ORIGINS OF IMPEACHMENT LAW

In the twentieth century, scholars argued about whether they, or the public, needed any knowledge of British law in the context of impeachment. One school of thought has suggested that the writers of the Constitution, and the Constitution-ratifying convention delegates, lacked specialized knowledge of British law and, therefore, modern students of impeachment need no such knowledge either.¹¹ These demonstrably incorrect assumptions, if believed, would rob us of understanding the intent and purpose of the Founding Fathers for use of the Impeachment Clause.

January 4, 2018, marks the 250th anniversary of the 1768 publication in the Boston Gazette of Josiah Quincy, Jr.’s, article calling attention to English impeachments “for high treason in subverting the fundamental laws and introducing arbitrary power.” The article ended with “a ringing call to follow these examples” of impeachment actions.¹²

Within two decades of the Boston Gazette’s publication, the United States of America had declared independence, fought and won a war against England, tried to exist under a “Confederation” of States, and then adopted a federal system to replace the states’ confederation. The new Constitution, revised and polished in Philadelphia at the Constitutional Convention, emerged with our current “Impeachment Clause.”

In deciding on language and voting for the Impeachment Clause, the Founding Fathers relied on their experiences and expertise in English law and its application in America. Many Founding Fathers studied law in England as well as in the colonies; the colonials kept their libraries well stocked with books on British impeachment.¹³ They drew on more than book learning; the Founding Fathers knew impeachment firsthand from debating the concept in their state legislatures and drafting their state constitutions, which included state impeachment clauses. Colonial writers and practicing lawyers cited British impeachment trials.¹⁴ Thomas Jefferson and other colonial leaders read and relied in particular on British scholar Richard Wooddeson’s Lectures on the Laws of England, a published “series of highly regarded, well-attended, and widely publicized lectures on the law beginning in 1777.”¹⁵

Wooddeson’s theme: Impeachment solves abuses of power hurting the community, which may not be solved in ordinary courts. Explaining centuries of British law and history, Wooddeson provided examples of impeachable offenses against those who “may abuse their delegated powers to the extensive detriment of the community, and at the same time in a manner not properly cognizable before the ordinary tribunals.”¹⁶ Wooddeson’s examples included impeachment for those who subvert fundamental laws, introduce arbitrary power, and betray trust, and “propound or support pernicious and dishonorable measures…to obtain exorbitant grants or incompatible employments…”¹⁷

Although the English Parliament attempted to use impeachment to counter the absolute powers of the king or queen¹⁸ by targeting “fawning favorites” and making political statements against the monarchy’s complete authority,¹⁹ such efforts were hamstrung by the absolute ruler of Great Britain—who could dissolve Parliament on a whim.²⁰

The Founding Fathers used their knowledge of British impeachment law and their experiences under that ancient law to address many dangers they foresaw with their U.S. leaders, including the following high risks:

1. Presidential incapacity or negligence;

2. Presidential tyranny;

3. Presidential corruption;

4. Betrayal of trust by their president to a foreign power; and

5. An overbroad law of treason, which could be abused by the government to terrorize its citizens and officials by determining “treason” after the fact.

First, Founding Father and future president James Madison stated an “indispensable” need “for defending the community against the incapacity, negligence or perfidy [faithlessness²¹] of the Chief Magistrate” (a title later changed to “President”). Madison was crystal clear: negligence or loss of capacity must be subject to impeachment; he predicted that, with a single executive, loss of capacity or corruption was “within the compass of probable events; and either of them might be fatal to the Republic.”²²

Second, tyranny was a major concern for the colonists, who had included in the Declaration of Independence an impressive and lengthy list of acts of “absolute tyranny” by King George.²³ The Constitution writers had firsthand knowledge of the dangers of abuse of power by the king and the whims and edicts of his governors and minions.²⁴ The founders’ experiences and knowledge of English history raised the “specter of a president swollen with power and grown tyrannical; and fear of presidential abuses prevailed over frequent objections that impeachment threatened his independence.”²⁵ Madison and other Founding Fathers expressed concerns that the chief executive of the United States might be transformed into a monarch.²⁶

