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SPRINGER BRIEFS IN EDUC ATION

Ricky Lam

Portfolio
Assessment for
the Teaching
and Learning of
Writing

123
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Ricky Lam

Portfolio Assessment
for the Teaching
and Learning of Writing

123
Ricky Lam
Department of Education Studies
Hong Kong Baptist University
Hong Kong, Hong Kong SAR

ISSN 2211-1921 ISSN 2211-193X (electronic)

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Preface

I started my career as a secondary-level English teacher. Back then, what made me

feel challenged was how to teach writing more effectively and how to motivate
students to learn writing more readily. After joining the field for eight years, I was
admitted to a part-time Master of Education Programme and learnt about various
writing instruction methods. One of the instructional approaches I learnt was
portfolio assessment from a concentration core course. Ever since, I was fascinated
by this pedagogical cum assessment approach. As parts of the coursework
requirements, I conducted a small-scale action research study on writing portfolio
assessment in a Grade 10 class. My debut research experience made me believe that
this alternative approach could help students improve writing linguistically and
metacognitively. It was because the product-based approach tended to discredit
student learning potentials in their composing journeys.
Upon completion of my master’s degree, I continued to pursue a doctoral degree
and investigated how two portfolio assessment systems had impacts on
post-secondary student learning motivation, revision behaviours and textual qual-
ities. The doctoral programme paved the way for my current research interest in
using assessment to inform the teaching and learning processes. Besides writing
assessment, I registered Prof. David Carless’s elective course on assessment for
learning in the global context. From that time onwards, I attempted to align the two
major aspects of educational assessment, namely writing portfolio assessment and
assessment for learning, and started looking into the relationship between peda-
gogical and evaluative properties of the portfolio approach when applied in Hong
Kong. Having conducted portfolio research for twelve years, I admit that I remain
ignorant of certain aspects of writing portfolio assessment. For instance, if portfolio
assessment is considered a viable alternative, how does it enhance student writing
ability and metacognitive monitoring capacity? Sim6ilarly, we have little knowl-
edge about student learning management strategies and levels of feedback literacy
when students participate in various writing portfolio programmes.

v
vi Preface

More recently, owing to the global reform initiative, there is a shift in focus from
assessment for learning to assessment as learning, especially in a larger L2 writing
context (Lee 2017). With this in mind, this volume fills this gap by demonstrating
how writing portfolio assessment can extend its applications to a wider educational
context and support student reflective and self-assessment practices. Based on my
humble research experience, state-of-the-art literature and classroom evidence from
my recent funded project, this book provides readers with new theoretical insights,
well-grounded rationale, practical examples and illustrative case studies if they plan
to set up their context-specific portfolio programmes; investigate the effectiveness
of the portfolio approach or simply develop a fuller understanding of how writing
portfolio assessment operates at the classroom level. Finally, the book can serve as
an invaluable text for postgraduate students of applied linguistics, writing assess-
ment scholars, language teacher educators, in-service and pre-service teachers and
programme administrators who are interested in writing portfolio assessment.

Hong Kong Ricky Lam

Reference

Lee, I. (2017). Classroom writing assessment and feedback in L2 school contexts. Singapore:
Springer.
Acknowledgements

First and foremost, I would like to thank the Research Grants Council (RGC) of the
Hong Kong Special Administrative Region, which fully supported my research
project on innovating writing portfolio assessment in Hong Kong secondary-level
schools (HKBU 22400414). The funded project has constituted the backbone of
this scholarly book. The grant I received has provided me with extra free time and
manpower to investigate how portfolio assessment impacts teaching and learning of
writing in the Hong Kong context. Special thanks go to my book editor,
Mr. Lawrence Liu, and his editorial assistant, Ms. Lay Peng Ang, who have guided
me through the publication procedures very professionally.
Next, I wish to express my deepest gratitude to my teacher participants who
volunteered to join the project. Without their enthusiastic participation, I could not
have collected authentic as well as insightful classroom data to write up those
practically oriented case studies for illustrating diverse portfolio concepts.
Additionally, I take this opportunity to thank the principals of all participating
schools. If they did not allow me to get access to their schools for data collection,
the publication of this book would not materialize.
When preparing for the manuscripts of this book, I was busily occupied with
numerous teaching, administrative and research-related commitments. For the
Master of Education Programme, I would like to thank Ms. Phoebe Shek,
Ms. Fanny Wong and Ms. Michelle Lam who gave me unfailing support when
handling programme management matters. For the RGC project, I have to thank my
senior research assistant, Mr. Chris Kwan, who helped me complete most
project-related coordination works and data collection logistics. His contributions to
this book project have been substantial.
Besides, I am extremely grateful to my former and current heads of department
who are Profs. Andy Kirkpatrick, Phil Benson, Sandy Li, Atara Sivan and Vicky
Tam. Without their continued trust, collegial support and acknowledgements,
I cannot imagine that I finally finish writing this book, and make significant con-
tributions to the field of second language writing assessment. Last but not least,
I have to thank my thesis supervisor, Prof. David Carless, and my university

vii
viii Acknowledgements

teachers, Profs. Liz Hamp-Lyons, Icy Lee and Chris Davison, who have encour-
aged me to keep up my momentum whenever I encountered setbacks in my study
and academic careers. Finally, I wholeheartedly dedicate this book to my beloved
wife, Grace, who is supportive, encouraging and inspiring at all times.
Contents

1 Background of Portfolio Assessment . . . . . . . . . . . . . . . . . . . . . . . . . 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Portfolio Assessment in Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Definitions of Writing Portfolio Assessment . . . . . . . . . . . . . . . . . . . . . 3
A Brief History About Writing Portfolio Assessment . . . . . . . . . . . . . . 3
Types, Procedures and Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Benefits and Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Reflection Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Portfolio Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Implementation of Portfolio Assessment . . . . . . . . . . . . . . . . . . . . . . 9
Anticipated Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 Theoretical Basis of Writing Portfolio Assessment . . . . . . . . . . . . . . 13
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Theoretical Foundation of Writing Portfolio Assessment . . . . . . . . . . . . 13
Evolution of Three Assessment Paradigms in Writing . . . . . . . . . . . . . . 16
Review of Portfolio Assessment Scholarship . . . . . . . . . . . . . . . . . . . . 17
Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Writing Portfolio Assessment and Reform Initiatives . . . . . . . . . . . . . . 21
Writing Portfolio Assessment in Examination-Oriented Culture . . . . . . . 22
Group Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Reflection Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ix
x Contents

3 Processes in Portfolio Development Journey . . . . . . . . . . . . . . . . . . . 29

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Portfolio-Keeping and Portfolio Development Procedures . . . . . . . . . . . 29
Assessment Principles for Writing Portfolio Assessment . . . . . . . . . . . . 30
Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Reliability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Authenticity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Practicality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Set-Up of Average Portfolio Assessment Programme . . . . . . . . . . . . . . 34
Alignment of Portfolio Assessment with Writing Instruction . . . . . . . . . 36
Case Study 1: Illustration of Process-Oriented Portfolio Programme . . . 38
Case Study 1: Miss Lee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Thinking Aloud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Case Study 2: Illustration of Product-Oriented Portfolio Programme . . . 39
Case Study 2: Mr. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Thinking Aloud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Evaluation Tasks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Task 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Task 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4 Reflection and Self-assessment in Practice . . . . . . . . . . . . . . . ..... 43
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 43
Definition of Reflection and Self-assessment in Writing Portfolio
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 43
Merits and Drawbacks of Reflection and Self-assessment . . . . . . ..... 44
Scaffolded Reflection and Self-assessment in L2 Portfolio-Based
Classrooms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Rubrics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Exemplars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Reflective Essays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Self-assessment Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Case Study 3: Whole-School Approach to Reflection Programme . . . . . 51
Case Study 3: Winifred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Case Study 4: Use of Dialogue Journals to Support Reflection . . . . . . . 53
Case Study 4: Frankie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Reflection Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Reflection and Self-regulated Learning . . . . . . . . . . . . . . . . . . . . . . . 54
Mini-Debate Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Contents xi

5 Feedback in Writing Portfolio Assessment . . . . . . . . . . . . . . . . . . . . 59

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Role of Feedback in Portfolio Assessment . . . . . . . . . . . . . . . . . . . . . . 59
Feedback and Self-regulated Learning . . . . . . . . . . . . . . . . . . . . . . . . . 61
Self-regulatory Feedback as a Learning-Enhancing Tool . . . . . . . . . . . . 62
Case Study 5: Experimentation of Two Portfolio Assessment Systems:
Feedback Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 63
Case Study 6: Innovation of Portfolio Assessment: Feedback About
Self-regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Pedagogical Implications for Promoting Feedback Literacy . . . . . . . . . . 67
Evaluation Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Discussion Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Feedback and Reflection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Feedback as Learning Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Feedback for Informing Teaching and Learning . . . . . . . . . . . . . . . . 70
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
6 Task Design and Application in Portfolio Programme . . . . ....... 73
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 73
Three Types of Writing Portfolio Assessment: Rationale,
Design and Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Progress Portfolios (Growth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Working Portfolios (Efforts) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Showcase Portfolios (Achievements) . . . . . . . . . . . . . . . . . . . . . . . . 75
Description of Portfolio Task Types . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Selection of Written Genres for Portfolio Programme . . . . . . . . . . . . . . 79
Demonstration of Portfolio Task Construction . . . . . . . . . . . . . . . . . . . 80
Validation of Portfolio Tasks with Five Assessment Principles . . . . . . . 84
Discussion Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Reflection Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
7 Scoring Methods of Writing Portfolio Assessment . . . . . . . . . . . ... 89
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 89
Norm-Referenced and Criterion-Referenced Assessments . . . . . . . . ... 89
Formative, Summative and Evaluative Purposes of Portfolio
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 92
Options in Portfolio Scoring: Holistic, Analytical and Primary Trait
Scoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 94
Issues of Reliability in Portfolio Scoring . . . . . . . . . . . . . . . . . . . . ... 98
Construction and Application of Rubrics in Writing Portfolio
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
xii Contents

