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Home , Joseph Hopkinson, Samuel Chase

The Judge’s Lawyer

In successfully defending the ate tries him or her, with a two-thirds vote irascible Supreme Court Justice needed to convict—has run its full course only 18 times. Three of the 18 have been —aka “Old Bacon especially momentous cases: those of two Face”—against impeachment, presidents, Andrew Johnson (1868) and C1786 G1789 William Jefferson Clinton (1998-99), and that of a Supreme Court justice, Samuel helped set a high bar for removal Chase (1805). from office and establish the Graduates of the University of Pennsyl- principle of judicial independence. vania have figured in two of those three blockbusters. The Clinton impeachment By Dennis Drabelle featured Senator Arlen Specter C’51 breaking ranks with most of his Republican colleagues to vote against of this writing (February 9, 2018), conviction. Important as the fate of a Samuel Chase the Impeach-O-Meter—Slate particular president may be, however, magazine’s self-styled “wildly Perhaps the most remarkable thing even more was at stake in the Chase case: As subjective and speculative daily about impeachment is how seldom it the separation of powers. The phalanx of estimate” of the likelihood that Presi- happens. Common sense and the law of attorneys representing the embattled dent Donald Trump W’68 won’t get to averages suggest that hundreds of federal jurist included Joseph Hopkinson C1786 serve out his term—stands at 45 per- officials have abused their power or G1789, to whom was entrusted a crucial cent. That’s actually a pretty good num- betrayed the public’s trust over the years. argument. In making his point, Hopkin- ber for Trump—at times, the meter has Yet the constitutional two-step—the son may have done more on behalf of the spiked to 60 percent—but still high as House of Representatives impeaches (in federal judiciary than anyone but the an index of presidential peril. essence, indicts) an accused, and the Sen- framers of the Constitution.

58 THE PENNSYLVANIA GAZETTE Mar|Apr 2018 Samuel Chase, National Portrait Gallery; Joseph Hopkinson, University Archives; patterns by Gina Triplett Mar|AprMar|Apr 20120188 THE PENNPENNSYLVANIASYLVANIA GGAZETTEAZETTE 59 Joseph Hopkinson Joseph Hopkinson came from a line ety of , among whose mem- ed?” It took the jury only two hours of of English lawyers, one of whom, his bers was Charles Brockden Brown, soon deliberation to answer yes and award grandfather Thomas Hopkinson, to be America’s first professional author. Rush $5,000 in damages. Cobbett low- migrated to the New World around 1730 (Brown’s Gothic romance Wieland is ered his porcupine quills, sold the paper, to better represent his London mercan- arguably the earliest American novel that and returned to England; the bleeding tile clients. Thomas died in 1751, where- can still be read with pleasure.) of patients remained in vogue a bit lon- upon his friend took Hopkinson hung out his first shingle ger; and Hopkinson savored his new under his wing Thomas’s 14-year-old in Easton, Pennsylvania, but spent a status as a legal powerhouse. son, Francis C1757 G1760 Hon1790 [“The good deal of time in Philadelphia, where His avocation of writer reached its Artful Rebel,” May|June 2012]. Their he met and married Emily Mifflin, the apogee in 1798, when he penned the closeness survived Franklin’s own death daughter of the governor of Pennsylva- words to what became the first national in 1790—Francis was one of the execu- nia. Hopkinson became a leading light hymn: “Hail Columbia!” The catalyst tors of the old man’s will. By then, he in the generation that, according to his was an actor-friend who wanted a new had graduated in the first class of what biographer, Burton Alva Konkle, made patriotic number for a benefit perfor- evolved into the University of Pennsyl- “Philadelphia lawyer” a byword for pro- mance he was staging in Philadelphia vania, studied law, married, and set up fessional excellence. In his spare time, (the beneficiary was the actor himself) a practice in . Hopkinson probably supervised the first and appealed to Hopkinson for help. Set In 1775, New Jersey sent Francis as one American publication of Shakespeare’s to an extant tune, “Hail Columbia!” not of its representatives to the Continental works. We can’t be sure of this—his only stopped the show, it spread to Congress; the following year, he signed name does not appear on the title page Washington and beyond. As Hopkinson the Declaration of Independence. or anywhere else—but people assumed recalled four decades later, “The enthu- Appointed a Pennsylvania state judge in he was behind the project at the time, siasm was general, and the song was 1780, he quickly ran afoul of certain leg- and the