The High Oath of Impeachment

January 9, 1999

Honolulu, Hawaii

On January 8, 1999, Senator Byrd descended down the aisle of discord to sing a hymn for unity. And there, in that noble historic chamber where some time ago by eloquent dissensions weighty matters were resolutely wrought into fundamental national determinations, both left and right wings beat forcefully against thin air, defiant of the terrible gravity of the situation, and in freedom brought the august body of the United States Senate into unanimous accord with destiny.

Most fearsome is the ordeal the senatorial jurors now face, yet face it they must, just as the world humbly turns every morning to dutifully face the Sun.

Most awesome was the Oath before the Chief Justice to do Impartial Justice by the Constitution, the Oath written in the Oath Book and sworn to therein by means of personal signatures of Good Faith. No matter how much the disconsolate postmodern temper abhors the capitalization of a certain sort of words, and detests the sacrifices implied by the Ideals they stand for, the Conscience feels in the current ceremony a profound fealty to Truth, found eternally reclining on Reality's throne. It is meet therefore to take pause and speculate on the nature of the Oath that cements society in Truth.

The high oath is a formal announcement of the evolved self-conscious life whereby the real identity is rediscovered behind the personal facades of social intercourse. And it is a reaffirmation of the oft forgotten bond of matter to spirit in time and space. Once the necessity of obedience to Truth is realized as the only highway of liberation over the obstructions to its justice, the intentional violation of a voluntary oath in that highest sense is high perjury, a form of high treason. High treason is a breach of the royal peace within the royal court or on the royal highway. It differs from the petty treason inasmuch as petty treason results in forfeitures to lesser lords outside of the king's jurisdiction or by compromise with him.

Within the royal realm, the higher the office the greater the offense no matter how trivial the misdeed may seem, for the more familiar the high officer is with the ultimate authority, the greater the danger of mistakes to the entire realm. The realm itself was gradually extended by virtue of the sovereign power to bring all the land within the jurisdiction of the court; those guilty of high treason forfeited their land if not their lives under the naked sword, while others pledged allegiance and kept the peace.

Our own senators have a very high place in the vestiges of the royal scheme. Their political progenitors were the king's court or council, where law was not so much made as it was truth found out in the people's customs when suit was brought for those offenses committed within the king's peace. Likewise, our senators have an oath to find the truth in the trial of the impeached president.

Of course, we have always expected the parties to a suit and their witnesses to lie. In fact, there were times in history when no oath was expected of them. Indeed, such an oath was deemed contrary to common sense and to religious notions: people have a natural right and duty of self-defense by all possible means; the self-interested person as well as the religious person will obey the injunction to love and aid family and neighbors and not bring suit or testimony against them; the religious person has only one master, therefore an oath in court places him in double jeopardy or forces him to take the supreme being's name in vain, and so on. Hence an oath exacted by the public authority came to be considered not only against reason but as a grievous tyranny violating the sovereign's own peace, especially when used as an instrument of persecution for that authority's own self-aggrandizement; such persecution gave people ample cause to believe the king was not the sole representative of God on earth.

But order must still prevail albeit in another form, and in the evolving legal institution governing combat it was initially the juror from whom was expected a solemn oath to find the truth despite all the lies in court, and the perjurious violation of that oath was a high treason, a crime against the sovereign authority in the administration of justice under the law.

The lesser jury is by analogy a replication of the king's court; there is no court without a king, for without a king there is no execution of the law; the jurors owe absolute obedience to find the truth or suffer the consequences. Some of the old juries, a jury of twelve, for instance, suspected of bringing a false verdict, could be and were arrested and brought before another jury of twenty-four, and were convicted and imprisoned. So it was not the parties and the witnesses who were first charged with an oath but the jurors themselves who were in effect the king's sworn men.

The modern vestige of the supreme court of the king is, in Great Britain, the House of Lords as the High Court of Parliament, which is the final court of appeal. And in America, it is the United States Senate, which tries cases of impeachment; impeachment is considered obsolete in Great Britain.

Therefore, there are several good and sufficient reasons for our senators to approach the trial of an impeached president with trepidation and awe. Their duty to do impartial justice is, of course, a duty to the people of the republic who have sovereignty and not to the temporary sovereign they have elected to represent them in the singular; however, the duty must be performed in reverence for a much higher authority than the public clamor for one verdict over the other. We may recall, by way of illustration, how Friar Michael responded to the people as he was led to his fiery death on the stake. The people, wanting to save his life, pleaded with him to recant his heretical belief, that Jesus was poor and that neither He nor his disciples held property individually or in common:

"The people's voice is God's voice," the crowd entreated Friar Michael to repent.

"Nay, but it was the people's voice that crucified Christ, and slew St. Peter," he declared.

We, the people, also have much to fear and revere in this due process. What we should fear the most, for our own sakes, is that the verdict is, even before the trial is completed, a foregone conclusion in the minds of many of the senatorial jurors. It appears from the revelation of the possibility of this high perjury that we might have a mock trial, mocking by its breach the spirit of the solemn high oath. Such a mockery could only prove that by our neglect we have allowed the lion beneath the throne to sit upon it once again. If that is the case, the old gray bird will have sung in vain, much to the dishonor of those who would pretermit the truth even before it is found. We must hope otherwise for the future of the nation, and we must believe that once a great example is before us in the form of the truth, the opinions of the people will eventually follow.

-finis-

Senator William Blount, the first man to be impeached by the House of Representatives, had good reason to be anti-Federalist given the arrogant treatment he had suffered at Federalist hands when he tried to take a seat in the U.S. Senate for the new state of Tennessee. Moreover, Blount was favorably disposed toward some of the republican notions of the French Revolution while the Federalists were enamoured of English traditions. Wherefore Blount's political affiliation with Jefferson's Republican (Democratic) party.

