Constitutional Grounds for Presidential Impeachment:
II. The Historical Origins of Impeachment The following is from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.
The Constitution provides that the President "...shall be removed from Office in Impeachment for, and Conviction of, Trason, Bribery, or other high Crimes and Misdemeanors." The framers could have written simply " or other crimes"--as indeed they did in the provision for extraditions of criminal offenders from one state to another. They did not do that. If they have meant simply to denote scriousness, they could have done so directly. They did not do that either. They instead adopted a unique phrase used for centuries in English parliamentary impeachments, for the meaning of which one must look to history.
Alexander Hamilton wrote, in No. 65 of The Federalist, that Great Britain had served as "the model from which [impeachment] has been borrowed." Accordingly, its history in England is useful to an understanding of the purpose and scope of the impeachment in the United States.
Parliament developed the impeachment as a means to excercise some measure of control over the King. An impeachment proceeding in England was a direct method of bringing into account the King's ministers and favorites--men who might have otherwise been out of reach. Impeachment, at least in its early history, has been called "the most powerful weapon in the political armoury, short of civil war." 1 It played a continuing role in the struggles between King and Parliament that resulted in the formation of the unwritten English constitution. In this respect impeachment was one of the tools used by English Parliament to create more responsive and responsible government and to redress imbalances when they occurred.2
The long struggle by Parliament to assert legal restraints over the unbridled will of the King ultimately reached a climax with the execution of Charles I in 1649 and the establishment of the Commonwealth under Oliver Cromwell. In the course of theat struggle, Pariament sought to exert restraints over the King by removing those of his ministers who most effectively advanced the King's absolutist purposes. Chief among them was Thomas Wentworth, Earl of Strafford. The House of Commons impeached him in 1640. As with earlier impeachments, the thrust of the charges was damage to the state.3 The first article of impeachment alleged 4
That he...hath traiterously endeavored to subvert the Fundamental Laws and Government of the Realms...and in stead thereof, to introduce Arbitrary and Tyrannical Government against Law...
The other articles against Strafford included charges ranging from the allegation that he had assumed regal power and excercised it tyrannically to the charge that he subverted the rights of Parliament.5
Characteristically, impeachment was used in individual cases to reach offenses, as perceived by Parliament, against the system of government. The charges, variously denominated "treason," "high treason," "misdemeanors," "malversations," and high Crimes and Misdemeanors," thus included allegations of misconduct as various as the kings (or their ministers) were ingenious in devising means of expanding royal power.
At the time of the Constitutional Convention the phrase "high Crimes and Misdemeanors" had been in use for over 400 years in impeachment proceedings in Parliament.6 It first appears in 1386 in the impeachment of the King's Chancellor. Michael de le Pole, Earl of Suffolk.7 Some of the charges may have involved common law offenses.8 Others plainly did not: de la Pole was charged with breaking a promise he made to the full Parliament to execute in connection with a parliamentary ordinance the advice of a committee of nine lords regarding the improvement of the estate of the King and the realm: "this was not done, and it was the fault of himself as he was then chief officer." He was also charged with failing to expend a sum that Parliament had directed be used to ransom the town of Ghent, because of which "the said town was lost."9
The phrase does not reappear in impeachment proceedings until 1450. In that year articles of impeachment against William de la Pole, Duke of Suffolk (a descendant of Michael), charged him with several acts of high treason, but also with "high Crimes and Misdemeanors,"10 including such various offenses as "advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of the laws," "procuring offices for person who were unfit , and unworthy of them" and "squandering away the public treasure."11
Impeachment was used frequently during the reigns of James I (1603-1625) and Charles I (1628-1649). During the period from 1620 to 1649 over 100 impeachments were voted by the House of Commons.12 Some of these impeachments charged high treason, as in the case of Strafford; others charged high crimes and misdemeanors. The latter included both statutory offenses, particularly with respect to the Crown monopolies. and non-statuatory offenses. For example, Sir Henry Yelverton, the King's Attorney General, was impeached in 1621 of high crimes and misdemeanors in that he failed to prosecute after commencing suits, and exercised authority before it was properly vested in him.13
There were no impeachments during the Commonwealth (1649-1660). Following the end of the Commonwealth and the Restoration of Charles II (1660-1685) a more powerful Parliament expanded somewhat the scope of "high Crimes and Misdemeanors" by the impeaching officers of the Crown for such things as negligent discharge of duties14 and improprieties in office.15
The phrase "high Crimes and Misdemeanors" appears in nearly all of the comparatively few impeachments that occured in the eighteenth century. Many of the charges involved abuse of official power or trust. For example, Edward, Earl of Oxford, was charged in 1701 with "violation of his duty and trust" in that, while a member of the King's privy council, he took advantage of the ready access he had to the King to secure various royal rents and revenues for his own use, thereby greatly diminishing the revenues of the crown and subjecting the people of England to "grievous taxes."16 Oxford was also charged with procuring a naval commission for William Kidd, "known to be a person of ill fame and reputation," and ordering him "to pursue the intended voyage, in which Kidd did commit diverse piracies..., being thereto encourage through hopes of being protected by the high station and interest of Oxford, in violation of the laws of nations, and the interruption and discouragement of the trade of England."17
The impeachment of Warren Hastings, first attempted in 1786 and concluded in 1795, 18 is particularly important because [it was] contemporaneous with the American Convention debates. Hastings was the first Governor-General of India. The articles indicate that Hastings was being charged with high crimes and misdemeanors in the form of gross maladministration, corruption in office, and cruelty toward the people of India.19
Two points emerge from the 400 years of English parliamentary experience with the phrase "high Crimes and Misdemeanors." First the particular allegations of misconduct alleged damage to the state in such forms as misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliamentıs prerogatives, corruption, and betrayal of trust.20 Second, the phrase "high Crimes and Misdemeanors" was confined to parliamentary impeachments; it had no roots in the ordinary criminal law,21 and the particular allegations of misconduct under that heading were not necessarily limited to common law or statutory derelictions or crimes.
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