THE extraordinary success which marked Jefferson’s foreign
relations in the year 1803 was almost equally conspicuous in domestic
affairs. The Treasury was as fortunate as the Department of State.
Gallatin silenced opposition. Although the customs produced two
millions less than in 1802, yet when the Secretary in October, 1803,
announced his financial arrangements, which included the purchase-money
of fifteen million dollars for Louisiana, he was able to provide for
all his needs without imposing a new tax. The treaty required the issue
of six-per-cent bonds for eleven million two hundred and fifty thousand
dollars, redeemable after fifteen years. These were issued; and to meet
the interest and sinking fund Gallatin added from his surplus an annual
appropriation of seven hundred thousand dollars to his general fund;
so that the discharge of the whole debt would take place within the
year 1818, instead of eighteen months earlier, as had been intended.
New Orleans was expected to provide two hundred thousand dollars a
year toward the interest. Of the remaining four millions, the Treasury
already held half, and Gallatin hoped to provide the whole from future
surplus, which he actually did.
This was ideal success. On a sudden call, to pay out four million
dollars in hard money, and add seven hundred thousand dollars to annual
expenditure, without imposing a tax, and with a total revenue of eleven
millions, was a feat that warranted congratulations. Yet Gallatin’s
success was not obtained without an effort. As usual, he drew a part of
his estimated surplus from the navy. He appealed to Jefferson to reduce
the navy estimates from nine hundred thousand to six hundred thousand
dollars.[89]
“I find that the establishment now consists of the
‘Constitution,’ the ‘Philadelphia,’ each 44, and five small
vessels, all of which are now out, and intended to stay the
whole year, as the crew is enlisted for two years. In my opinion
one half of the force,--namely, one frigate and two or three
small vessels,--were amply sufficient.”
Jefferson urged the reduction,[90] and Secretary Smith consented. The
navy estimates were reduced to six hundred and fifty thousand dollars,
and on the strength of this economy Gallatin made his calculation. As
he probably foresaw, the attempt failed. Whether in any case Smith
could have effected so great a retrenchment was doubtful; but an event
occurred which made retrenchment impossible.
The war with Tripoli dragged tediously along, and seemed no nearer
its end at the close of 1803 than eighteen months before. Commodore
Morris, whom the President sent to command the Mediterranean squadron,
cruised from port to port between May, 1802, and August, 1803,
convoying merchant vessels from Gibraltar to Leghorn and Malta, or lay
in harbor and repaired his ships, but neither blockaded nor molested
Tripoli; until at length, June 21, 1803, the President called him
home and dismissed him from the service. His successor was Commodore
Preble, who Sept. 12, 1803, reached Gibraltar with the relief-squadron
which Secretary Gallatin thought unnecessarily strong. He had the
“Constitution,” of 44 guns, and the “Philadelphia,” of 38; the four
new brigs just built,--the “Argus” and the “Syren,” of 16 guns, the
“Nautilus” and the “Vixen,” of 14 guns; and the “Enterprise,” of 12.
With this force Preble set energetically to work.
Tripoli was a feeble Power, and without much effort could be watched
and blockaded; but if the other governments on the coast should make
common cause against the United States, the task of dealing with them
was not so easy. Morocco was especially dangerous, because its ports
lay on the ocean, and could not be closed even by guarding the Straits.
When Preble arrived, he found Morocco taking part with Tripoli. Captain
Bainbridge, who reached Gibraltar in the “Philadelphia” August 24,
some three weeks before Preble arrived, caught in the neighborhood
a Moorish cruiser of 22 guns with an American brig in its clutches.
Another American brig had just been seized at Mogador. Determined to
stop this peril at the outset, Preble united to his own squadron the
ships which he had come to relieve, and with this combined force,--the
“Constitution,” 44; the “New York,” 36; the “John Adams,” 28; and
the “Nautilus,” 14,--sending the “Philadelphia” to blockade Tripoli,
he crossed to Tangiers October 6, and brought the Emperor of Morocco
to reason. On both sides prizes and prisoners were restored, and the
old treaty was renewed. This affair consumed time; and when at length
Preble got the “Constitution” under way for the Tripolitan coast, he
spoke a British frigate off the Island of Sardinia, which reported that
the “Philadelphia” had been captured October 21, more than three weeks
before.
