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exercise of any delegated power"_"[r]esponsibility ... to censure and to punishment.” When censure is divided and responsibility uncertain, “the restraints of public opinion . . . lose their efficacy and "the opportunity of discovering with facility and clearness the misconduct of the persons [the public] trust, in order either to their removal from office, or to their actual punishment in cases which admit of it” is lost.28 A council, too, "would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself.” 27 It is, Hamilton concluded, "far more safe [that] there should be a single object for the jealousy and watchfulness of the people; . . . all multiplication of the Executive is rather dangerous than friendly to liberty." 28.
James Iredell, who played a leading role in the North Carolina ratifying convention and later became a justice of the Supreme Court, said that under the proposed Constitution the President “is of a very different nature from a monarch. He is to be . personally responsible for any abuse of the great trust reposed in him.” 29 In the same convention, William R. Davie, who had been a delegate in Philadelphia, explained that the "predominant principle” on which the Convention had provided for a single executive was “the more obvious responsibility of one person.” When there was but one man, said Davie, "the public were never at a loss” to fix the blame. 30
James Wilson, in the Pennsylvania convention, described the security furnished by a single executive as one of its “very important advantages":
The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. . . . Add to all this, that officer is placed high, and is possessed of power far from being contemptible, yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public char
acter by impeachment.31 As Wilson's statement suggests, the impeachability of the President was considered to be an important element of his responsibility.
28 The Federalist No. 70, at 459–61 (Modern Library ed.),(A. Hamilton) (hereinafter cited as Federalist). The "multiplication of the Executive," "Hamilton wrote, "adds to the difficulty of detection":
The circumstances which may have led to any national miscarriage of misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pra nounce to whose account the evil which may have been incurred is truly
chargeable. If there should be "collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties ?" Id. at 460. 27 Federalist No. 7o at 461. Hamilton stated : A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad, and are almost always a cloak to his faults.
Id. at 462-63. 28 Federalist No. 70 at 462.
»4 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 74 (reprint of 2d ed.) (hereinafter cited as Elliot.)
20 Elliot 104.
Impeachment had been included in the proposals before the Constitutional Convention from its beginning.32 A specific provision, making the executive removable from office on impeachment and conviction for "mal-practice or neglect of duty," was unanimously adopted even before it was decided that the executive would be a single person.
The only major debate on the desirability of impeachment occurred when it was moved that the provision for impeachment be dropped, a motion that was defeated by a vote of eight states to two.34
One of the arguments made against the impeachability of the executive was that he would periodically be tried for his behavior by his electors” and “ought to be subject to no intermediate trial, by impeachment. .” 35 Another was that the executive could "do no criminal act without Coadjutors (assistants] who may be punished.” 36 Without his subordinates, it was asserted, the executive "can do nothing of consequence," and they would "be amenable by impeachment to the public Justice.” 37
This latter argument was made by Gouveneur Morris of Pennsylvania, who abandoned it during the course of the debate, concluding that the executive should be impeachable.38 Before Morris changed his position, however, George Mason had replied to his earlier argument:
Shall any man be above justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the
principal as well as the Coadjutors.39 James Madison of Virginia argued in favor of impeachment stating that some provision was "indispensible” to defend the community against "the incapacity, negligence or perfidy of the chief Magistrate.” With a single executive, Madison argued, unlike a legislature whose collective nature provided security, “loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.” 40 Benjamin Franklin supported
89 The Virginia Plan, fifteen resolutions proposed by Edmund Randolph at the beginning of the Convention, served as the basis of its early deliberations. The ninth resolution gave the national judiciary jurisdiction over “impeachments of any National officers.' rand 22.
* 1 Farrand 88. Just before the adoption of this provision, a proposal to make the executive removable from office by the legislature upon request of a majority of the state legislatures had been overwhelmingly rejected. Id. 87. In the course of debate on this proposal, it was suggested that the legislature “should bave power to remove the Executive at pleasure"-a suggestion that was promptly criticized as making him “the mere creature of the Legislature" in violation of the fundamental principle of good Government,” and was never formally proposed to the Convention. Id. 85–86.
34 2 Farrand 64, 69.
