3: Jefferson's War On The Judiciary
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By a singular coincidence Marshall took his seat as Chief Justice
at the opening of the first term of Court in Washington, the new
capital, on Wednesday, February 4, 1801. The most beautiful of
capital cities was then little more than a swamp, athwart which
ran a streak of mire named by solemn congressional enactment
"Pennsylvania Avenue." At one end of this difficult thoroughfare
stood the President's mansion—still in the hands of the builders
but already sagging and leaking through the shrinkage of the
green timber they had used—two or three partially constructed
office-buildings, and a few private edifices and boarding houses.
Marshall never removed his residence to Washington but occupied
chambers in one or other of these buildings, in company with some
of the associate justices. This arrangement was practicable owing
to the brevity of the judicial term, which usually lasted little
more than six weeks, and was almost necessitated by the
unhealthful climate of the place. It may be conjectured that the
life of John Marshall was prolonged for some years by the Act of
1802, which abolished the August term of court, for in the late
summer and early autumn the place swarmed with mosquitoes and
reeked with malaria.
The Capitol, which stood at the other end of Pennsylvania Avenue,
was in 1801 even less near completion than the President's house;
at this time the south wing rose scarcely twenty feet above its
foundations. In the north wing, which was nearer completion, in a
basement chamber, approached by a small hall opening on the
eastern side of the Capitol and flanked by pillars carved to
represent bundles of cornstalks with ears half opened at the top,
Marshall held court for more than a third of a century and
elaborated his great principles of constitutional law. This room,
untouched by British vandalism in the invasion of 1814, was
christened by the witty malignity of John Randolph, "the cave of
Trophonius."1
It was in the Senate Chamber in this same north wing that
Marshall administered the oath of office to Jefferson just one
month after he himself had taken office. There have been in
American history few more dramatic moments, few more significant,
than this occasion when these two men confronted each other. They
detested each other with a detestation rooted in the most
essential differences of character and outlook. As good fortune
arranged it, however, each came to occupy precisely that
political station in which he could do his best work and from
which he could best correct the bias of the other. Marshall's
nationalism rescued American democracy from the vaguer horizons
to which Jefferson's cosmopolitanism beckoned, and gave to it a
secure abode with plenty of elbowroom. Jefferson's emphasis on
the right of the contemporary majority to shape its own
institutions prevented Marshall's constitutionalism from
developing a privileged aristocracy. Marshall was finely loyal to
principles accepted from others; Jefferson was speculative,
experimental; the personalities of these two men did much to
conserve essential values in the American Republic.
As Jefferson turned from his oath-taking to deliver his
inaugural, Marshall must have listened with attentive ears for
some hint of the attitude which the new Administration proposed
to take with regard to the Federal Judiciary and especially with
regard to the recent act increasing its numbers; but if so, he
got nothing for his pains. The new President seemed particularly
bent upon dispelling any idea that there was to be a political
proscription. Let us, said he, "unite with one heart and one
mind. Let us restore to social intercourse that harmony and
affection without which liberty and even life itself are but
dreary things.... Every difference of opinion is not a
difference of principle. We have called by different names
brethren of the same principle. We are all Republicans, we are
all Federalists."
Notwithstanding the reassurance of these words, the atmosphere
both of official Washington and of the country at large was
electric with dangerous currents—dangerous especially to
judges—and Jefferson was far too well known as an adept in the
manipulation of political lightning to admit of much confidence
that he would fail to turn these forces against his enemy when
the opportune moment should arrive. The national courts were
regarded with more distrust by the mass of Republicans than any
other part of the hated system created by the once dominant
Federalists. The reasons why this was so have already been
indicated, but the most potent reason in 1801, because it was
still freshest in mind, was the domineering part which the
national judges had played in the enforcement of the Sedition
Act. The terms of this illiberal measure made, and were meant to
make, criticism of the party in power dangerous. The
judges—Federalists to a man and bred, moreover, in a tradition
which ill-distinguished the office of judge from that of
prosecutor-felt little call to mitigate the lot of those who fell
within the toils of the law under this Act. A shining mark for
the Republican enemies of the Judiciary was Justice Samuel Chase
of the Supreme Court. It had fallen to Chase's lot to preside
successively at the trial of Thomas Cooper for sedition, at the
second trial of John Fries for treason, and at the trial of James
Thompson Callender at Richmond for sedition. On each of the two
latter occasions the defendant's counsel, charging "oppressive
conduct" on the part of the presiding judge, had thrown up their
briefs and rushed from the court room. In 1800 there were few
Republicans who did not regard Chase as "the bloody Jeffreys of
America."
