Chapter IV: Impeachment (2)

Congress could pass a law making an act criminal which had not been so before; but such a law applied only to deeds committed after, and not to those done before, its passage. Yet if an officer might, years after the event, be impeached, convicted, and punished for conduct perfectly legal at the time, "could the officers of Government ever know how to proceed?" Establish such a principle and "you leave your judges, and all your other officers, at the mercy of the prevailing party."

Had Chase "used _unusual_, rude and _contemptuous_ expressions towards the prisoner's counsel" in the Callender case, as the articles of impeachment charged? Even so, this was "rather a violation of the principles of politeness, than the principles of law; rather the want of decorum, than the commission of a _high crime and misdemeanor_." Was a judge to be impeached and removed from office because his deportment was not elegant?

The truth was that Callender's counsel had not acted in his interest and had cared nothing about him; they had wished only "to hold up the prosecution as oppressive" in order to "excite public indignation against the court and the Government." Had not Hay just testified that he entertained "no hopes of convincing the court, and scarcely the faintest expectation of inducing the jury to believe that the sedition law was unconstitutional"; but that he had wished to make an "impression upon the public mind.... What barefaced, what unequalled hypocrisy doth he admit that he practiced on that occasion! What egregious trifling with the court!" exclaimed Martin.

When Chase had observed that Wirt's syllogism was a "_non sequitur_," the Judge, it seems, had "bowed." Monstrous! But "as _bows_, sir, according to the manner they are _made_, may ... convey very different meanings," why had not the witness who told of it, "given us a _fac simile_ of it?" The Senate then could have judged of "the propriety" of the bow. "But it seems this _bow_, together with the '_non sequitur_' entirely discomfitted poor Mr. Wirt, and down he sat 'and never word spake more!'" By all means let Chase be convicted and removed from the bench--it would never do to permit National judges to make bows in any such manner!

But alas for Chase! He had committed another grave offense--he had called William Wirt "_young_ gentleman" in spite of the fact that Wirt was actually thirty years old and a widower. Perhaps Chase did not know "of these circumstances"; still, "if he had, considering that Mr. Wirt was a widower, he certainly erred on the right side ... in calling _him_ a _young_ gentleman."[545]

When the laughter of the Senate had subsided, Martin, dropping his sarcasm, once more emphasized the vital necessity of the independence of the Judiciary. "We boast" that ours is a "government of laws. But how can it be such, unless the laws, while they exist, are sacredly and impartially, without regard to popularity, carried into execution?" Only independent judges can do this. "Our property, our liberty, our lives, can only be protected and secured by such judges. With this honorable Court it remains, whether we shall have such judges!"[546]

Martin spoke until five o'clock without food or any sustenance, "except two glasses of wine and water"; he said he had not even breakfasted that morning, and asked permission to finish his argument next day.

When he resumed, he dwelt on the liberty of the press which Chase's application of the Sedition Law to Callender's libel was said to have violated. "My honorable client with many other respectable characters ... considered it [that law] as a wholesome and necessary restraint" upon the licentiousness of the press.[547] Martin then quoted with telling effect from Franklin's denunciation of newspapers.[548] "Franklin, himself a printer," had been "as great an advocate for the liberty of the press, as any reasonable man ought to be"; yet he had "declared that unless the slander and calumny of the press is restrained by some other law, it will be restrained by club law." Was not that true?

If men cannot be protected by the courts against "base calumniators, they will become their own avengers. And to the bludgeon, the sword or the pistol, they will resort for that purpose." Yet Chase stood impeached for having, as a judge, enforced the law against the author of "one of the most flagitious libels ever published in America."[549]

Throughout his address Martin mingled humor with logic, eloquence with learning.[550] Granted, he said, that Chase had used the word "damned" in his desultory conversation with Triplett during their journey in a stage. "However it may sound elsewhere in the United States, I cannot apprehend it will be considered _very_ offensive, _even_ from the mouth of a judge on this side of the Susquehanna;--to the southward of that river it is in familiar use ... supplying frequently the place of the word 'very' ... connected with subjects the most pleasing; thus we say indiscriminately a very good or a damned good bottle of wine, a damned good dinner, or a damned clever fellow."[551]

Martin's great speech deeply impressed the Senate with the ideas that Chase was a wronged man, that the integrity of the whole National Judicial establishment was in peril, and that impeachment was being used as a partisan method of placing the National Bench under the rod of a political party. And all this was true.

Robert Goodloe Harper closed for the defense. He was intolerably verbose, but made a good argument, well supported by precedents. In citing the example which Randolph had given as a good cause for impeachment--the refusal of a judge to hold court--Harper came near, however, making a fatal admission. This, said Harper, would justify impeachment, although perhaps not an indictment. Most of his speech was a repetition of points already made by Hopkinson, Key, and Martin. But Harper's remarks on Chase's charge to the Baltimore grand jury were new, that article having been left to him.

"Is it not lawful," he asked, "for an aged patriot of the Revolution to warn his fellow-citizens of dangers, by which he supposes their liberties and happiness to be threatened?" That was all that Chase's speech from the bench in Baltimore amounted to. Did his office take from a judge "the liberty of speech which belongs to every citizen"? Judges often made political speeches on the stump--"What law forbids [them] to exercise these rights by a charge from the bench?" That practice had "been sanctioned by the custom of this country from the beginning of the Revolution to this day."

Harper cited many instances of the delivery by judges of political charges to grand juries, beginning with the famous appeal to the people to fight for independence from British rule, made in a charge to a South Carolina grand jury in 1776.[552]

The blows of Chase's strong counsel, falling in unbroken succession, had shaken the nerve of the House managers. One of these, Joseph H. Nicholson of Maryland, now replied. Posterity would indeed be the final judge of Samuel Chase. Warren Hastings had been acquitted; "but is there any who hears me, that believes he was innocent?" The judgment of the Senate involved infinitely more than the fortunes of Chase; by it "must ultimately be determined whether justice shall hereafter be impartially administered or whether the rights of the citizen are to be prostrated at the feet of overbearing and tyrannical judges."

