Federal Judiciary Act of 1802

On the national level, the Jeffersonian Republicans' first target was the Judiciary Act of 1801 and John Adams's midnight appointees. Moderates worried about the constitutionality of any measure that would abolish courts and thereby remove judges without impeaching them. Radicals wanted root-and-branch change that would not only eliminate the Federalist appointees but reduce the federal courts' influence. The final product was the Judiciary Act of 1802, a measure that "probably really satisfied no one in the Republican party." ⁴⁴

The 1802 act repealed the Judiciary Act of 1801, eliminating the sixteen circuit judgeships. The Federalists condemned the measure as an unconstitutional, and partisan, removal of judges who enjoyed tenure during good behavior. Some moderate Jeffersonians were also skeptical, but they acquiesced, agreeing to abolish the judgeships because of what they stood for in origin--a patently partisan exercise of the appointing power--and not to reverse or penalize decisions of the sitting judges.

The 1802 act contained two other important provisions. First, it narrowed the scope of power granted to the courts under the 1801 act, reaffirming that local pressures would continue to influence enforcement of federal laws. Second, the act restored the practice of circuit riding, forcing the justices of the Supreme Court to resume regular contacts with the citizenry in federal trial courts.

The Republicans also put the Supreme Court on notice. The Congress passed the Judiciary Act of 1802 in April, and one of its provisions abolished the June session of the Supreme Court, directing the justices not to reconvene until February 1803. The Republicans worried, of course, that the Federalist-controlled high court might declare the new act unconstitutional. As well, the Court already had before it an important case, Marbury v. Madison ( 1803), that tested the Republican policy of refusing to grant commissions to Federalist appointees who had not received their commissions during the last frantic hours of the Adams administration. The purpose of the act, taken in its entirety, was quite clear. It was, according to Jefferson, designed to "restore our judiciary to what it was while justice & not [F]ederalism was its object." ⁴⁵

-80-

Impeachment

The radicals then turned their attention to those sitting Federalist judges whom they could not reach through the Judiciary Act of 1802. The only provision in the Constitution for a judge's removal is "impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors." ⁴⁶ During the previous two decades impeachment in the states had evolved into a political process, and congressional radicals, as in so many other early constitutional episodes, mimicked state practices. They insisted that a judge need not have committed an indictable crime in order to be removed from office. Such a position had momentous consequences, because it threatened the assumption that in a republican government the judiciary was independent of direct political interference. The radicals, for their part, believed that the Federalist judges had already surrendered their independence through politically motivated actions, a position that moderates did not entirely accept. This division within the Jeffersonian party framed the crucial constitutional decisions involved in the impeachments of John Pickering of the Federal District Court for New Hampshire and Justice Samuel Chase of the Supreme Court.

Judge Pickering had been a distinguished lawyer and respected New Hampshire Federalist. He was also an alcoholic with a nervous disorder in which saliva drooled constantly from his open mouth. Although deranged beyond recovery, Pickering remained faithful to his Federalist ideals and refused to leave the bench. The actual articles of impeachment charged that he had improperly discharged a federal customs suit involving the brig Eliza, but he had violated no federal law. The articles indeed cited his bizarre behavior (they charged, for example, that he "did appear on the bench . . . in a state of total intoxication"), but neither his dismissal of the suit nor his conduct constituted a "high crime" or a "misdemeanor." ⁴⁷ This did not matter. The radical Jeffersonians had little trouble (even moderates and some Federalists were aghast at Pickering's condition) in disposing of the judge. The Senate trial in 1804 lasted only two weeks and concluded in Pickering's conviction. The implication seemed clear: if the radicals could impeach and convict a madman, they could certainly bring to task the prime Federalist bully on the Supreme Court: Justice Samuel Chase.

The Chase impeachment in 1805 was something altogether different from that of Pickering. Chase was not only fully in command of his senses but was anxious, in his usual combative style, to prove the correctness of his actions. The radicals charged the justice with a long list of violations, including his conduct at the treason and sedition trials. In 1803, he had sealed his fate when he delivered a harangue to a Baltimore grand jury against Jefferson and the Republicans in Congress who had passed the Judiciary Act of 1802. The president reacted bitterly, urging Congress to make certain that such a "seditious and official attack on the principles of our Constitution" did not "go unpunished." ⁴⁸

Chase was certainly guilty of bad judgment, of a wretched political sense, and of a haughty attitude toward the discharge of his duties. However, he was not guilty of a crime, even though the radicals in Congress, who secured a vote of impeachment in the House, proceeded on that basis. Divisions within the Republican party over the issue of criminal conduct proved fatal, and moderate Republican senators deserted in sufficient numbers to acquit Chase.

The Chase impeachment marked a decisive shift from the experimental republicanism of the late eighteenth century to a burgeoning political democracy of the

-81-

nineteenth century. Impeachment in the states had been viewed as a practical way (in a world that condemned political parties) to remove self-interested, disorderly, and arbitrary officials. Moderate Republicans, like the Federalists, worried indeed that organized opposition to their political rule in government might threaten the constitutional order as a whole, and they certainly cracked the legal whip over the Federalists' heads. But they were also different in this regard from the Federalists. They seem to have benefited both from the lessons of their own opposition and from a recognition that they might become the victims of the impeachment process. Political interference with the judiciary also ran counter to the moderates' avowed commitment to an unpoliticized legal order. Political matters, Jeffersonian moderates recognized (although they did not always act accordingly), properly belonged to the legislative and executive branches of government. This rule freed the federal judiciary from the fear of intrusive, carping, and inexpert criticism from the legislature. The Chase episode meant that impeachment would not be used thereafter as "a means of keeping the Courts in reasonable harmony with the will of the nation." ⁴⁹

Yet the Chase impeachment, taken together with the Judiciary Act of 1802, further limited the federal judiciary. The full nationalizing potential of the lower federal courts remained unfulfilled over the next seventy-five years; Congress refused to implement the remedies required (and that had appeared in the Judiciary Act of 1801) for truly effective federal justice. With limits placed on the jurisdiction of the lower federal courts, state judges and legislators had the initiative to develop the major substantive areas of civil and criminal law.

The Chase impeachment also delivered a palpable warning to other members of the high court, especially to Chief Justice John Marshall, whom John Adams in 1801. had appointed shortly before leaving office. Marshall seems to have believed (probably correctly) that if Chase had been convicted, he would have been the next target. This realization contributed to Marshall's already strong tendency to appear above political controversy, and to avoid, where possible, the resolution of issues bound to plunge the Court into the political thicket.

Date: 2015-01-29; view: 1078