36 2 Farrand 67 (Rufus King). Similarly. Gouverneur Morris contended that if an executive charged with a criminal act were reelected, "that will be sufficient proof of his innocence." Id. 64.
It was also argued in opposition to the impeachment provision, that the executive should not be impeachable "whilst in office-an apparent allusion to the constitutions of Virginia and Delaware, which then provided that the governor (unlike other officers) could be impeached only after he left office. Id. See 7 Thorpe. The Federal and State Oon. stitutions 3818 (1909) and i id. 566. In response to this position, it was argued that corrupt elections would result, as an incumbent sought to keep his office in order to maintain his immunity irom impeachment. He will "spare no efforts or no means whatever to get himself reelected," contended William R. Davie of North Carolina. 2 Farrand 64. George Mason asserted that the
danger of corrupting, electors "furnished a peculiar reason in favor of impeachments whilst in office": *Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his gult?" Id. 65.
36 Farrand 64. 37 2 Farrand 54.
38 "This Magistrate is not the King but the prime-Minister. The people are the King." 2 Farrand 69.
* 2 Farrand 65.
impeachment as "favorable to the executive"; where it was not available and the chief magistrate had "rendered himself obnoxious,” recourse was had to assassination. The Constitution should provide for the “regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.41 Edmund Randolph also defended “the propriety of impeachments":
The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided it will be
irregularly inflicted by tumults & insurrections. 2 The one argument made by the opponents of impeachment to which no direct response was made during the debate was that the executive would be too dependent on the legislature—that, as Charles Pinckney put it, the legislature would hold impeachment "as a rod over the Executive and by that means effectually destroy his independence. That issue, which involved the forum for trying impeachments and the mode of electing the executive, troubled the Convention until its closing days. Throughout its deliberations on ways to avoid executive subservience to the legislature, however, the Convention never reconsidered its early decision to make the executive removable through the process of impeachment.44
2. ADOPTION OF "HIGH CRIMES AND MISDEMEANORS” Briefly, and late in the Convention, the framers addressed the question how to describe the grounds for impeachment consistent with its intended function. They did so only after the mode of the President's election was settled in a way that did not make him (in the words of James Wilson) “the Minion of the Senate.” 45
The draft of the Constitution then before the Convention provided for his removal upon impeachment and conviction for "treason or bribery.” George Mason objected that these grounds were too limited:
Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offenses. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined-As bills of attainder which have saved the British Constitution are forbidden, it is the more
necessary to extend: the power of impeachments. 46 Mason then moved to add the word “maladministration” to the other two grounds. Maladministration was a term in use in six of the thirteen state constitutions as a ground for impeachment, including Mason's home state of Virginia.47
When James Madison objected that "so vague a term will be 41 2 Farrand 65. 42 2 Farrand 67. 43 2 Farrand 66. 41 See Appendix B for a chronological account of the Convention's deliberations on impeachment and related issues.
15 2 Farrand 523. 46 2 Farrand 550.
47 The grounds for impeachment of the Governor of Virginia were "mal-administration, corruption, or other means, by which the safety of the State may be endangered." 7 Thorpe, The Federal and State Constitution 3818 (1909).
equivalent to a tenure during pleasure of the Senate,” Mason withdrew "maladministration” and substituted "high crimes and misdemeanors agst. the State," which was adopted eight states to three, apparently with no further debate.48
That the framers were familiar with English parliamentary impeachment proceedings is clear. The impeachment of Warren Hastings, Governor-General of India, for high crimes and misdemeanors was voted just a few weeks before the beginning of the Constitutional Convention and George Mason referred to it in the debates.49 Hamilton, in the Federalist No. 65, referred to Great Britain as “the model from which [impeachment] has been borrowed.” Furthermore, the framers were well-educated men. Many were also lawyers. Of these, at least nine had studied law in England.50
The Convention had earlier demonstrated its familiarity with the term "high misdemeanor." 51 A draft constitution had used "high misdemeanor" in its provision for the extradition of offenders from one state to another.52 The Convention, apparently unanimously struck "high misdemeanor" and inserted “other crime," "in order to comprehend all proper cases: it being doubtful whether 'high misdemeanor' had not a technical meaning too limited.” 53
The "technical meaning referred to is the parliamentary use of the term "high misdeameanor.” Blackstone's Commentaries on the Laws of England—a work cited by delegates in other portions of the Convention's deliberations and which Madison later described (in the Virginia ratifying convention) as "a book which is in every man's hand” 54_included "high misdemeanors" as one term for positive offenses against the king and government.” The “first and principal” high misdemeanor, according to Blackstone, was "mal-administration of such high officers, as are in public trust and employment,” usually punished by the method of parliamentary impeachment." 55
"High Crimes and Misdemeanors" has traditionally been considered a "term of art,” like such other constitutional phrases as “levying war" and “due process. .” The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the farmers meant when they adopted them.56 Chief Justice Marshall wrote of another such phrase:
48 2 Farrand 550. Mason's wording was unanimously changed later the same day from "agst. the State" to "against the United States' in order to avoid ambiguity. This phrase was later dropped in the final draft of the Constitution prepared by the Committee on Style and Revision, which was charged with arranging and improving the language of the articles adopted by the Convention without altering its substance.
