The Life of John Marshall
Chapter 152 : They were sitting before the blazing logs in the wide fireplace that warmed the Senate

They were sitting before the blazing logs in the wide fireplace that warmed the Senate Chamber. John Randolph, the Republican leader of the House, and Israel Smith, a Republican Senator from Vermont, were also in the group. The talk was of the approaching trial of Samuel Chase, a.s.sociate Justice of the Supreme Court of the United States, whom the House had impeached for high crimes and misdemeanors. Giles and Randolph were, "with excessive earnestness," trying to convince the doubting Vermont Senator of the wisdom and justice of the Republican method of ousting from the National Bench those judges who did not agree with the views of the Republican Party.

Giles scorned the idea of "an _independent_ judiciary!" The independence claimed by the National judges was "nothing more nor less than an attempt to establish an aristocratic despotism in themselves." The power of the House to impeach, and of the Senate to try, any public officer was unlimited.

"If," continued Giles, "the Judges of the Supreme Court should dare, _as they had done_, to declare acts of Congress unconst.i.tutional, or to send a mandamus to the Secretary of State, _as they had done_, it was the undoubted right of the House to impeach them, and of the Senate to remove them for giving such opinions, however honest or sincere they may have been in entertaining them." He held that the Senate, when trying an impeached officer, did not act as a court. "Removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the Nation."[432]

Thus Giles made plain the Republican objective. Judges were to be removed for any cause that a dominant political party considered to be sufficient.[433] The National Judiciary was, in this manner, to be made responsive to the popular will and responsible to the representatives of the people in the House and of the States in the Senate.[434]

Giles, who was now Jefferson's personal representative in the Senate,[435] as he had been in the House, bore down upon his mild but reluctant fellow partisan from Vermont in a "manner dogmatical and peremptory." Not only must the aggressive and irritating Chase be stripped of his robes, but the same fate must fall upon "all other Judges of the Supreme Court except the one last appointed,"[436] who, being a Republican, was secure.[437] Adams rightly concluded that the plan was to "have swept the supreme judicial bench clean at a stroke."[438]

For a long time everybody had understood that the impeachment of Chase was only the first step in the execution of the Republican plan to replace with Republicans Marshall and the four Federalist a.s.sociate Justices. "The judges of the Supreme Court are all Federalists," wrote Pickering six weeks before Johnson's appointment. "They stand in the way of the ruling power.... The Judges therefore, are, if possible, to be removed," by impeachment.[439]

Nearly two years before, Senator William Plumer of New Hamps.h.i.+re had accurately divined the Republican plan: "The judges of the Supreme Court must fall," he informed Jeremiah Mason. "They are _denounced_ by the Executive, as well as the House. They must be removed; they are obnoxious unyielding men; & why should they remain to awe & embarra.s.s the administration? Men of more flexible nerves can be found to succeed them. Our affairs seem to approach an important crisis."[440] The Federalists rightly believed that Jefferson was the directing mind in planning and effecting the subjugation of the National Judiciary. That, said Bayard, "has been an object on which Mr. Jefferson has long been resolved, at least ever since he has been in office."[441]

[Ill.u.s.tration]

John Marshall especially must be overthrown.[442] He had done all the things of which Giles and the Republicans complained. He had "dared to declare an act of Congress unconst.i.tutional," had "dared" to order Madison to show cause why he should not be compelled to do his legal duty. Everybody was at last awake to the fact that Marshall had become the controlling spirit of the Supreme Court and of the whole National Judiciary.

Every one knew, too, that he was the most determined Nationalist in the entire country, and that Jefferson and the Republican Party had no more unyielding enemy than the Chief Justice. And he had shown by his management of the Supreme Court and by his opinion in Marbury _vs._ Madison, how powerful that tribunal could be made. The downfall of Samuel Chase was a matter of small importance compared with the removal of John Marshall.