Local conditions also frequently accentuated the prevailing
prejudice against the Judiciary. The people of Kentucky, afraid
that their badly tangled land titles were to be passed upon by
the new Federal Courts, were already insisting, when Jefferson
took office, that the Act of the 13th of February creating these
courts be repealed. In Maryland extensive and radical alterations
of the judicial system of the State were pending. In Pennsylvania
the situation was even more serious, for though the judges of the
higher courts of that commonwealth were usually men of ability,
education, and character, the inferior magistrates were
frequently the very opposite. By the state constitution judges
were removable for serious offenses by impeachment, and for
lesser reasons by the Governor upon the address of two-thirds of
both branches of the Legislature. So long, however, as the
Federalists had remained in power neither remedy had been
applied; but in 1799, when the Republicans had captured both the
governorship and the Legislature, a much needed purgation of the
lower courts had forthwith begun.
Unfortunately this is a sort of reform that grows by what it
feeds upon. Having got rid of the less fit members of the local
judiciary, the Republican leaders next turned their attention to
some of their aggressive party foes on the Superior Bench. The
most offensive of these was Alexander Addison, president of one
of the Courts of Common Pleas of the State. He had started life
as a Presbyterian preacher and had found it natural to add to his
normal judicial duties the business of inculcating "sound morals
and manners."2Addison had at once taken the Alien and Sedition
laws under his wing, though their enforcement did not fall within
his jurisdiction, and he found in the progress of the French
Revolution numerous texts for partisan harangues to county
juries. For some reason Addison's enemies decided to resort to
impeachment rather than to removal by address; and, as a result,
in January, 1803, the State Senate found him guilty of
"misdemeanor," ordered his removal from office, and disqualified
him for judicial office in Pennsylvania. Not long afterwards the
House of Representatives granted without inquiry or discussion a
petition to impeach three members of the Supreme Court of the
State for having punished one Thomas Passmore for contempt of
court without a jury trial.
Jefferson entered office with his mind made up that the Act of
the 18th of February should be repealed.3 He lacked only a theory
whereby he could reconcile this action with the Constitution, and
that was soon forthcoming. According to the author of this
theory, John Taylor of Caroline, a budding "Doctor
Irrefragabilis" of the State Rights school, the proposed repeal
raised two questions: first, whether Congress could abolish
courts created by a previous act of Congress; and second,
whether, with such courts abolished, their judges still retained
office. Addressing himself to the first question, Taylor pointed
out that the Act of the 13th of February had itself by
instituting a new system abolished the then existing inferior
courts. As to the second point, he wrote thus: "The Constitution
declares that the judge shall hold his office during good
behavior. Could it mean that he should hold office after it had
been abolished? Could it mean that his tenure should be limited
by behaving well in an office which did not exist?" A
construction based on such absurdities, said he, "overturns the
benefits of language and intellect."
In his message of December 8, 1801, Jefferson gave the signal for
the repeal of the obnoxious measure, and a month later
Breckinridge of Kentucky introduced the necessary resolution in
the Senate. In the prolonged debate which followed, the
Republicans in both Senate and House rang the changes on Taylor's
argument. The Federalists made a twofold answer. Some, accepting
the Republican premise that the fate of the judge was necessarily
involved with that of the court, denied in toto the validity of
repeal. Gouverneur Morris, for instance, said: "You shall not
take the man from the office but you may take the office from the
man; you may not drown him, but you may sink his boat under
him.... Is this not absurd?" Other Federalists, however, were
ready to admit that courts of statutory origin could be abolished
by statute but added that the operation of Congress's power in
this connection was limited by the plain requirement of the
Constitution that judges of the United States should hold office
during good behavior. Hence, though a valid repeal of the Act in
question would take from the judges the powers which they derived
from its provisions, the repeal would still leave them judges of
the United States until they died, resigned, or were legally
removed in consequence of impeachment. The Federalist orators in
general contended that the spirit of the Constitution confirmed
its letter, and that its intention was clear that the national
judges should pass finally upon the constitutionality of acts of
Congress and should therefore be as secure as possible from
legislative molestation.