Blount, in his former capacity as Governor of the Southern District, was too beholden to the Federalists who had appointed him, hence he led a crusade to bring statehood to Tennessee in order to save himself and like-minded Tennesseans from Federalist domination. The regional demands for statehood after the Revolution, which if met would provide independence from the federal government, alarmed the Federalists - too many states would rock the Federalist boat and water down its stock.

After Blount achieved statehood for Tennessee and took his Senate seat, he was politcally a Republican (i.e. democrat) through and through. As for business, business is business, and sometimes the good of private business conflicts with publicly held political persuasions. Senator Blount the real estate speculator was facing financial ruin. That alone gave him due cause to side with the British where his own business was concerned. On the other hand, he faithfully sided with the French in the political arena.

Blount and his fellow speculative patriots had their eyes on the Spanish plums in America: Florida and Louisiana. His Majesty of Spain had allied himself with France against England. The American speculators feared that Spain would concede the plums they sorely wanted to France in return for protection; that would spell disaster for the financial plans of Blount et al.

The most convenient solution: make a deal privately with England to grab the plums from Spain. The scheme: American settlers could get together with some Indian allies; backed up by British privateers, they would occupy the coveted lands. Such an alliance with the British would be in accord with the Anglo-American proclivities of most of the Southerners involved. Not that any affection for the British would preclude an alliance with Spain if it were convenient. William Blount, Andrew Jackson, and John Sevier among others had already participated in or condoned a flirtation with the Spanish governor of Louisiana, Esteban Miro, in a previous scheme (the Daniel Smith affair) that would have separated the District of Mero - prime real estate in the middle of the Cumberland region- from North Carolina and handed it over to Spanish Louisiana, that "the West be one people." But that deal had fallen through; this was now, and the speculators were in an awful fix now that values were plummeting and notes were being called in. So to hell with Spain.

William Blount was on the hook for a million acres in 1796. He was involved in his brother John Gray Blount's deals for another million and six hundred thousand acres. Prices in 1795 were around a quarter per acre for large tracts of two or more million acres. War ensued between Britain and Spain in October of 1796 - Spain was probably about to hand Florida and Louisiana over to France. In Tennessee, it appeared that the Federalists would draw the Holston line fairly - as the Cherokees had expected to begin with. Land values out West dropped to a dime an acre when credit collapsed. The dominoes tumbled one after another. Andrew Jackson was deeply indebted. David Allison, a wealthy easterner whose I.O.U. was once as good as gold, and who was one of Blount's partners in Indian land deals, wound up in debtor's prison. Senator Blount was virtually bankrupt; fortunately, his senatorial immunity saved him from debtor's prison.

Surely something must be done or all would be lost as far as the troubled real estate speculators were concerned. Help from the federal government would not be forthcoming if asked for: the Federalists were behaving diplomatically, hoping that the fledgling United States would not be strangled in its crib by foreign entanglements. An "incriminating" letter in Senator Blount's hand came to light, and the question as to whether or not his conduct rose to a high crime or misdemeanor for which impeachment arose and was quickly answered in the affirmative.

The Wheeler Dealer

"For William Blount, especially, a new era had opened. Though his interests in merchandising, trade, and politics continued, the never-ceasing pursuit of acreage, and the search for profit in every acre from town lots to imperial domains became his paramount, life-long interest." William H. Masterson

Although Vice President Thomas Jefferson, who presided over the Senate during the impeachment trial of Senator William Blount, believed that the Tennessee senator has done nothing wrong, and concluded that impeachment is a political farce, Blount had very little personal support during the expulsion and impeachment proceedings other than his attorneys and his protege, U.S. Representative Andrew Jackson - Jackson took Blount's senate seat.

The Senate factions vigorously and sometimes eloquently debated their respective interpretations of the great fulcrum of controversy, the Constitution. There were fireworks on the side to liven the dryer patches: on one memorable day, Matthew Lyon of Vermont grabbed the fire tongs, rushed Federalist Roger Griswold, knocked him down, and tried to beat his head in over an insulting remark - they were separated, and neither were expelled. Yet, given the Blount Affair as an occassion to argue as they might over the construction of the Constitution, nary a soul in the administration or Congress would have much to do with Senator Blount himself. Federalists and Republicans alike distanced themselves from him, denounced him, sought to punish him

The impeachment was brought by the House after a mere five days on the basis of a single letter that Senator Blount had written in conspiratorial tone to Indian-interpreter James Carey, with instructions to destroy it after it was read. The representatives of both parties made haste to impeach Blount because they believed their young nation was presently endangered by a ominous conspiracy. The writing of such a letter might not have constituted an indictable offense in itself; it takes more than one person to conspire, and there was no concrete evidence that anyone else was actually involved; the conspiracy countenanced, even if were executed, might not have been a crime under current law. But all that was beside the point at the time - and whether or not impeachment requires an indictable criminal offense remains irrelevant to this day according to one interpretation of the impeachment clause. The nonpartisan point was obvious: Senator Blount was privately scheming, apparently for his personal profit, to engage in activities that might embarrass the nation and provoke a bloody war with a world power.

Certain persons who had the duty to judge Blount's conduct had framed the Constitution - they were familiar with "the intent of the framers." Blount appeared to be guilty as sin of malfeasance in office. Since his perceived misconduct seemed to pose an immediate threat to the existence of the infant nation, the congressmen did not immediately proceed to quibble over the definition of "office," but set about employing their powers to expell Blount from the Senate forthwith, then to uncover and defeat the conspiracy and to make sure Blount could not return to office - ever popular in Tennessee, Blount would have been re-elected to the Senate short of impeachment.

This was not the first time William Blount had been accused of malfeasance in office, nor was the Carey letter the sole cause for congressmen to fear so much for their nation's safety. They knew the author of the letter quite well. He was a powerful and clever man. He had cut his teeth on the mercantile business of his father in North Carolina. He had served the nation as a merchant-soldier during the Revolution. His public duties then as a paymaster gave him immediate access to crucial information and vital commercial facilities, and dovetailed with his private pursuits - to his credit after he become a U.S. Senator, he kept his business separate from politics and voted against his private interest.

