Impeach Bush Coalition
A United Coalition of Bloggers for the Impeachment of George W. Bush

The Historic Meaning of "High Crimes and Misdemeanors"

Thursday, January 19, 2006

The following is an excerpt from the testimony given by Gary McDowell, Director of the Institute for U.S. Studies, University of London, as given to the United States House Judiciary Committee Subcommittee on the Constitution Hearing on the Background and History of Impeachment on November 9, 1998:
"In the mid-seventeenth century the notion of what constituted "high crimes and misdemeanors" was expanded to include such things as negligence and improprieties while in office. Chief Justice William Scroggs, for example, was impeached in 1680 for, among other things, browbeating witnesses, cursing and drinking to excess, and generally bringing "the highest scandal on the public justice of the kingdom."(59) By the eighteenth century it was clear that impeachable offences under the rubric "high crimes and misdemeanors" were not limited to indictable crimes in common law but reached more purely political offences. In 1701 the Earl of Oxford was charged with "violation of his duty and trust".(60) And Warren Hastings was charged with maladministration, corruption in office, and cruelty towards the people of India.(61) By the time of the Federal Convention, English law on impeachments was clear that such "misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust are the most proper, and have been the most usual grounds for this kind of prosecution."

59. Howell's State Trials, 35 vols. (London: R. Bagshaw, 1809-1826), VIII: 197, 200.

60. Simpson, Treatise on Federal Impeachments, p.144, n.6.

61. Ibid., pp. 168-70, n.6.

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The following is an excerpt from the testimony of Michael J. Gerhardt (College of William & Mary School of Law) as presented to the United States House Judiciary Committee Subcommittee on the Constitution (Hearing on the Background and History of Impeachment) held on November 9, 1998:
"The great majority of commentators who have closely examined the likely meaning of the constitutional phrase "other high crimes or misdemeanors," including, among others, Justice James Wilson,(9) Justice Joseph Story,(10) Chief Justice Charles Evans Hughes,(11) Justice Arthur Goldberg,(12) Charles Black,(13) Raoul Berger,(14) George Curtis,(15) Arthur Bestor,(16) Paul Fenton,(17) Peter Hoffer and N.E.H. Hull,(18) John Feerick,(19) and John Labovitz (a former staff member of the House Judiciary Committee investigating President Nixon)(20) have reached the same conclusion -- that the phrase "other high crimes and misdemeanors" consists of technical terms of art referring to "political crimes." They also have agreed that "political crimes" had a special meaning in the eighteenth century; "political crimes" were not necessarily indictable crimes. Instead, "political crimes" consisted of the kinds of abuses of power or injuries to the republic that could only be committed by public officials by virtue of the public offices they held. Although the concept of "political crimes" uses the term "crimes," it did not necessarily include all indictable offenses. Nor were all "political crimes" (or impeachable offenses) indictable crimes."
"9. James Wilson, Lectures on the Law, No. 11, Comparison of the Constitution of the United States with that of Great Britain, 1 The Works of James Wilson 408.

10. 2 Joseph Story, Commentaries on the Constitution of the United States, section 799, at 269-70 (rev. ed. 1991).

11. Charles E. Hughes, The Supreme Court of the United States 19 (1928).

12. Arthur J. Goldberg, The Question of Impeachment, 1 Hastings Const. L.Q. 5, 6 (1974).

13. Charles L. Black, Impeachment: A Handbook 35, 39-40 (1974).

14. Raoul Berger, Impeachment: The Constitutional Problems 58 (1974).

15. George T. Curtis, Constitutional History of the United States 260-61 (rev. ed. 1974).

16. See Arthur Bestor, Impeachment (reviewing Raoul Berger, Impeachment: The Constitutional Problems (1974)), 49 Wash. L. Rev. 255, 264-66 (1973).

17. Paul S. Fenton, The Scope of the Impeachment Power, 65 Nw. U. L. Rev. 719, 726 (1971).

18. Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 101 (1984).

19. John Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions, 39 Fordham L. Rev. 1, 47-58 (1970).

20. John Labovitv, Presidential Impeachment 26-89, 108-31 (1978)."

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