That a judge was impeachable for a mistake in declaring the law seemed therefore to be settled, so far as the House and its managers could decide the point. Judge Chase’s counsel assumed that this principle, which had been so publicly proclaimed, was seriously meant; and one after another dwelt on the extravagance of the doctrine that a civil officer should be punished for mere error of judgment. In reply, Joseph H. Nicholson, Randolph’s closest ally, repudiated the theory on which he had himself acted in Pickering’s case, and which Giles, Randolph, and Campbell pressed; he even denied having heard such ground taken as that an impeachment was a mere inquest of office:—
“For myself, I am free to declare that I heard no such position taken. 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 offences committed in the discharge of high official duties, and we now support it,—not merely for the purpose of removing an individual from office, but in order that the punishment inflicted on him may deter others from pursuing the baneful example which has been set them.”
The impeachment, then, was a criminal prosecution, and the Senate was a criminal court; yet no offence was charged which the law considered a misdemeanor, while error of judgment, with no imputed ill-intent, was alleged as a crime.
Staggering under this load of inconsistencies, uncertain what line of argument to pursue, and ignorant whether the Senate would be ruled by existing law or invent a system of law of its own, the managers, Feb. 9, 1805, appeared in the Senate chamber to open their case and produce their witnesses. Upon the popular imagination of the day the impeachment of Warren Hastings had taken deep hold. Barely ten years had passed since the House of Lords rendered its judgment in that famous case; and men’s minds were still full of associations with Westminster Hall. The impeachment of Judge Chase was a cold and colorless performance beside the melodramatic splendor of Hastings’s trial; but in the infinite possibilities of American democracy, the questions to be decided in the Senate chamber had a weight for future ages beyond any that were then settled in the House of Lords. Whether Judge Chase should be removed from the bench was a trifling matter; whether Chief-Justice Marshall and the Supreme Court should hold their power and principles against this combination of State-rights conservatives and Pennsylvania democrats was a subject for grave reflection. Men who did not see that the tide of political innovation had long since turned, and that the French revolution was no longer raging, were consumed with anxiety for the fate of Chase, and not wholly without reason; for had Marshall been a man of less calm and certain judgment, a single mistake by him might easily have prostrated the judiciary at the feet of partisans.
By order of the Vice-President the Senate chamber was arranged in accordance with his ideas of what suited so grave an occasion. His own chair stood, like that of the chief-justice in the court-room, against the wall, and on its right and left crimson benches extended like the seats of associate judges, to accommodate the thirty-four senators, who were all present. In front of the Vice-President, on the right, a box was assigned to the managers; on the left, a similar box was occupied by Justice Chase and his counsel. The rest of the floor was given to members of the House, foreign ministers, and other official persons. Behind these a new gallery was erected especially for ladies, and at each end of this temporary gallery boxes were reserved for the wives and families of public officers. The upper and permanent gallery was public. The arrangement was a mimic reproduction of the famous scene in Westminster Hall; and the little society of Washington went to the spectacle with the same interest and passion which had brought the larger society of London to hear the orations of Sheridan and Burke.
Before this audience Justice Chase at last appeared with his array of counsel at his side,—Luther Martin, Robert Goodloe Harper, Charles Lee, Philip Barton Key, and Joseph Hopkinson. In such a contest weakness of numbers was one element of strength; for the mere numbers of Congressmen served only to rouse sympathy for the accused. The contest was unequal in another sense, for the intellectual power of the House was quite unable on the field of law to cope with the half-dozen picked and trained champions who stood at the bar. Justice Chase alone was a better lawyer than any in Congress; Luther Martin could easily deal with the whole box of managers; Harper and Lee were not only lawyers, but politicians; and young Hopkinson’s genius was beyond his years.
In the managers’ box stood no lawyer of corresponding weight. John Randolph, who looked upon the impeachment as his personal act, was not only ignorant of law, but could not work by legal methods. Joseph H. Nicholson and Cæsar A. Rodney were more formidable; but neither of them would have outweighed any single member of Chase’s counsel. The four remaining managers, all Southern men, added little to the strength of their associates. John Boyle of Kentucky lived to become chief-justice of that State, and was made district judge of the United States by a President who was one of the Federalist senators warmly opposed to the impeachment. George Washington Campbell of Tennessee lived to be a senator, Secretary of the Treasury, and minister to Russia. Peter Early of Georgia became a judge on the Supreme Bench of his own State. Christopher Clark of Virginia was chosen only at the last moment to take the place of Roger Nelson of Maryland, who retired. None of them rose much above the average level of Congress; and Chase’s counsel grappled with them so closely, and shut them within a field so narrow, that no genius could have found room to move. From the moment that the legal and criminal character of impeachment was conceded, Chase’s counsel dragged them hither and thither at will.
Feb. 9, 1805, the case was opened by John Randolph. Randolph claimed to have drawn all the articles of impeachment with his own hand. If any one understood their character, it was he; and the respondent’s counsel naturally listened with interest for Randolph’s explanation or theory of impeachment, and for the connection he should establish between his theory and his charges. These charges were numerous, but fell under few heads. Of the eight articles which Randolph presented, the first concerned the judge’s conduct at the trial of John Fries for treason in Philadelphia in 1800; the five following articles alleged a number of offences committed during the trial of James Thompson Callender for libel at Richmond in that year; Article VII. charged as a misdemeanor the judge’s refusal, in the same year, to dismiss the grand jury in Delaware before indicting a seditious printer; finally, Article VIII. complained of the judge’s harangue to the grand jury at Baltimore in May, 1803, which it characterized as “highly indecent, extrajudicial, and tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan.”
Serious as some of these charges certainly were,—for in the case of Callender, even more than in that of Fries, Chase’s temper had led him to strain, if not to violate, the law,—none of the articles alleged an offence known to the statute-books or the common law; and Randolph’s first task was to show that they could be made the subject of impeachment, that they were high crimes and misdemeanors in the sense of the Constitution, or that in some sense they were impeachable. Instead of arguing this point, he contented himself by declaring the theory of the defence to be monstrous. His speech touched the articles, one by one, adding little to their force, but piling one mistake on another in its assertions of fact and assumptions of law.
Ten days passed in taking evidence before the field was cleared and the discussion began. Then, Feb. 20, 1805, Early and Campbell led for the managers in arguments which followed more or less closely in Randolph’s steps, inferring criminality in the accused from the manifest tenor of his acts. Campbell ventured to add that he was not obliged to prove the accused to have committed any crime known to the law,—it was enough that he had transgressed the line of official duty with corrupt motives; but this timid incursion into the field of the Constitution was supported by no attempt at argument. “I lay it down as a settled rule of decision,” said he, “that when a man violates a law or commits a manifest breach of his duty, an evil intent or corrupt motive must be presumed to have actuated his conduct.”