I. The Times and the Judge

It is difficult to find a period in American history where partisan political strife was more bitter than the years immediately following the "Jeffersonian Revolution" at the beginning of the nineteenth century. The battle between the victorious Republicans and the waning Federalists, strangely enough, focused around what was then the weakest branch of government-the federal judiciary. Hard on the heels of the Judiciary Act of 1801, and President Adams' filling of the enlarged federal bench with "midnight judges," came the Republicans' repeal of the same act and the suspension for over a year of the Supreme Court itself. When the Court reconvened in early 1803, Chief Justice Marshall, next to Hamilton the country's leading Federalist, rallied to the attack. Speaking for a unanimous court in Marbury v. Madison, he firmly laid down the doctrine of judicial review, ruling that the Constitution gave the Court the power to determine whether acts of the Legislative branch were repugnant to it, and, if so, to declare such acts unconstitutional,

This decision, which helped to establish the supremacy of the judicial branch, irked President Jefferson, who did not look with relish on the prospect of a Federalist-entrenched bench passing on the validity of his laws. Yet so careful had Marshall been in his conduct that Jefferson's main avenue for reprisal-impeachment of the Chief Justice-was out of the question. Hardly had Marshall concluded reading his famed opinion, however, than the President was shown the peg on which to hang his hat. Marshall's fellow judge, aging Samuel Chase, committed a serious political and judicial indiscretion by utilizing the federal bench as a political platform. Charging a Baltimore grand jury, the Justice concluded with a short lecture on the need for a strong judiciary, ending with this direct and ill-disguised attack on the President.

"The independence of the national judiciary, is already shaken to its foundation, and the virtue of the people alone can restore it. our republican constitution will sink into a mobocracy, the worst of all possible governments. the modern doctrines by our late reformers, that all men, in a state of society, are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us; and I fear that it will rapidly progress, until peace and order, freedom and property, shall be destroyed." Hearing of Chase's strictures, Jefferson contacted two of the House's leading Republicans, Joseph Nicholson and John Randolph. To Nicholson the President

wrote:

"You must have heard of the extraordinary charge of Chase to the grand jury at Baltimore. Ought this seditious and official attack on the principles of our Constitution and on the proceedings of a State go unpunished; and to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration; for myself, it is better that I should not interfere." 3 The Chase impeachment was under way.

5

It is prophetic that soon after Marbury v. Madison, the respondent in these proceedings had written Marshall that "I believe a day of severe trial is fast approaching for the friends of the Court; and we, I fear, must be principal actors, and may be sufferers, therein." Samuel Chase, who stepped before the bar of the Senate on January 2, 1805, was a turbulent and controversial figure on the early American political scene. Born in Maryland on April 17, 1741, he took up the study of law at eighteen and was admitted to the bar at twenty. Elected a member of the Maryland Assembly from 1764 through 1784, in 1774 he became a member of the Maryland Committee of Correspondence and a delegate to the

1 Cranch 137 (1803).

6

2 Samuel Butler and George Keatinge: Report of the Trial of the Hon. Samuel Chase. Baltimore (1805), App., p. 61.

3 Quoted from Henry Adams: History of the United States; New York; Charles Schribner's Sons (1889), II, 150. This, of course, is an excellent example of presidential buck-passing.

4Quoted from Charles Warren, The Supreme Court in United States History; Boston; Little, Brown & Co. (1935), I, 271.

5 Chase still awaits his biographer. Brief sketches of his life may be found in Encyclopedia Britannica; Chicago, Londen, Toronto; Encyclopedia Britannica, Inc. (1957), V, 311; Edward S. Corwin, Samuel Chase, in Dictionary of American Biography (ed. Allen Johnson and Dumas Malone); New York; Charles Scribner's Sons (1930), IV, 34; Samuel Chase, in National Portrait Gallery (ed. James B. Longacre and James Herring); Philadelphia and New York (1839), IV.

