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Nor is a dependence of the judges on the legislature in republican governments less fatal to the rights of individuals than a dependence on the executive in those which are monarchical. Let the dependence exist, and its consequence will be an improper and injurious subserviency to the will of the superior. Legislative is as heavy as executive oppression and is the more to be dreaded as it cannot be checked by public opinion, for public opinion is generally with it. When public opinion changes, the governing party changes also, and the persecuted become the persecutors. The instrument of persecution, an enslaved judiciary, is ready for any hand bold and strong enough to seize it… .

The government of a party continuing for a great length of time the majority, and consequently in power, may gradually soften and assume the appearance of the nation. But where the division is nearly equal, the struggle incessant, and success alternate, all the angry passions of the human mind are in perpetual exercise. The new majority brings with it into power a keen recollection of injuries supposed, if not real, and is entirely disposed to retort them. Vile calumny, exclusion from social rights, proscriptions, and banishments have, in democracies where the ruling party acts without the check of an independent judiciary, been the bitter fruits of this temper. The best safeguard against evils so serious, and it is to be feared, so certain, is a tribunal beyond the reach of these passions, without the judgment of which punishment cannot be inflicted. How is this tribunal to be obtained but by rendering independent those who compose it? Is it to be expected that if in this war of angry passions, an irritated majority in Congress should pursue with unjust vengeance an obnoxious individual, judges dependent on that majority for their continuance in office will constitute a barrier which shall check its resentments? If in any influence the virtue of the judge should induce him to prefer his duty to his interest, his exertions would be of no avail. He would immediately become the victim of his integrity: by repealing a law or by some other means he would be removed from office and a successor appointed, inflamed with all the passions which burn in the bosoms of the majority.

In private actions too the same prejudices would prevail. An influential member of the majority in Congress could not be in the wrong should his cause be referred to a man whose political existence may depend on the breath of that member… .

In controversies between an individual of the majority and minority, the case of the impotent and unpopular suitor would be hopeless. His demonstrations of his right would avail him nothing before a judge whose continuance in office might depend on pronouncing a decision against him… .

Will you then, my fellow citizens, for the paltry gratification of wreaking vengeance on a party so grossly calumniated and which no longer governs, destroy the Constitution of your country and deprive yourselves of the security resulting from independent judges? Will you establish a principle which must place in the hands of the predominant party for the time being the persons and the property of those who are divided from them by shades of opinion? which will subject the weak to the powerful and convert the seat of justice into a tribunal where influence, not law, must rule? Will you render a judiciary which being constitutionally independent is now a safe and steady check to the encroachments of power and the persecutions of party, a mere instrument of vengeance in the hands of the tyrants of the day? Will you make the judges what a late ministerial writer, whose calumnies have attracted some attention, has very untruly stated them to be already: a body of men “under the dominance of political and personal prejudice, habitually employed in preparing or executing political vengeance”?

Patriotism, public virtue, a regard for your own safety and happiness, a just national pride, and respect for that Constitution on which your national character depends, and which many of you have solemnly sworn to support—all forbid it.

“Serious Considerations Addressed to All Serious Federalists,” No. 3 (Washington) National Intelligencer 1 December 1802

… What have the republican administration done?

They have restored the old and long established mode of administering justice, with a very few improvements—that mode which had been devised by a Federal lawyer of great eminence, Oliver Ellsworth, whose reputed talent and integrity had rapidly carried him, under Federal auspices, through the successive great offices of Senator of the United States, Chief Justice of the United States, and Minister Plenipotentiary to France; that mode which had been the offspring of a mind replete with deep experience derived from the enjoyment of many years of practical engagement—instead of one, the hasty creation of two young men, deeply involved in the contentions of party animosity and acknowledged, on all hands, to be more intent on political aggrandizement than on any other end.

This restoration of the old system has been pronounced unconstitutional. But the charge would never have been made but from party animosity, from the hope of gaining party advantage by working on the prejudices of the people. The measure has been demonstrated in abstract argument to be constitutional. But what, to the plain strong sense of an unprejudiced mind, shows it to be so in the most irrefragable manner is the undisputed exercise of the same power, under like circumstances, by most of the states in the Union. Cases precisely analogous are to be found in the statute books of Massachusetts, Pennsylvania, Maryland, and Virginia, which occurred before the rage of party passions, and which therefore furnish the strongest possible attestation to the constitutionality of the power.

Whatever doubt, therefore, may be entertained of the expediency of this measure, none ought to be entertained of its constitutionality.

But, granting that there exists such doubts, is there to be no end of political controversy upon every disputed point? Are not the constituted authorities to decide? Have they not decided? Does not the decision express unequivocally the opinions of the nation? Can a doubt be entertained of this when it is considered that the law embraced the sanction of the President, himself the representative of the whole nation; of the Senate, the representatives of the states; and of nearly two-thirds of the House of Representatives, the representatives of the people? The majority have spoken in the audible language of a law, and the minority must obey. Such is the nature of our government. It is the only despotic feature it contains.

This important subject then stands thus. The Republicans have restored, with but little variation, what the Federalists formed. Ought not both sides, ought not the nation, to be satisfied with this? …

The Impeachment of Samuel Chase, 1804–1805

Republican attacks on the Federalist judiciary culminated in the impeachment, trial, and narrow acquittal of Supreme Court Justice Samuel Chase. John Randolph of Roanoke, currently a floor leader for the Jeffersonians but later perhaps the most acerbic Old Republican critic of Jefferson’s and Madison’s administrations, managed the impeachment for the House, assisted by Joseph Nicholson, the Republican stalwart from Maryland. Robert Goodloe Harper of Maryland and Caesar Rodney of Delaware, both former Federalist congressmen, defended Chase. James Thomson Callender, who figured prominently in the House indictment, was probably the most scurrilous Republican pamphleteer of the later 1790s. In 1802, however, Callender had turned against Thomas Jefferson, whom he accused of having several children by his slave Sally Hemings.

