When Congress Tried To Rule


I submit that therein lies the major significance of the impeachment trial. At Appomattox, in the spring of 1865, the Civil War bled to its close. In the red and gold well of the Senate chamber, in the spring of 1868, the war’s aftermath reached its climax: all the rest of Reconstruction was to be an ebbing away from this moment, a gradual return to normal under the same government erected by the founding fathers.

That the attempt to remove Johnson was a strictly political maneuver is a fact with which few historians, if any, disagree any longer. The main charge was that he had defied the Tenure of Office Act of 1867, which forbade the President, under certain circumstances, to remove a Cabinet member without the consent of the Senate. When Johnson dismissed Lincoln’s enigmatic Secretary of War, Edwin McMasters Stanton, whom he had kept on along with the rest of Lincoln’s Cabinet, the Senate refused its consent. Johnson persisted because of Stanton’s failure to co-operate with the Administration and his alliance with its opponents, and the Radicals in the lower house, who for more than a year had been seeking some excuse for impeaching the President, brought him to trial before the Senate on March 30, 1868.

The Tenure of Office Act was unconstitutional, as the Supreme Court would, many years later, declare. Even so, many of the best legal minds of the day went along with Johnson’s claim that his dismissal of Stanton was not clearly within its meaning. For the act contained an ambiguous clause specifying in effect that Senate consent to the removal of a Cabinet officer was required only if he were dismissed during the term—plus one month—of the President who had appointed him. And Johnson had not appointed Stanton.

As for the remaining accusations in the wordy Articles of Impeachment, they consisted of little more than the allegation that Johnson had exercised his constitutional powers as Commander in Chief although Congress had passed a law forbidding him to do so, along with the assertion that, at divers times and places, the President had delivered speeches of a distasteful nature “in a loud voice.” So niggling were all of these charges that midway in the trial Benjamin F. Butler of Massachusetts, chief prosecutor for the House impeachment managers and one of the President’s most implacable foes, confessed that as a lawyer he would give anything to be on the other side of the case. But Charles Sumner, the ponderous Massachusetts abolitionist, dismissed such qualms as of no consequence and blatantly advised his fellow senators to ignore mere matters of fact and law in passing judgment. Let each senator, Sumner urged, pronounce the words “Guilty” or “Not Guilty” in accordance with his political convictions.

Clearly, then, the trial was political. Abundant evidence that it was also revolutionary is to be found in the events out of which it grew.


When Lincoln died, Congress was in recess, and this gave his successor for several months a free hand to initiate Reconstruction. In spirit Johnson’s plan was in line with ideas that Lincoln had endorsed. He recognized the loyal governments set up during the war in four of the formerly Confederate states. In each of the other seven he appointed a provisional governor empowered to establish a permanent civil organization. He let it be understood that, in the eyes of the Executive, each state could be eligible for readmission to the Union as soon as it completed this process, provided that simultaneously it abolished slavery within its borders (preferably by ratifying the Thirteenth Amendment), repudiated its Rebel war debt, and voided its ordinance of secession. By the time the first session of the Thirty-ninth Congress convened on December 4, 1865, nine of the eleven Southern states—all but Texas and Florida—had fulfilled the President’s requirements, with one or two minor deviations, and had named senators and representatives to the national legislature.

Had Congress accepted these representatives from the South, restoration—if not Reconstruction, strictly speaking—would have been practically completed at this point. Congress did not, and of the elements behind its refusal, two were large with future mischief.

One was the growing influence of the “iron-back,” or Radical, wing of the Republican party, gravitating in the House around Stevens and in the Senate around Sumner and Benjamin F. Wade of Ohio. The commonly held objective that enabled them to present a solid front was their determination to preserve a Republican hegemony in Congress. Obviously the President’s Reconstruction program was a threat to this, for immediate seating of the Southern representatives would reduce the nominal Republican majority in the House from ninety-eight to about forty, and in the Senate from twenty-eight to about six. The Radicals had other aims, but their devotion to party domination was the feature that most clearly distinguished their thinking from that of the more statesmanlike Republican moderates.


The other important element was the fact that the Thirty-ninth, like all Congresses convening immediately after a war, was suffering the pangs of power deficiency and injured dignity. For four years the legislative branch had deferred to the executive. The Thirty-ninth Congress was determined to reassert itself.