FOOTNOTES:

FOOTNOTES:[85]Cong. Globe, 1866, p. 319.[86]Cong. Globe, 1866, p. 322.[87]Cong. Globe, 1866, pp. 745-46.[88]Cong. Globe, 1866, p. 475.[89]Cong. Globe, 1866, p. 530.[90]Cong. Globe, 1866, p. 1293.[91]"Doolittle tells me he wrote the President a letter on the morning of the 22d of February, knowing there was to be a gathering which would call at the White House, entreating him not to address the crowd. But, said D., he did speak and his speech lost him two hundred thousand votes." (Diary of Gideon Welles,ii, 647.)[92]W. A. Dunning,Reconstruction, p. 82.[93]Both of these cases are reported in the first volume of Abbott's Circuit Court Reports.[94]United Statesv.Harris, 106 U.S. 629.[95]Civil Rights Cases, 109 U.S. 3.

[85]Cong. Globe, 1866, p. 319.

[86]Cong. Globe, 1866, p. 322.

[87]Cong. Globe, 1866, pp. 745-46.

[88]Cong. Globe, 1866, p. 475.

[89]Cong. Globe, 1866, p. 530.

[90]Cong. Globe, 1866, p. 1293.

[91]"Doolittle tells me he wrote the President a letter on the morning of the 22d of February, knowing there was to be a gathering which would call at the White House, entreating him not to address the crowd. But, said D., he did speak and his speech lost him two hundred thousand votes." (Diary of Gideon Welles,ii, 647.)

[92]W. A. Dunning,Reconstruction, p. 82.

[93]Both of these cases are reported in the first volume of Abbott's Circuit Court Reports.

[94]United Statesv.Harris, 106 U.S. 629.

[95]Civil Rights Cases, 109 U.S. 3.

THE FOURTEENTH AMENDMENT

While the events in the preceding chapter were transpiring, a joint committee on Reconstruction were making an inquiry into the condition of the ex-Confederate States in order to determine whether they or any of them were entitled to immediate representation in Congress. It consisted of Senators Fessenden, Grimes, Harris, Howard, Williams, and Johnson, and Representatives Stevens, Washburne, of Illinois, Morrill, of Vermont, Bingham, Conkling, Boutwell, Blow, Rogers, and Grider. Senator Reverdy Johnson and Representatives Rogers and Grider were Democrats. All the others were Republicans. There was a preponderance of conservatives on the committee. Senator Fessenden was the chairman, and his selection for the place marked him asprinceps senatusin the estimation of his colleagues.

While the Civil Rights Bill was pending in the House, we have seen that Bingham, of Ohio, made a speech against it and voted against it, holding it to be unconstitutional. He had supported the Freedmen's Bureau Bill because it applied only to states in the inchoate condition which then existed. It was to be inoperative in any state, when restored to its constitutional relations with the Union. The Civil Rights Bill, on the other hand, was to apply to the whole country, North and South, without limit as to time, and to affect the civil and criminal code of every State Government. He held that there was no constitutional warrant for this, either in the Thirteenth Amendment or elsewhere. In order to cure the supposed defect,Bingham proposed to the Reconstruction Committee a new constitutional amendment in these words:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection in the rights of life, liberty, and property.

This was agreed to by the committee, but before it was reported to the House, Stevens presented a series of amendments consisting of five sections which had been prepared by Robert Dale Owen, a distinguished publicist, who was not a member of the Congress. This series had met Stevens's approval, and after some delay and some changes it was adopted by the committee. Bingham then withdrew his own proposed amendment and offered the following in place of it, which was adopted as section one:

No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

The difference between this provision and the first one proposed by Bingham was the whole difference between giving Congress power to pass laws for the administration of justice in the states and merely prohibiting the states from making discriminations between citizens. There was no definition of citizenship in the amendment as reported by the joint committee. Apparently they relied upon the Civil Rights Act, which had been passed over the President's veto, to supply that definition, but shortly before the final vote was taken in the Senate, Howard, who had charge of the measure in the temporary illness of Fessenden, proposed the following words to be placed at the beginning of the first section.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

The reason for adopting this clause was to validate the corresponding part of the Civil Rights Act and put it beyond repeal, in the event that the Republicans should at some future time lose control of Congress.

In addition to the first section, as shown above, the amendment provided that Representatives should be apportioned among the several states according to population, but that when the right to vote was denied in any state to any of the male inhabitants who were twenty-one years of age and citizens of the United States, except for rebellion or other crime, the representation of such state in Congress and the Electoral College should be proportionately reduced. Also that no person should hold any office under the United States or any state who, having previously taken an oath to support the Constitution of the United States, had engaged in insurrection or rebellion against the same, but that Congress might, by a two-thirds vote, remove such disability. Also that the validity of the public debt of the United States should not be questioned, but that no debt incurred in aid of insurrection or rebellion should ever be paid by the United States or any state. The concluding section provided that Congress should have power to enforce by appropriate legislation the provisions of the article.

The Fourteenth Amendment passed the Senate June 8, by 33 to 11, and the House June 13, by 138 to 36. Sumner had opposed it bitterly in debate because it dodged, as he said, the question of negro suffrage; but when the vote was taken he recorded himself in the affirmative.

The report of the committee giving the reasons for their action was submitted on the 18th of June. It heldthat the seceding states, having withdrawn from Congress and levied war against the United States, could be restored to their former places only by permission of the constitutional power against which they had rebelled acting through all the coÃ¶rdinate branches of the Government and not by the executive department alone.

If the President [it said] may, at his will and under his own authority, whether as military commander, or chief executive, qualify persons to appoint Senators and elect Representatives, and empower others to elect and appoint them, he thereby practically controls the organization of the legislative department. The constitutional form of government is thereby practically destroyed, and its powers absorbed by the Executive. And while your committee do not for a moment impute to the President any such design, but cheerfully concede to him the most patriotic motives, they cannot but look with alarm upon a precedent so fraught with danger to the Republic.

