Part 6 (2/2)
With equal cert.i.tude the court declared that it was the province and duty of the judiciary to say what the law is. ”Those who apply the rule to particular cases, must of necessity expound and interpret that rule.
If two laws conflict with each other, the courts must decide on the operation of each.” So if a law stood in opposition to the Const.i.tution, the court must decide which of these conflicting rules governs the case.
”This is of the very essence of judicial duty.” Moreover, the judges may not shut their eyes to the Const.i.tution and see only the law, for they are bound by oath to administer justice not according to the laws alone, but ”agreeably to the Const.i.tution and the laws of the United States.”
”Thus, the particular phraseology of the Const.i.tution of the United States confirms and strengthens the principle, supposed to be essential to all written const.i.tutions, that a law repugnant to the Const.i.tution is void; and that courts, as well as other departments, are bound by that instrument.”
On two other occasions the hostility of the Republican Administration provoked a trial of strength with the Federalist judiciary. The impeachment in 1804 of John Pickering, District Judge in New Hamps.h.i.+re, on charges of intoxication and habits unfitting him for his duties, amounted to little short of a tragedy. When the trial opened, Judge Pickering did not appear, but representations made by his son showed beyond a doubt that he was and had been for two years of unsound mind.
To convict a man of misdemeanors for which he was not morally responsible seemed a travesty on justice. Yet there was no other const.i.tutional device for removing him. Though Pickering never appeared in person, the managers for the House pressed the prosecution; and rather than leave the administration of justice to a demented judge, the Senate p.r.o.nounced the unhappy man ”guilty as charged,” and resolved that he should be removed from office.
On the same day that the Senate reached this monstrous decision, March 12, 1804, the House voted to impeach Justice Samuel Chase, of the Supreme Court. While the defiant words of Chief Justice Marshall in the Marbury case were still rankling in Jefferson's bosom, Justice Chase had gone out of his way to attack the Administration, in addressing a grand jury at Baltimore. The repeal of the Judiciary Act, he had declared, had shaken the independence of the national judiciary to its foundations.
”Our republican Const.i.tution,” said he, ”will sink into a mobocracy--the worst of all possible governments.” To appreciate the effect of this partisan outburst upon the President, one must recall that Chase was the judge who had presided at the trials of Fries and of Callender, and who had left the bench to electioneer for John Adams in the campaign of 1800. Jefferson immediately wrote to Nicholson, who was managing Pickering's impeachment, raising the question whether ”this seditious and official attack on the principles of our Const.i.tution” ought to go unpunished.
Such was Jefferson's way of initiating the measures of the Administration. His supporters in the House were not over-eager to take up the gauntlet, but as usual the wishes of the President prevailed. The management of the impeachment of Chase fell to John Randolph, who was as ill-fitted by temperament for the difficult task as a man could be.
Instead of impeaching Chase for his indiscretion at Baltimore, Randolph dragged into the indictment his conduct on the bench during the trials of Fries and of Callender, and certain errors in law which he was alleged to have committed. The effect of these latter items was to range all the bench on the side of Chase, for if a mere mistake in judgment was a proper ground of impeachment, no judge was safe in his tenure.
Justice Chase secured some of the best legal talent in the country to conduct his defense; and the trial a.s.sumed from the outset a spectacular character from the personalities involved.
The managers of the impeachment were far from consistent in their conception of the nature of impeachable offenses. Randolph, Campbell, and Giles held that an impeachment was ”a kind of inquest into the conduct of an officer merely as it regards his office,” rather than a criminal prosecution. A judge, in short, might be removed for a mistake in the administration of the law. Nicholson rejected this theory, contending that impeachment was essentially a criminal prosecution which aimed at not only the removal but also the punishment of the offender.
Yet the managers had not specified any offense which could be called a ”high crime” or ”misdemeanor” within the meaning of the Const.i.tution.
The counsel for Justice Chase, on the other hand, held consistently to the position that a judge might not be impeached or removed from office for anything short of an indictable offense, an offense indictable under the known law of the land.
From the first, the legal counsel for the accused were more than a match for the managers. Randolph's erratic course culminated in an impa.s.sioned but incoherent speech which closed the argument for the prosecution and left the outcome hardly in doubt. Not one of the articles of impeachment received the two-thirds majority which was necessary to convict. The eighth article, which touched upon the real provocation for the trial,--the harangue at Baltimore,--received the highest vote; but nearly one fourth of the Republican Senators refused to sustain the managers. The acquittal of Chase was, therefore, a judgment against Randolph. He never recovered his lost prestige as the leader of his party in the House. Jefferson could accept Randolph's downfall with equanimity, but not the failure of the impeachment. Years afterward he wrote, bitterly that impeachment was ”an impracticable thing, a mere scarecrow.” From this time on, said he, the judges held office without any sense of responsibility, led ”by a crafty chief-judge who sophisticates the law to his mind by the turn of his own reasoning.”
