Under the rules adopted for the trial each Senator was allowed to file a written opinion. That of Trumbull was the first one in the list. Among other things he said:
To do impartial justice in all things appertaining to the present trial, according to the Constitution and laws, is the duty imposed on each Senator by the position he holds and the oath he has taken, and he who falters in the discharge of that duty, either from personal or party considerations, is unworthy his position, and merits the scorn and contempt of all just men.
The question to be decided is not whether Andrew Johnson is a proper person to fill the presidential office, nor whether it is fit that he should remain in it, nor, indeed, whether he has violated the Constitution and laws in other respects than those alleged against him. As well might any other fifty-four persons take upon themselves by violence to rid the country of Andrew Johnson, because they believed him a bad man, as to call upon the fifty-four Senators, in violation of their sworn duty, to convict and depose him for any other causes than those alleged in the articles of impeachment. As well might any citizen take the law into his own hands and become its executioner as to ask the Senate to convict, outside of the case made. To sanction such a principle would be destructive of all law and all liberty worth the name, since liberty unregulated by law is but another name for anarchy.
He then took up the articles of impeachment seriatim and showed that they all hinged upon the removal of Stanton and the ad interim appointment of Thomas.
But even if a different construction could be put upon the law [he continued], I could never consent to convict the Chief Magistrate of a high misdemeanor and remove him from office for a misconstruction of what must be admitted to be a doubtful statute, and particularly when the misconstruction was the same put upon it by the authors of the law at the time of its passage.
As to the charge that he (Trumbull) had already voted that the President had no authority to remove Stanton, he said:
Importance is sought to be given to the passage by the Senate, before impeachment articles were found by the House of Representatives, of the following resolutions: "Resolved by the Senate of the United States, That under the Constitution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office ad interim" as if Senators, sitting as a court on the trial of the President for high crimes and misdemeanors, would feel bound or influenced in any degree by a resolution introduced and hastily passed before adjournment on the very day the orders to Stanton and Thomas were issued. Let him who would be governed by such considerations in passing on the guilt or innocence of the accused, and not by the law and the facts as they have been developed in the trial, shelter himself under such a resolution. I am sure no honest man could.
He concluded with these words:
Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient cause, and no future President will be safe who happens to differ with a majority of the House and two thirds of the Senate on any measure deemed by them important, particularly if of a political character. Blinded by partisan zeal, with such an example before them they will not scruple to remove out of the way any obstacle to the accomplishment of their purpose, and what then becomes of the checks and balances of the Constitution so carefully devised and so vital to its perpetuity? They are all gone. In view of the consequences likely to flow from this day's proceedings, should they result in conviction on what my judgment tells me are insufficient charges and proofs, I tremble for the future of my country. I cannot be an instrument to produce such a result, and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me but the inflexible discharge of duty.
Gideon Welles, under date May 16, says:
Willey, after being badgered and disciplined to decide against his judgment, at a late hour last night agreed to vote for the eleventh article, which was one reason for reversing the order and making it the first.... Bishop Simpson, a high priest of the Methodists and a sectarian politician of great shrewdness and ability, had brought his clerical and church influence to bear upon Willey through Harlan, the Methodist elder and organ in the Senate.108
So the managers vaulted over ten articles and began the roll-call on the last of the series. The vote resulted: guilty, 35; not guilty, 19. One less than two thirds had voted not guilty; so the President was acquitted on an article, the gravamen of which was the President's attempt to prevent Stanton from returning to office after the Senate had non-concurred in his removal. Sherman, Howe, and Willey had voted guilty on this article, but Henderson, Fowler, Ross, and Van Winkle had voted not guilty.