"They hate Marshall, Paterson, etc. worse than they hate Chase because they are men of better character," a.s.serted Judge Jeremiah Smith of New Hamps.h.i.+re. "To be safe in these times good men must not only resign their offices but they must resign their good names.... They will be obnoxious as long as they retain _either_. If they will neither die nor resign they give Mr J the trouble of correcting the _procedure_.... Tell me what the judges say--are they frightened?" he anxiously inquired of Plumer.[443] Frightened they were--and very badly frightened. Even John Marshall, hitherto imperturbable and dauntless, was shaken.[444]

In addition to his "heretical" opinion in Marbury _vs._ Madison, Marshall had given the Republicans, and Jefferson especially, another cause for complaint. A year after the decision of that case, he had again gone out of his way to announce from the Supreme Bench the fallacy of Jefferson's Const.i.tutional views and the soundness of the Nationalist theory. During the February term of the Supreme Court for the year 1804, that tribunal, in the case of the United States _vs._ Fisher,[445] was called upon to decide whether the United States was a preferred creditor of an insolvent, under the Bankruptcy Act of 1800, which Marshall had helped to draw.[446] Among other objections, it was suggested by counsel for Fisher, the insolvent, that the Bankruptcy Law was unconst.i.tutional and that the priority which that act gave the Nation over other creditors of the bankrupt would prevent the States from making similar laws for their own protection.

But, said Marshall, this is "the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of the United States extends.... The Const.i.tution did not prohibit Congress" from enacting a bankruptcy law and giving the Nation preference as a creditor. On the contrary, Congress was expressly authorized "to make all laws which shall be necessary and proper to carry into execution the powers vested by the Const.i.tution in the National Government." To say that "no law was authorized which was not indispensably necessary ... would produce endless difficulties....

Congress must possess the choice of means and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the Const.i.tution."

This was an emphatic denial of Jefferson's famous opinion on the power of Congress to charter a bank, and an outright a.s.sertion of the views of Hamilton on that celebrated question.[447] The case could have been decided without such an expression from the court, but it presented an opportunity for a judicial statement of liberal construction which might not soon come again,[448] and Marshall availed himself of it.

For two years no part of the Republican plans against the Judiciary had miscarried. Close upon the very day when John Breckenridge in the Senate had moved to repeal the National Judiciary Act of 1801, a pet.i.tion signed by the enraged Republicans of Alleghany County, Pennsylvania, had been sent to the Legislature of that State, demanding the impeachment of Alexander Addison; and almost simultaneously with the pa.s.sage of the Judiciary Repeal Act of Congress, the Pennsylvania House of Representatives transmitted to the State Senate articles charging the able but arrogant Federalist judge with high crimes and misdemeanors.

Addison's trial speedily followed; and while the evidence against him, viewed through the perspective of history, seems trivial, the Republican Pennsylvania Senate p.r.o.nounced judgment against him and deposed him from the bench. With notable ability, Addison conducted his own defense. He made a powerful speech which is a cla.s.sic of conservative philosophy.[449] But his argument was unavailing. The Republican theory, that a judge might be deposed from office for any conduct or opinion of which the Legislature disapproved, was ruthlessly carried out.[450]

Almost as soon as Congress convened after the overthrow of the obnoxious Pennsylvania Federalist judge, the Republicans in the National House, upon representations from Jefferson, took steps to impeach John Pickering, Judge of the United States Court for the District of New Hamps.h.i.+re.[451] This judge had been hopelessly insane for at least three years and, as one result of his mental and nervous malady, had become an incurable drunkard.[452] In this condition he had refused to hear witnesses for the Government in the case of the s.h.i.+p Eliza, seized for violation of the revenue laws. He peremptorily ordered the vessel returned to its captain, and finally declined to allow an appeal from his decree. All this had been done with ravings, cursings, and crazed incoherences.[453]

That he was wholly incapacitated for office and unable to perform any act requiring intelligence was conceded by all. But the Const.i.tution provided no method of removing an officer who had become insane.[454]