Articles of Impeachment 30 November 1804

Article 1. That, unmindful of the solemn duties of his office, and contrary to the sacred obligation by which he stood bound to discharge them “faithfully and impartially, and without respect to persons,” the said Samuel Chase, on the trial of John Fries, charged with treason, before the circuit court of the United States, held for the district of Pennsylvania, in the city of Philadelphia, during the months of April and May, one thousand eight hundred, whereat the said Samuel Chase presided, did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust… .

Art. 2. That, prompted by a similar spirit of persecution and injustice, at a circuit court of the United States, held at Richmond, in the month of May, one thousand eight hundred, for the district of Virginia, whereat the said Samuel Chase presided, and before which a certain James Thomson Callender was arraigned for a libel on John Adams, then President of the United States, the said Samuel Chase, with intent to oppress and procure the conviction of the said Callender, did overrule the objection of John Basset, one of the jury, who wished to be excused from serving on the said trial because he had made up his mind as to the publication from which the words charged to be libellous in the indictment were extracted; and the said Basset was accordingly sworn and did serve on the said jury, by whose verdict the prisoner was subsequently convicted.

Art. 3. That, with intent to oppress and procure the conviction of the prisoner, the evidence of John Taylor, a material witness on behalf of the aforesaid Callender, was not permitted by the said Samuel Chase to be given in, on pretense that the said witness could not prove the truth of the whole of one of the charges contained in the indictment, although the said charge embraced more than one fact.

Art. 4. That the conduct of the said Samuel Chase was marked, during the whole course of the said trial, by manifest injustice, partiality, and intemperance… .

Art. 5. … The said Samuel Chase did, at the court aforesaid, award a capias against the body of the said James Thomson Callender, indicted for an offense not capital, whereupon the said Callender was arrested and committed to close custody, contrary to law in that case made and provided.

Art. 6. And whereas it is provided by the 34th section of … “An act to establish the judicial courts of the United States,” that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as the rules of decision in trials at common law in the courts of the United States, in cases where they apply; and whereas, by the laws of Virginia, it is provided that, in cases not capital, the offender shall not be held to answer any presentment of a grand jury until the court next succeeding that during which such presentment shall have been made, yet the said Samuel Chase, with intent to oppress and procure the conviction of the said James Thomson Callender, did, at the court aforesaid, rule and adjudge the said Callender to trial, during the term at which he, the said Callender, was presented and indicted, contrary to law in that case made and provided.

Art. 7. That, at a circuit court of the United States for the district of Delaware, held at Newcastle in the month of June, one thousand eight hundred, whereat the said Samuel Chase presided, the said Samuel Chase, disregarding the duties of his office, did descend from the dignity of a judge, and stoop to the level of an informer, by refusing to discharge the grand jury, although entreated by several of the said jury so to do; and after the said grand jury had regularly declared, through their foreman, that they had found no bills of indictment, nor had any presentments to make, by observing to the said grand jury, that he, the said Samuel Chase, understood “that a highly seditious temper had manifested itself in the state of Delaware, among a certain class of people, particularly in Newcastle County, and more especially in the town of Wilmington, where lived a most seditious printer, unrestrained by any principle of virtue, and regardless of social order—that the name of this printer was”—but checking himself, as if sensible of the indecorum he was committing, added, “that it might be assuming too much to mention the name of this person, but it becomes your duty, gentlemen, to inquire diligently into this matter,” or words to that effect; and that, with intention to procure the prosecution of the printer in question, the said Samuel Chase did, moreover, authoritatively enjoin on the District Attorney of the United States the necessity of procuring a file of the papers to which he alluded (and which were understood to be those published under the title of “Mirror of the Times and General Advertiser”) and, by a strict examination of them, to find some passage which might furnish the ground-work of a prosecution against the printer of the said paper; thereby degrading his high judicial functions, and tending to impair the public confidence in, and respect for, the tribunals of justice, so essential to the general welfare.

Art. 8. And whereas mutual respect and confidence between the Government of the United States and those of the individual states, and between the people and those governments respectively, are highly conducive to that public harmony without which there can be no public happiness, yet the said Samuel Chase, disregarding the duties and dignity of his judicial character, did, at a circuit court for the district of Maryland held at Baltimore in the month of May, one thousand eight hundred and three, pervert his official right and duty to address the grand jury then and there assembled on the matters coming within the province of the said jury, for the purpose of delivering to the said grand jury an intemperate and inflammatory political harangue, with intent to excite the fears and resentment of the said grand jury and of the good people of Maryland against their state government and constitution, a conduct highly censurable in any, but peculiarly indecent and unbecoming, in a Judge of the Supreme Court of the United States; and moreover that the said Samuel Chase, then and there, under pretense of exercising his judicial right to address the said grand jury, as aforesaid, did, in a manner highly unwarrantable, endeavor to excite the odium of the said grand jury and of the good people of Maryland, against the Government of the United States, by delivering opinions, which, even if the judicial authority were competent to their expression on a suitable occasion and in a proper manner, were at that time, and as delivered by him, highly indecent, extra-judicial, and tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan.

And the House of Representatives, by protestation, saving to themselves the liberty of exhibiting, at any time hereafter, any farther articles, or other accusation, or impeachment, against the said Samuel Chase, and also of replying to his answers which he shall make unto the said articles, or any of them, and of offering proof to all and every the aforesaid articles, and to all and every other articles, impeachment, or accusation which shall be exhibited by them as the case shall require, do demand that the said Samuel Chase may be put to answer the said crimes and misdemeanors, and that such proceedings, examinations, trials, and judgments, may be thereupon had and given as are agreeable to law and justice… .

Proceedings in the Senate February 1805

Address of John Randolph 9 February 1805

I ask this honorable Court whether the prostitution of the bench of justice to the purposes of a hustings is to be tolerated? We have nothing to do with the politics of the man. Let him speak, and write, and publish, as he pleases. This is his right in common with his fellow citizens. The press is free. If he must electioneer and abuse the government under which he lives, I know no law to prevent or punish him, provided he seeks the wonted theaters for his exhibition. But shall a judge declaim on these topics from his seat of office? Shall he not put off the political partisan when he ascends the tribune? Or shall we have the pure stream of public justice polluted with the venom of party virulence? In short, does it follow that a judge carries all the rights of a private citizen with him upon the bench, and that he may there do every act which, as a freeman, he may do elsewhere, without being questioned for his conduct?

