So Ashley’s resolution was referred to the Judiciary Committee. But though conservative and moderate Republicans thought that they could squelch impeachment by dumping it on the committee, impeachment was in the air. “Hardly a speech is made in either house which does not begin or end with it,” an observer remarked. That was the point—or part of it: impeachment put the President on notice. “The Radicals are holding the threat in terrorem over the President merely to keep him in check,” a friend of the Democratic leader Samuel Barlow reported from Washington. “They have at present no idea of prosecuting the matter.”
Johnson was furious—“cross as a cinnamon bear” a journalist noticed—but took comfort in the Supreme Court’s recent ex parte Milligan decision, which stipulated that a citizen could not be tried, convicted, or sentenced by a military tribunal if the state courts were operational. That meant that the Southern courts could do what they wanted, or as one Savannah native exclaimed, “It would be just as easy to get a jury in the State of New York to convict a person of manslaughter for shooting a mad dog, as to get a jury of Rebels to find a Rebel guilty upon a charge of killing a negro.” Many Southerners—particularly blacks—had been depending on military courts to provide a fair hearing—or any hearing, for that matter. Take Georgia, where three hundred black men and women had been killed; only one percent of the perpetrators were punished. Even the middle-of-the road New York Times wondered if the Supreme Court hadn’t thrown “the great weight of its influence onto the scale of those who assailed the Union.”
Take too the infamous case of Dr. James L. Watson. When the carriage of William Medley, a man of color, collided with Dr. Watson’s buggy, the wheels of the two vehicles had locked, breaking one of the spokes on the Watson carriage, which contained Dr. Watson’s wife and daughter. Although no one was injured, and Watson’s wheel was fixed for fifty cents, Watson regarded the traffic accident as an insult to him and his family. He tracked Medley down and beat him; Dr. Watson later testified that this was his right. Medley broke free from Watson and ran, but Watson ran after him, threatening to shoot unless Medley stopped, which Medley didn’t do. Good as his word, Watson drew his pistol and fired twice.
Medley died a few hours later. Dr. Watson surrendered himself to the authorities, freely admitting his crime because to him the murder of a black man was not murder. Agreeing, the county examining court refused to indict. But General John Schofield, assistant commissioner of the Freedmen’s Bureau in Virginia, ordered Watson rearrested and held over for trial by a military commission: not only would Watson be held responsible for his action, other white men or women would be made to understand that wanton acts of intimidation or violence would not be tolerated. The presiding judge of the Circuit Court of Virginia issued a writ of habeas corpus for Watson’s release, but Schofield disregarded it. Then, at Andrew Johnson’s behest, Attorney General Henry Stanbery claimed the Watson case fell under the jurisdiction of Milligan. The military commission was dissolved. Watson went free.
This notorious case was one among many. Augustus Higgs of the Freedmen’s Bureau in Virginia reported that in Perryville, a young white man beat to death a black man who’d been standing on a street corner one evening. “This excels in brutality the Watson case,” Higgs cried, “as the killing was done for sport.”
“Anyone who hopes that the Sumners, the Stevenses, and the Phillipses, the noblest and finest men of the nation, will stand silently by and see their country fall into moral ruin without making strong efforts to prevent it, is hoping for the country’s misfortune,” the young French journalist Georges Clemenceau declared. Congress had no choice but to prevent Johnson from precipitating more acts of violence “tacitly encouraged by the approval of a population which long slave-holding has demoralized.” That implied Republicans might be acting out of pure conviction, as Charles Sumner always seemed to do. But on the matter of impeachment itself, Sumner was cautious. “I say nothing,” he explained, “as I should be one of his judges.” So he hoped.
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“WE ARE HAVING pretty serious times here, in Congress, &c—I rather think they are going to impeach Johnson & bring him to trial—it is a serious business—I cannot tell how it will turn out—only I know both sides seem determined, & neither will give an inch,” Walt Whitman wrote his mother. But people didn’t really seem to know what impeachment was. It might take the shape of an avalanche, as Mark Twain had said, or maybe a loud thunderclap—or maybe the roof would cave in.
For Ashley’s call was the first ever presidential impeachment. The House of Representatives had voted to impeach only four times, and the Senate had convicted only twice. In 1797, William Blount, a senator from Tennessee, tried to persuade Creek and Cherokee Indians to help Great Britain seize Spanish Florida and Louisiana. Blount, charged with behavior inconsistent with his public duty, was expelled from the Senate. In 1804, Judge John Pickering, chief justice of the New Hampshire Supreme Court, whom Washington then appointed federal district judge, was removed from the bench for showing up drunk. Though Pickering was clearly unfit for office, the proceeding had a political odor since Thomas Jefferson wanted Republican judges on the bench anyway. That same year, Supreme Court Justice Samuel Chase was also impeached for using rude language—as well as for delivering an opinion on the law before he’d heard evidence. Here the proceedings against Chase, a Federalist, were unambiguously political, for the case hinged on whether “high crimes and misdemeanors” should be interpreted broadly to include partisanship or interpreted more narrowly—and require the violation of a specific law.
Justice Chase was not convicted because his accusers, divided on the issue, couldn’t reach a two-thirds majority.
