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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 impeachmentsometimes 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 cflicial duty, however, fatal to the State, could be brought within this definition.” Adams, supra note 3, at 223. 28 Adams, op. cit., note 19, at 97.

27 Ibid.

29 Id. at 137.

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.' 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

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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.

As to article 4, which was divided into four counts, Chase pleaded: (a) that it was proper to have questions reduced to writing; (b) that in his opinion sufficient reasons had not been presented for the postponment of the trial; (c) that he was never intentionally rude or contemptuous in his conduct or expression towards counsel; (d) that he never interrupted counsel vexatiously or except when he considered it his duty to do so; and (e) that the charge of “indecent solicitude” for the conviction of the defendant was too vague to permit specific refutation.

As to article 5, the respondent alleged that in issuing a bench warrant and not a summons he was simply following the general practice of Virginia courts, and that a local Virginia statute to the contrary was not know to him or defendant's counsel at the time. As to article 6, the judge declared that he had not believed a continuance mandatory under the laws of the United States and Virginia, and that if he erred by overlooking the above local Virginia statute, as did defendant's counsel, it was not to be construed as an offense meriting punishment. As to article 7, he replied that he had refused to discharge the grand jury because he thought the due administration of justice required their attendance, and that he had properly directed their attention to an offense against a federal statute. As to article 8, "Chase denied the charge absolutely and entirely.

In his answer to the first six articles, Chase pointedly brought out the fact that in each instance a district judge had acquiesced in his rulings but that no action was being taken against these judges. This, then, was his answer to the articles of impeachment, only the last of which would,“in calmer days, have been deemed a ground for impeachment. But party spirit ran high; politics, rather than legal discrimination, moved Congress; and the general public seemed to accept the fact that the prosecution was a purely party move." 33

IV. The Trial of the Judge If the general public had been led to believe that impeachment was a purely partisian matter, it had also been conditioned to the idea that Chase, guilty of gross judicial misconduct, would be convicted. The proceedings leading up to the trail dragged on for nearly a year, and, as Beveridge indicates, no small amount of political capital had been extracted from them.

“The Republican managers had carefully moulded public opinion into the belief that Chase was guilty of some monstrous crime. Months before the articles of impeachment were presented to the House, ex parte statements against him were collected, published in pamphlet form, and scattered throughout the country. To assure wider publicity all this 'evidence was printed in the Republican organ at Washington. The accused Justice had, therefore, been tried and convicted by the people before the charges against

him were even offered in the House."34 As the day of the trial approached, hundreds of people flocked to Washington. Senator Breckenridge recorded that“ (the trial of Justice Chase . will collect a great crowd here. Much preparation is making for it. An additional gallery is erected in the Senate Chamber for the ladies, and lodgings engaged in all the boarding houses which are not full.' ” 35 The Senate chamber, redecorated, “was aglow with theatrical color, and the placing of the various seats was as if a tragic play were to be performed.” 36 Against the back wall of the room, center stage, was placed the chair of the presiding officer.

“A short, slender, elegantly formed man, with pallid face and steady black eyes, presided over this Senatorial Court. He was carefully dressed, and his manners and deportment were meticulously correct. Aaron Burr, fresh from his duel with Hamilton, and under indictment in two States, had resumed his duties as Vice-President. Nothing in the bearing of this playwright character indicated in the smallest degree that anything out of the ordinary

had happened to him." 37 To the Vice-president's right and left were two rows of benches, covered with crimson cloth, for the thirty-four senators--twenty-five Republican and nine Federalist. Before them was the special gallery for the ladies, raised on pillars with the seats covered with green cloth. Under the gallery were three rows of benches, also covered with green cloth, reserved for heads of departments, foreign ministers, the Supreme Court and the House of Representatives. In front of 33 Warren, op. cit., note 4, at 281-82. 34 Beveridge, op. cit., note 22, at 171. 35 Warren, op. cit., note 4, at 290, n. 1. 36 Beveridge, op, cit., note 22, at 179.


