The Trial of President Johnson
While the radical program was being executed in the South, Congress was
engaged not only in supervising reconstruction but in subduing the
Supreme Court and in "conquering" President Johnson. One must admire the
efficiency of the radical machine. When the Southerners showed that they
preferred military rule as permitted by the Act of the 2nd of March,
Congress passed the Act of the 23d of March which forced the
reconstruction. When the President ventured to assert his power in
behalf of a considerate administration of the reconstruction acts,
Congress took the power out of his hands by the law of the 19th of July.
The Southern plan to defeat the new state constitutions by abstention
was no sooner made clear in the case of Alabama than Congress came to
the rescue with the Act of March 11, 1868.
Had it seemed necessary, Congress would have handled the Supreme Court
as it did the Southerners. The opponents of radical reconstruction were
anxious to get the reconstruction laws of March, 1867, before the Court.
Chief Justice Chase was known to be opposed to military reconstruction,
and four other justices were, it was believed, doubtful of the
constitutionality of the laws. A series of conservative decisions gave
hope to those who looked to the Court for relief. The first decision, in
the case of ex parte Milligan, declared unconstitutional the trials of
civilians by military commissions when civil courts were open. A few
months later, in the cases of Cummings vs. Missouri and ex parte
Garland, the Court declared invalid, because ex post facto, the state
laws designed to punish former Confederates.
But the first attempts to get the reconstruction acts before the Supreme
Court failed. The State of Mississippi, in April, 1867, brought suit to
restrain the President from executing the reconstruction acts. The Court
refused to interfere with the Executive. A similar suit was then brought
against Secretary Stanton by Georgia with a like result. But in 1868, in
the case of ex parte McCardle, it appeared that the question of the
constitutionality of the reconstruction acts would be passed upon.
McCardle, a Mississippi editor arrested for opposition to reconstruction
and convicted by military commission, appealed to the Supreme Court,
which asserted its jurisdiction. But the radicals in alarm rushed
through Congress an act (March 27, 1868) which took away from the Court
its jurisdiction in cases arising under the reconstruction acts. The
highest court was thus silenced.
The attempt to remove the President from office was the only part of the
radical program that failed, and this by the narrowest of margins.
During the spring and summer of 1866 there was some talk among
politicians of impeaching President Johnson, and in December a
resolution was introduced by Representative Ashley of Ohio looking
toward impeachment. Though the committee charged with the investigation
of "the official conduct of Andrew Johnson" reported that enough
testimony had been taken to justify further inquiry, the House took no
action. There were no less than five attempts at impeachment during the
next year. Stevens, Butler, and others were anxious to get the President
out of the way, but the majority were as yet unwilling to impeach for
merely political reasons. There were some who thought that the radicals
had sufficient majorities to ensure all needed legislation and did not
relish the thought of Ben Wade in the presidency. ¹ Others considered
that no just grounds for action had been found in the several
investigations of Johnson's record. Besides, the President's authority
and influence had been much curtailed by the legislation relating to the
Freedmen's Bureau, tenure of office, reconstruction, and command of the
army, and Congress had also refused to recognize his amnesty and
pardoning powers.
¹ Senator Wade of Ohio was President pro tempore of the Senate and by
the act of 1791 would succeed President Johnson if he were removed from
office.
But the desire to impeach the President was increasing in power, and
very little was needed to provoke a trial of strength between the
radicals and the President. The drift toward impeachment was due in part
to the legislative reaction against the Executive, and in part to
Johnson's own opposition to reconstruction and to his use of the
patronage against the radicals. Specific grievances were found in his
vetoes of the various reconstruction bills, in his criticisms of
Congress and the radical leaders, and in the fact, as Stevens asserted,
that he was a "radical renegade." Johnson was a Southern man, an
old-line State Rights Democrat, somewhat anti-negro in feeling. He knew
no book except the Constitution, and that he loved with all his soul.
Sure of the correctness of his position, he was too stubborn to change
or to compromise. He was no more to be moved than Stevens or Sumner. To
overcome Johnson's vetoes required two-thirds of each House of Congress;
to impeach and remove him would require only a majority of the House and
two-thirds of the Senate.
The desired occasion for impeachment was furnished by Johnson's attempt
to get Edwin M. Stanton, the Secretary of War, out of the Cabinet.
Stanton held radical views and was at no time sympathetic with or loyal
to Johnson, but he loved office too well to resign along with those
cabinet members who could not follow the President in his struggle with
Congress. He was seldom frank and sincere in his dealings with the
President, and kept up an underhand correspondence with the radical
leaders, even assisting in framing some of the reconstruction
legislation which was designed to render Johnson powerless. In him the
radicals had a representative within the President's Cabinet.
Wearied of Stanton's disloyalty, Johnson asked him to resign and, upon a
refusal, suspended him in August, 1867, and placed General Grant in
temporary charge of the War Department. General Grant, Chief Justice
Chase, and Secretary McCulloch, though they all disliked Stanton,
advised the President against suspending him. But Johnson was
determined. About the same time he exercised his power in removing
Sheridan and Sickles from their commands in the South and replaced them
with Hancock and Canby. The radicals were furious, but Johnson had
secured at least the support of a loyal Cabinet.
