Is Impeachment Still Really a Thing? Part I
Posted on: May 12, 2021
Written by Cal Jillson, Author of American Government: Political Development and Institutional Change, 11th ed. and American Government: Constitutional Democracy Under Pressure, 2nd ed.
The English Roots of Impeachment
The early roots of impeachment run to the century after the Norman Conquest (1066 a.d.), but the first recognizable impeachment trial was that of Lord William Latimer in 1376. Latimer’s many crimes included corruption bordering on treason. When the aged King Edward III refused to restrain Latimer, the House of Commons impeached him and he was convicted in the House of Lords. He spent a year in jail and lost his high offices. Few subsequent impeachments proceeded so smoothly. A decade later, King Richard II’s Chancellor, Michael de le Pole, the Earl of Suffolk, was charged with “high crimes and misdemeanors,” the first use of this famous phrase in an impeachment context, and eventually with treason, whereupon he fled to France. So, by the late-14th century, the outlines of the impeachment process and charges were recognizable.
From its beginnings, impeachment was a legislative device for exercising some control over a King that often refused to recognize controls on his authority. Not surprisingly then, the 17th century, when monarchs fought the Parliament for supremacy and civil wars wracked the land, impeachment was a favorite parliamentary weapon. Impeachment by the Commons was usually the opening bell of a fight with the monarch that would be prosecuted with any weapons that might come to hand, until one side relented.
Many ministers of the Stuart kings, James I and Charles I, were impeached, including one of Charles’ most effective ministers, Thomas Wentworth, Earl of Strafford. The Commons impeached Wentworth in 1640 for advancing the King’s absolutist claims over the common law and the traditional practices of government. The fight ended when Charles reluctantly permitted Wentworth to be hung. These were bare knuckle political fights that helped keep England in turmoil until the Glorious Revolution of 1688, limited the monarchy, and put England on the road to parliamentary supremacy. Only a few impeachments were ultimately resolved by a trial in the House of Lords.
The most famous impeachment of the 18th century was that of Warren Hastings, Governor-General of India from 1774 through 1785. Hastings was retired and back in England when he was impeached by the House of Commons in 1786 for “high crimes and misdemeanors,” including maladministration, corruption, and cruelty while in India. England was riveted by the Hastings drama, as were our own Founding Fathers as they gathered in Philadelphia for the Constitutional Convention in 1787. The trial in the House of Lords did not begin until 1788 and did not conclude until 1795 when the Lords voted to acquit Hastings.
Most observers believed Hastings guilty, at least of corruption, but the Lords were reluctant to punish him for administrative behavior that was not atypical across the empire. A final impeachment trial in 1806, of Henry Dundas, Lord Melville, for misappropriating public money, also ended in acquittal, though again most observers assumed him guilty. Thereafter, impeachment simply fell out of use in England as the monarch and the Lords had effectively been checked. The Commons and the courts came to be thought competent to dealing with bad behavior.
The Constitutional Convention and Impeachment
Impeachment in England developed as a parliamentary tool for limiting powerful monarchs and declined as such monarchs were forced to acknowledge parliamentary supremacy. Convention delegates envisioned a more limited executive, but fear of monarchy, even of a single man wielding the powers of Chief Magistrate, haunted them. Most simply assumed that some device for checking executive malfeasance was necessary so impeachment was included in Madison’s Virginia Plan and then amended and ultimately adopted with surprisingly little debate.
Madison’s Virginia Plan assumed, but did not state directly, that impeachment charges would come from the House of Representatives and that the trial would be held before the national judiciary. In late-July, the Committee of Detail proposed that the House have the power to impeach and that trials be held before the Senate and the federal judiciary. On September 4, near the convention’s close, once the legislature had been removed from presidential selection by adoption of the Electoral College, the responsibility to try impeachments was devolved to the Senate alone.
The delegates were concerned about abuse of executive authority, certainly by the president, but by others as well. George Mason of Virginia identified the president as the “man who can commit the most extensive injustice” and William Davie of North Carolina noted that without “an essential security for . . . good behavior . . . [the President] will spare no efforts or means whatever to get himself re-elected.” Delegates mentioned treason, maladministration, neglect of duty, and corruption as offenses meriting impeachment. On August 6, “treason, bribery, or corruption” were adopted and on September 4 “corruption” was dropped without debate. Finally, on September 8, Mason proposed that “other high crimes and misdemeanors” be added to “treason and bribery” and it was done without debate.
Once the Committee on Style had completed its work, the Convention adopted the proposed Constitution, including three major provisions on impeachment. Article II, section 4, read: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Article I, section 2, says the House shall have “the sole power of Impeachment.” And Article I, section 3, reads: “The Senate shall have the sole power to try all impeachments. . . . When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office . . . under the United States.”
Impeachment in the Federalist Papers
Because the discussion of impeachment in the Constitutional Convention was so thin and scattered, we are fortunate that Alexander Hamilton made impeachment the focus of his attention in Federalist numbers 65 and 66. In Federalist 65 Hamilton provided what has become the definitive description of the nature and necessity of the impeachment power. Hamilton confirmed that “the model” for the impeachment provisions in the Constitution were English common law and parliamentary practice.
In two key passages, Hamilton warned that the subjects of impeachment, both the persons and the charges, were political and would inevitably divide society along preexisting political lines. Hamilton wrote that; “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself.” Secondly, Hamilton warned that impeachments would be tumultuous and divisive; “The prosecution . . . will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. . . and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.” And they have been.