The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

For two years no part of the Republican plans against the Judiciary had miscarried. Close upon the very day when John Breckenridge in the Senate had moved to repeal the National Judiciary Act of 1801, a petition signed by the enraged Republicans of Alleghany County, Pennsylvania, had been sent to the Legislature of that State, demanding the impeachment of Alexander Addison; and almost simultaneously with the passage of the Judiciary Repeal Act of Congress, the Pennsylvania House of Representatives transmitted to the State Senate articles charging the able but arrogant Federalist judge with high crimes and misdemeanors.

Addison's trial speedily followed; and while the evidence against him, viewed through the perspective of history, seems trivial, the Republican Pennsylvania Senate pronounced judgment against him and deposed him from the bench. With notable ability, Addison conducted his own defense. He made a powerful speech which is a classic of conservative philosophy.[448 - Addison's address is historically important; it perfectly shows the distrust of democracy which all Federalist leaders then felt. Among other things, he pleaded for the independence of the Judiciary, asserted that it was their exclusive province to decide upon the constitutionality of laws, and stoutly maintained that no judge could be impeached except for an offense for which he also could be indicted. (Addison Trial, 101-43.)] But his argument was unavailing. The Republican theory, that a judge might be deposed from office for any conduct or opinion of which the Legislature disapproved, was ruthlessly carried out.[449 - The petition praying for the impeachment of Addison was sent to the Pennsylvania House of Representatives on January 11, 1802. On March 23, 1802, that body transmitted articles of impeachment to the State Senate. The trial was held in early January, 1803. Addison was convicted January 26, 1803. (Ib.)]

Almost as soon as Congress convened after the overthrow of the obnoxious Pennsylvania Federalist judge, the Republicans in the National House, upon representations from Jefferson, took steps to impeach John Pickering, Judge of the United States Court for the District of New Hampshire.[450 - Jefferson's Message was transmitted to the House, February 4, 1803, nine days after the conviction of Addison. It enclosed a "letter and affidavits" setting forth Pickering's conduct on the bench in the case of the ship Eliza, and suggested that "the Constitution has confided [to the House] a power of instituting proceedings of redress." (Annals, 7th Cong. 2d Sess. 460.)On March 2 the committee reported a resolution for Pickering's impeachment because of the commission by him of "high crimes and misdemeanors," and, though a few Federalists tried to postpone a vote, the resolution was adopted immediately.] This judge had been hopelessly insane for at least three years and, as one result of his mental and nervous malady, had become an incurable drunkard.[451 - Depositions of Samuel Tenney, Ammi R. Cutter, Joshua Brackett, Edward St. Loe Livermore. (Annals, 8th Cong. 1st Sess. 334-42.)] In this condition he had refused to hear witnesses for the Government in the case of the ship Eliza, seized for violation of the revenue laws. He peremptorily ordered the vessel returned to its captain, and finally declined to allow an appeal from his decree. All this had been done with ravings, cursings, and crazed incoherences.[452 - Testimony of John S. Sherburne, Thomas Chadbourne, and Jonathan Steele. (Ib. 351-56.)]

That he was wholly incapacitated for office and unable to perform any act requiring intelligence was conceded by all. But the Constitution provided no method of removing an officer who had become insane.[453 - The wise and comprehensive Federalist Judiciary Act of 1801 covered just such cases. It provided that when a National judge was unable to discharge the duties of his office, the circuit judges should name one of their members to fill his place. (See Annals, 6th Cong. 2d Sess. 1545.) This very thing had been done in the case of Judge Pickering (see McMaster: U.S. iii, 166). It is curious that, in the debate, the Republicans did not denounce this as unconstitutional.] This defect, however, gave the Republicans an ideal opportunity to put into practice their theory that impeachment was unrestricted and might be applied to any officer whom, for any reason, two thirds of the Senate deemed undesirable. "If the facts of his denying an appeal & of his intoxication, as stated in the impeachment, are proven, that will be sufficient cause for removal without further enquiry," asserted Jefferson when assured that Pickering was insane, and when asked "whether insanity was good cause for impeachment & removal from office."[454 - Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.]

