The Life of John Marshall
Chapter 155 : Rodney was for a "rational independence of the Judiciary," but not for the &

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 a.s.sociate 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 fas.h.i.+on Rodney began a song of praise of Jefferson, for the beneficence of whose Administration "the lamentable annals of mankind afford no example." After pa.s.sing through many "citadels" and "Scean gates," and other forms of rhetorical architecture, he finally discovered Chase "seated in a curricle of pa.s.sion" which the Justice had "driven on, Phaeton-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 Const.i.tution 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 Const.i.tutional 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 pa.s.sed within the previous ten days, as the Const.i.tution authorized him to do, so that it would be a physical impossibility for the two Houses to pa.s.s 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 bl.u.s.tering 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 a.s.sisted, 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 ill.u.s.trious 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 a.s.sociate."[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 pa.s.sage 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 ma.s.s of auditors filled every inch of s.p.a.ce in the Senate Chamber.[576]

Down the narrow pa.s.sageway 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 Ma.s.sachusetts! 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 p.r.o.nounced, 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, Mitch.e.l.l 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 const.i.tutional 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 pa.s.sed.[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, rus.h.i.+ng from the scene of defeat, he flew to the floor of the House. There he offered an amendment to the Const.i.tution 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 Const.i.tution 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 Hamps.h.i.+re 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 cla.s.s 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 Const.i.tution." (_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. Ma.s.s. Hist. Soc.)