Nicholson denied that the House managers had "resorted to the forlorn hope of contending that an impeachment was not a criminal prosecution, but a mere inquest of office.... 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 offenses committed in the discharge of high official duties."[553]

The Senate was dumbfounded, the friends of Chase startled with joyful surprise; a gasp of amazement ran through the overcrowded Chamber! Nicholson had abandoned the Republican position--and at a moment when Harper had all but admitted it to be sound. What could this mean but that the mighty onslaughts of Martin and Hopkinson had disconcerted the managers, or that Republican Senators were showing to the leaders signs of weakening in support of the party doctrine.

At any rate, Nicholson's admission was an irretrievable blunder. He should have stoutly championed his party's theory upon which Chase had been impeached and thus far tried, ignored the subject entirely, or remained silent. Sadly confused, he finally reversed his argument and swung back to the original Republican theory.

He cited many hypothetical cases where an officer could not be haled before a criminal court, but could be impeached. One of these must have furnished cause for secret mirth to many a Senator: "It is possible," said Nicholson, "that the day may arrive when a President of the United States ... may endeavor to influence [Congress] by holding out threats or inducements to them.... The hope of an office may be held out to a Senator; and I think it cannot be doubted, that for this the President would be liable to impeachment, although there is no positive law forbidding it."

Lucky for Nicholson that Martin had spoken before him and could not reply; fortunate for Jefferson that the "impudent Federal Bulldog,"[554] as the President afterward styled Martin, could not now be heard. For his words would have burned the paper on which the reporters transcribed them. Every Senator knew how patronage and all forms of Executive inducement and coercion had been used by the Administration in the passage of most important measures--the Judiciary repeal, the Pickering impeachment, the Yazoo compromise, the trial of Chase. From the floor of the House John Randolph had just denounced, with blazing wrath, Jefferson's Postmaster-General for offering Government contracts to secure votes for the Yazoo compromise.[555]

For two hours and a half Nicholson continued,[556] devoting himself mainly to the conduct of Chase during the trial of Fries. He closed by pointing out the inducements to a National judge to act as a tyrannical tool of a partisan administration--the offices with which he could be bribed, the promotions by which he could be rewarded. The influence of the British Ministry over the judges has been "too flagrant to be mistaken." For example, in Ireland "an overruling influence has crumbled [an independent judiciary] into ruins. The demon of destruction has entered their courts of justice, and spread desolation over the land. Execution has followed execution, until the oppressed, degraded and insulted nation has been made to tremble through every nerve, and to bleed at every pore."

The fate of Ireland would be that of America, if an uncontrolled Judiciary were allowed to carry out, without fear of impeachment, the will of a high-handed President, in order to win the preferments he had to offer. Already "some of our judges have been elevated to places of high political importance.... Let us nip the evil in the bud, or it may grow to an enormous tree, bearing destruction upon every branch."[557]

Cæsar A. Rodney of Delaware strove to repair the havoc Nicholson had wrought; he made it worse. The trial was, he said, "a spectacle truly solemn and impressive ... a trial of the first importance, because of the first impression; ... a trial ... whose novelty and magnitude have excited so much interest ... that it seems to have superseded for the moment, not only every other grave object or pursuit, but every other fashionable amusement or dissipation."[558]

Rodney flattered Burr, whose conduct of the trial had been "an example worthy of imitation." He cajoled the Senators, whose attitude he had "observed with heartfelt pleasure and honest pride"; and he warned them not to take as a precedent the case of Warren Hastings, "that destroyer of the people of Asia, that devastator of the East,"--murderer of men, violator of _zenanas_, destroyer of sacred treaties, but yet acquitted by the British House of Lords.

Counsel for Chase had spoken with "the fascinating voice of eloquence and the deluding tongue of ingenuity"; but Rodney would avoid "everything like declamation" and speak "in the temperate language of reason."[559] He was sure that "the weeping voice of history will be heard to deplore the oppressive acts and criminal excesses [of Samuel Chase].... In the dark catalogue of criminal enormities, perhaps few are to be found of deeper dye" than those named in the articles of impeachment. "The independence of the Judiciary, the political tocsin of the day, and _the alarm bell of the night_, has been rung through every change in our ears.... The poor hobby has been literally rode to death." Rodney was for a "rational independence of the Judiciary," but not for the "inviolability of judges more than of Kings.[560] In this country I am afraid the doctrine has been carried to such an extravagant length, that the Judiciary may be considered like a spoiled child."

An independent Judiciary, indeed! "We all know that an associate justice may sigh for promotion, and may be created a Chief Justice,[561] while ... more than one Chief Justice has been appointed a Minister Plenipotentiary."[562] With what result? Had judges stood aloof from politics--or had they "united in the _Io triumphe_ which the votaries and idolators of power have sung to those who were seated in the car of Government? Have they made no offerings at the shrine of party; have they not preached political sermons from the bench, in which they have joined chorus with the anonymous scribblers of the day and the infuriate instruments of faction?"[563]

In this fashion Rodney began a song of praise of Jefferson, for the beneficence of whose Administration "the lamentable annals of mankind afford no example." After passing through many "citadels" and "Scean gates," and other forms of rhetorical architecture, he finally discovered Chase "seated in a curricle of passion" which the Justice had "driven on, Phæton-like, ... with destruction, persecution, and oppression" following.

At last the orator attempted to discuss the law of the impeachment, taking the double ground that an officer could be removed for any act that two thirds of the Senate believed to be not "good behavior," and that the Chase impeachment was "a criminal prosecution." For parts of two days[564] Rodney examined every phase of the charges in a distracting mixture of high-flown language, scattered learning, extravagant metaphor, and jumbled logic.[565] His speech was a wretched performance, so cluttered with tawdry rhetoric and disjointed argument that it would have been poor even as a stump speech.

