Houses in that limited time would have been impossible, and the
appropriations carried by the bill for the support of the Army
would have been lost. To save them Mr. Johnson submitted to the
indignity put upon him by Congress in denying him a guaranteed
and manifest Constitutional right and power. In that act Mr.
Johnson illustrated a magnanimity and a consciousness of public
responsibility that was most creditible to himself, and in marked
contrast to the action of Congress toward him.


CHAPTER X. A CONFERENCE HELD AND THE FIRST VOTE TAKEN.

A few days prior to the day set for taking the vote on the
several Articles of Impeachment, and after the conclusion of
testimony, it was proposed that there be a private session for
conference of the Senate on a day named, May 11th, to give
Senators an opportunity to declare themselves on the pending
impeachment.

Neither the precise object or the utility of a conference were
then apparent, but the result was somewhat of a surprise to those
who had, up to that time, been undoubtingly confident of the
President's conviction. Comparatively few Senators had previously
declared their position. Very few, if any of the Republican
Senators had indicated a disposition to vote against any of the
articles, but the silence of a number of them, and their refusal
to commit themselves even to their associates, was a source of
uneasiness in Senatorial Impeachment circles. Hence, possibly,
the suggestion of a "conference."

It was taken for granted that every Democratic Senator would vote
against the impeachment. But the idea was not to be entertained
that the "no" votes would extend beyond the Democratic coterie of
twelve. There were, however, anxious misgivings as to that. There
was too much silence - too much of saying nothing when so little
that might be said would go so far to relieve an oppressive
anxiety.

So a session for "conference" was ordered and held, much to the
surprise of gentlemen whose silence had become somewhat
oppressive, and was becoming equally painful to those who wanted
a conference." It savored of an attempt to "poll the Senate" in
advance of judgment. It was resolved at the session of May 7th,
to hold a session for deliberation on the following Monday, May
11th. The most surprising development of that session was the
weakness of the bill of indictment at the very point where it was
apparently strongest - the first Article. Two conspicuous and
influential Senators - Messrs. Sherman of Ohio, and Howe of
Wisconsin - declared, and gave convincing reasons therefor, that
they would not vote for the impeachment of Mr. Johnson on that
Article.

In his remarks on this occasion, after giving a history of the
enactment of the Tenure-of-Office law, the first section of which
specifically excepts from its operation such members of Mr.
Johnson's Cabinet as had been appointed by Mr. Lincoln and still
remaining, though not recommissioned by Mr. Johnson, Mr. Sherman
said:

I can only say as one of the Senate conferees, under the solemn
obligations that now rest upon us in construing this Act, that I
did not understand it to include members of the Cabinet not
appointed by the President, and that it was with extreme
reluctance and only to secure the passage of the bill that, in
the face of the votes of the Senate I agreed to the report
LIMITING AT ALL the power of the President to remove heads of
Departments. * * * I stated explicitly that the Act as reported
did not protect from removal the members of the Cabinet appointed
by Mr. Lincoln, that President Johnson might remove them at his
pleasure; and I named the Secretary of war as one that might be
removed. * * * I could not conceive a case where the Senate would
require the President to perform his great executive office upon
the advice and through heads of Departments personally obnoxious
to him, and whom he had not appointed, and, therefore, no such
case was provided for. * * * Can I pronounce the President guilty
of crime, and by that vote aid to remove him from his high office
for doing what I declared and still believe he had a legal right
to do. God forbid: * * * What the President did do in the removal
of Mr. Stanton he did under a power which you repeatedly refused
to take from the office of the President - a power that has been
held by that officer since the formation of the Government. and
is now limited only by the words of an Act, the literal
construction of which does not include Mr. Stanton. * * * It
follows, that as Mr. Stanton is not protected by the
Tenure-of-Civil-Office Act, his removal rests upon the Act of
1789, and he according to the terms of that Act and of the
commission held by him, and in compliance with the numerous
precedents cited in this cause, was lawfully removed by the
President, and his removal not being contrary to the provisions
of the Act of March 2nd 1867, the 1st, 4th, 5th, and 6th
Articles, based upon his removal, must fail.