The demented judge did not, of course, appear at his trial. Instead, a petition by his son was presented, alleging the madness of his father, and praying that evidence to that effect be received by the Senate.[455 - Annals, 8th Cong. 1st Sess. 328-30.] This plea was stoutly resisted, and for two days the question was debated. "The most persevering and determined opposition is made against having evidence and counsel to prove the man insane," records John Quincy Adams, "only from the fear, that if insanity should be proved, he cannot be convicted of high crimes and misdemeanors by acts of decisive madness."[456 - Memoirs, J. Q. A.: Adams, i, 299-300.] Finally the determined Republicans proceeded to the trial of the insane judge for high crimes and misdemeanors, evidence of his dethroned reason to be received "in mitigation."[457 - "This," records Adams, "had evidently been settled … out of court. And this is the way in which these men administer justice." (Ib.)] In immense disgust the House managers withdrew, because "the Senate had determined to hear evidence" that the accused person was insane. Before they returned, they publicly denounced the Senators for their leniency; and thus Republican discipline was restored.[458 - "In the House … speeches are making every day to dictate to the Senate how they are to proceed; and the next morning they proceed accordingly." (Ib. 301-02.)]

Jefferson was impatient. "It will take two years to try this impeachment," he complained to Senator Plumer. "The Constitution ought to be altered," he continued, "so that the President should be authorized to remove a Judge from office, on the address of the two Houses."[459 - Feb. 18, 1803, Plumer, 253.] But the exasperated Republicans hastened the proceedings; and the trial did not consume two weeks all told.

If an insane man should be condemned, "it will not hereafter be necessary," declared Senator Samuel Smith of Maryland, "that a man should be guilty of high crimes and misdemeanors," the commission of which was the only Constitutional ground for impeachment. Senator Jonathan Dayton of New Jersey denounced the whole proceeding as "a mere mockery of a trial."[460 - Annals, 8th Cong. 1st Sess. 365.] Senator John Quincy Adams, in the flurry of debate, asserted that he should "speak until [his] mouth was stopped by force."[461 - See Memoirs, J. Q. A.; Adams, i, 302-04, for a vivid account of the whole incident.] Senator Nicholas of Virginia shouted "Order! order! order!" when Samuel White of Delaware was speaking. So furious became the altercation that a duel seemed possible.[462 - Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.] No delay was permitted and, on March 12, 1804, the demented Pickering was, by a strictly partisan vote of 19 to 7,[463 - Annals, 8th Cong. 1st Sess. 367. "The independence of our judiciary is no more … I hope the time is not far distant when the people east of the North river will manage their own affairs in their own way; … and that the sound part will separate from the corrupt." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) On the unconstitutional and revolutionary conduct of the Republicans in the Pickering impeachment trial see Adams: U.S. ii, 158.] adjudged guilty of high crimes and misdemeanors.

An incident happened which was prophetic of a decline in the marvelous party discipline that had kept the Republicans in Senate and House in solid support of the plans of the leaders. Three Republican Senators left the Chamber in order to avoid the balloting.[464 - Senators John Armstrong of New York, Stephen R. Bradley of Vermont, and David Stone of North Carolina. Jonathan Dayton of New Jersey and Samuel White of Delaware, Federalists, also withdrew. (Annals, 8th Cong. 1st Sess. 366.) And see Memoirs, J. Q. A.: Adams, i, 308-09; J. Q. Adams to his father, March 8, 1805, Writings, J. Q. A.: Ford, iii, 110; Plumer to Park, March 13, 1804, Plumer MSS. Lib. Cong.Senator John Brown of Kentucky, a Republican, "could not be induced to join the majority, but, unwilling to offend them, he obtained & has taken a leave of absence." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) Senator Brown had been elected President pro tem. of the Senate, January 23, 1804.Burr "abruptly left the Senate" to attend to his candidacy for the governorship of New York. (Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.) Senator Franklin of North Carolina was then chosen President pro tem. and presided during the trial of Pickering. But Burr returned in time to arrange for, and preside over, the trial of Justice Chase.] They would not adjudge an insane man to be guilty of high crimes and misdemeanors, but they were not yet independent enough to vote against their party.[465 - The Republicans even refused to allow the report of the proceedings to be "printed in the Appendix to the Journals of the Session." (Memoirs, J. Q. A.: Adams, I, 311.)The conviction and removal of Pickering alarmed the older Federalists almost as much as did the repeal of the Judiciary Act. "The demon of party governed the decision. All who condemned were Jeffersonians, and all who pronounced the accused not guilty were Federalists." (Pickering to Lyman, March 4, 1804, N.E. Federalism: Adams, 358-59; Lodge: Cabot, 450.)"I really wish those in New England who are boasting of the independence of our Judiciary would reflect on what a slender tenure Judges hold their offices whose political sentiments are at variance with the dominant party." (Plumer to Park, March 13, 1804, Plumer MSS. Lib. Cong.)] This, however, did not alarm the Republican managers. They instantly struck the next blow upon which they had determined more than two years before. Within an hour after John Pickering was convicted the House voted to impeach Samuel Chase.

