[Hinds' Precedents, Volume 3]
[Chapter 71 - The Impeachment and Trial of John Pickering]
[From the U.S. Government Publishing Office, www.gpo.gov]
THE IMPEACHMENT AND TRIAL OF JOHN PICKERING.
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1. Preliminary inquiry and action by House. Section 2319.
2. Presentation of impeachment at bar of Senate. Section 2320.
3. The articles and their presentation. Sections 2321-2328.
4. The summons and return. Sections 2329-2330.
5. Rules and organization of Senate. Section 2331.
6. The calling of respondent and presentation of his petition.
Sections 2332, 2333.
7. Hearing on a preliminary question. Section 2334.
8. Presentation of testimony. Sections 2335-2336.
9. Judgment pronounced. Sections 2337-2341.
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2319. The impeachment and trial of John Pickering, judge of the
United States district court for New Hampshire, in 1803.
The impeachment proceedings against Judge Pickering were set in
motion by a message from the President.
The committee recommended and the House voted the impeachment of
Judge Pickering on the strength of certain ex parte affidavits.
The House decided to proceed in the Pickering impeachment, although
the session and the Congress neared an end.
The Pickering impeachment was carried to the Senate by a committee of
two.
Forms of resolutions for impeachment of Judge Pickering and directing
the carrying of the same to the Senate.
On February 4, 1803,\1\ a message was received from the President of
the United States transmitting a ``letter and affidavits exhibiting
matter of complaint against John Pickering, district judge of New
Hampshire, which is not within executive cognizance.''
The message was read, and with the accompanying papers, was referred
to a committee composed of Messrs. Joseph H. Nicholson, of Maryland;
James A. Bayard, of Delaware; John Randolph, jr., of Virginia; Samuel
Tenney, of New Hampshire, and Lucas Elmendorf, of New York.
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\1\ Second session Seventh Congress, Journal, p. 322; Annals, p. 460.
Sec. 2320
Accompanying the message were the following documents: (1) A letter
from Albert Gallatin, Secretary of the Treasury, to the President,
stating that it appeared that Judge Pickering, in a suit wherein the
revenue was concerned, had ``acted in a manner which showed a total
unfitness for the office,'' and which showed ``some legislative
interference absolutely necessary;'' (2) a letter from John S.
Sherburne, United States district attorney for New Hampshire, to the
Secretary of the Treasury, transmitting affidavits and making a
statement as to the conduct of the judge; (3) affidavits of Thomas
Chadbourne, Jonathan Steele, Daniel Humphrey, John Wentworth, Joseph
Whipple, and R. C. Shannon setting forth specific acts of said judge.
These affidavits were taken ex parte.\1\
On February 18 \2\ Mr. Nicholson submitted the report of the
committee:
That from the face of the said depositions it appears that the said
John Pickering has been guilty of high misdemeanor in the exercise of
his judicial functions, and recommend the adoption of the following
resolution:
``Resolved, That John Pickering, judge of the district court of the
district of New Hampshier, be impeached of high crimes and
misdemeanors.''
On March 2 \3\ the report was considered by the Committee of the
Whole, who recommended concurrence in the report, after a debate which
is very briefly reported and during which the principal question seems
to have been the advisability of proceeding in the case at so late a
period in the session. A proposition to postpone the resolution to the
next session was disagreed to, ayes 9, noes 43.
The House agreed to the resolution, yeas 45, nays 8.
Thereupon it was
Ordered, That Mr. Nicholson and Mr. Randolph be appointed a committee
to go to the Senate, and, at the bar thereof, in the name of the House
of Representatives and of all the people of the United States, to
impeach Judge Pickering, judge of the district court of the district of
New Hampshire, of high crimes and misdemeanors; and to acquaint the
Senate that the House of Representatives will, in due time, exhibit
particular articles of impeachment against him and make good the same.
Ordered, That the committee do demand that the Senate take order for
the appearance of the said John Pickering to answer to the said
impeachment.
2320. Pickering's impeachment, continued.
Ceremonies of presenting the Pickering impeachment at the bar of the
Senate.
Form of declaration by House committee in presenting the impeachment
of Judge Pickering in the Senate.
Verbal report made by the House committee on returning from
presenting in the Senate the impeachment of Judge Pickering.
Proceedings and resolutions adopted by the Senate in taking order on
the presentation of the Pickering impeachment.
The impeachment of Judge Pickering was presented in the Senate on the
last day of the Seventh Congress.
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\1\ These documents were published with the report of the committee.
Copies are rare, but may be found in the Library of Congress.
\2\ Second session Seventh Congress, House Report, p. 252; Journal,
p. 351; Annals, p. 544.
\3\ Journal of House, pp. 383, 384; Annals, p. 642.
Sec. 2321
On March 3,\1\ in the Senate, a message was received from the House
of Representatives by Mr. Nicholson and Mr. Randolph, as follows:
Mr. President, we are commanded, in the name of the House of
Representatives and of all the people of the United States, to impeach
John Pickering, judge of the district court of the district of New
Hampshire, of high crimes and misdemeanors; and to acquaint the Senate
that the House of Representatives will, in due time, exhibit particular
articles of impeachment against him and make good the same.
We are further commanded to demand that the Senate take order for the
appearance of the said John Pickering to answer to the said
impeachment.
Then they withdrew.
On the same day, in the House,\2\ Mr. Nicholson reported verbally:
That, in obedience to the order of the House, the committee had been
to the Senate, and, in the name of the House of Representatives and of
all the people of the United States, had impeached John Pickering,
judge of the district court of the district of New Hampshire, of high
crimes and misdemeanors; and had acquainted the Senate that the House
of Representatives will, in due time, exhibit particular articles
against him and make good the same.
And, further, that the committee had demanded that the Senate take
order for the appearance of the said John Pickering to answer to the
said impeachment.
On the same day, in the Senate,\3\
Ordered, That the message received this day from the House of
Representatives respecting the impeachment of John Pickering, judge of
a district court, be referred to Messrs. Tracy [Uriah, of Connecticut],
Clinton [De Witt, of New York], and Nicholas [Wilson C., of Virginia].
Later on this day Mr. Tracy reported from the committee the following
resolution and preamble, which were agreed to by the Senate:
Whereas the House of Representatives have this day, by two of their
Members, Messrs. Nicholson and Randolph, at the bar of the Senate,
impeached John Pickering, judge of the district court for the district
of New Hampshire, of high crimes and misdemeanors; and have acquainted
the Senate that the House of Representatives will, in due time, exhibit
particular articles of impeachment against him and make good the same,
And have likewise demanded that the Senate take order for the
appearance of the said John Pickering to answer to the said
impeachment: Therefore,
Resolved, That the Senate will take proper order thereon, of which
due notice shall be given the House of Representatives.
Resolved, That the Secretary of the Senate notify the House of
Representatives of this resolution.
On the same day a message announcing this resolution was received in
the House.\4\
And later on the same day, March 3, 1803, both House and Senate
adjourned sine die, the term of the Seventh Congress having expired.
2321. Pickering's impeachment, continued.
At the beginning of the Eighth Congress the House continued the
Pickering impeachment by appointing a committee to prepare articles.
The Eighth Congress met in its first session on October 17, 1803, it
being the day appointed by law. The proceedings against Judge Pickering
were continued from the point where they had been interrupted by the
expiration of the Seventh Congress.
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\1\ Senate Journal, p. 284; Annals, p. 267.
\2\ House Journal, p. 387.
\3\ Senate Journal, p. 285; Annals, p. 268.
\4\ House Journal, p. 392.
Sec. 2322
On October 20,\1\ in the House, Mr. Nicholson stated that during the
last session the House had voted an impeachment against John Pickering,
judge of the district court for New Hampshire, for high crimes and
misdemeanors. But the impeachment had been voted at so late a period of
the session as rendered it impossible to act then finally upon it. In
order that it might be now acted upon, and the impeachment proceed, he
moved the adoption of the following:
Resolved, That a committee be appointed to prepare and report
articles of impeachment against John Pickering, district judge of the
district of New Hampshire, who was impeached by this House during the
last session of high crimes and misdemeanors; and that the said
committee have power to send for persons, papers, and records.
The committee were appointed as follows: Messrs. Nicholson, John
Randolph, jr., Roger Griswold, of Connecticut; Peter Early, of Georgia,
and Samuel Thatcher, of Massachusetts.
2322. Pickering's impeachment, continued.
The Senate declined to order compulsory process to compel the
appearance of Judge Pickering, but authorized a committee to examine
the subject.
On October 27,\2\ in the Senate, the following resolution was
proposed, but was laid on the table:
Resolved, That a committee be appointed to prepare the process to
compel the attendance of John Pickering to answer the charge exhibited
against him by the House of Representatives at their last session.
On November 14 \3\ the Senate resumed consideration of the resolution
above given and, having amended it, agreed to it as follows:
Resolved, That a committee be appointed to inquire if any, and what,
further proceedings at present ought to be had by the Senate respecting
the impeachment of John Pickering, made at the bar of this Senate by
two Members of the House of Representatives on the last day of the last
session of Congress.
The following committee were appointed: Uriah Tracy, of Connecticut;
Stephen R. Bradley, of Vermont; Abraham Baldwin, of Georgia; Robert
Wright, of Maryland, and William Cocke, of Tennessee.
2323. Pickering's impeachment, continued.
The House considered the articles of impeachment of Judge Pickering
in Committee of the Whole House.
The articles of impeachment of Judge Pickering were enrolled after
they were agreed to by the House.
In the Pickering impeachment the House decided that the managers
should not be appointed by the Speaker or by viva voce vote, but by
ballot.
The House having excused a Member elected manager in the Pickering
case, another was chosen by ballot.
Form of resolution directing the carrying of the articles of
impeachment of Judge Pickering to the Senate.
Form of resolution directing that the Senate be informed of the
appointment of managers and that they will carry articles to the
Senate.
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\1\ First session Eighth Congress, House Journal, p. 411; Annals, p.
380.
\2\ Senate Journal, p. 303; Annals, p. 27.
\3\ Senate Journal, p. 310; Annals, p. 75.
Sec. 2323
It does not appear that the message announcing the appointment of
managers of the Pickering impeachment included their names.
On December 27 \1\ Mr. Nicholson, from the committee appointed to
prepare articles of impeachment, presented them to the House; and
having been read, the same were referred to a Committee of the Whole
House.
