CHAPTER VII.. The Trial of President Johnson

The Trial of President Johnson

While the radical program was being executed in the South, Congress was engaged not only in supervising reconstruction but in subduing the Supreme Court and in "conquering" President Johnson. One must admire the efficiency of the radical machine. When the Southerners showed that they preferred military rule as permitted by the Act of the 2nd of March, Congress passed the Act of the 23d of March which forced the reconstruction. When the President ventured to assert his power in behalf of a considerate administration of the reconstruction acts, Congress took the power out of his hands by the law of the 19th of July. The Southern plan to defeat the new state constitutions by abstention was no sooner made clear in the case of Alabama than Congress came to the rescue with the Act of March 11, 1868.

Had it seemed necessary, Congress would have handled the Supreme Court as it did the Southerners. The opponents of radical reconstruction were anxious to get the reconstruction laws of March, 1867, before the Court. Chief Justice Chase was known to be opposed to military reconstruction, and four other justices were, it was believed, doubtful of the constitutionality of the laws. A series of conservative decisions gave hope to those who looked to the Court for relief. The first decision, in the case of ex parte Milligan, declared unconstitutional the trials of civilians by military commissions when civil courts were open. A few months later, in the cases of Cummings vs. Missouri and ex parte Garland, the Court declared invalid, because ex post facto, the state laws designed to punish former Confederates.

But the first attempts to get the reconstruction acts before the Supreme Court failed. The State of Mississippi, in April, 1867, brought suit to restrain the President from executing the reconstruction acts. The Court refused to interfere with the Executive. A similar suit was then brought against Secretary Stanton by Georgia with a like result. But in 1868, in the case of ex parte McCardle, it appeared that the question of the constitutionality of the reconstruction acts would be passed upon. McCardle, a Mississippi editor arrested for opposition to reconstruction and convicted by military commission, appealed to the Supreme Court, which asserted its jurisdiction. But the radicals in alarm rushed through Congress an act (March 27, 1868) which took away from the Court its jurisdiction in cases arising under the reconstruction acts. The highest court was thus silenced.

The attempt to remove the President from office was the only part of the radical program that failed, and this by the narrowest of margins. During the spring and summer of 1866 there was some talk among politicians of impeaching President Johnson, and in December a resolution was introduced by Representative Ashley of Ohio looking toward impeachment. Though the committee charged with the investigation of "the official conduct of Andrew Johnson" reported that enough testimony had been taken to justify further inquiry, the House took no action. There were no less than five attempts at impeachment during the next year. Stevens, Butler, and others were anxious to get the President out of the way, but the majority were as yet unwilling to impeach for merely political reasons. There were some who thought that the radicals had sufficient majorities to ensure all needed legislation and did not relish the thought of Ben Wade in the presidency. ¹ Others considered that no just grounds for action had been found in the several investigations of Johnson's record. Besides, the President's authority and influence had been much curtailed by the legislation relating to the Freedmen's Bureau, tenure of office, reconstruction, and command of the army, and Congress had also refused to recognize his amnesty and pardoning powers.

¹ Senator Wade of Ohio was President pro tempore of the Senate and by the act of 1791 would succeed President Johnson if he were removed from office.

But the desire to impeach the President was increasing in power, and very little was needed to provoke a trial of strength between the radicals and the President. The drift toward impeachment was due in part to the legislative reaction against the Executive, and in part to Johnson's own opposition to reconstruction and to his use of the patronage against the radicals. Specific grievances were found in his vetoes of the various reconstruction bills, in his criticisms of Congress and the radical leaders, and in the fact, as Stevens asserted, that he was a "radical renegade." Johnson was a Southern man, an old-line State Rights Democrat, somewhat anti-negro in feeling. He knew no book except the Constitution, and that he loved with all his soul. Sure of the correctness of his position, he was too stubborn to change or to compromise. He was no more to be moved than Stevens or Sumner. To overcome Johnson's vetoes required two-thirds of each House of Congress; to impeach and remove him would require only a majority of the House and two-thirds of the Senate.

The desired occasion for impeachment was furnished by Johnson's attempt to get Edwin M. Stanton, the Secretary of War, out of the Cabinet. Stanton held radical views and was at no time sympathetic with or loyal to Johnson, but he loved office too well to resign along with those cabinet members who could not follow the President in his struggle with Congress. He was seldom frank and sincere in his dealings with the President, and kept up an underhand correspondence with the radical leaders, even assisting in framing some of the reconstruction legislation which was designed to render Johnson powerless. In him the radicals had a representative within the President's Cabinet.

Wearied of Stanton's disloyalty, Johnson asked him to resign and, upon a refusal, suspended him in August, 1867, and placed General Grant in temporary charge of the War Department. General Grant, Chief Justice Chase, and Secretary McCulloch, though they all disliked Stanton, advised the President against suspending him. But Johnson was determined. About the same time he exercised his power in removing Sheridan and Sickles from their commands in the South and replaced them with Hancock and Canby. The radicals were furious, but Johnson had secured at least the support of a loyal Cabinet.