The wartime economy was an unusual opportunity for shrewd, well-placed speculators: races and creeds clashed; mobs were pillaging; Tories and Whigs were making savage raids; inflation was soaring over floods of depreciated paper; finished goods were in short supply. Meanwhile, paymaster Blount, having official access to goods and warehouses, procured and disposed of supplies; issued warrants to pay the soldiers; speculated on paper and real estate; mastered currency trading and the like. He handsomely profited by his salary, private trading in goods and currencies, and paying off Loyalist debts with depreciated currency. Furthermore, in the Camden disaster of August 16, 1780, he somehow managed to lose $300,000 of the payroll. In any case, his business methods were not greatly appreciated by persons who got the short end of the stick. Thomas Hart's facetious letter to Blount, dated January 25, 1780, is a bitterly made case on point:

"I have (Once more) Sendt a waggon and two Hhds tobe your place, and what will you send me in Return, I Suppose as half Bushl Salt, or Galls of Rum for a 100wt Tobe, Something like this, I make no doubt, - What a Sett of Atheistical fellows must there be in Newbern that thinks there is Neither God nor Devil to punish them in a Nother World, for their usury to us in this, I must send down Debow Once more to preach up the Doctrine of Regeneration or the New Birth to you, for If there ever was a Sett of men on the face of this Globe, who stood more in need of being Regenerated, and Born anew, I wonder trully how many poor Sons of Bitches with tears in their Eyes have I Seen with these Six weeks past, Coming from your place. Some with 5 or 6 Bushls Salt in their waggons, Some [with?] 8 or 10 Galls of Rum, and others with Cargoes [or less?] Value, all declaring themselves Broken [miserably] but None of them without a Good Store of [curses which] they bestow (with a very Liberal hand) on the Good folks of Newbern... can you expect to thrive Under the Heavy Curses of the Rightious folks of this Country, had Not you better try to do Something that may entitle you to Our Blessing. Instead of Our Curses, come do (for Godsake) begin with me, and let us See what you can do...." (sic)

Blount entered politics after the war - in 1780 at age 31- becoming New Bern's representative to North Carolina's House of Commons. As one of several self-interested speculator-legislators, he devised and pushed through legislation to grant certain 'unclaimed' Tennessee land over the mountains to North Carolina veterans. The soldiers needed money more than the distant land. Blount and his fellow speculator-legislators were kind enough to buy the land from the veterans with an issue of brand new money they had legislated for that very purpose - the affair was dubbed The Land Grab of '83. Then Blount sponsored legislation to have the Western land ceded to the federal government, hoping that would serve to secure the land grants - the cession did not take place until 1790. At the same time, Blount was involved in an effort to secure a big chunk of the prime real estate of East Tennessee and have it recognized as the State of Franklin - Benjamin Franklin gave it his blessing but declined the invitation to move there due to reasons of advanced age.

Blount was re-elected to the North Carolina legislature in 1784. He briefly served in the Continental Congress in 1785, then returned to North Carolina. In 1790, President Washington appointed him Governor of and Superintendent of Indian Affairs of the Territory of the United States South of the Ohio. The appointment gave him ample opportunity to deal in vast tracts of land, including tracts rightfully belonging to the Indians.

Blount and his fellow schemers wanted to secure a U.S. route to the Gulf of Mexico - Spain had possession of the Mississippi and New Orleans. They figured The Bend - the great southern bend of the Tennessee River - and further on by river and land to the Gulf would serve the purpose nicely. The spectre of possible Spanish attacks was raised to scare off the competition and drum up patriotic support. The possibility of enormous profits was vaunted to obtain financing - a Mennonite company already wanted to buy some land in the Bend. It was necessary to deal, first of all, with South Carolina, and then to buy off the Georgia legislature to gain legitimate access to the vast tracts of land. A commission was set up to manage the land - the commission also had the power to grant warrants on the land. Some of the official land commissioners were, quite naturally, also members of the private Bend of Tennessee Company. We can easily guess who he mastermind was; none other than William Blount.

On May 31, 1784, Blount sent an excerpt from the Mennonite community's offer to purchase Bend lands, to his partners - North Carolina land commissioners John Donelson, Joseph Martin, and John Sevier - along with his letter stating that the North Carolina cession of lands to Congress would boost the value of the land. He further advised them as follows:

".... If you should think proper to open the .... [land office] to grant Warrants at 1/8 of a dollar per Acre enter as much as you can and make use of any Names fictitious ones will do I suppose, If not you may use the Names of Blount, WIlliam Johnson Allen, Winnan, Ogden and almost any other Name you please ading such Christian Names to them as You please and You need not fear but I can find the People to transfer their Rights to the Company.... May it not be good Policy [to] set some new Scheme on foot in Partnership with the Gentlemen of Georgia to make futher Purchases over the Tenesee or on the Missisippi in on down near the Natches for they must if possible be fixed with a thirst for back lands to effect which no Pains must be spared...."

On the same day, Blount wrote to Georgia commissioners James McIntosh, Stephen Heard, John Morrell and William Downes:

".... The Object of the Tenesee Company in purchasing the Bend and (I suppose) your's in Accepting the appointment as commissioners must have been the same, I mean private Emolument and in Order that we may both obtain our purposes it is Necessary, We should understand eath Other and that our Acts should tend to our mutual advantage.... You have power, to make the company such, compensation as may be deemed Adequate and satisfactory. No Bond nor no Oath has been required nor no Instructions, given you... and if you accede to my Proposition of our Interest being the same you will have a share of your own liberty..... Such Another oppertunity may never present itself of Making a Spec and there's an old Proverb which says "make Hay while the sun shines," of which I wish you to be mindfull.... I wish you an agreeable Journey and greate Choice and Great plenty of Cheekamagga Squaws." (sic)

William Blount soon led the fight for the admission of Tennessee to the Union. Once Tennessee became a state, Blount, the Federalist-appointed territorial governor, would no longer be beholden to the Federalists in Philadelphia, nor would other Tennesseans for that matter. Wherefore the Federalists tried to prevent Tennessee Senators Blount and Cocke from taking their Senate seats. Blount, who had once been a moderate if not a conservative, was now a confirmed Republican (democrat), and so were the rest of the conservative holdouts in liberal Tennessee - they were embittered by the Federalist obstruction to their ambitions.