The impeachers were stunned, and before they could collect their thoughts, the Chief Justice, in pursuance of a rule previously adopted, directed that the vote should now be taken on the first article. He was interrupted by a motion to adjourn, which he ruled out of order. An appeal from the decision was taken and sustained by a majority vote, and the Senate sitting as a court of impeachment adjourned for ten days. The utmost efforts and direst threats were brought to bear upon Senator Ross because he was believed to be weak and defenseless, but he remained firm. When the court reassembled on the 26th of May, the first article of impeachment, the one which charged the President with the high misdemeanor of removing Stanton from office, was jettisoned altogether, and votes were taken on the second and third articles, relating to the appointment of Thomas as Secretary ad interim. On both of these articles the result was identical in number and personnel with that on the eleventh article. Impeachment had failed. The court then adjourned sine die.
The opposition to impeachment had some latent strength that was never officially disclosed. Sprague, of Rhode Island, and Willey, of West Virginia, attended the meetings of the Republican anti-impeachers and said they would vote not guilty if their votes should be needed.109 The President was assured that Morgan would do the same.110
On the same day, Edwin M. Stanton wrote a note to the President saying that inasmuch as impeachment had failed he had relinquished the War Department and had left the contents thereof in charge of the senior Assistant Adjutant-General. He then retired to his own home broken in health by hard labor and clouded in reputation by his retention of a place in the Cabinet in defiance of his chief. Not even success in maintaining his position could excuse such an act. Failure made it a glaring misdemeanor. An attempt has been made to shift the responsibility for his action to the shoulders of Sumner and his other backers in the Senate, who advised him to "stick." Undoubtedly they did so advise, and undoubtedly they believed, and persuaded him to believe, that it was a patriotic duty to commit a glaring breach of good manners and to persist in it for months; but the responsibility for such an act could not be assumed by other persons. Moreover, if it was a breach of the Constitution for the Senate to forbid the President to choose his own cabinet, as Stanton himself had affirmed, it was a breach of the Constitution for him to coöperate with the Senate in doing so.
The glory of the trial [says Mr. Rhodes]111 was the action of the seven recusant Senators.... The average Senator who hesitated finally gave his voice with the majority, but these seven, in conscientiousness and delicacy of moral fibre, were above any average, and in refusing to sacrifice their ideas of justice to a popular demand, which in this case was neither insincere nor unenlightened, they showed a degree of courage than which we know none higher. Hard as was their immediate future they have received their meed from posterity, their monument in the admiring tribute of all who know how firm they stood in an hour of supreme trial.
In this comment there is now general concurrence. Even Ross has been immortalized by his resolute adherence to what he believed to be right. His trial was the hardest of all, because on the one hand he had no accumulated reputation to fall back upon, and on the other hand he had the most radical state in the Union to deal with. Moreover, he was desperately poor, his only property being a starving country newspaper. Ill-luck followed him after his term expired. A cyclone struck the town of Coffeyville, Kansas, and scattered the contents of his newspaper office over the adjacent prairie. Among the Trumbull papers is an appeal from the local relief committee for help to start Ross's newspaper again, and a donation from Trumbull of two hundred dollars for this purpose. Some forty years later, Ross died in New Mexico, old and poor. He had been a soldier in the Civil War. Congress by a special act voted him a pension, before his death. This was a solace on the brink of the grave and a tribute to his fidelity to principle in a trying hour. It was recognized as such and applauded by the press of the country without a discordant note. In the award of credit for adherence to convictions of duty in the trial of Andrew Johnson, three other Senators have been for the most part overlooked, namely, James Dixon, of Connecticut, James R. Doolittle, of Wisconsin, and Daniel S. Norton, of Minnesota. All of these were elected as Republicans and all of them walked in the fiery furnace along with the Seven, or rather preceded them thither. The reason why they have been neglected by the muse of history is that they started two years earlier. They went to the Philadelphia Arm-in-Arm Convention and thus became classified as Democrats. Edgar Cowan, of Pennsylvania, did likewise. His term expired, however, before impeachment reached the acute stage. Dixon and Doolittle had served through Lincoln's entire term. They approved of his Reconstruction policy and simply adhered to it after Johnson came in. They received a larger share of contumely as turn-coats and outcasts than the Seven, because they began to earn that distinction earlier. Doolittle accepted political martyrdom without a murmur. The legislature of Wisconsin passed resolutions denouncing his support of President Johnson and his policy and demanded his resignation as a Senator, and these resolutions were presented to the Senate by his colleague, Timothy O. Howe, and were answered by Doolittle on the floor of the Senate in a manly way. If there are laurels to be distributed at this late day, he and his three allies are entitled to "a far more exceeding and eternal weight of glory."
