The Life of John Marshall Volume III Part 22

"If," continued Marshall, "this is not considered tyrannical, oppressive and overbearing, I know nothing else that was so." It was usual for courts to hear counsel upon the validity of rulings "not solemnly p.r.o.nounced," and "by no means usual in Virginia to try a man for an offense at the same term at which he is presented"; although, said Marshall, "my practice, while I was at the bar was very limited in criminal cases."

"Did you ever hear Judge Chase apply any unusual epithets--such as '_young men_' or '_young gentlemen_'--to counsel?" inquired Randolph. "I have heard it so frequently spoken of since the trial that I cannot possibly tell whether my recollection of the term is derived from expressions used in court, or from the frequent mention since made of them." But, remarked Marshall, having thus adroitly placed the burden on the irresponsible shoulders of gossip, "I am rather inclined to think that I did hear them from the judge." Randolph then drew from Marshall the startling and important fact that William Wirt was "about thirty years of age and a widower."[526]

Senator Plumer, with evident reluctance, sets down in his diary a description from which it would appear that Marshall's manner affected the Senate most unfavorably. "John Marshall is the Chief Justice of the Supreme Court of the United States. I was much better pleased with the manner in which his brother testified than with him.

"The Chief Justice really discovered too much caution--too much fear--too much cunning--He ought to have been more bold--frank & explicit than he was.

"There was in his manner an evident disposition to accommodate the Managers. That dignified frankness which his high office required did not appear. A cunning man ought never to discover the arts of the _trimmer_ in his testimony."[527]

Plainly Marshall was still fearful of the outcome of the Republican impeachment plans, not only as to Chase, but as to the entire Federalist members.h.i.+p of the Supreme Court. His understanding of the Republican purpose, his letter to Chase, and his manner on the stand at the trial leave no doubt as to his state of mind. A Republican Supreme Court, with Spencer Roane as Chief Justice, loomed forbiddingly before him.

Chase was suffering such agony from the gout that, when the testimony was all in, he asked to be released from further attendance.[528] Six days before the evidence was closed, the election returns were read and counted, and Aaron Burr "declared Thomas Jefferson and George Clinton to be duly elected to the respective offices of President and Vice-President of the United States."[529] For the first time in our history this was done publicly; on former occasions the galleries were cleared and the doors closed.[530]

Throughout the trial Randolph and Giles were in frequent conference--judge and prosecutor working together for the success of the party plan.[531] On February 20 the arguments began. Peter Early of Georgia spoke first. His remarks were "chiefly declamatory."[532] He said that the conduct of Chase exhibited that species of oppression which puts accused citizens "at the mercy of _arbitrary and overbearing judges_." For an hour and a half he reviewed the charges,[533] but he spoke so badly that "most of the members of the other House left the chamber & a large portion of the spectators the gallery."[534]

George Was.h.i.+ngton Campbell of Tennessee argued "long and tedious[ly]"[535] for the Jeffersonian idea of impeachment which he held to be "a kind of an inquest into the conduct of an officer ... and the effects that his conduct ... may have on society." He a.n.a.lyzed the official deeds of Chase by which "the whole community seemed shocked....

Future generations are interested in the event."[536] He spoke for parts of two days, having to suspend midway in the argument because of exhaustion.[537] Like Early, Campbell emptied the galleries and drove the members of the House, in disgust, from the floor.[538]

Joseph Hopkinson then opened for the defense. Although but thirty-four years old, his argument was not surpa.s.sed,[539] even by that of Martin--in fact, it was far more orderly and logical than that of Maryland's great attorney-general. "We appear," began Hopkinson, "for an ancient and infirm man, whose better days have been worn out in the service of that country which now degrades him." The case was "of infinite importance," truly declared the youthful attorney. "The faithful, the scrutinizing historian, ... without fear or favor" will render the final judgment. The House managers were following the British precedent in the impeachment of Warren Hastings; but that celebrated prosecution had not been inst.i.tuted, as had that of Chase, on "a petty catalogue of frivolous occurrences, more calculated to excite ridicule than apprehension, but for the alleged murder of princes and plunder of empires"; yet Hastings had been acquitted.

