Such was the situation on the 4th of February, 1805, when the Senate convened to hear and determine the case of Samuel Chase, impeached by the House for high crimes and misdemeanors, to settle by the judgment it should render the fate of John Marshall as Chief Justice of the United States, and to fix forever the place of the National Judiciary in the scheme of American government.
"Oyez! Oyez! Oyez! – All persons are commanded to keep silence on pain of imprisonment, while the grand inquest of the nation is exhibiting to the Senate of the United States, sitting as a Court of Impeachments, articles of impeachment against Samuel Chase, Associate Justice of the Supreme Court of the United States."484
So cried the Sergeant-at-Arms of the National Senate when, in the Chase trial, John Marshall, the Supreme Court, and the whole National Judiciary were called to judgment by Thomas Jefferson, on the bleak winter day in dismal, scattered, and quarreling Washington. An audience crowded the Senate Chamber almost to the point of suffocation. There were present not only the members of Senate and House, the officers of the Executive departments, and the men and women of the Capital's limited society, but also scores of eminent persons from distant parts of the country.485
LETTER TO SAMUEL CHASE (Facsimile)
Among the spectators were John Marshall and the Associate Justices of the Supreme Court, thoroughly conscious that they, and the institution of which they were the highest representatives, were on trial almost as much as their imprudent, rough, and outspoken fellow member of the Bench. It is not improbable that they were helping to direct the defense of Chase,486 in which, as officials, they were personally interested, and in which, too, all their convictions as citizens and jurists were involved.
Marshall, aroused, angered, and frightened by the articles of the impeachment, had written his brother a year before the Chase trial that they are "sufficient to alarm the friends of a pure, and, of course, an independent Judiciary, if, among those who rule our land there be any of that description."487 At the beginning of the proceedings Chase had asked Marshall, who was then in Richmond, to write an account of what occurred at the trial of Callender, and Marshall promptly responded: "I instantly applied to my brother488 & to Mr. Wickham489 to state their recollection of the circumstances under which Colo. Taylors testimony was rejected.490 They both declared that they remembred them very imperfectly but that they woud endeavor to recollect what passed & commit it to writing. I shall bring it with me to Washington in february." Marshall also promised to bring other documents.
"Admitting it to be true," continues Marshall, "that on legal principles Colo. Taylors testimony was admissible, it certainly constitutes a very extraordinary ground for an impeachment. According to the antient doctrine a jury finding a verdict against the law of the case was liable to an attaint; & the amount of the present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.
"As, for convenience & humanity the old doctrine of attaint has yielded to the silent, moderate but not less operative influence of new trials, I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.
"The other charges except the 1st & 4th which I suppose to be altogether unfounded, seem still less to furnish cause for impeachment. But the little finger of [blotted out – probably "democracy"] is heavier than the loins of – .491
"Farewell – With much respect and esteem…
Marshall thus suggested the most radical method for correcting judicial decisions ever advanced, before or since, by any man of the first class. Appeals from the Supreme Court to Congress! Senators and Representatives to be the final judges of any judicial decision with which a majority of the House was dissatisfied! Had we not the evidence of Marshall's signature to a letter written in his well-known hand, it could not be credited that he ever entertained such sentiments. They were in direct contradiction to his reasoning in Marbury vs. Madison, utterly destructive of the Federalist philosophy of judicial control of legislation.
The explanation is that Marshall was seriously alarmed. By his own pen he reveals to us his state of mind before and on that dismal February day when he beheld Samuel Chase arraigned at the bar of the Senate of the United States. During the trial Marshall's bearing as a witness493 again exhibited his trepidation. And, as we have seen, he had good cause for sharp anxiety.494
The avowed Republican purpose to remove him and his Federalist associates from the Supreme Bench, the settled and well-known intention of Jefferson to appoint Spencer Roane as Chief Justice when Marshall was ousted, and the certainty that this would be fatal to the execution of those fundamental principles of government to which Marshall was so passionately devoted – these important considerations fully warranted the apprehension which the Chief Justice felt and now displayed.
Had he been indifferent to the peril that confronted him and the whole National Judiciary, he would have exhibited a woeful lack of sense and feeling. He was more than justified in resorting to any honorable expedient to save the great office he held from occupancy by a resolute and resourceful foe of those Constitutional theories, the application of which, Marshall firmly believed, was indispensable to the sound development of the American Nation.
The arrangements for the trial were as dramatic as the event itself was momentous.495 The scenes of the impeachment prosecution of Warren Hastings were still vivid in the minds of all, and in imitation of that spectacle, the Senate Chamber was now bedecked with impressive splendor. It was aglow with theatrical color, and the placing of the various seats was as if a tragic play were to be performed.
To the right and left of the President's chair were two rows of benches with desks, the whole covered with crimson cloth. Here sat the thirty-four Senators of the United States. Three rows of benches, arranged in tiers, extended from the wall toward the center of the room; these were covered with green cloth and were occupied by the members of the House of Representatives. Upon their right an enclosure had been constructed, and in it were the members of Jefferson's Cabinet.
Beneath the permanent gallery to which the general public was admitted, a temporary gallery, supported by pillars, ran along the wall, and faced the crimson-covered places of the Senators. At either end of it were boxes. Comfortable seats had been provided in this enclosure; and these were covered with green cloth, which also was draped over the balustrade.
This sub-gallery and the boxes were filled with ladies dressed in the height of fashion. A passageway was left from the President's chair to the doorway. On either side of this aisle were two stalls covered with blue cloth, as were also the chairs within them. They were occupied by the managers of the House of Representatives and by the lawyers who conducted the defense.496
A short, slender, elegantly formed man, with pallid face and steady black eyes, presided over this Senatorial Court. He was carefully dressed, and his manners and deportment were meticulously correct. Aaron Burr, fresh from his duel with Hamilton, and under indictment in two States, had resumed his duties as Vice-President. Nothing in the bearing of this playwright character indicated in the smallest degree that anything out of the ordinary had happened to him. The circumstance of his presence, however, dismayed even the most liberal of the New England Federalists. "We are indeed fallen