"high Crimes and Misdemeanors" as a Term of Art

In the interpretation of enacted law terms of art, for example, “third degree of consanguinity,” have a special place.  Just how special is debated: the degree of the specialness, the ways in which are special, and the special methods for unpacking their meaning. 

The term of art status of “high Crimes and Misdemeanors” may become salient.

The phrase looks like a term of the legal craft. On the North American continent it would never have tuned up in general conversation, at least prior to 1787 or so. Parsed word by word, its meaning would have been obscure. As it contained two words familiar from criminal law, however, anyone running across it would likely have asked the nearest lawyer, “Say, just what does this mean?” (It is actually a pretty good rough test of a legal term of art that people tend to turn to lawyers for its explication.)

In the case of “high Crimes and Misdemeanors,” an American lawyer would have said that, despite its “crimes” and “misdemeanors,” the phrase as a whole was without application in the legal practice of our former British colonies or the newly independent states. Yet, during the Convention and ratification periods, most lawyers, and a fair number of educated, newspaper reading layman, would have known that the phrase was used in impeachment cases in the British Parliament, and would been aware of the then ongoing and well reported impeachment of Warren Hastings for alleged misconduct as a high British official in India.

So, at least tentatively, the 1787-89 citizenry should have inferred that the phrase was a technical one from British parliamentary history, a subject for which few among them could claim great expertise. It is not unprecedented for legislators to include in the text that they are enacting a term of art, knowing it to be a term of art, but without themselves having mastery of its technical details.

An air traveler arrives at immigration control with a high fever, is taken to a secure hospital, and is held after recovery under a statute mandating quarantine for a certain number of days for Ebola cases. Her lawyer wins a habeus corpus hearing upon testimony that, although her symptoms were very like Ebola, the patient had been infected with the Lassa virus, not Ebola. Whether the legislators who wrote and voted upon the statute would have preferred a Lassa patient to have been longer held in quarantine is irrelevant. What they enacted was an “Ebola quarantine,” not an “Ebola and other scary tropical diseases quarantine.”

So, in drafting statutes or constitutions containing technical terms, the legislators put themselves at a certain risk. The point of words of art is to make use of a division of labor. The experts in the art may have the final say, and that say may or may not be what the legislators would themselves have said were they fully briefed on all the particular details. Could an arcane meaning of “high Crimes and Misdemeanors,” surfaced by historical linguists, complicate an impeachment debate in the House of Representatives, should there ever be such a debate? In the end, I think this should not eventuate – for reasons that follow. 

For these purposes I am going to recruit an appropriate expert with whom a hypothetical member of a state ratifying convention might have discussed the meaning of “high Crimes and Misdemeanors.”  Imagine a very hypothetical neighbor of our ratifier who was omniscient with respect to the then existing records bearing on the pre-ratification use of the phrase “high crimes and misdemeanors.” (That is he had in his library such then published works as the first volume of Hatsell’s Precedents of Proceedings in the House of Commons, but also, and far beyond that, had access to all the still existing original records and unpublished compilations of both houses of Parliament. Don’t ask me how.) 

He had a complete command of all documents existing somewhere in 1887-89, but no time machine to go back and actually observe Parliament, or peruse documents destroyed before 1887. So his beliefs as to the historical use of “high crimes and misdemeanors” was compendious, but incomplete, and could even be inaccurate at points. He had, in other words, all the physical evidence of usage that an historical linguist could possibly have had at that period. No linguist or historian of our own time could have better evidence going to the then meaning of “high Crimes and Misdemeanors.”

Here are some of the things of which this neighbor could have informed the ratifier, as I have inferred from, the appendix, “English Impeachment Trials,” of Simpson, A Treatise on Federal Impeachments, (Philadelphia, 1916), a source which, if less complete than the materials upon which the hypothetical expert relied, is more convenient. 

“High crimes and misdemeanors” and, its spelling and capitalization variants, does not turn up except in accounts or secondary reporting and discussion of proceedings in the British Parliament. There it formed all or part of the general, official charge in over 30 House of Commons impeachments or attempted impeachments up through 1789. Some of these proceedings were initiated but never voted in Commons. Several suffered what we would call “death in committee.” The first use of “high crimes and misdemeanors” dates from at least as far back as 1386, and one, as already mentioned, was in progress during the Convention and ratification period.