Blount was not as popular in Tennessee as the famed John Sevier, his longtime ally, but he was popular enough, especially to the settlers who had due cause to appreciate his land deals and to despise the Federalist government. Blount had a reputation for getting things done by disreputable means. All of the above was not lost on his fellow senators when they expelled him and proceeded to try him for high crimes and misdemeanors.

As for crooked conduct, Blount was not the only great person to resort to deceitful business and political methods - we need not name other Names here since many several qualified academics are busy taking the shine off our historical idols as we speak. Today the name William Blount is barely known by U.S. citizens outside of Tennessee. History buffs remember him as the ignominious Senator who was impeached by the House, jumped bail and fled on horseback - the esteemed senators eventually decided that senators could not be impeached.

Blount deserves considerable credit for being the founding father of the State of Tennessee. But the state was just one of his deals. William Blount was a pioneer wheeler-dealer, perhaps one of the greatest wheeler-dealers America has ever known. I suppose somebody had to do what he did, else we would not be here, nor would the United States of America as we know it.

Peronsal Note: I utilized numerous sources for this article. The best popular source available is William Blount, by William H. Masterson, Baton Rouge: Lousiana State Press 1954. Masterson had access to the Blount papers: the letters above are quoted in his book.

Partial Justice

The PRESIDENT pro tempore. Will you place your left hand on the Bible, and raise your right hand.

Do you solemnly swear that in all things appertaining to the trial of the impeachment of William Jefferson Clinton, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?

The CHIEF JUSTICE. I do.

At this time I will administer the oath to all Senators in the Chamber in conformance with Article I, section 3, clause 6, of the Constitution and the Senate's impeachment rules.

Will all Senators now stand and raise your right hand.

Do you solemnly swear that in all things appertaining to the trial of the impeachment of William Jefferson Clinton, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?

SENATORS. I do.

The CHIEF JUSTICE. The clerk will call the names and record the responses.

The legislative clerk called the roll, and the Senators present answered `I do' and signed the Official Oath Book.

---

We might expect Senators to render impartial justice and render that justice according to some sort of uniform law during impeachment trials, even though they are not, technically speaking, jurors.

Senator Tom Harkin, during the impeachment trial of President Clinton, moved that the House Managers be barred from referring to the senators as "jurors." He argued that the senators' actions were "exculpatory." Chief Justice Rehnquist, presiding, agreed.

Of course the senator meant that senators should be without formal guilt or blame even if their verdict is contrary to the evidence presented to them at trial. President Clinton was obviously guilty of lying under oath, an indictable felony under criminal law, as well as, at least according to the House of Representative, an impeachable offense that should result in removal from office if proved before the Senate.

If a man were acquitted of the charge of murder by jurors who believed that the facts proved the man guilty beyond a reasonable doubt, the verdict might hold yet the presiding judge would hardly say that the misconduct was exculpatory - in fact such conduct (jury nullification) is contrary to express instructions setting forth the duties of jurors. We are left to suppose that an impeachment case is not a criminal or a quasi-criminal case but is a political case and therefore subject to the vagaries of partisan prejudice instead of the security of impartial justice according to uniform law. For if some of the senators who sat as judges/jurors in impeachment cases had been judges or jurors in criminal cases, truly bound by oath do impartial justice under the law in the sense arrived at by decades of constant judicial criticism and discipline, many of them would have been held in contempt and removed from bench or panel given their conduct.

For instance, Senator Tom Harkin, before the evidence was presented to the Senate and the arguments were made at trial, proclaimed that the charges against President Clinton to be "a pile of dung." And, among other things, Senator Harkin stepped out of a closed session during the trial and gave the media a public reading of a statement he had made before the Senate. That statement, broadcasted on several cable TV channels, denounced the Starr investigation and House impeachment vote as a "political vendetta" and called the House managers' case against Clinton "counterfeit."

Tom Harkin, to say the least, was not impartial, and he obviously did not believe he was bound to do impartial justice under law except to the extent that he interpreted impeachment law as giving him and his colleagues arbitrary power to decide the fate of impeached officers.

We have precedents dissenting from that view. Senator John Quincy Adams participated in the impeachment trial of Revolutionary hero and Federalist Judge Samuel Chase, who was acquitted because it was determined that he was not guilty of an impeachable offense, thus identifying criminal indictments with political impeachments. Judge Chase had been much too keen on prosecuting the Alien and Sedition laws according to his arbitrary intepretation of English common law; and he liked to spout off from the bench against Jefferson's 'Jacobin' faction. Senator Adams, unlike several other senators, believed that as a senator he was as ethically reponsible and as bound by customary legal procedure as a judge. He certainly would not call an undecided case before him a "pile of dung." What he did say in that case was very little: "I feel the obligation of absolute silence upon pen and tongue."

