Impeachment

Impeachment (O. Fr. empechement, empeschement, from empecher or empescher, to hinder, Late Lat. impedicare, to entangle, pedica, fetter, pes, foot), the English form of judicial parliamentary procedure against criminals, in which the House of Commons are the prosecutors and the House of Lords the judges. It differs from bills of attainder (q.v.) in being strictly judicial. When the House of Commons has accepted a motion for impeachment, the mover is ordered to proceed to the bar of the House of Lords, and there impeach the accused “in the name of the House of Commons, and of all the Commons of the United Kingdom.” The charges are formulated in articles, to each of which the accused may deliver a written answer. The prosecution must confine itself to the charges contained in the articles, though further articles may be adhibited from time to time. The Commons appoint managers to conduct the prosecution, but the whole House in committee attends the trial. The defendant may appear by counsel. The president of the House of Lords is the lord high steward, in the case of peers impeached for high treason; in other cases the lord chancellor. The hearing takes place as in an ordinary trial, the defence being allowed to call witnesses if necessary, and the prosecution having a right of reply. At the end of the case the president “puts to each peer, beginning with the junior baron, the questions upon the first article, whether the accused be guilty of the crimes charged therein. Each peer in succession rises in his place when the question is put, and standing uncovered, and laying his right hand upon his breast, answers, ‘Guilty’ or ‘Not guilty,’ as the case may be, ‘upon my honour.’ Each article is proceeded with separately in the same manner, the lord high steward giving his own opinion the last” (May’s Parliamentary Practice, c. xxiii.). Should the accused be found guilty, judgment follows if the Commons move for it, but not otherwise. The Commons thus retain the power of pardon in their own hands, and this right they have in several cases expressly claimed by resolution, declaring that it is not parliamentary for their lordships to give judgment “until the same be first demanded by this House.” Spiritual peers occupy an anomalous position in the trial of peers, as not being themselves ennobled in blood; on the impeachment of Danby it was declared by the Lords that Spiritual peers have the right to stay and sit during proceedings for impeachment, but it is customary for them to withdraw before judgment is given, entering a protest “saving to themselves and their successors all such rights in judicature as they have by law, and by right ought to have.” An impeachment, unlike other parliamentary proceedings, is not interrupted by prorogation, nor even by dissolution. Proceedings in the House of Commons preliminary to an impeachment are subject to the ordinary rules, and in the Warren Hastings case an act was passed to prevent the preliminary proceedings from discontinuance by prorogation and dissolution. A royal pardon cannot be pleaded in bar of an impeachment, though it is within the royal prerogative to pardon after the lords have pronounced judgment. The point was raised in the case of the earl of Danby in 1679, and the rule was finally settled by the Act of Settlement. Persons found guilty on impeachment may be reprieved or pardoned like other convicts. Impeachment will lie against all kinds of crimes and misdemeanours, and against offenders of all ranks. In the case of Simon de Beresford, tried before the House of Lords in 1330, the House declared “that the judgment be not drawn into example or consequence in time to come, whereby the said peers may be charged hereafter to judge others than their peers,” from which Blackstone and others have inferred that “a commoner cannot be impeached before the Lords for any capital offence, but only for high misdemeanours.” In the case of Edward Fitzharris in 1681, the House of Commons in answer to a resolution of the Lords suspending the impeachment, declared it to be their undoubted right “to impeach any peer or commoner for treason or any other crime or misdemeanour.” And the House of Lords has in practice recognized the right of the Commons to impeach whomsoever they will. The procedure has, however, been reserved for great political offenders whom the ordinary powers of the law might fail to reach. It has now fallen into desuetude. The last impeachments were those of Warren Hastings (1788-1795) and Lord Melville (1806), but an unsuccessful attempt was made by Thomas C. Anstey to impeach Lord Palmerston in 1848. The earliest recorded instances of impeachment are those of Lord Latimer in 1376 and of Pole, earl of Suffolk, in 1386. From the time of Edward IV. to Elizabeth it fell into disuse, “partly,” says Hallam, “from the loss of that control which the Commons had obtained under Richard II. and the Lancastrian kings, and partly from the preference the Tudor princes had given to bills of attainder or pains and penalties when they wished to turn the arm of parliament against an obnoxious subject.” Revived in the reign of James I., it became an instrument of parliamentary resistance to the crown, and it was not unfrequently resorted to in the first three reigns after the Revolution.

In the United States the procedure of impeachment both in the national and in almost all of the state governments is very similar to that described above. The national constitution prescribes that the House of Representatives “shall have the sole power of impeachment” and that “the Senate shall have the sole power to try all impeachments.” The House appoints managers to conduct the prosecution at the bar of the Senate, and the vote of the Senate is taken by putting the question separately to each member, who, during the trial, must be on oath or affirmation. In ordinary cases the president or president pro tempore of the Senate presides, but when the president of the United States is on trial the presiding officer must be the chief justice of the United States Supreme Court. A two-thirds vote is necessary for conviction. The president, vice-president or any civil officer of the United States may be impeached for “treason, bribery or other high crimes and misdemeanours,” and if convicted, is removed from office and may be disqualified for holding any office under the government in future. The officer after removal is also “liable and subject to indictment, trial, judgment and punishment, according to law.” The term “civil officers of the United States” has been construed as being inapplicable to members of the Senate and the House of Representatives. The president’s pardoning power does not extend to officers convicted, on impeachment, of offences against the United States. Since the organization of the Federal government there have been only eight impeachment trials before the United States Senate, and of these only two—the trials of Judge John Pickering, a Federal District judge for the District of New Hampshire, in 1803, on a charge of making decisions contrary to law and of drunkenness and profanity on the bench, and of Judge W. H. Humphreys, Judge of the Federal District Court of Tennessee, in 1863, on a charge of making a secession speech and of accepting a judicial position under the Confederate Government—resulted in convictions. The two most famous cases are those of Justice Samuel Chase of the United States Supreme Court in 1805, and of President Andrew Johnson, the only chief of the executive who has been impeached, in 1868. There is a conflict of opinion with regard to the power of the House to impeach a Federal officer who has resigned his office, and also with regard to the kind of offences for which an officer can be impeached, some authorities maintaining that only indictable offences warrant impeachment, and others that impeachment is warranted by any act highly prejudicial to the public welfare or subversive of any essential principle of government. The latter view was adopted by the House of Representatives when it impeached President Johnson.

* * *