The Impeachers

by Brenda Wineapple

  Bingham brushed away the verbose cobwebs, as he called them, that Evarts had spun. He condemned the President for taking the law into his own hands. “In spite of the technicalities, in spite of the lawyer’s tricks, in spite of the futile pleas that have been interposed here in the President’s defense,” he said, “that is the issue.” The President is not a king, and he cannot claim to disregard the Constitution and its provisions. He cannot set aside the law or defy it. And if he were to set aside such a law as the Tenure of Office Act, then he could set aside every other act of Congress. That places Congress and the Constitution and the people at the mercy of executive pleasure. Even the President’s defender and former Supreme Court justice Benjamin Curtis had agreed with him. Bingham quoted from Curtis’ pamphlet, “Executive Power,” published in 1862, where he stated that if the President disobeys the laws of his own country, he is a usurper of power.

  Bingham then dismissed other justifications for the President’s action that the defense had argued. The Tenure of Office Act of 1867 had effectively repealed the Act of 1789, so there was no point discussing it. And in the final analysis, the President’s duty was to execute the law; it was not for him to make the law, or to interpret the Constitution for himself, or to arrogate to himself the means of testing any law’s constitutionality. In any case, the supposition that Johnson was trying to test the law’s constitutionality was at best a convenient, insincere afterthought.

  Bingham also assailed the entire defense team as hired guns, and he aimed some of his most pointed criticism at Evarts, a man with more Latin than law, more bombast than logic, and more intellectual pyrotechnics than either law or logic—and who aimed to prove that the best way “a man may make his speech immortal is to make it eternal.” Laughter.

  Most of the listeners fell on every word, though not everyone. New York Democrat John Van Pruyn noisily opened his newspaper. When Chief Justice Chase sent one of the Senate pages over to Pruyn to tell him to lower the paper, which was covering his face, Pruyn stalked out of the chamber. Some said Bingham’s style was so tangled it took a machete to cut through it. Bingham was articulate but unoriginal. He was prolix. He was dogmatic and wordy. Benjamin Wade said he now believed Demosthenes and Cicero to be the greatest mischief-makers ever to have lived.

  Several Republican senators had not shown up for Bingham’s closing argument. That was a bad sign. Had they already decided how they would vote? Nervous whispers, nothing said aloud, canards and accusations whipped through the Capitol, the newspapers, the nation.

  Yet Bingham had brought tears to the eyes of many who did hear him, and his own eyes seemed shiny and damp. “I ask you to consider that we stand this day pleading for the violated majesty of the law, by the graves of a half million of martyred hero-patriots who made death beautiful by the sacrifice of themselves for their country, the Constitution, and the laws, and who, by their sublime example, have taught us that all must obey the law,” Bingham resoundingly concluded; “that none are above the law; that no man lives for himself alone, ‘but each for all’; that some must die that the state may live; that the citizen is at best but for to-day, while the Commonwealth is for all time; and that position, however high, patronage, however powerful, cannot be permitted to shelter crime to the peril of the republic.”

  The galleries burst into applause, men and women stood up, boisterous, shouting, clapping, waving. Frowning, the chief justice vainly rapped his gavel and called for order. He too was standing, robes fluttering. Burly James Grimes barked that the galleries should be instantly cleared and reporters and diplomats expelled too. Spectators applauded louder. They hissed and stamped. Reporters and members of the diplomatic corps were indignant. Senator Simon Cameron objected to Grimes’ motion, but Senator Lyman Trumbull, gold spectacles glimmering, said the guards should immediately arrest all disorderly persons.

  Bingham looked up and smiled with weary patience as the galleries were emptied. Asked how he felt, he sighed, “I don’t know. God knows I have tried to do my duty; it is in the hands of the Senate now. The great work of my life is done.”

  Chief Justice Chase announced that arguments on both sides of the great question of impeachment were closed. The beginning of the end was at hand.

  CHAPTER TWENTY-FOUR

  Cankered and Crude

  “Our American politics are in an unusually effervescent condition.”

  —WALT WHITMAN

  “Society, in these States, is canker’d, crude, superstitious, and rotten,” Walt Whitman wrote.

