Abstract
When the constitutional convention considered the question of presidential impeachment, and as grounds therefore “high crimes and misdemeanors,” the delegates had a breadth of experience upon which to draw. Impeachment, as derived from English parliamentary practice, had been advocated by Josiah Quincy and John Adams even before independence as a means of holding the crown’s colonial government accountable for what they believed were abuses of official authority. The arguments of Quincy and Adams were grounded firmly in English parliamentary impeachment history as reported by Cobbett, Hatsell, Howell, Salmon, and Seiden. This practice established high crimes and misdemeanors as referring to the official misconduct of public officials in derogation either of their offices of trust or of an act of Parliament, or otherwise as being contrary to the interest and security of the nation.
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Notes
Proceedings of Commissioners to Remedy Defects of the Federal Government (September 11,1786), reprinted in Arthur Taylor Prescott, Drafting the Federal Constitution (Baton Rouge: Louisiana State UP, 1941) 3–11.
Although the day fixed for meeting had been Monday May 14, James Madison recorded in his notes that “a small number only had assembled. Seven states were not convened until Friday, May 25th.” James Madison, Notes of Debates in the Federal Convention of 1787 (New York: Norton, 1987) 23
Madison had been the first delegate from outside Pennsylvania to come to Philadelphia, arriving on May 5. George Mason, the last of the Virginia delegates arrived on May 17. The delegation immediately began meeting for several hours a day. Jack N Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996) 59.
Jack N Rakove, James Madison and the Creation of the American Republic, 2d ed. (London: Longman, 2002) 49.
Raoul Berger observed that “in the impeachment debate, the convention was almost exclusively concerned with the President.” Berger, Impeachment: The Constitutional Problems (Cambridge, MA: Harvard UP, 1973) 100.
This hostility toward the exercise of royal power in the colonies was translated into a conception of separation of powers that would later find form in the Constitution. Harvey C. Mansfield, “Separation of Powers in the American Constitution,” Bradford P. Wilson and Peter W. Schramm, eds., Separation of Powers and Good Government (Lanham: Rowman & Littlefield, 1994) 9.
Max Farrand noted that over the course of the convention the conception of the president had evolved from an office dependent on the Congress to “an independent figure of importance.” Thus, Farrand wrote, “It was a new officer whom they were creating and he loomed all the larger in their eyes that from the very limitations of their experience they were compelled to think of him in terms of monarchy, the only form of national executive power they knew.” Max Farrand, The Framing of the Constitution of the United States (New Haven: Yale UP, 1972) 161–162.
Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005) 131.
Robert A. Rutland, ed., The Papers of George Mason (Chapel Hill: North Carolina UP, 1970) vol. 3: 897.
Carol Berkin, A Brilliant Solution: Inventing the American Constitution (New York: Harcourt, 2002) 152.
Madison’s comments were recorded in an aide memoire of William Pierce of Georgia. Max Farrand, ed., The Records of the Federal Convention (New Haven: Yale UP, 1966) vol. 1: 74.
Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635–1805 (New Haven: Yale UP, 1984) 46–47.
Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge, MA: Harvard UP, 1974) 202
John Adams, Papers of John Adams, ed. Robert J. Taylor, vol. 1 (Cambridge, MA: Harvard UP, 1977) 252
Those opposing payment of colonial officials from the civic list viewed the practice as a threat to their autonomy over their local officials. John Quincy Adams, Life of John Adams printed in John Adams, The Works of John Adams, ed. Charles Francis Adams (Boston: Little, 1856) vol. 1:116–117.
Bailyn, The Ordeal of Thomas Hutchinson, 265–266. Adams made a similar observation in his autobiography. John Adams, Diary and Autobiography of John Adams, ed. L.H. Butterfield, vol. 3 (Cambridge, MA: Harvard UP, 1961) 298.
