Bob Ryan
Bob Ryan

High Crimes and Misdemeanors in 1787

When the Constitutional Convention was held, the language argued and debated over did have common wording from their day, including high crimes and misdemeanors. Unlike today, misdemeanors were not considered criminal. There was a distinction between criminal actions and misdemeanors.

The Constitution limits those who can be impeached for high crimes and misdemeanors, since the high part covers specific offices. From Wikipedia, “the legal and common parlance of the 17th and 18th centuries of “high crimes,” is activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons.” In the Constitution, those who can be impeached are clearly written by the offices they hold.

https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors

The crime part is self-explanatory, but misdemeanor seems to have lost the original intent as the founders saw it. From Merriam-Webster, “Misdemeanor comes from demeanor, which means “behavior toward others” or “outward manner” (as in “his quiet demeanor”). Demeanor derives from the verb demean, which means “to conduct or behave (oneself) usually in a proper manner”

So, because it developed from the verb that means “to conduct or behave (oneself),” misdemeanor literally means “bad behavior toward others.” This led to parallel usage as both general bad behavior and legal bad behavior.”

https://www.merriam-webster.com/words-at-play/misdemeanor-word-history-not-always-a-crime

Nathan Bailey was a rather renowned English philologist and lexicographer who would have been well-known to the founders. He wrote several dictionaries, including his Etymological Dictionary published in 1721. On page 546 from the link to his dictionary, misdemean’our (the spelling of the time) lists just one definition, “[of mis and demener, F.] a behaving one self ill; an Offence of Fault.”

https://archive.org/details/universaletymolo00bail/page/546/mode/2up

The variation of the American spelling of misdemeanor as it appears in the Constitution did not alter the meaning of the word as it was defined and understood during their time.

The dictionaries of their day helped to understand the words, but it was Sir William Blackstone who helped to understand English Common Law and shaped, perhaps more than any other source, American law in its infancy.

His widely read Commentaries on English Law, when referencing misdemeanors, was always preceded by crimes and, which showed a distinction between the two. The crime was based on something that violated the law. Misdemeanor was based on behavior.

From the 1st Volume of his Commentaries, on page 118, is the first time Blackstone makes a clear distinction between crimes and misdemeanors:

“Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors.”

https://archive.org/details/lawsofenglandc01blacuoft/page/118/mode/2up

A breach of public rights was not always criminal, since to commit a crime required a violation of a specific law.

From his 4th Volume of his Commentaries, on page 5, there is even greater distinction between the two:

“A crime, or misdemesnor, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours; which, properly speaking, are mere synonymous terms: though, in common usage, the word, “crimes,” is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler names of “misdemesnors” only.”

https://archive.org/details/lawsofenglandc04blacuoft/page/4/mode/2up

When Blackstone wrote of misdemeanors as being of less consequence, it was a reference to them as not being violations of the law. When synonymous is used, the distinction is one of character. The character of someone in power who violates the law remains poor even when not in violation of the law.

In several places of volume 4, Blackstone uses ‘misprision’ as an instance where something can be either criminal or a misdemeanor, and does include the definition:

“Misprisions (a term derived from the old French mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offences as are under the degree of capital, but nearly bordering thereon: and it is said that a misprision is contained in every treason and felony whatsoever; and that, if the king so please, the offender may be proceeded against for the misprision only.”

https://archive.org/details/lawsofenglandc04blacuoft/page/118/mode/2up

Blackstone breaks misprision down to two categories, negative and positive. The negative is concealment and positive is the commission.

From his 4th Volume of his Commentaries, on page 121:

“1. The first and principal is the mal-administration of such high officers as are in public trust and employment. This is usually punished by the method of parliamentary impeachment: wherein such penalties, short of death, are inflicted, as to the wisdom of the peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability.”

https://archive.org/details/lawsofenglandc04blacuoft/page/118/mode/2up

Maladministration was not a violation of the law, which fell to the category of misdemeanor. An official could be removed for this reason alone, without violating a single law.

In essence, when looking at crimes and misdemeanors from the perspective of the founders, a crime was considered any violation of English Common Law, and misdemeanor covered the bad behavior and poor conduct.

Every delegate at the Constitutional Convention were familiar with Blackstone’s Commentaries. Those delegates argued about everything, including the ability to impeach. Originally, maladministration was used after other high crimes, which Madison successfully argued to the clearer and broader use of misdemeanors, which included maladministration.

