Testimony of Forrest McDonald
Distinguished University Research Professor, University of Alabama
House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998
In preparing myself to testify before this committee, I surveyed the literature on impeachment and was a bit surprised at the quantity and quality of it. In addition to numerous articles in law reviews and scholarly journals, there are Raoul Berger's Impeachment: The Constitutional Problems, a magisterial survey published in 1973, the book High Crimes and Misdemeanors: Selected Materials on Impeachment, compiled by the House Judiciary Committee with a Foreword by Chairman Peter W. Rodino, also in 1973, and John R. Labovitz' Presidential Impeachment, a 1978 book that grew out of the author's participation as a staffer on the Nixon hearings. Taken together, these sources, which are readily available to the committee and its staff, answer most of the questions that can be asked about the origin and development of the impeachment process.
Accordingly, I shall confine my observations largely to matters that are not covered in the published scholarship and are drawn from such understanding of the subject as I have been able to obtain during the half century I have been studying the Founding and early evolution of the Constitution.
Let me begin with 1776. Americans were so dismayed by what they considered as betrayal by King George III that, in forming their new governments, they established almost no executive branches at all. The Congress of the Confederation had no executive arm, and though most of the state constitutions provided for a governor or a president, none except New York vested him with substantive power, and most provided for impeachment for "misconduct or mal-administration" (Massachusetts 1780, New Hampshire 1784) or "mal- and corrupt conduct" (New York 1777, South Carolina 1778) or "maladministration or corruption" (Virginia and North Carolina, 1776), or simply "any misdemeanor" (Pennsylvania, 1790).
By the time the Federal Convention gathered in Philadelphia in 1787, most thinking men had come to realize that government without an executive branch is no government at all, but their mistrust lingered, as is attested by the fact that a quarter to a third of the delegates supported a plural executive. The most formidable obstacles to creating a viable executive were two: how to elect the president and how to get rid of him if he turned out badly. The two were closely related, as will become evident. From our perspective, the question of how to choose the president might seem obvious: simply have popular elections. Given the size of the country and the difficulties of transportation and communication, however, that would have been impracticable. Indeed common Americans would have been hard-pressed even to name someone from another state, apart from Washington, Franklin, and possibly John Adams and Thomas Jefferson. For other reasons, election by the state legislatures or the governors, both of which were proposed, was generally regarded as unsatisfactory.
But that left some kind of centralized election, which came down to a choice by Congress, which in turn was fraught with problems. If Congress elected the president, the executive would be dependent upon the legislative, and thus a system of check and balances would be impossible-unless he was made ineligible for reelection, but if he could not stand for reelection, he would have to be chosen for a long tern, say six or seven years, which delegates thought would be dangerous. The greatest danger of all posed by congressional election, however, was suggested by a recent horrible example from Europe of which the delegates were acutely aware. The only elective monarchy in Europe was that of Poland, where the nobles chose the king, and the centralized electoral system there had made it possible for the crowned heads of Prussia, Russia, and Austria to use their wealth to buy a king of their choice. Thereafter, they partitioned the country-divided its territory among themselves-in 1773. The prospect that that could happen to America was chilling, to put it mildly.
So unsatisfactory were the options that the delegates were loath to invest the executive with genuine powers. As late as the first week in September-two weeks before the Convention adjourned-what had been agreed to was a government that would be entirely dominated by Congress. The Senate, whose members would be elected by the state legislatures, would have most of what were called the federative powers-the conduct of foreign relations-including the sending of ambassadors and the negotiation of treaties. The other great federative power, the waging of war, was to be shared with the lower house, as were other traditional executive powers. The president was to be elected by the Congress in joint session, serving a seven-year term unless removed on impeachment by the House and conviction by the Supreme Court. He was to be ineligible for reelection and had virtually no power of appointment and none of removal. He was commander-in-chief , had a conditional veto of legislation, and had power to grant pardons and reprieves. Otherwise, he was to be little more than a figurehead.
The limited nature of presidential authority at that stage of the proceedings had a direct bearing on the impeachment process at that stage of the proceedings. It had been agreed at the outset that the executive-and only the executive-was to be removable upon impeachment and conviction. It was agreed early on that the grounds were to be two: treason and bribery. Providing for impeachment on the ground of treason was pretty much a reflex action, for treason had been involved in almost all the impeachments by the English, from whom Americans had derived the idea; though the Americans guarded against abuse by carefully and narrowly defining what constituted treason. Providing for impeachment on the ground of bribery was another matter of the delegates' having in mind a horrible example from history: as they were well aware, King Charles II of England had been bribed by Louis XIV of France, among the fruits of which was France's acquisition of Dunkirk, long an English possession.