On December 30 \2\ the articles were considered in Committee of the
Whole and, being reported therefrom without amendment, were agreed to
by the House. They appear in full in the Journal. During the
proceedings \3\ on the articles Mr. Samuel Tenney, of New Hampshire,
called for the reading of several depositions to show that Judge
Pickering had sustained a respectable character and that his recent
conduct had arisen from insanity. In reply Mr. Nicholson said that the
House had determined that they would impeach, and it was therefore the
present duty to furnish the Senate with the articles. Mr. Nicholson
further said that he was informed from respectable sources that Judge
Pickering was habitually intoxicated. The articles were agreed to
without division.
On motion of Mr. Nicholson, according to the Annals,\4\ the articles
were ordered to be enrolled, in correspondence with the practice of the
House. The Journal does not mention this.
It was then ordered that eleven managers be appointed on the part of
the House. A discussion arose as to the manner of selection. A motion
that they be appointed by the Speaker was decided in the negative. Then
it was decided that they be appointed by ballot, although several
Members, notably Mr. Nicholson, urged that they should be elected by
viva voce vote.
It does not appear that a special rule was made to govern the
balloting, which was presumably conducted under the then existing rule
of the House.
The following were chosen managers: Messrs. Nicholson, Early, Caesar
A. Rodney, of Delaware; William Eustis, of Massachusetts; John
Randolph, jr., of Virginia; Roger Griswold, of Connecticut; Samuel L.
Mitchill, of New York; George W. Campbell, of Tennessee; William
Blackledge, of North Carolina; John Boyle, of Kentucky, and Joseph
Clay, of Pennsylvania.
On motion,
Ordered, That Mr. Roger Griswold be excused from serving as one of
the managers appointed to conduct the said impeachment; and that the
House do now proceed, by ballot, to the appointment of another manager
to serve in his stead.
Thereupon Mr. Thomas Newton, jr., of Virginia, was chosen.
On January 3, 1804,\5\ it was
Resolved, That the articles agreed to by this House, to be exhibited
in the name of themselves, and of all the people of the United States,
against John Pickering, in maintenance of their impeachment against him
for high crimes and misdemeanors, be carried to the Senate by the
managers appointed to conduct the said impeachment.
Ordered, That a message be sent to the Senate, to inform them that
this House have appointed managers, on their part, to conduct the
impeachment against John Pickering, and have directed the
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\1\ House Journal, p. 503.
\2\ House Journal, p. 507.
\3\ Annals, pp. 794, 795.
\4\ Annals, p. 795.
\5\ House Journal, pp. 511, 512; Annals, p. 797.
Sec. 2324
said managers to carry to the Senate the articles agreed upon by the
House, to be exhibited in maintenance of their impeachment against the
said John Pickering; and that the Clerk of this House do go with the
said message.
On the same day in the Senate: \1\
A message from the House of Representatives informed the Senate that
the House have appointed managers, on their part, to conduct the
impeachment against John Pickering, judge of the district court of the
United States for the district of New Hampshire, and have also directed
the said managers to carry to the Senate the articles agreed upon by
the House of Representatives to be exhibited against the said John
Pickering.
It does not appear that the message announced the names of the
managers.
2324. Pickering's impeachment, continued.
The Senate decided, in the Pickering case, that it would take order
for respondent's appearance only after articles had been exhibited.
The Senate committee concluded, in the Pickering case, that there was
no impeachment before the Senate until articles were exhibited.
It was concluded by a Senate committee in Pickering's impeachment
that the Senate had no power to take into custody the body of the
accused.
A notification to the accused with a copy of the articles was deemed,
in the Pickering impeachment, all the process necessary.
A Senate committee concluded, in the Pickering impeachment, that
respondent might answer in person, by attorney, or not at all.
In the Pickering case the Senate committee concluded that after
service of notice of the articles, the Senate might proceed to trial
whether respondent entered appearance or not.
The Senate committee advised, in Pickering's case, that the Senate
had the sole power to regulate forms, substances, and proceedings when
acting as a court of impeachment.
On the same day in the Senate, after the receipt of the above
message, a report submitted by Mr. Tracy, from the committee appointed
to inquire as to further proceedings, was submitted as follows: \2\
That they find the following facts, which have an immediate relation
to the subject committed to them, viz: ``On the last day of the last
session of Congress two Members of the House of Representatives came to
the Senate, and in the name of the House, and of all the people of the
United States, verbally impeached John Pickering, district judge of the
district of New Hampshire, of high crimes and misdemeanors, without any
specification; and likewise, they verbally acquainted the Senate that
the said House of Representatives would in due time exhibit particular
articles of impeachment against him, the said Pickering, and make good
the same. And they verbally demanded that the Senate should take order
for the appearance of the said John Pickering, to answer to the said
impeachments;'' and that said verbal declaration of impeachment was
committed by the Senate to a select committee, who reported thereon, in
the following words, viz: ``Resolved, That the Senate will take proper
order thereon (that is, of the verbal impeachment aforesaid), of which
due notice shall be given to the House of Representatives,'' of which
resolution, the Secretary of the Senate gave information to the House
of Representatives.
With these facts in view, your committee have attended to the
constitutional powers vested in the Senate as a court of impeachment,
and they find that ``judgment in case of impeachment shall not extend
further than to removal from office, and disqualification to hold and
enjoy any office of honor, trust, or profit under the United States;''
and that ``the party convicted shall nevertheless be liable and subject
to indictment, trial, judgment, and punishment, according to law.''
Hence your committee
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\1\ Senate Journal, p. 332.
\2\ Senate Journal, p. 332; 1 Annals, p. 224.
Sec. 2325
suppose that no power is constitutionally vested in the Senate to take
into custody, or hold the body of the person impeached for trial; but
that a notification to the party of the impeachment, with a copy of the
articles exhibited, is all the process requisite in the case; and that
it is optional with the party to appear in propria persona, by
attorney, or not at all; and that after the notice given as aforesaid,
it is competent for the Senate to proceed to a trial and judgment on
said impeachment, whether the party shall appear by himself, his
attorney, or not at all. And although your committee would not in the
smallest degree interfere with the House of Representatives, in the
manner of instituting the process of impeachment, since the sole right
of impeaching is vested by the Constitution in that House, yet they
believe the Senate, in common with other courts, have the sole power,
while acting as a court of impeachment, to regulate all forms as well
as substance of impeachments which shall be presented to them, and all
proceedings to be had thereon. They therefore are of opinion that at
present no further proceeding ought to be had by the Senate respecting
the verbal impeachment of John Pickering, made at the bar of the Senate
by two Members of the House of Representatives, on the last day of the
last session of Congress; and that in strict and proper construction of
the Constitution, there is no impeachment before the Senate, until
exhibited to them by the House of Representatives, in written articles.
On a full view of the subject, the committee respectfully submit for
the consideration and adoption of the Senate the following resolution,
viz:
``Resolved, That the Senate can not with propriety take any order
upon the verbal notification to them by the House of Representatives,
on the last day of the last session of Congress, that they did impeach
John Pickering of high crimes and misdemeanors. And that all
proceedings thereon by the Senate must be deferred until written
articles shall, in due form, be presented by said House of
Representatives.''
It does not appear that the above resolution was formally agreed to
by the Senate.
2325. Pickering's impeachment, continued.
Rule of the Senate prescribing forms and ceremonies for receiving
managers in presenting articles of impeachment against Judge Pickering.
The Senate organized as a court before receiving the articles in the
Pickering case.
The oath administered by the Secretary to the President and by him to
the Senators in the Pickering impeachment.
The Senate set a day and hour for receiving the managers to exhibit
articles impeaching Judge Pickering, and informed the House thereof.
The Senate appointed a committee to search the Journals for
precedents for the Pickering impeachment.
The same committee further reported the following resolution:
Resolved, That, at 12 o'clock tomorrow, the Senate will resolve
itself into a court of impeachment, at which time the following oath or
affirmation shall be administered by the Secretary to the President of
the Senate, and, by him, to each member of the Senate, viz: ``I, ------
, solemnly swear (or affirm, as the case may be), that, in all things
appertaining to the trial of the impeachment of John Pickering, judge
of the district court of the district of New Hampshire, I will do
impartial justice, according to law;'' which court of impeachments,
being thus formed, will, at the time aforesaid, receive the managers
appointed by the House of Representatives to exhibit articles of
impeachment, in the name of themselves and of all the people of the
United States, against John Pickering, judge of the district court for
the district of New Hampshire, pursuant to notice given to the Senate
this day by the House of Representatives, that they had appointed
managers for the purposes aforesaid.
Ordered, That the Secretary lay this resolution before the House of
Representatives.
It was further
Ordered, That a committee be appointed to search the Journals and
report precedents in cases of impeachments; and that Messrs. Tracy,
Bradley, Baldwin, Wright, and Cocke, to whom it was referred on the
14th of November last, to consider and report, if any, what further
proceedings ought to be had by the Senate, respecting the impeachment
of John Pickering, by this committee.
Sec. 2326
On January 4,\1\ in the House, the following message was received
from the Senate:
Mr. Speaker: I am directed to inform this House that the Senate will,
at 12 o'clock this day, be ready to receive articles of impeachment
against John Pickering, judge of the district court of the United
States for the district of New Hampshire, to be presented by the
managers appointed by this House.
2326. Pickering's impeachment continued.
The Senate prescribed by rule the ceremonies for receiving the House
managers to present articles of impeachment against Judge Pickering.
Form of proclamation made by the Sergeant-at-Arms, under direction of
the President, when the managers presented articles in the Pickering
impeachment.
Articles of impeachment being exhibited against Judge Pickering, the
President of the Senate was directed by rule to state that order would
be taken and the House would be notified.
On January 4,\2\ in the Senate, before it resolved itself into a
court of impeachment, Mr. Tracy, from the committee appointed to
examine precedents, reported the following:
Resolved, That, after the managers of the impeachment shall be
introduced to the bar of the Senate, and shall have signified that they
are ready to exhibit articles of impeachment against John Pickering,
the President of the Senate shall direct the Sergeant-at-Arms to make
proclamation; who shall, after making proclamation, repeat the
following words: ``All persons are commanded to keep silence, on pain
of imprisonment, while the grand inquest of the nation is exhibiting to
the Senate of the United States, sitting as a court of impeachment,
articles of impeachment against John Pickering, judge of the district
court for the district of New Hampshire.''
After which the articles shall be exhibited; and then the President
of the Senate shall inform the managers that the Senate will take
proper order on the subject of the impeachment, of which due notice
shall be given to the House of Representatives.
The resolution was agreed to.
2327. Pickering's impeachment continued.
In the Pickering trial a Senator, who as a Member of the House had
voted for impeachment, was challenged, but voted.
Thereupon Mr. John Quincy Adams, of Massachusetts, offered the
following:
Resolved, That any Senator of the United States, having previously
acted and voted as a Member of the House of Representatives, on a
question of impeachment, is thereby disqualified to sit and act, in the
same case, as a member of the Senate, sitting as a court of
impeachment.
