Albert Beveridge - The Life of John Marshall, Volume 3 - Conflict and construction, 1800-1815

But, said Marshall, this is "the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of the United States extends… The Constitution did not prohibit Congress" from enacting a bankruptcy law and giving the Nation preference as a creditor. On the contrary, Congress was expressly authorized "to make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the National Government." To say that "no law was authorized which was not indispensably necessary … would produce endless difficulties… Congress must possess the choice of means and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the Constitution."

This was an emphatic denial of Jefferson's famous opinion on the power of Congress to charter a bank, and an outright assertion of the views of Hamilton on that celebrated question. 446The case could have been decided without such an expression from the court, but it presented an opportunity for a judicial statement of liberal construction which might not soon come again, 447and Marshall availed himself of it.

For two years no part of the Republican plans against the Judiciary had miscarried. Close upon the very day when John Breckenridge in the Senate had moved to repeal the National Judiciary Act of 1801, a petition signed by the enraged Republicans of Alleghany County, Pennsylvania, had been sent to the Legislature of that State, demanding the impeachment of Alexander Addison; and almost simultaneously with the passage of the Judiciary Repeal Act of Congress, the Pennsylvania House of Representatives transmitted to the State Senate articles charging the able but arrogant Federalist judge with high crimes and misdemeanors.

Addison's trial speedily followed; and while the evidence against him, viewed through the perspective of history, seems trivial, the Republican Pennsylvania Senate pronounced judgment against him and deposed him from the bench. With notable ability, Addison conducted his own defense. He made a powerful speech which is a classic of conservative philosophy. 448But his argument was unavailing. The Republican theory, that a judge might be deposed from office for any conduct or opinion of which the Legislature disapproved, was ruthlessly carried out. 449

Almost as soon as Congress convened after the overthrow of the obnoxious Pennsylvania Federalist judge, the Republicans in the National House, upon representations from Jefferson, took steps to impeach John Pickering, Judge of the United States Court for the District of New Hampshire. 450This judge had been hopelessly insane for at least three years and, as one result of his mental and nervous malady, had become an incurable drunkard. 451In this condition he had refused to hear witnesses for the Government in the case of the ship Eliza, seized for violation of the revenue laws. He peremptorily ordered the vessel returned to its captain, and finally declined to allow an appeal from his decree. All this had been done with ravings, cursings, and crazed incoherences. 452

That he was wholly incapacitated for office and unable to perform any act requiring intelligence was conceded by all. But the Constitution provided no method of removing an officer who had become insane. 453This defect, however, gave the Republicans an ideal opportunity to put into practice their theory that impeachment was unrestricted and might be applied to any officer whom, for any reason, two thirds of the Senate deemed undesirable. "If the facts of his denying an appeal & of his intoxication, as stated in the impeachment, are proven, that will be sufficient cause for removal without further enquiry," asserted Jefferson when assured that Pickering was insane, and when asked "whether insanity was good cause for impeachment & removal from office." 454

The demented judge did not, of course, appear at his trial. Instead, a petition by his son was presented, alleging the madness of his father, and praying that evidence to that effect be received by the Senate. 455This plea was stoutly resisted, and for two days the question was debated. "The most persevering and determined opposition is made against having evidence and counsel to prove the man insane," records John Quincy Adams, "only from the fear, that if insanity should be proved, he cannot be convicted of high crimes and misdemeanors by acts of decisive madness." 456Finally the determined Republicans proceeded to the trial of the insane judge for high crimes and misdemeanors, evidence of his dethroned reason to be received "in mitigation." 457In immense disgust the House managers withdrew, because "the Senate had determined to hear evidence " that the accused person was insane. Before they returned, they publicly denounced the Senators for their leniency; and thus Republican discipline was restored. 458

Jefferson was impatient. "It will take two years to try this impeachment," he complained to Senator Plumer. "The Constitution ought to be altered," he continued, "so that the President should be authorized to remove a Judge from office, on the address of the two Houses." 459But the exasperated Republicans hastened the proceedings; and the trial did not consume two weeks all told.

If an insane man should be condemned, "it will not hereafter be necessary," declared Senator Samuel Smith of Maryland, "that a man should be guilty of high crimes and misdemeanors," the commission of which was the only Constitutional ground for impeachment. Senator Jonathan Dayton of New Jersey denounced the whole proceeding as "a mere mockery of a trial." 460Senator John Quincy Adams, in the flurry of debate, asserted that he should "speak until [his] mouth was stopped by force." 461Senator Nicholas of Virginia shouted "Order! order! order!" when Samuel White of Delaware was speaking. So furious became the altercation that a duel seemed possible. 462No delay was permitted and, on March 12, 1804, the demented Pickering was, by a strictly partisan vote of 19 to 7, 463adjudged guilty of high crimes and misdemeanors.

An incident happened which was prophetic of a decline in the marvelous party discipline that had kept the Republicans in Senate and House in solid support of the plans of the leaders. Three Republican Senators left the Chamber in order to avoid the balloting. 464They would not adjudge an insane man to be guilty of high crimes and misdemeanors, but they were not yet independent enough to vote against their party. 465This, however, did not alarm the Republican managers. They instantly struck the next blow upon which they had determined more than two years before. Within an hour after John Pickering was convicted the House voted to impeach Samuel Chase.

Marshall's irascible associate on the Supreme Bench had given the Republicans a new and serious cause for hostilities against him. In less than two months after Marshall had delivered the unanimous opinion of the Supreme Court in Marbury vs. Madison, Justice Chase, in charging the grand jury at Baltimore, denounced Republican principles and mercilessly assailed Republican acts and purposes.

This judicial critic of democracy told the grand jury that "the bulk of mankind are governed by their passions, and not by reason… The late alteration of the federal judiciary … and the recent change in our state constitution, by the establishing of universal suffrage, … will … take away all security for property and personal liberty … and our republican constitution will sink into a mobocracy, the worst of all popular governments."

Chase condemned "the modern doctrines by our late reformers, that all men, in a state of society, are entitled to enjoy equal liberty and equal rights, [which] have brought this mighty mischief upon us"; – a mischief which he feared "will rapidly progress, until peace and order, freedom and property, shall be destroyed… Will justice be impartially administered by judges dependent on the legislature for their … suport? Will liberty or property be protected or secured, by laws made by representatives chosen by electors, who have no property in, or a common interest with, or attachment to, the community?" 466