The defeat of the Eleventh Article was the second official set-back to the Impeachment movement—the first being the practical abandonment of the First Article by the change in the order of voting.
The vote had been taken on what its friends seemed to consider its strongest proposition; the Eleventh Article having been so framed as to group the substance, practically, of all the pending ten Articles. The impeachers had staked their cause upon that Article, and lost. They seemed not to have contemplated the possibility of its defeat. So confident were they of its success, in which event it would be immaterial what became of the other Articles, that they apparently had agreed upon no order of procedure after that should have been defeated. They were in the condition of a flock of game into which the sportsman had fired a shot and broken its ranks. They were dazed, and for a moment seemed not to know what next to do, or which way to turn. They did not dare now go back to the fated First Article, according to the program agreed upon, as Mr. Sherman and Mr. Howe had demonstrated its weakness, and they were fearful of going to the Second or Third, as in the then temper of the anti-impeachers it was manifest there would be little hope for either of them, and the other eight had been already beaten without a vote, at the conference previously held, and by Republican commitals.
The Chief Justice ordered the reading of the First Article, according to the order agreed upon, but before that could begin, apparently to gain time for recovery, Mr. Williams moved that the Senate take a recess of fifteen minutes, but the motion was not agreed to.
The Chief Justice again ordered the reading of the First Article, but again, before the clerk could begin the reading, Mr. Williams intervened to move an adjournment to Tuesday, the 26th day of the month.
After numerous conflicting motions relating to the date of the proposed reassembling, and several roll calls thereon, the anti-impeachers generally insisting on proceeding at once to vote on the other articles of impeachment, the motion of Mr. Williams to adjourn to June 26th, prevailed.
Of course the purpose, and the only purpose then apparent, of that adjournment, was to gain time, apparently in the hope of more favorable developments in the next ten days.
The supposably strongest count of the indictment having been beaten, it was apparent that it would be folly to hazard a vote on any other at that time. There was a possibility that changes might occur in the personnel of the Senate in the interim. As but one article had been put to vote, and as that was beaten by the lack of a single vote, there seemed a further possibility that influences could be brought to bear, through the industry of the House, as was very soon after developed, to secure the support of an anti-impeaching Senator on at least one of the articles of impeachment yet to be voted upon. A vacancy in the ranks of the anti-impeaching Republicans to be filled by an impeaching appointee might happen. Many contingencies were possible during the next ten days for a reversal of the action of the Senate just had. At all events, everything would be hazarded by permitting further immediate action, while the situation could be rendered no worse by delay, and time and other mollifying conditions and influences might bring changes more promising of success.
The anti-impeachment Republicans had not long to wait for the development of the purpose of the recess, at least so far its supporters in the House were concerned. Immediately upon the adjournment of the Senate, the House re-assembled, and the following proceeding was had:
Mr. Bingham: I have been directed by the Managers on the part of the House of Representatives, in the matter of the Impeachment of Andrew Johnson, to report the following preamble and resolutions for consideration at this time:
Whereas, information has come to the Managers which seems to them to furnish probable cause to believe that improper or corrupt means have been used to influence the determination of the Senate upon the Articles of Impeachment submitted to the Senate by the House of Representatives against the President of the United States; therefore.
Be it Resolved, That for the further and more efficient prosecution of the Impeachment of the President, the Managers be directed and instructed to summon and examine witnesses under oath, to send for persons and papers, and employ a stenographer, and appoint sub-committee to take testimony; the expense thereof to be paid from the Contingent Fund of the House.
This resolution was immediately and without debate adopted by a vote of 88 to 14. It would be stating it mildly to say that the House was in a tumult. The Republican leaders were wild with rage. They had selected for the first vote what they deemed the strongest point in their indictment, and lost; and their vengeance now turned upon those Republican Senators who had failed to support them. Hence the adjournment of the Senate for ten days to afford them time to discipline the recusants and force an additional vote for conviction on the next ballot.
The conspicuous indelicacy of this move was two-fold: 1st, in that the House proposed to investigate the action of a co-ordinate branch of Congress: and 2nd, that the trial not being concluded, it had to a pointed degree the appearance of an attempt to intimidate Senators who had voted against conviction into changing their votes at the next ballot in fear of an inquisition for alleged corruption. In that sense it was an act of intimidation—a warning. It was an ill-disguised threat and a most unseemly proceeding—yet there was not one among the supporters of the Impeachment to condemn it, and few who failed openly to justify it. Partisan rancor and personal and political hostility to the President had reached a point that condoned this indelicacy of the House towards the Senate, and justified the public assault upon the dissenting Republican Senators, and the insult to the Senate itself.
The demand for adjournment and delay seemed to have been understood by the impeaching majority of the Senate, and was of course promptly granted and further voting postponed, and the Senate adjourned to May 26th.
The next ten day were days of unrest—of anxiety to all who were involved or in any way interested in the impeachment proceeding. While the result of the 16th gave hope and comfort to the opponents of impeachment, it caused little or no perceptible discouragement to its more radical friends. They were more active and persistent than ever. The footsteps of the anti-impeaching Republicans were dogged from the day's beginning to its end and far into the night, with entreaties, considerations and threats, in the hope of securing a reversal of the result of the 16th. The partisan press of the States represented by the anti-impeaching Republicans came daily filled with vigorous animadversions upon their action, and not a few threats of violence upon their return to their constituents. But it was in vain.
