THE REIGN OF TERROR




    About four thousand years ago, the Babylonian King, Hammurabi, gave the world its first written code of laws.  A copy was found in the Middle East in 1901.  It contained 282 laws engraved on an eight-foot block of stone.  One can still view it in the Louvre in Paris.  Hammurabi's Code is considered one of the most important social advances in all of history.  Written laws make it harder to hide corrupt and biased court rulings [1].


    The Code’s first five laws addressed the operation of the courts of justice; the fifth law specified penalties for “errors” by judges.  Any judge who erred through his own fault would pay a fine equal to twelve times the fine he had imposed in the case he mishandled.  He would also be permanently removed from office [1].


    A likeness of Hammurabi appears on a wall inside the U. S. Supreme Court building.  Supreme Court justices claim him as their forefather.  They proudly cite our written Constitution as the basis of their authority.  They claim to be its spokesmen and defenders, and they’ve all taken oaths to uphold it.  However, they violate their oaths with impunity; they began trashing our written Constitution more than 200 years ago.


    In 1791, “We The People” amended the Constitution to incorporate a Bill of Rights.  We wanted to keep the new federal government honest; it was big and far away.  Having just got rid of English tyranny, our founders wanted to guard against the emergence of a home-grown version of the same evil.  It turned out their fears were fairly well placed.  Tyranny raised its ugly head in America before the decade was out.



THE WISE, THE RICH, AND THE GOOD”


    During the nation’s first decade, members of the Federalist party ran the federal government.   They had played a leading role at its birth.  They had some good ideas and good political skills.   So they supplied our first two presidents and had early majorities in Congress.  George Washington, our first president, was a Federalist.  His style, however, was really that of an enlightened centrist.  He had brilliant men from both parties in his cabinet.  He listened to their advice, then he made the big decisions himself.  Unfortunately, he allowed himself to be talked into appointing some lousy judges.


    The next president was John Adams, also a Federalist.  Adams had some people in his cabinet with awful ideas; and he often let them lead him around by the nose.  Historians describe the Federalist ideal during his time in office as rule by "the wise, the rich, and the good.” [2].


    Many leading Federalists thought like English aristocrats, not like servants of “We the People.”  And during their time in power, they appointed judges who shared their attitudes.  As a result, the ink was hardly dry on the Bill of Rights before federal judges acted to trash it.


    As early as 1793 they claimed the power to try American citizens for crimes under English common law.  The common law had been made up by English judges over the prior six centuries; and it had a mind boggling list of crimes from which our judicial employees claimed the right to choose.  A few years earlier, we had fought a revolution to get rid of English rule.  But now our federal judges claimed the right to impose it on us anyway.  Americans were arrested, indicted, tried and punished for crimes that did not exist under American law [3].


    Criticizing the English King was a very serious common law crime.  And Supreme Court justices wasted little time in applying that law in America; never mind the First Amendment.  In 1797, they went after a Virginia congressman named Samuel J. Cabell.  Cabell had criticized Federalist policies in a letter he wrote to his constituents.  By order of James Iredell, a Supreme Court justice, Cabell was charged, before a grand jury, with spreading “unfounded calumnies against the happy government of the United States . . . to separate the people therefrom, . . .” [4].

                 

    In June, 1798, Benjamin Bache, editor of a Philadelphia newspaper, was arrested on a warrant issued by a federal judge, and charged with sedition under the English common law.  Bache had the gall to refer to President John Adams, who was short, stout, and had a big ego, as “His Rotundity.”  He also referred to the president as “old, querulous, bald, blind, crippled, toothless Adams.”  Bache escaped trial and punishment only by dying of yellow fever [4].


    In June 1801, Chief Justice John Marshall instructed the district attorney to prosecute a Washington newspaper, the National Intelligencer, for seditious libel under English common law.   The editors had published a letter which attacked the political bias of the federal judiciary, finding “the asylum of justice impure” [5].



THE SEDITION ACT


    The people were quite upset about the abuses of power described above.  So, when the Federalists decided to put a stop to criticism they were receiving for their aristocratic ways, they didn’t want to rely on the common law to deal with the problem.  It seemed safer to trash the Bill of Rights.  In July 1798, they passed the Sedition Act.


    The First Amendment, then only seven years old, ordered that “Congress shall make no law . . . . abridging the freedom of speech, or of the press, . . .”  The Sedition Act defied that mandate, providing a fine of up to $2000 and up to two years in jail for any “false, scandalous, and malicious” statements against the government, the president, or the Congress.  The Act excluded Thomas Jefferson, the vice-president, from its protection.  He was a Republican and was viewed by the Federalists as a political enemy [6].


    In hopes of sugar coating an unpopular law, the Federalists wrote the Act to require that malicious intent must be proved in sedition cases.   Evidence of the truth of the alleged libel must be admissible as a defense; and the trial jury would have the right to determine the law as well as the facts of the case.  Then they argued that all they were trying to do was improve on the English common law which contained none of these protections.  However, hardly anybody believed that Federalists judges would obey these constraints.  And they didn’t [7].


