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A few days prior to the day set for taking the vote on the several Articles of Impeachment, and after the conclusion of testimony, it was proposed that there be a private session for conference of the Senate on a day named, May 11th, to give Senators an opportunity to declare themselves on the pending impeachment.
Neither the precise object or the utility of a conference were then apparent, but the result was somewhat of a surprise to those who had, up to that time, been undoubtingly confident of the President's conviction. Comparatively few Senators had previously declared their position. Very few, if any of the Republican Senators had indicated a disposition to vote against any of the articles, but the silence of a number of them, and their refusal to commit themselves even to their associates, was a source of uneasiness in Senatorial Impeachment circles. Hence, possibly, the suggestion of a "conference."
It was taken for granted that every Democratic Senator would vote against the impeachment. But the idea was not to be entertained that the "no" votes would extend beyond the Democratic coterie of twelve. There were, however, anxious misgivings as to that. There was too much silence--too much of saying nothing when so little that might be said would go so far to relieve an oppressive anxiety.
So a session for "conference" was ordered and held, much to the surprise of gentlemen whose silence had become somewhat oppressive, and was becoming equally painful to those who wanted a conference." It savored of an attempt to "poll the Senate" in advance of judgment. It was resolved at the session of May 7th, to hold a session for deliberation on the following Monday, May 11th. The most surprising development of that session was the weakness of the bill of indictment at the very point where it was apparently strongest--the first Article. Two conspicuous and influential Senators--Messrs. Sherman of Ohio, and Howe of Wisconsin--declared, and gave convincing reasons therefor, that they would not vote for the impeachment of Mr. Johnson on that Article.
In his remarks on this occasion, after giving a history of the enactment of the Tenure-of-Office law, the first section of which specifically excepts from its operation such members of Mr. Johnson's Cabinet as had been appointed by Mr. Lincoln and still remaining, though not recommissioned by Mr. Johnson, Mr. Sherman said:
I can only say as one of the Senate conferees, under the solemn obligations that now rest upon us in construing this Act, that I did not understand it to include members of the Cabinet not appointed by the President, and that it was with extreme reluctance and only to secure the passage of the bill that, in the face of the votes of the Senate I agreed to the report LIMITING AT ALL the power of the President to remove heads of Departments. * * * I stated explicitly that the Act as reported did not protect from removal the members of the Cabinet appointed by Mr. Lincoln, that President Johnson might remove them at his pleasure; and I named the Secretary of war as one that might be removed. * * * I could not conceive a case where the Senate would require the President to perform his great executive office upon the advice and through heads of Departments personally obnoxious to him, and whom he had not appointed, and, therefore, no such case was provided for. * * * Can I pronounce the President guilty of crime, and by that vote aid to remove him from his high office for doing what I declared and still believe he had a legal right to do. God forbid: * * * What the President did do in the removal of Mr. Stanton he did under a power which you repeatedly refused to take from the office of the President--a power that has been held by that officer since the formation of the Government. and is now limited only by the words of an Act, the literal construction of which does not include Mr. Stanton. * * * It follows, that as Mr. Stanton is not protected by the Tenure-of-Civil-Office Act, his removal rests upon the Act of 1789, and he according to the terms of that Act and of the commission held by him, and in compliance with the numerous precedents cited in this cause, was lawfully removed by the President, and his removal not being contrary to the provisions of the Act of March 2nd 1867, the 1st, 4th, 5th, and 6th Articles, based upon his removal, must fail.
On this point, Mr. Howe said:
If Mr. Stanton had been appointed during the present Presidential term. I should have no doubt he was within the security of the law. But I cannot find that, either in fact or in legal intendment, he was appointed during the present Presidential term. It is urged that he was appointed by Mr. Lincoln, and such is the fact. It is said that Mr. Lincoln's term is not yet expired. Such I believe to be the fact. But the language of the proviso is, that a Secretary shall hold not during the term of MAN by whom he is appointed, but during the TERM of the PRESIDENT by whom he may be appointed. Mr. Stanton was appointed by the President in 1862. The term of that President was limited by the Constitution. It expired on the 4th of March, 1865. That the same incumbent was re-elected for the next term is conceded, but I do not comprehend how that fact extended the former term.
