Edmund G. Ross: Soldier, Senator, Abolitionist

13: The Impeachment Trial of Andrew Johnson

121 Chap ter thirteen The Impeachment Trial of Andrew Johnson [I] weighed the cause as the Constitution and laws and my oath demanded. —Ross, speech to the United States Senate, May 27, 1868| Although the 1868 move to impeach Andrew Johnson became tied to Johnson’s defiance of the Tenure of Office Act, the impeachment always was more about politics than it was about a violation of law. It was inextricably linked to the Reconstruction Acts and Johnson’s obstructionist policies. The first effort to impeach, in December 1867, had failed when the House was unable to find charges against Johnson substantial enough to warrant his removal. No president had ever been impeached, and so no precedent existed for removal from office. The House, in the 1867 effort, had by implication made “high crimes and misdemeanors” sufficient justification for impeachment. So as the impeachment trial of 1868 began, the question before the House, as prosecutor, and the Senate, as jurists, became to decide whether Andrew Johnson had violated a valid law and, if so, whether that was an impeachable offense. The 1867 Tenure of Office Act made it illegal for the president to remove any government officer appointed by the president and confirmed by the Senate unless and until the Senate confirmed a replacement. The law covered officeholders from cabinet members right down to postmasters in the smallest towns in the United States. An exception in the law allowed the president 122 < chapter thirteen to remove an official when the Senate was in adjournment, but the Senate had the right of review upon reconvening. Clearly Johnson was in violation, or attempting to be in violation, of the Tenure of Office Act with the appointment of General Lorenzo Thomas to replace Edwin Stanton in February 1868 while the Senate was in session. In the eyes of the Radical leaders in Congress, this was all that was needed to seek the removal of Johnson. So eager were the Radicals in the House of Representatives that their vote on impeachment was taken even before they had drawn up articles. The leader of the House delegation that formally notified the Senate of its intentions was Thaddeus Stevens of Pennsylvania. Stevens’s health was so poor that two black servants regularly carried him around in a chair. In appearing before the bar of the Senate on February 25, Stevens was able to stand for the short time it took to advise the Senate of the House’s intentions to impeach and to announce that the House would have articles of impeachment ready within days. On March 2 the so-called House managers , the designated prosecutors, returned to read the eleven articles at the bar of the Senate. While Stevens would have preferred to read the articles himself, he was obliged to allow Representative John A. Bingham to do the reading. In addition to very poor general health, Stevens was cursed with the pain of a clubfoot. Of the seven impeachment managers, six stood during the reading while Stevens remained seated. The first eight articles of impeachment were legalistic variations accusing Johnson of firing Stanton and attempting to replace him with General Thomas in violation of the Tenure of Office Act. The first article was the linchpin holding the next seven in place. The ninth article involved the alleged attempt by Johnson to circumvent the bill passed by Congress to confine Johnson to issuing orders to the military only through the general of the army. The basis for that article was the testimony of General William H. Emory, commander of the Washington Garrison, that in conversation the president had told him that the law was unconstitutional, that it deprived him of his constitutional rights as commander-in-chief, and suggested that he intended to find some way to ignore it.1 Article 10 was written by Representative Benjamin F. Butler at the urging of Thaddeus Stevens, who believed the articles needed more “vigor.” It was a weak article that alleged that Johnson had publicly ridiculed Congress with the intent to “set aside the rightful authorities and powers of Congress.”2 Article 11 was essentially a vague summation of the other articles in a strongly worded attempt to characterize Johnson as guilty of “a high misdemeanor in office.”3 The Impeachment Trial of Andrew Johnson = 123 TheproceedingsinthenewlyexpandedandremodeledCapitolBuilding were both a serious undertaking and a public spectacle. The impeachment trial was easily the biggest show in town. To limit the size of the gallery in the Senate chamber, one thousand tickets were issued. Women were there each day in their finest clothing, arriving well before proceedings began to have the best view and the most conspicuous seat possible. Each senator was allowed four tickets; forty went to Washington diplomats, four to the chief justice, and two each to cabinet members. Sixty were set aside for press members, while the members of the House and government officials shared the remainder.4 As provided in the Constitution, the chief justice of the United States presided over the trial. The Honorable Salmon P. Chase had a distinguished career as governor of Ohio, as a United States senator from Ohio, as secretary of the treasury under Lincoln, and finally as chief justice of the Supreme Court. He favored black suffrage and the Radical approach to Reconstruction. Chase’s power was unlike that of a judge in a civil trial. The Republican-controlled Senate carefully drew up the procedures that Chase was required to follow. The chief justice was allowed to rule on routine matters of law, but if any senator objected to his ruling, a vote of all senators present was required to decide the issue, including the admissibility of testimony or evidence.5 This makes it possible to track Edmund Ross’s position on various issues. President Johnson was ordered to appear before the Senate on March 13 to answer the charges. Johnson did not appear in person but sent a team of defense lawyers that included Henry Stanbery of Kentucky, a Republican who until days before was the attorney general; Benjamin R. Curtis of Massachusetts, a Republican and a former justice of the U.S. Supreme Court who had dissented in the Dred Scott case; Thomas A. R. Nelson, a Democrat from Tennessee; William M. Evarts of New York, a longtime Republican who would become Johnson’s attorney general following the impeachment trial; and William G. Groesbeck of Ohio, the only Democrat besides Nelson to defend Johnson. It