Part 2 (1/2)

”[If, then,] an act of the legislature, repugnant to the Const.i.tution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it const.i.tute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

”It is emphatically the province and duty of the judicial department 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 be in opposition to the Const.i.tution; if both the law and the Const.i.tution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Const.i.tution, or conformably to the Const.i.tution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

”[However, there are those who maintain] that courts must close their eyes on the Const.i.tution, and see only the law.... This doctrine would subvert the very foundation of all written const.i.tutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual.

”[Moreover,] the peculiar expressions of the Const.i.tution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the Const.i.tution. Could it be the intention of those who gave this power, to say that in using it the Const.i.tution should not be looked into? That a case arising under the Const.i.tution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.

”In some cases, then, the Const.i.tution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the Const.i.tution which serve to ill.u.s.trate this subject.... 'No person,' says the Const.i.tution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the Const.i.tution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the const.i.tutional principle yield to the legislative act?...

”It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Const.i.tution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Const.i.tution, have that rank.

”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.”

There is not a false step in Marshall's argument. It is, for instance, not contended that the language of the Const.i.tution establishes judicial review but only that it ”confirms and strengthens the principle.” Granting the finality of judicial decisions and that they may not be validly disturbed by legislative enactment, the argument is logically conclusive, whatever practical difficulties it may ignore.

Turning back to the case itself, we ought finally to note how Marshall utilized this opportunity to make manifest the newly found solidarity of the Court. For the first time in its history the Court was one voice, speaking through its Chief Justice the ineluctable decrees of the law. Ordinarily even Marshall would not have found this achievement an easy task, for there were difficult personalities among his a.s.sociates. He had in Adams's Cabinet demonstrated his faculty ”of putting his ideas into the minds of others, unconsciously to them,” and of this power he now made use, as well as of the advantage to be obtained from the impending common danger.

The case of Marbury vs. Madison was decided on February 24, 1803, and therefore fell between two other events which were immediately of almost as great importance in the struggle now waxing over the judiciary. The first of these was the impeachment of Judge Pickering of the New Hamps.h.i.+re District Court, which was suggested by the President on the 3d of February and voted by the House on the 18th of February; the other was an address which Justice Chase delivered on the 2d of May to a Baltimore grand jury, a.s.sailing the repeal of the Judiciary Act and universal suffrage and predicting the deterioration of ”our republican Const.i.tution... into a mobocracy, the worst of all possible governments.” * Considering the fact that the President was still smarting from the Chief Justice's lash and also that Chase himself was more heartily detested by the Republicans than any other member of the Supreme Bench, nothing could have been more untimely than this fresh judicial excursion into the field of ”manners and morals,” and partisan malice was naturally alert to interpret it as something even more offensive. The report soon came from Baltimore that Chase had deliberately a.s.sailed the Administration as ”weak, pusillanimous, relaxed,” and governed by the sole desire of continuing ”in unfairly acquired power.” But even before this intelligence arrived, Jefferson had decided that the opportunity afforded by Chase's outburst was too good a one to be neglected. Writing on the 13th of May to Nicholson of Maryland, who already had Pickering's impeachment in charge, the President inquired: ”Ought this seditious and official attack on the principles of our Const.i.tution and the proceedings of a State go unpunished?” But he straightway added: ”The question is for your consideration; for myself it is better I should not interfere.”

* The account here given of Chase's trial is based on Charles Evans's shorthand ”Report” (Baltimore, 1805), supplemented by J.Q.

Adams's ”Memoirs”.

Pickering's trial began on March 2, 1804, and had a bearing on Chase's fate which at once became clear. The evidence against the New Hamps.h.i.+re judge showed intoxication and profanity on the bench and entire unfitness for office, but further evidence introduced in his behalf proved the defendant's insanity; and so the question at once arose whether an insane man can be guilty of ”high crimes and misdemeanors?” Greatly troubled by this new aspect of the case, the Senate none the less voted Pickering guilty ”as charged,” by the required two-thirds majority, though eight members refused to vote at all. But the exponents of ”judge-breaking” saw only the action of the Senate and were blind to its hesitation. On the same day on which the Senate gave its verdict on d.i.c.kering, the House by a strictly partisan vote decreed Chase's impeachment.

