The articles of impeachment charged Chase with eight counts of acting “highly arbitrary, Oppressive, and unjust” and with “intent to oppress and procure the conviction of James T. Callender in his sedition trial” and making “an intemperate and inflammatory political harangue” before a grand jury among other procedural irregularities in multiple cases. There was no precedent, but none of these allegations sounded like the “[h]igh crimes and misdemeanors” that the Constitution required to remove a sitting justice.8
Though Chase’s political diatribes probably offended Marshall, the chief justice respected Justice Chase’s integrity and his service during the Revolutionary War. Marshall feared that the impeachment threatened the judiciary and the Constitution, and wrote to his brother James that the articles of impeachment “are sufficient to alarm the friends of a pure & of course an independent judiciary, if among those who rule our land there be any of that description.”9
Chase’s trial opened at 9:45 a.m. on Monday, February 4, 1805, in the Senate chamber. The usually grimy capital glistened under a thick blanket of snow that had fallen the week prior. Icicles hung precariously over the entrance to the Capitol. The trial drew a large and lively audience despite the freezing temperature and a steady northern wind that made the ride to the Capitol seem endless. As the president of the Senate, Aaron Burr, whose fondness for pomp and ceremony belied his republicanism, insisted that the chamber be transformed into a grand courtroom appropriate for the occasion. Burr sat center stage with benches covered in crimson on either side for the thirty-four members of the Senate. In front of him on one side was a box for the prosecuting House managers led by another of Marshall’s distant cousins, the fiery John Randolph, and on the opposite side was a box for Justice Chase and his legal team led by Robert Goodloe Harper, an equally fierce Federalist senator from Chase’s home state of Maryland. The rest of the Senate’s ground floor accommodated members of the House, foreign diplomats, members of the executive branch, and military officers. The visitor’s gallery was packed with members of the public. A special gallery was built below that for the curious wives of congressmen and senators to separate them from the unwashed public. Burr, whose promiscuous eye was legendary, would have appreciated the view of so many finely dressed women.10
Jefferson and the Republicans tried their utmost to influence the trial by persuading Burr that it was in his own interest to rule against Chase.11 After ignoring the vice president for two years, suddenly the president and his cabinet warmly welcomed Burr into their inner circle despite his recent indictment for the murder of Alexander Hamilton. Jefferson invited Burr to the President’s House with increasing frequency. Treasury Secretary Gallatin spent hours cultivating Burr in his home. Jefferson even considered supporting Burr for New York governor.12 In a flurry of appointments, Jefferson named Burr’s stepson a superior court judge in New Orleans, Burr’s brother-in-law the secretary of the Louisiana Territory, and Burr’s friend General James Wilkinson governor of the Louisiana Territory. Republican senators called on the New Jersey governor to dismiss the murder charges against Burr, and rumors circulated that Jefferson offered to pardon Burr if he would ensure a guilty verdict against Chase.13 Despite all these inducements, Burr would be scrupulous in his conduct of the trial, which enraged Jefferson.14
Chase was represented by one of Maryland’s most prominent lawyers, Luther Martin. He was a somber-faced man who had suffered the loss of several children and wives. Life’s cruelties had taught him to stand alone against the current of popular opinion. As a Maryland delegate to the federal Constitutional Convention, Martin walked out in opposition to a strong central government. One of Martin’s fellow delegates said that Martin “never speaks without tiring the patience of all who hear him.”15 Martin became an outspoken anti-federalist but later joined the Federalists to oppose Jefferson, whom he distrusted more than a strong central government. Martin was well-respected for his legal acumen, but he was not well-liked. Jefferson once called Martin an “unprincipled and impudent federal bull-dog.”16
Martin’s defense strategy was to show that the articles of impeachment had failed to identify a single crime and had misquoted and mischaracterized Chase throughout. One of the key witnesses for the defense was William Marshall, one of the chief justice’s younger brothers, who was the clerk of the court during the Callender trial. William Marshall corroborated Chase’s own testimony that the articles of impeachment misrepresented the facts of the case.