60 R. Berger, Impeachment: The Constitutional Problem: 87, 89 and accompanying notes (1973).
51 As a technical term, a "high" crime signified a crime against the system of government, not merely a serious crime. “This element of injury to the commonwealth- -that is, to the state itself and to its constitution—was historically the criterion for distinguishing a 'high' crime or misdemeanor from an ordinary one. The distinction goes back to the ancient law of treason, which differentiated 'high' from 'petit treason.” Bestor, Book Review, 49 Wash. L. Rev. 255, 263–64 (1973). See 4 W. Blackstone, Commentaries* 75.
62 The provision (article XV of Committee draft of the Committee on Detail) originally read: “Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled. be delivered up and removed to the State having jurisdiction of the offence.” 2 Farrand 187–88.
This clause was virtually identical with the extradition clause contained in article IV of the Articles of Confederation, which referred to "any Person guilty of, or charged with treason, felony, or other high misdemeanor in any state..
63 2 Farrand 443.
68 See Murray v. Hoboken Land Co., 52 U.S. (18 How.) 272 (1856); Davidson v. New Orleans, 96 U.S. 97 (1878); Smith v. Alabama, 124 U.S. 465 (1888).
It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.57
3. GROUNDS FOR IMPEACHMENT
Mason's suggestion to add “maladministration,” Madison's objection to it as “vague,” and Mason's substitution of "high crimes and misdemeanors agst the State” are the only comments in the Philadelphia convention specifically directed to the constitutional language describing the grounds for impeachment of the President. Mason's objection to limiting the grounds to treason and bribery was that treason would “not reach many great and dangerous offences” including “[a]ttempts to subvert the Constitution.” 58 His willingness to substitute “high Crimes and Misdemeanors,” especially given his apparent familiarity with the English use of the term as evidenced by his reference to the Warren Hastings impeachment, suggests that he believed "high Crimes and Misdemeanors” would cover the offenses about which he was concerned.
Contemporaneous comments on the scope of impeachment are persuasive as to the intention of the framers. In Federalist No. 65, Alexander Hamilton described the subject of impeachment as
those offences which proceed from the misconduct of public
to injuries done immediately to the society itself.59 Comments in the state ratifying conventions also suggest that those who adopted the Constitution viewed impeachment as a remedy for usurpation or abuse of power or serious breach of trust. Thus, Charles Cotesworth Pinckney of South Carolina stated that the impeachment power of the House reaches “those who behave amiss, or betray their public trust.” 60 Edmund Randolph said in the Virginia convention that the President may be impeached if he “misbehaves." 61 He later cited the example of the President's receipt of presents or emoluments from a foreign power in violation of the constitutional prohibition of Article I, section 9.62 In the same convention George Mason argued that the President might use his pardoning power to “pardon crimes which were advised by himself” or, before indictment or conviction, "to stop inquiry and prevent detection.” James Madison responded:
[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will United States v. Burr, 25 Fed. Cas. 1, 158 (No. 14, 693) (C.C.D. Va. 1807). 50. The Federalist No. 65 at 423-24 (Modern Library ed.) (A. Hamilton) (emphasis 12 original).
58 2 Farrand 550.
04 Elliot 281. 01 3 Elliot 201.
3 Elliot 486.