John Marshall and the Constitution, a Chronicle of the Supreme Court

by Edward Samuel Corwin

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 associates. 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 Hampshire 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, assailing the repeal of the Judiciary Act and universal suffrage and predicting the deterioration of “our republican Constitution … into a mobocracy, the worst of all possible governments.” ¹ 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 assailed 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 Constitution 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.”

¹ 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 Hampshire 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 Pickering, 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 Constitution, … 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 Constitution.… 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 unconstitutional, 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 class of thirty-five, among whom was Oliver Ellsworth. Five years later he began to practice law on the Eastern Shore 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 passion, 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 damnation 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 Constitution. 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 latitudinarian 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 Constitution, the “high crimes and misdemeanors” for which impeachment is the constitutional 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 constitutionality 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 constitutionality 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 assumption 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!