Congressman John Randolph, another distant Marshall cousin, assumed the role of the chief prosecutor against Justice Chase. Randolph looked like a tall, skinny child with a piercing, womanly voice.17 What Randolph lacked in legal knowledge and skill he tried to compensate for in bombast and hyperbole. His intemperate performance during the trial only confirmed in the minds of most observers that the prosecution had no case. But even in the absence of any evidence of criminal conduct, the Republicans had a majority to convict—unless at least three Republican senators switched sides.
Over the course of Chase’s trial, the prosecution’s case evaporated. Randolph surprised everyone by calling the chief justice as a witness. Marshall was called to testify because as a member of the Richmond bar he had observed Callender’s sedition trial. The articles of impeachment charged Chase with demonstrating “manifest injustice, partiality, and intemperance.” Marshall appeared uncharacteristically ill at ease being questioned by Randolph, who had declared his intention to rid the federal judiciary of men like his distant cousin.
“Did you observe anything unusual in the conduct on the part of the counsel towards the court, or in the court towards the counsel,” Randolph queried.
“I would probably be better able to answer the question if it were made more determinate,” Marshall cautiously replied.18
Randolph questioned whether Justice Chase was especially belligerent toward the defendant’s counsel during Callender’s trial. Marshall testified that Callender’s counsel kept arguing that the sedition law was unconstitutional and that Justice Chase kept cutting him off by insisting that the constitutionality of the law was not a proper subject for a jury to decide.
“Was there any misunderstanding between the counsel and the court?” Randolph asked, fishing for answers.
Marshall answered squarely: “On the part of the judge it seemed to be a disgust with regard to the mode adopted by [Callender’s] counsel.” For a judge to object to the conduct of a defense counsel hardly sounded like an impeachable offense.19
Randolph pushed Marshall to admit that there were other procedural irregularities, but Marshall refused to be pinned down, and Randolph was losing patience. “I am aware of the delicacy of the question I am about to put,” he acknowledged, but he wondered, “Did it appear to you, sir, that during the course of the trial, the conduct of judge Chase was mild and conciliatory?” The visitors’ gallery broke into loud laughter. No one would ever describe gruff Old Baconface as “mild” or “conciliatory.”
Marshall paused for a moment to consider his reply. “Perhaps the question you propound to me would be more correct if I were asked what his conduct was during the course of the trial.”20
At this point Vice President Burr interrupted the prosecution to query Marshall. “Do you recollect whether the conduct of the judge on this trial was tyrannical, overbearing, and oppressive?” he asked. Burr had tossed the chief justice a softball.
“I will state the facts,” Marshall began. “The counsel for [Callender] persisted in arguing the question of the constitutionality of the sedition law, in which they were constantly repressed by judge Chase. Judge Chase checked [defendant’s counsel] whenever he came to that point, and after having resisted repeated checks, [counsel] appeared to be determined to abandon the cause.” Marshall raised his voice for dramatic effect. “If this is not considered tyrannical, oppressive and overbearing, I know nothing else that was so.”21 It was a wry remark theatrically underplayed. The
point was made.
Randolph tried one last effort to wrestle the chief justice into admitting that Chase had acted inappropriately: “Did you hear judge Chase apply any unusual epithets; such as young men, or young gentlemen, to the counsel?” Marshall admitted that Chase may have used such terms to describe Callender’s attorney, William Wirt, who was then thirty.22 That was all that Marshall would concede. The assembled senators could not have been impressed with the argument that calling someone a young man was grounds for impeachment.
The trial ended on March 1 when the senators acquitted Justice Chase on each of the eight counts by a wide margin. The vote was a vote of no confidence in Randolph by his fellow senators.23 Publicly, Jefferson tried to distance himself from the whole mess. He took no responsibility and, in the words of Henry Adams, “held himself studiously aloof.”24 Privately, Jefferson abandoned any hope of cleaning out the judiciary. He later groused in letters that impeachment was “a mere scarecrow” and a “farce not to be tried again.”25 The Republicans had tried and failed to use impeachment as a partisan weapon. Jefferson blamed Burr for failing to impeach Justice Chase. Henry Adams later wrote that “Chase’s impeachment was a blow from which the Republican Party never wholly recovered.”26 But Marshall and an independent judiciary had been spared.