37 Id. at 180.

these benches, facing the Vice-president's right and left, were two boxes covered with blue cloth. One was for the House managers, the other occupied by Chase and his counsel.

Of the managers, John Randolph of Virginia, brilliant, erratic, a fine stump orator but not a lawyer, was the leader. Indeed, it was Randolph who instigated the impeachment and boasted that he had drafted all eight articles. 38 Perfectly suited for an inquest of office, which is what he and Giles believed impeachment to be, he was totally inadequate to conduct a major state trial. That he “should be vain enough to suppose himself capable of arguing the most perplexed questions of legal practice was incredible," writes his biographer, but when, “in addition, he was obliged to fling his glove in the face of the best lawyers in America, his rashness became laughable.39 With Randolph were George Washington Camp; bell, Joseph Nicholson, Caesar Rodney, Peter Early, Christopher Clarke and John Boyle. While Nicholson and Campbell were to acquit themselves well, the rest were pedestrian lawyers.

Chase, himself an outstanding attorney, was surrounded by the country's finest barristers. Foremost of these was Luther Martin, Attorney General of Maryland, leader of the American bar, possessed of a keen mind and a sharp tongue, the old “Brandybottle” who knew more law drunk than the managers did sober. Charles Lee, Attorney General under Washington, Robert Goodloe Harper, leader of the House under Adams, brilliant young Joseph Hopkinson and competent old Philip Barton Key all appeared for the judge. While the managers hesitated, overlapped and stumbled on amid inconsistent theories of impeachment, no hesitation or inconsistency was shown on the side of the defence; every resource of the profession was used with energy and skill.” 40

Throughout the month-long trial, Burr was the model presiding officer. Despite reputed efforts by Jefferson to sway his sympathies through favors to his friends and personal attention, 41 he was strictly impartial. Whether warning Justice Chase to stick to the facts,42 lecturing senators against eating apples and cake during court, 43 censuring senators for leaving their seats 44 or preserving order in the galleries, 45 he ran a good trial. Burr decided incidental matters and occasional motions, subject, however, to a call from any senator who might dissent and ask for a vote to be taken.46 Thus he would remind counsel to save their questions for opposing witnesses until cross-examination 47 and uphold objections to questions calling for an opinion, 48 but on more complex issues of procedure and evidence he would put the question to the entire Senate.49

Despite Giles's protestations that the Senate was not a court 50 -a position required by his contention that impeachment was not a criminal prosecution-the proceedings were replete with legal trappings. Chase's answer was presented on February 4th, and Randolph read the House's replication before the Senate on February 9th. The same day, the trial having been previously postponed a day when the prosecution's witnesses were not present,51 Randolph opened the case for the House. In his relatively short and unorganized address, 52 he failed to state distinctively his theory of impeachment and deeply entangled himself and his articles in the intricacies of courtroom practice. Adams writes:

“From the point of view which lawyers must take, his arguments .. not even third-rate; they are the feeblest that were made in the course of this long trial. He undertook to speak as an authority upon the law naturally given to making assertion stand for proof, he asserted legal principles calcu

lated to make Luther Martin's eyes sparkle with delight.” 53 38 Randolph, in his rambling summation, stated: “As these articles came solely from my pen, I feel bound to explain the meaning of every word contained therein." American State Trials (ed. John D. Lawson); St. Louis; F. H. Thomas Law Book Co. (1919), XI, 494. 39 Adams, op. cit., note 19, at 140-41. 40 Adams, op. cit., note 3, at 233. 41 Beveridge, op. cit., note 22, at 183. 42 Trial of Samuel Chase, Washington; Samuel H. Smith (1805), II, 15, 18. 43 Beveridge, op. cit., note 19, at 183. 44 Adams, op. cit., note 23, at 350. 45 John Quincy Adams describes the day the Senate voted on the articles of impeachment thusly:"at half past twelve o'clock the Court met. The hall was crowded with spectators. Mr. Burr ordered the civil officers in the upper galleries to turn their faces towards the spectators, and to seize and commit to prison the firs person who should make the smallest noise or disturbance." Id. at 362. 46 Id. at 318–19. See also Humphrey, supra note 21, at 827. 47 Trial, supra note 42, at 130. 48 Id. at 146-47. 49 Id. at 161-65. 50 Adams, op. cit., note 23, at 327-28. 51 Id. at 348. 52 American State Trials, XI, 236-51. 53 Adams, op. cit., note 3, at 143.