But, sir, we are told that this high Court [the Senate] is not a court of errors and appeals, but a Court of Impeachment, and that however incorrectly the respondent may have conducted himself, proof must be adduced of criminal intent, or wilful error, to constitute guilt. … Even the respondent admits that there are acts of a nature so flagrant that guilt must be inferred from them, if the party be of sound mind. But this concession is qualified by the monstrous pretension that an act to be impeachable must be indictable. Where? In the federal courts? There, not even robbery and murder are indictable, except in a few places under our executive jurisdiction. It is not an indictable offense under the laws of the United States for a judge to go on the bench in a state of intoxication—it may not be in all the state courts; and it is indictable nowhere for him to omit to do his duty, to refuse to hold a court. But who can doubt that both are impeachable offenses and ought to subject the offender to removal from office? …

Mr. President, it appears to me that one great distinction remains yet to be taken. A distinction between a judge zealous to punish and repress crimes generally and a judge anxious only to enforce a particular law, whereby he may recommend himself to power or to his party. It is this hideous feature of the respondent’s judicial character on which I would fix your attention. We do not charge him with a general zeal in the discharge of his high office, but with an indecent zeal, in particular cases, for laws of doubtful and suspicious aspect. It is only in cases of constructive treason and libel that this zeal breaks out. Through the whole tenor of his judicial conduct runs the spirit of party… .

The Testimony

The Managers proceeded to the examination of witnesses in support of the prosecution… .

19 February 1805 Gunning Bedford, sworn.

Mr. Harper. Please to state to the court whether you were present in your judicial character at a circuit court held at Wilmington in 1800, and relate the circumstances which occurred?

A. I attended that court on the 27th of June. Judge Chase presided. I arrived in the morning about half an hour before Judge Chase. We went into court about eleven o’clock. The grand jury was called and empaneled. The judge delivered a charge; they retired to their box; after an absence of not more than an hour they returned to the bar. They were asked by the judge whether they had any bills or presentments to make to the court. They said they had none. The court called on the attorney of the district to say whether there was any business likely to be brought forward. He replied that there was none. Some of the grand jury then expressed a wish to be discharged. Judge Chase said it was unusual for the court to discharge the grand jury so early in the session; it is not the practice in any circuit court in which I have sat. He turned round to me and said, Mr. Bedford, what is your usual practice? I said it depended upon circumstances and on the business before the court; that when the court was satisfied there was nothing to detain them they were discharged. Judge Chase then turned to the jury and observed, “But, gentlemen of the jury. I am informed that there is conducted in this state (but I am only informed) a seditious newspaper, the editor of which is in the practice of libeling and abusing the government. His name is———, but perhaps I may do injustice to the man by mentioning his name. Have you, gentlemen of the jury, ever turned your attention to the subject?” It was answered, no. “But, resumed the judge, it is your duty to attend to things of this kind. I have given you in charge the Sedition Act, among other things. If there is anything in what is suggested to you, it is your duty to inquire into it.” He added, “It is high time that this seditious printer should be corrected; you know that the prosperity and happiness of the country depend upon it.” He then turned to the attorney of the district and said, Mr. Attorney, can you find a file of those papers? He answered that he did not know. A person in court offered to procure a file. The attorney then said, as a file was found, he would look it over. Can you, said the judge, look it over and examine it by tomorrow at ten o’clock. Mr. Attorney said he would. Judge Chase then turned to the grand jury and said, gentlemen, you must attend tomorrow at ten o’clock. Other business was gone into, and the court adjourned about two o’clock.

On my way to Judge Chase’s lodgings, I said to him, my friend, I believe you know not where you are; the people of this country are very much opposed to the Sedition Law and will not be pleased with what you said. Judge Chase clapped his hand on my shoulders and replied, “my dear Bedford, no matter where we are, or among whom we are, we must do our duty.”

The next day we went into court about ten o’clock. The grand jury went to their chamber, and I believe Mr. Read returned with them into court. They were asked if they had anything to offer to the court; and the attorney was called on again to state whether he had found anything in the file of a seditious nature. He had a file of the paper before him, and he said he had found nothing that was a proper subject for the notice of the jury, unless a piece relating to Judge Chase himself. The judge answered, take no notice of that, my shoulders are broad, and they are able to bear it; but where there is a violation of a positive law of the United States it is necessary to notice it.

Mr. Harper. Did Judge Chase say nothing about a seditious temper in the town of Wilmington in Newcastle county?

A. I do not recollect that he did. The subject has occupied my attention since I saw Mr. Read’s testimony given to the committee of inquiry of the House of Representatives; and I have not been able to trace in my mind any recollection of the kind. What I said to the judge shows that I did not hear such remarks. Another circumstance strengthened my conviction that no such remarks fell from him. There was a publication in the Mirror, on the fourth of July, giving an account of the proceedings of the court; in which many circumstances that occurred appeared to me to be highly exaggerated; and yet in that publication no such remarks are ascribed to the judge.

Mr. Harper. Was there anything authoritative or commanding in the language of Judge Chase to the attorney of the district; or was what he said in the nature of a request?

A. It was a request, made in the usual style of a request.

Mr. Harper. Was the business conducted with apparent good humor?

A. It appeared so to me.

Mr. Harper. From what source did the printer obtain his statement of the proceedings of the court?

A. The printer stated that he had it from a person in court.

Mr. Randolph. Was the title of the paper mentioned at this time?

A. I think not. I believe I suggested the title when inquiry was made as to the procuring a file.

Mr. Rodney. In what manner did the judge address the grand jury?

A. In his usual manner of speaking; but without passion.

Mr. Rodney. Do you recollect whether on the second day there was not an unusual concourse of people in court?