Third, a great concern expressed by the Founding Fathers was corruption, as James Madison expressed above as potentially fatal to the Republic. Either negligence or corruption can lead to a fourth category—betrayal of trust—also a great concern of the Founding Fathers, including Convention delegate Gouverneur Morris, the author of the Constitution’s Preamble.²⁷ Morris, initially skeptical of the need for impeachment, conceded he had changed his mind during constitutional debates. Morris bluntly addressed his concern that a president might betray the country by being bribed by a foreign power:

He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him.²⁸

To reinforce his point that even the most wealthy and powerful men could be bribed, Morris reminded his colleagues of a shocking discovery reported in the late seventeenth century: a secret deal concocted for the French king Louis XIV to pay large sums to the British king Charles II. In the 1670 Secret Treaty of Dover, the English king had agreed to assist with the destruction of the Dutch Republic, to someday convert to the Roman Catholic faith, and to cooperate in other concealed arrangements. Gouverneur Morris referred to the scandal as he addressed the vast wealth of one man who virtually held all the land in the kingdom—without limitation, in “fee simple”—greedily betraying his country’s trust:

One would think the King of England well secured against bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.²⁹

Finally, beyond incapacity or negligence, tyranny, corruption, and trust betrayal, the Founding Fathers understood the danger of abusive treason laws. England used changing, flexible concepts of treason to target and kill enemies of the king and his representatives. The broad English treason clause—the “salvo”—allowed a tribunal to determine in retrospect whether conduct was treasonable.³⁰ English law permitted officials to be impeached before the lords on serious, felony death-penalty charges for treason.³¹

Thus, in 1787, the Founding Fathers came together in Philadelphia at the Constitutional Convention understanding the dangers facing the new nation and prepared to address many concerns, including their future leaders’ incapacity or negligence, tyranny, betrayal of trust, and corruption, and great potential for abuse with any overbroad definition of treason. Their solutions and safeguards included granting sole impeachment power to Congress to “bridle” the president³² with their power of removal, and their ability “to tear down his arbitrary ministers and ‘favorites.’”³³

And, the Americans would directly combat tyrannical tendencies in powerful leaders who could simply dismiss a legislative body by excluding that British practice from the United States Constitution; the framers would give no power to the president to eradicate the body capable of impeaching him, and further, would refuse the president the power to pardon an impeachment.

The new Constitution would prohibit a variety of other potentially tyrannical activities, preventing the president from becoming a king: The president couldn’t accept a noble title without permission from Congress; Congress was given the power to override a presidential veto; and special laws targeting groups of people for punishment and laws criminalizing lawful behavior after-the-fact were banned.³⁴

Also, in order to avoid the abuses of the overbroad British definition of treason, U.S. constitutional “Treason” would emerge from the Constitutional Convention narrowly defined, with strict rules of evidence written into the Constitution and using phrases borrowed from part of the English law.³⁵ Constitutional treason would be defined only as levying war against the United States or giving aid and comfort to U.S. enemies.

The framers of the Constitution added a strict rule that no person could be convicted of treason without two witnesses testifying to the same overt act, or unless the accused person confessed in open court. Here again, the Founding Fathers used ancient British language, but dramatically changed the ancient British law of treason to provide safeguards for anyone accused of it.³⁶ In fact, the change was so great that, as the key thinkers entered the final September 8, 1787, committee meeting on the Impeachment Clause wording, they realized and then solved a basic, emergent problem: a mainstay of British impeachment—treason—was now so limited in application that it wouldn’t be a viable reason for removing badly performing U.S. officials.

