CHAPTER X.

THE schisms which characterized the last year of President

Jefferson’s first term increased the difficulty of convicting Justice

Chase. Burr was still Vice-President, and was sure not only to preside

at the trial, but also, unless conciliated, to encourage rebellion

against the Virginians. He had warm friends even in the Senate; and

he was observed to cultivate close social relations with John Smith,

the senator from Ohio, whose vote was likely to be necessary for

conviction. Although the two senators from New York were no friends

of Burr, one of them, Dr. Samuel L. Mitchill, was known to oppose

impeachment; and not only he, but also his colleague, another John

Smith, when members of the House, voted against Randolph’s motion for a

committee of inquiry. Senator Bradley of Vermont privately talked with

earnestness against the Pickering impeachment, and never favored that

of Chase. His colleague, Israel Smith, shared his doubts. Twenty-three

votes were required to convict, and the Republicans had but twenty-five

senators against nine Federalists. A defection of three Republican

senators would be fatal; but the votes of at least five were in doubt.

Randolph’s attack on the Yazoo Republicans and on the friends of

Madison took from them all desire to strengthen his influence; while,

as though to complicate confusion, his assault on his own party was

cheered by Duane and the “Aurora,” until the Pennsylvania schism

seemed about to join with a Virginia schism for the overthrow of the

judiciary in the first place, and of Madison and Gallatin afterward.

A collapse of the Republican party was to be feared. In the success

of impeachment, the interests of Duane and Randolph were closely

connected, and Duane controlled Pennsylvania as Randolph ruled

Virginia. Everything tended to show that Chase’s conviction would add

to the power already in the hands of these two men; and hands less

fitted to guide a government or less trusted by moderate Republicans

could hardly be found in either party.

Duane’s support of Randolph was the warmer because his own attack on

the judiciary failed. The Pennsylvania judges were brought to trial

in January, 1805. The managers for the Legislature, knowing no law

themselves and unable to persuade any competent Pennsylvania lawyer to

act as counsel, sent for Cæsar A. Rodney from Delaware to conduct the

case. So important did Randolph and Nicholson at Washington think the

success of the Pennsylvania impeachment, that at the end of December,

1804, they allowed Rodney to drop his work as member of Congress and

manager of Chase’s trial, in order to hurry to Lancaster and do battle

with Dallas, Jefferson’s district attorney, who was defending the

judges. After a long struggle, Jan. 28, 1805, the Senate at Lancaster

came to a vote, and Rodney was beaten. Thirteen senators declared the

judges guilty,--three less than the required two thirds.

This defeat of the impeachers occurred the day before Randolph

attacked Granger and the Yazoo claims in Congress. During the week

that preceded Chase’s trial, Randolph’s bad management or ill-luck

seemed accumulating disasters on his head. He roused needless hatred

against himself in Congress; his alliance with Duane was unsuccessful;

he exhausted his strength in fighting the Yazoo Bill, and was in no

condition of mind or body to meet the counsel of Judge Chase.

Neither the Administration nor his Virginia friends failed to support

Randolph. They made efforts to conciliate Burr, whose opposition to the

impeachment was most feared. Jefferson appointed J. B. Prevost of New

York, Burr’s stepson, a judge of the Superior Court at New Orleans;

James Brown, who married Mrs. Burr’s sister, was made secretary to the

Louisiana Territory and sent to govern St. Louis, solely on Burr’s

recommendation; James Wilkinson, one of Burr’s most intimate friends

and general-in-chief of the army, was made governor of the Louisiana

Territory,--an appointment directly opposed to Jefferson’s theories

about the union of civil and military authority.[137] Besides these

conciliatory compliments the President repeatedly invited Burr to

dinner, and treated him with more attention than ever before;[138] both

Madison and Gallatin kept up friendly relations with him; while Senator

Giles of Virginia drew an Address to Governor Bloomfield of New Jersey,

and caused it to be signed by all the senators who could be induced to

let their names be used, requesting that a _nolle prosequi_ should

be entered on the indictment against Burr found by the grand jury of

Bergen county.

