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.