October 17, 2005

Continuities and Divergences in US and English Constitutional History

Constitutional history in the Anglosphere is a unity, and an ancient unity:

... there is an absolute continuity between medieval and modern constitutionalism. When President Nixon got into his helicopter and left the White House lawn and his office, he did so because he was afraid he would be impeached. Impeachment in the American constitution does not bear an accidental or trivial relationship to that which brought down Michael de la Pole, earl of Suffolk, chancellor of England in 1386. It was the same procedure and the descent can be traced without any shadow of doubt.

James Campbell, The Anglo-Saxon State.

F.W. Maitland noted as long ago as 1888 that impeachment in England had effectively died out. He noted that there had been only one impeachment in the 19th Century, and that back in 1805. The English procedure was akin to that provided in the U.S. Constitution. The House of Commons initiated an action against one of the king’s officers, who was then tried by the full House of Lords, sitting as a court. Unlike impeachment under the U.S. Constitution, which expressly restricts the penalty to removal from office, the English impeachment allowed any penalty the Lords saw fit to impose, including death. As we saw in the Clinton impeachment, the U.S. Senate acted in the unusual capacity of a court, as provided for by the Constitution, a vestige of its origins as an analog of the House of Lords, as the Founders intended.

Maitland noted that:

It seems highly improbable that recourse will again be had to this ancient weapon unless we had a time of revolution before us. If a statesman has really committed a crime then he can be tried like any other criminal: if he has been guilty of some misdoing not a crime, it seems far better that it should go unpunished than that new law should be invented for the occasion, and that by a tribunal of politicians and partisans; for such misdoings disgrace and loss of office are now-a-days sufficient punishments. Lastly a modern House of Commons will hardly be brought to admit that in order to control the king’s advisers it needs the aid of the House of Peers. However, there the old weapon is – an accusation by the commons of England at the bar of the House of Lords.

(Maitland, The Constitutional History of England.) I do not believe there has been any other impeachment in Britain since. So, this “old weapon” has most likely fallen into permanent desuetude. I suppose there is the remote prospect that an appointed House of Lords might be considered a more appropriate venue for an impeachment than a hereditary one, making a reappearance of this practice theoretically possible. Of course, if Britain were to go to an elective House of Lords, any power of impeachment would probably be expressly provided for by the enabling statute or written Constitution, whichever was employed. Retention of the right to summarily impose the death penalty on erring officers of the Crown is unlikely to be provided for, if the current soft-hearted attitudes continue to prevail. Not that there is anything wrong with that.

Our written American Constitution has allowed us to retain more of these ancient vestiges than the English one, curiously enough. The Second Amendment is a good example. The provision in the Bill of Rights of 1689 which it was based on holds that those "...subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law" -- is now a dead letter. There is no way for a provision to "drop out" of the U.S. Constitution, short of amendment. A court may say that a provision is obsolete, but a later court may find a use for anything which is still there. "Young" America has a more "Ancient" Constitution than "Old" England, and has retained more of its freedom as a result.

(Cross-posted on ChicagoBoyz.)

Posted by Lexington Green at October 17, 2005 03:58 PM

A useful weapon, impeachment, but does not carry the capital punishment. Furthermore, you do have to prove the case of subverting the law of the land. Thus the Long Parliament found that it could not impeach Thomas Wentworth, Earl of Stafford in 1641 because he had not really subverted the law of the land. And, anyway, he would not have been executed. So, they brought in a Bill of Attainder, thus proving that there is nothing new about political shenanigans.

Posted by: Helen at October 17, 2005 06:22 PM

The only political power center in the UK is the House of Commons, so against whom would impeachment be used? If a majority of MP's wanted Blair or one of his ministers gone, wouldn't either a party caucus or a vote of no confidence send him on his way?

The Lords have seen their little influence reduced further under Labour, and the Queen reads the speech the PM hands her, without edits or comment. Would they need impeachment to remove a judge, or is there another mechanism in place? That's about the only possible need I can think of, offhand.

Posted by: Mitch at October 18, 2005 05:04 PM

I think you have to imagine extreme scenarios -- maybe a national emergency where a corrupt or traitorous PM refuses to resign or to fire a dangerous or corrupt cabinet member, and other methods are too slow in light of whatever the emergency is. Agreed, fanciful. And agreed that, generally, the fact that there is no real separate executive in the UK means the mechanism is not really needed there anymore. We rarely use it here, of course, but it is good to have it in the arsenal. It is in the background as a "last straw" weapon.

The recent use against Clinton should not have happened, and was mishandled, alas. A woman lawyer of my acquaintance, with a couple of drinks in her, gave a vivid demonstration of how she have conducted the proceeding. She would have, among other things, had Monica Lewisky stand up and going date by date through every meeting between her and the president, and said, "Ms. Lewinsky, on that date, show the Senators every place the President touched you", and make her put an X with a marker on a life-sized female silhouette. That would have been one Hell of a scene, C-Span's finest hour, maybe. That exhibit would then have been left standing throughout closing argument, when the Senators were told that they had to decide whether Clinton had perjured himself. The exhibit would have ended up as a t-shirt, I bet.

Posted by: Lex at October 18, 2005 05:19 PM

What would Blair be impeached for?

Posted by: Helen at October 18, 2005 06:01 PM

I don't think he can be. I wish he could be beaten in an election, but that is obviously too much to ask.

Posted by: Lex at October 18, 2005 11:02 PM

Drop out? It's been hidden by the 53 prevention of crime act, and 69 firearms act. It is now called Lawful Authority. Problem is no one knows about it and possesion of an offensive weapon without Lawful Authority- well the Judges do not like you to use that defence. But it has been proven in the M. Burke Judgment http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1999/923.html&query=Michael+James+Burke&method=all
that we all have Lawful Authority particularly when doing our duty at common law to maintain the Queens peace. Most lawyers are unaware of this.
So I wonder what means we can use to hold an mp to account? It should be there somewhere....but where?
Steve Black

Posted by: Steve Black at October 19, 2005 10:42 AM

Steve, thanks for these details. Life is easier for Americans, with our Second Amendment, and even stronger language in many state Constitutions. Indiana's, for example, Sec. 32 says "The people shall have a right to bear arms, for the defense of themselves and the State." This has been unequivocally interpreted as a personal right to self-defense.

Posted by: Lex at October 19, 2005 12:24 PM