This conclusion was logical but misleading. The danger to the Republic lay not in the absorption of powers by the Executive, but in the prolongation of chaos, in dethroning intelligence, and arming ignorance in the desolated districts of the South.[96]

Stevens also reported a bill "to provide for restoring the states lately in insurrection to their full political rights." It recited that whenever the Fourteenth Amendment should become a part of the Constitution, and any state lately in insurrection should have ratified it and conformed itself thereto, its duly elected Senators and Representatives would be admissible to seats in Congress. This bill was not acted on, but lay on the table of eachhouse awaiting the action of the Southern States on the proposed amendment.

On July 23, the two houses adopted a preamble and joint resolution admitting Tennessee to her former relations to the Union. The preamble recited that that state had ratified the Thirteenth and Fourteenth Amendments to the Constitution. There were only four negative votes on the Tennessee bill: Brown and Sumner, Republicans, and Buckalew and McDougall, Democrats. The President signed the bill, but he added a brief message explaining that his reason for doing so was that he desired to remove every cause of further delay, whether real or imaginary, to the admission of the Representatives of Tennessee, but he affirmed that Congress could not rightfully make the passage of such a law a condition precedent to such admission in the case of Tennessee, or of any other state.

The next event of importance in the controversy over Reconstruction was the National Union Convention held in Philadelphia on the 14th of August. It was composed of delegates from all the states and territories, North and South, who sustained the President's policy and acquiesced in the results of the war, including the abolition of slavery. This came to be known as the "Arm-in-Arm Convention" as the procession leading to the platform was headed by two delegates, one from Massachusetts and one from South Carolina, walking together with their arms joined. The signers of the call embraced the names of A. W. Randall, ex-governor of Wisconsin, Senators Cowan, Doolittle, Fowler, Norton, Dixon, Nesmith, and Hendricks, and ex-senator Browning, then Secretary of the Interior. The convention itself was eminently respectable in point of numbers and character. It was presided over by Senator Doolittle, and the chairman of its Committeeon Resolutions was Senator Cowan. The resolutions adopted were ten in number and were faultless in principle and in expression. They were conveyed to the President by a committee of seventy-two persons. The effect of this dignified movement was offset and neutralized in large part by one paragraph of the President's reply to the presentation speech, namely:

We have witnessed in one department of the Government every endeavor to prevent the restoration of peace, harmony, and union. We have seen hanging upon the verge of the Government, as it were, a body called, or which assumed to be, the Congress of the United States, while in fact it is a Congress of only a part of the states. We have seen this Congress pretend to be for the Union when its every step and act tended to perpetuate disunion and make the disruption of the states inevitable. Instead of promoting reconciliation and harmony its legislation has partaken of the character of penalties, retaliation, and revenge. This has been the course and policy of your Government.

This impeachment of the legality of Congress was followed by a battle in the political field, which raged with increasing fury during the whole remainder of Johnson's term of office and projected itself into the two terms of President Grant and the beginning of that of President Hayes, embracing the episodes of the impeachment trial and the Liberal Republican movement of 1872. All of this turmoil, and the suffering which it brought upon the South, would, probably, have been avoided if Lincoln, with his strong hold upon the loyal sentiment of the country and his readiness to conciliate opponents, without surrendering principle, had not been assassinated. They became possible if not inevitable when the presidential chair was taken, in a time of crisis, by a man of combative temper, without prestige in the North, and devoid of tact although of good intentions and undoubted patriotism.

The Southern States refused to agree to the Fourteenth Amendment. To them the insuperable objection was the clause excluding from the office-holding class those who had taken an oath to support the Constitution of the United States and had afterwards engaged in insurrection against the same. The common people refused to accept better terms than were accorded to their leaders. This was true chivalry and is not to be condemned, but the consequence was an increase of the power of the radicals in the North. It disabled conservatives like Fessenden, Trumbull, and Grimes in Congress, John A. Andrew, Henry Ward Beecher, and William C. Bryant, influential in other walks in life, from making effective resistance to the measures of Sumner and Stevens. If the Fourteenth Amendment had been ratified by any of the other ex-Confederate States, such states would have been admitted at once as Tennessee was. Both Wade and Howard, hot radicals as they were, refused to go with Sumner when he insisted that further conditions should be exacted. When he offered an amendment looking to negro suffrage, Howard said that the Joint Committee on Reconstruction had maturely considered that question and had carefully abstained from interfering with "that very sacred right"â€”the right of each state to regulate the suffrage within its own limits. He argued that it was inexpedient in a party point of view to do so, and predicted that if the rebel states were coerced to adopt negro suffrage by an act of Congress, or by constitutional amendment, they would rid themselves of it after gaining admission.[97]

FOOTNOTES:[96]Trumbull did not take an active part in the framing of the Fourteenth Amendment. A minute and unbiased history of it has been written by Horace Edgar Flack, Ph.D., and published by the Johns Hopkins Press, Baltimore, 1908. It is impossible to resist the conclusion of this writer, that partisanship was a potent factor in the framing and adoption of it.[97]Cong. Globe, February 15, 1867, p. 1381.

[96]Trumbull did not take an active part in the framing of the Fourteenth Amendment. A minute and unbiased history of it has been written by Horace Edgar Flack, Ph.D., and published by the Johns Hopkins Press, Baltimore, 1908. It is impossible to resist the conclusion of this writer, that partisanship was a potent factor in the framing and adoption of it.

[97]Cong. Globe, February 15, 1867, p. 1381.

