SO HELP YOU GOD
Senate 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?”
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? 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.
What we have here, with “so help you God,” is properly called an oath and not an affirmation, because a deity is invoked, in an imprecatory fashion, to bring down evil on the head of whosoever breaks the promise, so may God help him or her.
God helped so many perjurers over the ages that people lost their faith although they continued to profess it ritually to comfort society, but such is God’s mercy that liars and the unfaithful will not be punished for the original sin of being individuals with wills occasionally contrary to society until the Last Day, when the absolute truth will be told. In the interim, an affirmation given under penalty of perjury if broken would suffice to reduce false statements in this world if only perjury were easy to prove—judges polled opine that at least half of the sworn testimony given in court is false. None witnessed lighting striking a liar dead, though some perjurers were punished by the court.
Nowhere in the Constitution can the word ‘God’ be found, for several reasons. For example: atheists would not have By Godders (bigots) pervert government with their superstitions; the religious dared not curse the deity with a political constitution, preferring to keep heaven and earth separate; and we notice the primitive superstition, that simply pronouncing the name of the Supreme Being is a vanity punishable by death. Many were the ancients who adhered to the practical principle, expressed in one maxim or the other, that no oath whatsoever should be taken whether or not one was religious; since man’s word is not very good on the whole, even despite good intentions, and since circumstances under which it was given change, why take the risk? As for professed infidels, the Constitution provides ample room for atheism in allowing an affirmation rather than an oath, the error being that the word ‘swear’ is most often employed instead of ‘declare.” In any case, the statement that the nation was founded on religious rather than political grounds is only half true at most.
“Civilized” man is a liar; after meeting him, the Eskimos, for example, named him ‘Liar.’ His representatives, his lawyers and politicians, have made a sophisticated profession of mendacity, lying even the more for their own sakes to secure and maintain their sway over him; everywhere is he hemmed in by their laws, dominated by their rulings, no matter how perverse, professedly in the name of his own freedom, that they be considered heroes instead of scoundrels. And he has only himself to blame for the original corruption of his agents for their impurity is his as well, for he has the natural right to kill the lawyers, set the courthouses ablaze, and burn down the White House and Congress to boot.
Lawyers who would be statesmen dominate the highest offices in the land, and they are wont to absolve or exculpate themselves for perjury whenever they can get away with it. Only once has Congress imposed a worldly penalty for the false oath or affirmation of high officers in this context: the Civil War Ironclad Test Oath of 1862 called upon all officers except the President of the United States to swear or affirm that they had never previously engaged in criminal or disloyal conduct; those who swore falsely could be charged with perjury. Now the United States Code only provides that no one may hold office who advocates overthrowing or striking against the government or knowingly is a member of an organization that does, the penalty being no more than a year imprisonment; that law does not explicitly refer to violating the oath of office, which may be violated with impunity in a variety of ways besides blatantly seditious advocacy.
The Constitution requires a ritual oath or affirmation to be made by the elected president before taking office: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’ In 1789, the First Congress rendered the Presidential oath required by the Constitution into a simple fourteen-word assertion for all officers: "I do solemnly swear (or affirm) that I will support the Constitution of the United States."
Again, an affirmation does not require swearing nor should it be called an oath. An affirmation, strictly speaking, would not include the imprecation, “so help me God,” which was later added, and its addition converts the preceding into an oath whether the person privately considered his promise to be an affirmation or an oath. Neither should an affirmation include the word ‘swear,’ but should allow for ‘declare’ instead.
As for Congress, the Constitution provides a clause relevant to the silence the swearer or declarer may maintain on whether the she or he is swearing or affirming: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
The Constitution provides that, “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.” Well, they promised to do impartial justice according to the Constitutions and the laws. President Clinton apparently perjured himself, wherefore, according to the prevailing interpretation of the Constitution in respect to impeachment, which holds that presidents should only be removed from office for criminal behavior, period, i.e. for Treason, Bribery or other high Crimes and Misdemeanors, according to Article II of the Constitution.
As for the judges referenced in Article III, their tenure depends on Good Behavior, yet sophists have managed to confuse that express provision with the requirement of Article II in order to secure the independence of judicial officers. Their confusion ends with their self-interest, since they do not argue, for example, that a Secretary of State cannot be removed except by impeachment. Congress, dominated by the legal profession, has provided for withholding cases from judges and for reprimanding them for misbehavior; however, the judges responsible for handling complaints against judges, although they may recommend voluntary retirement, are not empowered to remove Article III judges from the bench even though they may be deciding cases contrary to law, or engaged in criminal behavior, or are stark raving mad or otherwise incompetent.