In an address that enraged the New England Federalists, Randolph closed for the House managers.[566] He was late in arriving at the Senate Chamber. He had been so ill the day before that Nicholson, because of Randolph's "habitual indisposition," had asked the Senate to meet two hours later than the usual time.[567] Sick as he was, without his notes (which he had lost), Randolph nevertheless made the best argument for the prosecution. Wasting no time, he took up the theory of impeachment upon which, he said, "the wildest opinions have been advanced"--for instance, "that an offense, to be impeachable, must be indictable." Why, then, had the article on impeachment been placed in the Constitution at all? Why "not have said, at once, that any ... officer ... convicted on indictment should (_ipso facto_) be removed from office? This would be coming at the thing by a short and obvious way."[568]

Suppose a President should veto every act of Congress "indiscriminately"; it was his Constitutional right to do so; he could not be indicted, but would anybody say he could not be impeached? Or if, at a short session, the President should keep back until the last moment all bills passed within the previous ten days, as the Constitution authorized him to do, so that it would be a physical impossibility for the two Houses to pass the rejected measures over the President's veto, he could not be indicted for this abuse of power; but surely "he could be impeached, removed and disqualified."[569]

Randolph's Virginia soul was deeply stirred by what he considered Chase's alternate effrontery and cowardice. Is such a character "fit to preside in a court of justice?... Today, haughty, violent, imperious; tomorrow, humble, penitent and submissive.... Is this a character to dispense law and justice to this nation? No, Sir!" Randolph then drew an admirable picture of the ideal judge: "firm, indeed, but temperate, mild though unyielding, neither a blustering bravo, nor a timid poltroon."[570]

As far as he could go without naming him, Randolph described John Marshall. Not without result had the politically experienced Chief Justice conciliated the House managers in the manner that had so exasperated the Federalist Senators. He would not thereafter be impeached if John Randolph could prevent.

With keen pleasure at the annoyance he knew his words would give to Jefferson,[571] Randolph continued to praise Marshall. The rejection of Colonel Taylor's testimony at the Callender trial was contrary to "the universal practice of our courts." On this point "what said the Chief Justice of the United States," on whose evidence Randolph said he specially relied? "He never knew such a case [to] occur before. He never heard a similar objection advanced by any court, until that instance. And this is the cautious and guarded language of a man placed in the delicate situation of being compelled to give testimony against a brother judge."

With an air of triumph Randolph asked: "Can anyone doubt Mr. Marshall's thorough acquaintance with our laws? Can it be pretended that any man is better versed in their theory and practice? And yet in all his extensive reading, his long and extensive practice, in the many trials of which he has been spectator, and the yet greater number at which he has assisted, he had never witnessed such a case." Chase alone had discovered "this fatal novelty, this new and horrible doctrine that threatens at one blow all that is valuable in our criminal jurisprudence."

Had Martin shown that Chase was right in requiring questions to be reduced to writing? "Here again," declared Randolph, "I bottom myself upon the testimony of the same great man, yet more illustrious for his abilities than for the high station that he fills, eminent as it is." And he recited the substance of Marshall's testimony on this point. Consider his description of the bearing of Chase toward counsel! "I again ask you, what said the Chief Justice?... And what did he _look_?[572] He felt all the delicacy of his situation, and, as he could not approve, he declined giving any opinion on the demeanor of his associate."[573] In such manner Randolph extolled Marshall.

Again he apostrophized the Chief Justice. If Fries and Callender "had had fair trials, our lips would have been closed in eternal silence. Look at the case of Logwood: The able and excellent judge whose worth was never fully known until he was raised to the bench ... uttered not one syllable that could prejudice the defense of the prisoner." Once more he contrasted the judicial manners and rulings of Marshall with those of Chase: "The Chief Justice knew that, sooner or later, the law was an over-match for the dishonest, and ... he disdained to descend from his great elevation to the low level of a public prosecutor."

The sick man spoke for two hours and a half, his face often distorted and his body writhing with pain. Finally his tense nerves gave way. Only public duty had kept him to his task, he said. "In a little time and I will dismiss you to the suggestions of your own consciences. My weakness and want of ability prevent me from urging my cause as I could wish, but"--here the overwrought and exhausted man broke into tears--"it is the last day of my sufferings and of yours."

Mastering his indisposition, however, Randolph closed in a passage of genuine power: "We adjure you, on behalf of the House of Representatives and of all the people of the United States, to exorcise from our Courts the baleful spirit of party, to give an awful memento to our judges. In the name of the nation, I demand at your hands the award of justice and of law."[574]

So ended this unequal forensic contest in one of the most fateful trials in American history. The whole country eagerly awaited tidings of the judgment to be rendered by the Senatorial tribunal. The fate of the Supreme Court, the character of the National Judiciary, the career of John Marshall, depended upon it. Even union or disunion was involved; for if Chase should be convicted, another and perhaps final impulse would be given to the secessionist movement in New England, which had been growing since the Republican attack on the National Judiciary in 1802.[575]

When the Senate convened at half-past twelve on March 1, 1805, a dense mass of auditors filled every inch of space in the Senate Chamber.[576] Down the narrow passageway men were seen bearing a couch on which lay Senator Uriah Tracy of Connecticut, pale and sunken from sickness. Feebly he rose and took one of the red-covered seats of the Senatorial judges.[577]

"The Sergeants-at-Arms will face the spectators and seize and commit to prison the first person who makes the smallest noise or disturbance," sternly ordered Aaron Burr.

"The secretary will read the first article of impeachment," he directed.

"Senator Adams of Massachusetts! How say you? Is Samuel Chase, the respondent, guilty of high crimes and misdemeanors as charged in the article just read?"

"Not guilty!" responded John Quincy Adams.

When the name of Stephen R. Bradley, Republican Senator from Vermont, was reached, he rose in his place and voted against conviction. The auditors were breathless, the Chamber filled with the atmosphere of suspense. It was the first open break in the Republican ranks. Two more such votes and the carefully planned battle would be lost to Jefferson and his party.

"Not guilty!" answered John Gaillard, Republican Senator from South Carolina.

Another Republican defection and all would be over. It came from the very next Senator whose name Aaron Burr pronounced, and from one whose answer will forever remain an enigma.

"Senator Giles of Virginia! How say you? Is Samuel Chase guilty of the high crimes and misdemeanors as charged in the articles just read?"

"Not guilty!"

Only sixteen Senators voted to impeach on the first article, nine Republicans aligning themselves with the nine Federalists.

The vote on the other articles showed varying results; on the fourth, fourteen Senators responded "Guilty!"; on the fifth, the Senate was unanimous for Chase.