The Senate reassembled on the 26th of May to complete the vote on the articles of impeachment. After the usual preliminary proceedings, Mr. Williams moved to begin the voting on the Second Article, which was had with the same result as on the 11th—and then the Third, and still with the same result. It then became manifest that it was useless to go farther, as all the balance had been rendered certain of defeat, and by still more decisive votes—a considerable number of those so far voting for impeachment having committed themselves in the previous conference against all the balance. So, to save themselves from being forced to vote against impeachment on any of the articles, there was a unanimous vote of the impeachers to abandon the case and adjourn—and with it went glimmering the visions of office, and spoils, and the riotous assaults on the public treasury that had for months been organizing for the day when Mr. Johnson should be put out and Mr. Wade put in, with the political board clear for a NEW DEAL.
An analysis of the Eleventh, Article shows that it comprised four distinct counts, or accusations.
First—That Mr. Johnson had said that the Thirty-Ninth Congress was not a Congress of the United States, but a Congress of only part of the States, and therefore had no power to propose amendments the Constitution.
The latter clause of this accusation was the only portion of the first count that received any consideration during the trial, and the only testimony brought in its support was the Parsons-Johnson telegraphic correspondence set out in Interrogatory No. 5.
In that dispatch, referring to then pending Constitutional amendment (the 14th) Mr. Johnson referred to Congress as "a set of individuals." Mr. Manager Boutwell declared this expression to be "the gist of the offense of this particular telegraphic dispatch."
Counsel for defense objected to this testimony, but it was received by a vote of yeas twenty-seven, nays seventeen.
As the Fourteenth Amendment was not declared adopted or a part of the Constitution for more than a year after the transmission of that dispatch, and as the Constitution of the United States prohibits any abridgment of the freedom of speech, and as this remark was unaccompanied by any act in violation of law, it is difficult to see how it could be construed into an impeachable offense. Moreover, saying nothing of the good taste or propriety of that dispatch, Mr. Johnson was opposed to the proposed amendment, and had the same right to oppose it, or to characterize it or the members of Congress favoring it, as had any private citizen, or as had the members of Congress to characterize his action in the premises, without being called to account therefor.
The second count of that article was:
Violation of the Tenure-of-Office Act of March 2nd, 1867, in seeking to prevent the resumption by Mr. Stanton of the office of Secretary of War.
This clause had been very effectually disposed of by Messrs. Sherman and Howe several days before the vote was taken on the Eleventh Article, when they pointed out the fact that the language cage of the first section of the Tenure-of-Office Act clearly excepted, and was intended by the Senate, to except Mr. Stanton and all other persons then in Mr. Johnson's Cabinet who had been originally appointed by Mr. Lincoln and were still holding over under Mr. Johnson without having been recommissioned by him; and that Mr. Johnson had therefore the legal right and power to remove them at his pleasure.
And so convincing had been the argument of those gentlemen at that time, that there was unanimous consent on the pro-impeachment side of the Senate, on two different occasions, to set aside the First Article, of which the alleged unlawful attempt to remove Mr. Stanton was practically the principal accusation. Not illogically, that unanimous consent to abandon the First article by thus setting it aside, and afterwards refusing to put it to a vote, may be said to have been equivalent to a vote of its insufficiency.
It is pertinent to suggest here that the President believed the Tenure-of-Office Act to be unconstitutional, as it was clearly an attempted abridgment of his power over his Cabinet which had never before been questioned by Congress. The only method left him for the determination of that question was in the course he took, except by an agreed case, but it is manifest from the record that no such agreement could be had, as an effort thereto was made in the Thomas case in the District Court, but failed, the prosecution withdrawing the case at the point where that purpose of the President became manifest.
The third count was:
Attempting to prevent the execution of the Army appropriation Act of March 2nd, 1867.
The means specified in this alleged attempt was the appointment of Mr. Edward Cooper to be Assistant Secretary of the Treasury, with power to draw warrants on the Treasury without the consent of the Secretary—the purpose being to show that, with General Thomas acting as Secretary of War, and Mr. Cooper as Assistant Secretary of the Treasury to honor General Thomas' drafts, and thus, in control of expenditures for the support of the Army, a conspiracy was sought to be proven whereby the President intended and expected to defeat the Reconstruction Acts of Congress by preventing the use of the Army for its enforcement.
Mr. Johnson, of the Court, asked this question:
The Managers are requested to say whether they propose to show whether Mr. Cooper was appointed by the President in November, 1867, as a means to obtain unlawful possession of the public money, other than by the fact of the appointment itself?
Mr. Manager Butler answered:
We certainly do.
Mr. Butler read the law on this subject, passed March 2nd, 1867, as follows:
That the Secretary of the Treasury shall have power, by appointment under his hand and official seal, to delegate to one of the Assistant Secretaries of the Treasury authority to sign in his stead all warrants for the payment of money into the public Treasury and all warrants for the disbursments from the public Treasury of money certified by the accounting officers of the Treasury to be due upon accounts duly audited and settle by them; and such warrants signed shall be in all cases of the same validity as if they had been signed by the Secretary of the Treasury himself.
Mr. William E. Chandler, who had been Assistant Secretary of the Treasury, was on the witness stand, called by the prosecution. Mr. Butler asked whether it was the practice of the Assistant Secretary to act as Secretary in case of removal of the Secretary.
