In May, 1868, the
Senate came within
a single vote of taking the unprecedented step of removing a president
from office. Although the impeachment trial of Andrew Johnson was
ostensibly about a violation of the Tenure
of Office Act, it was about much more than that. Also on
trial
in 1868 were Johnson's lenient policies towards Reconstruction and his
vetoes of the Freedmen's Bureau Act and the Civil Rights Act. The
trial was, above all else, a political trial.
Andrew Johnson was a
lifelong Democrat and
slave owner who won a place alongside Abraham Lincoln on the 1864
Republican
ticket in order to gain the support of pro-war Democrats. Johnson
was fiercely pro-Union and had come to national prominence when, as a
Senator
from the important border state of Tennessee, he denounced secession as
"treason."
On April 11, 1865, Abraham
Lincoln gave his
last major address. Lincoln congratulated Lee on his surrender,
announced
that his cabinet was united on a policy of reconstructing the Union,
and
expressed the hope that the states of the confederacy would extend the
vote to literate negroes and those who served as Union soldiers.
Then came the tragic events at the Ford Theater.
When Andrew
Johnson became president after the assassination of Abraham
Lincoln,
some of the Republicans in Congress most opposed to what they saw as
the
too-lenient policies of Lincoln toward reconstruction saw Johnson's
ascension
as a hopeful sign. One of the radical Republicans of the Senate, Benjamin
Wade, expressed his support: "Johnson, we have faith in you.
By the gods, there will be no more trouble in running the
government."
Less than three years later, Wade would cast a vote to convict Johnson
in the impeachment trial that nearly made him the next president of the
United States.
There were two contending
theories in post-war
Washington concerning reconstruction. One theory argued that the
states of the United States are indestructible by the acts of their own
people and state sovereignty cannot be forfeited to the national
government.
Under this theory, the only task for the federal government was to
suppress
the insurrection, replace its leaders, and provide an opportunity for
free
government to re-emerge. Rehabilitation of the state was a job
for
the state itself. The other theory of reconstruction argued
that the Civil War was a struggle between two governments, and that the
southern territory was conquered land, without internal borders-- much
less places with a right to statehood. Under this theory, the
federal
government might rule this territory as it pleases, admitting places as
states under whatever rules it might prescribe.
Andrew Johnson was a
proponent of the first,
more lenient theory, while the radical Republicans who would so nearly
remove him from office were advocates of the second theory. The
most
radical of the radical Republicans, men like Thaddeus
Stevens and Charles
Sumner, believed also in the full political equality of the freed
slaves.
They believed that black men must be given equal rights to vote, hold
office,
own land, and enter into contracts, and until southern states made such
promises in their laws they had no right to claim membership in the
Union.
(Republicans also had more practical reasons to worry about Johnson's
lenient
reconstruction policy: the congressmen elected by white southerners
were
certain to be overwhelmingly Democrats, reducing if not eliminating the
Republican majorities in both houses.)
The first serious conflict
over the course
of reconstruction concerned the plan drafted by the Johnson
Administration
for North Carolina. The plan called for residents to elect
delegates
to a state convention that would frame a new state constitution.
The cabinet split 4 to 3 in favor of allowing black residents to vote,
but Johnson sided with those who would restrict voters to those
qualified
to vote under state law at the time of North Carolina's secession--
whites
only. Secretary of War Edwin
Stanton reported that "the opposition of the President to throwing
the franchise open to the colored people appeared to be fixed."
In January, 1866, Senator
Lyman Trumbull introduced two bills. One would enlarge the
powers
of the Freedmen's Bureau while the other would extend basic civil
rights
to negro citizens. Andrew Johnson surprised many who believed he
would postpone confrontation with the radical Republicans by vetoing
both
bills. Congress was unable to override the Freedmen's Bureau veto, but
succeeded in overriding the Civil Rights Act veto on a Senate vote
of
33 to 15. Except for veto overrides on two minor pieces of legislation,
one in the Pierce and one in the Tyler administrations, it was the
first
successful override in the nation's history and portended serious
trouble
for the President and his reconstruction policies. By February of
1866, the radicals viewed Johnson as "an outlaw undeserving of quarter."
