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A Constitutional History of the United States
Chapter XXIV - The Impeachment of Pickering and Chase. The Burr Conspiracy.
by McLaughlin, Andrew C.

Even before the decision in Marbury v. Madison, Jefferson sent to the House (February 3, 1803) documents and a message calling attention to the conduct of John Pickering, a federal district judge in New Hampshire, and saying that "proceedings of redress" were within the powers of the House, "if they shall be of opinion that the case calls for them." The House speedily took action for impeaching Pickering before the Senate, but the trial was not begun until the next winter (January, 1804). He was charged with malfeasance and unlawful conduct in the handling of one particular case, and of being a man of loose morals and intemperate habits who had appeared upon the bench "in a state of total intoxication", and had "frequently, in a most profane and indecent manner, invoke[d] the name of the Supreme Being".

Difficult questions of constitutional interpretation arose. The Constitution provides for the removal of civil officers from office "on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." Could an officer be convicted only for an indictable offense, or could he be convicted and removed from office because of gross misconduct? Judge Pickering, it appeared from a petition from his son, had for some time been insane; and Robert G. Harper, representing the petitioner, asked for an opportunity to show this fact. Evidence was admitted and it established the Judge's insanity and habitual drunkenness — the latter, we may charitably suppose (it was indeed so asserted in one deposition), the result of the former condition. Harper declared "that to constitute any crime a vicious will is necessary, and that a man insane cannot be put upon his trial...." The Senate, thus faced by an awkward problem, finally voted, not without protest from some of its members, that Pickering was "guilty, as charged". By using this form of verdict the Senate took refuge in a subterfuge, avoiding an explicit announcement of its right to remove an officer for acts not technically criminal. The final vote did not establish a precedent of much value.[1]

But a more worthy and valiant foeman to meet the steel of the excited Republicans was Justice Samuel Chase of the Supreme Court, a man of imperious and domineering temper whose zeal was not always moderated by discretion. His shameful conduct in the Fries, Callender, and Cooper cases, the latter two under the Sedition Act, had aroused justifiable resentment.[2] But those matters were of the past and might possibly have been ignored, had he not in 1803, in charging a grand jury at Baltimore, taken occasion to make a political harangue of an objectionable character. For political discourses from the bench there were some notable precedents, but in this instance Chase exceeded moderation. In a non-technical sense his misbehavior seems unquestionable.[3] Was his misconduct such as to justify removal from office? Did it constitute a misdemeanor, in the constitutional sense of the word?

In a series of eight articles Chase was charged with various offenses, among them conducting himself in the Fries trial "in a manner highly arbitrary, oppressive, and unjust"; unbecoming conduct and disregard of law in the Callender case; stooping "to the level of an informer" by refusing to discharge a grand jury at Newcastle, and indulging in other objectionable procedure, thereby "degrading his high judicial functions"; and addressing the grand jury at Baltimore in a "highly indecent" manner, "tending to prostitute the high judicial character with which he was invested...."[4] The trial opened January 2, 1805; various delays ensued, time being given for the preparation of Chase's answer; and so not until February 4, 1805, did the Senate proceed to the actual trial on the charges submitted.

The proceedings were solemn and dignified; the crisis was real. Perhaps in imitation of the famous trial of Warren Hastings, when, as Macaulay tells us, "The gray old walls were hung with scarlet", the Senate chamber was "fitted up in a style of appropriate elegance. Benches, covered with crimson, ... were assigned to the members of the Senate."[5] The managers appointed by the House were led by John Randolph, who not long before had begun his meteoric career in Congress. The accused was defended by an array of able lawyers — Robert G. Harper, Joseph Hopkinson, and Luther Martin, the "Federalist bulldog", for Martin was now an implacable Federalist. He was not only a brilliant speaker, quite capable if need be of vehement attack, but also learned and skillful in the presentation of his argument. His speech toward the end of the trial occupied the greater part of two days and was a powerful defense of his client's rights.

