Described by a San Francisco newspaper as a gambler who turned to politics “to better his position,” the compact, muscular Herbert exuded menace. On this day, hunger apparently pushed him over the edge. Infuriated, Herbert launched a stream of invective at the lad who served him.
“Clear out, you Irish son-of-a-b—-,” Herbert yelled, according to the Star. Then he turned and challenged Thomas Keating, one of the waiters in the dining room. “And you, you damned Irish son-of-a-b—-, clear out too!”
Name-calling quickly gave way to violence. Fists and plates flew as Herbert’s companion struck Keating’s brother, who also worked at the hotel, with a chair. Herbert grabbed Keating by the collar, produced a Derringer and held the gun at Keating’s chest.
The lawmaker pulled the trigger. The bullet pierced Keating’s lungs, and the waiter died within minutes as Herbert and his fellow diner fled out the hotel’s 14th Street exit, the Star reported.
Political tension is particularly taut these days on Capitol Hill, but it is nothing like the volatile world of pre-Civil War Washington, where lawmakers routinely dueled and brawled. Even then, the shooting of a waiter by a member of Congress was regarded as beyond the pale. “Of course there is no excuse for the murder in the circumstances of the case,” the New York Tribune declared.
It may have been inexcusable, but it was a sign of the times. The incident occurred weeks before a more notorious confrontation in which South Carolina Rep. Preston Brooks beat Sen. Charles Sumner of Massachusetts senseless on the Senate floor after Sumner called Southerners flocking to support slaveholders in Kansas the “drunken spew and vomit of an uneasy civilization.” Anti-immigrant sentiment, manifested in a secret society whose members pledged to say they “know nothing” about its activities, was rampant.
In the wake of the shooting, the Northern press reported that Herbert was an “Alabama-born bluebood and an avid secessionist” who had been expelled from the University of Alabama after he stabbed a fellow student, according to Guy Gugliotta, a former Washington Post reporter and author of a book on pre-Civil War Washington and construction of the U.S. Capitol. That a hotheaded, highborn Southerner killed a working man confirmed Northern fears about the intemperate behavior of Southern defenders of slavery, according to Gugliotta.
Charged with the task of prosecuting Herbert was Washington District Attorney Philip Barton Key, the son of “Star-Spangled Banner” author Francis Scott Key. The elder Key was a pillar of the community, but his son was cut from a different cloth.
Key “evinced no religious inclinations whatsoever, was a friend to some of Washington’s most avid secessionists, and, instead of being one of the pillars of the community, was known as a popular society figure about whom a constant whirl of gossip flowed,” Nat Brandt wrote in “The Congressman Who Got Away With Murder.” Ironically, two years later Key himself would be killed by a congressman — Daniel Sickles of New York — after Key’s affair with the congressman’s wife was discovered.
Regarding Herbert, Key’s case seemed clear-cut. At a preliminary hearing at the jail, and later in court, witness after witness described Herbert’s tirade and attack on Keating.
Nevertheless, Key failed to get a conviction. The presiding judge endorsed jury instructions written by the defense. Incredibly, Key registered no objections, according to the Star, and the trial ended in a hung jury. In a second trial before the same judge — with a jury composed of as many as 11 anti-immigrant Know Nothings, who were likely to excuse the murder of the Irish waiter — the jury received the same directive and quickly acquitted the lawmaker, the Star said.
The indifference of the juries was shared by much of official Washington. “Violence was simply a part of the city’s daily operation and was often a by-product of morally lenient behavior, including the consumption of alcohol, gambling, womanizing and other misdeeds,” historian Rachel A. Shelden has written.
The House seemed to have been similarly nonchalant. Herbert continued to serve in Congress while charges were pending — much to the amazement, as Gugliotta notes, of Montgomery Meigs, the Army engineer assigned to supervise construction of the dome at the U.S. Capitol. “How he can sit there with the guilt of murder upon his hands, in the face of his fellow men, I do not see,” Meigs wrote in his journal on May 15.
Herbert did not stay in Washington for long. Taking no chances, he left town after his acquittal. He returned to California but did not seek reelection. In October 1856, a delegation of San Francisco residents confronted him at one of the city’s hotels and demanded he depart the city.
The San Francisco Bulletin cheered the exit of the notorious figure it dubbed the “Mariposa monte dealer.” Herbert was unrepentant — and before he left town he composed a lengthy defense of his conduct published in the New York Herald in which he claimed he was being unfairly pilloried for partisan purposes.
“All the vile passion fanaticism could incite, and all the learning and ability money could command, were arrayed against me, and when the circumstances of the affray were fully investigated before as intelligent a jury as ever sat as the arbiters of human life, I was justified in my conduct, and awarded a triumphant acquittal,” Herbert wrote. “Still, I am denounced by a portion of the press as a ‘murderer.’ ”
Herbert eventually left California for El Paso, according to his brief congressional biography. When the Civil War broke out, he enlisted in the Confederate Army — and encountered a foe better equipped to defend itself than an unarmed waiter. Herbert died July 23, 1864, of wounds sustained in April at the battle of Mansfield, La.