Answer: I am not certain that it is, without his appointment as Acting Secretary by the President.
Mr. Fessenden, of the Court, propounded this interrogatory?
1st—Has it been the practice, since the passage of the law, for an Assistant Secretary to sign warrants unless especially appointed and authorized by the Secretary of the Treasury?
2nd—Has any Assistant Secretary been authorized to sign any warrants except such as are specified in the Act?
The witness answered as to the first:
It has not been the practice for any Assistant Secretary since the passage of the Act to sign warrants except upon an appointment by the Secretary for that purpose in accordance with the provisions of the Act. Immediately upon the passage of the Act, the Secretary authorized one of his Assistant Secretaries to sign warrants of the character described in the Act, and they have been customarily signed by that Assistant Secretary in all cases since that time.
As to the second question the answer was:
No Assistant Secretary has been authorized to sign warrants except such as are specified in this Act, unless when acting as Secretary.
That disposed of the third count in the Eleventh Article, and the testimony was rejected by a vote of yeas 22, nays 27.
These answers to tire interrogatories seemed to prove the reverse of what the Prosecution had expected. The accusation of the Third count was not sustained.
As to the Fourth count of the Eleventh Article, that Mr. Johnson sought to prevent the execution of the "Act to provide for the more efficient government of the rebel States," passed March 2nd, 1867, by the removal of Mr. Stanton from the War Office, the proceedings of the trial disclose no testimony of a sufficiently direct character for specification, except, possibly, a number of speeches delivered at different points by Mr. Johnson, which are set out in the Tenth Article of the Impeachment. As that Article was by unanimous consent abandoned and never put to vote, all its allegations logically fell as unproven.
There was, therefore, no force and little coherency in the Eleventh Article. It fell of its own weight. Every one of its several averments had been disproven, or at least not proven. It was to a good degree a summing up—an aggregation, of the entire bill of indictment on the several distinct forms of offenses charged—a crystallization of the whole.
The entire impeachment scheme was in reality beaten by the vote on that Article, and the adjournment of ten days then taken could have been only in the hope on the part of the majority that ultimate success on some one of the remaining Articles could be made possible, in some way, legitimate or otherwise, in part by the importunate throng of visitors to the Capitol who were vociferously and vindictively urging Mr. Johnson's removal largely for reasons personal to themselves—but more especially through the efforts of the House of Representatives to discipline one or more of the anti-impeaching Republicans of the Senate.
The allegation of the Second Article, put to vote on the 26th, and beaten by the same vote as was the Eleventh, was a corollary of the First-violation of the Tenure-of-Office Act in the appointment of General Thomas as Secretary of War ad interim, WITHOUT THE ADVICE AND CONSENT OF THE SENATE. This was the first declaration ever made in the Senate that an ad interim or merely temporary appointment to fill a vacancy, required confirmation by that body. The power to make such an appointment is so clearly possessed by the President without consultation of the Senate-had been so uniformly exercised by every preceding President without question, that argument on that point would be superfluous.
In reality the essence of the Second Article, as of the First, was the removal of Mr. Stanton. If the President could remove him without the consent of the Senate, which was clearly established in the debate in the conference by Messrs. Sherman and Howe, the way was clear for the appointment of an act interim Secretary, to the end that the office be filled until such time as the President would be prepared to refill the place with a Secretary on consultation with the Senate. That was the very thing he attempted to do on the 22nd of February, the day after Mr. Stanton's removal, when he sent to the Senate the nomination of Thomas Ewing, Senior, to be Secretary of War, for the action of that body.
The Third Article was so closely analagous to the Second, that an analysis of it would be in the nature of repetition. If there were any distinctions between them, they were so finely drawn that they amounted simply to a distinction without a difference—a characteristic, indeed, of a large part of the eleven Articles of Impeachment—a characteristic so conspicuous that it was not deemed worth while by the majority to go further in their submission to the Court.
These three Articles—the Second, Third and Eleventh—being the only Articles of the entire list of eleven put to a vote, and having been taken up and passed upon out of their numerical but in the order of their supposed availability—must therefore be regarded as confessedly the strongest and most likely of the entire list to command the support of the Senate. They were selected and set out for the test. That selection was equivalent to saying, "we put the Impeachment cause to test on these three Articles. If they fail, we have nothing more to offer."
They were put to test and failed. They failed because of their innate weakness. Failed because they proved nothing. Failed because not a single allegation of the entire indictment was or could be proven or tortured into all impeachable offense. Not a remark made by the President or an act performed in all the long and bitter controversy that had subsisted between himself and Congress could be brought nearer to the impeachment mark, in fact, few if any of them so near, as had been the every day rule in the House of Representatives during the previous two years in their treatment of the President. Yet nobody thought of impeaching members of the House for their every day personal vituperations against him.
Bill after bill had been offered in Congress, and law after law enacted, with apparently the sole purpose of hampering the Constitutional authority apparently functions of the President—even the assumption of Executive powers and judicial functions by Congress—the not remote purpose of which seemed to be his entrapment into some measure of resistance upon which could be based an indictment. The House seemed to be literally "lying in wait" for him, with traps set on every side for his ensnarement.
At last, after two years of this sort of scheming and impatient and anxious waiting, the opportunity seemed to have offered in the alleged violation of the Tenure-of-Office Act. The fosterers of the impeachment crusade, weary with their long vigil and growing desperate with every additional day's delay, clutched at the new turn of affairs like a drowning man at a floating straw, and with the avidity of a starved gudgeon at a painted fly.
