Washington 14. March 1805.
My dear Sir.
In my last Letter I observed to you, that the form of putting the final question on the Articles of Impeachment against Judge Chase, was varied from that which had been adopted in the case of Mr: Pickering, and made conformable to the English Precedents—To shew you how essentially this variation of form was connected with a most <
essential> important question as to the nature of Impeachment under our Constitution, I shall here state the difference between them—In Pickering’s case the question was “Is John Pickering, District Judge of New-Hampshire, guilty, as charged in the Article”—And the Answer given was “aye,” or “no.”—In Mr: Chase’s case, the question was “Is Samuel Chase, the Respondent, guilty, or not guilty of a High crime or Misdemeanour, as charged in the Article just read.”—And the Answer was “Guilty” or “Not Guilty.”—Thus in this instance every member of the Court was by the form of the question, called upon to say, not only whether the facts alledged in the Article were proved, but whether they constituted a High crime or misdemeanour—whereas in the former case, that very material point was winked out of sight—The members answered that John Pickering was guilty, as the Article alledged, but whether the facts amounted to a high crime or misdemeanour, they did not undertake to say—One would scarcely conceive it possible that in such a body as the Senate of the United States, the acquittal or conviction of a man should depend upon the form of words used for taking the opinion of the members on his guilt or innocence—But so it was—The same form used at the present time was proposed, and strenuously contended for in the former case, but was then inflexibly rejected—I told you that the precedent was now abandoned almost without a struggle; but it was not with out very strong signs of reluctance; nor do I imagine it would have been given up, but that they who were most earnestly bent upon the Judge’s conviction, had sufficient indications, to convince them that there was no prospect of such result from any form of question they could devise—On the very day the sentence was pronounced, there was indeed a fresh attempt in Senate to prove that the power of Impeachment under our Constitution was unlimited; and the power of Conviction upon Impeachment, limited only by the proportion of numbers required to convict. But the bearing of the argument on the cause then to be determined was formally disavowed, because it was said, at all events the Articles charged against Mr: Chase, were of High Crimes or Misdemeanours—This was not altogether true—For besides the frivolous nature of the charges contained in several of the Articles, it is very remarkable that one of them, differing from all the rest, had omitted even the allegation of evil intent—It does not pretend to charge any thing more than error on a point of Law, and discards all the imputations of partiality, intemperance, oppression, injustice and sollicitude to convict, with which all the other Articles are so profusely laden—This omission cannot be presumed to have been unintentional, and the insertion of that and the next Article, (bottomed upon the very same grounds, but carefully resuming the allegations of oppressive intent) affords the most unequivocal proofs of a determination to establish the principle that Judges are removable by Impeachment, for any mistake on a point of Law—These two Articles must also be remembered were introduced, as an after-thought—were no part of the Articles reported at the former Session of Congress, and were now first brought forward, after all the reflections and meditations of a seven months recess. These Articles 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—They were founded on the pretence, that the federal Courts were bound to follow in each State of the Union the modes of process, usual in that State—Now one of the earliest decisions of the Supreme Court, had been directly contrary to this position, and all the Judges had uniformly proceeded in conformity to that decision—If Mr: Chase was removable by Impeachment for having thus acted at Richmond, he had not an associate upon the Bench but was alike removable, for having done the same thing else-where—The fate of these two Articles, and their construction furnishes a curious specimen of the manner in which public bodies may be brought to act—One of them, the 5th: impeached Judge Chase for issuing a capias against Callender, because it says the Law of Virginia required that a summons, should issue—The very Law of Virginia to which it appeals, expressly authorises the Judge to issue in the cases to which it refers; a summons, or other proper process—The Article of Impeachment, omits these last words, and instead of a discretionary alternative, recites the law as in peremptory terms requiring a summons—And yet, upon this egregious misrecital, of a Statute as egregiously misapplied, did the House of Representatives of the United States, by a majority of seventy votes against forty-five, vote an accusation against one of the Supreme Judges of the Land, upon which, had his judges been no more restrained than his accusers, he must have been disgraced in reputation, and ignominiously expelled from his Office—On this Article the vote of acquittal was unanimous—The strong stimulus of political animosity, aided by all the perverse ingenuity of party spirit, could not devise an apology, upon which a single man should dare to say “guilty”—to this charge, which seventy members of the House of Representatives were not ashamed to sanction, with their names upon the record of accusation.
