What are ‘high Crimes and Misdemeanors’?

Against every effort in U.S. history to impeach a president, the president’s supporters have contended that the Constitution is too vague for anyone to know the meaning of “high crimes and misdemeanors.”

Politicians, pundits, journalists, lawyers and historians alike have argued that because the phrase “high crime” is not defined in the Constitution or by any statute or legal opinion of a federal court, it is impossible to know what meaning our Constitution’s authors intended.

All such assertions have been made either in error or with deceit. No one knows what a high crime is, who does not want to know and has not looked for the meaning, and it is not hard to find. Whether today’s politicians and pundits know the meaning of “high crimes and misdemeanors,” the Founders knew what it meant, and the literature from which they learned its meaning is still available to us, should we care to read it.

To find the meaning of “high crimes and misdemeanors” it is not necessary to dig through ancient legal tomes. It won’t be found there, anyway. It is found instead frequently used in the popular press on both sides of the Atlantic throughout the 18th century. Its meaning, like so much else the public ought to know, is in the newspapers.

According to a 1717 edition of The Post Boy published in London, Kilkenny Alderman Robert Connell was condemned in a resolution passed by the city for his “High Crime and Misdemeanour” of concealing the corporation books of the City of Kilkenny in an attempt to obstruct an investigation.

The Caledonian Mercury in Edinburgh reported in 1720 that an Act of Parliament made it a “High Crime and Misdemeannour, for any Person to Refuse, Discount, or Discountenance by an Over-Act, the Currency of Value of this New Species,” referring to a new issue of paper money.

In 1733, The Ipswich Journal reported that following riots earlier in the week, Parliament had passed a resolution declaring it a “High Crime and Misdemeanor” for people to collect in the avenues leading to Parliament and there menace, insult or assault members of Parliament.

In 1749, another case of sedition in Britain from four decades earlier was recalled for readers of The Penny London Post. That case involved two sermons authored by Dr. Henry Sacheverell that were printed in 1709 and considered by Parliament to have been “malicious, scandalous, and seditions Libels, highly reflecting on her Majesty and her Government; on the late happy Revolution, and the Protestant Succession, and both Houses of Parliament; tending to alienate the Affections of her Majesty’s good Subjects, and to create Jealousies and Divisions amongst them.”

For this Sacheverell was impeached of “High Crimes and Misdemeanours” by the House of Commons. He and his bookseller were arrested and imprisoned. The Commons denied them bail. The House of Lords where the case would have been tried refused to take any action until the Commons presented its articles of impeachment against the doctor and his bookseller, which for reasons not reported the Commons did not do, and the two men remained in jail for a month until Parliament recessed.

From 1746 to 1763, the British were engaged in the Carnatic Wars in India, where the British East India Company and the French East India Company competed for control of trade. A number of British newspapers in 1752 reprinted several acts of Parliament passed decades earlier making it illegal for British subjects to work with or hold an interest in any foreign East India company. One of those acts said in part, “And all his Majesty’s Subjects, (other than such as are lawfully authorized thereunto) going to, or found in the East Indies, are declared guilty of a high Crime and Misdemeanor, and are made liable to corporal Punishment, Imprisonment, or Fine, for the same, at the Discretion of such of his Majesty’s Courts of Record at Westminster, where the Prosecution for such Offence shall be commenced.”

On this side of the Atlantic, The South-Carolina Gazette reported in 1736, that George Clarke was accused in New York of a “High Crime” by Rip van Dam, who claimed Clarke had assumed the administration of the government there following the death of the governor without authority to do so and that he had no authority to adjourn the New York General Assembly.

The Pennsylvania Gazette that same year reprinted a report about a grand jury in Britain seeking to ascertain the name or names of the author, printer and publisher of what it believed to have been seditions and libelous papers reflecting on the king and the authority of the king’s government, presenting, it said, “the Author, Printer and Publisher of the said wicked, false, infamous and scandalous Libel, as guilty of a very high Crime and Misdemeanor.”

In 1769, the Maryland Gazette printed news received from Boston that the Massachusetts House of Representatives had “unanimously remonstrated against the Administration of Sir Francis Bernard, Baronet of Nettleham, Governor of the Province, as having been corrupt and arbitrary; and humbly petition’d the King that he may be for ever remov’d from this Government…. [Bernard] will certainly take his Departure from hence next Week, to answer before an awful Tribunal for high Crimes and Misdemeanors, having been the grand Instrument in promoting that Discord and Animosity which has for some Years past disturb’d the Repose of the S——-n, and threatened the Ruin of the whole British Empire.”