It was not strange that this sort of diplomacy, developed and exposed as it was in the Senate, in spite of the unfair and partisan maneuvering of the prosecution to prevent it, should have reacted, and contributed to turn against the impeachment movement gentlemen who entered upon the investigation under oath to give Mr. Johnson a fair, non-partisan trial. The only surprise was that, after the exposure of the malignant partisan spirit that sat in judgment upon Mr. Johnson, and the utter and absolute failure to prove any violation of law on his part, but on the contrary, a determination to preserve from infringement the functions of his office and prevent a revolution from fundamental political forms by the absorption of the Executive authority by the legislative branch of the government—that even a majority, and more especially, that nearly two-thirds of the Senate, could have been found at the close in support of the Impeachment.
This record will serve to explain the omission to vote on the First Article—Messrs. Sherman and Howe being precluded from supporting it in consequence of the position taken by them in the controversy between the two Houses of Congress over the first section of the Tenure-of-Office Bill while that bill was pending, and to avoid defeat on the first vote taken, which was inevitable on that Article—and also to explain, so far as any explanation is possible, the zig-zag method of conducting the ballot—skipping all the first ten Articles and going down to the bottom of the list for the first vote, with the promise of then going back to the first Article and continuing to the end, but instead, skipping that for the second time, and starting in again on the Second and then the Third.
Of course, the natural effect of this battle-dore and shuttle-cock method of treating so grave a matter as an impeachment of the President of the United States, added to the effect of the manifest unfairness of the majority in their treatment of testimony offered in the President's defense—was to disgust some who doubtless entered upon the trial honestly inclined to vote for Andrew Johnson's impeachment, but wanted it done fairly and openly, without any suppression of pertinent testimony or juggling for a verdict—and amusing to others, who viewed it as proof of weakness in the indictment, and of misgiving as to the result on the part of its supporters.
To still others it was more than that. It was not only an indication of weakness, but of a determination to take every possible advantage, fair and unfair, to save votes for conviction. The impeachers not unnaturally feared the effect of the defeat of the First Article by the nay votes of Messrs. Sherman and Howe, and probably other Republicans, which was certain to follow the submission of that Article to a vote. Its only allegation was the unlawful removal of Mr. Stanton from the office of Secretary of War in violation of the Tenure-of-Office Act. That alleged offense was repeated in varied but more or less specific forms, in every succeeding Article of the Impeachment except the Tenth, and constituted the sum and substance—the gravamen—of the entire indictment. It was the basis upon which the impeachment super-structure had been erected. Without that Article there was not only no foundation, but no coherence in the recital of Mr. Johnson's alleged offenses, and when that fell by its abandonment, the entire impeachment scheme fell with it—as, if there were nothing in the First Article on which to hang an impeachment, there could be nothing in those that followed and were but an amplification—a mere exploitation—of the First.
In substantiation of this view of the First Article, the declaration of Mr. Boutwell to that effect is here inserted. Mr. Boutwell was chairman of the committee of the House appointed to prepare the Articles of Impeachment upon which Mr. Johnson was tried. On his report of these Articles to the House he said, after speaking particularly of the Tenth Article:
The other Articles are based upon facts which are of public knowledge, growing out of the attempt of the President to remove Secretary Stanton from the office of Secretary for the Department of War.
That is, that the basis of the entire accusation was the alleged violation of the Tenure-of-Office Act in the removal of Mr. Stanton, as recited in the First Article.
So, after taking the vote on the Second and Third Articles and their defeat by the same vote as that on the Eleventh, it became manifest that further effort to the impeachment of the president on any of the remaining eight Articles would be useless, and Mr. Williams moved that the Senate, sitting as a Court of Impeachment, adjourn sine die, which motion was carried by the following vote:
Yeas—Anthony, Cameron, Cattell, Chandler, Cole, Conkling Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsay, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Van Winkle, Wade. Willey, Williams, Wilson, Yates—34.
Nays—Bayard, Buckalew, Davis, Dixon, Doolittle, Fowler, Henderson, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Ross, Saulsbury, Trumbull, Vickers—16.
Every Senator present who had voted for conviction voted to abandon the prosecution and end the trial, and every Senator present who had voted against conviction, voted to continue and go through the indictment.
Of course, it was useless to go farther with any hope of success, as, it will be seen by this record, all the remaining Articles were dead, beaten in caucus before the voting commenced, and by the professed friends and leaders of the movement.
Possibly it was the anticipation of this effect of the abandonment of the First Article, that was the "sickness" to which Mr. Edmunds, at the outset of the voting, ten days before, ascribed the peculiar order of taking the vote.
It is not intended to aver that there was any privity or concert in this particular manipulation—yet it is suggestive. The Impeachment had been dragging since the 22nd of February, to May 26th—more than three months,—and had been everywhere the engrossing topic of the time. It was becoming tiresome-not only to the Senate, but to the general public.
Notwithstanding the City of Washington was still filled with people who had been waiting weary weeks and months for the deposition of Mr. Johnson and the accession of Mr. Wade to the Presidency, for the fulfillment of pledges of appointment based thereon, and who were still importunate for impeachment, the business element of the country at large was tiring of it and its depressing effect upon the commercial activities. Even Senators and Congressmen were being moved to a sense of the obstructive and somewhat ridiculous phases the impeachment movement was beginning to take on—and not a few of those who in its earlier stages had honestly favored the movement, inside as well as outside the membership of both Houses of Congress, had begun to realize the actual nature and purposes, as also the shallowness of the impeachment movement that from whatever motives it had originated, it had degenerated very much into a game of personal ambition—of vindictiveness—and office getting and spoils—and practically nothing higher.