Activity 1: Plan and Develop Portfolio Assessment Rubrics . . . . . . . . . 104

Activity 2: Trial Writing Portfolio Marking . . . . . . . . . . . . . . . . . . . . . 104
Role 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Role 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
8 Issues in Portfolio-Based Research and Future Directions . . . . . . . . 109
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Round-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Issues in Portfolio-Based Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Issue in Writing Teacher Assessment Literacy . . . . . . . . . . . . . . . . . 110
Issue in Meso- and Macro-levels Contextual Constraints . . . . . . . . . . 111
Issue in Research–Practice Divide . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Future Directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Promotion of Learner Agency in Reflection . . . . . . . . . . . . . . . . . . . 114
Use of Multimodal Evidence in Portfolio Process . . . . . . . . . . . . . . . 115
Creation of a Portfolio Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Reflection Task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Introduction to the Book

Aims

This book aims to equip teachers, scholars, principals, instructors and administra-
tors with update knowledge and skills when they evaluate student writing with
portfolio assessment and plan ahead related assessment policies to improve edu-
cation. It intends to adopt a holistic approach to illustrate how portfolio assessment
can promote teaching and learning of writing with current assessment scholarship,
classroom evidence and authentic examples adopted by select teachers at school
and university. The book is particularly written for teachers, undergraduates,
postgraduates and assessment scholars who are fervently interested in enriching
their conceptual understanding and practices of writing assessment. With this in
mind, the book is written to present in-depth theoretic ideas and tried-and-tested
examples in an easy-to-read fashion. It can be used as instructional materials for
undergraduate and postgraduate teacher education/applied linguistics courses. For
practitioners who wish to do self-study, this book is also proved to be beneficial for
continued professional development. This volume provides prospective readers
with insightful yet comprehensive perspectives, evidence, illustrations and recom-
mendations for trialing writing portfolio assessment in their work contexts. It is
hoped that after reading, teachers and researchers can find portfolio experience
academically rewarding to empower teacher learning of assessment and to broaden
writing assessment scholarship, respectively.

Structure of the Book

This volume has eight chapters, which are thematically sequenced into four sections,
namely from theory and principles to practice and recommendations. The first section,
which covers Chaps. 1 and 2, is about the background and theoretical basis of writing

xiii
xiv Introduction to the Book

portfolio assessment. The second section, which includes Chaps. 3–5, is mainly about
the development of portfolio assessment programmes and their characteristics such as
reflection and self-regulated learning. The third section, which comprises Chaps. 6
and 7, is about the design, application and scoring methods of specific portfolio
programmes. The final section is represented by Chap. 8, which summarizes what has
been discussed in the previous chapters, and points to issues, future directions and
recommendations of writing portfolio assessment if applied in the first language (L1)
and the second language (L2) educational contexts. In the following, I will describe
the content of each chapter in detail.
The book starts with describing the origin of portfolio assessment in education,
followed by a discussion on what writing portfolio assessment is in terms of its
definition, history, types, procedures and applications. Chapter 1 ends with
depicting the benefits and limitations of the portfolio approach with reader reflec-
tion tasks. Chapter 2 focuses on the theoretical rationale of writing portfolio
assessment against the backdrop of three assessment paradigms. It continues to
systematically review L1 and L2 portfolio scholarship for understanding its trends
and latest development. Issues of promulgating portfolio assessment within a larger
assessment reform landscape in the Asian contexts are on the agenda.
Chapter 3 explores the journey of writing portfolio assessment like
portfolio-keeping and portfolio development procedures. The rationale and
description of average portfolio processes are elaborated. Afterwards, five assess-
ment principles are discussed relating to the application of writing portfolio
assessment. Strategies concerning how to set up an individual portfolio programme
are included. Two case studies on featured portfolio programmes are utilized as
illustrative examples for in-class discussion and evaluation tasks. As reflection and
self-assessment are at the heart of portfolio assessment, Chap. 4 discusses their
definitions, merits, drawbacks and practices based on my recent research project on
teacher implementation of portfolio assessment systems in Hong Kong senior
secondary classrooms. Derived from these findings, authentic examples and rec-
ommendations on scaffolded self-reflection practices are described and evaluated.
Chapter 5 is about feedback in portfolio assessment of writing. The chapter starts
with discussing the role of feedback in portfolio assessment and then the rela-
tionship between feedback and self-regulated learning. It further illustrates how
feedback can be used as a self-regulatory tool to support learning of writing with
two case studies on teacher experimentation of using feedback in various portfolio
systems. The chapter concludes with the significance of raising feedback literacy in
the writing classroom contexts.
Chapter 6 reveals three types of writing portfolio assessment including progress,
working and showcase portfolios commonly applied at the classroom level. It then
describes how various portfolio task types can be used to support reflection and
self-assessment in writing, followed by selecting the most appropriate written
genres for individual portfolio programmes. Construction of portfolio tasks is
demonstrated and validated by the five assessment principles as mentioned in
Introduction to the Book xv

Chap. 3. Chapter 7 is about scoring methods of writing portfolio assessment. It

starts by introducing norm-referenced and criterion-referenced assessment along-
side multiple purposes of writing portfolio assessment including formative, sum-
mative and evaluative ones. It then discusses three scoring methods typically used
in portfolio assessment including holistic scoring, analytical scoring and primary
trait scoring. Issues of reliability in portfolio scoring are discussed, followed by
recommendations on how to construct and apply rubrics for portfolio assessment.
Finally, the concluding chapter (Chap. 8) discusses perennial issues in
portfolio-based research, namely writing teacher assessment literacy and multilevel
contextual challenges regarding portfolio assessment in practice. Future directions
of writing portfolio assessment are explored including ways of nurturing learner
agency in reflective practices, use of multimodal evidence in the portfolio process
and creation of a positive portfolio culture which supports learning.

Features of the Book

The uniqueness of the book lies in the fact that it combines theory, research and
practical ideas all in one go. I have attempted to use non-technical jargons and
authentic classroom episodes to illustrate certain portfolio concepts. Each chapter
has a central theme relating to multiple aspects of writing portfolio assessment,
namely the theoretical rationale, portfolio development processes, reflection and
self-assessment, self-regulatory feedback in practice, portfolio task design and
application, portfolio scoring methods, and critical issues and future directions of
portfolio assessment. Besides, there are a wide range of post-reading tasks for
readers to acquire theories and practices of writing portfolio assessment. These
activities comprise discussion tasks, reflection tasks, evaluation tasks, mini-debate
tasks, small-group activities and case studies.
Discussion tasks are primarily used to trigger ongoing dialogues on how to apply
the portfolio idea in practice. Reflection tasks require readers to relate their past and
current portfolio trial experiences to the topics under study. If readers have no prior
portfolio experience, they can use the tasks as a starting point to deeply think about
when, why and how the portfolio approach synergizes with their existing work
contexts. Synthesizing localized and globalized portfolio assessment scenarios and
resolving emerging issues when attempting the portfolio concept would help
enhance readers’ understanding of key concepts promoted in this book. Evaluation
tasks expect readers to critique and analyse the sample portfolio-based programme
for broadening their knowledge base on L1 and L2 writing assessment.
Mini-debate tasks and small-group activities are designed to involve readers as a
virtual learning community in any academic writing, TESOL and/or teacher
preparation programmes for extending professional dialogues. Case studies serve to
showcase the implementation of diverse portfolio approaches extracted from my
recent funded project on teacher learning of implementing writing portfolio
assessment in Hong Kong secondary schools. These tasks aim to enhance
xvi Introduction to the Book

instructor–student and student–student interactions if the book is adopted as

mandatory course materials. All in all, the book is the most sought-after volume for
practitioners, scholars, under-/postgraduate students and administrators who would
like to plan, develop and attempt alternative writing assessment as a way to improve
teaching and learning at the classroom level.
Chapter 1
Background of Portfolio Assessment

Introduction

The idea of portfolios refers to a collection of purposeful and meaningful artefacts

which characterize a person’s efforts, professional growth and achievements.
Portfolio application in different domains has entered its third decade using
advanced technology and multimodal evidence to validate one’s portfolio journey,
namely Web-based portfolios or e-portfolios. In this book, portfolios or later on
portfolio assessment are primarily linked to an educational sense, given that the
book is pedagogically situated in L1 and L2 writing classroom contexts. With that
said, portfolios can be broadly used among language users other than English as the
first or second language. They can be introduced across various content subjects,
namely language arts, mathematics, science and general studies. Thus far, profes-
sional and writing literature examining portfolios as an instructional tool has been
extensive. However, research on their use as a trustworthy and practically oriented
assessment tool remains inconclusive and empirically controversial, especially
when portfolios may create the issues of scoring reliability and heavy marking load.
The overarching aim of this book is to explore how portfolios, when used in a larger
L1 and L2 writing context, can serve its pedagogical, learning-enhancing and
evaluative purposes as an up-and-coming approach with validated theories,
authentic examples and illustrative case studies.
The book was planned and eventually written in a climate where standardized
testing has become extraordinarily predominant owing to an accountability culture.
Meanwhile, educationalists and policymakers in Hong Kong have ardently advo-
cated assessment reforms to upgrade the overall quality of teaching and learning
such as classroom-based assessment and other forms of performance assessment
like self- and peer assessment, student–teacher conferences and portfolio assess-
ment. For teachers and administrators, striking a healthy balance between demands
for external accountability and mastery of assessment for learning practices would
become a tug of war, creating an essential, albeit not necessarily unbeatable tension

