Harper put in his testimony, which was decisive in regard to the insanity; but when he rose to do so, the managers retired, saying that they considered themselves under no obligation to discuss a preliminary question raised by an unauthorized third party. The Senate went on with its session. The managers were obliged to maintain that insanity was no bar to impeachment, and the Northern democrats were forced to accept the doctrine.[100]
This view of impeachment, so far as concerned the judiciary, had strong arguments in its favor. Although the Constitution made judges’ tenure of office dependent on their good behavior, it provided no other means than that of impeachment for their removal. Even in England and in Massachusetts, judges could be removed by the joint action of Legislature and Executive; but this was not the case under the Constitution of the United States. If insanity or any other misfortune was to bar impeachment, the absurdity followed that unless a judge committed some indictable offence the people were powerless to protect themselves. Even Federalists might reasonably assume that the people had never placed themselves in such a situation, but that in making their judges subject to impeachment for misdemeanors they had meant to extend the scope of impeachment, and to include within it all cases of misbehavior which might require a removal from office for the good of the public service.
This ground was fairly taken by the impeachers, though not formally expressed. When Harper had put in his evidence and retired, the Senate sent again for the managers, who occupied one day in supplying evidence, and then left their case without argument in the hands of the court. The Senate found itself face to face with an issue beyond measure delicate, which had never been discussed, but from which escape was impossible. Acquittal of Pickering would probably be fatal to the impeachment of Chase, and would also proclaim that the people could not protect themselves from misbehavior in their judicial servants. On the other hand, conviction would violate the deep principle of law and justice that an insane man was not responsible for his acts, and not amenable to any earthly tribunal. Virginians like Randolph and Wilson Cary Nicholas, or John Breckenridge, were ready to make a precedent which should fix the rule that impeachment need not imply criminality, and might be the equivalent to removal by address. The Northern democrats were not unwilling to accept this view; but their consciences revolted against saying “guilty” where no guilt was implied or proved.
To escape this objection a compromise was proposed and adopted. The Federalists would have forced senators to say in their final vote that Judge Pickering was “guilty” or “not guilty” of high crimes and misdemeanors. Senator Anderson of Tennessee eluded this challenge by moving for a yea-and-nay vote on the question whether Pickering was guilty “as charged.” The nine Federalists alone opposed his motion, which was at length adopted by a majority of two to one. By a vote of nineteen to seven Judge Pickering was declared “guilty as charged” in the articles of impeachment; and by a vote of twenty to six the Senate resolved that he ought to be removed from office.
Two of the Federalist senators refused to vote, on the ground that the proceedings were irregular; Senator Bradley of Vermont, Senator Armstrong of New York, and Senator Stone of North Carolina tacitly protested by absenting themselves. In a Senate of thirty-four members only twenty-six voted, and only nineteen voted for conviction. So confused, contradictory, and irregular were these proceedings that Pickering’s trial was never considered a sound precedent. That an insane man could be guilty of crime, and could be punished on ex parte evidence, without a hearing, with not even an attorney to act in his behalf, seemed such a perversion of justice that the precedent fell dead on the spot. Perhaps, from the constitutional point of view, a more fatal objection was that in doing what the world was sure to consider an arbitrary and illegal act, the Virginians failed to put on record the reasons which led them to think it sound in principle. In the Louisiana purchase they had acted in a way equally arbitrary, but they had given their reasons for thinking themselves in the right. In Pickering’s case not a word was publicly spoken on either side; a plainly extra-constitutional act was done without recording the doctrine on which it rested.
The Republicans showed no hesitation. John Randolph’s orders were obeyed without open protest. Senator Bradley of Vermont talked strongly in private against them; Senator Armstrong of New York would not support them; barely half the Senate voted in their favor; but Randolph forced his party forward without stopping to see how well his steps were taken, or how far he was likely to go. As though to intimidate the Senate, March 6, the day after the managers were defeated on the vote to hear Harper, Randolph reported to the House a resolution ordering the impeachment of Justice Chase. March 12, the day when the Senate voted Pickering guilty, the House took up Randolph’s report, and the majority, without debate, voted by seventy-three to thirty-two that Chase should be impeached. Not a Republican ventured to record a vote in the negative. The next morning Randolph again appeared at the bar of the Senate, and announced that the House of Representatives would in due time exhibit articles of impeachment against Samuel Chase.
CHAPTER VIII.
As the year 1804 began, with Louisiana annexed, the Electoral Amendment secured, and the impeachments in prospect, the Federalists in Congress wrought themselves into a dangerous state of excitement. All agreed that the crisis was at hand; democracy had nearly reached its limit; and, as Justice Chase said from the bench, peace and order, freedom and property, would soon be destroyed. They discussed in private what should be done; and among the New Englanders almost all the men of weight were found to favor the policy of at least saving New England. Of the six Federalist senators from the Eastern States,—Plumer and Olcott of New Hampshire, Pickering and Adams of Massachusetts, Tracy and Hillhouse of Connecticut,—all but Olcott and Adams thought a dissolution of the Union inevitable.[101] Among the Federalist members of the House, Roger Griswold of Connecticut was the most active; he too was convinced that New England must protect herself. Samuel Hunt of New Hampshire, and Calvin Goddard of Connecticut held the same opinion. Indeed, Pickering declared that he did not know “one reflecting Nov-Anglian” who held any other.
In the month of January, 1804, despair turned into conspiracy. Pickering, Tracy, Griswold, Plumer, and perhaps others of the New England delegation, agreed to organize a movement in their States for a dissolution of the Union. They wrote to their most influential constituents, and sketched a plan of action. In a letter to George Cabot, Pickering recounted the impending dangers[102]:—
“By the Philadelphia papers I see that the Supreme Court judges of Pennsylvania are to be hurled from their seats, on the pretence that in punishing one Thomas Passmore for a contempt they acted illegally and tyrannically. I presume that Shippen, Yates, and Smith are to be removed by the Governor, on the representation of the Legislature. And when such grounds are taken in the National and State legislatures to destroy the rights of the judges, whose rights can be safe? Why destroy them, unless as the prelude to the destruction of every influential Federalist and of every man of considerable property who is not of the reigning sect? New judges, of characters and tempers suited to the object, will be the selected ministers of vengeance.”