The suggestion that Mr. Johnson contemplated the re-organization of the Government by the admission of the States that had been in rebellion, and by the recognition of Senators and Representatives that might be assigned from those States, received support from the testimony given by Major-General William H. Emory, and also from the testimony of General Grant. In the latter part of the year 1867 and the first part of the year 1868, General Emory was in command of the Department of Washington. When he entered upon the command, he called upon the President. A conversation, apparently not very important, occurred between them, as to the military forces then in that department. In February, 1868, the President directed his secretary to ask General Emory to call upon him as early as practicable. In obedience to that request General Emory called on the twenty-second day of February. The President referred to the former conversation, and then inquired whether any changes had been made, and especially within the recent days, in the military forces under Emory's command. In the course of the conversation growing out of these requests for information, General Emory referred to an order which had then been recently issued which embodied the provisions of the act of March, 1867, in regard to the command of the army and the transmission of orders. The President then said to Emory:
In reply Emory said: "Order No. 17 of the Series of 1867."
The order was produced and read by the President, who said:
"This is not in conformity with the Constitution of the United States, that makes me commander-in-chief, or with the terms of your commission."
General Emory said: "That is the order which you have approved and issued to the army for our government."
The President then said: "Am I to understand that the President of the United States cannot give an order except through the head of the army, or General Grant?"
In the course of the conversation, General Emory informed the President that eminent lawyers had been consulted, that he had consulted Robert J. Walker, and that all of the lawyers consulted had expressed the opinion that the officers of the army were bound by the order whether the statute was constitutional or unconstitutional.