Chapter Two -- Part B Legal History and the U.S. Constitution |
Background: Law, Government, and Impeachment in England
Our Constitution is a legal document, and many of the phrases in it are technical legal terms having a specific meaning in the context of both English law and English history. Beyond the specific terms, a number of legal and political concepts underlie the Constitution. This section briefly introduces and explains some of the important historical legal underpinnings and legal terms that are the foundation of our Constitution. The emphasis is on the ideas and terms with specific application to impeachment and removal from office. If the thesis of this book is fundamentally correct, others can and will develop the historical underpinnings and basis far beyond the scope of this brief review.
Lets start with something as basic as the idea of "making" a law. Today, we think of Congress as "making" laws for the United States, and of having wide authority, within Constitutional limits, to do whatever they choose to do by way of legislation. However, from medieval times up to the time of the Constitutional Convention, it appears the main line of thinking was that "law" was not something that was "made" by men at all. As Professor Mulford Sibley writes in Political Ideas and Ideologies: "...when we make this distinction between description and prescription, it is a rather artificial one from the viewpoint of the medieval thinker. For to him, all law tends to be discovered and the distinction between description and prescription fades: one discovers both the is and the ought by examining an objective universe of ‘fact’ and ‘value’. Even when the king makes a law, he is essentially declaring it and not imposing it as a sheer act of arbitrary will." [9] This idea of law as discovered, not "made" in any arbitrary sense, continued forward to the colonies, and to the time of the Constitutional Convention. This carries forward to the present. The evidence gathering period in legal proceedings is still called the "discovery" phase. [10]
In England, the criminal law has its roots in what is called the common law. Common law is essentially an accumulation of specific legal decisions, by specific judges, regarding specific cases, as to what the law was discovered to be in the circumstances of the case. It appears that early English juries had a role in deciding both the facts and the law of a case. By contrast, present day U.S. Juries decide issues of fact, and guilt or innocence, but are instructed by Judges on issues of law. Common law decisions came to be recorded in written and published forms, as reports of specific legal decisions. Over time, legal commentaries were published that both gave order to these common law decisions, and introduced legal principals and legal terms to describe, and treat, similar cases in similar ways. The study of law in England and America has often been referred to as "reading law", in other words, reading the commentaries and the reports of the case law.
By the end of the fourteenth century, the creative period for the English common law was over. "A large body of rules, many of which were highly technical and artificial, had come into existence, and the common law was increasingly rigid and inflexible. Inevitably, this resulted in many failures to do justice, for in their insistence on the letter of the law the courts often failed to do "equity between the parties." [11] In cases where people found the common law courts could not "do justice", they began to petition the king and council for justice. These petitions went to the Lord chancellor, and by the early fourteenth century "the chancery was recognized as a new and distinct court." [12] This court developed an independent body of legal theory and law, called equity. "Traditionally characterized by a discretionary treatment of the individual case in accordance with notions of natural justice, thus supplementing the common law, equity has been a creative, reforming force in Anglo-American law." [13] When cases were tried in chancery according to equity, "the chancellor himself found the facts in equity cases, sitting alone as a professional trier of the facts, without a jury." [14] Unlike common law cases, where a party to the case could not be a witness because of their having an interest in the case, the chancery court "interrogated the defendant in an equity case regarding every detail of the complaint." [15] The fact that common law cases were tried with a jury, and equity cases were tried without a jury is another important difference between these two kinds of cases. We will see some of the implications of differences between common law and equity cases when we consider the Constitution’s provisions regarding Judiciary criminal trials in Cases of Impeachment.
