Impeachment: High Crimes and Misdemeanors in 1787

By Robert Lucas

When the U.S. Constitutional Convention was held, the language argued and debated over had common wording from their day, including high crimes and misdemeanors.

Unlike today, misdemeanors were not considered criminal. There was a distinction between criminal actions and misdemeanors.

The Constitution limits those who can be impeached for high crimes and misdemeanors because the 'high' part covers specific offices. From Wikipedia, “the legal and common parlance of the 17th and 18th centuries of "high crimes," is activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons.” In the Constitution, those who can be impeached are clearly written by the offices they hold.

William Blackstone’s widely read Commentaries on English Law, when referencing misdemeanors, was always preceded by crimes and showed a distinction between the two. The crime was based on something that violated the law. Misdemeanor was based on behavior.

From the First Volume of his Commentaries, on page 118, is the first time Blackstone makes a clear distinction between crimes and misdemeanors:

“Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors.”

A breach of public rights was not always criminal, since to commit a crime required a violation of a specific law.

From his Fourth Volume of his Commentaries, on page 5, there is an even greater distinction between the two (U.S. spelling added for clarity -editor):

“A crime, or misdemeanor, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors; which, properly speaking, are mere synonymous terms: though, in common usage, the word, “crimes,” is made to denote such offenses as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler names of “misdemeanors” only.”

When Blackstone wrote of misdemeanors as being of less consequence, it was a reference to them as not being violations of the law. When synonymous is used, the distinction is one of character. The character of someone in power who violates the law remains poor even when not in violation of the law.

In several places of volume 4, Blackstone uses ‘misprision’ as an instance where something can be either criminal or a misdemeanor, and does include the definition:

“Misprisions (a term derived from the old French mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offenses as are under the degree of capital, but nearly bordering thereon: and it is said that a misprision is contained in every treason and felony whatsoever; and that, if the king so please, the offender may be proceeded against for the misprision only.”

Blackstone breaks misprision down into two categories, negative and positive. The negative is concealment and the positive is the commission.

From his Fourth Volume of his Commentaries, on page 121:

“1. The first and principal is the mal-administration of such high officers as are in public trust and employment. This is usually punished by the method of parliamentary impeachment: wherein such penalties, short of death, are inflicted, as to the wisdom of the peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability.”

Maladministration was not a violation of the law, which fell to the category of a misdemeanor. An official could be removed for this reason alone, without violating a single law.

In essence, when looking at crimes and misdemeanors from the perspective of the Founders, a crime was considered any violation of English Common Law, and misdemeanors covered the bad behavior and poor conduct.

Every delegate at the Constitutional Convention was familiar with Blackstone’s Commentaries. Those delegates argued about everything, including the ability to impeach. Originally, maladministration was used after other high crimes, which James Madison successfully argued to the clearer and broader use of misdemeanors, which included maladministration.

They may have argued over everything, but no one argued about misdemeanor not having clear meaning. Madison’s journal recorded the events better than anyone else in attendance. Had anyone mentioned misdemeanor as something that lacked clarity, he would have recorded it.

The Miller Center includes a speech Madison made at Congress from an article entitled Impeachment in the 1780s following the ratification of the Constitution on June 16, 1789:

“When we consider that the first magistrate is to be appointed at present by the suffrages of three millions of people, and in all human probability in a few years time by double that number, it is not to be presumed that a vicious or bad character will be selected. If the government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the state, I think it may with truth be said to be the case under the constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate, that the instances will be very rare in which an unworthy man will receive that mark of the public confidence which is required to designate the president of the United States. Where the people are disposed to give so great an elevation to one of their fellow citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times; and that at all events he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree perhaps a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.”

Madison’s speech makes clear that vicious or bad character would be enough to be an impeachable offense. He directly correlated violating any crime and misdemeanor as an impeachable offense. Bad character alone would have been grounds for removal.

Impeachment was not written for the purpose of a criminal indictment, but solely for the removal of those few who the Constitution allows for. There is nothing in the Constitution that allows for Congress to criminally indict and prosecute any president or any other civil officer listed. It is a means of removal from office when action must be taken prior to the next election or death of federal judges.

The distinction between a crime and a misdemeanor may have been lost to time, but there was a clear difference when the Constitution was written. When that time is used as the sole reference of what constitutes an impeachable offense, it is clear that no crime must be committed for an impeachment to be justified.

Going back to Madison’s speech to Congress, “Where the people are disposed to give so great an elevation to one of their fellow citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times.” To put it succinctly, which Madison had some difficulty in doing, any crime and any misdemeanor is grounds for removal from office.