We are ethically obliged to disclose a contrary opinion in respect to impeachment for criminal behavior without debating the meaning of ‘misdemeanor’: that the Constitution was never intended to allow a president to be impeached and removed from office for violating any law that some politically motivated prosecutor might care to prosecute; at the very least, the violation should appertain to the administration of the office. Nevertheless, we have good reason for limiting the cause for impeachment to criminal behavior to prevent politically motivated interference with the independent administration of a high office. On the other hand, what if a president or a judge actually goes stark raving mad or otherwise becomes mentally incapacitated? Perhaps others will sit in for them while they are kept out of public view until they recover, if they ever do.
However that may be, we say that perjury regarding any matter whatsoever no matter how trivial while in high office indicates unsuitability to hold that office; for if a person will lie about something small, his incentive to lie about great things is all the larger, and misdemeanor committed in high office may have a far greater effect on the community than a misdemeanor committed in the lower depths of society. 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 Representatives, an impeachable offense that should result in removal from office if proved before the Senate. So the Senate should have convicted President William Clinton, a lawyer-statesman, and removed him from office, after which a criminal court could try him. But he was not convicted, much to the delight of many people despite their political affiliations, for everyone is some sort of sinner, and the sins in this case, including lying under oath, did not warrant removing someone from the highest office in the land given the average morality of its inhabitants.
On the other hand, others bemoaned the traditional perversity of this great nation of ours. Yet neither God nor Man was enraged enough by the acquittal to punish the perjury of the President and the Senators who exculpated themselves before they sat down to try the case. President Clinton was not struck by lightning nor was he arrested and convicted for perjury. And the lawyers and politicians who did partial justice under the law in violation of their oath were apparently forgiven as well; they went about business-as-usual. But beware: the unseemly affair could be just another episode accelerating a degenerative process that will end in Doom when we least expect it. Someday, as Jews traditionally believe, justice will be done; in that sense, the lord is Justice.
The naive amongst us expected Senators, most of them lawyers, to render impartial justice and render that justice according to some sort of uniform law during impeachment trials, even though they were not, strictly 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, most of whom had already made up their minds according to their political ideology and party affiliations, should be without formal guilt or blame even if their verdict was contrary to the evidence presented to them at trial, making of this trial in the highest court of the nation a mock trial. There was a day in the history of our English law when only jurors, not witnesses, were required to give an oath to find the truth in the case, and if the court were displeased with their finding, the jurors could be charged with perjury, and another, larger jury would be appointed to pass judgment on them. ‘Jury’ is derived from Latin jurare, ‘to swear.’
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, but the presiding judge would hardly say that the misconduct was exculpatory—indeed, 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 is 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.
Senator Tom Harkin, a statesman-lawyer, 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, he 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 the law except to the extent that he interpreted impeachment law as giving him and his colleagues an absolutely arbitrary power to decide the fate of impeached officers.
JUDGE CHASE’S OUTRAGEOUS RHETORIC EXCUSED
We have a precedent dissenting from that view in the impeachment trial of Revolutionary hero and Federalist Judge Samuel Chase, the Associate Justice of the Supreme Court who in 1804 was acquitted of bad behavior because the Senate identified political impeachment with criminal indictment and determined that his politically biased and injudicious behavior was not criminal hence not impeachable. We recall that Judge Chase had been much too keen on prosecuting the Alien and Sedition laws according to his arbitrary interpretation of English common law, and that he liked to spout off from the bench against Jefferson's 'Jacobin' faction despite the fact that he had been a rabble rouser himself during the Revolution. The last straw for the Republicans was when he denounced Congress for repealing the 1801 Judiciary Act and thus abolishing the lower, circuit courts created by legislation and packed with Federalists. He delivered an outrageously anti-democratic speech, deemed seditious by President Jefferson, before a Baltimore grand jury:
"Where law is uncertain, partial, or arbitrary … where justice is not impartially administered to all; where property is insecure, and the person is liable to insult and violence without redress by law, the people are not free, whatever may be their form of government. To this situation I greatly fear we are fast approaching…. The late alteration of the Federal Judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our State Constitution by the establishing of universal suffrage, and the further alteration that is contemplated in our State judiciary (if adopted) will in my judgment take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. . . . Our republican Constitution will sink into a mobocracy, the worst of all possible governments…. The modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us; and I fear that it will rapidly progress until peace and order, freedom and property, shall be destroyed."