Marshall's irascible associate on the Supreme Bench had given the Republicans a new and serious cause for hostilities against him. In less than two months after Marshall had delivered the unanimous opinion of the Supreme Court in Marbury vs. Madison, Justice Chase, in charging the grand jury at Baltimore, denounced Republican principles and mercilessly assailed Republican acts and purposes.

This judicial critic of democracy told the grand jury that "the bulk of mankind are governed by their passions, and not by reason… The late alteration of the federal judiciary … and the recent change in our state constitution, by the establishing of universal suffrage, … will … take away all security for property and personal liberty … and our republican constitution will sink into a mobocracy, the worst of all popular governments."

Chase condemned "the modern doctrines by our late reformers, that all men, in a state of society, are entitled to enjoy equal liberty and equal rights, [which] have brought this mighty mischief upon us"; – a mischief which he feared "will rapidly progress, until peace and order, freedom and property, shall be destroyed… Will justice be impartially administered by judges dependent on the legislature for their … suport? Will liberty or property be protected or secured, by laws made by representatives chosen by electors, who have no property in, or a common interest with, or attachment to, the community?"[466 - Exhibit viii, Chase Trial, Appendix, 61-62; also see Annals, 8th Cong. 2d Sess. 675-76.]

Burning with anger, a young Republican member of the Maryland Legislature, John Montgomery, who had listened to this judicial tirade, forthwith savagely denounced Chase in the Baltimore American.[467 - June 13, 1803.] He demanded that the Justice be impeached and removed from the bench.[468 - See Chase Trial, 101 et seq.] Montgomery hastened to send to the President[469 - See McMaster: U.S. iii, 162-70.] a copy of the paper.

Jefferson promptly wrote Nicholson: "Ought this seditious and official attack on the principles of our Constitution, and on the proceedings of a State, go unpunished? And, to whom so pointedly as yourself will the public look for the necessary measures?"

But Jefferson was not willing to appear openly. With that uncanny power of divining political currents to which coarser or simpler minds were oblivious, he was conscious of the uneasiness of Northern Republicans over ruthless impeachment and decided not to become personally responsible. "For myself," he cautioned Nicholson, "it is better that I should not interfere."[470 - Jefferson to Nicholson, May 13, 1803, Jefferson Writings: Washington, iv, 484.]

Upon the advice of Nathaniel Macon,[471 - Macon to Nicholson, Aug. 6, 1803, Dodd: Life of Nathaniel Macon, 187-88. Macon seriously doubted the expediency and legality of the impeachment of Chase. However, he voted with his party.] Republican Speaker of the House, Nicholson concluded that it would be more prudent for another to take the lead. It was well understood that he was to have Chase's place on the Supreme Bench,[472 - Dodd, 187-88.] and this fact would put him at a disadvantage if he became the central figure in the fight against the aged Justice. The procurement of the impeachment was, therefore, placed in the eager hands of John Randolph, that "unusual Phenomenon," as John Adams called him,[473 - Adams to Rush, June 22, 1806, Old Family Letters, 100.] whose lust for conspicuous leadership was insatiable.

