The Englishman responsible for bringing the ancient practice of impeachment back into use was Edward Coke, an investor in the Virginia Company who became a Member of Parliament in 1589. Coke, a profoundly agile legal thinker, had served as Elizabeth I’s Attorney General and as Chief Justice under her successor, James I. In 1621—two years after the first Africans, slaves, landed in the Virginia colony and a year after the Pilgrims, dissenters, landed at a place they called Plymouth—Coke began to insist that Parliament could debate whatever it wanted to, and soon Parliament began arguing that it ought to meet regularly. To build a case for the supremacy of Parliament, Coke dug out of the archives a very old document, the Magna Carta of 1215, calling it England’s “ancient constitution,” and he resurrected, too, the ancient right of Parliament to impeach the King’s ministers. Parliament promptly impeached Coke’s chief adversary, Francis Bacon, the Lord Chancellor, for bribery; Bacon was convicted, removed from office, and reduced to penury. James then dissolved Parliament and locked up Coke in the Tower of London.
Something of a political death match followed between Parliament and James and his Stuart successors Charles I and Charles II, over the nature of rule. In 1626, the House of Commons impeached the Duke of Buckingham for “maladministration” and corruption, including failure to safeguard the seas. But the King, James’s son, Charles I, forestalled a trial in the House of Lords by dismissing Parliament. After Buckingham died, Charles refused to summon Parliament for the next eleven years. In 1649, he was beheaded for treason. After the restoration of the monarchy, in 1660, under Charles II, Parliament occasionally impeached the King’s ministers, but in 1716 stopped doing so altogether. Because Parliament had won. It had made the King into a flightless bird.
Why the Americans should have resurrected this practice in 1787 is something of a puzzle, until you remember that all but one of England’s original thirteen American colonies had been founded before impeachment went out of style. Also, while Parliament had gained power relative to the King, the Colonial assemblies remained virtually powerless, especially against the authority of Colonial governors, who, in most colonies, were appointed by the King. To clip their governors’ wings, Colonial assemblies impeached the governors’ men, only to find their convictions overturned by the Privy Council in London, which acted as an appellate court. Colonial lawyers pursuing these cases dedicated themselves to the study of the impeachments against the three Stuart kings. John Adams owned a copy of a law book that defined “impeachment” as “the Accusation and Prosecution of a Person for Treason, or other Crimes and Misdemeanors.” Steeped in the lore of Parliament’s seventeenth-century battles with the Stuarts, men like Adams considered the right of impeachment to be one of the fundamental rights of Englishmen. And when men like Adams came to write constitutions for the new states, in the seventeen-seventies and eighties, they made sure that impeachment was provided for. In Philadelphia in 1787, thirty-three of the Convention’s fifty-five delegates were trained as lawyers; ten were or had been judges. As Frank Bowman, a law professor at the University of Missouri, reports in a new book, “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” fourteen of the delegates had helped draft constitutions in their own states that provided for impeachment. In Philadelphia, they forged a new sword out of very old steel. They Americanized impeachment.
This new government would have a President, not a king, but Americans agreed on the need for a provision to get rid of a bad one. All four of the original plans for a new constitution allowed for Presidential impeachment. When the Constitutional Convention began, on May 25, 1787, impeachment appears to have been on nearly everyone’s mind, not least because Parliament had opened its first impeachment investigation in more than fifty years, on April 3rd, against a Colonial governor of India, and the member charged with heading the investigation was England’s famed supporter of American independence, Edmund Burke. What with one thing and another, impeachment came up in the Convention’s very first week.
Jill Lepore, “You’re Fired”, The New Yorker (28 October 2019), 27.