“I do not care whether Johnson has stepped on a statute or not,” Phillips raised his voice. “Impeachment is the refuge of the common sense of the nation, which in the moment of difficulty says to the magistrate, you ought to have known by your common sense, and your moral sense, that this has unfitted you for your office.” Cheers.
Afraid the committee would ignore the common sense—not to mention the moral sense—of the nation if it defined impeachment too narrowly, Thaddeus Stevens, with Ben Butler’s assistance, composed a tenth impeachment article that accused Johnson of disgracing the presidential office, particularly when he delivered the vituperative speeches that demeaned Congress or when he berated and threatened Wendell Phillips, Charles Sumner, and himself.
Intrigued, the young French journalist Georges Clemenceau decided to read Johnson’s speeches again. And when he did, he had to admit that Butler was right. They were rather insulting.
Inexorable, almost compulsively so, Stevens was still not satisfied, so he lobbied for an eleventh impeachment article, which he wrote with the far more moderate James Wilson, no longer quite so moderate. This eleventh article ranged from Johnson’s abuse of Congress—his insistence that Congress had no authority if Southern states were not represented—to his obstruction of such laws as the Military Reconstruction Acts. A comprehensive, catchall indictment, it was a kitchen-sink, deep and wide enough to give senators a chance to fish out and vote for at least one of the charges. It also summarized Johnson’s presidency as including conspiracy, usurpation, and the obstruction of justice.
Then came the election of the group of men from the House who would prosecute the case against Johnson. Called managers, they included familiar names, such as Stevens himself, Bingham, Wilson, and Boutwell. In addition there were General John Logan, Thomas Williams of Pennsylvania, and Beast Ben Butler—the latter, it was said, because, as journalist Whitelaw Reid acknowledged, Butler was “one of the greatest criminal lawyers in the country and Johnson one of the greatest criminals.”
Bingham flew into a rage when it was suggested Butler chair the committee. “I’ll be damned if I serve under Butler, a man who denounced me to the country as a murderer,” Bingham exploded, pounding his fist on the desk. Boutwell tried to calm him, but Bingham held his ground. To prevent a quarrel that might go public—which it did anyway—Boutwell diplomatically stepped aside, even though he was next in line to chair the committee. Bingham could be chair. Brash Ben Butler might be respected, he might be effective, and sometimes he was admired, but more often he was despised. And yet though Butler was not the chair of the committee, he would lead the charge.
CHAPTER NINETEEN
The High Court of Impeachment
March 1868
Over six feet tall, his head large and his features strong, Chief Justice Salmon Portland Chase, dressed in his long black silk robe, strode purposefully to the head of the Senate chamber. The president pro tempore of the Senate, Benjamin Wade, surrendered his chair to the regal chief justice.
“Senators,” Chief Justice Chase gravely declared, “in obedience to notice, I have appeared to join with you in forming a Court of Impeachment for the trial of the President of the United States.”
Henry Adams would call Chief Justice Salmon Chase nothing if not dramatic, and Thursday, March 5, was a dramatic day. Senior Associate Justice Nelson of the Supreme Court administered an oath of office to Chase, who swore he would serve impartially as judge during the trial of Andrew Johnson, President, and that he would faithfully administer the Constitution and the laws.
Beyond this, though, no one knew what to do. The Constitution offered no procedural guidelines to instruct the chief justice how to preside over an impeachment trial—or even how to organize the Senate. In fact, the Senate couldn’t force Chase to serve as presiding officer, so if he refused to step up, there might be no trial at all. He was in an excellent position to bargain.
Chase had already seized the moment by writing to the Senate, saying that in case of a tie, he wanted to be able to cast a vote. (Since he was not a member of the Senate, technically he should not be allowed to vote.) He wished to rule on the admissibility of evidence—subject to the vote of the Senate—and on the reliability of witnesses. These stipulations afforded him leverage over the Senate, which he then argued should be organized as a court of law during impeachment proceedings. For if the Senate operated as a court during those proceedings and not as a legislative body, the chief justice was in control of it; he was President of the High Court of Impeachment.