The Republican managers had carefully moulded public opinion into the belief that Chase was guilty of some monstrous crime. Months before articles of impeachment were presented to the House, ex parte statements against him were collected, published in pamphlet form, and scattered throughout the country. To assure wider publicity all this "evidence" was printed in the Republican organ at Washington. The accused Justice had, therefore, been tried and convicted by the people before the charges against him were even offered in the House.[474 - Chase "is very obnoxious to the powers that be & must be denounced, but articles will not be exhibited agt him this session. The Accusers have collected a volume of exparte evidence against him, printed & published it in pamphlets, & now it is publishing in the Court gazette to be diffused in every direction… If a party to a suit at law, … was to practice in this manner he would merit punishment." (Plumer to Smith, March 11, 1804, Plumer MSS. Lib. Cong.)]

This preparation of the popular mind accomplished, Chase was finally impeached. Eight articles setting forth the Republican accusations were laid before the Senate. Chase was accused of everything of which anybody had complained since his appointment to the Supreme Bench. His conduct at the trials of Fries and Callender was set forth with tedious particularity: in Delaware he had stooped "to the level of an informer"; his charge to the grand jury at Baltimore was an "intemperate and inflamatory political harangue"; he had prostituted his "high judicial character … to the low purpose of an electioneering partizan"; his purpose was "to excite … odium … against the government."[475 - See supra, chap. i. For the articles of impeachment see Annals, 8th Cong. 2d Sess. 85-88; Chase Trial, 10-11.The Republicans, for a time, contemplated the impeachment of Richard Peters, Judge of the United States Court for the District of Pennsylvania, who sat with Chase during the trial of Fries. (Annals, 8th Cong. 1st Sess. 823-24, 850, 873-74.) But his name was dropped because he had not "so acted in his judiciary capacity as to require the interposition of the Constitutional powers of this House." (Ib. 1171.)Peters was terrified and turned upon his fellow judge. He showered Pickering and other friends with letters, complaining of the conduct of his judicial associate. "If I am to be immolated let it be with some other Victim – or for my own Sins." (Peters to Pickering, Jan. 26, 1804, Pickering MSS. Mass. Hist. Soc.)]

This curious scramble of fault-finding, which was to turn out so fatally for the prosecution, was the work of Randolph. When the conglomerate indictment was drawn, no one, except perhaps Jefferson, had the faintest idea that the Republican plan would miscarry; Randolph's multifarious charges pleased those in Virginia, Pennsylvania, Delaware, and Maryland who had first made them; they were so drawn as to lay a foundation for the assault which was to follow immediately. "These articles," wrote John Quincy Adams, "contained in themselves a virtual impeachment not only of Mr. Chase, but of all the Judges of the Supreme Court from the first establishment of the national judiciary."[476 - J. Q. Adams to his father, March 14, 1805, Writings, J. Q. A.: Ford, iii, 116.]

In an extended and carefully prepared speech, Senator Giles, who had drawn the rules governing the conduct of the trial in the Senate, announced the Republican view of impeachment which, he said, "is nothing more than an enquiry, by the two Houses of Congress, whether the office of any public man might not be better filled by another." Adams was convinced that "this is undoubtedly the source and object of Mr. Chase's impeachment, and on the same principle any officer may easily be removed at any time."[477 - Dec. 20, 1804, Memoirs, J. Q. A.: Adams, i, 321.]

From the time the House took action against Chase, the Federalists were in despair. "I think the Judge will be removed from Office," was Senator Plumer's opinion.[478 - Plumer to Cogswell, Jan. 4, 1805, Plumer MSS. Lib. Cong.; and see Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. loc. cit.] "The event of the impeachment is already determined," wrote Bayard before the trial began.[479 - Bayard to Harper, Jan. 30, 1804, Bayard Papers: Donnan, 160.] Pickering was certain that Chase would be condemned – so would any man that the House might impeach; such "measures … are made questions of party, and therefore at all events to be carried into effect according to the wishes of the prime mover [Jefferson]."[480 - Pickering to Lyman, March 14, 1804, Lodge: Cabot, 450; also N.E. Federalism: Adams, 359.]

