The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

The President had rewarded the three principal witnesses against Pickering with important and lucrative offices⁵⁰⁰ after the insane judge had been removed from the bench. Indeed he had given the vacated judgeship to one of these witnesses. But such an example Jefferson well knew would have no effect upon Burr; even promises would avail nothing with the man who for nearly three years had suffered indignity and opposition from an Administration which he, more than any one man except Jefferson himself, had placed in power.

So it came about that Vice-President Aaron Burr, with only four weeks of official life left him, with the whole North clamorous against him because of his killing of Hamilton and an indictment of murder hanging over him in New Jersey, now found himself showered with favors by those who owed him so much and who, for nearly four years, had so grossly insulted him.

Burr's stepson, his brother-in-law, his most intimate friend, were forthwith appointed to the three most valuable and commanding offices in the new government of the Louisiana Territory, at the attractive city of New Orleans.⁵⁰¹ The members of the Cabinet became attentive to Burr. The President himself exercised his personal charm upon the fallen politician. Time after time Burr was now invited to dine with Jefferson at the Executive Mansion.

Nor were Presidential dinners, the bestowal of patronage hitherto offensively refused, and attentions of the Cabinet, the limit of the efforts to win the coöperation of the man who was to preside over the trial of Samuel Chase. Senator Giles drew a petition to the Governor of New Jersey begging that the prosecution of Burr for murder be dropped, and to this paper he secured the signature of nearly all the Republican Senators.⁵⁰²

Burr accepted these advances with grave and reserved dignity; but he understood the purpose that inspired them, did not commit himself, and remained uninfluenced and impartial. Throughout the momentous trial the Vice-President was a model presiding officer. "He conducted with the dignity and impartiality of an angel, but with the rigor of a devil," records a Washington newspaper that was bitterly hostile to Burr personally and politically.⁵⁰³

When Chase took his place in the box, the Sergeant-at-Arms brought him a chair; but Burr, adhering to the English custom, which required prisoners to stand when on trial in court, ordered it to be taken away.⁵⁰⁴ Upon the request of the elderly Justice, however, Burr quickly relented and the desired seat was provided.⁵⁰⁵

Chase was, in appearance, the opposite of the diminutive and graceful Vice-President. More than six feet tall, with thick, broad, burly shoulders, he was a picture of rugged and powerful physical manhood, marred by an accumulation of fat which his generous manner of living had produced. Also he was afflicted with an agonizing gout, with which it seems so many of "the fathers" were cursed. His face was broad and massive, his complexion a brownish red.⁵⁰⁶ "Bacon face" was a nickname applied to him by the Maryland bar.⁵⁰⁷ His head was large, his brow wide, and his hair was thick and white with the snows of his sixty-four winters.⁵⁰⁸

The counsel that surrounded the impeached Justice were brilliant and learned.⁵⁰⁹ They were Joseph Hopkinson, who six years before, upon Marshall's return from France, had written "Hail Columbia; or, The President's March"; Philip Barton Key, brother of the author of "The Star-Spangled Banner";⁵¹⁰ Robert Goodloe Harper, one of the Federalist leaders in Congress during the ascendancy of that party; and Charles Lee, Attorney-General under President Adams when Marshall was Secretary of State, and one of Marshall's most devoted friends.⁵¹¹

But in the chair next to Chase sat a man who, single-handed and alone, was more than a match for all the managers of the House put together. Luther Martin of Maryland – of medium height, broad-shouldered, near-sighted, absent-minded, shabbily attired, harsh of voice, now sixty-one years old, with gray hair beginning to grow thin and a face crimsoned by the brandy which he continually imbibed – was the dominating figure of this historic contest.⁵¹²

Weary and harried as he was, Randolph opened the trial with a speech of some skill. He contrasted the conduct of Chase in the trial of Callender with that of Marshall in a trial in Richmond in 1804 at which Marshall had presided. "Sir," said Randolph, "in the famous case of Logwood,⁵¹³ whereat the Chief Justice of the United States presided, I was present, being one of the grand jury who found a true bill against him… The government was as deeply interested in arresting the career of this dangerous and atrocious criminal, who had aimed his blow against the property of every man in society, as it could be in bringing to punishment a weak and worthless scribbler [Callender]."

