"The other charges except the 1st & 4th which I suppose to be altogether unfounded, seem still less to furnish cause for impeachment. But the little finger of [blotted out--probably "democracy"] is heavier than the loins of ----.[492]

"Farewell--With much respect and esteem....

"J. MARSHALL."[493]

Marshall thus suggested the most radical method for correcting judicial decisions ever advanced, before or since, by any man of the first cla.s.s.

Appeals from the Supreme Court to Congress! Senators and Representatives to be the final judges of any judicial decision with which a majority of the House was dissatisfied! Had we not the evidence of Marshall's signature to a letter written in his well-known hand, it could not be credited that he ever entertained such sentiments. They were in direct contradiction to his reasoning in Marbury _vs._ Madison, utterly destructive of the Federalist philosophy of judicial control of legislation.

The explanation is that Marshall was seriously alarmed. By his own pen he reveals to us his state of mind before and on that dismal February day when he beheld Samuel Chase arraigned at the bar of the Senate of the United States. During the trial Marshall's bearing as a witness[494]

again exhibited his trepidation. And, as we have seen, he had good cause for sharp anxiety.[495]

The avowed Republican purpose to remove him and his Federalist a.s.sociates from the Supreme Bench, the settled and well-known intention of Jefferson to appoint Spencer Roane as Chief Justice when Marshall was ousted, and the certainty that this would be fatal to the execution of those fundamental principles of government to which Marshall was so pa.s.sionately devoted--these important considerations fully warranted the apprehension which the Chief Justice felt and now displayed.

Had he been indifferent to the peril that confronted him and the whole National Judiciary, he would have exhibited a woeful lack of sense and feeling. He was more than justified in resorting to any honorable expedient to save the great office he held from occupancy by a resolute and resourceful foe of those Const.i.tutional theories, the application of which, Marshall firmly believed, was indispensable to the sound development of the American Nation.

The arrangements for the trial were as dramatic as the event itself was momentous.[496] The scenes of the impeachment prosecution of Warren Hastings were still vivid in the minds of all, and in imitation of that spectacle, the Senate Chamber was now bedecked with impressive splendor.

It was aglow with theatrical color, and the placing of the various seats was as if a tragic play were to be performed.

To the right and left of the President's chair were two rows of benches with desks, the whole covered with crimson cloth. Here sat the thirty-four Senators of the United States. Three rows of benches, arranged in tiers, extended from the wall toward the center of the room; these were covered with green cloth and were occupied by the members of the House of Representatives. Upon their right an enclosure had been constructed, and in it were the members of Jefferson's Cabinet.

Beneath the permanent gallery to which the general public was admitted, a temporary gallery, supported by pillars, ran along the wall, and faced the crimson-covered places of the Senators. At either end of it were boxes. Comfortable seats had been provided in this enclosure; and these were covered with green cloth, which also was draped over the bal.u.s.trade.

This sub-gallery and the boxes were filled with ladies dressed in the height of fashion. A pa.s.sageway was left from the President's chair to the doorway. On either side of this aisle were two stalls covered with blue cloth, as were also the chairs within them. They were occupied by the managers of the House of Representatives and by the lawyers who conducted the defense.[497]

A short, slender, elegantly formed man, with pallid face and steady black eyes, presided over this Senatorial Court. He was carefully dressed, and his manners and deportment were meticulously correct. Aaron Burr, fresh from his duel with Hamilton, and under indictment in two States, had resumed his duties as Vice-President. Nothing in the bearing of this playwright character indicated in the smallest degree that anything out of the ordinary had happened to him. The circ.u.mstance of his presence, however, dismayed even the most liberal of the New England Federalists. "We are indeed fallen on evil times," wrote Senator Plumer.

"The high office of President is filled by an _infidel_, that of Vice-President by a _murderer_."[498]

For the first time since the Republican victory of 1800, which, but for his skill, courage, and energy in New York, would not have been achieved,[499] Burr now found himself in favor with the Administration and the Republican chieftains.[500] Jefferson determined that Aaron Burr must be captured--at least conciliated. He could not be displaced as the presiding officer at the Chase impeachment trial; his rulings would be influential, perhaps decisive; the personal friendship and admiration of several Senators for him were well known; the emergency of the Republican Party was acute. Chase must be convicted at all hazards; and while n.o.body but Jefferson then doubted that this would be the result, no chances were to be taken, no precaution overlooked.