The Virginians closed their quarrels for the moment in order to support

the impeachment. William B. Giles, who came to the Senate in place of

Wilson Cary Nicholas, acted as Randolph’s representative in shaping

the Senate’s rules.[139] He canvassed its members, and dealt with

those who doubted, laboring earnestly and openly to bring senators

to the Virginia standpoint, as fixed by him in a speech intended to

serve as guide in framing rules for the proceedings about to begin.

This speech, made Dec. 20, 1804,[140] maintained that the Constitution

put no limit on impeachment, but said only that the Senate should

try _all_ impeachments; and therefore, while any civil officer

convicted of treason, bribery, or other high crimes and misdemeanors

should be removed from office, in all other cases not enumerated the

Senate might at its discretion remove, disqualify, or suspend the

officer. Thus Judge Pickering had been removed, said Giles, though

undoubtedly insane and incapable of committing any crime or of making

his defence. “So the assumption of power on the part of the Supreme

Court in issuing their process to the office of the Secretary of

State, directing the Executive how a law of the United States should

be executed, and the right which the courts have assumed to themselves

of reviewing and passing upon the Acts of the Legislature in other

cases,” were matter of impeachment. In arguing this thesis Giles was

obliged to take the ground that the Senate was not a court, and ought

to discard all analogy with a court of justice;[141] impeachment need

imply no criminality or corruption, and removal was nothing more than a

notice to the impeached officer that he held opinions dangerous to the

State, and that his office must be put in better hands. He induced the

Senate to strike out the word “court” where it occurred in the proposed

rules;[142] and at length went so far as to deny that the secretary of

the Senate could administer the oath to witnesses, or that the Senate

had power to authorize the secretary to administer such an oath, but

must send for a magistrate competent for the purpose. Unfortunately

for him, the impeachment of Judge Pickering was a precedent directly

opposed to this doctrine. He was compelled to submit while the Senate

unwillingly took the forms of a court.

Giles’s view of impeachment, which was the same with that of Randolph,

had the advantage of being clear and consistent. The opposite extreme,

afterward pressed by Luther Martin and his associate counsel for the

defence, restricted impeachment to misdemeanors indictable at law,--a

conclusion not to be resisted if the words of the Constitution were to

be understood in a legal sense. Such a rule would have made impeachment

worthless for many cases where it was likely to be most needed; for

comparatively few violations of official duty, however fatal to the

State, could be brought within this definition. Giles might have

quoted Madison in support of the broader view; and if Madison did not

understand the Constitution, any other Virginian might be excused for

error. So far back as the year 1789, when Congress began to discuss

the President’s powers, Madison said: “I contend that the wanton

removal of meritorious officers would subject him to impeachment and

removal from his own high trust.” Such a misdemeanor was certainly not

indictable, and could not technically be brought within the words of

the Constitution; it was impeachable only on Giles’s theory.

The Senate became confused between these two views, and never knew on

what theory it acted. Giles failed to take from its proceedings the

character of a court of justice; but though calling itself a court

of justice, it would not follow strict rules of law. The result was

a nondescript court, neither legal nor political, making law and

voting misdemeanors for itself as it went, and stumbling from one

inconsistency to another.

The managers added to the confusion. They put forward no steady theory

of their own as to the nature of impeachment; possibly differing in

opinion, they intentionally allotted different lines of argument to

each. In opening the case, Feb. 20, 1805, one of the managers, George

W. Campbell of Tennessee, took the ground that “misdemeanor” in the

Constitution need imply no criminality. “Impeachment,” said he,

“according to the meaning of the Constitution, may fairly be considered

a kind of inquest into the conduct of an officer merely as it regards

his office.... It is more in the nature of a civil investigation

than of a criminal prosecution.” Such seemed to be the theory of the

managers and of the House; for although the articles of impeachment

reported by Randolph in March, 1804, had in each case alleged acts

which were inspired by an evil intent to oppress the victim or to

excite odium against the Government, and were at least misdemeanors in

the sense of misbehavior, Randolph at the last moment slipped into the

indictment two new articles, one of which alleged no evil intent at

all, while both alleged, at worst, errors in law such as every judge

in the United States had committed. Article V. charged that Chase had

issued a _capias_ against Callender, when the law of Virginia

required a summons to appear at the next court. Article VI. charged

that he had, “with intent to oppress,” held Callender for trial at

once, contrary to the law of Virginia. Every judge on the Supreme

Bench had ruled that United States courts were not bound to follow

the processes of the State courts; Chief-Justice Marshall himself, as

Giles threatened, must be the first victim if such an offence were a

misdemeanor in constitutional law.