The suspension of Stanton was reported to the Senate in December, 1867,
and on January 13, 1868, the Senate voted not to concur in the
President's action. Upon receiving notice of the vote in the Senate,
Grant at once left the War Department and Stanton again took possession.
Johnson now charged Grant with failing to keep a promise either to hold
on himself or to make it possible to appoint some one else who would
hold on until the matter might be brought into the courts. The President
by this accusation angered Grant and threw him with his great influence
into the arms of the radicals.
Against the advice of his leading counselors Johnson persisted in his
intention to keep Stanton out of the Cabinet. Accordingly on the 21st of
February he dismissed Stanton from office and appointed Lorenzo Thomas,
the Adjutant General, as acting Secretary of War. Stanton, advised by
the radicals in Congress to "stick," refused to yield possession to
Thomas and had him arrested for violation of the Tenure of Office Act.
The matter now was in the courts where Johnson wanted it, but the
radical leaders, fearing that the courts would decide against Stanton
and the reconstruction acts, had the charges against Thomas withdrawn.
Thus failed the last attempt to get the reconstruction laws before the
courts. On the 22nd of February the President sent to the Senate the
name of Thomas Ewing, General Sherman's father-in-law, as Secretary of
War, but no attention was paid to the nomination.
On February 24, 1868, the House voted, 128 to 47, to impeach the
President "of high crimes and misdemeanors in office." The Senate was
formally notified the next day and on the 4th of March the seven
managers selected by the House appeared before the Senate with the
eleven articles of impeachment. At first it seemed to the public that
the impeachment proceedings were merely the culmination of a struggle
for the control of the army. There were rumors that Johnson had plans to
use the army against Congress and against reconstruction. General Grant,
directed by Johnson to accept orders from Stanton only if he were
satisfied that they came from the President, refused to follow these
instructions. Stanton, professing to fear violence, barricaded himself
in the War Department and was furnished with a guard of soldiers by
General Grant, who from this time used his influence in favor of
impeachment. Excited by the most sensational rumors, some people even
believed a new rebellion to be imminent.
The impeachment was rushed to trial by the House managers and was not
ended until the decision was taken by the votes of the 16th and 26th of
May. The eleven articles of impeachment consisted of summaries of all
that had been charged against Johnson, except the charge that he had
been an accomplice in the murder of Lincoln. The only one which had any
real basis was the first, which asserted that he had violated the Tenure
of Office Act in trying to remove Stanton. The other articles were
merely expansions of the first or were based upon Johnson's opposition
to reconstruction or upon his speeches in criticism of Congress. Nothing
could be said about his control of the patronage, though this was one of
the unwritten charges. J. W. Schuckers, in his life of Chase, says that
the radical leaders "felt the vast importance of the presidential
patronage; many of them felt, too, that, according to the maxim that to
the victors belong the spoils, the Republican party was rightfully
entitled to the Federal patronage, and they determined to get possession
of it. There was but one method and that was by impeachment and removal
of the President."
The leading House managers were Stevens, Butler, Bingham, and Boutwell,
all better known as politicians than as lawyers. The President was
represented by an abler legal array: Curtis, Evarts, Stanbery, Nelson,
and Groesbeck. Jeremiah Black was at first one of the counsel for the
President but withdrew under conditions not entirely creditable to
himself.
The trial was a one-sided affair. The President's counsel were refused
more than six days for the preparation of the case. Chief Justice Chase,
who presided over the trial, insisted upon regarding the Senate as a
judicial and not a political body, and he accordingly ruled that only
legal evidence should be admitted; but the Senate majority preferred to
assume that they were settling a political question. Much evidence
favorable to the President was excluded, but everything else was
admitted. As the trial went on the country began to understand that the
impeachment was a mistake. Few people wanted to see Senator Wade made
President. The partisan attitude of the Senate majority and the weakness
of the case against Johnson had much to do in moderating public opinion,
and the timely nomination of General Schofield as Secretary of War after
Stanton's resignation reassured those who feared that the army might be
placed under some extreme Democrat.
As the time drew near for the decision, every possible pressure was
brought by the radicals to induce senators to vote for conviction. To
convict the President, thirty-six votes were necessary. There were only
twelve Democrats in the Senate, but all were known to be in favor of
acquittal. When the test came on the 16th of May, seven Republicans
voted with the Democrats for acquittal on the eleventh article. Another
vote on the 26th of May, on the first and second articles, showed that
conviction was not possible. The radical legislative reaction was thus
checked at its highest point and the presidency as a part of the
American governmental system was no longer in danger. The seven
Republicans had, however, signed their own political death warrants;
they were never forgiven by the party leaders.