The loss greatly embarrassed Preble. The “Philadelphia” was, next to
the “Constitution,” his strongest ship. Indeed he had nothing else but
his own frigate and small brigs of two and three hundred tons; but the
accident was such as could not fail sometimes to happen, especially
to active commanders. Bainbridge, cruising off Tripoli, had chased a
Tripolitan cruiser into shoal water, and was hauling off, when the
frigate struck on a reef at the mouth of the harbor. Every effort was
made without success to float her; but at last she was surrounded by
Tripolitan gunboats, and Bainbridge struck his flag. The Tripolitans,
after a few days’ work, floated the frigate, and brought her under the
guns of the castle. The officers became prisoners of war, and the crew,
in number three hundred or more, were put to hard labor.
The affair was in no way discreditable to the squadron. Morris had been
recalled in disgrace for over-caution, and Bainbridge was required to
be active. The Tripolitans gained nothing except the prisoners; for at
Bainbridge’s suggestion Preble, some time afterward, ordered Stephen
Decatur, a young lieutenant in command of the “Enterprise,” to take a
captured Tripolitan craft re-named the “Intrepid,” and with a crew of
seventy-five men to sail from Syracuse, enter the harbor of Tripoli by
night, board the “Philadelphia,” and burn her under the castle guns.
The order was literally obeyed. Decatur ran into the harbor at ten
o’clock in the night of Feb. 16, 1804, boarded the frigate within half
gun-shot of the Pacha’s castle, drove the Tripolitan crew overboard,
set the ship on fire, remained alongside until the flames were beyond
control, and then withdrew without losing a man, while the Tripolitan
gunboats and batteries fired on him as rapidly as want of discipline
and training would allow. Gallant and successful as the affair was,
it proved only what was already well known, that the Tripolitans were
no match for men like Decatur and his companions; and it left Preble,
after losing in the “Philadelphia” nearly one third of his force, still
strong enough to do the work that needed to be done.
The frigate had been built by the citizens of Philadelphia, and given
to the government in 1799. So far as the ship was concerned, the loss
was not much regretted, for the Republicans when in opposition had
strenuously opposed the building of frigates, and still considered them
a danger rather than a defence. Although the “Philadelphia” was the
newest ship in the service, a companion to the “Constellation,” the
“Congress,” and the “Chesapeake,” she was never replaced; two 18-gun
brigs, the “Hornet” and the “Wasp,” were constructed instead of one
38-gun frigate; and these were the last sea-going vessels built under
Jefferson’s administration. The true annoyance was not that a frigate
had been lost, but that the captivity and enslavement of the crew
obliged Government to rescue them and to close the war, by a kind of
expenditure which the Republican party disliked.
Bainbridge’s report of his capture, which had happened at the end
of October, 1803, was sent to Congress March 20, 1804, in the last
week of the session. The President sent with it a brief Message
recommending Congress to increase the force and enlarge expenses
in the Mediterranean. As Gallatin never willingly allowed his own
plans for the public service to be deranged, Congress adopted a
new means for meeting the new expense. Although the Treasury held
a balance of $1,700,000, Gallatin would not trench upon this fund,
but told Randolph, who was Chairman of the Ways and Means Committee,
that the specie in the Treasury could not be safely reduced below
that amount.[91] He informed Joseph Nicholson that $150,000 was the
utmost sum he could spare. The sum wanted was $750,000 per annum. A
Bill was introduced which imposed an additional duty of 2½ per cent
on all imports that paid duty _ad valorem_. These imports had
been divided, for purposes of revenue, into three classes, taxed
respectively 12½, 15, and 20 per cent; the increase raised them to
15, 17½, and 22½ per cent. The average _ad valorem_ duty was
before about 13½; the additional tax raised it above 16 per cent; and
the Republicans preferred this method of raising money as in every
way better than the system of internal taxation. After imposing the
additional duty of 2½ per cent,--a duty intended to produce about
$750,000,--the Bill made of it a separate Treasury account, to be
called the “Mediterranean Fund,” which was to last only as long as the
Mediterranean war should last, when the 2½ per cent duty was to cease
three months after a general peace.