President Jefferson is reported to have said to a member of the Senate, that Impeachment was but a clumsy engine to get rid of Judges—His warmest friends in both houses of Congress, are I believe by this time tolerably well convinced of the same thing—I do not imagine they will very soon attempt to ply it again—But in its stead, another battery has been opened upon the Judiciary, the operation of which, only futurity can determine—Immediately after Mr: Chase was declared to be acquitted of all the charges brought against him by the House of Representatives, the same member of that House who had originated and principally conducted the Impeachment, offered to their consideration, a proposed amendment to the Constitution, making the Judges necessarily removable, upon a joint address of the two branches of the legislature, by simple majorities—Another of the Managers, the “one next himself in power,” offered also a further Amendment, to make the members of the Senate liable at any time to be recalled, by their respective Legislatures—Both these propositions are made the order of the day of the House of Representatives, for the first day of the next Session—These motions were made just at the pungent moment of disappointment, and were I think somewhat inconsiderately offered at the same time. I should expect that at the next Session the second will be relinquished, but I also believe the other will be pursued with persevering ardour—As there is much to be said in its favour as a proper provision, independant of all application to present circumstances; as it is recommended not only by the example of Great-Britain, but by some of the best among our State Constitutions, and as it must be in every point of view a desirable alteration to the ruling majority, there is the strongest probability, that it will not readily be abandoned—Its success in the Senate however, will be very problematical; at least untill another election shall have intervened—Several of the members of this body, besides those who voted for the full acquittal of Mr: Chase, were much dissatisfied, at the measure which so directly pointed at their body; and their disgust at that, extended some degree of disfavour to the other proposition with which it was coupled—Both of them were felt to be intended to cast reflections upon the Senate itself as well as upon its recent Judgment, and a sense of interest in the honour and dignity of the corps was discernible in the sentiments of many members, who had gone the farthest towards the conviction of the Judge—The Senate is not without enemies to its own Constitution within its walls, and there are more yet of its members destitute of the fortitude to resist encroachments attempted by the leaders of the popular branch of the Legislature—The co-operation of these men may possibly be obtained to seal the doom of the Judicial Department, in the shape of an Amendment to the Constitution, although they have not united to do it by the means of Impeachment.
After the decision in favour of Mr: Chase, and the two propositions in the House of Representatives, which I have noticed, and which all happened on the same day there were only two days remaining to close the Session—but in those two days, two incidents occurr’d, calculated to inspire an expectation that upon the crisis which appears to be hastening upon us, the Senate will ultimately prove true to its own honour, and to the highest interests of our Country—The judgment was given on the first of March—On the second, Mr: Burr, then Vice-President took leave of the Senate, and previous to quitting the chair delivered a valedictory address, of about twenty minutes in length, which appeared to make, and I believe has left a profound impression upon the mind of every person who heard him—In this address, among several other striking observations, he express’d himself nearly in these words—“And permit me to recommend to you, in your future deliberations, inflexibly to maintain, and to cherish those habits of order and regularity, which upon experience are found to be intimately connected with important principles—On a superficial view only, they appear of inconsiderable consequence, but on full investigation, it will be discovered that there is scarce a departure from order but leads to or is indissolubly connected with a departure from morality.—This body is growing in importance—It is here, if any where that our Country must ultimately find the anchor of her safety; here, the stand is to be made, at once against the storms of faction, & the silent arts of corruption; and if the Constitution is to perish, which, may God avert! and which I do not believe; its dying agonies will be witness’d upon this floor.”—The allusion to the circumstances which had just taken place was obvious, and it appeared to me there was not a member present, but felt the force of this solemn appeal to his sense of duty.
