The Life of Lyman Trumbull

by Horace White

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 multitudes then assembled." 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 mélange 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 unconstitutional; 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 Constitution 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 "multitudinous 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 scrap 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 classes 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 unconstitutional 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 classed 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]