Upon the eighth article--Chase's political charge to the Baltimore grand jury--the desperate Republicans tried to recover, Giles now leading them. Indeed, it may be for this that he cast his first vote with his party brethren from the North--he may have thought thus to influence them on the one really strong charge against the accused Justice. If so, his stratagem was futile. The five Northern Republicans (Bradley and Smith of Vermont, Mitchell and Smith of New York, and John Smith of Ohio) stood firm for acquittal as did the obstinate John Gaillard of South Carolina.[578]

The punctilious Burr ordered the names of Senators and their recorded answers to be read for verification.[579] He then announced the result: "It appears that there is not a constitutional majority of votes finding Samuel Chase, Esq. guilty of any one article. It therefore becomes my duty to declare that Samuel Chase, Esq. stands acquitted of all the articles exhibited by the House of Representatives against him."[580]

The fight was over. There were thirty-four Senators, nine of them Federalists, twenty-five Republicans. Twenty-two votes were necessary to convict. At their strongest the Republicans had been able to muster less than four fifths of their entire strength. Six of their number--the New York and Vermont Senators, together with John Gaillard of South Carolina and John Smith of Ohio--had answered "not guilty" on every article.

For the first time since his appointment, John Marshall was secure as the head of the Supreme Bench.[581] For the first time since Jefferson's election, the National Judiciary was, for a period, rendered independent. For the first time in five years, the Federalist members of the Nation's highest tribunal could go about their duties without fear that upon them would fall the avenging blade of impeachment which had for half a decade hung over them. One of the few really great crises in American history had passed.[582]

"The greatest and most important trial ever held in this nation has terminated justly," wrote Senator Plumer to his son. "The venerable judge whose head bears the frost of seventy winters,[583] is honorably acquitted. I never witnessed, in any place, such a display of learning as the counsel for the accused exhibited."[584]

Chagrin, anger, humiliation, raged in Randolph's heart. His long legs could not stride as fast as his frenzy, when, rushing from the scene of defeat, he flew to the floor of the House. There he offered an amendment to the Constitution providing that the President might remove National judges on the joint address of both Houses of Congress.[585] "Tempest in the House," records Cutler.[586]

Nicholson was almost as frantic with wrath, and quickly followed with a proposal so to amend the Constitution that State Legislatures might, at will, recall Senators.[587]

Republicans now began to complain to their party foes of one another. Over a "rubber of whist" with John Quincy Adams, Senator Jackson of Georgia, even before the trial, had spoken "slightingly both of Mr. John Randolph and of Mr. Nicholson";[588] and this criticism of Republicans _inter se_ now increased.

Jefferson's feelings were balanced between grief and glee; his mourning over the untoward result of his cherished programme of judicial reform was ameliorated by his pleasure at the overthrow of the unruly Randolph,[589] who had presumed to dissent from the President's Georgia land policy.[590] The great politician's cup of disappointment, which the acquittal of Chase had filled, was also sweetened by the knowledge that Republican restlessness in the Northern States would be quieted; the Federalists who were ready, on other grounds, to come to his standard would be encouraged to do so; and the New England secession propaganda would be deprived of a strong argument. He confided to the gossipy William Plumer, the Federalist New Hampshire Senator, that "impeachment is a farce which will not be tried again."[591]

The Chief Justice of the United States, his peril over, was silent and again serene, his wonted composure returned, his courage restored. He calmly awaited the hour when the wisdom of events should call upon him to render another and immortal service to the American Nation. That hour was not to be long delayed.

FOOTNOTES:

[430] Giles was appointed Senator August 11, 1804, by the Governor to fill the unexpired term of Abraham Venable who resigned in order that Giles might be sent to the Senate. In December the Legislature elected him for the full term. Upon taking his seat Giles immediately became the Republican leader of the Senate. (See Anderson, 93.)

[431] Dec. 21, 1804, _Memoirs, J. Q. A._: Adams, I, 322-23.

[432] Dec. 21, 1804. _Memoirs, J. Q. A._: Adams, I, 322-23.

[433] Plumer, 274-75; and see especially Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

[434] The powerful Republican organ, the _Aurora_, of Philadelphia, thus indicted the National Judiciary: Because judges could not be removed, "many wrongs are daily done by the courts to humble, obscure, or poor suitors.... It is a prodigeous monster in a free government to see a class of men set apart, not simply to administer the laws, but who exercise a legislative and even an executive power, directly in defiance and contempt of the Constitution." (_Aurora_, Jan. 28, 1805, as quoted in Corwin, 41.) Professor Corwin says that this utterance was approved by Jefferson.

[435] "Mr. Giles from Virginia ... is the Ministerial leader in the Senate." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.)

"I considered M^{r.} Giles as the ablest _practical_ politician of the whole party enlisted under M^{r.} Jefferson's banners." (Pickering to Marshall, Jan. 24, 1826, Pickering MSS. Mass. Hist. Soc.)

[436] William Johnson of South Carolina, appointed March 26, 1804, vice William Moore, resigned. Johnson was a stanch Jeffersonian when appointed. He was thirty-three years old at the time he was made Associate Justice.

[437] It is impossible to put too much emphasis on Giles's avowal. His statement is the key to the Chase impeachment.

[438] Adams to his father, March 8, 1805, _Writings, J. Q. A._: Ford, III, 108.

[439] Pickering to Lyman, Feb. 11, 1804, _N.E. Federalism_: Adams, 344; Lodge: _Cabot_, 444; also see Plumer, 275.

[440] Plumer to Mason, Jan. 14, 1803, Plumer MSS. Lib. Cong.

[441] Bayard to Bassett, Feb. 12, 1802, _Bayard Papers_: Donnan, 148.

[442] Channing: _Jeffersonian System_, 119-20; Adams: _U.S._ II, 225-27, 235; Anderson, 93, 95.

[443] Smith to Plumer, Feb. 11, 1804, Plumer MSS. Lib. Cong.

[444] See _infra_, 176-77, 196.

[445] 2 Cranch, 358-405.

[446] See vol. II, 481-82, of this work.

[447] See vol. II, 71-74, of this work.

[448] Fifteen years passed before a critical occasion called for another assertion by Marshall of the doctrine of implied powers; and that occasion produced one of Marshall's greatest opinions--in the judgment of many, the greatest of all his writings. (See McCulloch _vs._ Maryland, vol. IV, chap. VI, of this work.)

[449] Addison's address is historically important; it perfectly shows the distrust of democracy which all Federalist leaders then felt. Among other things, he pleaded for the independence of the Judiciary, asserted that it was their exclusive province to decide upon the constitutionality of laws, and stoutly maintained that no judge could be impeached except for an offense for which he also could be indicted. (_Addison Trial_, 101-43.)