Judge Chase’s inflammatory rhetoric was considered to be no more than what other dissenters had a constitutional right to freely say—there was no crime in that. However that may be, his acquittal on all charges was deemed an important precedent for judicial independence, upholding the principle that judges may be removed from office for crimes but not for their performance.
Massachusetts Senator John Quincy Adams, a statesman-lawyer, unlike most other Federalist senators, believed that as a senator he was as ethically responsible and as bound by customary legal procedure as a judge or juror. He certainly would not call an undecided case before him a "pile of dung" during a trial, as did Tom Harkin during the Clinton impeachment proceedings. What Adams did say in that case was very little: "I feel the obligation of absolute silence upon pen and tongue."
MAY HEAVEN FORBID DRINKING AND CUSSING
Adams had been involved in the previous impeachment trial of Federalist Judge John Pickering, convicted in March of 1804 of all charges against him. The Senators declared him to be “guilty as charged,” avoiding immediately thereafter inclusion of the Constitution’s phrase, “high crimes and misdemeanors,” because the bad behavior he was ostensibly convicted of was not criminal even if the judge’s Federalist bias and decisions were contrary to law, his attendance poor; even if he had been drunk on the job, and had uttered profanities from the bench. Republican Senator Joseph Anderson of Tennessee, a lawyer-statesman, had moved to strike out the words ‘‘of high crimes and misdemeanors,” so the galleries were cleared and the doors closed and his motion adopted 18 to 9.
Yes, Judge Pickering, known to be a quite religious man who believed in equal justice for rich and poor, had used profane language on the bench, he had cussed out the Republicans, and he had been drunk in court; however, up to the time of his mental collapse he had performed tolerably well, and his character, said his friends and acquaintances, was exemplary. Yes, his attendance had been somewhat irregular during his tenure on the federal court. He abhorred long journeys, having a marked fear of crossing rivers—he had been appointed a delegate 1787 Constitutional Convention in Philadelphia but refused to make the trip from New Hampshire, but he was instrumental in getting his legislature to adopt the new Constitution.
His “hypochondria,” or rather his withdrawals into private recovery attempts, became a serious problem: He isolated himself from time to time, due to illness, during his judicial tenure on the Massachusetts Superior Court; however, he had been reliable enough while on the United States District Court, to which he had been appointed in 1795 in the belief that the work there would not be so hard on his delicate temperament. But in 1801 his staff besought the Circuit Court of Appeals to provide a temporary substitute for him from the Circuit Court bench because he had suffered a mental collapse.
The Circuit Court was abolished by the incoming Republicans, leaving the substitute judge without warrant to sit in the District Court, wherefore Pickering was forced to return to the District Court bench before he had sufficiently recovered from his relapse. The last straw for the Republicans was when they were advised that he had dismissed Tax Collector Joseph Whipple’s case against William Ladd, an influential Federalist ship captain, pacifist and anti-slavery activist, who refused to pay what he considered to be an exorbitant tax on some cable he was offloading from his father’s ship, the Eliza, claiming that it was used and not new cable hence was subject to a lower rate of tax. The ship was duly impounded along with the offloaded cable by Judge Pickering’s order. He adjourned the court because he was drunk, but when he returned the next day as promised, he ordered the ship and cable returned to the rightful owner, namely, Eliphalet Ladd. Whipple complained that his inability to collect the tax was due to the judge’s Federalist bias.
Albert Gallatin, Secretary of the Treasury, agreed that the Judge Pickering was unfit to judge revenue issues, and contacted President Jefferson. In 1803, the House Republicans, responding to President Jefferson’s written suggestion, indicted Pickering and rushed to the Senate with three articles charging him with making decisions contrary to law in regards to the Ladd case, and a contumacious article charging him with drunkenness on the bench:
Article I stated that George Wentworth, Surveyor of the District of New Hampshire, seized in Plymouth the ship Eliza lately mastered by a William Ladd, together with her cargo, along with some cables that had been unladed contrary to law, and then Deputy Marshal Thomas Chadwick, on order of Judge Pickering, detained the ship for appraisal as authorized by law, but then the judge unlawfully ordered the ship to be delivered to one Eliphalet Ladd without evidence that he had paid the duty, to the manifest injury to the revenue of the United States.