The repeal of this Act was voted by a strict party majority and
was reinforced by a provision postponing the next session of the
Supreme Court until the following February. The Republican
leaders evidently hoped that by that time all disposition to test
the validity of the Repealing Act in the Court would have passed.
But by this very precaution they implied a recognition of the
doctrine of judicial review and the whole trend of the debate
abundantly confirmed this implication. Breckinridge, Randolph,
and Giles, it is true, scouted the claim made for the courts
as "unheard-of doctrine," and as "mockery of the high powers of
legislation"; but the rank and file of their followers, with the
excesses of the French Revolution a recent memory and a
"consolidated government" a recent fear, were not to be seduced
from what they clearly regarded as established doctrine.
Moreover, when it came to legislation concerning the Supreme
Court, the majority of the Republicans again displayed genuine
moderation, for, thrusting aside an obvious temptation to swamp
that tribunal with additional judges of their own creed, they
merely restored it to its original size under the Act of 1789.
Nevertheless the most significant aspect in the repeal of the Act
of the 13th of February was the fact itself. The Republicans had
not shown a more flagrant partisanism in effecting this repeal
than had the Federalists in originally enacting the measure which
was now at an end. Though the Federalists had sinned first, the
fact nevertheless remained that in realizing their purpose the
Republican majority had established a precedent which threatened
to make of the lower Federal Judiciary the merest cat's-paw of
party convenience. The attitude of the Republican leaders was
even more menacing, for it touched the security of the Supreme
Court itself in the enjoyment of its highest prerogative and so
imperiled the unity of the nation. Beyond any doubt the moment
was now at hand when the Court must prove to its supporters that
it was still worth defending and to all that the Constitution had
an authorized final interpreter. Marshall's first constitutional
case was that of Marbury vs. Madison.4 The facts of this famous
litigation are simple. On March 2, 1801, William Marbury had been
nominated by President Adams to the office of Justice of the
Peace in the District of Columbia for five years; his nomination
had been ratified by the Senate; his commission had been signed
and sealed; but it had not yet been delivered when Jefferson took
office. The new President ordered Madison, his Secretary of
State, not to deliver the commission. Marbury then applied to the
Supreme Court for a writ of mandamus to the Secretary of State
under the supposed authorization of the thirteenth section of the
Act of 1789, which empowered the Court to issue the writ "in
cases warranted by the principles and usages of law to...persons
holding office under the authority of the United States." The
Court at first took jurisdiction of the case and issued a rule
to the Secretary of State ordering him to show cause, but it
ultimately dismissed the suit for want of jurisdiction on the
ground that the thirteenth section was unconstitutional.
Such are the lawyer's facts of the case; it is the historian's
facts about it which are today the interesting and instructive
ones. Marshall, reversing the usual order of procedure, left the
question of jurisdiction till the very last, and so created for
himself an opportunity to lecture the President on his duty to
obey the law and to deliver the commission. Marshall based his
homily on the questionable assumption that the President had not
the power to remove Marbury from office, for if he had this power
the nondelivery of the document was of course immaterial.
Marshall's position was equally questionable when he contended
that the thirteenth section violated that clause of Article III
of the Constitution which gives the Supreme Court original
jurisdiction "in all cases affecting ambassadors, other public
ministers, and consuls, and those in which a State shall be
party." These words, urged the Chief Justice, must be given an
exclusive sense "or they have no operation at all." This position
is quite untenable, for even when given only their affirmative
value these words still place the cases enumerated beyond the
reach of Congress, and this may have been their only purpose.
However, granting the Chief Justice his view of Article III,
still we are not forced to challenge the validity of what
Congress had done. For the view taken a little later by the Court
was that it was not the intention of Congress by this language to
confer any jurisdiction at all, but only to give the right to
issue the writ where the jurisdiction already existed. What the
Court should have done, allowing its view of Article III to have
been correct, was to dismiss the case as not falling within the
contemplation of section thirteen, and not on the ground of the
unconstitutionality of that section.