THE BIRTH OF THE AMERICAN IMPEACHMENT CLAUSE: SEPTEMBER 8, 1787

Our Impeachment Clause—particularly the language “other high Crimes and Misdemeanors”—was born on September 8, 1787. A “Committee of Eleven” debated an earlier recommendation of a very narrow impeachment clause, with removal from office only for treason and bribery. The framers well knew the importance of every word of the clause as they debated; they recognized they were writing for posterity.³⁷

The stage was set to determine if a category should be added for wrongdoing other than treason and bribery. George Mason of Virginia, an important and consistent champion throughout the Convention of the need for impeachment, became a key speaker in this historic debate. Mason fought adamantly for impeachment. He sought earlier in the Convention to advocate for impeachment as a method to minimize the risk of electoral corruption; the fact that voters could make their own choice in reelection would not suffice. Mason had declared that “no point is of more importance” than the retaining of impeachment in the Constitution.³⁸

In the final debate of September 8, Mason referenced the British government’s ongoing impeachment trial of India Governor-General Hastings, whose alleged wrongdoings would never fit within the U.S. proposed categories of treason and bribery.³⁹ Using the Hastings case as an example,⁴⁰ Mason famously argued that limiting the Impeachment Clause to only bribery and treason “will not reach many great and dangerous offenses.” He then moved to add “maladministration,” to the impeachment language. James Madison commented on the overbreadth of the word, which would allow the Senate—at their pleasure—to remove an official for any act of maladministration: “So vague a term will be equivalent to a tenure during pleasure of the Senate.” Mason withdrew his overbroad term and substituted the phrase “other high crimes and misdemeanors,”⁴¹ the very impeachment language used in the Hastings trial. Thus was born the most fundamental phrase in American impeachment law. But it would not become the supreme law of the land unless and until state ratifying conventions decided to ratify the Constitution.

HISTORIC FIGURES IN THE RATIFICATION OF THE CONSTITUTION AND THE MEANING OF THE IMPEACHMENT CLAUSE

The framers of the Constitution set out to advocate and educate delegates at the state ratifying conventions amid controversy, insults, strong language, and minor mob action. For reasons unrelated to the Impeachment Clause, George Mason was not among the signers of or advocates for adoption of the Constitution,⁴² but we know that Mason—the man who gave us the term “high Crimes and Misdemeanors” for U.S. impeachment—knew what he was doing in defending against badly performing officials. He’d led efforts with his friend and neighbor George Washington in Fairfax County to finance, arm, and drill the militia as they prepared for war with Britain. He studied political theory and had given “great thought” to political reconstruction; he and the key Founding Fathers “knew exactly what they were doing.” Twenty-first-century historians consider Mason among the well-read Revolutionary-era thinkers studying the “inherently corrupt and conniving character of British government.”⁴³ Mason was the principal author of the Virginia Constitution, which provided for impeachment of the governor for endangering the safety of the state. Mason and Thomas Jefferson started the ball rolling for American independence in May 1774, drafting the resolution denouncing the British blockade of Boston as a “hostile invasion.”⁴⁴ It was Mason who proposed the Virginia Bill of Rights, the parent of all Bills of Rights, and “one of the greatest liberty documents of all time.”⁴⁵

Many of the other Founding Fathers, however, effectively explained and advocated for ratification of the new constitution and its system of government with separation of powers, and checks and balances, including detailed explanations of the purposes, meaning, and uses of the Impeachment Clause. If these advocates had failed, our nation would not exist as we know it.

Importantly for twenty-first-century Americans, the Founding Fathers—deliberately and articulately—preserved evidence of their intent as they explained the Impeachment Clause and other elements of our fundamental documents to their colleagues.

James Wilson of Pennsylvania, for example, provided us with an important record of the Founding Fathers’ intent regarding the use and purposes of impeachment, in his 1787 explanation to his state ratifying convention on Congress’s check on a president they may impeach for such harmful conduct as negligence or inattention, for his appointments, and for attempting to shift criminality to others. Wilson was an important force in obtaining Pennsylvania’s ratification of the Constitution.⁴⁶ He reassured the Pennsylvania state ratifying convention in 1787, for which he served as a delegate, of controls on “our President”:

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 his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes…far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment. (Emphasis in original.)⁴⁷

As one of six men who signed both the Declaration of Independence and the Constitution, the influential Wilson played a major role in the Constitutional Convention in several matters involving the chief executive. The well-respected Wilson—“the leading Lawyer of Philadelphia”—made the motion at the Constitutional Convention that executive power be vested in a single executive.⁴⁸ Wilson’s other proposals included direct election of the president.⁴⁹ James Wilson later served as a Supreme Court Justice and law professor.