It was agreed that this motion should lie for consideration.
An appendix to the records of the court of impeachment has the
following: \3\
Early in the trial a question was raised as to the propriety of those
gentlemen, viz, Samuel Smith, Israel Smith, and John Smith, of New
York, who were during the last session Members of the House of
Representatives, and voted here upon the question for impeaching Judge
Pickering, sitting and voting as judges upon the trial.
Mr. Smith, of New York, wished to be excused.
Mr. S. Smith declared that he would not be influenced from his duty
by any false delicacy; that he, for his part, felt no delicacy upon the
subject, the vote he had given in the other House to impeach
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\1\ House Journal, p. 513.
\2\ Senate Journal, pp. 382, 383; Annals, p. 225.
\3\ Annals, p. 368.
Sec. 2328
Judge Pickering would have no influence upon him in the court; his
constituents had a right to his vote, and he would not by any act of
his deprive or consent to deprive them of that right, but would claim
and exercise it upon this as upon every other question that might be
submitted to the Senate whilst he had the honor of a seat.
All these men appear as voting during the trial.
2328. Pickering's impeachment continued.
In the Pickering impeachment the Senate organized itself as a court
before receiving the articles.
The Journal of the Pickering trial was kept separate from the regular
Senate Journal.
Ceremonies of presenting the articles against Judge Pickering before
the high court of impeachment.
In the Pickering impeachment the chairman of the managers read the
articles and then delivered them at the table of the Senate.
The articles impeaching Judge Pickering, with signature of the
Speaker and attestation of the Clerk.
The chairman of the managers reported verbally to the House after
having presented in the Senate the articles impeaching Judge Pickering.
On this day, January 4,\1\ the Senate resolved itself into a court of
impeachment. The ordinary Senate Journal merely records this fact, but
does not contain the record of the court's proceedings.\2\
On February 20, 1805,\3\ the Senate resumed consideration of the
motion for printing the Journals of their proceedings, while sitting
for the purpose of trying impeachments, and agreed to it as follows:
Resolved, That the proceedings of the Senate while sitting for the
purpose of trying impeachments shall be published in the same manner in
which the legislative proceedings are now published; and this
resolution shall have relation to all proceedings in trials of
impeachments which have heretofore taken place.
The Senate having resolved itself into a court of impeachment,
proceeded agreeably to its resolution to organize the court.\4\
The Secretary administered the following oath to the President:
You solemnly swear that, in all things appertaining to the trial of
the impeachment of John Pickering, judge of the district court of the
district of New Hampshire, you will do impartial justice, according to
law.
The President administered the oath, respectively, to Messrs. Adams,
Armstrong, Anderson, Bailey, Baldwin, Bradley, Breckenridge, Brown,
Cocke, Condit, Ellery, Franklin, Hillhouse, Jackson, Olcott, Pickering,
Potter, Israel Smith, Samuel Smith, John Smith, Tracy, Venable, Wells,
and Worthington; and the affirmation to Messrs. Logan, Maclay, and
Plumer.
A message was received from the House of Representatives.
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\1\ Senate Journal, p. 333.
\2\ The Senate, however, kept in Journal form a record of ``The trial
of John Pickering, etc., on a charge exhibited to the Senate of the
United States for high crimes and misdemeanors,'' which was published
later. Senate Journal, Eighth Congress, pp. 493-507.
\3\ Second session Eighth Congress, Annals, p. 63.
\4\ Annals, p. 319.
Sec. 2328
The managers on the part of the House of Representatives, Messrs.
Nicholson, Early, Rodney, Eustis, John Randolph, jr., Samuel L.
Mitchill, George W. Campbell, Blackledge, Boyle, Joseph Clay, and
Newton, were admitted; and Mr. Nicholson, the chairman, announced that
they were the managers instructed by the House of Representatives to
exhibit certain articles of impeachment against John Pickering,
district judge of the district of New Hampshire.
They were requested by the President to take seats assigned them
within the bar.
The Sergeant-at-Arms was directed to make proclamation, in the words
following:
Oyes! Oyes! Oyes! All persons are commanded to keep silence on pain
of imprisonment while the grand inquest of the nation is exhibiting to
the Senate of the United States, sitting as a court of impeachments,
articles of impeachment against John Pickering, judge of the district
court of the district of New Hampshire.
The managers then rose, and Mr. Nicholson, their chairman, read the
articles, as follows:
Articles exhibited by the House of Representatives of the United
States, in the name of themselves and of all the
people of the United States, against John Pickering,
judge of the district court of the district of New
Hampshire, in maintenance and support of their
impeachment against him for high crimes and
misdemeanors.
Article 1. That whereas George Wentworth, surveyor of the district of
New Hampshire, did, in the port of Portsmouth, in the said district, on
waters that are navigable from the sea by vessels of more than 10 tons
burden, on the 15th day of October, in the year 1802, seize the ship
called the Eliza, of about 285 tons burden, whereof William Ladd was
late master, together with her furniture, tackle, and apparel, alleging
that there had been unladen from on board of said ship, contrary to
law, sundry goods, wares, and merchandise, of foreign growth and
manufacture, of the value of $400 and upwards, and did likewise seize
on land within the said district, on the 7th day of October, in the
year 1802, two cables of the value of $250, part of the said goods
which were alleged to have been unladen from on board the said ship as
aforesaid, contrary to law; and whereas Thomas Chadbourn, a deputy
marshal of the said district of New Hampshire, did, on the 16th day of
October, in the year 1802, by virtue of an order of the said John
Pickering, judge of the district court of the said district of New
Hampshire, arrest and detain in custody for trial before the said John
Pickering, judge of the said district court, the said ship, called the
Eliza, with her furniture, tackle, and apparel, and also the two cables
aforesaid;
And whereas by an act of Congress, passed on the 2d day of March, in
the year 1789, it is among other things provided that ``upon the prayer
of any claimant to the court that any ship or vessel, goods, wares, or
merchandise so seized and prosecuted, or any part thereof, should be
delivered to such claimant, it shall be lawful for the court to appoint
three proper persons to appraise such ship or vessel, goods, wares, or
merchandise, who shall be sworn in open court, for the faithful
discharge of their duty; and such appraisement shall be made at the
expense of the party on whose prayer it is granted; and on the return
of such appraisement, if the claimant shall, with one or more sureties
to be approved of by the court, execute a bond in the usual form to the
United States for the payment of a sum equal to the sum of which the
ship or vessel, goods, wares, or merchandise so prayed to be delivered
and appraised and moreover produce a certificate from the collector of
the district wherein such trial is had and of the naval officer
thereof, if any there be, that the duties on the goods, wares, and
merchandise, or tonnage duty on the ship or vessel so claimed have been
paid or secured in like manner as if the goods, wares, or merchandise,
ship or vessel, had been legally entered, the court shall, by rule,
order such ship or vessel, goods, wares, or merchandise, to be
delivered to the said claimant;'' yet the said John Pickering, judge of
the said district court of the said district of New Hampshire, the said
act of Congress not regarding, but with intent to evade the same, did
order the said ship called the Eliza, with her furniture, tackle, and
apparel, and the said two cables, to be delivered to a certain
Eliphalet Ladd, who claimed the same, without his, the said Eliphalet
Ladd, producing any certificate from the collector and naval officer
Sec. 2328
of the said district that the tonnage duty on the said ship or the
duties on the said cables had been paid or secured, contrary to his
trust and duty as judge of the said district court, against the law of
the United States and to the manifest injury of their revenue.
Art. 2. That whereas, at a special district court of the United
States, began and held at Portsmouth on the 11th day of November, in
the year 1802, by John Pickering, judge of said court, the United
States, by Joseph Whipple, the collector of said district, having
libeled, propounded, and given the said judge to understand and be
informed that the said ship Eliza, with her furniture, tackle, and
apparel, had been seized as aforesaid, because there had been unladen
therefrom, contrary to law, 2 cables and 100 pieces of check, of the
value of $400, and having prayed in their said libel that the said
ship, with her furniture, tackle, and apparel, might by the said court
be adjudged to be forfeited to the United States and be disposed of
according to law; and a certain Eliphalet Ladd, by his proctor and
attorney, having come into the said court, and having claimed the said
ship Eliza, with her tackle, furniture, and apparel, and having denied
that the said 2 cables and the said 100 pieces of check had been
unladen from the said ship contrary to law, and having prayed the said
court that the said ship, with her furniture, tackle, and apparel,
might be restored to him, the said Eliphalet Ladd, the said John
Pickering, judge of the said district court, did proceed to the hearing
and trial of the said cause thus pending between the United States on
the one part, claiming the said ship Eliza, with her furniture, tackle,
and apparel, as forfeited by law, and the said Eliphalet Ladd on the
other part, claiming the said ship Eliza, with her furniture, tackle,
and apparel, in his own proper right; and whereas John S. Sherburne,
attorney for the United States in and for the said district of New
Hampshire, did appear in the said district, as his special duty it was
by law, to prosecute the said cause in behalf of the United States, and
did produce sundry witnesses to prove the facts charged by the United
States in the libel filed by the collector as aforesaid in the said
court, and to show that the said ship Eliza, with her tackle,
furniture, and apparel, was justly forfeited to the United States, and
did pray the said court that the said witnesses might be sworn in
behalf of the United States, yet the said John Pickering, being then
judge of the said district court, and then in court sitting, with
intent to defeat the just claims of the United States, did refuse to
hear the testimony of the said witnesses so as aforesaid, produced in
behalf of the United States, and without hearing the said testimony so
adduced in behalf of the United States in the trial of the said cause
did order and decree the said ship Eliza, with her furniture, tackle,
and apparel, to be restored to the said Eliphalet Ladd, the claimant,
contrary to his trust and duty as judge of the said district court, in
violation of the laws of the United States and to the manifest injury
of the revenue.
