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The Impeachment of John Pickering Author(S): Lynn W The Impeachment of John Pickering Author(s): Lynn W. Turner Source: The American Historical Review, Vol. 54, No. 3 (Apr., 1949), pp. 485-507 Published by: Oxford University Press on behalf of the American Historical Association Stable URL: https://www.jstor.org/stable/1843004 Accessed: 22-01-2020 16:28 UTC JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms Oxford University Press, American Historical Association are collaborating with JSTOR to digitize, preserve and extend access to The American Historical Review This content downloaded from 140.147.183.93 on Wed, 22 Jan 2020 16:28:03 UTC All use subject to https://about.jstor.org/terms LII STORI CAL REVI EW Vol. LlV, No. 3 April, 1949 The Impeachment of John Pickering LYNN WV. TURNER . .the whole of the proceedings connected w'ith the first example of im- peachment carried through under the provisions of the federal Constitution will be always interesting whilst the present government endures .1 T HE system of checks and balances in the federal government pro- vided by the Constitution of I787 has filled the pages of American history with the clamor of political feuds between the great branches of the government. As a fruitful source of disagreement, it has not diminished with the passage of time. Every page of our newspapers today carries a record of dispute between executive and legislature, between Senate and House, between the judiciary and the other departments. The judi- cial branch, aloof from the everyday concerns of government, has been less continuously involved in this dramatic conflict than the others, but on those historic occasions when it is drawn into the fray it provides more than its share of excitement. 1 Charles Francis Adams, ed., John Qziincy Adams' Memoirs (Philadelphia, 1874-77) I, 303-304- This content downloaded from 140.147.183.93 on Wed, 22 Jan 2020 16:28:03 UTC All use subject to https://about.jstor.org/terms 486 Lynn W. Turner The Jeffersonian attack upon the federal judiciary in the early years of the nineteenth century was the first in a long series of epic battles between vigorous administrations and the Supreme Court. It has been de- picted in all of its rich dramatic colors by a host of eminent historians. The mutual hostility of the Virginia cousins, Thomas Jefferson and John Marshall, the repeal of the Federalist Judiciary Act of i8oi by a Republican Congress, the subsequent impeachments of two federal judges, and the Supreme Court's momentous decisions under Marshall's guiding genius have been the principal elements in the story. Admirers of the judicial in- fluence in American history such as Henry Adams and Albert J. Beveridge have damned Jefferson with many pages of circumstantial evidence for lay- ing impious hands upon the sacred structure. More recently, such de- fenders of Jefferson as Claude Bowers have tried to prove, first, that Jef- ferson never intended to destroy the judiciary, and second, that he was perfectly justified in wanting to see it destroyed. Both schools have con- centrated their attention upon the impeachment and trial of Supreme Court Justice Samuel Chase, which undoubtedly was the climax of the entire drama. But in so doing, they have given only perfunctory attention to a necessary and significant preliminary to that notable event-the impeachment of John Pickering. This prosecution of the judge of the federal district court at Portsmouth, New Hampshire, was important in our constitutional history for a number of reasons. It was the first impeachment to run its full course under the federal Constitution, and the first of a judicial officer. It was, furthermore, the first and one of the few successful impeachments if the conviction and removal from office of the accused be deemed the criterion of success. In this respect it created a precedent which would have altered profoundly our constitutional history had it been followed with any degree of con- sistency by future Senates. The fact that its apparent interpretations of the Constitution were so soon reversed by the failure to convict Chase has made the Pickering case a minor development in the story rather than a historic landmark. Nevertheless, it remains a remarkable revelation of what can be achieved under the Constitution by a well-disciplined political majority and deserves careful scrutiny in these days when democracy is undergoing such intensive self-examination. The Pickering impeachment, furthermore, was not the simple curtain- raiser to the main event that historians have generally proclaimed it but a vastly complicated problem in its own right-a problem which has not yet been satisfactorily solved. Stated in its simplest terms the prob- This content downloaded from 140.147.183.93 on Wed, 22 Jan 2020 16:28:03 UTC All use subject to https://about.jstor.org/terms The Impeachment of John Pickering 487 lem is: what is an impeachable offense? 