But how had Marshall acted in the conduct of that trial? "Although," continued Randolph, "much testimony was offered by the prisoner, which did by no means go to his entire exculpation, although much of that testimony was of a very questionable nature, none of it was declared inadmissable." Marshall suffered it "to go to the jury, who were left to judge of its weight and credibility"; nor had he required "any interrogatories to the witnesses … to be reduced to writing," – such a thing never had been done in Virginia before the tyrannical ruling of Chase in the trial of Callender.

"No, Sir!" he cried. "The enlightened man who presided in Logwood's case knew that, although the basest and vilest of criminals, he was entitled to justice, equally with the most honorable member of society." Marshall "did not avail himself of the previous and great discoveries in criminal law, of this respondent [Chase]"; Marshall "admitted the prisoner's testimony to go to the jury"; Marshall "never thought it his right or his duty to require questions to be reduced to writing"; Marshall "gave the accused a fair trial according to law and usage, without any innovation or departure from the established rules of criminal jurisprudence in his country."

JOHN RANDOLPH

Marshall's gentle manner and large-minded, soft-spoken rulings as a trial judge were thus adroitly made to serve as an argument for the condemnation of his associate, and for his own undoing if Chase should be convicted. Randolph denounced "the monstrous pretension that an act to be impeachable must be indictable. Where? In the Federal Courts? There, not even robbery and murder are indictable."

A judge could not, under the National law, be indicted for conducting a National court while drunk, and perhaps not in all State courts. "It is indictable nowhere for him to omit to do his duty, to refuse to hold a court. But who can doubt that both are impeachable offenses, and ought to subject the offender to removal from office?"

The autocrat of Congress then boldly announced to the Republican Senators that the House managers "confidently expect on his [Chase's] conviction… We shall bring forward … such a specimen of judicial tyranny, as, I trust in God, will never be again exhibited in our country."⁵¹⁴

Fifty-two witnesses were examined. It was established that, in the trial of Fries, Chase had written the opinion of the court upon the law before the jury was sworn, solely in order to save time; had withdrawn the paper and destroyed it when he found Fries's counsel resented the court's precipitate action; and, finally, had repeatedly urged them to proceed with the defense without restriction. Chase's inquisitorial conduct in Delaware was proved, and several witnesses testified to the matter and manner of his charge to the Baltimore grand jury.⁵¹⁵

Every incident in the trial of Callender⁵¹⁶ was described by numerous witnesses.⁵¹⁷ George Hay, who had been the most aggressive of Callender's counsel, was so anxious to help the managers that he made a bad impression on the Senate by his eagerness.⁵¹⁸ It developed that the whole attitude of Chase had been one of sarcastic contempt; and that Callender's counsel were more piqued by the laughter of the spectators which the witty sallies and humorous manner of the Justice excited, than they were outraged by any violence on Chase's part, or even by what they considered the illegal and oppressive nature of his rulings.

When, in defending Callender, Hay had insisted upon "a literal recital of the parts [of The Prospect Before Us] charged as libellous," Chase, looking around the court-room, said with an ironical smile: "It is contended … that the book ought to be copied verbatim et literatim, I wonder, … that they do not contend for punctuatim too."⁵¹⁹ The audience laughed. Chase's interruption of Wirt⁵²⁰ by calling the young lawyer's "syllogistical" conclusion a "non sequitur, sir," was accompanied by an inimitable "bow" that greatly amused the listeners.

In short, the interruptions of the sardonic old Justice were, as John Taylor of Caroline testified, in "a very high degree imperative, satirical, and witty … [and] extremely well calculated to abash and disconcert counsel."⁵²¹

Among the witnesses was Marshall's brother William, whom President Adams had appointed clerk of the United States Court at Richmond.⁵²² His testimony was important on one point. One John Heath, a Richmond attorney and a perfect stranger to Chase, had sworn that Chase, in his presence, had asked the United States Marshal, David M. Randolph, "if he had any of those creatures or people called democrats on the panel of the jury to try Callender"; that when the Marshal replied that he had "made no discrimination," the Judge told him "to look over the panel and if there were any of that description, strike them off."