© The Author(s) 2018 1

R. Lam, Portfolio Assessment for the Teaching and Learning of Writing,
SpringerBriefs in Education, https://doi.org/10.1007/978-981-13-1174-1_1
2 1 Background of Portfolio Assessment

in the language testing landscape. Because of this, the book centrally emphasizes
that portfolios, if used appropriately, can help stakeholders make informed deci-
sions to close student learning gaps, and provides classroom teachers and scholars
with state-of-the-art knowledge and skills to align teaching, learning and assess-
ment of writing via the portfolio approach. To make theoretical contributions to
educational assessment in general and L2 writing assessment in particular, this book
intends to provide a down-to-earth yet empirically proven approach to nurturing a
new generation of assessment-capable teachers, administrators, language testers and
scholars who will apply portfolio assessment as a cutting-edge technology for
promoting critical thinking, reflection and learner independence.

Portfolio Assessment in Education

In education, portfolio assessment has emerged for more than three decades. It
refers to one promising alternative approach to assessment in general education. Its
application, in fact, started in other subject disciplines including architecture,
fashion design, photography, journalism, medical education, teaching education.
The basic idea of portfolio assessment is to showcase a professional’s best per-
formance through a compilation of work which one has developed over time, be
they print, non-print, multimedia or Web-based documentation derived from one’s
own daily practices. The purpose of portfolio assessment primarily deals with
enhancing teaching and learning in specific subject domains, since it can flexibly
serve as an innovative pedagogy, a catalyst to promote quality learning or a
downright assessment instrument which generates quantitative and qualitative
learning evidence. Regardless of its multifarious purposes, portfolio assessment has
stimulated zealous interests among educators who advocate equity, diversity and
morality in education. While people have strong faith in portfolio assessment, its
design, development and actual implementation are much more complicated than
one could imagine. After this brief outline, the following sections continue to
portray portfolio assessment of writing in greater detail, discussing its definition,
history, types, procedures and applications.

Box 1.1: Etymology of Portfolio

The word ‘portfolios’ comes from its Italian origin ‘portafoglio’ in the early
eighteenth century. ‘Portãre’ refers to ‘to carry’, whereas ‘foglio’ means
leaves and sheets. In a general sense, portfolios mean a person who carries
loose papers, artefacts and documents in a portable case. In a pedagogical
sense, portfolios are a running record for learners to review, reflect and
improve their works-in-progress.
Definitions of Writing Portfolio Assessment 3

Definitions of Writing Portfolio Assessment

The word ‘portfolio’ refers to a thin, portable case which contains loose papers,
maps, drawings, photographs, notes and documents. Its Latin origin is ‘portafoglio’
which means ‘to carry’ (porta) and ‘papers’ (foglio; see Box 1.1).
In composition scholarship, writing portfolios equate to student dossiers which
store their coursework in a systematic and purposeful way. For instance, students
are encouraged to keep their notes, quizzes, corrections, homework assignments
and examination papers for review and reflection throughout a study period. They
are commonly used in generic English proficiency courses and academic writing
programmes for various subject disciplines to serve its learning, grading or
reporting purposes. In this book, I use writing portfolio assessment as an
all-embracing term to manifest its multiple purposes when applied in writing
classrooms, namely a dossier for learners, an instructional approach for teachers and
a formative/summative assessment tool for students, teachers, principals and
administrators. With these purposes in mind, writing portfolio assessment refers to a
systematic collection of learner written works for informing teaching, learning and
assessment of writing in a specific language curriculum.
Now, I turn to how writing portfolio assessment is characterized at different
educational levels. At the kindergarten and primary school levels, writing portfolio
assessment is considered a learning companion who provides pupils with scaf-
folding when they develop fundamental composing skills such as vocabulary
building and simple sentence construction with pictorial illustrations (Jones 2012).
At the secondary school level, writing portfolio assessment is broadly defined as a
learning-enhancing catalyst to equip students with reflective skills, metacognitive
thinking and self-regulated learning capacity when they are expected to write for
passing an examination, learning formal written English and communicating with
each other (Burner 2014). In the USA, large-scale writing portfolio assessment was
mainly perceived as a potential alternative to standardized essay testing throughout
the 1990s (Elbow and Belanoff 1997). At the university level, writing portfolio
assessment continues to serve as an exit requirement to identify whether freshmen
are competent in mastering academic writing for their coursework. Not until
recently, more and more university-level academic programmes have incorporated
reflection and self-assessment in their curriculum to enrich student metacognitive
thinking and composing skills (Fox and Hartwick 2011).

A Brief History About Writing Portfolio Assessment

In history, there have been three generations of writing assessment including direct
testing (timed essay tests); multiple-choice testing and portfolio-based assessment
up to present (Hamp-Lyons 2001: 86). Hamp-Lyons went on suggesting the fourth
generation which had four features including technological, humanistic, political
4 1 Background of Portfolio Assessment

and ethical aspects of futuristic writing assessment. Despite this categorization,

Yancey (1999: 484) has classified the three ‘waves’ of writing assessment in her
seminal work, namely objective tests (multiple-choice tests; 1950–70); holistically
scored essays (1971–86) and finally, portfolio assessment and programmatic
assessment (1986–present). Although two scholars have divergent views on the
sequence of essay testing, both agree that writing portfolio assessment has remained
an up-and-coming assessment trend since the late 1980s. In fact, writing portfolio
assessment was first used as a substitute to essay testing in some USA universities
(Belanoff and Dickson 1991). In other comparable programmes, portfolio assess-
ment was used as a placement requirement for first-year composition classes
(Condon and Hamp-Lyons 1991). In the UK, writing portfolio assessment replaced
the one-off writing examination in the General Certificate of Education (GCE) back
in the early 1970s.
Entering the 2000s, writing portfolio assessment is primarily embedded in the
teacher-based assessment paradigm, especially under the influence of assessment
for learning movement. Contrary to the psychometric paradigm, the tenet of
teacher-based assessment implies that student writing performances are evaluated
by their classroom teachers rather than by external examiners who are unfamiliar
with contextualized classroom situations. Furthermore, as portfolio assessment
features learner agency and reflective practices, students are encouraged to
self-evaluate their writing performances following the individualized assessment
paradigm which promotes autonomy and self-efficacy. Psychometric, teacher-based
and individualized assessment paradigms in writing are illustrated in Table 1.1,
which was constructed based on various researchers’ categorization (e.g.
Hamp-Lyons 2001, 2007; Lam 2016). They are epitomized by assessment of
learning, assessment for learning and assessment as learning, respectively.
Assessment of learning serves the purpose of evaluating student writing summa-
tively. Assessment for learning intends to support learning formatively, empha-
sizing a blend of assessment and learning by learner-centric pedagogy. Assessment
as learning aims to facilitate students to become self-regulated learners. In fact, the
three assessment paradigms go hand in hand rather than one superseding the other.
Yet, by addressing the latest trend of global educational reform, teachers,
researchers and administrators are encouraged to pay more attention to assessment
for/as learning than to assessment of learning. The origin and development of three
assessment paradigms in writing will be further discussed in Chap. 2. Historically,
the advent of writing portfolio assessment can be considered a social response to the
psychometric assessment paradigm which emphasizes reliability and standardiza-
tion of assessment results but disregards the testing of high-order writing skills such
as logics, creativity and coherence (Murphy 1994). Notwithstanding its predomi-
nance in the writing assessment landscape, portfolio assessment remains a novel
and non-tried-and-tested approach in certain L2 writing contexts (Hamp-Lyons
2007). Hence, it is imperative to understand how this assessment approach can be
successfully adopted alongside the existing product-based writing programme or as
a stand-alone assessment initiative to support learner reflective practices beyond L1
A Brief History About Writing Portfolio Assessment 5

Table 1.1 Three assessment paradigms

Features Psychometric Teacher-based Individualized
assessment assessment assessment
Learner role Test-takers Learners and Self-regulated learners
knowledge co-creator
Teacher role No involvement Teachers-as-assessors Teachers-as-advisors
Test purpose Evaluative Summative and Formative
Formative
Test content Behaviouristic skills Cognitive skills Metacognitive skills
Test format Standardized Contextualized Personalized
Instructional Teaching-to-the-test Learner-centred Learning-how-to-learn
approach approach approach approach
Scoring of test Norm-referenceda Criterion-referencedb Ipsative-referencedc
Test impact Usually high-stakes Relatively less Usually low-stakes
high-stakes
Test use Limited and Authentic and Authentic and
unauthentic transferrable sustainable
a
Student learning is compared with other students
b
Student learning is evaluated against a set of rubrics
c
Student learning is compared with student early performances

contexts. After surveying the historical perspective, I will discuss the types, pro-
cedures and applications of writing portfolio assessment in the ensuing section.