CHAPTER TWENTY-ONE
TREASON
In March 1805, Marshall swore in Jefferson as president for the second time. In the election of 1804, Jefferson had easily trounced Marshall’s friend and co-commissioner to Paris, Charles Cotesworth Pinckney, by 162 electoral votes to 14. The Federalist Party was crushed. A reporter for the Aurora wryly observed that at Jefferson’s first inauguration the chief justice had turned his back to the president-elect. Whether Marshall had acted out of disrespect or bad manners, this time the chief justice faced Jefferson directly.1 After years of bitter enmity between the two cousins, it’s unclear whether the reason Marshall did not turn his back was out of respect or distrust.
After the Chase impeachment, Republicans were unlikely to launch another assault on the Supreme Court. Congress was preoccupied with a host of more pressing issues arising out of the acquisition of the Louisiana Territory. Jefferson’s second term might have been a welcome respite for Marshall had it not been for Jefferson’s plan to rid himself and the nation of Aaron Burr.
Jefferson bore a grudge against Burr for challenging him in the 1800 presidential election and for the acquittal of Justice Chase. With Jefferson’s blessing, the national Republican Party refused to renominate Burr as vice president in 1804 and did not support Burr when he ran for New York governor. Burr’s opponents crudely attacked his character and his well-earned reputation for promiscuity. He was falsely accused of running a bordello out of his home, cross-dressing as a woman, and enjoying sex with young men. Burr was defeated by the Federalist machine candidate, Morgan Lewis, by nearly nine thousand votes.2
Burr decided he would head west and make a fresh start. He had a grand albeit vague ambition either to develop western land or liberate Mexico and either annex it to the United States or perhaps create his own independent state. Burr repeatedly met in secret with the commander of the army and governor of the Louisiana Territory, General James Wilkinson.3 Burr proposed to Wilkinson that he provoke a war with Spain as a pretext for Burr to invade Mexico—or possibly lead a secession of the western territory from the United States. Wilkinson indicated his support for whatever Burr was planning.4 Recognizing the need for secrecy, Wilkinson invented a cipher to encrypt their secret communications.5 Wilkinson also gave Burr a letter of introduction to the governor of the Indiana Territory. Burr toured the Louisiana Territory, trying to recruit young men for a private army with the promise of land in exchange for liberating Mexico from Spain. At the time, many westerners despised Spain and wanted access to Mexican land. Kentucky Senator John Adair and the governor of Tennessee, General Andrew Jackson, were among those who expressed support for Burr’s campaign.
It was never clear whether Burr actually intended to liberate Mexico in particular or Latin America in general, whether he was acting to enlarge the United States, or whether he just wanted to tear off a piece of the Louisiana Territory for his own empire. Whatever Burr was intending, his activities were inconsistent with any single plot. In Ohio he ordered the construction of fifteen boats to carry up to seven hundred men into battle. He sought support for his expedition from the ambassadors of Britain and its adversary Spain. At the same time, Burr also asked Jefferson if he would appoint him ambassador to Britain. This suggests that Burr was not sure whether he planned to make war against Spain or the United States.
Burr’s activities were widely known at the time. As early as 1805, U.S. newspapers published reports that Burr was planning to invade Mexico or start a secessionist movement in the west. During this time, Burr met with Jefferson several times seeking a diplomatic appointment. Jefferson had plenty of opportunity to ask Burr what he was up to, but apparently Jefferson found these stories too incredible to believe and said nothing to Burr. Jefferson had reason to doubt the accuracy of these allegations, which were spread largely by western Federalists with the intention of making Jefferson look ineffectual. (By coincidence, two of Burr’s chief accusers were John Marshall’s cousin Humphrey Marshall and his brother-in-law Joseph Hamilton Daveiss.) Nevertheless, in October 1806, Jefferson ordered Wilkinson to report on Burr’s activities.6
If Jefferson genuinely believed that Burr was on the verge of leading a serious rebellion, he would not have relied on General Wilkinson, whom newspapers had already named as one of Burr’s co-conspirators.7 Once alerted by Jefferson, Wilkinson recognized the danger to himself.8 The general decided it was time to betray Burr and transform an act of treachery into heroism.