  The poet strolled over to the Capitol to hear some of the closing speeches on impeachment. “Our American politics,” Whitman told another friend, “are in an unusually effervescent condition.” Recently the poet had been annoyed by Thomas Carlyle’s apocalyptic “Shooting Niagara: And After?” a pamphlet that denounced democratic America as a “swarmery” in which braying, fire-breathing Radicals and their deliriously stupid agitations—first over slavery, then over equality—led to the frightening horror of voting rights for the masses. As if in direct reply, Whitman sketched out an essay in response. Though he’d encountered shameless politicians jockeying for power, partisans who cared only for party and thieves who bought their offices with money instead of merit, he forced himself to stay hopeful. “While the piled embroidered shoddy gaud and fraud spreads to the superficial eye,” Whitman declared, “the hidden warp and weft are genuine, and will wear forever.”

  Whitman’s somewhat cluttered syntax suggests that he was actually very worried. And Whitman wasn’t alone. It seemed the fate of the entire country would soon be decided—though not until Tuesday, May 12, six long days after John Bingham’s closing argument, six long days during which anything could happen. If a senator was glimpsed dining at Willard’s or at Welcker’s popular restaurant on Fifteenth Street people began to speculate, although no one knew anything for sure. Men kept lists of the senators in their pockets, and they checked and rechecked their tallies when they thought they knew which way a senator tended. Everyone knew the arithmetic: fifty-four senators, so it would take nineteen votes to acquit, thirty-six to convict.

  Predictions changed from hour to hour. Someone heard the President was going to leave office right before the vote, and it was said that General Grant had bet Secretary Stanton a box of cigars that Johnson would resign. Schuyler Colfax seemed certain of Republican success. Senators James Henderson of Missouri and Edmund G. Ross of Kansas would certainly vote guilty—Ross had volunteered that information to Charles Sumner, who was rather surprised at the confidence, not having solicited it. Ross had never walked over to Sumner’s desk before. And Ross’ brother said he wished he were as sure of going to heaven as he was of Edmund’s vote to convict the President.

  Then again, Senator Fessenden, sitting at a card table, showed his hand to Colfax’s sister one night, suggesting that he’d vote to acquit. “After this impeachment trial is over,” Fessenden said, “I shall be one of the most unpopular men in the country.” Fessenden, it was later said, had never recovered from not having been appointed president pro tempore of the Senate instead of Benjamin Wade. Had he been, he’d have been next in line for Johnson’s job and might have voted differently.

  Before the vote was taken, the Senate went into secret executive session during which each of the senators was allotted fifteen minutes to give his estimation of the case. Inside, the heat and thick tobacco smoke were suffocating. Outside, reporters were trawling for clues and representatives from the House gathered in the cloakrooms and lobbies. Clusters of men and women loitered nearby, some of the men laying bets and hoping to buttonhole whatever senator might stray outside the chamber. “Is there anything new?” they asked. “How is Fowler? Is he sure for conviction?” “I hear he is silent as an infant oyster.”

  After the session recessed, it became known that John Sherman had spoken against the validity of the first article of impeachment. The impeachers were rat
tled. Sherman had said that Stanton’s current position as secretary of war was not protected by the Tenure of Office Act, a point he had made when the Senate first discussed it. He did add that he believed the President had violated the law when he appointed General Thomas interim secretary. It seemed, then, that Sherman would vote to convict on the second and third articles of impeachment, which dealt directly with the appointment of General Thomas, and the eleventh, or omnibus, article of impeachment, which accused Johnson of repudiating the Thirty-Ninth Congress and its reconstruction legislation.

  As for James Grimes, having secured the appointment of General Schofield as war secretary, Grimes said Johnson was within his rights when he fired Stanton, for Stanton held his office at the pleasure of the President. Grimes also dismissed the conspiracy charges against Johnson—that the President had conspired either with General Thomas or with General Emory—and so he wouldn’t vote to convict on any of the articles of impeachment. Senator Trumbull could not be depended on either. “Moral debauchery under a decent exterior,” one disappointed impeacher described Trumbull. “I have believed from the first that Trumbull would go back on us when it comes to a vote,” a friend told Elihu Washburne.