Article II stated that U.S. Attorney John S. Sherburne pleaded with Judge Pickering to allow two witnesses to be sworn in so they could give factual testimony appertaining to the seizure of the ship Eilza, but he refused to do so, and instead ordered and decreed the ship restored to the claimant, Eliphalet Ladd.
Article III stated that, although admiralty and maritime law allows for appeal from the district court to the circuit court in cases where the matter in dispute exceeds the value of $300, Judge Pickering , “disregarding the authority of the laws, and wickedly meaning and intending to injury the revenue of the United States, and thereby to impair their public credit, did absolutely and positively refuse to allow the said appeal, as prayed for and claimed by the said John S. Sherburne, in behalf of the United States, contrary to his trust and duty as judge of the said district court, against the laws of the United States, to the great injury of the public revenue, and in violation of the solemn oath which he had taken, to administer equal and impartial justice.
Article IV we quote in full: “That whereas, for the due, faithful, and impartial administration of justice, temperance and sobriety are essential qualities in the character of a judge, yet the said John Pickering, being a man of loose morals and intemperate habits, on the eleventh and twelfth days of November, in the year one thousand eight hundred and two, being the judge of the district court, in and for the district of New Hampshire, did appear upon the bench of the said court, for the purpose of administrating justice, in a state of total intoxication, produced by the free and intemperate use of inebriating liquors, and did then and there frequently, in a most profane and indecent manner, invoke the name of the Supreme Being, to the evil example of all the good citizens of the of the United States, and was then are there guilty to other high misdemeanors, disgraceful to his own character as a judge, and degrading to the high honor and dignity of the United States.”
Wherefore the House of Representatives, reserving the right to proffer further articles and accusations, to reply to any answers that John Pickering might give in his defense, and to offer proof of the truth of the accusations against him, demanded of the Senate “that the said John Pickering may be put to answer the said high crimes and misdemeanors, and that such proceedings, examinations, trials, and judgments, may be therefore had and given, as may be agreeable to law and justice.”
We see no mention of insanity or mental derangement in the articles of impeachment, but that issue, which Congress wanted to avoid elaborating on because there was supposedly no Constitutional authority for removing judges from office for insanity, would come to the fore during the trial, which began a year later with Vice President Aaron Burr presiding.
Judge Pickering did not answer a summons to appear at the Senate impeachment trial because traveling to Washington would allegedly endanger his life in transit, but Vice President Burr presented a petition from Judge Pickering’s son Jacob praying for time to collect evidence that his father was not guilty by reason of insanity:
PETITION OF JACOB PICKERING
“Jacob S. Pickering, of Portsmouth, in the district of New Hampshire, and son of the said John Pickering, against whom articles of impeachment have been exhibited by the House of Representatives of the United States, conceives it his duty most respectfully to state to this high and honorable court the real situation of the said John Pickering, the facts and circumstances relative to said articles, wherein he stands charged of supposed high crimes and misdemeanors, and to request that this court would grant him such term of time as they shall think fit and reasonable to substantiate this statement.
“Your petitioner will be able to show that at the time when the crimes wherewith the said John stands charged are supposed to have been committed, the said John was, and for more than two years before, and ever since has been, and now is, insane, his mind wholly deranged, and altogether incapable of transacting any kind of business which requires the exercise of judgment, or the faculties of reason; and, therefore, that the said John Pickering is incapable of corruption of judgment, no subject of impeachment, or amenable to any tribunal for his actions. That this derangement has been constant and permanent, every day of his life completely demonstrating his insanity; every attempt for his relief, which has been prescribed by the faculty who have been consulted on his case, has proved unavailing, and his disorder has baffled all medical aid.
“Your petitioner is well aware that the most conclusive evidence of the aforegoing fact would result from an actual view of the respondent, which unfortunately, by reason of his great infirmities cannot now be, but at the hazard of his life—he is wholly unable at this inclement season to support the fatigue of so long a journey; yet if the respondent’s life be spared, and his health in any degree restored, it will be the endeavor of your petitioner that the said John shall make his personal appearance before this honorable court at any future day they shall think proper to assign.
