Bingham, George S. Boutwell, James F. Wilson, Benjamin F. Butler, Thomas Williams, John A. Logan, and Thaddeus Stevens.

The trial began on the 5th of March, Chief Justice Chase presiding. The President was represented by Henry Stanbery, Benjamin R. Curtis, William S. Groesbeck, William M. Evarts, and Thomas A. R. Nelson. The House managers were overmatched in point of legal ability by the President's counsel, and still more by the facts in the case. The first eight articles of impeachment were based upon the President's attempt to remove Stanton and appoint Thomas as Secretary of War _ad interim_, but inasmuch as Senator Sherman had publicly declared that Stanton, being an appointee of Lincoln, was not protected by the Tenure-of-Office Law, and that he ought to be removed anyhow if he refused to resign at the President's request, it was deemed best by the impeachers to divide the offense into two parts. So the first article related only to the removal of Stanton and the second only to the appointment of Thomas. This, it was believed, would enable Sherman to vote not guilty on the first, but guilty on the second. He could vote that the President had a perfect right to remove his Secretary of War, but no right to fill the vacancy, and that any attempt on his part to do so would be a high misdemeanor, punishable by impeachment and removal from office. And so it turned out as regarded Sherman's vote, and also that of Senator Howe, of Wisconsin, who shared Sherman's view that Stanton was not protected by the law.

The ninth article charged the President with having a conversation with General Emory, who commanded the military department of Washington, and saying to him that that portion of the Army Appropriation Act, which provided that all orders relating to military affairs should be issued through the General of the Army, or the officer next in rank, and not otherwise, was unconst.i.tutional, thus seeking to induce said Emory to violate the provisions of said act.

The tenth article recited that Andrew Johnson did at certain times and places make and "deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers, and laughter of the mult.i.tudes then a.s.sembled." Extracts from the speeches were embodied in this article, "by means whereof the said Andrew Johnson has brought the high office of President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of, a high misdemeanor in office." This article was the production of General Butler.

The eleventh article embraced the charge of seeking to prevent Stanton from resuming his office as Secretary of War, but not that of removing him from it (this to accommodate Sherman and Howe), and a _melange_ of all the charges in the preceding articles, ending with a charge that the President had in various ways attempted to prevent the execution of the Reconstruction Acts of Congress. Thaddeus Stevens considered it the only one of the series that was bomb-proof, but the Chief Justice ruled that the Stanton matter was the only thing of substance in it, the residue being mere objurgation. The answer filed by the President's counsel set forth:

First, that the Tenure-of-Office Law, in so far as it sought to prevent the President from removing a member of his Cabinet, was unconst.i.tutional; that such was the opinion of each member of his Cabinet, including Stanton, and that Stanton among others advised him to veto it;

Second, that even if the law were in harmony with the Const.i.tution the Secretary of War was not included in its prohibitions, since the term for which he was appointed had expired before the President sought to remove him;

Third, that it seemed desirable, in view of the foregoing facts, to secure a judicial determination of all doubts respecting the rights and powers of the parties concerned, from the tribunal created for that purpose; and to this end he had taken the steps complained of, and that he had committed no intentional violation of law.

In answer to the eleventh article, the defendant said that the matters contained therein, except the charge of preventing the return of Stanton to the office of Secretary of War, did not allege the commission or omission of any act whatever whereby issue could be joined or answer made. As to the Stanton matter, his answer was already given in the answer to the first article.

There were two theories rife in the Senate and in the country, respecting this trial. One was that impeachment was a judicial proceeding where charges of treason, bribery, or other high crimes or misdemeanors were to be alleged and proved; the Senators sitting as judges, hearing testimony and argument, and voting guilty or not guilty.

This opinion was generally accepted at first, both in and out of Congress, and was the correct one. The other was that impeachment was a political proceeding which the whole people were as competent to decide as the Senate. This was the view taken by Charles Sumner and avowed by him in his written opinion while sitting as one of the sworn judges to vote guilty or not guilty, and it came to be the opinion prevailing in the Republican party generally before the case was ended. According to this view it was a question for the people to decide in their character as an unsworn "mult.i.tudinous jury." No method of arriving at, or of recording, their verdict was suggested or deemed necessary. To a person holding this view the trial itself was logically a waste of time, since a decision could have been reached without a sc.r.a.p of testimony, or a single speech, on either side.