As indicated, that was the way things stood at the beginning of September; but then, on Tuesday, September 4, a catch-all committee proposed a resolution, the brainchild of Pierce Butler of South Carolina, to establish the electoral college system. The scheme was cumbersome, even cockamamie, and it was greeted as such; but as the idea soaked in, the delegates came to realize that it overcame every objection that had been raised to every other proposed method of election, and with modification it was soon adopted.
Now, having devised a decentralized method of electing a president that they believed would make it difficult if not impossible for foreign governments to sway American presidential elections by influence or money, the delegates were willing to endow the office with considerably more power than before. In the next few days they did so.
Increasing the duties, responsibilities, and powers of the presidency necessitated an enlargement of the grounds for impeachment, for treason and bribery no longer covered all the president's constitutional activities. It is a fundamental principle of the Constitution, as articulated in Federalist 51, that to ensure balance and counterbalance, the greater the power given, the greater the mechanism needed for enforcing accountability. Accordingly, on September 8 George Mason of Virginia moved to add after "bribery" the words "or maladministration." Madison objected that the term was too vague, so Mason withdrew his motion and substituted "other crimes & misdemeanors against the state." The words "against the state" were subsequently changed to "against the United States," but in the final draft of the Constitution as drawn by the Committee of Style, those words were dropped entirely. That was a significant deletion, for had those qualifiers been retained, all impeachable offenses would have been limited to actions taken in the performance of public duties.
That left the grounds for impeachment as "Treason, Bribery, or other high Crimes and Misdemeanors." The phrase "high crimes and misdemeanors" had been the standard wording of English impeachments since the first such proceeding took place against the Earl of Suffolk in 1386, and that is doubtless why it readily came to Mason's mind on September 8, without thinking through precisely what it meant. As for the word misdemeanor, Raoul Berger had pointed out that at the time it was first used and for nearly a century thereafter, it was not a legal term: as the Oxford English Dictionary makes clear, it simply signified evil conduct or misbehavior.
It is sometimes said that "high crimes and misdemeanors" was a term of art, but that is not so. A term of art is a phrase that, whatever it may mean to laymen, has a precise and well understood meaning to practitioners of a particular art. By contrast, high crimes and misdemeanors had, according to the leading commentators, at least three different meanings. One was suggested by Sir William Blackstone's successor to the Viner lecturer at Oxford, Sir Richard Wooddeson, in his lengthy analysis of impeachment, namely that "high" meant crimes or misdemeanors of whatever seriousness committed by persons of a high station. The other readings turn upon whether the adjective "high" is meant to refer to both crimes and misdemeanors, or whether "high crimes" is one thing and "misdemeanors" is another. If the latter is to be understood, then the sense of the clause is that the president is impeachable for Treason, Bribery, or other high crimes, as well as for misdemeanors. In Federalist 69, indeed, that is Hamilton's reading -- he says high crimes or misdemeanors. That is also the reading I would give it, and my view seems to have been that of Americans in general at the time, as is attested by the fact that Delaware, which adopted a new constitution shortly after the United States Constitution was ratified, used the phrase high crimes or misdemeanors, and the new states that were soon admitted to the Union provided for impeachments for "any misdemeanor." Moreover, in the very first instance of impeachment, conviction, and removal from office of a federal official under the Constitution of the United States, that of District Judge John Pickering of New Hampshire in 1803, the high crimes and/or misdemeanors of which he as found guilty consisted of drunkenness in the courtroom.
But let us consider the matter more closely. The term High Misdemeanors did exist, and was in fact a term of art with a specific meaning. For enlightenment we must turn to Blackstone's Commentaries on the Laws of England, a work which as Madison said was "in every man's hand" and the one the Framers turned to when determining just what legal phrases meant. (Next to the Bible and Montesquieu, Blackstone was the most frequently quoted source in American political writing from 1760 to 1800.) Blackstone considers High Misdemeanor in Book IV, Chapter 9, "Of Misprisons and contempts." The word misprison derives from the Old French word mespris, meaning neglect or contempt; a misprison, Blackstone tells us, was a neglect or contempt against the state; a high misdemeanor was a positive misprison. He rings the changes on what these were, such as displays of violence in a courtroom, and he closes his chapter by describing a high misdemeanor as an "endeavor to dissuade a witness from giving evidence . . . or, to advise a prisoner to stand mute." At one point during the Convention in a different connection, it had been proposed to use the phrase high misdemeanor, but according to Madison's notes the words were struck out, "it being doubtful whether 'high misdemeanor' had not a technical meaning too limited."