was a highly prestigious team of lawyers, and the fact that the team was dominated by Republicans was no accident. Together they asked for a forty-day delay to properly prepare their defense, but they were granted only ten days. Besides Thaddeus Stevens of Pennsylvania, the members of the prosecution team, the so-called House managers, included Bingham of Ohio; George S. Boutwell of Massachusetts; James F. Wilson, a talented young 124 < chapter thirteen representative from Iowa who would eventually turn down offers for cabinet positions but would become a United States senator; John A. Logan of Illinois, who had resigned his earlier congressional seat to serve in the Civil War; Thomas F. Williams of Pennsylvania; and Butler of Massachusetts, a Radical Republican who had an illustrious career as a Union general and was appointed lead prosecutor of the impeachment team. Butler was difficult and uncompromising, with about as bad a reputation in the South as a former Union general could have. He was widely known in Louisiana, where he had served much of his Civil War time, as the Beast Butler or as the Butcher of New Orleans. As the trial progressed, the Radical leadership must have grown uneasy about Ross and six other Republicans whose votes on various issues were out of step with the majority. Just as Democrats were expected to acquit Johnson, so too did the Republican leadership expect a guilty vote from all of its members, especially from the likes of a very junior senator like Ross. Ross was expected to “toe the line.” He was, after all, a Radical—or so they thought. In his own book about the Johnson impeachment, Ross discussed the testimonial phase of the trial, the phase that lasted the better part of April. Ross believed that much of the testimony was unimportant in the long run, but he selected thirty instances when the Senate was required to vote on issues that were important. Ross reported on the proceedings with comprehensive quotes from the Congressional Globe and provided complete documentation of the voting. Most of the votes involved challenges to the admissibility of testimony. Ross’s votes show a decided willingness to allow evidence to be given, regardless of what side was challenging. Of the twenty-eight votes on admissibility of testimony or evidence, twenty-one challenges were by the prosecution and seven by the defense. Of the twentyeight votes, Ross voted twenty-seven times for admissibility and only once for rejection.6 During the trial the voting by Ross and the six other Republicans who eventually voted for acquittal, and who became known as “the recusants ,” was consistent. Senators Joseph S. Fowler and Peter G. Van Winkle each voted twenty-six times with Ross. Senators William Pitt Fessenden, Lyman Trumbull, and James W. Grimes each voted twenty-four times with Ross. Senator John B. Henderson voted nineteen times with Ross, and this number would likely have been larger had Henderson not been absent or abstained for eight votes. The preponderance of votes by the twelve The Impeachment Trial of Andrew Johnson = 125 Democratic senators amounted to agreement with Ross twenty-three times. By comparison, Ross’s fellow Republican senator from Kansas, the Radical senator Samuel C. Pomeroy, voted only seven times with Ross. So while Ross was displaying open-mindedness in allowing evidence and testimony, if one paid close attention, he was also demonstrating a shift away from Radicalism at least on the issue of impeachment. Two of the issues involving testimony that directly related to the president ’s defense are worth noting. On April 11 General William T. Sherman was called upon for testimony regarding Johnson’s attempt to appoint him as secretary of war ad interim. What the defense was trying to show was that the president intended this appointment and the second firing of Stanton to be tested in the Supreme Court and that Sherman could confirm that this was the president’s intention. The counsel for the defense pursued Sherman’s testimony with a number of questions. Each time, the prosecution objected on the grounds that the question was either leading or incompetent . The questions included the following: At the first interview at which the tender of the duties of the Secretary of War ad interim was made to you by the President did anything further pass between you and the President in reference to the tender or your acceptance of it? In either of these conversations did the President say to you that his object in appointing you was that he might thus get the question of Stanton’s right to the office before the Supreme Court? Was anything said at either of those interviews by the President as to any purpose of getting the question of Mr. Stanton’s right to the office before the courts? Did the President, in tendering you the appointment of Secretary of War ad interim, express the object or purpose of so doing?7 In voting on each of these questions, Ross was for the admittance of the testimony. However, because Republicans had an overwhelming number of votes, they were able to block Sherman’s answers to the questions. This impaired Johnson’s ability to prove a deliberate intention to test the constitutionality of the Tenure of Office Act. The House managers contended that 126 < chapter thirteen he never mentioned a Supreme Court test until after he was impeached. To a degree, they were right. In December, when Johnson submitted his reasons for suspending Stanton for the first time in August 1867, he seemed to be tacitly accepting the Tenure Act as a valid law; he did not mention a belief that the law was unconstitutional. The Radical leadership in late February and early March argued that a Supreme Court test was just an excuse by Johnson and not his actual plan of action. Sherman’s testimony might have supported the president’s contention, but that testimony was never heard. The other issue worth noting came during the testimony of Gideon Welles, the secretary of the navy in Johnson’s cabinet. The defense was trying to show that in February 1867, when the cabinet met to discuss the Tenure Act before it became law, they were unanimous in the opinion that members appointed by Lincoln, and who continued to serve in Johnson’s cabinet, were not covered by the provisions of the Tenure of Office Act. This kind of authoritative support lent credence to Johnson’s contention that Stanton was not covered by the law. Welles could have confirmed that Johnson had the full support of the cabinet and was not just acting without good counsel, but