A. I believe there was.

Mr. Rodney. Did not Judge Chase ask whether there were not two printers in town?

A. I believe he did ask that question… .

Mr. Nicholson. You are not certain whether Judge Chase cited the title of the paper?

A. I am not certain.

Mr. Nicholson. What induced you to consider what he said as applicable to the Mirror?

A. We had two papers printed in Wilmington, one of which was federal, and the other, the Mirror, democratic.

Mr. Rodney. Do you recollect whether it is the general practice in Delaware to discharge the grand jury the same day they are empanelled?

A. I believe it is the general practice.

Mr. Randolph. Do you recollect whether the judge, when speaking of the printer, said, “and one of them, if report does not much belie him, is a seditious printer and must be taken notice of. I consider it a part of my duty, and it shall or must be noticed. And it is your duty, Mr. Attorney, to examine minutely and unremittingly into affairs of this nature; the times, sir, require that this seditious spirit, which pervades too many of our presses, should be discouraged and repressed.”

A. I have no recollection of such words… .

Archibald Hamilton, sworn.

Mr. Harper. Please to inform the court whether you were present at a circuit court for Delaware in 1800?

A. I recollect that I was present on the 27th of June. I arrived about ten o’clock, at which time Judge Chase was not there. Some time after, the court was formed, the grand jury was sworn, and Judge Chase delivered a charge. Having retired for about an hour, the grand jury returned to the bar. Judge Chase asked them if they had any bills or presentments to make. Their reply was that they had not. Judge Chase then asked the Attorney of the District if he had no business to lay before them. He said he had not. The jury requested to be discharged. Judge Chase said it was not usual to discharge them so early, some business might occur during the course of the day. He told them he had been informed that there was a printer who was guilty of libelling the Government of the United States; his name is———; here he stopped and said, “perhaps I may commit myself, and do injustice to the man. Have you not two printers?” The attorney said there were. Well, said Judge Chase, cannot you find a file of the papers of the one I allude to? Mr. Read said he did not take the papers or that he had not a file. Some person then observed that a file could be got at Mr. Crow’s. Judge Chase asked the attorney if he could examine the papers by the next morning. Mr. Read said that, under the directions of the court, he conceived it to be his duty, and he would do it.

On the second day the same questions, whether they had found any bills, were put to the grand jury. They answered that they had not. Mr. Chase asked the Attorney of the District if he had found anything in the papers that required the interposition of the jury. He said that he had found nothing which in his opinion came within the Sedition Law; but there was a paragraph against his honor. Judge Chase said that was not what he alluded to. He was abused from one end of the continent to the other; but his shoulders were broad enough to bear it.

Mr. Harper. Did the judge say anything of a seditious temper in that State?

A. I do not recollect any such expressions.

Mr. Harper. Were you in the court the whole time?

A. I was.

Mr. Harper. How were you situated?

A. I was directly under Judge Chase, and nothing could fall from him without my hearing it.

Mr. Rodney. Do you recollect whether he mentioned the name of the paper?

A. I do not recollect that he did.

Mr. Rodney. What was the manner of the judge?

A. I saw nothing unusual.

Mr. Rodney. Do you recollect whether his manner made any impression at the bar?

A. On nobody but the printer.

Mr. Rodney. Do you recollect that the District Attorney said he conceived it his duty to inquire into matter of the kind he alluded to?

A. I do… .

Gunning Bedford, called.

Mr. Rodney. Did Judge Chase, in a conversation with you, subsequent to the discharge of the grand jury, complain that he could not get a person indicted in Delaware for sedition, though he could in Virginia.

Mr. Bedford. I have no distinct recollection of that kind. I have some indistinct recollection that in a small circle of friends, though not to me personally, he said some such thing in a jocular way.

William H. Winder, sworn.

Mr. Harper. I will ask you whether you were in the circuit court of the United States, held at Baltimore, in May, 1803?

Mr. Winder. I was present at that court when it was opened and the jury empaneled, and I heard Judge Chase deliver his charge. After delivering the general and usual charge to the grand jury, he said he begged leave to detain them a few minutes while he made some general reflections on the situation of public affairs. He commenced by laying down some abstract opinions, stating that that Government was the most free and happy that was the best administered; that a republic might be in slavery and a monarchy free. He also drew some distinctions with regard to the doctrine of equal rights, and said that the idea of perfect equality of rights, more particularly such as had been broached in France, was fanciful and untrue; that the only doctrine contended for with propriety was the equal protection of all classes from oppression. He commented on the repeal of the judiciary system of the United States and remarked that it had a tendency to weaken the judiciary and to render it dependent. He then adverted to the laws of Maryland respecting the judiciary, as tending to the same effect. One was a law for the repeal of the county court system. He also alluded to the depending law for the abolition of two of the courts of Maryland. He said something of the toil and labor and patriotism of those who had raised the fair fabric (constitution of Maryland) and said that he saw with regret some of their sons now employed in destroying it. He also said that the tendency of the general suffrage law was highly injurious, as, under it, a man was admitted to full political rights, who might be here today and gone tomorrow.

This is the amount of my recollection; and I think I have stated the language of the judge in as strong terms as he himself used. Since I was summoned as a witness I have never seen the charge of the judge, or that published in the National Intelligencer, or by Mr. Montgomery. I conclude that it was most proper not to avail myself of those publications. My impressions, therefore, are altogether unassisted by them.

Mr. Harper. Did you attend carefully to the charge?

A. I did. I am sure no part of it escaped me.

Mr. Harper. Did Judge Chase appear to read it from a paper?

A. I so took it. Occasionally he raised his eyes, but not longer than I should imagine a person would who was familiarly acquainted with what he was reading.

Mr. Harper. Did you hear him use any of those expressions deposed by one of the witnesses—that the Administration was feeble and inadequate to the discharge of its duties, and that their object was to preserve power unfairly acquired. Did he use any such words?

A. To my best belief, he did not… .

Mr. Harper. Did the judge use any arguments against pending measures?

A. Certainly.

Mr. Harper. Did he mention the present Administration?