Art. 3. That whereas it is provided by an act of Congress, passed on
the 24th day of September, in the year 1789, ``that from all final
decrees of the district court in cases of admiralty and maritime
jurisdiction, where the matter in dispute exceeds the sum or value of
$300 exclusive of costs, an appeal shall be allowed to the next circuit
court to be held in such district;'' and whereas on the 12th (lay of
November, in the year 1802, at the trial of the aforesaid cause between
the United States on the one part, claiming the said ship Eliza, with
her furniture, tackle, and apparel, as forfeited for the cause
aforesaid, and the said Eliphalet Ladd on the other part, claiming the
said ship Eliza, with her furniture tackle, and apparel, in his own
proper right, the said John Pickering, judge of the said district of
New Hampshire, did decree that the said ship Eliza, with her tackle,
furniture, and apparel, should be restored to the said Eliphalet Ladd,
the claimant; and whereas the said John S. Sherburne, attorney for the
United States in and for the said district of New Hampshire, and
prosecuting the said cause for and on the part of the United States, on
the said 12th clay of November, in the year 1802, did, in the name and
behalf of the United States, claim an appeal from said decree of the
district court to the next circuit court to be held in the said
district of New Hampshire, and did pray the said district court to
allow the said appeal, in conformity to the provisions of the act of
Congress last aforesaid, yet the said John Pickering, judge of the said
district court, disregarding the authority of the laws and wickedly
meaning and intending to injure the revenues of the United States and
thereby to impair their public credit, did absolutely and positively
refuse to allow the said appeal, as prayed for and claimed by the said
John S. Sherburne in behalf of the United States, contrary to his trust
and duty of judge of the district court, against the laws of the United
States, to the great injury of the public revenue, and in violation of
the solemn oath which he had taken to administer equal and impartial
justice.
Sec. 2329
Art. 4. That whereas for the due, faithful, and impartial
administration of justice, temperance and sobriety are essential
qualities in the character of a judge, yet the said John Pickering,
being a man of loose morals and intemperate habits, on the 11th and
12th days of November, in the year 1802, being then judge of the
district court in and for the district of New Hampshire, did appear on
the bench of the said court for the administration of justice in a
state of total intoxication, produced by the free and intemperate use
of intoxicating liquors; and did then and there frequently, in a most
profane and indecent manner, invoke the name of the Supreme Being, to
the evil example of all the good citizens of the United States; and was
then and there guilty of other high misdemeanors, disgraceful to his
own character as a judge and degrading to the honor of the United
States.
And the House of Representatives, by protestation, saving to
themselves the liberty of exhibiting at any time hereafter any further
articles or other accusation or impeachment against the said John
Pickering; and also of replying to his or any answers which he shall
make to the said articles, or any of them; and of offering proof 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
John Pickering may be put to answer the said high crimes and
misdemeanors; and that such proceedings, examinations, trials, and
judgments may be thereupon had and given as may be agreeable to law and
justice.
Signed by order and in behalf of the House.
Nathaniel Macon, Speaker.
John Beckley, Clerk.
He then delivered the articles at the table; whereupon,
The President notified the managers that the Senate would take proper
order on the subject of the impeachment, of which due notice should be
given to the House of Representatives, and they withdrew.
The court adjourned to 12 o'clock to-morrow.
In the House,\1\ on the same day, Mr. Nicholson, from the managers
appointed on the part of this House to conduct the impeachment against
John Pickering, judge of the district court of the United States for
the district of New Hampshire, reported that the managers did this day
carry to the Senate the articles of impeachment agreed to by this House
on the 30th ultimo, and the said managers were informed by the Senate
that their House would take proper measures relative to the said
impeachment, of which this House should be duly notified.
2329. Pickering's impeachment continued.
In the Pickering case the rules were reported directly to the court
of impeachment and agreed to therein.
Form of summons prescribed to command appearance of respondent in the
Pickering impeachment.
Form of precept prescribed by the Senate to be indorsed on the writ
of summons to Judge Pickering.
In the Pickering case the Senate provided for issuing subpoenas of a
specified form on application of managers or of respondent or his
counsel.
In the Pickering impeachment the subpoenas were directed to the
marshal of the district wherein the witness resided.
The forms of summons and subpoena in the Pickering case were
communicated to the House and entered on its Journal.
Form of direction to the marshal for service of subpoenas in the
Pickering trial.
-----------------------------------------------------------------------
\1\ House Journal, p. 515; Annals, p. 802.
Sec. 2329
On January 5 \1\ the Senate in high court of impeachments assembled,
and the President administered the oath to Mr. Jonathan Dayton, of New
Jersey.
On January 9,\2\ in the high court, Mr. Tracy reported from the
committee appointed to examine precedents and prepare forms. The Senate
Journal makes no mention of this or other proceedings of the court,
although the committee was appointed by the Senate.
On January 10 and 11 \3\ the report was considered in the high court,
and amendments were voted on and agreed to. The yeas and nays were
taken, although it does not appear in what way they were ordered.
On January 12 \4\ the report was agreed to as follows:
Resolved, That a summons issue, directed to the said John Pickering,
in the form following: ``
United States of America, sct:
``The Senate of the United States of America, in their capacity of a
court of impeachments, to John Pickering, judge of
the district court for the district of New Hampshire,
greeting:
``Whereas the House of Representatives of the United States of
America did, on the 4th day of January, exhibit to the Senate, then
sitting as a court of impeachments, articles of impeachment against
you, the said John Pickering, charging you with high crimes and
misdemeanors, therein specially set forth in the words following, viz:
[Here insert the articles]; and did demand that you, the said John
Pickering, should be put to answer the accusations of high crimes and
misdemeanors as set forth in said articles; and that such proceedings,
examinations, trials, and judgments might be thereupon had as are
agreeable to law and justice. You, the said John Pickering, are
therefore hereby summoned to be and appear before the Senate of the
United States of America in their capacity of a court of impeachments,
at their Chamber in the city of Washington, on the 2d day of March
next, then and there to answer to the said articles of impeachment, and
then and there to abide by, obey, and perform such orders and judgments
as the Senate of the United States, acting in their said capacity of a
court of impeachments, shall make in the premises, according to the
Constitution and laws of the said United States. Hereof you are not to
fail.''
Witness, Aaron Burr, Vice-President of the United States of America
and President of the Senate thereof, at the city of Washington, this
12th day of January, in the year of our Lord 1804, and of the
Independence of the United States the twenty-eighth.
Which summons shall be signed by the Secretary of the Senate and
sealed with their seal, and served by James Mathers, Sergeant-at-Arms
to the Senate, who shall serve the same pursuant to the directions
given in the next following resolution:
Second. Resolved, That a precept shall be indorsed on said writ of
summons in the form following, viz:
``United States of America, ss:
``The Senate of the United States, in their capacity of a court of
impeachments, to James Mathers, Sergeant-at-Arms to
the Senate, greeting:
``You are hereby commanded to deliver to and leave with John
Pickering, esq., district judge of the district of New Hampshire, if to
be found, a true and attested copy of the within writ of summons,
together with a like copy of this precept, showing him both; or in case
he can not with convenience be found, you are to leave true and
attested copies of the said summons and precept at his usual place of
residence; and in whichever way you perform the service, let it be done
at least thirty days before the appearance day mentioned in the said
writ of summons. Fail not, and make return of this writ of summons and
precept, with your proceedings thereon indorsed, on or before the
appearance day therein mentioned in said writ of summons.''
Witness, Aaron Burr, Vice-President of the United States of America
and President of the Senate thereof, at the city of Washington, this
12th day of January, in the year of our Lord 1804, and of the
Independence of the United States the twenty-eighth.
Which precept shall be signed by the Secretary of the Senate and
sealed with their seal.
-----------------------------------------------------------------------
\1\ Annals, p. 322.
\2\ Annals, p. 323; Senate Journal, p. 335.
\3\ Annals, p. 323.
\4\ Annals, pp. 323, 325.
Sec. 2329
Third. Resolved, That the Secretary of the Senate be, and he is
hereby, directed to pay the necessary expenses arising upon the process
aforesaid, after the same shall be allowed by the President of the
Senate for the time being, out of the fund appropriated to defray the
contingent expenses of the two Houses of Congress, and the Secretary of
the Senate is hereby authorized and directed to advance out of said
fund, to said James Mathers, for his traveling expenses, the sum of two
hundred dollars, to be by said James Mathers accounted for in a final
settlement for his services.
Fourth. Resolved, That the Secretary of the Senate do acquaint the
House of Representatives of the foregoing resolutions, and deliver to
them a copy of the same.
Mr. Tracy, from the committee last mentioned, further reported in
part, and the report was amended, as follows:
Resolved, That whenever application shall be made to the Secretary of
the Senate for a subpoena or subpoenas for witnesses by the House of
Representatives, either by their managers of the impeachment or in any
other proper way, or by the party impeached or his counsel,
acknowledged as such by the Senate sitting as a court of impeachments,
he shall issue to such applicant a subpoena or subpoenas in the
following form, viz:
``To [here name the witnesses and residence] greeting: You and each
of you are hereby commanded, laying aside all excuses, to appear before
the Senate of the United States, in their capacity of a court of
impeachments, on the ------ day of ------, at the Senate Chamber, in
the city of Washington, then and there to testify your knowledge in the
cause which is before said court of impeachments for trial, in which
the House of Representatives have impeached John Pickering, judge of
the district court for the district of New Hampshire, of high crimes
and misdemeanors. Fail not.''
Witness, Aaron Burr, Vice-President of the United States of America
and President of the Senate thereof, at the city of Washington, this --
---- day of ------, in the year of our Lord 1804, and of the
Independence of the United States the twenty-eighth.
Which shall be signed by the Secretary of the Senate and sealed with
their seal.
Which subpoenas shall be directed in every case to the marshal of the
districts where such witnesses reside, to serve and return.
Resolved, That the Secretary of the Senate do issue twelve subpoenas
for witnesses in the above form for the use of the said Pickering, with
blanks therein for such witnesses as he, the said Pickering, may think
proper to summon, which Subpoenas shall be delivered by the Sergeant-
at-Arms to him at the time he shall serve the summons aforesaid on the
said Pickering.
As amended, the report was agreed to, yeas 23, nays 5.
It was then--
Ordered, That the Secretary lay these resolutions before the House of
Representatives.
The above resolutions were communicated to the House by message on
this day,\1\ and on January 13 were read and laid on the table. The
resolutions of the Senate are printed in full in the House Journal.
On January 13 \2\ the high court appears to have agreed on a ``form
of direction to the marshal for the service of the subpoena:''
[L. S.] THE SENATE OF THE UNITED STATES OF AMERICA, SITTING AS A COURT
OF IMPEACHMENTS.
To the Marshal of the District of ------:
You are hereby commanded to serve and return the within subpoena
according to law.
Dated at Washington this ------ day of ------, in the year of our
Lord 1804, and of the Independence of the United States the twenty-
eighth.
It does not appear that this form was communicated to the House of
Representatives.
-----------------------------------------------------------------------
\1\ House Journal, pp. 531, 533, 534.
\2\ Annals, p. 326.
Sec. 2330
2330. Pickering's impeachment continued.
Returns of the Sergeant-at-Arms on the summons and a subpoena in the
Pickering trial were read in the court before the return day.