That a judge was impeachable for a mistake in declaring the law seemed

therefore to be settled, so far as the House and its managers could

decide the point. Judge Chase’s counsel assumed that this principle,

which had been so publicly proclaimed, was seriously meant; and one

after another dwelt on the extravagance of the doctrine that a civil

officer should be punished for mere error of judgment. In reply, Joseph

H. Nicholson, Randolph’s closest ally, repudiated the theory on which

he had himself acted in Pickering’s case, and which Giles, Randolph,

and Campbell pressed; he even denied having heard such ground taken as

that an impeachment was a mere inquest of office:--

“For myself, I am free to declare that I heard no such position

taken. If declarations of this kind have been made, in the name

of the managers I here disclaim them. We do contend that this is

a criminal prosecution for offences committed in the discharge

of high official duties, and we now support it,--not merely

for the purpose of removing an individual from office, but in

order that the punishment inflicted on him may deter others from

pursuing the baneful example which has been set them.”

The impeachment, then, was a criminal prosecution, and the Senate was a

criminal court; yet no offence was charged which the law considered a

misdemeanor, while error of judgment, with no imputed ill-intent, was

alleged as a crime.

Staggering under this load of inconsistencies, uncertain what line of

argument to pursue, and ignorant whether the Senate would be ruled

by existing law or invent a system of law of its own, the managers,

Feb. 9, 1805, appeared in the Senate chamber to open their case and

produce their witnesses. Upon the popular imagination of the day

the impeachment of Warren Hastings had taken deep hold. Barely ten

years had passed since the House of Lords rendered its judgment in

that famous case; and men’s minds were still full of associations

with Westminster Hall. The impeachment of Judge Chase was a cold and

colorless performance beside the melodramatic splendor of Hastings’s

trial; but in the infinite possibilities of American democracy, the

questions to be decided in the Senate chamber had a weight for future

ages beyond any that were then settled in the House of Lords. Whether

Judge Chase should be removed from the bench was a trifling matter;

whether Chief-Justice Marshall and the Supreme Court should hold

their power and principles against this combination of State-rights

conservatives and Pennsylvania democrats was a subject for grave

reflection. Men who did not see that the tide of political innovation

had long since turned, and that the French revolution was no longer

raging, were consumed with anxiety for the fate of Chase, and not

wholly without reason; for had Marshall been a man of less calm and

certain judgment, a single mistake by him might easily have prostrated

the judiciary at the feet of partisans.

By order of the Vice-President the Senate chamber was arranged in

accordance with his ideas of what suited so grave an occasion. His own

chair stood, like that of the chief-justice in the court-room, against

the wall, and on its right and left crimson benches extended like the

seats of associate judges, to accommodate the thirty-four senators, who

were all present. In front of the Vice-President, on the right, a box

was assigned to the managers; on the left, a similar box was occupied

by Justice Chase and his counsel. The rest of the floor was given to

members of the House, foreign ministers, and other official persons.

Behind these a new gallery was erected especially for ladies, and at

each end of this temporary gallery boxes were reserved for the wives

and families of public officers. The upper and permanent gallery was

public. The arrangement was a mimic reproduction of the famous scene

in Westminster Hall; and the little society of Washington went to the

spectacle with the same interest and passion which had brought the

larger society of London to hear the orations of Sheridan and Burke.

Before this audience Justice Chase at last appeared with his array of

counsel at his side,--Luther Martin, Robert Goodloe Harper, Charles

Lee, Philip Barton Key, and Joseph Hopkinson. In such a contest

weakness of numbers was one element of strength; for the mere numbers

of Congressmen served only to rouse sympathy for the accused. The

contest was unequal in another sense, for the intellectual power of the

House was quite unable on the field of law to cope with the half-dozen

picked and trained champions who stood at the bar. Justice Chase alone

was a better lawyer than any in Congress; Luther Martin could easily

deal with the whole box of managers; Harper and Lee were not only

lawyers, but politicians; and young Hopkinson’s genius was beyond his

years.