A summer massacre in New
Orleans further fueled
the growing animosity between Johnson and the Republican
Congress.
A mob, including members of the Louisiana police, fired upon whites and
blacks gathering for a Republican-backed convention that would frame a
new state government. Forty were killed and over one hundred
wounded.
Only after the killing was over did U. S. troops arrive to place the
city
under martial law. Republicans angrily denounced Johnson for not
anticipating trouble and protecting convention delegates and
supporters.
Impeachment talk began to swirl around Washington. Complaints against
Johnson
included his public drunkenness, generous use of the pardon power, and
even suggestions that he was a principal in the Lincoln assassination
plot.
Johnson, for his part,
answered denunciation
with denunciation. In a series of combative speeches in cities
such
as Cleveland and St. Louis, the President lashed out at his
congressional
critics as "traitors." He accused ultra-radicals Thaddeus
Stevens,
Wendell Phillips, and Charles Sumner of comparing themselves to "the
Savior."
Johnson's intemperate speeches would later become the basis for
articles
of impeachment.
In the spring of 1867, the
new Congress passed
over Johnson's veto a second Freedmen's Bureau bill and proposed
to the states a Fourteenth Amendment to the U. S. Constitution.
(The
Fourteenth Amendment is best known today for its requirement that
states
guarantee equal protection and due process of law, but the most
controversial
provisions of the time concerned the conditions precedent that imposed
on states for readmission to the Union.) Johnson announced his
opposition
to the Fourteenth Amendment and campaigned for its defeat. The
Reconstruction
Act of 1867, also passed over a presidential veto, wiped out the
"pretended
state governments" of the ten excluded states and divided them into
five
military districts, each commanded by an officer of the army. To
escape military rule, states were required to assent to the Fourteenth
Amendment, frame a new constitution with delegates chosen without
regard
to color, and submit the new constitution to the Congress for
examination.
Johnson's message vetoing the Reconstruction Act was angry and
accusatory,
calling the act "a bill of attainder against nine millions people at
once"
and suggesting that it reduced southerners to "the most abject and
degrading
slavery." Impeachment efforts in the House intensified, but the
doubtfulness
of conviction in the Senate, due in part to the knowledge that removal
of Johnson would elevate to the presidency the less than universally
popular
Ben Wade, President Pro Tempore of the Senate, convinced many in
the House to hold their fire. Representative Blaine spoke for a
number
of conservative Republicans when he said he "would rather have the
President
than the shallywags of Ben Wade."
The issue that finally
turned the tide in favor
of impeachment concerned Johnson's alleged violation of the Tenure of
Office
Act. The Tenure of Office Act, passed in 1867 over yet another
presidential
veto, prohibited the President from removing from office, without the
concurrence
of the Senate, those officials whose appointment required Senate
approval.
The Act was passed primarily to preserve in office as Secretary of War
Edwin Stanton, a holdover from the Lincoln Administration, whom the
radical
Republicans regarded "as their trusty outpost in the camp of the
enemy."
Although Stanton for many months largely acquiesced in Johnson's
reconstruction
policies, by June of 1867, his opposition was out in the open. By
July, Johnson was close to convinced that Stanton must go, Tenure of
Office
Act or no Tenure of Office Act. The final straw appears to have
been
the revelation on August 5, 1867, during an ongoing trial of Lincoln
assassination
conspirator John Surratt that Stanton two years earlier had
deliberately
withheld from Johnson a petition from five members of the military
commission
that convicted Mary Surratt urging that her death sentence be commuted
to imprisonment. Stanton, Johnson believed, had hood-winked him
into
signing the death warrant of a woman who he most likely would have
spared.
That day Johnson sent Secretary Stanton the following message: "Sir:
Public
consideration of high character constrain me to say that your
resignation
as Secretary of War will be accepted." Stanton answered "that
public
considerations of a high character...constrain me not to resign."