On February 9,\1\ in the high court, the following returns were
filed:
United States of America, ss:
I, James Mathers, Sergeant-at-Arms to the Senate of the United
States, in obedience to the within summons, did proceed to the house of
the within-named John Pickering on the 25th day of January, in the year
1804, and did then and there leave a true copy of the said writ of
summons, together with a true copy of the articles of impeachment
annexed, with him, the said John Pickering.
James Mathers.
United States of America, ss:
I, James Mathers, Sergeant-at-Arms to the Senate of the United
States, did, on the twenty-sixth day of January, in the year one
thousand eight hundred and four, proceed to the house of the within-
named Michael McClary and served this subpoena by reading the same and
leaving with him a copy thereof.
James Mathers.
On February 20 these returns were read in the high court.
2331. Pickering's impeachment continued.
Rules adopted by the Senate as a court to govern the trial of Judge
Pickering.
The Senate sitting as a court did not communicate to the House the
rules for governing the trial.
By the rules for the Pickering trial the President of the Senate was
given general authority to direct forms of proceeding not otherwise
provided for.
Form of oath taken by the Sergeant-at-Arms and entered on the record,
on the making of the return of service of summons on Judge Pickering.
Rule framed to govern ceremonies for appearance and answer of
respondent in the Pickering impeachment.
The rules for the Pickering trial provided that a record should be
made if respondent appeared in person or by counsel, or if he failed to
appear.
Rule for offering motions during the Pickering trial.
In the Pickering trial a rule provided that the Senate might retire
for consultation on demand of one-third.
The rule of the Pickering trial required all decisions to be in open
court, by yeas and nays, and without debate.
Form of oath and method of examination for witnesses in the Pickering
trial.
Rule of the Senate, in the Pickering trial, for examination of a
Senator.
The rules of the Pickering trial provided that a question by a
Senator should be in writing and be put by the Presiding Officer.
-----------------------------------------------------------------------
\1\ Annals, p. 326.
Sec. 2331
On March 1 \1\ Mr. Tracy, from the committee appointed by the Senate
to examine precedents and prepare forms, reported to the court (not to
the Senate) the following resolutions, which were agreed to by the
court:
Resolved, That the President of the Senate shall direct all the forms
of proceeding, while the Senate are sitting as a court of impeachments,
as to opening, adjourning, and all forms during the session not
otherwise specially provided for by the Senate.
And that the President of the Senate be requested to direct the
preparations in the Senate Chamber for the accommodation of the Senate
while sitting as a court, and for the reception and accommodation of
the parties to the impeachment, their counsel, witnesses, etc.
And that he be authorized to direct the employment of the marshal, or
any officer or officers of the District of Columbia during the session
of the court of impeachments whose services he may think requisite and
which can be obtained for the purpose.
And all the expenses arising under this resolution, after being first
allowed by the President of the Senate, shall be paid by the Secretary,
out of the fund appropriated to defray the contingent expenses of both
Houses of Congress.
Resolved, That on the 2d day of March instant, at 1 o'clock, the
legislative and executive business of the Senate be postponed, and that
the court of impeachments shall then be opened, after which the
process, which, on the 12th day of January last, was directed to be
issued and served on John Pickering, and the return thereof, shall be
read, and the Secretary of the Senate shall administer an oath to the
returning officer in the following form, to wit:
``I, James Mathers, do solemnly swear that the return made and
subscribed by me, upon the process issued on the 12th day of January
last by the Senate of the United States against John Pickering, is
truly made, and that I have performed said services as there described,
so help me God.''
Which oath shall be entered at large on the records.
The Secretary shall then give notice to the House of Representatives
that the Senate, in their capacity of a court of impeachments, are
ready to proceed upon the impeachment of John Pickering in the Senate
Chamber, which Chamber is prepared with accommodations for the
reception of the House of Representatives.
Resolved, That counsel for the parties shall be admitted to appear
and be heard upon said impeachment. And upon the attendance of the
House of Representatives, their managers, or any person or persons
admitted to appear for the impeachment, the said John Pickering shall
be called to appear and answer the articles of impeachment exhibited
against him. If he appears, or any person for him, the appearance shall
be recorded, stating particularly if by himself or if by agent or
attorney, naming the person appearing and the capacity in which he
appears. If he does not appear either personally or by agent or
attorney the same shall be recorded. All motions made by the parties or
their counsel shall be addressed to the President of the Senate, and,
if he shall require it, shall be committed to writing and read at the
Secretary's table, and after the parties shall be heard upon such
motion the Senate shall retire to the adjoining committee room for
consideration, if one-third of the members present shall require it;
but all decisions shall be had in open court, by ayes and noes and
without debate, which shall be entered on the records.
Witnesses shall be sworn in the following form, viz: ``I, A B, do
swear (or affirm, as the case may be) that the evidence I shall give to
this court in the case now depending shall be the truth, the whole
truth, and nothing but the truth, so help me God.''
Witnesses shall be examined by the party producing them, and then
cross-examined in the usual form.
If a Senator is called as a witness he shall be sworn and give his
testimony standing in his place.
If a Senator wishes a question to be put to a witness it shall be
reduced to writing and put by the President.
These rules were not communicated to the House of Representatives.
-----------------------------------------------------------------------
\1\ Annals, pp. 326, 327; Senate Journal, p. 368.
Sec. 2332
2332. Pickering's impeachment continued.
Ceremonies at the calling of Judge Pickering to answer the articles
of impeachment.
The House did not accept the invitation of the Senate to accompany
its managers at the return of summons in Pickering's impeachment.
On the same day, in the high court, the summons to John Pickering was
read, together with the return made thereon by the Sergeant-at-Arms,
and the oath prescribed was administered to the returning officer by
the Secretary.
Subpoenas having been issued in the form prescribed and directed to
Ebenezer Chadwick and others, the following return was made to them
respectively:
New Hampshire District, ss:
January 28, 1804.
Pursuant to this precept, I have served the same by reading it to the
within-named Ebenezer Chadwick, etc.
Michael McClary,
Marshal for the New Hampshire District.
Then it was, by the high court of impeachments--
Ordered, That the Secretary give notice to the House of
Representatives that the Senate, in their capacity of a court of
impeachments, axe ready to proceed upon the impeachment of John
Pickering in the Senate Chamber, which Chamber is prepared with
accommodations for the reception of the House of Representatives, and
that the Secretary communicate a copy of the regulations agreed on to
that House.
On March 2 \1\ the substance of this order was by message
communicated to the House, whereupon it was--
Resolved, That the managers appointed on the 2d of January last do
now attend in the Senate Chamber for the purpose of conducting the
impeachment against John Pickering on the part of this House.
It does not appear that attendance by the House itself was proposed.
Thereupon the managers attended in the high court, whereupon John
Pickering was three times called to answer the articles of impeachment
exhibited against him by the House of Representatives, but came not.
2333. Pickering's impeachment continued.
No appearance was made on behalf of Judge Pickering and no answer was
made to the articles of impeachment.
In the Pickering impeachment counsel for respondent's son presented a
petition of the latter setting forth that his father was insane, and
asking for time to show this.
In the Pickering case, against the objection of the managers, the
court determined to hear the counsel of respondent's son and evidence
to show the insanity of the accused.
On a question of permitting counsel for respondent's son to appear in
the Pickering trial, the said counsel was not permitted to argue.
The Vice-President then submitted a petition of Jacob S. Pickering,
son of John Pickering, and a letter from Robert G. Harper, inclosed to
the Vice-President.
-----------------------------------------------------------------------
\1\ House Journal, p. 613; Annals, p. 1087.
Sec. 2333
Petition of Jacob S. Pickering.
At a court of impeachments holden before the honorable the Senate of
the United States of America, sitting in their capacity of a high court
of impeachment at the city of Washington, on the 2nd day of March,
1804:
The House of Representatives of the United States v. John Pickering,
judge of the district court for the district of New Hampshire.
Jacob S. Pickering, of Portsmouth, in the district of New Hampshire,
and son of the said John Pickering, against whom articles of
impeachment have been exhibited by the House of Representatives of the
United States, conceives it his duty most respectfully to state to this
high and honorable court the real situation of the said John Pickering,
the facts and circumstances relative to said articles, wherein he
stands charged of supposed high crimes and misdemeanors, and to request
that this court would grant him such term of time as they shall think
fit and reasonable to substantiate this statement.
Your petitioner will be able to show that at the time when the crimes
wherewith the said John stands charged are supposed to have been
committed, the said John was, and for more than two years before, and
ever since has been, and now is, insane, his mind wholly deranged, and
altogether incapable of transacting any kind of business which requires
the exercise of judgment, or the faculties of reason; and, therefore,
that the said John Pickering is incapable of corruption of judgment, no
subject of impeachment, or amenable to any tribunal for his actions.
That this derangement has been constant and permanent, every day of
his life completely demonstrating his insanity; every attempt for his
relief, which has been prescribed by the faculty who have been
consulted on his case, has proved unavailing, and his disorder has
baffled all medical aid.
Your petitioner is well aware that the most conclusive evidence of
the aforegoing fact would result from an actual view of the respondent,
which unfortunately, by reason of his great infirmities can not now be,
but at the hazard of his life--he is wholly unable at this inclement
season to support the fatigue of so long a journey; yet if the
respondent's life be spared, and his health in any degree restored, it
will be the endeavor of your petitioner that the said John shall make
his personal appearance before this honorable court at any future day
they shall think proper to assign.
Your petitioner will be able to show, any pretense to the contrary
notwithstanding, that the decisions made in the cause stated in the
first article of impeachment, although not the result of reflection, or
grounded on any deductions of reason, were, nevertheless, correct,
perfectly consonant to the principles of justice, and conformable to
the laws of the land; and the refusal of the said judge to grant the
appeal claimed by the said John S. Sherburne, in behalf of the United
States, was not against law, or to the injury of the public revenue, as
the third article of the impeachment supposes; there being no law to
warrant such appeal in such a case.
While, with deep humility, your petitioner admits and greatly laments
the indecorous and improper expressions used by the said judge on the
seat of justice, as mentioned in the last article of impeachment, he
will clearly evince the injustice of that part thereof which respects
his moral character, and show abundantly, that from his youth upward,
through a long, laborious and useful life, and until he was visited by
the most awful dispensation of Providence, and the most deplorable of
all human calamities, the loss of reason, he was unexceptionable in his
morals, remarkable for the purity of his language, and the correctness
of his habits, and the deviations in these particulars now complained
of, are irresistible evidence of the deranged state of his mind.
