The Life of Lyman Trumbull

The ninth article charged the President with having a conversation with General Emory, who commanded the military department of Washington, and saying to him that that portion of the Army Appropriation Act, which provided that all orders relating to military affairs should be issued through the General of the Army, or the officer next in rank, and not otherwise, was unconstitutional, thus seeking to induce said Emory to violate the provisions of said act.

The tenth article recited that Andrew Johnson did at certain times and places make and "deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers, and laughter of the multitudes then assembled." Extracts from the speeches were embodied in this article, "by means whereof the said Andrew Johnson has brought the high office of President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of, a high misdemeanor in office." This article was the production of General Butler.

The eleventh article embraced the charge of seeking to prevent Stanton from resuming his office as Secretary of War, but not that of removing him from it (this to accommodate Sherman and Howe), and a mélange of all the charges in the preceding articles, ending with a charge that the President had in various ways attempted to prevent the execution of the Reconstruction Acts of Congress. Thaddeus Stevens considered it the only one of the series that was bomb-proof, but the Chief Justice ruled that the Stanton matter was the only thing of substance in it, the residue being mere objurgation. The answer filed by the President's counsel set forth:

First, that the Tenure-of-Office Law, in so far as it sought to prevent the President from removing a member of his Cabinet, was unconstitutional; that such was the opinion of each member of his Cabinet, including Stanton, and that Stanton among others advised him to veto it;

Second, that even if the law were in harmony with the Constitution the Secretary of War was not included in its prohibitions, since the term for which he was appointed had expired before the President sought to remove him;

Third, that it seemed desirable, in view of the foregoing facts, to secure a judicial determination of all doubts respecting the rights and powers of the parties concerned, from the tribunal created for that purpose; and to this end he had taken the steps complained of, and that he had committed no intentional violation of law.

In answer to the eleventh article, the defendant said that the matters contained therein, except the charge of preventing the return of Stanton to the office of Secretary of War, did not allege the commission or omission of any act whatever whereby issue could be joined or answer made. As to the Stanton matter, his answer was already given in the answer to the first article.

There were two theories rife in the Senate and in the country, respecting this trial. One was that impeachment was a judicial proceeding where charges of treason, bribery, or other high crimes or misdemeanors were to be alleged and proved; the Senators sitting as judges, hearing testimony and argument, and voting guilty or not guilty. This opinion was generally accepted at first, both in and out of Congress, and was the correct one. The other was that impeachment was a political proceeding which the whole people were as competent to decide as the Senate. This was the view taken by Charles Sumner and avowed by him in his written opinion while sitting as one of the sworn judges to vote guilty or not guilty, and it came to be the opinion prevailing in the Republican party generally before the case was ended. According to this view it was a question for the people to decide in their character as an unsworn "multitudinous jury." No method of arriving at, or of recording, their verdict was suggested or deemed necessary. To a person holding this view the trial itself was logically a waste of time, since a decision could have been reached without a scrap of testimony, or a single speech, on either side.

The trial lasted from the 5th of March to the 16th of May, and the heat and fury of the contest both in and out of Congress became more intense from day to day. The impeachers lost ground in the estimation of the sober-minded and reflecting classes by their intemperate language, by their frantic efforts to bring outside pressure to bear upon Senators, and especially by their refusal to admit testimony offered to show that the President's intent was not to defy the law, but to get a judicial decision as to what the law was. The Chief Justice ruled that testimony to prove intent was admissible, and Senator Sherman asked to have it admitted, but it was excluded by a majority vote. Testimony to prove that Stanton advised the President that the Tenure-of-Office Law was unconstitutional and that he aided in writing the veto message was excluded by the same vote. Gideon Welles, under date April 18,106 says that Sumner, who had previously moved to admit all testimony offered, absented himself when it was proposed to call the Cabinet officers as witnesses. Monday, May 11, the case was closed and the Senate retired for deliberation. The session was secret, but the views of Senators, so far as expressed, leaked out. "Grimes boldly denounced all the articles," says Welles, "and the whole proceeding. Of course he received the indignant censure of all radicals; but Trumbull and Fessenden, who followed later, came in for even more violent denunciation and more wrathful abuse."