The charges against Chase were finally elaborated in eight articles. The substance of the first six was that he had been guilty of ”oppressive conduct” at the trials of John Fries and James Thompson Callender. The seventh charged him with having attempted at some time in 1800 to dragoon a grand jury at Newcastle, Delaware, into bringing forward an accusation of sedition against a local paper. These seven articles related therefore to transactions already four or five years old. The eighth article alone was based on the address at Baltimore, which it characterized as ”an intemperate and inflammatory political harangue,” delivered ”with intent to excite the fears and resentment... of the good people of Maryland against their State Government and Const.i.tution,... and against the Government of the United States.”

But the charges framed against Chase revealed only imperfectly the animus which was now coming more and more to control the impeachers. Fortunately, however, there was one man among the President's advisers who was ready to carry the whole antijudicial program as far as possible. This uncompromising opponent was William Branch Giles, Senator from Virginia, whose views on the subject of impeachment were taken down by John Quincy Adams just as Chase's trial was about to open. Giles, according to this record, ”treated with the utmost contempt the idea of an INDEPENDENT JUDICIARY-said there was not a word about their independence in the Const.i.tution.... The power of impeachment was given without limitation to the House of Representatives; the power of trying impeachment was given equally without limitation to the Senate; and if the Judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconst.i.tutional, or to send a mandamus to the Secretary of State, as they had done, it was the unreserved right of the House of Representatives to impeach them, and that of the Senate to remove them, for giving such opinions, however, honest or sincere they may have been in entertaining them.” For ”impeachment was not a criminal prosecution, it was no prosecution at all.” It only signified that the impeached officer held dangerous opinions and that his office ought to be in better hands. ”I perceive,” adds Adams, on his own account, ”that the impeachment system is to be pursued, and the whole bench of the Supreme Court to be swept away, because THEIR OFFICES are wanted. And in the present state of things I am convinced it is as easy for Mr. John Randolph and Mr. Giles to do this as to say it.”

The trial formally opened on January 2, 1805, though the taking of testimony did not begin until the 9th of February. A contemporary description of the Senate chamber shows that the apostles of Republican simplicity, with the pomp of the Warren Hastings trial still fresh in mind, were not at all averse to making the scene as impressive as possible by the use of several different colors of cloth: ”On the right and left of the President of the Senate, and in a right line with his chair, there are two rows of benches with desks in front, and the whole front and seats covered with crimson cloth.... A temporary semi-circular gallery, which consists of three ranges of benches, is elevated on pillars and the whole front and seats thereof covered with green cloth.... In this gallery ladies are accommodated.... On the right and left hand of the President ... are two boxes of two rows of seats... that facing the President's right is occupied by the managers... that on the other side of the bar for the accused and his counsel... these boxes are covered with blue cloth.” To preside over this scene of somewhat dubious splendor came Aaron Burr, Vice-President of the United States, straight from the dueling ground at Weehawken.

The occasion brought forward one of the most extraordinary men of the day, Luther Martin, Chase's friend and the leader of his counsel. Born at New Brunswick, New Jersey, in 1744, Martin graduated from Princeton in 1766, the first of a cla.s.s of thirty-five, among whom was Oliver Ellsworth. Five years later he began to practice law on the Eastern Sh.o.r.e of Maryland and in the adjoining counties of Virginia, where he won an immediate success, especially in criminal cases. At a single term of court, out of thirty defendants he procured the acquittal of twenty-nine, while the thirtieth, indicted for murder, was convicted of manslaughter. In 1805 Martin was the acknowledged head of the American Bar, but at the same time he was undoubtedly a drunkard and a spendthrift. With an income of $10,000 a year, he was always in need. His mediocre stature, thinning locks, and undistinguished features created an impression which was confirmed by his slovenly attire and ungrammatical speech, which seemed ”shackled by a preternatural secretion of saliva.” Here, indeed, for ugliness and caustic tongue was ”the Thersites of the law.” Yet once he was roused to action, his great resources made themselves apparent: a memory amounting to genius, a boyish delight in the rough-and-tumble of combat, a wealth of pa.s.sion, kept in perfect curb till the enemy was already in rout before solid argument and then let loose with destroying effect. This child of nature was governed in his practice of the law less by retainers than by his personal loves and hatreds. Samuel Chase he loved and Thomas Jefferson he hated, and though his acquaintance with criminals had furnished him with a vituperative vocabulary of some amplitude, he considered no other d.a.m.nation quite so scathing as to call a man ”as great a scoundrel as Tom Jefferson.”