When this high and honorable court shall take into their
consideration the situation of this respondent, oppressed with
infirmity, incapable of making arrangements for his defense, the
inclemency of the season, his great distance from the place of trial,
and the shortness of notice--when your honors reflect on the high and
atrocious crime with which he stands charged; in the decision of which
is involved, not his life (indeed his remains of life would be but a
slender sacrifice), but that which, to an honest mind, is more dear
than life itself, his good name--when you advert to the consequences
attached to a conviction; the indelible stigma which will befall a
numerous family whose only patrimony was the unsullied reputation of
their parent, which they have ever cherished, and of which they fondly,
perhaps too fondly, hoped, no time, or circumstance, or adverse fortune
could deprive them--when your honors shall think of these things, your
petitioner has strong confidence that the wisdom and justice of this
court will permit a respondent, whose integrity until now has been
unquestioned;
Sec. 2333
who has sustained offices high and honorable, through a long life, and
the general tenor of whose character and conduct has hitherto furnished
him with a coat of armor against the assaults of his enemies, but who
is now incapable of defending himself, to be defended by his friends.
Audi alteram partem is a maxim held in reverence wherever liberty yet
remain. The Senate of America will be the last tribunal on earth that
will cease to respect it; they will never condemn unheard; they will
never refuse time for a full and impartial trial.
That time, that impartial trial, your petitioner prays for; the
charity of the law presumes the innocence of the respondent; and your
petitioner, also, respectfully entreats that, in the meantime, and more
especially as the evidence on which the impeachment is founded, was
taken ex parte, no unfavorable impressions may be made on the minds of
this honorable court, by any report or extra-judicial representations
which may have been made on the subject before them.
Jacob S. Pickering.
Letter of Robert G. Harper.
Sir: Mr. Jacob S. Pickering, the son of Judge Pickering, of New
Hampshire, has forwarded to me, through one of his friends here, the
inclosed petition, with a request that I will lay it before the court
of impeachments, and will appear on his part, if permitted, and support
the prayer of it. I am also furnished with several depositions, showing
that Judge Pickering, from bodily infirmity and total derangement of
mind, is wholly incapable of appearing before the court at this time,
of making a defense, or of giving authority to any person to appear for
him.
The process of subpoena heretofore issued by the court not being
compulsory, and Judge Pickering's narrow circumstances not enabling his
son to defray the expenses of the witnesses whose testimony it is
important for him to produce, it was judged necessary to serve the
subpoena. The object of the petition is to obtain a postponement of the
trial, and either compulsory process, or an order to take depositions,
which may be received in evidence. Be pleased, Sir, to lay the petition
before the court, and to inform me whether I shall be received to
appear on the part of the petitioner, Mr. Jacob S. Pickering, in its
support. In that case I will attend in the capacity of agent or counsel
for the petitioner, and submit to the court the reasons and proofs with
which I am furnished in support of his application.
With the highest respect, I have the honor to be, Sir, your most
obedient very humble servant,
Robert G. Harper.
The Vice-President of the United States.
The President inquired if Mr. Harper was in court, and invited him to
a seat within the bar, which having taken, he made the following
address:
Mr. President: Before I proceed to address this honorable court in
the case now before it, I think it proper to repeat explicitly what is
stated in the letter just now read, that I do not appear as the
counsel, agent, or attorney of Judge Pickering, or by virtue of any
authority derived from him, he being in a state of absolute and long-
continued insanity, can neither appear himself nor authorize another to
appear for him. I present myself to this honorable court, at the
request of Jacob S. Pickering, son of Judge Pickering, stating his
father's insanity, and praying that time may be allowed for collecting
and producing complete proof of the melancholy fact. This application
for postponement I am prepared to support by depositions now in my
possession; and it is also my intention, if permitted, to make a
further application on the part of Judge Pickering for compulsory
process to compel the attendance of such witnesses as it may be
necessary to produce in proof of the fact of insanity, or for an order
to take their depositions in writing on interrogatories, and notice to
the prosecutors. It rests with this honorable court whether it will
receive such an application, and hear counsel so appearing in its
support.
After a short pause, Mr. Harper again rose and inquired whether his
appearance in support of the petition would be construed as the
appearance of John Pickering by counsel.
The President \1\ answered that he presumed that it would not be so
construed.
Mr. Nicholas, on behalf of the House managers, objected to the
hearing of Mr. Harper in any other capacity than as counsel of the
accused, and remarked
-----------------------------------------------------------------------
\1\ Aaron Burr, of New York, Vice-President and President of the
Senate.
Sec. 2333
that as Mr. Harper disclaimed appearing in that capacity, he could not
in his opinion be heard. Other managers spoke, especially Mr. Rodney,
who said:
I understand the President as having declared that, agreeably to the
rules of proceeding adopted by the Senate, no person can be heard in
this case but the accused, or his agent or counsel.
The Vice-President nodded assent.
Mr. Rodney continued:
I also understand the gentleman who appeared on this occasion, as
clearly and explicitly stating that he does not appear as the counsel
of Mr. Pickering, nor does he wish it so to be understood. That
gentleman has informed us in a very fair and candid manner of the only
character in which he does appear, and has assumed very properly and
correctly the only ground upon which he wishes to stand. He has in
positive terms disavowed the idea of his being the agent or counsel of
the accused, because he has protested against Mr. Pickering's being
affected by any act done by him. On this single ground, then, I
respectfully submit whether it would be proper to hear the gentleman
under these circumstances, and whether it be not manifested that he
does not come within the rules laid down by the Senate for the
government of this high court of impeachments.
But if the gentleman is to be heard on this subject in the anomalous
character in which he appears, with a view of postponing the
proceedings of this court, it will first be necessary for the court to
decide that the case is properly before them, agreeably to the rules
which have been established. If no appearance in person or by attorney
has been entered, unless proceedings have been had which they shall
consider tantamount to an appearance, there is no cause regularly in
court, and it would be idle for any person to talk of postponing the
consideration of that which really was not before the court. A question
of this kind must, from the nature of it, ever be incidental to the
principal or main question. When a writ is in court according to the
rules of the court, a motion for postponement may, with propriety, if
the circumstances justify it, be made. This must always be a subsequent
consideration, after the court are in full possession of the case.
Agreeably to the correct course of proceeding in ordinary courts, until
bail and appearance, there can be no case in court. The party has no
day given him, because he is, until this takes place, considered to be
out of court; nor would any counsel, though duly authorized, be heard
in his behalf. There has, in this case, then, been no appearance in
person or by agent or counsel. The accused has made default, and no
agent or attorney has been recorded for him. Surely, then, his default
should be first recorded, and if the court consider that after his
having been duly served, and making default, they will proceed to a
hearing and determination of the principal question, it will then be
proper to listen to those which are necessarily incidental. It will be
at this stage of the business competent for the court, if at all, to
hear the gentleman. But I am decidedly of the opinion, there is no
period in which it will be proper so to do unless he claims this right
as the agent or counsel of the accused. In that capacity he has a right
to be heard; and in that capacity alone. Our Constitution has wisely
secured to every man this privilege, and I would not deprive the
humblest object in the community of this inestimable benefit. I flatter
myself, therefore, that this honorable court will adhere strictly to
the rules which they have prescribed for themselves, and that they will
for these reasons, and those which have been assigned by my colleague,
refuse the present application.
Mr. Harper inquired whether it would be regular in him to reply to
these remarks?
The President said it would not; and immediately after put the
question to the Senate, whether Mr. Harper should be heard in support
of the prayer of the petition of Jacob S. Pickering.
Whereupon the Senate retired to a private Chamber, from which they
returned about 3 o'clock, when the President advised the managers that
the Senate would take further time to consider the question before
them, and would make them acquainted with their decision.
Finally, with open doors, the court took a vote on the question:
Will the court hear evidence and counsel respecting the insanity of
John Pickering, upon the suggestion contained in the petition of Jacob
S. Pickering, and the letter of R. G. Harper?
Sec. 2334
It was decided in the affirmative, yeas 18, nays 12.
It was then--
Resolved, That, on the motion made and seconded, the court shall
retire to the adjoining committee room, if one-third of the Senators
present shall require it.
The court adjourned to 12 o'clock the next day.
2334. Pickering's impeachment continued.
The court having determined, in the Pickering impeachment, to hear
counsel of a third person on a preliminary question, the managers
withdrew to consult the House.
The Senate declined to await the consultation of the managers with
the House before hearing evidence as to Judge Pickering's sanity.
The House, in the Pickering impeachment, deemed it unnecessary to
approve the conduct of its managers in declining to discuss in the
court a matter from a third party.
In the Pickering case the Presiding Officer ruled that in presenting
affidavits to show the insanity of the accused only the pertinent parts
should be read.
The Presiding Officer held that counsel of the son of Judge
Pickering, admitted to show the insanity of the accused, might not
offer a motion to the court.
On March 6,\1\ the court was opened, and the managers of the
impeachment, on the part of the House of Representatives, against John
Pickering, attended.
Mr. Harper also attended.
The President informed Mr. Harper that the court would hear evidence
and counsel respecting the insanity of John Pickering upon the
suggestion contained in the petition of Jacob S. Pickering and the
letter of R. G. Harper.
Mr. Nicholson, in behalf of the managers, said he was instructed to
ask for the reading of the proceedings of the court on the last day of
its sitting.
The clerk having read the record, by which it appeared that John
Pickering had been called three times without appearing,
Mr. Nicholson inquired at what point of time it was intended that Mr.
Harper should be heard, and whether this was to be a step preliminary
to the trial.
The President said he could not undertake to give an explanation of
the proceedings of the Senate, adding that their meaning must be
gathered from the proceedings themselves.
Mr. Nicholson then said that he begged leave to state that the
managers were ready to proceed with the trial of the articles preferred
by the House of Representatives.
The President said that under the decision of the Senate it had been
determined in the first instance to hear Mr. Harper in support of the
petition of Jacob S. Pickering.
Mr. Nicholson said he was instructed by the managers again to state
that they were ready to support the articles of impeachment. They,
however, not being at present under the consideration of the Senate,
they did not consider themselves under
-----------------------------------------------------------------------
\1\ Annals, p. 333.
Sec. 2334
any obligation to discuss a preliminary question raised by a third
person unauthorized by the person charged. He was therefore instructed
to state to the Senate that the managers would, under these
circumstances, retire, and take the opinion of the House of
Representatives respecting their further procedure.
The managers thereupon retired.
Then a proposition that the Senate retire to its private chamber was
disagreed to, only six voting aye.
Mr. John Quincy Adams, apparently to second a suggestion of Mr. James
Jackson, of Georgia, that proceedings should be delayed until the
Senate had heard from the managers of the House of Representatives,
moved an adjournment, but the motion was disagreed to, only 10 voting
aye.