John Quincy Adams was involved in an prior impeachment trial, that of Federalist Judge John Pickering. In that trial Senator Adams dissented against something we recently observed in the impeachment of President Clinton. Senator Charles E. Schumer was a U.S. representative before becoming a senator and participating in the impeachment trial - he voted for acquittal. In fact, Schumer sat on the House impeachment committee - a sort of political grand jury - that had inquired into the Clinton affair. 'Grand Juror' Schumer opposed the impeachment; the articles were brought before the House, nevertheless, and the House voted to impeach the president. Then Schumer changed hats and sat as a judge/juror at the impeachment trial. One might think that such conduct although constitutional might be reprehensible. We can be certain that defendants in criminal trials would like their defense lawyers to be their grand jurors and judges. But let's turn to precendent:

At the outset of the impeachment trial of Judge John Pickering, certain distinguished senators actually believed that, in cases of impeachment, they were faced with a high judicial mission instead of an opportunity to participate in a partisan political farce. Thomas Jefferson's Republicans were using impeachment as a tool to remove Federalist judges from the bench. Still, President Jefferson had a good nonpartisan reason for bringing the Pickering matter to the House on February 3, 1803: the poor judge was insane. Yes, he had used profane language on the bench, he had cussed out the Republicans, he had been drunk in court, but up to the time of his mental collapse he had performed tolerably well and his character, said his friends and acquaintances, was exemplary. His attendance had been somewhat irregular while on the federal circuit court: he had an irrational phobia of crossing rivers and had isolated himself from time to time; but once on the district court he was reliable enough. After his nervous breakdown, a circuit judge filled in for him in federal district court; but when the Jefferson administration abolished the federal circuit court, Judge Pickering had to return to his duties; alas, he was incompetent to the task. The House Republicans rushed to impeachment with contumacious articles charging Pickering with "loose morals and intemperate habits" and "conduct disgraceful to his own character as judge and degrading to the honor and dignity of the United States."

Judge Pickering did not answer a summons to appear at the Senate impeachment trial. The judge was insane, someone argued, hence it would be impossible to convict him. The Republicans, however, proceeded to try the defendant on the basis of the one-sided evidence on hand. During the course of the trial, Senator John Quincy Adams brought a motion to exclude from the trial those senators who had served as representatives in the impeachment proceedings below.

"It is improper and very indelicate that judges who have given an opinion in a particular case should afterwards sit in judgement in that case," said Senator Adams. A rebuttal was offered and accepted, that the Senate is not a jury in impeachment cases. The trial proceeded, whereupon Senator White denounced the entire proceedings as a "Mock-trial."

Senator Nichols indignantly responded, "Order! Order! Order! I will not submit to our proceedings called by the degrading name of a Mock-trial."

Senator Adams then insisted that he would speak out against the proceedings "until my mouth is stopped force."

"I did say," retorted Senator White, "and I again repeat it, our proceedings upon this impeachment are not evidence of a regular trial - they are wholly unlike it - a mere mock trial. If the gentleman (Senator Nicholas) is offended... I am willing and ready to give him satisfaction at any time and place he will please to name...."

Judge John Pickering, unfairly disgraced, was removed from the bench by the Senate on March 12, 1804. He died shortly thereafter.

Exculpatory

U.S. senators in cases of impeachment generally consider themselves as jacks of several legal trades: each one is at once judge, jury member, prosecutor, and defense attorney. And they would each and all be excused from being fully accountable for the exercise of the ordinary responsibilities of any particular office.

When Senator Tom Harkin objected during the impeachment trial of President William Jefferson Clinton that the senators sitting as a High Court of Impeachment should not be referred to by the House Managers as "jurors," his intention was made clear to lawyers by his use of the term "exculpatory," which means, “Clearing or tending to clear from alleged fault or guilt; excusing.” (Black’s Law Dictionary)

The alleged fault Senator Harkin intended to excuse was jury nullification - to knowingly acquit a guilty person. “A jury in criminal case possesses de facto power of ‘nullification,’ to acquit defendant regardless of strength of evidence against him.” (Cargill v. State, 255 Ga. 616) Chief Justice William Rehnquist, presiding over the impeachment trial, ruled in favor of Senator Harkin's unusual motion.

Despite explicit instructions from judges to the contrary, ordinary juries in the United States knowingly albeit sparingly acquit guilty persons. On the prosecutorial side, grand jurors have fired prosecutors and run amok, conducting their own investigations as a "runaway grand jury." Indeed, it is a traditional practice of American jurors to occasionally defy judges, disregarding incriminating facts and taking exceptions to the law. American jurors resented the English practice, derived from the old days when juries were virtual organs of the King's court - if jurors returned a wrong or unwanted verdict, they might themselves be imprisoned for perjury - for violating their oath as jurors.

Now President Clinton was clearly guilty of perjury, an indictable offense in criminal courts, but the quasi-judicial, impeachment trial was undoubtedly a political farce. The President was acquitted because his fault was not deemed a threat to the well being of the political state. However that may be, Senator Harkin's motion was superfluous: in cases of impeachment, U.S. senators, as ultimate arbiters, enjoy prerogatives similar to those arrogated by aristocrats and legally exercised by nobles in the British House of Lords. Senators may make exceptions to rules and not be held accountable; their verdicts may not be set aside; indeed, almost anything they do under their oath as jurors before the Lord is as exculpable as the Lord’s deeds.

Of course the main fault to be exculpated during an impeachment trial occurs when the senators raise themselves above the law and the facts, and from that arbitrary position aloft fail to render impartial judgment according to law, as every juror or judge is bound to do under the rule of law instead of men. The fault is a most egregious one; for, at least in the United States of America, where it is said that the People are sovereign, and not Kings, Lords and Judges, and that all people are equal under the law, there is no higher public good in a free society than the absolutely faithful practice of the rule of law.
Notwithstanding such democratic abstractions, people are in reality governed by a few men and women who control the rule of law and its ceremonial application; nonetheless, legal impediments to the arbitrary exercise of power exist and should not be ignored lest violent consequences ensue. In cases of impeachment, it would be reasonable to expect, even though the impeachment process is widely regarded as a non-criminal, political farce, that the proceedings would be conducted according to a certain rule of law instead of the rule of senators.

