ABOTA’s commitment to trial by jury reflects a belief that the jury
trial process is important. But how important? Does trial by jury ever,
in a single case, truly offer protection against national catastrophe?
Imagine this scene:
- The Court: United States Senate.
- Presiding Judge: Chief Justice of the United States.
- Prosecutor: Senate Majority Leader.
- Star Witness: Speaker, U.S. House of Representatives.
- Jurors: Members of the Senate, including the Prosecutor.
- The Accused: President of the United States.
- The Charge: Violation of an Act Designed to Protect Political Appointees
Favored by the Majority Party.
- The Stakes: Impeachment and Conviction; Tearing the National Fabric Asunder;
Dividing the Nation, and Rekindling Civil War.
Precisely this setting presented itself when Chief Justice Salmon Chace
convened the impeachment trial of President Andrew Johnson at 1:00 p.m.
on March 5, 1868.
Much about the proceeding must have seemed unfair to the accused. Despite
his incumbency in the Nation’s highest office, Pres. Johnson found
himself defended by civilian lawyers with little political experience.
His lawyers expected the trial would resemble other court proceedings,
and they had no expectation that basic evidence rules would be discarded
by controlling politicians.
The Articles of Impeachment accused President Johnson of a political crime
-- firing Secretary of War Stanton.
Thaddeus Stevens of Pennsylvania, the Speaker of the House, shared Stanton’s
views on post-Civil War reconstruction. These men both thought the conquered
southern states should be denied readmission to the Union as full-fledged
states, and should be treated, instead, as conquered territories. Stevens’
motivation was simple: he knew the southern states would send Democrats
to Congress and he was a Republican whose party was in the majority.
Pres. Johnson, on the other hand, could see no logic in legislating divisions
between the states the Civil War had been fought to prevent. He argued
that the War had been waged to keep the Union whole. Johnson believed
anything short of full readmission of the seceded states would perpetuate
national division the Union had longed to avoid.
Johnson infuriated Stevens and his opponents on reconstruction by campaigning
in a public train-tour for his position. Pres. Johnson was accused, by
his protractors, of being a drunk, although there is no evidence that
he had been drunk in public at any time in his life
except on the day he was inaugurated as U.S. Vice President. On that day, suffering
seriously from a cold, then Vice President Johnson took brandy as an antidote
to help him make his inaugural speech and, admittedly, over-imbibed.
Senator Ben Butler, a member of Pres. Johnson’s opposition on reconstruction
became Johnson’s prosecutor. He was also a member of the "jury"
of Senators required to decide Johnson’s fate.
The trial lasted from March 5 until May 26, 1868. There were 25 prosecution
and 16 defense witnesses. During trial, evidentiary rulings by the Nation’s
highest judge were often overruled by the Senate, voting along strictly
partisan lines. These political voters admitted hearsay, refused receipt
of admissions made by witnesses for the prosecution, etc.
Pres. Johnson did not attend any part of his trial, and he did not testify.
His lawyers called political appointees, political enemies, and friends
as character witnesses.
In the end, most votes cast by the "jurors" of the Senate were
strictly political. The President’s fate hung, ultimately, with
seven independent Senators known to historians as the "Seven Tall
Men" whose leanings on the impeachment question could not be readily
discerned. Each of these Senators suffered an enormous personal battle
with constituents, colleagues, admirers and family members who favored
impeachment. They also battled their own consciences which told them what
they knew, i.e., there was simply no evidence upon which to convict the
In the end, these seven Senators, functioned as true jurors. They had to
do what other jurors sometime believe they must do in a sensitive, emotionally-charged
case. These Senator-jurors had to decide to honor their oaths or protect
their political hides. The choice was to vote to convict, or give up their
political careers. When each of these Seven Tall Senators cast his vote,
each was painfully aware that a vote to convict would help to ensure their
political futures while a vote to acquit would most certainly end their
Thousands of telegrams, hundreds of visitors - even from places as far
removed from Washington as Kansas, Missouri, and other western states
- all brought their pressures to bear to persuade the seven Senators to
vote for impeachment. The forces favoring acquittal were less numerous,
and far less influential.
Yet, these were good men. These Senators were persons of conscience. Popular
sentiment, ultimately, did not dictate their votes.
In the final analysis, guilt or innocence on the Articles of Impeachment
was destined to be extremely close. As little as a single vote would stand
between conviction and acquittal. Ultimately, responsibility for casting
that single decisive vote on the question of presidential impeachment
and reopening America’s Civil War fell to a U.S. Senator from Kansas.
Edmund Ross, a man with virtually no political background before being
elected to the Senate by the Kansas legislature, was a slightly built,
bearded man with a mild and shrinking manner. He had been listed as "doubtful"
by the President’s head counters. Ross was expected to vote for
conviction because it was clear he would be throwing away his future to
do otherwise. Young, devoid of financial resources and a newcomer to the
national scene, Ross was destined, as he later said to "be a bigger
man dead than . . . alive".
Ross was a newspaper man from Topeka. He had everything to gain and nothing
to lose by voting to convict the President. As the days and hours closed
on the ultimate impeachment vote and Ross refused to announce his position,
telegrams poured in from Kansas. Hundreds of persons called upon him.
Promises of wealth, threats of retribution, and strong efforts at influence
from his own siblings, all pressured this young, ambitious Senator to
vote in his own political interests and ignore his conscience.
Finally, on the morning of May 26, 1868, Chief Justice Chace propounded
the question to each member of the United States Senate, one by one:
Mr. Senator ___________, how say you, is the respondent, Andrew Johnson,
President of the United States, guilty or not guilty of a high misdemeanor
as charged in this Article of Impeachment?
Fessenden, Fowler, Grimes, Henderson, Trumbull and Van Winkle: "Not
When Ross rose, there was no sound and hardly any movement. (Years later
he would reveal the thoughts coursing through his mind, his feeling that
he was "almost literally" looking down "into my open grave.
Friends, position, fortune, everything that makes life desirable to an
ambitious man, were about to be swept away by the breath of my mouth,
"Not Guilty". The total: 35 to 19. The President was acquitted . . .
The most important trial in American history was over. Subsequent history
has passed its certain judgment: The outcome was just, for Pres. Johnson
had committed no high crime or misdemeanor. Yet, the U.S. Presidency,
the national fabric, and the risk of rekindling Civil War were not saved
by the virtue of truth. The Nation did not survive because, in the end,
its majority was right. Thirty-five (35) Senators voted to convict the
President on impeachment articles.
In the end, a single juror, a slight man from Kansas - a man with a conscience
- cast his vote in accordance with the evidence, his conscience and his
duty. He refused to give in to ambition. The Presidency, and perhaps the
Nation, were saved by a conscientious juror.
The importance of trial by jury burned brightly in America on May 26, 1868.
The story of its importance, which plays out in America’s courtrooms
day after day, cannot be retold too often.