preface smacks of lawyerly heard, I may say, in every part of the islators, who impeached him. Although rhetoric brought to bear on literary con- .” Francis was acquitted and went on to troversy: “Some critics have dreamed Although “Hail Columbia!” eventually serve as a federal judge, the scare prob- that if possessed of more learning, yielded pride of place to Francis Scott ably weighed on the mind of his son [Shakespeare] would have been less Key’s “Star-Spangled Banner,” it survives Joseph when he defended Justice Chase original, and that erudition would have today as the theme song for the vice a generation later. Francis was also a dampened the ardor of his genius. This president of the United States—the satirist, musician, and artist whose mas- is like believing a man will forget how veep’s answer to “Hail to the Chief.” (Key terpiece was the design of the American to walk by learning to dance.” was a lawyer, too, and a friend of Hop- flag. As we shall see, his son lived up to Hopkinson danced his way through kinson’s; they even tried a case togeth- that sparkling heritage. his first big case in 1797, when he repre- er—and won it. One likes to imagine Born in 1770, Joseph entered Penn at the sented Dr. , a Founding them celebrating afterward by warbling age of 13. After graduating at 15 and a half, Father who was also a doyen of early their respective ditties at each other he read law with the brilliant James Wil- American medicine. Yellow fever had over tankards of ale.) son [“Flawed Founder,” May|Jun 2011] and ravaged Philadelphia and the Delaware was admitted to the bar in 1791. Valley, and , the Eng- esides the Chase impeachment, Hop- In the meantime, the young man had lish-born publisher of a Philadelphia kinson took part in two other his- made a name for himself as a wit, nota- newspaper called Porcupine’s Gazette, toric cases, both before the US Su- bly in “A Defense of Luxury,” an essay he had chastised Rush in print for his Bpreme Court. After being elected to read to the Literary and Commercial method of treating the disease: bleed the House of Representatives in 1814, he Society of Philadelphia, a group of young the patient. Rush filed suit, and Hopkin- became friends with his forceful New Philadelphians bent on self-improve- son was retained to lead the attack. Hampshire colleague . ment. “For my part,” Hopkinson wrote, In his opening statement, Hopkinson They teamed up as lawyers to further the “I must confess that I differ from all heaped praise on the venerable Rush, cause of academic freedom in Trustees of those learned gentlemen, both ancient who happened to be his family’s physi- v. Woodward (1819). and modern, who have been such ene- cian, and asked a rhetorical question: Dartmouth had been chartered as a pri- mies to mankind as to attempt to retard “Does [Cobbett] not stand [as] the most vate institution; the state of New Hamp- the growth of that cash-diffusing plant— barbarous, the most wanton, the most shire had recently and unilaterally reclas- Luxury.” He helped found the Law Soci- impudent defamer that has ever exist- sified it as a public one. Webster led off

60 THE PENNSYLVANIA GAZETTE Mar|Apr 2018 in the courtroom. Hopkinson closed by Hopkinson served only two terms in The latter case had prompted Jeffer- arguing that not even a state can alter a the House. He disliked the city of Wash- son to fire off a note to a member of the contract without the other party’s con- ington and missed his family, which by House leadership: sent. An observer left a portrait of the then included nine children. This was “Ought this seditious and official attack Philadelphian in action: also a period when he had multiple on the principles of our Constitution, and cases pending before the Supreme on the proceedings of a State, to go “[He] was as handsome and impres- Court. Though confident he would have unpunished? And to whom so pointedly sive a man as Webster, though of an been re-elected—“I remember not one as yourself will the public look for the exactly opposite type. His face was newspaper reproach or attack [on my necessary measures? I ask these ques- that of a life-long student, thoughtful record],” he boasted—in 1818 he chose tions for your consideration, for myself and refined. His voice, though light, not to run again. it is better that I should not interfere.” had a golden tone. His manner was quiet, yet distinguished. Joseph Hop- amuel Chase, another signer of the The president got his way. Pursuant kinson showed breeding in every Declaration of Independence, had to Article II, section 4 of the Constitu- look, movement, word and intona- been appointed to the Supreme tion—“The President, Vice President tion. He had a beautiful and highly SCourt in 1796, when the justices still and all civil