Parliament has also impeached a good many officers for abuse of power, sometimes criminal, but oftentimes not. When the Constitutional Convention convened in Philadelphia in the summer of 1787, the English-speaking world was riveted by the commencement of impeachment proceedings against Warren Hastings, governor general of Bengal, on just such grounds. Few if any of the charges against Hastings were indictable crimes, but that was immaterial to Edmund Burke, the principal parliamentary prosecutor of Hastings. He said the charges “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”
Americans of the founding generation were familiar with the phrase “high crimes and misdemeanors” not merely because they were close students of the parliamentary history of the mother country, but also because both the American colonies and the early state governments had conducted impeachments of their own. For example, in 1774, just before the American Revolution, the Massachusetts colonial assembly impeached Chief Justice Peter Oliver for “certain High Crimes and Misdemeanors.” His offense? The decidedly noncriminal act of agreeing to accept a royal salary rather than the stipend appropriated by the Massachusetts legislature. The Oliver impeachment was a cause célèbre in both England and the colonies. John Adams is often credited with the idea of impeaching the judge. Among those voting to impeach Oliver were Sam Adams and John Hancock, as well as Nathaniel Gorham, who in 1787 was a delegate to the Constitutional Convention and chaired its early deliberations.
The phrase “high Crimes and Misdemeanors” entered the American Constitution because George Mason of Virginia was unhappy that, as the Constitutional Convention was drawing to a close, the class of impeachable offenses had been limited to “treason or bribery.” Mason wanted a much broader definition. He illustrated his point by arguing that Hastings’s offenses would not be covered by the proposed skimpy language. Mason’s first suggested addition—“maladministration”—was thought too expansive, whereupon he offered, and the convention accepted, that sturdy old English term of art “high Crimes and Misdemeanors.”