On this point, Mr. Howe said:

If Mr. Stanton had been appointed during the present Presidential
term. I should have no doubt he was within the security of the
law. But I cannot find that, either in fact or in legal
intendment, he was appointed during the present Presidential
term. It is urged that he was appointed by Mr. Lincoln, and such
is the fact. It is said that Mr. Lincoln's term is not yet
expired. Such I believe to be the fact. But the language of the
proviso is, that a Secretary shall hold not during the term of
MAN by whom he is appointed, but during the TERM of the PRESIDENT
by whom he may be appointed. Mr. Stanton was appointed by the
President in 1862. The term of that President was limited by the
Constitution. It expired on the 4th of March, 1865. That the same
incumbent was re-elected for the next term is conceded, but I do
not comprehend how that fact extended the former term.

Entertaining these views, and because the first Article of the
Impeachment charges the order of removal as a violation of the
Tenure-of-Office Act, I am constrained to hold the President not
guilty upon that Article.

These declarations, coming from two gentlemen of distinction and
influence in the party councils, both of whom Had actively
participated in framing the Tenure-of-Office Act, became at once
the occasion of genuine and profound surprise, and it is
unnecessary to say that they tended largely to strengthen the
doubts entertained by others as to the sufficiency of all the
other allegations of the indictment. They naturally and logically
reasoned that the removal of Mr. Stanton, set out in the first
Article, constituted, in effect, the essence of the indictment,
and that all that followed, (save the 10th Article was more in
the nature of specifications, or a bill of particulars, than
otherwise - that if no impeachable offense were set out in the
first Article, then none was committed, as that Article
constituted the substructure of all the rest - its essence and
logic running through and permeating practically all - and that
without that Article, there was no coherence or force in any of
them, and consequently nothing charged against the President that
was impeachable, as he had not violated the Tenure-of-Office law,
and was not charged with the violation of any other law.

That conference developed, further, that a large majority of the
Articles of Impeachment were objectionable to and would not be
supported by a number of Republican Senators.

Mr. Edmunds would not support the 4th, 8th, 9th, and 10th
Articles, being "wholly unsustained by proof," but would support
the 11th, though apparently doubtful of its efficiency.

Mr. Ferry could not support the 4th, 5th, 6th, 7th, 9th, or 10th
Articles.

Mr. Howard declared that he would not support the 9th Article.

Mr. Morrill of Vermont, would not support the 4th, 6th, 9th, or
10th Articles, as they were unproven.

Mr. Morrill, of Maine, Mr. Yates, Mr. Harlan, and Mr. Stewart,
would vote to convict on the Articles relating to the removal of
Mr. Stanton - uncommitted on all others.

Mr. Fessenden, Mr. Fowler, Mr. Grimes, Mr. Henderson, Mr.
Trumbull, and Mr. Van Winkle, each declared, at that conference,
their opposition to the entire list of the Articles of
Impeachment.

But eighteen Republicans committed themselves at that conference,
for conviction, out of twenty-four who filed opinions. While it
was taken for granted that the six Democrats who had failed to
declare their position at that conference would oppose
conviction, the position of the eighteen Republicans who had
failed to declare themselves became at once a source of very
grave concern in impeachment circles. Out of that list of
eighteen uncommitted Republicans, but one vote was necessary to
defeat the impeachment. This condition was still farther
intensified by the fact that eight of the eleven Articles of
Impeachment were already beaten in that conference, and
practically by Republican committals, and among them the head and
front and foundation of the indictment - the First Article - by
Messrs. Sherman and Howe, two conspicuous Republican leaders.

A forecast of the vote based on these committals as to the
several Articles, would be against the First Article, twelve
Democrats and eight Republicans, one more than necessary for its
defeat - the eight "not guilty" votes including Messrs. Sherman
and Howe.

Against the Fourth Article - twelve Democrats and nine
Republicans - including Messrs. Edmunds, Ferry, and Morrill of
Vermont.