the Republican majority again prevailed in rejecting Welles’s testimony, while Ross and five of the other recusant senators (Henderson apparently was absent) voted unsuccessfully in favor of Welles testifying.8 When the testimonial phase of the trial ended, a caucus of senators was planned for May 11. While it was widely believed that Johnson was sure to be found guilty, Ross states that comparatively few senators actually had declared how they would vote on the articles, and informal polling before the eleventh revealed unexpected weakness in the Senate ranks. At the May 11 session two influential Republican senators, John Sherman of Ohio and Timothy Howe of Wisconsin, both of whom had been involved in drafting the Tenure of Office Act, declared their lack of support for the first article, stating that they did not believe that Edwin Stanton was covered by the tenure law. This quickly made it clear that article 1, charging Johnson with the blatant attempt to remove Stanton while the Senate was in session, in violation of the tenure law, would fail. Not only that, eight of the articles would fail, and Johnson stood a chance of being found guilty only of the second, third, and/or eleventh articles.9 Articles 2 and 3 could only be considered possibilities by the slimmest of margins, given that article 1, closely related to the next two, was destined to fail. Article 2 charged Johnson with writing a letter authorizing Lorenzo Thomas to act as ad interim secretary The Impeachment Trial of Andrew Johnson = 127 of war. Article 3 alleged that Johnson’s unlawful appointment of Thomas was a deliberate attempt to violate the Constitution. Article 11 had the best chance to succeed, because a guilty vote allowed senators to hide behind the hodgepodge of charges. It was not a surprise that only three senators declared their intention to vote guilty on all eleven articles: Charles Sumner, Thomas W. Tipton, and Ross’s fellow senator from Kansas, Samuel Pomeroy, all Radical Republicans. Six of the recusant senators—Fessenden, Fowler, Grimes, Henderson, Trumbull, and Van Winkle—stated that they did not support any of the charges. Ross, the seventh recusant, either refused to say how he would vote or was vague about his stand on several of the articles, allowing the Republican leadership to believe they might still count on him to vote with the majority. The popular history of the impeachment has Ross as the only senator who refused to say how he would vote. That may have been true in the days just before May 16, the day set aside for the first formal vote, but in early May there were a significant number of uncommitted senators, according to Ross.10 With assurance of conviction in danger, the Radical leadership applied pressure to all Republicans who were either uncertain or sure of voting for acquittal. Because Ross was a junior senator, and because he was ostensibly a Radical, the pressure on him was particularly strong. How could he, a Radical Republican from Kansas, refuse to vote guilty on at least one article? All the recusants were relentlessly stalked and warned that their future was grim if they did not vote to convict. Ross was aware that the people in heavily Republican, and often Radical, Kansas would not hesitate to end his career. Ross’s intentions were unknown to anyone but himself, and because he refused to say what he would do, Republican leaders were persistently stubborn in trying to induce him to announce that he would vote “guilty” on at least a couple of the articles. Ross likely knew he would vote to acquit on all articles but preferred to keep his intentions secret, hoping to have the vote postponed until July 1.11 If the vote could be postponed, new developments could possibly save him from having to reveal his true convictions. The closer to May 16, the more pressure there was on Ross. In an interview for the Kansas City Star in 1903 Ross told the reporter, “I was aware at the time that I stood in personal danger. . . . I was given a friendly intimation that I stood in danger of assassination. One man voluntarily acknowledged to me after the trial that he had been connected with a plot to kidnap and take me to New York city.”12 128 < chapter thirteen Historian David Dewitt described Ross as “the target of every eye; his rooms beset by his Radical constituents, associates and friends wild to gain some satisfactory inkling of his mind. His outgoings and incomings, his companions and his convivialities, his breakfast, his dinner, his lodgings, were marked and set down in note-books.”13 The Radical leadership of the Senate later claimed that Ross had committed to vote guilty on several of the articles. Ross, in fact, later said he had indicated a possibility of voting guilty on article 1 and perhaps 11, but he claimed never to have made a firm commitment to anyone on the other nine articles. Had the Republican leadership been certain of Ross’s commitment , there would have been no need to continue pursuing him as they did. Clearly they must have detected hesitancy. Senator Pomeroy, the team leader in confronting Ross, cornered him several times in the days before the May 16 vote. On Tuesday the twelfth or Wednesday the thirteenth, according to a report by Pomeroy, the two men met in the room of the sergeant at arms, where Pomeroy claimed to have Ross’s firm commitment on articles 1, 2, 3, and 11. Ross reported that the meeting had actually taken place on the afternoon of the fourteenth and that he told Pomeroy he was a certain “yes” on article 1, but that he should be listed as uncertain on the rest except number 8, which he absolutely did not support.14 If Ross had committed only to the first article, as he claimed, Pomeroy would have seen through Ross’s plan. Ross could easily vote yes on number 1 because it was clear from the caucuses that there was not enough support for article 1 to pass. Thus Ross could say he was for conviction, to satisfy his constituents that he was indeed in favor of putting an end to Johnson’s career. Had article 1 ever been voted on, Ross could possibly have voted yes. Ross claims that until May 14 he made no promises to vote for any of the articles. After the May 14 meeting Pomeroy continued to hound Ross right up to the final minutes before the Senate convened to begin voting, which suggests that Pomeroy was not convinced that Ross would vote “yes” for any article with the possible exception of number 1. Pomeroy said he met by chance with Ross at the National Hotel in the room of Senator Van Winkle on Thursday