The trial lasted from the 5th of March to the 16th of May, and the heat and fury of the contest both in and out of Congress became more intense from day to day. The impeachers lost ground in the estimation of the sober-minded and reflecting cla.s.ses by their intemperate language, by their frantic efforts to bring outside pressure to bear upon Senators, and especially by their refusal to admit testimony offered to show that the President's intent was not to defy the law, but to get a judicial decision as to what the law was. The Chief Justice ruled that testimony to prove intent was admissible, and Senator Sherman asked to have it admitted, but it was excluded by a majority vote. Testimony to prove that Stanton advised the President that the Tenure-of-Office Law was unconst.i.tutional and that he aided in writing the veto message was excluded by the same vote. Gideon Welles, under date April 18,[106] says that Sumner, who had previously moved to admit all testimony offered, absented himself when it was proposed to call the Cabinet officers as witnesses. Monday, May 11, the case was closed and the Senate retired for deliberation. The session was secret, but the views of Senators, so far as expressed, leaked out. "Grimes boldly denounced all the articles," says Welles, "and the whole proceeding. Of course he received the indignant censure of all radicals; but Trumbull and Fessenden, who followed later, came in for even more violent denunciation and more wrathful abuse."

The vote was not taken until the 16th, and the intervening time was employed by the impeachers in bringing influence to bear upon Senators who had not definitely declared how they would vote. There were 54 votes in all; two thirds were required to convict. There were 12 Democrats, counting Dixon, Doolittle, and Norton, who had been elected as Republicans, but had been cla.s.sed as Democrats since they had taken part in the Philadelphia Convention of August, 1866. If seven Republicans should join the twelve in voting not guilty, the President would be acquitted. Three had declared in the conference of Monday, the 11th, for acquittal, and they were men who could not be swerved by persuasion or threats after they had made up their minds. If four more should join with the three, impeachment would fail. Welles names as doubtful to the last Senators Anthony and Sprague, of Rhode Island, Van Winkle and Willey, of West Virginia, Frelinghuysen, of New Jersey, Morgan, of New York, Corbett, of Oregon, Cole, of California, Fowler, of Tennessee, Henderson, of Missouri, and Ross, of Kansas. He adds, May 14:

The doubtful men do not avow themselves, which, I think, is favorable to the President, and the impeachers display distrust and weakness. Still their efforts are unceasing and almost superhuman. But some of the more considerate journals, such as the New York _Evening Post_, Chicago _Tribune_, etc., rebuke the violent. The thinking and reflecting portion of the country, even Republicans, show symptoms of revolt against the conspiracy.[107]

The article in the New York _Evening Post_ of May 14, two days before the first vote was taken, is a column long. It can only be summarized here.

So long as the court sat, it says, decency forbade the discussion of the issue elsewhere. It characterizes the articles of impeachment in groups and severally, and says Article XI "reads like a jest, in charging solemn official acts of 1868 as done in pursuance of an extreme and excited declaration, made to a crowd, in a political speech almost two years before...." Impertinent issues were constantly pressed upon the court from without. The New York _Tribune_ demanded conviction and removal for breaking the Tenure-of-Office Act, because, it said, the President was guilty of drunkenness, adultery, treason, and murder. The investigation is of a sudden changed in its nature by the advocates of conviction and becomes a matter of politics, and no longer a judicial concern.

Senator Wilson leads off by violating an absolutely fundamental principle of the life and law of every free people, i.e., the principle that an accused man shall have the benefit of a doubt, and be believed innocent until proved guilty. Wilson says: "I shall give the benefit of whatever doubts have arisen to perplex and embarra.s.s me to my country rather than to the Chief Magistrate." ... Here was a plain confession that to obtain conviction a "first principle of public law must be sacrificed; that one prominent judge, at least, would condemn the accused, however conscientiously, from other than judicial motives." It describes graphically the pressure brought to bear upon the court and its shameless character, and quotes from the New York _Tribune's_ flagrant attack upon Grimes, Trumbull, and Fessenden, "three of the most honored statesmen and tried patriots in the land." "Thus," it says, "a prominent party organ tries to instigate the pa.s.sions of the mult.i.tude to drive the court to the judgment it desires."