A more recent impeachment case involved District Judge West Humphreys of Tennessee, who became a Confederate judge without resigning his federal district judgeship. It was Andrew Johnson, as military governor of Tennessee, who recommended Humphreys’ impeachment.
But what were sufficient grounds to impeach a sitting President of the United States? What were the right reasons to impugn him and challenge his leadership, disregard his stature, and ignore his electoral standing? Had Andrew Johnson abused the national trust? Had he perpetrated any overt act against Congress, or had he confined himself to wielding his authority, which was a matter of policy, not abuse? And how to distinguish between these things? That is, when Johnson recognized the formerly rebel legislatures of the South and vetoed all Northern bills, was it policy, or abuse?
Then there was debate about what should be considered constitutional. Did Johnson have the authority to appoint governors in the former Confederacy? Were these appointments constitutional? For that matter, did Congress act constitutionally when it created, passed, and sent out the Thirteenth Amendment, abolishing slavery, to the states in 1865 while the country was nominally at war? What about after the war? Every time Johnson vetoed a bill aiming to reconstruct the South he argued that the bill wasn’t constitutional because the ex-rebel states weren’t represented in Congress. “There is never a lack of legal texts any more than of religious texts, when men seek to stifle their consciences,” Georges Clemenceau commented with more than a touch of acerbity.
To many observers, the moral verdict against Andrew Johnson had already been rendered. Johnson had endorsed rebels and rebel legislature, he’d fired competent people, he’d abused the pardoning privilege, he’d blocked or subverted the civil rights legislation, and he was obstructing ratification of the Fourteenth Amendment. Yet the question remained: had the President committed illegal acts and hence demonstrably impeachable ones?
“The long haired men and cadaverous females of New England think you are horrid,” Johnson’s secretary reported to him. “I had a conversation with an antique female last night, in the course of which she declared that she hoped you would be impeached. Said I ‘Why should he be impeached—what has he done that he should be impeached?’ ‘Well,
’ replied she, ‘he hasn’t done anything yet, but I hope to God he will.’ ”
That woman’s response, if typical, suggested that impeachment does require a criminal offense, a breaking of the law rather than an abuse of power, a subversion of Congress and hence a failure to execute the laws of the people. But, as some reasonably argued, shouldn’t deplorable, bigoted, or reckless acts be considered impeachable, particularly if they weakened or flouted other branches of government? In that case, impeachment shouldn’t be considered a legal issue at all.
There were questions too about procedure: would the President be required to leave office during an impeachment trial, or would he be tried as a sitting, functioning President? And would he stand before the bar; would he—or should he—speak in his own defense? Despite all these questions, all this debate, all this uncertainty, impeachment began to seem necessary—to be undertaken with reluctance and only as a last resort. Congressional Republicans knew this.
They also knew, or wanted to believe, that impeachment implied hope, the glimmering hope of a better time coming, a better government, a fairer and more just one. But that was far off. For now, impeachment did seem a calamity, the national roof tumbling down.
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BECAUSE REPUBLICANS HAD clearly carried the fall elections, Frederick Douglass rejoiced in the Atlantic Monthly that the Congress had been vindicated; the President’s sham reconstruction policy had been condemned; a new world order was at hand. “If with the negro was success in war, and without him failure,” Douglass said, “so in peace it will be found that the nation must fall or flourish with the negro.” And because of the Republican success in the elections, some of the President’s allies advised him to patch up his quarrel with the Republicans. “The folly of continuing the present struggle, is only equaled by that of the gamester,” a Southern lawyer said, “who after loosing [sic] heavily at the gaming table, continues to play to win back his losings.”
If Johnson would only have bent a little on the matter of the Fourteenth Amendment, he might have been able to work with Congress. “I think you will agree with me that it will be wiser not to stem an overwhelming current but rather to use it, and control it, as far as possible, for the welfare of the country,” a journalist for The Herald likewise suggested. “Swallow even the constitutional amendment as a man would a nauseous dose of medicine to releive [sic] himself from a painful disease.” Another Johnson friend suggested the President allow black men to vote with qualifications. “The tendency of all the great populations of the Earth, just now, is in the direction of general enfranchisement,” he explained.
Concerned that Johnson might be listening to such suggestions—they’d heard unsettling rumors—Democratic power-brokers dispatched the former congressman Samuel Cox to Washington. “When I told him what you wanted to know,—whether he was going to modify his views as to the Amndt [Fourteenth Amendment], he got as ugly as the Devil,” Cox reported to his friends. There was no reason to worry, because Johnson wasn’t going to negotiate with anyone. And true enough, once Johnson made up his mind, he wasn’t going to change it. He was simply unable. He took political decisions and strategy personally, dubbing his position “My Policy” so often that it was the butt of grim humor. To criticize or doubt his policy was to criticize or demean him.
Though a deep-dyed radical among the Radical Republicans, Senator Wade had suggested that a Southern state could get back into Congress by ratifying the Fourteenth Amendment, but President Johnson choked off compromise, telling a delegation of citizens from South Carolina never to trust a Radical. And when the Alabama legislature reconsidered its vote against the amendment, Johnson immediately let it be known there should be no wavering. The Fourteenth Amendment, with its guarantee of civil rights and citizenship for blacks, was unconstitutional, and it would “change the whole character of our Government,” he cried.
