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William Blount and the Old Southwest: America’s First Impeachment

William Blount And The Old Southwest: America’s First Impeachment

This evening I have been asked to analyze the role of William Blount in our nation’s founding.  This is a timely assignment, and one which I am delighted to have to the opportunity to address.  Thank you to Professor Hammons and the Morris Family Center for Law and Liberty here at Houston Baptist University, to Dr. Stuart Morris, and to the Charles Koch Foundation for facilitating what has so far this year been a very interesting glimpse into our nation’s “forgotten founders.”

I would like to make two points about our current politics through the story of Blount’s impeachment. The most important constitutional debate regarding impeachment is probably whether “treason, bribery,” or some other “high crime or misdemeanor” need be committed, or whether a politician merely must violate the trust of the people in some way similar to those crimes.  In other words: is impeachment criminal, or political?  Tonight’s lecture should help us to see that, from the first instance of a nationally prominent impeachment, that of United States Senator William Blount in 1797, these waters are muddy.  There were very clear political motivations for his impeachment, and a compelling case could be made that, although he seemed to have done something wrong, he did not commit a high crime or a high misdemeanor; you could certainly argue that a senator is not the type of “civil officer” that can be impeached at all.  Such constitutional leniency occurs in other nationally prominent impeachments; although in other, mostly less prominent cases, we do see clear instances of, for instance, bribery.  So, throughout our history, impeachment is political under the right circumstances, namely, when the House majority is profoundly antagonistic towards the opposition party.  The first point is therefore that the nature of impeachment allows for the possibility that Trump’s impeachment might be merely politically motivated.

The second point I would like to try to make concerns the procedural nature of impeachment.  Blount’s case set the precedent that, as political and not criminal procedures, impeachment inquiries and trials may pursue very aggressive investigations and trial procedures that are not restricted by rote constitutional protections that would apply in criminal matters.  The second point is therefore that the House has already acquired as much dirt as it may possibly hope; the Senate may, in Trump’s case, limit the public presentation of it through their power in this process.  Whatever you as a voter make of the Articles of Impeachment against Trump, we have been granted through this process a very thorough dig through the White House closets.  Transparency is fortunate for a democracy, but that impeachment is prone to vitiation through politicization is not.

Although William Blount was once a prominent member of American society, and remained something of a celebrity in Tennessee even after his impeachment made him notorious elsewhere, I will spend little time dwelling on those elements of his biography this evening.[1]  He did serve as paymaster for the revolutionary militia in North Carolina, was a member of the Continental Congress from North Carolina, delegate at the Constitutional Convention, member of the North Carolina State Assembly, territorial governor of the territory south of the Ohio, and United States Senator from Tennessee.  Though he was present for the signing of the Declaration and the Constitution, it is not his participation in these events that made his largest impact on the formation of our Constitutional order.  Indeed, the records today do not suggest that he was a particularly significant player in the debates surrounding either document.

Blount developed considerable speculative real estate investments throughout what became the state of Tennessee in 1796 (being governor of that territory certainly aided this endeavor).  Real estate speculation was a skill Blount had learned from his father in North Carolina, and developed under his tutelage in the 1760s; this was his only real education.  He was from the eastern, tidewater part of North Carolina, born in 1749, but was among the adventurous pioneers who crossed the Blue Ridge mountains and settled the foothills of the Tennessee Valley, in present day North-East Tennessee (near the Virginia border) in the 1780s and 90s.  He used his wealth to buy six hundred and fifty thousand acres of unsettled real estate throughout the Tennessee and Mississippi Valleys, and developed political connections with the various Indian tribes throughout the area.  Blount was therefore well positioned to dominate this region politically: he was well connected not only within the area, but as a Senator his political connections also networked him with the various Imperial power-players vying for control of the geographic area that was then referred to as “the southwest.”

Conflicting cases could be made about Blount’s personal character.  You could make the case that he thought greed was good.  As early as the 1770s we can find evidence in his correspondence of corrupt business deals in North Carolina; his own cousin penned him a fiery letter accusing him of committing usury against him and other local neighbors: “I wonder truly how many poor sons of bitches with tears in their eyes I have seen within these six weeks past coming from your place…all declaring themselves broken [miserably] but none of them without a good store of curses which they bestow with a very liberal hand on [you].”[2] While serving in the Continental Congress in the 1780s, his primary legislative interest concerned the Indian treaties that would affect his own land holdings.   And his participation was so scant at the Constitutional Convention because he spent most of that time not in Philadelphia, but at the Continental Congress in New York, again occupying himself with land and Indian issues of personal financial significance to him.  At the same time, his personal interest in the southwest region meant that he saw to these affairs with a responsible seriousness.  His effective stewardship earned him a respected place amongst the Federalist Party (of which he was a member at this time), the governorship of this territory and celebrity within it, and even a personal friendship with the now apotheosized George Washington.  This is, perhaps, an all too typical description of politicians and their motivations.

In the 1790s, the area that we now refer to as the “southeast” was called “the southwest.”  I’m talking about the area south of the Ohio River, east of the Mississippi River, and south and west of the Appalachian Mountains (the states of SEC football:  Kentucky, Tennessee, Georgia, Alabama, Mississippi, Louisiana and Florida).  Today, when referencing the historical events in this region at that time, we speak of the “old southwest.”   There are two things I’d like you to understand about the old southwest.  The first is that it wasn’t all that different from the regular southwest that you’ve seen in the cowboy movies.  It was a relatively lawless area.  Those who lived there were generally pretty tough and self-reliant; many of the residents were outlaws of the colonies on the eastern seaboard. Instances of alliance and of fighting between white settlers and the many Indian tribes (Cherokee, Choctaw, Chickasaw, Creek, etc.) were common.  It was, and in many ways still is, a backwoods.  The second thing I’d like you to grasp about the Old Southwest is that this region was not yet comprised of states that were a part of the United States; it was comprised of “territory,” not states, and the fate of this region was in no way firmly settled in the 1790s.