As the day of the arraignment of the impeached Justice approached, his friends were not comforted by their estimate of the public temper. "Our public … will be as tame as Mr. Randolph can desire," lamented Ames. "You may broil Judge Chase and eat him, or eat him raw; it shall stir up less anger or pity, than the Six Nations would show, if Cornplanter or Red Jacket were refused a belt of wampum."[481 - Ames to Dwight, Jan. 20, 1805, Ames, i, 338.]

When finally Chase appeared before the bar of the Senate, he begged that the trial should be postponed until next session, in order that he might have time to prepare his defense. His appeal fell on remorseless ears; the Republicans gave him only a month. But this scant four weeks proved fatal to their purpose. Jefferson's wise adjustment of the greatest financial scandal in American history[482 - The Yazoo fraud. No other financial scandal in our history equaled this, if one considers the comparative wealth and population of the country at the times other various great frauds were perpetrated. For an account of it, see infra, chap. x.] came before the House during this interval; and fearless, honest, but impolitic John Randolph attacked the Administration's compromise of the Yazoo fraud with a ferocity all but insane in its violence. Literally screaming with rage, he assailed Jefferson's Postmaster-General who was lobbying on the floor of the House for the passage of the President's Yazoo plan, and delivered continuous philippics against that polluted transaction out of which later came the third of John Marshall's most notable opinions.[483 - For Randolph's frantic speech on the Yazoo fraud and Marshall's opinion in Fletcher vs. Peck, see infra, chap. x.]

In this frame of mind, nervously exhausted, physically overwrought and troubled, the most brilliant and effective Congressional partisan leader of our early history came to the trial. Moreover, Randolph had broken with the Administration and challenged Jefferson's hitherto undisputed partisan autocracy. This was the first public manifestation of that schism in the Republican Party which was never entirely healed.

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 - This form was adopted in the trial of Judge Pickering. See Annals, 8th Cong. 1st Sess. 319.]

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 - See Plumer, 323.]

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 - Channing: U.S. iv, 287.] 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 - Marshall to James M. Marshall, April 1, 1804, MS.] 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 brother[488 - William Marshall. See infra, 191-92.] & to Mr. Wickham[489 - John Wickham, leader of the Richmond bar and one of Marshall's intimate friends.] to state their recollection of the circumstances under which Colo. Taylors testimony was rejected.[490 - See supra, chap. i; and infra.] 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 - See 1 Kings, xii, 10.]

"Farewell – With much respect and esteem…

    "J. Marshall."[492 - Marshall to Chase, Jan. 23, 1804, Etting MSS. Pa. Hist. Soc.]

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 witness[493 - See infra, 192-96.] again exhibited his trepidation. And, as we have seen, he had good cause for sharp anxiety.[494 - See supra, chap. iii, 113.]

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 - "M

Burr had the sole power of making the arrangements … for the trial." (Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. Lib. Cong.)] 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 - Annals, 8th Cong. 2d Sess. 100; Chase Trial, 2-5.]

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 on evil times," wrote Senator Plumer. "The high office of President is filled by an infidel, that of Vice-President by a murderer."[497 - Plumer to Norris, Nov. 7, 1804, Plumer, 329.]

For the first time since the Republican victory of 1800, which, but for his skill, courage, and energy in New York, would not have been achieved,[498 - See infra, chap. vi.] Burr now found himself in favor with the Administration and the Republican chieftains.[499 - See J. Q. Adams to his father, Jan. 5, 1805, Writings, J. Q. A.: Ford, iii, 104.] Jefferson determined that Aaron Burr must be captured – at least conciliated. He could not be displaced as the presiding officer at the Chase impeachment trial; his rulings would be influential, perhaps decisive; the personal friendship and admiration of several Senators for him were well known; the emergency of the Republican Party was acute. Chase must be convicted at all hazards; and while nobody but Jefferson then doubted that this would be the result, no chances were to be taken, no precaution overlooked.