A. I believe not. If he had, it would have struck my mind very forcibly… .

Mr. Nicholson. Did Judge Chase say anything of the motives of the members of the Legislature of Maryland?

A. He did, according to my impression.

Mr. Nicholson. What were the motives he ascribed to them?

A. As I understood him, the motive he ascribed to them was to get rid of the judges, and not the system.

Mr. Nicholson. He did certainly, then, allude to the motives of the members of the Assembly of Maryland?

A. I think he did. If he did not, that was the impression produced on my mind by what he said.

Mr. Nicholson. Do you recollect whether Judge Chase did at the close of his charge recommend to the members of the grand jury to return home and prevent certain laws from being passed?

A. I think that was the result which he drew from what he had previously said.

James Winchester, sworn.

Mr. Harper. Please, sir, to state to this court your recollection respecting a charge delivered by Judge Chase in the circuit court of Maryland in May, 1803?

Mr. Winchester. As already stated, that court sat in May, 1803, in a room in Evans’s tavern. The court and gentlemen of the bar sat round several dining tables. I sat on the left of Judge Chase, and the jury were on his right. He addressed a charge to them, the beginning of which was in the usual style of such addresses. He then commenced what has been called the political part of the charge, with some general observations on the nature of government. He afterwards adverted to two measures of the Legislature of Maryland; the first related to an alteration of the Constitution on the subject of suffrage; the other contemplated an alteration in the judiciary. He commented on the injurious tendency of the principle of universal suffrage, and deprecated the evil effects it was likely to have. Incidental to these remarks, he adverted to the repeal of the judiciary law of the United States. I say incidental, for my impression was that his object was to show the dangerous consequences that would result to the people of Maryland from a repeal of their judiciary system, and to show that as the act of Congress had inflicted a violent blow on the independence of the federal judiciary, it was more necessary for the State of Maryland to preserve their judiciary perfectly independent. I was very attentive to the charge for several reasons. I regretted it as imprudent. I felt convinced that it would be complained of; and I am very confident from my recollection, and from the publications respecting it, which I afterwards perused, that all the political observations of the judge related to the State of Maryland… .

Mr. Harper. Did you hear any expressions applied to the present Administration, or was the Administration mentioned at all?

A. My impression is very strong that neither the present Administration was mentioned or the views or designs of any member of it in any manner whatever. I am confident of this, because if such remarks had been uttered, they would have made a strong impression on my mind.

Mr. Harper. Did you ever hear the judge allude to such topics in his charges?

A. I never heard Judge Chase in any of his charges reflect on any Administration. I have heard a great many charges of his containing political matter, and they have been all rather calculated to support the existing Administration.

Mr. Harper. Have you heard any since 1800?

A. I recollect no particular charge delivered by him since that time.

Mr. Harper. Was the general tenor of his charges since and before 1800 calculated to support the laws?

A. I think there has been this difference. Those delivered before 1800 called on the jury to support the measures of the government as wise and upright; since that period he has made no allusion to the measures of the Administration.

Mr. Harper. But his general practice has been to recommend to them the observance of law and the support of government?

A. He generally addressed the jury on the necessity of obeying the laws; that has been the tenor of his charges at all times… .

Mr. Nicholson. I will ask you whether Judge Chase recommended to the jury, on their return home, to use their exertions to prevent the adoption of a depending law?

A. I do not know whether the recommendation came from the judge in language and terms. I rather think it flowed as an inference from what he had said… .

Exhibit Number Eight, Referred to in Judge Chase’s Answer

Copy of the conclusion of a charge delivered and read from the original manuscript at a circuit court of the United States, holden in the city of Baltimore, on Monday the second day of May, 1803, by Samuel Chase, one of the judges of the Supreme Court of the United States.

Before you retire, gentlemen, to your chamber to consider such matters as may be brought before you, I will take the liberty to make a few observations, which I hope you will receive as flowing only from my regard to the welfare and prosperity of our common country… .

The purposes of civil society are best answered by those governments where the public safety, happiness, and prosperity are best formed, whatever may be the constitution and form of government; but the history of mankind (in ancient and modern times) informs us “that a monarchy may be free, and that a republic may be a tyranny.” The true test of liberty is in the practical enjoyment of protection to the person and the property of the citizen from all injury. Where the same laws govern the whole society without any distinction and there is no power to dispense with the execution of the laws; where justice is impartially and speedily administered and the poorest man in the community may obtain redress against the most wealthy and powerful, and riches afford no protection to violence; and where the person and property of every man are secure from insult and injury; in that country the people are free. This is our present situation. Where law is uncertain, partial, or arbitrary; where justice is not impartially administered to all; where property is insecure and the person is liable to insult and violence without redress by law, the people are not free, whatever may be their form of government. To this situation I greatly fear we are fast approaching!

You know, gentlemen, that our state and national institutions were framed to secure to every member of the society equal liberty and equal rights; but the late alteration of the federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our state constitution by the establishing of universal suffrage, and the further alteration that is contemplated in our state judiciary (if adopted) will, in my judgment, take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. The independence of the judges of this state will be entirely destroyed, if the bill for the abolition of the two supreme courts should be ratified by the next General Assembly. The change of the state constitution, by allowing universal suffrage, will, in my opinion, certainly and rapidly destroy all protection to property and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments.

I can only lament that the main pillar of our state constitution has already been thrown down by the establishment of universal suffrage. By this shock alone the whole building totters to its base and will crumble into ruins before many years elapse, unless it be restored to its original state. If the independency of your state judges, which your bill of rights wisely declares “to be essential to the impartial administration of justice, and the great security to the rights and liberties of the people,” shall be taken away by the ratification of the bill passed for that purpose, it will precipitate the destruction of your whole state constitution, and there will be nothing left in it worthy the care or support of freemen.