While some of its supporters who had manifestly entered upon the trial with a determination to convict, were still insistent for further prosecution had there been a shadow of ultimate success, there were others who had begun to realize, weeks before the end came, the awkwardness of the predicament in which they had allowed themselves and their party to be placed, and desired to abandon the enterprise.
The strain was becoming too great—there was certain to be a recoil sooner or later. The foundations of the Impeachment were shown to be too slender. There was a future ahead that must be faced, but Senators must preserve their consistency. They could not go before their pro-impeachment constituencies with a record indicating any degree of weakening in the impeachment crusade. They had insisted for months that Mr. Johnson must be removed, and it would be politically inexpedient to retract.
But they wanted somebody to "help them let go."
So the plan of "desultory" procedure herein outlined seems to have "happened"—whether by design or otherwise, is immaterial—and that plan was made easy by the concerted abandonment of the head and front of the indictment—the First Article—which was side-tracked and logically carried with it all that followed, as would manifestly have been the result if the voting had begun on that Article.
While, to degree, the turmoils and bitterness of that time have passed out of public mind, there are still many living who retain a keen remembrance of the struggle and the enmities it produced. There were during the trial many thousands of men in the City of Washington awaiting the Impeachment and removal of the President for the fulfillment of pledges of official appointment based thereon, and their numbers increased as the trial progressed.
These anticipated beneficiaries were naturally not idle in efforts to the stimulation of zeal in the cause of Impeachment, and Senators were importuned at all seasonable and unseasonable hours in behalf of immediate and positive action. The lively anxiety, even anxious haste, of these patriots for their earliest possible entry upon the service of the Government, was emphasized on every corner and at every place of gathering, day and night, and the lobbies of the Capitol were thronged by them during the sessions of the Senate. No opportunity for a word with a Senator in behalf of the immediate deposition of the President, nor any appliance that seemed to promise a successful overture, was overlooked or forgotten.
When these seemed to fail of the desired effect, more direct and, it was hoped, more effective methods were resorted to. The beleaguered Senator was reminded that the applicant represented the united sentiment of the people of the State from which he held his Senatorial seat—that they demanded Mr. Johnson's conviction and removal—that that demand could not be safely denied, trifled with, or delayed; and that if money was wanted, to use the language of a notorious inquisitor of the House, Mr. Butler, speaking of the possibility of securing a designated vote for Impeachment "tell the d——d scoundrel that if he wants money, there is a bushel of it here to be had!" Mr. Butler's message was delivered.
So desperate were the inquisitors, and so close the certainty of the vote, that even a project of kidnapping a Senator under the pretense of taking a trip to Baltimore for much needed rest, where, if the terms to be there proffered were refused, a vacancy was to be created—by assassination, if necessary—then a recess of the Senate to afford time for the appointment by the Governor of that Senator's State of a successor who would vote for the Impeachment, of the President—was entered upon and its execution attempted. But the trip to Baltimore for "rest" was not taken.
These are not pleasant facts to contemplate, but they somewhat conspicuously characterized the conditions of that time, and illustrate the real nature of the impeachment scheme. They boded the control of the Government by the worst element of American politics. It is unnecessary to say here what that control would have involved. During all the previous history of the Government—its wars and political turmoils—the Democratic-Republican forms that characterize its administrations have never faced so insidious or threatening a danger as during that hour. It was a crucial test, and the result a magnificent vindication of the wisdom and patriotism of the founders of our composite form of Government. Its results have but strengthened those forms and broadened the scope of the beneficent political institutions that have grown up under and characterize its operation.
It was a test such as probably no other form of Government on earth could have successfully passed, and it is to be hoped that its like may never return.
The weakest point in the entire record of the Prosecution of President Johnson, from the indictment by the House of Representatives to the finish in the Senate, except the Bill of Impeachment itself, was the refusal of the more than three-fourths Republican majority of the Senate to permit the reception of testimony in his behalf. That majority naturally gave them absolute control of the proceedings, and they should have realized from the outset that they could not afford to give it the least tinge of partisan bias.
It is therefore not material to discuss in detail the instances of the two interrogatories put by counsel for the Prosecution and rejected, Nos. 4 and 28, because it was shown that their answer would prove nothing against the President, but rather to his vindication, and their rejection could not have occurred but for the intervention of many more nay Republican than Democratic votes—but will pass to the analyzation of the votes on the twelve interrogatories propounded by counsel for Defense and rejected, which rejections could not have occurred but by the intervention of a large preponderance, in every instance, of the Republican votes cast thereon, and many of them by a unanimous Republican vote.