The vote was not taken until the 16th, and the intervening time was employed by the impeachers in bringing influence to bear upon Senators who had not definitely declared how they would vote. There were 54 votes in all; two thirds were required to convict. There were 12 Democrats, counting Dixon, Doolittle, and Norton, who had been elected as Republicans, but had been classed as Democrats since they had taken part in the Philadelphia Convention of August, 1866. If seven Republicans should join the twelve in voting not guilty, the President would be acquitted. Three had declared in the conference of Monday, the 11th, for acquittal, and they were men who could not be swerved by persuasion or threats after they had made up their minds. If four more should join with the three, impeachment would fail. Welles names as doubtful to the last Senators Anthony and Sprague, of Rhode Island, Van Winkle and Willey, of West Virginia, Frelinghuysen, of New Jersey, Morgan, of New York, Corbett, of Oregon, Cole, of California, Fowler, of Tennessee, Henderson, of Missouri, and Ross, of Kansas. He adds, May 14:

The doubtful men do not avow themselves, which, I think, is favorable to the President, and the impeachers display distrust and weakness. Still their efforts are unceasing and almost superhuman. But some of the more considerate journals, such as the New York Evening Post, Chicago Tribune, etc., rebuke the violent. The thinking and reflecting portion of the country, even Republicans, show symptoms of revolt against the conspiracy.107

The article in the New York Evening Post of May 14, two days before the first vote was taken, is a column long. It can only be summarized here.

So long as the court sat, it says, decency forbade the discussion of the issue elsewhere. It characterizes the articles of impeachment in groups and severally, and says Article XI "reads like a jest, in charging solemn official acts of 1868 as done in pursuance of an extreme and excited declaration, made to a crowd, in a political speech almost two years before...." Impertinent issues were constantly pressed upon the court from without. The New York Tribune demanded conviction and removal for breaking the Tenure-of-Office Act, because, it said, the President was guilty of drunkenness, adultery, treason, and murder. The investigation is of a sudden changed in its nature by the advocates of conviction and becomes a matter of politics, and no longer a judicial concern. Senator Wilson leads off by violating an absolutely fundamental principle of the life and law of every free people, i.e., the principle that an accused man shall have the benefit of a doubt, and be believed innocent until proved guilty. Wilson says: "I shall give the benefit of whatever doubts have arisen to perplex and embarrass me to my country rather than to the Chief Magistrate." … Here was a plain confession that to obtain conviction a "first principle of public law must be sacrificed; that one prominent judge, at least, would condemn the accused, however conscientiously, from other than judicial motives." It describes graphically the pressure brought to bear upon the court and its shameless character, and quotes from the New York Tribune's flagrant attack upon Grimes, Trumbull, and Fessenden, "three of the most honored statesmen and tried patriots in the land." "Thus," it says, "a prominent party organ tries to instigate the passions of the multitude to drive the court to the judgment it desires."

"In a meeting of the Republican Campaign Club on Tuesday evening," it continues, "Charles S. Spencer said that 'as a man of peace and one obedient to the laws, he would advise Senator Trumbull not to show himself on the streets in Chicago during the session of the National Republican Convention, for he feared that the representatives of an indignant people would hang him to the most convenient lamp-post.' And the meeting adopted and ordered to be sent to our Senators in Congress, a resolution, 'that any Senator of the United States elected by the votes of Union Republicans, who at this time blenches and betrays, is infamous, and should be dishonored and execrated while this free Government endures.'"