The Mediterranean Fund was meant as a protest against loose
expenditure,--a dike against the impending flood of extravagance. The
Mediterranean war was the first failure of President Jefferson’s theory
of foreign relations, and the Mediterranean Fund was the measure of
the error in financial form. No reproach henceforward roused more ill
temper among Republicans than the common charge that their elaborate
financial precautions and formalities were a deception, and that the
Mediterranean Fund was meant to conceal a change of principle and
a return to Federalist practices. Even in the first words of the
debate, Roger Griswold told them that their plausible special fund
was “perfectly deceptive,” and amounted to nothing. John Randolph
retaliated by declaring that the Republican government consisted of men
who never drew a cent from the people except when necessity compelled
it; and Griswold could not assert, though he might even then foresee,
that for ten years to come, Randolph would denounce the extravagance
and waste of the men whom he thus described.
The annexation of Louisiana, the constitutional amendment in regard to
the Vice-presidency, the change of financial practices foreshadowed by
the Mediterranean Fund, were signs of reaction toward nationality and
energy in government. Yet the old prejudices of the Republican party
had not yet wholly lost their force. Especially the extreme wing,
consisting of men like John Randolph and W. B. Giles, thought that a
substantial reform should be attempted. Increase of power encouraged
them to act. The party, stimulated by its splendid success and
irresistible popularity, at length, after long hesitation, prepared for
a trial of strength with the last remnant of Federalism,--the Supreme
Court of the United States.
A year of truce between Congress and the Supreme Court had followed
the repeal of the Judiciary Act. To prevent Chief-Justice Marshall and
his associates from interfering with the new arrangements, Congress
in abolishing the circuit courts in 1801 took the strong measure of
suspending for more than a year the sessions of the Supreme Court
itself. Between December, 1801, and February, 1803, the court was not
allowed to sit. Early in February, 1803, a few days before the Supreme
Court was to meet, after fourteen months of separation, President
Jefferson sent an ominous Message to the House of Representatives.
“The enclosed letter and affidavits,” he said,[92] “exhibiting
matter of complaint against John Pickering, district judge
of New Hampshire, which is not within executive cognizance,
I transmit them to the House of Representatives, to whom the
Constitution has confided a power of instituting proceedings
of redress if they shall be of opinion that the case calls for
them.”
The enclosed papers tended to show that Judge Pickering, owing to
habits of intoxication or other causes, had become a scandal to the
bench, and was unfit to perform his duties. At first sight the House
of Representatives might not understand what it had to do with such a
matter; but the President’s language admitted no doubt of his meaning.
The Constitution said that the House of Representatives “shall have
the sole power of impeachment;” and “all civil officers of the United
States shall be removed from office on impeachment for, and conviction
of, treason, bribery, or other high crimes and misdemeanors.”
Jefferson’s Message officially announced to the House the President’s
opinion that Judge Pickering’s conduct was a misdemeanor within the
reach of impeachment.
The House referred the Message to a committee of five, controlled
by Joseph Nicholson and John Randolph. A fortnight later, Nicholson
reported a resolution ordering the impeachment; and before the session
closed, the House, by a vote of forty-five to eight, adopted his
report, and sent Nicholson and Randolph to the bar of the Senate to
impeach Judge Pickering of high crimes and misdemeanors. March 3, 1803,
the last day of the session, the two members delivered their message.
Precisely as the House, by the President’s invitation, was about to
impeach Judge Pickering, the Supreme Court, through the Chief-Justice’s
mouth, delivered an opinion which could be regarded in no other light
than as a defiance. Chief-Justice Marshall’s own appointment had been
one of those made by the last President between Dec. 12, 1800, and
March 4, 1801, which Jefferson called an “outrage on decency,”[93] and
which, except as concerned life offices, he held to be “nullities.”