night, the fourteenth. Ross was meeting with Senators Trumbull, Henderson, W. T. Willey, and Van Winkle, who obviously were discussing the votes they would cast in little more than thirty-six hours. Van Winkle and Willey were Senate colleagues from West Virginia. They had arrived at the conclusion that, if needed, both would vote for acquittal, but if only one vote were needed, only Van Winkle, The Impeachment Trial of Andrew Johnson = 129 who was the more certain of the two about acquitting the president, would vote “not guilty.”15 Years later Henderson would also report that at that meeting the plan was made for Senators William Sprague and Willey to cast “not guilty” votes if one of the recusants before them failed to do so, but only if necessary.16 In joining the conversation, Pomeroy claimed to all in the room that there were enough “guilty” votes to achieve conviction, 36 to 18. Henderson disagreed and said enough senators would vote “not guilty” to cause the conviction to fail by 4 votes. When he heard Pomeroy say that there were 36 “guilty” votes, Ross asked if he were counting him in that number, and Pomeroy said yes. Ross then said that he could not be counted on for any of the articles and that if anyone asked Pomeroy how Ross was going to vote, he should say he didn’t know. Ross reiterated that he preferred to have the voting postponed.17 While Ross may have been hesitant to tell Pomeroy how he was going to vote, it is almost a certainty he told the others in the room of his plans to acquit. In his May 27 speech to the Senate, Ross revealed that he shared his “not guilty” intentions for the first time on May 14.18 The decision on how to vote must have been agonizing to Ross; he hoped for some easy way out, because he knew the consequences of voting his true conscience. The next meeting between Ross and Pomeroy took place the following night, May 15, the eve of the formal vote. Pomeroy had received a telegram from Daniel R. Anthony of Kansas addressed to both senators. Anthony claimed to represent “1,000 others” and said: “Kansas has heard the evidence and demands the conviction of the President.” In order to ensure that Ross saw the message, Pomeroy invited Ross to his home for dinner. According to Pomeroy, they had a pleasant dinner with the Pomeroy family at which they discussed how the voting might go the next day. Pomeroy remembers Ross saying that the eleventh article was the strongest and that he felt freer to vote for that article than any other but that he preferred there be a postponement, and he asked Pomeroy to support him. However, Ross’s recollection of the evening was slightly different. Ross said they had dinner without discussing the impeachment and that the only time it was discussed was on the front porch of the Pomeroy residence as Ross waited for a streetcar. It was at that time that Ross asked for his colleague ’s support for a postponement and again refused to commit himself on the eleventh article.19 Ross’s whereabouts until breakfast the next morning are uncertain. One source suggests that Ross was later seen at a Washington restaurant 130 < chapter thirteen with Henderson and Van Winkle and that Thomas Ewing Jr. met Ross around midnight at the Ream house and they departed together for the Western Union office to allow Ross to respond to the Anthony telegram.20 Pomeroy was not the only Republican working overtime to make sure Ross voted “the right way.” One last desperate attempt to secure Ross’s cooperation was made by General Dan Sickles. Sickles had commanded the congressional Reconstruction program in the Carolinas, a job from which he was fired by President Johnson the previous summer. His attempt to “reach” Ross involved a daughter of Ross’s landlord, Robert L. Ream. Vinnie Ream was a young and beautiful sculptress who at the age of eighteen was commissioned to do a statue of Abraham Lincoln. During the impeachment Vinnie worked daily on the project in the basement of the Capitol. Vinnie’s father, a surveyor, had advised Ross on the purchase of property in Wabaunsee County in 1857, and their friendship continued through the years. In 1868 the Reams kept a home in Washington, D.C., and rented Senator Ross a room while Congress was in session. Vinnie was an extraordinary talent who, as a teenager, had gone to the White House virtually every day to sketch President Lincoln as he hurried down a hallway on his way to lunch. When Lincoln finally took notice of her presence and learned she was a sculptress, he invited her into his office during his periods of rest. The extraordinary and regular access to the president that Vinnie enjoyed allowed her to create a medallion and at least two early busts of Lincoln. Because of her proven talent and competence and her familiarity with Lincoln, she was given the impressive commission of $10,000 by Congress to undertake the full-length statue of Lincoln in July 1866, at just the time that Ross was selected to replace Jim Lane.21 With Vinnie working in the Capitol and Radicals doing all they could to win over Ross, it was inevitable that Vinnie would be approached to use her influence with Ross. She was frequently interrupted in her basement studio, but the boldest approach came in the very early hours of May 16, just hours before the final vote. General Sickles knocked on the door of the Ream house shortly after midnight. He apparently had difficulty finding the house but, seeing lights on inside, decided he would press on with his mission. On crutches (he had lost a leg at Gettysburg) he pushed his way into the house when Vinnie answered the door and announced that he was looking for Ross. When Vinnie said he wasn’t there, Sickles insisted on waiting until he came home. He tried again to persuade Vinnie to help Ross see what a dear price he would pay if he voted “not guilty.” As the minutes The Impeachment Trial of Andrew Johnson = 131 turned into hours, Sickles even persuaded Vinnie—who, in addition to her reputation as a sculptress, was known for her beautiful voice—to sing for him. Hearing footfalls upstairs, coupled with occasional trips by Vinnie to the parlor door to talk to someone he could not see, Sickles was convinced that Ross truly was there. It may well have been Vinnie’s mother at the door. The wait continued until 4 a.m., by which time Vinnie was in tears from dealing with Sickles and finally asked him to leave, telling him she was sure that Ross was going to vote for acquittal.22 Vinnie’s assertion that Ross was not home actually may have been true. If