The critical question was what constituted an impeachable offense. The counsel for Chase insisted that the offense must be an indictable one, not merely reprehensible conduct of which the senators might disapprove. The controversy on this particular question may be summed up in the words of Martin: "... no judge or other officer can ... be removed from office but by impeachment, and for the violation of some law, which violation must be, not simply a crime or misdemeanor, but a high crime or misdemeanor." He called attention to the statement of Rodney, one of the House managers, that a judge holds his office during good behavior and that misbehavior and misdemeanor are synonymous. Martin shrewdly admitted the identity of meaning, declaring that only such misbehavior as constituted a misdemeanor, "a violation of some law punishable", could be considered misbehavior in the constitutional sense.[6] Had the House managers been as adroit, as well-prepared, and as consistent as their adversaries, the result might have been the same; but the reader of the arguments has an unwonted feeling of compassion for Randolph, whose copious vocabulary was an insufficient defense against the assaults of his opponents. The verdict for acquittal was pronounced March 1. Thirty-four members were in attendance; twenty-three votes were necessary for conviction. The highest number voting "guilty" on any one article — the eighth, which referred to the Baltimore harangue — was nineteen.

What might have ensued had Chase been convicted, no one can say. It is difficult to believe that Marshall would have been the next victim; he had not indulged in unbecoming behavior or treated attorneys in a manner which they at least thought contemptuous; he had not declared the repeal of the Judiciary Act of 1801 void; his greatest error or ground for partisan attack was his method of handling the Marbury case, not his exercising the right of the Court to declare an act unconstitutional.[7] Such right had been so often acknowledged that impeachment on that ground could have been maintained only by the most extreme and violent partisanship. In the high excitement of the time, however, a general assault upon the judiciary might have followed. John Quincy Adams wrote to his father: "The attack by impeachment upon the Judicial Department of our National Government began two years ago, and has been conducted with great address as well as with persevering violence.... The assault upon Judge Chase ... was unquestionably intended to pave the way for another prosecution, which would have swept the Supreme Judicial Bench clean at a stroke, ..." [8] Certainly the most important matter was not the legal basis for impeachment but the attack upon the judiciary, which, if successful, might have made the courts political footballs; the attack upon the judiciary must have made it plain that justices were engaged in a dangerous practice when they displayed violent partisan temper on the bench. As a result of this trial the basis of impeachment still remained indefinite. Neither the Senate nor the House committed itself to the doctrine laid down by Martin. There is, however, much space open to occupancy between the right to convict an officer for purely partisan purposes or for immediate particular interests, on the one hand, and the right to do so for only a penal offense, on the other. We have no reason to suppose that a Senate, thoroughly convinced of the serious misconduct of a judge on the bench or of any other official, will be deterred by technical interpretation of "high crimes and misdemeanors" from pronouncing sentence against him.[9]

Hardly was the Chase trial out of the way when a new excitement took its place. Newspapers and partisan orators were given another opportunity to display their talents. Few events in our history have been so theatrical, so well-supplied with all the features of melodrama, as the conspiracy of Aaron Burr and his trial for treason. It is a long, intricate, and perplexing story; and ends we find the names of many men, playing one role or another, who are famous in American history: Aaron Burr, the central figure, a debonair, conscienceless adventurer; James Wilkinson, who had for years been in the pay of Spain, ready for any safe intrigue with money in it; poor Blennerhasset, who fell a prey to Burr's gracious cajoleries only to lose his fortune and find his romantic hero "a vulgar swindler"; Samuel Swartwout, afterwards appointed by President Jackson to be collector at the port of New York where he stole more than a million dollars; John Randolph of Roanoke, acting as the foreman of the grand jury; Andrew Jackson, who, incapable of treason, had been approached by Burr for his own purposes; Jonathan Dayton, a framer of the federal Constitution and one of Burr's active confederates; William Wirt, representing the government at the trial, an orator of the first rank; Luther Martin, one of Burr's able attorneys through many days of strenuous and violent debate; Thomas Jefferson, who had at first taken lightly the story of intrigue and treason but finally used the authority of his office for conviction with an amazing intensity of purpose, as if the credit of his administration and his party were hanging in the balance; John Marshall, imperturbable, realizing that more was at stake than the conviction of a worthless prisoner, prepared laboriously to expound the law and defend the Constitution. And so, as the facts developed, as the trial came on and wound its way along, the court and the Chief Justice were once more in the limelight, once more the objects of denunciation.

