The next day the Senate debated the form of its final judgment.[144] Bayard moved that the question should be put: “Is Samuel Chase guilty or not guilty of a high crime or misdemeanor as charged in the article just read?” The point was vital; for if this form should be adopted, the Senate returned to the ground it had deserted in the case of Judge Pickering, and every senator would be obliged to assert that Chase’s acts were crimes. At this crisis Giles abandoned the extreme impeachers. He made a speech repeating his old argument, and insisting that the House might impeach and the Senate convict not only for other than indictable offences, but for other than high crimes and misdemeanors; yet since in the present case the charges were avowedly for high crimes and misdemeanors, he was willing to take the question as Bayard proposed it, protesting meanwhile against its establishment as a precedent. Bayard’s Resolution was adopted March 1, a few moments before the hour of half-past twelve, which had been appointed for pronouncing judgment.
The Senate chamber was crowded with spectators when Vice-President Burr took the chair and directed the secretary to read the first article of impeachment. Every member of the Senate answered to his name. Tracy of Connecticut, prostrated by recent illness, was brought on a couch and supported to his seat, where his pale face added to the serious effect of the scene. The first article, which concerned the trial of Fries, was that on which Randolph had founded the impeachment, and on which the managers had thrown perhaps the greatest weight. As the roll was called, Senator Bradley of Vermont, first of the Republican members, startled the audience by saying “Not Guilty.” Gaillard of South Carolina, and, to the astonishment of every one, Giles, the most ardent of impeachers, repeated the same verdict. These three defections decided the result; but they were only the beginning. Jackson of Georgia, another hot impeacher, came next; then Dr. Mitchill, Samuel Smith of Maryland, and in quick succession all the three Smiths of New York, Ohio, and Vermont. A majority of the Senate declared against the article, and the overthrow of the impeachers was beyond expectation complete.
On the second article the acquittal was still more emphatic; but on the third the impeachers rallied,—Giles, Jackson, and Samuel Smith returned to their party, and for the first time a majority appeared for conviction. Yet even with this support, the impeachers were far from obtaining the required twenty-three votes; the five recalcitrant Northern democrats stood firm; Gaillard was not to be moved, and Stone of North Carolina joined him:—the impeachers could muster but eighteen votes. They did no better on the fourth article. On the fifth,—Randolph’s interpolated charge, which alleged no evil intent,—every member of the Senate voted “Not Guilty;” on the sixth, which was little more than a repetition of the fifth, only four senators could be found to condemn, and on the seventh, only ten. One chance of conviction remained, the eighth article, which covered the judge’s charge to the grand jury at Baltimore in 1803. There lay the true cause of impeachment; yet this charge had been least pressed and least defended. The impeachers brought out their whole strength in its support; Giles, Jackson, Samuel Smith, and Stone united in pronouncing the judge guilty: but the five Northern democrats and Gaillard held out to the last, and the managers saw themselves deserted by nearly one fourth of the Republican senators. Nineteen voices were the utmost that could be induced to sustain impeachment.
The sensation was naturally intense; and yet the overwhelming nature of the defeat would have warranted an excitement still greater. No one understood better the meaning of Chase’s acquittal than John Randolph, whose authority it overthrew. His anger showed itself in an act which at first alarmed and then amused his enemies. Hurrying from the Senate chamber to the House, he offered a Resolution for submitting to the States an amendment to the Constitution: “The judges of the Supreme and all other courts of the United States shall be removed by the President on the joint address of both Houses of Congress.” His friend Nicholson, as though still angrier than Randolph, moved another amendment,—that the legislature of any State might, whenever it thought proper, recall a senator and vacate his seat. These resolutions were by a party vote referred to the next Congress.