6"It was not in his judicial capacity alone that Samuel Chase had earned his reputation. For years he had been known as a pugnacious lawyer and politician who sought quarrels and delighted in them. Indeed, his entire career had been marked by such intemperance of word and action that he seemed 'to move perpetually with a mob at his heels,' which sometimes pursued but quite often follewed him." Frederick T. Hill: Decisive Battles of the Law; New York and London; Harper & Brothers (1907), pp. 6-7.

First Continental Congress. An early supporter of liberty for the colonies, he soon incurred the wrath of the royal governor. "His activity in riotious demonstrations of the 'Sons of Liberty' against the Stamp Act caused him to be denounced by the mayor and aldermen of Annapolis as a 'busy, restless incendiary, a ringleader of mobs, a foul-mouthed and inflaming son of discord.'" 7

In 1776 he led a campaign to have the Maryland convention rescind its previous instructions and order its delegates to vote for independence, and on August 2, 1776, he affixed his signature to the Declaration of Independence. His faith never wavering during the Revolution, "he steadily opposed Congressional intrigues against Washington, a fact which Washington was later to remember." 8 Following the war's end Chase opposed the federal constitution, being one of several members of the Maryland ratifying convention casting negative votes.10 Corwin relates that:

9

"He was also one of a committee of the convention to propose amendments to the new instrument, among which were clauses protective of trial by jury and of freedom of the press. He was subsequently to be reckoned an enemy of both these institutions. Just why Chase turned Federalist is something of a mystery

22 11

On January 26, 1796, whether because of his new political faith or his old friendship with Washington, the President named him to the Supreme Court, his nomination being unanimously ratified the following day.12

66

The fifty-five-year-old Chase made a fine record as an Associate Justice. Marshall, who ascended to the bench five years after Chase, later wrote that 'he possessed a strong mind, great legal knowledge, and was a valuable judge.' Delivering the Court's opinion in several leading cases:

" 13

'Chase's performance on the Supreme bench was the most notable of any previous to Marshall. Opinions were then delivered seriatim, and being the justice of latest appointment, Chase was required for several terms of court to give his opinions first. This accident of position, together with the colorful quality of his judicial utterances, their positiveness of expression, their richness in 'political science,' have all contributed to give his opinions predominant importance in this period." 14

While his work on the high court was faultless, his active participation in support of Adams during the 1800 campaign and his intemperate conduct while on circuit caused him to lose favor with Jefferson and his followers. Warren states that, by 1804,

"Of all the Judges, no one was more hated than Chase. His unnecessarily strenuous support of the Sedition Law, his prejudicial and passionate conduct of the trials of the two Republicans, Thomas Cooper and James T. Callender, under this law, his arbitrary and unusual rulings in the trial of John Fries for treason in resisting the Federalist direct tax laws, and his personal traits had long subjected him to vicious and unmeasured attack." 16 Small wonder that Jefferson, anxious to weaken the federal judiciary, should aim the weapon of impeachment at its most exposed target.

II. The Theories of Impeachment

Article II, section 4 of the Constitution provides that federal judges "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." If convicted, article I, section 3 states that they "shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." Interpreting the constitutional provisions literally, impeachment lies only for those offenses which, if committed by another, 7 Corwin, op. cit., note 5, at 35.

8 Ibid.

Chase was the leading Anti-Federalist in a Federalist state. See his essay "A Letter of 'Caution' " in Essays on the Constitution of the United States (ed. Paul L. Ford); Brooklyn; Historical Printing Club (1892), pp. 325-28.

10 His position was the same as that of Luther Martin, the man whom he supported for Attorney General of Maryland in 1778 and who served as his chief counsel at the impeachment trial. See Richard B. Lillich, "Luther Martin: The Federal Bulldog," 40 The Speaker 9 (1958). Like Martin, he eventually made the same switch of political allegiance.

11 Corwin, supra note 5, at 36.

12 Chase had previous experience on the bench, both as Chief Judge of the Criminal Court for Baltimore County and Chief Judge of the General Court of Maryland.

13 Longacre and Herring, eds., op. cit., note 5 at IV.

14 See, e.g., Ware v. Hylton, 3 Dallas 198 (1797), which established the supremacy of treaties over state laws. 15 Corwin, op. cit., note 5, at 36.

