One grand jury charge by Chase in particular, delivered in Baltimore on May 2, 1803, caught President Jefferson’s eye. “The independence of the national Judiciary is already shaken to its foundation, and the virtue of the people alone can restore it,” Chase fulminated to his captive audience. Then he turned to the recent elimination of his state of Maryland’s property requirement for voting, which he feared would “certainly and rapidly destroy all protection to property; and all security to personal liberty,” before ultimately “our republican constitution will sink into a mobocracy, the worst of all possible governments.” He concluded by blaming the promulgation of “modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights.” Pressing his anti-Lockean doctrine home, the justice told the grand jurors that “there could be no rights of man in a state of nature previous to the institution of society; and that liberty, properly speaking, could not exist in a state of nature”—which, anyway, was “a creature of the imagination only, although great names” stood for “a contrary opinion.”13

  Which “great names” and what “late reformers”? It is not hard to guess.

  Eleven days after Chase’s charge, President Jefferson wrote to Representative Joseph H. Nicholson that “you must have heard of the extraordinary charge of Chace [sic] to the grand jury at Baltimore. ought this seditious & official attack on the principles of our constitution, and on the proceedings of a state, to go unpunished?14 and to whom so pointedly as yourself”—a prominent attorney who happened to be a leading Republican member of the U.S. House of Representatives—“will the public look for the necessary measures?”

  Jefferson closed his letter to Nicholson by saying that “it is better I should not interfere.” Nicholson, wondering whether he should interfere, ran the question by his and Jefferson’s trusted ally Speaker of the House Nathaniel Macon. As Nicholson stood a good chance of being tapped as Chase’s Supreme Court replacement in case of a Senate conviction, Macon counseled him against taking the lead in this matter. Macon also hazarded the question whether “error of opinion” alone could form a valid basis for an impeachment.15

  Thus the matter fell to John Randolph of Roanoke. When he brought a motion of impeachment before the House on the day of the Pickering conviction, Federalists demanded charges, and Republicans denied them. On what was seen as a party vote, Republicans, including both of Jefferson’s sons-in-law, voted overwhelmingly to impeach Justice Samuel Chase. He remains the only Supreme Court justice ever impeached.

  Perhaps John Randolph was a superb orator and a formidable party chieftain, but he was no attorney. He did have the nominal aid of four fellow House members, Nicholson among them, in drafting the articles of impeachment and presenting the case before the Senate. He seems barely, if at all, to have availed himself of it. Instead the House—and Washington generally—proceeded directly from several days’ listening to Randolph lambaste various House members, high Executive Branch officials, and fellow citizens as “Yazoo men,” which was temporarily laid aside for this purpose, to the Chase matter. As Washington was a mere village at the time and politics the leading (virtually only) industry, the Senate Republicans were not exactly thrilled with Randolph at the moment either.

  In other words Randolph had prepared his ground poorly. He was not helped in this regard by the Republicans’ Senate whip, William Branch Giles of Virginia. Giles was a wondrous phenomenon—an extremely successful politician during a lengthy career who was utterly impolitic. The day would come when Randolph and Giles were at loggerheads, but for now they cooperated in leading the attempt to bring down Chase. As Senator John Quincy Adams, F-MA, told it, he overheard a conversation during the pendency of the Chase trial in which Giles explained that “not only Mr. Chase, but all the other Judges of the Supreme Court, excepting the one last appointed [the sole Jefferson appointee to this point, South Carolinian William Johnson, on whom more hereafter] must be impeached and removed. He treated with the utmost contempt the idea of an Independent Judiciary—Said there was not a word about such an Independence in the Constitution, and [the justices’] pretensions to it were nothing more nor less than an attempt to establish an Aristocratic despotism in themselves.”16

  Startlingly, Giles went even further, saying (in Adams’s words) that “a removal by impeachment was nothing more than a declaration by Congress to this effect—You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the Nation—We want your offices; for the purpose of giving them to men who will fill them better.” The senator to whom Adams heard Giles offer this assessment of the posture in which Congress found itself, Israel Smith, R-VT, insisted (again in Adams’s words) that “honest error of opinion, could not as he conceived be a subject of impeachment.” (Recall that this was Speaker Macon’s assessment as well.) Adams, dour pessimist that he was, concluded his scene with a forecast of Giles and Randolph’s success in removing not only Chase, but the other Federalist justices from office. Such was “the present state of things.”