In the managers’ box stood no lawyer of corresponding weight. John

Randolph, who looked upon the impeachment as his personal act, was not

only ignorant of law, but could not work by legal methods. Joseph H.

Nicholson and Cæsar A. Rodney were more formidable; but neither of them

would have outweighed any single member of Chase’s counsel. The four

remaining managers, all Southern men, added little to the strength of

their associates. John Boyle of Kentucky lived to become chief-justice

of that State, and was made district judge of the United States by a

President who was one of the Federalist senators warmly opposed to

the impeachment. George Washington Campbell of Tennessee lived to be

a senator, Secretary of the Treasury, and minister to Russia. Peter

Early of Georgia became a judge on the Supreme Bench of his own State.

Christopher Clark of Virginia was chosen only at the last moment to

take the place of Roger Nelson of Maryland, who retired. None of them

rose much above the average level of Congress; and Chase’s counsel

grappled with them so closely, and shut them within a field so narrow,

that no genius could have found room to move. From the moment that

the legal and criminal character of impeachment was conceded, Chase’s

counsel dragged them hither and thither at will.

Feb. 9, 1805, the case was opened by John Randolph. Randolph claimed to

have drawn all the articles of impeachment with his own hand. If any

one understood their character, it was he; and the respondent’s counsel

naturally listened with interest for Randolph’s explanation or theory

of impeachment, and for the connection he should establish between his

theory and his charges. These charges were numerous, but fell under

few heads. Of the eight articles which Randolph presented, the first

concerned the judge’s conduct at the trial of John Fries for treason

in Philadelphia in 1800; the five following articles alleged a number

of offences committed during the trial of James Thompson Callender for

libel at Richmond in that year; Article VII. charged as a misdemeanor

the judge’s refusal, in the same year, to dismiss the grand jury in

Delaware before indicting a seditious printer; finally, Article VIII.

complained of the judge’s harangue to the grand jury at Baltimore in

May, 1803, which it characterized as “highly indecent, extrajudicial,

and tending to prostitute the high judicial character with which he

was invested to the low purpose of an electioneering partisan.”

Serious as some of these charges certainly were,--for in the case

of Callender, even more than in that of Fries, Chase’s temper had

led him to strain, if not to violate, the law,--none of the articles

alleged an offence known to the statute-books or the common law; and

Randolph’s first task was to show that they could be made the subject

of impeachment, that they were high crimes and misdemeanors in the

sense of the Constitution, or that in some sense they were impeachable.

Instead of arguing this point, he contented himself by declaring the

theory of the defence to be monstrous. His speech touched the articles,

one by one, adding little to their force, but piling one mistake on

another in its assertions of fact and assumptions of law.

Ten days passed in taking evidence before the field was cleared and the

discussion began. Then, Feb. 20, 1805, Early and Campbell led for the

managers in arguments which followed more or less closely in Randolph’s

steps, inferring criminality in the accused from the manifest tenor of

his acts. Campbell ventured to add that he was not obliged to prove

the accused to have committed any crime known to the law,--it was

enough that he had transgressed the line of official duty with corrupt

motives; but this timid incursion into the field of the Constitution

was supported by no attempt at argument. “I lay it down as a settled

rule of decision,” said he, “that when a man violates a law or commits

a manifest breach of his duty, an evil intent or corrupt motive must be

presumed to have actuated his conduct.”

Joseph Hopkinson opened for the defence. Friends and enemies joined

in applauding the vigor of this young man’s attack. The whole effort

of Chase’s counsel was to drive the impeachers within the limits of

law, and compel them to submit to the restrictions of legal methods.