  With Fessenden, Grimes, and Trumbull set to vote against conviction, the President needed only four more Republican votes for acquittal. The two West Virginia Senators, Peter Van Winkle and Waitman Willey, along with New Jersey Senator Frederick Frelinghuysen, Tennessee’s Joseph Fowler, and William Sprague of Rhode Island might be available. The wealthy Sprague was suspected of being influenced by his wife, Kate Chase Sprague, who desperately wanted her father, the chief justice, to win the presidency. Johnson’s acquittal would help Chief Justice Chase seem less radical. Then again, Sprague wanted to be respected as his own man, especially since he faced re-election, so no one knew for sure what he’d do.

  Peter Van Winkle’s deep-dyed conservatism troubled many Radicals. Bald, portly, and with a fluff of white whiskers on each cheek, the wealthy former lawyer had been a strong Unionist during the war. Though no supporter of the Civil Rights Act, the Fourteenth Amendment, or universal suffrage—he’d opposed them adamantly—Van Winkle had supported the Reconstruction Act of 1867, mainly because he despised former Confederates and did not want them in power. Still, Van Winkle often voted with the Democrats, particularly since he believed that a burgeoning federal authority was encroaching on state sovereignty. When Charles Sumner wanted Congress to establish cholera hospitals to combat the epidemic of 1866, Van Winkle had fought him on the basis of state’s rights. Yet Van Winkle did suggest he might vote for conviction on a couple of articles.

  Suggestions about who would vote what were hearsay. Everything was hearsay. “This impeachment worries a fellow to death,” journalist Benjamin Perley Poore said, “and there is no other news.”

  There was some information on Joseph Smith Fowler. A stalwart Tennessee Unionist, born in Ohio, Fowler had served during the war as Tennessee state comptroller under the military governorship of Andrew Johnson, and he’d successfully argued for Johnson being Vice President on Lincoln’s 1864 presidential ticket. Elected to the Senate in 1865, the baby-faced Fowler was able to take his seat in Washington only after Tennessee ratified the Fourteenth Amendment, which allowed the state to rejoin the Union. Since then, he’d spoken against Johnson’s policies as too lenient, and had clearly declared after Johnson removed Stanton that the President had committed high treason. So far, so good.

  Tennessee Radicals placed Fowler in their column, though just to make sure, a few days before the vote, a delegation from Tennessee called on him. It seemed he might actually desert the Radicals, for every day when the court of impeachment convened, Fowler left his chair to sit with two of the Democrats. And though in private Fowler had said he’d vote to convict, the journalist John Russell Young had heard that when Fowler’s wife was mortally ill, Johnson’s allies—particularly Johnson’s widowed daughter, Mary Stover—had helped nurse her. Fowler was grateful; it was rumored he and Johnson’s daughter were engaged.

  Senator John Henderson of Missouri also seemed to waffle. Tall and good-looking with curly dark hair and a bushy beard, Henderson had been a Democrat, then a Republican and friend of Lincoln. He spoke out against the first ten articles and afterward dined with Chief Justice Chase and Democrat Reverdy Johnson, both vehement anti-impeachers. Gideon Welles assumed that Mary Foote, a sturdy Democrat, had influenced Henderson, her fiancé, to vote for acquittal.

  On the same morning the vote was to be taken, Senator Henderson had told a delegation of Missouri House Republicans that he could vote for the President’s conviction on the eleventh, or omnibus, article. And though both Henderson and the Missouri delegation would soon dispute the account of what happened during their meeting, Henderson seemed also to promise that if he couldn’t vote for Johnson’s conviction, he’d resign his seat so that Missouri’s radical governor could replace him with someone who would.

  Horrified at hearing this, General James Craig rushed to Henderson’s rooms. President of the Hannibal & St. Joseph Railroad and a transparent Johnson supporter, Craig had been authorized to offer Henderson anything he wanted—carte blanche—if he would vote for acquittal. “He was the man to do it,” said a man who knew Craig, “since Craig was responsible for his [Henderson’s] election.” Craig also added that if Henderson was “turned out of the Republican Church” because he voted to acquit, the Democrats would gladly welcome him in theirs.