They may have argued over everything, but no one argued about misdemeanor not having clear meaning. Madison’s journal recorded the events better than anyone else in attendance. Had anyone mentioned misdemeanor as something that lacked clarity, he would have recorded it.

The Miller Center includes a speech Madison made at Congress from an article entitled Impeachment in the 1780s following the ratification of the Constitution on June 16, 1789:

“When we consider that the first magistrate is to be appointed at present by the suffrages of three millions of people, and in all human probability in a few years time by double that number, it is not to be presumed that a vicious or bad character will be selected. If the government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the state, I think it may with truth be said to be the case under the constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate, that the instances will be very rare in which an unworthy man will receive that mark of the public confidence which is required to designate the president of the United States. Where the people are disposed to give so great an elevation to one of their fellow citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times; and that at all events he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree perhaps a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.”

https://millercenter.org/the-presidency/impeachment/impeachment-1780s

Being, “corrected by the particular mode of conducting it,” was a reference to the Electoral College members. There weas an expectation the Electors would consist of people who better knew the character of those seeking to become President of the United States than the general electorate.

Madison’s speech makes clear that vicious or bad character would be enough to be an impeachable offence. He directly correlated violating any crime and misdemeanor as an impeachable offence. Bad character alone would have been grounds for removal.

Impeachment was not written for the purpose of a criminal indictment, but solely for the removal of those few who the Constitution allows for. There is nothing in the Constitution that allows for Congress to criminally indict and prosecute any President or any other civil officer listed. It is a means of removal from office when action must be taken prior to the next election or death of federal judges.

The distinction between a crime and misdemeanor may have been lost to time, but there was a clear difference when the Constitution was written. When that time is used as the sole reference of what constitutes an impeachable offence, it is clear that no crime must be committed for an impeachment to be justified.

There have been far too few impeachments in the history of the United States. The first successful impeachment and conviction was Judge Pickering from 1803 to 1804, who had dementia and was often intoxicated. He violated no law, but did commit misdemeanors.

House.gov includes a list of all successful impeachments, to show just how rare it is.

https://history.house.gov/Institution/Impeachment/Impeachment-List/

Going back to Madison’s speech to Congress, “Where the people are disposed to give so great an elevation to one of their fellow citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times.” To put it succinctly, which Madison had some difficulty in doing, any crime and any misdemeanor is grounds for removal from office.

Those who can be impeached have no history of fearing legitimate impeachment, which is the reasons so many have put themselves and political ideology above the Constitution. Presidents have ignored the Supreme Court, such as the “Trail of Tears” or had the federal courts act outside their jurisdiction, such as the “Amistad Incident.”

The Ninth Circuit is the most overturned federal court in the United States, which has been that way for decades. The most serious Constitutional offenders who sit as federal judges should be removed from office due to their consistent failure as federal judges.

There has been no shortage of criminal actions taken by Presidents with even more showing the poor character that Madison made clear was impeachable with or without a crime being committed.

Based on the understanding of the founders who crafted the Constitution, President Biden should be impeached and removed from office for maladministration, which was included in Blackstone’s Commentaries as one of many misdemeanors known to those at the Convention and the states that ratified it.

The mishandling of the border and Afghanistan are two clear examples of maladministration among the many since he was sworn in. No American President is above the law, and they are expected to act with good character. A single violation of federal law or a single misdemeanor is an impeachable act. To not impeach is the failure of past and present Congresses.

The founders were quite clear on the intent behind high crimes and misdemeanors. All one has to do is a little research into the words as they were defined in their time and resources that influenced their writing, which does include Blackstone’s Commentary. To claim that not all violations of federal law or not violating any laws does not rise to the level of an impeachable offense is to ignore the vast resources available to know that any federal crime or any poor conduct is an impeachable offence.

About the Author
Bob Ryan is a novelist of the future via science-fiction, dystopian or a combination of the two, and blogger of the past with some present added in on occasion. He believes the key to understanding the future is to understand the past, since human nature is an unchanging force. As any writer can attest, he spends a great deal of time researching numerous subjects. He is someone who seeks to strip away emotion in search of reason, since emotion clouds judgement. Bob is an American with an MBA in Business Administration. He is a gentile who supports Israel's right to exist as a Jewish state. He is a Christian Zionist who knows God is calling His chosen home as foretold in prophecy.
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