Impeachment

I is for impeachment, a parliamentary prosecution in which classically the lower House of the legislature acts to present the alleged malefactor for trial, and the upper House sits in judgement. 

Much has been heard about the procedure in recent years, first because of its deployment in Brazil against the President, Dilma Rousseff, resulting in her removal from office in August 2017, and secondly because of the much-discussed (but remote) possibility of impeachment proceedings against President Donald Trump in the United States. In both the latter cases, impeachment has been embedded within a written constitution and recognised procedures. Although the origins of impeachment lie in English politics, impeachments were highly unusual, and always subject to intense political and legal argument about procedure and fairness. In almost each case the procedures were reinvented and argued over (a summary of the procedure here reasonably explains the broadly outlines, but conveys a rather too schematic view of something that was rarely so straightforward). Eventually, the cumbersomeness of the process meant that only the most committed, able to mobilise an unusual level of consensus across the political system, were able to bring it to a successful conclusion.

The origins of impeachment are usually dated to the prosecution in the ‘Good Parliament’ of 1376 of Edward III’s adviser Baron Latimer by the ‘clamour of the Commons’, though it has been cogently argued that the Commons was simply appropriating a practice of a community demanding redress against powerful individuals outside the ordinary common-law courts (often before the council) that was increasingly used in fourteenth century England. Even in the fourteenth century, there was an obvious tension between such a process and the normal rules of legal procedure, and these were much in evidence during the Latimer impeachment and subsequent examples. But after the middle of the fifteenth century the practice fell into disuse: although ministers were prosecuted and removed in the sixteenth century, it was never as a result of an impeachment. But in 1621 politicians pursuing the corrupt lord treasurer, Thomas Howard, earl of Suffolk, rediscovered it and employed it to set a seal on his fall, as Andrew Thrush explains in an earlier piece on the History of Parliament blog.  Sir Edward Coke then developed it into a weapon to pursue his bete noire, Francis Bacon, earl of St Albans and Lord Chancellor – ultimately successfully.

But as Thrush points out, impeachments against high-profile individuals who enjoyed the favour of the king (which was often their point) were rarely effective: the prosecution was either blocked in the Lords, or, if successful, the supposed malefactor was pardoned. And in any case, politically motivated prosecutions struggled to meet the common-law standards of evidence which were insisted on in the Lords. The highest-profile impeachment of the seventeenth century, that of Thomas Wentworth, earl of Strafford, in 1641, got bogged down in the attempt to secure two witnesses to any act that could be claimed to be treason. Only one prosecution before 1689 really had the backing of both king and Commons, that mounted against Edward Hyde, earl of Clarendon, in 1667: but it was strongly fought in the Commons by Clarendon’s allies, and it too became quickly stuck in the Lords as the peers insisted on procedural fairness and weighing of the evidence. Arguments about justice in the face of political hostility were powerful ones: ‘though I know not what the legislative power of a Parliament cannot do’, argued one of Clarendon’s prominent supporters in the Commons, ‘yet it is not in the power of the Parliament, King, Lords, nor Commons, to declare anything to be Treason which is not in the Common-Law Felony before’ [Sir Heneage Finch, in The Proceedings in the House of Commons Touching the Impeachment of Edward, late Earl of Clarendon (1700), p. 9] . One initial demand, that ‘common fame’ was a sufficient basis on which to commit Clarendon to custody while the allegations were investigated echoed some of the origins of the impeachment procedure, but was quickly shot down by the peers as fundamentally unjust.