The Tenure of Office Act allowed the President to "suspend" an officer
when the Congress was out of session, as it was at the time, so the
President
responded by suspending Stanton and replacing him with war hero Ulysses
S. Grant.
In January of 1868 the
returning Senate took
up the issue of Johnson's suspension of Secretary Stanton, and voted 35
to 6 not to concur in the action. On January 14, a triumphant
Stanton
marched to his old office in the War Building as the President
considered
his next move. Johnson was anxious to challenge the
constitutionality
of the Tenure of Office Act in court, but to do so he would have to
replace
Stanton and defy the Senate. This he did on February 21, 1868,
naming
as the new Secretary of War Major General Lorenzo Thomas. When
Stanton
notified his Capitol Hill allies of the presidential order to vacate
his
office, he received from Senator Sumner a one-word telegram:
"Stick."
Stick he did. When Thomas went to the War Department Building to
claim his new office, Stanton refused to budge. After an awkward
confrontation, the two men enjoyed a bottle of liquor together before
Thomas finally headed home. For the next ninety days, Stanton
would remain barricaded in his office.
The Lorenzo Thomas
appointment made impeachment in the House for violation of the Tenure
of Office Act and
other "high crimes and misdemeanors" inevitable. On
February
24, the House voted to adopt an Impeachment Resolution by a vote of 126
to 47. Five days later, formal articles
of impeachment were adopted by the House.
On March 30, 1868,
Benjamin Butler rose before
Chief Justice Salmon Chase and fifty-four senators to deliver the opening
argument for the House Managers in the impeachment trial of Andrew
Johnson. Historians such as David Dewitt have been struck by the
improbability
of the scene: "The ponderous two-handed engine of impeachment, designed
to be kept in cryptic darkness until some crisis of the nation's life
cried
out for interposition, was being dragged into open day to crush a
formidable
political antagonist a few months before the appointed time when the
people
might get rid of him altogether." Butler's three-hour opening
argument
was "a lawyer's plea with a dash of the demagogue." He
contemptuously
dismissed arguments that the Tenure of Office Act didn't cover Stanton,
read parts of Johnson's 1866 speeches that were the basis of the tenth
article of impeachment, and referred to the President as "accidental
Chief"
and "the elect of an assassin." (Butler was a poor choice for
manager. His disrespectful treatment of the president damaged the
prosecution's case with wavering senators and, in general, he made key
strategic errors.)
House Managers proceeded
to introduce documentary
evidence and witness
testimony supporting the eleven various articles of
impeachment.
Two witnesses described the confrontation between Edwin Stanton and
Lorenzon
Thomas in the War Office on the day of Stanton's firing, February
22.
One witness brought on torrents of laughter by his description of his
meeting
with Thomas in the East Room of the White House when he told Thomas
"that
the eyes of Delaware were upon him." Several witnesses testified as to
details concerning speeches by the President delivered in Cleveland and
St. Louis in September of 1866. On Thursday, April 9, the
Managers
closed their case. Many observers concluded that the testimony
added
little to the Manager's case, and may have actually hurt their case by
emphasizing the President's isolation and powerlessness in the face of
a hostile Congress.
The opening
argument for the President was delivered by Benjamin
Curtis, a former justice of the Supreme Court best known for his
dissent
in the famous Dred Scott case. Curtis argued that Stanton was not
covered by the Tenure of Office Act because the "term" of Lincoln ended
with his death, that the President did not in fact violate the Act
because
he did not succeed in removing Stanton from office, and that the Act
itself
unconstitutionally infringed upon the powers of the President. As
for the article based on Johnson's 1866 speeches, Curtis said "The
House
of Representatives has erected itself into a school of manners...and
they
desire the judgment of this body whether the President has not been
guilty
of indecorum." Curtis argued that conviction based on the tenth
article
of impeachment would violate the free speech clause of the First
Amendment.
