counsel, at least.. as to the part which Mr. Hay took in the trial." Randolph asked Marshall whether it was the practice for courts to hear counsel argue against the correctness of rulings; and Marshall replied that "if counsel have not been already heard, it is usual to hear them in order that they may change or confirm the opinion of the court, when there is any doubt entertained." But there was "no positive rule on the subject and the course pursued by the court will depend upon circumstances: Where the judge believes that the point is perfectly clear and settled he will scarcely permit the question to be agitated. However, it is considered as decorous on the part of the judge to listen while the counsel abstain from urging unimportant arguments." Marshall was questioned closely as to points of practice. His answers were not favorable to his Associate Justice. Did it appear to him that "the conduct of Judge Chase was mild and conciliatory" during the trial of Callender? Marshall replied that he ought to be asked what Chase's conduct was and not what he thought of it. Senator William Cocke of Tennessee said the question was improper, and Randolph offered to withdraw it. "No!" exclaimed Chase's counsel, "we are willing to abide in this trial by the opinion of the Chief Justice." Marshall declared that, except in the Callender trial, he never heard a court refuse to admit the testimony of a witness because it went only to a part and not to the whole of a charge. Burr asked Marshall: "Do you recollect whether the conduct of the judge at this trial was tyrannical, overbearing and oppressive?" "I will state the facts," cautiously answered the Chief Justice. "Callender's counsel persisted in arguing the question of the constitutionality of the Sedition Law, in which they were constantly repressed by Judge Chase. Judge Chase checked Mr. Hay whenever he came to that point, and after having resisted repeated checks, Mr. Hay appeared to be determined to abandon the cause, when he was desired by the judge to proceed with his argument and informed that he should not be interrupted thereafter. "If," continued Marshall, "this is not considered tyrannical, oppressive and overbearing, I know nothing else that was so." It was usual for courts to hear counsel upon the validity of rulings "not solemnly pronounced," and "by no means usual in Virginia to try a man for an offense at the same term at which he is presented"; although, said Marshall, "my practice, while I was at the bar was very limited in criminal cases." "Did you ever hear Judge Chase apply any unusual epithets such as 'young men or 'young gentlemen' to counsel?" inquired Randolph. "I have heard it so frequently spoken of since the trial that I cannot possibly tell whether my recollection of the term is derived from expressions used in court, or from the frequent mention since made of them." But, remarked Marshall, having thus adroitly placed the burden on the irresponsible shoulders of gossip, "I am rather inclined to think that I did hear them from the judge." Randolph then drew from Marshall the startling and important fact that William Wirt was "about thirty years of and a widower." 1 age Senator Plumer, with evident reluctance, sets down in his diary a description from which it would appear that Marshall's manner affected the Senate most unfavorably. "John Marshall is the Chief Justice of the Supreme Court of the United States. I was much better pleased with the manner in which his brother testified than with him. "The Chief Justice really discovered too much caution too much fear too much cunning He ought to have been more bold - frank & explicit than he was. "There was in his manner an evident disposition to accommodate the Managers. That dignified frankness which his high office required did not appear. A cunning man ought never to discover the arts of the trimmer in his testimony. 2 Plainly Marshall was still fearful of the outcome of the Republican impeachment plans, not only as to Chase, but as to the entire Federalist membership of the Supreme Court. His understanding of the Republican purpose, his letter to Chase, and his manner on the stand at the trial leave no doubt as to his state of mind. A Republican Supreme Court, with Spencer Roane as Chief Justice, loomed forbiddingly before him. Chase was suffering such agony from the gout 1 Annals, 8th Cong. 2d Sess. 262–67; Chase Trial, 71. that, when the testimony was all in, he asked to be released from further attendance.1 Six days before the evidence was closed, the election returns were read and counted, and Aaron Burr "declared Thomas Jefferson and George Clinton to be duly elected to the respective offices of President and Vice-President of the United States." 2 For the first time in our history this was done publicly; on former occasions the galleries were cleared and the doors closed.3 Throughout the trial Randolph and Giles were in frequent conference - judge and prosecutor working together for the success of the party plan.1 On February 20 the arguments began. Peter Early of Georgia spoke first. His remarks were "chiefly declamatory." He said that the conduct of Chase exhibited that species of oppression which puts accused citizens "at the mercy of arbitrary and overbearing judges." For an hour and a half he reviewed the charges, but he spoke so badly that "most of the members of the other House left the chamber & a large portion of the spectators the gallery."" 1 Feb. 19, 1805, Memoirs, J. Q. A.: Adams, 1, 354. Chase did not leave Washington, and was in court when some of the arguments were made. (See Chase to Hopkinson, March 10, 1805; Hopkinson MSS. in possession of Edward P. Hopkinson, Phila.) 2 Feb. 13, 1805, Memoirs, J. Q. A.: Adams, I, 351. 3 Ib. The motion to admit the public was carried by one vote only. (Plumer, Feb. 13, 1805, "Diary," Plumer MSS. Lib. Cong.) 4 Feb. 13, 1805, Memoirs, J. Q. A.: Adams, 1, 353. Feb. 20, 1805, ib. 355. 6 Cutler, II, 183; also Annals, 8th Cong. 2d Sess. 313-29; Chase Trial, 101-07. 'Plumer, Feb. 20, 1805, “Diary," Plumer MSS. Lib. Cong. George Washington Campbell of Tennessee argued "long and tedious[ly]" for the Jeffersonian idea of impeachment which he held to be "a kind of an inquest into the conduct of an officer.. and the effects that his conduct.. may have on society." He analyzed the official deeds of Chase by which "the whole community seemed shocked... Future generations are interested in the event." " He spoke for parts of two days, having to suspend midway in the argument because of exhaustion. Like Early, Campbell emptied the galleries and drove the members of the House, in disgust, from the floor.4 Joseph Hopkinson then opened for the defense. Although but thirty-four years old, his argument was not surpassed," even by that of Martin — in fact, it was far more orderly and logical than that of Maryland's great attorney-general. "We appear," began Hopkinson, "for an ancient and infirm man, whose better days have been worn out in the service of that country which now degrades him." The case was "of infinite importance," truly declared the youthful attorney. "The faithful, the scrutinizing historian, . . without fear or favor" will render the final judgment. The House managers were following the British precedent in the impeachment of Warren Hastings; but that celebrated prosecution had not been instituted, as had that of Chase, on 1 Cutler, II, 183. 2 Annals, 8th Cong. 2d Sess. 329-53; Chase Trial, 107 et seq. Memoirs, J. Q. A.: Adams, 1, 355–56. Plumer, Feb. 21, 1805, "Diary," Plumer MSS. Lib. Cong. Adams: U.S. II, 231. Even Randolph praised him. (Annals, 8th Cong. 2d Sess. 640.) |