What Burr was trying to do, or thought he was trying to do, is still a matter of conjecture. Recent investigators have come to the conclusion that he was not intent upon separating the west from the union, but was planning to make use of strained relations between Spain and the United States to win glory and wealth for himself, basing his hopes on the traditional dislike for the Spaniards especially among the southwesterners. But to reach this conclusion Burr's own words must be cast aside as a mere attempt to obtain money from foreign governments by false pretenses; in fact, there was so much secrecy and so much lying that to reach a positive opinion is difficult. [10] Just what Burr had in mind we do not need to determine. Whatever it was, the conspiracy added fuel to sectional and party controversies already sufficiently aglow. The government was in the midst of severest perplexities in its relations with foreign nations, for Great Britain was impressing our seamen, and at the beginning of this exciting summer news came that a British man-of-war had poured a broadside into an American frigate. Our claim to West Florida raised delicate questions of our relations with Spain. The New England leaders were seriously discontented and openly grumbling. Burr's plans, even if they were intended to be but a joyful attack upon the despised Spaniard, imposed a new and maddening burden upon a sorely-perplexed administration. But it was not the administration alone that was in danger; the stability and safety of the nation were imperiled by foreign aggression and domestic discontent.

In the course of the multiple hearings, disputes, arguments, and opinions arising from Burr's escapade, a series of significant constitutional questions arose and important decisions were rendered. Two young men, Bollman and Swartwout,[11] who had been brought under the spell of Burr and used for his own ends, having been committed by a circuit court and charged with treason, applied to the Supreme Court for a writ of habeas corpus. The Constitution defines treason as levying war against the United States or adhering to their enemies and giving them aid and comfort. The Chief Justice, delivering the opinion of the Court, found no evidence sufficient to justify the commitment of the prisoners on the charge of treason. In reaching this conclusion he said, "To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed.... It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors."

This statement appeared to give considerable basis for finding Burr guilty, when his turn came, though of course the question remained whether or not the famous assemblage at Blennerhassett's Island was an assemblage for a treasonable purpose. On the other hand, a letter from Burr to Wilkinson, which was presented in the Bollman case to show that a treasonable enterprise was on foot, was declared by Marshall to contain not one syllable having "a natural reference to an enterprise against any territory of the United States." [12] This belief of course cast doubt upon the treasonable character of the whole undertaking.

The next step was taken against Burr himself. When the question of his indictment was under consideration by the grand jury at Richmond, Marshall took the extraordinary step of issuing a writ of subpoena duces tecum to Jefferson. It was of course disregarded and only added to the fury of Jefferson's dislike of the Chief Justice and to his own wrathful determination to bring Burr to the gallows. The struggle appeared in reality not so much a contest over the question of Burr's guilt as a passage-at-arms between the President and the man holding the highest judicial office. As to whether Marshall was technically justified in issuing the writ, there still appears to be a difference of opinion.[13] But it certainly added fuel to the flame of partisan controversy; and the heat engendered remained long after Burr himself had dwindled into appropriate obscurity, leaving behind him his grandiose conspiracy for the tender ministrations of the historian.

In the summer of 1807, Burr was finally indicted for treason and, in a separate indictment, for misdemeanor. The list of attorneys for the government and for the defense included men of ability and distinction. William Wirt fought valiantly for conviction. Luther Martin, defending Burr, had the time of his life, for nothing was dearer to his heart than a controversy with Jefferson; "as great a scoundrel as Tom Jefferson" is said to have been his customary method of denouncing a particularly obnoxious person.

The Constitution provides that no person shall be convicted of treason "unless on the testimony of two witnesses to the same overt act, or on confession in open court." The crisis of the trial arose in connection with the question of the admissibility of certain evidence offered by the prosecution. The attorneys for the defense objected on the ground that Burr was not present with the forces at Blennerhassett's Island, that he was at a great distance and in a different state, and that the testimony offered to connect him with those who committed the overt act was totally irrelevant. Marshall's ruling against the admission of the kind of evidence which proposed to show Burr's connection with the assemblage was decisive. The verdict of the jury was that Burr was "not proved to be guilty under this indictment by any evidence submitted to us" — a form of verdict which perhaps tells its own story. The court decided that the verdict should remain as found by the jury; and that an entry should be made on the record of "not guilty".[14]

Marshall's opinion was long and elaborate; the questions involved were difficult and intricate. However learned and acute his argument may be, it appears to be wanting in the clarity, simplicity, and convincing force so apparent in his later decisions. If this be so, the want may be chargeable to the intricacy of the problem, or, perhaps, to the fact that the Chief Justice had not as yet reached the pinnacle of his powers; but his position was a delicate one; political and personal passions were involved; any precise and sweeping opinion not laboriously exposing his position, any opinion appearing to be dogmatic and peremptory, would have been fraught with danger to his authority and the dignity of the court.