The President had rewarded the three principal witnesses against Pickering with important and lucrative offices[500 - Plumer, 274. "John S. Sherburne, Jonathan Steele, Michael McCleary and Richard Cutts Shannon were the principal witnesses against Pickering. Sherburne was appointed Judge [in Pickering's place]; Steele, District Attorney; McCleary, Marshal; and Shannon, Clerk of the Court… Steele, expecting to have been Judge refused to accept his appointment, assigning as the reason his agency in the removal of Pickering."] after the insane judge had been removed from the bench. Indeed he had given the vacated judgeship to one of these witnesses. But such an example Jefferson well knew would have no effect upon Burr; even promises would avail nothing with the man who for nearly three years had suffered indignity and opposition from an Administration which he, more than any one man except Jefferson himself, had placed in power.

So it came about that Vice-President Aaron Burr, with only four weeks of official life left him, with the whole North clamorous against him because of his killing of Hamilton and an indictment of murder hanging over him in New Jersey, now found himself showered with favors by those who owed him so much and who, for nearly four years, had so grossly insulted him.

Burr's stepson, his brother-in-law, his most intimate friend, were forthwith appointed to the three most valuable and commanding offices in the new government of the Louisiana Territory, at the attractive city of New Orleans.[501 - Plumer, 329-30; and see Adams: U.S. ii, 220.] The members of the Cabinet became attentive to Burr. The President himself exercised his personal charm upon the fallen politician. Time after time Burr was now invited to dine with Jefferson at the Executive Mansion.

Nor were Presidential dinners, the bestowal of patronage hitherto offensively refused, and attentions of the Cabinet, the limit of the efforts to win the coöperation of the man who was to preside over the trial of Samuel Chase. Senator Giles drew a petition to the Governor of New Jersey begging that the prosecution of Burr for murder be dropped, and to this paper he secured the signature of nearly all the Republican Senators.[502 - Nov. 26, 1804, Memoirs, J. Q. A.: Adams, i, 317-18; and Adams, U.S. ii, 220-22."Burr is flattered and feared by the administration." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.; and Plumer to Wilson, Dec. 7, 1804, Plumer MSS. loc. cit.)]

Burr accepted these advances with grave and reserved dignity; but he understood the purpose that inspired them, did not commit himself, and remained uninfluenced and impartial. Throughout the momentous trial the Vice-President was a model presiding officer. "He conducted with the dignity and impartiality of an angel, but with the rigor of a devil," records a Washington newspaper that was bitterly hostile to Burr personally and politically.[503 - Davis, ii, 360; also Adams: U.S. 218-44."It must be acknowledged that Burr has displayed much ability, and since the first day I have seen nothing of partiality." (Cutler to Torrey, March 1, 1805, Cutler: Life, Journals and Correspondence of Manasseh Cutler, ii, 193.)At the beginning of the trial, however, Burr's rigor irritated the Senate: "Mr. Burr is remarkably testy – he acts more of the tyrant – is impatient, passionate – scolds – he is in a rage because we do not sit longer." (Plumer, Feb. 8, 1805, "Diary," Plumer MSS. Lib. Cong.)"Just as the time for adjourning to morrow was to be put … Mr. Burr said he wished to inform the Senate of some irregularities that he had observed in the Court."Some of the Senators as he said during the trial & while a witness was under examination walked between him & the Managers – others eat apples – & some eat cake in their seats."Mr. Pickering said he eat an apple – but it was at a time when the President had retired from the chair. Burr replied he did not mean him – he did not see him."Mr. Wright said he eat cake – he had a just right to do so – he was faint – but he disturbed nobody – He never would submit to be schooled & catechised in this manner."At this instance a motion was made by Bradley, who also had eaten cake, for an adjournment. Burr told Wright he was not in order – sit down. The Senate adjourned – & I left Burr and Wright scolding."Really, Master Burr, you need a ferule, or birch to enforce your lectures on polite behavior!" (Ib. Feb. 12, 1805; also ib. Jan. 2, 1805.) Burr was sharply criticized by the Washington Federalist, January 8, for his rude conduct at the beginning of the trial.]