of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." 64

During the Federal Convention Gouverneur Morris suggested that those offences that were to be deemed impeachable "ought to be enumerated and defined." 65 In a sense, Mason's move to include the phrase "high Crimes and Misdemeanors" was an attempt to achieve some sense of definition when it came to those offences for which the president, vice president and all civil officers under the new Constitution might be impeached. All the founders understood the political perils involved should the Congress be left with a "dangerous latitude of discretion" in so important a power. 66 Yet short of a clear list of impeachable offences there had to be some method to ascertain what, exactly, "high Crimes and Misdemeanors" might be. The answer was to be found in the common law itself.67

As has been seen, the phrase "high Crimes and Misdemeanors" was one in common usage in English impeachments for four centuries leading up to the Federal Convention. It had become a term of legal art, a technical term. In approaching such terms, John Marshall had occasion to note in considering another such phrase, the interpretive process is simple: "It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.” 68 The case for the common law construction of “high Crimes and Misdemeanors” was best made by Joseph Story in his Commentaries on the Constitution of the United States.

In Story's view the necessity of recourse to the common law to shed light on the meaning of "high Crimes and Misdemeanors" stemmed from the nature of impeachment which has an

enlarged operation, and reaches what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard for the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty.69

When it came to the details spelled out in the Constitution, it was clear that there was no need to turn to the common law for a definition of treason; whatever it may have meant in the common law, that meaning was superseded by the definition the founders spelled out in the Constitution itself. But in the case of the other named offence, bribery, which the Constitution does not define, said Story, it is clear that "resort was naturally and necessarily had to the common law . . . [which] as the common basis of our jurisprudence, can alone furnish the proper exposition of the

64 The Federalist, No. 65, p. 439. Holdsworth has argued that "the greatest services rendered by this procedure [of impeachment] to the cause of constitutional government have been, firstly, the establishment of the doctrine of ministerial responsibility to the law, secondly, its application to all ministers of the crown, and thirdly and consequently the maintenance of the supremacy of the law over all." History of English Law, 1:382.

65 Farrand, ed., Records, II:65.

66 Timothy Bloodworth in the North Carolina ratifying convention, Elliot, ed., Debates, IV:50. 67 "Impeachments are. introduced as a known definite term, and we must have recourse to the common law of England for the definition of them." William Rawle, A View of the Constitution of the United States (2nd ed.; Philadelphia: P.H. Nicklin, 1829), p. 210.

68 United States v. Burr, 25 Fed. Cas. 1, 159 (No. 14, 693) (C.C.D. Va. 1807). This view of the relationship between the common law and those common law terms that were explicitly adopted by the founders has continued to inform the jurisprudence of the Supreme Court of the United States. The provisions of the Constitution "are framed in the language of the English common law and are to be read in light of that history." Smith v. Alabama, 124 U.S. 465, 478 (1888); the Constitution "must be interpreted in light of the common law, the principles and history of which were familiarly known to the Framers of the Constitution." United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898); "The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the Thirteen States, were born and brought up in the atmosphere of the common law and thought and spoke in its vocabulary. they expressed [their conclusions] in terms of the common law, confident that they could be shortly and easily understood." Ex Parte Grossman 267 U.S. 87, 108 (1925). I am much indebted for these citations to Berger, Impeachment, p. 203, n. 51.

69 Story, Commentaries on the Constitution, Sec. 762, II:234.

nature and limits of this offence." 70 As with "bribery" so also with "high Crimes and Misdemeanors."

It is because such 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." The choice, short of a legislative list, was either to resort to "parliamentary practice, and the common law" or be doomed to the "arbitrary discretion" of Congress. To Story, there was no question how to proceed: "The only safe guide in such cases must be the common law, which is the guardian at once of private rights and public liberties." 71 Like Marshall, Story did not suggest that the common law was a source of “a jurisdiction not given by the Constitution and the laws" but was simply the "great basis of American jurisprudence." As a result, it was not only prudent but appropriate to use the common law "as a guide, and check, and expositor in the administration of the rights, duties, and jurisdiction conferred by the Constitution and Laws." 72

The most basic sources of the common law included the great treatises upon which the early Americans had depended for their legal learning. Thus did that generation of founders move easily amongst such authorities as Sir Edward Coke's Institutes (1628; 1642; 1644) and Reports (1600-15); Sir Thomas Wood's Institute of the Laws of England (1720); Richard Wooddeson's A Systematical View of the Laws of England (1795); William Hawkins's A Treatise on the Pleas of the Crown (1716); and a variety of other tracts such as John Selden's On the Judicature in Parliaments (1681), Giles Jacob's New Law Dictionary (1729), and William Paley's Principles of Moral and Political Philosophy (1785). But of them all the most dominant source of authority on the common law for those who wrote and ratified the Constitution was Sir William Blackstone and his justly celebrated Commentaries on the Laws of England (1765-69). That was a work that was described by Madison in the Virginia ratifying convention as nothing less than "a book which is in every man's hand." 73