His doctrine that all appointments made by a retiring President were
nullities, unless made with the consent of the President elect, rested
on the argument that the retiring President was no longer selecting his
own but his successor’s agents. Perhaps it involved also the favorite
idea that the election of 1800 was something more than a change
of Presidents,--that it was a real revolution in the principle of
government. Any theory was sufficient for the Executive, but executive
theories did not necessarily bind the Judiciary. Among the nominations
which, like the appointment of Marshall, were obnoxious to Jefferson,
was that of William Marbury as justice of the peace for five years for
the District of Columbia. The nomination was sent to the Senate March
2, 1801, and was approved the next day, a few hours before Jefferson
took his oath of office. The commission, regularly made out, signed
by the President, countersigned by John Marshall the acting Secretary
of State, and duly sealed, was left with other documents on the
table in the State Department, where it came into the possession of
Attorney-General Lincoln, acting as President Jefferson’s Secretary of
State. Jefferson, having decided that late appointments were nullities,
retained Marbury’s commission. Marbury, at the December term of 1801,
moved the Supreme Court for a Rule to Secretary Madison to show cause
why a mandamus should not issue commanding him to deliver the document.
The Rule was duly served, and the case argued in December, 1801; but
the Judiciary Act having suspended for fourteen months the sessions of
the Supreme Court, the Chief-Justice did not deliver his opinion until
Feb. 24, 1803.[94]
The strongest admirers of Marshall admitted that his manner of dealing
with this case was unusual. Where a judgment was to turn on a question
of jurisdiction, the Court commonly considered that point as first and
final. In the case of Marbury the Court had no original jurisdiction,
and so decided; but instead of beginning at that point and dismissing
the motion, the Court began by discussing the merits of the case, and
ruled that when a commission had been duly signed and sealed the act
was complete, and delivery was not necessary to its validity. Marbury’s
appointment was complete; and as the law gave him the right to hold
for five years, independent of the Executive, his appointment was not
revocable: “To withhold his commission, therefore, is an act deemed by
the Court not warranted by law, but violative of a legal vested right.”
This part of the decision bore the stamp of Marshall’s character. The
first duty of law, as he understood it, was to maintain the sanctity
of pledged word. In his youth society had suffered severely from want
of will to enforce a contract. The national government, and especially
the judiciary, had been created to supply this want by compelling men
to perform their contracts. The essence of the opinion in Marbury’s
case was that the Executive should be held to the performance of a
contract, all the more because of his personal repugnance. Marshall
ruled that Marbury had to his commission a vested legal right of which
the Executive could not deprive him; and although the Court could
not intermeddle with the prerogatives of the Executive, it might and
would command a head of department to perform a duty not depending
on Executive discretion, but on particular Acts of Congress and the
general principles of law. The mandamus might issue, but not from the
Supreme Court, which had appellate jurisdiction only. In other words,
if Marbury chose to apply for the mandamus to Judge Cranch and the
District Court, he might expect the success of his application.
The decision in Marbury’s case naturally exasperated Jefferson; but the
chief-justice knew the point beyond which he could not go in asserting
the jurisdiction of his court, and was content to leave the matter as
it stood. Marbury never applied for the mandamus in the court below.
The opinion in the case of Marbury and Madison was allowed to sleep,
and its language was too guarded to furnish excuse for impeachment; but
while the President was still sore under the discourtesy of Marshall’s
law, another member of the Supreme Bench attacked him in a different
way. If one judge in the United States should have known the peril in
which the judiciary stood, it was Justice Samuel Chase of Maryland, who
had done more than all the other judges to exasperate the democratic
majority. His overbearing manners had twice driven from his court the
most eminent counsel of the circuit; he had left the bench without a
quorum in order that he might make political speeches for his party;
and his contempt for the popular will was loudly expressed. In the
cases of Fries and Callender, in 1800, he had strained the law in order
to convict for the government; and inasmuch as his energy was excess of
zeal, for conviction was certain, he had exposed himself to the charge
of over-officiousness in order to obtain the chief-justice’s chair,
which was given to Marshall. That he was not impeached after the change
of administration proved the caution of the Republican party; but by
this neglect Congress seemed to have condoned his old offences, or
at least had tacitly consented to let their punishment depend on the
judge’s future good behavior.