Trumbull received his quota of abuse and vilification for his vote against impeachment from small-minded newspapers and local politicians. To these it seemed an infernal shame that he had still five years to serve in the Senate before they could turn him out. The only reply he ever made in writing, so far as I know, was in a letter dated May 20 to Gustave Koerner, which the latter caused to be published in the Belleville Advocate, reiterating in brief the views expressed in his opinion as a member of the court.
Fessenden's unexpired term was shorter than Trumbull's. He was read out of the party rather prematurely. In the autumn following his vote on impeachment, George H. Pendleton, of Ohio, made his appearance as a stump speaker in Maine supporting the Democratic policy of "paying the bonds in greenbacks." This was a new issue in the East, and a rather puzzling one everywhere. Pendleton had been a candidate for the presidency in the national convention on that platform, but had fallen somewhat short of a nomination. Fessenden was the only man within reach able to meet him and expose his fallacies on the stump. The party was in danger of losing the state. It was obliged to call for the Senator's help. He responded favorably, took the field and routed the Greenbackers completely. This was his last victory. He had been in poor health for some years. Overwork and over-anxiety as chairman of the Finance Committee during the War, and later as Secretary of the Treasury, had told upon a feeble frame. He died September 2, 1869, and with him passed away the most clairvoyant mind, joined to the most sterling character, that the state of Maine ever contributed to the national councils. Whether, if his life and health had been spared, he could have been reëlected to the Senate, is doubtful. Gideon Welles was informed that he had not a friend in the Maine legislature. When his death was announced in the Senate, Trumbull said of him:
As a debater engaged in the current business of legislation the Senate has not had his equal in my time. No man could detect a sophistry or perceive a scheme or a job quicker than he, and none possessed the power to expose it more effectually. He was a practical, matter-of-fact man utterly abhorring all show, pretension, and humbug.... But I did not rise so much to speak of the great abilities and noble traits of character which have made Mr. Fessenden's death to be felt as a national calamity, as of the personal loss which I myself feel at his departure. Only three others are now left who were here when I came to the Senate, and there is but one who came with me. There has been no one here since I came to whom I oftener went for counsel and whose opinions I have been accustomed more to respect than those of our departed friend. There were occasions during our fourteen years of service together when we differed about minor matters and had controversies, for the time unpleasant, but I never lost my respect for him, nor do I believe that he ever did for me. He was my friend more closely, perhaps, the last year or two than ever before. Like other Senators I shall miss him in the daily transactions of this chamber, and perhaps more than any other shall miss him as the one person from whom I most frequently sought advice. I am not one of those, however, who believe that constitutional liberty, our free institutions, or the progress of the age depend upon any one individual. When the great and good Lincoln was stricken down, I did not believe that the Government would fail, or liberty perish. Though his loss may have subjected the country to many trials it would not otherwise have had, still our Government stands and liberty survives. Another has taken Mr. Fessenden's place; others will soon occupy ours, to discharge their duties better, perhaps, than we have done, and he among us to-day will be fortunate, indeed, if, when his work on earth is done, he shall leave behind him a life so pure and useful, a reputation so unsullied, a patriotism so ardent, and a statesmanship so conspicuous as William Pitt Fessenden.112
Grimes had a stroke of paralysis while the impeachment trial was in progress, and it was feared that he could not be in his seat when the time for voting came, but he rallied sufficiently to be carried into the Senate Chamber and to rise upon his feet when his name was called. When he learned the nature of his malady he announced that he would not be a candidate for reëlection. Thus he was taken out of the reach of party vengeance, but though as pure as ice, he did not escape calumny.
