Commentary

The impeachments clause that had been under consideration during previous discussions was only applicable in cases of treason and bribery. Colonel Mason had suggested the addition of ‘maladministration’ as a third head of impeachment, arguing that bribery and treason did not cover all dangerous offences which he thought an executive should be impeachable for. However, after an observation by Madison that such a term was too vague, and would ‘be equivalent to a tenure during pleasure of the Senate’, Mason changed his terminology to ‘other high crimes and misdemeanours’. This wording brings the impeachment clause into the format that we see it in today.

However, no discussion took place to illustrate the meaning of ‘high crimes and misdemeanours’. This would suggest that such a phrase was simply already understood as having certain connotations by those at the Convention, and therefore necessitating no debate about its particulars. Although definition of this phrase can be a topic of debate, arguably the picture becomes clearer if we take into account that (it is generally agreed) many of the Framers had read and taken inspiration from Blackstone’s Commentaries on the Laws of England. In these volumes, Blackstone describes the offence of ‘crimes and misdemesnors [sic]’. In comparison to private wrongs, which were seen as ‘civil injuries’, this category refers to public wrongs, ‘a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours.’

This suggests that the impeachments clause had been widened to cover infractions generally against the public rights and duties that a President would become subject to when he took office. The inclusion of the word ‘high’, rather than indicating a specific type of offence or distinguishing from the simple 'crimes and misdemeanours' category, simply looks to the gravity of the charge. Edward Christian, whose annotated 12th edition of Blackstone’s commentaries was published in 1793, noted that 'When the words high crimes and misdemeanours are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge'. If the Framers were following Blackstone, this offence would already be seen as more serious than the comparable private wrong, and though this edition was printed six years after the Convention, it is likely their usage of the phrase inclusive of 'high' would similarly look to the importance of the office and therefore the corresponding solemnity of any infraction.

Therefore, this inclusion, although there was little to no debate on the subject past the rejection of ‘maladministration’, suggests a much wider basis for impeachment than had previously been considered by the Framers. For example, it is plausible to suggest that contravention of the Presidential oath in any form could be considered a public wrong or dereliction of a public duty, and therefore be impeachable under the auspices of ‘high crimes and misdemeanors’. A similar example of someone under professional oath committing such an offence which is given in Blackstone is that of a physician reneging on his duties and committing mala praxis (malpractice) because it 'breaks the trust which the party had placed in his physician'.

Associated event

Second Report of the Grand Committee on Postponed Questions: Article X - Second Amendment to Section 2: Mason Amends His Proposal was proposed on 08 September 1787

Approved for publication

KatHowarth