A few days prior to the day set for taking the vote on the several Articles of Impeachment, and after the conclusion of testimony, it was proposed that there be a private session for conference of the Senate on a day named, May 11th, to give Senators an opportunity to declare themselves on the pending impeachment.
Neither the precise object or the utility of a conference were then apparent, but the result was somewhat of a surprise to those who had, up to that time, been undoubtingly confident of the President's conviction. Comparatively few Senators had previously declared their position. Very few, if any of the Republican Senators had indicated a disposition to vote against any of the articles, but the silence of a number of them, and their refusal to commit themselves even to their associates, was a source of uneasiness in Senatorial Impeachment circles. Hence, possibly, the suggestion of a "conference."
It was taken for granted that every Democratic Senator would vote against the impeachment. But the idea was not to be entertained that the "no" votes would extend beyond the Democratic coterie of twelve. There were, however, anxious misgivings as to that. There was too much silence—too much of saying nothing when so little that might be said would go so far to relieve an oppressive anxiety.
So a session for "conference" was ordered and held, much to the surprise of gentlemen whose silence had become somewhat oppressive, and was becoming equally painful to those who wanted a conference. It savored of an attempt to "poll the Senate" in advance of judgment. It was resolved at the session of May 7th, to hold a session for deliberation on the following Monday, May 11th. The most surprising development of that session was the weakness of the bill of indictment at the very point where it was apparently strongest—the first Article. Two conspicuous and influential Senators—Messrs. Sherman of Ohio, and Howe of Wisconsin—declared, and gave convincing reasons therefor, that they would not vote for the impeachment of Mr. Johnson on that Article.
In his remarks on this occasion, after giving a history of the enactment of the Tenure-of-Office law, the first section of which specifically excepts from its operation such members of Mr. Johnson's Cabinet as had been appointed by Mr. Lincoln and still remaining, though not recommissioned by Mr. Johnson, Mr. Sherman said:
I can only say as one of the Senate conferees, under the solemn obligations that now rest upon us in construing this Act, that I did not understand it to include members of the Cabinet not appointed by the President, and that it was with extreme reluctance and only to secure the passage of the bill that, in the face of the votes of the Senate I agreed to the report LIMITING AT ALL the power of the President to remove heads of Departments. * * * I stated explicitly that the Act as reported did not protect from removal the members of the Cabinet appointed by Mr. Lincoln, that President Johnson might remove them at his pleasure; and I named the Secretary of war as one that might be removed. * * * I could not conceive a case where the Senate would require the President to perform his great executive office upon the advice and through heads of Departments personally obnoxious to him, and whom he had not appointed, and, therefore, no such case was provided for. * * * Can I pronounce the President guilty of crime, and by that vote aid to remove him from his high office for doing what I declared and still believe he had a legal right to do. God forbid: * * * What the President did do in the removal of Mr. Stanton he did under a power which you repeatedly refused to take from the office of the President—a power that has been held by that officer since the formation of the Government, and is now limited only by the words of an Act, the literal construction of which does not include Mr. Stanton. * * * It follows, that as Mr. Stanton is not protected by the Tenure-of-Civil-Office Act, his removal rests upon the Act of 1789, and he according to the terms of that Act and of the commission held by him, and in compliance with the numerous precedents cited in this cause, was lawfully removed by the President, and his removal not being contrary to the provisions of the Act of March 2nd 1867, the 1st, 4th, 5th, and 6th Articles, based upon his removal, must fail.
On this point, Mr. Howe said:
If Mr. Stanton had been appointed during the present Presidential term. I should have no doubt he was within the security of the law. But I cannot find that, either in fact or in legal intendment, he was appointed during the present Presidential term. It is urged that he was appointed by Mr. Lincoln, and such is the fact. It is said that Mr. Lincoln's term is not yet expired. Such I believe to be the fact. But the language of the proviso is, that a Secretary shall hold not during the term of MAN by whom he is appointed, but during the TERM of the PRESIDENT by whom he may be appointed. Mr. Stanton was appointed by the President in 1862. The term of that President was limited by the Constitution. It expired on the 4th of March, 1865. That the same incumbent was re-elected for the next term is conceded, but I do not comprehend how that fact extended the former term.
Entertaining these views, and because the first Article of the Impeachment charges the order of removal as a violation of the Tenure-of-Office Act, I am constrained to hold the President not guilty upon that Article.
These declarations, coming from two gentlemen of distinction and influence in the party councils, both of whom had actively participated in framing the Tenure-of-Office Act, became at once the occasion of genuine and profound surprise, and it is unnecessary to say that they tended largely to strengthen the doubts entertained by others as to the sufficiency of all the other allegations of the indictment. They naturally and logically reasoned that the removal of Mr. Stanton, set out in the first Article, constituted, in effect, the essence of the indictment, and that all that followed, save the 10th Article was more in the nature of specifications, or a bill of particulars, than otherwise—that if no impeachable offense were set out in the first Article, then none was committed, as that Article constituted the substructure of all the rest—its essence and logic running through and permeating practically all—and that without that Article, there was no coherence or force in any of them, and consequently nothing charged against the President that was impeachable, as he had not violated the Tenure-of-Office law, and was not charged with the violation of any other law.