I cannot but remember the great and patriotic characters by whom your state constitution was framed. I cannot but recollect that attempts were then made in favor of universal suffrage and to render the judges dependent upon the legislature. You may believe that the gentlemen who framed your constitution possessed the full confidence of the people of Maryland, and that they were esteemed for their talents and patriotism, and for their public and private virtues. You must have heard that many of them held the highest civil and military stations, and that they, at every risk and danger, assisted to obtain and establish your independence. Their names are enrolled on the journals of the First Congress and may be seen in the proceedings of the Convention that framed our form of government. With great concern I observe that the sons of some of these characters have united to pull down the beautiful fabric of wisdom and republicanism that their fathers erected!

The declarations respecting the natural rights of man, which originated from the claim of the British Parliament to make laws to bind America in all cases whatsoever; the publications since that period of visionary and theoretical writers, asserting that men in a state of society are entitled to exercise rights which they possessed in a state of nature; and the modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us; and I fear that it will rapidly progress, until peace and order, freedom and property, shall be destroyed. Our people are taught as a political creed that men living under an established government are, nevertheless, entitled to exercise certain rights which they possessed in a state of nature; and also, that every member of this government is entitled to enjoy an equality of liberty and rights.

I have long since subscribed to the opinion that there could be no rights of man in a state of nature previous to the institution of society; and that liberty, properly speaking, could not exist in a state of nature. I do not believe that any number of men ever existed together in a state of nature without some head, leader, or chief, whose advice they followed and whose precepts they obeyed. I really consider a state of nature as a creature of the imagination only, although great names give a sanction to a contrary opinion. The great object for which men establish any form of government is to obtain security to their persons and property from violence; destroy the security to either, and you tear up society by the roots. It appears to me that the institution of government is really no sacrifice made, as some writers contend, to natural liberty, for I think that previous to the formation of some species of government, a state of liberty could not exist. It seems to me that personal liberty and rights can only be acquired by becoming a member of a community, which gives the protection of the whole to every individual. Without this protection it would, in my opinion, be impracticable to enjoy personal liberty or rights. From hence I conclude that liberty and rights (and also property) must spring out of civil society, and must be forever subject to the modification of particular governments. I hold the position clear and safe that all the rights of man can be derived only from the conventions of society, and may with propriety be called social rights. I cheerfully subscribe to the doctrine of equal liberty and equal rights, if properly explained. I understand by equality of liberty and rights only this, that every citizen, without respect to property or station, should enjoy an equal share of civil liberty, an equal protection from the laws, and an equal security for his person and property. Any other interpretation of these terms is, in my judgment, destructive of all government and all laws. If I am substantially correct in these sentiments, it is unnecessary to make any application of them, and I will only ask two questions. Will justice be impartially administered by judges dependent on the legislature for their continuance in office, and also for their support? Will liberty or property be protected or secured by laws made by representatives chosen by electors, who have no property in, a common interest with, or attachment to the community?

albert gallatin Report on Internal Improvements 4 April 1808

Subordinating much else to the speedy retirement of the public debt, the Republicans could anticipate a Treasury surplus before the end of Jefferson’s second term. The third member of the great triumvirate at the head of the administration offered a plan for its use.

The Secretary of the Treasury, in obedience to the resolution of the Senate of the 2d March, 1807, respectfully submits the following report on roads and canals:

The general utility of artificial roads and canals is at this time so universally admitted as hardly to require any additional proofs. … Advantages have become so obvious that in countries possessed of a large capital, where property is sufficiently secure to induce individuals to lay out that capital on permanent undertakings, and where a compact population creates an extensive commercial intercourse within short distances, those improvements may often, in ordinary cases, be left to individual exertion, without any direct aid from government.

There are, however, some circumstances which, whilst they render the facility of communication throughout the United States an object of primary importance, naturally check the application of private capital and enterprise to improvements on a large scale.

The price of labor is not considered as a formidable obstacle, because whatever it may be, it equally affects the expense of transportation, which is saved by the improvement, and that of effecting the improvement itself. The want of practical knowledge is no longer felt; and the occasional influence of mistaken local interests, in sometimes thwarting or giving an improper direction to public improvements, arises from the nature of man and is common to all countries. The great demand for capital in the United States and the extent of territory compared with the population are, it is believed, the true causes which prevent new undertakings and render those already accomplished less profitable than had been expected.

1. Notwithstanding the great increase of capital during the last fifteen years, the objects for which it is required continue to be more numerous and its application is generally more profitable than in Europe. A small portion therefore is applied to objects which offer only the prospect of remote and moderate profit. And it also happens that a less sum being subscribed at first than is actually requisite for completing the work, this proceeds slowly; the capital applied remains unproductive for a much longer time than was necessary, and the interest accruing during that period becomes, in fact, an injurious addition to the real expense of the undertaking.

2. The present population of the United States, compared with the extent of territory over which it is spread, does not, except in the vicinity of the seaports, admit that extensive commercial intercourse within short distances which, in England and some other countries, forms the principal support of artificial roads and canals. With a few exceptions, canals particularly cannot, in America, be undertaken with a view solely to the intercourse between the two extremes of and along the intermediate ground which they occupy. It is necessary, in order to be productive, that the canal should open a communication with a natural extensive navigation which will flow through that new channel. It follows that whenever that navigation requires to be improved, or when it might at some distance be connected by another canal to another navigation, the first canal will remain comparatively unproductive until the other improvements are effected, until the other canal is also completed. Thus the intended canal between the Chesapeake and Delaware will be deprived of the additional benefit arising from the intercourse between New York and the Chesapeake until an inland navigation shall have been opened between the Delaware and New York. Thus the expensive canals completed around the falls of Potomac will become more and more productive in proportion to the improvement, first, of the navigation of the upper branches of the river, and then of its communication with the Western waters. Some works already executed are unprofitable; many more remain unattempted, because their ultimate productiveness depends on other improvements too extensive or too distant to be embraced by the same individuals.

The General Government can alone remove these obstacles.

With resources amply sufficient for the completion of every practicable improvement, it will always supply the capital wanted for any work which it may undertake as fast as the work itself can progress; avoiding thereby the ruinous loss of interest on a dormant capital and reducing the real expense to its lowest rate.