Officials of the United trained mind, equipped with im- alternated between settling disputes of States, shall be removed from Office on mense and accurate knowledge sys- national import and sitting with lesser Impeachment for, and Conviction of, tematically arranged.” judges to hear cases in the circuit Treason, Bribery, or other High Crimes courts. Chase proved to be an overbear- and Misdemeanors”—the House voted Yet for all his brainy eloquence, Hop- ing and opinionated jurist. His “im- to impeach Chase on eight counts. kinson’s contribution to the case has petuous nature,” wrote Chief Justice In the heat of the moment, Jefferson been overshadowed by a schmaltzy William H. Rehnquist in his book Grand may have overlooked the implications of remark of Webster’s: “It is, Sir, as I have Inquests: The Historic Impeachments of his not-quite interference. The Constitu- said, a small college. And yet, there are Justice Samuel Chase and President tion was only 16 years old, and the three those who love it!” Andrew Johnson (1992), “made him branches of government were still sort- Hopkinson’s other influential Supreme something of a stormy petrel.” His ruddy ing themselves out. If Chase had been Court case was McCulloch v. complexion earned him the nickname convicted and removed from office, cocky (also decided in 1819), which arose when Old Bacon Face. Democratic-Republicans in Congress the state slapped a tax on the Bank of Irascibility is hardly an impeachable might have gone after other justices and the United States. Although a Federalist offense—otherwise, scores of federal lower-court judges, sparing only those like his father before him—that is, a pro- judges would have been stripped of their who toed the states’-rights line. But ponent of a strong central government— robes by now. But Chase’s peremptory whether Jefferson himself would have Hopkinson agreed to help represent the ways and predictably pro-Federalist rul- endorsed such a purge, Rehnquist writes, state, probably as a favor to the Mary- ings antagonized Democratic-Republi- “is a much more debatable question.” land attorney general, a comrade-in- can President . Chase Indeed, a slyer president might have arms in the Chase case. had been at his high-handed worst in tried to rein in the judiciary by targeting This time Webster was on the other trying a treason case: he’d ordered the an imperious judge from his own party. side, urging a pro-bank outcome. An defendant’s lawyers to stick to the facts For the impeachment of an outspoken onlooker praised Hopkinson’s “superb and refrain from giving their opinion as Federalist by a Democratic-Republican argument,” but once again a piquant to whether these met the legal defini- legislature all but cried out “raw poli- phrase of Webster’s seems to have car- tion of treason—a ruling so resented by tics.” Objectionable as Chase’s partisan- ried the day: “a power to tax … involves Chase’s fellow judges that they quit the ship on the bench may have been, it a power to destroy.” Chief Justice John trial. Chase backed down, but his col- probably helped him somewhat in the Marshall, who announced the Court’s leagues stayed away, and the defendant court of the Senate. ruling against Maryland, gushed about was convicted and sentenced to death Also at issue in this, the first really the lawyering he’d witnessed: “Both in without them. Once, while charging a important impeachment case, was the maintaining the affirmative and the grand jury in , Chase had dis- caliber of the weapon. Was impeach- negative, a splendor of eloquence, and paraged Jefferson’s policies and groused ment meant to be a last recourse for strength of argument seldom, if ever, about proposed changes to the Mary- ousting atrocious public servants, a rou- surpassed, have been displayed.” land constitution. tine method for cleaning house after a

Mar|Apr 2018 THE PENNSYLVANIA GAZETTE 61 national election changes the party in was evident that he could have done still admiralty case, he was asked to decide power, or something in between? better if he had been more at his ease. the fate of a black man claimed by a Chase’s trial opened on February 4, The novelty of the subject, the scene and white man as his escaped slave; the 1805, as the greatest show in town: a the tribunal obviously laid him under black man replied, in essence, “You’ve thousand spectators crowded into the some restraint.” got the wrong fellow.” Judge Hopkinson Senate chamber. Presiding was Vice The occasion, in other words, had got- sifted through conflicting testimony, President , under a cloud for ten to Hopkinson—one of the few times kept his cool amid the fraught racial having recently killed Alexander Ham- on record when he displayed a little politics, and found for the black man. ilton in