A history of impeachment, part I

Since it’s hard to get away from it in the news just now, many might be wondering about the origins of impeachment. It’s an interesting story, and it shows up something important about the distinctive constitutional development of the United States.

The origins of impeachment go back to the Middle Ages in England. But after a long period of disuse, it was revived in the early seventeenth century as a way for parliament to hold the servants of King James I accountable for corruption and other offences. First minor officials, then, as the opposition became bolder, more senior ones, were accused by the House of Commons and tried by the House of Lords.

Then, in 1628, when James’s son Charles I was king, the Commons turned to impeachment to try to remove his chief minister, the Duke of Buckingham – not because he had committed crimes, but because he was both incompetent and pursuing policies that they disagreed with.

The Lords, however, were unwilling to convict someone without proof of an actual crime. Buckingham was soon assassinated, but the problem returned in 1641, when the opposition was set on the removal of another chief minister, the Earl of Strafford. They impeached him for high treason, arguing that by aiding the king’s autocratic policies he had attempted to subvert the fundamental laws of the kingdom.

Again, securing a conviction in the Lords proved difficult. Parliament circumvented the problem by passing an act simply declaring Strafford to be guilty, and he was duly beheaded – but this was clearly a remedy appropriate for only the most extreme circumstances. It’s perhaps not surprising that he following year the country descended into civil war.

What parliament wanted was the ability to control the policy direction of the king’s government, and that meant the ability to change its personnel on policy rather than legal grounds. As the House of Commons explained in the Grand Remonstrance:

It may often fall out that the Commons may have just cause to take exceptions at some men for being councillors, and yet not charge those men with crimes, for there be grounds of diffidence which lie not in proof. There are others, which though they may be proved, yet are not legally criminal.

The king and his supporters, of course, were having none of this. And after an interval of civil war, republic and restoration, the problem recurred. In 1678 another chief minister, the Earl of Danby, was impeached for treason; he kept his head, but he spent five years in prison while parliament and Charles II wrangled over his fate.

The “Glorious Revolution” of 1688 improved parliament’s position, but it didn’t remove disagreement between monarch and parliament. And impeachment remained at best a clumsy mechanism for resolving it. Few impeachments ever even proceeded to trial; they were used, by both sides, to force political opponents from office or to discredit them so as to prevent their return.

Things started to change after Queen Anne came to the throne in 1702. Embroiled in a major war with France she was constantly in need of parliamentary support, and she was less able than her predecessors to withstand pressure from the (male, of course) party leaders. Gradually they secured the upper hand, forcing the queen to choose ministers from the party that could deliver a parliamentary majority, regardless of her personal preferences.

Party government made impeachment unnecessary. Ministers who had the support of a majority party were safe from it; those who did not could be removed by a simple vote in parliament (what we now call a vote of no confidence), because otherwise government could not be carried on. And once in office, a party had considerable power to consolidate a parliamentary majority by distribution of government jobs and other favors.

The last “political” impeachments came in 1715, when the Tory ministers who had lost office on Anne’s death the previous year were accused of treason. But after two years their Whig opponents, now securely in power and fighting among themselves, gave up the attempt to prove the charges. From then on, impeachment was confined to cases of actual non-political crimes; the last occasion was in 1806.

So by the time that the United States constitution was written in 1787, it was well-established British doctrine that impeachment was about serious offences by public officials, not just political disagreement. But since theory tends to lag behind practice, the underlying reasons were still poorly understood.

As a result, the Americans created a system based on British practice of a century or so earlier, which politicians of the time continued to pay lip service to. In addition, they adopted (article I, section 6.2) a measure that backbench politicians in Britain had always been keen on but had never been able to implement: the exclusion of office-holders from parliament.

The intent of that was to fight corruption – to stop the government from being able to build up a compliant majority by distributing jobs. But it also prevented parliamentary government of the sort that had developed (and was still developing) in Britain. Other ways would have to be found for resolving disagreements between the head of state and the legislature.

How that worked out, and what role impeachment played in it, will be the topic of part II.

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