[450] The petition praying for the impeachment of Addison was sent to the Pennsylvania House of Representatives on January 11, 1802. On March 23, 1802, that body transmitted articles of impeachment to the State Senate. The trial was held in early January, 1803. Addison was convicted January 26, 1803. (_Ib._)

[451] Jefferson's Message was transmitted to the House, February 4, 1803, nine days after the conviction of Addison. It enclosed a "letter and affidavits" setting forth Pickering's conduct on the bench in the case of the ship Eliza, and suggested that "the Constitution has confided [to the House] a power of instituting proceedings of redress." (_Annals_, 7th Cong. 2d Sess. 460.)

On March 2 the committee reported a resolution for Pickering's impeachment because of the commission by him of "high crimes and misdemeanors," and, though a few Federalists tried to postpone a vote, the resolution was adopted immediately.

[452] Depositions of Samuel Tenney, Ammi R. Cutter, Joshua Brackett, Edward St. Loe Livermore. (_Annals_, 8th Cong. 1st Sess. 334-42.)

[453] Testimony of John S. Sherburne, Thomas Chadbourne, and Jonathan Steele. (_Ib._ 351-56.)

[454] The wise and comprehensive Federalist Judiciary Act of 1801 covered just such cases. It provided that when a National judge was unable to discharge the duties of his office, the circuit judges should name one of their members to fill his place. (See _Annals_, 6th Cong. 2d Sess. 1545.) This very thing had been done in the case of Judge Pickering (see McMaster: _U.S._ III, 166). It is curious that, in the debate, the Republicans did not denounce this as unconstitutional.

[455] Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

[456] _Annals_, 8th Cong. 1st Sess. 328-30.

[457] _Memoirs, J. Q. A._: Adams, I, 299-300.

[458] "This," records Adams, "had evidently been settled ... out of court. And this is the way in which these men administer justice." (_Ib._)

[459] "In the House ... speeches are making every day to dictate to the Senate how they are to proceed; and the next morning they proceed accordingly." (_Ib._ 301-02.)

[460] Feb. 18, 1803, Plumer, 253.

[461] _Annals_, 8th Cong. 1st Sess. 365.

[462] See _Memoirs, J. Q. A._; Adams, I, 302-04, for a vivid account of the whole incident.

[463] Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.

[464] _Annals_, 8th Cong. 1st Sess. 367. "The independence of our judiciary is no more ... I hope the time is not far distant when the people east of the North river _will manage their own affairs in their own way_; ... and that the _sound_ part will separate from the _corrupt_." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) On the unconstitutional and revolutionary conduct of the Republicans in the Pickering impeachment trial see Adams: _U.S._ II, 158.

[465] Senators John Armstrong of New York, Stephen R. Bradley of Vermont, and David Stone of North Carolina. Jonathan Dayton of New Jersey and Samuel White of Delaware, Federalists, also withdrew. (_Annals_, 8th Cong. 1st Sess. 366.) And see _Memoirs, J. Q. A._: Adams, I, 308-09; J. Q. Adams to his father, March 8, 1805, _Writings, J. Q. A._: Ford, III, 110; Plumer to Park, March 13, 1804, Plumer MSS. Lib. Cong.

Senator John Brown of Kentucky, a Republican, "could not be induced to join the majority, but, unwilling to offend them, he obtained & has taken a leave of absence." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) Senator Brown had been elected President _pro tem._ of the Senate, January 23, 1804.

Burr "abruptly left the Senate" to attend to his candidacy for the governorship of New York. (Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.) Senator Franklin of North Carolina was then chosen President _pro tem._ and presided during the trial of Pickering. But Burr returned in time to arrange for, and preside over, the trial of Justice Chase.

[466] The Republicans even refused to allow the report of the proceedings to be "printed in the Appendix to the Journals of the Session." (_Memoirs, J. Q. A._: Adams, I, 311.)

The conviction and removal of Pickering alarmed the older Federalists almost as much as did the repeal of the Judiciary Act. "The _demon_ of party governed the decision. All who condemned were Jeffersonians, and all who pronounced the accused not guilty were Federalists." (Pickering to Lyman, March 4, 1804, _N.E. Federalism_: Adams, 358-59; Lodge: _Cabot_, 450.)

"I really wish those in New England who are boasting of the independence of our Judiciary would reflect on what a slender tenure Judges hold their offices whose political sentiments are at variance with the dominant party." (Plumer to Park, March 13, 1804, Plumer MSS. Lib. Cong.)

[467] Exhibit VIII, _Chase Trial_, Appendix, 61-62; also see _Annals_, 8th Cong. 2d Sess. 675-76.

[468] June 13, 1803.

[469] See _Chase Trial_, 101 _et seq._

[470] See McMaster: _U.S._ III, 162-70.

[471] Jefferson to Nicholson, May 13, 1803, _Jefferson Writings_: Washington, IV, 484.

[472] Macon to Nicholson, Aug. 6, 1803, Dodd: _Life of Nathaniel Macon_, 187-88. Macon seriously doubted the expediency and legality of the impeachment of Chase. However, he voted with his party.

[473] Dodd, 187-88.

[474] Adams to Rush, June 22, 1806, _Old Family Letters_, 100.

[475] Chase "is very obnoxious to the _powers that be_ & must be _denounced_, but articles will not be exhibited agt him this session. The Accusers have collected a volume of exparte evidence against him, printed & published it in pamphlets, & now it is publishing in the Court gazette to be diffused in every direction.... If a party to a suit at law, ... was to practice in this manner he would merit punishment." (Plumer to Smith, March 11, 1804, Plumer MSS. Lib. Cong.)

[476] See _supra_, chap. I. For the articles of impeachment see _Annals_, 8th Cong. 2d Sess. 85-88; _Chase Trial_, 10-11.

The Republicans, for a time, contemplated the impeachment of Richard Peters, Judge of the United States Court for the District of Pennsylvania, who sat with Chase during the trial of Fries. (_Annals_, 8th Cong. 1st Sess. 823-24, 850, 873-74.) But his name was dropped because he had not "so acted in his judiciary capacity as to require the interposition of the Constitutional powers of this House." (_Ib._ 1171.)