Blackstone made clear that of the "high misdemeanors" under English law, the "first and principal one is the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment: wherein such penalties, short of death, are inflicted, as to the wisdom of the house of peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability." 74 Although Blackstone does not speak of "high Crimes and Misdemeanors" in any thorough fashion, he does devote a considerable section of the Commentaries to “Public Wrongs", in which he defines public wrongs simply as "crimes and misdemeanors." 75 And his definition bears a striking resemblance to Hamilton's discussion of impeachable offences in The Federalist:

[P]ublic wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity. . . crimes. . . besides the injury done to individuals, strike at the very being of society; which cannot possibly subsist, where actions of this sort are suffered to escape with impunity.7 76

Of greatest interest for trying to understand how these grave offences against the commonwealth might be included within the phrase "high Crimes and Misdemeanors" is Blackstone's chapter entitled "Of Offences against Public Justice." 77

In that chapter Blackstone explains that "of offences against public justice, some [are] felonious, whose punishment may extend to death; others only misdemeanors." He then sets out to catalogue those offences against public justice by beginning "with those that are most penal and descend[ing] gradually to such as are of less malignity." 78 All of these offences fall short of treason, "the highest civil crime. any man can possibly commit," but share with that most serious offence the fact that each constitutes an assault on the "commonwealth or public polity of the kingdom." 79 Included in Blackstone's catalogue are offences against public justice that may shed some light on the questions currently confronting the House of

70 Ibid., Sec. 794, II:263.

71 Ibid., Sec. 795, II:264.

72 Ibid., Sec. 796, II:266; Sec. 797, II:267; Sec. 796, II:266.

73 Elliot, ed., Debates, III:501.

74 Blackstone, Commentaries, IV:121.

75 Ibid., IV:1.

76 Ibid. IV:5.

77 Ibid., IV: 127–141.

78 Ibid., IV:128.

79 Ibid., IV:75; 127.

Representatives as to the nature and extent of any impeachable offences committed by the president in the present inquiry.

There are two offences of special relevance in determining if there have indeed been "high Crimes and Misdemeanors" committed. The third item in Blackstone's list is "obstructing the execution of lawful process." This, says the author, "is at all times an offence of a very high and presumptuous nature." 80 Such obstructions of public justice, he argues, can be of both "the civil and criminal kind." Although his primary example is of obstruction of an arrest upon a criminal process, the offence is clearly not limited to that and seems to include any effort to keep the processes of the law from functioning properly.8

81

The second offence of some significance to the matter at hand is "the crime of willful and corrupt perjury" which is defined by Sir Edward Coke, to be a crime committed where a "lawful oath is administered, in some judicial proceeding, to a person who swears willfully, absolutely, and falsely, in a matter material to the issue or point in question." 82 Materiality lies in whether the false testimony is essential to the determination of the issue at hand or merely related to "some trifling, collateral circumstance to which no regard is paid." 83 Closely related in Blackstone's account to perjury proper is the "Subornation of perjury [which] is the offence of procuring another to take such a false oath, as constitutes perjury in the principal." 84 Blackstone finds perjury and subornation of perjury to be crimes both odious and "detestable", although far from being capital offences. Although at one point such offences were punishable by death, it had by the time of the Commentaries come to be "punished with six months imprisonment, perpetual infamy, and a . . . fine, or to have both ears nailed to the pillory." In attempting to understand where perjury comes in the descending order Blackstone sets up, and how it might thus fit into an understanding of "high Crimes and Misdemeanors" based upon the common law, it is striking that perjury is followed immediately by the crime of bribery.85 The possibility that perjury by a high civil officer might indeed be an impeachable offence under "high Crimes and Misdemeanors" merits a more thorough consideration.

Oaths and Perjury

The use of oaths in legal proceedings in which evidence is given is an ancient part of the common law. Sir Edward Coke noted that the "word oath is derived from the Saxon word eoth." The oath is nothing less, said Coke, than "an affirmation or deniall by any Christian of anything lawfull and honest, before one or more, that have the authority to give the same for advancement of truth and right, calling Almighty God to witness that his testimony is true." 86 Yet there is evidence that the use of oaths extends back to Roman times where the law of the Twelve Tables provides that "Whoever gives false evidence must be thrown from the Tarpeian rock." 87 And Cicero in De Officiis argues that "in taking an oath it is our duty to consider not what we may have to fear in case of violation but wherein its obligation lies: an oath is an assurance backed by religious sanctity; and a solemn promise given, as before God as one's witness, is to be sacredly kept." 88 As Samuel Pufendorf emphasized, oaths were not simply the preserve of Christians:

An oath the very Heathens look'd on as a thing of so great force, and of so sacred authority, that they believed the sin of perjury to be punished with the severest vengeance; such as extended itself to the posterity of the

86 Third Institute, p. 165. This view has been expanded upon by John Wigmore in his treatise on evidence in which he notes that the idea of an oath came from Germanic law: "The employment of oaths takes our history back to the origins of Germanic law and custom when, as in all early civilizations, the appeal to the supernatural plays an important part in the administration of justice." John Henry Wigmore, Evidence in Trials at Common Law, ed. J.H. Chadbourn, 10 vols. (Boston: Little Brown and Co., 1976), Sec. 1815, V:380. James Bradley Thayer observed that the "Normans. found that much of what they brought [to England] was there already; for the Anglo-Saxons were their cousins of the Germanic race, and had, in a great degree, the same legal conceptions and methods only less worked out." This extended to the use of oaths. James Bradley Thayer, "The Older Modes of Trial," Harvard Law Review 5(1891):45, 58.

87 James Fitzjames Stephens, A History of the Criminal Law of England, 3 vols. (London: Macmillan and Co., 1883), I:11.

88 De Officiis, (Cambridge: Harvard University Press, DATE), III.104, p. 383.

offender, and such as might be incurr'd by the bare thought and inclination without the act.8

89

The significance of the oath in courts of law was explained by James Wilson in his law lectures: 90

The courts of justice, in almost every age, and in almost every country, have had recourse to oaths, or appeals to heaven, as the most universal and the most powerful means to engage men to declare the truth. By the common law, before the testimony of a witness can be received, he is obliged to swear, that it shall be the truth, the whole truth, and nothing but the truth.

The purpose, Wilson concluded, is to secure truthful evidence:

Belief is the end proposed by evidence of every kind. Belief in testimony is produced by the supposed veracity of him who declares it. The opinion of his veracity is shaken, either when, in former instances, we have known him to deliver testimony which has been false; or when, in the present instance, we discover some strong inducement which may prevail on him to deceive.

Wilson took his moral and historical bearings on the necessity of oaths to getting at the truth from William Paley whose Principles of Moral and Political Philosophy was an influential work of considerable prominence among the early Americans.91 Wilson praised Paley as an authority of "high reputation," a "sensible and ingenious writer" who was "no undiscerning judge of the subject" of the administration of justice.92 Joseph Story was similarly impressed with Paley as a writer of "practical sense" whose analyses of political institutions displayed "great skill and ingenuity of reasoning. Throughout his celebrated Commentaries on the Constitution of the United States, Story relies often on the "excellent writings" of Paley.93

For Paley, the issue of oaths and perjury was one of morality as well as of law; he expressed views not unlike that of Cicero who warned that "people overturn the fundamental principles established by nature, when they divorce expediency from moral rectitude." 94 In Paley's view, the entire question of perjury rested on the definition of a lie: "A lie is a breach of promise: for whoever seriously addresses his discourse to another, tacitly promises to speak the truth, because he knows that the truth is expected."95 And the effects of lying are not simply private; they are public in the deepest and most important sense:

[T]he direct ill consequences of lying. . . consist, either in some specific injury to particular individuals, or the destruction of that confidence, which is essential to the intercourse of human life: for which latter reason, a lie may be pernicious in its general tendency, and therefore criminal, though it produce no particular visible mischief to anyone.96

Given this public aspect to the damages that come from lying, it is necessary that oaths never be made "cheap in the minds of the people." Since "mankind must trust to one another" there is no more efficacious means than through the use of oaths: "Hence legal adjudications, which govern and affect every right and interest on this side of the grave, of necessity proceed and depend upon oaths." As a result, lying under oath is far more serious than merely lying; perjury is, Paley notes, "a sin of greater deliberation," an act that "violates a superior confidence." 97

89 Samuel Pufendorf, Of the Law of Nature and Nations, trans. Basil Kennet (London: R. Sare, 1717), IV. II. 1, p.117

90 McCloskey, ed, Works, II:703-704. Wilson was not alone in his view of the importance of oaths. For example, Justice Jacob Rush, the brother of Benjamin Rush, expressed views much like those of Wilson in a pamphlet published in 1796, The Nature and Importance of an Oath— the Charge to a Jury (Rutland, Vermont): "An oath is a very serious transaction. the nature [of which]. is the solemn appeal to God-it is engaging to speak the truth, and calling upon Him to witness our sincerity, that constitute the oath and obligation." Thus is it important that civil society maintain a due attention to "the religious sentiment upon which an oath is founded;" to allow that sentiment to relax will be "injurious to society." Hyneman and Lutz, eds., American Political Writing, II:1015-1017; 1018.