their infamous duel. (By all human frailty. Hopkinson’s name came up whenever accounts, Burr acquitted himself capa- It hurt the Democratic-Republican a Supreme Court vacancy arose, but, as bly and honorably throughout the trial.) cause that its management was left to a member of the fading , The charges against Chase can be Representative John Randolph of Vir- he was never nominated. When not on summed up as follows: intimidating ginia, a volatile advocate of states’ the bench or at home with his beloved lawyers and witnesses; flaunting his rights. Rehnquist describes Randolph family, he promoted the arts in Phila- political biases in court; and commit- as “the consummate Southern planter, delphia (notably as a founder of the ting procedural errors, such as that [who] patrolled the House of Represen- Pennsylvania Academy of the Fine Arts), refusal (subsequently recanted) to give tatives in boots and spurs with a whip lectured on the law, and served as a lawyers a say in defining treason. In a in hand.” Good at hurling invective but Penn trustee. On January 15, 1842, a three-hour-long opening statement, unable to mount a coherent legal argu- week after last holding court, Joseph Hopkinson scoffed that impeaching ment, Randolph was no match for Hop- Hopkinson died. He was 71. Chase was “employing an elephant to kinson and his cocounsel. The doctrines of impeachment haven’t remove an atom too minute for the The March 1 final vote made for high changed much since 1805. As noted, Hop- grasp of an insect.” No one had accused drama, all the more so when an ailing kinson failed to restrict impeachable his client of treason or bribery, so Hop- senator had to be carried in on a couch. offenses to those specified in the criminal kinson homed in on “high crimes and Although a majority voted to convict code. At the other end of the spectrum misdemeanors,” which he argued Chase on two of the eight counts, it stands a lawless claim made in 1970 by meant no more or less than offenses wasn’t enough of a majority: the anti- then-Representative Gerald Ford during indictable under federal law. This read- Chase contingent’s best shot fell four an abortive attempt to get rid of Supreme ing failed then as it surely would today; votes short of the requisite two-thirds. Court Justice William O. Douglas: “An especially when it comes to financial Rehnquist approved of the outcome impeachable offense is whatever the wrongdoing, human ingenuity always for its “profound effect” of safeguarding majority of the House of Representatives seems a step or two ahead of the legal judicial independence. Taking a differ- considers it to be at a given moment in system’s ability to enumerate crimes. ent view was Raoul Berger, a law profes- history.” The Clinton case shed little light In a more philosophical vein, Hopkin- sor whose book Impeachment: The Con- on the issue; the two counts in his bill of son drew upon his knowledge of the Clas- stitutional Problems came out in 1972, impeachment—perjury and obstruction sics to emphasize the threat posed by just in time for the Watergate crisis. On of justice—seem to fall squarely within Chase’s impeachment: “If we have read the grounds that “by his conduct Chase the meaning of “high crimes and misde- of the death of a Seneca under the feroc- destroyed confidence in the impartial meanors.” (For the record, neither count ity of a Nero, we have read too of the administration of justice,” Berger garnered even a bare majority for convic- murder of a Socrates under the delusion believed that the Senate could justifiably tion in the Senate.) of a Republic. An independent and firm have cashiered him. One wonders how At any rate, Joseph Hopkinson’s sem- judiciary, protected and protecting by the the case would have turned out if the inal contribution to the American pol- laws, would have snatched the one from erratic Randolph and the suave Hopkin- ity seems built to last. It may not be the fury of a despot, and preserved the son had traded places. possible to say what impeachment is for other from the madness of a people.” all time and all cases, but Hopkinson In a letter to a friend, Burr summed 1828, Hopkinson was appointed a helped us to see what it had better not up Hopkinson’s opening-day perfor- federal district judge. Most of the be: a device for picking off the other mance: “He acquitted himself greatly to cases assigned to him had to do party’s judges. his honor. He had method, precision, In with admiralty (maritime law), at perspicuity and displayed much ingenu- the time a far more important area of Dennis Drabelle G’66 L’69 is the author, most ity and knowledge of his subject—yet it the law than it is now. But in one non- recently, of The Great American Railroad War.

62 THE PENNSYLVANIA GAZETTE Mar|Apr 2018