The presidential campaign was beginning to take shape even before the
impeachment trial began. Both the Democrats and the reorganized
Republicans were turning with longing toward General Grant as a
candidate. Though he had always been a Democrat, nevertheless when
Johnson actually called him a liar and a promise breaker Grant went over
to the radicals and was nominated for President on May 20, 1868, by the
National Union Republican party. Schuyler Colfax was the candidate for
Vice President. The Democrats, who could have won with Grant and who
under good leadership still had a bare chance to win, nominated Horatio
Seymour of New York and Francis P. Blair of Missouri. The former had
served as war governor of New York, while the latter was considered an
extreme Democrat who believed that the radical reconstruction of the
South should be stopped, the troops withdrawn, and the people left to
form their own governments. The Democratic platform pronounced itself
opposed to the reconstruction policy, but Blair's opposition was too
extreme for the North. Seymour, more moderate and a skillful campaigner,
made headway in the rehabilitation of the Democratic party. The
Republican party declared for radical reconstruction and negro suffrage
in the South but held that each Northern State should be allowed to
settle the suffrage for itself. It was not a courageous platform, but
Grant was popular and carried his party through to success.
The returns showed that in the election Grant had carried twenty-six
States with 214 electoral votes, while Seymour had carried only eight
States with 80 votes. But an examination of the popular vote, which was
3,000,000 for Grant and 2,700,000 for Seymour, gave the radicals cause
for alarm, for it showed that the Democrats had more white votes than
the Republicans, whose total included nearly 700,000 blacks. To insure
the continuance of the radicals in power, the Fifteenth Amendment was
framed and sent out to the States on February 26, 1869. This amendment
appeared not only to make safe the negro majorities in the South but
also gave the ballot to the negroes in a score of Northern States and
thus assured, for a time at least, 900,000 negro voters for the
Republican party.
When Johnson's term ended and he gave place to President Grant, four
States were still unreconstructed--Virginia, Texas, and Mississippi, in
which the reconstruction had failed, and Georgia, which, after
accomplishing reconstruction, had again been placed under military rule
by Congress. In Virginia, which was too near the capital for such rough
work as readmitted Arkansas and Alabama into the Union, the new
constitution was so severe in its provisions for disfranchisement that
the disgusted district commander would not authorize the expenditure
necessary to have it voted on. In Mississippi a similar constitution had
failed of adoption, and in Texas the strife of party factions, radical
and moderate Republican, had so delayed the framing of the constitution
that it had not come to a vote.
The Republican politicians, however, wanted the offices in these States,
and Congress by its resolution of February 18, 1869 directed the
district commanders to remove all civil officers who could not take the
"ironclad" oath and to appoint those who could subscribe to it. An
exception, however, was made in favor of the scalawags who had supported
reconstruction and whose disabilities had been removed by Congress.
President Grant was anxious to complete the reconstruction and
recommended to Congress that the constitutions of Virginia and
Mississippi be re-submitted to the people with a separate vote on the
disfranchising sections. Congress, now in harmony with the Executive,
responded by placing the reconstruction of the three States in the hands
of the President, but with the proviso that each State must ratify the
Fifteenth Amendment. Grant thereupon fixed a time for voting in each
State and directed that in Virginia and Mississippi the disfranchising
clauses be submitted separately. As a result, the constitutions were
ratified but proscription was voted down. The radicals secured control
of Mississippi and Texas, but a conservative combination carried
Virginia and thus came near keeping the State out of the Union. Finally,
during the early months of 1870 the three States were readmitted.
With respect to Georgia a peculiar condition of affairs existed. In
June, 1868, Georgia had been readmitted with the first of the
reconstructed States. The state legislature at once expelled the
twenty-seven negro members, on the ground that the recent legislation
and the state constitution gave the negroes the right to vote but not to
hold office. Congress, which had already admitted the Georgia
representatives, refused to receive the senators and turned the State
back to military control. In 1869-70 Georgia was again reconstructed
after a drastic purging of the Legislature by the military commander,
the reseating of the negro members, and the ratification of both the
Fourteenth and Fifteenth Amendments. The State was readmitted to
representation in July, 1870, after the failure of a strong effort to
extend for two years the carpetbag government of the State.
Upon the last States to pass under the radical yoke heavier conditions
were imposed than upon the earlier ones. Not only were they required to
ratify the Fifteenth Amendment, but the "fundamental conditions"
embraced, in addition to the prohibition against future change of the
suffrage, a requirement that the negroes should never be deprived of
school and officeholding rights.
The congressional plan of reconstruction had thus been carried through
by able leaders in the face of the opposition of a united white South,
nearly half the North, the President, the Supreme Court, and in the
beginning a majority of Congress. This success was due to the poor
leadership of the conservatives and to the ability and solidarity of the
radicals led by Stevens and Sumner. The radicals had a definite program;
the moderates had not. The object of the radicals was to secure the
supremacy in the South by the aid of the negroes and exclusion of
whites. Was this policy politically wise? It was at least temporarily
successful. The choice offered by the radicals seemed to lie between
military rule for an indefinite period and negro suffrage; and since
most Americans found military rule distasteful, they preferred to try
negro suffrage. But, after all, negro suffrage had to be supported by
military rule, and in the end both failed completely.