A motion by Mr. Robert Wright, of Maryland, that the counsel in
support of the petition of J. S. Pickering be not heard until the
return of the managers, or until their intention should be signified,
was disagreed to, the ayes being seven.
Then Mr. Harper rose and presented affidavits, evidently ex parte, to
show the insanity of Judge Pickering. One affidavit expressing the
opinion that Judge Pickering could not ``from his bodily infirmities''
proceed on a journey to Washington, was ruled out by the President, as
the order of the Senate confined the proof to the single allegation of
insanity. On the presentation of another affidavit the President ruled
that only the parts relating to insanity should be read.
After the reading of the affidavits,\1\ Mr. Harper said this was the
testimony on which he founded the application--which was to postpone
the trial until such time as the court might think fit, in order to
take depositions.
The President said:
It does not seem to me proper to receive any motion from you. The
Senate will attend to what you have said and take proper order upon it.
Mr. Harper thereupon addressed the court briefly, expressing the wish
that opportunity should be allowed and the necessary facilities
afforded to obtain testimony.
The court thereupon adjourned.
In the House of Representatives,\2\ meanwhile, a short time after the
managers returned from the court, Mr. Nicholson, in their behalf, made
to the House of Representatives the following communication:
That on Friday, the 2d of March, the managers, agreeably to the
directions of the House, appeared at the bar of the Senate, to support
the said articles of impeachment, when John Pickering was three times
solemnly called, but did not answer or appear, either in person or by
counsel. The President of the Senate then stated that he had received a
letter, signed R. G. Harper, accompanying a petition, signed Jacob S.
Pickering, who called himself the son of the party charged. The
petition being read, it was found to contain a statement of a variety
of matter, particularly the insanity of Judge Pickering, upon which the
prayer of the petition was founded for a postponement of the trial to
some future day. Mr. Harper was called to the bar of the Senate; he
entered, and stated that he wished it to be distinctly understood that
he did not appear at the bar of the Senate as counsel for John
Pickering, from whom he had received no authority for that purpose; but
that his object was to support the facts contained in the petition of
Jacob S. Pickering, and the prayer thereof. There was a short pause,
when Mr. Harper rose again and inquired whether his appearance in
support of the petition would be construed as the appearance of John
Pickering, by counsel. The President of the Senate answered, he
presumed that Mr. Harper's appearance would not be considered as the
appearance of John Pickering by counsel.
-----------------------------------------------------------------------
\1\ Annals, p. 342.
\2\ House Journal, pp. 625, 626; Annals, p. 343.
Sec. 2335
The managers, under these circumstances, felt themselves bound to
object to Mr. Harper's being heard in any other capacity than as
counsel for the party who was impeached; and briefly stated their
reasons for the objection.
The Senate withdrew to a private chamber, where it is presumed the
question was debated. The managers again appeared at the bar of the
Senate this day, and were informed by the President that it had been
resolved to hear Mr. Harper in support of the allegations contained in
the petition of Jacob S. Pickering, and the prayer thereof. The
managers inquired at what point of time it was intended that Mr. Harper
should be heard, and whether this was to be a measure preliminary to
the trial. The President of the Senate declared that he could not
undertake to explain the resolutions of the Senate, but that their
sense must be collected from the resolutions themselves. The managers
then offered themselves ready for trial, declaring that they were
prepared to open the prosecution on behalf of the House of
Representatives, and that the witnesses were ready to prove the facts
charged in the articles of impeachment. Upon this offer being made, the
President of the Senate stated that he considered it to be the sense of
the Senate that Mr. Harper was to be heard before the trial commenced.
The managers considered this as an irregular step, and not believing
that they ought to discuss any petition presented to the Senate from a
person who was not a party to the impeachment, and this, too, before
the party charged, although duly notified, had appeared, either in
person or by attorney, withdrew from the Senate Chamber. They will not
feel themselves either bound or authorized to appear again until the
Senate shall inform them that they are prepared to proceed in the
trial, unless specially directed by this House.
Mr. John Smilie, of Pennsylvania, thereupon proposed the following:
Resolved, That this House doth approve of the conduct of the managers
appointed to support the articles of impeachment in the case of John
Pickering, as stated in their report of this day, and that the said
managers do not appear at the bar of the Senate, until they shall be
specially instructed by this House.
There was objection to the resolution on the ground that it was not
necessary for the House to express its opinion of the conduct of the
managers at every stage. There was so much objection that Mr. Smilie on
the next day withdrew the resolution.
2335. Pickering's impeachment continued.
After hearing evidence as to the sanity of the accused, the court of
impeachment notified the House of its readiness to hear the managers on
the articles.
There being no appearance for Judge Pickering, witnesses presented by
the managers were not cross-examined, except for a few questions by the
Presiding officer.
On March 7,\1\ in the high court of impeachments, it was ordered that
the Secretary inform the House of Representatives that the court was
open and ready to receive and hear the managers in support of the
articles of impeachment. This motion was agreed to by a vote of yeas
19, nays 8.
Accordingly, on March 8,\2\ the court was opened, the managers
attended, and one of them, Mr. Early, after opening remarks, proceeded
to produce testimony in support of the first article of impeachment,
and then, in order, evidence supporting the other articles. This
evidence consisted of the reading of statutes of the United States, an
attested copy of the record of the court, with the seal of said court
annexed, and the examination of witnesses.
-----------------------------------------------------------------------
\1\ Annals, p. 345; House Journal, pp. 626, 627.
\2\ Annals, p. 345. The Senate Journal simply records the fact of the
sitting of the court of impeachments on this as on other days.
Sec. 2336
Judge Pickering not being represented by counsel, the witnesses were
not cross-examined, except in certain instances \1\ when the President
addressed questions to a witness.
The testimony tended to substantiate the charge that the said judge
was an inebriate.
Mr. Nicholson then informed the court that the managers here closed
the testimony, and then the managers withdrew.
2336. Pickering's impeachment, continued.
No defense being made in the Pickering impeachment, the two Senators
from the State of the accused were examined at suggestion of the court.
In the Pickering case one of the managers submitted the case finally
without extended argument.
The Senate declined to postpone the Pickering trial after the
evidence had been submitted.
On March 9,\2\ on the suggestion of Mr. Tracy, the Senator who was
chairman of the committee having in charge the preparation of forms of
procedure for the trial, Simeon Olcott and William Plumer, the Senators
from New Hampshire, were respectively sworn and affirmed. They
testified that in their opinion the troubles of Judge Pickering were
not due to intemperance. Mr. Plumer thought the intemperance the result
of insanity.
Four witnesses were introduced, at whose suggestion does not appear,
and testified in rebuttal.
Mr. Nicholson then observed that the managers would withdraw for a
few minutes. Accordingly they withdrew, and shortly returned.
Mr. Nicholson then, in their behalf, addressed the court briefly,
saying that he was directed by the managers to inform the court that
they submitted the articles on the evidence offered, entertaining no
doubt of full justice being done by the decision of the Senate.
Thereupon the managers retired.
Mr. Tracy then offered the following motion:
Resolved, As the opinion of this court, that the proceedings on the
articles of impeachment exhibited by the House of Representatives
against John Pickering be postponed to the ---- day of ---- next.
This resolution was disagreed to, yeas 10, nays 20.
Thereupon the court adjourned to the next day.
2337. Pickering's impeachment, continued.
In the absence of the Vice-President a President pro tempore was
chosen to preside over the court trying Judge Pickering.
The Senate informed the House of the day and hour fixed for
pronouncing judgment in the Pickering impeachment.
The court of impeachment declined to postpone judgment until Judge
Pickering could be brought personally before it for inspection as to
sanity.
-----------------------------------------------------------------------
\1\ Annals, p. 357.
\2\ Annals, pp. 359, 362.
Sec. 2337
On March 10 \1\ the record of the court of impeachment shows:
Mr. Franklin was chosen President pro tem.
The Journal of the Senate for this day shows that the Vice-President
was absent and that the Senate chose Mr. Jesse Franklin, of North
Carolina, President pro tempore.\2\
On this day, also, the Senate, before sitting as high court of
impeachments, ordered,\3\ by a vote of yeas 20, nays 9--
That the Secretary do acquaint the House of Representatives that the
court of impeachments will, on Monday at 12 o'clock, proceed to
pronounce judgment on the articles of impeachment exhibited by them
against John Pickering.
Afterwards, the high court of impeachments having convened, Mr.
Samuel White, of Delaware, submitted the following: \4\
Resolved, That this court is not at present prepared to give their
final decision upon the articles of impeachment preferred by the House
of Representatives against John Pickering, district judge of the
district of New Hampshire, for high crimes and misdemeanors, the said
John Pickering not having appeared, or been heard, by himself or by
counsel; and it having been suggested to the court by Jacob S.
Pickering, son of the said John Pickering, that the said John
Pickering, at the time of the conduct charged against him in the said
articles of impeachment as high crimes and misdemeanors, was, and yet
is, insane, which suggestion has been supported by the testimony of two
members of the court and by the affidavits of sundry persons, whose
integrity is unimpeached; and it being further suggested in the said
petition that at such future day as the court may appoint the body of
the said Pickering shall be produced in court, and further testimony in
his behalf, which will enable the court to judge for themselves as to
the insanity of the said John Pickering and to act more understandingly
in the premises: but that the said John Pickering, owing to bodily
infirmity, could not be brought to court at present, at so great a
distance, and at this inclement season of the year, without imminent
hazard of his life.
Mr. Wilson Carey Nicholas, of Virginia (not Mr. Nicholson, the House
manager) and Mr. Robert Wright, of Maryland, and others, objected to
the resolution as not being in order.
Mr. Joseph Anderson, of Tennessee, asked if it would be in order to
move an amendment to it.
Mr. John Quincy Adams, of Massachusetts, said he would object to any
amendment to it, as, by the rule of the court, a gentleman had a right
to a vote upon any specific proposition he might please to submit
connected with the trial.
Mr. Samuel White, of Delaware, called for the reading of the rule.
Mr. Anderson then moved that the resolution submitted by the
gentleman from Virginia yesterday be taken up as being entitled to be
acted upon first.
The President pro tempore declared that the resolution of the
gentleman from Delaware was fairly before the court and must be
disposed of in some way before anything else could be taken up.
A motion for postponing the further consideration of it was then made
and withdrawn.
-----------------------------------------------------------------------
\1\ Annals, p. 362; Senate Journal, p. 372.
\2\ It seems hardly necessary to suppose that the court of
impeachments ratified this selection of the Senate. The records of the
court are not made with technical care, and the entry probably refers
to action of the Senate.