Hopkinson struck into the heart of the question. He maintained that

under the Constitution no judge could be lawfully impeached or removed

from office for any act or offence for which he could not be indicted;

“misdemeanor,” he argued, was a technical term well understood and

defined, which meant the violation of a public law, and which, when

occurring in a legal instrument like the Constitution, must be given

its legal meaning. After stating this proposition with irresistible

force, he dealt with Article I. of the impeachment, which covered

the case of Fries, and shook it to pieces with skill very unlike the

treatment of Early and Campbell. Barton Key next rose, and dealt with

Articles II., III., and IV., covering part of Callender’s case; he was

followed by Charles Lee, who succeeded in breaking down Randolph’s

interpolated Articles V. and VI. Then Luther Martin appeared on the

scene, and the audience felt that the managers were helpless in his

hands.

This extraordinary man--“unprincipled and impudent Federalist

bulldog,” as Jefferson called him--revelled in the pleasure of a

fight with democrats. The bar of Maryland felt a curious mixture of

pride and shame in owning that his genius and vices were equally

remarkable. Rough and coarse in manner and expression, verbose, often

ungrammatical, commonly more or less drunk, passionate, vituperative,

gross, he still had a mastery of legal principles and a memory that

overbalanced his faults, an audacity and humor that conquered ill-will.

In the practice of his profession he had learned to curb his passions

until his ample knowledge had time to give the utmost weight to his

assaults. His argument at Chase’s trial was the climax of his career;

but such an argument cannot be condensed in a paragraph. Its length and

variety defied analysis within the limits of a page, though its force

made other efforts seem unsubstantial.

Martin covered the same ground that his associates had taken before

him, dwelling earnestly on the contention that an impeachable offence

must be also indictable. Harper followed, concluding the argument for

the defence, and seeming to go beyond his associates in narrowing the

field of impeachment; for he argued that it was a criminal prosecution,

which must be founded on some wilful violation of a known law of the

land,--a line of reasoning which could end only in requiring the

violation of an Act of Congress. This theory did not necessarily clash

with that of Martin. No hesitation or inconsistency was shown on the

side of the defence; every resource of the profession was used with

energy and skill.

The managers then put forward their best pleaders; for they had need

of all their strength. Nicholson began by disavowing the idea that

impeachment was a mere inquest of office; this impeachment was, he

said, a criminal prosecution intended not merely to remove, but to

punish, the offender. On the other hand, he maintained that since

judges held their commissions during good behavior, and could be

removed only by impeachment, the Constitution must have intended that

any act of misbehavior should be considered a misdemeanor. He showed

the absurdities which would rise from construing the Constitution

in a legal sense. His argument, though vigorous and earnest, and

offering the advantages of a plausible compromise between two extreme

and impracticable doctrines, yet evidently strained the language of

the Constitution and disregarded law. As Nicholson himself said, he

discarded legal usage: “In my judgment the Constitution of the United

States ought to be expounded upon its own principles, and foreign aid

ought never to be called in. Our Constitution was fashioned after none

other in the known world; and if we understand the language in which it

is written, we require no assistance in giving it a true exposition.”

He wanted a construction “purely and entirely American.” In the mouth

of a strict constructionist this substitution of the will of Congress

for the settled rules of law had as strange a sound as Luther Martin

could have wished, and offered another example of the instinct, so

striking in the Louisiana debate, which not even Nicholson, Randolph,

or Jefferson himself could always resist.

Rodney, the same day, followed Nicholson; and as though not satisfied

with his colleague’s theory, did what Nicholson, in the name of all

the managers, had a few hours before expressly disclaimed,--he adopted

and pressed Giles’s theory of impeachment with all the precision

of language he could command. Nicholson seemed content to assume

impeachment as limited to “treason, bribery, or other high crimes

and misdemeanors;” but in his view misbehavior might be construed as

a misdemeanor in a “purely and entirely American” sense. Rodney was

not satisfied with this argument, and insisted that the Constitution

imposed no limit on impeachment.

“Is there a word in the whole sentence,” he asked, “which

expresses an idea, or from which any fair inference can be

drawn, that no person shall be impeached but for ‘treason,

bribery, or other high crimes and misdemeanors?’... From the

most cursory and transient view of this passage I submit with

due deference that it must appear very manifest that there are

other cases than those here specified for which an impeachment

will lie and is the proper remedy.”