William Marshall, on the contrary, made oath that Chase told him that he hoped even Giles would serve on the jury – "Nay, he wished that Callender might be tried by a jury of his own politics." David M. Randolph then testified that he had never seen Heath in the Judge's chambers, that Chase "never at any time or place" said anything to him about striking any names from the jury panel, and that he never received "any instructions, verbal, or by letter, from Judge Chase in relation to the grand jury."⁵²³

John Marshall himself was then called to the stand and sworn. Friendly eye-witnesses record that the Chief Justice appeared to be frightened. He testified that Colonel Harvie, with whom he "was intimately acquainted,"⁵²⁴ had asked him to get the Marshal to excuse Harvie from serving on the jury because "his mind was completely made up … and whatever the evidence might be, he should find the traverser not guilty." When Marshall told this to the court official, the latter said that Harvie must apply to the Judge, because he "was watched," and "to prevent any charge of improper conduct" he would not discharge any of the jury whom he had summoned. Marshall then induced Chase to release Harvie "upon the ground of his being sheriff of Henrico County and that his attendance was necessary" at the county court then in session.

Marshall said that he was in court during a part of the Callender trial and that "there were several circumstances that took place … on the part both of the bar and the bench which do not always occur at trials… The counsel appeared … to wish to argue to the jury that the Sedition Law was unconstitutional. Mr. Chase said that that was not a proper question to go to the jury"; and that whenever Callender's attorneys began to argue to the contrary the court stopped them.

The Chief Justice further testified that George Hay had addressed the court to the effect that in this ruling Chase was "not correct in point of law," and again the Judge "stopped him"; that "Mr. Hay still went on and made some political observations; Judge Chase stopped him again and the collision ended by Mr. Hay sitting down and folding up his papers as if he meant to retire."

Marshall did not recollect "precisely," although it appeared to him that "whenever Judge Chase thought the counsel incorrect in their points, he immediately told them so and stopped them short." This "began early in the proceedings and increased. On the part of the judge it seemed to be a disgust with regard to the mode adopted by the traverser's counsel, at least … as to the part which Mr. Hay took in the trial."

Randolph asked Marshall whether it was the practice for courts to hear counsel argue against the correctness of rulings; and Marshall replied that "if counsel have not been already heard, it is usual to hear them in order that they may change or confirm the opinion of the court, when there is any doubt entertained." But there was "no positive rule on the subject and the course pursued by the court will depend upon circumstances: Where the judge believes that the point is perfectly clear and settled he will scarcely permit the question to be agitated. However, it is considered as decorous on the part of the judge to listen while the counsel abstain from urging unimportant arguments."

Marshall was questioned closely as to points of practice. His answers were not favorable to his Associate Justice. Did it appear to him that "the conduct of Judge Chase was mild and conciliatory" during the trial of Callender? Marshall replied that he ought to be asked what Chase's conduct was and not what he thought of it. Senator William Cocke of Tennessee said the question was improper, and Randolph offered to withdraw it. "No!" exclaimed Chase's counsel, "we are willing to abide in this trial by the opinion of the Chief Justice." Marshall declared that, except in the Callender trial, he never heard a court refuse to admit the testimony of a witness because it went only to a part and not to the whole of a charge.

Burr asked Marshall: "Do you recollect whether the conduct of the judge at this trial was tyrannical, overbearing and oppressive?" "I will state the facts," cautiously answered the Chief Justice. "Callender's counsel persisted in arguing the question of the constitutionality of the Sedition Law, in which they were constantly repressed by Judge Chase. Judge Chase checked Mr. Hay whenever he came to that point, and after having resisted repeated checks, Mr. Hay appeared to be determined to abandon the cause, when he was desired by the judge to proceed with his argument and informed that he should not be interrupted thereafter.

"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 pronounced," 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."⁵²⁵

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."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 not justify his impeachment, as, for instance, physical assault "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 pass 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 passage. 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 unconstitutional"; 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 circumstances"; still, "if he had, considering that Mr. Wirt was a widower, he certainly erred on the right side … in calling him a young gentleman."⁵⁴⁴

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!"⁵⁴⁵

Martin spoke until five o'clock without food or any sustenance, "except two glasses 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.⁵⁴⁶ Martin then quoted with telling effect from Franklin's denunciation of newspapers.⁵⁴⁷ "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."⁵⁴⁸

Throughout his address Martin mingled humor with logic, eloquence with learning.⁵⁴⁹ Granted, he said, that Chase had used the word "damned" 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 damned good bottle of wine, a damned good dinner, or a damned clever fellow."⁵⁵⁰

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 repetition 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."