To Robert G. Harper1
Albany February 19th 1804
I view the attempts which are making completely in the light you do; and have very little doubt that they are in prosecution of a deliberate plan to prostrate the independence of the Judicial Department, and substitute to the present judges creatures of the reigning party, who will be the supple instruments of oppression and usurpation, under the forms of the Constitution. This being my apprehension of the matter, I shall not be backward to give the scheme all practicable resistance; and certainly, if an impeachment shall be instituted and other prior and indispensable duties will permit, I shall chearfully aid in the defence of the accused, as a very high obligation. It is not however in my power to promise absolutely attendance; because the possibility of it must depend on the time of Trial. There is hardly a sitting of our Circuit or Supreme Court, at which there are not causes depending, which involve the whole fortunes of Individuals who place a material reliance on my efforts. Propriety or good faith would not permit me to be absent during these periods; and though the public cause might call me elsewhere I should be convin⟨ced⟩ that it would be in hands (exclusive of mine) in which it would have every possible advantage.
But nothwithstanding the opinion I have expressed, it will not surprise me if the execution of the plan is suspended. It is certain that in this state leading me⟨n⟩ of the popular party either disapprove the attempt or are fearful of its influence upon the affairs of the party. Hints will probably go to the prompters at Washington which may induce, if not a relinquishment, a postponement.4
The republican party (soi disant) are greatly distracted in this state.5 The violence of their measures added to the disappointments of partisans who have been candidates for office, has produced a mass of discontent which threatens their power. Col Burr intends to profit by it, if he can, and has no bad chance of being lifted to the chair of Government by the united efforts of personal adherents among the democrats, malcontents of the same party and fœderalists too angry to reason.
One consequence of the distraction of the party is the declining of Governor Clinton6 to be candidate at the next election. A very respectable man as to private character, Chancellor Lansing, is the substitute.7 He had secretly many competitors and is far from being a general favourite of the party. From this moment, it is destined to be split into fragments, unless hereafter reunited under the more skilful adroit and able lead of Col Burr.
You will conclude from this that I do not look forward to his success with pleasure. The conclusion will be true. It is an axiom with me that he will be the most dangerous chief that Jacobinism can have; and, in relation to the present question, a full persuasion, that he will reunite under him the popular party and give it new force for personal purposes—that a dismemberment of the Union is likely to be one of the first fruits of his elevation, and the overthrow of good principles in our only sound quarter, the North, a result not very remote.
I had rather see Lansing Governor & the party broken to pieces. This will be no bad state of things for those who really love their country & understand its true interest.
Yrs. with sincere regard
ALS, Mrs. Otto Madlener, Hubbard Woods, Illinois.
1. Harper, who had been a Federalist member of the House of Representatives from South Carolina from 1795 to 1801, practiced law in Baltimore, Maryland. In 1801 he married Catherine Carroll, the daughter of Charles Carroll of Carrollton.
2. Letter not found.
3. This is a reference to the impeachments of Samuel Chase, an associate justice of the Supreme Court since January, 1796, and John Pickering, United States judge for the District of New Hampshire since January, 1795.
On March 12, 1804, the House of Representatives impeached Chase for his conduct during the trials of John Fries and James T. Callender and for an intemperate and allegedly partisan charge to a Baltimore grand jury on May 2, 1803. On March 1, 1805, the Senate acquitted Chase. For the articles of impeachment and proceedings of Chase’s trial, at which Harper served as one of his counsel, see Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1852). description ends , XIV, 81–676. For Fries’s second trial in 1800, see William Lewis to H, October 11, 1800. For Callender’s trial, see Philip Schuyler to H, August 19, 1802, note 5.
Pickering had suffered a mental breakdown and used offensive language, while intoxicated, during his handling of the case of the ship Eliza. In accordance with the provisions of Article 25 of “An Act to provide for the more convenient organization of the Courts of the United States” (2 Stat. description begins The Public Statutes at Large of the United States of America, II (Boston, 1850). description ends 97 [February 13, 1801]), a Circuit Court judge assumed Pickering’s District Court duties while Pickering was incapacitated. When the Judiciary Act of 1801 was repealed (“An Act to repeal certain acts respecting the organization of the Courts of the United States; and for other purposes” [2 Stat. description begins The Public Statutes at Large of the United States of America, II (Boston, 1850). description ends 132 (March 8, 1802)]), Pickering refused to resign, and the only way to remove him from office was by impeachment. On March 2, 1803, the House of Representatives impeached Pickering (Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1852). description ends , XII, 641–42), and on March 12, 1804, the Senate voted to remove him from office (Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1852). description ends , XIII, 367). For the proceedings against Pickering, at which Harper appeared for the defense, but was not formally entered as counsel, see Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1852). description ends , XIII, 318–68.
4. On May 13, 1803, Thomas Jefferson wrote to Joseph H. Nicholson, a Republican Representative from Maryland: “you must have heard of the extraordinary charge of Chace to the grand jury at Baltimore. ought this seditious & official attack on the principles of our constitution, and on the proceedings of a State, to go unpunished? and to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration. for myself, it is better that I should not interfere” (ALS, letterpress copy, Thomas Jefferson Papers, Library of Congress). Nicholson consulted Speaker of the House Nathaniel Macon, a Republican from North Carolina, who discouraged Nicholson by questioning the validity of impeachment proceedings in a case of a grand jury charge (A. B. Lacy, “Jefferson and Congress, 1801–1809” [unpublished Ph.D. dissertation, University of Virginia, 1963]). On January 5, 1804, John Randolph, a member of the House of Representatives from Virginia, introduced the resolution in the House calling for a committee of inquiry concerning Chase’s conduct (Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1852). description ends , XIV, 81–82).
5. For the split in the Republican party in New York, see “Speech at a Meeting of Federalists in Albany,” February 10, 1804, note 3.
6. George Clinton had been governor of New York from 1777 to 1795 and from 1801 to 1804, when he declined renomination ostensibly on the grounds of age and ill health (Clinton to Jefferson, January 20, 1804 [ALS, Thomas Jefferson Papers, Library of Congress]). At a caucus of Republican congressmen on February 25, 1804, Jefferson was unanimously nominated for President and Clinton was nominated by the majority for Vice President (National Intelligencer and Washington Advertiser, February 29, 1804).
7. For the nomination of John Lansing, Jr., for governor of New York, see “Speech at a Meeting of Federalists in Albany,” February 10, 1804, note 1.
8. On February 18, 1804, Lansing wrote to Ebenezer Purdy, a state senator who was chairman of the caucus of Republican legislators that had nominated Lansing, reversing his earlier decision and declining the nomination (New-York Spectator, February 23, 29, 1804).
9. Morgan Lewis, a lawyer, had been deputy quartermaster general of the New York department during the American Revolution. He was a member of the New York Assembly from 1789 to 1790 and again in 1792. From 1791 to 1792 he was attorney general of New York. He became third justice of the state Supreme Court in 1792, and in 1801 he became chief justice. Lewis was married to Gertrude Livingston, the sister of Robert R. Livingston, the former Chancellor. For Lewis’s nomination for governor, see the New-York Spectator, February 23, 1804.