the two Houses of Congress. To him the Impeachment was a question
of proof of charges brought, and not of party politics or
policies. He was one of the great lawyers of the body, and
believed that law was the essence of justice and not an engine of
wrong, or an instrumentality for the satisfaction of partisan
vengeance. He had no especial friendship for Mr. Johnson, but to
him the differences between the President and Congress did not
comprise an impeachable offense. A profound lawyer and clear
headed politician and statesman,, his known opposition naturally
tended to strengthen his colleagues in that behalf.
Mr. Van Winkle, of West Virginia, was the seventh and last
Republican Senator to vote against the Impeachment. Methodical
and deliberate, he was not hasty in reaching the conclusion he
did, but after giving the subject and the testimony most careful
and thorough investigation, he was forced to the conclusion that
the accusation brought by the House of Representatives had not
been sustained, and had the courage of an American Senator to
vote according to his conclusions.
The responses were as follows:
Guilty - Anthony, Cameron, Cattell, Cole, Chandler, Conkling,
Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Frelinghuysen,
Harlan, Howard, Howe, Morgan, Morton, Morrill of Maine, Morrill
of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsay,
Sherman, Sprague, Stewart, Sumner, Tipton, Thayer, Wade,
Williams, Wilson, Willey, Yates.
Not Guilty - Bayard, Buckalew, Davis, Dixon, Doolittle, Fessenden,
Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Norton,
Patterson of Tennessee, Ross, Saulsbury, Trumbull, Van Winkle,
Not Guilty - 19. Guilty - 35 - one vote less than a Constitutional
CHAPTER XI. THE IMPEACHERS IN A MAZE. A RECESS ORDERED.
THE FINAL VOTE TAKEN.
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
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
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
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
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
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,
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
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
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
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
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
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
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