CROSSING THE RUBICON

On the 17th of December, 1866, the Supreme Court rendered its decision in the Milligan case, which had reached that tribunal on a certificate of disagreement between the two judges of the United States Circuit Court for Indiana. Milligan, a citizen, not in the military or naval service, had been arrested in October, 1864, by General A. P. Hovey, commanding the military district of Indiana, for alleged treasonable acts, had been tried by a military commission, found guilty, and sentenced to be hanged on the 19th day of May, 1865. He petitioned the court for a discharge from custody under the terms of the Habeas Corpus Act passed by Congress March 3, 1863. He affirmed that, since his arrest, there had been a session of the grand jury in his district and that it had adjourned without finding an indictment against him. The act of Congress provided that the names of all civilians arrested by the military authorities in places where the courts were open should be reported to the judges within twenty days after their arrest, and that if they were not indicted at the first term of court thereafter they should be set at liberty.

This question had been pretty thoroughly thrashed out in the Vallandigham case, but it had been imperfectly understood; President Lincoln had gone astray in that labyrinth, and judges on the bench had differed from each other in their interpretation of an unambiguous statute. The most commonly accepted opinion was that the act of1863 was not applicable to Copperheads, or, if it was, that it ought not to be obeyed.

The Supreme Court was unanimous in the opinion that Milligan must be discharged, since the law was plain and unequivocal, but there was a division among the nine judges of the court as to the power to try persons not in the military service, by military commission. Five judges held that Congress could not abolish trial by jury in places where the courts were open and the course of justice unimpeded. Four judges maintained that Congress might authorize military commissions to try civilians in certain cases where the civil courts were open and freely exercising their functions, although Congress had not actually done so. The five judges constituting the majority were Davis (who wrote the opinion of the court), Clifford, Nelson, Grier, and Field. The four who dissented from the argument, but not from the judgment, were Chief Justice Chase (who wrote the minority opinion), and Judges Wayne, Swayne, and Miller. Davis's opinion is not surpassed in argumentative power or in literary expression by anything in the annals of that great tribunal.

The logical consequences of the decision were tremendous, or would have been, if the public mind had been in a condition to appreciate its gravity. Not only did it follow logically that the trial and execution of Booth's fellow conspirators, Payne, Atzerodt, Herold, and Mrs. Surratt, were, in contemplation of law, no better than lynching, but that Andrew Johnson's endeavor to put an end to government by military commissions, as soon as possible, was right, and that the contrary design, by whomsoever held, was wrong.

The radicals in Congress, however, were only angered by the decision. They were not in the least disconcerted by it, but the court itself was very much so. If it had beennecessary to pass a law reorganizing the court, in order to reap the fruits of the victory won in the recent elections, a majority could have been obtained for it.

Under date of January 8, 1867, the "Diary of Gideon Welles" tells us that there was a Cabinet meeting at which the President said that he wished to obtain the views of each member on the subject, already mooted, of dismantling states and throwing them into a territorial condition. A colloquy ensued which is reported as follows:

Seward was evidently taken by surprise. Said he had avoided expressing himself on these questions; did not think it judicious to anticipate them; that storms were never so furious as they threatened; but as the subject had been brought up, he would say that never, under any circumstances, could he be brought to admit that a sovereign state had been destroyed, or could be reduced to a territorial condition.McCulloch was equally decided, that the states could not be converted into territories.Stanton said he had communicated his views to no man. Here, in the Cabinet, he had assented to and cordially approved of every step which had been taken, to reorganize the governments of the states which had rebelled, and saw no cause to change or depart from it. Stevens's proposition he had not seen, and did not care to, for it was one of those schemes which would end in noise and smoke. He had conversed with but one Senator, Mr. Sumner, and that was one year ago, when Sumner said he disapproved of the policy of the Administration and intended to upset it. He had never since conversed with Sumner nor any one else. He did not concur in Mr. Sumner's views, nor did he think a state would or could be remanded to a territorial condition.I stated my concurrence in the opinions which had been expressed by the Secretary of War, and that I held Congress had no power to take from a state its reserved rights and sovereignty, or to impose terms on one state which were not imposed on all states.Stanbery said he was clear and unqualifiedly against thewhole talk and theory of territorializing the states. Congress could not dismantle them. It had not the power, and on that point he would say that it was never expedient to do or attempt to do that which we had not the power to do.Browning declared that no state could be cut down or extinguished. Congress could make and admit states, but could not destroy or extinguish them after they were made.[98]

McCulloch was equally decided, that the states could not be converted into territories.

Stanton said he had communicated his views to no man. Here, in the Cabinet, he had assented to and cordially approved of every step which had been taken, to reorganize the governments of the states which had rebelled, and saw no cause to change or depart from it. Stevens's proposition he had not seen, and did not care to, for it was one of those schemes which would end in noise and smoke. He had conversed with but one Senator, Mr. Sumner, and that was one year ago, when Sumner said he disapproved of the policy of the Administration and intended to upset it. He had never since conversed with Sumner nor any one else. He did not concur in Mr. Sumner's views, nor did he think a state would or could be remanded to a territorial condition.

I stated my concurrence in the opinions which had been expressed by the Secretary of War, and that I held Congress had no power to take from a state its reserved rights and sovereignty, or to impose terms on one state which were not imposed on all states.

Stanbery said he was clear and unqualifiedly against thewhole talk and theory of territorializing the states. Congress could not dismantle them. It had not the power, and on that point he would say that it was never expedient to do or attempt to do that which we had not the power to do.