The impeachers had no one whom they could pit against this ”unprincipled and impudent Federalist bulldog,” as Jefferson called him; and in other ways, too, from the first their lot was not easy. For one thing, they could not agree among themselves as to the proper scope of impeachment under the Const.i.tution. Randolph, the leader of the House managers, and Campbell adhered in essence to Giles's theory. But Rodney and Nicholson, both much abler lawyers, openly disavowed such lat.i.tudinarian doctrine. In a general way, their view of the matter may be stated thus: Because judges of the United States are guaranteed continuance in office only during ”good behavior,” and because impeachment is the only method of removal recognized by the Const.i.tution, the ”high crimes and misdemeanors” for which impeachment is the const.i.tutional resource must include all cases of willful misconduct in office, whether indictable or not. This seems sound theory and appears today to be established theory. But sound or not, the managers of the Republicans were not a unit in urging it, while their opponents put forward with confidence and unanimity the theory that ”high crimes and misdemeanors” were always indictable offenses.

More calamitous still for the accusers of Chase was the way in which, when the evidence began to come in, the case against him started crumpling at the corners. Lewis, who had been Fries's attorney and whose testimony they had chiefly relied upon to prove the judge's unfairness on that occasion, had not only acknowledged that his memory was ”not very tenacious” after so great a lapse of time but had further admitted that he had really dropped the case because he thought it ”more likely that the President would pardon him [Fries] after having been convicted without having counsel than if he had.” Similarly Hay, whose repeated efforts to bring the question of the const.i.tutionality of the Sedition Act before the jury had caused the rupture between court and counsel in Callender's case, owned that he had entertained ”but little hopes of doing Callender any good” but had ”wished to address the public on the const.i.tutionality of the law.” Sensations multiplied on every side. A man named Heath testified that Chase had told the marshal to strike all Democrats from the panel which was to try Callender; whereupon a second witness called to confirm this testimony stated facts which showed the whole story to be a deliberate fabrication. The story that Chase had attacked the Administration at Baltimore was also substantially disproved by the managers' own witnesses. But the climax of absurdity was reached in the fifth and sixth articles of impeachment, which were based on the a.s.sumption that an act of Congress had required the procedure in Callender's case to be in accordance with the law of Virginia. In reply to this argument Chase's attorneys quickly pointed out that the statute relied upon applied only to actions between citizens of different States!

The final arguments began on the 20th of February. The first speech in behalf of Chase was delivered by Joseph Hopkinson, a young Philadelphia attorney, whose effort stirred the admiration of Federalists and Republicans alike. He dwelt upon ”the infinite importance” of the implications of this case for the future of the Republic, contrasted the frivolity of the charges brought against Chase with the magnitude of the crimes of which Warren Hastings had been accused, and pointed out that, whereas in England only two judges had been impeached in half a century, in America, ”boasting of its superior purity and virtue,” seven judges had been prosecuted within two years. More loosely wrought, but not less effective was Martin's address, the superb climax of a remarkable forensic career! The accusation against Chase he reduced to a charge of indecorum, and he was ready to admit that the manner of his friend ”bore a stronger resemblance to that of Lord Thurlow than of Lord Chesterfield,” but, said he, our judges ought not to be ”like the G.o.ds of Epicurus lolling upon their beds of down, equally careless whether the laws of their country are obeyed or violated, instead of ACTIVELY discharging their duties.”

