Empire of Liberty: A History of the Early Republic, 1789-1815 (72 page)

Although the Federalists had lost the election in the late fall of 1800, the new Republican administration did not take office until March 1801, and the new Congress would not be seated until December 1801 (not changed until the Twentieth Amendment adopted in 1933 eliminated the December to March lame-duck session of Congress). In February 1801, less than three weeks before its expiration, the lame-duck Federalist-controlled Congress passed a new judiciary act, which was designed to further consolidate national judicial authority. The act eliminated circuit court duty for the justices of the Supreme Court by creating six new circuit courts with sixteen new judges. It broadened the original jurisdiction of the circuit courts, especially in cases involving land titles, and provided for the easier removal of litigation from state to federal courts. It also recognized that the common law of crimes ran in the federal courts. On the assumption that the work of the Supreme Court would be lessened, the Federalist Congress reduced the Court’s membership from six to five justices with the next vacancy. This meant that Jefferson would be prevented from naming a Supreme Court justice until two vacancies occurred.
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To add insult to injury, John Adams, before surrendering the presidency to Jefferson, appointed a number of Federalist judges to this newly enlarged federal judiciary, including incumbent Secretary of State John Marshall as chief justice of the United States. The act also provided for numerous offices of clerks, marshals, attorneys, and justices of the peace to which deserving Federalists were quickly appointed. Because Adams signed the commissions of many of these appointments on the eve of Jefferson’s inauguration, the new Federalist appointees were labeled “midnight judges.”
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Although the Federalists had been considering reform of the judiciary for some while, this last-minute action seemed desperate and designed to perpetuate their cause in spite of the popular will. Some Federalists admitted as much. Since the Federalists with the Republicans’ victory “are about to experience a heavy gale of adverse wind,” Gouverneur
Morris explained,“can they be blamed for casting many anchors to hold their ship through the storm?”
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W
HEN THE
R
EPUBLICANS TOOK OVER
the elective branches of the national government in 1801, it was inevitable that they would turn their attention to the judiciary. Jefferson believed that the Federalists had “retired into the judiciary as a stronghold . . ., and from that battery all the works of republicanism are to be beaten down and erased.”
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To complete the Republican “revolution,” therefore, as Virginia congressman William Branch Giles told Jefferson,“the enemy” had to be routed from “that strong fortress.”
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To the most extreme Republicans like Giles it was outrageous and anti-republican that the federal judges remained free of popular control under some sort of “misapplied idea of ‘independence.’” These zealous Democratic-Republicans would be satisfied with nothing less than “an absolute repeal of the whole Judiciary and terminating the present officers and creating a new system.”
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But Jefferson was more cautious. Realizing that there were many Republicans who valued an independent judiciary and even some who liked the features of the new Federalist Judiciary Act of 1801, he moved slowly at first. He knew that removing the Federalist judges would pose problems. Since their lifetime appointments were in “the nature of freeholds,” it was “difficult,” he said,“to undo what is done.” But at least he could appoint Republicans as other important officers of the courts who served at the pleasure of the president—the U.S. district attorneys who prosecuted the government cases and the marshals who selected the juries and executed the courts’ sentences. These officers would become “the only shield” protecting the people from the Federalist judges.
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Despite his sense of the difficulties involved, however, Jefferson had no doubt that the Federalist Judiciary Act of 1801 was a “parasitical plant engrafted at the last session on the judiciary body,” a plant that had to be lopped off.
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After a long and bitter debate in the Congress, the Republicans in 1802 repealed the Federalist law, thus at a stroke destroying the newly created circuit courts and for the first and only time in United
States history revoking the tenure of federal judges as well. Of course, the Republicans said that they were not legislatively removing the judges, which would be a violation of their tenure during good behavior and thus unconstitutional, but they were simply abolishing the courts. Federalist Justice Samuel Chase was not amused.“The distinction of taking the Office from the Judge, and not the Judge from the Office,” was, said Chase,“puerile and nonsensical.”