He referred to the opinion in the Bollman and Swartwout case and to the words already quoted: "if war be actually levied, ... all those who perform any part however minute or however remote from the scene of action and who are actually leagued in the general conspiracy are to be considered as traitors." But he declared: "This opinion does not touch the case of a person who advises or procures an assemblage and does nothing further. The advising certainly, and perhaps the procuring is more in the nature of a conspiracy to levey [sic] war than of the actual levying of war." This was a crucial position because it made a distinction between actual presence with an armed force, or actual participation in the levying of war, on the one hand, and advice and like services, on the other.

The pivotal statements in the opinion cannot easily be selected, but the following pronouncement is especially important: "If in one case the presence of the individual make the guilt of the assemblage his guilt, and in the other case the procurement by the individual make the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses.... The presence of the party, where presence is necessary, being a part of the overt act must be positively proved by two witnesses. No presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the constitution and the law. If procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured or inferred, can satisfy the constitution and the law." "... the fact itself [the procurement] must be proved by two witnesses, and must have been committed within the district." [15] This means, in simple phraseology, that the fact of Burr's responsibility for the assembling of the armed forces had to be established by two witnesses who could testify to the same overt act. The prosecution despaired of securing the necessary testimony.

This mode of reasoning has been strongly attacked,[16] and our own judgment is uncalled for. Though the Chief Justice made abundant references to English authorities, the opinion leaves the impression of a determination not to allow English history or law to dull his belief in the liberal provisions of a free Constitution. Certainly he gave the fullest effect to the words which were intended to guard against the establishment or punishment of constructive treason. Actual participation in a treasonable enterprise had to be established by competent testimony of the nature provided by the Constitution. Doubtless the decision makes it difficult to establish the guilt of one who may be the real leader in a treasonable movement; for, while an actual assembling in arms and the presence of a single person with the armed forces may be easily susceptible of proof, it is difficult to establish the guilt of one who carries on his machinations in secret, where secrecy is the sine qua non of success. To such objections Marshall made answer: "If it be said that the advising or procurement of treason is a secret transaction, which can scarcely ever be proved in the manner required by this opinion, the answer which will readily suggest itself is, that the difficulty of proving a fact will not justify conviction without proof. Certainly it will not justify conviction without a direct and positive witness in a case where the constitution requires two. The more correct inference from this circumstance would seem to be, that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason is in the nature of conspiring or plotting treason, which is not treason in itself." [17]

Withal we cannot lament the determination of the Chief Justice so to construe the Constitution that treason is not to be inferred from any amount of conjecture or surmise. Furthermore, Burr's intentions were too uncertain to furnish any assurance that a verdict of guilty would have been just, had all the facts been exposed. Marshall's reflection on Wilkinson's letter, when he was passing on the matter of Bollman and Swartwout, leads us to think he had grave doubts about the actual treasonable nature of the whole enterprise. And we may well imagine that he was glad, when interpreting the Constitution as a new and positive safeguard of freedom, to find a method whereby the critical question of Burr's essential intent and purpose was avoided and was not passed on by the jury with insufficient if not misleading evidence at its command.

Further proceedings against the alleged culprit broke down and came to naught. When Burr was released, the air reeked with maledictions. Jefferson was piqued; he was indignant. His message to Congress, though certain especially truculent sentences were stricken out of the first draft, displayed his discontent. Why should he, the popular leader, the head of a victorious party, be once again balked by the Chief Justice, a crafty manipulator of the law? Once more the strange and fascinating contradiction: Jefferson, the foe of tyranny, the apostle of freedom and individual rights, was angry because the Chief Justice, an advocate of strong and effective government, had so interpreted the Constitution as to protect a prisoner alleged to be guilty of treason against the nation. Marshall's decision partook of the character of Jeffersonian liberalism and modernism; and Jefferson lamented.

