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4. For example, Bickel, Alexander M., The Least Dangerous Branch (Indianapolis, IN: Bobbs-Merrill, 1962)Google Scholar; Dworkin, Ronald, A Matter of Principle (Cambridge: Harvard University Press, 1985)Google Scholar.

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7. Ackerman, Bruce, We the People: Foundations (Cambridge: Harvard University Press, 1991)Google Scholar. For other “dualist” theories of American politics, see Burnham, Walter Dean, Critical Elections and the Mainsprings of American Politics (New York: Norton, 1970)Google Scholar; Huntington, Samuel P., American Politics (Cambridge: Harvard University Press, 1981)Google Scholar; Morone, James A., The Democratic Wish (New York: Basic Books, 1990)Google Scholar. For a useful corrective, see Orren, Karen and Skowronek, Stephen, “Beyond the Iconography of Order: Notes for a ‘New Institutionalism’,” in The Dynamics of American Politics, eds. Dodd, Lawrence C. and Jillson, Calvin (Boulder, CO: Westview Press, 1994), 311–30Google Scholar.

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9. United States v. Worrall, 2 U.S. (2 Dall.) 384, 392–4 (1798); Presser, 67–99; Levy, Leonard, Emergence of a Free Press (New York: Oxford University Press, 1985), 278Google Scholar; Goebel, Julius Jr, History of the Supreme Court, vol. 1 (New York: Macmillan, 1971), 623–33Google Scholar.

10. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798).

11. On Federalist activities during the period, see Miller, John C., The Federalist Era, 1789–1801 (New York: Harper & Row, 1960), 210–77Google Scholar; Smith, James Morton, Freedom's Fetters (Ithaca, NY: Cornell University Press, 1956)Google Scholar; Elkins, Stanley and McKitrick, Eric, The Age of Federalism (New York: Oxford University Press, 1993), 691–754Google Scholar.

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14. Elkins and McKitrick, 696–700; Miller, 247–48.

15. Adams later pardoned Fries from his capital sentence. The case is reported in Wharton, 458–648. See also, Trial of Samuel Chase, An Associate Justice of the Supreme Court of the United States, vol. 1 (Washington: Smith and Lloyd, 1805), 139.

16. Wharton, 697.

17. Wharton, 698–712.

18. Trial of Chase, 1:7.

19. The repeal act was subsequently upheld in Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803). On Chase's reaction to the repeal, see his letter to Marshall, in The Papers of John Marshall, ed. Hobson, Charles, vol. 6 (Chapel Hill: University of North Carolina Press, 1990)Google Scholar, 109–16; see also, Warren, 1: 271.

20. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

21. Trial of Chase, 2: vi.

22. Jefferson, Thomas, Writings of Thomas Jefferson, ed. Washington, H. A., vol. 4 (New York: John C. Riker, 1857), 486Google Scholar; Ellis, 80–81.

23. Turner, Lynn W., “The Impeachment of John Pickering,” American Historical Review 54 (04 1949): 485CrossRefGoogle Scholar; Bushnell, 43–55; Hoffer, Peter Charles and Hull, N.E.H., Impeachment in America, 1635–1805 (New Haven: Yale University Press, 1984), 206–20Google Scholar; Ellis, 69–75.

24. Plumer, William, William Plumer's Memorandum of Proceedings in the United States Senate, 1803–1807, ed. Brown, Everett S. (New York: Macmillan, 1923), 101Google Scholar (emphasis in original). Plumer later admitted that Pickering's friends should have sought his resignation; Turner, “Impeachment,” 491.

25. Turner, Kathryn, “Federalist Policy and the Judiciary Act of 1801, ”William and Mary Quarterly, 3rd series, 22 (01 1965): 9, 20CrossRefGoogle Scholar.

26. Presser, 13.

27. For example, Rehnquist, William H., GrandInquests (New York: William Morrow and Company, 1992), 15–134Google Scholar; Beveridge, Albert, The Life of John Marshall, vol. 3 (New York: Houghton Mifflin Company, 1919), 157–222Google Scholar; Brant, Irving, Impeachment (New York: Alfred A. Knopf, 1972), 58–83Google Scholar; Berger, Raoul, Impeachment (New York: Bantam, 1974), 234–62Google Scholar; Adams, Henry, History of the United States of America During the First Administration of Thomas Jefferson, vol. 2 (New York: Charles Scribner's Sons, 1921), 218–44Google Scholar; Warren, 1: 269–98. The explicitly political and multifaceted concerns of Ellis are something of an exception; Ellis, 17–107; Ellis, Richard, “The Impeachment of Samuel Chase,” in American Political Trials, ed. Belknap, Michael R. (Westport, CT: Greenwood Press, 1981), 57–78Google Scholar; Lillich, Richard B., “The Chase Impeachment,” American Journal of Legal History 4 (1960): 49CrossRefGoogle Scholar; Humphrey, Alexander, “The Impeachment of Samuel Chase,” American Law Register 33 (1899): 827Google Scholar.