Our phrase was not the only one used to express the general charge in a parliamentary impeachment proceeding. Also appearing were:

               

                Treason

                High Treason

                Treasons, Felonies, and Mischiefs           

                High Treason and other great and enormous Crimes, Offenses and                           Contempts

                Divers Great Misdemeanors and Malicious Carriages

                Misdemeanors, Misprisions, Offenses and Crimes          

                Treason and other High Crimes

                High Treason and other great Crimes and Misdemeanors

                High Treason and other great Misdemeanors

                Misdemeanors in his episcopal office

                High Crimes, Misdemeanors and Offences

                Crimes and Misdemeanors

The early cases suggest that Commons kept casting about for phrases of criminal law flavor to express a high degree of culpability on the part of the accused who were, for the most part, the political enemies of the majority in that house.

Impeachment fell into disuse in the 15^th and 16^th centuries, largely replaced by attainder, but came roaring back in the struggles between the Stuarts and Parliament in the 17^th and, reaching into the 18^th, especially against the remaining Jacobites. In the course of this history “high crimes and misdemeanors” became a common form of general impeachment charge, as a milder alternative to “treason” and “high treason,” although sometimes combined with one of these.  

Our expert might have wanted to sound a note of caution about the records. In addition to frequent omissions and gaps, even their accuracy can’t always be relied upon. For example, what looks as if it were one single impeachment has its charge in some documents as, “Treasonable and other Crimes of [sic] High Misdemeanors,” while in others it was, “Treason and other high crimes and misdemeanors.” It would not be too surprising if some barely paid clerk might write down “high crimes and misdemeanors” because that was a common charge – without checking whether the charge was exactly so worded in the case he was summarizing.

Of those 30 or so impeachments for “high crimes and misdemeanors” only in the neighborhood of 10 reached convictions. This is significant because at trial the members of the House of Lords would have understood themselves to be judges of law as well as of fact. So they could have acquitted if they thought that the specific charges alleged by the Commons, although well evidenced, did not actually constitute high crimes and misdemeanors.

Using the parliamentary reports to determine what did and what did not fall within “high crimes and misdemeanors” is also made difficult by the reports' frequent failure to record on which counts the defendant was convicted. They never, or almost never, tell whether counts acquitted were defective as a matter of law or failed for insufficient evidence.

Of all the cases for which our hypothetical expert was informed, the Warren Hastings impeachment is of particular interest, not only because the Conventioneers and the ratifiers would have had some awareness of it, but because its coverage was particularly detailed. The specifics of the high crimes and misdemeanors charged against Hastings, in a many hours long speech by no lesser a personage than Edmund Burke, sounded in corruption, involvement in murder, insubordination, and what, although dressed up in more colorful language, seems largely a matter of “bad” policy judgments.

What, on the basis of all the documentary evidence, would our hypothetical expert have said about the meaning of “high Crimes and misdemeanors”? First, he would have confirmed that the phrase was a technical one of British Parliamentary practice. He would have added, however, that it was an unusually ill-formed and poorly-behaved technical phrase.

The specific charges made under its rubric are a motley collection. Across the centuries, these accusations included garden variety bribe taking and other corrupt practices, insubordination (frequent), seditious speech (especially slander of the Commons, also frequent), “wrongly” advising the king (very frequent), placing the communion table too high (a Church of England Bishop), being too friendly to the French, being less than enthusiastic about the Glorious Revolution, and criticizing the Toleration Act.

Obviously, many, if not most, of these accusations would be inconsistent with the US Constitution, and so could not be drawn upon in constructing the meaning of “high Crimes and Misdemeanors” in that document. He would, presumably, draw from the Constitution itself that treason and bribery were among the "high Crimes and Misdemeanors" as the Constitutional language is "Treason, Bribery and other high Crimes and Misdemeanors." The inclusion of treason and bribery as falling within high crimes and misdemeanors would not follow all of the parliamentary practice, which often separated them out, especially treason. It would, however, be well within the general tenor of that practice.

Upon this evidence our expert would probably forego any attempt to delineate exactly what conduct beyond treason and bribery falls within and what without the extension of the meaning of this phrase. It is just not like “burglary” or “ex post facto” or “consanguinity in the third degree,” for which a contemporary legal dictionary, were there one, would have contained an illuminating and compact definition, uncontroversial among those learned in the law.

Our hypothetical ratifier might pump our hypothetical expert for a little more guidance:

 Ratifier:  You have told me about the use of the whole phrase “high Crimes and Misdemeanors” in parliamentary practice, but don’t the individual words and sub-phrases have some meanings, and wouldn’t knowing those meanings help me know what I am voting on?  

