Impeachment II

The beginning of the second impeachment trial of President Trump in the Senate forms a remarkable new chapter in the long and fraught history of a procedure whose origins lie in Medieval England. There are several History of Parliament blogs covering the history of impeachment in England/Britain/the United Kingdom: a general survey ; an account of its origins in the fourteenth century; an account of its revival in the early seventeenth century; and several discussions of individual impeachments – Clarendon’s in 1667; the earl of Oxford’s in 1717; and that of Melville in 1806. But in case all that isn’t enough, here are a few further reflections, provoked by the peculiar circumstances of current events in Washington.

Could you impeach someone after they have left office?

This is of course the central question in the current Trump impeachment in the United States: indeed a claim that you can’t is the first answer of President Trump’s response to the impeachment charges  The arguments are summarised here .

Impeachment in the United States is a process governed by its own constitution and its own case law, so British practice before 1776 is not necessarily relevant, though various US commentators do, from time to time, refer to it. For what it’s worth, the tradition of impeachment in England and Britain allowed it to be used against anybody – among them hapless conspirators, businessmen who secured favours from the government, judges, politically irritating clergymen – and not just government ministers. Its most characteristic use was not in fact for ministers, serving or not, but for political enemies of the current administration. Captain Henry Vaughan, Dr John Elliot and Captain Frederick Mole, Sir Adam Blair, Dr Grey were impeached in June 1689 for disseminating ‘a seditious and treasonable Paper, printed, and intituled, A Declaration of King James II’. The commons voted to impeach a long list of people in January 1697, headed by Lord Belhaven, who were investors in the Scottish East India Company . (Since the English parliament had no jurisdiction over Scotland it is hard to see what the case was for the impeachment, though it was true that the relevant meetings had taken place in London.) The notorious impeachment of Dr Henry Sacheverell, a Tory clergyman who liked to bask in public, especially female, attention, in 1710 was a patently political attack on a controversial ideologue. It resulted, not surprisingly, in ignominious failure. Impeachment was the vehicle used for the prosecutions of the English and Scottish peers involved in the 1715 and 1745 rebellions. But it is difficult to see the political reasons for the impeachment of John Goudet and numerous others in May 1698 for trading with the French and smuggling French silks into England during the recent war.

And when it comes to ministers far more were impeached after they left office than before it. The prosecutions of Clarendon in 1667, the earls of Salisbury and Peterborough in October 1689, of Lord Somers, the Earl of Orford, and Lord Halifax in 1701; the earl of Oxford and Viscount Bolingbroke in 1717 all occurred after they had ceased to hold office. Warren Hastings had already resigned from his post as Governor of Bengal three years before his impeachment began in 1788.

Could you be impeached more than once?

There was no reason why not, though it was pretty unusual. There were two attempts to impeach the first Earl of Clarendon. Many thought the first of them, launched by the earl of Bristol, a political rival in decline, to be a bit of a joke. The second, in 1667, was much more serious, and though it got nowhere, it resulted in a deepening political crisis that ended up with Clarendon going into exile.

Impeachment proceedings were started three times against Thomas Osborne, Earl of Danby and then Duke of Leeds. Danby was lord treasurer and Charles II’s leading minister on the first occasion, in 1675. The attack on him was as much in relation to his promotion of an aggressive policy against religious dissent. The second, far more serious, was in 1679, when the revelation of his request to the French government for a subsidy, made through the ambassador in Paris, exploded into a political situation already a tinderbox as a result of the ‘Popish Plot’ claims. The third came in 1695 after he had, much to the resentment of his many political enemies, become an influential minister for the second time, in the regime of William III. Admittedly none of these impeachments actually came to a formal trial, though the second occasion came close.

Why were impeachments so rarely successful?

