History of the United States During the Administrations of Thomas Jefferson/First/II:10
Chapter 10: Trial of Justice ChaseEdit
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. Besides these conciliatory compliments the President repeatedly invited Burr to dinner, and treated him with more attention than ever before; 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. 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, 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; impeachment need apply 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; 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 as 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 declaration 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 [by] 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 Hasting'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 States-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 Westminister 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 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 of 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, extra-judicial, 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 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 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 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."
The next day the Senate debated the form of its final judgment. 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, 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. 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." 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 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 was 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. 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 lifelong disappointment remained. Fifteen years later his regret was strongly expressed:—
- "The Judiciary of the United States," mourned the old ex-President, "is the subtle corps of sappers and miners constantly working underground to undermine the foundation 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 and 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.
- Jefferson to General Smith, May 4, 1806; Works, v. 13.
- Life of Plumer, p. 330.
- Diary of J. Q. Adams (Nov. 29, 30, 1804), i. 318.
- Boston Centinel, Jan. 9, 1805.
- Diary of J. Q. Adams (Dec. 21, 1804), i. 322.
- Ibid. (Dec. 24, 1804), i. 324, 325.
- Diary of J. Q. Adams (Feb. 27, 1805), i. 359.
- Ibid., i. 361, 362.
- Diary of J. Q. Adams (March 1, 1805), i. 364.
- Randolph to Nicholson, April 30, 1805; Adams's Randolph, p. 157.
- Diary of J. Q. Adams (March 2, 1805), i. 367.
- Jefferson to Thomas Ritchie, Dec. 25, 1820; Works, vii. 192.