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II. The Historical Origins of Impeachment

The Constitution provides that the President“... shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." The framers could have written simply "or other crimes”—as indeed they did in the provision for extradition of criminal offenders from one state to another. They did not do that. If they had meant simply to denote seriousness, they could have done so directly. They did not do that either. They adopted instead a unique phrase used for centuries in English parliamentary impeachments, for the meaning of which one must look to history.

The origins and use of impeachment in England, the circumstances under which impeachment became a part of the American constitutional system, and the American experience with impeachment are the best available sources for developing an understanding of the function of impeachment and the circumstances in which it may become appropriate in relation to the presidency.

A. THE ENGLISH PARLIAMENTARY PRACTICE 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 impeachment in the United States.

Parliament developed the impeachment process as a means to exercise some measure of control over the power of the King. An impeachment proceeding in England was a direct method of bringing to account the King's ministers and favorites men who might otherwise have been beyond 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 the English Parliament to create more responsive and responsible government and to redress imbalances when they occurred.?

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 that struggle, Parliament sought to exert restraints over the King by removing those of his ministers who most effectively advanced the King's absolutist pur

1 Plucknett, “Presidential Address" reproduced in 3 Transactions, Royal Historical Society, 5th Series, 145 (1952).

See generally C. Roberts, The Growth of Responsible Government in Stuart England (Cambridge 1968).

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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, 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 persons who were unfit, and unworthy of them” and “squandering away the public treas

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-statutory 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 impeaching officers of the Crown for such things as negligent discharge of duties 14 and improprieties in office.15

The phrase "high Crimes and Misdemeanors" appears in nearly all of the comparatively few impeachments that occurred 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 tħe 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 encouraged through hopes of being protected by the high station and interest of Oxford, in violation of the law of nations, and the interruption and discouragement of the trade of England."

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10 4 Hatsell 67 (Shannon, Ireland, 1971, reprint of London 1796, 1818). 114 Hatsell, supra n. 10, at 67, charges 2, 6 and 12.

13 The Long Parliament (1640-48) alone impeached 98 persone. Roberts, supra n. 2, at 133.

132 Howell State Trials 1135, 1136–37 (charges 1, 2 and 6). See generally Simpson, supra n. 6, at 91-127 ; Berger, supra n. 5. at 67–73.

* Peter Pett, Commissioner of the Navy, was charged in 1668 with negligent preparation for an invasion by the Dutch, and negligent loss of a ship. The latter charge was predicated on alleged willful neglect in failing to insure that the ship was brought to a mooring. 6 Howell State Trials 865, 866–67 (charges 1,5).

Chief Justice Scroggs was charged in 1680, among other things, with browbeating witnesses and commenting on their credibility, and with cursing, and drinking to exoess, thereby bringing “the highest scandal on the public justice of the kingdom." 8 Howeli State Trials 197, 200 (charges 7, 8).

16 Simpson, supra n. 6, at 144. 17 Simpson, supra n. 6, at 144.

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The impeachment of Warren Hastings, first attempted in 1786 and concluded in 1795,18 is particularly important because 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 Parliament's 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.

B. THE INTENTION OF THE FRAMERS

The debates on impeachment at the Constitutional Convention in Philadelphia focus principally on its applicability to the President. The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that “the maxim would never be adopted here that the chief Magistrate could do [no] wrong.” 22 Impeachment was to be one of the central elements of executive responsibility in the framework of the new government as they conceived it.

The constitutional grounds for impeachment of the President received little direct attention in the Convention; the phrase "other high Crimes and Misdemeanors” was ultimately added to "Treason” and “Bribery” with virtually no debate. There is evidence, however, that the framers were aware of the technical meaning the phrase had acquired in English impeachments.

Ratification by nine states was required to convert the Constitution from a proposed plan of government to the supreme law of the land. The public debates in the state ratifying conventions offer evidence of the contemporaneous understanding of the Constitution equally as compelling as the secret deliberations of the delegates in Philadelphia. That evidence, together with the evidence found in the debates during the First Congress on the power of the President to discharge an executive officer appointed with the advice and consent of the Senate,

18 See generally Marshall, The Impeachment of Warren Hastings (Oxford, 1965). 19 of the original resolutions proposed by Edmund Burke in 1786 and accepted by the House as articles of impeachment in 1787, both criminal and non-criminal offenses appear. The fourth article, for example, charging that Hastings bad confiscated the landed Income of the Begums of Oudh, was described by Pitt as that of all others that bore the strongest marks of criminality. Marshall, supra, n. 19, at 53.

