CHAPTER X.
The schisms which characterized the last year of President Jefferson’s first term increased the difficulty of convicting Justice Chase. Burr was still Vice-President, and was sure not only to preside at the trial, but also, unless conciliated, to encourage rebellion against the Virginians. He had warm friends even in the Senate; and he was observed to cultivate close social relations with John Smith, the senator from Ohio, whose vote was likely to be necessary for conviction. Although the two senators from New York were no friends of Burr, one of them, Dr. Samuel L. Mitchill, was known to oppose impeachment; and not only he, but also his colleague, another John Smith, when members of the House, voted against Randolph’s motion for a committee of inquiry. Senator Bradley of Vermont privately talked with earnestness against the Pickering impeachment, and never favored that of Chase. His colleague, Israel Smith, shared his doubts. Twenty-three votes were required to convict, and the Republicans had but twenty-five senators against nine Federalists. A defection of three Republican senators would be fatal; but the votes of at least five were in doubt.
Randolph’s attack on the Yazoo Republicans and on the friends of Madison took from them all desire to strengthen his influence; while, as though to complicate confusion, his assault on his own party was cheered by Duane and the “Aurora,” until the Pennsylvania schism seemed about to join with a Virginia schism for the overthrow of the judiciary in the first place, and of Madison and Gallatin afterward. A collapse of the Republican party was to be feared. In the success of impeachment, the interests of Duane and Randolph were closely connected, and Duane controlled Pennsylvania as Randolph ruled Virginia. Everything tended to show that Chase’s conviction would add to the power already in the hands of these two men; and hands less fitted to guide a government or less trusted by moderate Republicans could hardly be found in either party.
Duane’s support of Randolph was the warmer because his own attack on the judiciary failed. The Pennsylvania judges were brought to trial in January, 1805. The managers for the Legislature, knowing no law themselves and unable to persuade any competent Pennsylvania lawyer to act as counsel, sent for Cæsar A. Rodney from Delaware to conduct the case. So important did Randolph and Nicholson at Washington think the success of the Pennsylvania impeachment, that at the end of December, 1804, they allowed Rodney to drop his work as member of Congress and manager of Chase’s trial, in order to hurry to Lancaster and do battle with Dallas, Jefferson’s district attorney, who was defending the judges. After a long struggle, Jan. 28, 1805, the Senate at Lancaster came to a vote, and Rodney was beaten. Thirteen senators declared the judges guilty,—three less than the required two thirds.
This defeat of the impeachers occurred the day before Randolph attacked Granger and the Yazoo claims in Congress. During the week that preceded Chase’s trial, Randolph’s bad management or ill-luck seemed accumulating disasters on his head. He roused needless hatred against himself in Congress; his alliance with Duane was unsuccessful; he exhausted his strength in fighting the Yazoo Bill, and was in no condition of mind or body to meet the counsel of Judge Chase.
Neither the Administration nor his Virginia friends failed to support Randolph. They made efforts to conciliate Burr, whose opposition to the impeachment was most feared. Jefferson appointed J. B. Prevost of New York, Burr’s stepson, a judge of the Superior Court at New Orleans; James Brown, who married Mrs. Burr’s sister, was made secretary to the Louisiana Territory and sent to govern St. Louis, solely on Burr’s recommendation; James Wilkinson, one of Burr’s most intimate friends and general-in-chief of the army, was made governor of the Louisiana Territory,—an appointment directly opposed to Jefferson’s theories about the union of civil and military authority.[137] Besides these conciliatory compliments the President repeatedly invited Burr to dinner, and treated him with more attention than ever before;[138] both Madison and Gallatin kept up friendly relations with him; while Senator Giles of Virginia drew an Address to Governor Bloomfield of New Jersey, and caused it to be signed by all the senators who could be induced to let their names be used, requesting that a nolle prosequi should be entered on the indictment against Burr found by the grand jury of Bergen county.