Political control of this region was uncertain throughout the latter half of the eighteenth century. Since the 1760s, Spain had controlled Louisiana and the Mississippi River, having taken this territory from France in 1763.  But Spain had very few men north of New Orleans, and alliances with Indian tribes were necessary to maintain order.  England maintained colonial possessions in the Northwest.  An American Treaty with England, to confuse matters, provided the Americans with control of the eastern half of the Mississippi.  Spain’s interest in the region was tepid, wishing merely to use Louisiana to keep the Americans from making further in-roads into Spanish Mexico.  But as Spain’s power flagged over the next several decades, they were forced to cede use of the Mississippi River at New Orleans to American shipping through Pinckney’s Treaty in 1795.

Spain’s relationships with the Indian tribes of the Old Southwest were, moreover, waning in the early 1790s.  By 1795, therefore, events were looking quite fortuitous for Blount.  He had amassed prolific land holdings down through the Mississippi Valley, and the changing political tide meant that his lands might soon be ripe for sale.  He had helped to draft Tennessee’s Constitution, providing significant benefits for land speculators such as himself, and, as former governor of the territory, was able to lobby for its passage in Congress.  As it stood at the time, however, partisan politics in Philadelphia still precluded American development of the Old Southwest.

The basic partisan positions detectable in the Federalists and Anti-Federalists of the 1780s were becoming entrenched throughout 1790s.  Essentially, Federalist policies advocated for a more sophisticated and powerful national government than did Anti-Federalists, who lauded individual rights and state sovereignty.  Geographically, the Federalists saw their greatest support from the urban and commercial centers in the East, while Anti-Federalists evolved into Republicans and received their support from the interior and backwoods regions of the country.

Federalist policy throughout the 1790s, in line with these partisan cleavages, tended to advance the commercial interests of the eastern seaboard over and against those of the interior.  These dynamics promised to stymie Blount’s real estate ambitions.  So, in 1796, he switched parties and became a Republican.  Thomas Jefferson secured the Vice Presidency later that year as a Republican.  Though Federalists retained control of all branches of government, there was increased hope for Blount’s finances, though they were presently strained to their limits.

At this time, the French interest in Louisiana was intensifying. The power of revolutionary France was growing just as that of Spain was waning.  So, then, we have this picture of the old southwest as, as one scholar put it, “an imperial plaything, a chunk of raw meat around which circled a pack of wolves.”[3] (First Impeachment, 78)  But this same scholar astutely points out that benefits also have costs, and everyone’s bluff seemed to be evident by the late 1790s.  Neither England (who cared more for the Northwest), nor Spain (who cared more for Mexico), nor France (who cared not to risk all of their chips), nor America (who feared the same as France) was willing to make the type of dedicated investment in the region that would have been necessary to solidify control over it.

If you actually lived in the Old Southwest at the time these politics would have been frustrating.  One scholar, in 1898, put like this: “The frontiersmen were about to advance.  Their produce was useless if the Mississippi were closed.  They were wary of the incessant Indian war on their borders.  The federal government discouraged their attacks on the savages and appeared indifferent to the closing of navigation by Spain.  To the frontiersmen the essential thing was relief from this intolerable situation.”[4] So, it was in this context that not only Blount’s but many other conspiracies developed to establish some sort of local autonomous political order that would actually look after the interests of the people that lived there.  The likes of General George Rogers Clark (brother of William Clark, of the Lewis and Clark expedition), Brigadier General James Wilkinson, Alexander Hamilton, Aaron Burr, and Andrew Jackson all took part in some conspiracy or another in this region in the years before the area’s fate was settled.  Some records even give room to speculate that Thomas Jefferson – sitting vice president and future President – was even aware of and to some extent involved in Blount’s own conspiracy.  Dozens of other once prominent but now mostly forgotten names, like John Sevier, could be added to this list.  So, Blount’s was not some radical plan concocted in isolation.  His plan actually reflects the prevailing political attitude in the region at the time.  We are, after all, talking about contended territory, not settled states that long benefited from being a part of the United States.   You might even argue that Blount’s plans, and the others, were motivated by the same impulse as the American Revolutionaries.  The act of starting your own country in an unsettled wilderness that is geographically isolated from the power-center of the Empire whose laws and practices harm you without providing you due representation in their legislature is, after all, quintessentially American: it is up there with baseball, smuggling contraband goods, and apple pie.

Because of this, I protest the use of the word “conspiracy” to describe the plots in the Old Southwest, although this word is prominent in the historical literature on these events.  Conspiracy connotes a sense of malfeasance and wrongdoing.  I think the political circumstances of the time better call for a word like “plan,” or “design for the future well-being of the region.”  Although we look on our constitutional order with some reverence today, in the years immediately after the republic was constructed, and from the vantage point of an inhabitant of the Old Southwest, that republic would have seemed nothing more than a tool of distant power-brokers on the Eastern seaboard to use the Southwest for their gain.  Many living there today still see it this way, and there is indeed still merit to this claim (I think of the use of the word deplorable to describe them when I say this).