The suspension of Stanton was reported to the Senate in December, 1867, and on January 13, 1868, the Senate voted not to concur in the President's action. Upon receiving notice of the vote in the Senate, Grant at once left the War Department and Stanton again took possession. Johnson now charged Grant with failing to keep a promise either to hold on himself or to make it possible to appoint some one else who would hold on until the matter might be brought into the courts. The President by this accusation angered Grant and threw him with his great influence into the arms of the radicals.

Against the advice of his leading counselors Johnson persisted in his intention to keep Stanton out of the Cabinet. Accordingly on the 21st of February he dismissed Stanton from office and appointed Lorenzo Thomas, the Adjutant General, as acting Secretary of War. Stanton, advised by the radicals in Congress to "stick," refused to yield possession to Thomas and had him arrested for violation of the Tenure of Office Act. The matter now was in the courts where Johnson wanted it, but the radical leaders, fearing that the courts would decide against Stanton and the reconstruction acts, had the charges against Thomas withdrawn. Thus failed the last attempt to get the reconstruction laws before the courts. On the 22nd of February the President sent to the Senate the name of Thomas Ewing, General Sherman's father-in-law, as Secretary of War, but no attention was paid to the nomination.

On February 24, 1868, the House voted, 128 to 47, to impeach the President "of high crimes and misdemeanors in office." The Senate was formally notified the next day and on the 4th of March the seven managers selected by the House appeared before the Senate with the eleven articles of impeachment. At first it seemed to the public that the impeachment proceedings were merely the culmination of a struggle for the control of the army. There were rumors that Johnson had plans to use the army against Congress and against reconstruction. General Grant, directed by Johnson to accept orders from Stanton only if he were satisfied that they came from the President, refused to follow these instructions. Stanton, professing to fear violence, barricaded himself in the War Department and was furnished with a guard of soldiers by General Grant, who from this time used his influence in favor of impeachment. Excited by the most sensational rumors, some people even believed a new rebellion to be imminent.

The impeachment was rushed to trial by the House managers and was not ended until the decision was taken by the votes of the 16th and 26th of May. The eleven articles of impeachment consisted of summaries of all that had been charged against Johnson, except the charge that he had been an accomplice in the murder of Lincoln. The only one which had any real basis was the first, which asserted that he had violated the Tenure of Office Act in trying to remove Stanton. The other articles were merely expansions of the first or were based upon Johnson's opposition to reconstruction or upon his speeches in criticism of Congress. Nothing could be said about his control of the patronage, though this was one of the unwritten charges. J. W. Schuckers, in his life of Chase, says that the radical leaders "felt the vast importance of the presidential patronage; many of them felt, too, that, according to the maxim that to the victors belong the spoils, the Republican party was rightfully entitled to the Federal patronage, and they determined to get possession of it. There was but one method and that was by impeachment and removal of the President."

The leading House managers were Stevens, Butler, Bingham, and Boutwell, all better known as politicians than as lawyers. The President was represented by an abler legal array: Curtis, Evarts, Stanbery, Nelson, and Groesbeck. Jeremiah Black was at first one of the counsel for the President but withdrew under conditions not entirely creditable to himself.

The trial was a one-sided affair. The President's counsel were refused more than six days for the preparation of the case. Chief Justice Chase, who presided over the trial, insisted upon regarding the Senate as a judicial and not a political body, and he accordingly ruled that only legal evidence should be admitted; but the Senate majority preferred to assume that they were settling a political question. Much evidence favorable to the President was excluded, but everything else was admitted. As the trial went on the country began to understand that the impeachment was a mistake. Few people wanted to see Senator Wade made President. The partisan attitude of the Senate majority and the weakness of the case against Johnson had much to do in moderating public opinion, and the timely nomination of General Schofield as Secretary of War after Stanton's resignation reassured those who feared that the army might be placed under some extreme Democrat.

As the time drew near for the decision, every possible pressure was brought by the radicals to induce senators to vote for conviction. To convict the President, thirty-six votes were necessary. There were only twelve Democrats in the Senate, but all were known to be in favor of acquittal. When the test came on the 16th of May, seven Republicans voted with the Democrats for acquittal on the eleventh article. Another vote on the 26th of May, on the first and second articles, showed that conviction was not possible. The radical legislative reaction was thus checked at its highest point and the presidency as a part of the American governmental system was no longer in danger. The seven Republicans had, however, signed their own political death warrants; they were never forgiven by the party leaders.

