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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
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. 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. Was his misconduct such as to justify removal
from office? Did it constitute a misdemeanor, in the constitutional sense of
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...." 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." 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. 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. 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, ..."  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.
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 before.it 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. 
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
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, 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."
 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. 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".
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."
 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, 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."
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.
 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.
 "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.
 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.,
 Ibid., cols. 85-88.
 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!"
 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.
 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,
 March 8, 1805. Quoted in Charles Warren, The Supreme
Court in United States History, I, pp. 294-295.
 "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.
 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.
 Ex parte Bollman and ex parte Swartwout, 4 Cranch 75
 4 Cranch 75, 132-133. Documents bearing on the question
can be found in 4 Cranch, appendixes A and B.
 "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.
 David Robertson, Reports of the Trials of Colonel
Aaron Burr, II, pp. 446-447.
 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.
 See E. S. Corwin, John Marshall and the
Constitution, ch. IV.
 Robertson, op. cit., II, p. 437.