At any rate, Wilkinson’s plan, for instance, openly called for the secession of the territory that is now the state of Kentucky, to be either joined to a part of a Spanish state, or to form an independent state; he promised Spain that, for their assistance, they could make this decision.   This plan never manifested, due to changes in the Imperial balances of power.  Spain and the US had begun negotiating terms to settle their southern border disputes, which would preclude such a relationship. George Rogers Clark plotted with the French to plan an attack on US holdings in Louisiana, north of New Orleans, once again with the idea of secession in mind.  Both plotters, Wilkinson and Clark, claimed that hundreds or thousands of frontiersmen respectively were prepared to participate in military actions.  Clark’s plot also failed to materialize, but all of this once again underscores that conspiracy is not the right word for these plots, for the bonds of allegiance between prominent players in the backwoods of the Old Southwest to the prominent politicians in Philadelphia were quite thin.  This was in many ways the beginning of a power struggle that would not culminate until the Civil War, though would flare occasionally until then, as can be seen, for instance, in the Fletcher v Peck ruling (which also concerned who would determine the fate of the lands in the southwest, and, exemplifying nicely the fate of the Southwest, was decided by Federalist judges to the detriment of local land-holders and to the detriment of local sovereignty, and done for the aggrandizement of Federal power.).

Clark’s plot resulted in the Neutrality Act of 1794.  The Federal Government had taken notice of all of this plotting, and was resolved to put an end to it.  The Neutrality Act stipulated that anyone involved in a military expedition against the United States had committed a high misdemeanor.   As you might expect, this law will concern us again momentarily.

Two factors came together in 1796 that led to Blount’s plot.  First, relations between Spain and the US deteriorated as a result of war between Spain and England.  Spain, fearing an alliance between the United States and England, stalled the withdrawal of their Mississippi River lands they had been evacuating pursuant to Pinkney’s Treaty.  This resulted in plummeting land prices throughout the Southwest, and the ruin of many speculators.  Blount twice escaped arrest for credit issues by pleading senatorial immunity.  Second, the Federalist Adams administration appointed Benjamin Hawkins as Indian Superintendent.  He would be responsible for surveying the line of the 1791 Holston Treaty, reached between settlers in Northeast Tennessee and the Cherokee.  A Federalist line would benefit the Indians, not the white settlers.  This meant that Blount would possess less of his now devalued land than he believed he was entitled.

As is often the case in tragic stories, Blount’s oligarchic soul was faced with a temptation that, only in the context of these overarching political circumstances and personal financial distresses, would he likely have allegedly indulged.  Nineteenth century scholars of this episode tended to argue that Blount might not have even been a part of the plot, but rather became the fall-guy for a Federalist inquisition into the rebellious Southwest.[5]  We may never really know today, though this view fell out of fashion when impeachment research rekindled an interest in Blount during the Nixon impeachment.  It is an interesting possibility, however, that fake news played an integral part in this seminal impeachment.

According to the accepted story today, Blount was approached by the adventurous frontiersman John Chisolm to participate in a scheme to emancipate Florida from Spain and to deliver it to England.[6]  Blount expanded, however, upon this scheme and decided to include as well a plan to emancipate present-day Louisiana from France to deliver it to England as well.  To achieve these two objectives, a three-pronged military expedition was planned, and envisioned to occur on the same day.  First, militia from Ohio and Pennsylvania were to attack New Madrid from the Ohio River.  Second, Blount was to lead a group of whites and Choctaw Indians against New Orleans from Tennessee.  And third, Chisolm would lead another combined force of white settlers and Indians against Pensacola, Florida.  In order to achieve success, Blount and Chisolm needed English funding and naval support to blockade both Pensacola and New Orleans.

It was an ambitious plan, and proved to be too ambitious.  First of all, England decided against participating in the endeavor to avoid antagonizing the United States.  But the plotters did not know that England had made this decision due to the amount of time between communications across the Atlantic.  So, their plans intensified throughout 1796, believing incorrectly through their connections that they did indeed have English backing.  Moreover, as is usually the case with co-conspirators, Chisolm had loose lips, and the lack of secrecy became a problem.  Though it was, ironically, not Chisolm (who told everyone in Philadelphia and beyond of the plans) but a letter written by Blount which provided the critical evidence against him.  Although this sounds like a bundled operation today, we might rather interpret the openness of this secret, in the context of this preponderance of plots, as reflecting the regular political attitudes about the Southwest at the time.  This openness suggests that Blount’s plan was neither radical nor necessarily viewed as criminal by southerners at the time.

En route to Philadelphia from Knoxville in April 1797, Blount stopped at James King’s Ironworks (near present day Bristol, TN) and penned a letter detailing the plan to James Carey of Tellico, south of Knoxville.   It appears that James Carey received the letter in mid-May and began to have doubts about the plans within it.  Having one day gotten himself as drunk as Mayberry’s Otis, Carey turned the letter over to Federalists in Knoxville, who took it upon themselves to deliver the letter to the Adams administration in Philadelphia.

When Adams received Blount’s letter in June 1797, he, upon the advice of his Attorney General, sent it to the Senate for appropriate action.[7]   Blount actually encountered the administration’s secretary as he was entering the Capitol, and asked him what he was delivering.  The secretary declined to answer, and Blount went about his business.   When Blount entered the Senate chamber a little while later, the Senate had already reviewed the letter once, and they began to read the letter aloud for a second time.   A visibly pale Blount declined to answer immediately if he was author of it, requesting time to review his own documents.  Blount began to flee Philadelphia almost immediately.  Federal agents boarded the ship he was aboard at the Philadelphia docks; they did not recognize him but seized trunks containing his documents.  With this development, Blount decided to stay in Philadelphia, hired two of the best attorneys from his day, and the stage was set for a showdown over his fate in the United States Congress.