Randolph threatened in vain; the rod was no longer in his hands. His overthrow before the Senate was the smallest of his failures. The Northern democrats talked of him with disgust; and Senator Cocke of Tennessee, who had voted “Guilty” on every article of impeachment except the fifth, told his Federalist colleagues in the Senate that Randolph’s vanity, ambition, insolence, and dishonesty, not only in the impeachment but in other matters, were such as to make the acquittal no subject for regret.[145] Madison did not attempt to hide his amusement at Randolph’s defeat. Jefferson held himself studiously aloof. To Jefferson and men of his class Randolph seems to have alluded, in a letter written a few weeks later, as “whimsicals,” who “advocated the leading measures of their party until they were nearly ripe for execution, when they hung back, condemned the step after it was taken, and on most occasions affected a glorious neutrality.”[146] Even Giles turned hostile. He not only yielded to the enemies of Randolph in regard to the form of vote to be taken on the impeachment, and fairly joined them in the vote on the first article, but he also aided in offering Randolph a rebuke on another point connected with the impeachment.
In the middle of the trial, February 15, Randolph reported to the House, and the House quickly passed, a Bill appropriating five thousand dollars for the payment of the witnesses summoned by the managers. When this Bill came before the Senate, Bayard moved to amend it by extending its provisions to the witnesses summoned by Judge Chase. The point was delicate; for if the Senate was a court, and impeachment a criminal procedure, this court should follow the rules that guided other judicial bodies; and every one knew that no court in America or in Christendom obliged the State, as a prosecutor, to pay the witnesses of the accused. After the acquittal, such a rule was either equivalent to telling the House that its charges against Chase were frivolous and should never have been presented, or it suggested that the trial had been an official inquiry into the conduct of an officer, and not a criminal procedure at law. The Republicans might properly reject the first assumption, the Federalists ought to resist the second; yet when Bayard’s amendment came to a vote, it was unanimously adopted.[147] The House disagreed; the Senate insisted, and Giles led the Senate, affirming that he had drawn the form of summons, and that this form made no distinction between the witnesses for one party and the other. The argument was not decisive, for the court records showed at once by whom each witness was called; but Giles’s reasoning satisfied the Senate, and led to his appointment, March 3, with Bradley, an enemy of impeachment, as conferrees to meet Randolph, Nicholson, and Early on the part of the House. They disagreed; and Randolph, with his friends, felt that Giles and the Senate had inflicted on them a grievous insult. The Report of the conference committee was received by the House at about seven o’clock on the evening of March 3, when the Eighth Congress was drawing its last breath. Randolph, who reported the disagreement, moved that the House adhere; and having thus destroyed the Bill, he next moved that the Clerk of the House should be directed to pay the witnesses, or any other expense certified by the managers, from the contingent fund. He would have carried his point, although it violated every financial profession of the Republican party, but that the House was thin, and the Federalists, by refusing to vote, prevented a quorum. At half-past nine o’clock on Sunday night, the 3d of March, 1805, the Eighth Congress came to an end in a scene of total confusion and factiousness.
The failure of Chase’s impeachment was a blow to the Republican party from which it never wholly recovered. Chief-Justice Marshall at length was safe; he might henceforward at his leisure fix the principles of Constitutional law. Jefferson resigned himself for the moment to Randolph’s overthrow; but the momentary consolations passed away, and a life-long disappointment remained. Fifteen years later his regret was strongly expressed:—
“The Judiciary of the United States,” mourned the old ex-President,[148] “is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone.... Having found from experience that impeachment is an impracticable thing, a mere scarecrow, they consider themselves secure for life; they skulk from responsibility; ... an opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief-judge who sophisticates the law to his mind by the turn of his own reasoning.”
The acquittal of Chase proved that impeachment was a scarecrow; but its effect on impeachment as a principle of law was less evident. No point was decided. The theory of Giles, Randolph, and Rodney was still intact, for it was not avowedly applied to the case. The theory of Judge Chase’s counsel—that an impeachable offence must be also indictable, or even a violation of some known statute of the United States—was overthrown neither by the argument nor by the judgment. So far as Constitutional law was concerned, President Jefferson himself might still be impeached, according to the dictum of Madison, for the arbitrary removal of a useful tide-waiter, and Chief-Justice Marshall might be driven from the bench, as Giles wished, for declaring the Constitution to be above the authority of a statute; but although the acquittal of Chase decided no point of law except his innocence of high crimes or misdemeanors, as charged in the indictment, it proved impeachment to be “an impracticable thing” for partisan purposes, and it decided the permanence of those lines of Constitutional development which were a reflection of the common law. Henceforward the legal profession had its own way in expounding the principles and expanding the powers of the central government through the Judiciary.