      A historian, named Bowers, has described the conduct of our judicial employees during the late 1790's, as a "Reign of Terror."  Under the Sedition Act, twenty-five people, all Republicans, were arrested.  Fourteen were indicted, and ten were tried and convicted.  Every trial, every grand jury action, and every arrest warrant was part of a political witch hunt.  Federal judges refused to allow defense counsel to argue that the Sedition Act was unconstitutional, thus defying the express requirements of the Act itself.  They supervised the “packing” of both grand juries and trial juries with loyal Federalists and harangued them with partisan diatribes.  These actions obviously defied the Sixth Amendment’s guarantee of trial by an “impartial jury.”  The most visible offender was a character named Samuel Chase [8].



PAYBACK TIME


    The Sedition Act not only failed to protect the Federalists from criticism, the Act, and the tyrannical behavior of Federalists judges who enforced it, infuriated the people against them.   Americans had gone to a lot of trouble to get free of English tyrants; and they were not about to accept a home-grown version of the same evil.  Short of another Revolution, however, there was nothing the people could do about a renegade Supreme Court.  So they did the next best thing.  In the elections of 1800, they kicked out John Adams and the Federalist congressional majority, electing Thomas Jefferson as president and giving the Republicans control of both houses of Congress.  Even after the Republicans took office, the judges were not all prudent enough to see the danger in continuing their outrageous behavior.  Associate Justice Samuel Chase was perhaps the most imprudent of them all.


    In a charge to a Baltimore grand jury in 1803, Chase roasted President Jefferson and ridiculed the notion “that all men, in a state of society, are entitled to enjoy equal liberty and equal rights.”   He also attacked the people of Maryland for amending their Constitution to eliminate property qualifications for access to the vote.  In explaining their duties to the grand jurors, Chase instructed them that “our republican constitution will sink into a mobocracy” as a result of this misguided amendment to the Maryland Constitution [9].


    The Republican majority that came to power after the elections of 1800 had not forgotten the Reign of Terror and, by 1803, they were in a housecleaning mood.  They had long believed that some rogue judges should be fired for trashing the Constitution.  Samuel Chase raised his head at the wrong time.  After his outrageous grand jury charge, the House of Representatives decided to impeach him.



OLD BACON FACE


    Supreme Court justice Samuel Chase had a checkered past.  He had been a member of the Continental Congress during the Revolution.  However, he was caught using inside information gained from his position in the Congress in an attempt to corner the wheat market.  So he was kicked out in disgrace and went back to Maryland to practice law [10].


    Chase was big, loud, obnoxious, and red faced.  His colleagues in the Maryland bar called him “old bacon face.”  However, he had a very sharp legal mind.  After a decade or so, he rehabilitated himself with his legal skills and a rabid Federalist bias.  So he was appointed to the Supreme Court in 1796.  He remained on the Court until his death in 1811.  Chase presided over several trials under the Sedition Act and became the most prominent judicial terrorist of the era.   His conduct in the Callender trial was a typical episode during the Reign of Terror.  And it figured prominently in his impeachment [10].


    During the two or three years the Sedition Act was in force, James Callender, a famous muckraker, had focused his talents on President John Adams.  In his 1798 pamphlet, The Prospect Before Us, he described the Adams administration as “one continual tempest of malignant passions” and opined that “the only limit upon President Adams’s career of profligacy and corruption was his stupidity” [11].


    In 1800, acting as prosecutor as well as judge, Justice Chase charged a grand jury to indict Callender for sedition and provided it with a copy of the pamphlet with the offending passages underlined.  He was later quoted as ordering the court clerk to “to look over the panel (jury pool) and if there were any (democrats on it to) strike them off” [12].


    During the trial, Chase refused to allow the defense lawyers to argue that the Sedition Act was unconstitutional.  He also barred the presentation of certain evidence to prove the truth of some “libelous” statements.  These actions defied express provisions of the Sedition Act itself [13].


    The House of Representatives impeached Chase him in 1804.   It then appointed a committee to press the case against him in the Senate which had a large Republican majority.  Nevertheless, in early 1805, the Senate failed to convict Chase.  A conviction required the votes of two-thirds of the Senators.  The votes weren't there.


    According to various historians, the House managers of the trial in the Senate bungled the case.   They just weren't as smart as Chase's defense lawyers.  They proved that Chase stacked the jury in the Callender trial.   With the cooperation and approval of Chief Justice John Marshall, Chase managed to empanel a jury with no Republicans in Virginia, a state in which Republicans abounded [14].


    They also proved that Chase had defied protections written into the Sedition Act by refusing to permit defense counsel to argue that the Act was unconstitutional and by blocking the submission of proof that the claimed libel was true.  They proved that he had subjected juries to partisan harangues [14].