The judges held their offices during good behavior; the instant a

judge should behave ill his office became forfeited. To ascertain the

fact “officially, or rather judicially,” impeachment was provided; the

authority of the Senate was therefore coextensive with the complaint.

Rodney stated this principle broadly, but did not rest upon it; on the

contrary, he accepted the respondent’s challenge, and undertook to show

that Chase had been guilty of crimes and misdemeanors in the technical

sense of the term. Probably he was wise in choosing this alternative;

for no one could doubt that his constitutional doctrine was one into

which Chase’s counsel were sedulously trying to drive him. If Rodney

was right, the Senate was not a court of justice, and should discard

judicial forms. Giles had seen this consequence of the argument, and

had acted upon it, until beaten by its inevitable inconsistencies;

at least sixteen senators were willing to accept the principle, and

to make of impeachment an “official, or rather judicial,” inquest of

office. Judge Chase’s counsel knew also that some half-dozen Republican

senators feared to allow a partisan majority in the Senate to decide,

after the fact, that such or such a judicial opinion had forfeited

the judge’s seat on the bench. This practice could end only in making

the Senate, like the House of Lords, a court of last appeal. Giles

threatened to impeach Marshall and the whole Supreme Court on Rodney’s

theory; and such a threat was as alarming to Dr. Mitchill of New York,

or Senator Bradley of Vermont, as it was to Pickering and Tracy.

When Rodney finished, the theory of impeachment was more perplexed than

ever, and but one chance remained to clear it. All the respondent’s

counsel had spoken in their turn; all the managers had expounded

their theories: John Randolph was to close. Randolph was an invalid,

overwhelmed by work and excitement, nervous, irritable, and not to

be controlled. When he appeared in the box, Feb. 27, 1805, he was

unprepared; and as he spoke, he not only made his usual long pauses

for recollection, but continually complained of having lost his notes,

of his weakness, want of ability, and physical as well as moral

incompetence. Such expressions in the mouths of other men might have

passed for rhetoric; but Randolph’s speech showed that he meant all

he said. He too undertook to answer the argument of Luther Martin,

Harper, and Hopkinson on the nature of impeachment; but he answered

without understanding it,--calling it “almost too absurd for argument,”

“a monstrous pretension,” “a miserable quibble,” but advancing no

theory of his own, and supporting neither Campbell’s, Nicholson’s, nor

Rodney’s opinion. After a number of arguments which were in no sense

answers, he said he would no longer worry the good sense of the Court

by combating such a claim,--a claim which the best lawyers in America

affirmed to be sound, and the two ablest of the managers had exhausted

themselves in refuting.

Randolph’s closing speech was overcharged with vituperation and with

misstatements of fact and law, but was chiefly remarkable on account of

the strange and almost irrational behavior of the speaker. Randolph’s

tall, thin figure, his penetrating eyes and shrill voice, were

familiar to the society of Washington, and his violence of manner in

the House only a short time before, in denouncing Granger and the Yazoo

men, had prepared his audience for some eccentric outburst; but no

one expected to see him, “with much distortion of face and contortion

of body, tears, groans, and sobs,” break down in the middle of his

self-appointed task, and congratulate the Senate that this was “the

last day of my sufferings and of yours.”[143]

The next day the Senate debated the form of its final judgment.[144]

Bayard moved that the question should be put: “Is Samuel Chase guilty

or not guilty of a high crime or misdemeanor as charged in the article

just read?” The point was vital; for if this form should be adopted,

the Senate returned to the ground it had deserted in the case of

Judge Pickering, and every senator would be obliged to assert that

Chase’s acts were crimes. At this crisis Giles abandoned the extreme

impeachers. He made a speech repeating his old argument, and insisting

that the House might impeach and the Senate convict not only for

other than indictable offences, but for other than high crimes and

misdemeanors; yet since in the present case the charges were avowedly

for high crimes and misdemeanors, he was willing to take the question

as Bayard proposed it, protesting meanwhile against its establishment

as a precedent. Bayard’s Resolution was adopted March 1, a few moments

before the hour of half-past twelve, which had been appointed for

pronouncing judgment.

