Impeachment – the ousting of presidents by the actions of parliaments and similar representative bodies – seems to be in vogue just now, whether in Zimbabwe, Brazil and now in the US in the case of Donald Trump. There is even talk of it’s being revived to deal with Boris Johnson’s shenanigans. But what is it and where did it come from?
Although most associated with presidential systems, its origins lie in medieval England, a time when the monarch’s Great Council was deemed to have the powers of a court of law.
The Council was what we know of as the House of Lords now. It was only with the early development of the House of Commons that the notion of impeachment developed. The bicameral nature of Parliament led to the interesting constitutional innovation: the idea that Parliament can put on trial ministers of the monarch for failing in their duty, even though those ministers were (and in theory remain to this day) responsible to the monarch, not to Parliament.
This is the thinking: It was accepted that “the king can do no wrong”; it followed that if the king apparently did a wrong, such as breach a longstanding agreement with Parliament, it was the king’s agent, not the king, who had done the wrong – a member of the king’s executive, one of his advisers.
The Great Council, when it was a baronial body, always had the role of a judicial body, albeit mainly to approve the legal judgments of the king. So, the argument ran, the remnant of that Council, the House of Lords (barons and bishops), could judge individuals but not bring charges against anyone. The House of Commons, however, had no such restriction, so it took it upon itself to bring charges as necessary against the monarch’s ministers to the Lords for their judgment – impeachment.
By this somewhat convoluted logic it was possible to produce the very practical effect of Parliament, and particularly the Commons, gaining a sort of proxy control over the king’s ministers – and indirectly over the king himself.
Such a process was used by the “Good Parliament” of 1376 to remove three of Edward III’s advisers, including his mistress, who were running the country in his name. It was formalised when used in 1386 by the “Wonderful parliament” against Richard II’s chancellor, the Earl of Suffolk for misuse of funds.
Impeachment remained a useful tool for Parliament to develop its power over the monarchy, particularly in the Civil War of the 17th century. It was during this time that impeachment took on the qualities that are more familiar to us today in jurisdictions outside Britain. James I’s 1621 parliament was packed with Puritan gentlemen not enamoured of the corrupt goings on at court and the king’s attempts since 1614 to govern and raise monies by various illegitimate expedients without parliament.
Indeed, after so long away, members built something of a bonfire of the corrupt, using the rediscovered power of impeachment last used in Henry VI’s time against Lord Stanley in 1459. Sir Francis Bacon, by now lord chancellor and Baron Verulam, was the first to fall to a version of impeachment, accused of corruption in taking presents from parties to legal action in chancery. The evidence was sent from the Commons to the Lords for the peers to take action if they wished. He was fined, imprisoned (briefly) and barred from office. He was, in his own words, “a broken reed”.
A version of the revived impeachment procedure was also applied to Sir Giles Mompesson, a close associate of James’s favourite, Buckingham, through whose influence he gained certain patents. He was a commissioner with a patent to license inns as well as patents to sell decayed timber from forests and powers to prevent unlicensed gold and silver thread manufacture. All such powers he abused. For example, he extended his powers over inns to taverns even though these were overseen by local unpaid justices of the peace.
He was returned as an MP in 1621. Since the Commons had no powers to deal with his abuses outside Parliament, the revival of impeachment was used to deal with him as an MP inside Parliament. Articles of impeachment were drawn up in the commons and carried to the Lords which sat as a court to rule on the case. He fled to France but was dispossessed in his absence.
This process was a constitutional innovation arrived at by Parliament asserting it for itself on the basis of precedent rather than receiving the powers from a higher authority. It became a crucial power for Parliament to control the executive in the coming conflict with monarchy. It was used again in 1624 against a rather bigger fish than Mompesson, Lionel Cranfield, earl of Middlesex, the lord treasurer. (Historians regard this as the first full revival of the old impeachment process.) Cranfield had had some success in curbing James’s spending but was found guilty of corruption (though his fate was largely as a result of falling out of favour with Buckingham).
The significance of impeachment was that it was an assertion that ministers, although appointed by the king, should be responsible to Parliament. This was not the Tudor monarchy’s view, and doubtless it was not James’s either. Impeachment was additionally useful to Parliament because it was a process that did not require the king’s involvement, unlike attainder and other legislative bills.
Modern impeachment – and Boris Johnson?
It remains a power in the hands of the British Parliament today, though the strengthening of parliamentary democracy has made it (arguably) an unnecessary sanction – even though the responsibility of the modern prime minister and his ministers remains to the monarch, not directly to Parliament. The prime minister appoints and sacks ministers using royal prerogative powers and can himself or herself only be removed by the Queen, not directly by a vote of Parliament – except by impeachment.