"In a meeting of the Republican Campaign Club on Tuesday evening," it continues, "Charles S. Spencer said that 'as a man of peace and one obedient to the laws, he would advise Senator Trumbull not to show himself on the streets in Chicago during the session of the National Republican Convention, for he feared that the representatives of an indignant people would hang him to the most convenient lamp-post.' And the meeting adopted and ordered to be sent to our Senators in Congress, a resolution, 'that any Senator of the United States elected by the votes of Union Republicans, who at this time blenches and betrays, is infamous, and should be dishonored and execrated while this free Government endures.'"

The following is from the Chicago _Tribune_, May 14, 1868:

IMPEACHMENT

... The man who demands that each Republican Senator shall blindly vote for conviction upon each article is a madman or a knave. Why a Senator, or any number of Senators, should be at liberty to vote as conscience dictates on any of the articles, provided there be a conviction on some one of them, and not be at liberty to vote conscientiously unless a conviction be secured, is only to be explained upon the theory that the President is expected to be convicted no matter whether Senators think he has been guilty or not. We have protested, and do now protest, against the degradation and prost.i.tution of the Republican party to an exercise of power so revolting that the people will be justified in hurling it from place at the first opportunity. We protest against any warfare by the party or any portion of it against any Senator who may, upon the final vote, feel constrained to vote against conviction upon one, several, or even all of the articles. A conviction by a free and deliberate judgment of an honest court is the only conviction that should ever take place on impeachment; a conviction under any other circ.u.mstances will be a fatal error.

To denounce such Senators as corrupt, to a.s.sail them with contumely and upbraid them with treachery for failing to understand the law in the same light as their a.s.sailants, would be unfortunate folly, to call it by the mildest term; and to attempt to drive these Senators out of the party for refusing to commit perjury, as they regard it, would cause a reaction that might prove fatal not only to the supremacy of the Republican party, but to its very existence. Those rash papers which have undertaken to ostracise Senators--men like Trumbull, Sherman, Fessenden, Grimes, Howe, Henderson, Frelinghuysen, Fowler, and others--are but aiding the Copperheads in the dismemberment of our party.

From the _Nation_, May 14, 1868.

... Can any party afford to treat its leading men as a part of the Republican press has been treating leading Republicans during the last few weeks? Senators of the highest character, who, in being simply honest and in having a mind of their own, render more service to the country than fifty thousand of the windy blatherskites who a.s.sail them, have been abused like pickpockets, simply because they chose to think. We have, during the last week, heard language applied to Mr. Fessenden and Mr. Trumbull, for instance, which was fit only for a compound of Benedict Arnold and John Morrissey, and all their colleagues have been warned beforehand, that if they pleaded their oaths as an excuse for differing from anybody who happened to edit a newspaper, they would be held up to execration as knaves and hypocrites. Now, the cla.s.s of men who are most needed in our politics just now are high-minded, independent men, with their hands clean and souls of their own.

Their errors of judgment are worth bearing with for the sake of their character. Yet this cla.s.s is becoming smaller and smaller, falling more and more into disrepute. The cla.s.s of roaring, corrupt, ignorant demagogues, who are always on "the right side" with regard to all party measures, grows apace; and, if we are not greatly mistaken, if the Republican party does not make short work with them before long, they will make short work of it....

When it became known that Grimes, Trumbull, and Fessenden would vote not guilty, the pressure from outside was redoubled upon others who had been reckoned doubtful, and especially upon Henderson, Fowler, and Ross.