Without doubt, many of these votes on the admissibility of testimony were governed by, the usual rules prevailing in the courts, but it was deemed by others that every question not manifestly frivolous, or not pertinent, should be permitted answer without objection, regardless of such rules—that the Senate sitting for the trial of an Impeachment of the President of the United States—the occasion a great State Trial—should not be trammeled or belittled by the technicalities common to ordinary court practice—that the Senate was composed supposedly of gentlemen and lawyers of high standing in their profession and familiar with public affairs and public law—that they were sitting in a semi-judicial capacity—not merely as Senators or jurors, but, judges also—judges of fact as well as of law—and constituted the highest trial body known to our laws—a tribunal from which there was no appeal—that each of its members had taken a solemn oath to "do impartial justice" in this cause, absolutely unswerved by partisan or personal considerations, and that as such each member had not only the right, but it was his duty under his oath, as well, to hermit no obstacle or condition to unnecessarily keep from him a knowledge of all available facts pertinent to the cause, no matter on which side they might weigh—to help or to hurt. That the body, each member for himself, was the proper party to determine the admissibility of testimony, as Mr. Manager Boutwell had declared in his opening argument, "AFTER HE HAD HEARD IT," and knew its trend an purport. Every member of that body had the right to know all the witness knew about the case, and, moreover, the witnesses were brought for the purpose, and for the sole purpose, of telling what they knew.
The same assurance of absolute fairness as that of Mr. Boutwell, was also given by Mr. Bingham, another of the Managers of the Prosecution on the part of the House, in his opening plea before the Senate: "It is," said he, "certainly very competent for the Senate, as it is competent for any court of justice in the trial of cases where questions of doubt arise, to HEAR THE EVIDENCE, and, where they themselves are the judges of both the law and the fact, to DISMISS SO MUCH OF IT AS THEY MAY FIND INCOMPETENT, if any of it be incompetent. * * * Under the Plea of Not Guilty, as provided in the rules, every conceivable defense that the accused party could make to the Articles here preferred, can be admitted."
Mr. Manager Butler also said, on the same occasion: "Upon this so great trial, I pray let us not belittle ourselves with the analyses of the common law courts, or the criminal courts, because nothing is so dangerous to mislead us."
These and other like assurances were given of the widest reasonable latitude in the reception of testimony in the trial then opening. There was thus every reason to expect that Mr. Johnson would have a fair trial. But no sooner had the Prosecution completed its examination of witnesses, in which but seven interrogatories had been objected to of the long list proffered by the Prosecution, than a different rule seemed to have been established for the treatment of proffered testimony, and a large mass of relevant and valuable testimony in behalf of the President was ruled out on objection of the Prosecution, as inadmissible, and, as a rule that, had very few exceptions, on partisan divisions of the Senate.
Of course it will not be admitted, nor is it here charged, that these refusals to hear testimony were because of any fear that the answers would have any improper force or effect upon the Senate. Nor will it signify to say that the President's attorneys could not have proved what they offered to prove. They hail the right to an opportunity to so prove, and the denial of that right and opportunity was not only a denial of a manifest right of the attorneys, but especially in this case, a more flagrant denial of the rights of the accused, and not only that, but they amounted to an impugnment of the discretion of the Senate.
It is conspicuous, too, that while the defense objected to but seven of the interrogatories submitted by the Prosecution, and five of them were permitted answer by the vote of the Senate; twenty-one of the proffers of testimony by the defense were objected to by the prosecution and but nine of them permitted answer: and that condition was aggravated by the fact that the numerical strength of the majority party in the Senate was sufficient to determine absolutely the disposition of every question, and they could therefore afford to be strictly fair to the accused, and by the further fact that the objections to testimony offered in behalf of the defense were as three to one of the objections to testimony offered in behalf of the prosecution.
These denials of testimony in behalf of the defense were unfortunate. That practice lowered the dignity of the occasion and of the proceeding, as they could but have given ground for criticism of partisan bias and a vindictive judgment in case of successful impeachment. Most, if not all these rejected interrogatories implied important information in possession of the witnesses which the Senate had a right to, and which the party offering had the right to have produced. Moreover, it was the right and the duty of the Senate to know what the witness was presumed to know, and then to judge, each Senator for himself, of the relevancy of the testimony.
As stated, the principal averment against the President, was his alleged violation of the Tenure-of-Office Act in the removal of Mr. Stanton from the office of Secretary of War, presented in various phases throughout the Articles of Impeachment.
In illustration of the treatment of testimony offered in the President's behalf by a majority of the Republican Senators, the record shows that on the eighth disputed interrogatory, the second put by the defense, General Sherman being on the witness stand:—Defense asked as to a certain conversation relating to that removal, had between the General and the President at an interview specified. The prosecution objected to the question being answered, and a vote of the Senate was demanded. The vote was—for receiving the testimony, 23; against receiving it, 28. Of the latter number, twenty-seven, all Republicans, voted at the close of the trial to convict the President of violating the Tenure-of-Office Act, in the removal of Mr. Stanton, after refusing to hear testimony in his behalf on that charge.
The next interrogatory, No. 9, was "when the President asked the witness (Gen. Sherman,) to accept the War Office, was anything further said in reference to it?" This was objected to by the prosecution, and the vote thereon was 23 to 29. Twenty-eight of the twenty-nine gentlemen thus refusing answer to this question, afterwards voting to convict the President, after refusing to bear the testimony of a very important witness in his behalf, which his counsel proposed to produce and tried in vain to get before the Senate.
On the tenth interrogatory, by Defense, "whether the President had stated to the witness, (General Sherman), his object in asking him to accept the War Office," the vote was 7 to 44 against receiving it, and thirty-one of the gentlemen voting not to hear this testimony, at the close of the hearing voted to convict Mr. Johnson of a high misdemeanor in office in the removal of Mr. Stanton, after refusing to hear his defense.
