THE SCOPE OF "HIGH CRIMES
AND MISDEMEANORS"
Although English impeachments did not require an indictable crime they were nonetheless criminal proceedings because conviction was punishable by death, imprisonment, fine. The impeachable offense, however, was not a statutory or ordinary common law crime but a crime by "the course of Parliament," the lea Parliamentaria. The following charges drawn from impeachment cases disclose that impeachable misconduct was patently not "criminal" in the ordinary sense; they furnish a guide to the "course of Parliament"; and they give content to the phrase "high crimes and misdemeanors."
Chancellor Michael de la Pole, Earl of Suffolk (1386), high crimes and misdemeanors: applied appropriated funds to purposes other than those specified.
Duke of Suffolk (1450), treason and high crimes and misdemeanors: procured offices for persons who were unfit and unworthy of them; delayed justice by stopping writs of appeal (private criminal prosecutions) for the deaths of complainants' husbands.
Attorney General Yelverton (1621), high crimes and misdemeanors: committed persons for refusal to enter into bonds before he had authority so to require; commencing but not prosecuting suits.
Lord Treasurer Middlesex (1624), high crimes and misdemeanors: allowed the office of Ordnance to go unrepaired though money was appropriated for that purpose; allowed contracts for greatly needed powder to lapse for want of payment.
Duke of Buckingham (1626), misdemeanors, misprisions, offenses, and crimes: though young and inexperienced, procured offices for himself, thereby blocking the deserving; neglected as great admiral to safeguard the seas; procured titles of honor to his mother, brothers, kindred.
Justice Berkley (1637), treason and other great misdemeanors: reviled and threatened the grand jury for presenting the removal of the communion table in All Saints Church; on the trial of an indictment, he "did much discourage complainants' counsel" and "did overrule the cause for matter of law."
Sir Richard Gurney, lord mayor of London (1642), high crimes and misdemeanors: thwarted Parliament's order to store arms and ammunition in storehouses.
Viscount Mordaunt (1660), high crimes and misdemeanors: prevented Tayleur from standing for election as a burgess to serve in Parliament; caused his illegal arrest and detention.
Peter Pett, Commissioner of the Navy (1668), high crimes and misdemeanors: negligent preparation for the Dutch invasion; loss of a ship through neglect to bring it to mooring.
Chief Justice North (1680), high crimes and misdemeanors: assisted the Attorney General in drawing a proclamation to suppress petitions to the King to call a Parliament.
Chief Justice Scroggs (1680), treason and high misdemeanors: discharged grand jury before they made their presentment, thereby obstructing the presentment of many Papists; arbitrarily granted general warrants in blank.
Sir Edward Seymour (1680), high crimes and misdemeanors: applied appropriated funds to public purposes other than those specified.
Duke of Leeds (1695), high crimes and misdemeanors: as president of Privy Council accepted 5,500 guineas from the East India Company to procure a charter of confirmation.
In addition to the foregoing, there is the familiar summary by Wooddeson, paraphrased by Story in his discussion of impeachment:
lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws, and introduce arbitrary power. So where a lord chancellor has been thought to have put the great seal to an ignominious treaty; a lord admiral to have neglected the safeguard of the sea; an ambassador to have betrayed his trust; a privy councillor to have propounded or supported pernicious or dishonorable measures; or as confidential adviser to his sovereign to have obtained exorbitant grants or incompatible employments; these have all been deemed impeachable offenses.
Broadly speaking, these categories may be taken to outline the boundaries of the phrase "high crimes and misdemeanors" at the time the Constitution was adopted. The importance of these categories for American law derives from two facts: (1) when the Framers employed language having a common law meaning it was expected that those terms would be given their common law content; (2) they considered that the phrase had a "limited," "technical meaning."
Today impeachment and severe punishment for giving "bad advice" seems extravagant. It derived in part from the postulated inviolability of the King, which compelled attribution of his misdeeds to his ministers. In course of time it became a weapon in the struggle to make ministers accountable to the Parliament rather than the King, to punish them for espousing policies disliked by the Parliament. And it was watered by a deep distaste for "favorites," understandable enough when one views the luckless adventures upon which Buckingham, for example, had embarked the nation.
When Oxford, Bolingbroke, and Strafford were impeached (1715) for giving "bad advice" to the King, the Commons "really sought to condemn policies which they believed pernicious to the realm," the negotiation of a separate "treacherous peace," the Treaty of Utrecht. The nation, said Trevelyan, "little liked the secret negotiations with France behind the back of the allies . . . the disgrace of Marlborough, and the withdrawal of the British armies from the field in the face of the enemy."
Not all of the cited impeachments eventuated in verdicts of guilty by the House of Lords. Some did result in convictions; in some cases the accused were saved by the intervention of the King, who prorogued or dissolved Parliament. The odious Scroggs was thus rescued by the abrupt dissolution of Parliament, as were Mordaunt, Seymour, and Buckingham. Is the impeach merit of Buckingham robbed of precedential value because it was thwarted by a foolishly obstinate King who was beating his own path to the scaffold? On a number of occasions the Commons stayed its hand, as when Chief Justice Kelynge groveled in abject apology before its bar; or when it referred the trial of the Earl of Orrery to the criminal courts, evidence that it did not automatically grind out impeachments. If the House of Lords did not always see eye to eye with the Commons, it was not so much because the Lords were worthier sentinels of the law as because of factional differences that arose from time to time. In a moment untroubled by political agitation, the Lords noted that impeachments by the Commons "are the groans of the people . . . and carry with them a greater supposition of guilt than any other accusation." For the most part the Lords parted company with the Commons in cases that proceeded "for blood," "high treason"; such acquittals do not cast doubt on the charges of "high crimes and misdemeanor" here collected.