Entertaining these views, and because the first Article of the Impeachment charges the order of removal as a violation of the Tenure-of-Office Act, I am constrained to hold the President not guilty upon that Article.
These declarations, coming from two gentlemen of distinction and influence in the party councils, both of whom Had actively participated in framing the Tenure-of-Office Act, became at once the occasion of genuine and profound surprise, and it is unnecessary to say that they tended largely to strengthen the doubts entertained by others as to the sufficiency of all the other allegations of the indictment. They naturally and logically reasoned that the removal of Mr. Stanton, set out in the first Article, constituted, in effect, the essence of the indictment, and that all that followed, (save the 10th Article was more in the nature of specifications, or a bill of particulars, than otherwise--that if no impeachable offense were set out in the first Article, then none was committed, as that Article constituted the substructure of all the rest--its essence and logic running through and permeating practically all--and that without that Article, there was no coherence or force in any of them, and consequently nothing charged against the President that was impeachable, as he had not violated the Tenure-of-Office law, and was not charged with the violation of any other law.
That conference developed, further, that a large majority of the Articles of Impeachment were objectionable to and would not be supported by a number of Republican Senators.
Mr. Edmunds would not support the 4th, 8th, 9th, and 10th Articles, being "wholly unsustained by proof," but would support the 11th, though apparently doubtful of its efficiency.
Mr. Ferry could not support the 4th, 5th, 6th, 7th, 9th, or 10th Articles.
Mr. Howard declared that he would not support the 9th Article.
Mr. Morrill of Vermont, would not support the 4th, 6th, 9th, or 10th Articles, as they were unproven.
Mr. Morrill, of Maine, Mr. Yates, Mr. Harlan, and Mr. Stewart, would vote to convict on the Articles relating to the removal of Mr. Stanton--uncommitted on all others.
Mr. Fessenden, Mr. Fowler, Mr. Grimes, Mr. Henderson, Mr. Trumbull, and Mr. Van Winkle, each declared, at that conference, their opposition to the entire list of the Articles of Impeachment.
But eighteen Republicans committed themselves at that conference, for conviction, out of twenty-four who filed opinions. While it was taken for granted that the six Democrats who had failed to declare their position at that conference would oppose conviction, the position of the eighteen Republicans who had failed to declare themselves became at once a source of very grave concern in impeachment circles. Out of that list of eighteen uncommitted Republicans, but one vote was necessary to defeat the impeachment. This condition was still farther intensified by the fact that eight of the eleven Articles of Impeachment were already beaten in that conference, and practically by Republican committals, and among them the head and front and foundation of the indictment--the First Article--by Messrs. Sherman and Howe, two conspicuous Republican leaders.
A forecast of the vote based on these committals as to the several Articles, would be against the First Article, twelve Democrats and eight Republicans, one more than necessary for its defeat--the eight "not guilty" votes including Messrs. Sherman and Howe.
Against the Fourth Article--twelve Democrats and nine Republicans--including Messrs. Edmunds, Ferry, and Morrill of Vermont.
Against the Fifth Article--twelve Democrats and eight Republicans-including Messrs. Edmunds and Ferry.
Against the Sixth Article--twelve Democrats and nine Republicans-including Messrs. Ferry, Howe, and Morrill of Vermont.
Against the Seventh--Article-twelve Democrats and seven Republicans--including Mr. Ferry.
Against the Eighth Article--twelve Democrats and seven Republicans--including Mr. Edmunds.
Against the Ninth Article--twelve Democrats and twelve Republicans--including Messrs. Sherman, Edmunds, Ferry, Howe, Howard, and Morrill of Vermont.
Against the Tenth Article--twelve Democrats and ten Republicans--including Messrs. Edmunds, Sherman, Ferry, and Morrill of Vermont.