The President had rewarded the three princ.i.p.al witnesses against Pickering with important and lucrative offices[501] after the insane judge had been removed from the bench. Indeed he had given the vacated judgeship to one of these witnesses. But such an example Jefferson well knew would have no effect upon Burr; even promises would avail nothing with the man who for nearly three years had suffered indignity and opposition from an Administration which he, more than any one man except Jefferson himself, had placed in power.

So it came about that Vice-President Aaron Burr, with only four weeks of official life left him, with the whole North clamorous against him because of his killing of Hamilton and an indictment of murder hanging over him in New Jersey, now found himself showered with favors by those who owed him so much and who, for nearly four years, had so grossly insulted him.

Burr's stepson, his brother-in-law, his most intimate friend, were forthwith appointed to the three most valuable and commanding offices in the new government of the Louisiana Territory, at the attractive city of New Orleans.[502] The members of the Cabinet became attentive to Burr.

The President himself exercised his personal charm upon the fallen politician. Time after time Burr was now invited to dine with Jefferson at the Executive Mansion.

Nor were Presidential dinners, the bestowal of patronage hitherto offensively refused, and attentions of the Cabinet, the limit of the efforts to win the cooperation of the man who was to preside over the trial of Samuel Chase. Senator Giles drew a pet.i.tion to the Governor of New Jersey begging that the prosecution of Burr for murder be dropped, and to this paper he secured the signature of nearly all the Republican Senators.[503]

Burr accepted these advances with grave and reserved dignity; but he understood the purpose that inspired them, did not commit himself, and remained uninfluenced and impartial. Throughout the momentous trial the Vice-President was a model presiding officer. "He conducted with the dignity and impartiality of an angel, but with the rigor of a devil,"

records a Washington newspaper that was bitterly hostile to Burr personally and politically.[504]

When Chase took his place in the box, the Sergeant-at-Arms brought him a chair; but Burr, adhering to the English custom, which required prisoners to stand when on trial in court, ordered it to be taken away.[505] Upon the request of the elderly Justice, however, Burr quickly relented and the desired seat was provided.[506]

Chase was, in appearance, the opposite of the diminutive and graceful Vice-President. More than six feet tall, with thick, broad, burly shoulders, he was a picture of rugged and powerful physical manhood, marred by an acc.u.mulation of fat which his generous manner of living had produced. Also he was afflicted with an agonizing gout, with which it seems so many of "the fathers" were cursed. His face was broad and ma.s.sive, his complexion a brownish red.[507] "Bacon face" was a nickname applied to him by the Maryland bar.[508] His head was large, his brow wide, and his hair was thick and white with the snows of his sixty-four winters.[509]

The counsel that surrounded the impeached Justice were brilliant and learned.[510] They were Joseph Hopkinson, who six years before, upon Marshall's return from France, had written "Hail Columbia; or, The President's March"; Philip Barton Key, brother of the author of "The Star-Spangled Banner";[511] Robert Goodloe Harper, one of the Federalist leaders in Congress during the ascendancy of that party; and Charles Lee, Attorney-General under President Adams when Marshall was Secretary of State, and one of Marshall's most devoted friends.[512]

But in the chair next to Chase sat a man who, single-handed and alone, was more than a match for all the managers of the House put together.

Luther Martin of Maryland--of medium height, broad-shouldered, near-sighted, absent-minded, shabbily attired, harsh of voice, now sixty-one years old, with gray hair beginning to grow thin and a face crimsoned by the brandy which he continually imbibed--was the dominating figure of this historic contest.[513]

Weary and harried as he was, Randolph opened the trial with a speech of some skill. He contrasted the conduct of Chase in the trial of Callender with that of Marshall in a trial in Richmond in 1804 at which Marshall had presided. "Sir," said Randolph, "in the famous case of Logwood,[514]

whereat the Chief Justice of the United States presided, I was present, being one of the grand jury who found a true bill against him.... The government was as deeply interested in arresting the career of this dangerous and atrocious criminal, who had aimed his blow against the property of every man in society, as it could be in bringing to punishment a weak and worthless scribbler [Callender]."