With these resources, and embracing the whole Union, it will complete on any given line all the improvements, however distant, which may be necessary to render the whole productive and eminently beneficial.

The early and efficient aid of the Federal Government is recommended by still more important considerations. The inconveniences, complaints, and perhaps dangers which may result from a vast extent of territory can not otherwise be radically removed or prevented than by opening speedy and easy communications through all its parts. Good roads and canals will shorten distances, facilitate commercial and personal intercourse, and unite, by a still more intimate community of interests, the most remote quarters of the United States. No other single operation within the power of government can more effectually tend to strengthen and perpetuate that Union which secures external independence, domestic peace, and internal liberty.

With that view of the subject the facts respecting canals, which have been collected in pursuance of the resolution of the Senate, have been arranged under the following heads: …

Making, together,$16,600,000

IV. The great geographical features of the country have been solely adhered to in pointing out those lines of communication; and these appear to embrace all the great interests of the Union and to be calculated to diffuse and increase the national wealth in a very general way, by opening an intercourse between the remotest extremes of the United States. Yet it must necessarily result from an adherence to that principle that those parts of the Atlantic States through which the great western and northwest communications will be carried must, in addition to the general advantages in which they will participate, receive from those communications greater local and immediate benefits than the Eastern and perhaps Southern States. As the expense must be defrayed from the general funds of the Union, justice, and perhaps policy not less than justice, seems to require that a number of local improvements sufficient to equalize the advantages should also be undertaken in those states, parts of states, or districts which are less immediately interested in those inland communications. Arithmetical precision cannot, indeed, be attained in objects of that kind; nor would an apportionment of the moneys applied according to the population of each state be either just or practicable, since roads and particularly canals are often of greater utility to the states which they unite than to those through which they pass. But a sufficient number of local improvements, consisting either of roads or canals may, without any material difficulty, be selected, so as to do substantial justice and give general satisfaction. Without pretending to suggest what would be the additional sum necessary for that object, it will, for the sake of round numbers, be estimated at

$3,400,000

An annual appropriation of two millions of dollars would accomplish all those great objects in ten years and may, without inconvenience, be supplied in time of peace by the existing revenues and resources of the United States. This may be exemplified in several ways.

The annual appropriation on account of the principal and interest of the public debt has, during the last six years, amounted to eight millions of dollars. After the present year or, at furthest, after the ensuing year, the sum which, on account of the irredeemable nature of the remaining debt, may be applied to that object cannot, in any one year, exceed four million six hundred thousand dollars; leaving, therefore, from that source alone, an annual surplus of three million four hundred thousand dollars applicable to any other object.

From the 1st January, 1801 to the 1st January, 1809, a period of eight years, the United States shall have discharged about thirty-four millions of the principal of the old debt, or deducting the Louisiana debt incurred during the same period and not yet discharged, about twenty-three millions of dollars. They may, with equal facility, apply, in a period of ten years, a sum of twenty millions of dollars to internal improvements.

The annual permanent revenue of the United States, calculated on a state of general peace and on the most moderate estimate, was, in a report made to Congress on the 6th day of December, 1806, computed for the years 1809, 1815, at fourteen millions of dollars. The annual expenses on the peace establishment, and including the four million six hundred thousand dollars on account of the debt, and four hundred thousand dollars for contingencies, do not exceed eight millions and a half, leaving an annual surplus of five millions and a half of dollars. To provide for the protection and defense of the country is undoubtedly the object to which the resources of the United States must, in the first instance, be applied, and to the exclusion of all others, if the times shall require it. But it is believed that, in times of peace, and to such period only are these remarks applicable, the surplus will be amply sufficient to defray the expenses of all the preparatory measures of a permanent nature which prudence may suggest, and to pay the sum destined for internal improvements. Three millions annually applied during the same period of ten years would arm every man in the United States, fill the public arsenals and magazines, erect every battery and fortification which could be manned, and even, if thought eligible, build a navy. That the whole surplus would be inadequate to the support of any considerable increase of the land or naval force kept in actual service in time of peace will be readily admitted. But such a system is not contemplated; if ever adopted, the objects of this report must probably be abandoned; for it has not heretofore been found an easy task for any Government to indulge in that species of expense, which, leaving no trace behind it, adds nothing to the real strength of the country, and, at the same time, to provide for either its permanent defense or improvement.

It must not be omitted that the facility of communications constitutes, particularly in the United States, an important branch of national defense. Their extensive territory opposes a powerful obstacle to the progress of an enemy; but, on the other hand, the number of regular forces which may be raised, necessarily limited by the population, will, for many years, be inconsiderable when compared with that extent of territory. That defect cannot otherwise be supplied than by those great national improvements which will afford the means of a rapid concentration of that regular force and of a formidable body of militia on any given point.

Amongst the resources of the Union, there is one which, from its nature, seems more particularly applicable to internal improvements. Exclusively of Louisiana, the General Government possesses, in trust for the people of the United States, about one hundred millions of acres fit for cultivation, north of the River Ohio, and near fifty millions south of the State of Tennessee. For the disposition of these lands a plan has been adopted, calculated to enable every industrious citizen to become a freeholder, to secure indisputable titles to the purchasers, to obtain a national revenue, and, above all, to suppress monopoly. Its success has surpassed that of every former attempt and exceeded the expectations of its authors. But a higher price than had usually been paid for waste lands by the first inhabitants of the frontier became an unavoidable ingredient of a system intended for general benefit and was necessary in order to prevent the public lands being engrossed by individuals possessing greater wealth, activity, and local advantages. It is believed that nothing could be more gratifying to the purchasers and to the inhabitants of the Western States generally, or better calculated to remove popular objections and to defeat insidious efforts, than the application of the proceeds of the sales to improvements conferring general advantages on the nation and an immediate benefit on the purchasers and inhabitants themselves. It may be added that the United States, considered merely as owners of the soil, are also deeply interested in the opening of those communications which must necessarily enhance the value of their property. Thus the opening an inland navigation from tidewater to the great lakes would immediately give to the great body of lands bordering on those lakes as great value as if they were situated at the distance of one hundred miles by land from the seacoast. And if the proceeds of the first ten millions of acres which may be sold were applied to such improvements, the United States would be amply repaid in the sale of the other ninety millions.

