Historical Films on Impeachment and Confederate Sympathizers Took Liberties and Duped Us : Substantially Similar--A Blog on IP Issues, Writing and Film
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Historical Films on Impeachment and Confederate Sympathizers Took Liberties and Duped Us

by John Aquino on 05/28/19

I have written articles and a book on legal issues concerning fictional portrayals in fact-based films. For historical films depicting events from a century or more ago, there are seldom legal concerns related to the portrayals because only the living can sue claiming they have been libeled. The main issue with these historical films is a distortion of the truth that can affect public perception of historical figures. I've recently encountered two such incidents: one concerning the 1942 film Tennessee Johnson, which is focused on the 1868 impeachment trial of President Andrew Johnson, and the other the 1936 film  Prisoner of Shark Island, which tells the story of Dr. Samuel Mudd who was convicted and imprisoned for conspiracy in the assassination of President Abraham Lincoln. Film being such a pervasive medium, it makes me wonder if the national understanding of impeachment and confederacy/slavery would have been different if the films had moved closer to the truth.


Tennessee Johnson was regularly broadcast on television when I was young, and I sorta grew up on it. It stars Van Heflin and portrays Johnson as a Senator from Tennessee who fought against secession and then as a loyal vice president to Lincoln who arrives ill for his swearing-in ceremony and is falsely reported to be drunk. On Lincoln's assassination, Johnson becomes president. He doggedly tries to perpetuate Lincoln's benign approach to Reconstruction but is fought every step of the way by members of Congress led by Rep. Thaddeus Stevens, played in the movie by Lionel Barrymore. During his impeachment trial, Johnson delivers an impassioned speech in his defense. He is acquitted and years later represents his state in Congress. My knowledge of Johnson came primarily from the film and from John F. Kennedy's book Profiles in Courage, which told, among other stories of courage, how Sen. Edmund Ross of Kansas voted not to convict Johnson, which left the prosecution one vote short.  

The film carried an unusual disclaimer that doesn't just repeat the typical Hollywood statement that characters and events depicted are fictitious. Instead, it reads, "The Senate of the United States, in 1868, sat as a High Court in a judgment upon Andrew Johnson, who succeeded Abraham Lincoln as President. In the only great State trial in our history [until 1998], President Johnson was charged with violation of a law which forbade him to dismiss a member of his Cabinet. In 1926, the Supreme Court pronounced this law unconstitutional--as Johnson contended that it was. The form of our medium compels certain dramatic liberties, but the principal facts of Johnson's own life are based on history." 

And so, the filmmakers acknowledge taking "certain dramatic liberties" due to the "form of our medium." It was a while before I learned the extent of the "liberties." When I was writing my book, I wanted to find Johnson's impassioned speech during his trial and learned that he never gave such a speech or even appeared at his trial. In my other readings,  I discovered that he was a slave owner, and, as president, opposed the Fourteenth Amendment, which gave citizenship to former slaves, and fought against some of Lincoln's other plans for Reconstruction. While Johnson put forth a story that he had been ill and not drunk at Lincoln's second inauguration during which Johnson was also sworn in, contemporary accounts and comments from Lincoln himself--"I have known Andy Johnson for many years. He made a bad slip the other day but you'd need not be scared. Andy ain't no drunkard"--suggest it was otherwise. 

I've finished reading Brenda Wineapple's just released and eerily-relevant book, The Impeachers: The Trial of Andrew Johnson and his Dream of a Just Nation, which presents a detailed picture of the circumstances surrounding the impeachment trial and contrasts markedly with the film. As president, Johnson took the position that secession was unconstitutional and therefore hadn't happened. He therefore felt free to pardon and give appointments to former Confederate officers, which tended to reassert white supremacist thinking in the south. This angered Stevens and others who favored racial equality. Some who opposed what Johnson was doing overreached, spreading rumors that he had been complicit in Lincoln's assassination and passing the ultimately unconstitutional Tenure in Office Act, which required the president to obtain Congress' approval before removing cabinet members from office. Johnson was impeached by the House and tried by the Senate after firing the secretary of state. The trial dragged on, consumed with arguments about process--is his being a racist enough to push a president out of office?--and, while Ross was the last to cast a vote, Democrats and Republicans ultimately joined together to  get enough votes to acquit and end the national nightmare. Stained by impeachment, Johnson did little in his remaining year in office and failed in his attempt to secure the nomination for his reelection. He was ultimately elected to the Senate again in 1875 and served five months before his death.

