American Experiment (160 page)

This heroic effort was not conducted by men on white horses, but rather by quarrelsome parliamentarians—by a Congress that seemed to one of its members as never “more querulous, distracted, incoherent and ignoble.” In the Senate, Sumner had good reason to be distracted, for he had married a woman half his age shortly before the election and was preoccupied first by marital bliss and very soon by marital distress as he and his wife found themselves hopelessly incompatible. His colleagues found him more remote and unpredictable than ever. In the House, Stevens worked closely with his Radical allies, but he was now desperately anxious to move swiftly ahead, for he knew that time was running out for him and perhaps for his cause. Rising on the House floor, he now presented the countenance of death, with his dourly twisted mouth, deeply sunken eyes, parchment skin, and a body so wasted that he often conducted business from a couch just outside the chamber. But the old man never lost his ferocious drive to dominate; as he spoke, his eyes lighted up in a fierce gleam and his croaking voice turned thunderous, while he stretched his bony arm out in a wide sweep and punctuated his arguments with sudden thrusts of his long yellow forefinger.

The strength of the Republican party lay in the advanced positions of these two men but even more in the quality and commitment of other party leaders in both houses. Some of these men—John Sherman, James A. Garfield, James G. Blaine—would gain fame in the decades ahead. Others, with such names as Thomas D. Eliot, John A. Bingham, James M. Ashley, Samuel Shellabarger—would fade into the mists of history. Occupying almost every hue on the party rainbow, these men differed sharply and disputed mightily, but they felt they had a clear election mandate to establish civil and other rights in the South; they had a strong sense of party solidarity; and they had the backing of rank-and-file senators and representatives and of party organizations throughout the North.

They also had a common adversary in Andrew Johnson. The President stewed over his election defeat, but he would make no fundamental change in his political and legislative strategy. Setbacks seemed only to mire him more deeply in his own resentments. Karl Marx had noted that behind Johnson’s “affectation of severity against single persons,” such as Jefferson Davis, he tended to be “extremely vacillating and weak in substance”; certainly Johnson was more flexible in day-to-day tactics than in overall
strategy. He received little independent advice from his Cabinet, which appeared to believe that the beleaguered President needed above all their loyalty. Stanton dissented on occasion but, characteristically, Johnson did not wholly trust him. As the President stuck to the disintegrating political center and the Republicans moved toward a radical posture, the legislative stage was set for drama and conflict.

The upshot was a burst of legislative creativity in the “hundred days” of winter 1866–67:

December 14, 1866:
Congress enacts black suffrage for the District of Columbia, later reenacts it over Johnson’s veto.
January
7,
1867:
the House adopts Ashley’s resolution instructing the Judiciary Committee to “inquire into the conduct of Andrew Johnson.”
January 22:
Congress grants itself authority to call itself into special session, a right recognized until now as belonging only to the President.
March 2:
all on the same day, Congress passes a basic act laying out its general plan of political reconstruction; in effect deprives the President of command of the army; and enacts the Tenure of Office Act barring the Chief Executive from removing officials appointed by and with the advice of the Senate, without Senate approval.
March 23:
Congress passes a supplementary Reconstruction Act requiring military commanders to start registering “loyal” voters.

The heart of congressional strategy to democratize the South lay in the first Reconstruction Act of March 2, 1867, as clarified, strengthened, and implemented in later acts. With the ostensible purpose of restoring social order and republican government in the South, and on the premise that the existing “Johnson” state regimes there could not realize these ends or even protect life or property, the South was divided into five military districts subject to martial law. The commanders were empowered not only to govern—to suppress disorder, protect life and property, remove civil officeholders—but to initiate political reconstruction by enrolling qualified voters including blacks, and excluding the disloyal. To be restored to the Union, the Southern states must call new constitutional conventions that, elected under universal manhood suffrage, in turn must establish new state governments that would guarantee black suffrage and ratify the Fourteenth Amendment. These states would be eligible for representation in the national legislature only after Congress had approved their state constitutions and after the Fourteenth Amendment had become part of the Constitution.

