“Where law is uncertain, partial, or arbitrary,” he said; “where justice is not impartially administered to all; where property is insecure, and the person is liable to insult and violence without redress by law,—the people are not free, whatever may be their form of government. To this situation I greatly fear we are fast approaching.... The late alteration of the Federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our State Constitution by the establishing of universal suffrage, and the further alteration that is contemplated in our State judiciary (if adopted) will in my judgment take away all security for property and personal liberty. 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.”
At the moment of Justice Chase’s outburst to the Baltimore grand jury, the President was at Washington deeply interested in the Louisiana business, and unaware that on the day when Chase delivered his tirade Livingston and Monroe in Paris were signing their names to a treaty which put the Administration beyond danger from such attacks. When he saw in the newspapers a report of what had been said from the bench at Baltimore, he wrote to Joseph Nicholson, in whose hands already lay the management of Pickering’s impeachment:[96]—
“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 to 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.”
“Non-intervention,” according to Talleyrand, “is a word used in politics and metaphysics, which means very nearly the same thing as intervention.” The event proved that non-intervention was wise policy; but Jefferson was somewhat apt to say that it was better he should not interfere in the same breath with which he interfered. The warning that he could not officially interfere seemed to imply that the quarrel was personal; for in the case of Pickering he had interfered with decision. If this was his view, the success of any attack upon Chase would be a gain to him, and he was so ordering as to make failure a loss only to those who undertook it. Nicholson, hot-headed though he was, did not enter readily into this hazardous venture. He reflected upon it all summer, and consulted the friends on whose support he depended. Macon wrote to him a letter of unusual length,[97] suggesting grave doubts whether a judge ought to be impeached for expressing to a grand jury political opinions which every man was at liberty to hold and express elsewhere, and closed by announcing the conviction that if any attempt were made to impeach, Nicholson ought not to be the leader. In this opinion Macon was evidently right, for Chase’s friends could not fail to suggest that Nicholson was to be rewarded by an appointment to Chase’s vacant seat on the Supreme Bench; but the House of Representatives contained no other leader whose authority, abilities, and experience warranted him in taking so prominent a part, unless it were John Randolph.
A worse champion than Randolph for a difficult cause could not be imagined. Between him and Jefferson little sympathy existed. Randolph had quarrelled with the branch of his family to which Jefferson was closely allied; and his private feelings stood in the way of personal attachment. His intimates in Congress were not chiefly Virginians, but men like Macon of North Carolina, Joseph Bryan of Georgia, and Nicholson of Maryland,—independent followers of Virginia doctrine, who owned no personal allegiance to Jefferson. That the President should have been willing to let such a man take entire responsibility for an impeachment was natural; but had Jefferson directed the step, he would never have selected Randolph to manage a prosecution on which the fate of his principles closely depended. Randolph was no lawyer; but this defect was a trifling objection compared with his greater unfitness in other respects. Ill-balanced, impatient of obstacles, incapable of sustained labor or of methodical arrangement, illogical to excess, and egotistic to the verge of madness, he was sparkling and formidable in debate or on the hustings, where he could follow the wayward impulse of his fancy running in the accustomed channels of his thought; but the qualities which helped him in debate were fatal to him at the bar.
Such was the origin of a measure which did more to define the character of the government than any other single event in Jefferson’s first administration, except the purchase of Louisiana. Randolph threw himself into the new undertaking; for he sincerely believed in the justice of his cause, and was alive to the danger of leaving the Supreme Court in the hands of Marshall and men of his stamp who were determined to consolidate the government. Yet the chance of obtaining a conviction, on a charge no stronger than that of the Baltimore address, was so slight as to incline Randolph against risking it; and he decided to insure success by putting the cases of Fries and Callender in the foreground.
This was not easily done. Pickering’s impeachment had been brought before the House by a Message from the President; but in Chase’s case the President preferred not to take part. Randolph was forced to escape the difficulty by an awkward manœuvre. During the autumn and early winter of 1803 Congress was busy with Louisiana legislation, and had no leisure for other matters; but soon after the new year Randolph rose and said[98] that in the course of the last session Mr. Smilie of Pennsylvania had made some statements in regard to Justice Chase’s conduct which seemed to call for notice, but that want of time had precluded action. Finding his attention thus drawn to the matter, Randolph gravely continued, he had felt it his duty to investigate Smilie’s charges; and having convinced himself that ground for impeachment existed, he asked the House to appoint a committee of inquiry. Such an introduction of a great constitutional struggle was not imposing; but party discipline was at its highest point, and after some vigorous Federalist resistance Randolph carried his motion by a vote of eighty-one to forty. Three Northern democrats voted with the Federalists; and although the defection seemed not serious so far as concerned the scientific Dr. Samuel L. Mitchill, whose political principles were liberal enough at all times, some importance even then attached to the vote of John Smith of New York, who was about to enter the Senate and to act as one of Chase’s judges.
Meanwhile Judge Pickering’s trial began. The Senate, “sitting as a Court of Impeachments,” listened while Nicholson, Randolph, Rodney, and six or seven other Republican members “exhibited the grand inquest of the nation.” The character of a court was taken in all the forms of summons. The Secretary of the Senate signed, and the Sergeant-at-Arms served, the summons to Judge Pickering, while the witnesses were regularly subpœnaed by the Secretary, “to appear before the Senate of the United States in their capacity of a Court of Impeachments,” and the subpœnas were served by the marshals of the district courts.
Judge Pickering was ordered to appear on the 2d of March, 1804; but when the day arrived, and the Senate was assembled, with the managers in attendance, John Pickering’s name was three times called without an answer. Vice-President Burr then submitted to the Senate a petition from Jacob Pickering, son of the impeached judge, praying the court to postpone the trial that he might have time to collect evidence with the view of showing that when the alleged crimes were committed, and two years before as well as ever since, the judge was wholly deranged, incapable of transacting any kind of business which required the exercise of reason, and therefore incapable of corruption of judgment, no subject of impeachment, and amenable to no tribunal for his actions. With this petition a letter from Robert G. Harper was laid before the court, requesting to be allowed to appear on the part of the petitioner in support of the petition. Harper, having been invited to a seat within the bar, asked whether he might be heard, not as counsel for Judge Pickering, who being insane could give no authority for the purpose, but as agent for the petitioner, to ask a postponement.
The question threw all parties into agitation. The managers instantly protested that Harper in such a character could not be heard. The senators retired for consultation, and debated all day without coming to a decision. The impeaching party dreaded the alternative to which the proof of insanity must force them,—of saying either that an insane man was responsible, or that a man mentally irresponsible might still be guilty of “high crimes and misdemeanors” for purposes of impeachment. Senator Jackson of Georgia, who had always the merit of speaking with candor, avowed the fear that presently Judge Chase’s friends would come and pretend that he too was mad;[99] but he could not, even with Breckenridge’s help, carry his point. The Northern democrats flinched. Six of them and three Southern senators voted with the Federalists, and admitted Harper in his volunteer character.