Peters was terrified and turned upon his fellow judge. He showered Pickering and other friends with letters, complaining of the conduct of his judicial associate. "If I am to be immolated let it be with some other Victim--or for my own Sins." (Peters to Pickering, Jan. 26, 1804, Pickering MSS. Mass. Hist. Soc.)

[477] J. Q. Adams to his father, March 14, 1805, _Writings, J. Q. A._: Ford, III, 116.

[478] Dec. 20, 1804, _Memoirs, J. Q. A._: Adams, I, 321.

[479] Plumer to Cogswell, Jan. 4, 1805, Plumer MSS. Lib. Cong.; and see Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. _loc. cit._

[480] Bayard to Harper, Jan. 30, 1804, _Bayard Papers_: Donnan, 160.

[481] Pickering to Lyman, March 14, 1804, Lodge: _Cabot_, 450; also _N.E. Federalism_: Adams, 359.

[482] Ames to Dwight, Jan. 20, 1805, Ames, I, 338.

[483] The Yazoo fraud. No other financial scandal in our history equaled this, if one considers the comparative wealth and population of the country at the times other various great frauds were perpetrated. For an account of it, see _infra_, chap. X.

[484] For Randolph's frantic speech on the Yazoo fraud and Marshall's opinion in Fletcher _vs_. Peck, see _infra_, chap. X.

[485] This form was adopted in the trial of Judge Pickering. See _Annals_, 8th Cong. 1st Sess. 319.

[486] See Plumer, 323.

[487] Channing: _U.S._ IV, 287.

[488] Marshall to James M. Marshall, April 1, 1804, MS.

[489] William Marshall. See _infra_, 191-92.

[490] John Wickham, leader of the Richmond bar and one of Marshall's intimate friends.

[491] See _supra_, chap. I; and _infra_.

[492] See 1 Kings, XII, 10.

[493] Marshall to Chase, Jan. 23, 1804, Etting MSS. Pa. Hist. Soc.

[494] See _infra_, 192-96.

[495] See _supra_, chap. III, 113.

[496] "M^r Burr had the sole power of making the arrangements ... for the trial." (Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. Lib. Cong.)

[497] _Annals_, 8th Cong. 2d Sess. 100; _Chase Trial_, 2-5.

[498] Plumer to Norris, Nov. 7, 1804, Plumer, 329.

[499] See _infra_, chap. VI.

[500] See J. Q. Adams to his father, Jan. 5, 1805, _Writings, J. Q. A._: Ford, III, 104.

[501] Plumer, 274. "John S. Sherburne, Jonathan Steele, Michael McCleary and Richard Cutts Shannon were the principal witnesses against Pickering. Sherburne was appointed Judge [in Pickering's place]; Steele, District Attorney; McCleary, Marshal; and Shannon, Clerk of the Court.... Steele, expecting to have been Judge refused to accept his appointment, assigning as the reason his agency in the removal of Pickering."

[502] Plumer, 329-30; and see Adams: _U.S._ II, 220.

[503] Nov. 26, 1804, _Memoirs, J. Q. A._: Adams, I, 317-18; and Adams, _U.S._ II, 220-22.

"Burr is flattered and feared by the administration." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.; and Plumer to Wilson, Dec. 7, 1804, Plumer MSS. _loc. cit._)

[504] Davis, II, 360; also Adams: _U.S._ 218-44.

"It must be acknowledged that Burr has displayed much ability, and since the first day I have seen nothing of partiality." (Cutler to Torrey, March 1, 1805, Cutler: _Life, Journals and Correspondence of Manasseh Cutler_, II, 193.)

At the beginning of the trial, however, Burr's rigor irritated the Senate: "Mr. Burr is remarkably testy--he acts more of the tyrant--is impatient, passionate--scolds--he is in a rage because we do not sit longer." (Plumer, Feb. 8, 1805, "Diary," Plumer MSS. Lib. Cong.)

"Just as the time for adjourning to morrow was to be put ... Mr. Burr said he wished to inform the Senate of some irregularities that he had observed in the Court.

"Some of the Senators as he said during the trial & while a witness was under examination walked between him & the Managers--others eat apples--& some eat cake in their seats.

"Mr. Pickering said he eat an apple--but it was at a time when the President had retired from the chair. Burr replied he did not mean him--he did not see him.

"Mr. Wright said he eat cake--he had a just right to do so--he was faint--but he disturbed nobody--He never would submit to be schooled & catechised in this manner.

"At this instance a motion was made by Bradley, who also had eaten cake, for an adjournment. Burr told Wright he was not in order--sit down. The Senate adjourned--& I left Burr and Wright scolding.

"Really, _Master Burr_, you need a ferule, or birch to enforce your lectures on polite behavior!" (_Ib._ Feb. 12, 1805; also _ib._ Jan. 2, 1805.) Burr was sharply criticized by the _Washington Federalist_, January 8, for his rude conduct at the beginning of the trial.

[505] Plumer to Sheafe, Jan. 1805, Plumer, 330-31.

[506] _Annals_, 8th Cong. 2d Sess. 92; _Chase Trial_, 4.

[507] Dwight: _Signers of the Declaration of Independence_, 245-52.

[508] Hudson: _Journalism in the United States, 1690-1872_, 214; and see Story to Bramble, June 10, 1807, Story, I, 154.

[509] "In person, in manners, in unwieldy strength, in severity of reproof, in real tenderness of heart; and above all in intellect," he was "the living, I had almost said the exact, image of Samuel Johnson." (Story to Fay, Feb. 25, 1808, Story, I, 168.)

Chase's career had been stirring and important. Carefully educated by his father, an Episcopal clergyman, and thoroughly grounded in the law, he became eminent at the Maryland bar at a very early age. From the first his aggressive character asserted itself. He was rudely independent and, as a member of the Maryland House of Burgesses, treated the royal governor and his Tory partisans with contemptuous defiance. When the British attempted to enforce the Stamp Act, he joined a band of high-spirited young patriots who called themselves "The Sons of Liberty," and led them in their raids upon public offices, which they broke open, seizing and destroying the stamps and burning in effigy the stamp distributor.