It is somewhat conspicuous that but three gentlemen--Messrs. Sumner, Pomeroy, and Tipton, in their arguments in the Conference, pronounced the President guilty on all the charges--though five others, Messrs. Wilson, Patterson of New Hampshire, Frelinghuysen, Cattell, and Williams, pronounced the President guilty on general principles, without specification; and Messrs. Morrill of Maine, Yates and Stewart, guilty in the removal of Mr. Stanton, without further specification of charges.
As but one vote, in addition to the twelve Democratic and the six Republican votes pledged against conviction at the Conference, was necessary to defeat impeachment on the three remaining Articles--the 2nd, 3rd, and 11th--and as nearly a half of the Republicans of the Senate had failed to commit themselves, at least in any public way, the anxiety of the advocates of Impeachment became at once, and naturally, very grave. How many of the eighteen Republicans who had failed to declare themselves at that Conference might fail to sustain the Impeachment, became, therefore, a matter of active solicitude on all sides, especially in impeachment circles in and out of the Senate. Republican committals in the Conference had rendered absolutely certain the defeat of every Article of the Impeachment except the Second, Third, and Eleventh, and the addition of but a single vote from the eighteen uncommitted Republicans to the "No" side, would defeat them.
It was under this unfavorable condition of the Impeachment cause, that the Senate assembled on May 16th, 1868, for the purpose of taking final action on the indictment brought by the House of Representatives, the trial of which had occupied the most of the time of the Senate for the previous three months, and which had to a large degree engrossed the attention of the general public, to the interruption of legislation pending in the two Houses of Congress, and more or less to the embarrassment of the commercial activities of the country.
For the first time in the history of the government, practically eighty years, the President of the United States was at the bar of the Senate, by virtue of a constitutional warrant, on an accusation of the House of Representatives of high crimes and misdemeanors in office, and his conviction and expulsion from office demanded in the name of all the people. No event in the civil history of the country had ever before occurred to so arouse public antipathies and public indignation against any man-and these conditions found special vent in the City of Washington, as the Capitol of the Nation, as it had become during the trial the focal point of the politically dissatisfied element of the entire country. Its streets and all its places of gathering had swarmed for many weeks with representatives of every State of the Union, demanding in a practically united voice the deposition of the President.
On numbers of occasions during the previous history of the Government there had been heated controversies between the Congress and the Executive, but never before characterized by the intensity, not infrequently malevolence, that had come to mark this and never before had a division between the Executive and the Congress reached a point at which a suggestion of his constitutional ostracism from office had been seriously entertained, much less attempted.
But it had now come. The active, intense interest of the country was aroused, and everywhere the division among the people was sharply defined and keen, though the numerical preponderance, it cannot be denied, was largely against the President and insistent upon his removal.
The dominant party of the country was aroused and active for the deposition of the President. Public meetings were held throughout the North and resolutions adopted and forwarded to Senators demanding that Mr. Johnson be promptly expelled from office by the Senate--and it had become apparent, long before the taking of the vote, that absolute, swift, and ignominious expulsion from office awaited every Republican Senator who should dare to disregard that demand.
Under these conditions it was but natural that during the trial, and especially as the close approached, the streets of Washington and the lobbies of the Capitol were thronged from day to day with interested spectators from every section of the Union, or that Senators were beleaguered day and night, by interested constituents, for some word of encouragement that a change was about to come of that day's proceeding, and with threats of popular vengeance upon the failure of any Republican Senator to second that demand.
In view of this intensity of public interest it was as a matter of course that the coming of the day when the great controversy was expected to be brought to a close by the deposition of Mr. Johnson and the seating of a new incumbent in the Presidential chair, brought to the Capitol an additional throng which long before the hour for the assembling of the Senate filled all the available space in the vast building, to witness the culmination of the great political trial of the age.