Alexander Hamilton, the thirty-year-old New York delegate to the Constitutional Convention, provides us significant evidence on the Founding Fathers’ intent as to the purposes and uses of impeachment. Hamilton had published accounts of British abuses as a King’s College student in New York and wrote, post-Convention, of the British antecedents of U.S. impeachment⁵⁰ as coauthor (with James Madison and John Jay) of important essays we read today as The Federalist Papers. These explanatory essays helped to persuade state ratifying conventions to adopt the new Constitution.

Revolutionary War hero Hamilton, who impressed General Washington with his spectacular artillery work, served also as Washington’s aide-de-camp, lugging around a sack of books for study between his exploits in the war. An officer claimed of Hamilton that he thought as well as wrote for Washington. Hamilton later served President Washington as secretary of the treasury, “a cabinet secretary of tireless virtuosity who would function as his unofficial prime minister.”⁵¹ Washington regarded Hamilton as quick in perception, with intuitively great judgment and excelling in whatever he took on.⁵² Hamilton explained impeachment to his fellow Americans debating ratification of the Constitution in the classical sense of the word “political,” famously stating that impeachment offenses are “political, as they relate chiefly to ‘injuries done immediately to the society itself.’”⁵³

Hamilton was also remarkably prescient, understanding the important future role of the Senate in impeachment. He wrote passionately and at length in Federalist papers 65 and 66 on the reason for using the Senate—a most deliberative body, most dignified and independent, most likely “to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people [the House], his accusers…”—as the final check on impeachment, while the House would have independent responsibility for bringing charges. The Senate was a better choice to judge the matter, Hamilton wrote, emphasizing the advantages of a larger number of persons than a court or jury, finding strength in numbers and the fact that the accused could still be subject to a separate judicial process for criminal prosecution.⁵⁴

The Constitution became effective on June 21, 1788, when New Hampshire became the ninth of the twelve states ratifying. On March 4, 1789, the first Congress under the Constitution convened in New York City. James Madison—who continued to use the word “maladministration” in explaining and providing examples of impeachable conduct⁵⁵—was an active U.S. representative in that first Congress, introducing the proposed Bill of Rights in the House, on June 8, 1789. Through James Madison we have rich information on the intent of the Founding Fathers.⁵⁶

Madison had helped draft Virginia’s state constitution in 1776, represented his state in key Revolutionary-era delegations, and helped draft the “Virginia Plan,” which laid the groundwork for the Constitutional Convention, where he was a key advocate and valuable reporter. Madison’s moniker, “Father of the Constitution,” was hard-earned: He worked effectively at the Philadelphia Convention as an advocate for ratification, and with Hamilton and John Jay in writing The Federalist Papers. He continued his service as a member of the Virginia ratification convention.⁵⁷

As a member of Congress, Madison spoke passionately on the dangers to our liberties from officials violating the public trust once entrenched in office:

The danger to liberty, the danger of mal-administration, has not yet been found to lie so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust.⁵⁸

Congressman Madison spoke in congressional debate on creation of what would become our State Department and on presidential responsibility for his executive officers, arguing that the “wanton removal” of a meritorious officer would amount to impeachable maladministration.⁵⁹

The president’s authority to remove subordinates, Madison reasoned, made “[the president], in a peculiar manner, responsible for the conduct” of executive officers. It would, Madison said, “subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes and misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.”⁶⁰

We can take Madison’s concerns and words to the bank. Madison was an extraordinary man, even among his great peers. His fellow delegate William Pierce of Georgia explained “every Person seems to acknowledge his greatness…From a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed man of any point in debate. The affairs of the United States, he perhaps has the most correct knowledge of, of any man in the Union.”⁶¹

After serving in Congress, Madison served as secretary of state and then as the fourth president of the United States. The last survivor of the constitutional signers, Madison died at age eighty-five in 1836. In his old age, he had succeeded Thomas Jefferson as University of Virginia president and further served his state in developing a new Virginia constitution.⁶²