John B. Henderson died while this book was passing through the press. He was the only one of the Seven Traitors whom the Republican party publicly and formally forgave. He lost his seat in the Senate as he expected, and he retired to private life as a lawyer in the city of St. Louis. Twelve years passed. Two presidential lustrums of Grant and one of Hayes had erased from the hearts of men the burning sensations of impeachment. In 1884, a convention assembled in Chicago to nominate a candidate of the Republican party for the presidency. I happened to be there. On the second day of its sitting, the Committee on Permanent Organization reported the name of John B. Henderson, of Missouri, for permanent chairman. The assembled multitude knew at once the significance of the nomination and gave cheer after cheer of applause and approval. It was the signal that all was forgiven on both sides. Which side most needed forgiveness was not asked.
In August, 1868, all the sorrows of Trumbull's public life were submerged and belittled by a domestic affliction. His wife, Julia Jayne Trumbull, died on the 16th of that month, at her home in Washington City, in the forty-fifth year of her age, and was buried in the cemetery of her native place, Springfield, Illinois. She was the mother of six children, all boys, three of whom were living at the time of her death.
CHAPTER XXI
THE McCARDLE CASE—GRANT'S CABINET—THE FIFTEENTH AMENDMENT
In November, 1867, General Ord, commanding the military district of Mississippi, arrested and imprisoned an editor named W. H. McCardle, for alleged libelous and incendiary publications. McCardle applied to the United States Circuit Court for a writ of habeas corpus under the same act of Congress which Milligan had successfully invoked. The writ was granted, a hearing was had, and the prisoner was remanded to the custody of the military authorities. McCardle took an appeal to the Supreme Court. The Attorney-General of the United States, Mr. Henry Stanbery, decided not to appear in the case. General Grant was at this time Secretary of War ad interim, and Stanbery notified him of the pending case and suggested to him the propriety of employing counsel to represent the military authorities having McCardle in custody. As this was a case involving the validity of the Reconstruction laws of Congress, General Grant took steps to defend, and addressed a letter to Senator Trumbull, dated January 8, 1868, saying: "This Department desires to engage your professional services, for that object." Trumbull replied on the 11th, accepting the employment, and saying that he should desire to have other counsel associated with him. A few days later he secured the assistance of Matt. H. Carpenter, of Wisconsin. A brief was prepared, and both Trumbull and Carpenter made oral arguments. McCardle was represented by Jeremiah S. Black.
Trumbull's argument was made on the 4th of March. He contended that the court had no jurisdiction, and that, therefore, the appeal should be dismissed. The legislation of Congress on the subject was as follows: The Act of 1789, establishing the judiciary, did not give the right of appeal to the Supreme Court in habeas corpus cases. It was omitted in order to avoid lumbering the docket of the highest tribunal with petty details. On the 5th of February, 1867, Congress passed an act granting the right of appeal to the Supreme Court in such cases, in order to protect negroes and white Unionists in the South. The last clause of the act was in these words:
This act shall not apply to the case of any person who is or may be held in the custody of the military authorities of the United States charged with any military offense, or with having aided or abetted rebellion against the Government of the United States prior to the passage of this act.
It was Trumbull's contention that McCardle fell within this exception, and hence that the right of appeal, so far as he was concerned, did not exist.
Congress was in trepidation as to the outcome of the case and was resolved to take no chances on it. Various legislative remedies were proposed. One was to require a unanimous vote of the Supreme Court to pronounce any act of Congress unconstitutional and void. A bill requiring a two-thirds vote of the court in such cases actually passed the House on the 13th of January by yeas 116, nays 39, but it was never considered by the Senate. The end was accomplished, however, in a different way. The Senate had passed a bill of only one section, reported by Williams, of Oregon, from the Committee on Finance, to amend the code of judicial procedure in revenue cases. The House attached to this bill another section repealing so much of the Act of February 5, 1867, as authorized an appeal to the Supreme Court in the class of cases therein named, and withdrawing from the Supreme Court jurisdiction as to appeals already taken. This bill passed the House March 13, 1868, without a division. It was taken up in the Senate on the motion of Senator Williams and passed by a vote of 32 to 6 the same day, although Senators Buckalew and Hendricks asked for an explanation of its meaning, which was not given to them.