Sir William Blackstone’s Commentaries, published in England in four volumes from 1765 to 1769 [16] was both popular in England and of great influence on the legal thinking of the Founding Fathers. [17] Regarding Blackstone’s understanding of law: "He evidently regarded the law of gravitation, the law of nature and the law of England as different examples of the same principle - as rules of action or conduct imposed by a superior power on its subjects. He propounds in terms (SEE NEXT PARAGRAPH "NOTE") the doctrine that municipal or positive laws derive their validity from their conformity to the so-called law of nature or law of God." [18] This is a characteristic of many political thinkers of the time. As Professor Sibley notes: "Beginning with the nominalist and materialist views of the late Middle Ages, many exponents of science came gradually to conceive the universe as a gigantic machine. Political thinkers, using the analogy, tended to think of the state as mechanistic as well as contractual - a view to some extent exemplified in the Constitution of the United States." [19]
(NOTE: THE PRINTED BOOK HAS THE FOLLOWING FOOTNOTE: By the phrase "propounds in terms", this encyclopedia article’s author appears to be saying that Blackstone is attempting to embed his world view within the legal terms of the law itself. Because of the function of a book such as the Commentaries, to organize and categorize legal concepts and doctrines, there is almost certainly some truth to this.)
We should also note an important difference between the English Parliament and the U.S. Congress regarding legislation of criminal law by statute. The English Parliament functioned as a legislative body that could and did pass statutes, but both the judicial scope and the judicial function of Parliament were in many ways equally if not more important. Parliamentary authority to legislate on essentially any subject was effectively established in the reign of Henry VIII (1509-1547). However, it is important to realize that English criminal law developed and proceeded primarily as common law. We should also note that although common law applies for most U.S. States, common law does not apply in the United States at the Federal level. The fact that any Federal crime in the United States must be a violation of a written statutory law passed by Congress causes us to think of a national Legislature as both the source of national criminal law, and as involved in continually updating the statutory criminal law. Regarding a set of English statutes passed in the reign of Edward I (1272-1307) "...the statutes that were made in the first 18 years of the reign, though their bulk seems slight to us, were so fundamental in character that in subsequent ages they appeared as substructure of huge masses of superincumbent law." [20] Professor Raoul Berger in Impeachment: The Constitutional Problems, and referring to the fourteenth and fifteenth centuries, writes: "During this period, Plucknett tells us, statutes were viewed as ‘special law,’ as ‘something extraordinary, outside the usual law, and radically different from it...’" Berger refers to: "...the ‘ideal of the medieval statesman’ that there ‘should not be too many laws,...’". [21]
The judicial function of Parliament, and the idea that law is "discovered" not "made", are of fundamental importance in considering both English impeachments and other removal from office proceedings undertaken by Parliament, and in considering the thinking underlying impeachment and removal from office embedded in the Constitution. To see more of the full picture that the Constitutional Convention was probably looking at, we need to consider three further issues rooted in England. The first is the availability of judicial remedies by courts other than Parliament functioning in a judicial capacity. The second issue is the English Bill of Attainder, and the related Bill of Pains and Penalty, almost always ignored in impeachment discussions. The third is the meaning of the term "high crimes and misdemeanors."
First regarding other means of judicial removal of office holders, many (but not all) Englishmen were subject to trial by a court other than Parliament. We need only note here that there were provisions in English law for trying Englishmen in courts other than Parliament for crimes such as Treason. As we will see later, lower courts could also pass these cases up to Parliament. Parliament could either give instructions and pass the case back, or assume direct jurisdiction of the case.
Second, regarding the English Bill of Attainder and the related Bill of Pains and Penalty, these bills were both a legislative and a judicial act all rolled into one. Unlike a statute that applies to everyone, a Bill of Attainder or of Pains and Penalty applied only to one person, and was inapplicable to any other person. As with legislative bills, a Bill of Attainder or Pains and Penalties required approval by both Houses of Parliament, and required the King’s approval to be effective. As with a judicial conviction, a Bill of Attainder or of Pains and Penalties fully specified both the crime that an accused person was found to be guilty of, and the punishment for that crime. By definition the punishment of a Bill of Attainder was death. Lesser punishments could be specified by a Bill of Pains and Penalties. In these bills of Attainder and Pain and Penalty we also see the fullest expression of the idea of the function of Parliament to "discover" the law. Parliament both states what they have discovered the law to be in a specific instance, for a specific person, and what they have discovered the appropriate punishment to be. There was no need to reference precedent of any kind, and no appeal, although the King could pardon the subject. Colonial legislatures passed acts of attainder and of pains and penalties. [22] A Constitutional section specifying limits on powers of Congress states: "No Bill of Attainder or ex post facto Law shall be passed." (Article II. Section 9.) Although the Constitution only excludes the Bill of Attainder, and does not mention Bills of Pain and Penalty, a Constitutional exclusion of Bills of Pain and Penalty has apparently been an accepted interpretation. [23] We should assume that the Constitutional Convention knew of and considered the positive aspects of Bills of Attainder and Pains and Penalty: its availability to Parliament as one method of quickly and decisively removing English government officials when removal was deemed necessary, and if the King approved. The possible Constitutionality of a Bill of Pains and Penalty should be recognized, but the thesis of this book is not based on any assumption that an American Bill of Pains and Penalties is Constitutional.