The presidential campaign was beginning to take shape even before the impeachment trial began. Both the Democrats and the reorganized Republicans were turning with longing toward General Grant as a candidate. Though he had always been a Democrat, nevertheless when Johnson actually called him a liar and a promise breaker Grant went over to the radicals and was nominated for President on May 20, 1868, by the National Union Republican party. Schuyler Colfax was the candidate for Vice President. The Democrats, who could have won with Grant and who under good leadership still had a bare chance to win, nominated Horatio Seymour of New York and Francis P. Blair of Missouri. The former had served as war governor of New York, while the latter was considered an extreme Democrat who believed that the radical reconstruction of the South should be stopped, the troops withdrawn, and the people left to form their own governments. The Democratic platform pronounced itself opposed to the reconstruction policy, but Blair's opposition was too extreme for the North. Seymour, more moderate and a skillful campaigner, made headway in the rehabilitation of the Democratic party. The Republican party declared for radical reconstruction and negro suffrage in the South but held that each Northern State should be allowed to settle the suffrage for itself. It was not a courageous platform, but Grant was popular and carried his party through to success.

The returns showed that in the election Grant had carried twenty-six States with 214 electoral votes, while Seymour had carried only eight States with 80 votes. But an examination of the popular vote, which was 3,000,000 for Grant and 2,700,000 for Seymour, gave the radicals cause for alarm, for it showed that the Democrats had more white votes than the Republicans, whose total included nearly 700,000 blacks. To insure the continuance of the radicals in power, the Fifteenth Amendment was framed and sent out to the States on February 26, 1869. This amendment appeared not only to make safe the negro majorities in the South but also gave the ballot to the negroes in a score of Northern States and thus assured, for a time at least, 900,000 negro voters for the Republican party.

When Johnson's term ended and he gave place to President Grant, four States were still unreconstructed--Virginia, Texas, and Mississippi, in which the reconstruction had failed, and Georgia, which, after accomplishing reconstruction, had again been placed under military rule by Congress. In Virginia, which was too near the capital for such rough work as readmitted Arkansas and Alabama into the Union, the new constitution was so severe in its provisions for disfranchisement that the disgusted district commander would not authorize the expenditure necessary to have it voted on. In Mississippi a similar constitution had failed of adoption, and in Texas the strife of party factions, radical and moderate Republican, had so delayed the framing of the constitution that it had not come to a vote.

The Republican politicians, however, wanted the offices in these States, and Congress by its resolution of February 18, 1869 directed the district commanders to remove all civil officers who could not take the "ironclad" oath and to appoint those who could subscribe to it. An exception, however, was made in favor of the scalawags who had supported reconstruction and whose disabilities had been removed by Congress.

President Grant was anxious to complete the reconstruction and recommended to Congress that the constitutions of Virginia and Mississippi be re-submitted to the people with a separate vote on the disfranchising sections. Congress, now in harmony with the Executive, responded by placing the reconstruction of the three States in the hands of the President, but with the proviso that each State must ratify the Fifteenth Amendment. Grant thereupon fixed a time for voting in each State and directed that in Virginia and Mississippi the disfranchising clauses be submitted separately. As a result, the constitutions were ratified but proscription was voted down. The radicals secured control of Mississippi and Texas, but a conservative combination carried Virginia and thus came near keeping the State out of the Union. Finally, during the early months of 1870 the three States were readmitted.

With respect to Georgia a peculiar condition of affairs existed. In June, 1868, Georgia had been readmitted with the first of the reconstructed States. The state legislature at once expelled the twenty-seven negro members, on the ground that the recent legislation and the state constitution gave the negroes the right to vote but not to hold office. Congress, which had already admitted the Georgia representatives, refused to receive the senators and turned the State back to military control. In 1869-70 Georgia was again reconstructed after a drastic purging of the Legislature by the military commander, the reseating of the negro members, and the ratification of both the Fourteenth and Fifteenth Amendments. The State was readmitted to representation in July, 1870, after the failure of a strong effort to extend for two years the carpetbag government of the State.

Upon the last States to pass under the radical yoke heavier conditions were imposed than upon the earlier ones. Not only were they required to ratify the Fifteenth Amendment, but the "fundamental conditions" embraced, in addition to the prohibition against future change of the suffrage, a requirement that the negroes should never be deprived of school and officeholding rights.

The congressional plan of reconstruction had thus been carried through by able leaders in the face of the opposition of a united white South, nearly half the North, the President, the Supreme Court, and in the beginning a majority of Congress. This success was due to the poor leadership of the conservatives and to the ability and solidarity of the radicals led by Stevens and Sumner. The radicals had a definite program; the moderates had not. The object of the radicals was to secure the supremacy in the South by the aid of the negroes and exclusion of whites. Was this policy politically wise? It was at least temporarily successful. The choice offered by the radicals seemed to lie between military rule for an indefinite period and negro suffrage; and since most Americans found military rule distasteful, they preferred to try negro suffrage. But, after all, negro suffrage had to be supported by military rule, and in the end both failed completely.