16 Warren, op. cit., note 4, at 273.

constitute crimes or misdemeanors. This construction is reinforced by the fact that a convicted respondent remains criminally liable, which would not always be the case if impeachment embraced acts of misconduct not crimes or misdemeanors. Indeed, at the Constitutional Convention Madison argued that impeachment could be founded on "any act which might be called a misdemeanor," 18 impliedly excluding lesser offenses from his definition.

The Republicans, however, held a much wider view of the impeachment power. Taking a broad view was something new to the President, but he was not unused to this type of political sleight-of-hand. Henry Adams observed this when he wrote: "This right of impeachment was as yet undefined, and if stretched a little beyond strict construction it might easily be converted into something for which it had not been intended; might even be made to serve for the British removal of judges by address. That, in order to do this, the strict constructionists must strain the language of the Constitution out of its true sense was evident, but they had, without flinching, faced the same difficulty in the Louisiana purchase. The actual disregard of the Constitution would hardly be so flagrant in regard to impeachment as it had been in regard to the treatymaking power." In all fairness, Adams overstates the extent to which it was "evident" in 1805 that the Constitution needed stretching to secure Chase's removal. After all, article III, section 1 did provide that federal judges "shall hold their offices during good behaviour," from which it can be argued that bad, but not criminal, behavior should be grounds for impeachment.20 Moreover, although known at the trial only to Luther Martin and two members of the Senate, the phrase "other high crimes and misdemeanors" had been substituted at the Constitutional Convention for the word "maladministration," a term which surely covers a multitude of sins.21

"" 19

The fact remains, however, that the Republicans' extreme view of impeachment, though probable, did not have its origins in the document itself. Theory aside, their view embodied nothing more than the belief that impeachment was a means of keeping the men on the bench in line with the will of the people by removing those judges whose opinions did not reflect those of more than one-third of the Senate.22 John Quincy Adams, then a Senator from Massachusetts, recorded in his diary a conversation in which Senator Giles, Jefferson's fellow Virginian and a Republican Senate leader, argued for a theory of impeachment under which not only Chase;

"But all the other Judges of the Supreme Sourt, excepting the one last appointed [a Republican], must be impeached and removed. He treated with the utmost contempt the idea of an independent judiciary-said there was not a word about such an independence in the Constitution, and that their pretensions to it were nothing more nor less than an attempt to establish an aristocratic despotism in themselves. The power of impeachment was given without limitations to the House of Representatives; the power of trying impeachments 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 unconstitutional, or to send a mandamus to the Secretary of State, AS THEY HAD DONE, it was the undoubted 17 Cf., Alexander Simpson: A Treatise on Federal Impeachment (1916), p. 40: "It is clear then that the true construction of Article II, Section 4, standing alone, compels the conclusion that the word 'misdemeanors' does not mean criminal misdemeanors only; that there is nothing in the other provisions of the Constitution, nor in the English practice, which otherwise limits that construction; and hence it must be held to mean other than criminal misdemeanors." Accord, Joseph Story: Commentaries on the Constitution of the United States (4th ed. 1873), I, (764, and text at note 21 infra).

18 James Madison: Journal of the Federal Convention; Chicago; Albert, Scott & Co. (1893), p. 688. 19 Henry Adams: John Randolph; Boston; Houghton, Mifflin & Co., (1893), pp. 132-33.

20 "The condition attached to judicial tenure is general, 'misbehavior.' The causes of impeachment are more specific although they are all included in the notion 'misbehavior.' It is therefore not clear that causes of impeachment are as broad as causes for which a good-behavior tenure office may be forfeited." Shartel, "Federal Judges-Appointment, Supervision, and Removal-Some Possibilities under the Constitution,' 28 Mich. L. Rev. 870, 899, n. 79 (1930). It has been contended that good behavior is not the test of impeachment, since the impeachment provision applies to the President and Vice-President, who hold office for a term and not during good behavior, and the impeachment criteria of high crimes and misdemeanor must be defined and applied alike. SIMPSON, note 17 supra.