Senator Harkin cited the impeachment clause - "The Trial of all Crimes, except in cases of Impeachment, shall be by Jury" - as the constitutional basis for his objection to the identification of senators as jurors. He further supported his motion for exculpation by citing certain clauses of Alexander Hamilton's Federalist writings, clauses he construed to imply that he and his fellow senators had authority beyond triers of fact and law; to wit, that they had the ultimate, constitutional authority to decide what is good for the 'People.' Senator Harkin was remiss in not quoting, in support of his motion, one of James Madison's letters to Jefferson, stating that he, Madison, unlike Jefferson - who favored impeachment trial by juries- had been present during the constitutional debate and therefore knew the framers did not intend impeachments to be tried by juries.

Hamilton's argument against juried impeachment trials illustrates his own intentions if not that of the Framers at large. He insisted on "the necessity of a numerous court for the trial of impeachments," arguing that "the awful discretion which a court of impeachments must necessarily have, to doom to honour or infamy the most confidential and most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Hamilton believed a small jury would be too narrow-minded and too easily subjected to intimidation.

Hamilton did not explicitly rule out the Senate sitting as a large jury. It is safe to assume that fifty jurors might be broader-minded and less subject to intimidation that twelve jurors. Hamilton did refer to "the judicial character of the senate," and stated that the Senate is "the most fit depository of this important trust," such character being "the requisite neutrality towards those whose conduct may be the subject of public scrutiny," which would protect them and the nation from "the persecution of an intemperate or designing majority in the House of Representatives."

And that, he wrote, is why there is an "assigning to one house [Representatives] the right of accusing, to the other [Senate] the right of judging." The Senate, which is virtually the vestige of the House of Lords and the ancient King's Court, is a much smaller body than the House of Representatives, yet it larger than a jury of twelve peers. Our personal view is that a separate, independent Grand Jury, capable of appointing its own prosecutors, should sit year round and constantly conduct inquisitions into criminal conduct in high offices and render the appropriate indictments.

But why not try cases of impeachment in the Supreme Court? Because the accused is constitutionally subject to double jeopardy: an officer convicted in the Senate can also be indicted and tried in the criminal courts; their decisions, in turn, are subject to appeal to the U.S. Supreme Court. It would be unfair for the same branch of government, the Judiciary, to try both cases. However, Hamilton speculated on a possible combination of the Senate and Supreme Court. And now there exists a partial combination - the Chief Justice of the Supreme Court presides over impeachment trials in the Senate. Hamilton also discussed the notion of a completely independent court of impeachments, but reasoned that such a court would be impractical given the circumstances at the time.

Hamilton seems to feel that impeachment trials are criminal trials over which the Senate has jurisdiction. However, he understood very well that the crimes tried would be political crimes inasmuch as they are offenses "which proceed from the misconduct of public men, or in other words, from the abuse of violation of some public trust.... The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide into parties."

Of course every crime is a "political crime", in the broadest sense that all crimes offend the public, wherefore the state responds on behalf of the public with the prosecution of the offender. Crimes committed by persons of high authority might under that definition be called high crimes; even relatively minor crimes would have effects far broader and perhaps more severe consequences on the whole than serious crimes committed by ordinary persons. Yet under criminal law all offenders should be treated equally. A better definition of "political crime” might be more suitable, a definition that would include under political crimes "high crimes and misdemeanors" that present a clear and present danger to the existence of the state. There has been considerable controversy on the definition of 'crimes', in the clause 'high crimes and misdemeanors', ever since the first impeachment, of Senator William Blount, a prototypical American wheeler-dealer whose real estate speculations landed him in murky water.

Senator Blount, we recall, skipped bond and fled back to Tennessee on horseback. He was a hero in Tennessee, but the northern public was outraged. The impeachment trial proceeded in his absence. Several parties to the sometimes-brilliant debate in Congress were framers of the constitution. The senators conveniently determined that senators are not officers subject to impeachment. In fact they were far more interested in the Federalist versus Republican (Democrat) disputes over liberal and strict construction of the Constitution than in the fate William Blount. His impeachment, for instance, raised and put to rest the question of impeachment juries, rejecting the concept impractical for the Senate and probably unconstitutional as well. But the issue of indictable criminality was not settled.

As Vice President, Jefferson was president of the Senate during the Blount Affair. He researched the laws of impeachment and determined that, at least in his opinion, in order to be impeached, a man must be charged with an indictable offense. On January 27, 1798, Jefferson wrote to Senator Tazewell, an outstanding jurist who debated the issue during the Blount impeachment: "In Law-language the term crime is in common use applied to misdemeanors, and that impeachments, even when for misdemeanors only are criminal prosecutions."

Having closely observing the proceedings, Jefferson said Senator Blount had done anything wrong, and subsequently concluded that impeachment "is a farce which will not be tried again." In a letter to James Madison dated February 15, 1798, Jefferson wrote, "I see nothing in the model of proceeding by impeachment but the most formidable weapon for the purposes of a dominant faction that was every contrived.... I know of no solid purpose of punishment which the courts of law are not equal to, and history shows, that in England, impeachment has been an engine more of passion than justice."

Yet Jefferson himself eventually resorted to the farce, having it employed against certain Federalist judges who had denounced Jefferson's "Jacobin" principles from the bench. For instance, Judge Samuel Chase, rabble-rousing hero of the Revolution, took the bench and turned into a conservative tyrant, ostensibly to protect the gains made by the Revolution. In an effort to smother the growing independence of the Supreme Court in its crib, Jefferson pulled strings and had Judge Chase impeached. Chief Justice John Marshall was intimidated by the attack on the court: he suggested that it might be better to appeal undesirable Supreme Court rulings to the U.S. Senate instead of impeaching judges. That would have, ironically, moved the nation closer to the practice of the hated British system where the House of Lords served as the highest or supreme court and as trier of impeachments. Judge Chase was not convicted because it was held that he was not guilty of crimes. Jefferson's failure to suppress the Judiciary's independence with the impeachment "farce" failed; the early debate over whether the "high crimes and misdemeanors" of impeachment cases should be indictable offenses was, in a sense, the crucible in which the independence of the third branch was forged.