Browning declared that no state could be cut down or extinguished. Congress could make and admit states, but could not destroy or extinguish them after they were made.[98]

This extract is rather astounding for what it tells us of Stanton's position. Simultaneously, or nearly so, Congress passed an act virtually making the General of the Army independent of the President, and prohibiting the President from assigning him to duty elsewhere than in Washington City without the consent of the Senate, except at his own request. Congressman Boutwell, of Massachusetts, tells us that this provision was privately suggested to him by Stanton and that he (Boutwell) wrote it down at the War Department as dictated by Stanton, and took it to Thaddeus Stevens who incorporated it in an appropriation bill.[99]

If the radicals were elated by the result of the elections, the conservatives were correspondingly depressed. It was no longer possible to prevent Stevens and Sumner from taking the lead, which they did forthwith. They crossed the Rubicon with the whole army. The Reconstruction policy initiated by Lincoln was now for the first time definitely abandoned by the Union party. In the month of February, Stevens carried through the House a bill declaring that there were no legal governments in the ten rebel states, and providing that the existing governments should be superseded by the military authority. It provided for no termination of such military government. Amendments were added by the Senate providing for constitutional conventions in those states, to be elected bythe male citizens twenty-one years old and upward, of whatever race or color, except those disfranchised for participation in rebellion. It was provided further that when the constitutions so framed should contain clauses giving the elective franchise to all persons entitled to vote in the election for delegates, and when the constitutions should be ratified by a majority of the people, and when such constitutions should have been submitted to and approved by Congress, and when the states should have ratified the Fourteenth Amendment and it should have been adopted, then the states so reorganized should be entitled to representation in Congress, provided that no persons disfranchised by the Fourteenth Amendment should vote at the election or be eligible to membership of the conventions. The clause making negro suffrage a permanent condition of Reconstruction was adopted in a senatorial caucus on the motion of Sumner by a majority of two, after it had been rejected almost unanimously by the Senate committee to which it had been referred.[100]

Trumbull, Fessenden, and Sherman voted against Sumner's motion, but after it became the policy of the party they supported it. And here they made a mistake, for this was the act which placed the governments of ten states in the hands of the most ignorant portion of the community and disfranchised the most intelligent, entailing the direful consequences of the succeeding ten years.

The road which the dominant party had now taken was, however, taken conscientiously. Congress and theNorthern people sincerely believed that slavery would be reÃ«stablished in some form unless the negroes had the right to vote and the assurance that their votes would be counted, and that, in that case, the war would have to be fought over again. Of course, party spirit and the greed of office had a place among the impelling motives at Washington, but these considerations would not have availed had not the opinion been deep-seated that a Democratic victory won by the votes of the solid South and a minority of the North would endanger the Union.

Senator Cullom, of Illinois, who was then a member of the House, said, forty-four years later, that "the motive of the opposition to the Johnson plan of Reconstruction was a firm conviction that its success would wreck the Republican party and, by restoring the Democracy to power, bring back Southern supremacy and Northern vassalage."[101]

Montgomery Blair apprehended another revolution or rebellion and said that there might be two opposing governments organized in Washington. Maynard, of Tennessee, a stanch loyalist, believed that Senators and Representatives from all the states would soon make their appearance at the national capital and that those from the rebel states would join with the Democratic members from the loyal states, constitute a majority, organize, repeal the test oath, and have things their own way. Welles, while recording these opinions, held the sounder one that the South was too exhausted and the Northern Democrats too timid for such a step.[102]

The Reconstruction Bill passed both houses on the 20th day of February, 1867, was vetoed by the President on the 2d of March, and was repassed on the same day bymore than two-thirds majority in each house, Trumbull voting in the affirmative.

It was followed by a supplementary bill even more drastic, providing for a registration of voters, and requiring each person, before he could be registered, to take an oath that he had not been disfranchised for participation in any rebellion, or civil war, against the United States, and had never held any legislative, executive, or judicial office and afterwards engaged in rebellion against the United States, or given aid or comfort to the enemies thereof. The President was not slow to perceive the monstrosity of these provisions. In his veto message he dwelt on the absurdity of expecting every man to know whether he had been disfranchised or not, and what acts amounted to "participation" or fell short of it, and what constituted the giving of aid and comfort to the enemies of the United States. With genuine pathos he added:

When I contemplate the millions of our fellow citizens of the South with no alternative left but to impose upon themselves this fearful and untried experiment of complete negro enfranchisement, and white disfranchisement (it may be) almost as complete, or submit indefinitely to the rigor of martial law without a single attribute of freemen, deprived of all the sacred guaranties of our Federal Constitution, and threatened with even worse wrongs, if any worse are possible, it seems to me their condition is the most deplorable to which any people can be reduced.

This bill was passed over the veto on the 23d of March, Trumbull voting in the affirmative. These votes, however, did not prevent him from publishing in the ChicagoAdvanceof September 5, the same year, a carefully written article denying the power of Congress to regulate the suffrage in the states, concluding with the following paragraphs:

If the views expressed are correct, it follows that there are but two ways of securing impartial suffrage throughout the Union. One is, for the states themselves to adopt it, which is being done by some already; and now that the subject is being agitated and its justice being made apparent, it is to be hoped it will soon commend itself to all: the other is, by an amendment to the Constitution of the United States, adopting impartial suffrage throughout the Union, which to become effective must be ratified by three fourths of the States.

Amendments of the constitutions of Ohio, Kansas, and Minnesota for that purpose were then pending, but they were all voted down by the people in October and November, 1867.

Congress continued to pass supplementary Reconstruction measures at short intervals. One such authorized the commanders of the military districts to suspend or remove any persons holding any office, civil or military, in their districts and appoint other persons to fill their places and exercise their functions subject to the disapproval of the General of the Army of the United States. It was declared to be the duty of the commanders aforesaid to remove from office all persons disloyal to the United States and all who should seek to hinder, delay, or obstruct the administration of the Reconstruction Acts. Section eight of this act made members of boards of registration removable in like manner. Section eleven provided that "all the provisions of this act, and of the acts to which it is supplementary, should be construed liberally." This bill was vetoed by the President July 19, 1867, and was passed over the veto by both houses the same day. Still another supplementary act was passed on the 11th of March, 1868, relating to the election of members of Congress in the rebel states.