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After Randolph's speech, the managers called eighteen witnesses, whose testimony occupied the next four days of court. Only six were cross-examined, although occasionally a senator would address a question to one of them. In general, the witnesses made little impression on the Senate, and the managers' lack

of preparation is made apparent in the testimony of several. Edmond Randolph, for instance, called to show Chase's misconduct at the Callender trial, testified as follows:

“Was present some little part of the trial of Callender, but was absent the greater part of it. Saw nothing that struck me as remarkable in the conduct of the court; saw nothing which conveyed to my mind the idea of corrup

tion in the judge, an intention to oppress the party.” 54 With testimony like this, it is little wonder that defense counsel waived crossexamination. After a week of proving that while Chase had been indiscreet he had not departed from legal principles and rules of law one observer exclaimed: "o"I swear if they go on much farther, they will prove Judge Chase an angel." " " 55

On February 15th, Robert Goodloe Harper rose to give the opening for the defense. “We consider the articles of impeachment as wholly unsupported by the testimony adduced on the part of the honorable managers,” he stated,

Ănd, had we no further object in view than a mere legal acquittal, we should most cheerfully submit the case on that testimony.

“But, although no legal offense be proved, which could warrant a conviction on any of these articles, yet some parts of the testimony produced in support of them, might, if left unexplained, throw on the conduct of our honorable client some shades of impropriety, which it is in our power, and therefore in

our duty, to remove." 56 Four days then elapsed while thirty-one witnesses were questioned by the defense, among them John Marshall, Luther Martin and several of the prosecution's witnesses. Only ten were cross-examined, and the managers called only five witnesses in rebuttal. On February 20th, after nine days of testimony, began eight days of summation.

V. The Summations Early opened for the managers, contributing a survey of articles 1-4 and 7 and 8 that did little to help his cause. Next came Campbell, who lucidly expressed the Republicans' position.

"So far as the offense of the officer is injurious to society, and calculated to endanger the lives and liberties of the people, so far is he impeachable before this tribunal, and not elsewhere. But where an indictment will lie for the offense, there an impeachment will not. An impeachment is a kind of inquest, to examine in what manner the officers have discharged their duty. It is not therefore necessary that the offiense should be an indictable one, to render it subject to impeachment, but that the officer has abused the trust reposed in

him and endangered the liberties of the people.” 57 Campbell, after occupying a day and a half analyzing articles 1-4 and 7 and 8, was followed by Clarke, who briefly attempted to show that Chase erred on the legal questions raised under articles 5 and 6.

Young Joseph Hopkinson spoke first for the defense, pleading for the judge in an eloquence surpassing anything yet heard in the course of the trial.

'Mr. President. We cannot remind you and this honorable court, as our opponents have so frequently done, that we address you in behalf of the majesty of the people--we appear for an ancient and infirm man, whose better days have been worn out in the service of that country which now degrades him, and who has nothing to promise you for an honorable acquittal

but the approbation of your own consciences.” 58 Quickly outlining the constitutional provisions concerning impeachment, he moved to the heart of his argument.

“I offer it as a position I shall rely upon in my argument, that no judge can be impeached and removed from office for any act or offense for which he could not be indicted. It must be by law an indictable offense.

“When, sir, I contend that in order to sustain an impeachment, an offense must be proved upon the respondent which would support an indictment, I do not mean to be understood as admitting that the converse of the propo

sition is true; that is that every act or offense is impeachable which is indict54 American State Trials, XI, 266. 55 Warren, op. cit., note 4, at 290, n. 2. 56 American State Trials, XI, 272. 57 Id. at 298. Accord, Simpon, supra note 17, at 41, 42, 46, n. 47. 58 American State Trials, XI, 272.


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