Not withstanding their leader's hypocrisy, in trying to rid the bench of judges because of their political affections, Jefferson's faction generally preferred their laws in writing. They would not be subject to the English common law, over which judges, particularly Federalist judges who retained certain sympathies for British culture, had so much arbitrary power. The democratic Republicans believed that all people should know exactly what conduct is illegal before they are charged with crimes - there must be no ex post facto or retroactive laws. It would seem that not only the lowest scoundrel but also even the President of the United States should know what is prohibited, and that high officers of the United States should know in advance exactly what conduct would subject him to impeach and trial in the Senate.

Today most authorities believe impeachments of a sitting president should require the commission of an indictable offense. But majority opinion changes with the wind. If the person one wants impeached did not commit an indictable offense, one might successfully argue that no such offense is necessary, that any sort of serious malfeasance in office is sufficient for impeachment, especially misconduct that allegedly endangers the safety of the nation. That is, if it behooves a lawyer to argue a criminal offense, he will do just that; but if a political offense will serve the purpose, he will proceed accordingly. He takes his pick: the law, or politics. Therefore the issue is never laid to rest, that both criminal and political offenses as grounds for impeachment remain arguable.

We might conclude from all this that impeachment proceedings should simply be a way of firing presidents and other high officers for serious misconduct in office.

The Chisholm-Romayne Scheme

The Genet Scheme to grab the Spanish Plums for the United States set the precedent for the Chisholm-Romayne Scheme, but the Blount Conspiracy was far broader in scope than its precedents.

John Chisholm was a Spanish-hating ex-British soldier who had suffered imprisonment at the hands of the Spanish at Pensacola. He soon became a Knoxville tavern owner, a free lance Indian agent, and a soldier of fortune in want of U.S. citizenship - his citizenship petition for himself and his Loyalist friends was greeted coldly by Secretary of State McHenry and turned down. Chisholm served his client, William Blount, as handyman and Indian agent while Blount was the wheeling and dealing governor of the territory south of the Ohio - Blount's main concerns as real estate speculator and governor were his land deals and Indian affairs.

Chisholm the mercenary was not about to wait for American and British statesmen to form an alliance against Spain to make his fortune - the Federalists loved England but they did not want to entangle the fledgling United States in a war with Spain. A rumor out West had it that Spain would soon return New Orleans and the territory west of the Mississippi, which France had given to Spain in 1763, to France. Of course France was not bound by the U.S. treaty with Spain. It was feared that Napoleon would then close the Mississippi river to the Americans; therefore New Orleans would be better off in British hands, because the 1783 U.S. treaty with Britain guaranteed free navigation of the Mississippi. Chisholm conceived a scheme for an assault on East Florida, and proceeded to promote it with almost anyone who cared to listen, including the Indian interpreter James Carey, his old Loyalist friends and others on the frontier; and with British minister John Liston. In fine: Chisholm and his ex-Loyalist friends would enlist Indian allies and lead the attack on Spanish Florida; the British would supply provisions and a privateer.

Senator William Blount of Tennessee, patriot of the Revolution, wheeler-dealer and real estate speculator, the first person impeached and tried by Congress, loved Chisholm's scheme for what it was worth, and that was not a lot in comparison to his own grand plan. Indeed, he called the Chisholm part of the so-called Chisholm-Romayne scheme a "petty enterprise" because the big Spanish plum, which Chisholm had relished in conference with his real-estate speculating partner up North, Dr. Nicholas Romayne, was not Spanish Florida, but was Spanish Louisiana, and that was what Blount would have.

The American real-estate bubble burst: prices tumbled; paper was presented; debtor's prison loomed. Dr. Romayne went to England and tried to dump some of the vast Western tracts on British investors; he reported back to Blount that the Western land was considered worthless in England for fear, of course, that Spain, to establish a firm barrier for her possessions further south, would cede Louisiana to France. The doctor's enthusiasm for the conspiracy to set things right would eventually wane, and he would pen a letter to Blount renouncing the plan because of France's successes in the war and the related growth of England's financial burdens.

The details of the Chisholm-Romayne Scheme were probably never worked out. Generally speaking, the British would cooperate in a three-pronged attack on the Northwest (via Canada) and on Pensacola and New Orleans. We do know that Blount discussed Chisholm's plan with Dr. Romayne. The doctor did not like Chisholm's involvement - the mercenary was too disreputable for his taste. And Chisholm was no fool: he realized that he might be shoved aside by Dr. Romayne, hence he was not very cooperative once he knew of his involvement. In fact, he sounded out Aaron Burr in hopes of enlisting him into the scheme.

We do not know if Burr bought into the Blount’s own conspiracy. Burr and Blount were friends, and Blount had been seen dining with one James Wilkerson, who was at the heart of the later Burr scheme and who had taken part in a yet earlier plot, an alternate to Genet's plot, the original plot to seize the Spanish Plums - Wilkerson would have had to ally himself with Spain given the political climate at the time. Thomas Jefferson had also been seen with the "wrong" people - Abigail Adams would wish the guillotine were applied to the likes of Jefferson and Blount. It was a small world, after all, and the Anglo-Saxons had much in common; they wanted much more; to wit, access to the Gulf, Florida, Louisiana, and so on. And the Anglo-Celts disliked not only the Spanish and Native Americans but the Brits as well. Of course the visionary Thomas Jefferson coveted the Mississippi and beyond. He pardoned Wilkerson for his, earlier plot, one far more treasonable plot than Blount's or Burr's, yet he persecuted Burr for a similar yet lesser plot than Blount's. In fact, Vice-President Jefferson would preside over the impeachment of Senator Blount - Jefferson remarked in a personal letter that he thought Blount had done nothing wrong.