The early spectacular successes against Sir Giles Mompesson (1621), Francis Bacon, the earl of St Albans (1621) and Lionel Cranfield, earl of Middlesex (1624) give a false impression of the effectiveness of impeachment. Most ministerial impeachments were opportunistic political attacks. Their promoters cannot have seriously expected them to succeed: indeed, impeachment proceedings are often best thought of not as serious attempts to prosecute someone, but a move in a more complex political game, designed to distract from other concerns or to give publicity to the charges. An obvious case was the prosecutions of the Junto lords in 1701: commons sent no managers to prosecute the trial before the Lords for the impeachment of Lord Somers for being instrumental in agreeing the partition treaty of 1698

They were unlikely to succeed because impeachment was a curious hybrid between a political process and a legal one. Once it had become fully established in the 1620s it was regarded as a proper legal process, with due respect to process and to evidence. The great eighteenth century jurist Sir William Blackstone described it as ‘a prosecution of the already known and established law… a presentment, to the most high and superior court of criminal jurisdiction, by the most solemn grand inquest of the whole kingdom’. Impeachment proceedings were frequently therefore bogged down in legal argument. A common issue was over the definition of treason, which the commons managers of impeachments would often try to make as broad as possible, to cover policies they regarded as out of order. But members of the House of Commons, let alone of the House of Lords, would usually treat such claims with scepticism. The impeachments of the Earl of Strafford in 1641 and the Earl of Clarendon in 1667 disintegrated in part at least over the issue. Clarendon was impeached eventually on a charge of treason, because of a claim that he had provided secret information to the French court; but the problem then was that there was no evidence to substantiate it. Even so, formal restrictions on the definition of treason in impeachments could be resisted: the Treason Act 1695laid out some procedural safeguards in treason trials, but these were not to extend to impeachments, despite some attempts when the bill was first debated in 1691 to include it.

The great majority of impeachments never proceeded to a formal trial in the Lords. Clayton Roberts calculated that out of 57 ministers, judges, public officials and clergymen impeached for ‘high crimes and misdemeanours’ or similar charges between 1626 and 1715, only five were brought to trial and judgement. Roger Manwaring, a clergyman whose sermon apparently dismissing parliament’s right to do anything other than gracefully acquiesce to the king’s financial demands, had caused outrage in 1628, was fined £1,000, imprisoned during the pleasure of the lords, and permanent disability from holding any ecclesiastical dignity or office (though by 1633 he was Dean of Worcester and by 1636 Bishop of St David’s). Sir Robert Berkeley, one of the judges who had ruled in the king’s favour in the ship money trial of 1638 was impeached in 1641, though not brought to trial until 1643, when he was fined £20,000, disabled from holding office and imprisoned. Sir Thomas Trevor, another ship money judge, was also tried in 1643, and fined (only £6,000), but was allowed to continue as a exchequer judge. Sir Richard Gurney, the royalist lord mayor who ordered the proclamation of the king’s commission of array in London in 1642, was immediately impeached, deprived of office, fined, and imprisoned. The last was Henry Sacheverell, whose full-dress trial ended in a damp squib, with his suspension from preaching for three years. After 1715 impeachments were rarer, though more likely to come to trial. There are only three cases of ministers or former ministers being impeached in the eighteenth and nineteenth centuries: Lord Macclesfield, Hastings, and Lord Melville, and all of these did come to trial, although only in the case of Macclesfield did it end in a guilty verdict.

If you weren’t able to impeach, or didn’t want to, could parliament disqualify someone from office?

Alternative forms of action to impeachment to neutralise a minister did exist. A very basic one was the address to the crown for the removal of the person from office, and from his counsels for ever (or some such phrase). It was used, for example, against the Duke of Buckingham in 1674: ‘That an Address be presented to his Majesty, to remove the said Duke of Buckingham from all his Employments that are held during his Majesty’s Pleasure, and from his Presence and Councils for ever’. The king was under no obligation to agree to such requests, and often did not, though the political costs of doing so might be high.