By July 7, 1797, the House and Senate were trying to determine the best way to deal with Blount.  They really didn’t know how to do so, but they did know that the way that they handled his allegedly traitorous behavior would set an important precedent for how to do so in the future.  His was the first instance of such ostensibly radical corruption from a member of Congress, and we had not tested the waters of retribution.  To complicate matters, both the House and the Senate wanted to assert their own prerogatives and to and to seize their own share of the power in this oversight capacity.  So, as the Senate was debating whether to expel the Tennessee Senator, and whether they had the power to do so, the House voted to impeach him.  Poor Blount had very few friends in either location.  The Republicans tended to support the French, and the Federalists the English. The fact that he was a Republican conspiring with the English meant that everyone could find a reason to distance themselves from him.   Even the other Tennessee Senator voted for his expulsion, which the Senate did by a vote of twenty-five to one.  So, Blount found himself facing this double calamity of expulsion and impeachment.

By the way, he was also facing criminal charges for violating the Neutrality Act, and Federal Marshals were on hand at the Senate proceedings to take him into custody as soon as the Senate had concluded its business with him. The Senate forced him to produce an amazing sum of fifty thousand dollars in bond and sureties to avoid being imprisoned, lest he flee to Appalachia, while his impeachment trial was organized.  His attorneys successfully lobbied to have his bail reduced to a more reasonable one thousand dollars, and Blount promptly fled to North Carolina, and then to Knoxville.  Though pursued for a while, he was never apprehended.  Indeed, later in the proceedings, federal agents were dispatched for a second time to return him.  When they found him, he refused to leave his home, and local citizens escorted the federals clear out of Knoxville – an event which   So, from a mere month or so into the eighteen-month Impeachment proceedings, Blount was absent from the affair.

But at this juncture in the story I should pause and explain what impeachment is, and from where it came.  It’s latin origin “impetito” usually carried a dual meaning in legal usage in medieval England – that of a charge of a crime and of a hindrance of action.  We can piece together something of a basic definition from this, as a charge of a crime designed to thwart the criminal action.  As a practical matter scholarship has traced the origin of impeachment proceedings to about the 14th century England, though there’s some dispute over what exactly constituted the first instance.  I prefer this one: In the 1320s an English noble named Roger Mortimer, after having been released from prison for treason, set about to steal the English throne.  He took the King’s wife as his mistress, with whom he raised an army, and invaded England.  He then forced Edward II to abdicate the throne for his weak young son Edward III, and subsequently had the former king murdered (though he officially died of illness, “horrible screams” were heard from his chambers on the night that he died).  Mortimer then forced the younger Edward to abdicate the throne for him.  As some time passed, the younger Edward gained power, raised his own military forces, and captured Mortimer (as Edward’s mother / Mortimer’s mistress pleaded for mercy).  Here is where we see impeachment’s origin: Edward hauled Mortimer before the House of Lords, where he was tried for treason, and sentenced to be drawn and quartered.[8]   In other words: the upper house of Parliament tried and sentenced someone improperly exercising executive power with the highest form of treason.  So, to be a little more specific about our definition, impeachment is a way for legislative members to hold executive officials accountable when they have done something that the legislature believes to be fundamentally treasonous.  It is, in other words, a form of a check and balance between the branches of government.  This same format was used throughout the next five centuries when, from time to time, ministers of weak kings betrayed the trust of more powerful parliament members.  The House of Lords would try the corrupt minister and have them removed.[9]  It is from these procedural origins, and because our Founders understood the need to have a way of protecting ourselves against bad faith actions taken by the Executive, that our Founders were inspired to include impeachment powers in many early state constitutions, and eventually in The Constitution of the United States.

The U.S. Constitution details impeachment powers in three places.  Articles I and III explain the procedural elements of impeachment: that impeachment occurs in the House, that articles detailing the reasons for impeachment are sent to the Senate, and that the Senate will hold a trial to judge the accused.  Article II, Section 3, meanwhile, explains who is amenable to impeachment, the specific crimes for which these persons may be impeached, and the penalty (removal from office) for conviction.  The Blount impeachment helped to determine exactly what all of this means, and I’ll now review some of the debates regarding this language, and show you how the House and Senate deciphered this language in the Blount impeachment.

The relevant clause in Article II Section 3 is: “The President, Vice President 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.”  We see herein who may be impeached.  Civil officers are those officials who are commissioned by the president.  So, essentially, this language means that executive and bureaucratic officials of the federal government, appointed by the president, or the president or vice president (who appoint them), may be impeached.  Congress can’t impeach a state governor or the local dog catcher.  This is consistent with the historical usage of the term, and with the theoretical reasons for it – it is a way for the legislative branch to check executive action.  We can also see the type of action that may be checked through impeachment: “Treason, Bribery, and other high Crimes and Misdemeanors.”  The basic idea here is that the executive does not lord over his own realm, but that government is a fiduciary trust (think of the word commonwealth – wealth that is common to all); the most fundamental abrogation of that trust will manifest in the relevant categories of criminal behavior.  Treason and Bribery, much like the high misdemeanor that Blount was accused of (violating the Neutrality Act), are instances in which the personal interest of a political actor is pursued at the expense of the nation.

This second part of the impeachment clause, the crime necessary to implement it, has been the greatest source of controversy in our most prominent presidential impeachments.   In Clinton’s, the essential debate boiled down to whether his perjury amounted to the type of treasonous behavior detailed in the Constitution.  The same basic question is at stake in Trump’s: does his pressure on the Ukrainian government to investigate corrupt practices in their country by former U.S. government officials constitute some fundamental violation of our trust, consistent with treasonous behavior?  In Clinton’s, Republicans argued that no specific “high crime” need be committed, but that perjury, though not a high crime or high misdemeanor, demonstrated the basic violation of trust that impeachment was intended to rectify, while Democrats claimed that a specific crime fitting those categories was necessary; today, the parties are making precisely the opposite argument.  We can see that this debate is a political thing, and we shouldn’t be surprised by that.