  Senator William Plumer, F-NH, recorded a conversation with President Jefferson on Thursday, January 5, 1804, as the Chase matter was being discussed in the House.17 After telling Jefferson that “I had no doubt the judge [Pickering, whom Plumer had known for decades] was insane, & ask[ing] him whether insanity was good cause for impeachment & removal from office, He replied, ‘If the facts of his denying an appeal & of his intoxication, as stated in the impeachment are proven, that will be sufficient cause of removal without further inquiry.’” Plumer said Jefferson responded to his question about there being a House inquiry into impeaching Chase by saying, “I have heard so.… There are three cases to which I suppose the House would refer, Fries, Cooper & Callender—But the conduct of Judge Chase was, perhaps the most extrordinary in the trial of Callender—He there refused to admit Col Taylor, late one of your senators, as a witness for Callender, because he could not prove the whole of the case.” Then Jefferson mused, “This business of removing Judges by impeachment is a bungling way.”

  Two days later Plumer described the House of Representatives proceedings of January 5th and ruminated on how Federalists could have prevented them. Randolph had moved “[t]hat a Committee be appointed to enquire into the official conduct of Samuel Chase … & to report their opinion, whether the said Samuel Chase hath so acted in his judicial capacity, as to require the interposition of the constitutional power of this House.” A Federalist motion for “time to investigate it—to examine precedents” was denied. Rather the House appointed a seven-man committee with Randolph as chairman.18

  Sounding much like his colleague Adams, Plumer scribbled that Jefferson had long intended to destroy the Judicial Branch’s independence. The Judiciary Act of 1802 Plumer took as a long stride toward that goal. “At the last session of Congress,” Plumer recalled, “Mr. Jefferson told me that the Constitution ought to be so altered as that the President, on application of Congress should have authority to remove any Judge from office.” Amending having been “found to be a tedious process—the good work of reform cannot be delayed—The president & his Cabinet agree that impeachment conviction & removal from office is necessary.…”

  Representative John Wayles Eppes in the House echoed his father-in-law the president’s statement about Chase’s conduct of the Callender trial “to me [Plumer] in private conversation,” “that it was [here he quotes Eppes] indecent & tyrannical.” Chase both excluded a witness’s testimony on strange grounds and “[b]y a system of conduct peculiar to himself … deprived the prisoner of the aid of Council.…” Plumer concluded his journal entry for that day by lamenting that the Supreme Court had not declared the Judiciary Act of 1802 unconstitutional as it related to abolition of the circuit judgeships, saying that “then was the time for the Judges of the Supreme Court, to have taken their stand against the encroachments of Congress & of the Executive.”

  Presiding over the Chase impeachment in the Senate would be Vice President Aaron Burr. On July 12, 1804, he had shot and killed former treasury secretary Alexander Hamilton. Where formerly all who met him noted his fine manners, splendid person, and cultural polish, Plumer on December 5th said that since the Senate had convened for the fall session, he had “attentively watched the conduct of Aaron Burr.… He appears,” Plumer thought, “to have lost those easy graceful manners that beguiled the hours away the last session—He is now uneasy, discontented, & hurried. So true it is, ‘Great guilt never knew great joy at heart.’”19 Though doubting Burr would ever “rise again” after his term ended on March 3rd, he thought the vice president “a very extraordinary man,” one very adept at manipulating the public, “& considering how little restraint laws human or divine have on his mind, [it] is impossible to say what he will attempt—or what he may obtain.”20

  Plumer had struck the mark: the Chase trial would be only the penultimate act in the drama of Aaron Burr’s political life.