The next, No. 11, was as to the President's attempt to get a case before the Supreme Court for a judicial determination of Mr. Stanton's right to retain the War Office against the President's wish. This testimony was refused by a vote of 25 to 27—every nay vote being cast by a Republican, every one of whom at the close of the trial, voting in effect to convict Mr. Johnson of a high misdemeanor in office in seeking resort to the courts to test the legality of an act of Congress passed for the practically sole purpose of restricting an executive function never before questioned.
The next interrogatory, No. 12, was whether the witness, (General Sherman), had formed an opinion whether the good of the service required a Secretary of War other than Mr. Stanton. It was well understood that General Sherman believed that for the good of the service Mr. Stanton ought to retire, and as the Chief Officer of the Army his opinion was certainly entitled to weight, and the President had a right to the benefit of his judgment. This interrogatory was objected to by the Prosecution, and was rejected by a vote of 18 to 35—thirty-one of the thirty-five being Republicans, who at the close of the trial voted to convict Mr. Johnson of a high misdemeanor in the removal of Mr. Stanton, after refusing him the benefit of the opinion of the Chief Officer of the Army on a question affecting the military service, and to which he was in all fairness clearly entitled.
No. 13, General Sherman was asked whether he had advised, the President to appoint a successor to Mr. Stanton. (It was well understood that he had.) Answer to this was refused, 18 to 32—thirty of the latter, all Republicans, voting at the close of the trial to convict Mr. Johnson, after refusing to hear this important testimony in his behalf. No. 16. The answer to the last interrogatory, ("if he did, state what his purpose was,") was received by a majority of one, 26 to 25—every nay vote being a Republican, and constituting a majority of the Republicans of the Senate.
No. 21. Mr. O. E. Perrin on the stand, was asked as to the President's statement that Mr. Stanton would relinquish the office at once to General Thomas—"that it was only a temporary arrangement"—that he would "send to the Senate at once the name of a good man," (which he did). This testimony was rejected by a vote of 9 to 37—thirty of the latter number being Republicans who at the close of the trial voted to convict Mr. Johnson of a high misdemeanor in sending to the Senate the name of Thomas Ewing, Senior, for appointment as Secretary of War, vice Stanton removed in assumed violation of the Tenure-of-Office Act.
The next offer of testimony to be rejected was No. 23—Mr. Gideon Welles, Secretary of the Navy, on the stand, to prove that the Cabinet had advised the President to veto the Tenure-of-Office Bill as unconstitutional. The Chief Justice ruled the testimony admissible for the purpose of showing the intent with which the President had acted in the transaction. Prosecution objected, and by a vote of 20 to 29, the decision of the Chief Justice was overruled. No answer to this interrogatory was permitted, every vote to refuse this testimony being cast by a Republican, every one of whom, at the close of the trial, voting to convict and remove Mr. Johnson for alleged violation of a law which he believed to be unconstitutional—which he was advised by the head of the Law Department of the Government was unconstitutional and therefore not a law which he had sworn to execute, and the constitutionality of which he had endeavored to get before the courts for adjudication—those 29 Republicans so voting after having refused to hear testimony in his defense on these identical points.
The next disputed interrogatory was No. 24—that Mr. Johnson's Cabinet had advised him that the Secretaries who had been appointed by Mr. Lincoln and still holding, (Mr. Stanton, Mr. Seward, and Mr. Welles,) were removable by the President, notwithstanding the assumed restriction of the Tenure-of-Office Act. The Chief Justice ruled this testimony to be admissible. Objection was made by the Prosecution, and a vote taken, and the interrogatory was rejected—22 to 26—every nay vote being a Republican, every one of whom at the close of the trial, voting to convict and remove Mr. Johnson from office, after having refused to hear this very important testimony in his behalf.
Defense next offered to prove (No. 25) that it was determined by the President, with the concurrence of the Cabinet, that an agreed case for the determination of the constitutionality of the Tenure-of-Office Act should be made. This testimony was objected to, and a vote taken, which was 19 to 30. Every one of the gentlemen voting to reject this testimony, Mr. Johnson's right to which cannot with any possible showing of fairness be successfully disputed, were Republicans, and after so voting, at the close of the trial, declared by their several verdicts that he had been fairly proven guilty of a high misdemeanor in office, by violation of the Tenure-of-Office Act in seeking a judicial determination of the validity of a disputed Act of Congress, and should be expelled from office.
No. 26, was as to any suggestion by the President of the employment of force for the vacation of any office, (relating of course, to the War Office.) Mr. Johnson had been charged with seeking the removal of Mr. Stanton by force, should he resist. Knowing perfectly that the answer would be in the negative, the Senate refused to permit answer to this interrogatory, by a vote of 18 to 26, every one of the twenty-six gentlemen at the close of the trial in effect voting that the President was guilty as charged, of seeking to remove Mr. Stanton by violence, after refusing to hear either his denial or witnesses in his behalf on that point.