Unluckily Chase’s temper knew no laws of caution. He belonged to the
old class of conservatives who thought that judges, clergymen, and
all others in authority should guide and warn the people. May 2,
1803, barely two months after Marshall’s defiance of the President
in Marbury’s case and the impeachment of Pickering, Justice Chase
addressed the grand jury at Baltimore on the democratic tendencies of
their local and national government.[95]
“Where law is uncertain, partial, or arbitrary,” he said; “where
justice is not impartially administered to all; where property
is insecure, and the person is liable to insult and violence
without redress by law,--the people are _not free_,
whatever may be their form of government. To this situation I
greatly fear we are fast approaching.... The late alteration
of the Federal judiciary by the abolition of the office of the
sixteen circuit judges, and the recent change in our State
Constitution by the establishing of universal suffrage, and the
further alteration that is contemplated in our State judiciary
(if adopted) will in my judgment take away all security for
property and personal liberty. The independence of the national
judiciary is already shaken to its foundation, and the virtue of
the people alone can restore it.... Our republican Constitution
will sink into a mobocracy,--the worst of all possible
governments.... The modern doctrines by our late reformers,
that all men in a state of society are entitled to enjoy equal
liberty and equal rights, have brought this mighty mischief upon
us; and I fear that it will rapidly progress until peace and
order, freedom and property, shall be destroyed.”
At the moment of Justice Chase’s outburst to the Baltimore grand jury,
the President was at Washington deeply interested in the Louisiana
business, and unaware that on the day when Chase delivered his tirade
Livingston and Monroe in Paris were signing their names to a treaty
which put the Administration beyond danger from such attacks. When he
saw in the newspapers a report of what had been said from the bench at
Baltimore, he wrote to Joseph Nicholson, in whose hands already lay the
management of Pickering’s impeachment:[96]--
“You must have heard of the extraordinary charge of Chase
to the grand jury at Baltimore. Ought this seditious and
official attack on the principles of our Constitution and on
the proceedings of a State to go unpunished; and to whom so
pointedly as yourself will the public look for the necessary
measures? I ask these questions for your consideration; for
myself, it is better that I should not interfere.”
“Non-intervention,” according to Talleyrand, “is a word used in
politics and metaphysics, which means very nearly the same thing as
intervention.” The event proved that non-intervention was wise policy;
but Jefferson was somewhat apt to say that it was better he should not
interfere in the same breath with which he interfered. The warning that
he could not officially interfere seemed to imply that the quarrel was
personal; for in the case of Pickering he had interfered with decision.
If this was his view, the success of any attack upon Chase would be
a gain to him, and he was so ordering as to make failure a loss only
to those who undertook it. Nicholson, hot-headed though he was, did
not enter readily into this hazardous venture. He reflected upon it
all summer, and consulted the friends on whose support he depended.
Macon wrote to him a letter of unusual length,[97] suggesting grave
doubts whether a judge ought to be impeached for expressing to a grand
jury political opinions which every man was at liberty to hold and
express elsewhere, and closed by announcing the conviction that if any
attempt were made to impeach, Nicholson ought not to be the leader. In
this opinion Macon was evidently right, for Chase’s friends could not
fail to suggest that Nicholson was to be rewarded by an appointment
to Chase’s vacant seat on the Supreme Bench; but the House of
Representatives contained no other leader whose authority, abilities,
and experience warranted him in taking so prominent a part, unless it
were John Randolph.
A worse champion than Randolph for a difficult cause could not be
imagined. Between him and Jefferson little sympathy existed. Randolph
had quarrelled with the branch of his family to which Jefferson was
closely allied; and his private feelings stood in the way of personal
attachment. His intimates in Congress were not chiefly Virginians,
but men like Macon of North Carolina, Joseph Bryan of Georgia, and
Nicholson of Maryland,--independent followers of Virginia doctrine, who
owned no personal allegiance to Jefferson. That the President should
have been willing to let such a man take entire responsibility for an
impeachment was natural; but had Jefferson directed the step, he would
never have selected Randolph to manage a prosecution on which the fate
of his principles closely depended. Randolph was no lawyer; but this
defect was a trifling objection compared with his greater unfitness
in other respects. Ill-balanced, impatient of obstacles, incapable of
sustained labor or of methodical arrangement, illogical to excess, and
egotistic to the verge of madness, he was sparkling and formidable in
debate or on the hustings, where he could follow the wayward impulse of
his fancy running in the accustomed channels of his thought; but the
qualities which helped him in debate were fatal to him at the bar.