It was a radical’s dream, a centralist’s heaven—and a states’-righter’s nightmare. Congress held all the governmental strings in its hands. No more exquisite punishment could have been devised for secessionists than to make them conform to national standards in reconstructing their own
state governments and gaining restoration to the Union. Congress did not stop with upsetting the division of powers between nation and states; it overturned the separation of powers among the three coordinate branches of the national government. Radicals could defend the Tenure of Office Act against this charge by contending that its main purpose was not to undermine presidential power in general but to thwart any effort of Johnson to sack Secretary of War Stanton. But the effort of Congress to interfere with the hitherto near-sacred independence of the judiciary left little question as to the willingness of the Radicals to experiment with changes in the checks and balances.

Under Salmon P. Chase, the old-time abolitionist leader and Lincoln’s Treasury Secretary until appointed Chief Justice in 1864, the Supreme Court had recovered some of the moral standing and political influence it had lost under Roger Taney. In general, the Chase Court had upheld national and congressional power, but in April 1866, just before the congressional Republicans took control of Reconstruction, the justices, in a preliminary ruling, struck down resort to martial law where the civil courts were operating. If it were possible to bring a civilian before a military court in a state that was not a theater of war, the Court ruled in
Ex parte Milligan,
“there is an end of liberty regulated by law.” Stung by this decision, Stevens called it more dangerous to the “lives and liberties of the loyal men of this country” than even
Dred Scott.
Radicals recognized that the decision might hamstring Reconstruction, for the Court’s argument, in William R. Brock’s words, would now apply directly in the South, where war no longer existed, the civil courts were functioning, and the jurisdiction of military courts had been enlarged.

Radical fears rose again in the spring of 1867 when the Court invalidated a wartime measure requiring lawyers practicing before federal courts to take loyalty oaths. When the Republican leaders learned that the Court had agreed to review a case much like
Milligan
but involving a military court in Mississippi, Congress took direct action through a measure depriving the Court of jurisdiction over this kind of case. Some members of the Court wished to mobilize judicial power against congressional; but Chase, experienced in the balances and nuances of power, called them off, warning against a “collision” between Court and Congress. The Court then rebuffed two Southern states seeking to enjoin executive enforcement of the Reconstruction Acts. Once again the legislature emerged triumphant.

The most potent and dramatic congressional weapon against the President lay tucked away inconspicuously in Section 3 of Article I of the Constitution: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice shall preside: and no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

No President had been impeached; the congressional weapon lay unused, a loaded gun neither cocked nor fired. Perhaps it was unfortunate that Congress had not seriously considered impeaching a President, for the ancient process had not been tested as part of the constitutional checks and balances. Some hoped that now it would be. When impeachment of Johnson neared, a friend of Congressman Garfield wrote him that the “next great question to be decided in our history is this—is the National Legislature to be as omnipotent in American politics as the English is in English politics. The struggle through which we pass in reaching an answer to that question will be the parallel to that through which the British people passed in the time of the Stuarts.… May we not anticipate a time when the President will no more think of vetoing a bill passed by Congress than the British crown thinks of doing the same thing?” Others were quick to point out that the Framers had devised an American system of separated powers rather than a unified one like the British. But this question had not been directly faced or tested.

Impeachment could also have been used as a grand confrontation between President and Congress over the fundamental strategy and substance of Reconstruction. In essence Johnson wanted a soft, conciliatory posture toward the South, with full deference to states’ rights. Republicans, both moderates and radicals, wanted a hard policy, to be shaped and enforced by national power. The most clear-cut difference on substantive issues between the President and the Republican leadership was over federally guaranteed or sponsored black suffrage, although Johnson camouflaged his opposition to “niggers” voting by leaving it up to the (Southern, white-dominated) states. There were other grave issues. But impeachment failed to pose them in a manner that encouraged rational debate either in Washington or in the country at large.