No. 27. Defense proposed to prove that the Cabinet had advised the President that the Tenure-of-Office Act did not prevent the removal of those members who had been originally appointed by Mr. Lincoln. This testimony, which, if permitted answer, would, in the minds of unprejudiced people, have at once set aside the entire impeachment scheme, was not permitted answer. The vote was 20 to 26—every one of the twenty-six gentlemen who voted to reject that most important and conclusive testimony in Mr. Johnson's behalf, at the close of the examination voting to convict him of a high misdemeanor in office by violating the Tenure-of-Office Act in removing Mr. Stanton from the office of Secretary of War—after refusing this offer to prove by his Cabinet advisers; the witness himself, (Mr. Welles, and his testimony, if received, was to be followed by that of Mr. Seward and Mr. Stanton, all of whom had been appointed by Mr. Lincoln and not re-appointed by Mr. Johnson,) that that act did not apply to or protect them against removal at the pleasure of the President. So that on eighteen of these twenty-one disputed interrogatories put in behalf of the Defense, a majority of the Republicans of the Senate refused in every instance to hear testimony, after having sworn to give Mr. Johnson a fair and impartial trial.
But the most flagrant case of unfairness to the defendant in this examination of witnesses occurred in the treatment of interrogatory No. 3, put by the prosecution, in their introduction of a letter from the President to General Grant, purporting to enclose letters from different members of the Cabinet in substantiation of the position of the President in the controversy then pending between Gen. Grant and himself. These letters were enclosed with, and specifically referred to and made a part of the President's communication, and were necessary to a correct apprehension of the controversy, from the President's or any other standpoint.
Being so enclosed and referred to in the letter transmitting and enclosing them, they became quite as much a part of the President's communication as his own letter which enclosed them. Counsel for Defense objected to the introduction of the President's letter without the enclosures, but the objection was not sustained and the letters were not permitted to be introduced, but the letter enclosing and referring to them was. The vote on the production of the enclosures was, yeas 20, nays 29—twenty-eight of the thirty-eight Republicans present, voting to exclude this essential testimony in the President's behalf, and twenty-seven of the number afterwards voted to convict him of a high misdemeanor in office in removing Mr. Stanton from the War Office, after refusing him the benefit of the testimony of his Constitutional Cabinet advisers in this important matter.
It is possible that under other conditions this proceeding might have been legitimate and proper; but Mr. Johnson was on trial under grave charges, before the highest, and supposably fairest tribunal on earth, and had a right to the benefit of the testimony of his cabinet, in full, and more especially when that testimony was presented in a distorted and garbled shape by his accusers. Moreover, every member of the Court had the right to know what was in those letters, if any part of the correspondence was to be received. But whether or not Mr. Johnson had the right to the testimony in his behalf which it was claimed these enclosures contained, he certainly had the right to resist the introduction of mutilated testimony against him. The purpose of the trial was to ascertain the facts in the case—all the facts bearing on either side. The Court was sitting and the witnesses were called for that purpose, and no other.
This record shows, that in but three instances out of twenty-one, did a majority of the Republicans of the Senate vote to receive testimony offered in the President's behalf—that on one interrogatory there was an equal division—that on seventeen of the twenty-one interrogatories put by the Defense, a majority of the Republicans voted to exclude testimony, in several cases by a two-thirds vote—and that but nine of the twenty-one interrogatories put in behalf of the President were by Republican votes permitted to be answered—also that, as a rule which had very rare exceptions, such interrogatories in behalf of the President as were permitted answer, were so permitted by very close majorities.
It is undoubted that every Republican member of the Senate entered upon that trial in the expectation that the allegations of the Prosecution would be sustained, but it was also expected that a fair, free, full, open investigation of all the charges preferred would be had, and that all the information possible to be obtained bearing upon the case, pro and con, would be admitted to testimony—but that expectation was not realized.
To sum up this feature of the proceeding—the Republican majority of the Senate placed themselves and their party in the attitude of prosecutors in the case—instead of judges sworn to give the President an impartial trial and judgment that their course had the appearance, at least, of a conspiracy to evict the President for purely partisan purposes, regardless of testimony or the facts of the case-that public animosity against Mr. Johnson had been manufactured throughout the North by wild and vicious misrepresentations for partisan effect—that practically the entire Republican Party machinery throughout the country was bent to the work of prosecution. The party cry was "Crucify him!" "Convict him anyway, and try him afterwards!" With rare exceptions, the Republican Party of the country, press and people, were a unit in this insensate cry.
They were ready to strike, but not to hear.
There can be but one conclusion from these premises, established by the record of the trial—that the entire proceeding, from its inception in the House of Representatives to its conclusion in the Senate, was a thoroughly partisan prosecution on the part of the majority in both Houses, and that the country was saved from the shameful spectacle, and the dangerous consequences of such a proceeding, by the intervention and self-sacrifice of a few gentlemen who proposed to respect the obligation of their oath, and give Mr. Johnson, so far as in their power, a fair trial and judgment—and not having had such a trial—to give him the benefit of what he claimed he could prove in his own behalf and was not permitted to—and a verdict of "Not Guilty," regardless of consequences to themselves.
What every member of the Court had sworn to do was "impartial justice" to Andrew Johnson, and nothing less. The Counsel on neither side had taken that oath, but the Court had; and its performance of that oath was impossible without possession of all the information relating to and bearing upon the case that it was reasonably possible to obtain. That is the essential ingredient and characteristic of a fair trial.
THAT ESSENTIAL INGREDIENT OF JUDICIAL FAIRNESS WAS NOT SHOWN TO MR. JOHNSON IN THIS CASE BY THE REPUBLICAN MAJORITY OF THE SENATE, as the official record of the trial clearly establishes. It was an ill-disguised and malevolent partisan prosecution.