Marshall's opinion in Marbury vs. Madison was a political coup of
the first magnitude, and by it he achieved half a dozen objects,
some of the greatest importance. In the first place, while
avoiding a direct collision with the executive power, he
stigmatized his enemy Jefferson as a violator of the laws which
as President he was sworn to support. Again, he evaded the
perilous responsibility of passing upon the validity of the
recent Repeal Act in quo warranto proceedings, such as were then
being broached.5 For if the Supreme Court could not issue the
writ of mandamus in suits begun in it by individuals, neither
could it issue the writ of quo warranto in such suits. Yet again
Marshall scored in exhibiting the Court in the edifying and
reassuring light of declining, even from the hands of Congress,
jurisdiction to which it was not entitled by the Constitution, an
attitude of self-restraint which emphasized tremendously the
Court's claim to the function of judicial review, now first
definitely registered in deliberate judicial decision.
At this point in Marshall's handling of the case the consummate
debater came to the assistance of the political strategist. Every
one of his arguments in this opinion in support of judicial
review will be found anticipated in the debate on the Repeal Act.
What Marshall did was to gather these arguments together, winnow
them of their trivialities, inconsistencies, and irrelevancies,
and compress the residuum into a compact presentation of the case
which marches to its conclusion with all the precision of a
demonstration from Euclid.
The salient passages of this part of his opinion are the
following:
"[In the United States] the powers of the legislature are defined
and limited; and that those limits may not be mistaken, or
forgotten, the Constitution is written. To what purpose are
powers limited, and to what purpose is that limitation committed
in writing if these limits may, at any time, be passed by those
intended to be restrained? The distinction between a government
with limited and unlimited powers is abolished, if those limits
do not confine the persons on which they are imposed, and if acts
prohibited and acts allowed are of equal obligation. It is a
proposition too plain to be contested: that the Constitution
controls any legislative act repugnant to it; or, that the
legislature may alter the Constitution by an ordinary act.
"[If, then,] an act of the legislature, repugnant to the
Constitution, is void, does it, notwithstanding its invalidity,
bind the courts, and oblige them to give it effect? Or, in other
words, though it be not law, does it constitute a rule as
operative as if it was a law? This would be to overthrow in fact
what was established in theory; and would seem, at first view, an
absurdity too gross to be insisted on. It shall, however, receive
a more attentive consideration.
"It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that
rule. If two laws conflict with each other, the courts must
decide on the operation of each. So if a law be in opposition to
the Constitution; if both the law and the Constitution apply to a
particular case, so that the court must either decide that case
conformably to the law, disregarding the Constitution, or
conformably to the Constitution, disregarding the law, the court
must determine which of these conflicting rules governs the case.
This is of the very essence of judicial duty.
"[However, there are those who maintain] that courts must close
their eyes on the Constitution, and see only the law.... This
doctrine would subvert the very foundation of all written
constitutions. It would declare that an act which, according to
the principles and theory of our government, is entirely void, is
yet, in practice, completely obligatory. It would declare that if
the legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual.
"[Moreover,] the peculiar expressions of the Constitution of the
United States furnish additional arguments in favor of its
rejection. The judicial power of the United States is extended to
all cases arising under the Constitution. Could it be the
intention of those who gave this power, to say that in using it
the Constitution should not be looked into? That a case arising
under the Constitution should be decided without examining the
instrument under which it arises? This is too extravagant to be
maintained.
"In some cases, then, the Constitution must be looked into by the
judges. And if they can open it at all, what part of it are they
forbidden to read or to obey? There are many other parts of the
Constitution which serve to illustrate this subject.... 'No
person,' says the Constitution, 'shall be convicted of treason
unless on the testimony of two witnesses to the same overt act,
or on confession in open court.' Here the language of the
Constitution is addressed especially to the courts. It
prescribes, directly for them, a rule of evidence not to be
departed from. If the legislature should change that rule, and
declare one witness, or a confession out of court, sufficient for
conviction, must the constitutional principle yield to the
legislative act?...
"It is also not entirely unworthy of observation, that in
declaring what shall be the supreme law of the land, the
Constitution itself is first mentioned; and not the laws of the
United States generally, but those only which shall be made in
pursuance of the Constitution, have that rank.