This defect, however, gave the Republicans an ideal opportunity to put into practice their theory that impeachment was unrestricted and might be applied to any officer whom, for any reason, two thirds of the Senate deemed undesirable. "If the facts of his denying an appeal & of his intoxication, as stated in the impeachment, are proven, that will be sufficient cause for removal without further enquiry," a.s.serted Jefferson when a.s.sured that Pickering was insane, and when asked "whether insanity was good cause for impeachment & removal from office."[455]

The demented judge did not, of course, appear at his trial. Instead, a pet.i.tion by his son was presented, alleging the madness of his father, and praying that evidence to that effect be received by the Senate.[456]

This plea was stoutly resisted, and for two days the question was debated. "The most persevering and determined opposition is made against having evidence and counsel to prove the man insane," records John Quincy Adams, "only from the fear, that if insanity should be proved, he cannot be convicted of _high crimes and misdemeanors_ by acts of decisive madness."[457] Finally the determined Republicans proceeded to the trial of the insane judge for high crimes and misdemeanors, evidence of his dethroned reason to be received "in mitigation."[458] In immense disgust the House managers withdrew, because "the Senate had determined _to hear evidence_" that the accused person was insane. Before they returned, they publicly denounced the Senators for their leniency; and thus Republican discipline was restored.[459]

Jefferson was impatient. "It will take two years to try this impeachment," he complained to Senator Plumer. "The Const.i.tution ought to be altered," he continued, "so that the President should be authorized to remove a Judge from office, on the address of the two Houses."[460] But the exasperated Republicans hastened the proceedings; and the trial did not consume two weeks all told.

If an insane man should be condemned, "it will not hereafter be necessary," declared Senator Samuel Smith of Maryland, "that a man should be guilty of high crimes and misdemeanors," the commission of which was the only Const.i.tutional ground for impeachment. Senator Jonathan Dayton of New Jersey denounced the whole proceeding as "a mere mockery of a trial."[461] Senator John Quincy Adams, in the flurry of debate, a.s.serted that he should "speak until [his] mouth was stopped by force."[462] Senator Nicholas of Virginia shouted "Order! order! order!"

when Samuel White of Delaware was speaking. So furious became the altercation that a duel seemed possible.[463] No delay was permitted and, on March 12, 1804, the demented Pickering was, by a strictly partisan vote of 19 to 7,[464] adjudged guilty of high crimes and misdemeanors.

An incident happened which was prophetic of a decline in the marvelous party discipline that had kept the Republicans in Senate and House in solid support of the plans of the leaders. Three Republican Senators left the Chamber in order to avoid the balloting.[465] They would not adjudge an insane man to be guilty of high crimes and misdemeanors, but they were not yet independent enough to vote against their party.[466]

This, however, did not alarm the Republican managers. They instantly struck the next blow upon which they had determined more than two years before. Within an hour after John Pickering was convicted the House voted to impeach Samuel Chase.

Marshall's irascible a.s.sociate on the Supreme Bench had given the Republicans a new and serious cause for hostilities against him. In less than two months after Marshall had delivered the unanimous opinion of the Supreme Court in Marbury _vs._ Madison, Justice Chase, in charging the grand jury at Baltimore, denounced Republican principles and mercilessly a.s.sailed Republican acts and purposes.

This judicial critic of democracy told the grand jury that "the bulk of mankind are governed by their pa.s.sions, and not by reason....

The late alteration of the federal judiciary ... and the recent change in our state const.i.tution, by the establis.h.i.+ng of universal suffrage, ... will ... take away all security for property and personal liberty ... and our republican const.i.tution will sink into a mobocracy, the worst of all popular governments."

Chase condemned "the modern doctrines by our late reformers, that all men, in a state of society, are ent.i.tled to enjoy equal liberty and equal rights, [which] have brought this mighty mischief upon us";--a mischief which he feared "will rapidly progress, until peace and order, freedom and property, shall be destroyed.... Will justice be impartially administered by judges dependent on the legislature for their ...

suport? Will liberty or property be protected or secured, by laws made by representatives chosen by electors, who have no property in, or a common interest with, or attachment to, the community?"[467]

Burning with anger, a young Republican member of the Maryland Legislature, John Montgomery, who had listened to this judicial tirade, forthwith savagely denounced Chase in the _Baltimore American_.[468] He demanded that the Justice be impeached and removed from the bench.[469]

Montgomery hastened to send to the President[470] a copy of the paper.