28. Quoted in Ellis, “Impeachment,” 61. John Taylor was similarly warning his correspondents even before the election that they “were not entirely right in directing their efforts towards a change of men, rather than a change of principles.” Taylor, John, ”Letters of John Taylor,” John P. Branch Historical Papers of Randolph-Macon College 2 (06 1908): 269Google Scholar.

29. Adams, John Quincy, Memoirs of John Quincy Adams, ed. Adams, Charles Francis, vol. 1 (Philadelphia: J.B. Lippincott and Company, 1874), 322–23Google Scholar (emphasis in original). The Republican Philadelphia Aurora commented on the Judiciary Act, “[T]he judiciary Bill gives the nomination of 25 new Judges besides Marshall, clerks, etc. to the amount of 100 offices in all? Why are these measure pushed forward now? Is it for the public good or for Party purposes?” Quoted in Turner, “Judiciary Act,” 13 (emphasis in original). Strangely, Presser finds the limited nature of the Republican impeachments to be an indication that they were designed to create vacancies, rather than change behavior or correct principle; Presser, 12.

30. Adams, Henry, John Randolph (Greenwich, CT: Fawcett Publications, 1961), 96Google Scholar. Chief Justice Rehnquist is probably more astute in positing a causal relationship between the impeachment and the fact that judges “stopped including political harangues in their charges to grand juries.” Rehnquist, 125. See also, Lillich, 71.

31. Presser, 14.

32. Hoffer and Hull, 3–4.

33. Berger, 70.

34. U.S. Constitution. Art. I, § 2, 3; Art. II, § 4.

35. U.S. Constitution, Art. Ill, § 1.

36. On whether the Court could intervene, compare Black, Charles Jr, Impeachment (New Haven: Yale University Press, 1974), 53–63Google Scholar, with Berger, 108–26.

37. U.S. v. Nixon, 418 U.S. 683 (1974). For criticism, see Burt, Robert A., The Constitution in Conflict (Cambridge: Harvard University Press, 1992), 316–27Google Scholar.

38. U.S. Constitution, Art. I, § 3; Art. II, § 4; Art. II, § 2.

39. U.S. Constitution, Art. I, § 3; Art. II, § 4; Amend. V: Amend. VI.

40. Compare Berger, 56–107, with Hoffer and Hull, esp. 266–70.

41. Bushnell, 9–23, esp. 13; Lillich, 72.

42. Bushnell, 25–55.

43. Ellis, “Impeachment,” 70; McDonald, Forrest, The Presidency of Thomas Jefferson (Lawrence: University Press of Kansas, 1976), 89Google Scholar.

44. McDonald, 91–92; Beveridge, 3: 179–80; Trial of Chase, 1: 22.

45. Trial of Chase, 1: 15.

46. Ibid., 2: 251.

47. Ibid., 1: 14 (emphasis in original). Spelling has been modernized throughout.

48. Ibid., 1: 97.

49. Ibid., 1: 25.

50. Ibid., 1: 40, 48.

51. Ibid., I: 78–80.

52. Ibid., 1: 47, 97, 96.

53. Presser, 157.

54. Compare with Ellis, who regards Chase's reading as simply “literal”; Ellis, “Impeachment,” 72.

55. U.S. Constitution, Art. 1, § 3.

56. Jefferson, Thomas, The Writings of Thomas Jefferson, ed. Ford, Paul Leicester, vol. 7 (New York: G. P. Putnam's Sons, 1896), 474Google Scholar.