Ross were there, it seems logical that he would confront Sickles, even if he preferred not to, just to get rid of him and not burden Vinnie with entertaining Sickles for nearly four hours in the middle of the night. It is quite possible that Ross spent the night at the home of Perry Fuller, a neighbor whose wife was Vinnie’s sister. It is known that both Ross and Senator Henderson had breakfast on the morning of the sixteenth at Fuller’s house. Knowledge of the connection between Vinnie Ream and Edmund Ross hadalsoreachedmembersofthepressinearlyMay.Ina1985article,MarkA. Plummer cites a printed remark by an 1868 Kansas editor named Sol Miller who “hinted that Ross took his pleasures, not by the quart as drunkards do, but rather by the Ream.”23 There may not have been bolder references to Ream in the press, but there certainly were others. Such remarks were cheap and probably hurtful to Fannie, but there is no evidence to suspect Ross and Ream of anything improper. Either the night before with Thomas Ewing Jr. or after breakfast at the Fullers’, Ross wired his response to D. R. Anthony and others: “I do not recognize your right to demand that I shall vote either for or against conviction. I have taken an oath to do impartial justice according to the Constitution and laws, and trust that I shall have the courage and the honesty to vote according to the dictates of my judgment and for the highest good of the country.”24 The oath that Ross referred to in the telegram had been administered by the chief justice to each senator, individually, before the trial began. This would have been a solemn promise in Ross’s mind, not one that he would take lightly. The closing arguments of Thaddeus Stevens for the prosecution and Henry Stanbery for the defense summarized the issues facing all senators, especially those senators who understood the importance of voting without prejudice.25 Stevens’s arguments were given at a time when he was extremely 132 < chapter thirteen weak. He did his best to stand but eventually had to sit down; halfway through, he had to give his prewritten summation to Benjamin Butler, who read the remainder of his arguments. Stevens argued that “the only question to be considered is, is the respondent violating the law?” Specifically, Stevens argued, “When Andrew Johnson took upon himself the duties of his high office he swore to obey the Constitution and take care that the laws be faithfully executed. That, indeed, is and has always been the chief duty of the President of the United States. The duties of legislation and adjudicating the laws of his country fall in no way to his lot. To obey the commands of the sovereign power of the nation, and to see that others should obey them, was his whole duty—a duty which he could not escape, and any attempt to do so would be in direct violation of his official oath.”26 Among the counterarguments of the defense was the important assertion by Stanbery that the president was held to a different standard than an ordinary citizen, since he was the head of one of three coordinated branches of government: ...thePresidentisnotaministerialoffice.Hisfunctionisnotmerely to execute laws, but to construe them as well. The Constitution makes this too clear for question. It does not, it is true, vest him with judicial power, which always implies the exercise of discretion . It vests him with the executive power, but, nevertheless, with a discretion as to the mode of its execution. The Constitution contemplates that, in the exercise of that executive power, he may be involved in doubt and perplexity as to the manner of its exercise, and, therefore, gives him the privilege of resorting to his Cabinet officers for advice. The Constitution binds him by an oath not only faithfully to execute his office, not merely to carry into execution laws of Congress, but also, to the best of his ability, to preserve, protect, and defend the Constitution itself. . . . When, therefore, this tenure-of-office act came to be considered by the President in reference to his purpose to remove Mr. Stanton from office, he had a right and it was his duty to decide for himself whether the proposed removal of Mr. Stanton was or was not forbidden by the act. As yet that act had received no construction by the judicial department, nor had the President any authority to send the act to the Supreme Court, and require the judgment of The Impeachment Trial of Andrew Johnson = 133 that court upon its true meaning. The Constitution gave him no right to resort to the judges for advice.27 The only avenue for the president to test the validity of the Tenure Act was to defy the law and have his actions become a judicial matter leading to an opinion in the Supreme Court. In effect, the president had as much authority to question the constitutionality of a law as Congress did to enact it. The vast majority of Congress was not interested in going to court except the court of impeachment. This was an opportunity to rid themselves of the man who stood in the way of congressional Reconstruction. Even the recusant senators were apprehensive about the president seeking revenge and interfering even more with Reconstruction if he remained in office. Senators Fessenden and Grimes insisted on some assurance from Johnson that he would not interfere with Reconstruction. On Friday, May 4, Ross went even further than Fessenden and Grimes when he asked the president, through acting attorney general Orville H. Browning, to show his good intentions by sending the new constitutions of Arkansas and South Carolina to Congress for approval. These were the first of the new state constitutions drawn up under the provisions of congressional Reconstruction. Although Secretary Welles encouraged Johnson not to send them to Congress, Browning and defense counsel Stanbery assured him it was essential to secure Ross’s vote.28 Johnson submitted the constitutions the next day. On June 22 Arkansas would become the first southern state to be accepted back into Congress since Tennessee and the first whose constitution conformed to the provisions of the congressional Reconstruction Acts. In the days following, South Carolina and four other southern states likewise rejoined the Union with similar constitutions . Ross’s request of the president was significant because it was, in effect, his promise to acquit if the president submitted the Arkansas and South Carolina constitutions. Since these constitutions included acceptance of the Fourteenth Amendment, which Johnson opposed, Johnson was giving