The decision to impeach had come far more in response to personal and political events than to a desire to clarify constitutional and policy issues. It was clear after the 1866 congressional elections that legislature and executive would follow divergent reconstruction strategies, but most members of Congress shrank from the perilous experiment of impeachment. They feared making a martyr of Johnson, opening up new wounds among
the Republicans, and giving Senator Benjamin Wade, a Radical, a soft-money man, and a supporter of women’s rights as well as black suffrage, a leg up on the 1868 presidential nomination, for Wade as Senate president
pro tem
would move to the White House if Johnson should be removed. During 1867, an effort to recommend impeachment to the House failed, amid general ridicule. Even after the President in December pugnaciously told Congress that in certain cases he “would be compelled to stand on his rights, and maintain them, regardless of consequences,” the House voted down an impeachment resolution two to one.

It was Johnson himself—a man with the courage of his convictions and the conviction of his innocence—who precipitated the battle of ’68. He did so by sacking his Secretary of War, Edwin Stanton. The President had suspended Stanton in August 1867, and thus kept within the letter of the Tenure of Office Act. Now he flagrantly defied that act—and Congress. The House responded by resolving, 126 to 47, “That Andrew Johnson, President of the United States, be impeached of high crimes and misdemeanors in office.”

The impeachment and trial of Andrew Johnson might have been the climactic stages of a great political and constitutional drama, but not one of the acts of this drama was well conceived or well played. When Johnson suspended Stanton, the President induced General Grant to serve as the temporary Secretary of War, on some kind of understanding that the general would help him make the Tenure of Office Act into a great constitutional test case. When, however, the Senate expressed disapproval of Stanton’s ouster, Grant withdrew in favor of the sacked secretary, amidst mutual recriminations that brought out the worst in each man. After Johnson found an alcoholic, foppish general to serve as Secretary of War, Stanton held on to his job by posting a guard and barricading himself all night in his office.

Rumors circulated that Johnson would suppress Congress through a military coup—or that the Radicals would take over the White House with the help of their friends in the military. There was much whispering of money passing hands for the conviction or exoneration of the President.

Probably the most sordid episode was the resurrection of the case of Mary E. Surratt. The mother of a man who had been implicated in the Lincoln assassination plot and then fled the country, Mrs. Surratt had been convicted on flimsy evidence and in large part, it seemed, on the hope that her son would return when he heard of her imminent hanging. He did not and Mary Surratt, fainting and sobbing, was led to the gallows within sight of her open grave. Now, over two years later, a War Department subordinate of Stanton’s abetted publication of a statement that President Johnson
had signed her death warrant with a clemency recommendation from the military court staring him in the face. As the statement was blazoned across the nation’s front pages, Johnson reacted with wrath and vengefulness against Stanton. Many believed that this incident precipitated Johnson’s first move against the secretary.

The last act of impeachment was played out in the Senate starting on March 5, 1868, still without high drama. The chief protagonist, the President of the United States, was not present. He was well represented by William M. Evarts, a leading New York attorney, assisted by an ex-Supreme Court Justice and Johnson’s just-resigned Attorney General. The President was fortunate too in the low caliber of the impeachment managers appointed by the House. Stevens was feebler than ever, and the prosecution fell into the hands of Ben Butler, whose prosecutorial manner, courtroom bombast, and general highhandedness did his cause little good. Moreover, the managers had a hard case to present, for the House had impeached Johnson on a farrago of charges ranging from preventing the execution of the Tenure of Office Act to bringing “disgrace, ridicule, hatred, contempt and reproach” on Congress. If Johnson’s foes were trying the old prosecutor’s trick of “throwing everything in the book” at the President with the hope that something would stick, the tactic failed, for senators were able to use the sheer variety of charges as means of evading them.