Except in that restricted sense, to speak of a "high misdemeanor" is to speak nonsense: it is an oxymoron, for the definition of a misdemeanor is concerned with its minor quality. Again we may consult Blackstone. In Chapter 1 of Book IV he tells us that, "properly speaking," crimes and misdemeanors are "mere synonymous terms," but he goes on to say that "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 comprized under the gentler names of 'misdemeanors' only." The annotator of my 1793 edition of Blackstone, Edward Christian, adds the following note: "In the English law misdemeanour is generally used in contradistinction to felony, and misdemeanours comprehend all indictable offences, which do not amount to felony"; the first example he gives is perjury.
James Wilson, one of the Framers and a learned jurist, echoed Blackstone's definition. "A crime," he wrote in his Lectures on Law, 1790-1791, "is an injury, so atrocious in nature, or so dangerous in its example, that, besides the loss which it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the publick. Offences and misdemeanors denote inferiour crimes."
The eminent Supreme Court Justice Joseph Story, in his Commentaries on the Constitution of the United States (1833), went a step further, saying that impeachment "has a more enlarged operation" than merely high crimes and misdemeanors, "and reaches, what are aptly termed, political offences, growing out of personal misconduct."
Let me conclude with references to the observations of James Madison and Alexander Hamilton on the subject. Madison did not, of course, write of impeachment in the Federalist Papers; he left that to Hamilton. But Madison did speak to the subject in the First Congress, and his reading tends to bear out my own that high crimes was one thing and misdemeanors quite another. The context was a debate concerning the question, whether the approval of the Senate would be necessary for presidential removal of his appointees, as it was for their confirmation. Madison said on May 19, 1789, that "it was absolutely necessary that the President should have the power of removing from office: it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or [notice: or, not and] misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses." This also seems to broaden the grounds for impeachment to include misdeeds of one's subordinates.
As for Hamilton, his comments especially in Federalist 65 have been widely cited in the media and I shall not presume to recapitulate them here. But I would call your attention to one passage. Impeachment, he wrote, was a political affair which "will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the preexisting factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt."
Hamilton's words were prophetic, but in reviewing the impeachments that have actually occurred, I have been struck by how often large numbers of congressmen have been able to rise above partisanship and follow the dictates of reason and conscience. I pray that this committee and the House as a whole will follow that noble example.
FORREST MCDONALD, born Orange, Texas, January 7, 1927; married, five children, eleven grandchildren; served U.S. Navy, 1945-46; BA, 1949, MA, 1949, Ph.D., 1955, University of Texas, Austin. Professional employment: Historical Society, Wisc., 1953-58; Brown University, 1959-67; Wayne State University, 1967-76; University of Alabama, 1976 -. Current title, Distinguished University Research Professor.
National Honors: Guggenheim Fellow, 1962-63; Fraunces Tavern Book Award for Alexander Hamilton, 1980; Board of Foreign Scholarships (Presidential Appointment), 1985-87; Finalist, Pulitzer Prize, for Novus Ordo Seclorum, 1986; American Revolution Round Table Book Award, 1986; The Sixteenth Jefferson Lecturer in the Humanities, National Endowment for the Humanities, 1987; Ingersoll Prize, 1990; Henry J. Salvatori Award for The American Presidency, 1994; Mount Vernon Society with the Organization of American Historians named The Presidency of George Washington one of the "Ten Great Books on George Washington."
Publications: Nineteen books, including We The People: The Economic Origins of the Constitution, 1958; E Pluribus Unum: The Formation of the American Republic, 1965; The Presidency of George Washington, 1974; The Presidency of Thomas Jefferson, 1976; Alexander Hamilton: A Biography, 1979; Novus Ordo Seclorum: The Intellectual Origins of the Constitution, 1985; The American Presidency: An Intellectual History, 1994; fifteen chapters in published volumes; articles in nine different encyclopedias and dictionaries including "United States History, 1763-1816," Encyclopedia Britannica, 1974; sixty-three journal and magazine articles; more than one hundred fifty book reviews.
Dr. McDonald is testifying as a professional historian, not as a representative of the University of Alabama. He has no participation at this time or in the past ten years in any federal grant, contract or subcontract, either privately or as a university employee.