Counsel for the President
called only two witnesses
of real consequence. Lorenzo
Thomas, Johnson's would-be Secretary of War, was sworn in as a
witness
for the President and examined by Attorney General Stanbery concerning
his encounters with Stanton. According to Thomas's
testimony, the two were surprisingly cordial after Stanton had
Thomas
arrested, at one point sharing a bottle of whiskey together.
Secretary
Welles was called for the purpose of testifying to the fact that the
Cabinet
had advised Johnson that the Tenure of Office Act was unconstitutional,
and that Secretaries Seward and Stanton had agreed to prepare a draft
of
a veto message. Benjamin Curtis argued that the testimony was
relevant
because an article of impeachment charged the President with
"intending"
to violate the Constitution, and that Welles's testimony tended
to
show that the President honestly believed the law to be
unconstitutional.
Over the House Managers' objection,
Chief Justice Chase ruled the evidence admissible, but was
overruled
by the Senate 29 to 20, and the testimony was not allowed.
Final arguments in the
impeachment trial stretched
from April 22 to May 6, with the Managers speaking for six days and
counsel
for the President speaking for five days. Arguments ranged from
the
technical to the hyperbolic. Manager Thaddeus
Stevens railed against the "wretched man, standing at bay,
surrounded
by a cordon of living men, each with the axe of an executioner uplifted
for his just punishment." Manager John
Bingham brought the crowded galleries to its feet with his
thunderous
closing:
"May God
forbid that the future
historian shall record of this day's proceedings, that by reason of the
failure of the legislative power of the people to triumph over the
usurpations
of an apostate President, the fabric of American empire fell and
perished
from the earth!...I ask you to consider that we stand this day pleading
for the violated majesty of the law, by the graves of half a million of
martyred hero-patriots who made death beautiful by the sacrifice of
themselves
for their country, the Constitution and the laws, and who, by their
sublime
example, have taught us all to obey the law; that none are above the
law;...
and that position, however high, patronage, however powerful, cannot be
permitted to shelter crime to the peril of the republic."
William Groesbeck's
peroration for the President
offered a spirited defense of Johnson's view of reconstruction:
"He was eager for
pacification.
He thought that the war was ended. It seemed so. The drums
were all silent; the arsenals were all shut; the roar of the cannon had
died away to the last reverberations; the army was disbanded; not a
single
enemy confronted us in the field. Ah, he was too eager, too
forgiving,
too kind. The hand of reconciliation was stretched out to him and
he took it. It may be that he should have put it away, but was it
a crime to take it? Kindness, forgiveness a crime? Kindness a
crime?
Kindness is statesmanship. Kindness is the high statesmanship of
heaven itself. The thunders of Sinai do but terrify and distract;
alone they accomplish little; it is the kindness of Calvary that
subdues
and pacifies."
William Everts contended
in his closing argument
for the President that violation of the Tenure of Office Act did not
rise
to the level of an impeachable offense:
"They wish
to know whether the
President has betrayed our liberties or our possessions to a foreign
state.
They wish to know whether he has delivered up a fortress or surrendered
a fleet. They wish to know whether he has made merchandise of the
public trust and turned the authority to private gain. And when
informed
that none of these things are charges, imputed, or even declaimed
about,
they yet seek further information and are told that he has removed a
member
of his cabinet."
Finally, Attorney
General Henry Stanbery's closing for the President compared
conviction
to a despicable crime:
"But if,
Senators, as I cannot
believe, but as has been boldly said with almost official sanction,
your
votes have been canvassed and the doom of the President is sealed, then
let that judgment not be pronounced in this Senate Chamber; not here,
where
our Camillus in the hour of our greatest peril, single-handed, met and
baffled the enemies of the Republic; not here, where he stood faithful
among the faithless; not here, where he fought the good fight for the
Union
and the Constitution; not in this Chamber, whose walls echo with that
clarion
voice that, in the days of our greatest danger, carried hope and
comfort
to many a desponding heart, strong as an army with banners. No,
not
here. Seek out rather the darkest and gloomiest chamber in the
subterranean
recesses of this Capitol, where the cheerful light of day never
enters.
There erect the altar and immolate the victim."