Jefferson promptly wrote Nicholson: "Ought this seditious and official attack on the principles of our Const.i.tution, and on the proceedings of a State, go unpunished? And, to whom so pointedly as yourself will the public look for the necessary measures?"

But Jefferson was not willing to appear openly. With that uncanny power of divining political currents to which coa.r.s.er or simpler minds were oblivious, he was conscious of the uneasiness of Northern Republicans over ruthless impeachment and decided not to become personally responsible. "For myself," he cautioned Nicholson, "it is better that I should not interfere."[471]

Upon the advice of Nathaniel Macon,[472] Republican Speaker of the House, Nicholson concluded that it would be more prudent for another to take the lead. It was well understood that he was to have Chase's place on the Supreme Bench,[473] and this fact would put him at a disadvantage if he became the central figure in the fight against the aged Justice.

The procurement of the impeachment was, therefore, placed in the eager hands of John Randolph, that "unusual Phenomenon," as John Adams called him,[474] whose l.u.s.t for conspicuous leaders.h.i.+p was insatiable.

The Republican managers had carefully moulded public opinion into the belief that Chase was guilty of some monstrous crime. Months before articles of impeachment were presented to the House, _ex parte_ statements against him were collected, published in pamphlet form, and scattered throughout the country. To a.s.sure wider publicity all this "evidence" was printed in the Republican organ at Was.h.i.+ngton. The accused Justice had, therefore, been tried and convicted by the people before the charges against him were even offered in the House.[475]

This preparation of the popular mind accomplished, Chase was finally impeached. Eight articles setting forth the Republican accusations were laid before the Senate. Chase was accused of everything of which anybody had complained since his appointment to the Supreme Bench. His conduct at the trials of Fries and Callender was set forth with tedious particularity: in Delaware he had stooped "to the level of an informer"; his charge to the grand jury at Baltimore was an "intemperate and inflamatory political harangue"; he had prost.i.tuted his "high judicial character ... to the low purpose of an electioneering partizan"; his purpose was "to excite ... odium ... against the government."[476]

This curious scramble of fault-finding, which was to turn out so fatally for the prosecution, was the work of Randolph. When the conglomerate indictment was drawn, no one, except perhaps Jefferson, had the faintest idea that the Republican plan would miscarry; Randolph's multifarious charges pleased those in Virginia, Pennsylvania, Delaware, and Maryland who had first made them; they were so drawn as to lay a foundation for the a.s.sault which was to follow immediately. "These articles," wrote John Quincy Adams, "contained in themselves a virtual impeachment not only of Mr. Chase, but of all the Judges of the Supreme Court from the first establishment of the national judiciary."[477]

In an extended and carefully prepared speech, Senator Giles, who had drawn the rules governing the conduct of the trial in the Senate, announced the Republican view of impeachment which, he said, "is nothing more than an enquiry, by the two Houses of Congress, whether the office of any public man might not be better filled by another." Adams was convinced that "this is undoubtedly the source and object of Mr. Chase's impeachment, and on the same principle any officer may easily be removed at any time."[478]

From the time the House took action against Chase, the Federalists were in despair. "I think the Judge will be removed from Office," was Senator Plumer's opinion.[479] "The event of the impeachment is already determined," wrote Bayard before the trial began.[480] Pickering was certain that Chase would be condemned--so would any man that the House might impeach; such "measures ... are made questions of _party_, and therefore at all events to be carried into effect according to the wishes of the prime mover [Jefferson]."[481]

As the day of the arraignment of the impeached Justice approached, his friends were not comforted by their estimate of the public temper. "Our public ... will be as tame as Mr. Randolph can desire," lamented Ames.

