The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah

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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."526

      Plainly Marshall was still fearful of the outcome of the Republican impeachment plans, not only as to Chase, but as to the entire Federalist membership 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.527 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."528 For the first time in our history this was done publicly; on former occasions the galleries were cleared and the doors closed.529

      Throughout the trial Randolph and Giles were in frequent conference – judge and prosecutor working together for the success of the party plan.530 On February 20 the arguments began. Peter Early of Georgia spoke first. His remarks were "chiefly declamatory."531 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,532 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."533

      George Washington Campbell of Tennessee argued "long and tedious[ly]"534 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 analyzed the official deeds of Chase by which "the whole community seemed shocked… Future generations are interested in the event."535 He spoke for parts of two days, having to suspend midway in the argument because of exhaustion.536 Like Early, Campbell emptied the galleries and drove the members of the House, in disgust, from the floor.537

      Joseph Hopkinson then opened for the defense. Although but thirty-four years old, his argument was not surpassed,538 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 instituted, 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? Nobody 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 institutions. "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 institutions." 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 passion 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 snatched the one from the fury of a despot, and preserved the other from the madness of a people."539 So spoke Joseph Hopkinson for three hours,540 made brief and brilliant by his eloquence, logic, and learning.

      Philip Barton Key of Washington, younger even than Hopkinson, next addressed the Senatorial Court. He had been ill the day before541 and was still indisposed, but made an able speech. He analyzed, with painstaking minuteness, the complaints against his client, and cleverly turned to Chase's advantage the conduct of Marshall in the Logwood case.542 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.543

      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 Constitution 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 Constitution 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

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