“Your petitioner will be able to show, any pretense to the contrary notwithstanding, that the decisions made in the cause stated in the first article of impeachment, although not the result of reflection, or grounded on any deductions of reason, were, nevertheless, correct, perfectly consonant to the principles of justice, and conformable to the laws of the land; and the refusal of the said judge to grant the appeal claimed by the said John S. Sherburne, in behalf of the United States, was not against law, or to the injury of the public revenue, as the third article of the impeachment supposes; there being no law to warrant such appeal in such a case.
“While, with deep humility, your petitioner admits and greatly laments the indecorous and improper expressions used by the said judge on the seat of justice, as mentioned in the last article of impeachment, he will clearly evince the injustice of that part thereof which respects his moral character, and show abundantly, that from his youth upward, through a long, laborious and useful life, and until he was visited by the most awful dispensation of Providence, and the most deplorable of all human calamities, the loss of reason, he was unexceptionable in his morals, remarkable for the purity of his language, and the correctness of his habits, and the deviations in these particulars now complained of, are irresistible evidence of the deranged state of his mind.
“When this high and honorable court shall take into their consideration the situation of this respondent, oppressed with infirmity, incapable of making arrangements for his defense, the inclemency of the season, his great distance from the place of trial, and the shortness of notice—when your honors reflect on the high and atrocious crime with which he stands charged; in the decision of which is involved, not his life (indeed his remains of life would be but a slender sacrifice), but that which, to an honest mind, is more dear than life itself, his good name—when you advert to the consequences attached to a conviction; the indelible stigma which will befall a numerous family whose only patrimony was the unsullied reputation of their parent, which they have ever cherished, and of which they fondly, perhaps too fondly, hoped, no time, or circumstance, or adverse fortune could deprive them—when your honors shall think of these things, your petitioner has strong confidence that the wisdom and justice of this court will permit a respondent, whose integrity until now has been unquestioned; who has sustained offices high and honorable, through a long life, and the general tenor of whose character and conduct has hitherto furnished him with a coat of armor against the assaults of his enemies, but who is now incapable of defending himself, to be defended by his friends.
“Audi alteram partem is a maxim held in reverence wherever liberty yet remain. The Senate of America will be the last tribunal on earth that will cease to respect it; they will never condemn unheard; they will never refuse time for a full and impartial trial. That time, that impartial trial, your petitioner prays for; the charity of the law presumes the innocence of the respondent; and your petitioner, also, respectfully entreats that, in the meantime, and more especially as the evidence on which the impeachment is founded, was taken ex parte, no unfavorable impressions may be made on the minds of this honorable court, by any report or extra-judicial representations which may have been made on the subject before them. JACOB S. PICKERING”
Attorney Robert G. Harper begged to appear for Pickering with evidence to support the insanity plea:
“SIR: Mr. Jacob S. Pickering, the son of Judge Pickering, of New Hampshire, has forwarded to me, through one of his friends here, the enclosed petition, with a request that I will lay it before the court of impeachments, and will appear on his part, if permitted, and support the prayer of it. I am also furnished with several depositions, showing that Judge Pickering, from bodily infirmity and total derangement of mind, is wholly incapable of appearing before the court at this time, of making a defense, or of giving authority to any person to appear for him. The process of subpoena heretofore issued by the court not being compulsory, and Judge Pickering’s narrow circumstances not enabling his son to defray the expenses of the witnesses whose testimony it is important for him to produce, it was judged necessary to serve the subpoena. The object of the petition is to obtain a postponement of the trial, and either compulsory process, or an order to take depositions, which may be received in evidence. Be pleased, Sir, to lay the petition before the court, and to inform me whether I shall be received to appear on the part of the petitioner, Mr. Jacob S. Pickering, in its support. In that case I will attend in the capacity of agent or counsel for the petitioner, and submit to the court the reasons and proofs with which I am furnished in support of his application.
“With the highest respect, I have the honor to be, Sir, your most obedient very humble servant, ROBERT G. HARPER.”
Harper’s evidence would be admitted, but no lawyer appeared for the indicted judge; the proceedings were conducted ex parte. The testimony of witnesses, who were not cross-examined except by the President of the court since the accused had no counsel, tended to substantiate the charge that the judge was an alcoholic. So was Judge Pickering really mad, or was he an hydrophobic alcoholic who could be cured if ample time off were given for rehabilitation? Had a doctor personally examined the man? The senators from New Hampshire, Federalist Senator Simeon Olcott, a lawyer-statesman and judge, and Federalist Senator William Plumer, a lawyer-statesman and Baptist preacher, were respectively sworn and affirmed. Neither were medical authorities. They testified that in their opinion the troubles of Judge Pickering were not due to intemperance; Senator Plumer said he thought the intemperance was the result of insanity.