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The Republicans then went on to amend the judicial system. Instead of three circuit courts there were now to be six, within each of which a justice of the Supreme Court was to serve on circuit twice a year with the various district judges. Instead of meeting two times a year for two weeks, the Supreme Court would meet only once a year for a term of four weeks. Since the Supreme Court had last met in December 1801, it could not legally reconvene until February 1803—a fourteen-month suspension that some Federalists believed might set a precedent for an even longer suspension, even virtual abolition, of the Court.
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But Jefferson did not want to destroy the Court, only republicanize it. The repeal and the new Judiciary Act of 1802, the president declared, were designed to “restore our judiciary to what it was while justice& not Federalism was its object.”
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Many were upset by these changes, which were designed to meet the most serious objections to the 1789 system. Even some moderate Republicans regretted the repeal of the 1801 Judiciary Act and the abolition of the new tier of federal circuit courts. Those involved in commerce especially had come to appreciate the integrity and efficiency of the federal courts in contrast to the state courts, where legally uneducated judges without secure tenure were not to be trusted to make even-handed judgments.
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Federalists saw the repeal as a threat to the Union itself. In May 1803 in a charge to a federal grand jury in Baltimore, Justice Samuel Chase assailed the Republicans for shaking the independence of the national judiciary to its foundations and threatening the security of all liberty and property. Many Federalists called for the Supreme Court to declare Congress’s repeal of the Judiciary Act of 1801 null and void because it had rescinded the tenure of the new circuit judges and deprived them of their
salaries in violation of Article III, Section 1 of the Constitution. Others wanted the judges to ignore the act and go on strike. Still others were more pessimistic and predicted that armed resistance would be the only answer to the Republican assault on the judiciary.

For their part many of the Republicans were not satisfied with the mere repeal of the Judiciary Act of 1801 and the elimination of the new courts. Some, including President Jefferson, wanted the Constitution amended so that the president could remove any judge following a joint address of the majority of the Congress. But when this seemed too complicated, the Republicans fixed on impeachment for “high crimes and misdemeanors” as the best available constitutional device for getting rid of obnoxious Federalist judges. Although Jefferson complained that impeachment was “a
bungling way
” of dealing with the problem, he was reluctantly willing to give it a try.
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In 1804 the Republicans in the House of Representatives first impeached and the Senate convicted John Pickering, an alcoholic and probably insane judge of the federal district court of New Hampshire. Although Pickering had been violently partisan, he had committed no offense clearly recognized by the Constitution. As Senator William Plumer of New Hampshire pointed out, the Republicans were considering the “process of impeachment . . . in effect as a
mode of removal
, and not as a charge and conviction of high crimes and misdemeanors.” Congressman John Randolph of Virginia, the Republican leader in the House, was reported to have said that the provision in the Constitution that judges shall hold their offices during good behavior was intended to guard them against the executive alone. It did not apply to the Congress, which should be able to remove them by majority vote.
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On the very day in March 1804 that the Senate found Pickering guilty, the House passed a resolution for the impeachment of Justice Samuel Chase, the most overbearing Federalist on the Supreme Court. Although Jefferson had urged privately that some action be taken against Justice Chase for his grand jury charge in Baltimore in 1803, it was Randolph who assumed full control of the impeachment of Chase.