The Senate chamber was crowded with spectators when Vice-President Burr

took the chair and directed the secretary to read the first article of

impeachment. Every member of the Senate answered to his name. Tracy

of Connecticut, prostrated by recent illness, was brought on a couch

and supported to his seat, where his pale face added to the serious

effect of the scene. The first article, which concerned the trial of

Fries, was that on which Randolph had founded the impeachment, and

on which the managers had thrown perhaps the greatest weight. As the

roll was called, Senator Bradley of Vermont, first of the Republican

members, startled the audience by saying “Not Guilty.” Gaillard of

South Carolina, and, to the astonishment of every one, Giles, the most

ardent of impeachers, repeated the same verdict. These three defections

decided the result; but they were only the beginning. Jackson of

Georgia, another hot impeacher, came next; then Dr. Mitchill, Samuel

Smith of Maryland, and in quick succession all the three Smiths of New

York, Ohio, and Vermont. A majority of the Senate declared against the

article, and the overthrow of the impeachers was beyond expectation

complete.

On the second article the acquittal was still more emphatic; but

on the third the impeachers rallied,--Giles, Jackson, and Samuel

Smith returned to their party, and for the first time a majority

appeared for conviction. Yet even with this support, the impeachers

were far from obtaining the required twenty-three votes; the five

recalcitrant Northern democrats stood firm; Gaillard was not to be

moved, and Stone of North Carolina joined him:--the impeachers could

muster but eighteen votes. They did no better on the fourth article.

On the fifth,--Randolph’s interpolated charge, which alleged no evil

intent,--every member of the Senate voted “Not Guilty;” on the sixth,

which was little more than a repetition of the fifth, only four

senators could be found to condemn, and on the seventh, only ten. One

chance of conviction remained, the eighth article, which covered the

judge’s charge to the grand jury at Baltimore in 1803. There lay the

true cause of impeachment; yet this charge had been least pressed and

least defended. The impeachers brought out their whole strength in its

support; Giles, Jackson, Samuel Smith, and Stone united in pronouncing

the judge guilty: but the five Northern democrats and Gaillard held out

to the last, and the managers saw themselves deserted by nearly one

fourth of the Republican senators. Nineteen voices were the utmost that

could be induced to sustain impeachment.

The sensation was naturally intense; and yet the overwhelming nature

of the defeat would have warranted an excitement still greater. No one

understood better the meaning of Chase’s acquittal than John Randolph,

whose authority it overthrew. His anger showed itself in an act which

at first alarmed and then amused his enemies. Hurrying from the Senate

chamber to the House, he offered a Resolution for submitting to the

States an amendment to the Constitution: “The judges of the Supreme and

all other courts of the United States shall be removed by the President

on the joint address of both Houses of Congress.” His friend Nicholson,

as though still angrier than Randolph, moved another amendment,--that

the legislature of any State might, whenever it thought proper, recall

a senator and vacate his seat. These resolutions were by a party vote

referred to the next Congress.

Randolph threatened in vain; the rod was no longer in his hands. His

overthrow before the Senate was the smallest of his failures. The

Northern democrats talked of him with disgust; and Senator Cocke of

Tennessee, who had voted “Guilty” on every article of impeachment

except the fifth, told his Federalist colleagues in the Senate that

Randolph’s vanity, ambition, insolence, and dishonesty, not only in the

impeachment but in other matters, were such as to make the acquittal no

subject for regret.[145] Madison did not attempt to hide his amusement

at Randolph’s defeat. Jefferson held himself studiously aloof. To

Jefferson and men of his class Randolph seems to have alluded, in a

letter written a few weeks later, as “whimsicals,” who “advocated

the leading measures of their party until they were nearly ripe for

execution, when they hung back, condemned the step after it was taken,

and on most occasions affected a glorious neutrality.”[146] Even

Giles turned hostile. He not only yielded to the enemies of Randolph

in regard to the form of vote to be taken on the impeachment, and

fairly joined them in the vote on the first article, but he also aided

in offering Randolph a rebuke on another point connected with the

impeachment.

In the middle of the trial, February 15, Randolph reported to the

House, and the House quickly passed, a Bill appropriating five thousand

dollars for the payment of the witnesses summoned by the managers.