in to save his presidency. Ross had clearly made up his mind by May 4 in favor of acquittal based upon his belief that the House managers had not proved their case. By withholding public declaration of his intentions, Ross was leveraging the strength of his vote to help achieve the ends of congressional Reconstruction. Of course, what Ross really preferred was a lengthy postponement of the trial vote and possibly never having to vote at all. 134 < chapter thirteen At the time of the impeachment there were fifty-four senators representing twenty-seven states. Of these, twelve were Democrats, and their votes for acquittal were assured. Of the forty-two Republicans, only thirtysix were needed for conviction, but by the time of the vote on May 16, it was certain that six Republicans would vote for acquittal. If any other senator voted to acquit, the ouster of Johnson would fail. Ross had still not firmly revealed his intentions, but by that morning it was reasonably certain he would vote “not guilty,” with the probable exception of article 1. A special dispatch to the New York Times on May 16 described the drama and outcome of the first article to be considered, article 11. This was the catchall article that was believed to have the best chance of finding the president guilty. While John F. Kennedy chose to use Ross’s own words to describe the events of that day,29 the words of the Times correspondent give a somewhat broader, more objective description. Should Ross’s words in any way be found self-serving, the same cannot be said of the Times article. The morning opened with the most agreeable atmosphere we have yet had in this cold, chilly month of May. Possessors of tickets started early for the Capitol, and before 11 o’clock the best seats were all taken. Senators made their appearance very slowly. At 11:30 o’clock when the Senate was called to order scarce a quorum was present. They dropped in one by one, seeming loath to step up to the task. The friends of conviction were heavy-hearted, for they also knew the last condition of Ross. . . . At 12 o’clock the galleries were crowded. Every ticket was in use. The diplomatic box overflowed as it rarely does. The reporters’ gallerywasasusual ,inundatedbythefriendsofeasynaturedMr.Wade, representing unheard of advocates of his aspirations. [As president pro tempore of the Senate, Benjamin Wade, a Radical, was next in line for the presidency.] The day was propitious for fine toilettes, and the dramatic effect was brilliant outside. Thousands lingered in the corridors or strolled in the beautiful grounds, inhaling the fresh odor of new-mown hay, waiting to catch the first vibration of the result. Down on the streets many more thousands waited in groups and in crowds, to hear the first note from the Capitol. . . . Everywhere and everything, and everybody but time, waited on impeachment. The Impeachment Trial of Andrew Johnson = 135 Twelve o’clock rang out from the city bells, and the black-robed Chief Justice assumed the chair, while Ben Wade assumed his Senatorial seat with a determination fully aroused to vote or die. The sick Senators had begun to arrive. Conkling, pale, but straight and firm and dignified, as he always is, sat erect in his chair. Morton was also there, determined and sincere, promising to be the statesman of the Senate. Howard was brought in leaning on the arms of friends, walking very feebly, and tottering into his chair with a heavy shawl thrown around him. Mr. Grimes was brought in by four men in an invalid’s chair, and allowed to recline on his side without taking his seat. . . . On the floor were Sickles, Gen. Holt, Anthony Trollope, and a score more of notables. . . . The eleventh article is now read. The Clerk calls “Mr. Anthony.” Mr.Anthonyrisesinhisseat,andtheChiefJusticesays,“Mr.Senator Anthony—Howsayyou,isAndrewJohnson,PresidentoftheUnited States, guilty or not guilty of a high misdemeanor, as charged in this article?” Mr. Anthony, with the poise of self-possession and the demeanor of an elegant gentleman, answers in clear, decided tones, “Guilty.”30 The Times description carries on with details of many of the votes, including those of Fessenden, Fowler, and Grimes, who was so ill he had to give his “not guilty” vote from a reclining position.31 Each senator was asked the same question: “How say you, is Andrew Johnson, president of the United States, guilty or not guilty of a high misdemeanor?” The Times reporter continued through the alphabet: Then, came the President’s son-in-law, Mr. Patterson, of Tennessee, quickly and with evident pleasure responded “not guilty.” After him, Pomeroy and Ramsey, prompt and positive “guilty.” Then a thousand pair of eyes shot into the very heart of the modest, quiet little man who rises, at the call of the name Ross. Nervously and quickly he responds, “not guilty.” A suppressed condemnation is heard on all hands, and the fate of impeachment is sealed. The remaining votes cannot save it.32 136 < chapter thirteen Ross’s description of the voting comes from his Scribner’s article of 1892. In part it says, “Conscious that I was at that moment the focus of all eyes, and conscious also of the far-reaching effect, especially upon myself, of the vote I was about to give, it is something more than a simile to say that I almost literally looked down into my open grave. Friends, position, fortune , everything that makes life desirable to an ambitious man were about to be swept away by the breath of my mouth, perhaps forever.”33 If there were other senators who were inclined to vote for acquittal, and there apparently were a few, they were not heard from; if they existed, those senators chose to protect their own interests rather than vote their consciences.34 It was Ross’s vote that allowed Johnson to escape, along with the votes of the other six recusants. It was courageous of all seven senators to cast “not guilty” votes, and in varying degrees they all paid for it. On entering the Senate chamber on the morning of May 16, Ross had been met by Pomeroy, who in the presence of Thaddeus Stevens, supposedly by coincidence passing by, warned Ross that if he voted for acquittal it meant his political death and that bribery and corruption charges in the House were certain to follow as well.35 Pomeroy later confirmed the story in somewhat softer terms, but what followed in the days immediately after the vote substantiates Ross’s interpretation of the Pomeroy prediction.36 As soon as the voting on the eleventh article was completed, the chief justice ordered