2 If it be granted that not every offense held objectionable by Congress is impeachable, the Pickering case presents a further problem: how can a federal judge be removed from the bench for disabilities which do not warrant impeachment but which render him unfit to perform his duties? John Pickering's predicament presented the problem in a classic form but the Congress of that day failed to find the classic solution. Nor has the Constitution, since then, yielded a satisfactory answer. If, as the Federalists firmly believed, Jefferson wished to destroy the judiciary by removing all Federalist judges, his choice of Judge Pickering as the first victim was an excellent piece of political strategy. The unfortun- ate old man had been an insane drunkard for some time and was clearly unable to perform his duties as a federal judge. His removal could be defended on the unassailable ground of concern for the purity of the judiciary. Once having succeeded in the experiment of convicting a district judge, the Republicans could proceed to hunt bigger game with more assurance of victory. Unfortunately, the Constitution guaranteed that judges should "hold their Offices during good Behaviour," and provided no other means for removing them than "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." ' There- fore, in order to get rid of Pickering, who was certainly neither treasonable, corrupt nor criminal, the strict constructionist Republicans had either brazenly to violate the Constitution or to give the term "misdemeanors" a connotation far more inclusive than its ancient common law meaning. In either case, they enabled their loose construction opponents to pose as defenders of the Constitution in its pristine purity. The Pickering case thus became a political rather than a legal issue. Instead of standing in American history as the correct precedent for all future cases of judicial impeachment, it became a tragic blunder which reflected discredit upon everyone con- nected with it.4 The impeachment would have seemed less brutal if its innocent victim had not been one of New Hampshire's most distinguished citizens, the author of her constitution, a revolutionary patriot, a man who throughout 2 For an elaborate citation of opinions on this question see Asher C. Hinds, Precedents of the House of Representatives (Washington, 1907), III, 322 ff. 3 Article III, Section i; and Art. II, Sec. 4. 4 "So confused, contradictory and irregular were these proceedings," declared Henry Adams, "that Pickering's trial was never considered a sound precedent. That an insane man could be legally guilty of crime on ex parte evidence, without a hearing, without even an at- torney to act in his behalf, seemed such a perversion of justice that the precedent fell dead on the spot." Henry Adams, History of the United States (New York, I890-9I), II, I56. This content downloaded from 140.147.183.93 on Wed, 22 Jan 2020 16:28:03 UTC All use subject to https://about.jstor.org/terms 488 Lynn W. Turner his long public career had been universally admired. Historians, reading merely the partisan testimony on Pickering's conduct which was sent to Jefferson, have been inclined to treat his character with ignorant contempt or unseemly levity.5 But Pickering's contemporaries were nearly unanimous in testifying to his intellectual greatness, sobriety and moral integrity.6 For five years after his appointment to the federal bench, he apparently performed his few duties competently. But, at the turn of the century, the sixty-three-year-old jurist, who had for some time been increasingly hypochondriac and subject to such eccentricities as an unreasoning fear of water travel, showed evidence of definite mental derangement.7 It would have saved the Pickering family much humiliation if the judge had resigned, but resignation was a responsible, rational act of which an in- sane man would be incapable. The family did nothing because of the judge's poverty. He had been notoriously generous and improvident, and lost most of his property in the terrible Portsmouth fire of I802-all this before the days of civil service pensions. The Portsmouth Federalists remained quiet because of the judge's politics. His resignation would have created a vacancy for a Republican President to fill-and the district attorney, Republican heir-apparent, was peculiarly obnoxious to New Hampshire Federalists.8 By Federalist reasoning, Pickering's misfortunes were due directly to the repeal of the Griswold Judiciary Act, and his persecution simply a part of a Republican plot.
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