Radical Republicans were incensed by what they perceived as judicial interference. They believed Chase intended to embarrass the Senate or, more chillingly, derail the impeachment process. “Chf. Ju. Chase to many showed his teeth and will give us all the trouble he can,” General Logan complained after Chase announced his conditions. It was known that Chase considered the impeachment resolution absurd and Johnson within his rights when he dismissed Edwin Stanton. Chase’s friends defended him. The chief justice was merely following the law, they said.
It’s hard to know precisely where he stood: Salmon Chase was a peculiar amalgam of humility, vanity, and voracious ambition. Intelligent and skillful, he had contributed in no small way to the development of the Republican party, and he was known as a strenuous advocate of equal rights who fought against all the proslavery measures of the 1850s with considerable gusto. He was also humorless, distant, and self-righteous. Frederick Douglass distrusted Chase as a cold, greedy man who would sacrifice abolition, equality, and principle for power. The poet Walt Whitman called him a “bad egg.”
Although he had during his abolitionist lifetime fiercely supported universal suffrage, Chase just as fiercely opposed what he called arbitrary military governments and military trials for civilians in peacetime. This was evident in his 1866 Ex parte Milligan decision. There, he declared that in a state where the civil courts were functioning, even if habeas corpus had been suspended, a resident citizen could not be tried, convicted, or sentenced by a military tribunal. Chase also believed that former Confederate military and political personnel should be able to vote.
That he had drifted away from his earlier radicalism was clear. This made him attractive to moderate Republicans and, he hoped, to the Democratic party, which had been his party when he was younger. He might also boast of his conservative credentials on the currency. As secretary of the treasury under Lincoln, Chase had reluctantly approved the circulation of greenbacks, but only as a wartime measure. After the war, he wanted the government to return to an economic policy that included the retirement of paper money. Maybe the Democrats would thus forgive his passion for universal suffrage, and if so, in 1868, Salmon Chase could hang up the gavel and enter the White House at last.
Formerly Lincoln’s treasury secretary, Salmon P. Chase was appointed chief justice of the United States Supreme Court and thus presided over Johnson’s impeachment trial, which he opposed. Perennially in pursuit of the presidency for himself, Chase made no secret of his views, although he prided himself on his fairness.
His wish to be President was an open secret, for despite his illustrious career—governor of Ohio, senator, presidential contender, treasury secretary, and chief justice—or perhaps because of that illustrious career, Chase still feverishly sought the presidency, firmly believing that he was far more qualified than any bullet-headed general, particularly Ulysses S. Grant. “He feels, I believe, very confident that he will be the Republican candidate,” Moorfield Storey noted.
Radical Republicans were thus suspicious of Chase. “I foresee, the Democrats are now for him for President and the foolish ambitious man seems ‘well pleased,’ ” General Logan remarked, “but any that is fool enough to go back to the democratic party after leaving it, certainly does not understand their mode of doing business.”
And Grant’s people were concerned, having discovered that several national banks
were contributing $300,000 to the Chase campaign and that Chase’s son-in-law, William Sprague, had offered to raise $500,000. Whether true or not, a Grant supporter told Washburne, Chase had plenty of money at his disposal. But Chase was courting the equally wary Democrats. “The Radicals denounce him, but he has not broken with them, and he is not prepared to do so,” the conservative legal scholar George Ticknor Curtis confided to Democratic party tycoon Samuel Barlow. “In fact, he does not know what to do.” Increasingly, he did know that it was in his interest to buck the impeachers.
Gossips claimed Chase had gone to Johnson and told the President outright that there wasn’t enough evidence for a conviction. True or not, Andrew Johnson and his two daughters had been invited to the chief justice’s Wednesday reception on March 4, just the day before Chase was sworn to impartiality at the trial. Johnson and his daughters at the Chase party: what kind of impartiality was that? Chase petulantly justified the invitation. “I remembered his loyalty at the outset of the war and his patriotism throughout the war,” Chase said of Johnson. He had never offended the President, he added, and the President had merely paid him the compliment of his attendance; that was all.