"You may broil Judge Chase and eat him, or eat him raw; it shall stir up less anger or pity, than the Six Nations would show, if Cornplanter or Red Jacket were refused a belt of wampum."[482]

When finally Chase appeared before the bar of the Senate, he begged that the trial should be postponed until next session, in order that he might have time to prepare his defense. His appeal fell on remorseless ears; the Republicans gave him only a month. But this scant four weeks proved fatal to their purpose. Jefferson's wise adjustment of the greatest financial scandal in American history[483] came before the House during this interval; and fearless, honest, but impolitic John Randolph attacked the Administration's compromise of the Yazoo fraud with a ferocity all but insane in its violence. Literally screaming with rage, he a.s.sailed Jefferson's Postmaster-General who was lobbying on the floor of the House for the pa.s.sage of the President's Yazoo plan, and delivered continuous philippics against that polluted transaction out of which later came the third of John Marshall's most notable opinions.[484]

In this frame of mind, nervously exhausted, physically overwrought and troubled, the most brilliant and effective Congressional partisan leader of our early history came to the trial. Moreover, Randolph had broken with the Administration and challenged Jefferson's. .h.i.therto undisputed partisan autocracy. This was the first public manifestation of that schism in the Republican Party which was never entirely healed.

Such was the situation on the 4th of February, 1805, when the Senate convened to hear and determine the case of Samuel Chase, impeached by the House for high crimes and misdemeanors, to settle by the judgment it should render the fate of John Marshall as Chief Justice of the United States, and to fix forever the place of the National Judiciary in the scheme of American government.

"Oyez! Oyez! Oyez!--All persons are commanded to keep silence on pain of imprisonment, while the grand inquest of the nation is exhibiting to the Senate of the United States, sitting as a Court of Impeachments, articles of impeachment against Samuel Chase, a.s.sociate Justice of the Supreme Court of the United States."[485]

So cried the Sergeant-at-Arms of the National Senate when, in the Chase trial, John Marshall, the Supreme Court, and the whole National Judiciary were called to judgment by Thomas Jefferson, on the bleak winter day in dismal, scattered, and quarreling Was.h.i.+ngton. An audience crowded the Senate Chamber almost to the point of suffocation. There were present not only the members of Senate and House, the officers of the Executive departments, and the men and women of the Capital's limited society, but also scores of eminent persons from distant parts of the country.[486]

Among the spectators were John Marshall and the a.s.sociate Justices of the Supreme Court, thoroughly conscious that they, and the inst.i.tution of which they were the highest representatives, were on trial almost as much as their imprudent, rough, and outspoken fellow member of the Bench. It is not improbable that they were helping to direct the defense of Chase,[487] in which, as officials, they were personally interested, and in which, too, all their convictions as citizens and jurists were involved.

[Ill.u.s.tration: LETTER TO SAMUEL CHASE (_Facsimile_)]

Marshall, aroused, angered, and frightened by the articles of the impeachment, had written his brother a year before the Chase trial that they are "sufficient to alarm the friends of a pure, and, of course, an independent Judiciary, if, among those who rule our land there be any of that description."[488] At the beginning of the proceedings Chase had asked Marshall, who was then in Richmond, to write an account of what occurred at the trial of Callender, and Marshall promptly responded: "I instantly applied to my brother[489] & to Mr. Wickham[490] to state their recollection of the circ.u.mstances under which Colo. Taylors testimony was rejected.[491] They both declared that they remembred them very imperfectly but that they woud endeavor to recollect what pa.s.sed & commit it to writing. I shall bring it with me to Was.h.i.+ngton in february." Marshall also promised to bring other doc.u.ments.

"Admitting it to be true," continues Marshall, "that on legal principles Colo. Taylors testimony was admissible, it certainly const.i.tutes a very extraordinary ground for an impeachment. According to the antient doctrine a jury finding a verdict against the law of the case was liable to an attaint; & the amount of the present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.

"As, for convenience & humanity the old doctrine of attaint has yielded to the silent, moderate but not less operative influence of new trials, I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.