Volume III Part 20 (1/2)

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.