Under this harness of militarism constitutional conventions were held and constitutions adopted by all of said states, except Texas and Mississippi, during the year1868, and all the rest of them were admitted to the Union except Virginia, subject, however, to the condition that their constitutions should never be amended, or changed, so as to deprive any citizen, or class of citizens, of the right to vote, except as a punishment for crimes of the grade of felonies at common law.

Delays having occurred in the course of procedure in Virginia, Mississippi, and Texas, there was opportunity to apply new conditions to their readmission and this chance was eagerly seized by the radicals. Trumbull, on the 13th of January, 1870, reported from the Judiciary Committee a simple resolution reciting that Virginia, having complied with all the requirements, was entitled to representation in Congress. This was amended on motion of Drake, of Missouri, by a proviso that it should never be lawful for the state to deprive any citizen of the United States, on account of race, color, or previous condition of servitude, of the right to hold office. Trumbull said in the debate on this proposition that Congress had no authority to enact it and that it would not be binding on the state. Yet it was adopted by a majority of one vote, 30 to 29. Wilson then moved as an amendment that the state constitution should never be so changed as to deprive any citizen or class of citizens of school privileges, and this was adopted by 31 to 29, Trumbull in the negative. In addition to these a long section was added prescribing a new form of oath to be taken by all state officers and members of the legislature, which was adopted by 45 to 16, Trumbull voting no. In the final vote on the Bill, however, he voted in the affirmative. The same conditions were applied to Mississippi and Texas.

In the debate on the Virginia Bill there was a passage-at-arms between Trumbull and Sumner which came near to overstepping parliamentary rules on both sides andwhich caused widespread newspaper comment. It was generally believed that a rupture had taken place between them which would never be healed; yet a year later, when the decree went forth (presumably from the White House) that Sumner must be deposed from the chairmanship of the Committee on Foreign Relations, Trumbull was one of his strongest supporters in the fight which ensued.

Following close after the reconstruction of Virginia came the re-reconstruction of Georgia. That state ratified herpost-bellumconstitution on the 11th of May, 1868, and elected Rufus P. Bullock, governor. He represented the radicals, but the conservatives at the same time carried the state legislature. A few negroes had been elected as members, and these were expelled on the ground that the right to hold office had not been conferred upon them by the new constitution. The supreme court of the state a few months later decided that since the rights of citizenship and of voting had been conferred upon them, the right to hold office belonged to them also unless expressly denied. In addition to unseating the blacks, the conservatives had admitted certain members who could not take the oath prescribed in the Fourteenth Amendment of the Constitution. Governor Bullock needed a legislature different from the one which had been elected, in order to accomplish certain ends which he had in view, and he seized upon these irregularities as a means of overturning the majority. He then raised an outcry, which he knew would stir the north,â€”that the blacks in Georgia were still terrorized by the Ku-Klux Klans.

President Grant soon thereafter recommended that Congress take Georgia again in hand. This was done promptly. An act was passed directing Governor Bullock to call the legislature together and directing the legislature to reorganize itself in accordance with the oaths of officeheretofore prescribed, including that of the Fourteenth Amendment; to exclude all persons who could not lawfully take those oaths and to admit all who had been expelled on account of color; also requiring Georgia to ratify the Fifteenth Amendment before her Representatives and Senators should be admitted to seats in Congress. The seventh section of the act authorized Governor Bullock to call for the services of the army and navy of the United States to enforce the provisions of the act. Under this authority, exercised by General Terry, twenty-four conservatives were expelled from the legislature and their places were filled by radicals, and the negroes formerly excluded were returned to their places. Even this did not satisfy Bullock. He went to Washington with a troop of carpet-baggers and a pocketful of money and railroad bonds and persuaded General Butler, who was chairman of the House Committee on Reconstruction, to bring in a bill for the restoration of Georgia similar to that of Virginia, with a proviso extending for two years the term of office of the present legislature, which would otherwise expire in November, 1870. Butler reported such a bill from his committee, but Bingham, of Ohio, offered an amendment to require a new election of the legislature at the time fixed in the state constitution, and this amendment was agreed to, in spite of Butler's opposition, by 115 to 71.

The Georgia Bill was the subject of an exciting battle in the Senate where Trumbull supported the Bingham proviso against the efforts of Morton, Howard, Drake, Stewart, Sumner, Wilson, and all of the new Senators from the South, two of whom (those of Texas) were hastily admitted in time to vote on the Georgia question. The first vote was on the motion of Williams, of Oregon, to prolong the life of the existing legislature till November,1872. One effect of so doing would be to save a seat in the United States Senate for a man who had been elected unlawfully. The vacancy would occur on March 4, 1871, and could be lawfully filled only by the legislature chosen next preceding that date.

Williams's motion was voted down April 14, by a majority of one. On the 19th of the same month, Trumbull made one of the great speeches of his public career, filling twelve columns of theCongressional Globe, on the Georgia question, demolishing the Bullock case and stirring public opinion strongly. The struggle was protracted till July 8, when the bill passed, as Trumbull desired, with the Bingham proviso.

An editorial in theNationof May 26, 1870, tells, in brief compass, what took place while the Georgia Bill was the matter of chief concern in the Senate:

Our readers may remember that when Mr. Trumbull, some weeks ago, made his severe summing up of the "Georgia difficulty," he hinted in very plain terms that the patriots of the Bullock faction had been guilty of both corruption and intimidation in trying to get their "Reconstruction" bill through, installing them in office for two years. By many people this charge was ascribed partly to Mr. Trumbull's hatred of the black man, and partly to his hostility to the pure and good of all colors, and doubtless some asked themselves, as they asked themselves when the Traitor Ross refused to give up his chair to Senator Revels, for the sake of the dramatic unities: "What else can we expect of a man who voted No on the Eleventh Article?"[A committee of the Senate, appointed to look into the matter, had taken a mass of testimony and submitted a report.] Their finding isâ€”and we blush to write itâ€”that Bullock and his friends have been for a long time in Washington, complaining of the Ku-Klux Klan, and asking fresh guarantees for "the persecuted Unionists" of Georgia; that somehow or other, while there, they have had a great deal of money and railroad bonds, which they seemed to have no particular use for, themselves; that they tried unsuccessfully to purchase the votes of Senators Carpenter and Tipton against the Bingham amendments; that harrowing reports of "outrages" in Georgia were actually prepared to order, like boots or dinners, furnished to them and paid for; that the writing of threatening letters to Senators was procured in the same manner; that $4000 was paid to that good and great man, Colonel Forney, of the WashingtonChronicle, for "advertising and printing speeches and documents," the Colonel's editorial denunciations of the opponents of the Georgia Bill, we suppose, being thrown into the bargain. The Washington correspondent of the BostonAdvertiserâ€”a wicked fellowâ€”adds that some of the witnesses when first examined "were very loath to tell what they knew, and indulged in the tallest kind of lying." The report of the committee is unanimous.The result of this exposÃ© probably will be that the Georgia question will at last, after a year's delay, filled with this lying and intrigue and corruption, be settled at the outset, by handing the State Government back to the electors on the same terms as Virginia, and letting the "Bullock faction" go home and find some means of gaining an honest livelihood.... We cannot pass from this affair, however, without bearing hearty testimony to the services which Mr. Trumbull has, by his attitude in it from the very beginning, rendered to truth, justice, good government, and civilization. He has made every honest man, North and South, his debtor, not for being able, for this he cannot help, but for being bold, and hitting hard. "By Time," says Hosea Biglow, "I du like a man that ain't afeared!"

[A committee of the Senate, appointed to look into the matter, had taken a mass of testimony and submitted a report.] Their finding isâ€”and we blush to write itâ€”that Bullock and his friends have been for a long time in Washington, complaining of the Ku-Klux Klan, and asking fresh guarantees for "the persecuted Unionists" of Georgia; that somehow or other, while there, they have had a great deal of money and railroad bonds, which they seemed to have no particular use for, themselves; that they tried unsuccessfully to purchase the votes of Senators Carpenter and Tipton against the Bingham amendments; that harrowing reports of "outrages" in Georgia were actually prepared to order, like boots or dinners, furnished to them and paid for; that the writing of threatening letters to Senators was procured in the same manner; that $4000 was paid to that good and great man, Colonel Forney, of the WashingtonChronicle, for "advertising and printing speeches and documents," the Colonel's editorial denunciations of the opponents of the Georgia Bill, we suppose, being thrown into the bargain. The Washington correspondent of the BostonAdvertiserâ€”a wicked fellowâ€”adds that some of the witnesses when first examined "were very loath to tell what they knew, and indulged in the tallest kind of lying." The report of the committee is unanimous.

The result of this exposÃ© probably will be that the Georgia question will at last, after a year's delay, filled with this lying and intrigue and corruption, be settled at the outset, by handing the State Government back to the electors on the same terms as Virginia, and letting the "Bullock faction" go home and find some means of gaining an honest livelihood.... We cannot pass from this affair, however, without bearing hearty testimony to the services which Mr. Trumbull has, by his attitude in it from the very beginning, rendered to truth, justice, good government, and civilization. He has made every honest man, North and South, his debtor, not for being able, for this he cannot help, but for being bold, and hitting hard. "By Time," says Hosea Biglow, "I du like a man that ain't afeared!"

FOOTNOTES:[98]Diary of Gideon Welles,iii, 10-12.[99]Boutwell,Reminiscences,ii, 108.[100]This was the second time that Sumner had shunted the nation in the direction he desired it to go; the first time was when he filibustered the Louisiana Bill to death at the end of the Thirty-ninth Congress. Edward L. Pierce, his biographer and eulogist, writing in the early nineties, says rather dubiously: "For weal or woe, whether it was well or not for the black race and the country, it is to Sumner's credit or discredit as a statesman that suffrage, irrespective of race or color, became fixed and universal in the American system." (Memoir and Letters,i, 228.)[101]Fifty Years of Public Service, by Shelby M. Cullom, p. 146.[102]Diary of Gideon Welles,ii, 484.

[98]Diary of Gideon Welles,iii, 10-12.

[99]Boutwell,Reminiscences,ii, 108.

[100]This was the second time that Sumner had shunted the nation in the direction he desired it to go; the first time was when he filibustered the Louisiana Bill to death at the end of the Thirty-ninth Congress. Edward L. Pierce, his biographer and eulogist, writing in the early nineties, says rather dubiously: "For weal or woe, whether it was well or not for the black race and the country, it is to Sumner's credit or discredit as a statesman that suffrage, irrespective of race or color, became fixed and universal in the American system." (Memoir and Letters,i, 228.)

[101]Fifty Years of Public Service, by Shelby M. Cullom, p. 146.

[102]Diary of Gideon Welles,ii, 484.

IMPEACHMENT

Early in 1867, Congress passed an act, originating in the Senate, to prevent the President from removing, without the consent of the Senate, any office-holders whose appointment required confirmation by that body. In its inception it was not intended to include members of the Cabinet, but merely to protect postmasters, collectors, and other appointees of that grade, whom the President, in his stump speech at St. Louis, had declared his intention to "kick out." Accordingly a clause was inserted excluding Cabinet officers from the operation of the measure.

When the bill came before the House, a motion was made to strike out this exception, and it was at first negatived by a majority of four. Subsequently the motion was renewed and carried, but the Senate refused to concur. The differences between the two houses were referred to a committee of conference of which Sherman was a member. He had been extremely resolute heretofore in opposing the attempt to include members of the Cabinet, because he held that no gentleman would be willing to remain a member after receiving an intimation from his chief that his services were no longer desired. To this Senator Hendricks replied that it was not a question of getting rid of agentleman, but of a man of different stamp, who might be in the Cabinet and desire to stay in. "The very person who ought to be turned out," he said, "is the very person who will stay in." The Conference Committeereported the following proviso, which was adopted by both houses:

That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.