His violent and fearless opposition to British rule and officials made young Chase so popular that he was elected as one of the five Maryland delegates to the first Continental Congress that assembled during the winter of 1774. He was reëlected the following year, and was foremost in urging the measures of armed defense that ended in the appointment of Washington as Commander-in-Chief of the American forces. Disregarding the instructions of his State, Chase hotly championed the adoption of the Declaration of Independence, and was one of the signers of that document.

On the floor of Congress he denounced a member as a traitor--one Zubly, a Georgia parson--who in terror fled the country. Chase continued in the Continental Congress until 1778 and was appointed a member of almost every important committee of that body. He became the leader of his profession in Maryland, was appointed Chief Justice of the Criminal Court of Baltimore, and elected a member of the Maryland Convention, called to ratify the National Constitution. Thereafter, he was made Chief Justice of the Supreme Court of the State. In 1796, President Washington appointed Chase as Associate Justice of the National Supreme Court of which he was conceded to be one of the ablest members. (Dwight, 245-52.)

[510] See Plumer to his brother, Feb. 25, 1805, Plumer MSS. Lib. Cong.

[511] _Maryland Historical Society Fund-Publication No. 24_, p. 20. Burr told Key that "he must not appear as counsel with his loose coat on." (Plumer, Feb. 11, 1805, "Diary," Plumer MSS. Lib. Cong.)

[512] Adams: _U.S._ II, 227-28. Bayard strongly urged Chase to have no counsel, but to defend himself. (Bayard to Harper, Jan. 30, 1804, _Bayard Papers_: Donnan, 159-60.)

[513] See Story's description of Martin three years later, Story to Fay, Feb. 16, 1808, Story, I, 163-64.

Luther Martin well illustrates the fleeting nature of the fame of even the greatest lawyers. For two generations he was "an acknowledged leader of the American bar," and his preëminence in that noble profession was brightened by fine public service. Yet within a few years after his death, he was totally forgotten, and to-day few except historical students know that such a man ever lived.

Martin began his practice of the law when twenty-three years of age and his success was immediate and tremendous. His legal learning was prodigious--his memory phenomenal.

Apparently, Martin was the heaviest drinker of that period of heavy drinking men. The inexplicable feature of his continuous excesses was that his mighty drinking seldom appeared to affect his professional efficiency. Only once in his long and active career did intoxication interfere with his work in court. (See _infra_, 586.)

Passionate in his loves and hates, he abhorred Jefferson with all the ardor of his violent nature; and his favorite denunciation of any bad man was, "Sir! he is as great a scoundrel as Thomas Jefferson."

For thirty years Martin was the Attorney-General of Maryland. He was the most powerful member of his State in the Convention that framed the National Constitution which he refused to sign, opposing the ratification of it in arguments of such signal ability that forty years afterward John C. Calhoun quarried from them the material for his famous Nullification speeches.

When, however, the Constitution was ratified and became the supreme law of the land, Martin, with characteristic wholeheartedness, supported it loyally and championed the Administrations of Washington and Adams.

He was the lifelong friend of the impeached justice, to whom he owed his first appointment as Attorney-General of Maryland as well as great assistance and encouragement in the beginning of his career. Chase and he were also boon companions, each filled with admiration for the talents and attainments of the other, and strikingly similar in their courage and fidelity to friends and principles. So the lawyer threw himself into the fight for the persecuted judge with all his astonishing strength.

When, in his old age, he was stricken with paralysis, the Maryland Legislature placed a tax of five dollars annually on all lawyers for his support. After Martin's death the bench and bar of Baltimore passed a resolution that "we will wear mourning for the space of thirty days." (_American Law Review_, I, 279.)

No biography of Martin has ever been written; but there are two excellent sketches of his life, one by Ashley M. Gould in _Great American Lawyers_: Lewis, II, 3-46; and the other by Henry P. Goddard in the _Md. Hist. Soc. Fund. Pub. No. 24._

[514] _Annals_, 8th Cong. 2d Sess. 160-61. The case to which Randolph refers was that of the United States _vs._ Thomas Logwood, indicted in April, 1801, for counterfeiting. Logwood was tried in the United States Circuit Court at Richmond during June, 1804. Marshall, sitting with District Judge Cyrus Griffin, presided. Notwithstanding Marshall's liberality, Logwood was convicted and Marshall sentenced him to ten years' imprisonment at hard labor. (Order Book No. 4, 464, Records, U.S. Circuit Court, Richmond.)

[515] _Annals_, 8th Cong. 2d Sess. 163-65; _Chase Trial_, 18. Randolph disgusted the Federalists. "This speech is the most feeble--the most incorrect that I ever heard him make." (Plumer, Feb. 9, 1805, "Diary," Plumer MSS. Lib. Cong.)

[516] Two witnesses to the Baltimore incident, George Reed and John Montgomery, committed their testimony to memory as much "as ever a Presbyterian clergyman did his sermon--or an Episcopalian his prayer." (Plumer, Feb. 14, 1805, "Diary," Plumer MSS. Lib. Cong.)

[517] See _supra_, chap. I.

[518] _Annals_, 8th Cong. 2d Sess. 203-05; _Chase Trial_, 36-37.

[519] Plumer, Feb. 11, 1805, "Diary," Plumer MSS. Lib. Cong.

[520] _Annals_, 8th Cong. 2d Sess. 200; _Chase Trial_, 35.

[521] See _supra_, chap. I.

[522] _Annals_, 8th Cong. 2d Sess. 207. John Quincy Adams's description of all of the evidence is important and entertaining:

"Not only the casual expressions dropped in private conversations among friends and intimates, as well as strangers and adversaries, in the recess of a bed-chamber as well as at public taverns and in stage coaches, had been carefully and malignantly laid up and preserved for testimony on this prosecution; not only more witnesses examined to points of _opinion_, and called upon for discrimination to such a degree as to say whether the deportment of the Judge was _imperative_ or _imperious_, but hours of interrogation and answer were consumed in evidence to _looks_, to _bows_, to tones of voice and modes of speech--to prove the insufferable grievance that Mr. Chase had more than once raised a laugh at the expense of Callender's counsel, and to ascertain the tremendous fact that he had accosted the ATTORNEY GENERAL _of Virginia_ by the appellation of _Young Gentleman_!!

"If by thumbscrews, the memory of a witness trace back for a period of five years the features of the Judge's face, it could be darkened with a frown, it was to be construed into rude and contumelious treatment of the Virginia bar; if it was found lightened with a smile, 'tyrants in all ages had been notorious for their pleasantry.'