Such was the origin of a measure which did more to define the character
of the government than any other single event in Jefferson’s first
administration, except the purchase of Louisiana. Randolph threw
himself into the new undertaking; for he sincerely believed in the
justice of his cause, and was alive to the danger of leaving the
Supreme Court in the hands of Marshall and men of his stamp who were
determined to consolidate the government. Yet the chance of obtaining a
conviction, on a charge no stronger than that of the Baltimore address,
was so slight as to incline Randolph against risking it; and he decided
to insure success by putting the cases of Fries and Callender in the
foreground.
This was not easily done. Pickering’s impeachment had been brought
before the House by a Message from the President; but in Chase’s case
the President preferred not to take part. Randolph was forced to
escape the difficulty by an awkward manœuvre. During the autumn and
early winter of 1803 Congress was busy with Louisiana legislation,
and had no leisure for other matters; but soon after the new year
Randolph rose and said[98] that in the course of the last session
Mr. Smilie of Pennsylvania had made some statements in regard to
Justice Chase’s conduct which seemed to call for notice, but that
want of time had precluded action. Finding his attention thus drawn
to the matter, Randolph gravely continued, he had felt it his duty to
investigate Smilie’s charges; and having convinced himself that ground
for impeachment existed, he asked the House to appoint a committee
of inquiry. Such an introduction of a great constitutional struggle
was not imposing; but party discipline was at its highest point, and
after some vigorous Federalist resistance Randolph carried his motion
by a vote of eighty-one to forty. Three Northern democrats voted with
the Federalists; and although the defection seemed not serious so far
as concerned the scientific Dr. Samuel L. Mitchill, whose political
principles were liberal enough at all times, some importance even then
attached to the vote of John Smith of New York, who was about to enter
the Senate and to act as one of Chase’s judges.
Meanwhile Judge Pickering’s trial began. The Senate, “sitting as a
Court of Impeachments,” listened while Nicholson, Randolph, Rodney,
and six or seven other Republican members “exhibited the grand inquest
of the nation.” The character of a court was taken in all the forms of
summons. The Secretary of the Senate signed, and the Sergeant-at-Arms
served, the summons to Judge Pickering, while the witnesses were
regularly subpœnaed by the Secretary, “to appear before the Senate of
the United States in their capacity of a Court of Impeachments,” and
the subpœnas were served by the marshals of the district courts.
Judge Pickering was ordered to appear on the 2d of March, 1804; but
when the day arrived, and the Senate was assembled, with the managers
in attendance, John Pickering’s name was three times called without an
answer. Vice-President Burr then submitted to the Senate a petition
from Jacob Pickering, son of the impeached judge, praying the court to
postpone the trial that he might have time to collect evidence with
the view of showing that when the alleged crimes were committed, and
two years before as well as ever since, the judge was wholly deranged,
incapable of transacting any kind of business which required the
exercise of reason, and therefore incapable of corruption of judgment,
no subject of impeachment, and amenable to no tribunal for his actions.
With this petition a letter from Robert G. Harper was laid before the
court, requesting to be allowed to appear on the part of the petitioner
in support of the petition. Harper, having been invited to a seat
within the bar, asked whether he might be heard, not as counsel for
Judge Pickering, who being insane could give no authority for the
purpose, but as agent for the petitioner, to ask a postponement.
The question threw all parties into agitation. The managers instantly
protested that Harper in such a character could not be heard. The
senators retired for consultation, and debated all day without coming
to a decision. The impeaching party dreaded the alternative to which
the proof of insanity must force them,--of saying either that an
insane man was responsible, or that a man mentally irresponsible might
still be guilty of “high crimes and misdemeanors” for purposes of
impeachment. Senator Jackson of Georgia, who had always the merit of
speaking with candor, avowed the fear that presently Judge Chase’s
friends would come and pretend that he too was mad;[99] but he could
not, even with Breckenridge’s help, carry his point. The Northern
democrats flinched. Six of them and three Southern senators voted with
the Federalists, and admitted Harper in his volunteer character.