"Thus, the particular phraseology of the Constitution of the
United States confirms and strengthens the principle, supposed to
be essential to all written constitutions, that a law repugnant
to the Constitution is void; and that courts, as well as other
departments are bound by that instrument."
There is not a false step in Marshall's argument. It is, for
instance, not contended that the language of the Constitution
establishes judicial review but only that it "confirms and
strengthens the principle." Granting the finality of judicial
decisions and that they may not be validly disturbed by
legislative enactment, the argument is logically conclusive,
whatever practical difficulties it may ignore.
Turning back to the case itself, we ought finally to note how
Marshall utilized this opportunity to make manifest the newly
found solidarity of the Court. For the first time in its history
the Court was one voice, speaking through its Chief Justice the
ineluctable decrees of the law. Ordinarily even Marshall would
not have found this achievement an easy task, for there were
difficult personalities among his associates. He had in Adams's
Cabinet demonstrated his faculty "of putting his ideas into the
minds of others, unconsciously to them," and of this power he now
made use, as well as of the advantage to be obtained from the
impending common danger.
The case of Marbury vs. Madison was decided on February 24, 1803,
and therefore fell between two other events which were
immediately of almost as great importance in the struggle now
waxing over the judiciary. The first of these was the impeachment
of Judge Pickering of the New Hampshire District Court, which was
suggested by the President on the 3d of February and voted by the
House on the 18th of February; the other was an address which
Justice Chase delivered on the 2d of May to a Baltimore grand
jury, assailing the repeal of the Judiciary Act and universal
suffrage and predicting the deterioration of "our republican
Constitution...into a mobocracy, the worst of all possible
governments."6 Considering the fact that the President was still
smarting from the Chief Justice's lash and also that Chase
himself was more heartily detested by the Republicans than any
other member of the Supreme Bench, nothing could have been more
untimely than this fresh judicial excursion into the field of
"manners and morals," and partisan malice was naturally alert to
interpret it as something even more offensive. The report soon
came from Baltimore that Chase had deliberately assailed the
Administration as "weak, pusillanimous, relaxed," and governed by
the sole desire of continuing "in unfairly acquired power." But
even before this intelligence arrived, Jefferson had decided that
the opportunity afforded by Chase's outburst was too good a one
to be neglected. Writing on the 13th of May to Nicholson of
Maryland, who already had Pickering's impeachment in charge, the
President inquired: "Ought this seditious and official attack on
the principles of our Constitution and the proceedings of a State
go unpunished?" But he straightway added: "The question is for
your consideration; for myself it is better I should not
interfere."
Pickering's trial began on March 2, 1804, and had a bearing on
Chase's fate which at once became clear. The evidence against the
New Hampshire judge showed intoxication and profanity on the
bench and entire unfitness for office, but further evidence
introduced in his behalf proved the defendant's insanity; and so
the question at once arose whether an insane man can be guilty of
"high crimes and misdemeanors?" Greatly troubled by this new
aspect of the case, the Senate none the less voted Pickering
guilty "as charged," by the required two-thirds majority, though
eight members refused to vote at all. But the exponents of
"judge-breaking" saw only the action of the Senate and were blind
to its hesitation. On the same day on which the Senate gave its
verdict on Dickering, the House by a strictly partisan vote
decreed Chase's impeachment.
The charges against Chase were finally elaborated in eight
articles. The substance of the first six was that he had been
guilty of "oppressive conduct" at the trials of John Fries and
James Thompson Callender. The seventh charged him with having
attempted at some time in 1800 to dragoon a grand jury at
Newcastle, Delaware, into bringing forward an accusation of
sedition against a local paper. These seven articles related
therefore to transactions already four or five years old. The
eighth article alone was based on the address at Baltimore, which
it characterized as "an intemperate and inflammatory political
harangue," delivered "with intent to excite the fears and
resentment...of the good people of Maryland against their
State Government and Constitution, ...and against the
Government of the United States."