The third article, on the other hand, known as the Benares charge, claimed that circumstances imposed upon the Governor-General a duty to conduct himself "on the most distinguished principles of good faith, equity, moderation and mildness." Instead, continued the charge, Hastings provoked a revolt'in Benares, resulting in "the arrest of the rajah, three revolutions in the country and great loss, whereby the said Hastings is guilty of a high crime and misdemeanor in the destruction of the country aforesaid." The Commons accepted this article, voting 119–79 that these were grounds for impeachment. SimpBOD, supra n. 6, at 168–170 ; Marshall, supra n. 19, at xv, 46. 20 see, e.D., Berger, supra n. 5, at 70–71.

Berger, supra n. 5, at 62. 2. The Records of the Federal Convention 66 (M. Farrand ed. 1911) (brackets in original). Hereafter cited as Farrand.

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shows that the framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments.

1. THE PURPOSE OF THE IMPEACHMENT REMEDY

Among the weaknesses of the Articles of Confederation apparent to the delegates to the Constitutional Convention was that they provided for a purely legislative form of government whose ministers were subservient to Congress. One of the first decisions of the delegates was that their new plan should include a separate executive, judiciary, and legislature.23 However, the framers sought to avoid the creation of a too-powerful executive. The Revolution had been fought against the tyranny of a king and his council, and the framers sought to build in safeguards against executive abuse and usurpation of power. They explicity rejected a plural executive, despite arguments that they were creating “the foetus of monarchy," 24 because a single person would give the most responsibility to the office.25 For the same reason, they rejected proposals for a council of advice or privy council to the executive.25a

The provision for a single executive was vigorously defended at the time of the state ratifying conventions as a protection against executive tyranny and wrongdoing. Alexander Hamilton made the most carefully reasoned argument in Federalist No. 70, one of the series of Federalist Papers prepared to advocate the ratification of the Constitution by the State of New York. Hamilton criticized both a plural executive and a council because they tend “to conceal faults and destroy responsibility.” A plural executive, he wrote, deprives the people of "the two greatest securities they can have for the faithful

28 1 Farrand 322. 24 1 Farrand 66.

* This argument was made by James Wilson of Pennsylvania, who also said that he preferred a single executive "as giving most energy dispatch and responsibility to the office." 1 Farrand 65.

252 A number of suggestions for a Council to the President were made during the Convention. Only one was yoted on, and it was rejected three states to eight. This proposal, by George Mason, called for a privy council of six members—two each from the eastern, middle, and southern states-selected by the Senate for staggered six-year terms, with two leaving office every two years. 2 Farrand 537, 542.

Gouverneur Morris and Charles Pinckney, both of whom spoke in opposition to other proposals for a council, suggested a privy council composed of the Chief Justice and the heads of executive departments. Their proposal, however, expressly provided that the President “shall in all cases exercise his own judgment, and either conform to (the) opinions [of the council] or not as he may think proper. Each officer who was a member of the council would "be responsible for bis opinion on the affairs relating to his particular Department” and liable to impeachment and removal from office "for neglect of duty malversation, or corruption." 2 Farrand 342–44.

Morris and Pinckney's proposal was referred to the Committee on Detail, which reported a provision for an expanded privy, council including the President of the Senate and the Speaker of the House. The council's duty was to advise the President "in matters respecting the execution of his Office, which he shall think proper to lay before them : But their advice shall not_conclude him, nor affect his responsibility for the measures which he shall adopt." 2 Farrand 367. This provision was never brought to a vote or debated in the Convention.

Opponents of a council argued that it would lessen executive responsibility. A council, said James Wilson, "oftener serves to cover than prevent malpractices." 1 Farrand 97. And the Committee of Eleven, consisting of one delegate from each state, to which proposals for a council to the President as well as other questions of policy were referred, decided against a council, on the ground that the President, by persuading his Council-to concur in his wrong measures, would acquire their protection for them." 2 Farrand 542.

Some delegates thought the responsibility of the President to be "chimerical" : Gunning Beford because "he could not be punished for mistakes." 2 Farrand 43; Elbridge Gerry, with respect to nomination for offices, because the President could “always plead' ignorauce." 2 Farrand 539. Benjamin Franklin favored a Council because it "would not only be a check on a bad President but a relief to a good one." He asserted that the delegates had "too much... fear [of] cabals in appointments by a number," and "too much confidence in those of single persons." Experience, he said, showed that "caprice, the intrigues of favorites & mistresses, &c." were "the means most prevalent in monarchies." 2 Farrand 542.

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