Twenty Years of Congress, Volume 2 / From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860

by James Gillespie Blaine

The great trial was over, and the President retained his high office. In the ranks of the more radical portion of the Republican party there was an outbreak of indignation against the Republican senators who had voted "Not guilty." In the exaggerated denunciations caused by the anger and chagrin of the moment, great injustice was done to statesmen of spotless character. But until time had been given for reflection on the part of the excited mass of disappointed men, it was idle to interpose a word in defense, much less in justification, of the senators who had conscientiously differed from the main body of their political associates. While, however, the majority of Republicans shared in the chagrin caused by the defeat of Impeachment, a large and increasing number of the cool-headed and more conservative members of the party rejoiced at the result as a fortunate exit from an indefensible position, which had been taken in the heat of just resentment against the President for his desertion of those important principles of public policy to which he had been solemnly pledged. Still another class, even more numerous than the last-named, took a less conscientious but more sanguine view of the situation—rejoicing both in the act of Impeachment and in the failure to convict. Their specious belief was that the narrow escape which the President had made would frighten him out of all mischievous designs for the remainder of his term; while the narrow escape which the party had made, left to it in the impending Presidential contest all the advantage of a political power so firmly held by Congress, and at the same time imposed upon the Democrats the responsibility for a discredited and disgraced Administration of the Government.

The sober reflection of later years has persuaded many who favored Impeachment that it was not justifiable on the charges made, and that its success would have resulted in greater injury to free institutions than Andrew Johnson in his utmost endeavor was able to inflict. No impartial reader can examine the record of the pleadings and arguments of the Managers who appeared on behalf of the House, without feeling that the President was impeached for one series of misdemeanors, and tried for another series. This was perhaps not unnatural. The Republicans had the gravest cause to complain of the President's course on public affairs. He had professed the most radical creed of their party, had sought their confidence, had received their suffrages. Entrusted with the chief Executive power of the Nation by Republican ballots, he professed upon his accession to office the most entire devotion to the principles of the party; but he had, with a baseness hardly to be exaggerated, repudiated his professions, deserted the friends who had confided in him, and made an alliance with those who had been the bitterest foes of the Union in the bloody struggle which had just closed.

In the outraged and resentful minds of those who had sustained the Union cause through its trials, the real offenses of the President were clearly seen, and bitterly denounced:—his hostility to the Fourteenth Amendment; his unwillingness to make citizenship National; his opposition to all efforts to secure the safety of the public debt, and the sacredness of the soldier's pension; his resistance to measures that would put the rebel debt beyond the possibility of being a burden upon the whole nation or even upon the people of the Southern States; his determination that freedmen should not be placed within the protection of Organic law; his eagerness to turn the Southern States over to the control of the rebel element, without condition and without restraint; his fixed hostility to every form of reconstruction that looked to national safety and the prevention of another rebellion; his opposition to every scheme that tended to equalize representation in Congress, North and South, and his persistent demand that the negro should be denied suffrage, yet be counted in the basis of apportionment; his treacherous and malignant conduct in connection with the atrocious massacre at New Orleans; his hostility to the growth of free States in the North-West, while he was constantly urging the instant re-admission of all the rebel States; his denial of a morsel of food to the suffering and starving negro and white Unionist of the South in their dire extremity, as shown by his veto of the Freedmen's-bureau Bill; his cruel attempt to exclude the colored man from the power to protect himself by law, in his shameless veto of the Civil Rights Bill; and last, and worst of all, his heartless abandonment of that Union-loving class of white men in the South who became the victims of rebel hatred, from which he had himself escaped only by the strength of the National arms. In recounting all the acts which made up the roll of his political dishonor, Johnson had, in Republican opinion, committed none so hideous as his turning over the Southern Unionists to the vengeance of those who, as he well knew, were incapable of dealing with them in a spirit of justice, and who were unwilling to show mercy, even after they had themselves received it in quality that was not strained.