Despite their drawbacks, impeachments would become a tool of the vicious party politics of the late 1670s to the end of the 1710s, perhaps as much in the hope of increasing political pressure on the king and his ministers as in the expectation of securing a guilty verdict from the Lords. The impeachment of Jacobite lords involved in the risings of 1715 and 1745 stand out as something of an oddity in this context, though they match the impeachments in 1689 of a trio of suspected supporters of James II after the Revolution, and perhaps reflect a perceived need for Parliament to collectively assert itself against offences which were aimed at toppling the whole regime. The 1715 Jacobite impeachments were initiated by the prominent Whig lawyer and former solicitor-general Nicholas Lechmere, who had also been deeply involved in the impeachments by the new Whig government of former Tory ministers Robert Harley, earl of Oxford, and Henry St John, Viscount Bolingbroke. Lechmere’s speech when moving the impeachments indicates that the prosecution was intended to link the Jacobite Rebellion to the record of the previous Tory government and the actions of Oxford and Bolingbroke and their colleagues. He also revealingly betrayed some anxiety about the behaviour of the law courts:

Everybody knew to what hazards prosecutions in the ordinary course of justice were liable, tho’ they were never so well concerted by those whose business it was to carry them on: But how sure soever the success might be, in a case so notorious as this, yet it was obvious to every Body, of what different weight and influence the prosecutions of Parliament were, from those in the ordinary forms. [The Speech of Mr Lechmere in the House of Commons, Occasion’d by the Rebellion in the Year 1715, p. 15.]

The most famous British impeachment, the proceedings against Warren Hastings begun in the Commons in 1786 and concluded with an acquittal in the Lords ten years later, also moved rather beyond the early eighteenth century style of party political impeachments. The impeachment of Hastings, Governor General of Bengal, had its origins in policy disagreements and rivalries within the government-appointed supreme council of Bengal, and reflected worries and concerns about the inefficiency, injustice and corruption of British government in India that were widely shared in London. But getting the House of Commons to agree to promote an impeachment before the Lords was the work of the political obsessive and (then) vigorous reformer Edmund Burke, supported by a few others, among them William Pitt’s Scottish ally Henry Dundas. Burke was concerned to avoid the attack on Hastings becoming a matter of party politics, and indeed hoped that the opposition leader Charles James Fox should support it not as a party chief, but as an individual member of the Commons. The decision of Pitt’s government not to oppose the impeachment was crucial; but equally important was the fact that it made no effort to overcome the increasing difficulties the impeachment ran into in the Lords. These were largely the result of the insistence of the upper House on maintaining common-law standards of proof and procedure. The debate over whether an impeachment was bound by those standards became crucial to its success or failure. Its managers argued that the difficulty of securing convictions or realistic penalties in the English courts over offences committed in India made it necessary to operate to different standards than the common law. The Lords, increasingly dominated by senior lawyers, demurred. In response the managers pursued Hastings with an aggression that Burke felt entirely justified by Hastings’ conduct and unavoidable given Hastings’ ability to fund an articulate defence both in Westminster Hall and in print. To many others it seemed to be vindictive, vicious and dangerously populist. Painfully long-drawn out though the trial in Westminster Hall was, the judgment – not guilty on all of the 16 charges – was long predicted.

The last British impeachment ironically had as its target one of those who had helped the Hastings impeachment to proceed, Henry Dundas: by then he had become Viscount Melville. Like Hastings’ impeachment, that of Melville was the work of a driven campaigner for reform, in this case Samuel Whitbread, who was incensed by the revelation of corruption in the Navy, of which Melville had been Treasurer, revealed by the Tenth Report of the Commissioners of Naval Enquiry. As with the impeachment of Hastings, the attitude of William Pitt – once more Prime Minister – was significant in determining whether it should go ahead. Pitt was determined to protect an old friend and key ally; but in this case, Melville had too many enemies. The Commons vote on his impeachment on 8 April 1805 was tied – 216 on each side – and only proceeded by the agonised casting vote of the Speaker, Charles Abbott. One of the History of Parliament’s undergraduate dissertation prize winners, Gary Hutchison, explored the Melville impeachment in his entry to our competition, which he usefully summarised in a History of Parliament blog. The impeachment process was ultimately unsuccessful – the Lords would eventually dismiss all of the charges. But as Hutchison argued, the political significance of the impeachment was enormous, drawing immense attention to the issue of corruption and competence in British naval administration.