This is why it might raise interest in the case of Boris Johnson, accused of abusing the Crown’s prerogative regarding the September 2019 prorogation of Parliament. If he is found to have been a “bad adviser” to the Queen (recommending prorogation for the purposes of working on a Queen’s speech when in reality seeking to balk Parliament’s oversight of Brexit) then that would fit well with the historical precedents. This particularly in light of the court action against Johnson in which some judges have ruled that exercise of the Royal prerogative by the Prime Minister is a political matter, not a legal one. Lord Doherty in the Court of Session noted:
“In my opinion, there has been no contravention of the rule of law. Parliament is the master of its own proceedings. It is for parliament to decide when it sits.”
On this reading it is for Parliament to deal with such a matter, and impeachment looks as if it might fit the bill. In 2004 Johnson himself signed an impeachment motion against Tony Blair over the Iraq war, tabled in the Commons but not selected for debate.
The process would involve a formal accusation by a member of Parliament or group of MPs made in the House of Commons. If the House agrees, the accuser goes to the “bar” of the House of Lords (the bar separates the two Houses) and the matter is debated by the peers who impeach the accused person if it they believe there are sufficient grounds.
The matter does not stop there, at least according to modern rules. The defendant would be arrested and delivered to “Black Rod”, a senior House of Lords official (seen during the state opening of Parliament banging on the door of the Commons with his black rod) and is entitled to defend himself. Judgment is only announced if the Commons wills it, so there is the option of a pardon. Since the Act of Settlement 1701 the monarch has had no right of pardon in cases of impeachment:
“That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament.”
The last successful impeachment in Britain was in 1806 when Lord Melville was charged with corruption. Impeachment remains a possibility in Britain and, as noted above, was pursued by a small group of MPs in the case of Tony Blair for taking the country into the war in Iraq. (See the motion below.)
Also of interest
Impeachment: What a royal pain, Alan Cowell, New York Times Feb 7 1999.
• Which is top dog: Parliament or the Executive? here.
• The English origin of US treason law: here.
• A history of the law of torture: here.
• The real origin of so-called Henry VIII powers: here.
• 1297 and all that: How to impress a Brexit judge: here. Magna Carta: Is it such a Great Charter?: here.
• Habeas corpus and the strangely misleading case of the law: here.
• Prorogation: History of Parliament blog here
Note: A related measure is an act of attainder, instituted in the 14th century, a parliamentary act which could be instituted by the Lords declaring someone guilty without the formal need of evidence, pleas or proof. As an act of Parliament it had to receive the royal assent and in practice was largely used by monarchs to condemn rebels. Death was frequently the penalty imposed and attainder also involved dispossession of the accused, which proved useful for cash-strapped kings. In 1641 the earl of Strafford, close adviser of Charles I (who earlier, as Sir Thomas Wentworth, had been a parliamentary critic of James), was brought down by the impeachment. Though cleared of treason on a technicality he was executed by order of Parliament on a bill of attainder. Oliver Cromwell was “attainted” retrospectively in 1660 in preparation for the restoration of the monarchy. The procedure was abolished in 1870. A relief to Boris Johnson, no doubt.
The power of impeachment was, of course, transferred wholesale into the American Constitution, among others around the world. The Senate takes the role of a court with its origins in Medieval England and the House of Representatives brings the charge, as the British House of Commons did. In non-British jurisdictions, of course, the power became one to remove presidents (assuming presidents with executive power are equivalent to monarchs), not just the advisers of presidents. President Clinton was impeached by the House of Representatives in 1998, though acquitted by the Senate in 1999. More recently Dilma Rousseff of Brazil was impeached after 61 out of 81 senators voted for her removal.
Blair impeachment motion
Impeachment Motion – Conduct of the Prime Minister in relation to the war against Iraq
That a select committee of not more than 13 Members be appointed to investigate and to report to the House on the conduct of the Prime Minister in relation to the war against Iraq and in particular to consider;
(a) the conclusion of the Iraq Survey Group that in March 2003 Iraq did not possess weapons of mass destruction and had been essentially free of them since the mid 1990s
(b) the Prime Minister’s acknowledgement that he was wrong when in and before March 2003 he asserted that Iraq was then in possession of chemical or biological weapons or was then engaged in active efforts to develop nuclear weapons or was thereby a current or serious threat to the UK national interest or that possession of WMD then enabled Iraq to inflict real damage upon the region and the stability of the world
(c) the opinion of the Secretary General of the United Nations that the invasion of Iraq in 2003 was unlawful
(d) whether there exist sufficient grounds to impeach the Rt Hon Tony Blair on charges of gross misconduct in his advocacy of the case for war against Iraq and in his conduct of policy in connection with that war.
That the Committee shall within 48 days of its appointment report to this House such resolutions, articles of impeachment or other recommendations as it shall think fit.