Jefferson's War On The Judiciary
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
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.
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 elbow-room. 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." ¹ Addison 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.
¹ 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.
Jefferson entered office with his mind made up that the Act of the 13th
of February should be repealed. ¹ 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."
¹ 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.
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
reënforced 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. ¹
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.
¹ 1 Cranch, 137. The following account of the case is drawn largely upon
my Doctrine of Judicial Review (Princeton, 1914).
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. ¹ 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.
¹ 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.
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." ¹ 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."
¹ 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.
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
Pickering, 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 rôle
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 Cæsar 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.