But the charges framed against Chase revealed only imperfectly
the animus which was now coming more and more to control the
impeachers. Fortunately, however, there was one man among the
President's advisers who was ready to carry the whole
antijudicial program as far as possible. This uncompromising
opponent was William Branch Giles, Senator from Virginia, whose
views on the subject of impeachment were taken down by John
Quincy Adams just as Chase's trial was about to open. Giles,
according to this record, "treated with the utmost contempt the
idea of an independent judiciary—said there was not a word about
their independence in the Constitution.... The power of
impeachment was given without limitation to the House of
Representatives; the power of trying impeachment was given
equally without limitation to the Senate; and if the Judges of
the Supreme Court should dare, as they had done, to declare an
act of Congress unconstitutional, or to send a mandamus to the
Secretary of State, as they had done, it was the unreserved right
of the House of Representatives to impeach them, and that of the
Senate to remove them, for giving such opinions, however, honest
or sincere they may have been in entertaining them." For
"impeachment was not a criminal prosecution, it was no
prosecution at all." It only signified that the impeached officer
held dangerous opinions and that his office ought to be in better
hands. "I perceive," adds Adams, on his own account, "that the
impeachment system is to be pursued, and the whole bench of the
Supreme Court to be swept away, because their offices are wanted.
And in the present state of things I am convinced it is as easy
for Mr. John Randolph and Mr. Giles to do this as to say it."
The trial formally opened on January 2, 1805, though the taking
of testimony did not begin until the 9th of February. A
contemporary description of the Senate chamber shows that the
apostles of Republican simplicity, with the pomp of the Warren
Hastings trial still fresh in mind, were not at all averse to
making the scene as impressive as possible by the use of several
different colors of cloth: "On the right and left of the
President of the Senate, and in a right line with his chair,
there are two rows of benches with desks in front, and the whole
front and seats covered with crimson cloth.... A temporary
semi-circular gallery, which consists of three ranges of benches,
is elevated on pillars and the whole front and seats thereof
covered with green cloth.... In this gallery ladies are
accommodated.... On the right and left hand of the President
...are two boxes of two rows of seats...that facing the
President's right is occupied by the managers...that on the
other side of the bar for the accused and his counsel...these
boxes are covered with blue cloth." To preside over this scene of
somewhat dubious splendor came Aaron Burr, Vice-President of the
United States, straight from the dueling ground at Weehawken.
The occasion brought forward one of the most extraordinary men of
the day, Luther Martin, Chase's friend and the leader of his
counsel. Born at New Brunswick, New Jersey, in 1744, Martin
graduated from Princeton in 1766, the first of a class of
thirty-five, among whom was Oliver Ellsworth. Five years later he
began to practice law on the Eastern Shore of Maryland and in the
adjoining counties of Virginia, where he won an immediate
success, especially in criminal cases. At a single term of court,
out of thirty defendants he procured the acquittal of
twenty-nine, while the thirtieth, indicted for murder, was
convicted of manslaughter. In 1805 Martin was the acknowledged
head of the American Bar, but at the same time he was undoubtedly
a drunkard and a spendthrift. With an income of $10,000 a year,
he was always in need. His mediocre stature, thinning locks, and
undistinguished features created an impression which was
confirmed by his slovenly attire and ungrammatical speech, which
seemed "shackled by a preternatural secretion of saliva." Here,
indeed, for ugliness and caustic tongue was "the Thersites of the
law." Yet once he was roused to action, his great resources made
themselves apparent: a memory amounting to genius, a boyish
delight in the rough-and-tumble of combat, a wealth of passion,
kept in perfect curb till the enemy was already in rout before
solid argument and then let loose with destroying effect. This
child of nature was governed in his practice of the law less by
retainers than by his personal loves and hatreds. Samuel Chase he
loved and Thomas Jefferson he hated, and though his acquaintance
with criminals had furnished him with a vituperative vocabulary
of some amplitude, he considered no other damnation quite so
scathing as to call a man "as great a scoundrel as Tom
Jefferson."
The impeachers had no one whom they could pit against this
"unprincipled and impudent Federalist bulldog," as Jefferson
called him; and in other ways, too, from the first their lot was
not easy. For one thing, they could not agree among themselves as
to the proper scope of impeachment under the Constitution.