  Justice Chase prepared for his impeachment trial by recruiting some of the ablest lawyers in the country to defend him. By the time the proceedings concluded, they included Maryland’s Luther Martin (who in time would do good service to the Federalist cause by showing up in his cups to make a pro forma argument for the contrary side in one landmark Marshall Court case, Fletcher v. Peck, and drastically mischaracterizing the Republican position in another, McCulloch v. Maryland); Charles Lee, the last Federalist U.S. attorney general; and three other prominent Federalist attorneys.21

  For their part the House managers relied almost entirely on Randolph—who, again, was no lawyer at all. Thus the Virginia congressman boasted that the articles of impeachment (analogous in such cases to an indictment) had been “drawn by my own hand.” It showed. Randolph’s presentation of the House’s case against Chase has been generally panned as well.

  The House presented eight articles of impeachment:22

  That in the Fries trial Chase had presented a written opinion of law tending to bias the jury against Fries before his counsel was heard, that he had refused to allow Fries’s counsel to cite certain American and English precedents, and that he had prevented Fries’s counsel from addressing the law, thus attempting to deny Fries his right to have the jury determine on the law, after which Fries was condemned to death.

  That Chase had denied a Callender juror’s request to be excused from the jury because he was biased against Callender.

  That Chase had refused to let John Taylor of Caroline testify for the Callender defense on the ground that Taylor’s testimony would not go to every element of the charge.

  That Chase had in various ways interfered with defense counsel’s presentation of Callender’s defense, as by frequently interrupting them, using rude expressions toward them, refusing to grant them a continuance to procure witnesses, requiring them to submit to Chase in writing proposed questions for Taylor, etc.

  “That he awarded a capias agt. the sd Callender and not a summons, as by the law of Virginia he ought to have done.” (The distinction here was between a writ requiring that he be taken into custody and transported and a mere order for Callender to appear.)

  “That he adjudged Callender to be tried at the same term in which he was indicted contrary to the laws of Virginia.”

  That he refused to discharge a grand jury in Delaware until he had made the U.S. attorney seize the files of a particular “seditious printer” in New Castle.

  That, in the Baltimore grand jury charge of which Jefferson had complained to Nicholson in the first place, Chase “delivered an intemperate & inflammatory political harangue, to excite the fears & resentment of the jury & the people of Maryland agt. their State government & constitution,” besides which he in the same address “endeavoured to excite the odium of said jury & of the people of Maryland agt the government of the United States, by delivering opinions, highly indecent, extrajudicial and tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan.”

  When a few days later Justice Chase first appeared before the Senate, Plumer recorded the discussion between him and the vice president about Chase’s need for time to prepare his defense, then concluded, “It is indeed a humiliating scene to behold an aged man, a Judge of the Supreme Court of the United States … bro’t to trial as a criminal—Arraigned before a Court, the president of whom is a fugitive from Justice—& stands indicted as a MURDERER!”

  22

  Justice Chase and his counsel presented to the Senate on May 4, 1805, detailed answers to the articles of impeachment against him. The reporter noted that “[t]he Chamber of the Senate, which is very extensive, was soon filled with spectators, a large portion of whom consisted of ladies, who continued, with little intermission, to attend during the whole course of the trial.”1 Senator Plumer observed that “[t]he Reading took up two hours & a half—It is a very able answer indeed.”2 The learned defendant and his eminent lawyers put on quite a display of legal learning. It takes up fifty pages of small type in the Annals of Congress, the Jeffersonian era analogue of today’s Congressional Record. The House managers’ one-sentence reply said simply that the House remained convinced that Chase had “commit[ted] the numerous acts of persecution, oppression, and injustice, of which he stands accused,” and repeated the House’s insistence that the Senate try him on its articles of impeachment.3