the reading and vote on the first article; but before the reading , Senator George Williams of Oregon moved for an adjournment of ten days until May 26. The postponement was a move to buy time, to find some way of inducing one of the recusants to reconsider on the ensuing votes. When the Senate recessed, the House of Representatives met immediately to vote on a proposal to investigate charges of bribery and corruption that may have influenced the voting on the eleventh article. The move was blatant intimidation against the seven renegade Republican senators in the hope that one of them had something to fear and might change his vote on one of the remaining articles to avoid an embarrassing public revelation. On May 19 Navy Secretary Gideon Welles made this notation in his frequently quoted diary: “Ross is abused most. He is to be investigated by the House, or his acts are, and the Senate will submit to the indignity.”37 Historian David Dewitt reported that “[h]is colleague [Pomeroy], his constituents, his fellow-senators, swore to his previous statements favourable to conviction. His Indian office connection [possibly Fuller]; his visits The Impeachment Trial of Andrew Johnson = 137 to the studio of Vinnie Ream; his lodging at her mother’s; his association with advocates of the President;—were exploited: the menace that, unless he redeemed himself from his corrupt apostasy, a chain of circumstantial evidence would be fastened about him and he himself pilloried before the nation, flashing like a drawn sword in the background.”38 May 26 came, but before the vote was taken, a motion by Senator Lot M. Morrill of Maine was made to again delay the vote until June 23. Ross then moved that the date be pushed back to September 1. Fifteen senators voted yes to the Ross amendment, including five of the recusant senators, but the motion failed. Morrill’s motion to wait until June 23 was then voted upon, with all the recusants voting “yes” except Ross, who surprised the others with a “no” vote that gave a glimmer of hope to the majority that he had been won over.39 However, when the vote was taken on the second and third articles, the result of May 16 was identical. There was no sense in continuing a process that would simply repeat the same results, and the House managers gave up the fight to depose the president. Two years had passed since Ross led his Saturday night attack on Jim Lane condemning Lane’s support of Johnson’s veto of the Civil Rights bill. Now Ross had come full circle and felt the wrath of his fellow Kansans far worse than Lane ever had. A newspaper editorial in the Leavenworth Conservative, one of many such editorials in Kansas, was merciless: “It was left for the State whose noblest citizen was John Brown, the State whose soil is hallowed all over with the blood of men, women, and children, the State which has only four words on its banner, ‘Equal rights for all,’ to be betrayed and outraged by this creature Ross. He is dead—dead to honor, dead to liberty, dead to Kansas. Let him go his own way. A half-civilized bushwhacker would spit in poor Ross’s face if he should dare to speak to him about honor. Every man in the United States has read the news from Washington and instinctively felt that Ross from Kansas was a coward and a sneak. Wherever Ross lives or travels that record will follow him!”40 The same newspaper also ran the text of telegraphic responses sent to Ross on May 16. One was from D. R. Anthony, who had sent the “demand” telegram to Ross and Pomeroy the day before and to whom Ross had responded with his “I do not recognize your right to demand” telegram: “Your telegram received. Your vote is dictated by Tom Ewing, not your oath. Your motives are Indian contracts and greenbacks. Kansas repudiates you as she does all perjurers and skunks.” A second telegram was from a Kansas 138 < chapter thirteen Supreme Court justice, L. D. Bailey: “Probably the rope with which Judas hanged himself is lost, but the pistol with which Jim Lane committed suicide is at your service.”41 In Topeka a group of former Eleventh Regiment soldiers hanged Ross in effigy in the square between Kansas Avenue and Sixth, not far from the place where the citizens of the town had once honored Ross with an American flag and flagpole installed in front of his newspaper office. The effigy incident was reported all over the country and identified the men as Ross’s own soldiers. Henry Lindsey, the boy whom Ross had hired on the condition that he stop cursing, went to Lawrence to see Fannie Ross to assure her that the men of Company E had nothing to do with it. Lindsey had been there and said, “A lot of us were gathered on the corner, watching and feeling greatly puzzled. One of the boys said, let’s go tear it down, but the others decided to let them alone since it might make more trouble.” Lillian Leis commented that Lindsey “seemed to feel very deeply the avalanche of abuse heaped on father, also at a loss to understand the reason.”42 Surely for Ross the saddest aspect of 1868 was the effect his votes had on his family. Leis wrote that they were as much in the dark about his position on impeachment as anyone. Even his brother William, who was in Washington at the time and who corresponded with Fannie and her children , did not know how his brother would vote. Perhaps the first correspondence from Ross to his family after the vote on the eleventh article was dated May 22. Leis described the day the letter arrived. “The boys coming from the Post Office one morning rushed in. Arthur with the letter in his hand—the letter which has since been widely published—and mother standing in the parlor very tense.” The letter read: “Don’t be discouraged, dear wife, it’s all coming out all right. This storm of passion will soon pass away, and the people, the whole people, will thank and bless me for having saved the country by my single vote from the greatest peril through which it has ever passed, though none but God can ever know the struggle it has cost me. Millions of men are cursing me today, but they will bless me tomorrow. But few knew of the precipice upon which we all stood on Saturday morning last. Your aff Hus.”43 Together the family all wrote back to him with letters of encouragement , but Fannie’s letter must have been the one that touched him the most. It is not known what she wrote, but later the family learned from Mrs. Ream, Vinnie’s mother, that when he read the letter, apparently as he sat The Impeachment Trial of Andrew Johnson = 139 with the Reams for dinner, he broke