Even the General Conference of the Methodist Episcopal Church, then in session at Chicago, was called upon to lend a hand, and a motion was made on the 13th of May for an hour of prayer in aid of impeachment. An aged delegate moved to lay that proposal on the table, saying:

My understanding is that impeachment is a judicial proceeding and that Senators are acting under an oath. _Are we to pray to the Almighty that they may violate their oaths?_

The motion to lay on the table prevailed. On the following day, however, Bishop Simpson offered a new preamble and resolution, omitting any expression of opinion that Senators ought to vote for conviction, but reciting that "painful rumors are in circulation that, partly by unworthy jealousies and partly by corrupt influences, pecuniary and otherwise, most actively employed, efforts were being made to influence Senators improperly, and to prevent them from performing their high duty"; therefore, an hour should be set apart in the following day for prayer to beseech G.o.d "to save our Senators from error." This cunningly drawn resolution was adopted without opposition. It was supposed to have been aimed at Senator Willey, of West Virginia, rather than at the Throne of Grace.

Under the rules adopted for the trial each Senator was allowed to file a written opinion. That of Trumbull was the first one in the list. Among other things he said:

To do impartial justice in all things appertaining to the present trial, according to the Const.i.tution and laws, is the duty imposed on each Senator by the position he holds and the oath he has taken, and he who falters in the discharge of that duty, either from personal or party considerations, is unworthy his position, and merits the scorn and contempt of all just men.

The question to be decided is not whether Andrew Johnson is a proper person to fill the presidential office, nor whether it is fit that he should remain in it, nor, indeed, whether he has violated the Const.i.tution and laws in other respects than those alleged against him. As well might any other fifty-four persons take upon themselves by violence to rid the country of Andrew Johnson, because they believed him a bad man, as to call upon the fifty-four Senators, in violation of their sworn duty, to convict and depose him for any other causes than those alleged in the articles of impeachment. As well might any citizen take the law into his own hands and become its executioner as to ask the Senate to convict, outside of the case made. To sanction such a principle would be destructive of all law and all liberty worth the name, since liberty unregulated by law is but another name for anarchy.

He then took up the articles of impeachment _seriatim_ and showed that they all hinged upon the removal of Stanton and the _ad interim_ appointment of Thomas.

But even if a different construction could be put upon the law [he continued], I could never consent to convict the Chief Magistrate of a high misdemeanor and remove him from office for a misconstruction of what must be admitted to be a doubtful statute, and particularly when the misconstruction was the same put upon it by the authors of the law at the time of its pa.s.sage.

As to the charge that he (Trumbull) had already voted that the President had no authority to remove Stanton, he said:

Importance is sought to be given to the pa.s.sage by the Senate, before impeachment articles were found by the House of Representatives, of the following resolutions: "Resolved by the Senate of the United States, That under the Const.i.tution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office _ad interim_" as if Senators, sitting as a court on the trial of the President for high crimes and misdemeanors, would feel bound or influenced in any degree by a resolution introduced and hastily pa.s.sed before adjournment on the very day the orders to Stanton and Thomas were issued. Let him who would be governed by such considerations in pa.s.sing on the guilt or innocence of the accused, and not by the law and the facts as they have been developed in the trial, shelter himself under such a resolution. I am sure no honest man could.

He concluded with these words:

Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient cause, and no future President will be safe who happens to differ with a majority of the House and two thirds of the Senate on any measure deemed by them important, particularly if of a political character. Blinded by partisan zeal, with such an example before them they will not scruple to remove out of the way any obstacle to the accomplishment of their purpose, and what then becomes of the checks and balances of the Const.i.tution so carefully devised and so vital to its perpetuity? They are all gone. In view of the consequences likely to flow from this day's proceedings, should they result in conviction on what my judgment tells me are insufficient charges and proofs, I tremble for the future of my country. I cannot be an instrument to produce such a result, and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me but the inflexible discharge of duty.

Gideon Welles, under date May 16, says:

Willey, after being badgered and disciplined to decide against his judgment, at a late hour last night agreed to vote for the eleventh article, which was one reason for reversing the order and making it the first.... Bishop Simpson, a high priest of the Methodists and a sectarian politician of great shrewdness and ability, had brought his clerical and church influence to bear upon Willey through Harlan, the Methodist elder and organ in the Senate.[108]

So the managers vaulted over ten articles and began the roll-call on the last of the series. The vote resulted: guilty, 35; not guilty, 19. One less than two thirds had voted not guilty; so the President was acquitted on an article, the gravamen of which was the President's attempt to prevent Stanton from returning to office after the Senate had non-concurred in his removal. Sherman, Howe, and Willey had voted guilty on this article, but Henderson, Fowler, Ross, and Van Winkle had voted not guilty.