That conference developed, further, that a large majority of the Articles of Impeachment were objectionable to and would not be supported by a number of Republican Senators.
Mr. Edmunds would not support the 4th, 8th, 9th, and 10th Articles, being "wholly unsustained by proof," but would support the 11th, though apparently doubtful of its efficiency.
Mr. Ferry could not support the 4th, 5th, 6th, 7th, 9th, or 10th Articles.
Mr. Howard declared that he would not support the 9th Article.
Mr. Morrill of Vermont, would not support the 4th, 6th, 9th, or 10th Articles, as they were unproven.
Mr. Morrill, of Maine, Mr. Yates, Mr. Harlan, and Mr. Stewart, would vote to convict on the Articles relating to the removal of Mr. Stanton—uncommitted on all others.
Mr. Fessenden, Mr. Fowler, Mr. Grimes, Mr. Henderson, Mr. Trumbull, and Mr. Van Winkle, each declared, at that conference, their opposition to the entire list of the Articles of Impeachment.
But eighteen Republicans committed themselves at that conference, for conviction, out of twenty-four who filed opinions. While it was taken for granted that the six Democrats who had failed to declare their position at that conference would oppose conviction, the position of the eighteen Republicans who had failed to declare themselves became at once a source of very grave concern in impeachment circles. Out of that list of eighteen uncommitted Republicans, but one vote was necessary to defeat the impeachment. This condition was still farther intensified by the fact that eight of the eleven Articles of Impeachment were already beaten in that conference, and practically by Republican committals, and among them the head and front and foundation of the indictment—the First Article—by Messrs. Sherman and Howe, two conspicuous Republican leaders.
A forecast of the vote based on these committals as to the several Articles, would be against the First Article, twelve Democrats and eight Republicans, one more than necessary for its defeat—the eight "not guilty" votes including Messrs. Sherman and Howe.
Against the Fourth Article—twelve Democrats and nine Republicans—including Messrs. Edmunds, Ferry, and Morrill of Vermont.
Against the Fifth Article—twelve Democrats and eight Republicans-including Messrs. Edmunds and Ferry.
Against the Sixth Article—twelve Democrats and nine Republicans-including Messrs. Ferry, Howe, and Morrill of Vermont.
Against the Seventh—Article-twelve Democrats and seven Republicans—including Mr. Ferry.
Against the Eighth Article—twelve Democrats and seven Republicans—including Mr. Edmunds.
Against the Ninth Article—twelve Democrats and twelve Republicans—including Messrs. Sherman, Edmunds, Ferry, Howe, Howard, and Morrill of Vermont.
Against the Tenth Article—twelve Democrats and ten Republicans—including Messrs. Edmunds, Sherman, Ferry, and Morrill of Vermont.
It is somewhat conspicuous that but three gentlemen—Messrs. Sumner, Pomeroy, and Tipton, in their arguments in the Conference, pronounced the President guilty on all the charges—though five others, Messrs. Wilson, Patterson of New Hampshire, Frelinghuysen, Cattell, and Williams, pronounced the President guilty on general principles, without specification; and Messrs. Morrill of Maine, Yates and Stewart, guilty in the removal of Mr. Stanton, without further specification of charges.
As but one vote, in addition to the twelve Democratic and the six Republican votes pledged against conviction at the Conference, was necessary to defeat impeachment on the three remaining Articles—the 2nd, 3rd, and 11th—and as nearly a half of the Republicans of the Senate had failed to commit themselves, at least in any public way, the anxiety of the advocates of Impeachment became at once, and naturally, very grave. How many of the eighteen Republicans who had failed to declare themselves at that Conference might fail to sustain the Impeachment, became, therefore, a matter of active solicitude on all sides, especially in impeachment circles in and out of the Senate. Republican committals in the Conference had rendered absolutely certain the defeat of every Article of the Impeachment except the Second, Third, and Eleventh, and the addition of but a single vote from the eighteen uncommitted Republicans to the "No" side, would defeat them.
It was under this unfavorable condition of the Impeachment cause, that the Senate assembled on May 16th, 1868, for the purpose of taking final action on the indictment brought by the House of Representatives, the trial of which had occupied the most of the time of the Senate for the previous three months, and which had to a large degree engrossed the attention of the general public, to the interruption of legislation pending in the two Houses of Congress, and more or less to the embarrassment of the commercial activities of the country.
For the first time in the history of the government, practically eighty years, the President of the United States was at the bar of the Senate, by virtue of a constitutional warrant, on an accusation of the House of Representatives of high crimes and misdemeanors in office, and his conviction and expulsion from office demanded in the name of all the people. No event in the civil history of the country had ever before occurred to so arouse public antipathies and public indignation against any man-and these conditions found special vent in the City of Washington, as the Capitol of the Nation, as it had become during the trial the focal point of the politically dissatisfied element of the entire country. Its streets and all its places of gathering had swarmed for many weeks with representatives of every State of the union, demanding in a practically united voice the deposition of the President.
On numbers of occasions during the previous history of the Government there had been heated controversies between the Congress and the Executive, but never before characterized by the intensity, not infrequently malevolence, that had come to mark this and never before had a division between the Executive ............