Although Buckalew and Hendricks did not have time to find out the nature of this bill, Andrew Johnson did. In due time he returned it to the Senate with a veto message, exposing it as a measure to deprive citizens of their rights under existing law and to arrest proceedings already in course of judicial determination. On this veto there was a debate in the Senate beginning on March 25, 1868, in which the Democrats, led by Hendricks, had decidedly the best of it. The supporters of the bill had very little to say for themselves. Trumbull contended that the bill did not affect any case then pending in the court, but in this debate he was worsted by Doolittle, who showed that it applied to the McCardle case. Trumbull and Carpenter had argued that the Supreme Court had no jurisdiction, since military cases were not appealable under the Act of February 5, 1867. The court had ruled against them because McCardle was arrested, not for a military, but for a civil offense. It still remained to be determined whether the court below had jurisdiction. Trumbull was confident that the Supreme Court would hold that the lower court had no such jurisdiction, in which case the appeal would fail and the bill vetoed by the President would be nugatory as to McCardle. Doolittle in reply showed that the bill did cut off McCardle's rights as an appellant, and the Supreme Court so held in the month of December following, when it dismissed the petition expressly on the ground that its jurisdiction had been withdrawn by the Act of March 27, 1868. The bill was passed over the veto on that date, by 33 to 9 in the Senate and by 115 to 34 in the House. It was partisan legislation. The Republicans drew a long breath after its passage because they had apprehended another Milligan decision, undermining, perhaps, the whole fabric of Congressional Reconstruction. Had not the court been deterred by the critical condition of public affairs, it might with perfect propriety have retained its jurisdiction and decided in favor of McCardle, since the Act of March 27 was glaringly unjust as to him. But the judges were intimidated by the awful pother o'er their heads and were glad of an excuse to drop McCardle.
It was not so easy to drop Trumbull, however. He was both Senator and retained counsel in this case. Therefore he ought not to have used the former position to help his own side in the litigation. The bill did not originate with him, or his committee, but he voted for it twice, although his vote was not needed. There was a two-thirds majority without him. True, he maintained that the bill did not apply to McCardle, but most of the Senators who took part in the debate held that it did. In a case of doubt involving the rights of a litigant, he ought to have refrained from voting.
Eventually he received $10,000 as compensation for legal services in this and one other case in which he had been retained by the War Department. The amount was fixed by Stanton, and was paid in part by him and in part by Secretary Rawlins after Grant became President. Somewhat later this payment became a subject of criticism in hostile newspapers; and inasmuch as the McCardle case had been tried during Johnson's Administration, it was hastily assumed that it had had some shady connection with Trumbull's vote of not guilty in the impeachment case. When it became evident that the opponents of Johnson were the ones who had employed him and fixed the amount to be paid, the accusers said that his action was contrary to law and that he ought not to have taken any pay at all for legal services to the Government while he was a Senator. This charge was made by Chandler, of Michigan, on the floor of the Senate, and it led to a sharp debate, in which Chandler was called to order by the Vice-President for using unparliamentary language.
There was a law, enacted in 1808, prohibiting executive officers of the Government from making contracts with members of Congress, and prohibiting the latter from receiving payment therefor. This law did not apply in terms to legal services, and the presumption was that it did not apply to them in spirit, since there were precedents for such employment of members of Congress as late as 1864, when Roscoe Conkling, then a member of the House from New York, had been employed by the War Department and had been paid for the service rendered.
Chandler, in the debate, quoted an opinion of Attorney-General Wirt, given in 1828, to the effect that although the circumstances attending the passage of the Act of 1808 showed that Congress was then legislating on contracts for carrying the mails and for the purchase of supplies and not for legal services, yet, in his belief, the law was broad enough to include such services. An opinion of an Attorney-General, however, was not binding on Senators.