The annual appropriation of two millions of dollars drawn from the general revenues of the Union, which has been suggested, could operate to its full extent only in times of peace and under prosperous circumstances. The application of the proceeds of the sales of the public lands, might, perhaps, be made permanent until it had amounted to a certain sum and until the most important improvements had been effected. The fund created by those improvements, the expense of which has been estimated at twenty millions of dollars, would afterwards become itself a perpetual resource for further improvements. Although some of those first communications should not become immediately productive; and although the same liberal policy which dictated the measure would consider them less as objects of revenue to government than of increased wealth and general convenience to the nation, yet they would all, sooner or later, acquire, as productive property, their par value. Whenever that had taken place in relation to any of them, the stock might be sold to individuals or companies and the proceeds applied to a new improvement. And by persevering in that plan, a succession of improvements would be effected until every portion of the United States should enjoy all the advantages of inland navigation and improved roads of which it was susceptible. To effect that great object, a disbursement of twenty millions of dollars, applied with more or less rapidity, according to the circumstances of the United States, would be amply sufficient.

The manner in which the public moneys may be applied to such objects remains to be considered.

It is evident that the United States cannot, under the Constitution, open any road or canal without the consent of the state through which such road or canal must pass. In order, therefore, to remove every impediment to a national plan of internal improvements, an amendment to the Constitution was suggested by the executive when the subject was recommended to the consideration of Congress. Until this be obtained, the assent of the state being necessary for each improvement, the modifications under which that assent may be given will necessarily control the manner of applying the money. It may be, however, observed that in relation to the specific improvements which have been suggested, there is hardly any which is not either already authorized by the states respectively or so immediately beneficial to them as to render it highly probable that no material difficulty will be experienced in that respect.

The moneys may be applied in two different manners. The United States may, with the assent of the states, undertake some of the works at their sole expense, or they may subscribe a certain number of shares of the stock of companies incorporated for the purpose. Loans might also, in some instances, be made to such companies. The first mode would, perhaps, by effectual controlling local interests, give the most proper general direction to the work. Its details would probably be executed on a more economical plan by private companies. Both modes may, perhaps, be blended together so as to obtain the advantages pertaining to each. But the modifications of which the plan is susceptible must vary according to the nature of the work and of the charters, and seem to belong to that class of details which are not the immediate subject of consideration.

At present the only work undertaken by the United States at their sole expense, and to which the assent of the states has been obtained, is the road from Cumberland to Brownsville; an appropriation may, for that purpose, be made at any time. In relation to all other works, the United States having nothing at this time in their power but to assist those already authorized, either by loans or by becoming stockholders; and the last mode appears the most eligible. The only companies incorporated for effecting some of the improvements considered in this report as of national and first-rate importance, which have applied for such assistance, are the Chesapeake and Delaware Canal, the Susquehannah Canal, and the Dismal Swamp companies; and authority might be given to subscribe a certain number of shares to each on condition that the plan of the work to be executed should be approved by the General Government. A subscription to the Ohio Canal, to the Pittsburg Road, and perhaps to some other objects not fully ascertained, is also practicable at this time. As an important basis of the general system, an immediate authority might also be given to take the surveys and levels of the routes of the most important roads and canals which are contemplated: a work always useful, and by which the practicability and expense of the undertakings would be ascertained with much more correctness than in this report… .

part 6

Jeffersonian Foreign Policy

The Louisiana Purchase

France had ceded Louisiana to Spain in 1762, but Napoleon envisioned a rebuilding of the French empire in North America. At his insistence, Spain returned the province by the Treaty of Madrid, 21 March 1801.

News of the retrocession provoked intense alarm in the United States. Some of the Federalists in Congress urged an immediate recourse to force. But lacking both the means and the desire to initiate a conflict with France, Jefferson instead instructed Robert R. Livingston, the U.S. minister to France, to attempt to purchase a tract of land on the lower Mississippi, which could become an American port, or to obtain a guarantee of free navigation of the river with a right of deposit for American goods. On 12 January 1803, not long after the Spanish intendant at New Orleans (without instructions from his government) interdicted the American right of deposit at New Orleans, provoking more Federalist calls for a resort to force, the president nominated James Monroe as minister plenipotentiary to France. Monroe would join Livingston under instructions to offer up to $10 million for the purchase of New Orleans and West Florida. Two million dollars had already been appropriated by Congress.

Even before Monroe arrived in France, Napoleon had abandoned his dream of a new American empire. A French army was hopelessly ensnarled in a slave revolt in Haiti, and Napoleon was beginning to prepare for a resumption of the war with Britain, in which event he would not be able to protect any of his North American possessions. On 11 April 1803, Foreign Minister Talleyrand offered Livingston the whole of Louisiana. Livingston and Monroe quickly decided to exceed their instructions and, on 2 May, signed a treaty. For roughly $15 million, the ministers acquired some 828,000 square miles of land between the Mississippi and the Rockies, doubling the national territory of the United States. The greatest coup of Jefferson’s administration, the Louisiana Purchase was nevertheless not free from problems. It was not entirely clear whether the boundaries of the province included West Florida, as Jefferson and his successor would both maintain. Moreover, the Constitution made no provision for the purchase of foreign territory and its eventual incorporation into the American Union, and the Jeffersonian Republicans had always insisted on a strict interpretation of the Constitution.

Despite his reservations, Jefferson decided not to urge a constitutional amendment. The Senate ratified the treaty on 20 October by a vote of 24 to 7. On 20 December the United States took possession of New Orleans, and on 27 October 1812, after years of arguments with the Spanish and a local revolt led by American inhabitants, President Madison simply issued a proclamation insisting on American possession of West Florida from the Mississippi to the Perdido Rivers and ordering its military occupation. On 14 May 1812, Congress incorporated this area into the Mississippi Territory.