But how had Marshall acted in the conduct of that trial? "Although,"

continued Randolph, "much testimony was offered by the prisoner, which did by no means go to his entire exculpation, although much of that testimony was of a very questionable nature, none of it was declared _inadmissable_." Marshall suffered it "to go to the jury, who were left to judge of its weight and credibility"; nor had he required "any interrogatories to the witnesses ... to be reduced to writing,"--such a thing never had been done in Virginia before the tyrannical ruling of Chase in the trial of Callender.

"No, Sir!" he cried. "The enlightened man who presided in Logwood's case knew that, although the basest and vilest of criminals, he was ent.i.tled to _justice_, equally with the most honorable member of society."

Marshall "did not avail himself of the previous and great discoveries in criminal law, of this respondent [Chase]"; Marshall "admitted the prisoner's testimony to go to the jury"; Marshall "never thought it _his right_ or _his duty_ to require questions to be reduced to writing"; Marshall "gave the accused _a fair trial_ according to law and usage, without any innovation or departure from the established rules of criminal jurisprudence in his country."

Marshall's gentle manner and large-minded, soft-spoken rulings as a trial judge were thus adroitly made to serve as an argument for the condemnation of his a.s.sociate, and for his own undoing if Chase should be convicted. Randolph denounced "the monstrous pretension that an act to be impeachable must be indictable. Where? In the Federal Courts?

There, not even robbery and murder are indictable."

[Ill.u.s.tration: JOHN RANDOLPH]

A judge could not, under the National law, be indicted for conducting a National court while drunk, and perhaps not in all State courts. "It is indictable nowhere for him to omit to do his duty, to refuse to hold a court. But who can doubt that both are impeachable offenses, and ought to subject the offender to removal from office?"

The autocrat of Congress then boldly announced to the Republican Senators that the House managers "confidently expect on his [Chase's]

conviction.... We shall bring forward ... such a specimen of judicial tyranny, as, I trust in G.o.d, will never be again exhibited in our country."[515]

Fifty-two witnesses were examined. It was established that, in the trial of Fries, Chase had written the opinion of the court upon the law before the jury was sworn, solely in order to save time; had withdrawn the paper and destroyed it when he found Fries's counsel resented the court's precipitate action; and, finally, had repeatedly urged them to proceed with the defense without restriction. Chase's inquisitorial conduct in Delaware was proved, and several witnesses testified to the matter and manner of his charge to the Baltimore grand jury.[516]

Every incident in the trial of Callender[517] was described by numerous witnesses.[518] George Hay, who had been the most aggressive of Callender's counsel, was so anxious to help the managers that he made a bad impression on the Senate by his eagerness.[519] It developed that the whole att.i.tude of Chase had been one of sarcastic contempt; and that Callender's counsel were more piqued by the laughter of the spectators which the witty sallies and humorous manner of the Justice excited, than they were outraged by any violence on Chase's part, or even by what they considered the illegal and oppressive nature of his rulings.

When, in defending Callender, Hay had insisted upon "a literal recital of the parts [of _The Prospect Before Us_] charged as libellous," Chase, looking around the court-room, said with an ironical smile: "It is contended ... that the book ought to be copied _verbatim et literatim_, I wonder, ... that _they_ do not contend for _punctuatim_ too."[520] The audience laughed. Chase's interruption of Wirt[521] by calling the young lawyer's "syllogistical" conclusion a "_non sequitur_, sir," was accompanied by an inimitable "bow" that greatly amused the listeners.

In short, the interruptions of the sardonic old Justice were, as John Taylor of Caroline testified, in "a very high degree imperative, satirical, and witty ... [and] extremely well calculated to abash and disconcert counsel."[522]

Among the witnesses was Marshall's brother William, whom President Adams had appointed clerk of the United States Court at Richmond.[523] His testimony was important on one point. One John Heath, a Richmond attorney and a perfect stranger to Chase, had sworn that Chase, in his presence, had asked the United States Marshal, David M. Randolph, "if he had any of those creatures or people called democrats on the panel of the jury to try Callender"; that when the Marshal replied that he had "made no discrimination," the Judge told him "to look over the panel and if there were any of that description, strike them off."