57. Annals of Congress, 7th Cong., 1st sess., 1802, 525.

58. Trial of Chase, 2: 255, 134. Martin also made explicit that removal from office was a punishment; Ibid., 2: 140.

59. Quoted in Turner, “Impeachment,” 494 (emphasis in original).

60. Trial of Chase, 2: 141.

61. Ibid., 2: 257.

62. Ibid., 2: 13, 11, 14.

63. Ibid., 2: 12–13, 134–40, 144–46, 257–62. On state precedents, compare 2: 145–46 with 2: 259–62.

64. Ibid., 2: 263–64.

65. Ibid., 2: 12, 138–39, 145.

66. Ibid., 2: 14, 20, 327.

67. Quoted in Ellis, “Impeachment,” 61.

68. William Plumer, quoted in Ellis, “Impeachment,” 63 (emphasis in original). See also, Cunningham, Noble E. Jr, The Jeffersonian Republicans in Power (Chapel Hill: University of North Carolina Press, 1963), 80–81Google Scholar.

69. Quoted in Adams, Memoirs, 1: 322.

70. Quoted in Warren, 1: 230.

71. Annals of Congress, 7th Cong., 1st sess., 1802, 658.

72. Madison, James, The Papers of James Madison, eds.Hobson, Charles and Rutland, Robert, vol. 12 (Charlottesville: University Press of Virginia, 1979), 235, 238Google Scholar.

73. Quoted in Hoffer and Hull, 119.

74. Quoted in Brant, 43.

75. Quoted in Ellis, Jeffersonian Crisis, 102.

76. Quoted in Adams, Memoirs, 1: 322, 323.

77. Adams, Randolph, 95, 96, 97.

78. Plumer, Memorandum, 280 (emphasis added). Adams wrote that Randolph's speech must be analyzed “from the point of view which lawyers must take,” without seriously asking whether that was either the appropriate point of view or Randolph's; Adams, Randolph, 100.

79. Trial of Chase, 1: 124.

80. Ibid., 1: 352, 350, 370.

81. Ibid., 1: 367–68.

82. Ibid., 1: 352–53; 370.

83. Annals of Congress, 7th Cong., 1st sess., 1802, 532, 556; Taylor, 286.

84. Trial of Chase, 2: 335.

85. Ibid., 2: 338, 342. See also, Ibid., 2: 383, 399–400.

86. Ibid., 2: 336. See also, Ibid., 2: 378.

87. Ibid., 2: 339–40, 336–37, 342. See also, Ibid., 2: 385–86. The recent Pennsylvania impeachment of Alexander Addison provided useful encouragement for removing a judge for bad behavior, even absent criminal intent or the violation of criminal law. The example was particularly compelling because Pennsylvania had the option of removal by address, which did not require any imputation of “high crimes and misdemeanors,” but chose to remove Addison by impeachment instead. Ibid., 2: 397; Hoffer and Hull, 198–99, 204.

88. Ibid., 2: 339, 336, 337, 342.

89. Ibid., 2: 453 (emphasis in original).

90. Ibid., 2: 372–73, 388, 389, 391, 403. See also, Hoffer and Hull, 234.

91. Ibid., 2: 386, 402.

92. Lillich, 55.

93. Ellis, 101–2; Warren, 1: 294–95. The votes are tabulated in Trial of Chase, 2: 493.

94. The Sedition Act specified that the relevant state law should be used in certain procedural matters.

95. For example, Adams, History, 2: 224–25; Ellis, “Impeachment,” 67. The Federalist interpretation of Articles Five and Six was that the Republicans hoped to convict Chase on grounds that could be equally applied to the remainder of the federal bench.

96. At several points, the managers themselves disavowed this construction. Trial of Chase, 1: 367–68; 2: 342, 399–400.

97. Ibid., 2: 366, 446, 456, 335.

98. Ibid., 2: 255, 326–29.

99. Bushnell, 7, 19; Hoffer and Hull, 254–55.

100. The next impeachment, of Judge James Peck in 1830, saw a renewed defense of the indictable crime standard by one of Peck's defenders, but Peck's impeachment depended on a single charge of a wrongfully imposed contempt citation of dubious factual merit. Bushnell, 91–113; cf. Brant, 128–29.

101. Esp. Ellis, Jeffersonian Crisis; Ibid., “Impeachment”; Presser.

102. For example, Lillich, 71; Adams, Randolph, 96; Hoffer and Hull, 254.

103. Consider the recent furor over Justice Thurgood Marshall's relatively obvious public comments that he politically disagreed with the Reagan administration.

104. Ellis, Jeffersonian Crisis, 12–14; Malone, Dumas, Jefferson the President: First Term, 1801–1805 (Boston: Little, Brown and Company, 1970), 114–15Google Scholar.

105. Marshall, Papers, 6: 46–47, 89; Boyd, Julian P., “The Chasm that Separated Thomas Jefferson and John Marshall,” in Essays on the American Constitution, ed. Dietze, Gottfried (Englewood Cliffs, NJ: Prentice-Hall, 1964), 3–20Google Scholar.