Types, Procedures and Applications

In general, there are three common types of writing portfolio assessment including
(1) progress portfolios; (2) working portfolios and (3) showcase portfolios. Progress
portfolios encourage students to compile a range of artefacts wherein they can
review their learning improvement in a sustained manner. This approach is mainly
formative although certain learning tasks kept in the portfolio are graded for the
purpose of accountability. Working portfolios, as its name suggests, are used to
track student efforts in portfolio keeping. Students can choose to include finished,
unfinished or unpolished works in their portfolios, demonstrating the extent to
which they have achieved prescribed learning goals relating to the course
requirements. Working portfolios are also like a running record of student learning
history. Showcase portfolios are about a selection of best-written works repre-
senting students’ academic achievements and celebrating students’ continuous
efforts accordingly. The approach is typically summative, yet students can choose
graded or non-graded pieces as their most representative works via reflection and
self-assessment. Progress portfolios emphasize an evaluation of student writing
development over time, namely learning improvement. Working portfolios serve
6 1 Background of Portfolio Assessment

the formative purpose by tracking student efforts in learning writing. Showcase

portfolios feature student achievements in writing by displaying student best works
to key stakeholders.
Of the three portfolio prototypes, they share similar procedures when used in
writing classrooms. The portfolio procedures comprise collection, selection,
self-assessment, reflection and delayed evaluation and are embedded within mul-
tiple feedback sources (Burner 2014). Collection refers to a compilation of student
written works for review and revision. Selection is about students making informed
decisions regarding which portfolio entries are to be put in their dossiers.
Self-assessment focuses on an evaluation of microscopic perspectives of a single
draft in relation to feedback, standards and externally imposed criteria. Close to
self-assessment, reflection deals with a comprehensive mechanism of planning,
monitoring and reviewing the entire composing process. Although some scholars
consider reflection as part of self-assessment, reflection features a more cyclical
metacognitive thinking process than self-assessment, at least within a
portfolio-based context (Lam 2016). Through self-assessment, learners can perform
reflection more critically and independently. Delayed evaluation means that a
summative grade is assigned to a final draft until it is satisfactorily revised with
formative feedback. The average portfolio procedures are illustrated in Fig. 1.1. In
this figure, three feedback loops at the bottom represent feedback sources generated
by self-, peer and/or teacher assessment during the portfolio process. The use of
double-edged arrows in the loops suggests that students keep utilizing multiple
sources of feedback to make informed decisions when collating their portfolio
works for grading. While these portfolio procedures appear to be linear and pre-
scriptive, they are not meant to be a one-size-fits-all by design. Instead, teachers are
advised to apply them flexibly and strategically in order to accommodate their
pedagogical/assessment needs.
Considering its applications, portfolio assessment is likely to operate differently
based on the nature and aim of respective writing programmes. Generally, writing
portfolio assessment can be integrated into process-oriented, product-oriented and

Portfolio Keeping

Reflection/ Delayed
Collection Selection
Self-Assessment Evaluation

Feedback Feedback Feedback

Fig. 1.1 Procedures of writing portfolio assessment Sources Self, peer, and teacher feedback
provided in the portfolio process
Types, Procedures and Applications 7

genre-based curricula. For instance, the portfolio approach is best introduced in

process writing classrooms where self- and peer assessment becomes part of
instructional routines by default. Also, the act of rewriting and reflection could be
easily incorporated into a process-oriented curriculum which facilitates portfolio
keeping and compilation of portfolio writing tasks. With that said, not every
classroom adopts the process approach to writing instruction, especially in L2
educational contexts. In product-based writing classrooms, although students do not
usually write in multiple drafts, they are encouraged to collate all writing tasks and
regularly reflect upon them for monitoring their holistic writing development.
Towards the end of the semester, students are encouraged to compose a cover letter
to review all writing tasks to be kept in the portfolio. Similarly, in genre-based
writing programmes (as in some content and composition courses), the portfolio
concept could assist students to reflectively diagnose whether they are competent
enough to use a particular genre to communicate with the target audience, namely
strong argumentation in an editorial and convincing data sets in a research paper. In
the forthcoming chapters (Chap. 3–6), I will further unpack the application details
of writing portfolio assessment in diverse writing curricula within L2 educational
contexts. The next section discusses the benefits and drawbacks of utilizing writing
portfolio assessment in practice.

Benefits and Limitations

At present, I will go over the benefits of writing portfolio assessment before

describing its drawbacks. First, portfolio assessment enables teachers to make sound
professional judgements in a portfolio-based programme. For example, writing
teachers need to possess proficient knowledge and skills in giving student con-
structive feedback for reflection and revision. Second, portfolio-based pedagogy
empowers teachers to monitor and accommodate student learning needs while stu-
dents are experiencing difficulties in writing. After all, teaching students to write
other than their L1 is a complicated process, especially if students are expected to
master cognitive, motivational and affective aspects of composing strategies con-
currently (Graham and Harris 2013). Third, teachers play an auxiliary role as
co-participants in teaching writing rather than as an authority figure who unilaterally
transmits knowledge to students, emphasizing that students not teachers are at the
centre of learning in the context of the portfolio construction journey. On the lan-
guage learning front, there has been empirical evidence to argue that school-level and
university-level students become more motivated and confident in writing by port-
folios despite their anxiety and initial resistance (Chen 2006). Further, students have
learner choice (i.e. selection) and are encouraged to make judgements during the
portfolio development process. Although teachers believe that portfolio assessment
could help improve student writing, there has been insufficient evidence to validate
the impacts of portfolio assessment on student actual writing improvement, namely
accuracy, vocabulary, content and levels of coherence (Hamp-Lyons 2002).
8 1 Background of Portfolio Assessment

Despite the virtues of writing portfolio assessment, its drawbacks concern teachers,
students, researchers and administrators. The first limitation of portfolio assessment is
workload. Teachers would probably feel snowed under with a huge pile of papers to
be marked within a short timeframe. Likewise, students may not be used to engage in
rewriting and resubmitting the same draft for comments which require additional time,
energy and commitments. The second limitation is portfolio scoring. Using portfolios
to judge student writing is complex, as the composing processes involving efforts,
goal-setting, motivation and metacognitive writing skills are hard to be systematically
assessed, let alone grading a wide array of written genres including the reflective
piece. Another challenge of portfolio scoring is subjectivity (rater bias) and consis-
tency (extended portfolio reading). Detailed discussion on portfolio scoring is covered
in Chap. 7. Arising from the setback of subjectivity, the issue of fairness cannot be
overlooked, given suspected plagiarism and ghostwriting cases may be identified with
electronic checks for unoriginal materials. Because writing portfolios are usually
constructed over time, it is rather difficult for teachers to discern whether all works are
done by students themselves without external assistance.
The other shortcoming of portfolio assessment is that students may not find it
straightforward to master those self-assessment and reflective skills, which require
the cyclical acts of planning, monitoring and evaluating in the writing process. Used
to the product-based approach to learning writing, students would consider
reflection as self-confession or compliance to externally imposed writing standards
(Torrance 2007). To less confident students, they feel reluctant to reveal their
weaknesses for fear of admitting incompetence in front of the teacher. The last
drawback is about student improper use of learning evidence in portfolios. If fol-
lowing the portfolio procedures uncritically, students become less likely to make
sense of various learning evidence to improve writing such as using cover letters to
diagnose the strengths and weaknesses of drafts or comparing their own drafts with
exemplars to bridge the learning gap. Without analysing and interpreting the
learning evidence appropriately (i.e. acts of iterative reflection), students may not
improve their writing successfully. The aforementioned benefits and drawbacks of
writing portfolio assessment are summarized as follows:
Benefits
• (Teacher) Enhanced writing teacher assessment literacy
• (Teacher) Empowered pedagogical content knowledge
• (Teacher) Shared responsibility in portfolio construction
• (Student) Improved writing motivation and confidence
• (Student) Increased levels of learner autonomy.
Drawbacks
• (Teacher and student) Heavy workload
• (Teacher) Complexity of portfolio scoring
• (Teacher) Issues in fairness
• (Student) Lack of reflective ability
• (Student) Improper use of learning evidence.
Benefits and Limitations 9

Box 1.2: A Portfolio Assessment Initiative

Scenario:
Ms. Lee has taught in a secondary-level school in Hong Kong for four years.
She was used to adopting the product-based approach to teaching writing. She
did not require students to write in drafts nor perform reflection. After attending
a seminar on portfolio assessment, she planned to try out the portfolio
approach in her Grade 10 class where student English proficiency ranged from
average to slightly above average. However, her students were not motivated to
write in English except practicing the past papers for the examination.
Discussion:
1. What advice will you give Ms. Lee if she is going to introduce writing
portfolio assessment in her classroom?
2. What possible challenges can you predict when Ms. Lee adopts
the portfolio approach in her Grade 10 class?

Reflection Task

In the last section of this introductory chapter, I invite you to think about and discuss
the following questions before we venture into the journey of writing portfolio
assessment. These questions are divided into (1) portfolio concepts; (2) implementa-
tion of portfolio assessment and (3) anticipated challenges. Lastly, Box 1.2 illustrates
a scenario where a Hong Kong English teacher decides to try out the portfolio
approach as an assessment initiative to improve teaching of writing. After studying the
scenario, please give advice to the teacher with your professional judgement.

