'High crimes' deemed acts against the state; Past invocations of phrase generally involved cases of corruption, treason


UNFORTUNATELY, the paucity of debate among the Framers over the nature of an impeachable offense leaves us with little guidance as to what might be considered grounds for impeachment. Looking elsewhere, we find two possible sources of guidance: England, and the colonial experience.

In February 1974, the House of Representatives' Committee on the Judiciary published a report by the Staff of Impeachment Inquiry titled "Constitutional Grounds for Presidential Impeachment." To better understand the Framers' intent, the Inquiry examined the history of impeachment in England, noting Alexander Hamilton's statement that "Great Britain had served as the model from which [impeachment] has been borrowed," and George Mason's reference, when he proposed the "other high Crimes and Misdemeanors" clause, to the impeachment of Warren Hastings in India.

(Hastings, the British administrator of Bengal, faced charges of "gross maladministration, corruption in office, and cruelty toward the people of India." The impeachment proceedings began in 1788 but did not end until 1795. Hastings was acquitted.)

At the time of the American Constitutional Convention, England had impeached persons under "high Crimes and Misdemeanors" for more than 400 years. In analyzing English impeachments, the 1974 Inquiry concluded that the phrase referred to acts that damaged the state:

* In 1386, in the first appearance of the phrase, Parliament impeached Michael de la Pole for "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," and for failing to pay a ransom with funds that Parliament allocated for such use.

* In 1450, William de la Pole was impeached for "high Crimes and Misdemeanors" for "advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of laws, procuring offices for persons who were unfit and unworthy of them, and squandering away the public treasure."

* In 1621, the king's Attorney General, Sir Henry Yelverton, was impeached for failing to prosecute suits he had commenced and for prematurely exercising authority.

* In 1640, Thomas Wentworth faced impeachment for "traitorously endeavor[ing] to subvert the Fundamental Laws of Government of the Realms ... and instead thereof, to introduce Arbitrary and Tyranical Government against Law."

* In 1668, Peter Pett, Commissioner of the Navy, was impeached for negligent preparation for a Dutch invasion and for negligently losing a ship.

* Chief Justice Scrogg faced impeachment in 1680 for "brow beating witnesses and commenting on their credibility, and with cursing and drinking to excess, thereby bringing 'the highest scandal on the public justice to the kingdom.'

* In 1701, Edward, Earl of Oxford, was impeached for taking advantage of his position as a member of the king's privy council to enrich himself and for procuring a naval commission for a person of "ill fame and reputation."

The 1974 Inquiry concluded that "other high Crimes and Misdemeanors" was a phrase peculiar to impeachments, separate from criminal law, and that impeachable offenses focused on conduct damaging to the state, including, but not limited to, "misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament's perogatives, corruption and betrayal of trust."

Some academic scholars have criticized the weight that the 1974 Inquiry attached to English impeachment practices. Michael Gerhardt, professor of law at the College of William and Mary, condemns such reliance because he believes that the delegates to the Constitutional Convention referred to colonial practice more than to England's, putting "a uniquely American stamp on the Constitution's impeachment clauses." To support that contention, Gerhardt calls attention to eight American innovations in impeachment practices.

One, the delegates sought to define impeachment offenses, while Parliament refused to "restrictively define" them.

Two, the Constitution limits impeachment to "civil Officers," while the English could impeach anyone except members of the royal family.

Three, two-thirds of the Senate must vote for conviction, while the House of Lords needed only a "bare majority."

Four, the delegates limited punishment for impeachment -- as distinct from punishment after any subsequent indictment and conviction -- to removal from office and disqualification from holding future offices.

Five, the monarch could pardon anyone after an impeachment conviction, while the Constitution forbids the chief executive such power.

Six, the monarch could not be impeached, but the president can.

Seven, impeachment proceedings in England were criminal, while the Constitution separates impeachment and criminal proceedings.

Eight, the English had alternative methods for removing judges, while the Constitution provides impeachment as the only means of removal.

Jason J. Vicente, a recent graduate of the Boston University School of Law, is a law clerk at the Massachusetts Superior Court in Boston. This article is adapted from a longer version that appeared in "Policy Analysis," a Cato Institute publication.

Pub Date: 01/24/99

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