Ibid., 17. This description of Oliver’s high crimes and misdemeanors closely parallels the language used in the impeachments of, for example, Lord Kimbolton, Denzil Hollis, Sir Arthur Hazelrig, John Pym, John Hampden, and William Strode for high treason, where it was charged that “they have traitorously endeavoured to subvert the fundamental laws and government of this kingdom, to deprive the king of his regal power, and to place in the subjects an arbitrary and tyrannical power, over the lives, liberties and estates of his majesty’s liege subjects” and “they have traitorously endeavoured, by many foul aspersions upon his majesty and his government, to alienate the affections of his people, and to make his majesty odious to them.” Thomas Bayly Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783 (London: R. Bagshaw, 1809) vol. 4:83
William Cobbett, The Parliamentary History of England from the Earliest Period to the Year 1803 (London: T.C. Hansard, 1808) vol. 2: 1005
Hoffer and Hull, Impeachment in America, 10. For example, both Hale’s Pleas of the Crown and Blackstone’s Commentaries were in John Adam’s library. H. Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Indianapolis: Liberty Fund, 1998)
Sir Matthew Hale, Pleas of the Crown: A Methodical Summary, vol. 1 (London: Professional Books, 1972) 150.
Richard Wooddeson, A Systematical View of the Laws of England; As Treated of in a Course of Vinerian Lectures, Read at Oxford, During a Series of Years, Commencing in Michaelmas Term, 1777, vol. 2 (Dublin: E. Lynch, 1792) 601–602
Sir Matthew Hale, The History of the Common Law of England, ed. Charles M. Gray (Chicago: Chicago UP, 1971) 35.
W.S. Holdsworth, A History of English Law, vol. 1 (London: Methuen, 1903) 381.
Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol. 1 (London: Macmillan, 1883) 146.
Sir Edward Coke, The Golden Passage in the Great Charter of England Called Magna Carta (London: E. and C. Duly, 1775) 5–6.
Goldwin Smith, A Constitutional and Legal History of England (New York: Scribner, 1955) 146–148.
Stephen, A History of the Criminal Law of England, vol. 1 (New York: Scribner, 1955) 146–147.
Ibid., 147–148. T.F.T. Plucknett disputed Berkeley’s contentions. T.F.T. Plucknett, Studies in English History (London: Hambledon, 1983) 545–546.
Stephen, A History of the Criminal Law of England, vol. 1: 148. Hallam similarly observed that the charges against Latimer were “The earliest instance of parliamentary impeachment, or of a solemn accusation of any individual by the commons at the bar of the lords.” Henry Hallam, The Constitutional History of England: From the Accession of Henry VII to the Death of George II, 7th ed., vol. 1 (London: John Murray, 1854) 357.
John Hatsell, Precedents of Proceedings in the House of Commons, vol. 4 (London: Hansard and Sons, 1818) 56–57.
Thomas Salmon, Critical Review of the State Trials and Impeachments for High Treasons, vol. 1 (London: J. and J. Hazard, 1737) 1
M.V. Clarke, “The Origin of Impeachment,” Herbert Edward Salter, ed., Oxford Essays in Medieval History (Oxford: Clarendon Press, 1934
Stephen, A History of the Criminal Law of England, vol. 1: 158. Hatsell made this observation as well. Hatsell, Precedents of Proceedings in the House of Commons, vol. 4: 72. Hallam noted that impeachment “had fallen into dis use… partly from the preference the Tudor princes had given to bills of attainder or of pains and penalties, when they wished to turn the arm of parliament against an obnoxious subject.” Hallam, The Constitutional History of England, vol. 1: 357. Holds worth also noted that “the practice of impeachment fell into abeyance (like the other branches of the judicature of the Parliament) between 1459 and 1621. The place of impeachments was taken by acts of attainder.” Holdsworth, A History of English Law, vol. 1:190. George Burton Adams similarly in his Constitutional History of England observed that impeachment had “fallen into abeyance” because “during the whole or nearly two centuries parliament had not attempted seriously to oppose the sovereign.” George Burton Adams, Constitutional History of England (New York: Holt, 1926) 280–281.
Sir David Lindsay Keir, The Constitutional History of Modern Britain (London: Adam & Charles Black, 1966) 39.