Randolph, the leader of the House managers, and Campbell adhered
in essence to Giles's theory. But Rodney and Nicholson, both much
abler lawyers, openly disavowed such latitudinarian doctrine. In
a general way, their view of the matter may be stated thus:
Because judges of the United States are guaranteed continuance in
office only during "good behavior," and because impeachment is
the only method of removal recognized by the Constitution, the
"high crimes and misdemeanors" for which impeachment is the
constitutional resource must include all cases of willful
misconduct in office, whether indictable or not. This seems sound
theory and appears today to be established theory. But sound or
not, the managers of the Republicans were not a unit in urging
it, while their opponents put forward with confidence and
unanimity the theory that "high crimes and misdemeanors" were
always indictable offenses.
More calamitous still for the accusers of Chase was the way in
which, when the evidence began to come in, the case against him
started crumpling at the corners. Lewis, who had been Fries's
attorney and whose testimony they had chiefly relied upon to
prove the judge's unfairness on that occasion, had not only
acknowledged that his memory was "not very tenacious" after so
great a lapse of time but had further admitted that he had really
dropped the case because he thought it "more likely that the
President would pardon him [Fries] after having been convicted
without having counsel than if he had." Similarly Hay, whose
repeated efforts to bring the question of the constitutionality
of the Sedition Act before the jury had caused the rupture
between court and counsel in Callender's case, owned that he had
entertained "but little hopes of doing Callender any good" but
had "wished to address the public on the constitutionality of the
law." Sensations multiplied on every side. A man named Heath
testified that Chase had told the marshal to strike all Democrats
from the panel which was to try Callender; whereupon a second
witness called to confirm this testimony stated facts which
showed the whole story to be a deliberate fabrication. The story
that Chase had attacked the Administration at Baltimore was also
substantially disproved by the managers' own witnesses. But the
climax of absurdity was reached in the fifth and sixth articles
of impeachment, which were based on the assumption that an act of
Congress had required the procedure in Callender's case to be in
accordance with the law of Virginia. In reply to this argument
Chase's attorneys quickly pointed out that the statute relied
upon applied only to actions between citizens of different
States!
The final arguments began on the 20th of February. The first
speech in behalf of Chase was delivered by Joseph Hopkinson, a
young Philadelphia attorney, whose effort stirred the admiration
of Federalists and Republicans alike. He dwelt upon "the infinite
importance" of the implications of this case for the future of
the Republic, contrasted the frivolity of the charges brought
against Chase with the magnitude of the crimes of which Warren
Hastings had been accused, and pointed out that, whereas in
England only two judges had been impeached in half a century, in
America, "boasting of its superior purity and virtue," seven
judges had been prosecuted within two years. More loosely
wrought, but not less effective was Martin's address, the superb
climax of a remarkable forensic career! The accusation against
Chase he reduced to a charge of indecorum, and he was ready to
admit that the manner of his friend "bore a stronger resemblance
to that of Lord Thurlow than of Lord Chesterfield," but, said he,
our judges ought not to be "like the gods of Epicurus lolling
upon their beds of down, equally careless whether the laws of
their country are obeyed or violated, instead of actively
discharging their duties."
The closing argument, which fell to the managers, was assigned to
Randolph. It was an unmitigated disaster for the cause in behalf
of which it was pronounced. "I feel perfectly inadequate to the
task of closing this important debate on account of a severe
indisposition which I labor under," were Randolph's opening
words, but even this prefatory apology gave little warning of the
distressing exhibition of incompetence which was to follow. "On
the reopening of the court," records John Quincy Adams in his
"Memoirs," "he [Randolph] began a speech of about two hours and a
half, with as little relation to the subject-matter as
possible...without order, connection, or argument; consisting
altogether of the most hackneyed commonplaces of popular
declamation, mingled up with panegyrics and invectives upon
persons, with a few well-expressed ideas, a few striking figures,
much distortion of face and contortion of body, tears, groans and
sobs, with occasional pauses for recollection, and continual
complaints of having lost his notes." So ended the ambition of
John Randolph of Roanoke to prove himself another Burke!