Our third issue is the meaning of the phrase "high crimes and misdemeanors." Briefly stated, it appears to me that there are four key concepts behind this phrase. First, there is the idea that in most large political societies, of the size of a nation state such as England or America, there is a governing elite, and this elite is at least in part a kind of community unto itself. I’m not suggesting that this governing elite is not a part of the rest of our society, or cut off from the rest of our society, rather that it is a kind of "public service subculture" within our society. Second, within the public service subculture people tend to know each other, and are familiar with both written and/or unwritten standards of ethics and behavior as to what is acceptable, and what is not acceptable. Some of this is as basic as: it is wrong to take a bribe. My general point here is that in a public service subculture there is probably often a fairly well developed and fairly widely held sense of what is proper and improper, over a range of issues and topics. Third, because so many kinds of wrongdoing, improper schemes, and abuses of resources and power are possible in a public service subculture, it is difficult to draw up comprehensive written rules that anticipate and exclude all the possibilities. Fourth, because the members of the public service subculture understand in far greater detail than ordinary citizens the many possible kinds of wrongdoing, and the written and unwritten rules of what is and is not acceptable, in many ways only people in the public service subculture can intelligently and fairly serve as jurors and judges in a trial for misconduct of someone in a position with much power and responsibility. I am definitely not suggesting that such a trial should be secret, only that those who function as judges and jurors in such a trial should be a "jury of peers" in the sense that they thoroughly understand the public service subculture. In a Republic, the people have the ultimate say about what is proper and improper in the public service subculture. We can demand higher standards and vote people out when these standards aren’t met.
An amazingly full and complete example of the process of discovering wrongdoing in a public service subculture is found by Professor Berger, all the way back in fourteenth century England, rooted in the treason statute of King Edward III (1327-1377): Berger writes, and quotes from the statute:
"The preamble of the treason statute recites, ‘Whereas divers opinions have been before this time in what case treason shall be laid, and in what not; the King, at the request of the Lords and of the Commons, hath made a declaration in the manner as hereafter followeth.’