Upon the closing of the hearing--even prior thereto, and again during the few days of recess that followed, the Senate had been carefully polled, and the prospective vote of every member from whom it was possible to procure a committal, ascertained and registered in many a private memoranda. There were fifty-four members--all present. According to these memoranda, the vote would stand eighteen for acquittal, thirty-five for conviction--one less than the number required by the Constitution to convict. What that one vote would be, and could it be had, were anxious queries, of one to another, especially among those who had set on foot the impeachment enterprise and staked their future control of the government upon its success. Given for conviction and upon sufficient proofs, the President MUST step down and out of his place, the highest and most honorable and honoring in dignity and sacredness of trust in the constitution of human government, a disgraced man and a political pariah. If so cast upon insufficient proofs or from partisan considerations, the office of President of the United States would be degraded--cease to be a coordinate branch of the Government, and ever after subordinated to the legislative will. It would have practically revolutionized our splendid political fabric into a partisan Congressional autocracy. Apolitical tragedy was imminent.
On the other hand, that vote properly given for acquittal, would at once free the Presidential office from imputed dishonor and strengthen our triple organization and distribution of powers and responsibilities. It would preserve the even tenor and courses of administration, and effectively impress upon the world a conviction of the strength and grandeur of Republican institutions in the hands of a free and enlightened people.
The occasion was sublimely and intensely dramatic. The President of the United States was on trial. The Chief Justice of the Supreme Court was presiding over the deliberations of the Senate sitting for the trial of the great cause. The board of management conducting the prosecution brought by the House of Representatives was a body of able and illustrious politicians and statesmen. The President's counsel, comprising jurists among the most eminent of the country, had summed up for the defense and were awaiting final judgment. The Senate, transformed for the occasion into an extraordinary judicial tribunal, the highest known to our laws, the Senators at once judges and jurors with power to enforce testimony and sworn to hear all the facts bearing upon the case, was about to pronounce that judgment.
The organization of the court had been severely Democratic. There were none of the usual accompaniments of royalty or exclusivism considered essential under aristocratic forms to impress the people with the dignity and gravity of a great occasion. None of these were necessary, for every spectator was an intensely interested witness to the proceeding, who must bear each for himself, the public consequences of the verdict, whatever they might be, equally with every member of the court.
The venerable Chief Justice, who had so ably and impartially presided through the many tedious weeks of the trial now about to close, was in his place and called the Senate to order.
The impressive dignity of the occasion was such that there was little need of the admonition of the Chief Justice to abstention from conversation on the part of the audience during the proceeding. No one there present, whether friend or opponent of the President, could have failed to be impressed with the tremendous consequences of the possible result of the prosecution about to be reached. The balances were apparently at a poise. It was plain that a single vote would be sufficient to turn the scales either way--to evict the President from his great office to go the balance of his life's journey with the brand of infamy upon his brow, or be relieved at once from the obloquy the inquisitors had sought to put upon him--and more than all else, to keep the honorable roll of American Presidents unsmirched before the world, despite the action of the House.
The first vote was on the Eleventh and last Article of the Impeachment. Senators voted in alphabetical order, and each arose and stood at his desk as his name was called by the Chief Clerk. To each the Chief Justice propounded the solemn interrogatory--"Mr. Senator--, how say you--is the respondent, Andrew Johnson, President of the United States, guilty or not guilty of a high misdemeanor as charged in this Article?"
Mr. Fessenden, of Maine, was the first of Republican Senators to vote "Not Guilty." He had long been a safe and trusted leader in the Senate, and had the unquestioning confidence of his partisan colleagues, while his long experience in public life, and his great ability as a legislator, and more especially his exalted personal character, had won for him the admiration of all his associates regardless of political affiliations. Being the first of the dissenting Republicans to vote, the influence of his action was feared by the impeachers, and most strenuous efforts had been made to induce him to retract the position he had taken to vote against conviction. But being moved on this occasion, as he had always been on others, to act upon his own judgment and conviction, though foreseeing that this vote would probably end a long career of conspicuous public usefulness, there was no sign of hesitancy or weakness as he pronounced his verdict.