His campaign to organize the Senate as a legal court was largely successful. That meant Chase might cast a vote in case of tie, decide legal disputes, and determine the admissibility of evidence. If the managers appealed a point of law decided by the chief justice, only a senator—not the managers, who were representatives—could appeal the decision. One-fifth of the members present could overturn his ruling on evidence and incidental questions. When Charles Sumner and Missouri Senator Charles Drake tried to strip Chase of some of his power, their motion was defeated. The Senate did decide, though, that any one individual senator could call for a vote on the chief justice’s rulings.
Basically, Chase had won a significant victory. The trial of the President conducted mostly as if it were a legal proceeding slanted the definition of impeachable offense toward a breach of law and away from questions of fitness, folly, or the autocratic abuse of power. The tide was already turning.
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ALL SENATORS WERE to take the same oath that had been administered to Chief Justice Chase, but Indiana Democrat Thomas Hendricks objected to Benjamin Wade’s swearing-in. As president pro tempore of the Senate, Wade would enter the White House if Johnson was convicted; Hendricks argued that Wade should therefore not be allowed to vote: the conflict of interest was obvious.
As a U.S. Senator from Ohio, Wade did have the right to vote—if, that is, the Senate tried impeachment as a legislative body and not as a high court. But the real issue for many was the idea of a President Benjamin Wade. “Three months of Ben Wade are worse than two years of A. J.,” Charles Eliot Norton cried. James Garfield noted that his colleagues were panicky. “ ‘Conviction means a transfer to the Presidency of Mr. Wade,’ ” he reported them as saying, “ ‘a man of violent passions, extreme opinions and narrow views; a man who has never studied or thought thoroughly or carefully on any subject except slavery, a grossly profane coarse nature who is surrounded by the worst and most violent elements in the Republican party.’ ” After quoting his colleagues, Garfield disingenuously added, “now these sentiments are in many respects unjust to Wade,—of course you will understand they are not mine.”
Muscular and stocky, Benjamin Wade was a steam engine, Emily Briggs declared, “built for use instead of ornament.” Unlike Charles Sumner, who favored plaids and purples, Wade dressed plainly, always in a black broadcloth suit with an old-fashioned standing collar. He never wore jewelry, not even a ring. He trafficked in absolutes, and he didn’t let go. Noah Brooks said that Wade possessed “a certain bulldog obduracy truly masterful.” Certainly his support of such scandalous issues as women’s suffrage, equal justice under the law, and paper currency rubbed a number of people the wrong way. He didn’t care. When he brought Congress a bill allowing women the right to their own wages and property, Wade vehemently exclaimed, “I did not do it because they are women, but because it is right.” In 1867, he’d signed a petition recommending Mrs. Frances Lord Bond for a consulate—because, he said, she was qualified.
“That vicious old agrarian, Ben Wade, of Ohio, tells you what is coming,” conservative Southerners despaired: “The ballot for the women and free farms for the free negroes.”
Born in the Connecticut valley, Wade and his family had moved to Ohio, where in his youth he’d worked as a farmhand, a teacher, and a laborer with spade and wheelbarrow on the Erie Canal before studying law with a local attorney and entering briefly into a partnership with the evangelical abolitionist Joshua Giddings. In 1851, as a former state senator and judge of the third judicial district, Wade was sent to the U.S. Senate by a coalition of Whigs and Free-Soilers the same year as Charles Sumner. Both men were contentious opponents of slavery. But Wade wasn’t a windbag. With a brace of pistols in his desk, and a squirrel gun nearby, he put Southern fire-eaters on notice. “If he is a good friend,” said a contemporary, “he is also a good hater.” Wade never backed down.
In 1861, when he was sixty-one, he unsuccessfully tried to join the Union army, and consoled himself by chairing the Committee on the Conduct of War. He openly criticized Lincoln for prosecuting what he called a “rose-water war,” and in 1864 actually tried to topple the President because Lincoln seemed too soft on reconstruction. Wade worried that slavery by another name would never be abolished if ex-rebels, no matter what kind of loyalty oath they swore, were allowed to hold office. Anyone who held a position of authority in the Confederacy or who had shouldered a rifle should be forbidden to serve as a delegate to the state constitutional conventions or even to vote for the delegates who did.