David L. Smith, A History of the Modern British Isles 1603–1707 (Oxford: Blackwell, 1998) 59.
J.R. Tanner, English Constitutional Conflicts of the Seventeenth Century (Cambridge: Cambridge UP, 1966) 47–50.
Howell, State Trials, vol. 3: 1283; David A. Smith, Constitutional Royalism and the Search for Settlement 1640–1649 (Cambridge: Cambridge UP, 1994) 69–70.
Harding, A Social History of English Law, 260. Frederick G. Marcham noted that in the late seventeenth and early eighteenth centuries the view had prevailed in the Commons that ministers should be held accountable for their actions even if the King could not. Between 1690 and 1715, eleven ministers and ex-ministers were impeached but the Commons did not proceed to trial before the Lords because it was recognized that the Lords were not amenable to impeachments for purely political purposes. Frederick G. Marcham, A Constitutional History of Modern England 1485 to the Present (New York: Harper) 210–211. Clayton Roberts made a similar observation in his reply to Raoul Berger in “The Law of Impeachment in Stuart England,” Yale Law Review (1975) vol. 84:1419.
Howell, State Trials, vol. 8: 127–136; and Cobbett, Parliamentary History of England, vol. 4: 1067–1074; Hatsell, Precedents of Proceedings in the House of Commons, vol. 4: 125; Salmon, Critical Review of the State Trials and Impeachments for High Treason, 330. It appears that Danby had been acting on behalf of Charles II and that the payments were to obtain England’s neutrality. Lovell, English Constitutional and Legal History, 384. The Danby impeachment may also have been part of a larger contest between Parliament’s control of finance and the King’s prerogative in foreign affairs. Keir, The Constitutional History of Modern Britain, 255. In any event, the proceedings were brought to an end by the King’s prorogation of Parliament on December 30, 1678 and the dissolution of Parliament on January 24, 1679. Tanner, English Constitutional Conflicts of the Seventeenth Century, 240,241. In the face of renewed impeachment proceedings, Danby was granted a royal pardon. However, the pardon was held not to bar impeachment and this was confirmed by the Act of Settlement of 1701. Smith, A Constitutional and Legal History of England, 369; Albert Thomas Carter, Outlines of English Legal History (London: Butterworth, 1899) 84–85.
Howell, State Trials, vol. 8: 127–137; Cobbett, Parliamentary History of England, vol. 4:1222–1223. Parliament was dissolved before any action was taken by the Lords. Also in 1680, the lord chief justice, William Scroggs, was impeached of “High Treason and Other Great Crimes and Misdemeanors” for having obstructed the return of indictments against “many papists,” including the Duke of York and for “absenting himself from church.” Scroggs and other judges were also charged with “countenancing of popery, and discouragement of Protestants,” by enjoining publication of a periodical “wherein the superstitions and cheats of the Church of Rome were from time to time exposed.” The proceedings were abandoned in anticipation of the prorogation of Parliament. Howell, State Trials, vol. 8:163-174; Cobbett, Parliamentary History of England, vol. 4: 1274–1277. At this time, Commons asserted jurisdiction to impeach offenders for common law crimes. In 1688, Edward Fitzgerald was impeached for high treason for having advocated that Charles II be deposed. The Lords directed that the case be referred to the King’s Bench for trial. Although the Commons disagreed, Parliament was dissolved and Fitzgerald was tried by the King’s Bench and upon conviction was executed. W.W. Costin and J. Steven Watson, eds., The Law and Working of the Constitution: Documents 1660–1914 (London: Adam and Charles Black, 1925) 185–186.
Holdsworth, A History of English Law, vol. 1: 381–382. F.W. Maitland drew this contrast with the Tudor period as well. Maitland, The Constitutional History of England, 246. Radcliff and Cross noted, however, that associating the grounds for impeachment with criminal conduct limited its effectiveness on controlling ministerial behavior. Geoffrey R.Y. Radcliffe and Geoffrey N. Cross, The English Legal System, ed. G.J. Hand and DJ. Bently, 6th ed. (London: Butterworths, 1977) 224.