The Virginians closed their quarrels for the moment in order to support the impeachment. William B. Giles, who came to the Senate in place of Wilson Cary Nicholas, acted as Randolph’s representative in shaping the Senate’s rules.[139] He canvassed its members, and dealt with those who doubted, laboring earnestly and openly to bring senators to the Virginia standpoint, as fixed by him in a speech intended to serve as guide in framing rules for the proceedings about to begin. This speech, made Dec. 20, 1804,[140] maintained that the Constitution put no limit on impeachment, but said only that the Senate should try all impeachments; and therefore, while any civil officer convicted of treason, bribery, or other high crimes and misdemeanors should be removed from office, in all other cases not enumerated the Senate might at its discretion remove, disqualify, or suspend the officer. Thus Judge Pickering had been removed, said Giles, though undoubtedly insane and incapable of committing any crime or of making his defence. “So the assumption of power on the part of the Supreme Court in issuing their process to the office of the Secretary of State, directing the Executive how a law of the United States should be executed, and the right which the courts have assumed to themselves of reviewing and passing upon the Acts of the Legislature in other cases,” were matter of impeachment. In arguing this thesis Giles was obliged to take the ground that the Senate was not a court, and ought to discard all analogy with a court of justice;[141] impeachment need imply no criminality or corruption, and removal was nothing more than a notice to the impeached officer that he held opinions dangerous to the State, and that his office must be put in better hands. He induced the Senate to strike out the word “court” where it occurred in the proposed rules;[142] and at length went so far as to deny that the secretary of the Senate could administer the oath to witnesses, or that the Senate had power to authorize the secretary to administer such an oath, but must send for a magistrate competent for the purpose. Unfortunately for him, the impeachment of Judge Pickering was a precedent directly opposed to this doctrine. He was compelled to submit while the Senate unwillingly took the forms of a court.
Giles’s view of impeachment, which was the same with that of Randolph, had the advantage of being clear and consistent. The opposite extreme, afterward pressed by Luther Martin and his associate counsel for the defence, restricted impeachment to misdemeanors indictable at law,—a conclusion not to be resisted if the words of the Constitution were to be understood in a legal sense. Such a rule would have made impeachment worthless for many cases where it was likely to be most needed; for comparatively few violations of official duty, however fatal to the State, could be brought within this definition. Giles might have quoted Madison in support of the broader view; and if Madison did not understand the Constitution, any other Virginian might be excused for error. So far back as the year 1789, when Congress began to discuss the President’s powers, Madison said: “I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust.” Such a misdemeanor was certainly not indictable, and could not technically be brought within the words of the Constitution; it was impeachable only on Giles’s theory.
The Senate became confused between these two views, and never knew on what theory it acted. Giles failed to take from its proceedings the character of a court of justice; but though calling itself a court of justice, it would not follow strict rules of law. The result was a nondescript court, neither legal nor political, making law and voting misdemeanors for itself as it went, and stumbling from one inconsistency to another.
The managers added to the confusion. They put forward no steady theory of their own as to the nature of impeachment; possibly differing in opinion, they intentionally allotted different lines of argument to each. In opening the case, Feb. 20, 1805, one of the managers, George W. Campbell of Tennessee, took the ground that “misdemeanor” in the Constitution need imply no criminality. “Impeachment,” said he, “according to the meaning of the Constitution, may fairly be considered a kind of inquest into the conduct of an officer merely as it regards his office.... It is more in the nature of a civil investigation than of a criminal prosecution.” Such seemed to be the theory of the managers and of the House; for although the articles of impeachment reported by Randolph in March, 1804, had in each case alleged acts which were inspired by an evil intent to oppress the victim or to excite odium against the Government, and were at least misdemeanors in the sense of misbehavior, Randolph at the last moment slipped into the indictment two new articles, one of which alleged no evil intent at all, while both alleged, at worst, errors in law such as every judge in the United States had committed. Article V. charged that Chase had issued a capias against Callender, when the law of Virginia required a summons to appear at the next court. Article VI. charged that he had, “with intent to oppress,” held Callender for trial at once, contrary to the law of Virginia. Every judge on the Supreme Bench had ruled that United States courts were not bound to follow the processes of the State courts; Chief-Justice Marshall himself, as Giles threatened, must be the first victim if such an offence were a misdemeanor in constitutional law.