That last was published about one of the events leading up to the American Revolution, and the phrase “high crime and misdemeanor” can be found used by the American press with some frequency in those days.

The Maryland Gazette in 1774 printed news of Peter Oliver having been impeached of “high crimes and misdemeanors” by the Massachusetts House of Commons. Oliver was the chief justice of the Massachusetts Superior Court. In an effort to maintain their loyalty to the king the British government proposed raising the salaries of the Superior Court justices and having those salaries paid directly by the Crown. Oliver’s fellow justices declined the higher salaries, but Oliver accepted, and it was for this he was impeached.

Rind’s Virginia Gazette published the proceedings of Virginia’s House of Delegates in February 1775, among which was the passing of an act making the “tampering with any witness, in respect to his evidence to be given to this house, or any committee there of… the same is declared to be a high crime an misdemeanor.”

As reported in The Virginia Gazette in December 1782, the new State of Virginia made it a high crime and misdemeanor for any person to administer the oath of allegiance or fidelity to an alien enemy or British subject, or to grant to either a passport, or “to entertain, harbour, protect, aid or comfort, any such alien enemy or British subject.”

In 1786, Virginia made it a high crime and misdemeanor to set up a government in that state separate from or independent of the government of Virginia. This act can be found published in The Virginia Gazette of Feb. 8, 1786.

As vague and confusing as all of this might be to those who do not want to understand, there is nevertheless a common thread running through all of these uses of the phrase “high crimes and misdemeanors” and many, many more from the 18th and 19th centuries. That common thread is that in each case the misdeed committed was an act against the government or an act interfering with the government’s foreign policy.

The common law was divided between those acts that were injuries to property and those that were injuries to persons. The phrase “high crimes and misdemeanor” was a term of art meaning an act not against either property or persons, but against the sovereignty of the government. This is why in the U.S. Constitution it is coupled with treason and bribery, all three being acts taken against the government.

From Kilkenny Alderman Connell’s secreting away the city’s books to Justice Oliver’s acceptance of money from the Crown, each act impeachable as a high crime and misdemeanor was an act seen by the accusers as one tending to undermine the integrity of the government.

Normally, lawyers would not look to newspapers for a term’s legal definition. They research statutes and case law, but when it comes to the meaning of high crimes and misdemeanors, the meaning that can be gleaned from newspapers is the best we are going to get.

High crimes and misdemeanors cannot be defined by statute because the Constitution does not give Congress the authority to pass such a statute. If Congress were able to force its interpretation of a constitutional clause by passing statutes, it would have ripped the Constitution to shreds long ago.

The reason the definition of high crimes and misdemeanors cannot be found in case law is because cases of high crimes and misdemeanors are not tried in courts. There has never been a case put before a court of law in which the phrase could be used as a cause of action and thereby subjected to a court’s interpretation. In all cases of impeachment, the only court of trial in the U.S. has been the Senate, and in the United Kingdom, the House of Lords. Impeachments have been rare in both countries, and so far, the Lords has not found it necessary to define the term, and as said above, the Senate lacks the authority.

Ed. Note: Please notice this article is posted under Opinions, so don’t anyone jump me because it’s not reportage or because I’m writing from my own knowledge. Being a newspaper editor, some people seem to think I’m not supposed to know anything at all, but only repeat what other people tell me. Even more seem to believe I’m not supposed to have opinions either. In truth, this is not really an opinion piece or reportage. It is an argumentative essay pointing out the obvious to anyone willing to see it. There is a small bit of historical interpretation in it. Call that opinion if you want. The rest are facts. Besides demands that I never admit having any knowledge of my own and never form an opinion, the other complaint I sometimes get comes after I write anything that is not strictly local news, or “hyper-local” as our company brass likes to put it. To that I’ll argue this is local because I wrote it here. I’m posting it to The Vindicator’s website because I don’t have anywhere else to put it, and after 222 years, since Senator William Blount of Tennessee became the first person impeached by the U.S. House of Representatives, it’s high time someone straightened you people out on the meaning of high crimes and misdemeanors. It’s not that complicated. With all the overpaid, Ivy League educated lawyers in Washington, and all the overpaid talking heads in the national media, it shouldn’t be left to the editor of a small weekly newspaper in Liberty, Texas, to explain something like this, but here we are.