But in Blount’s impeachment, because he was also charged with a high misdemeanor, there was no controversy over this issue.  In hindsight, there should have been.  In order to violate the Neutrality Act, it is necessary to not merely conspire with foreign forces to but actually take part in the execution of the plans; action and not conspiracy was a necessary condition to have violated the law.  Technically, Blount did not violate the Neutrality Act.  As you’ll see, this technical question was never resolved in any legal way.

One important purpose of impeachment is to forestall the questionable action that is being investigated.  At the time, the concern in Congress was that Blount’s plans were still active; that an armed insurrection was about to occur in the Southwest.   Most contemporary historians of this incident believe that the impeachment of Blount was really intended to get to the bottom of and to prevent the plot from unfolding, and the investigations in late 1797 did precisely that.   From early August 1797 through December 1797 a House Select Committee went about conducting an investigation into the allegations; Federal agents, even military officers, were used to interview individuals and to collect documentary evidence from New York to Tennessee. In this way we see an important precedent in the congressional oversight power, that of a nearly unlimited congressional ability to bypass rote 4th amendment protections in their impeachment investigations.  Recall that Blount’s trunks were seized as he was attempting to flee Philadelphia, even though no warrant had been issued to authorize their seizure.  Warrants were also not issued by judges for the searches conducted of other individuals’ homes who were allegedly involved in the plot.  Indeed, the Senate did not specify the House’s subpoena powers until the Spring of 1798, after the bulk of the investigation had already been completed by the House.

At this point an interesting comparison between Blount’s and Trump’s impeachment then occurred.  There was a substantial delay in the delivery of the articles of impeachment from the House to the Senate.  Republicans in the House had to several times prompt the committee to produce them, before they finally did in early January 1798.  It seems as though, with the investigation completed, the threat of invasion put down, and the Federalists with some egg on their faces for having exposed their English allies as conspiring against them, the Federalist desire to push the issue any further really dissipated.  This is also true today.  Having used the impeachment committees to dig up the dirt, but with little chance of a guilty verdict in the Senate, the democrats today have already gotten everything politically from the impeachment that they might hope to get.  This behavior, then and now, also underscores that we are talking tonight not about criminal actions, but about politicians pursuing their own advantage through the political process.  This, ironically, is the essence of the impeachment accusations against Trump today.

The articles of impeachment that resulted from this inquiry were subsequently sent from the House to the Senate, and the House then appointed managers to act as prosecutors in the Senate trial.  All eleven were Federalists.  The House drafted five articles of impeachment, and these articles show much about the political nature of impeachment.  Article one referenced his fomenting a conspiracy to conduct military operations against Spain, with whom the United States was not at war; it was effectively saying that he violated the Neutrality Act (though he had not).  Article two referenced a violation of Pinkney’s treaty, and distinguishes the treaty’s “obligations of neutrality” from the “laws of the United States.”  Articles three through five reference his riling discontent amongst the Indians against Federalist policy.  What is interesting is that none of these are indictable offenses.  None demonstrate a violation of any high crime or any high misdemeanor.  They also, interestingly, do not reference any involvement of the English.  Again, the Federalists had a political motive to leave their foreign ally out of the affair.

Once the articles were sent to the Senate, and the bulk of the investigation completed, the dynamics of the process changed.  It ceased to be about stopping a potential attack, and became a power struggle between the House and the Senate and between Republicans and Federalists.  At least four committees took action to stipulate how impeachment would play out in the Senate.  These maneuvers really show that Federalists in the Senate wished to take control of the impeachment proceedings once they had received the articles; Republicans, meanwhile, appeared to defend the integrity of the procedural process.  One of the more important questions was whether Senate could draft language concerning the oath senators would take as judges in the impeachment.  Could the Senate draft this language themselves, or did the House also have to participate?  (Could it be a mere resolution, or need it be a law?)  Article I does grant the House the “sole power to try impeachments.”  Does this mean, as some Republicans argued, that the House must draft the oath the Senate is to operate under?  Acknowledging this would mean the Senate would relinquish some power to the House.  Federalists argued that they could make their own oath; this would be both faster and grant the Senate more power.  Republicans thought a law was necessary, as that would provide a greater safeguard to the procedure.  Federalists won this issue in a fairly partisan vote.

A few days later, the Republican Senator Read introduced a resolution that would have barred Blount, as a Senator, from being impeached. This was another procedural complaint, and was not done for Blount.  No action was taken on this proposal at first.  Following the Federalist victory on the oath issue, this was probably a power-play designed to protect himself and other Republicans from allowing the House to have powers which might be used to help impeach them.  Republicans could sense that there might some larger and darker political motive for Blount’s impeachment beyond merely thwarting plots in the Southwest.

Instead, the Senate turned its attention to a bill introduced by Humphrey Marshall, a Kentucky Federalist who had been often siding with the Republicans.[10]  One stipulation, providing Senate authority to the House managers, was voted down.  A provision to grant subpoena power to the House was voted down as well.  The pro-procedure faction (Republicans and Marshall) was losing vote after vote.  The Senate was in the process, therefore, of giving up much of its power in the impeachment process.

Henry Tazewell, a Virginia Republican, next introduced an argument that impeachment would be subject to regular jury trials, as stipulated by the 6th amendment.   The question here was essentially whether impeachment was a criminal or political proceeding, for only in criminal events would the 6th amendment protections apply.  The Republicans thought criminal, and produced an impressive list of citations from English law to support this view. This actually turned into a lengthy and combative debate in the Senate.  As it should have.  To introduce a jury would have stripped the majority Federalists of the opportunity to judge themselves the fate of the Republican Blount.  In the end, only three senators supported the jury proposal, including Tennessee’s Andrew Jackson.  Though this too was debatably a Federalist power-grab, their constitutional arguments in this area did persuade a number of the Republican Senators.