When this Bill came before the Senate, Bayard moved to amend it by

extending its provisions to the witnesses summoned by Judge Chase. The

point was delicate; for if the Senate was a court, and impeachment a

criminal procedure, this court should follow the rules that guided

other judicial bodies; and every one knew that no court in America or

in Christendom obliged the State, as a prosecutor, to pay the witnesses

of the accused. After the acquittal, such a rule was either equivalent

to telling the House that its charges against Chase were frivolous and

should never have been presented, or it suggested that the trial had

been an official inquiry into the conduct of an officer, and not a

criminal procedure at law. The Republicans might properly reject the

first assumption, the Federalists ought to resist the second; yet when

Bayard’s amendment came to a vote, it was unanimously adopted.[147]

The House disagreed; the Senate insisted, and Giles led the Senate,

affirming that he had drawn the form of summons, and that this form

made no distinction between the witnesses for one party and the other.

The argument was not decisive, for the court records showed at once

by whom each witness was called; but Giles’s reasoning satisfied the

Senate, and led to his appointment, March 3, with Bradley, an enemy of

impeachment, as conferrees to meet Randolph, Nicholson, and Early on

the part of the House. They disagreed; and Randolph, with his friends,

felt that Giles and the Senate had inflicted on them a grievous insult.

The Report of the conference committee was received by the House at

about seven o’clock on the evening of March 3, when the Eighth Congress

was drawing its last breath. Randolph, who reported the disagreement,

moved that the House adhere; and having thus destroyed the Bill, he

next moved that the Clerk of the House should be directed to pay the

witnesses, or any other expense certified by the managers, from the

contingent fund. He would have carried his point, although it violated

every financial profession of the Republican party, but that the House

was thin, and the Federalists, by refusing to vote, prevented a quorum.

At half-past nine o’clock on Sunday night, the 3d of March, 1805, the

Eighth Congress came to an end in a scene of total confusion and

factiousness.

The failure of Chase’s impeachment was a blow to the Republican party

from which it never wholly recovered. Chief-Justice Marshall at length

was safe; he might henceforward at his leisure fix the principles

of Constitutional law. Jefferson resigned himself for the moment to

Randolph’s overthrow; but the momentary consolations passed away, and a

life-long disappointment remained. Fifteen years later his regret was

strongly expressed:--

“The Judiciary of the United States,” mourned the old

ex-President,[148] “is the subtle corps of sappers and miners

constantly working underground to undermine the foundations of

our confederated fabric. They are construing our Constitution

from a co-ordination of a general and special government to a

general and supreme one alone.... Having found from experience

that impeachment is an impracticable thing, a mere scarecrow,

they consider themselves secure for life; they skulk from

responsibility; ... an opinion is huddled up in conclave,

perhaps by a majority of one, delivered as if unanimous, and

with the silent acquiescence of lazy or timid associates, by a

crafty chief-judge who sophisticates the law to his mind by the

turn of his own reasoning.”

The acquittal of Chase proved that impeachment was a scarecrow; but

its effect on impeachment as a principle of law was less evident. No

point was decided. The theory of Giles, Randolph, and Rodney was

still intact, for it was not avowedly applied to the case. The theory

of Judge Chase’s counsel--that an impeachable offence must be also

indictable, or even a violation of some known statute of the United

States--was overthrown neither by the argument nor by the judgment. So

far as Constitutional law was concerned, President Jefferson himself

might still be impeached, according to the dictum of Madison, for the

arbitrary removal of a useful tide-waiter, and Chief-Justice Marshall

might be driven from the bench, as Giles wished, for declaring the

Constitution to be above the authority of a statute; but although the

acquittal of Chase decided no point of law except his innocence of

high crimes or misdemeanors, as charged in the indictment, it proved

impeachment to be “an impracticable thing” for partisan purposes, and

it decided the permanence of those lines of Constitutional development

which were a reflection of the common law. Henceforward the legal

profession had its own way in expounding the principles and expanding

the powers of the central government through the Judiciary.

History of the United States of America, Volume 2 (of 9) · 第 10 / 18 章