Outwardly, House Managers
were confident.
Benjamin Butler told a Republican audience on May 4 that "The
removal
of the great obstruction is certain. Wade and prosperity are sure
to come with the apple blossoms." Privately, the were less
optimistic.
In the week before the vote, much money was being bet by professional
gamblers
on the outcome of the trial, and the odds favored acquittal. On
May
11, from 11 am to midnight, senators debated the merits of the case
behind
closed doors. The best chance for conviction seemed to rest with
the eleventh article that charged the President with attempting to
prevent
Stanton from resuming his office after the Senate disapproved his
suspension.
It was obvious that the vote would be very close, depending upon the
decisions
of two or three undecided Senators. No Senator's vote was more
critical
than that of Edmund Ross of Kansas, who remained stubbornly silent
throughout
the trial and discussions.
At noon on May 16, 1868,
the High Court of
Impeachment was called to order by Chief Justice Chase. The
galleries
were packed and the House of Representatives was present en mass.
A motion was made and adopted to vote first on the eleventh
article.
The Chief Justice said, "Call
the roll." Historian David Dewitt described the tension as
the
roll call reaches the name of Senator Ross:
"Twenty-four
'Guilties'
have been pronounced and ten more certain are to come. Willey is
almost sure and that will make thirty-five. Thirty-six votes are
needed, and with this one vote the grand consummation is attained,
Johnson
is out and Wade in his place. It is a singular fact that not one
of the actors in that high scene was sure in his own mind how his one
senator
was going to vote, except, perhaps, himself. 'Mr. Senator Ross, how say
you?' the voice of the Chief Justice rings out over the solemn silence.
'Is the respondent, Andrew Johnson, guilty or not guilty of a high
misdemeanor
as charged in this article?' The Chief Justice bends forward,
intense
anxiety furrowing his brow. The seated associates of the senator
on his feet fix upon him their united gaze. The representatives
of
the people of the United States watch every movement of his
features.
The whole audience listens for the coming answer as it would have
listened
for the crack of doom. And the answer comes, full, distinct,
definite,
unhesitating and unmistakable. The words 'Not Guilty' sweep over
the assembly, and, as one man, the hearers fling themselves back into
their
seats; the strain snaps; the contest ends; impeachment is blown into
the
air."
Although
John F. Kennedy described Edmund Ross as a "profile in courage" in his
book of the same name, historian David O. Stewart believes
otherwise. In his excellent book Impeached: The Trial of
President Andrew Johnson and the Fight for Lincoln's Legacy,
Stewart
contends that Ross's vote was bought. Defenders of the President
had raised $150,000 for an "Acquittal Fund," and Stewart believes that
Johnson's supporters were approaching Republican senators and offering
bribes. Political fixer Perry Fuller, a key contributer to
Ross's Senate campaign, spent the night before the Senate vote with
Ross, who until that time had indicated an intent to vote for
conviction. Stewart contends that a few days after the vote,
Fuller was rewarded for his successful efforts to thwart conviction
with an appointment by Johnson to the position of head of the Internal
Revenue Service, perhaps the best post in Washington for someone
interested in feathering his own nest. When Congress refused to
confirm Fuller, Johnson appointed him as collector of taxes for the
Port of New Orleans, a position which Fuller made personally enriching
for the remainder of the Johnson term.
The
debate continues as to whether Johnson should have been
convicted. David Stewart argues, and I agree, that Johnson
deserved to be removed from office, but not for the arguable offense of
violating the Tenure of Office Act or for being a blowhard.
Instead, Johnson should have been convicted because he seriously
undermined efforts to improve the lot of the country's newly freed
slaves and because he stood idly by, and provided not a finger of
federal assistance, even when ex-slaves were being slaughtered on
southern highways. Johnson was a confrontational and insensitive
president at a time when the nation desperately needed someone to heal
the nation's wounds--someone like Abraham Lincoln.
Still,
the impeachment trial had its value. It served to channel the
potentially explosive anger in many parts of the country against Andrew
Johnson into a morality play. Things could have been worse.