\3\ Senate Journal, p. 373; House Journal, p. 632. The record of the
court of impeachment also shows the adoption of this order.
\4\ Annals, p. 362.
Sec. 2338
Mr. Nicholas hoped it would not be permitted to go upon the journals
of the court.
Mr. Jackson moved the previous question, viz: ``Shall the main
question be now put?''
Mr. White hoped that whatever question should be taken on the subject
should be by yeas and nays; that his resolution and the manner in which
it might be got rid of should be seen and understood.
Mr. Anderson then moved to amend the resolution by striking out the
words, ``not having been heard by himself or counsel,'' and all after
the words ``was, and yet is, insane'' to the end of the resolution.
On motion of Mr. Jonathan Dayton, of New Jersey, the galleries were
cleared and the doors closed.
At 3 o'clock the doors were opened and the question was taken upon
the resolution as at first submitted--yeas 9, nays 19.
So the resolution was disagreed to.
2338. Pickering's impeachment, continued.
The House attended its managers to the Senate to hear the Senate
pronounce judgment in the Pickering impeachment.
The House having heard judgment in the Pickering impeachment, the
managers made no report, and no record appears on the House Journal.
On March 12,\1\ in the House of Representatives, it was
Ordered, That this House do now attend in the Senate Chamber to hear
the Senate, in their capacity of a court of impeachments, pronounce
judgment on the articles of impeachment exhibited against John
Pickering, judge of the district court of the United States for the
district of New Hampshire, agreeably to the notification contained in a
message from the Senate, by their Secretary, on Saturday last.
The Speaker, attended by the Members, accordingly withdrew to the
Senate Chamber for the purpose expressed in the foregoing order; and
being returned, etc., proceeded to other business. The House Journal
has no record of the decision of the court.
2339. Pickering's impeachment continued.
The court determined to confine the question in the judgment on Judge
Pickering to the simple question of guilt on the charges.
The court, in the Pickering judgment, declined to permit an
expression at to whether the offenses constituted high crimes and
misdemeanors.
In conformity with English precedents the Senate pronounced judgment,
article by article, in the Pickering case.
The final question in the Pickering judgment was on the removal of
the accused from office.
Meanwhile, on the same day, the Court of Impeachment had convened,
and Mr. Samuel White, of Delaware, inquired whether the question was to
be taken on each article separately, as practiced in the House of
Lords, or on the whole
-----------------------------------------------------------------------
\1\ House Journal, pp. 642, 643; Annals, p. 1169.
Sec. 2339
together. He hoped upon each separately, as gentlemen might wish to
vote affirmatively on some and negatively on others, from which
privilege they must be precluded by giving but one general vote of
guilty or not guilty. He would, therefore, beg leave to submit to the
consideration of the court the following as the form of the question to
be put to each member upon each article of impeachment, viz:
Is John Pickering, district judge of the district of New Hampshire,
guilty of high crimes and misdemeanors upon the charges contained in
the----article of impeachment or not guilty?
For this form of question, Mr. White observed, he could adduce
precedent. It was nearly the same as was used in the very celebrated
case of Warren Hastings, and he presumed would collect the sense of the
court with as much certainty as any that could be proposed, which was
his only object.
After some conversation, Mr. Joseph Anderson, of Tennessee, moved the
following as the form and prayed that it might be taken up:
Is John Pickering, district judge of the district of New Hampshire,
guilty as charged in the----article of impeachment exhibited against
him by the House of Representatives?
The President pro tempore declared that it would not be in order to
take it up till the motion of the gentleman from Delaware was acted
upon, as it was first before the court and had not yet been disposed of
in any way, and was about to put the question following upon it, when--
Mr. Joseph Anderson, of Tennessee, mentioned that he had objections
to the form of question proposed by the gentleman from Delaware and
moved to strike out the words ``of high crimes and misdemeanors.''
On motion, the galleries were cleared and the doors closed. After
some debate, Mr. White's form of question was lost--only 10 voting in
favor of it and 18 against it.
Mr. Anderson's form was then adopted--yeas 18, nays 9.
Mr. White stated that he believed Judge Pickering had practiced much
of the indecent and improper conduct charged against him in the
articles of impeachment; that he had been seen intoxicated and heard to
use very profane language upon the bench; that he had acted illegally
and very unbecoming a judge in the case of the ship Eliza, as charged
against him in the articles, but that he was very far from believing
that any part of his conduct amounted to high crimes and misdemeanors
or that he was in any degree capable of such an offense, because, after
the testimony the court had heard, scarcely a doubt could remain in the
mind of any gentleman but that the judge was actually insane at the
time; and Mr. White wished to know whether it was to be understood by
the two last votes just taken that the court intended only to find the
facts and to avoid pronouncing the law upon them; that they could have
it in view to say merely that Judge Pickering had committed the
particular acts charged against him in the articles of impeachment and
upon such a conviction, to remove him, without saying directly or
indirectly whether those acts amounted to high crimes and misdemeanors
or not; for in the several articles they are not so charged, though
judgment is demanded upon them as such. Upon such a principle and by
such a mode of proceeding good behavior, he observed, would be no
longer the tenure of office; every officer of the
Sec. 2339
Government must be at the mercy of a majority of Congress, and it would
not hereafter be necessary that a man should be guilty of high crimes
and misdemeanors in order to render him liable to removal from office
by impeachment, but a conviction upon any facts stated in articles
exhibited against him would be sufficient.
Mr. Jonathan Dayton, of New Jersey, observed that the honorable
gentleman from Virginia seemed to be offended at the language of his
honorable friend from Delaware, who, in speaking of the proceedings on
the impeachment, had called them a mere mockery of trial. To such
terms, however, the ears of that honorable gentleman must be accustomed
and accommodated, for, whilst either he or his friend had the honor of
a seat in that body, they should designate this trial by no other
character. It deserved no better appellation and would be thus
characterized in all parts of the United States where these proceedings
could be seen and understood.
That the conclusion of this exhibition might perfectly correspond
with its commencement and progress, that the catastrophe might comport
with the other parts of the piece, the Senate were now to be compelled,
by a determined majority, to take the question in a manner never before
heard of on similar occasions. They were simply to be allowed to vote,
whether Judge Pickering was guilty as charged--that is, guilty of the
facts charged in each article--aye or no. If voted guilty of the facts,
the sentence was to follow, without any previous question whether those
facts amounted to a high crime and misdemeanor. The latent reason of
this course was, Mr. Dayton said, too obvious. There were numbers who
were disposed to give sentence of removal against this unhappy judge,
upon the ground of the facts alleged and proved, who could not,
however, conscientiously vote that they amounted to high crimes and
misdemeanors, especially when committed by a man proved at the very
time to be insane and to have been so ever since, even to the present
moment. The Constitution gave no power to the Senate, as the High Court
of Impeachments, to pass such a sentence of removal and
disqualification, except upon charges and conviction of high crimes and
misdemeanors. The House of Representatives had so charged the judge and
had exhibited articles in maintenance and support, as they themselves
declared, of those charges. The Senate had received and heard the
evidence adduced by the managers and had gone through certain forms of
a trial, and they now, by a majority, dictated the form of a final
question the most extraordinary, unprecedented, and unwarrantable. For
himself, Mr. Dayton said, he felt at a loss how to act. He was free to
declare that he believed the respondent guilty of most of the facts
stated in the articles, but, considering the deranged state of
intellect of that unfortunate man, he could not declare him guilty in
the words of the Constitution; he could not vote it a conviction under
the impeachment. Let the question be stated, as had been proposed by
his honorable friend from Delaware, agreeably to the form observed in
the well recollected case of Warren Hastings:
Is John Pickering guilty of a high crime and misdemeanor upon the
charge contained in the first, the second, the third, or the fourth
article of the impeachment, or not guilty?
Or, if the court preferred it, he should have no objection against
taking the preliminary question, whether guilty of the facts charged in
each article, provided
Sec. 2340
they would allow it to be followed by another most important question,
viz: Whether those facts, thus proved and found, amounted to a
conviction of high crimes and misdemeanors, as charged in the
impeachment, and expressly required by the Constitution. Both these
forms of stating the question were, it was now too evident, intended to
be refused by the majority, and thus a precedent established for
removing a judge in a manner unauthorized by that charter.
Mr. White asked whether, after the question now before the court--
which goes merely to settle, as gentlemen themselves believe, the point
whether Judge Pickering has committed the particular acts charged
against him in the articles of impeachment or not--should be decided,
it would then be in his power to obtain a vote of the court upon
another question which, without presenting at present, he would state
in his place, viz: Is it the opinion of this court that John Pickering
is guilty of high crimes and misdemeanors, upon the charges exhibited
against him in the articles of impeachment preferred by the House of
Representatives?
The President pro tempore replied that he thought such a motion could
not be received after the vote had been taken.
Mr. Wright submitted the following as the final question, viz:
Is the court of opinion that John Pickering be removed from the
office of judge of the district court of the district of New Hampshire?
This form was agreed to.
2340. Pickering's impeachment continued.
In the Pickering impeachment certain Senators retired from the court
because dissatisfied with form of the question on final judgment.
Messrs. John Armstrong, of New York; Stephen R. Bradley, of Vermont;
David Stone, of North Carolina; Jonathan Dayton, of New Jersey; and
Samuel White, of Delaware, retired from the court. The two last not
because they believed Judge Pickering guilty of high crimes and
misdemeanors, but because they did not choose to be compelled to give
so solemn a vote upon a form of question which they considered an
unfair one, and calculated to preclude them from giving any distinct
and explicit opinion upon the true and most important point in the
cause, viz, as to the insanity of Judge Pickering, and whether the
charges contained in the articles of impeachment, if true, amounted in
him to high crimes and misdemeanors or not.
2341. Pickering's impeachment continued.
In final judgment the court found Judge Pickering guilty in all the
articles and decreed his removal from office.
Final judgment being pronounced, the court of impeachment in
Pickering's case adjourned sine die.
The question was then taken in the presence of the managers and of
the House of Representatives, and decided as follows:
On the question--
Is John Pickering, district judge of New Hampshire, guilty as charged
in the first article of impeachment exhibited against him by the House
of Representatives?
It was determined in the affirmative, yeas 19, nays 7.
Sec. 2341
The same question was put, in the same way, on the three remaining
articles, and decided by a like result.
On the question--
Is the court of opinion that John Pickering be removed from the
office of judge of the district court of the district of New Hampshire?
It was determined in the affirmative, yeas 20, nays 6.
The court then adjourned sine die.
The Senate Journal \1\ records simply the fact of the sitting and
adjournment of the court, as on other days, and makes no mention of the
result of the trial.
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\1\ Senate Journal, p. 374.