William Marshall, on the contrary, made oath that Chase told him that he hoped even Giles would serve on the jury--"Nay, he wished that Callender might be tried by a jury of his own politics." David M. Randolph then testified that he had never seen Heath in the Judge's chambers, that Chase "never at any time or place" said anything to him about striking any names from the jury panel, and that he never received "any instructions, verbal, or by letter, from Judge Chase in relation to the grand jury."[524]

John Marshall himself was then called to the stand and sworn. Friendly eye-witnesses record that the Chief Justice appeared to be frightened.

He testified that Colonel Harvie, with whom he "was intimately acquainted,"[525] had asked him to get the Marshal to excuse Harvie from serving on the jury because "his mind was completely made up ... and whatever the evidence might be, he should find the traverser not guilty." When Marshall told this to the court official, the latter said that Harvie must apply to the Judge, because he "was watched," and "to prevent any charge of improper conduct" he would not discharge any of the jury whom he had summoned. Marshall then induced Chase to release Harvie "upon the ground of his being sheriff of Henrico County and that his attendance was necessary" at the county court then in session.

Marshall said that he was in court during a part of the Callender trial and that "there were several circ.u.mstances that took place ... on the part both of the bar and the bench which do not always occur at trials.... The counsel appeared ... to wish to argue to the jury that the Sedition Law was unconst.i.tutional. Mr. Chase said that that was not a proper question to go to the jury"; and that whenever Callender's attorneys began to argue to the contrary the court stopped them.

The Chief Justice further testified that George Hay had addressed the court to the effect that in this ruling Chase was "not correct in point of law," and again the Judge "stopped him"; that "Mr. Hay still went on and made some political observations; Judge Chase stopped him again and the collision ended by Mr. Hay sitting down and folding up his papers as if he meant to retire."

Marshall did not recollect "precisely," although it appeared to him that "whenever Judge Chase thought the counsel incorrect in their points, he immediately told them so and stopped them short." This "began early in the proceedings and increased. On the part of the judge it seemed to be a disgust with regard to the mode adopted by the traverser's counsel, at least ... as to the part which Mr. Hay took in the trial."

Randolph asked Marshall whether it was the practice for courts to hear counsel argue against the correctness of rulings; and Marshall replied that "if counsel have not been already heard, it is usual to hear them in order that they may change or confirm the opinion of the court, when there is any doubt entertained." But there was "no positive rule on the subject and the course pursued by the court will depend upon circ.u.mstances: Where the judge believes that the point is perfectly clear and settled he will scarcely permit the question to be agitated.

However, it is considered as decorous on the part of the judge to listen while the counsel abstain from urging unimportant arguments."

Marshall was questioned closely as to points of practice. His answers were not favorable to his a.s.sociate Justice. Did it appear to him that "the conduct of Judge Chase was mild and conciliatory" during the trial of Callender? Marshall replied that he ought to be asked what Chase's conduct was and not what he thought of it. Senator William c.o.c.ke of Tennessee said the question was improper, and Randolph offered to withdraw it. "No!" exclaimed Chase's counsel, "we are willing to abide in this trial by the opinion of the Chief Justice." Marshall declared that, except in the Callender trial, he never heard a court refuse to admit the testimony of a witness because it went only to a part and not to the whole of a charge.

Burr asked Marshall: "Do you recollect whether the conduct of the judge at this trial was tyrannical, overbearing and oppressive?" "I will state the facts," cautiously answered the Chief Justice. "Callender's counsel persisted in arguing the question of the const.i.tutionality of the Sedition Law, in which they were constantly repressed by Judge Chase.

Judge Chase checked Mr. Hay whenever he came to that point, and after having resisted repeated checks, Mr. Hay appeared to be determined to abandon the cause, when he was desired by the judge to proceed with his argument and informed that he should not be interrupted thereafter.