    None of that was good enough.  The few surviving Federalists in the Senate voted as a bloc to protect Chase.   And Chase’s five defense attorneys were clever enough to seduce several Republican votes.   Robert Goodloe Harper, a Federalist leader in the House and Chase defense lawyer, flummoxed the House managers with a variation on the old argument, “everyone else is doing it, so it must be OK."


    Harper pointed out that most of the federal judges currently in office had committed the same offenses as Chase.  In order for the Congress to be consistent, if it removed Chase it would have to remove the whole Supreme Court.  The justices were all more or less equally guilty.  That was too much for several Senate Republicans.  They were leery of appearing to conduct a political purge.  So they voted with the Federalist minority against conviction [14].


    That, more or less, is how historians explain the failure of the Chase impeachment today, and they applaud the wisdom of the outcome.  God forbid that the independence of judges be compromised by concerns that they’re trashing the Constitution.  Better to accept the fraudulent claim that the Constitution is whatever the Supreme Court says it is.


    Hammurabi would not have put up with this kind of stuff.  He would have removed Samuel Chase from office and sent him to jail for nine years.  That’s twelve times the sentence Chase imposed on James Callender for exercising his First Amendment rights.  Why bother having a written Constitution if you allow the judges to defy it?




NOTES AND CITATIONS


1. Hammurabi’s code may not actually be the first written code of laws, but only the first one for which a copy has been found. See, for example, the introduction by Charles F. Horne, Ph D, to the online “Hammurabi Page” maintained by Yale Law School’s Avalon Project. At this writing, it could be found at the following URL, http://www.yale.edu/lawweb/avalon/medieval/hammenu.htm.  A translation of the Code by L. W. King can also be found at the Avalon Project web site.


2. The Federalist preference for restricting government to "the wise, the rich, and the good" is discussed in many places. See, for example, McCloskey, page 50. See also Beveridge, Vol. 3, page 43.


3. John Jay, our first Chief Justice, announced the power of federal judges to punish Americans under the English Common Law in 1793; see Beveridge, Volume 3, page 24.


4. See Simon, pages 49-53.


5. See Simon, page 150.


6. See Miller, John C., Pages 65-85. See also Brown, Ralph Adams, pages 123-126 and Simon, pages 51-52. Members of Jefferson's party were called both "Democrats" and "Republicans." Members of the party led by Adams and Hamilton called themselves "Federalists." Our modern Democratic vs. Republican party alignment began in Lincoln's time.


7. See Simon, page 52.


8. This account of judicial outrages during the 1790's was taken mainly from Beveridge, Vol. 3, Chapters I and II, Miller, pages 85-139, and Bowers, 1925. Bowers’s Chapter XVII is entitled "The Reign of Terror." Simon’s Chapter 2, covering more or less the same ground, is entitled “The Reign of Witches.”


9. See, for example, Beveridge, Vol. III, pages 169-70.


10. See Bowers, 1936, pages 271-3. See also Beveridge, Vol. 3., page 184 and Simon, page 153 as well as Chase’s Biographical sketch in the compilation by Cushman..


11. See Miller, John C., page 216. After Jefferson took office as president, Callender turned his muckraking talents on him, accusing Jefferson of “fathering most of the mulattoes at Monticello.” Jefferson ignored him. See Miller, page 220.


12. See Simon, James F., page 55, see also Beveridge, Vol. III, page 191.

 

13. See Beveridge, Vol. III, pages 39-40 and 194.


14. See Beveridge, Vol. III, pages 191-220 and Bowers, 1936, pages 267-293.




BIBLIOGRAPHY


Beveridge, Albert J.; The Life of John Marsall, Vol III (1800-1815);

Houghton Mifflin Co., 1919


Bowers, Claude G.; Jefferson and Hamilton: The Struggle for Democracy in America; Houghton Mifflin Co., The Riverside Press, Cambridge Mass. 1925.


Bowers, Claude G.; Jefferson in Power: The Death Struggle of the Federalists; Houghton Mifflin Company; 1936.


Brown, Ralph Adams; The Presidency of John Adams; The University Press of Kansas; 1975.


Cushman, Clare, Ed.; The Supreme Court Justices: Illustrated Biographies, 1789-1993; Congressional Quarterly, Inc., 1993.


McCloskey, Robert G. The American Supreme Court, Second Edition , Revised by Sanford Levinson, University of Chicago Press, 1994.


Miller, John C.; Crisis in Freedom: The Alien and Sedition Acts; An Atlantic Monthly Press Book, Little Brown and Co., 1951.


Reilly, Don. et. al., Ed.; The Supreme Court of the United States: Its Beginnings and Its Justices 1790-1991.Published in 1992 by the Commission on the Bicentennial of the United States Constitution.


Simon, James F.; What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States; Simon & Schuster; 2002.

 





This article contains excerpts from the January 2000 work, The Temple of Karnak:How Rogue Judges Have Been Strangling Your Democracy.  It also contains material from the 2008 revision of that work, Grand Larceny: An Unexpurgated History of the Supreme Court.


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D. J. Connolly