Portfolio Concepts

1. Have you heard about portfolio assessment? Have you ever used the alternative
approach as teachers and learners? If yes, what is your experience when using
the assessment approach?
2. What is your interpretation of writing portfolio assessment?
3. What features of writing portfolio assessment are in line with your current
pedagogical practices in writing?

Implementation of Portfolio Assessment

4. Are there any personal, institutional or national initiatives to promote writing

portfolio assessment in your educational context?
10 1 Background of Portfolio Assessment

5. Which perspectives of writing portfolio assessment do you think are most

appealing to teachers if they plan to trial this assessment method and why?
6. What are the major differences and similarities when writing portfolio assess-
ment is applied in L1 and L2 writing environments? Please give examples.

Anticipated Challenges

7. What are the anticipated challenges if you want to introduce writing portfolio
assessment in the classroom?
8. Do you think you have received sufficient training to implement portfolio
assessment? Why or why not?
9. From student perspectives, what possible challenges do students encounter
when they learn writing using portfolio assessment?

Conclusion

In this opening chapter, I have first unpacked why this book is written and what
portfolios entail. Second, I have introduced the background of portfolio assessment
in general and writing portfolio assessment in particular. Third, I have outlined a
brief history about writing portfolio assessment together with its working defini-
tions. Then, the nuts and bolts of writing portfolio assessment including its types,
procedures and applications were summarized before its potentials and limitations
thoroughly presented. The chapter ended with a learning task for readers to reflect
upon conceptual, implementation and contextual issues about writing portfolio
assessment. The second chapter features the theoretical rationale and empirical
research on portfolio assessment in L1 and L2 writing classrooms and discusses
how portfolio assessment is contextually embedded in a larger assessment reform
landscape.

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139–149.
Chen, Y. (2006). EFL instruction and assessment with portfolios: A case study in Taiwan. Asian
EFL Journal, 8(1), 69–96.
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(pp. 487–504). Norwell, MA: Springer.
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assess language learning in the primary school. Education 3–13, 40(4), 401–416.
Lam, R. (2016). Assessment as learning: Examining a cycle of teaching, learning, and assessment
of writing in the portfolio-based classroom. Studies in Higher Education, 41(11), 1900–1917.
Murphy, S. (1994). Portfolios and curriculum reform: Patterns in practice. Assessing Writing, 1(2),
175–206.
Torrance, H. (2007). Assessment as learning? How the use of explicit learning objectives,
assessment criteria and feedback in post-secondary education and training can come to
dominate learning. Assessment in Education: Principles, Policy & Practice, 14(3), 281–294.
Yancey, K. B. (1999). Looking back as we look forward: Historicizing writing assessment.
College Composition and Communication, 50(3), 483–503.
Chapter 2
Theoretical Basis of Writing Portfolio
Assessment

Introduction

In this chapter, I will thoroughly discuss the theoretical foundation of writing

portfolio assessment from two major perspectives: transformation of writing
instruction and evolution of writing assessment in the past three decades. Second, I
will describe the three assessment paradigms, namely psychometric, teacher-based
and individualized paradigms which theoretically underpin the use of indirect tests,
direct tests and performance assessments in the history of writing assessment,
respectively. Third, I will systematically review the trends, outcomes and impacts
of portfolio assessment in the contexts of L1/L2 composition and educational
assessment research. Afterwards, the relationship between the arrival of writing
portfolio assessment and global assessment reform movement is further explored
and synthesized to enrich key stakeholders’ understanding of the theoretical and
pedagogical contributions made by the portfolio approach. Finally, I will examine
the possible tensions and challenges when writing portfolio assessment is intro-
duced in a larger examination-oriented culture such as Hong Kong. The chapter
ends with a group activity about developing a portfolio programme and a reflection
task on examining the issues of direct tests and performance assessment of writing.

Theoretical Foundation of Writing Portfolio Assessment

In writing, there has been a constant shift in pedagogies over time. Of all methods,
grammar translation has remained the most popular one in the modern era of
language education. It emphasizes student manipulation of vocabulary, grammatical
rules and linguistics structures by rote rather than acquisition of communicative
competence by interaction (Ferris and Hedgcock 2014). One major theory of