Senator Doolittle, who opposed the billin toto, pointed out that it did not accomplish what it aimed at: that is, it did not prevent the President from removing the Secretary of War. He showed that Stanton had never been appointed by Johnson at all. He was merely holding office by sufferance. The term of the President by whom he was appointed had expired and the "one month thereafter" had also expired; therefore, the proviso reported by the Conference Committee was futile to protect him.

Sherman replied that the proviso was not intended to apply to a particular case or to the present President, and that Doolittle's interpretation of the phrase as not protecting Stanton in office was the true interpretation. He added that if he supposed that Stanton, or any other Cabinet officer, was so wanting in manhood and honor as to hold his office after receiving an intimation that his services were no longer desired, he (Sherman) would consent to his removal at any time. This declaration committed Sherman in advance to a definite opinion as to the President's right to remove Stanton whenever he pleased.

The bill passed with the clause above quoted, all the Republican Senators present voting for it except Van Winkle and Willey, of West Virginia. Trumbull was recorded in the affirmative.

At the first Cabinet meeting of February 26, the bill was considered, and all the members thought that it oughtto be vetoed. "Stanton was very emphatic," says Welles, "and seemed glad of an opportunity to be in accord with his colleagues." (He had previously given his sanction to the Stevens Reconstruction Bill in opposition to his colleagues.) The President said he would be glad if Stanton would prepare a veto or make suggestions for one. Stanton pleaded want of time. The President then turned to Seward, who said that he would undertake it if Stanton would help him. This was agreed to, and the veto (based on the ground of unconstitutionality) was prepared and submitted by them at the Cabinet meeting of March 1. Stanton must have been aware of the colloquy between Sherman and Doolittle in which his name was mentioned, and he probably agreed with them in the opinion that he was not protected by the Tenure-of-Office Act. If he had thought differently he would hardly have favored the veto, or joined with Seward in writing it. The veto message was sent in on March 2, 1867, and the bill was passed by two thirds of both houses the same day.

Few persons at the present time believe that there was any substantial ground for the impeachment of Andrew Johnson. The unsparing condemnation of history has been visited upon the whole proceeding, and the commonly received opinion now is that if the Senate had voted him guilty as charged in the articles of impeachment a precedent would have been made whereby the Republic would have been exposed to grave dangers. Trumbull was one of the so-called "Seven Traitors" who prevented that catastrophe.

The first session of the Fortieth Congress began on March 4, 1867. The radical wing of the Republican party had been muttering about impeachment even earlier, and a resolution had been passed by the House on the 7th of January preceding, authorizing the Judiciary Committeeto inquire into the official conduct of the President and to report whether he had been guilty of acts designed or calculated to "overthrow, subvert, or corrupt the Government of the United States, or any department or office thereof." On the 28th of February, the committee reported that it had examined a large number of witnesses and collected many documents, but had not been able to reach a conclusion and that it would not feel justified in making a final report upon so important a matter in the expiring hours of this Congress, even if it had been able to make an affirmative one. On the 29th of March following, the committee was instructed to continue its investigation.

It accordingly continued its work and voted on the 1st of June, by 5 to 4, that there was no evidence that would warrant impeachment; but at the earnest solicitation of the minority it kept the case open during the recess which Congress took from July to November. In this interval one member of the committee changed his vote and this change made the committee stand 5 to 4 in favor of impeachment. The report of the committee was presented by Boutwell, of Massachusetts, November 25, accompanied by a resolution that Andrew Johnson, President of the United States, be impeached for high crimes and misdemeanors. James F. Wilson, of Iowa, chairman of the committee, submitted a minority report adverse to impeachment, and the House on the 7th of December sustained Wilson and rejected the majority report by a vote of 57 to 108. Among those voting against impeachment were Allison, Bingham, Blaine, Dawes, Poland, Spalding, and Washburne, of Illinois. On the other side were Thaddeus Stevens, B. F. Butler, and John A. Logan. On the 5th of August, the President sent to Stanton a note of three lines saying that his resignation as Secretary of Warwould be accepted. Stanton replied on the same day declining to resign before the next meeting of Congress. The President thereupon decided to remove him regardless of consequences, but he felt the necessity of finding somebody to take the office who would be acceptable to the country. His choice fell upon General Grant, who was perhaps the only person whose appointment under the circumstances would not have caused a disturbance. No plausible objection could be raised against him in any quarter, not even by Stanton himself. Grant reluctantly consented to accept the place. Accordingly one week after Stanton had refused to resign, the President suspended him and appointed Grant Secretaryad interimand so notified Stanton. The latter had undoubtedly made plans for retaining the office in defiance of the President and was chagrined to find that a man had been appointed whom he could not resist. Although a few months earlier he had advised the President that the Tenure-of-Office Law was unconstitutional and had assisted in writing the message vetoing it on that ground, he now denied the President's power to suspend him without the consent of the Senate, but said that he yielded to superior force. He then surrendered his office to Grant. Although the usual expressions of confidence and esteem were exchanged between himself and his successor, a residue of asperity remained in the breast of the retiring Secretary, who felt that the head of the army ought not to have enabled the President to get the better of him. But as a matter of fact Grant did not want the office. He accepted it only because he feared that trouble might follow from the appointment of somebody less familiar than himself with conditions prevailing in the South.

On the 13th of January, 1868, the Senate, having considered the reasons assigned by the President for the suspensionof Stanton from office, non-concurred in the same and sent notice to this effect to the President and to Grant. The latter considered his functions as Secretaryad interimterminated from the moment of receipt of the notice and so notified the President, at the same time locking the door of his room and handing the key to the person in charge of the Adjutant-General's office in the same building.

Under the terms of the Tenure-of-Office Law, Stanton returned and resumed his former place.