Early in the new Republican-dominated Congress, Randolph emerged as chairman of the Ways and Means Committee and majority leader. Although he had his successes, a more unlikely leader can hardly be imagined. To be sure, he had some important credentials: he was a member of the most distinguished family in Virginia, a cousin of Thomas Jefferson, a close friend of the Speaker of the House, North Carolina congressman Nathaniel Macon, and a religiously devout Republican. But he was
arrogant and belligerent, and not temperamentally suited for the compromising and deal-making required of a majority leader. He appeared in the House booted and spurred with a whip in hand, imitating what he assumed was the behavior of members of the British Parliament. He was pale, thin, and beardless with burning hazel eyes and a high piercing voice that he used with great effectiveness. He was a fascinating orator—an extemporaneous speaker, jumpy and excitable as a young filly, and quick to put men down with wit and sarcasm. His opponents in the House fumed and eventually wilted when he pointed his long bony finger at them and verbally abused them. Randolph saw corruption everywhere and was devoted to the Republican ideals of‘98—”jealousy of the State Governments toward the General Government; a dread of standing armies; a loathing of public debt, taxes, and excises; tenderness for the liberty of the citizen; jealousy, Argus-eyed jealousy of the patronage of the President.” He had little or no conception of the American nation:“when I speak of my country,” he said,“I mean the Commonwealth of Virginia.” When he took over the leadership of the Republicans’ impeachment of Justice Chase in 1804 he had just turned thirty.
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Randolph was no more equipped to handle the impeachment of Chase than he was to be majority leader. He had no legal experience, and his emotional and sarcastic style of speaking was inappropriate for the august trial held in the Senate in February 1805 . The Senate was draped in crimson and green and, according to one senator,“fitted up in a style beyond anything which has ever appeared in this country.” Most of official Washington was present, along with a thousand or more spectators.
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There were eight articles of impeachment accusing Chase not only of criminal behavior but also of mistakes in procedure during one of his trials. The implications were ominous: if Chase were to be convicted for these mistakes, then in the future any judge could be easily removed by impeachment. Apparently, Randolph and some other Republicans hoped to follow up Chase’s conviction with an attack on other justices of the Supreme Court. Many thought Chief Justice Marshall would be next. Marshall was certainly unnerved by the Chase impeachment. He wrote Chase on the eve of the trial expressing his apprehensions over the “modern doctrine . . . that a Judge giving a legal opinion contrary to the legislature is liable to impeachment.” A much better and more humane way of handling these issues, he told Chase, would be for the legislature simply to reverse “those legal opinions deemed unsound by
the legislature.” Thus “impeachment should yield to the appellate jurisdiction in the legislature.”
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As it turned out, Randolph mishandled the trial and lost the support of some of his fellow Republicans. Although Randolph and the House managers did get a simple majority of the Senate to convict Chase on three charges, they could not muster the necessary two-thirds on any of them. (There were twenty-five Republicans and nine Federalists in the Senate.) Not a single senator voted for the article accusing Chase of procedural mistakes in one of his trials. As much as they hated Chase, many Republican senators were reluctant to convict him for acts that were not prohibited by any express and positive laws—the very point of the Republicans’ objection to the use of the common law of crimes. They also realized that Chase’s political behavior on the bench, while excessive at times, was not all that unusual and was not criminal. After all, many Republican state judges were likewise using their courts for partisan purposes. The line between law and politics was still thought hazy enough for many to be unsure of which was which.

Still, the Chase trial helped to clear the air. Chase himself changed his behavior; from that moment until his death in 1811 he ceased engaging in political controversy. Senator John Quincy Adams thought that the failure to convict Chase established that only actual crimes were impeachable offenses.
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Chase’s acquittal effectively destroyed Randolph’s reputation among his fellow Republicans and drove him to the extremist edges of the party. Although the Republicans’ failure to convict Chase ended for the time being their assault on the national judiciary, they did not abandon their desire to make the judiciary more responsive to the nation.“Impeachment was a farce which will not be tried again,” Jefferson said in 1807 . What was needed, he said, was “an amendment to the Constitution which, keeping the judges independent of the Executive, will not leave them so, of the nation.” Republicans from some of the states proposed several amendments that were variations on the English pattern—that simple address of the Congress be sufficient for removal of judges.
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But
these various proposals went nowhere. By the end of Jefferson’s administration the Supreme Court was gaining in authority under Chief Justice John Marshall’s careful leadership, especially since, as Gouverneur Morris reminded Marshall,“your Office being independent of popular whim, the Shafts of Malice cannot easily prevail.”
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