The impeachers were stunned, and before they could collect their thoughts, the Chief Justice, in pursuance of a rule previously adopted, directed that the vote should now be taken on the first article. He was interrupted by a motion to adjourn, which he ruled out of order. An appeal from the decision was taken and sustained by a majority vote, and the Senate sitting as a court of impeachment adjourned for ten days. The utmost efforts and direst threats were brought to bear upon Senator Ross because he was believed to be weak and defenseless, but he remained firm. When the court rea.s.sembled on the 26th of May, the first article of impeachment, the one which charged the President with the high misdemeanor of removing Stanton from office, was jettisoned altogether, and votes were taken on the second and third articles, relating to the appointment of Thomas as Secretary _ad interim_. On both of these articles the result was identical in number and personnel with that on the eleventh article. Impeachment had failed. The court then adjourned _sine die_.

The opposition to impeachment had some latent strength that was never officially disclosed. Sprague, of Rhode Island, and Willey, of West Virginia, attended the meetings of the Republican anti-impeachers and said they would vote not guilty if their votes should be needed.[109]

The President was a.s.sured that Morgan would do the same.[110]

On the same day, Edwin M. Stanton wrote a note to the President saying that inasmuch as impeachment had failed he had relinquished the War Department and had left the contents thereof in charge of the senior a.s.sistant Adjutant-General. He then retired to his own home broken in health by hard labor and clouded in reputation by his retention of a place in the Cabinet in defiance of his chief. Not even success in maintaining his position could excuse such an act. Failure made it a glaring misdemeanor. An attempt has been made to shift the responsibility for his action to the shoulders of Sumner and his other backers in the Senate, who advised him to "stick." Undoubtedly they did so advise, and undoubtedly they believed, and persuaded him to believe, that it was a patriotic duty to commit a glaring breach of good manners and to persist in it for months; but the responsibility for such an act could not be a.s.sumed by other persons. Moreover, if it was a breach of the Const.i.tution for the Senate to forbid the President to choose his own cabinet, as Stanton himself had affirmed, it was a breach of the Const.i.tution for him to cooperate with the Senate in doing so.

The glory of the trial [says Mr. Rhodes][111] was the action of the seven recusant Senators.... The average Senator who hesitated finally gave his voice with the majority, but these seven, in conscientiousness and delicacy of moral fibre, were above any average, and in refusing to sacrifice their ideas of justice to a popular demand, which in this case was neither insincere nor unenlightened, they showed a degree of courage than which we know none higher. Hard as was their immediate future they have received their meed from posterity, their monument in the admiring tribute of all who know how firm they stood in an hour of supreme trial.

In this comment there is now general concurrence. Even Ross has been immortalized by his resolute adherence to what he believed to be right.

His trial was the hardest of all, because on the one hand he had no acc.u.mulated reputation to fall back upon, and on the other hand he had the most radical state in the Union to deal with. Moreover, he was desperately poor, his only property being a starving country newspaper.

Ill-luck followed him after his term expired. A cyclone struck the town of Coffeyville, Kansas, and scattered the contents of his newspaper office over the adjacent prairie. Among the Trumbull papers is an appeal from the local relief committee for help to start Ross's newspaper again, and a donation from Trumbull of two hundred dollars for this purpose. Some forty years later, Ross died in New Mexico, old and poor.