The closing argument, which fell to the managers, was a.s.signed to Randolph. It was an unmitigated disaster for the cause in behalf of which it was p.r.o.nounced. ”I feel perfectly inadequate to the task of closing this important debate on account of a severe indisposition which I labor under,” were Randolph's opening words, but even this prefatory apology gave little warning of the distressing exhibition of incompetence which was to follow. ”On the reopening of the court,” records John Quincy Adams in his ”Memoirs,” ”he [Randolph] began a speech of about two hours and a half, with as little relation to the subject-matter as possible... without order, connection, or argument; consisting altogether of the most hackneyed commonplaces of popular declamation, mingled up with panegyrics and invectives upon persons, with a few well-expressed ideas, a few striking figures, much distortion of face and contortion of body, tears, groans and sobs, with occasional pauses for recollection, and continual complaints of having lost his notes.” So ended the ambition of John Randolph of Roanoke to prove himself another Burke!

But while their frontal a.s.sault on the reason of the court was thus breaking down, the impeachers, led by the President, were attempting a flank movement on its virtue. They especially distrusted the ”steadiness” of certain New England and New York Senators and hoped to reach the hearts of these gentlemen through Aaron Burr, the Vice-President. Burr had heretofore found himself vested with the role of Lucifer in the Republican Paradise. Now he found himself suddenly basking in a perpetual sunburst of smiles both from the great central luminary, Jefferson, and his paler satellites, Madison and Gallatin. Invitations to the President's dinners were soon followed by more substantial bribes. Burr's step-son became judge of the Superior Court at New Orleans; his brother-in-law, secretary to the Louisiana Territory; his intimate friend Wilkinson, its military commandant. Then Giles, whose view of impeachment left him utterly shameless in the matter, drew up and circulated in the Senate itself a pet.i.tion to the Governor of New Jersey asking him to quash the indictment for murder which the Bergen County grand jury had found against Burr as a result of the duel with Hamilton. At the same time, an act was pa.s.sed giving the retiring Vice-President the franking privilege for life. In the debate Senator Wright of Maryland declared that dueling was justified by the example of David and Goliath and that the bill was opposed ”only because our David had slain the Goliath of Federalism.”

Whether Burr made any attempt to render the expected quid pro quo for these favors does not appear, but at least if he did, his efforts were fruitless. The vote on the impeachment of Chase was taken on the 1st of March, and the impeachers were crus.h.i.+ngly defeated. On the first article they could muster only sixteen votes out of thirty-four; on the second, only ten; on the fifth, none; on the sixth, four. Even on the last article, where they made their best showing, they were still four votes short of the required const.i.tutional majority. When the result of the last ballot was announced, Randolph rushed from the Senate chamber to the House to introduce a resolution proposing an amendment to the Const.i.tution, requiring that judges of the United States ”shall be removed by the President on joint address of both Houses of Congress.” At the same time Nicholson moved an amendment providing legislative recall for Senators. Thus exasperation was vented and no harm done.

Meanwhile word had come from Philadelphia that the impeachment of the State Supreme Court judges had also failed. Here, even more impressively than in the case of Chase, had been ill.u.s.trated that solidarity of Bench and Bar which has ever since been such an influential factor in American government. The Pennsylvania judge-breakers, failing to induce a single reputable member of the Philadelphia bar to aid them, had been obliged to go to Delaware, whence they procured Caesar A. Rodney, one of the House managers against Chase. The two impeachments were thus closely connected and their results were similar. In the first place, it was determined that impeachment was likely to be, in the petulant language of Jefferson, ”a farce” not soon to be used again for partisan purposes. In the second place, it was probable that henceforth, in the Commonwealths as well as in the National Government, political power would be exercised subject to const.i.tutional restraints applied judicially. In the third place, however, the judges would henceforth have to be content with the possession of this magnificent prerogative and dispense with all judicial homilies on ”manners and morals.” It was a fair compromise and has on the whole proved a beneficial one.

CHAPTER IV. The Trial Of Aaron Burr

When, on March 30, 1807, Colonel Aaron Burr, late Vice-President of the United States, was brought before Chief Justice Marshall in the Eagle Tavern at Richmond on the charge of treason, there began the greatest criminal trial in American history and one of the notable trials in the annals of the law.