© The Author(s) 2018 13

R. Lam, Portfolio Assessment for the Teaching and Learning of Writing,
SpringerBriefs in Education, https://doi.org/10.1007/978-981-13-1174-1_2
Another random document with
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 CHAPTER VII.
The extraordinary success which marked Jefferson’s foreign
relations in the year 1803 was almost equally conspicuous in
domestic affairs. The Treasury was as fortunate as the Department
of State. Gallatin silenced opposition. Although the customs
produced two millions less than in 1802, yet when the Secretary in
October, 1803, announced his financial arrangements, which
included the purchase-money of fifteen million dollars for Louisiana,
he was able to provide for all his needs without imposing a new tax.
The treaty required the issue of six-per-cent bonds for eleven million
two hundred and fifty thousand dollars, redeemable after fifteen
years. These were issued; and to meet the interest and sinking fund
Gallatin added from his surplus an annual appropriation of seven
hundred thousand dollars to his general fund; so that the discharge
of the whole debt would take place within the year 1818, instead of
eighteen months earlier, as had been intended. New Orleans was
expected to provide two hundred thousand dollars a year toward the
interest. Of the remaining four millions, the Treasury already held
half, and Gallatin hoped to provide the whole from future surplus,
which he actually did.
This was ideal success. On a sudden call, to pay out four million
dollars in hard money, and add seven hundred thousand dollars to
annual expenditure, without imposing a tax, and with a total revenue
of eleven millions, was a feat that warranted congratulations. Yet
Gallatin’s success was not obtained without an effort. As usual, he
drew a part of his estimated surplus from the navy. He appealed to
Jefferson to reduce the navy estimates from nine hundred thousand
to six hundred thousand dollars.[89]
“I find that the establishment now consists of the ‘Constitution,’ the
‘Philadelphia,’ each 44, and five small vessels, all of which are now
out, and intended to stay the whole year, as the crew is enlisted for
two years. In my opinion one half of the force,—namely, one frigate
and two or three small vessels,—were amply sufficient.”
 Jefferson urged the reduction,[90] and Secretary Smith
consented. The navy estimates were reduced to six hundred and fifty
thousand dollars, and on the strength of this economy Gallatin made
his calculation. As he probably foresaw, the attempt failed. Whether
in any case Smith could have effected so great a retrenchment was
doubtful; but an event occurred which made retrenchment
impossible.
The war with Tripoli dragged tediously along, and seemed no
nearer its end at the close of 1803 than eighteen months before.
Commodore Morris, whom the President sent to command the
Mediterranean squadron, cruised from port to port between May,
1802, and August, 1803, convoying merchant vessels from Gibraltar
to Leghorn and Malta, or lay in harbor and repaired his ships, but
neither blockaded nor molested Tripoli; until at length, June 21,
1803, the President called him home and dismissed him from the
service. His successor was Commodore Preble, who Sept. 12, 1803,
reached Gibraltar with the relief-squadron which Secretary Gallatin
thought unnecessarily strong. He had the “Constitution,” of 44 guns,
and the “Philadelphia,” of 38; the four new brigs just built,—the
“Argus” and the “Syren,” of 16 guns, the “Nautilus” and the “Vixen,”
of 14 guns; and the “Enterprise,” of 12. With this force Preble set
energetically to work.
Tripoli was a feeble Power, and without much effort could be
watched and blockaded; but if the other governments on the coast
should make common cause against the United States, the task of
dealing with them was not so easy. Morocco was especially
dangerous, because its ports lay on the ocean, and could not be
closed even by guarding the Straits. When Preble arrived, he found
Morocco taking part with Tripoli. Captain Bainbridge, who reached
Gibraltar in the “Philadelphia” August 24, some three weeks before
Preble arrived, caught in the neighborhood a Moorish cruiser of 22
guns with an American brig in its clutches. Another American brig
had just been seized at Mogador. Determined to stop this peril at the
outset, Preble united to his own squadron the ships which he had
come to relieve, and with this combined force,—the “Constitution,”
44; the “New York,” 36; the “John Adams,” 28; and the “Nautilus,” 14,
—sending the “Philadelphia” to blockade Tripoli, he crossed to
Tangiers October 6, and brought the Emperor of Morocco to reason.
On both sides prizes and prisoners were restored, and the old treaty
was renewed. This affair consumed time; and when at length Preble
got the “Constitution” under way for the Tripolitan coast, he spoke a
British frigate off the Island of Sardinia, which reported that the
“Philadelphia” had been captured October 21, more than three
weeks before.
The loss greatly embarrassed Preble. The “Philadelphia” was,
next to the “Constitution,” his strongest ship. Indeed he had nothing
else but his own frigate and small brigs of two and three hundred
tons; but the accident was such as could not fail sometimes to
happen, especially to active commanders. Bainbridge, cruising off
Tripoli, had chased a Tripolitan cruiser into shoal water, and was
hauling off, when the frigate struck on a reef at the mouth of the
harbor. Every effort was made without success to float her; but at
last she was surrounded by Tripolitan gunboats, and Bainbridge
struck his flag. The Tripolitans, after a few days’ work, floated the
frigate, and brought her under the guns of the castle. The officers
became prisoners of war, and the crew, in number three hundred or
more, were put to hard labor.
The affair was in no way discreditable to the squadron. Morris
had been recalled in disgrace for over-caution, and Bainbridge was
required to be active. The Tripolitans gained nothing except the
prisoners; for at Bainbridge’s suggestion Preble, some time
afterward, ordered Stephen Decatur, a young lieutenant in command
of the “Enterprise,” to take a captured Tripolitan craft re-named the
“Intrepid,” and with a crew of seventy-five men to sail from Syracuse,
enter the harbor of Tripoli by night, board the “Philadelphia,” and
burn her under the castle guns. The order was literally obeyed.
Decatur ran into the harbor at ten o’clock in the night of Feb. 16,
1804, boarded the frigate within half gun-shot of the Pacha’s castle,
drove the Tripolitan crew overboard, set the ship on fire, remained
alongside until the flames were beyond control, and then withdrew
without losing a man, while the Tripolitan gunboats and batteries
fired on him as rapidly as want of discipline and training would allow.
Gallant and successful as the affair was, it proved only what was
already well known, that the Tripolitans were no match for men like
Decatur and his companions; and it left Preble, after losing in the
“Philadelphia” nearly one third of his force, still strong enough to do
the work that needed to be done.
The frigate had been built by the citizens of Philadelphia, and
given to the government in 1799. So far as the ship was concerned,
the loss was not much regretted, for the Republicans when in
opposition had strenuously opposed the building of frigates, and still
considered them a danger rather than a defence. Although the
“Philadelphia” was the newest ship in the service, a companion to
the “Constellation,” the “Congress,” and the “Chesapeake,” she was
never replaced; two 18-gun brigs, the “Hornet” and the “Wasp,” were
constructed instead of one 38-gun frigate; and these were the last
sea-going vessels built under Jefferson’s administration. The true
annoyance was not that a frigate had been lost, but that the captivity
and enslavement of the crew obliged Government to rescue them
and to close the war, by a kind of expenditure which the Republican
party disliked.
Bainbridge’s report of his capture, which had happened at the
end of October, 1803, was sent to Congress March 20, 1804, in the
last week of the session. The President sent with it a brief Message
recommending Congress to increase the force and enlarge
expenses in the Mediterranean. As Gallatin never willingly allowed
his own plans for the public service to be deranged, Congress
adopted a new means for meeting the new expense. Although the
Treasury held a balance of $1,700,000, Gallatin would not trench
upon this fund, but told Randolph, who was Chairman of the Ways
and Means Committee, that the specie in the Treasury could not be
safely reduced below that amount.[91] He informed Joseph Nicholson
that $150,000 was the utmost sum he could spare. The sum wanted
was $750,000 per annum. A Bill was introduced which imposed an
additional duty of 2½ per cent on all imports that paid duty ad
valorem. These imports had been divided, for purposes of revenue,
into three classes, taxed respectively 12½, 15, and 20 per cent; the
increase raised them to 15, 17½, and 22½ per cent. The average ad
valorem duty was before about 13½; the additional tax raised it
above 16 per cent; and the Republicans preferred this method of
raising money as in every way better than the system of internal
taxation. After imposing the additional duty of 2½ per cent,—a duty
intended to produce about $750,000,—the Bill made of it a separate
Treasury account, to be called the “Mediterranean Fund,” which was
to last only as long as the Mediterranean war should last, when the
2½ per cent duty was to cease three months after a general peace.
The Mediterranean Fund was meant as a protest against loose
expenditure,—a dike against the impending flood of extravagance.
The Mediterranean war was the first failure of President Jefferson’s
theory of foreign relations, and the Mediterranean Fund was the
measure of the error in financial form. No reproach henceforward
roused more ill temper among Republicans than the common charge
that their elaborate financial precautions and formalities were a
deception, and that the Mediterranean Fund was meant to conceal a
change of principle and a return to Federalist practices. Even in the
first words of the debate, Roger Griswold told them that their
plausible special fund was “perfectly deceptive,” and amounted to
nothing. John Randolph retaliated by declaring that the Republican
government consisted of men who never drew a cent from the
people except when necessity compelled it; and Griswold could not
assert, though he might even then foresee, that for ten years to
come, Randolph would denounce the extravagance and waste of the
men whom he thus described.
The annexation of Louisiana, the constitutional amendment in
regard to the Vice-presidency, the change of financial practices
foreshadowed by the Mediterranean Fund, were signs of reaction
toward nationality and energy in government. Yet the old prejudices
of the Republican party had not yet wholly lost their force. Especially