106. See generally, Hofstadter, Richard, The Idea of a Party System (Berkeley: University of California Press, 1969), esp. 74–169Google Scholar.

107. For a sympathetic reading of the Judiciary Act, see Turner, “Judiciary Act”; for the Sedition Act, see Presser, 119–21.

108. Quoted in Turner, “Judiciary Act,” 9, 13, 18, 19, 20.

109. Quoted in Warren, 1: 192–93.

110. Elkins and McKitrick, 691–754; Miller, 210–77; Smith; Levy, 220–308.

111. Quoted in Levy, 300 (emphasis in original).

112. Annals of Congress, 5th Cong., 2nd sess., 1798, 2093, 2115–16.

113. Levy, 299–301.

114. Turner, “Impeachment,” 489–90.

115. Quoted in Smith, 384.

116. Quoted in Presser, 11.

117. Smith, 342–43, 355. On the organized and systematic nature of the preelection sedition prosecutions, controlled from Secretary of State Timothy Pickering's office, see Ibid., 186–87.

118. Ellis, Jeffersonian Crisis, 44, 66; Warren, 1: 264.

119. Quoted in Warren, 1: 166; see the various charges lecturing on such topics as the Jay Treaty, the French Revolution, and the Republican party collected in Ibid., 1: 166n2; see also, Lerner, Ralph, “The Supreme Court as Republican Schoolmaster,” in The Supreme Court Review, 1967, ed. Kurland, Philip B. (Chicago: University of Chicago Press, 1968), 129–55Google Scholar. On sedition prosecutions, see Smith, 369; Warren, 1: 195. On electioneering by judges, see Warren, 1: 273–74.

120. Quoted in Warren, 1: 193. A Republican paper noted in 1803 that “The Federal Judges were partial, vindictive, and cruel. … They obeyed the President rather than the law, and made their reason subservient to their passion.” Warren, 1: 191.

121. Jefferson, Writings, ed. Ford, 7: 447; Ibid., Writings, ed. Washington, 4: 424–25. See also, Ibid., 4: 370; Boyd.

122. Jefferson, Writings, ed. Washington, 4: 386; Malone, 144; Jefferson, Writings, ed. Ford, 8: 25. See also, Cunningham, 14–15, 60–62.

123. Annals of Congress, 7th Cong., 1st sess., 1802, 804, 583, 658; see also, 581, 597–98, 659.

124. Levy, 304—46; Smith, 426; Banning, Lance, The Jeffersonian Persuasion (Ithaca, NY: Cornell University Press, 1978), 256–61, 275–78Google Scholar; Koch, Adrienne and Ammon, Harry, “The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties,” William and Mary Quarterly 3rd series, 5 (1948): 147CrossRefGoogle Scholar; Smith, James Morton, “The Grass Roots Origins of the Kentucky Resolutions,” William and Mary Quarterly 3rd series, 27 (04 1970): 221CrossRefGoogle Scholar. Although Jefferson later tolerated, and even encouraged, isolated state sedition prosecutions, the Republican prosecutions did not result in the systematic persecution of the Federalists, and Jefferson, unlike the Federalists, took pains to distance himself from any prosecutions; Jefferson, Writings, ed. Ford, 9: 30–31, 253; 8: 139, 217–18; 448; Ibid., Writings, ed. Washington, 4: 485; Levy, 341, 344–46.

125. Annals of Congress, 5th Cong., 2nd sess., 1798, 2009, 2140, 2144; Ibid., 5th Cong., 3rd sess., 1799, 2996, 3000–1, 3006, 3010; Ibid., 7th Cong., 1st sess., 1802, 584.

126. Annals of Congress, 5th Cong., 2nd sess., 1798, 2148–50, 2163–64. Notably, John Marshall ran for Congress as a Federalist, but in explicit opposition to the Sedition Act, even as Justice Chase praised and utilized its terms, indicating both the direction of the successful construction and Marshall's relative safety from future impeachments; Elkins and McKitrick, 729.