Harper put in his testimony, which was decisive in regard to the
insanity; but when he rose to do so, the managers retired, saying that
they considered themselves under no obligation to discuss a preliminary
question raised by an unauthorized third party. The Senate went on with
its session. The managers were obliged to maintain that insanity was no
bar to impeachment, and the Northern democrats were forced to accept
the doctrine.[100]
This view of impeachment, so far as concerned the judiciary, had strong
arguments in its favor. Although the Constitution made judges’ tenure
of office dependent on their good behavior, it provided no other
means than that of impeachment for their removal. Even in England
and in Massachusetts, judges could be removed by the joint action
of Legislature and Executive; but this was not the case under the
Constitution of the United States. If insanity or any other misfortune
was to bar impeachment, the absurdity followed that unless a judge
committed some indictable offence the people were powerless to protect
themselves. Even Federalists might reasonably assume that the people
had never placed themselves in such a situation, but that in making
their judges subject to impeachment for misdemeanors they had meant to
extend the scope of impeachment, and to include within it all cases of
misbehavior which might require a removal from office for the good of
the public service.
This ground was fairly taken by the impeachers, though not formally
expressed. When Harper had put in his evidence and retired, the
Senate sent again for the managers, who occupied one day in supplying
evidence, and then left their case without argument in the hands of
the court. The Senate found itself face to face with an issue beyond
measure delicate, which had never been discussed, but from which escape
was impossible. Acquittal of Pickering would probably be fatal to the
impeachment of Chase, and would also proclaim that the people could not
protect themselves from misbehavior in their judicial servants. On the
other hand, conviction would violate the deep principle of law and
justice that an insane man was not responsible for his acts, and not
amenable to any earthly tribunal. Virginians like Randolph and Wilson
Cary Nicholas, or John Breckenridge, were ready to make a precedent
which should fix the rule that impeachment need not imply criminality,
and might be the equivalent to removal by address. The Northern
democrats were not unwilling to accept this view; but their consciences
revolted against saying “guilty” where no guilt was implied or proved.
To escape this objection a compromise was proposed and adopted. The
Federalists would have forced senators to say in their final vote
that Judge Pickering was “guilty” or “not guilty” of high crimes and
misdemeanors. Senator Anderson of Tennessee eluded this challenge by
moving for a yea-and-nay vote on the question whether Pickering was
guilty “as charged.” The nine Federalists alone opposed his motion,
which was at length adopted by a majority of two to one. By a vote of
nineteen to seven Judge Pickering was declared “guilty as charged” in
the articles of impeachment; and by a vote of twenty to six the Senate
resolved that he ought to be removed from office.
Two of the Federalist senators refused to vote, on the ground that
the proceedings were irregular; Senator Bradley of Vermont, Senator
Armstrong of New York, and Senator Stone of North Carolina tacitly
protested by absenting themselves. In a Senate of thirty-four members
only twenty-six voted, and only nineteen voted for conviction. So
confused, contradictory, and irregular were these proceedings that
Pickering’s trial was never considered a sound precedent. That an
insane man could be guilty of crime, and could be punished on _ex
parte_ evidence, without a hearing, with not even an attorney to act
in his behalf, seemed such a perversion of justice that the precedent
fell dead on the spot. Perhaps, from the constitutional point of view,
a more fatal objection was that in doing what the world was sure to
consider an arbitrary and illegal act, the Virginians failed to put
on record the reasons which led them to think it sound in principle.
In the Louisiana purchase they had acted in a way equally arbitrary,
but they had given their reasons for thinking themselves in the right.
In Pickering’s case not a word was publicly spoken on either side;
a plainly extra-constitutional act was done without recording the
doctrine on which it rested.
The Republicans showed no hesitation. John Randolph’s orders were
obeyed without open protest. Senator Bradley of Vermont talked strongly
in private against them; Senator Armstrong of New York would not
support them; barely half the Senate voted in their favor; but Randolph
forced his party forward without stopping to see how well his steps
were taken, or how far he was likely to go. As though to intimidate the
Senate, March 6, the day after the managers were defeated on the vote
to hear Harper, Randolph reported to the House a resolution ordering
the impeachment of Justice Chase. March 12, the day when the Senate
voted Pickering guilty, the House took up Randolph’s report, and the
majority, without debate, voted by seventy-three to thirty-two that
Chase should be impeached. Not a Republican ventured to record a vote
in the negative. The next morning Randolph again appeared at the bar of
the Senate, and announced that the House of Representatives would in
due time exhibit articles of impeachment against Samuel Chase.