21 Madison, note 18 supra. "The word 'misdemeanor' may not have been used in a strict sense and may be equivalent to misbehavior." Alexander P. Humphrey, "The Impeachment of Samuel Chase," 33 Amer. L. Rev. 827, 841 (1899). See also Adams, supra note 3, at 223. Since the term "crimes" embraces "misdemeanor,' if by the latter we mean only legal misdemeanors, it also can be argued that to be meaningful the term "misdemeanors" must include offenses not misdemeanors at law.

22 "Judges were to be removed for any cause that a dominant political party considered to be sufficient. 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." Albert J. Beveridge: The Life of John Marshall; Boston; Houghton, Mifflin & Co. (1916-19), III, 159.

right of the House of Representatives to remove them, for giving such opinions, however honest or sincere they may have been in entertaining them. Impeachment was not a criminal prosecution; it was no prosecution at all. The Senate sitting for the trial of impeachments was not a court, and ought to discard and reject all process of analogy to a court of justice. A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him. Congress had no power over the person, but only over the office. And a 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. We want your offices, for the purpose of giving them to men who will fill them better.23 Thus the avowed aim of Giles was to sweep the high bench clean of Federalists and substitute men of his own political affiliation. It was no secret, notes Beveridge, "that the inpeachment of Chase was only the first step in the execution of the Republican plan to replace with Republicans Marshall and the four Federalist Associate Justices." 24

The Federalists, on the other hand, adhered to a strict literal reading of the Constitution, holding that offenses to be impeachable must be indictable. This position, diametrically opposed to the Administration's, had been taken by Judge Addison of Pennsylvania during his 1803 impeachment trial 25 and was adopted by Chase's counsel before the Senate. Indeed, they went one step further and contended "that there are many crimes and misdemeanors for which a judge ought not to be impeached, unless immediately relating to his judicial conduct." 26 By arguing that an impeachment trial was a criminal prosecution, not merely an inquest of office, Chase was intent on vouching in all the safeguards of a criminal trial, thus removing the case from the arena of politics to the realm of law. The House managers, good politicians but poor lawyers, refused to meet Chase directly on this key issue. Rather, they adopted a fluctuating theory of impeachment— sometimes that of Giles but often close to Chase-that made proof of their case doubly difficult. "The Senate became confused between the two views," one commentator has concluded, "and never knew on what theory it acted." 27

III. The Articles of Impeachment

While Chase's Baltimore grand jury charge served as catalyst for the impeachment, it was the basis of only one of eight articles of impeachment. The Republicans, in the abundance of precaution, reached back to 1800 to find grounds for seven additional articles in the judge's conduct at the Fries treason and the Callender libel trials and his treatment of a Delaware grand jury. These articles supposedly involved criminal offenses, but the wisdom of including them is debatable. Adams points out that the Baltimore charge.

Offensive as it certainly was, seemed hardly such a high crime or misdemeanor as to render his conviction certain, and the impeachers thought it safer to strengthen their cause by alleging other offences of earlier date. Yet Chase had sat on the bench and administered justice for three years since Mr. Jefferson's election without a sign of impeachment, and without complaint from the suitors in his court. To go back four years, and search old court records for offenses forgotten and condoned, was awkward." 28 It was not only awkward, it diluted the effect of the one charge where the Republicans were certain to muster impeachment votes. "In so cumbersome a procedure as that of impeachment," Adams states, "it was peculiarly necessary to narrow the field of dispute, to exclude doubtful points of law, and avoid cumulative charges." 29 This was especially so here, for if the construction of impeachment urged by Giles and adopted by Randolph had been followed by the Senate, Chase's conduct at Baltimore would have rendered him guilty and the additional articles superfluous. Their inclusion only confused the issue.