Since the honorable judge was insane, someone argued, it would be impossible to convict him. The Republicans, however, partial to their real motive for removing Federalist judges and smothering the independent judiciary in its crib, proceeded to try the defendant on the basis of the articles of impeachment.
On March 6, 1804, the Senate Journal relates that, as a preliminary inquiry, the Senators “will hear evidence and counsel respecting the insanity of John Pickering upon the suggestion contained in the petition of Jacob S. Pickering, and the letter of Robert G. Harper.” The managers from the House said they were only authorized to support the information in the articles of impeachment as presented; therefore they withdrew for the Senate to deliberate on the insanity issue.
A resolution was proposed by Senator Samuel White on March 10, 1804: “Resolved, That this court is not present prepared to give their final decision upon the articles of impeachment preferred by the House of Representatives against John Pickering, district judge for the district of New Hampshire, for high crimes and misdemeanors, the said John Pickering not having appeared or been heard by himself or counsel, and it being suggested to the court, by Jacob S. Pickering, son of said John Pickering, at the time of the conduct charged against him in said articles of impeachment as high crimes and misdemeanors, was, and yet is, insane, which suggestion has been supported by the testimony of two members of the court, and by the affidavits of sundry person, whose integrity and veracity is unimpeached. And it being further suggestion, in the said petition, that such future day as the court may appoint, the body of John Pickering shall be produced in court, and further testimony in his behalf, which would enable the court to judge for themselves as to the insanity of John Pickering, and to act more understandingly in the premises, but that the said John Pickering, owing to bodily infirmity, could not be brought to court at present at so great a distance, and at this inclement season of the year, without imminent hazard of his life.”
The resolution submitted failed. Senator Wilson Nicholas did not want the resolution to appear in the Journal. Although the ulterior motive of the Republicans was political, the judge would implicitly be deemed guilty by reason of insanity, in complete contradiction to legal principle not to mention the clear wording of the Constitutional clause. Republicans were contemplating the impeachment of Judge Chase at the time; they feared Chase would plead insanity when charged if Judge Pickering were acquitted by reason of insanity as the law required, so they were wont to convict Judge Pickering, anyway, without mentioning his alleged insanity in the formal indictment and judgment, despite the fact that a conviction was contrary to legal principle, as the lawyers among them knew very well.
The unconscionable tradition of partial justice under the law would thus be preserved for the sake of immediate convenience. They had nothing to fear from Man or God as a consequence. Indeed, God was not specifically mentioned in the oath or affirmation taken for this trial, nor was the Constitution referred to: “I solemnly swear, or affirm, (as the case may be) that, in all things appertaining to the trial of John Pickering, judge of the district court of the district of New Hampshire, I will do impartial justice, according to law.” But if the officer serving process on John Pickering violated his declaration or oath, he would be subject to punishment by the Senate and perhaps by God: “I, James Mathers, do solemnly swear that the return made and subscribed by me, upon the process issued on the 12th day of January last by the Senate of the United States against John Pickering, is truly made, and that I have performed said services as there described, so help me God.’’ And so would any witnesses who lied be subject to severe penalties, as would be the men who perjured themselves before Congress during the Iran-Contra Affair many years later. ‘‘I, A B, do swear (or affirm, as the case may be) that the evidence I shall give to this court in the case now depending shall be the truth, the whole truth, and nothing but the truth, so help me God.’’
Senator John Quincy Adams dissented against a kind of conduct we recently observed Senator Charles E. Schumer commit during the impeachment and trial of President Clinton: Senator Schumer was a U.S. representative before becoming a senator and participating in the impeachment trial of President Clinton—he voted for acquittal. Schumer had 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 Representative Schumer changed hats, became Senator Schumer, and sat as a judge/juror at the impeachment trial. Such conduct is reprehensible to say the least. We can be certain that defendants in criminal trials would like their defense lawyers to be their grand jurors and judges.