the extreme wing, consisting of men like John Randolph and W. B.
Giles, thought that a substantial reform should be attempted.
Increase of power encouraged them to act. The party, stimulated by
its splendid success and irresistible popularity, at length, after long
hesitation, prepared for a trial of strength with the last remnant of
Federalism,—the Supreme Court of the United States.
 A year of truce between Congress and the Supreme Court had
followed the repeal of the Judiciary Act. To prevent Chief-Justice
Marshall and his associates from interfering with the new
arrangements, Congress in abolishing the circuit courts in 1801 took
the strong measure of suspending for more than a year the sessions
of the Supreme Court itself. Between December, 1801, and
February, 1803, the court was not allowed to sit. Early in February,
1803, a few days before the Supreme Court was to meet, after
fourteen months of separation, President Jefferson sent an ominous
Message to the House of Representatives.
“The enclosed letter and affidavits,” he said,[92] “exhibiting matter
of complaint against John Pickering, district judge of New Hampshire,
which is not within executive cognizance, I transmit them to the House
of Representatives, to whom the Constitution has confided a power of
instituting proceedings of redress if they shall be of opinion that the
case calls for them.”
The enclosed papers tended to show that Judge Pickering, owing
to habits of intoxication or other causes, had become a scandal to
the bench, and was unfit to perform his duties. At first sight the
House of Representatives might not understand what it had to do
with such a matter; but the President’s language admitted no doubt
of his meaning. The Constitution said that the House of
Representatives “shall have the sole power of impeachment;” and
“all civil officers of the United States shall be removed from office on
impeachment for, and conviction of, treason, bribery, or other high
crimes and misdemeanors.” Jefferson’s Message officially
announced to the House the President’s opinion that Judge
Pickering’s conduct was a misdemeanor within the reach of
impeachment.
The House referred the Message to a committee of five,
controlled by Joseph Nicholson and John Randolph. A fortnight later,
Nicholson reported a resolution ordering the impeachment; and
before the session closed, the House, by a vote of forty-five to eight,
adopted his report, and sent Nicholson and Randolph to the bar of
the Senate to impeach Judge Pickering of high crimes and
misdemeanors. March 3, 1803, the last day of the session, the two
members delivered their message.
Precisely as the House, by the President’s invitation, was about
to impeach Judge Pickering, the Supreme Court, through the Chief-
Justice’s mouth, delivered an opinion which could be regarded in no
other light than as a defiance. Chief-Justice Marshall’s own
appointment had been one of those made by the last President
between Dec. 12, 1800, and March 4, 1801, which Jefferson called
an “outrage on decency,”[93] and which, except as concerned life
offices, he held to be “nullities.” His doctrine that all appointments
made by a retiring President were nullities, unless made with the
consent of the President elect, rested on the argument that the
retiring President was no longer selecting his own but his
successor’s agents. Perhaps it involved also the favorite idea that
the election of 1800 was something more than a change of
Presidents,—that it was a real revolution in the principle of
government. Any theory was sufficient for the Executive, but
executive theories did not necessarily bind the Judiciary. Among the
nominations which, like the appointment of Marshall, were obnoxious
to Jefferson, was that of William Marbury as justice of the peace for
five years for the District of Columbia. The nomination was sent to
the Senate March 2, 1801, and was approved the next day, a few
hours before Jefferson took his oath of office. The commission,
regularly made out, signed by the President, countersigned by John
Marshall the acting Secretary of State, and duly sealed, was left with
other documents on the table in the State Department, where it
came into the possession of Attorney-General Lincoln, acting as
President Jefferson’s Secretary of State. Jefferson, having decided
that late appointments were nullities, retained Marbury’s
commission. Marbury, at the December term of 1801, moved the
Supreme Court for a Rule to Secretary Madison to show cause why
a mandamus should not issue commanding him to deliver the
document. The Rule was duly served, and the case argued in
December, 1801; but the Judiciary Act having suspended for
fourteen months the sessions of the Supreme Court, the Chief-
Justice did not deliver his opinion until Feb. 24, 1803.[94]
 The strongest admirers of Marshall admitted that his manner of
dealing with this case was unusual. Where a judgment was to turn
on a question of jurisdiction, the Court commonly considered that
point as first and final. In the case of Marbury the Court had no
original jurisdiction, and so decided; but instead of beginning at that
point and dismissing the motion, the Court began by discussing the
merits of the case, and ruled that when a commission had been duly
signed and sealed the act was complete, and delivery was not
necessary to its validity. Marbury’s appointment was complete; and
as the law gave him the right to hold for five years, independent of
the Executive, his appointment was not revocable: “To withhold his
commission, therefore, is an act deemed by the Court not warranted
by law, but violative of a legal vested right.”
This part of the decision bore the stamp of Marshall’s character.
The first duty of law, as he understood it, was to maintain the sanctity
of pledged word. In his youth society had suffered severely from
want of will to enforce a contract. The national government, and
especially the judiciary, had been created to supply this want by
compelling men to perform their contracts. The essence of the
opinion in Marbury’s case was that the Executive should be held to
the performance of a contract, all the more because of his personal
repugnance. Marshall ruled that Marbury had to his commission a
vested legal right of which the Executive could not deprive him; and
although the Court could not intermeddle with the prerogatives of the
Executive, it might and would command a head of department to
perform a duty not depending on Executive discretion, but on
particular Acts of Congress and the general principles of law. The
mandamus might issue, but not from the Supreme Court, which had
appellate jurisdiction only. In other words, if Marbury chose to apply
for the mandamus to Judge Cranch and the District Court, he might
expect the success of his application.
The decision in Marbury’s case naturally exasperated Jefferson;
but the chief-justice knew the point beyond which he could not go in
asserting the jurisdiction of his court, and was content to leave the
matter as it stood. Marbury never applied for the mandamus in the
court below. The opinion in the case of Marbury and Madison was
allowed to sleep, and its language was too guarded to furnish
excuse for impeachment; but while the President was still sore under
the discourtesy of Marshall’s law, another member of the Supreme
Bench attacked him in a different way. If one judge in the United
States should have known the peril in which the judiciary stood, it
was Justice Samuel Chase of Maryland, who had done more than all
the other judges to exasperate the democratic majority. His
overbearing manners had twice driven from his court the most
eminent counsel of the circuit; he had left the bench without a
quorum in order that he might make political speeches for his party;
and his contempt for the popular will was loudly expressed. In the
cases of Fries and Callender, in 1800, he had strained the law in
order to convict for the government; and inasmuch as his energy
was excess of zeal, for conviction was certain, he had exposed
himself to the charge of over-officiousness in order to obtain the
chief-justice’s chair, which was given to Marshall. That he was not
impeached after the change of administration proved the caution of
the Republican party; but by this neglect Congress seemed to have
condoned his old offences, or at least had tacitly consented to let
their punishment depend on the judge’s future good behavior.
Unluckily Chase’s temper knew no laws of caution. He belonged
to the old class of conservatives who thought that judges, clergymen,
and all others in authority should guide and warn the people. May 2,
1803, barely two months after Marshall’s defiance of the President in
Marbury’s case and the impeachment of Pickering, Justice Chase
addressed the grand jury at Baltimore on the democratic tendencies
of their local and national government.[95]
“Where law is uncertain, partial, or arbitrary,” he said; “where
justice is not impartially administered to all; where property is
insecure, and the person is liable to insult and violence without
redress by law,—the people are not free, whatever may be their form
of government. To this situation I greatly fear we are fast
approaching.... The late alteration of the Federal judiciary by the
abolition of the office of the sixteen circuit judges, and the recent
change in our State Constitution by the establishing of universal
suffrage, and the further alteration that is contemplated in our State
judiciary (if adopted) will in my judgment take away all security for
 property and personal liberty. The independence of the national
judiciary is already shaken to its foundation, and the virtue of the
people alone can restore it.... Our republican Constitution will sink into
a mobocracy,—the worst of all possible governments.... The modern
doctrines by our late reformers, that all men in a state of society are
entitled to enjoy equal liberty and equal rights, have brought this
mighty mischief upon us; and I fear that it will rapidly progress until
peace and order, freedom and property, shall be destroyed.”
At the moment of Justice Chase’s outburst to the Baltimore grand
jury, the President was at Washington deeply interested in the
Louisiana business, and unaware that on the day when Chase
delivered his tirade Livingston and Monroe in Paris were signing their
names to a treaty which put the Administration beyond danger from
such attacks. When he saw in the newspapers a report of what had
been said from the bench at Baltimore, he wrote to Joseph
Nicholson, in whose hands already lay the management of
Pickering’s impeachment:[96]—
“You must have heard of the extraordinary charge of Chase to the
grand jury at Baltimore. Ought this seditious and official attack on the
principles of our Constitution and on the proceedings of a State to go
unpunished; and to whom so pointedly as yourself will the public look
for the necessary measures? I ask these questions for your
consideration; for myself, it is better that I should not interfere.”