The following is from the Chicago Tribune, May 14, 1868:

IMPEACHMENT

… The man who demands that each Republican Senator shall blindly vote for conviction upon each article is a madman or a knave. Why a Senator, or any number of Senators, should be at liberty to vote as conscience dictates on any of the articles, provided there be a conviction on some one of them, and not be at liberty to vote conscientiously unless a conviction be secured, is only to be explained upon the theory that the President is expected to be convicted no matter whether Senators think he has been guilty or not. We have protested, and do now protest, against the degradation and prostitution of the Republican party to an exercise of power so revolting that the people will be justified in hurling it from place at the first opportunity. We protest against any warfare by the party or any portion of it against any Senator who may, upon the final vote, feel constrained to vote against conviction upon one, several, or even all of the articles. A conviction by a free and deliberate judgment of an honest court is the only conviction that should ever take place on impeachment; a conviction under any other circumstances will be a fatal error. To denounce such Senators as corrupt, to assail them with contumely and upbraid them with treachery for failing to understand the law in the same light as their assailants, would be unfortunate folly, to call it by the mildest term; and to attempt to drive these Senators out of the party for refusing to commit perjury, as they regard it, would cause a reaction that might prove fatal not only to the supremacy of the Republican party, but to its very existence. Those rash papers which have undertaken to ostracise Senators—men like Trumbull, Sherman, Fessenden, Grimes, Howe, Henderson, Frelinghuysen, Fowler, and others—are but aiding the Copperheads in the dismemberment of our party.

From the Nation, May 14, 1868.

… Can any party afford to treat its leading men as a part of the Republican press has been treating leading Republicans during the last few weeks? Senators of the highest character, who, in being simply honest and in having a mind of their own, render more service to the country than fifty thousand of the windy blatherskites who assail them, have been abused like pickpockets, simply because they chose to think. We have, during the last week, heard language applied to Mr. Fessenden and Mr. Trumbull, for instance, which was fit only for a compound of Benedict Arnold and John Morrissey, and all their colleagues have been warned beforehand, that if they pleaded their oaths as an excuse for differing from anybody who happened to edit a newspaper, they would be held up to execration as knaves and hypocrites. Now, the class of men who are most needed in our politics just now are high-minded, independent men, with their hands clean and souls of their own. Their errors of judgment are worth bearing with for the sake of their character. Yet this class is becoming smaller and smaller, falling more and more into disrepute. The class of roaring, corrupt, ignorant demagogues, who are always on "the right side" with regard to all party measures, grows apace; and, if we are not greatly mistaken, if the Republican party does not make short work with them before long, they will make short work of it....

When it became known that Grimes, Trumbull, and Fessenden would vote not guilty, the pressure from outside was redoubled upon others who had been reckoned doubtful, and especially upon Henderson, Fowler, and Ross.

Even the General Conference of the Methodist Episcopal Church, then in session at Chicago, was called upon to lend a hand, and a motion was made on the 13th of May for an hour of prayer in aid of impeachment. An aged delegate moved to lay that proposal on the table, saying:

My understanding is that impeachment is a judicial proceeding and that Senators are acting under an oath. Are we to pray to the Almighty that they may violate their oaths?

The motion to lay on the table prevailed. On the following day, however, Bishop Simpson offered a new preamble and resolution, omitting any expression of opinion that Senators ought to vote for conviction, but reciting that "painful rumors are in circulation that, partly by unworthy jealousies and partly by corrupt influences, pecuniary and otherwise, most actively employed, efforts were being made to influence Senators improperly, and to prevent them from performing their high duty"; therefore, an hour should be set apart in the following day for prayer to beseech God "to save our Senators from error." This cunningly drawn resolution was adopted without opposition. It was supposed to have been aimed at Senator Willey, of West Virginia, rather than at the Throne of Grace.

Under the rules adopted for the trial each Senator was allowed to file a written opinion. That of Trumbull was the first one in the list. Among other things he said:

To do impartial justice in all things appertaining to the present trial, according to the Constitution and laws, is the duty imposed on each Senator by the position he holds and the oath he has taken, and he who falters in the discharge of that duty, either from personal or party considerations, is unworthy his position, and merits the scorn and contempt of all just men.