Against the Fifth Article - twelve Democrats and eight
Republicans-including Messrs. Edmunds and Ferry.

Against the Sixth Article - twelve Democrats and nine
Republicans-including Messrs. Ferry, Howe, and Morrill of
Vermont.

Against the Seventh - Article-twelve Democrats and seven
Republicans - including Mr. Ferry.

Against the Eighth Article - twelve Democrats and seven
Republicans - including Mr. Edmunds.

Against the Ninth Article - twelve Democrats and twelve
Republicans - including Messrs. Sherman, Edmunds, Ferry, Howe,
Howard, and Morrill of Vermont.

Against the Tenth Article - twelve Democrats and ten
Republicans - including Messrs. Edmunds, Sherman, Ferry, and
Morrill of Vermont.

It is somewhat conspicuous that but three gentlemen - Messrs.
Sumner, Pomeroy, and Tipton, in their arguments in the
Conference, pronounced the President guilty on all the
charges - though five others, Messrs. Wilson, Patterson of New
Hampshire, Frelinghuysen, Cattell, and Williams, pronounced the
President guilty on general principles, without specification;
and Messrs. Morrill of Maine, Yates and Stewart, guilty in the
removal of Mr. Stanton, without further specification of charges.

As but one vote, in addition to the twelve Democratic and the six
Republican votes pledged against conviction at the Conference,
was necessary to defeat impeachment on the three remaining
Articles - the 2nd, 3rd, and 11th - and as nearly a half of the
Republicans of the Senate had failed to commit themselves, at
least in any public way, the anxiety of the advocates of
Impeachment became at once, and naturally, very grave. How many
of the eighteen Republicans who had failed to declare themselves
at that Conference might fail to sustain the Impeachment, became,
therefore, a matter of active solicitude on all sides, especially
in impeachment circles in and out of the Senate. Republican
committals in the Conference had rendered absolutely certain the
defeat of every Article of the Impeachment except the Second,
Third, and Eleventh, and the addition of but a single vote from
the eighteen uncommitted Republicans to the "No" side, would
defeat them.

It was under this unfavorable condition of the Impeachment cause,
that the Senate assembled on May 16th, 1868, for the purpose of
taking final action on the indictment brought by the House of
Representatives, the trial of which had occupied the most of the
time of the Senate for the previous three months, and which had
to a large degree engrossed the attention of the general public,
to the interruption of legislation pending in the two Houses of
Congress, and more or less to the embarrassment of the commercial
activities of the country.

For the first time in the history of the government, practically
eighty years, the President of the United States was at the bar
of the Senate, by virtue of a constitutional warrant, on an
accusation of the House of Representatives of high crimes and
misdemeanors in office, and his conviction and expulsion from
office demanded in the name of all the people. No event in the
civil history of the country had ever before occurred to so
arouse public antipathies and public indignation against any
man-and these conditions found special vent in the City of
Washington, as the Capitol of the Nation, as it had become during
the trial the focal point of the politically dissatisfied element
of the entire country. Its streets and all its places of
gathering had swarmed for many weeks with representatives of
every State of the Union, demanding in a practically united voice
the deposition of the President.

On numbers of occasions during the previous history of the
Government there had been heated controversies between the
Congress and the Executive, but never before characterized by the
intensity, not infrequently malevolence, that had come to mark
this and never before had a division between the Executive and
the Congress reached a point at which a suggestion of his
constitutional ostracism from office had been seriously
entertained, much less attempted.

But it had now come. The active, intense interest of the country
was aroused, and everywhere the division among the people was
sharply defined and keen, though the numerical preponderance, it
cannot be denied, was largely against the President and insistent
upon his removal.

The dominant party of the country was aroused and active for the
deposition of the President. Public meetings were held throughout
the North and resolutions adopted and forwarded to Senators
demanding that Mr. Johnson be promptly expelled from office by
the Senate - and it had become apparent, long before the taking of
the vote, that absolute, swift, and ignominious expulsion from
office awaited every Republican Senator who should dare to
disregard that demand.