The Blount Conspiracy had intrigued British Minister Liston, for Britain was at the time contemplating an attack on Spain in America. When the conspiracy came to light, Liston would admit that he had spoken to someone about some sort of scheme, but he denied that he was keen on it. He had formerly been interested enough in Chisholm's proposal, however, to provide him with passage to England: Chisholm's efforts there were for naught - he was turned down flat; thereafter a deluded Brit accused him of plotting with Spain.

An argument presented against the impeachment of Senator Blount for high crimes and misdemeanors in regards to his own land-grabbing scheme out West was that the House impeachment (political indictment) had been brought solely on the basis of Blount's letter to his Indian interpreter, James Carey. Blount had risked writing the soon-to-be notorious letter because he had been called to a special session of Congress and could not communicate his wishes directly. In that letter, Blount made references to participants in schemes broader than the customary cheating of Indians out of their land; for instance, the Chisholm-Romayne scheme to seize the Spanish plums. This time the cheating of Indians would be at Holston.

Blount's defenders argued that there cannot be a conspiracy without co-conspirators capable of carrying it out; in this case, the British, who purportedly did not actually conspire to carry out the attacks proposed. The Federalists were in fact embarrassed by the probability, no matter how slim it might be, of British involvement, for that would implicate the Federalists if not the opposing Republican fraction. Therefore President Adams was advised to keep the whole thing quiet; but he dared not do so, lest the cover up be uncovered and his party defamed by the conclusions which might then be drawn about what went on under the sheets.

The Carey letter was not the only evidence brought to light during the impeachment proceedings, but it was considered sufficient evidence for a quick impeachment. The Congressmen on all sides were rightly concerned for the future of the United States, which seemed to be presently endangered by the misconduct of one of its senators - whether that misconduct was indictable as a criminal offense was not relevant at the moment. Senator Blount had been expelled, but he might be elected again given the fact that he was extremely popular in Tennessee. Conviction at an impeachment trial would disqualify him from office; however, even that was not the chief concern at the time: an investigation must be conducted at once to address what was perceived as a clear and present danger to the United States; and the impeachment committee, the House managers, and the senators serving as inquisitors, judges and jurors for the highest court in the land - in cases of impeachment - did just that. When they realized there really was no threat, the impeachment trial was put on the back burner for the political squabbling that would eventually set precedents for future impeachments. There was no pressing need to wrangle over whether or not the British were in fact conspiring with Blount et al. Many of those involved in the debates certainly knew what "the framers intended," for they had participated in the framing. William Blount should have known, for he was one of the signers of the United States Constitution.

The Real Estate Crash

Senator William Blount, the first man to be impeached by the House of Representatives, had good reason to be anti-Federalist given the arrogant treatment he had suffered at Federalist hands when he tried to take a seat in the U.S. Senate for the new state of Tennessee. Moreover, Blount was favorably disposed toward some of the republican notions of the French Revolution while the Federalists were enamoured of English traditions. Wherefore Blount's political affiliation with Jefferson's Republican (Democratic) party.

Blount, in his former capacity as Governor of the Southern District, was too beholden to the Federalists who had appointed him, hence he led a crusade to bring statehood to Tennessee in order to save himself and like-minded Tennesseans from Federalist domination. The regional demands for statehood after the Revolution, which if met would provide independence from the federal government, alarmed the Federalists - too many states would rock the Federalist boat and water down its stock.

After Blount achieved statehood for Tennessee and took his Senate seat, he was politcally a Republican (i.e. democrat) through and through. As for business, business is business, and sometimes the good of private business conflicts with publicly held political persuasions. Senator Blount the real estate speculator was facing financial ruin. That alone gave him due cause to side with the British where his own business was concerned. On the other hand, he faithfully sided with the French in the political arena.

Blount and his fellow speculative patriots had their eyes on the Spanish plums in America: Florida and Louisiana. His Majesty of Spain had allied himself with France against England. The American speculators feared that Spain would concede the plums they sorely wanted to France in return for protection; that would spell disaster for the financial plans of Blount et al.

The most convenient solution: make a deal privately with England to grab the plums from Spain. The scheme: American settlers could get together with some Indian allies; backed up by British privateers, they would occupy the coveted lands. Such an alliance with the British would be in accord with the Anglo-American proclivities of most of the Southerners involved. Not that any affection for the British would preclude an alliance with Spain if it were convenient. William Blount, Andrew Jackson, and John Sevier among others had already participated in or condoned a flirtation with the Spanish governor of Louisiana, Esteban Miro, in a previous scheme (the Daniel Smith affair) that would have separated the District of Mero - prime real estate in the middle of the Cumberland region- from North Carolina and handed it over to Spanish Louisiana, that "the West be one people." But that deal had fallen through; this was now, and the speculators were in an awful fix now that values were plummeting and notes were being called in. So to hell with Spain.

William Blount was on the hook for a million acres in 1796. He was involved in his brother John Gray Blount's deals for another million and six hundred thousand acres. Prices in 1795 were around a quarter per acre for large tracts of two or more million acres. War ensued between Britain and Spain in October of 1796 - Spain was probably about to hand Florida and Louisiana over to France. In Tennessee, it appeared that the Federalists would draw the Holston line fairly - as the Cherokees had expected to begin with. Land values out West dropped to a dime an acre when credit collapsed. The dominoes tumbled one after another. Andrew Jackson was deeply indebted. David Allison, a wealthy easterner whose I.O.U. was once as good as gold, and who was one of Blount's partners in Indian land deals, wound up in debtor's prison. Senator Blount was virtually bankrupt; fortunately, his senatorial immunity saved him from debtor's prison.

Surely something must be done or all would be lost as far as the troubled real estate speculators were concerned. Help from the federal government would not be forthcoming if asked for: the Federalists were behaving diplomatically, hoping that the fledgling United States would not be strangled in its crib by foreign entanglements. An "incriminating" letter in Senator Blount's hand came to light, and the question as to whether or not his conduct rose to a high crime or misdemeanor for which impeachment arose and was quickly answered in the affirmative.