Expert:  I think “high Crimes and Misdemeanors” really did function primarily as an indissoluble unit. It is in that respect like the “Holy Roman Empire,” which, per Voltaire, was neither holy, nor Roman, nor an Empire. However, even for the HRE, we gain something in our understanding of the whole phrase by knowing the meaning of the parts.

             As an initial matter, I take “high Crimes and Misdemeanors” to be equivalent to “high Crimes and high Misdemeanors” not “high Crimes and [garden variety] Misdemeanors.” “high crimes,” as a phrase on its own doesn’t much appear, and is not a term of legal art. It would be natural to think of a “high crime” as a serious crime, although more technical vocabulary for seriousness of crime was “capital”, “felony” and “unclergeable.” 

             There was a distinction between “petit treason” (treachery against an ordinary superior to whom one owed loyalty) and “high treason” (treachery against the crown). By an easy extension, a “high crime” could be used to communicate the idea of a crime against the state.

             “Misdemeanor” was used both for crimes less than felonies and for serious non-criminal wrongs. There were “high misdemeanors,” established by British statute, including , for one example, attempting to injure or alarm the Queen with firearms or explosives and, for another, advice to the Queen on an ecclesiastical appointment from the mouth of a Jew or Catholic.  Also high misdemeanors were treasonable “mere words” (falling short of conspiracy or solicitation to treasonous action). Challenging the royal succession was high treason under Elizabeth (13 Eliz. c. 1), became a high misdemeanor after her death, only to be raised once again to high treason in the time of Queen Ann (6 Ann. c. 7) (Bk 4, Ch 6). Receiving stolen goods and prison break were also high misdemeanors. (Blackstone, Commentaries on the Laws of England, Bk 4, Ch 10.) The Articles of Confederation had an extradition clause for those charged with "treason, felony, or other high misdemeanor."

         You are not, in thinking about whether to vote to ratify, going to consider the wisdom of impeaching for receiving stolen goods. So what I think a look at the components of the phrase should do for you is to reinforce the conclusions to be drawn from the historical use of “high Crimes and Misdemeanors.” The conduct must be thought serious and harmful to the state.

         Incidentally, vis-à-vis reading “high” to go towards “harmful to the state,” we have some additional, very recent, evidence. The Convention’s draft clause read “other crimes and misdemeanors against the United States.” The "Committee of Stile and Arrangement", charged to improve the readability of the document without altering its meaning, substituted “high” for “against the United States."

         I do not cite this editorial change as a matter of framer intent or expectation, which is not my business as an historical linguist. I take the committee’s action as evidence of the meaning of the text. Its members were thought to have a particularly acute feel for the English language, and they must have taken the phrase they substituted to be effectively synonymous with that of the draft.

         Beyond these considerations, I doubt that the turn to the individual words and sub-phrases of “high Crimes and Misdemeanors” will give us any further guidance as to its extension as it appears in the proposed constitution.

I think our, just quoted, hypothetical expert and our hypothetical ratifier would conclude that, although there was a technical meaning attached to “high Crimes and Misdemeanors,” that meaning was limited to its being impeachment-appropriate conduct seriously detrimental to the state. In the context of our Constitution, establishing a democratic republic with separation of powers, impeachable conduct would have to support the legislative branch’s removal from office of the president, vice president, or civil officers of the national government. Beyond that neither detailed semantics nor exhaustive historical research would have taken our ratifier very far or would now take us very far.

My conclusion here is similar in effect, if different in theory of interpretation, from that of Tribe and Matz: 

         Unlike some scholars, however, we don’t assign any further meaning [beyond “against the state”] to this choice of language. While “high Crimes and Misdemeanors” was a term of art dating to 1386, and had thus accumulated centuries of intellectual baggage, there’s no reason to think that the Framers had all that in mind. . . the colonists – and thus the Framers – transformed impeachment when they ripped it from its English roots.

 (Laurence Tribe and Joshua Matz, To End A Presidency: The Power of Impeachment (2018), p. 40.)

I don’t think what the Framer’s “had in mind,” in the sense of their intentions, matters. Their intentions were not enacted. Their language, however, was. So it is crucial how they, and other speakers of American English, should have understood the technical language incorporated into the Constitution. The parliamentary “baggage” shouldn’t be ignored any more than should the virologist’s understanding of “Ebola.”  The difference is that the virologist can give us a set of precise criteria for making the in/out call on whether an illness is Ebola. Historical linguists, after carefully going through the baggage and tossing out the clearly unconstitutional bags, can, I think, provide only the very general, and inevitably vague, guidance set out above. I regard it as an accident that such guidance corresponds pretty well to what Tribe and Matz would offer Congress.