On the same day, a difference between the two Houses arose, upon a bill making provision for payment of the witnesses summoned to attend the Senate on the trial of Mr: Chase’s impeachment—This bill had pass’d in the House of Representatives some days before, and made an appropriation of five thousand Dollars, to pay the witnesses summoned on the part of the prosecution, and to defray any other expences, which had been incurr’d on the trial, and which should be certified, by the chairman of the Managers—On the second reading of the Bill in Senate, the day before the sentence pass’d, amendments were moved, to double the amount of the appropriation, to provide for the payment of expences incurr’d on the occasion, by order of the Vice-President, certified by him, and to extend the payment of the witnesses, to all those who had been summoned and attended, on the part of the Respondent, as well as the others—The question on these Amendments was by general consent postponed, untill after the decision upon the trial, it being observed that its aspect would be materially different according as the issue should be for conviction or for acquittal—This event having taken place, the Amendments were unanimously adopted in Senate—but on being sent to the House of Representatives were disagreed to by them—Each House insisted in the usual form—A conference was had without producing any agreement—each house adhered to its own purpose, and the bill was lost—Nor is it an inconsiderable fact, that the last Act of the Senate upon this Bill, that of adhering, was without a dissenting voice—This question will probably be renewed at the next Session of Congress; for by the failure of the Bill no provision is made for paying any of the witnesses, and they certainly have all a just claim to some indemnity for their time and attendance given at the regular Summons of the Senate. The question whether the United States shall pay the witnesses on both sides, in cases of Impeachment, is in many points of view important as a general question—It was not fully discussed in either House on this bill, and reason and precedent may be produced in support of both its sides—There were however in this instance circumstances peculiarly tending to influence the Senate in first adopting and finally adhering to the principle of indiscriminate payment—The acquittal of the person accused was one—But there was another which might have yet greater weight—All the witnesses had been summoned, by a Subpoena, the form of which was reported by a Committee of which Mr: Giles was chairman—This form commanded the attendance of the witness, without any indication, at the suggestion of which party it had issued—None of the witnesses therefore could know, whether they were summoned on behalf of the United States, or of the Respondent; their obedience was in all cases the same, to the order of the Senate, and it seemed obvious that their claim for indemnity from the Government stood on the same foundation—Mr: Giles very explicitly declared himself in favour of the principle, and gave it as his unequivocal opinion that it should in point of Justice and Policy be extended to all cases of Impeachment, whether the sentence should be for acquittal or for conviction.
The fate of this bill was succeeded by an attempt in the House of Representatives, to provide by their single act a substitute for it—A Resolution was offered directing the payment of the witnesses summoned on their part, from the contingent fund of the House; and this Resolution, prescribed the sum which should be allowed to each witness for his travel and attendance—It would inevitably have been carried, but that the number of members then remaining, disposed to rush into such extremes, was not sufficient, of itself to form a Quorum—And the members opposed to the measure, whenever it was called up withdrew from the house—Let it be remembered that this effort to extend the “undefined field of contingencies” was made by those who have been most clamorous for the extremest detail of specific appropriation.
It was in this situation, with the two Houses of Congress, in positions of direct opposition, against each other; with the House of Representatives, aiming with huge, two handed sway, at the same moment a cut at the Supreme Judiciary and a thrust at the Senate—With the same House of Representatives floating between Anarchy and discord, at one moment unable to make a Quorum, and at the next unable to keep it for the purpose of acting; with <
one party> a majority attempting with blushless face a flagrant violation of the Constitution, and a Minority defeating their purpose by repeated secessions in a Mass; with several important bills at the point of falling through, though pass’d by both branches, because the Speaker could not sign them without a Quorum present—in this situation it was that at half past nine in the Evening of Sunday the 3d: of March, < that> the Eighth Congress of the United States terminated its existence—And I have been induced by two motives to give you the detail contained in this & my last Letter—The one, because the transactions which I have related may be the precursors of Events more highly momentous, and as such deserve peculiarly to be noted down, and the other because I was desirous to make you some return for the many excellent letters I have received from you in the course of the Winter, and which my engagements at the time compelled me to leave unanswered—I thought the narrative might afford you some Amusement, and knew it would furnish you a fund for useful reflections, of which I indulge the hope of sharing in the benefit.
The marriage which I mentioned to you in my last as being intended was last Evening solemnized—It is still my intention to leave this place early in the nest week—I dined last Monday with Mr: Cranch, who had the night before suffered a slight attack of the fever and ague—I have not heard from him since—My youngest Child has at length successfully been inoculated with the vaccine infection, and gone through it very happily—His arm is not yet perfectly healed; but the inflammation has already greatly subsided—My wife received two days ago a letter from my Mother, which the bustle that a wedding always excites among ladies has alone prevented her yet answering—I forgot to tell you I visited our New Vice-President, who entertained me with a Dissertation on the superiority of New-England and New-York, over this part of the Country.
MHi: Adams Papers.