In England only two judges had been impeached in half a century, while in the United States "seven judges have been prosecuted criminally in about two years." Could a National judge be impeached merely for "error, mistake, or indiscretion"? Absurd! Such action could be taken only for "an indictable offense." Thus Hopkinson stated the master question of the case. In a clear, closely woven argument, the youthful advocate maintained his ground.

The power of impeachment by the House was not left entirely to the "opinion, whim, or caprice" of its members, but was limited by other provisions of the fundamental law. Chase was not charged with treason, bribery, or corruption. Had any other "high crimes and misdemeanors"

been proved or even stated against him? He could not be impeached for ordinary offenses, but only for "high crimes and high misdemeanors."

Those were legal and technical terms, "well understood and defined in law.... A misdemeanor or a crime ... is an act committed or omitted, in violation of a _public_ law either forbidding or commanding it. By this test, let the respondent ... stand justified or condemned."

The very nature of the Senatorial Court indicated "the grade of offenses intended for its jurisdiction.... Was such a court created ... to scan and punish paltry errors and indiscretions, too insignificant to have a name in the penal code, too paltry for the notice of a court of quarter sessions? This is indeed employing an elephant to remove an atom too minute for the grasp of an insect."

Had Chase transgressed any State or National statute? Had he violated the common law? n.o.body claimed that he had. Could any judge be firm, unbiased, and independent if he might at any time be impeached "on the mere suggestions of caprice ... condemned by the mere voice of prejudice"? No! "If his nerves are of iron, they must tremble in so perilous a situation."

Hopkinson dwelt upon the true function of the Judiciary under free inst.i.tutions. "All governments require, in order to give them firmness, stability, and character, some permanent principle, some settled establishment. The want of this is the great deficiency in republican inst.i.tutions." In the American Government an independent, permanent Judiciary supplied this vital need. Without it "nothing can be relied on; no faith can be given either at home or abroad." It was also "a security from oppression."

All history proved that republics could be as tyrannical as despotisms; not systematically, it was true, but as the result of "sudden gust of pa.s.sion or prejudice.... If we have read of the death of a Seneca under the ferocity of a Nero, we have read too of the murder of a Socrates under the delusion of a Republic. An independent and firm Judiciary, protected and protecting by the laws, would have s.n.a.t.c.hed the one from the fury of a despot, and preserved the other from the madness of a people."[540] So spoke Joseph Hopkinson for three hours,[541] made brief and brilliant by his eloquence, logic, and learning.

Philip Barton Key of Was.h.i.+ngton, younger even than Hopkinson, next addressed the Senatorial Court. He had been ill the day before[542] and was still indisposed, but made an able speech. He a.n.a.lyzed, with painstaking minuteness, the complaints against his client, and cleverly turned to Chase's advantage the conduct of Marshall in the Logwood case.[543] Charles Lee then spoke for the defense; but what he said was so technical, applying merely to Virginia legal practice of the time, that it is of no historical moment.[544]

When, on the next day, February 23, Luther Martin rose, the Senate Chamber could not contain even a small part of the throng that sought the Capitol to hear the celebrated lawyer. If he "_only_ appeared in defense of a friend," said Martin, he would not be so gravely concerned; but the case was plainly of highest possible importance, not only to all Americans then living, but to "posterity." It would "establish a most important precedent as to future cases of impeachment." An error now would be fatal.

For what did the Const.i.tution authorize the House to impeach and the Senate to try an officer of the National Government? asked Martin. Only for "an indictable offense." Treason and bribery, specifically named in the Const.i.tution as impeachable offenses, were also indictable. It was the same with "other high crimes and misdemeanors," the only additional acts for which impeachment was provided. To be sure, a judge might do deeds for which he could be indicted that would not justify his impeachment, as, for instance, physical a.s.sault "provoked by insolence."

But let the House managers name one act for which a judge could be impeached that did not also subject him to indictment.

Congress could pa.s.s 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 pa.s.sage. 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 unconst.i.tutional"; 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 circ.u.mstances"; 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 gla.s.ses 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 "d.a.m.ned"

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 d.a.m.ned good bottle of wine, a d.a.m.ned good dinner, or a d.a.m.ned 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 repet.i.tion 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 pa.s.sage 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]

Caesar 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 fas.h.i.+onable amus.e.m.e.nt or dissipation."[558]

Rodney flattered Burr, whose conduct of the trial had been "an example worthy of imitation." He cajoled the Senators, whose att.i.tude 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."