“Non-intervention,” according to Talleyrand, “is a word used in

politics and metaphysics, which means very nearly the same thing
as intervention.” The event proved that non-intervention was wise
policy; but Jefferson was somewhat apt to say that it was better he
should not interfere in the same breath with which he interfered. The
warning that he could not officially interfere seemed to imply that the
quarrel was personal; for in the case of Pickering he had interfered
with decision. If this was his view, the success of any attack upon
Chase would be a gain to him, and he was so ordering as to make
failure a loss only to those who undertook it. Nicholson, hot-headed
though he was, did not enter readily into this hazardous venture. He
reflected upon it all summer, and consulted the friends on whose
support he depended. Macon wrote to him a letter of unusual length,
[97] suggesting grave doubts whether a judge ought to be impeached
for expressing to a grand jury political opinions which every man was
at liberty to hold and express elsewhere, and closed by announcing
the conviction that if any attempt were made to impeach, Nicholson
ought not to be the leader. In this opinion Macon was evidently right,
for Chase’s friends could not fail to suggest that Nicholson was to be
rewarded by an appointment to Chase’s vacant seat on the Supreme
Bench; but the House of Representatives contained no other leader
whose authority, abilities, and experience warranted him in taking so
prominent a part, unless it were John Randolph.
A worse champion than Randolph for a difficult cause could not
be imagined. Between him and Jefferson little sympathy existed.
Randolph had quarrelled with the branch of his family to which
Jefferson was closely allied; and his private feelings stood in the way
of personal attachment. His intimates in Congress were not chiefly
Virginians, but men like Macon of North Carolina, Joseph Bryan of
Georgia, and Nicholson of Maryland,—independent followers of
Virginia doctrine, who owned no personal allegiance to Jefferson.
That the President should have been willing to let such a man take
entire responsibility for an impeachment was natural; but had
Jefferson directed the step, he would never have selected Randolph
to manage a prosecution on which the fate of his principles closely
depended. Randolph was no lawyer; but this defect was a trifling
objection compared with his greater unfitness in other respects. Ill-
balanced, impatient of obstacles, incapable of sustained labor or of
methodical arrangement, illogical to excess, and egotistic to the
verge of madness, he was sparkling and formidable in debate or on
the hustings, where he could follow the wayward impulse of his fancy
running in the accustomed channels of his thought; but the qualities
which helped him in debate were fatal to him at the bar.
Such was the origin of a measure which did more to define the
character of the government than any other single event in
Jefferson’s first administration, except the purchase of Louisiana.
Randolph threw himself into the new undertaking; for he sincerely
believed in the justice of his cause, and was alive to the danger of
leaving the Supreme Court in the hands of Marshall and men of his
stamp who were determined to consolidate the government. Yet the
chance of obtaining a conviction, on a charge no stronger than that
of the Baltimore address, was so slight as to incline Randolph
against risking it; and he decided to insure success by putting the
cases of Fries and Callender in the foreground.
This was not easily done. Pickering’s impeachment had been
brought before the House by a Message from the President; but in
Chase’s case the President preferred not to take part. Randolph was
forced to escape the difficulty by an awkward manœuvre. During the
autumn and early winter of 1803 Congress was busy with Louisiana
legislation, and had no leisure for other matters; but soon after the
new year Randolph rose and said[98] that in the course of the last
session Mr. Smilie of Pennsylvania had made some statements in
regard to Justice Chase’s conduct which seemed to call for notice,
but that want of time had precluded action. Finding his attention thus
drawn to the matter, Randolph gravely continued, he had felt it his
duty to investigate Smilie’s charges; and having convinced himself
that ground for impeachment existed, he asked the House to appoint
a committee of inquiry. Such an introduction of a great constitutional
struggle was not imposing; but party discipline was at its highest
point, and after some vigorous Federalist resistance Randolph
carried his motion by a vote of eighty-one to forty. Three Northern
democrats voted with the Federalists; and although the defection
seemed not serious so far as concerned the scientific Dr. Samuel L.
Mitchill, whose political principles were liberal enough at all times,
some importance even then attached to the vote of John Smith of
New York, who was about to enter the Senate and to act as one of
Chase’s judges.
Meanwhile Judge Pickering’s trial began. The Senate, “sitting as
a Court of Impeachments,” listened while Nicholson, Randolph,
Rodney, and six or seven other Republican members “exhibited the
grand inquest of the nation.” The character of a court was taken in all
the forms of summons. The Secretary of the Senate signed, and the
Sergeant-at-Arms served, the summons to Judge Pickering, while
the witnesses were regularly subpœnaed by the Secretary, “to
appear before the Senate of the United States in their capacity of a
Court of Impeachments,” and the subpœnas were served by the
marshals of the district courts.
Judge Pickering was ordered to appear on the 2d of March,
1804; but when the day arrived, and the Senate was assembled,
with the managers in attendance, John Pickering’s name was three
times called without an answer. Vice-President Burr then submitted
to the Senate a petition from Jacob Pickering, son of the impeached
judge, praying the court to postpone the trial that he might have time
to collect evidence with the view of showing that when the alleged
crimes were committed, and two years before as well as ever since,
the judge was wholly deranged, incapable of transacting any kind of
business which required the exercise of reason, and therefore
incapable of corruption of judgment, no subject of impeachment, and
amenable to no tribunal for his actions. With this petition a letter from
Robert G. Harper was laid before the court, requesting to be allowed
to appear on the part of the petitioner in support of the petition.
Harper, having been invited to a seat within the bar, asked whether
he might be heard, not as counsel for Judge Pickering, who being
insane could give no authority for the purpose, but as agent for the
petitioner, to ask a postponement.
The question threw all parties into agitation. The managers
instantly protested that Harper in such a character could not be
heard. The senators retired for consultation, and debated all day
without coming to a decision. The impeaching party dreaded the
alternative to which the proof of insanity must force them,—of saying
either that an insane man was responsible, or that a man mentally
irresponsible might still be guilty of “high crimes and misdemeanors”
for purposes of impeachment. Senator Jackson of Georgia, who had
always the merit of speaking with candor, avowed the fear that
presently Judge Chase’s friends would come and pretend that he too
was mad;[99] but he could not, even with Breckenridge’s help, carry
his point. The Northern democrats flinched. Six of them and three
Southern senators voted with the Federalists, and admitted Harper in
his volunteer character.
Harper put in his testimony, which was decisive in regard to the
insanity; but when he rose to do so, the managers retired, saying
that they considered themselves under no obligation to discuss a
preliminary question raised by an unauthorized third party. The
Senate went on with its session. The managers were obliged to
maintain that insanity was no bar to impeachment, and the Northern
democrats were forced to accept the doctrine.[100]
This view of impeachment, so far as concerned the judiciary, had
strong arguments in its favor. Although the Constitution made judges’
tenure of office dependent on their good behavior, it provided no
other means than that of impeachment for their removal. Even in
England and in Massachusetts, judges could be removed by the joint
action of Legislature and Executive; but this was not the case under
the Constitution of the United States. If insanity or any other
misfortune was to bar impeachment, the absurdity followed that
unless a judge committed some indictable offence the people were
powerless to protect themselves. Even Federalists might reasonably
assume that the people had never placed themselves in such a
situation, but that in making their judges subject to impeachment for
misdemeanors they had meant to extend the scope of impeachment,
and to include within it all cases of misbehavior which might require
a removal from office for the good of the public service.
This ground was fairly taken by the impeachers, though not
formally expressed. When Harper had put in his evidence and
retired, the Senate sent again for the managers, who occupied one
day in supplying evidence, and then left their case without argument
in the hands of the court. The Senate found itself face to face with an
issue beyond measure delicate, which had never been discussed,
but from which escape was impossible. Acquittal of Pickering would
probably be fatal to the impeachment of Chase, and would also
proclaim that the people could not protect themselves from
misbehavior in their judicial servants. On the other hand, conviction
would violate the deep principle of law and justice that an insane
man was not responsible for his acts, and not amenable to any
earthly tribunal. Virginians like Randolph and Wilson Cary Nicholas,
or John Breckenridge, were ready to make a precedent which should
fix the rule that impeachment need not imply criminality, and might
be the equivalent to removal by address. The Northern democrats
were not unwilling to accept this view; but their consciences revolted
against saying “guilty” where no guilt was implied or proved.
To escape this objection a compromise was proposed and
adopted. The Federalists would have forced senators to say in their
final vote that Judge Pickering was “guilty” or “not guilty” of high
crimes and misdemeanors. Senator Anderson of Tennessee eluded
this challenge by moving for a yea-and-nay vote on the question
whether Pickering was guilty “as charged.” The nine Federalists
alone opposed his motion, which was at length adopted by a majority
of two to one. By a vote of nineteen to seven Judge Pickering was
declared “guilty as charged” in the articles of impeachment; and by a
vote of twenty to six the Senate resolved that he ought to be
removed from office.
Two of the Federalist senators refused to vote, on the ground that
the proceedings were irregular; Senator Bradley of Vermont, Senator
Armstrong of New York, and Senator Stone of North Carolina tacitly
protested by absenting themselves. In a Senate of thirty-four
members only twenty-six voted, and only nineteen voted for
conviction. So confused, contradictory, and irregular were these
proceedings that Pickering’s trial was never considered a sound
precedent. That an insane man could be guilty of crime, and could
be punished on ex parte evidence, without a hearing, with not even
an attorney to act in his behalf, seemed such a perversion of justice
that the precedent fell dead on the spot. Perhaps, from the
constitutional point of view, a more fatal objection was that in doing
what the world was sure to consider an arbitrary and illegal act, the
Virginians failed to put on record the reasons which led them to think
it sound in principle. In the Louisiana purchase they had acted in a
way equally arbitrary, but they had given their reasons for thinking
themselves in the right. In Pickering’s case not a word was publicly
spoken on either side; a plainly extra-constitutional act was done
without recording the doctrine on which it rested.
The Republicans showed no hesitation. John Randolph’s orders
were obeyed without open protest. Senator Bradley of Vermont
talked strongly in private against them; Senator Armstrong of New
York would not support them; barely half the Senate voted in their
favor; but Randolph forced his party forward without stopping to see
how well his steps were taken, or how far he was likely to go. As
though to intimidate the Senate, March 6, the day after the managers
were defeated on the vote to hear Harper, Randolph reported to the
House a resolution ordering the impeachment of Justice Chase.
March 12, the day when the Senate voted Pickering guilty, the
House took up Randolph’s report, and the majority, without debate,
voted by seventy-three to thirty-two that Chase should be
impeached. Not a Republican ventured to record a vote in the
negative. The next morning Randolph again appeared at the bar of
the Senate, and announced that the House of Representatives
would in due time exhibit articles of impeachment against Samuel
Chase.
 CHAPTER VIII.
As the year 1804 began, with Louisiana annexed, the Electoral
Amendment secured, and the impeachments in prospect, the
Federalists in Congress wrought themselves into a dangerous state
of excitement. All agreed that the crisis was at hand; democracy had
nearly reached its limit; and, as Justice Chase said from the bench,
peace and order, freedom and property, would soon be destroyed.
They discussed in private what should be done; and among the New
Englanders almost all the men of weight were found to favor the
policy of at least saving New England. Of the six Federalist senators
from the Eastern States,—Plumer and Olcott of New Hampshire,
Pickering and Adams of Massachusetts, Tracy and Hillhouse of
Connecticut,—all but Olcott and Adams thought a dissolution of the
Union inevitable.[101] Among the Federalist members of the House,
Roger Griswold of Connecticut was the most active; he too was
convinced that New England must protect herself. Samuel Hunt of
New Hampshire, and Calvin Goddard of Connecticut held the same
opinion. Indeed, Pickering declared that he did not know “one
reflecting Nov-Anglian” who held any other.
In the month of January, 1804, despair turned into conspiracy.
Pickering, Tracy, Griswold, Plumer, and perhaps others of the New
England delegation, agreed to organize a movement in their States
for a dissolution of the Union. They wrote to their most influential
constituents, and sketched a plan of action. In a letter to George
Cabot, Pickering recounted the impending dangers[102]:—
“By the Philadelphia papers I see that the Supreme Court judges
of Pennsylvania are to be hurled from their seats, on the pretence that
in punishing one Thomas Passmore for a contempt they acted illegally
and tyrannically. I presume that Shippen, Yates, and Smith are to be
removed by the Governor, on the representation of the Legislature.
And when such grounds are taken in the National and State
legislatures to destroy the rights of the judges, whose rights can be
safe? Why destroy them, unless as the prelude to the destruction of
every influential Federalist and of every man of considerable property
who is not of the reigning sect? New judges, of characters and
 tempers suited to the object, will be the selected ministers of
vengeance.”
A separation, Pickering inferred, had become necessary; but
when and how was it to be effected?
“If Federalism is crumbling away in New England, there is no time
to be lost, lest it should be overwhelmed and become unable to
attempt its own relief; its last refuge is New England, and immediate
exertion perhaps its only hope. It must begin in Massachusetts. The
proposition would be welcomed in Connecticut; and could we doubt of
New Hampshire? But New York must be associated; and how is her
concurrence to be obtained? She must be made the centre of the
confederacy. Vermont and New Jersey would follow of course, and
Rhode Island of necessity. Who can be consulted, and who will take
the lead? The legislatures of Massachusetts and Connecticut meet in
May, and of New Hampshire in the same month, or June. The subject
has engaged the contemplation of many. The Connecticut gentlemen
have seriously meditated upon it.... Tracy has written to several of his
most distinguished friends in Connecticut, and may soon receive their
answers. R. Griswold, examining the finances, has found that the
States above mentioned, to be embraced by the Northern
confederacy, now pay as much or more of the public revenues as
would discharge their share of the public debts due those States and
abroad, leaving out the millions given for Louisiana.”
Roger Griswold wrote a few weeks afterward to Oliver Wolcott in
similar terms:[103]—
“The project which we had formed was to induce, if possible, the
legislatures of the three New England States who remain Federal to
commence measures which should call for a reunion of the Northern
States. The extent of those measures, and the rapidity with which they
shall be followed up, must be governed by circumstances. The
magnitude and jealousy of Massachusetts would render it necessary
that the operation should be commenced there. If any hope can be
created that New York will ultimately support the plan, it may perhaps
be supported.”
The first action, said he, must come from the Legislature of
Massachusetts, which was not yet elected, but would meet early in
June. Connecticut and New Hampshire were to follow; and to
Pickering’s sanguine mind the Northern Confederacy seemed
already established. “The people of the East,” he said, “cannot