Could the President have been legally and constitutionally impeached for these offenses he should not have been allowed to hold his office for an hour beyond the time required for a fair trial. But the Articles of Impeachment did not even refer to any charge of this kind, and a stranger to our history, in perusing them, could not possibly infer that behind the legal verbiage of the Articles there was in the minds of the representatives who presented them a deadly hostility to the President for offenses totally different from the technical violation of a statue, for which he was arraigned,—a statute that never ought to have been enacted, as was practically confessed by its framers, when, within less than a year after the Impeachment trial had closed, they modified its provisions by taking away their most offensive features.

The charges on which the House actually arraigned the President were in substance, that he had violated the Tenure-of-office Act; that he had conspired with Lorenzo Thomas to violate it; that he had consulted with General Emory to see whether, independent of the General-in-Chief, he could not issue orders to the army to aid him in his determination to violate it; and lastly, that he had spoken of Congress in such a manner as tended to bring a co-ordinate branch of the Government into "disgrace, ridicule, hatred, contempt, and reproach." The charge of conspiring with Lorenzo Thomas, as well as that in respect to General Emory, appeared in the end to be not only unsustained, but trivial. The President had conspired in precisely the same way with General Sherman when he urged him to accept the post of Secretary of War as Mr. Stanton's successor. The charge that he had attempted to bring Congress into "disgrace, ridicule, hatred, contempt, and reproach," was laughingly answered in popular opinion, by the fact that he not been able to say half so many bitter things about Congress as Congress had said about him; and that, as the elections had shown, Congress had triumphed, and turned the popular contempt and ridicule against the President. Besides, the offense charged against the President had been committed nearly two years before, and seemed to be recalled now for popular effect in the construction of the Articles of Impeachment. This charge richly deserved the satire it received at the hands of Judge Curtis when he spoke of "the House of Representatives erecting itself into a school of manners, and desiring the judgment of the Senate whether the President has not been guilty of an indecorum; whether he has spoken properly?" . . . "Considering the nature of our government," said Judge Curtis, "and the experience we have had on this subject, that is a pretty lofty claim!"

In fact there was but one charge of any gravity against the President —that of violating the Tenure-of-office Act. But on the charge there was a very grave difference of opinion among those equally competent to decide. Mr. Fessenden, one of the ablest lawyers, if not indeed the very ablest that has sat in the Senate since Mr. Webster, believed on his oath and his honor—an oath that was sacred and an honor that was stainless—that the President had a lawful and Constitutional right to remove Mr. Stanton at the time and in the manner he did. Mr. Trumbull, whose legal ability had been attested by his assignment to the chairmanship of the Judiciary Committee, believed with Mr. Fessenden, as did Mr. Grimes of Iowa, one of the strongest members of the Senate, and Mr. Henderson of Missouri, whose legal attainments have since given him a high professional reputation. Let it be frankly admitted that lawyers of equal rank conscientiously believed in the President's guilt. This only proves that there was ground for a substantial and fundamental difference of opinion, and that it could not therefore with certainty be charged that the President, "unmindful of the high duties of his office, did this act in violation of the Constitution of the United States." This was the very question in dispute,—the question in regard to which lawyers of eminent learning and impartial mind, members of the Republican party and zealous opponents of the President's policy, radically differed in judgment. Opinions of distinguished lawyers on the Democratic side of the Senate, like Reverdy Johnson, are not quoted, because partisan motives would be ascribed to their conclusions.

Perhaps the best test as to whether the act of the President in removing Mr. Stanton was good ground for impeachment, would be found in asking any candid man if he believes a precisely similar act by Mr. Lincoln, or General Grant, or any other President in harmony with his party in Congress, would have been followed by impeachment, or by censure, or even by dissent. It is hardly conceivable, nay, it is impossible, that under such circumstances the slightest notice would be taken of the President's action by either branch of Congress. If there was a difference of opinion as to the intent and meaning of a law, the general judgment in the case supposed would be that the President had the right to act upon his own conscientious construction of the statute. It might not be altogether safe to concede to the Executive the broad scope of discretion which General Jackson arrogated to himself in his celebrated veto of the Bank Bill, when he declared that "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others." But without approving the extreme doctrine which General Jackson announced with the applause of his party, it is surely not an unreasonable assumption that in the case of a statute which has had no judicial interpretation and whose meaning is not altogether clear, the President is not to be impeached for acting upon his own understanding of its scope and intent:—especially is he not to be impeached when he offers to prove that he was sustained in his opinion by every member of his Cabinet, and offers further to prove by the same honorable witnesses that he took the step in order to subject the statute in dispute to judicial interpretation.