Trumbull replied that the law had been settled differently as to legal services, and that the only prohibition then in force was against Congressmen practicing for compensation in the Court of Claims or before the executive departments. In this contention he could hardly fail to be correct, since all such laws later than 1861 had emanated from, or had passed through, the committee of which he was chairman. The governing statute was the act of June 11, 1864, introduced by Senator Wade, in 1863. As originally drawn, it prohibited Congressmen from practicing for or against the Government before any court, or department; but the word "court" was stricken out while it was pending in the Senate, and this was good evidence to show what the intention of Congress was.
Although the payment was certainly legal, it would have been better for Trumbull if he had not taken it. Whenever he came before the people for public preferment thereafter, the Chandler accusation was brought against him afresh and it required a new refutation.
After the impeachment fiasco was ended, the nomination of Grant for President by the Republican party was inevitable—not because he was a Republican, but because he was the only man whom the party could certainly elect. Until he quarreled with Andrew Johnson, nobody knew which side he favored. Indeed, the Democrats, until that time, had looked hopefully to him as a possible candidate for themselves.
The convention which nominated him was confronted by the fact that Congress had imposed negro suffrage on the South, while some of the largest Northern States had not yet adopted it, but had flatly refused to do so. The platform committee, therefore, reported, and the convention adopted, a resolution declaring:
The guaranty by Congress of equal suffrage to all loyal men at the South was demanded by every consideration of public safety, of gratitude, and of justice, and must be maintained, but the question of suffrage in all the loyal states properly belongs to the people of those states.
Grant was nominated unanimously May 20, 1868, and Schuyler Colfax was nominated as Vice-President. The Democrats nominated Horatio Seymour for President and Frank P. Blair for Vice-president. In the election, Grant and Colfax received 214 electoral votes and Seymour and Blair 80.
Grant's first Cabinet was a conglomerate which stupefied the politicians. For Secretary of State he named Elihu B. Washburne, of Illinois. Washburne had represented the Galena District in Congress continuously and creditably for twelve years, and was just entering upon a new term. He was a fellow townsman of Grant when the war broke out and had recommended him to Governor Yates as a military helper, and from that time onward had been his stanch and unwavering supporter. When Grant fell into disfavor after the battle of Shiloh, and almost everybody in Washington was clamoring against him, Washburne fairly roared on the other side, and contended not only that he ought to be retained in his place, but that he ought to be promoted to Halleck's place in command of all the Western armies—and here he was right. His personal relations with the General had been so close and his services so conspicuous that there was a general expectation that he would have a place in the Cabinet; but nobody supposed that it would be the Department of State, for which he was wholly unfitted. Although a man of ability, tenacity, and long experience in public affairs, he was impulsive, headstrong, combative, and unbalanced. The Department of State was regarded then as the premier position, where equipoise was the chief requisite, and this quality Washburne lacked.
Grant had chosen James F. Wilson, of Iowa, as Secretary of State and Wilson had accepted the appointment. He had been a leading member of the House and chairman of its Judiciary Committee, and had been consulted by Grant on the most important matters connected with his duties as Secretary of War ad interim, including his correspondence with Andrew Johnson after he had resigned that office. Wilson had declined a reëlection to Congress because he wished to retire from public life, and he accepted the appointment offered by Grant with reluctance and only at the urgent solicitation of the latter.
Washburne had been promised the office of Minister to France. When he knew that Wilson was to be appointed Secretary of State, he went to Grant and asked that the appointment of Secretary might be conferred upon himself temporarily so as to give him prestige in his office as Minister. Grant saw no objection to this, but he asked Wilson's permission first. Wilson did not relish the proposition, but he consented, on condition that Washburne should not take any action as Secretary, either in the way of appointments to office or the announcement of policies. As soon as Washburne had been confirmed by the Senate, he began to make appointments and announce policies, and Grant did not immediately call him to order. Wilson accordingly notified Grant that as the conditions had been broken he would not now accept the office. Grant then compelled Washburne to resign. But meanwhile Wilson had gone to New York en route to his home in Iowa, and a messenger (A. D. Richardson) was sent after him by Grant to urge him to change his mind; he declined to do so, in terms, however, which preserved their friendship unimpaired.113