He had been a soldier in the Civil War. Congress by a special act voted him a pension, before his death. This was a solace on the brink of the grave and a tribute to his fidelity to principle in a trying hour. It was recognized as such and applauded by the press of the country without a discordant note. In the award of credit for adherence to convictions of duty in the trial of Andrew Johnson, three other Senators have been for the most part overlooked, namely, James Dixon, of Connecticut, James R. Doolittle, of Wisconsin, and Daniel S. Norton, of Minnesota. All of these were elected as Republicans and all of them walked in the fiery furnace along with the Seven, or rather preceded them thither. The reason why they have been neglected by the muse of history is that they started two years earlier. They went to the Philadelphia Arm-in-Arm Convention and thus became cla.s.sified as Democrats. Edgar Cowan, of Pennsylvania, did likewise. His term expired, however, before impeachment reached the acute stage. Dixon and Doolittle had served through Lincoln's entire term. They approved of his Reconstruction policy and simply adhered to it after Johnson came in. They received a larger share of contumely as turn-coats and outcasts than the Seven, because they began to earn that distinction earlier. Doolittle accepted political martyrdom without a murmur. The legislature of Wisconsin pa.s.sed resolutions denouncing his support of President Johnson and his policy and demanded his resignation as a Senator, and these resolutions were presented to the Senate by his colleague, Timothy O. Howe, and were answered by Doolittle on the floor of the Senate in a manly way. If there are laurels to be distributed at this late day, he and his three allies are ent.i.tled to "a far more exceeding and eternal weight of glory."

Trumbull received his quota of abuse and vilification for his vote against impeachment from small-minded newspapers and local politicians.

To these it seemed an infernal shame that he had still five years to serve in the Senate before they could turn him out. The only reply he ever made in writing, so far as I know, was in a letter dated May 20 to Gustave Koerner, which the latter caused to be published in the Belleville _Advocate_, reiterating in brief the views expressed in his opinion as a member of the court.

Fessenden's unexpired term was shorter than Trumbull's. He was read out of the party rather prematurely. In the autumn following his vote on impeachment, George H. Pendleton, of Ohio, made his appearance as a stump speaker in Maine supporting the Democratic policy of "paying the bonds in greenbacks." This was a new issue in the East, and a rather puzzling one everywhere. Pendleton had been a candidate for the presidency in the national convention on that platform, but had fallen somewhat short of a nomination. Fessenden was the only man within reach able to meet him and expose his fallacies on the stump. The party was in danger of losing the state. It was obliged to call for the Senator's help. He responded favorably, took the field and routed the Greenbackers completely. This was his last victory. He had been in poor health for some years. Overwork and over-anxiety as chairman of the Finance Committee during the War, and later as Secretary of the Treasury, had told upon a feeble frame. He died September 2, 1869, and with him pa.s.sed away the most clairvoyant mind, joined to the most sterling character, that the state of Maine ever contributed to the national councils.

Whether, if his life and health had been spared, he could have been reelected to the Senate, is doubtful. Gideon Welles was informed that he had not a friend in the Maine legislature. When his death was announced in the Senate, Trumbull said of him:

As a debater engaged in the current business of legislation the Senate has not had his equal in my time. No man could detect a sophistry or perceive a scheme or a job quicker than he, and none possessed the power to expose it more effectually. He was a practical, matter-of-fact man utterly abhorring all show, pretension, and humbug.... But I did not rise so much to speak of the great abilities and n.o.ble traits of character which have made Mr. Fessenden's death to be felt as a national calamity, as of the personal loss which I myself feel at his departure.

Only three others are now left who were here when I came to the Senate, and there is but one who came with me. There has been no one here since I came to whom I oftener went for counsel and whose opinions I have been accustomed more to respect than those of our departed friend. There were occasions during our fourteen years of service together when we differed about minor matters and had controversies, for the time unpleasant, but I never lost my respect for him, nor do I believe that he ever did for me. He was my friend more closely, perhaps, the last year or two than ever before. Like other Senators I shall miss him in the daily transactions of this chamber, and perhaps more than any other shall miss him as the one person from whom I most frequently sought advice. I am not one of those, however, who believe that const.i.tutional liberty, our free inst.i.tutions, or the progress of the age depend upon any one individual. When the great and good Lincoln was stricken down, I did not believe that the Government would fail, or liberty perish. Though his loss may have subjected the country to many trials it would not otherwise have had, still our Government stands and liberty survives. Another has taken Mr. Fessenden's place; others will soon occupy ours, to discharge their duties better, perhaps, than we have done, and he among us to-day will be fortunate, indeed, if, when his work on earth is done, he shall leave behind him a life so pure and useful, a reputation so unsullied, a patriotism so ardent, and a statesmanship so conspicuous as William Pitt Fessenden.[112]