Bryce D. Lyon, A Constitutional and Legal History of Medieval England (New York: Norton, 1980) 558–559.
Robert, Earl Russell, An Essay on the History of English Government and Constitution: From the Reign of Henry VII to the Present Time (New York: Kraus Reprint, 1971) 117.
Raoul Berger arguedthat to understand impeachment under the Constitution it was necessary to begin with English precedent. Berger contended that the meaning of high crimes and misdemeanors lay not in statutory or common law crime but was a crime “by the course of Parliament.” Drawing on the impeachments of the seventeenth and eighteenth centuries, Berger concluded that in impeachment, Parliament had defined a category of political crimes that were distinct from known, ordinary criminal law offenses. These political offenses included: misapplication of funds; abuse of official power; neglect of duty; encroachment on or contempt of Parliament’s prerogatives; and corruption in public office. Berger, Impeachment: The Constitutional Problems, 54–71. Seiden and Holdsworth had the same view of Parliament’s authority to pronounce the law. John Seiden, Table Talk of John Seiden, ed. Samuel Harvey Reynolds (Oxford: Clarendon, 1892) 100
Alfred Lyall, Warren Hastings (Freeport: Books for Libraries Press, 1970, first published in 1889) 3.
Ibid., 29; and P.J. Marshall, ed., The Oxford History of the British Empire: The Eighteenth Century (Oxford: Oxford UP, 2001), 122
Conor Cruise O’Brien, “Warren Hastings in Burke’s Great Melody,” Geoffrey Carnal and Colin Nicholson, eds., The Impeachment of Warren Hastings (Edinburgh: Edinburgh UP, 1989) 61–62
Thomas Babington Macauley, Warren Hastings (New York: Chautauqua Press, 1886) 143.
Jeremy Bernstein, The Dawning of the Raj: The Life and Trials of Warren Hastings (Chicago: Ivan R. Dee, 2000) 209.
Edmund Burke, On Empire, Liberty, and Reform: Speeches and Letters of Edmund Burke, ed. David Bromwich (New Haven: Yale UP, 2000), 388.
The charges against Hastings are set forth in Edmund Burke, The Works of the Right Honorable Edmund Burke, 4th ed., vol. 3 (Boston: Little, 1871) 106.
In contrast, debate over the presidency figured prominently in the debates. Fear of an elected monarch was a significant part of the Anti-Federalist critique. Jackson Turner Main, The Anti-Federalists: Critics of the Constitution (Chapel Hill: North Carolina UP, 1961) 141
Saul Cornell, The Other Framers: Anti-Federalism and the Dissenting Tradition in America (Chapel Hill: North Carolina UP, 1961) 31.
Ralph Ketchum, The Anti-Federalist Papers and the Constitutional Debates (New York: New American Library, 2003) 213–216.
David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville, Virginia UP, 1994) 91–95
Independent Gazetteer (Philadelphia), September 28,1787, Bernard Bailyn, ed., The Debate on the Constitution, vol. 1 (New York: The Library of America, 1993) 26–27
George J. Graham, “Pennsylvania, Representation and the Meaning of Republicanism,” Michael Allen Gillespie and Michael L. Lienesch, eds., Ratifying the Constitution (Lawrence: Kansas UP, 1989) 52.
Alexander Hamilton (“Publius”), Federalist 65, Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. Benjamin F. Wright (New York: Barnes, 1996) 426
In his lectures on the law delivered many years later, Wilson wrote that “impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.” James Wilson, The Works of James Wilson, ed. Robert McCloskey (Cambridge, MA: Harvard UP, 1967) vol. 1: 246.
Ibid., 877. Iredell explained that while the consequences of conviction were removal from office and disqualification from holding “any place of honor, trust, or profit,” the person would nevertheless remain subject to criminal trial and to receive “such common-law punishment as belongs to a description of such offenses, if it be punishable by that law.” Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution (Chicago: Chicago UP, 1987)
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Brown, H.L. (2010). Original Meaning. In: High Crimes and Misdemeanors in Presidential Impeachment. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230102255_1
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