127. Levy, 211; Hoffer and Hull, 192–95, 204.

128. Quoted in Ellis, Jeffersonian Crisis, 81.

129. Trial of Chase, 1: 6–9.

130. Ibid., 1: 193, 194.

131. Ibid., 1: 209.

132. Ibid., 1: 347–48, 354, 385–86.

133. Ibid., 2: 363–64, 375–76, 398–99, 449, 446–47; Jefferson, Writings, ed. Ford, 8: 25.

134. Trial of Chase, 2: 141, 144–46, 158, 262–64.

135. Ibid., 1: 97–101; Ibid., 2: 213, 326, 328–29.

136. Cocke quoted in Ellis, “Impeachment,” 72; Clinton quoted in Ibid., 73.

137. Ellis, Jeffersonian Crisis, 105.

138. Cf. Presser, 178—79; Ellis, “Impeachment,” 73. Randolph repeatedly expressed his admiration for Marshall; Bruce, William Cabell, John Randolph of Roanoke vol. 1 (New York: G. P. Putnam's Sons, 1922), 201Google Scholar.

139. Ellis, Jeffersonian Crisis, 238. The federal government did not reenact the sedition law until the wartime measure during World War I and the subsequent Cold War Smith Act; Smith, 432.

140. U.S. Constitution, Amend. V, VI, VII.

141. Damaska, Mirhan R., The Faces of Justice and State Authority (New Haven: Yale University Press, 1986), 16–71, 214–39Google Scholar; Green, Thomas Andrew, Verdict According to Conscience (Chicago: University of Chicago Press, 1985), 105–99CrossRefGoogle Scholar; Turner, “Judiciary Act”; Warren, 1: 209–22; Haskins, George Lee and Johnson, Herbert A., History of the Supreme Court of the United States vol. 2 (New York: Macmillan, 1981), 107–35, 163–81Google Scholar.

142. Presser, 11–12, 47–54; Wharton, 670–72. The British common law gave judges extensive powers to instruct juries and comment on facts as well as the law, and many state constitutions explicitly defined rights to a fair trial in accordance with the common law. The states only gradually modified this particular British inheritance. Nonetheless, American colonial judges generally assumed a more limited role and state practice varied. Krasity, Kenneth A., “The Role of the Judges in Jury Trials: The Elimination of Judicial Evaluation of Fact in American State Courts from 1795 to 1913,” University of Detroit Law Review 62 (1985): 595–98, 606—7Google Scholar; Howe, Mark DeWolfe, “Juries as Judges of Criminal Law,” Harvard Law Review 52 (1939): 591–95CrossRefGoogle Scholar; Stimson, Shannon C., The American Revolution in the Law (Princeton: Princeton University Press, 1990)Google Scholar, passim.

143. Respublica v. Oswald, 1 Dallas 318, 325, 326, 329, 329b (Pa. 1788). The legislature declined to impeach for lack of evidence; Ibid., 329g. One of the complaints leading to the Addison impeachment was the judge's rejection of the Pennsylvanian consensus that the jury determined both law and fact; Howe, 595.

144. Annals of Congress, 5th Cong., 2nd sess., 1798, 2150. See also, Lerner; Smith, 420; Elkins and McKitrick, 713.

145. Goebel, 635–36, 646; Levy, 128, 212, 285; Green, 318–55.

146. Wharton, 628, 630. Peters intervened to suggest that the prosecutor simply summarize the facts of the case.

147. Wharton, 698, 708; quoted in Presser, 112. See also, Trial of Chase, 1: 68.

148. Wharton, 710–17, 635, 674, 676, 677; see also, Presser, 50–53, 103, 111–13, 135–36; Trial of Chase, 1: 44, 2: 51–52.

149. Trial of Chase, 1: 33, 34–35, 2: 166.

150. Ibid., 2: 38, 44, 159.

151. Ibid., 2: 157–58, 19–20, 246–47. See also, Ames, Fisher, Works of Fisher Ames, ed. Allen, W. B., vol. 1 (Indianapolis, IN: Liberty Fund, 1983), 317Google Scholar.

