Tenth Amendment Center: History of Impeachment
“There is no evil under the sun but what is to be dreaded from men, who may do what they please with impunity: They seldom or never stop at certain degrees of mischief when they have power to go farther; but hurry on from wickedness to wickedness, as far and as fast as human malice can prompt human power.”
“It is nothing strange, that men, who think themselves unaccountable, should act unaccountably.”
— Thomas Gordon, Cato’s Letters No. 33 (1721)
Every day an article is published calling for the impeachment of President Donald Trump. Many desired the same fate for Trump’s White House predecessor, Barack Obama.
Apparently, we live in a day much like that in which the eminent jurist Samuel Pufendorf lived, a world so full of distrust and disorder in politics that he described all government officials as being “led away by a private Interest, which is opposite to that of the State; or else, being divided into Factions, they are more concern’d to ruin their Rivals, than to follow the Dictates of Reason.”
Of course, it is the likelihood of such abuse of power and position that impeachment was included in our governing document and in the constitution of Great Britain, from which the Framers took many of their constitutional cues. Accordingly, our review of the history of impeachment will begin with a quick trip across the pond, where the power of impeachment was established in order to protect the people from the dangers of despotism. Much of the form and function of the British version of impeachment will seem very familiar to American readers.
English Origins of Impeachment
During the days of the so-called Good Parliament of 1376, several important and influential men in the household of Edward III were tried and convicted by the two houses of Parliament working together. William Latimer, Richard Lyons, and many of their fellow advisors were subjected to the jurisdiction of Parliament and tried on charges of being corrupt courtiers. This is believed by most scholars and historians to have been the first impeachment carried out in Parliament.
After Latimer, Lyons, and company were charged, tried, and convicted by joint jurisdiction of the Houses of Commons and Lords, impeachment was used to punish perfidy of royal counselors during the reigns of Richard II, Henry IV, Henry V, and Henry VI. The tactic was slowly transforming into an effective restraint on usurpation. As Henry VI’s reign ended, however, many other methods of maintaining constitutional purity developed alongside impeachment. These other remedies — attainder, for example — were so often used, in fact, that impeachment fell out of regular use.
Impeachment as a tool to thwart would-be tyrants did not make a constitutional comeback until the reign of James I, over 140 years after its last use by Parliament.
Going forward from 1621, impeachment re-emerged as what one writer described as “a potent means of attacking its [Parliament’s] enemies.” The English Civil War was a watershed era in British history that fomented the fear of tyrants and royal overreach in the men who would become American colonists. The lessons learned from the execution of republican heroes Algernon Sidney and Henry Vane the Younger, for example, served as a warning to early Anglo-Americans about the chaos and cruelty that rained on the people during the reign of a monarch mad with power.
During the 18th century in England, republicans known as “Commonwealth men” printed page after page of polemical attacks on the perversions of royal prerogatives committed by kings and their courtiers. Two of the most influential of these enemies of tyranny were John Trenchard and Thomas Gordon. It has been said that without the words of these two now-forgotten men, our Founding Fathers would not have so quickly and thoroughly developed their own concept of constitutionally protected liberty. Working as partners, Trenchard and Gordon wrote the inimitable Cato’s Letters, published from 1720-1723. Each essay featured scathing and unflinching attacks on the crescendo of kingly corruption and aristocratic wickedness, as well as humble and heartfelt calls to return to the virtue that is the sine qua non of self-government.
Cato’s Letters Number 33 is an excellent example of the series and will serve as an able segue into the history of impeachment in America. Here are a few key selections from that denouncement of despotism that formed some of the earliest lessons taught to our Founding Fathers at their mothers’ knees:
“Considering what sort of a creature man is, it is scarce possible to put him under too many restraints, when he is possessed of great power: He may possibly use it well; but they act most prudently, who, supposing that he would use it ill, inclose him within certain bounds, and make it terrible to him to exceed them.”
“However the world may be deceived by the change of names into an abhorrence of the one, and an admiration of the other; it is all one to a nation, when they are to be slaughtered, whether they be slaughtered by the hangman or by dragoons, in prison or in the field; nor is ambition better than cruelty, when it begets mischief as great.”
“And thus men quitted part of their natural liberty to acquire civil security. But frequently the remedy proved worse than the disease; and human society had often no enemies so great as their own magistrates; who, where-ever they were trusted with too much power, always abused it, and grew mischievous to those who made them what they were.”
Impeachment in America Before 1787
Almost immediately, the Englishmen who colonized America established colonial governments that governed with very little oversight from the mother country. Legislatures were created whose lawmaking authority came from consent of the governed, rather than the permission of Parliament. And each of the colonies drafted a constitution.
These state constitutions were immeasurably influential on the men who, having lived under the state constitutions for decades, were tasked with writing a constitution for the union of sovereign states.
In their book Impeachment in America, 1635-1805, Peter Hoffer and Natalie Hull described the relationship between state constitutions and the constitution of 1787, including in the latter’s dependence on the former for the definition and deployment of the power of impeaching government officers. Hoffer and Hull wrote:
The transformation of impeachment from a check against monarchical misdeeds to an instrument of republican government was first explored in state governments before 1787…. Between 1776 and 1787, state politicians drafted and tested various provisions for impeachment. Delegates to the federal convention — Madison, Randolph, Paterson, Mason, and Hamilton — supported by the voices and votes of other knowledgeable state leaders, fashioned national impeachment provisions along lines laid down in the states’ constitutions.
In every state constitution in force at the time of the calling of the Convention of 1787, the lower branch of the legislature possessed the authority to impeach officers of the state government, though the trial of the impeached magistrate was handled differently in the several states.
In Virginia and Maryland, the state courts tried the impeached. In New York and South Carolina, the state senate and state judiciary joined together as a special court. In Pennsylvania, the General Assembly could impeach, and trials were conducted by the president of that body and the executive council. In the remaining eight states, the upper branch of the state legislature was the body responsible for trying the impeached state official.
EDITOR’S NOTE: This article was originally published at The New American Magazine and reposted here with permission from the author.
Joe Wolverton, II
August 26, 2018 at 08:45AM