[1] The senators, said Senator Dayton, "were simply to be allowed to vote, whether Judge Pickering was guilty as charged — that is, guilty of the facts charged in each article — aye or no.... There were members who were disposed to give sentence of removal ... who could not, however, conscientiously vote that they [the facts alleged and proved] amounted to high crimes and misdemeanors, especially when committed by a man proved at the very time to be insane, and to have been so ever since...." Annals of Congress, 8 Cong., 1 sess., col. 365. Senator White declared that such procedure would give warrant for removing anyone from office; every officer of government would be "at the mercy of a majority of Congress...." Ibid. The vote of "guilty, as charged" stood nineteen yeas, seven nays. Ibid., col. 367. Proceedings are found in Ibid., cols. 315-367. The Pickering impeachment was the second to come before the Senate. William Blount of Tennessee, a Senator, was not convicted, his defense being that a senator was not a civil officer of the United States; furthermore, he had already been expelled from the Senate.

[2] "In short, the assaults upon the National Judiciary were made possible chiefly by the conduct of the National judges themselves." A. J. Beveridge, The Life of John Marshall, III, p. 30.

[3] To the grand jury Chase commented upon the repeal of the Judiciary Act: "The independence of the national Judiciary is already shaken to its foundation, and the virtue of the people alone can restore it." Universal suffrage, he said, will "rapidly destroy all protection to property, and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments." "... the modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us...." The address is given in full in Annals of Congress, 8 Cong., 2 sess., cols. 673-676.

[4] Ibid., cols. 85-88.

[5] Ibid., col. 100. "... a new gallery was raised, and fitted up with peculiar elegance, intended primarily for the exclusive accommodation of ladies. But this feature of the arrangement, made by the Vice President, was at an early period of the trial abandoned, it having been found impracticable to separate the sexes!"

[6] Ibid., col. 436. A detailed and valuable account of the impeachments is given in Henry Adams, History of the United States, II, chs. VII, X.

[7] See Charles Warren, The Supreme Court in United States History, I, pp. 243-244. Beveridge says, "... Marshall had actually proposed to his associates upon the Supreme Bench that they refuse to sit as circuit judges, and 'risk the consequences.' " Beveridge, op. cit., III, p. 122.

[8] March 8, 1805. Quoted in Charles Warren, The Supreme Court in United States History, I, pp. 294-295.

[9] "By the liberal interpretation of the term 'high misdemeanor,' which the Senate has given it, there is now no difficulty in securing the removal of a judge for any reason that shows him unfit...." Ex-President Taft, speaking to the American Bar Association in 1913. American Bar Association Report for 1913, XXXVIII, p. 432.

[10] Henry Adams, History of the United States, II, ch. VIII; III, chs. X-XIV, XIX, gives a full narrative. W. F. McCaleb, The Aaron Burr Conspiracy, attempts, perhaps successfully, to establish the fact that Burr did not plan to dismember the union. Beveridge, op. cit., III, chs. VI-IX, agrees with McCaleb and develops his thesis. Adams, writing before McCaleb's studies, relies in part for his condemnation of Burr on statements made by Burr which were not improbably pure fiction.

[11] Ex parte Bollman and ex parte Swartwout, 4 Cranch 75 (1807).

[12] 4 Cranch 75, 132-133. Documents bearing on the question can be found in 4 Cranch, appendixes A and B.

[13] "The course of recent criticism has usually been to support Marshall in this matter of the subpoena. It is confessed that the court had no authority to enforce this command against the President, and it must be admitted that the issuing of futile orders is not conducive to the dignity of the court. And again, it seems a curious conception of the judicial function to call the head of the nation from his official duties to give testimony. The incident seems best explained as an honest mistake of judgment...." The Constitutional Decisions of John Marshall (J. P. Cotton, Jr., ed.), I, p. 99.

[14] David Robertson, Reports of the Trials of Colonel Aaron Burr, II, pp. 446-447.

[15] Ibid., II, pp. 436-437. Italics mine. "The present indictment charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution and of the act of congress, by two witnesses. It is not proved by a single witness. The presence of the accused has been stated to be an essential component part of the overt act in this indictment, unless the common law principle respecting accessories should render it unnecessary; and there is not only no witness who has proved his actual or legal presence, but the fact of his absence is not controverted. The counsel for the prosecution offer to give in evidence subsequent transactions at a different place and in a different state, in order to prove — what? the overt act laid in the indictment? that the prisoner was one of those who assembled at Blannerhassett's [sic] island? No: that is not alleged. It is well known that such testimony is not competent to establish such a fact." Ibid., II, p. 443.

[16] See E. S. Corwin, John Marshall and the Constitution, ch. IV.

[17] Robertson, op. cit., II, p. 437.


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