The blows of Chase's strong counsel, falling in unbroken succession, had shaken the nerve of the House managers. One of these, Joseph H. Nicholson of Maryland, now replied. Posterity would indeed be the final judge of Samuel Chase. Warren Hastings had been acquitted; "but is there any who hears me, that believes he was innocent?" The judgment of the Senate involved infinitely more than the fortunes of Chase; by it "must ultimately be determined whether justice shall hereafter be impartially administered or whether the rights of the citizen are to be prostrated at the feet of overbearing and tyrannical judges."
Nicholson denied that the House managers had "resorted to the forlorn hope of contending that an impeachment was not a criminal prosecution, but a mere inquest of office.... If declarations of this kind have been made, in the name of the Managers, I here disclaim them. We do contend that this is a criminal prosecution, for offenses committed in the discharge of high official duties."[553]
The Senate was dumbfounded, the friends of Chase startled with joyful surprise; a gasp of amazement ran through the overcrowded Chamber! Nicholson had abandoned the Republican position—and at a moment when Harper had all but admitted it to be sound. What could this mean but that the mighty onslaughts of Martin and Hopkinson had disconcerted the managers, or that Republican Senators were showing to the leaders signs of weakening in support of the party doctrine.
At any rate, Nicholson's admission was an irretrievable blunder. He should have stoutly championed his party's theory upon which Chase had been impeached and thus far tried, ignored the subject entirely, or remained silent. Sadly confused, he finally reversed his argument and swung back to the original Republican theory.
He cited many hypothetical cases where an officer could not be haled before a criminal court, but could be impeached. One of these must have furnished cause for secret mirth to many a Senator: "It is possible," said Nicholson, "that the day may arrive when a President of the United States ... may endeavor to influence [Congress] by holding out threats or inducements to them.... The hope of an office may be held out to a Senator; and I think it cannot be doubted, that for this the President would be liable to impeachment, although there is no positive law forbidding it."
Lucky for Nicholson that Martin had spoken before him and could not reply; fortunate for Jefferson that the "impudent Federal Bulldog,"[554] as the President afterward styled Martin, could not now be heard. For his words would have burned the paper on which the reporters transcribed them. Every Senator knew how patronage and all forms of Executive inducement and coercion had been used by the Administration in the passage of most important measures—the Judiciary repeal, the Pickering impeachment, the Yazoo compromise, the trial of Chase. From the floor of the House John Randolph had just denounced, with blazing wrath, Jefferson's Postmaster-General for offering Government contracts to secure votes for the Yazoo compromise.[555]
For two hours and a half Nicholson continued,[556] devoting himself mainly to the conduct of Chase during the trial of Fries. He closed by pointing out the inducements to a National judge to act as a tyrannical tool of a partisan administration—the offices with which he could be bribed, the promotions by which he could be rewarded. The influence of the British Ministry over the judges has been "too flagrant to be mistaken." For example, in Ireland "an overruling influence has crumbled [an independent judiciary] into ruins. The demon of destruction has entered their courts of justice, and spread desolation over the land. Execution has followed execution, until the oppressed, degraded and insulted nation has been made to tremble through every nerve, and to bleed at every pore."
The fate of Ireland would be that of America, if an uncontrolled Judiciary were allowed to carry out, without fear of impeachment, the will of a high-handed President, in order to win the preferments he had to offer. Already "some of our judges have been elevated to places of high political importance.... Let us nip the evil in the bud, or it may grow to an enormous tree, bearing destruction upon every branch."[557]
Cæsar A. Rodney of Delaware strove to repair the havoc Nicholson had wrought; he made it worse. The trial was, he said, "a spectacle truly solemn and impressive ... a trial of the first importance, because of the first impression; ... a trial ... whose novelty and magnitude have excited so much interest ... that it seems to have superseded for the moment, not only every other grave object or pursuit, but every other fashionable amusement or dissipation."[558]
Rodney flattered Burr, whose conduct of the trial had been "an example worthy of imitation." He cajoled the Senators, whose attitude he had "observed with heartfelt pleasure and honest pride"; and he warned them not to take as a precedent the case of Warren Hastings, "that destroyer of the people of Asia, that devastator of the East,"—murderer of men, violator of zenanas, destroyer of sacred treaties, but yet acquitted by the British House of Lords.