It is to be noted that in the progress of the trial the Managers on the part of the House and the counsel of the President proceeded upon entirely different ground as to what constituted an offense punishable with impeachment. General Butler, who opened the case against the President with circumspection and ability, took care to exclude the idea that actual crime on the part of the officer was essential to justify impeachment. Speaking for all the Managers he said, "We define an impeachable high crime or misdemeanor to be one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest; and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted; or, without violating a positive law, by the abuse of discretionary powers from improper motives or for any improper purpose." This of course would give great latitude in proceedings against the President. It would challenge his discretion, erect sins of omission into positive offenses, and make inquest of his motives and purposes. There has not been an occupant of the Executive Chair since the organization of the Government, who did not at some period in his career commit an act which in the judgment of his political opponents was "highly prejudicial to the public interest," and therefore if his opponents should happen to be in the majority they might impeach him, simply for disagreement upon an issue of expediency upon which men equally competent to judge might reasonable and conscientiously hold different opinions. This was in effect the same position assumed by Mr. Thaddeus Stevens, that "in order to sustain impeachment under the Constitution it is not necessary to prove a crime as an indictable offense, or any act malum in se. It is a purely political proceeding." The counsel for the President dissented altogether from this definition of the grounds of Impeachment as given by the Managers. Judge Curtis declared that "when the Constitution speaks of treason, bribery, and other high crimes and misdemeanors, it refers to and includes only high criminal offenses against the United states, made so by some law of the United States existing when the acts complained of were done. . . . Noscitur a sociis. High crimes and misdemeanors! so high that they belong in this company with treason and bribery." The position of Judge Curtis was fortified by the fact that in the five cases of Impeachment trial before the President was accused—the cases of Blount, of Pickering, of Chase, of Peck, and of Humphries—the charges preferred by the House involved criminality.

Outside of professional opinion there was supposed to be a popular demand, so far as the Republican party represented the people, for the President's conviction—a demand found to be based, when analyzed, upon other acts of the President than those for which he was arraigned in the Articles of Impeachment. The people in this respect followed precisely in the line of their Representatives. It was certainly not a praiseworthy procedure that this supposed popular wish should have been mentioned at all as an argument for conviction. The most dignified of the many comments which this feature of the trial elicited was by Senator Fessenden, in the official opinion which accompanied his vote:—"To the suggestion that popular opinion demands the conviction of the President on these charges, I reply that he is not now on trial before the people, but before the Senate. In the words of Lord Eldon, upon the trial of the Queen, 'I take no notice of what is passing out of doors, because I am supposed constitutionally not to be acquainted with it. . . . It is the duty of those upon whom a judicial task is imposed to meet reproach, and not to court popularity.' . . . The people have not taken an oath to do impartial justice according to the Constitution and the law. I have taken that oath."

The trial of President Johnson is the most memorable attempt made by any English-speaking people to depose a sovereign ruler in strict accordance with all forms of law. The order, dignity and solemnity which marked the proceedings may therefore be realized with pride by every American citizen. From the beginning to the end there was no popular menace, or even suggestion of disturbance or violence, let the trial end as it might. If the President had been convicted he would have quietly retired from the Executive Mansion and Benjamin F. Wade, President of the Senate, sworn by the Chief Justice in the presence of the two Houses of Congress, would have assumed the power and performed the duties of Chief Magistrate of the Nation. During the original agitation of Impeachment in the House of Representatives some imprudent expressions had been made by hot-headed partisans, in regard to the right of the President to disperse Congress and appeal directly to the people to vindicate his title to his office. But these declarations were of no weight and their authors would have promptly retracted them in the hour of danger.