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.