Under these conditions it was but natural that during the
trial, and especially as the close approached, the streets of
Washington and the lobbies of the Capitol were thronged from day
to day with interested spectators from every section of the
Union, or that Senators were beleaguered day and night, by
interested constituents, for some word of encouragement that a
change was about to come of that day's proceeding, and with
threats of popular vengeance upon the failure of any Republican
Senator to second that demand.

In view of this intensity of public interest it was as a matter
of course that the coming of the day when the great controversy
was expected to be brought to a close by the deposition of Mr.
Johnson and the seating of a new incumbent in the Presidential
chair, brought to the Capitol an additional throng which long
before the hour for the assembling of the Senate filled all the
available space in the vast building, to witness the culmination
of the great political trial of the age.

Upon the closing of the hearing - even prior thereto, and again
during the few days of recess that followed, the Senate had been
carefully polled, and the prospective vote of every member from
whom it was possible to procure a committal, ascertained and
registered in many a private memoranda. There were fifty-four
members - all present. According to these memoranda, the vote
would stand eighteen for acquittal, thirty-five for
conviction - one less than the number required by the Constitution
to convict. What that one vote would be, and could it be had,
were anxious queries, of one to another, especially among those
who had set on foot the impeachment enterprise and staked their
future control of the government upon its success. Given for
conviction and upon sufficient proofs, the President MUST step
down and out of his place, the highest and most honorable and
honoring in dignity and sacredness of trust in the constitution
of human government, a disgraced man and a political pariah. If
so cast upon insufficient proofs or from partisan considerations,
the office of President of the United States would be
degraded - cease to be a coordinate branch of the Government, and
ever after subordinated to the legislative will. It would have
practically revolutionized our splendid political fabric into a
partisan Congressional autocracy. Apolitical tragedy was
imminent.

On the other hand, that vote properly given for acquittal, would
at once free the Presidential office from imputed dishonor and
strengthen our triple organization and distribution of powers and
responsibilities. It would preserve the even tenor and courses of
administration, and effectively impress upon the world a
conviction of the strength and grandeur of Republican
institutions in the hands of a free and enlightened people.

The occasion was sublimely and intensely dramatic. The President
of the United States was on trial. The Chief Justice of the
Supreme Court was presiding over the deliberations of the Senate
sitting for the trial of the great cause. The board of management
conducting the prosecution brought by the House of
Representatives was a body of able and illustrious politicians
and statesmen. The President's counsel, comprising jurists among
the most eminent of the country, had summed up for the defense
and were awaiting final judgment. The Senate, transformed for the
occasion into an extraordinary judicial tribunal, the highest
known to our laws, the Senators at once judges and jurors with
power to enforce testimony and sworn to hear all the facts
bearing upon the case, was about to pronounce that judgment.

The organization of the court had been severely Democratic. There
were none of the usual accompaniments of royalty or exclusivism
considered essential under aristocratic forms to impress the
people with the dignity and gravity of a great occasion. None of
these were necessary, for every spectator was an intensely
interested witness to the proceeding, who must bear each for
himself, the public consequences of the verdict, whatever they
might be, equally with every member of the court.

The venerable Chief Justice, who had so ably and impartially
presided through the many tedious weeks of the trial now about to
close, was in his place and called the Senate to order.

The impressive dignity of the occasion was such that there was
little need of the admonition of the Chief Justice to abstention
from conversation on the part of the audience during the
proceeding. No one there present, whether friend or opponent of
the President, could have failed to be impressed with the
tremendous consequences of the possible result of the prosecution
about to be reached. The balances were apparently at a poise. It
was plain that a single vote would be sufficient to turn the
scales either way - to evict the President from his great office
to go the balance of his life's journey with the brand of infamy
upon his brow, or be relieved at once from the obloquy the
inquisitors had sought to put upon him - and more than all else,
to keep the honorable roll of American Presidents unsmirched
before the world, despite the action of the House.

