Impeachment Grounds: Part 3: Hamilton, Wilson and Story

Impeachment Grounds: Part 3: Hamilton, Wilson and Story

98-895 A
October 30, 1998
CRS Report for Congress
Received through the CRS Web
Impeachment Grounds:
Part 3: Hamilton, Wilson and Story
(name redacted)
Senior Specialist
American Law Division
Summary
This is a collection of selected background materials pertinent to the issue of what
constitutes impeachable misconduct for purposes of Article II, section 4 of the United
States Constitution quoted below. It includes excerpts from No.65 of the FEDERALIST
PAPERS by Alexander Hamilton, and from the writings of his contemporaries Supreme
Court Justices James Wilson and Joseph Story. It is the third of six segments that
together with footnotes comprise, Impeachment Grounds: A Collection of Selected
Materials, CRS Report 98-882.
The President, Vice President and all Civil Officers of the United States, shall be
removed from Office on impeachment for, and Conviction of, Treason, Bribery, or other
high Crimes and Misdemeanors. U.S.Const. Art. II, §4
The Federalist Papers
No. 65 (Hamilton)
“A well constituted court for the trial of impeachments, is an object not more to be
desired than difficult to be obtained in a government wholly elective. The subjects of its
jurisdiction are those offenses which proceed from the misconduct of public men, or in
other words from the abuse or violation of some public trust. They are of a nature which
may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries
done immediately to the society itself. The prosecution of them, for this reason, will
seldom fail to agitate the passions of the whole community, and to divide it into parties,
more or less friendly or inimical, to the accused. In many cases, it will connect itself with
the pre-existing factions, and will inlist all their animosities, partialities, influence and
interest on one side, or on the other; and in such cases there will always be the greatest
danger, that the decision will be regulated more by the comparative strength of parties
than by the real demonstrations of innocence or guilt,” THE FEDERALIST PAPERS, 396-97
(Rossiter ed. 1961).
James Wilson
Congressional Research Service ˜ The Library of Congress

CRS-2
“Impeachments were known in Athens. They were prosecuted for great and public
offences, by which the commonwealth was brought into danger. They were not referred
to any court of justice, but were prosecuted before the popular assembly, or before the
senate of five hundred. . . .
“It is evident that, in England, impeachments . . . could not exist before the
separation of the two houses of parliament. . . .
“We find the commons appearing as the grand inquest of the nation, about the latter
end of the reign of Edward the third. They then began to exhibit accusations for crimes
and misdemeanors, against offenders who were thought to be out of the reach of the
ordinary power of the law. . . .
“In the United States and Pennsylvania, impeachments are confined to political
haracters, to political crimes and misdemeanors, and to political punishments. . . .” I
WORKS OF JAMES WILSON [1790-1791], 425-26 (1967 ed.)
Joseph Story
“§785. As the offences to which the remedy of impeachment has been, and will
continue to be principally applied, are of a political nature, it is natural to suppose, that
they will be often exaggerated by party spirit, and the prosecutions be sometimes dictated
by party resentments, as well as by a sense of the public good. There is danger, therefore,
that in cases of conviction the punishment may be wholly out of proportion to the offence,
and pressed as much by popular odium, as by aggravated crime. From the nature of such
offences, it is impossible to fix any exact grade, or measure, either in the offences, or the
punishments; and a very large discretion must unavoidably be vested in the court of
impeachments, as to both.
* * *
“§796. The next inquiry is, what are impeachable offences? They are `treason,
bribery, or other high crimes and misdemeanors.’ For the definition of treason, resort may
be had to the constitution itself; but for the definition of bribery, resort is naturally and
necessarily to the common law. . . . Now, neither the constitution, nor any statute of the
United States has in any manner defined any crimes, except treason and bribery, to be
high crimes and misdemeanor, and as such impeachable. . . . It will not be sufficient to
say, that in the cases, where any offence is punished by any statute of the United States,
it may, and ought to be deemed an impeachable offence. It is not every offence, that by
the constitution is so impeachable. It must not only be an offence, but a high crime and
misdemeanor. . . .
“§797. Again, there are many offences, purely political, which have been held to be
within the reach of parliamentary impeachments, not one of which is in the slightest
manner alluded to in our statute book. And, indeed, political offences are of so various
and complex a character, so utterly incapable of being defined, or classified, that the task
of positive legislation would be impracticable, if it were not almost absurd to attempt it,”
I STORY, COMMENTARIES ON THE CONSTITUTION, §§785, 796, 797 (Cooley ed. 1873).

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