"In short, sir, Gravity himself could not keep his countenance at the nauseating littlenesses which were resorted to for proof of atrocious criminality, and indignation melted into ridicule at the puerile perseverance with which _nothings_ were accumulated, with the hope of making _something_ by their multitude.

"All this, however, was received because Judge Chase would not suffer his counsel to object against it. He indulged his accusers with the utmost licence of investigation which they ever derived [_sic_], and contented himself with observing to the court that he expected to be judged upon the _legal_ evidence in the case." (J. Q. Adams to his father, March 8, 1805, _Writings, J. Q. A._: Ford, III, 112-13.)

[523] This was the fourth member of the Marshall family upon whom offices were bestowed while Marshall was Secretary of State. (See vol. II, 560, of this work.)

[524] _Annals_, 8th Cong. 2d Sess. 251-62; _Chase Trial_, 65-69. "I was unable to give credence to his [Heath's] testimony." (Plumer, Feb. 12, 1805, "Diary," Plumer MSS. Lib. Cong.) Although Heath's story was entirely false, it has, nevertheless, found a place in serious history.

Marshall's brother made an excellent impression on the Senate. "His answers were both prompt & lucid--There was a frankness, a fairness & I will add a firmness that did him much credit. His testimony was [on certain points] ... a complete defense of the accused." (_Ib._ Feb. 15, 1805.)

[525] Harvie's son, Jacquelin B. Harvie, married Marshall's daughter Mary. (Paxton: _Marshall Family_, 100.)

[526] _Annals_, 8th Cong. 2d Sess. 262-67; _Chase Trial_, 71.

[527] Plumer, Feb. 16, 1805, "Diary," Plumer MSS. Lib. Cong.

[528] Feb. 19, 1805, _Memoirs, J. Q. A._: Adams, I, 354.

Chase did not leave Washington, and was in court when some of the arguments were made. (See Chase to Hopkinson, March 10, 1805; Hopkinson MSS. in possession of Edward P. Hopkinson, Phila.)

[529] Feb. 13, 1805, _Memoirs, J. Q. A._: Adams, I, 351.

[530] _Ib._ The motion to admit the public was carried by one vote only. (Plumer, Feb. 13, 1805, "Diary," Plumer MSS. Lib. Cong.)

[531] Feb. 13, 1805, _Memoirs, J. Q. A._: Adams, I, 353.

[532] Feb. 20, 1805, _ib._ 355.

[533] Cutler, II, 183; also _Annals_, 8th Cong. 2d Sess. 313-29; _Chase Trial_, 101-07.

[534] Plumer, Feb. 20, 1805, "Diary," Plumer MSS. Lib. Cong.

[535] Cutler, II, 183.

[536] _Annals_, 8th Cong. 2d Sess. 329-53; _Chase Trial_, 107 _et seq._

[537] _Memoirs, J. Q. A._: Adams, I, 355-56.

[538] Plumer, Feb. 21, 1805, "Diary," Plumer MSS. Lib. Cong.

[539] Adams: _U.S._ II, 231. Even Randolph praised him. (_Annals_, 8th Cong. 2d Sess. 640.)

[540] _Annals_, 8th Cong. 2d Sess. 354-94; _Chase Trial_, 116-49.

[541] Feb. 21, 1805, _Memoirs, J. Q. A._: Adams, I, 356.

"The effect on the auditory [was] prodigiously great." (Cutler, II, 184.)

"His argument ... was one of the most able ... I ever heard." (Plumer, Feb. 21, 1805, "Diary," Plumer MSS. Lib. Cong.)

[542] Feb. 22, 1805, _Memoirs, J. Q. A._: Adams, I, 356.

[543] _Annals_, 8th Cong. 2d Sess. 394-413; see also _Chase Trial_, 149-62; and Cutler, II, 184.

[544] _Annals_, 8th Cong. 2d Sess. 413-29; _Chase Trial_, 162-72.

[545] _Annals_, 8th Cong. 2d Sess. 429-82; _Chase Trial_, 173 _et seq._

[546] _Annals_, 8th Cong. 2d Sess. 483.

[547] _Ib._ 484-87.

[548] See résumé of Franklin's indictment of the press in vol. I, 268-69, of this work.

[549] _Annals_, 8th Cong. 2d Sess. 488; _Chase Trial_, *223.

[550] "Mr. Martin really possesses much legal information & a great fund of good humour, keen satire & poignant wit ... he certainly has talents." (Plumer, Feb. 23, 1805, "Diary," Plumer MSS. Lib. Cong.)

[551] _Annals_, 8th Cong. 2d Sess. 489; _Chase Trial_, *224.

[552] _Annals_, 8th Cong. 2d Sess. 556; _Chase Trial_, *205-44.

[553] _Annals_, 8th Cong. 2d Sess. 560-62; _Chase Trial_, 237 _et seq._

[554] See Jefferson to Hay, _infra_, chap. VIII.

[555] See _infra_, chap. X.

[556] _Memoirs, J. Q. A._: Adams, I, 358.

[557] _Annals_, 8th Cong. 2d Sess. 582; _Chase Trial_, 237-43.

[558] _Annals_, 8th Cong. 2d Sess. 583.

This was an under-statement of the facts; for the first time the celebration of Washington's birthday was abandoned in the National Capital. (Plumer, 326.) Plumer says that this was done because the celebration might hurt Chase, "for there are senators who for the veriest trifles may be brought to vote against him." (Feb. 22, 1805, "Congress," Plumer MSS. Lib. Cong.)

[559] _Annals_, 8th Cong. 2d Sess. 583-84; _Chase Trial_, 243-56.

[560] _Annals_, 8th Cong. 2d Sess. 585-87.

[561] Rodney here refers to the Republican allegation that Chase tried to secure appointment as Chief Justice by flattering Adams through charges to juries, rulings in court, and speeches on the stump.

[562] John Jay to England and Oliver Ellsworth to France. (See vol. II, 113, 502, of this work.)

[563] _Annals_, 8th Cong. 2d Sess. 587-89.

[564] _Memoirs, J. Q. A._: Adams, I, 359.

[565] _Annals_, 8th Cong. 2d Sess. 583-641; _Chase Trial_, 243-56.