Tennessee Johnson was made during World War II and extolled patriotism and unity at the expense of the more complex and more interesting factual story. Simplifying the story is usually thought to be more dramatic. The movie was directed by William Dieterle, who specialized in historical films such as The Story of Louis Pasteur, The Adventures of Robin Hood, and The Hunchback of Notre Dame, and was co-written by John L. Balderston, a little remembered but extremely skilled and influential playwright and screenwriter, who coaxed a play, Berkeley Square, out of Henry James' unfinished novel The Sense of the Past, and either wrote or co-wrote the film versions of Dracula, Frankenstein, The Invisible Man, The Mummy, The Bride of Frankenstein, Mad Love, Dracula's DaughterThe Mystery of Edwin Drood, The Prisoner of Zenda, and Gaslight. (As an attorney, I admire the fact that the year before his death in 1954 he reached a settlement of his lawsuit with Universal Studios that brought him and his heirs a percentage of revenues for all of the horror films he helped write and their sequels.) And so there was talent behind Tennessee Johnson, although it tended to be in people who had worked on films that didn't require historical accuracy. The film was criticized at the time by the NAACP, which boycotted it, and by Hollywood liberals such as actors Vincent Price and Zero Mostel and playwright and screenwriter Ben Hecht for its glorification of a man who sought to perpetuate a racist south. The movie was a box office flop. But for the longest time, it was almost my sole source of information about Andrew Johnson and his impeachment.

As to the other film, recently, I was discussing with a friend the story of Dr. Samuel Mudd for some work he was doing. Again, I was brought up on John Ford's Prisoner of Shark Island that portrays Mudd as a simple country doctor whom Lincoln's assassin John Wilkes Booth visits for treatment of the injuries he sustained when he leapt from Lincoln's theatre box after shooting him. In the film, Mudd didn't know who Booth was, is unjustly tried and convicted for conspiracy, and is sent to a prison on the Dry Tortugas off the coast of Florida. When the prison's doctor dies during a yellow fever outbreak, Mudd helps stem the tide of the disease. He is pardoned by President Johnson and returns to his wife. Warner Baxter played Mudd and Gloria Stuart, who 62 years later dropped the necklace in the ocean at the end of the film Titanic, his wife. There were other version of the Mudd story that followed the same interpretation. Gary Cooper starred in the radio broadcast of Shark Island in 1938, and there were three television portrayals: Lew Ayres played Mudd in "The Case for Dr. Mudd" on the Westinghouse Desilu Playhouse in 1958 and in "Time of the Traitor," an episode of the series Laramie in 1962, while Dennis Weaver took the role in The Ordeal of Dr. Mudd, a 1980 made-for-tv movie

Years after first seeing Shark Island, I was reading James L. Swanson's 2006 book Manhunt: The 12-Day Chase for Lincoln's Killer. I found it a riveting tale in itself, although not too well written. (It has been made into a television mini-series.) But I was shocked to read that Mudd was a slave owner and Confederate sympathizer whose name had been circulated to those of the same mind-bent who might need assistance, like Booth. I had heard over the years of the Mudd family trying to have their ancestor's conviction overturned and how they had received the verbal support of Presidents Carter and Reagan, to no avail. But that all tied into Shark Island's story. And here was a book that stated bluntly that the story I had believed was wrong. 

I spent some time reading up on it. Historians are not in agreement about everything Swanson described about Mudd. But it is clear that Mudd  owned slaves, that Maryland's 1864 emancipation of slaves harmed his tobacco farm business and embittered him, that Booth stayed overnight at Mudd's farm and that they met in Washington, D.C. in 1864, and that Mudd didn't report treating Booth after news of Lincoln's assassination broke. At least one of the conspirators implicated Mudd. This led the prosecution and some today to argue that Mudd was, at the very least, a conspirator in Booth's plan to kidnap Lincoln before Booth changed the plan to murder and that he willingly assisted Booth in his escape, possibly before Mudd knew of the assassination. And so, this modern reading is pretty close to the prosecution's case of 1868. Others, including Mudd-related groups and his family, contend that he was innocent. At the very least, modern interpretations suggest that Shark Island's version of a country doctor taking care of a stranger is not correct. 

This is why fictionalization in fact-based films is such an important topic. A film can be the only way people learn about historical people. If the films of 70 and 80 years ago had accurately informed audiences about impeachment and Confederate sympathizers rather than simplify and falsify the facts, would our subsequent history have benefited from this better understanding? Can we still benefit today by knowing the truth about yesterday?

Copyright 2019 by John T. Aquino

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