down and had to leave the table. Leis wrote, “I have not found it [the letter] among his papers. I think he always destroyed the family mail.”44 Leis’s remark explains why so few of Fannie’s letters are extant. At the end of May 1868 there was nothing to suggest that Ross’s participation in the impeachment trial of the president was anything other than honorable, with the exception of the speculation of bribery by Ross’s bitter Republican colleagues. Ross did not give a written explanation for his vote at the time of the impeachment trial as the other recusants did, but he did explain his vote in two speeches he made before the Senate, on May 27 and July 27: In this spirit I discharged my duty as a member of the court of impeachment. I voted to admit all the evidence offered by both the prosecution and the defense, so that the Senate, sitting as a court and jury, as judges of law and fact, might sift it all and determine the cause with no fact shut out by technical rule which bore on the guilt or innocence of the accused; and when I voted on the several articles of impeachment I cast out of the scale, as far as I was able, all mere party considerations, and weighed the cause as the Constitution and laws and my oath demanded.45 But I saw, or thought I saw, in the conviction and removal of the presidentuponinadequatetestimony,anduponaccusationsmainly of a partisan character, the establishment of a precedent which would render every future President liable to successful impeachment whenever he found himself in a minority in Congress. . . . Viewing the question thus I felt that it would be cowardly to act otherwise; that I should be untrue to the principles of justice, untrue to my party, untrue to myself, and untrue to my country, if I permitted my judgment to be overborne by party clamor or a dread of party indignation. It will not do to say that it was my duty to subordinate my individual views to those so earnestly and so clearly entertained by the great mass of the party on so grave a question as this. In the first place, I was sworn to act according to the law and the testimony in the case, while my constituents were not. My own judgment was 140 < chapter thirteen worth more to me than that of those who were thousands of miles away, and could by no possibility be as thoroughly informed of the facts as I was expected and ought to be. In the second place, I was sent here to vote on all questions according to my own best judgment, and not to follow the lead of any one, or any number of peers, however learned or distinguished they might be. My convictions are my own, and whenever I shall not have the courage and the honesty to follow them I will vacate my seat, and give the people I represent an opportunity to fill it with one who has. Confident that I am right, and that history will vindicate my act, I can well afford to await the calm and unimpassioned judgment of time. . . . . . . Impeachment cannot in any sense be said to be properly a party cause. Articles of impeachment may originate in partisan considerations, may be preferred for the accomplishment of important partisan ends, but when they come to the Senate for trial they are at once divested of all such aspects. The highest judicial officer of the Government presides, and each Senator is sworn by a special oath of an entirely different import from that under which he discharges his legislative duties. When sworn as members of the court of impeachment we took an oath to impartially try the President. Now, what did “impartiality ” mean in this connection? Did it mean to decide the case according to the desire and expectation of the Republican Party? Did it mean to decide it according to our own individual preconceived opinions? By no means. It meant simply what it said, that we would hear and determine the cause “impartially,” without bias from any cause or source whatever, without reference to our own political sentiments and predilections, and without reference to the political sentiments of our constituents, fairly and candidly, on its merits, “according to the Constitution and Laws.” . . . To deliberately trample upon law and established forms was the only way in which impeachment could have been carried as a party measure, and that no party, however strong, can afford to do. When we depart from those forms of law by which we seek the ends of justice we at once inaugurate confusion and anarchy, and we substantially do that when we subordinate the issue of a trial, largely judicial in its nature, to the behests of party will.46 The Impeachment Trial of Andrew Johnson = 141 The impeachment process had been devoid of objectivity and fueled by the emotions of an electorate that did not have to pay heed to legalities. The Constitution didn’t matter; getting rid of Johnson was all that mattered. The constant threats and badgering that Ross and the others experienced was disgraceful. Certainly there was some leeway for political lobbying to apply pressure to the recusants, unlike the absolute prohibition of intimidating juries in United States courts, but the line surely was crossed with various threats including bribery investigations, political ostracism, false rumors harmful to reputations, and even threats of physical harm. Looking at the process objectively in later years, when tempers and emotions subsided , it was clear that the recusant seven were the wiser of those men who participated in the impeachment in the spring of 1868. Had the Radicals in Congress been successful, Johnson would have been put out of office for purely political reasons. The impeachment trial itself would have been a mockery, and in fact it was pure theater to the majority of participants whose minds were made up before the trial began. As David Dewitt pointed out, why bother with a trial if the outcome was already known? Just take a vote, and if half the House and two thirds of the Senate agreed, the president could be deposed; a trial would be superfluous.47 The abuse that Ross felt from his Senate colleagues, his constituents, and Kansas newspapers in late May must have left him with a muddle of thoughts and emotions and wondering why he ever agreed to assume Jim Lane’s Senate seat. It would not be surprising if his thoughts went to that day twelve years before when he crossed into Kansas leading a wagon train of pioneers, and there to meet him were Jim Lane and Samuel Pomeroy. These were men he would come to greatly admire, and yet Lane was now tragically dead and Ross was about to declare war on Pomeroy. ...