But while their frontal assault on the reason of the court was
thus breaking down, the impeachers, led by the President, were
attempting a flank movement on its virtue. They especially
distrusted the "steadiness" of certain New England and New York
Senators and hoped to reach the hearts of these gentlemen through
Aaron Burr, the Vice-President. Burr had heretofore found himself
vested with the role of Lucifer in the Republican Paradise. Now
he found himself suddenly basking in a perpetual sunburst of
smiles both from the great central luminary, Jefferson, and his
paler satellites, Madison and Gallatin. Invitations to the
President's dinners were soon followed by more substantial
bribes. Burr's step-son became judge of the Superior Court at New
Orleans; his brother-in-law, secretary to the Louisiana
Territory; his intimate friend Wilkinson, its military
commandant. Then Giles, whose view of impeachment left him
utterly shameless in the matter, drew up and circulated in the
Senate itself a petition to the Governor of New Jersey asking him
to quash the indictment for murder which the Bergen County grand
jury had found against Burr as a result of the duel with
Hamilton. At the same time, an act was passed giving the retiring
Vice-President the franking privilege for life. In the debate
Senator Wright of Maryland declared that dueling was justified by
the example of David and Goliath and that the bill was opposed
"only because our David had slain the Goliath of Federalism."
Whether Burr made any attempt to render the expected quid pro quo
for these favors does not appear, but at least if he did, his
efforts were fruitless. The vote on the impeachment of Chase was
taken on the 1st of March, and the impeachers were crushingly
defeated. On the first article they could muster only sixteen
votes out of thirty-four; on the second, only ten; on the fifth,
none; on the sixth, four. Even on the last article, where they
made their best showing, they were still four votes short of the
required constitutional majority. When the result of the last
ballot was announced, Randolph rushed from the Senate chamber to
the House to introduce a resolution proposing an amendment to the
Constitution, requiring that judges of the United States "shall
be removed by the President on joint address of both Houses of
Congress." At the same time Nicholson moved an amendment
providing legislative recall for Senators. Thus exasperation was
vented and no harm done.
Meanwhile word had come from Philadelphia that the impeachment of
the State Supreme Court judges had also failed. Here, even more
impressively than in the case of Chase, had been illustrated that
solidarity of Bench and Bar which has ever since been such an
influential factor in American government. The Pennsylvania
judge-breakers, failing to induce a single reputable member of
the Philadelphia bar to aid them, had been obliged to go to
Delaware, whence they procured Caesar A. Rodney, one of the House
managers against Chase. The two impeachments were thus closely
connected and their results were similar. In the first place, it
was determined that impeachment was likely to be, in the petulant
language of Jefferson, "a farce" not soon to be used again for
partisan purposes. In the second place, it was probable that
henceforth, in the Commonwealths as well as in the National
Government, political power would be exercised subject to
constitutional restraints applied judicially. In the third place,
however, the judges would henceforth have to be content with the
possession of this magnificent prerogative and dispense with all
judicial homilies on "manners and morals." It was a fair
compromise and has on the whole proved a beneficial one.
__________
1 It should, however, be noted in the interest of accuracy, that
the Court does not seem to have occupied its basement chamber
during the years 1814 to 1818, while the Capitol was under
repair.
2 President Dickinson of Pennsylvania wrote the Chief Justice and
judges of the Supreme Court of the Commonwealth, on October 8,
1785, that they ought not to content themselves merely with
enforcing the law, but should also endeavor to "inculcate sound
morals and manners." Pennsylvania Archives, vol. X, pp. 623-24.
3 In this connection Mr. Beveridge draws my attention to
Jefferson's letter to A. Stuart of April 5,1801. See the
Complete Works of Jefferson (Washington, 1857), vol. IV, p.
393.
4 1 Cranch, 137. The following account of the case is drawn
largely upon my Doctrine of Judicial Review (Princeton, 1914).
5 See Benton's Abridgment of the Debates of Congress, vol. II,
pp. 665-68. Marshall expressed the opinion in private that the
repealing act was "operative in depriving the judges of all power
derived from the act repealed" but not their office, "which is a
mere capacity, without new appointment, to receive and exercise
any new judicial power which the legislature may confer." Quoted
by W. S. Carpenter in American Political Science Review, vol.
IX, p. 528.
6 The account here given of Chase's trial is based on Charles
Evans's shorthand Report (Baltimore, 1805), supplemented by
J.Q. Adams's Memoirs.
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