That same month, Wilkinson received a letter in cipher from former New Jersey Senator Jonathan Dayton, a Burr acolyte.9 The letter was hand delivered to General Wilkinson by Burr’s friend Samuel Swartwout, and it described Burr’s half-baked plot to invade Mexico. The letter falsely boasted that Burr’s army was moving ahead. But the general knew that Burr did not pose a serious threat to the status quo. Wilkinson had just concluded an agreement with Spain that settled the outstanding border dispute, which made war with Spain highly unlikely. Burr’s plot was already falling apart.
Dayton had also sent a copy of the cipher letter to General Wilkinson through another messenger, Dr. Erick Bollman. To prevent Swartwout and Bollman from exposing his own role in the plot, Wilkinson arrested both men on charges of treason.10 He wrote to President Jefferson alleging that Burr was planning an imminent attack on New Orleans with an army of thousands. Wilkinson must have known that this was not true. He enclosed a decoded version of the cipher letter from Senator Dayton, which he altered to make it appear more incriminating. Wilkinson apparently destroyed the original cipher letters so that no one could contradict his version of what Burr intended.11 Senator Dayton was later arrested but never tried.
President Jefferson knew that General Wilkinson was notoriously unreliable and was a coconspirator.12 Why else would Burr—or Dayton—have described their plot to the army’s commanding general, and why would they be sending the letter in a secret code that only Wilkinson knew? Jefferson also had reason to believe that General Wilkinson was a spy working for Spain—which was true.13 Since 1797, the Spanish government had kept Wilkinson, known by the inauspicious code name Agent 13, on a two-thousand-dollar annual retainer (roughly forty thousand dollars today).14
But despite the evidence that Wilkinson was a traitor, Jefferson valued the general’s personal loyalty to him. When, for example, Jefferson told the general that he feared that a large standing army could threaten his presidency, Wilkinson ordered his soldiers to swear allegiance to the president rather than to the United States.15 Though Jefferson received repeated warnings that Wilkinson was a spy, he promoted him as commander of the army, governor of the Louisiana Territory, and commissioner of Indian affairs. Aft
er Burr’s trial, Wilkinson faced multiple courts-martial and a congressional investigation, but Jefferson steadfastly defended him.16
Jefferson also had good reason to know that Burr did not write the cipher letter. Jefferson knew Burr’s florid prose style. The letter did not sound like him, and it referred to Burr in the third person.17 Rather than questioning Wilkinson’s loyalty or investigating further, Jefferson addressed Congress in January of 1807 and declared Burr “guilty of treason” and ordered his arrest. The penalty for treason was hanging.
Wilkinson seized the opportunity to declare martial law in New Orleans, appropriating for himself unlimited military power. He intimidated the local population and tossed his critics into jail. He arrested all of Burr’s associates and their lawyers. Jefferson defended Wilkinson’s brutal measures as necessary to preserve public order.18 He reassured Wilkinson that “[o]n great occasions every good officer must be ready to risk himself in going beyond the strict line of law, when the public preservation requires it.”19
In December 1807, thirty young recruits assembled on Blennerhassett Island in the Ohio River near Parkersburg in what is now West Virginia. Harman Blennerhassett, a wealthy eccentric who was funding Burr’s expedition, owned part of the island. But Burr was absent. He was already floating down the Ohio River toward New Orleans to meet Wilkinson on a barge extravagantly equipped for his comfort. On December 10, Blennerhassett heard rumors that the West Virginia militia was about to attack his island. Before the militia arrived, Blennerhassett and the young men fled by boat, and Burr’s “army” evaporated.20 The events on Blennerhassett Island were the critical linchpin in the federal government’s charges against Burr.
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