"There ensues an enumeration of specific treasonable acts, for example, levying war against, or encompassing the death of, the King, or adhering to his enemies; which is followed by a proviso, often referred to as the salvo,
"And because that many other like cases of treason may
happen in time to come, which a man cannot think nor
declare at this present time, it is accorded, that if any
other case, supposed treason, which is not above specified,
doth happen before any Justices, the Justices shall tarry
without any going to judgment of the treason, till the cause
be shewed and declared before the King and his
Parliament, whether it ought to be judged treason or
other felony." [24]
Parliament was saying to lower courts: if you have a tough case, bring it to us, we will discover whether it is or is not treason. Regarding the example of this in what I have called a public service subculture, Berger continues his narrative: "A more striking illustration is furnished by the Appeals (private criminal accusations) filed by certain Lords in the House of Lords against the Earl of Suffolk (Michael de la Pole) and others in 1386." [25] Based on an examination of the Appeals Articles Berger quotes from Howell’s State Trials (London, 1809-1826):
"‘Then the said Justices, Serjeants, and sages of both laws having taken these matters into their deliberation, answered the said lords of parliament, that they had seen and well understood the tenor of the said Appeal, and affirmed that it was not made nor brought according as the one law or other required. Upon which the said lords of parliament, having taken deliberation and advice, it was by the assent of the king with their common accord declared, That in so high a crime as is laid in this Appeal, and which touches the person of the king and the estates of this realm, and is perpetrated by persons who are peers thereof...the cause cannot be tried elsewhere but in parliament, nor by any other law or court, except that of parliament; and that it belongs to the lords of parliament, and to their free choice and liberty, by ancient custom of parliament, to be judges in such cases...'". [26]
In these passages we see essentially all the ideas underlying the phrase "high crimes and misdemeanors." Here is Berger’s commentary on this case, later in his book:"Because ‘crimes and misdemeanors’ are familiar terms of criminal law, it is tempting to conclude that ‘high crimes and misdemeanors’ are simply ordinary crimes and misdemeanors raised to the nth degree. Apparently this is what Christian had in mind when, in a note to Blackstone, he explained that when used in impeachments the words ‘high crimes... have no definite signification, but are used merely to give greater solemnity to the charge.’ In this he went astray. The phrase ‘high crimes and misdemeanors’ is first met not in an ordinary criminal proceeding but in an impeachment, that of the Earl of Suffolk in 1386. Impeachment itself was conceived because the objects of impeachment, for one reason or another, were beyond the reach of ordinary criminal redress. It was ‘essentially a political weapon,’ an outgrowth of the fact that from an early date the King and his Council were the ‘court for great men and great causes.’ Before the Commons assumed the role of an accuser late in the reign of Edward III (about 1376) of those charged with ‘treason or other high crimes and misdemeanors’ against the State, private persons had been wont to turn to the Crown to institute proceedings before the High Court of Parliament when they were aggrieved by officers of the Crown in ‘high trust and power, and against whom they had no other redress than by application to Parliament.’ Such officers were persons of the ‘highest rank and favor with the Crown’ or they were ‘in judicial or executive offices, whose elevated station placed them above the reach of complaint from private individuals.’ Before long the Commons became the prosecutor of the ‘highest and most powerful offenders against the State.’ And in 1386 the Peers categorically asserted exclusive jurisdiction to try a peer for a high crime against the realm in the landmark proceeding against the Earl of Suffolk, and this not by the common law but by the course of Parliament. The House of Lords was reminded of this history by Serjeant Pengelly during the impeachment of Lord Chancellor Macclesfield in 1725:
"‘your lordships are now exercising a power of judicature reserved in the original frame of the English constitution for the punishment of offenses of a public nature, which may affect the nation; as well in instance where the inferior courts have no power to punish the crimes committed by ordinary rules of justice;...’". [27]
Before continuing, some further comment is needed regarding both Professor Berger’s work, and the more general question: what did the Founding Fathers know about English history, law and precedents? The authors of Impeachment in America 1635-1805, raise some legitimate questions regarding the extent to which the Founding Fathers knew about the historical detail presented by Professor Berger in his book. [28] Regarding what has been presented here, my provisional conclusion is that except possibly for the details regarding the fourteenth century Earl of Suffolk proceedings presented above, as a group the Founding Fathers almost certainly knew everything presented here, and a lot more. This is a fair area for further research and debate. Regarding the general issue of knowledge of law in America in the 1700’s: "A professional bar — for which there was evidently no place in the preceding century — gradually developed. Many of its leaders studied in the Inns of Court (perhaps 50 before 1760; 115 between 1760 and 1783), and to a very remarkable degree it was composed, otherwise, of graduates of American colleges. When the American Revolution came it was entirely dominant, and this pre-eminence it retained for a century." [29]
One final point should be noted regarding English impeachments. In England, anyone could be impeached with the possible exception of the King. The Reverend Doctor Henry Sacheverell was impeached commencing in 1709 for "...seditious libels against the government." [30] A conviction was finally obtained on narrow grounds, but the punishment was limited to a public burning of the offending sermons and a ban on Dr. Sacheverell’s preaching for three years. In England, the public proclaiming of dangerous opinions, by anyone, was an impeachable offense.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.