91 Paley, The Principles of Moral and Political Philosophy, 2 vols. (London: R. Faulder, 1788). 92 McCloskey, ed., Works, I:310; 240; 325.

93 Story, Commentaries on the Constitution, Sec. 587, II:69; Sec. 584, II:65; Sec. 1603, III:467. See also, for examples, Sec. 522, 547, 558, 572, 575, 579, 581, 584, 587, and 1338.

94 De Officiis, III.101, p. 379.

95 Paley, Principles, 1:184.

96 Ibid.

97 Ibid., I:193; 197.

Because a witness swears that he will "speak the truth, the whole truth, and nothing but the truth, touching the matter in question," there is no place where a person under oath can cleverly lie and not commit perjury. The witness cannot legitimately conceal "any truth, which relates to the matter in adjudication" because to so conceal "is as much a violation of the oath, as to testify a positive falsehood; and this whether the witness be interrogated to that particular point or not." It is not enough, Paley observed, for the witness afterward to say that he was not forthcoming "because it was never asked of me""; an oath obliges to tell all one knows whether asked or not. As Paley notes, "the law intends to require of the witness, that he give a complete and unreserved account of what he knows of the subject of the trial, whether the questions proposed to him reach the extent of his knowledge or not." 98

Nor is it sufficient an excuse that "a point of honor, of delicacy, or of reputation, may make a witness backward to disclose some circumstance with which he is acquainted." Such a sense of shame or embarrassment cannot "justify his concealment of the truth, unless it could be shown, that the law which imposes the oath, intended to allow this indulgence to such motives."

"99

Similarly, linguistic contortions with the words used cannot legitimately conceal a lie or, if under oath, perjury. Paley's argument on this point merits a complete hearing:

As there may be falsehoods which are not lies, so there may be lies without literal or direct falsehood. An opening is always left for this species of prevarication, when the literal and the grammatical signification of a sentence is different from the popular and customary meanings. It is the willful deceit that makes the lie; and we willfully deceive, where our expressions are not true in the sense in which we believe the hearer apprehends them. Besides, it is absurd to contend for any sense of words, in opposition to usage, for all senses of words are founded upon usage, and upon nothing else. 1 100

Thus the most common terms of oaths sworn include a promise not only to tell the truth, but the broader promise to tell the whole truth and nothing but the truth. Willful deceit is the key to whether a witness commits perjury or not, whatever the means chosen. 101 The moral and legal inheritance of the founding generation included the belief that the violation of an oath was nothing less than "treachery." 102 None of the major writers with whom the founders were intimately conversant saw perjury as anything but one of the most serious offences against the commonwealth.103 In his widely cited Treatise on the Pleas of the Crown, for example, William Hawkins explained that there were certain kinds of offences that were "infamous, and grossly scandalous, proceeding from principles of down right dishonesty, malice or faction;” and it was under this rubric that he included “perjury and subornation of perjury." Indeed he went further arguing that "perjury . . . is of all crimes whatsoever the most infamous and detestable." 104

Perjury was, in the first instance, tied to jurors who might give a false verdict and "for several centuries no trace is to be found of the punishment of witnesses for perjury." 105 And even after it originated in the Star Chamber, it was only by "slow degrees [that] the conclusion that all perjury in a judicial proceeding is a crime was arrived at." 106 In 1562-63 there came the first statute providing pen

98 Ibid., I:200; 201.

99 Ibid., I:201.

100 Ibid., I:188-89. Pufendorf was of a similar mind: Witnesses, he said, should not have "an opportunity by insidious or equivocal expressions to evade the force of their obligations." Should they so break their oath they will discover the truth that God is the "avenger of perjury." On the Law of Nature and Nations, IV. II. III, pp. 121; 119.

101 As Thomas Wood put it, "it cannot be presumed that one would commit perjury without design." A New Institute of the Imperial or Civil Law (London, 1730), III. 10. xiv, pp. 288-89. 102 Algernon Sidney, Discourses Concerning Government, ed. Thomas West (Indianapolis: Liberty Fund, 1990), p. 225.

103 For a helpful compilation of many of the common law sources on "oaths" and "perjury" see under those heads in Giles Jacob, A New Law Dictionary, (9th. ed.; London: Strahan and Woodfall, 1772).

104 A Treatise on the Pleas of the Crown, I:318; 319. Pufendorf put it even more strikingly: "Perjury appears to be a most monstrous sin, in as much as by it the forsworn wretch shews that he at the same time condemns the divine and yet is afraid of human punishment; that he is a daring villain towards God, and a sneaking coward towards men." Of the Law of Nature and Nations, IV. II. II., p. 118.

105 Stephens, History of the Criminal Law, III:241.

106 Ibid., III:247.