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Show Hinckley Journal of Politics Spring 2000 the trial to the national judiciary (Farrand 1911, 22). On June 18, Hamilton proposed trial by the "Chief or Judge of the Superior Court of Law of each State" (Farrand 1911, 292-93). This was a modification of the New York Court of Impeachments and Errors. Late in July, the Committee of Detail proposed a compromise of state precedents, where the trial would be by both the Senate and the judges of the federal judiciary (Farrand 1911, 136, 139). The sticking point lay in the early process for electing the Executive, providing for the election by Congress in joint session. Virginians held fast to trial in the judiciary, arguing that there would be a conflict of interest if impeachments of executive officials were tried by the same body that appointed them, and that it would violate separation of powers by creating a dependent Executive. There was also a fear that centralized election would allow foreign powers to use bribery to influence the election. Finally, in early September, these obstacles were overcome with the suggested alternative of the electoral college (McDonald 1998). Gouverneur Morris, explaining the committee's reasoning, said that such a scheme allowed trial in the Senate while preserving separation of powers and averting conflicts of interest (Hoffer and Hull 1984, 99). Interestingly, on the other point of difference, the scope of offenses reachable by the impeachment power, there is little record of any debate, but there surely must have been some sort of discussion. On June 2, Hugh Williamson, borrowing the words from his native North Carolina, suggested the Executive "be removable on impeachment and conviction of malpractice and neglect of duty," a standard that persisted until August (Farrand 1911, 88). Suddenly on August 6, with no record of debate, the phrase was changed in Madison's notes to "treason, bribery, or corruption" (Farrand 1911, 186) This change is interesting because treason is a criminal act for which trial had traditionally been held in the judiciary. Nevertheless, the new phrase was consistent with state impeachment precedent. By September 4, in Madison's notes, the phrase had been reduced to "treason and bribery" again without record of debate (Farrand 1911, 499). On September 8, Madison documents this objection of George Mason: "Why is the provision restrained to Treason and bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences.... [I]t is more necessary to extend the power of impeachments." He proposed the addition of "maladministration" after bribery, but Madison objected that this was too vague and would make the Executive dependent upon the pleasure of the Senate. Colonel Mason withdrew "maladministration" and substituted "other high crimes and misdemeanors," which was adopted, again without any record of discussion of any kind (Farrand 1911, 550). The words "against the state" and then "against the United States" are added and removed again between September 8 and September 12 (Farrand 1911, 550, 575, 600). The phrase "high crimes and misdemeanors" appears nowhere in the state constitutions. It is one of the only exclusively English parts of the impeachment clause. But what does it mean? We have already observed that, although the words of the phrase may once have had precise legal definitions, the application of the phrase in the British impeachment process proved it to be very vague indeed. Most likely, delegates had little precise knowledge of English precedent, certainly not enough to form a definition of the phrase, so some have argued that since Mason substituted it after Madison's objection to maladministration, it must be smaller in scope than that. Others assert that it depends on whether high refers to both crimes and misdemeanors or just to crimes. Based on later statements by framers, Forrest McDonald offers his opinion that such an argument is meaningless because they clearly meant "high crimes or misdemeanors" (McDonald 1998). Hoffer and Hull see the change not as a bow to Madison's objection, but a compromise. They conclude: Misdemeanor, meaning lesser offenses, was by this time a catchall phrase in American criminal law. The addition of misdemeanors to the list of offenses meant that the House of Representatives was permitted to charge officials with minor breaches of ethical conduct, misuse of power, and neglect of duty, as well as more prolonged, egregious or financially rapacious misconduct (Hoffer and Hull 1984, 102). It is very possible, however, that the addition of this archaic terminology allowed each delegate to envision "high crimes and misdemeanors" as consistent with his own views on the scope of the impeachment power. If that is the case, then historians and politicians will look in vain for the original intent of the framers, because, considering the differences that existed in the several states, it is not likely that a single intent existed. Nevertheless, all of these arguments originate after the fact. Without any record of discussion regarding the phrase in the Convention, "high crimes and misdemeanors" on September 12 is the last word. There, the debate over the scope of the impeachment power ends. It plays no role in the ratification process. Impeachment in the ratification debate is only mentioned by Anti-Federalists in conjunction with their opposition to what they perceived as the excessive power of the Senate. Scope of offenses is mentioned only in passing by Alexander Hamilton in Federalist Paper # 65, stating his opinion that impeachable offenses are "political," that they are "injuries done immediately to the society itself," or actions that are "violations of the public trust" (Cooke 1961, 439). But these statements are consistent with the impeachment experience of New York, from which Hamilton was a delegate. And any statement made by delegates to the Convention in the ratification debate may have been motivated by political expediency, and thus may not truly reflect the intent of the Convention. The issue would reemerge with the very first federal impeachment, and surviving framers would make statements, but due to the new elements of party 71 |