On the 27th of January, a motion was made by Mr. Spalding in the House of Representatives that the Committee on Reconstruction be authorized to inquire what combinations had been made to obstruct the due execution of law and to report what action, if any, was necessary in consequence thereof. This resolution was adopted by a vote of 99 to 31. A few days later, on the motion of Thaddeus Stevens the evidence taken by the Committee on the Judiciary on the impeachment question was referred to the Committee on Reconstruction. Certain correspondence that had passed between General Grant and President Johnson relating to the retirement of the former from the War Office was also sent to the same committee.

The correspondence between General Grant and the President here referred to gives a fresh illustration of Andrew Johnson's want of tact in dealing with men and events. He first made an accusation that Grant had failed to keep a promise that he had previously given that "if you [Grant] should conclude that it would be your duty to surrender the department to Mr. Stanton, upon action in his favor by the Senate, you were to return the office to me,prior to a decision by the Senate, in order that if I desired to do so I might designate somebody to succeed you." This letter was dated January 31, 1868. Grant replied(February 3) denying that he had made any such promise, and saying that the President in making this accusation had sought to involve him in a resistance to law and thus to destroy his character before the country. Several other letters followed, including one from each member of the Cabinet, who was present when the matter was talked of between the two principals, all confirming the President's statements. The letters of Browning and Seward, however, tended to show that the President's desire was to make up a case for the Supreme Court, to decide whether he had a right under the Constitution to remove a Cabinet officer or not, and that he supposed that Grant had promised to coÃ¶perate with him to promote that end; but that whatever Grant might have promised, the sudden action of the Senate led him to believe that he could not delay his retirement without subjecting himself to the chance of fine and imprisonment under the Tenure-of-Office Law.[103]

The quarrel between Johnson and Grant did not, however, help the impeachers, who were voted down in the Committee on Reconstruction, February 13, by 6 to 3, Stevens being in the minority.

Stanton was now in a position of great embarrassment, being a member of the Cabinet by appointment of the Senate, but unable to attend Cabinet meetings. He was endowed with sufficient assurance for most purposes, but not enough to go to the White House and take a seat among gentlemen who would have looked upon him as an intruder and a spy. Johnson was advised by General Sherman and others to leave him severely alone.[104]

If this advice had been followed, Stanton would have been exposed to ridicule ere long and the Senate could not have helped him to ward it off. But Johnson came to his rescue by making a fresh attempt to oust him. Eight days after Thaddeus Stevens's impeachment resolution had been voted down, two to one, in his own committee, the President sent a note to Edwin M. Stanton saying that he had removed him from the office of Secretary of War and appointed Lorenzo Thomas, the Adjutant-General of the Army, as Secretary of Warad interim. The new appointee immediately presented himself at the War Office and showing his authority demanded possession, which Stanton refused to yield.

The tables were instantly turned. Stanton was no longer looked upon as holding an office with nothing to do except to draw his salary, but as a champion of the people defending them against a law-breaking President. Grant had warned Johnson months before that the public lookedupon the Tenure-of-Office Law as constitutional until pronounced otherwise by the courts, and that although an astute lawyer might explain it differently the common people would "give it the effect intended by its framers," that is, to protect Stanton.[105]

This was sound advice. The revulsion in the public mind was electrical in suddenness and strength. The House of Representatives, which, on the 7th of December, by nearly two to one had rejected an impeachment resolution recommended by its Judiciary Committee, now (February 24) adopted the same resolution by 128 to 47. Every Republican member who was present, including James F. Wilson, voted in the affirmative. A committee of seven was appointed to prepare articles of impeachment and present them to the Senate. Nine such articles were reported to the House on the 2d of March and two additional ones on the following day, all of which were agreed to, and seven members of the House were appointed as managers to conduct the impeachment, namely: John A. Bingham, George S. Boutwell, James F. Wilson, Benjamin F. Butler, Thomas Williams, John A. Logan, and Thaddeus Stevens.

The trial began on the 5th of March, Chief Justice Chase presiding. The President was represented by Henry Stanbery, Benjamin R. Curtis, William S. Groesbeck, William M. Evarts, and Thomas A. R. Nelson. The House managers were overmatched in point of legal ability by the President's counsel, and still more by the facts in the case. The first eight articles of impeachment were based upon the President's attempt to remove Stanton and appoint Thomas as Secretary of Warad interim, but inasmuch as Senator Sherman had publicly declared that Stanton, being an appointee of Lincoln,was not protected by the Tenure-of-Office Law, and that he ought to be removed anyhow if he refused to resign at the President's request, it was deemed best by the impeachers to divide the offense into two parts. So the first article related only to the removal of Stanton and the second only to the appointment of Thomas. This, it was believed, would enable Sherman to vote not guilty on the first, but guilty on the second. He could vote that the President had a perfect right to remove his Secretary of War, but no right to fill the vacancy, and that any attempt on his part to do so would be a high misdemeanor, punishable by impeachment and removal from office. And so it turned out as regarded Sherman's vote, and also that of Senator Howe, of Wisconsin, who shared Sherman's view that Stanton was not protected by the law.

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 amÃ©langeof 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 ofpreventing 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 toadmit 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 afterthey 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 YorkEvening Post, ChicagoTribune, 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 YorkEvening Postof 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 YorkTribunedemanded 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 untilproved 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 YorkTribune'sflagrant 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 ChicagoTribune, 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 theRepublican 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 Senatorsâ€”men like Trumbull, Sherman, Fessenden, Grimes, Howe, Henderson, Frelinghuysen, Fowler, and othersâ€”are but aiding the Copperheads in the dismemberment of our party.

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 theRepublican 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 Senatorsâ€”men like Trumbull, Sherman, Fessenden, Grimes, Howe, Henderson, Frelinghuysen, Fowler, and othersâ€”are but aiding the Copperheads in the dismemberment of our party.

From theNation, 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....

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