This is an excerpt of judicial findings on the Constitution.
[[Page 587]]
Treason is defined in the Constitution;\764\ bribery is not, but
it had a clear common-law meaning and is now well covered by
statute.\765\ High crimes and misdemeanors, however, is an undefined and
indefinite phrase, which, in England, had comprehended conduct not
constituting indictable offenses.\766\ In an unrelated action, the
Convention had seemed to understand the term ''high misdemeanor'' to be
quite limited in meaning,\767\ but debate prior to adoption of the
phrase\768\ and comments thereafter in the ratifying conventions\769\
were to the effect that the President at least, and all the debate was
in terms of the President, should be removable by impeachment for
commissions or omissions in office which were not criminally cognizable.
And in the First Congress' ''removal'' debate, Madison maintained that
the wanton removal from office of meritorious officers would be an act
of maladministration which would render the President subject to
impeachment.\770\ Other comments, especially in the ratifying
conventions, tend toward a limitation of the term to criminal, perhaps
gross criminal, behavior.\771\ While conclusions may be drawn from the
conflicting statement, it must always be recognized that a respectable
case may be made for either view. \764\Article III, 3.
\765\The use of a technical term known in the common law would
require resort to the common law for its meaning, United States v.
Palmer, 3 Wheat. (16 U.S.) 610, 630 (1818) (per Chief Justice Marshall);
United States v. Jones, 26 Fed. Cas. 653, 655 (No. 15,494) (C.C.Pa.
1813) (per Justice Washington), leaving aside the issue of the
cognizability of common law crimes in federal courts. See Act of April
30, 1790, Sec. 21, 1 Stat. 117.
\766\Berger, Impeachment for ''High Crimes and Misdemeanors,''
44 S. Calif. L. Rev. 395, 400-415 (1971).
\767\The extradition provision reported by the Committee on
Detail had provided for the delivering up of persons charged with
''Treason, Felony or high Misdemeanors.'' 2 M. Farrand, op. cit., n.4,
174. But the phrase ''high Misdemeanors'' was replaced with ''other
crimes,'' ''in order to comprehend all proper cases: it being doubtful
whether 'high misdemeanor' had not a technical meaning too limited.'' Id., 443.
\768\See id., 64-69, 550-551.
\769\E.g., 3 J. Elliot, Debates in the Several State Conventions
on Adoption of the Constitution (Philadelphia: 1836), 341, 498, 500, 528
(Madison); 4 id., 276, 281 (C. C. Pinckney: Rutledge): 3 id., 516
(Corbin): 4 id., 263 (Pendleton). Cf. The Federalist, No. 65 (J. Cooke
ed., 1961), 439-445 (Hamilton). \770\1 Annals of Cong. 372-373 (1789).
\771\4 J. Elliot, op. cit., n.769, 126 (Iredell); 2 id., 478 (Wilson).
There is more which includes the history of the Senate of confining Impeachment to indictable crimes. However that history could be broken some day. Not with Cliton. If you want to read all of this here is the link.
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