The President’s obstinacy—and commitment to white supremacy—began to wear even on the patience of friends. If he wasn’t going to support an amendment that would allow the South, on ratification of it, to come back to Congress, he should keep his mouth shut. Do nothing rather than do harm, said Representative Henry Raymond of The New York Times. Raymond decided not to run for re-election—his association with Johnson assured his defeat. Johnson did not listen, and he didn’t budge. Instead he hinted that he might have considered the Fourteenth Amendment if Radical Republicans weren’t so radical.
When all Southern states except Tennessee rejected the Fourteenth Amendment, the usually sanguine James Garfield, representative from Ohio, was ferocious. “They have deliberated; they have acted; the last one of the sinful ten [states] has at last, with contempt and scorn, flung back into our teeth the magnanimous offer of a generous nation; and it is now our turn to act. They would not co-operate with us in rebuilding what they destroyed; we must remove the rubbish and rebuild from the bottom,” he declared. “We must see to it that the frightful carnival of blood now raging in the South shall continue no longer.”
General Grant, who supported the Fourteenth Amendment, had been watching the President in mute disgust. When Grant offered the cabinet a report about the desperate conditions that white and black Unionists faced in the South, Welles predictably belittled the report as “newspaper gossip” or “rumors” originating in “negro quarrels.” But the violence was documented, and it was as real as New Orleans had been real. To General Phil Sheridan, Johnson’s indifference to the bloodshed “made plain,” Sheridan would recall, “that he was seeking to rehabilitate the seceded States under conditions differing not a whit from those existing before the rebellion; that is to say, without the slightest constitutional provision regarding the status of the emancipated slaves, and with no assurances for men who had remained loyal in the war.”
What now, though? Should these Southern states oversee, then, their own reconstruction? Johnson continued to manipulate them, replacing Freedmen’s Bureau officials with flunkies, sacking over a thousand postmasters, and discharging federal employees in the Treasury office who didn’t agree with him. “He is refractory and lavishes his official patronage on Copperheads of the worst and most ‘septic’ type,” George Templeton Strong protested.
When a bill giving black men the vote in the District of Columbia landed on the President’s desk, Johnson refused to sign it, saying the admission to the ballot box of a new class of voters—black men—would weaken, degrade, and finally destroy the government. Delaware Senator Willard Saulsbury, a Johnson supporter, said black men were morally unfit to vote and then staggered from the Capitol so drunk that an aide had to keep him from falling into the gutter. Radical Republicans seized on Saulsbury’s folly, quickly pointing out that it was he who was morally unfit.
The Radicals and the more moderate Republicans decided they must act. Johnson had to be curtailed, particularly if he attempted to remove those who dared to disagree. Congress therefore drafted a bill requiring the President to secure the approval of the Senate before firing or suspending any federal officer, including members of the cabinet, who’d been confirmed by the Senate. This would become the contentious Tenure of Office Act—so contentious, in fact, that it was finally and fully repealed, but not until 1887.
As to be expected, the Tenure of Office Act initially (and subsequently) was controversial. Certainly in 1867 moderates and conservatives in Congress weren’t altogether willing to come between a President and his closest advisers. So a compromise was suggested, and it did pass: cabinet members would be able to hold their office for and during the term of the President who appointed them, plus one month, subject to the advice and consent of the Senate.
The wording would prove ambiguous, and even Edwin Stanton doubted the validity of the Act. Johnson proceeded to veto it, and Congress overrode the veto.
Stanton had moved to curb Johnson in a different manner when he suggested to George Boutwell that he add a rider
to the upcoming military appropriations bill. That rider required the President issue any and all orders through the general-in-chief, who happened to be Ulysses S. Grant. The general-in-chief could not be removed without Senate consent, and his headquarters would be in Washington.
Yet Johnson continued to receive letters from supporters, North and South, outraged by Congress and any talk of impeachment. “I blush for the honor of the American name,” said a manufacturer in Cincinnati, “to think, that any one calling himself an American citizen, and having enjoyed high military office in the gift of his country, should so far forget the honor and respect due to the President of the United States.” Another defender advised Johnson that should the President find himself on the eve of impeachment, “Arrest the traitors.”
John Bigelow, former ambassador to France, found the President looking peaked. William Seward, unapologetic Johnson booster, assured Bigelow that Johnson was healthy as an ox, even if the atmosphere in Washington was toxic. “They don’t cut throats any longer here,” Bigelow reported, “but the work they make of character is something only paralleled in the declining days of the Girondists.” Representative Henry Dawes said much the same thing. “There are men in the House who consider themselves absolved from all obligations of decorum or respect to the man or his office because he has seen fit to disregard his own dignity,” Dawes had told his wife. He had called on the President, which he felt obliged to do. The President seemed pleased to welcome visitors—“few of our side call on him,” Dawes had observed—but the saturnine Johnson was unable to muster any small talk or initiate much conversation.
The Impeachers Page 20