friendly, Jefferson overwhelmed him with invitations to dine. Giles framed a petition to the Governor of New Jersey, begging him to quash the indictment found against Burr by the Grand Jury of Bergen County, and passed it about the Senate for signature. Nay, there is reason to believe that he was even promised that share of patronage so long withheld. Two bills were then before Congress. One reorganized the government of Orleans; the other turned the district of Louisiana into the Territory of Louisiana, and gave it a government of its own. Neither bill was signed by Jefferson till the impeachment trial ended in failure, and Burr had but two days to serve. Yet, even then, when he had ceased to be Vice-President, when his career was run, well-paid places were found in the new government for his connections and his friends. His step-son was made Secretary of Louisiana. The brother-in-law of his wife was made a judge of the Superior Court of Orleans. His old friend Wilkinson was made Governor of Louisiana, for the hope of rending that Territory from the Union was never for a moment absent from his mind. That such places were put at the disposal of Aaron Burr without a mete return from him is not for a moment to be supposed. To Giles, of Virginia, meanwhile had been given the task of securing the doubtful and discontented senators. All that could be done he did. He argued with the doubters. He strove to appease the rebellious. He toiled earnestly to do away with the terrors and gravity of impeachment. It was not, he maintained, such a dreadful thing as it seemed. Men could be impeached for high crimes and misdemeanors; but they could also be impeached and removed for offences that were neither high crimes nor misdemeanors. Such was the case of John Pickering. He was insane. He was not responsible, and could not, therefore, be guilty of a crime. Yet he had been removed. And why? Because he could not with safety be intrusted with the duties of a judge. Such was the case of Justice Chase. His impeachment did not imply crime or corruption. It was a notice that he held opinions hurtful to the welfare of the country, and could no longer keep his place. Thus was it that impeachment might become an in 1805. TRIAL OF CHASE. 177 quest into the behavior of an officer, a civil investigation, not a prosecution of crime. This being the case, Giles declared that the Senate ought not to take on the form of a court; ought not to use the word in its rules; ought not to swear the members as judges; ought not to have the Secretary swear the witnesses; nor open the proceedings with the ancient cry of Oyez! Oyez! Oyez! But the labor and the arguments of Giles were in vain, and the fourth of February came with the five senators as ill-disposed as ever toward conviction. On that day, for the first time, the managers and the counsel for the accused appeared in their boxes. The month allotted the defendant to secure counsel and make ready for trial had been well spent. and he now confronted his accusers with an array of legal talent such as had never yet assembled i the city of Washington. Beside him stood Luther Martin, a man without an equal at the Maryland bar; Robert Goodloe Harper, Charles Lee, Philip Barton Key, and Joseph Hopkinson, a young man just turned thirty-five, who, having defended Fries before Judge Chase, was now to defend Judge Chase against the charge of oppressing and unjustly treating Fries. As counsel for the House were the managers, John Randolph, George Washington Campbell, Joseph Nicholson, Cæsar Augustus Rodney, John Boyle, Peter Early, and Christopher Clark. The first day was taken up with reading the plea of Judge Chase and calling the roll of the witnesses. An adjournment, the opening speech of John Randolph for the managers, and the examination of witnesses consumed two weeks more, so that the middle of February came before the arguments began in good earnest. Eight articles had been exhibited. Two set forth his arbitrary, oppressive, and unjust treatment of Fries. Two more charged him with having oppressed James Thompson Callender by forcing a prejudiced juror to serve, by ruling out evidence, by acting so partially, so intemperately, so cruelly, that the counsel for Callender had been compelled to abandon their client and their case. Two others accused him of violating the laws of Virginia by issuing a capias against the body of Callender instead of a summons, and by trying the prisoner at the same term at which he was indicted, though the law declared that he should not be tried till the term next following. The seventh alleged that he had refused to dismiss a Grand Jury at New Castle, Delaware, till it indicted a printer on trial for sedition. The eighth was concerned with his conduct at Baltimore in May, 1803; charged him with seeking to stir up the anger of the jury against the government of Maryland and the Government of the United States, and with "prostituting the high judicial character with which he was invested to the low purposes of an electioneering partisan." Grave as the offences charged might seem in the eyes of good men zealous for what they called the dignity of the bench and the purity of the ermine, they were no offences at all in the eye of the law. Not a principle of common law, not an act on any Statute Book, could reach them. How, then, it was asked, can Justice Chase be impeached? His acts were indeed unwise, in bad taste, greatly to be regretted. But he had committed no high crime. He had been guilty of no misdemeanor. The answer was the argument of the managers. The difference, said one of them in substance, between the terms crimes and misdemeanors as used in the laws, and