The question to be decided is not whether Andrew Johnson is a proper person to fill the presidential office, nor whether it is fit that he should remain in it, nor, indeed, whether he has violated the Constitution and laws in other respects than those alleged against him. As well might any other fifty-four persons take upon themselves by violence to rid the country of Andrew Johnson, because they believed him a bad man, as to call upon the fifty-four Senators, in violation of their sworn duty, to convict and depose him for any other causes than those alleged in the articles of impeachment. As well might any citizen take the law into his own hands and become its executioner as to ask the Senate to convict, outside of the case made. To sanction such a principle would be destructive of all law and all liberty worth the name, since liberty unregulated by law is but another name for anarchy.

He then took up the articles of impeachment seriatim and showed that they all hinged upon the removal of Stanton and the ad interim appointment of Thomas.

But even if a different construction could be put upon the law [he continued], I could never consent to convict the Chief Magistrate of a high misdemeanor and remove him from office for a misconstruction of what must be admitted to be a doubtful statute, and particularly when the misconstruction was the same put upon it by the authors of the law at the time of its passage.

As to the charge that he (Trumbull) had already voted that the President had no authority to remove Stanton, he said:

Importance is sought to be given to the passage by the Senate, before impeachment articles were found by the House of Representatives, of the following resolutions: "Resolved by the Senate of the United States, That under the Constitution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office ad interim" as if Senators, sitting as a court on the trial of the President for high crimes and misdemeanors, would feel bound or influenced in any degree by a resolution introduced and hastily passed before adjournment on the very day the orders to Stanton and Thomas were issued. Let him who would be governed by such considerations in passing on the guilt or innocence of the accused, and not by the law and the facts as they have been developed in the trial, shelter himself under such a resolution. I am sure no honest man could.

He concluded with these words:

Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient cause, and no future President will be safe who happens to differ with a majority of the House and two thirds of the Senate on any measure deemed by them important, particularly if of a political character. Blinded by partisan zeal, with such an example before them they will not scruple to remove out of the way any obstacle to the accomplishment of their purpose, and what then becomes of the checks and balances of the Constitution so carefully devised and so vital to its perpetuity? They are all gone. In view of the consequences likely to flow from this day's proceedings, should they result in conviction on what my judgment tells me are insufficient charges and proofs, I tremble for the future of my country. I cannot be an instrument to produce such a result, and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me but the inflexible discharge of duty.

Gideon Welles, under date May 16, says:

Willey, after being badgered and disciplined to decide against his judgment, at a late hour last night agreed to vote for the eleventh article, which was one reason for reversing the order and making it the first.... Bishop Simpson, a high priest of the Methodists and a sectarian politician of great shrewdness and ability, had brought his clerical and church influence to bear upon Willey through Harlan, the Methodist elder and organ in the Senate.108

So the managers vaulted over ten articles and began the roll-call on the last of the series. The vote resulted: guilty, 35; not guilty, 19. One less than two thirds had voted not guilty; so the President was acquitted on an article, the gravamen of which was the President's attempt to prevent Stanton from returning to office after the Senate had non-concurred in his removal. Sherman, Howe, and Willey had voted guilty on this article, but Henderson, Fowler, Ross, and Van Winkle had voted not guilty.

The impeachers were stunned, and before they could collect their thoughts, the Chief Justice, in pursuance of a rule previously adopted, directed that the vote should now be taken on the first article. He was interrupted by a motion to adjourn, which he ruled out of order. An appeal from the decision was taken and sustained by a majority vote, and the Senate sitting as a court of impeachment adjourned for ten days. The utmost efforts and direst threats were brought to bear upon Senator Ross because he was believed to be weak and defenseless, but he remained firm. When the court reassembled on the 26th of May, the first article of impeachment, the one which charged the President with the high misdemeanor of removing Stanton from office, was jettisoned altogether, and votes were taken on the second and third articles, relating to the appointment of Thomas as Secretary ad interim. On both of these articles the result was identical in number and personnel with that on the eleventh article. Impeachment had failed. The court then adjourned sine die.