Finally, in early March the Federalist majority in the Senate had proposed an appropriations bill to cover the costs of the Blount investigation.  Tennessee Senator Joseph Anderson moved to strike this bill, on grounds that committees should not meet outside of regular congressional sessions if not authorized by law.  The Blount investigations had been carried on in this way – between the first and second sessions of the Fifth Congress.  Anderson’s move was, like the other Republican procedural complaints, defeated in the vote.

What do all of these procedural machinations show us?  The House had been granted significant powers in the impeachment process: unfettered investigation powers, the power to stipulate the manner in which Senators had to judge the outcome, the fact that pre-determined (Federalist majority) Senators would serve as jurors, and an expansive view of who could be impeached had been endorsed.  In other words, the House could collect any and all evidence they wished, they could control how this evidence had to be judged by the jury, they determined who would serve on that jury.  These are all of the factors that one would wish to manipulate if one wished to manipulate the outcome of any trial proceeding, which is why they are all protections provided to citizens by our Bill of Rights.  Of course, the Bill of Rights is designed to protect citizens from government action during criminal proceedings, and not to protect government actors during political proceedings; so given the historical evolution of this power as a political and not a criminal matter, there is some propriety to this; but this event did set the precedent that impeachment is political and not criminal, so such propriety finds greater support through historical arguments than it would through a textual analysis of the Constitution alone.

By late February, 1798, with these partisan power-grabs having been successfully employed by the Federalist Senate majority, rumors of the Federalists positioning themselves for an unlimited or universal impeachment power began to circulate in Republican circles.  At the same time, other Federalists were beginning to worry that, if the Republicans were to take the House in the future, they might be creating a political weapon that would ultimately harm themselves. One final machination from this second session is worth mentioning and tells us something about Federalist infighting:  a report had been included within the procedural arguments that would have stipulated that senators could not be impeached – the Ross report.  All traces of this report have disappeared from the final committee report that the Senate adopted; in other words, this suggestion was dutifully buried by Federalist Senators in committee.  This shows us that in early 1798 the Federalist faction wishing to use impeachment as a weapon against republicans still held the high ground.  At this time the procedural arguments had concluded, and a date was set for a December, 1798 trial in the Senate.

But at nearly the time that the procedural arrangements had been settled, the political landscape changed dramatically. In April, 1798, the notorious X, Y, and Z Affair erupted like a volcano on the nation. The French were attempting to force Americans to bribe them to even begin diplomatic discussions in Paris, and the Americans were put off.  Congress now had more pressing matters than the defunct Blount plot.  As spring turned into summer, the X, Y, and Z Affair escalated into a full-blown, though undeclared, naval war between the United States and France (the Quazi War).  The Federalists believed that the democratic French, having now gone through The Terror, were an arch threat to republican government.  Adams passed, in this context, the Alien and Sedition Acts.  This series of laws allowed Adams to deport dangerous aliens, and to charge those critical of his policies with sedition.  It became a firebrand for the Republican cause because Adams’ opponents, like Jefferson, painted these laws as tyrannical and contrary to democratic ideals by violating our Bill of Rights.  The Federalists, for the first time since our nation’s founding, began to see their political futures in a pessimistic light.   Indeed, they were right: Jefferson was destined to win the Presidency in the election we now call the “The Revolution of 1800.”

Under these changing circumstances, the Fifth Congress of the United States began its third and final session in December of 1798.  Blount’s trial began on Christmas Eve and concluded on January 7, 1799.  One final procedural issue had to be settled as soon as the proceedings began, because Blount was not there.  Could this trial proceed without him, or was his presence required?  Once again, the arguments on either side boiled down to whether this was a criminal or political matter; only in the former case would his presence be theoretically necessary.  The argument in favor of proceeding without him prevailed, which is consistent with the other procedural arguments discussed a moment ago.  However, the changing political tide could now be seen: the House managers actually argued against proceeding without Blount being present, many Republicans voting for trial in absentia.  These shifting positions reflect the changing overall political dynamics, and foreshadow the outcome of the trial – an outcome that would have been surprising up until this point.

The most important issue in Blount’s trial was whether a Senator could be impeached.  This issue came up numerous times throughout the proceedings.  The House considered the issue but dismissed it before declaring impeachment, and it came up early-on in the Senate debates as well.  It was not taken seriously, however, during these early phases of the proceedings.  The bodies were more interested, at that time, in putting down a dangerous plot and in using that opportunity to develop their own powers.  Early on, this issue would have been detrimental to Federalist objectives, and it makes sense for them to have quashed it.  But, again, times were changing.  The propriety of impeaching a Senator was at the very heart of Blount’s legal defense during the trial.  His attorneys argued, as we have reviewed, that as he was not a civil officer, and was not even a senator any longer, that he could not be impeached.  House Manager Bayard, arguing against them, replied that the Constitution did not specify that those who were not civil officers could not be impeached.   Because it is silent on this point, the power may be extended to other folks.  And here we see the Universal Impeachment Theory, finally on full display.  Given this definition, a Federalist-controlled Congress could impeach anyone at all who stood in their way politically.  Anyone working in any capacity for the government, or even those aspiring to run for political office, could be impeached and barred from holding office in the future.   Imagine, in our times, a Democrat-controlled Congress impeaching Trump the moment he came down the escalator to declare his candidacy for office, just to make sure they didn’t have to deal with him in the future.  Or imagine them impeaching me, for delivering this lecture tonight, to prevent me from running for office in the future.  This is really what the idea of universal impeachment was all about, and it shows what impeachment’s political motives mean: it truly does have more to do with hunting witches, and accruing thereby political power for the party doing the impeaching, than with defending our democracy.

