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Old Bacon Face 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 Samuel Chase—aka “Old Bacon especially momentous cases: those of two Face”—against impeachment, presidents, Andrew Johnson (1868) and Joseph Hopkinson 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 Pennsylvania 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 20182018 THE PENNSYLVANIAPENNSYLVANIA GGAZETTEAZETTE 59 Joseph Hopkinson Joseph Hopkinson came from a line ety of Philadelphia, 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 Benjamin Franklin 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 New Jersey. 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- United States.” 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. Benjamin Rush, 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 William Cobbett, 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 Daniel Webster. 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- Dartmouth College 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.
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