Wade’s early plan for reconstruction didn’t initially give black men the vote, but that soon changed. And he thought that the plantations of slaveholders should be broken up and distributed. Karl Marx, who called Andrew Johnson “a dirty tool of the slaveholders,” admiringly quoted from Wade’s public statement that “after the abolition of slavery, a radical change of relations of capital and of property in land is next upon the order of the day.” Far less pleased, conservative Americans called Ben Wade a mixture of “Machiavelli, Munchausen, and Miss Nancy.”
Ohio Senator Benjamin Wade was the Radical Republican who, as president pro tempore of the Senate during the latter part of the Johnson administration, was next in line for the presidency should Johnson be impeached. (Johnson had no Vice President.)
Wade, then, in the Executive Mansion? Not a chance. Andrew Johnson may be impeached, but conviction seemed fairly remote. Wade was too frightening.
But Wade also had defenders. For one thing, whether friend or foe, no one had ever doubted his honesty. “He is therefore the kind of a man the country needs in this crisis, when the Treasury is being robbed by corrupt rings, who are protected by the administration,” Whitelaw Reid declared. Yet for the most part, conservative Republicans and Democrats feared that Wade stood “cheek by jowl” with Wendell Phillips “on negro suffrage and Southern negro supremacy.” He communicated with John Brown’s ghost, they said, and mockingly imagined a Wade cabinet with Susan B. Anthony as secretary of the interior, and Frederick Douglass and George Downing as ministers to Haiti and Liberia. In fact, Johnson’s friend, the journalist Joseph McCullagh, told the President that the impeachment trial would be more about blocking Wade than about banishing Johnson.
Johnson was incredulous. “[Johnson] thought every republican senator hated him,” McCullagh said, “worse than he hated anybody else.”
Ohio Senator John Sherman maintained that his state was entitled to two senators, namely himself and Wade, during the impeachment trial. Johnson’s son-in-law, Senator David Patterson, represented Tennessee, and wasn’t he also representing Andrew Johnson? Wasn’t that a conflict of interest? Senator Sherman wanted to know. Democrat Reverdy Johnson countered that alth
ough the trial would take place in the Senate chamber, the Senate would be a court of impeachment, not a legislative body, so Wade should not be able to vote.
Charles Sumner informed Reverdy Johnson that the Constitution granted the power to try impeachments to the Senate, pure and simple; and whether you called the Senate a court or a tribunal or a senate, it was still the Senate, and Wade should vote. Others chimed in that any objections to Wade’s vote should come from the President’s defense team, not from the senators themselves.
On and on the debate raged, foreshadowing what was to come, but on Friday, March 6, for reasons unknown, or because a deal had been made, Thomas Hendricks withdrew his objection, and Benjamin Wade took the oath with the other senators.
This was a victory for Radical Republicans and for Wade, it seemed. The Senate still conceived of itself as a legislative body with two representatives from every state. But at the same time, according to Salmon Chase, the Senate was reconstituted as a judicial court of impeachment, whatever that was. It was confusing. Yet moderate Republicans were sure of one thing: they didn’t want an old-time abolitionist and inflationary rabble-rouser to emerge as top dog.
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“THEY SAY THE city is full of rebels, who have been coming here for a week past,” Moorfield Storey told his sister, “and they also say that nothing of the kind is true.” Johnson would resign; he should resign; he could not get a fair trial. He would not resign. He would get in his own way. “Give Andy enough rope and he will hang himself and his friends,” Democrats joked. He should be convicted for not having booted Stanton out years ago. Others predicted the Senate would drop the prosecution. “The Hon. Mr. Wiseacre thinks he [the President] has not committed a ‘misdemeanor;’ and the Hon. Mr. Somebody Else thinks it won’t do to have Ben Wade President in a few weeks; and the Hon. Mr. Lord-Knows-Who is afraid it will have a bad effect on politics if we meddle with him; and the rich and ignorant classes of State and Wall Streets fear a rise in gold,” said one reporter.
The Impeachers Page 29