The historical record does not reveal what exactly changed within the Federalist ranks that January.  Most speculate that the dynamics of universal impeachment simply changed as Adams popularity waned. On Wednesday, January 10, a motion came up for a vote which would have declared Blount a civil officer.  This motion was defeated, with two Federalists defecting to the Republican side.  On Friday, a motion was introduced (we do not know by whom) stating that Blount’s arguments in trial were sufficient to demonstrate that the Senate lacked standing in his case.  This motion passed 14-11; the same voting pattern as Wednesday’s vote.  On Monday, January 14th, the Senate officially dismissed the case.   Thus ending, with a whimper, America’s first impeachment.  It did not end in the way that it ended because the actors involved at the time believed that this outcome was the most constitutional.  It ended as it did because they thought this outcome favored their political futures more than the alternative.

Impeachment is not a constitutional tool that has been frequently used in our nation’s history.  After the Blount affair clearly limited its application to federal officers (not legislators), we have really only seen a few uses of it.  About sixty federal judges have been impeached.  In most cases, these are examples of clear-cut corruption, involving clear violations of law, and the judges were indeed removed from office.  There isn’t much to say about most of these cases; this is what impeachment is for, and these are therefore somewhat boring cases.

In a handful of these judicial impeachment cases, such as Samuel Chase’s, impeachment appears to be a political weapon.  Chase was a Federalist judge impeached by Jefferson’s Republicans following the controversial Federalist power-grab of the Marbury ruling.  Chase’s impeachment is generally regarded as a partisan attempt to remove Federalist judges from the bench by the Republicans.  Chase was an aggressive Federalist, but the charges against him were essentially that he was a clearly partisan judge.  As in Blount’s case, his articles of impeachment did not constitute any high crimes or high misdemeanor.  It exemplifies nicely the end result of a Federalist power grab by attempting to construct a universal impeachment theory: the Republicans employed that theory a few years later to remove a prominent Federalist.  Commentators today who warn that Democrats will someday regret their aggressive impeachment stance against Trump may have this historical evidence in mind.

We, of course, also have a few presidential impeachments.  Each of these are quite provocative, and best understood as political persecutions.  And what better tool for this job than impeachment?  The Blount impeachment essentially set the precedents that an impeachment inquiry provides the House with nearly unfettered investigation powers into the subject of impeachment, and that less than criminal action may indeed be the subject of impeachment.

Andrew Johnson was impeached by Radical Republicans because he did not share their draconian reconstruction views.  He had wished to dismiss the Radical War Secretary Edwin Stanton, and to block this, the Radical Congress had passed a law prohibiting Johnson from removing Stanton.  But as we all know, cabinet secretaries, both by norm and by the constitution, serve at the pleasure of the President.  The Senate must confirm their appointment, but the Congress plays no role in their dismissal.  Johnson ignored this facially unconstitutional law and was impeached for it.  He was narrowly exonerated in the Senate, by a single vote.  Yet the consequences of that nonsense are clear:  Johnson did not seek reelection (later that same year), and the Radical Republicans who did not vote for his conviction in the Senate never served in office again.  One might speculate that it is this impeachment that today’s democrats are hoping to emulate through Trump’s impeachment today.

When we look at Nixon’s and Clinton’s impeachments, we see the Blount precedent shining. Nixon would have been impeached for conspiring to commit a breaking and entering and to commit espionage on his political rival, had he not resigned.  The impeachment inquiry was central to uncovering the evidence against him personally.  That inquiry began in February 1974.  A supreme court ruling in July 1974 forced him to disclose some audio tapes – executive privilege (his version of our 4th amendment) did not apply in the context of impeachment.  These tapes revealed his guilt; articles were drawn up and he resigned before a vote on them could be held.  Impeachment was necessary to produce this outcome.  A simple criminal investigation into the breaking and entering could not have done that.

Clinton was impeached because he lied during a deposition pursuant to a special counsel investigation.  The office of the Special Council was ironically established by democrats after Nixon’s impeachment to further oversight into executive action.  In his case, the impeachment investigation only piled onto many other existing investigations.  None of it harmed Clinton, in part because of the trivial nature of the lie for which he was impeached (they were hunting witches then too); but all of it did, I think, greatly help the nation to see his wife as “Crooked Hillary” when she ran for the Presidency in 2016.

We see from these impeachments that if Trump were to be exposed for some great wrongdoing, it probably would have occurred already.  By the time articles are drafted and sent to the Senate, the investigation has run its course.  If Trump had the kind of dirt on his hands that Nixon did in 1974, we would already know it.  We have not seen a case to date where a president or their legacy has really survived impeachment. The weakness of this case perhaps presents Trump with a unique opportunity, the fact that it is happening at all may advantage the democrats.  Assuming he is exonerated in the Senate, it is fair to presume that the optics surrounding the propriety of impeachment will play some role in determining the outcome of our 2020 elections.

What strikes me as most interesting about the use of presidential impeachments (and also true of the Supreme Court Justice Chase’s impeachment) is not that there are partisan motivations behind them.  That much is pretty obvious.  What interests me are the times in which politicians choose to pick this particular tool from their boxes and use it.  Blount’s and Chase’s occurred during the Revolution of 1800, Johnson’s in the aftermath of the Civil War, and Nixon’s, Clinton’s, and Trump’s all occurred in the post-1960s political environment.   What these times share is that they are particularly divisive political times in our nation’s history.  Indeed, the famous scene where Representative Lyons spit in the face of and subsequently beat Representative Griswold with a firebrand, an incident you’d expect in the Russian Duma, not the United States Congress, actually took place during Blount’s impeachment proceedings.  Impeachment in these environments says more about the impeachors than the impeachee.  The concern here may have been best put by Lincoln, with his biblical reminder that “a house divided against itself cannot stand.”  I’ll make some remarks on the worst-case effects on democracy in a moment, but I want to point out that democracy is usually weakened in these kinds of atmospheres.  Blount’s era gave us subtle power-plays, like judicial review and subsequent rulings (Fletcher v Peck and Martin v Hunter’s Lessee) that limited local sovereignty.  We might expect for democracy to be weakened in other unpredictable ways in environments like ours, ways that have nothing to do with impeachment.