  After Craig left, Henderson said that he would stay in office and acquit Andrew Johnson. According to Henderson, Johnson had promised to nominate new men to the cabinet—all Republicans—and would abide by congressional reconstruction. Fretting, the Missouri delegation quickly telegraphed Henderson: “Can your friends hope that you will vote for the eleventh article?”

  “I am sworn to do impartial justice according to the law and the evidence,” Henderson loftily replied, “and I will try to do it like an honest man.”

  “Fessenden, Trumbull, Grimes, Henderson have expressed themselves for acquittal,” a Cincinnati lawyer in Washington cheerfully told Washington McLean, the Democratic publisher of the Cincinnati Enquirer.

  “Everything has gone to hell,” Elihu Washburne exclaimed. For the first time in ten years, President Johnson and his two daughters went to the theater.

  * * *

  —

  ON THE MORNING the vote was to be taken, the morning of Tuesday, May 12, the crowds again gathered at the Capitol, and when the doors opened, they poured into the corridors and halls. Policemen in blue broadcloth uniforms guarded every entrance, and with polished clubs in their white-gloved hands and revolvers in their belts, they made the people in the galleries feel like criminals.

  Thaddeus Stevens was carried in early. John Logan, Ben Butler, and George Boutwell milled among the representatives. When Moorfield Storey asked Boutwell what he thought, Boutwell replied, “Well, I don’t give up yet.” Trumbull and Fessenden sullenly sat side by side, and Grimes, eyes fixed on the floor, avoided the Radicals, who refused to come near him. Henry Stanbery had returned to the Senate for the first time since his own speech and wordlessly tucked himself into the defense table.

  The chaplain concluded the morning prayer. Senator Chandler announced that Michigan Senator Jacob Howard was too ill to enter the chamber, even on a cot, which he had very much hoped to do. Unanimously, the Senate voted to adjourn until Saturday.

  Four more days of waiting: in all, ten long days would pass between John Bingham’s final argument for the prosecution and any decisive vote on the conviction of the President of the United States, who needed seven Republicans, only seven, to unite with Democrats and acquit him.

  Impeachers were now pessimistic. Had the vote been taken as planned that Tuesday, they said, “we might have carried it.”

  * * *

  —

  THE NEXT DAY, Wednesday, May 13, President Johns
on also received a telegram. “Henderson matter all right,” it read. “So says Evarts.” Montgomery Blair, walking straight out of the White House, calculated that the President had enough votes to save him. Postmaster General Alexander Randall said he was sure the President would be acquitted. Treasury Secretary Hugh McCulloch was equally sanguine—Grimes, Fessenden, Trumbull, Van Winkle were in the bag. Gideon Welles wondered what McCulloch knew and how he knew it.

  * * *

  —

  HUMORIST DAVID ROSS Locke was much more popular than President Andrew Johnson. Familiarly known as Petroleum V. Nasby, the cracker-barrel philosopher, he satirized Johnson without mercy. “I desire to glide into history ez a marter (with a halo round my head),” Nasby’s Johnson shouted. “I shel not pervent the people from testifying their devoshen to me and bearin witness to my many virchoos. I hev already received tenders uv percessions ez terrible ez armies with banners….In the South, ef the confederits I hev pardoned will all turn out the percessions will be miles in length, and eve thy do not the Ku-Klux will be on hand.”

  * * *

  —

  IF IMPEACHMENT FAILED, what would happen to the South? Wouldn’t Johnson possess unshackled power, particularly over the military commanders stationed there? Apprehensive, both Radical and conservative Republicans pushed to admit the newly reconstructed Southern states into the Union. The House of Representatives quickly passed a bill restoring South Carolina, North Carolina, Georgia, Louisiana, and Alabama, provided they never revoked the black man’s right to vote. The bill proposing the readmission of Arkansas had already been sent to the Senate. To expedite its passage, Radicals chucked their earlier demands about voting restrictions on former rebels and about legislation guaranteeing education of the former slaves.