The Life of John Marshall Volume III Part 24

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

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

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

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

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

[441] Bayard to Ba.s.sett, Feb. 12, 1802, _Bayard Papers_: Donnan, 148.

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

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

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

[445] 2 Cranch, 358-405.

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

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

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

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

(_Addison Trial_, 101-43.)

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

[451] Jefferson's Message was transmitted to the House, February 4, 1803, nine days after the conviction of Addison. It enclosed a "letter and affidavits" setting forth Pickering's conduct on the bench in the case of the s.h.i.+p Eliza, and suggested that "the Const.i.tution has confided [to the House] a power of inst.i.tuting proceedings of redress."

(_Annals_, 7th Cong. 2d Sess. 460.)

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

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

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

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

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

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

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

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

(_Ib._)

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

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

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

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

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

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

[465] Senators John Armstrong of New York, Stephen R. Bradley of Vermont, and David Stone of North Carolina. Jonathan Dayton of New Jersey and Samuel White of Delaware, Federalists, also withdrew.

(_Annals_, 8th Cong. 1st Sess. 366.) And see _Memoirs, J. Q. A._: Adams, I, 308-09; J. Q. Adams to his father, March 8, 1805, _Writings, J. Q.

A._: Ford, III, 110; Plumer to Park, March 13, 1804, Plumer MSS. Lib.

Cong.

Senator John Brown of Kentucky, a Republican, "could not be induced to join the majority, but, unwilling to offend them, he obtained & has taken a leave of absence." (Plumer to Morse, March 10, 1804, Plumer MSS.

Lib. Cong.) Senator Brown had been elected President _pro tem._ of the Senate, January 23, 1804.

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

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

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

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

Cong.)

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

[468] June 13, 1803.

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

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

[471] Jefferson to Nicholson, May 13, 1803, _Jefferson Writings_: Was.h.i.+ngton, IV, 484.

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

[473] Dodd, 187-88.

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

[475] Chase "is very obnoxious to the _powers that be_ & must be _denounced_, but articles will not be exhibited agt him this session.

The Accusers have collected a volume of exparte evidence against him, printed & published it in pamphlets, & now it is publis.h.i.+ng in the Court gazette to be diffused in every direction.... If a party to a suit at law, ... was to practice in this manner he would merit punishment."

(Plumer to Smith, March 11, 1804, Plumer MSS. Lib. Cong.)