the terms high crimes and misdemeanors as used in the Constitution, is precisely the difference between indictment and impeachment. The murderer, the forger, the common thief must be arrested, then indicted and tried. The criminal, in the meaning of the Constitution, is never arrested. No process issues against his body. No indictment ever sends him to jail. He is merely summoned to appear at the bar and answer the charges against him. The indicted criminal, again, may be deprived of his life, of his liberty, nay, even of his property by heavy costs and fines. The impeached criminal can be deprived of nothing but office and the right to hold office. Does not this difference in the way of trying and in the kind of punishment inflicted mean a difference in the nature of the crimes? Does it not mean that where an indictment lies, an impeachment will not? A judge may undoubtedly be indicted for murder? Will any one contend that he may be impeached for murder? Assuredly not, for no man can be tried twice for the same offence. Impeach.nent, then, lies for abuse of power done by an officer in his 1805. TRIAL OF CHASE. 179 official capacity, by a judge on the bench, by the Vice-President in his seat; indictment lies for acts done by men acting as men and not as officers. Joseph Hopkinson, who opened for the culprit, answered this. The difference, said he, between acts impeachable and acts indictable is simply this: Every act impeachable is also an act indictable; but every indictable act is not an impeachable act. If this be true, it follows that a man may be both indicted and impeached for the same offence; that he may, in the language of the managers, be tried twice for the same act. And so he may. For what other meaning can be given to those words of the Constitution, so strangely overlooked by the managers, those words which follow close on the provision for impeachment, the words, "the party convicted shall nevertheless be liable and subject to indictment, trial, judg ment, and punishment according to law"? Impeachment, then, is no bar to indictment. Indictment is no bar to impeachment. The same man may suffer both for the same crime. But the House cannot impeach him for an act for which a Grand Jury could not indict him. To the House of Representatives, it is true, is given sole power to impeach. So also to grand juries is given sole power to indict. But, as grand juries cannot indict for what is not indictable, so the House of Representatives cannot impeach save for what is impeachable. And what is impeachable? Treason, bribery, and "other high crimes and misdemeanors." The meaning of this is clearly high, not petty misdemeanors. Were I to say there are attending this tribunal many ladies and gentlemen, would I not be understood to mean many ladies and many gentlemen? The Constitution says that “a regular statement and account of the receipts and expenditures of all public money shall be published from time to time." Does not this mean that the account must be regular as well as the statement? Consider again with what "misdemeanors " are associated. They are associated with treason, with bribery, with high crimes; they are tried in precisely the same manner; they are punished with precisely the same penalties. Consider who are the judges. Not magistrates, not justices of the peace, but the highest branch of the highest legislative body in our land. Are we to suppose that the Constitution means that public business shall be delayed while the Senate sits day after day to scan and punish errors and indiscretions too petty to be named in the penal code, too insignificant to be noticed by a Court of Quarter Sessions? Far from it. The Senate was never formed to fix the standard of politeness for a judge, to mark out the limits of judicial decorum. Luther Martin took the same position as Hopkinson, but added nothing to the argument. Harper went further; narrowed the position taken by his colleagues; maintained that impeachment was a criminal prosecution; that it must be founded on an open violation of law; and cited the Constitutions of Pennsylvania, of Delaware, of Maryland, of Virginia, of North Carolina, and of Georgia to prove that such was the meaning attached to it. After explaining his doctrine of impeachment Hopkinson took up the first article. To Philip Barton Key were given articles two, three, and four. Charles Lee then took up the fifth and sixth. Luther Martin followed. To refresh the memories of the senators, he restated the constitutional arguments of Hopkinson, discussed articles two to six in order, tore them to pieces, and, with a glee but half concealed, expounded the law of Maryland and Virginia to Nicholson and Randolph. Harper then dealt with the seventh and eighth articles and closed the case for the defendant. On the part of the managers all was perplexity, doubt, and confusion. One declared that impeachment was a mere inquest of office. Another denied this and maintained that it was a criminal prosecution, and limited to "treason, bribery, and other high crimes and misdemeanors." A third in turn denied this, and asserted that the Constitution put no limit on impeachment. Nor was the plan of discussing the articles a happy one. Campbell and Early and Rodney each in turn went over every article save the fifth and sixth. Nicholson spoke briefly and feebly on the first, second, and third. Clark alone touched on the fifth and sixth, and his speech did not take up ten minutes of time. Randolph closed for the managers. Of law he was totally ignorant. What logic was he did not know. With his shrill voice raised to the highest pitch, with his face distorted, with his body twisted into horrid |