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Show The Origins and Scope of Presidential Impeachment Matthew R. Romney Peers to do justice. The Lords consented to the fourteen charges against Mortimer and ordered his execution for treason (Melton 1998, 1). But the 1376 impeachments were different. For the first time, although great pains were taken at various points along the way to get at least the tacit consent of the King, the proceedings were initiated by the Parliament. Speaker Peter de la Mare of the Commons accused Latimer and Lyons of fraudulent transactions with royal monies for the furthering of their own interests, and asked that two ex-treasurers be allowed to give sworn statements against them before the Commons. There is some speculation that the Commons resorted to initiating these proceedings, because Edward III was unwilling to act against the corrupt Latimer and Lyons, but, growing old and occupied with foreign affairs, he was also either unable or unwilling to impede Parliament from doing so. Indeed, modern impeachment is defined by an arrogation of power by the legislative branch. The conclusion of the proceedings in the Commons was a call for punishment and judgement: "Wherefore we pray and require you on behalf of the king and the council of parliament that the said lord Latimer be arrested and kept safely for all the said trespasses and forfeits, until he has made satisfaction to the king for his misdeeds; and that the said Richard Lyons be judged as he deserves upon the points and articles put against him, which he cannot reasonably deny" (quoted in Plucknett 1983, 158). But unwilling to accept this summary judgement of the Commons, Lord Latimer asked that written charges be submitted and that he be granted counsel and time to prepare a defense. As a member of the House of Lords, Latimer was asking for a trial before the Lords to determine his guilt or innocence, just as would be required for a common-law offense. Though he was not ultimately granted the first request for written charges, he was granted his second and third requests and was allowed to defend himself before the Lords, thus introducing the element of intra-parliamentary rivalry into the impeachment process. More importantly, however, the Lords' concern for the legitimacy of charges, procedures and evidence, as well as other legal processes would become a check on the highly politicized environment of the Commons. In fact, of the fifty-seven men impeached by the Commons between 1626 and 1715, only five were prosecuted to judgement by the Lords (Hoffer and Hull 1984, 6). By adding a trial in a separate body to impeachment by the Commons, a first in English history, the Parliament of 1376 gave the impeachment process a legal framework which would become one of the roots of its legitimacy for centuries to come. Historians demarcate the 1376 impeachments as the first modern impeachments for these political, and quasi-legal elements. Still, many details were yet to be delineated. For example, a clear definition of roles had not yet been settled. The Lords proved to be protective of their role in impeachment, especially against the crown. In 1388, Richard II chal- lenged the right of Parliament to bring an impeachment without the consent of the King. The challenge resulted in a decision from several judges of the realm declaring impeachment without royal consent to be illegal. As a result, all of the judges who subscribed to the opinion were brought before Parliament, impeached and removed by the lords (Hoffer and Hull 1984, 5). The Commons likewise resented any interference from the Lords. In the 1700's, pushing for the trial on impeachment of Edward Fitzharris, the Commons argued: "[I]t is the undoubted right of the Commons, in Parliament assembled, to impeach before the Lords in Parliament, any peer or commoner for treason or any other crime or misdemeanor; and...the refusal of the Lords to proceed in Parliament upon such impeachment is a denial of justice, and a violation of the constitution of Parliaments" (Hoffer and Hull 1984, 5). In addition, there was as yet no clear consensus on the scope of the impeachment power. As mentioned, the Commons believed it their right to impeach any peer or commoner for any crime or misdemeanor. And indeed, the charges leading to impeachment were diverse. Most impeachments (and all impeachments in the eighteenth century) were brought for alleged "high crimes and misdemeanors," a phrase which originated in the impeachment of the King's Chancellor, Michael de le Pole, Earl of Suffolk in 1386. It is clear however that, although various legal definitions existed in English common law for the various terms in the phrase, its application was not nearly so precise in impeachment proceedings. For de le Pole, "'high crimes and misdemeanors'" consisted of "'advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of the laws,"1 '"procuring offices for persons who were unfit, and unworthy of them,"1 and '"squandering away the public treasure."1 For Chief Justice Scroggs in 1680, it consisted of "'browbeating witnesses and commenting on their credibility,"1 and of "'cursing and drinking to excess,"1 thereby bringing "'the highest scandal on the publick justice of the kingdom."1 And one of Warren Hastings's "high crimes and misdemeanors" was his failure to conduct himself '"on the most distinguished principles of good faith, equity, moderation, and mildness"1 (Staff of the Impeachment Inquiry 1974). While in many cases, "high crimes and misdemeanors" consisted of common-law offenses, it was clearly not exclusively so. Since Parliament arrogated to itself the right to impeach, it needed no systematic justification for its exercise. There was some effort in impeachment trials to research precedents in prior impeachments, but precedents consisted of no more than the sum total of Parliamentary impeachment proceedings. In the end, "every ruling on impeachment was legal because the root of public law was the pronouncement of Parliament" (Hoffer and Hull 1984, 9). Because of these debates which continued in England for centuries, it is difficult to determine with certainty any exact 68 |