BIBLIOGRAPHICAL NOTE
Although the general histories contain much that is important for an understanding of the administrations of Jefferson, the authority _par excellence_ is Henry Adams, _History of the United States of America_ (9 vols., 1889-91). Chapters I-VI of the first volume contain an excellent description of American society about 1800; but for the details of social and economic life the reader will turn to McMaster. A briefer account of the Jeffersonian regime may be found in Channing, _The Jeffersonian System, 1801-1811_ (in _The American Nation_, vol. 12, 1906). Henry Adams has also contributed two biographies to this period: _Life of Albert Gallatin_ (1878), and _John Randolph_(1882). The Federalist point of view is admirably presented in S. E. Morison, _The Life and Letters of Harrison Gray Otis_ (2 vols., 1913). The larger biographies of Jefferson are: H. S. Randall, _Life of Thomas Jefferson_ (3 vols., 1858), commonly referred to as the standard biography, though exceedingly partisan; G. Tucker, _Life of Thomas Jefferson_ (2 vols., 1837); and James Parton, _Life of Thomas Jefferson_(1874).
CHAPTER VIII
THE PURCHASE OF THE PROVINCE OF LOUISIANA
Not a war cloud was in the sky when Jefferson took the oath of office.
The European calm, to be sure, proved to be only a lull in the tempest of war which was to rage fifteen years longer; but no man could have cast the horoscope of Europe in that age of storm and stress. The times seemed auspicious for the Republican program of retrenchment and economy. Jefferson was so sanguine of continued peace that he would have been glad to lay up all seven of the frigates which then const.i.tuted the navy in the eastern branch of the Potomac, where ”they would be under the immediate eye of the department, and would require but one set of plunderers to take care of them.” Peace was his pa.s.sion, he frankly avowed. He would have been glad to banish all the paraphernalia of war.
Yet within three months the United States was at war with an insignificant Mediterranean power and menaced by France from an unexpected quarter.
Early in the spring of 1801, the Pasha of Tripoli, one of the Barbary powers which for years had preyed upon the commerce of the Mediterranean, declared war upon the United States by cutting down the flagstaff at the residence of the American consul. European states had purchased immunity for their commerce by paying tribute to these rapacious pirates; and the United States had followed the custom. The Pasha of Tripoli, however, was dissatisfied with the American tribute, a paltry eighty-three thousand dollars, and demanded more. The other Barbary powers threatened to make common cause with him. Antic.i.p.ating trouble, Jefferson had sent a small squadron to the Mediterranean even before the dramatic act of the Pasha at the American consulate; and hostilities began on August 1 with the capture of a corsair by the schooner Enterprise. Therewith Jefferson's dreams of a navy for coast defense only vanished in thin air.
Contrary to all expectations, the Tripolitan War dragged on for four years, causing the peace-loving Administration no end of embarra.s.sment.
So far from reducing expenditures, Gallatin was obliged to devise new ways and means for an ever-increasing naval force. An additional duty of two and one half per cent was laid on all imports which paid an _ad valorem_ duty, and the proceeds were kept as a separate treasury account. The Administration was sensitive to the charge that it was guilty of the very crime which it had accused the Federalists of committing--”taxing the industry of our fellow citizens to acc.u.mulate treasure for war.” With superior wisdom and a higher sense of popular responsibility, the Republicans, so the argument ran, were establis.h.i.+ng a ”Mediterranean Fund,” so that the people might know in detail just what was collected and spent for war purposes.
Tales of individual daring go far to relieve the tedious record of ineffective blockades and bombardments during the war. Two exploits left an imperishable memory in the minds of contemporaries--Lieutenant Stephen Decatur's destruction of the captured frigate Philadelphia, under the guns of the forts in the harbor of Tripoli; and the tragic death of Lieutenant Richard Somers and the crew of the Intrepid, as they were about to blow up the Tripolitan gunboats in the harbor. These deeds of heroic adventure created the very last thing that Jefferson desired, something closely akin to an _esprit de corps_ in the new navy.
It was not so much the onslaughts of Commodore Preble's gunboats, however, as an unexpected attack on his eastern frontier which brought the Pasha to terms. His exiled brother, Hamet Caramelli, had fallen in with an American adventurer by the name of Eaton, who persuaded him to join an expedition against their common enemy. With a motley army they marched across the desert from Egypt and fell upon the outlying domains of the Pasha. That astute monarch then yielded to persuasion. On June 3, 1805, with many protestations that he was being subjected to humiliating terms, he agreed to live on terms of peace with the United States and renounce all claim to tribute; but his injured feelings were salved by a ransom of sixty thousand dollars for the crew of the Philadelphia. The Pasha's brother was rewarded with a pension of two hundred dollars a year.
At the same moment that hostilities broke out in the Mediterranean, Jefferson heard disquieting news from France. ”There is considerable reason to apprehend,” he wrote to Monroe, on May 26, 1801, ”that Spain cedes Louisiana and the Floridas to France. It is a policy very unwise in both, and very ominous to us.” What Jefferson apprehended was, indeed, an accomplished fact. On October 1, 1800, the day after Joseph Napoleon, in the name of his brother, set his hand to the Treaty of Morfontaine, which restored amicable relations between France and the United States, General Berthier under instructions from Napoleon signed at Ildefonso a treaty which restored Louisiana to France. In effect, as Mr. Henry Adams says, the second treaty undid the work of the first.
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