Because of the contentious and hostile atmosphere in which impeachment comes up in national politics, I think we Americans should be very wary of any version of a “universal impeachment theory.”  Whether through expanding the definition of “civil officer” to include Senators, or through expanding the definition of “high crime” to include no crime at all, the effect is the same.  We must understand that it is sometimes those who profess to be defending democracy by invoking the need to impeach who are actually leveling the greatest assaults upon it.  To so employ the impeachment power demeans it; and if this idea were to prevail in the long run, it would mean essentially that presidents and their executive officers would serve at the pleasure of the Congress.  The Founders actually debated this power at the Convention and rejected the idea of allowing the president or his officers to be impeached for “maladministration.”  Their reasoning was that such language would be tantamount to the executive branch serving at the pleasure of the legislative branch, and this would fundamentally destroy the separation of powers the United States Constitution set out to achieve.

The most basic distinction between democratic forms of government is between a presidential and a parliamentary system.  The difference is that in a presidential system the executive is elected and serves independent of the legislature.  In a parliamentary system the executive branch is headed by the most powerful member of Parliament.  In this way, the separation of powers touted by Federalist 51 is unique to presidential democracies.  There is no vote of confidence in a presidential system to remove a president at the pleasure of the legislature, though such a power is common to parliamentary systems.  Though both forms are democratic, the parliamentary form allows for more concentrated power and action within the majority party or coalition in the legislature, and it therefore exacerbates the threat of majoritarian tyranny.  This is acceptable in some parliamentary systems, like Britain’s, because of the relative degree of homogeneity in their culture.  But a basic understanding of Federalist 10 shows that this would not work in America.  We have a pluralist system, with many different conflicting cultures.  Majoritarian tyranny is therefore a real threat to American democracy, and so we may also say that to morph into a parliamentary form of democracy by providing an effective vote of confidence through an expansive impeachment power would also threaten democracy itself in America.

These are interesting times in American politics.  Despite all of the accusations against Trump of authoritarianism, reactions against him, guised as defenses of democracy, appear upon scrutiny to be more destructive of democracy and more conducive to authoritarianism than any policy or statement I have seen the President make.  Perhaps it is this kind of scenario that Plato might have had in mind when we wrote that a tyranny will come about as someone pretending to protect the people; or perhaps it is what Franklin might have warned about when he remarked that we have a republic if we can keep it.  In any event, the blessing of a republic is that by taking the time to think about these sorts of issues, we are helping ourselves to keep it.  Thank you for your attention this evening, I hope I’ve done this important topic justice, and I’d be happy to entertain any questions.

 

References

William Masterson, William Blount. Baton Rouge: Louisiana State University Press: 1954.

Buckner F. Melton, Jr. The First Impeachment: The Constitution’s Framers and the Case of Senator William Blount. Macon: Mercer University Press, 1998.

Cayton, Andrew. “‘When Shall We Cease to Have Judases?’ The Blount Conspiracy and the Limits of the ‘Extended Republic,’” in Ronald Hoffman and Peter Albert, Launching the “Extended Republic”: The Federalist Era.  Charlottesville: University of Virginia Press, 1996.

Chandler, David Leon. The Natural Superiority of Southern Politicians: A Revisionist History. Garden City: Doubleday, 1977.

McKeller, Kenneth. Tennessee Senators as Seen by One of Their Successors. Kingsport: Southern Publishers, 1942.

 

Notes

[1] The best source for biographical details of Blount’s life is William Masterson, William Blount. Baton Rouge: Louisiana State University Press, 1954.   Details of Blount’s biography referenced in this lecture have been sourced from Masterson.

[2] Buckner F. Melton, The First Impeachment: The Constitution’s Framers and the Case of Senator William Blount. Macon: Mercer University Press, 1998.

[3] Ibid, 78

[4] Ibid,  79.

[5] Chandler, David Leon. The Natural Superiority of Southern Politicians: A Revisionist History. Garden City: Doubleday, 1977; McKeller, Kenneth. Tennessee Senators as Seen by One of Their Successors. Kingsport: Southern Publishers, 1942; Cayton, Andrew. “ ‘When Shall We Cease to Have Judases?’ The Blount Conspiracy and the Limits of the ‘Extended Republic,’ “ in Ronald Hoffman and Peter Albert, Launching the “Extended Republic”: The Federalist Era.  Charlottesville: University of Virginia Press, 1996.

[6] The details concerning Blount’s plot in this article have been sourced from Melton, First Impeachment, 60-103.

[7] The details concerning the Impeachment of Blount have been sourced from Melton, First Impeachment, 104- 232.

[8] see Ibid, 1-3

[9] Ibid, 27-33

[10] An accusation was made in 1803 that Marshall was himself involved in the Blount plan.  He too was a land speculator from Western Kentucky.  This accusation never amounted to anything, but it would explain his voting behavior throughout this incident.

Scott RobinsonScott Robinson

Scott Robinson

Scott Robinson is an Associate Editor of VoegelinView, Assistant Professor of Government and Assistant Director of the Center for Law and Liberty at Houston Baptist University. He is currently working on a book on John Locke’s political rhetoric and its long-term impact on American political thought.

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