  In laying out the grounds of the various articles of impeachment and presenting two witnesses on Saturday, February 9, 1805, Randolph got hung up both on the facts and on the law. In regard to the facts, Fries’s attorneys both testified that they had withdrawn as counsel in his case because they thought that President Adams would more likely pardon a convict who had been reduced to defending himself than one who had enjoyed assistance of counsel. In regard to the law, he unnecessarily made a comparison of murder to high treason, which requires only overt acts—not any particular state of mind. As Plumer noted, “This speech is the most feeble—the most incorrect that I ever heard him make.” Besides that, he fell into insulting John Adams (whose son was a senator, thus a judge and juror, in this trial) and likely did not thrill Vice President Burr, who, again, stood indicted for murder.4

  As the trial progressed, Randolph proved to have “a tedious circuitous method of asking questions—they are often imperative.”5 Although generally pleased with all of the defense witnesses and displeased with Randolph and Burr’s performances, Senator Plumer did have harsh criticism for one leading Federalist participant: Chief Justice John Marshall. Plumer “was much better pleased with the manner in which his brother testified than with him. The Chief Justice really discovered [that is, displayed] too much caution—too much fear—too much cunning—He ought to have been more bold—frank & explicit than he was. There was in his manner an evident disposition to accommodate the Managers. That dignified frankness which his high office required did not appear. A cunning man ought never to discover [that is, display] the arts of the trimmer in his testimony.”6

  Plumer presumably did not know that Marshall was, like President Jefferson, a Randolph on his mother’s side. He almost certainly did not know that besides being relatives, Marshall and Randolph were close friends. In the course of Randolph’s questioning, Marshall testified to several facts that helped the House’s case. For example, the chief justice said that he “never knew it requested [by a judge] that a question should be reduced to writing in the first instance [that is, before counsel have posed the question to the witness] in the whole course of my practice,”7 which strongly supported the fourth article of impeachment. Later in his testimony, when Randolph asked whether Marshall had “ever … know[n] a witness deemed inadmissible … because he could not narrate all the circumstances of the crime charged in an indictment … and could only prove a part of a particular charge, and not the whole of it,” Marshall replied, “I never did hear that objection made by the court except in this particular case.”8 This certainly supported the third article of impeachment, the one about exclusion of John Taylor of Caroline’s testimony. Marshall also said that he thought he had heard Chase during the Callender trial use the terms “young men, or young gentlemen,” toward defense counsel—though he could not be certain, because he had “heard it so frequently spoken of since the trial.”9 If Marshall “trimmed,” then Plumer ought to have been pleased with it, as the hedging tended in Justice Chase’s favor.

  Senator John Quincy Adams wrote prior to the trial that the charges against Chase pointed to no “corruption, or turpitude.” Perhaps with that in mind, Chase’s counsel, Joseph Hopkinson, told the Senate that it must, in deciding the case, remember that “another dread tribunal,” “posterity,” would weigh the senators’ votes. In general history has been kind to the men who acquitted the justice, but a powerful argument to the contrary was made by historian Raoul Berger.

  Chase, as Berger quotes the justice’s fellow circuit judge Richard Peters, “was forever getting into some intemperate and unnecessary squabble,” so that Peters “never sat with him without pain.”10 Yes, other Federalist judges had during the Adams administration issued splenetically partisan grand jury charges, but that was no excuse.11 So too the judgment of history has generally been against those, like Chase, who advocated passage of the Sedition Act, which certainly makes it difficult to excuse his railroading (if the anachronism may be allowed) of Sedition Act defendants such as James Callender and Thomas Cooper.12 As Berger describes Chase’s conduct in regard to Callender, he “selected the victim, announced his determination to punish him for his ‘atrocious and profligate’ libel, procured his presentment by the grand jury, refused to excuse jurors who confessed their bias against the accused, at every step identified himself with the prosecution, and took every means to disconcert, discredit, and disable counsel for the defense.”13 If the Republican scuttlebutt was true, Berger omitted that Chase carefully stacked the Callender jury with Federalists.14 One might argue that Chase’s conduct in the Fries matter was even worse.