152. Ibid., 2: 46, 50, 150–51, 167, 170, 200–1, 246–47, 272–74.

153. Ibid., 2: 355, 413–17.

154. Ibid., 2: 363–64, 471–72, 1: 114; Cooper, 66, 59.

155. Trial of Chase, 1: 109–10, 112, 141; Ibid., 2: 322–23, 327–28, 332, 381 (emphasis in original).

156. Presser, 109–11, 64–65, 105, 107.

157. Presser, 171–89; Ellis, Jeffersonian Crisis, 233–84. On the extent to which this construction continued and developed along a different path than it might have, see Wright, Curtis, “Instructions to the Jury: Summary without Comment,” Washington University Law Quarterly 1954 (1954): 177Google Scholar; Ibid., “The Invasion of Jury: Temperature of the War,” Temple Law Quarterly 27 (Fall 1953): 137; Damaska, 44–46, 232–34; Krasity, 595; “Note: The Changing Role of the Jury in the Nineteenth Century,” Yale Law Journal 74 (1964): 170. On the different construction occurring in civil cases, especially in the states, see Horwitz, Morton, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977), 28–29Google Scholar, 84–85, 141–43, 228. In the federal courts, judges occasionally told juries that they had the right to determine both law and facts, but the practice declined rapidly especially after a strong denunciation of it by Story in 1835. In the late nineteenth century, the Court ultimately made explicit the moderate construction that emerged after Chase, ruling that juries were to determine the law only in applying it to the facts. Sparf v. U.S., 156 U.S. 51 (1895); Howe, 589.

158. Chase, in Marshall, 6: 111, 112 (emphasis in original).

159. Trial of Chase, 2: vi, viii.

160. Turner, “Judiciary Act,” 18, 19, 16 (emphasis in original); Ames, 1: 284.

161. Warren, 1: 210; Annals, 7th Cong., 1st sess., 1802, 529; Ames, 1: 126.

162. Trial of Chase, 1: 44, 2: 19–20, 46, 51–52, 156–59, 166.

163. John Quincy Adams, Memoirs, 1: 322 (emphasis in original).

164. Quoted in Warren, 1: 216; Annals, 7th Cong., 1st sess., 1802, 585, see also, 531–32, 562, 583–93, 658, 661.

165. Taylor, “Letters,” 275, 285—87; Pendleton, Edmund, Letters and Papers of Edmund Pendleton, ed. Mays, David John, vol. 2 (Charlottesville: University Press of Virginia, 1967), 698Google Scholar.

166. Jefferson, Writings, ed. Ford, 10: 141; see also, Ibid., 7: 474; Ibid., Writings, ed. Washington, 4: 386, 425; Plumer, William, Life of William Plumer, ed. Peabody, A. P. (New York: Da Capo Press, 1969), 253Google Scholar.

167. Quoted in Warren, 1: 292.

168. U.S. Constitution, Art. II, § 2, 4.

169. Jefferson, Writings, ed. Ford, 8: 25; Ibid., Writings, ed. Washington, 4: 485, 386 (emphasis in original).

170. Trial of Chase, 2: 371–73, 410, 471; Ellis, “Impeachment,” 61; Ibid., Jeffersonian Crisis, 26, 41, 52, 65.

171. Warren, 1: 119, 167, 178, 200–1, 275.

172. Quoted in Warren, 1: 167; see also, Ibid., 1: 167n1.

173. Ellis, “Impeachment,” 64; Trial of Chase, 2: 339, 371, 410; Annals, 7th Cong., 1st sess., 1802, 583.

174. Levy, 275–78; Goebel, 623–33; Presser, 95–97; Annals, 5th Cong., 2nd sess., 1798, 2146–47; Ibid., 3rd sess., 1799, 2989.

175. Trial of Chase, 1: 44, 2: 41–43, 46, 50–52, 153, 156–59, 166–67, 272–74.

176. Pendleton, 2: 699; Jefferson, Writings, ed. Ford, 8: 57; Levy, 304–5, 311, 316; Annals, 5th Cong., 2nd sess., 1798, 2141–42, 2157; Ibid., 3rd sess., 1799, 2999, 3012; Ibid., 7th Cong., 1st sess., 1802, 554. The managers' concern over Chase's attitude toward the place of juries in criminal trials reflected these considerations. The Republicans argued that the law was always at least partially open and could never be decisively determined by precedent. Given that conception of law, Chase's attempts to constrain the jury's consideration of all available arguments over the meaning of the law and his specific directions as to the law's meaning only served to remove the popular role from lawmaking and transfer final legislative authority to the judge. Judicial independence could only be maintained if the judicial power was limited. Recognition of a federal common law of crimes would vastly expand the role of the federal judiciary, which would therefore require closer responsibility to the people. The Republicans were willing to recognize relative judicial independence, but only within the context of a judiciary separated from the lawmaking function.

177. Trial of Chase, 2: 493.

178. Ellis, Jeffersonian Crisis, 106–7; Bruce, 1: 201.

179. Justice Jackson's involvement in the Nuremberg prosecutions is the most notable example. The separation has not been complete, however. A number of justices have maintained informal political contact with the president, although usually limited and only with the individuals who appointed them.

180. U.S. v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 (1812).