Joseph Hopkinson opened for the defence. Friends and enemies joined in applauding the vigor of this young man’s attack. The whole effort of Chase’s counsel was to drive the impeachers within the limits of law, and compel them to submit to the restrictions of legal methods. Hopkinson struck into the heart of the question. He maintained that under the Constitution no judge could be lawfully impeached or removed from office for any act or offence for which he could not be indicted; “misdemeanor,” he argued, was a technical term well understood and defined, which meant the violation of a public law, and which, when occurring in a legal instrument like the Constitution, must be given its legal meaning. After stating this proposition with irresistible force, he dealt with Article I. of the impeachment, which covered the case of Fries, and shook it to pieces with skill very unlike the treatment of Early and Campbell. Barton Key next rose, and dealt with Articles II., III., and IV., covering part of Callender’s case; he was followed by Charles Lee, who succeeded in breaking down Randolph’s interpolated Articles V. and VI. Then Luther Martin appeared on the scene, and the audience felt that the managers were helpless in his hands.
This extraordinary man—“unprincipled and impudent Federalist bulldog,” as Jefferson called him—revelled in the pleasure of a fight with democrats. The bar of Maryland felt a curious mixture of pride and shame in owning that his genius and vices were equally remarkable. Rough and coarse in manner and expression, verbose, often ungrammatical, commonly more or less drunk, passionate, vituperative, gross, he still had a mastery of legal principles and a memory that overbalanced his faults, an audacity and humor that conquered ill-will. In the practice of his profession he had learned to curb his passions until his ample knowledge had time to give the utmost weight to his assaults. His argument at Chase’s trial was the climax of his career; but such an argument cannot be condensed in a paragraph. Its length and variety defied analysis within the limits of a page, though its force made other efforts seem unsubstantial.
Martin covered the same ground that his associates had taken before him, dwelling earnestly on the contention that an impeachable offence must be also indictable. Harper followed, concluding the argument for the defence, and seeming to go beyond his associates in narrowing the field of impeachment; for he argued that it was a criminal prosecution, which must be founded on some wilful violation of a known law of the land,—a line of reasoning which could end only in requiring the violation of an Act of Congress. This theory did not necessarily clash with that of Martin. No hesitation or inconsistency was shown on the side of the defence; every resource of the profession was used with energy and skill.
The managers then put forward their best pleaders; for they had need of all their strength. Nicholson began by disavowing the idea that impeachment was a mere inquest of office; this impeachment was, he said, a criminal prosecution intended not merely to remove, but to punish, the offender. On the other hand, he maintained that since judges held their commissions during good behavior, and could be removed only by impeachment, the Constitution must have intended that any act of misbehavior should be considered a misdemeanor. He showed the absurdities which would rise from construing the Constitution in a legal sense. His argument, though vigorous and earnest, and offering the advantages of a plausible compromise between two extreme and impracticable doctrines, yet evidently strained the language of the Constitution and disregarded law. As Nicholson himself said, he discarded legal usage: “In my judgment the Constitution of the United States ought to be expounded upon its own principles, and foreign aid ought never to be called in. Our Constitution was fashioned after none other in the known world; and if we understand the language in which it is written, we require no assistance in giving it a true exposition.” He wanted a construction “purely and entirely American.” In the mouth of a strict constructionist this substitution of the will of Congress for the settled rules of law had as strange a sound as Luther Martin could have wished, and offered another example of the instinct, so striking in the Louisiana debate, which not even Nicholson, Randolph, or Jefferson himself could always resist.
Rodney, the same day, followed Nicholson; and as though not satisfied with his colleague’s theory, did what Nicholson, in the name of all the managers, had a few hours before expressly disclaimed,—he adopted and pressed Giles’s theory of impeachment with all the precision of language he could command. Nicholson seemed content to assume impeachment as limited to “treason, bribery, or other high crimes and misdemeanors;” but in his view misbehavior might be construed as a misdemeanor in a “purely and entirely American” sense. Rodney was not satisfied with this argument, and insisted that the Constitution imposed no limit on impeachment.
“Is there a word in the whole sentence,” he asked, “which expresses an idea, or from which any fair inference can be drawn, that no person shall be impeached but for ‘treason, bribery, or other high crimes and misdemeanors?’... From the most cursory and transient view of this passage I submit with due deference that it must appear very manifest that there are other cases than those here specified for which an impeachment will lie and is the proper remedy.”
The judges held their offices during good behavior; the instant a judge should behave ill his office became forfeited. To ascertain the fact “officially, or rather judicially,” impeachment was provided; the authority of the Senate was therefore coextensive with the complaint.
Rodney stated this principle broadly, but did not rest upon it; on the contrary, he accepted the respondent’s challenge, and undertook to show that Chase had been guilty of crimes and misdemeanors in the technical sense of the term. Probably he was wise in choosing this alternative; for no one could doubt that his constitutional doctrine was one into which Chase’s counsel were sedulously trying to drive him. If Rodney was right, the Senate was not a court of justice, and should discard judicial forms. Giles had seen this consequence of the argument, and had acted upon it, until beaten by its inevitable inconsistencies; at least sixteen senators were willing to accept the principle, and to make of impeachment an “official, or rather judicial,” inquest of office. Judge Chase’s counsel knew also that some half-dozen Republican senators feared to allow a partisan majority in the Senate to decide, after the fact, that such or such a judicial opinion had forfeited the judge’s seat on the bench. This practice could end only in making the Senate, like the House of Lords, a court of last appeal. Giles threatened to impeach Marshall and the whole Supreme Court on Rodney’s theory; and such a threat was as alarming to Dr. Mitchill of New York, or Senator Bradley of Vermont, as it was to Pickering and Tracy.
When Rodney finished, the theory of impeachment was more perplexed than ever, and but one chance remained to clear it. All the respondent’s counsel had spoken in their turn; all the managers had expounded their theories: John Randolph was to close. Randolph was an invalid, overwhelmed by work and excitement, nervous, irritable, and not to be controlled. When he appeared in the box, Feb. 27, 1805, he was unprepared; and as he spoke, he not only made his usual long pauses for recollection, but continually complained of having lost his notes, of his weakness, want of ability, and physical as well as moral incompetence. Such expressions in the mouths of other men might have passed for rhetoric; but Randolph’s speech showed that he meant all he said. He too undertook to answer the argument of Luther Martin, Harper, and Hopkinson on the nature of impeachment; but he answered without understanding it,—calling it “almost too absurd for argument,” “a monstrous pretension,” “a miserable quibble,” but advancing no theory of his own, and supporting neither Campbell’s, Nicholson’s, nor Rodney’s opinion. After a number of arguments which were in no sense answers, he said he would no longer worry the good sense of the Court by combating such a claim,—a claim which the best lawyers in America affirmed to be sound, and the two ablest of the managers had exhausted themselves in refuting.
Randolph’s closing speech was overcharged with vituperation and with misstatements of fact and law, but was chiefly remarkable on account of the strange and almost irrational behavior of the speaker. Randolph’s tall, thin figure, his penetrating eyes and shrill voice, were familiar to the society of Washington, and his violence of manner in the House only a short time before, in denouncing Granger and the Yazoo men, had prepared his audience for some eccentric outburst; but no one expected to see him, “with much distortion of face and contortion of body, tears, groans, and sobs,” break down in the middle of his self-appointed task, and congratulate the Senate that this was “the last day of my sufferings and of yours.”[143]