But never again has it been possible to muster the sort of energy, determination and political skill, or the complex combination of circumstances, required to mount an impeachment, let alone to prosecute one successfully. Impeachments have been mooted many times since, but never actually brought to the House. When in 1823 individual members, particularly Spring Rice, demanded action against the Chief Baron of the Irish Exchequer for taking excessive fees, the government (which plainly disagreed with the outrage felt by some) responded that it was up to individual members, not them, to take action on the complaint, which they might do either by impeachment or an address of both Houses for the removal of the judge. A petition from the Dublin Protestant Operative Association and Reformation Society demanded the impeachment of Sir Robert Peel in 1845 when he proposed a considerable increase in the grant going to Maynooth College, the then Catholic seminary  A motion in 1848 to require the production of papers concerning British Foreign Policy since 1830 was designed to be preliminary to an impeachment of the Foreign Secretary, Lord Palmerston. Promoted by one Member (David Urquhart) who was somewhat of an obsessive, and his compliant sidekick (Thomas Anstey), it was never likely to succeed (the debates can be seen here, here and here).

Impeachment lives on elsewhere of course, having been transplanted to North America via the colonial legislatures of the seventeenth and eighteenth century, and from there it has spread to other countries (The Philippines and Guatemala are currently in the throes of discussions around impeachment). Even in Britain it still occasionally raises its head: as a response to individual cases where a prosecution seems difficult (as Robin Maxwell-Hyslop argued in relation to the case of the Soviet spy Sir Anthony Blunt in 1979); and best-known, as an expression of extreme frustration at the difficulty of bringing a prime minister effectively to account for actions of enormous political significance — the case of former Prime Minister Tony Blair, in connection with the war in Iraq of 2003 (for details see the House of Commons Library briefing). The fate of the latter motion, tabled on 25 November 2004, but never debated, is an indicator of the political obstacles in the way of an impeachment. As for the legal obstacles, the authors of a legal opinion preparative to the motion (Rabinder Singh and Conor Gearty)  pointed out that they did not address the issue of whether there was any way of ensuring that an impeachment trial could be conducted in a way which infringes the defendant’s rights under the European Convention on Human Rights, though a subsequent case over the removal of the Lithuanian President in 2004 may shed some light on the point.

Yet as they point out, the power of impeachment has never been formally abolished. A report by the Commons committee on Parliamentary Privilege in 1967 recommended abolition, saying that legislation would be needed to extinguish it, but no legislation has ever been presented. The most recent report on privilege, that of a joint committee in the session of 1998-9, was curiously silent on the matter (especially in the context of a discussion of the law relating to bribery and corruption), referring just to the ‘abandonment of impeachment early in the last century’ (para. 144). As Maurice Macmillan said in a debate on the Privileges Committee Report (rather relevantly more than ten years after the report was actually made), ‘I realise that no-one has been impeached for 150 years, but that is not all that long in the history of Parliament’.

 

Further reading

Gabrielle Lambrick, ‘The Impeachment of the Abbot of Abingdon in 1368’, English Historical Review April 1967.

P.J. Marshall, The Impeachment of Warren Hastings (OUP 1965)

For the development of impeachment in the United States before Independence, see Peter Charles Hoffer and N.E.H. Hull, Impeachment in America 1635-1805 (Yale, 1984)

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About The History of Parliament

The History of Parliament is a major academic project to create a scholarly reference work describing the members, constituencies and activities of the Parliament of England and the United Kingdom. The volumes either published or in preparation cover the House of Commons from 1386 to 1868 and the House of Lords from 1603 to 1832. They are widely regarded as an unparalleled source for British political, social and local history.
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One Response to Impeachment

  1. Fiona Laing says:

    Reblogged this on SWOP Forum.

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