The first vote was on the Eleventh and last Article of the
Impeachment. Senators voted in alphabetical order, and each arose
and stood at his desk as his name was called by the Chief Clerk.
To each the Chief Justice propounded the solemn
interrogatory - "Mr. Senator - , how say you - is the
respondent, Andrew Johnson, President of the United States,
guilty or not guilty of a high misdemeanor as charged in this
Article?"

Mr. Fessenden, of Maine, was the first of Republican Senators to
vote "Not Guilty." He had long been a safe and trusted leader in
the Senate, and had the unquestioning confidence of his partisan
colleagues, while his long experience in public life, and his
great ability as a legislator, and more especially his exalted
personal character, had won for him the admiration of all his
associates regardless of political affiliations. Being the first
of the dissenting Republicans to vote, the influence of his
action was feared by the impeachers, and most strenuous efforts
had been made to induce him to retract the position he had taken
to vote against conviction. But being moved on this occasion, as
he had always been on others, to act upon his own judgment and
conviction, though foreseeing that this vote would probably end a
long career of conspicuous public usefulness, there was no sign
of hesitancy or weakness as he pronounced his verdict.

Mr. Fowler, of Tennessee, was the next Republican to vote "Not
Guilty." He had entered the Senate but two years before, and was
therefore one of the youngest Senators, with the promise of a
life of political usefulness before him. Though from the same
State as the President, they were at political variance, and
there was but little in common between them in other respects. A
radical partisan in all measures where radical action seemed to
be called for, he was for the time being sitting in a judicial
capacity and under an oath to do justice to the accused according
to the law and the evidence. As in his judgment the evidence did
not sustain the charge against the President such was his
verdict.

Mr. Grimes, of Iowa, was the third anti-impeaching Republican to
vote. He had for many years been a conspicuous and deservedly
influential member of the Senate. For some days prior to the
taking of the vote he had been stricken with what afterwards
proved a fatal illness. The scene presented as he rose to his
feet supported on the arms of his colleagues, was grandly heroic,
and one never before witnessed in a legislative chamber. Though
realizing the danger he thus incurred, and conscious of the
political doom that would follow his vote, and having little
sympathy with the policies pursued by the President, he had
permitted himself to be borne to the Senate chamber that he might
contribute to save his country from what he deemed the stain of a
partisan and unsustained impeachment of its Chief Magistrate. Men
often perform, in the excitement and glamour of battle, great
deeds of valor and self sacrifice that live after them and link
their names with the honorable history of great events, but to
deliberately face at once inevitable political as well as
physical death in the council hall, and in the absence of
charging squadrons; and shot and shell, and of the glamor of
military heroism, is to illustrate the grandest phase of human
courage and devotion to convictions. That was the part performed
by Mr. Grimes on that occasion. His vote of "Not Guilty" was the
last, the bravest, the grandest, and the most patriotic public
act of his life.

Mr. Henderson of Missouri, was the fourth Republican Senator to
vote against the impeachment. A gentleman of rare industry and
ability, and a careful, conscientious legislator, he had been
identified with the legislation of the time and had reached a
position of deserved prominence and influence. But he was learned
in the law, and regardful of his position as a just and
discriminating judge. Though then a young man with a brilliant
future before him, he had sworn to do justice to Andrew Johnson
"according to the Constitution and law," and his verdict of "Not
Guilty" was given with the same deliberate emphasis that
characterized all his utterances on the floor of the Senate.

Mr. Ross, of Kansas, was the fifth Republican Senator to vote
"Not Guilty." Representing an intensely Radical
constituency - entering the Senate but a few months after the
close of a three years enlistment in the Union Army and not
unnaturally imbued with the extreme partisan views and prejudices
against Mr. Johnson then prevailing - his predilections were
sharply against the President, and his vote was counted upon
accordingly. But he had sworn to judge the defendant not by his
political or personal prejudices, but by the facts elicited in
the investigation. In his judgment those facts did not sustain
the charge.

Mr. Trumbull, of Illinois, was the sixth Republican Senator to
vote against the Impeachment. He had been many years in the
Senate. In all ways a safe legislator and counsellor, he had
attained a position of conspicuous usefulness. But he did not
belong to the legislative autocracy which then assumed to rule