Briefly stated, the eight articles of impeachment charged the following misconduct:

23 John Quincy Adams: Memoirs; Philadelphia; J. B. Lippincott & Co. (1874), I, 322.

24 Beveridge, op. cit., note 22, at 160.

25 Id. at 164, n. 1.

26 Trial, supra note 2, at 176. Adams notes that "Such a rule would have made impeachment worthless for many cases where it was likely to be most needed; for comparatively few violations of official duty, however, fatal to the State, could be brought within this definition." Adams, supra note 3, at 223.

27 Ibid.

1. Misconduct at the trial of Fries by (a) delivering an opinion on a question of law before the defendant's counsel had been heard; (b) restricting the counsel from citing English cases or United States statutes; (c) forbidding the counsel from addressing the jury on questions of law.

2. Misconduct at the trial of Callender in allowing one John Basset to serve on the jury.

3. Misconduct at the above trial in refusing to permit one John Taylor to be examined as a witness.

4. Rude and intemperate conduct at the above trial in (a) compelling defendant's counsel to reduce to writing the questions they wished to ask the witness Taylor; (b) refusing to postpone the trial because of the absence of material witnesses; (c) using rude and contemptuous expression to defendant's counsel; (d) vexatious interruptions of defendant's counsel causing them to withdraw from the case; (e) indecent solicitude for the conviction of the defendant.

5. Misconduct at the above trial in issuing a bench warrant instead of a

summons.

6. Misconduct at the above trial in refusing a continuance.

7. Misconduct in charging a grand jury and refusing to discharge them at Newcastle, Delaware, in June 1800.

8. Misconduct in charging a grand jury at Baltimore, Maryland, in May, 1803. Why many of these articles were included remains somewhat of a mystery. It has been suggested that Randolph, the leading House manager, was so desirous of providing criminality on Chase's part that he was willing to lay aside his own theory of impeachment. By doing so, however, "he threw into the foreground a long series of charges, which concerned only questions of law" 30 and which were of highly dubious merit. Even more fatal, by demanding the conviction of Chase as a criminal and accepting the whole paraphernalia of a trial at law, “Randolph's victory would have made impeachment as useless as his defeat made it, for there never sat on the Supreme Bench another judge rash enough to imitate Chase by laying himself open to such a charge." 31

Thus the articles of impeachment themselves comprised the Republicans' theory of impeachment,

"Withdrew the trial from the region of politics, and involved it beyond extrication in the meshes of legal methods and maxims. Bristling with difficult questions of practice, involving a flat assumption of numerous abstract propositions, they required a categorical, offhand decision on the rules of evidence, the reciprocal rights and duties of judges, coun el, and jury, the customs in different courts and in different places, the legality of bad manners, and the humanity of strict law, only to prove that justice Chase had been actuated by corrupt and criminal motives-for it seemed at first to be conceded that no mere error of judgment would warrant his conviction." 32

Nevertheless, one article, the fifth, alleged no evil intent and made mere error of judgment impeachable. Since this article did not rest on conduct peculiar to Chase, but could have been applied to the entire Supreme Court, conviction of Chase on this count would have put the court at the mercy of Congress.

Chase's answer, which he and his counsel read to the Senate on February 4, 1805, was both long and thorough. He denied that he had committed any crime or misdemeanor whatever, and he contended that if he had erred in his rulings this was not grounds for his removal. As to article 1(a), he pleaded that the question of law on which he had delivered an opinion was one which was well settled and that his action in handling the opinion to counsel before argument was done in the hope of speeding the trial and had caused no harm. As to article 1(b), he argued that he had prevented counsel from reading early English cases on treason to the jury so that they would not be misled, but that he had not prohibited any act of Congress from being cited. As to article 1(c), he answered that he had not stopped defendant's counsel from arguing the law to the jury As to article 2, Chase declared that he had allowed Basset to serve as a juror since he had formed or delivered no opinion concerning the charges in the indictment, although he had stated that he believed the allegedly libelous book was within the sedition law. As to article 3, he replied that the indictment contained 20 alleged libels, that no defense except the unconstitutionality of the sedition law was set up against 19, and that thus it was not error to exclude the testimony of Taylor, which was to have shown the truth of only one libel.

30 Ibid.

31 Id. at 135.

32 Id. at 137-138.