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 Campbell, 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," 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" 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: . . are "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 calculated 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 348-49. See also Humphrey, supra note 21, at 827. 47 Trial, supra note 42, at 130. 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 corruption 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: """I swear if they go on much farther, they will prove Judge Chase an angel."" 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, 11 55 "And, 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.' 1156 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 proposition is true; that is that every act or offense is impeachable which is indict American State Trials, XI, 266. 5 Warren, op. cit., note 4, at 290, n. 2. $ American State Trials, XI, 272. Id. at 298. Accord, Simpon, supra note 17, at 41, 42, 46, n. 47. American State Trials, XI, 272. able-far from it: a man may be indictable for many violations of positive law, which evince no mala mens, no corrupt heart, or intention, but which could not be the ground of impeachment." 59 Hopkinson then went on to construe "high crimes and misdemeanors" to read "high crimes" and "high misdemeanors" ending this phase of his argument with the following: "Misdemeanor' is a legal and technical term, well understood and defined in law; and in the construction of a legal instrument, we must give to words their legal significance; a misdemeanor, or a crime, for in their just proper acceptation they are synonymous terms, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. By this test, let the conduct of the respondent be tried, and by it, let him stand justified or condemned." 60 Following Hopkins, who limited his remarks to article 1, came Key and Lee for the defense, the former speaking on the second, third and fourth articles and the latter on the fifth and sixth. Then, on February 23, after a brief address by Rodney of the managers, Luther Martin arose to speak. The room was jammed, and "the Senate Chamber could not contain even a small part of the throng that sought the Capitol to hear the celebrated lawyer." 61 With a plea for fair play and an appeal to authority ("I see two honourable members of this court, who were with me in the convention, in 1787 . . .") he began his address with an analysis of the constitutional prerequisites of impeachment. Rebuffing Campbell's suggestion that impeachment would lie for offenses not indictable, he reiterated Hopkinson's argument that "there are many crimes and misdemeanors for which a judge ought not to be impeached, unless immediately relating to his judicial conduct." 62 Pausing to let this assertion sink in, he resumed his argument with an apt illustration, also borrowed from Hopkinson: "Let us suppose a judge, provoked by insolence, should strike a person; this certainly would be an indictable, but not an impeachable offense. The offense for which a judge is liable to impeachment must not only be a crime or misdemeanor but a high crime or misdemeanor." 63 Having established this second proposition, the "Federal Bulldog" advanced to an extreme third stage: "Nay, sir, I am ready to go further, and say, there may be instances of very high crimes and misdemeanors, for which an officer ought not to be impeached, and removed from office; the crimes ought to be such as relate to his office, or which tend to cover the person, who committed them, with turpitude and infamy; such as show there can be no dependence on that integrity and honor which will secure the performance of his official duties."64 Such was the gist of Martin's legal argument. But this was no ordinary court of law, and Martin was well aware of the political implications of the cause he was pleading. These he captured in one brilliant paragraph: "I speak not, Sir, with a view to censure the principles or the conduct of any party, which hath prevailed in the United States since our revolution, but I wish to bring home to your feelings, what may happen at a future time. In republican governments there ever have been,-there ever will be, conflict of parties. Must an officer, for instance a judge, ever be in favour of the ruling party, whether wrong or right? or, looking forward to the triumph of the minority, must he, however improper their views, act with them? Neither the one conduct or the other is to be supposed but from a total dereliction of principle. Shall then a judge, by honestly performing his duty, and very possibly thereby offending both parties, be made the victim of the one or the other or perhaps of each, as they have power? No, Sir, I conceive that a judge should always consider himself safe while he violates no law, while he conscientiously discharges his duty, whomever he may displease thereby." 65 It was hard for any senator, even a Republican one adhering to the RandolphGiles theory of impeachment, to dissent from the above political abstraction, despite the fact that it may have borne little resemblance to the facts. Martin, having established in thirty minutes the outline of his case, proceeded to embellish his argument with a day and a half's searching review of the evidence adduced with respect to the first six articles. He was followed by Harper who concluded the summation for Chase with a lengthy speech ranging over the entire eight articles. Nicholson and Rodney occupied February 26th with speeches for the managers, and on February 27th Randolph brought the trial to a close with the final address for the House. It was a weak effort and John Quincy Adams, who witnessed the speech, noted that it had "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." 66 On March 1st the Senate voted, the Vice-president inquiring of each senator: "Is Samuel Chase, Esq., guilty or not guilty of a high crime or misdemeanor in the article of impeachment just read?" Of the eight articles, none received the required two-thirds vote and only three received a majority. Six Republicans, breaking ranks, voted not guilty on all eight articles. On article 5 they voted unanimously for acquittal.67 When the votes were tallied and checked Aaron Burr stood up, pounded his gavel and announced: "There not being a constitutional majority on any one article, it becomes my duty to pronounce that Samuel Chase, Esq., is acquitted on the articles of impeachment exhibited against him by the house of representatives." 68 Then Burr bowed to the judge and left the Senate chamber. The Chase impeachment trial was over. 6) VI. The Aftermath "Heaven forbid we should see another impeachment!" exclaimed one Republican after the Chase affair, and several years later Jefferson was to bemoan that impeachment was a "mere scarecrow." 70 Popular sentiment ran against the judge, one paper complaining bitterly: "The Judge has not been found innocent... [he has simply escaped] through the mercy of our Constitution. To men who estimate truth by probability, Mr. Chase must appear virtually condemned." 71 This bit of doublethink was characteristic of the country. The reasons for the decision, however, were a bit more complex. First, there can be no doubt that the ardor with which Chase was prosecuted had a negative effect on the Senate. The proceedings against Chase were brought, managed and argued by John Randolph, a man whose brilliant inconsistencies were not appreciated by all of the twenty-five Republicans in the Senate. Second, the theory of impeachment sometimes urged by Randolph, Giles and Nicholson was certainly far too extreme for a court manned predominantly by lawyers, who perhaps envisaged themselves upon the bench someday. Third, a spirit of fair play must have entered the Senate's deliberation. The impeachment had been procured along party lines and was tried before a court heavily weighed against the respondent. In addition, the managers made no effort to appear impartial, often using recess periods to talk with Republican members of the Senate. Randolph and Giles once left the Senate chamber to confer during the trial, which, John Quincy Adams noted, "is not very consistent with my ideas of impartial justice.' "72 Fourth, the managers were not only overwhelmed by the brilliance of Chase's counsel, but by every objective standard they were poorly prepared in their own right. Their witnesses did not appear when called, they were not ready for summation, their arguments on the articles of impeachment overlapped and their theory of impeachment remained inarticulate. They finished a distant second in this "unequal forensic contest." 73 The consequences of the verdict were also fourfold. First, the manners of the federal judges were said to improve remarkably. Second, federal judges subsequently refrained from active participation in politics. Third, threats of impeach 66 Adams, op. cit., note 23, at 359. 67 American State Trials, XI, 506. 69 Warren, op, cit., note 4, at 292. |