Republican Senator Samuel Smith of Maryland, a businessman and politician, who as a Member of the House had voted for impeachment, was challenged for casting it, but voted anyway. John Quincy Adams, offered the following resolution to no avail: “Resolved, That any Senator of the United States, having previously acted and voted as a Member of the House of Representatives, on a question of impeachment, is thereby disqualified to sit and act, in the same case, as a member of the Senate, sitting as a court of impeachment.” Hinds’ Precedents relates that “Samuel Smith, Israel Smith, and John Smith, of New York, who were during the last session Members of the House of Representatives, and voted here upon the question for impeaching Judge Pickering, sitting and voting as judges upon the trial. Mr. Smith, of New York, wished to be excused. Mr. S. Smith declared that he would not be influenced from his duty by any false delicacy; that he, for his part, felt no delicacy upon the subject, the vote he had given in the other House to impeach Judge Pickering would have no influence upon him in the court; his constituents had a right to his vote, and he would not by any act of his deprive or consent to deprive them of that right, but would claim and exercise it upon this as upon every other question that might be submitted to the Senate whilst he had the honor of a seat.”
"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," Senator Adams had argued. A rebuttal was offered and accepted, that the Senate is not a jury in impeachment cases.
We recall Alexander Hamilton’s argument, published March 7, 1778 (Federalist No. 65), to the same effect. An impeachment proceeding, he emphasized, deals with political offenses, and for that reason, where elected governments are concerned, it is difficult to convene a court appropriate to the purpose. The Supreme Court simply will not do, for its members are small in number, and it does not have “confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers….” Further, it is doubtful whether the members of the Supreme Court would possess enough fortitude to accomplish the task, or the credit and authority necessary to reconcile the people to a decision that clashes with an accusation brought by their representatives. That risk could be avoided by resorting to a more numerous court convened to deal with the political nature of impeachments:
“This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.”
We may well disagree with Hamilton, that the same branch of government bringing the indictment should try the case in an arbitrary manner, and that a distinction should be made between this avowedly political trial and criminal trials where the accused is prosecuted in the judiciary branch by the executive in the name of the state. All crimes are political offenses or crimes against the body politic; the definitions of crimes are relative to the culture of the society they occur in. Removal of an official from office and barring him from serving in that office again, together with the disgrace heaped upon the person accused and convicted, and then leaving him subject to prosecution yet again in the case a criminal statute has been violated, is definitely a punishment for crime. The persona accused would naturally expect to be tried by a jury of his peers sitting in the judicial branch, notwithstanding the Constitutional exception, which should be amended, that “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”
A MOCK-TRIAL OR FARCE
However that might be, the Pickering trial proceeded, whereupon Federalist Senator Samuel White of Delaware, a Methodist lawyer and prominent judge’s son, remembered for his opposition to slavery and the Louisiana Purchase, said, “The accused is not in default, but under the awful visitation of God: and, as he is deranged, our proceedings scarcely deserve the name of a mock-trial.”
Republican Senator Wilson Cary Nicholas of Virginia, a politician and banker who also served Virginia as governor—as a banker he had plunged Thomas Jefferson into personal debt—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 by force."
"I did say," said 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 Pickering, roundly disgraced during the traditional exercise of partial justice under the law, died shortly after his conviction and removal from the bench. The motive for his impeachment was clearly political rather than a concern over his mental competence.
At the outset of the impeachment trial of Judge 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 simply using impeachment as a tool to remove Federalist judges from the bench. Jefferson himself said impeachment was a “farce,” yet that did not deter him from using it to achieve his political ends. And in the final analysis, principles were compromised. Thus does the Pickering precedent of partial justice under the law without worldly or divine retribution for perjury cast historical light on the role of the powerful judges sitting in the highest court of the nation, the high court of impeachment. Of course Republicans could forever more exculpate themselves by claiming a nonpolitical motive for convicting John Pickering: the poor judge was allegedly insane.
Judges faced with controversies in many cases resort to partial justice under the law as it is then known, ignoring the law if not revising or rewriting it. The decisions of arbitrators may indeed seem arbitrary, and English law itself irrational as human motivation. The results may be inequitable or unjust, for justice is supposedly impartial, but decisions may be equitable and just when the law as written is defective because it does not suit the circumstance. Still the laws and their Constitution ground are deemed sacrosanct. The Pickering impeachment is not admitted as precedent or bragged about because it makes the farce underlying the impeachment process all too obvious and casts doubt on the wisdom of all the lower courts. Since the trial of Judge Chase thereafter, the consensus has been that only a purported violation of criminal law warrants an impeachment proceeding; that is, unless another contingency takes precedence….