The more drastic alternatives to impeachment were statutory processes: passing an act of parliament to enact specific penalties against an individual or individuals. There are (or were) two types: acts of pains and penalties and acts of attainder. Attainder was used where the charge was treason or felony, and the likely penalty death and forfeiture of property. Lady Cowper said in 1820 during discussions of the bill of pains and penalties in respect of Queen Caroline that ‘it sounds to the ignorant as if she was going to be fried or tortured in some way’; but neither was in fact involved. Pains and penalties were a similar statutory process applied in lesser cases. Both were – rightly enough – regarded with considerable nervousness. As Blackstone said they were processes ‘to all intents and purposes new laws made pro re nata, and by no means an execution of such as are already in being’. The eighteenth century clerk of the House of Commons, John Hatsell, admitted that they could be ‘an engine of power’, and ‘in the reign of bad princes’, had been ‘frequently abused to the oppression of innocence’, though he argued that they could have their uses. Hatsell underlined, though, how dubious they could be when he suggested that they could be justified

‘if the crime is of a nature and magnitude deserving a punishment, in the particular case, far beyond what has by the law bee deemed sufficient in similar but less atrocious misdemeanours; — or if the rules of admitting evidence, or others forms, to which the Judges in a court of law are boudn to adhere, would preclude the execution of justice upon offenders, whose imprisonment or banishment from the country were become a necessary sacrifice to the order and well-being of the public at large’.

Bills of pains and penalties were commonly used to send their subjects into banishment (as for example in the case of the Jacobite conspirator Francis Atterbury, Bishop of Rochester, in 1723), or submit them to perpetual imprisonment (as in the case of a number of regicides in 1661). But even if they were not subject to the same rules of evidence as impeachment trials, they were far from a certain way of disposing of the politically inconvenient.

The case of the phenomenally rich banker and cashier of the excise Charles Duncombe in 1698 is an interesting example. Duncombe was closely politically associated with the Tories, and had fallen out with the Whig Junto-dominated government in. There isn’t much doubt thought that he was guilty of fraud and corruption on a massive scale. His prosecution was not taken down the route of impeachment because of worries that ‘his money and [their] lordships’ tricks’. Instead, a bill of pains and penalties was selected, though it failed for (allegedly) precisely the same reasons: the lords voted against committing the bill by a single vote, which was attributed to Duncombe calling in favours from some friends and bribing others (‘a golden sacrifice’). Duncombe was eventually prosecuted more conventionally in King’s Bench, though there, too, he was acquitted as a result (allegedly) of both political connections and bribery (he took the jurors to a ‘noble dinner’ afterwards, and gave them five guineas each).

Bills of pains and penalties were used to punish the Directors of the South Sea Company in 1720 and to incapacitate them from holding office; to disqualify from office Thomas Bambridge, the warden of the Fleet prison, in 1728, after numerous abuses had been discovered in his conduct, and for disqualifying from office the provost of Edinburgh, held responsible for failing to  stop the lynching of the Captain of the city guard, John Porteous, in 1736. The device was dragged out in an attempt to deprive Queen Caroline of her status as queen in 1820, but was abandoned by the government. The last attempt to pass a bill of pains of penalties seems to have been in 1869, as a way of removing the pro-Fenian Mayor of Cork from office, a move criticised by Disraeli as unconstitutional.

The last act of attainder which was effectively a trial was the process against the Jacobite conspirator Sir John Fenwick in 1696, in the aftermath of an assassination attempt on William III. The attainder process was meant to make up for the fact that one of the two witnesses required under English law to prove treason had, by the time of his trial, scarpered, making a conventional prosecution impossible. There were plenty of people who regarded such a prosecution as very dubious, and the government succeeded in getting the bill through both houses only by the skin of its teeth, and by dint of a good deal of bullying. Fenwick’s trial showed that attainder was no longer regarded as a respectable process, remotely respectful of the rule of law. Already by the late seventeenth century attainders were normally passed in respect of someone who had fled justice: they said that their subject would be subject to the penalties of high treason unless he (no shes were involved) surrendered himself by a certain date. The last such acts were passed in 1746.