The Impeachment of Justice Samuel Chase and the Rise Of

HEADNOTES

of former senator Albert Beveridge’s The was in the state and that an individual Life of John Marshall (Houghton Mifflin state legislature could declare an act of Co. 1919), may show we were even more Congress to be unconstitutional. divided as a country during Chase’s time Jefferson was many things, includ- than we are now. ing a cutthroat politician. His view was In the waning days of President John to replace as many Federalist judges as LEGAL LORE Adams’s administration, the Federalists possible. Those he could not replace he passed the Judiciary Act of 1801. It reorga- would try to get impeached. This general The nized the federal circuits and provided for Republican position was reinforced by the appointment of a number of additional Justice Marshall’s decision in Marbury Impeachment of judges, who, of course, were Federalists. v. Madison, which established the prin- But with the election of a Republican ciple of judicial review. Republican Justice Samuel wave in 1800, Congress rescinded that Senator William Branch Giles of Virginia act. There was open warfare between was heard to comment, “We want your Chase and the the parties, not only as to who the judges offices for the purpose of giving them should be but also as to what they should to men who will fill them better.” The Rise of Judicial be able to do. Republicans believed that judges could The Federalists were believers in judi- be removed for any cause the majority Review cial review. In Federalist No. 78 Alexander party deemed sufficient. Hamilton wrote, “The interpretations of The first target for Republicans was RICHARD A. DEAN the laws is the proper and peculiar prov- Judge John Pickering of New Hampshire, ince of the Courts.” This was certainly who held Federalist views. President The author is a partner with Tucker Ellis LLP, general understanding of the key fram- Jefferson sent information to the House Cleveland. ers of the Constitution. But Jefferson of Representatives charging Pickering Only one justice of the U.S. Supreme Court and his Republicans were adamantly op- with “unlawful rulings” and being intoxi- has ever been impeached—Samuel Chase— posed to such review. He wrote, “To con- cated while on the bench, and demand- but he was not convicted by the Senate. sider the judges as the ultimate arbiters of ed his impeachment. There was no dis- The story of his impeachment proceedings all constitutional questions would place pute as to the intoxication charge. Judge in 1804 and 1805, most notably published us under the despotism of an oligarchy.” Pickering was also insane. Nonetheless, exactly a century ago in the third volume Republicans believed the ultimate power the Federalists objected that he had

Illustration by Sean Kane

Published in Litigation, Volume 46, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 1 copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. committed no “high crimes or misde- And there was a dispute about whether high-profile trials, trying to establish meanors.” The House voted impeach- the Louisiana Purchase was legal. If an that he was “more” fair and judicious ment. Pickering was convicted in March approach oriented toward states’ rights than Chase. 1804. Henry Adams, a great admirer of was truly how the nation should be gov- The closing arguments took several Jefferson, in his classic history of the erned, how could such states legally ac- days. The House trial managers prosecut- United States, called the result “an infa- quire such vast land masses? The ability to ing Chase argued that this was an inquest mous and certainly an illegal conviction.” make such an acquisition was much more on Chase’s arbitrary and overbearing con- Within one hour of the conviction of consistent with the Federalist view of the duct and that he did not deserve to be a Judge Pickering, the House voted im- Constitution—that a central government judge. Chase’s defenders argued that he peachment against Justice Samuel Chase. had such powers. had committed no high crimes and misde- Chase was a partisan Federalist. He had Vice President Aaron Burr, fresh from meanors—at most, he had violated princi- incurred the wrath of Republicans by pre- his famous duel with Alexander Hamilton, ples of politeness but not principles of law. siding over many trials under the Alien presided over Chase’s trial. Burr was un- The rebuttal proved disastrous for the and Sedition Act, which resulted in con- der indictment in two states arising from House managers. Shifting positions on the victions for what we would now regard the duel. He had only four weeks left to standard for conviction, Joseph Nicolson as an exercise of free speech but what serve as vice president. There was a big of Maryland made the argument that was then proscribed by the act. These outpouring of spectators for the trial. The Chase was indeed guilty of criminal acts. trials were causes célèbres of the time. senators were joined by many members of The other House managers were aghast Chase also expressed his political views the executive branch and by Chief Justice and tried to repair the damage done by in open court, and he was often rude and John Marshall and the associate justices these remarks. The closing arguments had demeaning to counsel whose positions he of the Supreme Court—who could be the focused the senators on the importance did not favor. There were eight counts in next targets of impeachment if Chase of the standard of “high crimes and mis- the impeachment—many based on con- were to be convicted. demeanors,” but there was not consistent duct at particular trials, such as charging Fifty-four witnesses were called. As agreement on that among the Republican a grand jury with an “intemperate and John Quincy Adams noted, “hours of in- advocates of impeachment. inflammatory political harangue,” and terrogation and answers were consumed At the time, the Senate had 34 mem- some as vague as “prostituting” his judi- in evidence to looks, to bows, to tones of bers; 22 votes were necessary for convic- cial character. John Quincy Adams noted voice and modes of speech—to prove the tion, and there were eight separate counts. that “[t]hese articles contained in them- insufferable grievance that Mr. Chase The Senate voted on March 1, 1805—only selves a virtual impeachment not only of had more than once raised a laugh at the days before Burr’s term expired. The votes Mr. Chase, but of all the Judges on the expense of Callender’s [one of the defen- differed by count, but the highwater mark Supreme Court from the first establish- dants in an Alien and Sedition case] coun- for conviction was only four-fifths of what ment of the national judiciary.” sel, and to ascertain the tremendous fact was necessary. Six Republicans voted not Chase’s trial in the Senate did not com- that he had accosted the Attorney General guilty on every count. mence until a year later, in February 1805. of Virginia by the appellation of ‘Young Chase had been acquitted and the at- The delay was due to two things: the elec- Gentleman.’” Marshall himself was called tack on Federalists judges was over. John tion of 1804 and the Louisiana Purchase. as a witness and, by all accounts, was very Marshall was never impeached. And ju- Jefferson did not want to make a direct nervous and hesitating. The Republicans dicial review became an accepted part of issue of judicial review in the campaign. examined him about his conduct of American government. q