Franklin Nichols, Roy. “United States vs. Jefferson Davis, 1865-1869,” The American
Historical Review Vol. 31, No. 2 (Jan., 1926), pp. 266-284.
Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical
Analysis, Second Edition (Chicago: University of Chicago Press, 2000).
Hearn, Chester G. The Impeachment of Andrew Johnson (Jefferson, North Carolina:
McFarland & Company, 2000).
“History of the Impeachment of Andrew Johnson: Chapter V. The Tenure-Of-Office
Act,” from The Avalon Project at Yale Law School, 1996
< http://www.yale.edu/lawweb/avalon/treatise/andrew_johnson/chap_05.htm>
(accessed December 28, 2006).
Les Benedict, Michael. The Impeachment and Trial of Andrew Johnson, (New York:
W.W. Norton & Co., 1973).
“misdemeanor, n.” OED Online, June 2002. Oxford University Press. 8 December 2006.
http://dictionary.oed.com/cgi/entry/00311214.
Oberholtzer, Ellis P. History of the United States Since the Civil War (New York: The
Macmillan Company, 1917), volume I, 128-129.
Rehnquist, William H. Grand Inquests: The historic Impeachments of Justice Samuel
Chase and President Andrew Johnson (New York: William Morrow and Company,
1992), 144.
Rotunda, Ronald. “An Essay on the Constitutional Parameters of Federal Impeachment,”
in the Kentucky Law Journal Vol. 76, (1987) p. 726.
Smith, Gene. High Crimes and Misdemeanors: The Impeachment and Trial of Andrew
Johnson (New York: William and Morrow Co., 1976).
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U.S. House of Representatives, Committee on the Judiciary, 93rd Congress 2nd Session,
Constitutional Ground for Impeachment). H.R. REP. NO. 93-1305 (1974).