Mr. Fowler, of Tennessee, was the next Republican to vote "Not Guilty." He had entered the Senate but two years before, and was therefore one of the youngest Senators, with the promise of a life of political usefulness before him. Though from the same State as the President, they were at political variance, and there was but little in common between them in other respects. A radical partisan in all measures where radical action seemed to be called for, he was for the time being sitting in a judicial capacity and under an oath to do justice to the accused according to the law and the evidence. As in his judgment the evidence did not sustain the charge against the President such was his verdict.
Mr. Grimes, of Iowa, was the third anti-impeaching Republican to vote. He had for many years been a conspicuous and deservedly influential member of the Senate. For some days prior to the taking of the vote he had been stricken with what afterwards proved a fatal illness. The scene presented as he rose to his feet supported on the arms of his colleagues, was grandly heroic, and one never before witnessed in a legislative chamber. Though realizing the danger he thus incurred, and conscious of the political doom that would follow his vote, and having little sympathy with the policies pursued by the President, he had permitted himself to be borne to the Senate chamber that he might contribute to save his country from what he deemed the stain of a partisan and unsustained impeachment of its Chief Magistrate. Men often perform, in the excitement and glamour of battle, great deeds of valor and self sacrifice that live after them and link their names with the honorable history of great events, but to deliberately face at once inevitable political as well as physical death in the council hall, and in the absence of charging squadrons; and shot and shell, and of the glamor of military heroism, is to illustrate the grandest phase of human courage and devotion to convictions. That was the part performed by Mr. Grimes on that occasion. His vote of "Not Guilty" was the last, the bravest, the grandest, and the most patriotic public act of his life.
Mr. Henderson of Missouri, was the fourth Republican Senator to vote against the impeachment. A gentleman of rare industry and ability, and a careful, conscientious legislator, he had been identified with the legislation of the time and had reached a position of deserved prominence and influence. But he was learned in the law, and regardful of his position as a just and discriminating judge. Though then a young man with a brilliant future before him, he had sworn to do justice to Andrew Johnson "according to the Constitution and law," and his verdict of "Not Guilty" was given with the same deliberate emphasis that characterized all his utterances on the floor of the Senate.
Mr. Ross, of Kansas, was the fifth Republican Senator to vote "Not Guilty." Representing an intensely Radical constituency--entering the Senate but a few months after the close of a three years enlistment in the Union Army and not unnaturally imbued with the extreme partisan views and prejudices against Mr. Johnson then prevailing--his predilections were sharply against the President, and his vote was counted upon accordingly. But he had sworn to judge the defendant not by his political or personal prejudices, but by the facts elicited in the investigation. In his judgment those facts did not sustain the charge.
Mr. Trumbull, of Illinois, was the sixth Republican Senator to vote against the Impeachment. He had been many years in the Senate. In all ways a safe legislator and counsellor, he had attained a position of conspicuous usefulness. But he did not belong to the legislative autocracy which then assumed to rule the two Houses of Congress. To him the Impeachment was a question of proof of charges brought, and not of party politics or policies. He was one of the great lawyers of the body, and believed that law was the essence of justice and not an engine of wrong, or an instrumentality for the satisfaction of partisan vengeance. He had no especial friendship for Mr. Johnson, but to him the differences between the President and Congress did not comprise an impeachable offense. A profound lawyer and clear headed politician and statesman,, his known opposition naturally tended to strengthen his colleagues in that behalf.
Mr. Van Winkle, of West Virginia, was the seventh and last Republican Senator to vote against the Impeachment. Methodical and deliberate, he was not hasty in reaching the conclusion he did, but after giving the subject and the testimony most careful and thorough investigation, he was forced to the conclusion that the accusation brought by the House of Representatives had not been sustained, and had the courage of an American Senator to vote according to his conclusions.
The responses were as follows:
Guilty--Anthony, Cameron, Cattell, Cole, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morton, Morrill of Maine, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Sprague, Stewart, Sumner, Tipton, Thayer, Wade, Williams, Wilson, Willey, Yates.
Not Guilty--Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, Vickers.
Not Guilty--19. Guilty--35--one vote less than a Constitutional majority.