The opposition to impeachment had some latent strength that was never officially disclosed. Sprague, of Rhode Island, and Willey, of West Virginia, attended the meetings of the Republican anti-impeachers and said they would vote not guilty if their votes should be needed.109 The President was assured that Morgan would do the same.110

On the same day, Edwin M. Stanton wrote a note to the President saying that inasmuch as impeachment had failed he had relinquished the War Department and had left the contents thereof in charge of the senior Assistant Adjutant-General. He then retired to his own home broken in health by hard labor and clouded in reputation by his retention of a place in the Cabinet in defiance of his chief. Not even success in maintaining his position could excuse such an act. Failure made it a glaring misdemeanor. An attempt has been made to shift the responsibility for his action to the shoulders of Sumner and his other backers in the Senate, who advised him to "stick." Undoubtedly they did so advise, and undoubtedly they believed, and persuaded him to believe, that it was a patriotic duty to commit a glaring breach of good manners and to persist in it for months; but the responsibility for such an act could not be assumed by other persons. Moreover, if it was a breach of the Constitution for the Senate to forbid the President to choose his own cabinet, as Stanton himself had affirmed, it was a breach of the Constitution for him to coöperate with the Senate in doing so.

The glory of the trial [says Mr. Rhodes]111 was the action of the seven recusant Senators.... The average Senator who hesitated finally gave his voice with the majority, but these seven, in conscientiousness and delicacy of moral fibre, were above any average, and in refusing to sacrifice their ideas of justice to a popular demand, which in this case was neither insincere nor unenlightened, they showed a degree of courage than which we know none higher. Hard as was their immediate future they have received their meed from posterity, their monument in the admiring tribute of all who know how firm they stood in an hour of supreme trial.

In this comment there is now general concurrence. Even Ross has been immortalized by his resolute adherence to what he believed to be right. His trial was the hardest of all, because on the one hand he had no accumulated reputation to fall back upon, and on the other hand he had the most radical state in the Union to deal with. Moreover, he was desperately poor, his only property being a starving country newspaper. Ill-luck followed him after his term expired. A cyclone struck the town of Coffeyville, Kansas, and scattered the contents of his newspaper office over the adjacent prairie. Among the Trumbull papers is an appeal from the local relief committee for help to start Ross's newspaper again, and a donation from Trumbull of two hundred dollars for this purpose. Some forty years later, Ross died in New Mexico, old and poor. He had been a soldier in the Civil War. Congress by a special act voted him a pension, before his death. This was a solace on the brink of the grave and a tribute to his fidelity to principle in a trying hour. It was recognized as such and applauded by the press of the country without a discordant note. In the award of credit for adherence to convictions of duty in the trial of Andrew Johnson, three other Senators have been for the most part overlooked, namely, James Dixon, of Connecticut, James R. Doolittle, of Wisconsin, and Daniel S. Norton, of Minnesota. All of these were elected as Republicans and all of them walked in the fiery furnace along with the Seven, or rather preceded them thither. The reason why they have been neglected by the muse of history is that they started two years earlier. They went to the Philadelphia Arm-in-Arm Convention and thus became classified as Democrats. Edgar Cowan, of Pennsylvania, did likewise. His term expired, however, before impeachment reached the acute stage. Dixon and Doolittle had served through Lincoln's entire term. They approved of his Reconstruction policy and simply adhered to it after Johnson came in. They received a larger share of contumely as turn-coats and outcasts than the Seven, because they began to earn that distinction earlier. Doolittle accepted political martyrdom without a murmur. The legislature of Wisconsin passed resolutions denouncing his support of President Johnson and his policy and demanded his resignation as a Senator, and these resolutions were presented to the Senate by his colleague, Timothy O. Howe, and were answered by Doolittle on the floor of the Senate in a manly way. If there are laurels to be distributed at this late day, he and his three allies are entitled to "a far more exceeding and eternal weight of glory."