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396 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 44:305

of, Treason, Bribery, or other High Crimes and Misdemeanors . . . .

Despite a plethora of discussion, the scope of the power thus conferred
has not received adequate analysis.3 Many questions remain unanswered.
Did the Framers intend to confer unlimited power to impeach?
Do the words "high crimes and misdemeanorss" presuppose
conduct punishable by the general criminal law, an indictable crime?
Does the Constitution contemplate that impeachment shall be a criminal
proceeding in any sense? Criminal or not, do the words "high
crimes and misdemeanors" have ascertainable limits? If they have
such limits, is an impeachment and conviction outside these limits reviewable
by the courts? Impeachment is too important in the Constitutional
scheme to be left to the poiticians; and we need to look beyond
the Senate's own precedents to the roots and constitutional history
of impeachment.

To understand what the Framers had in mind we must begin
with English law, for nowhere did they more evidently take off from
that law than in drafting the impeachment provisions. The very terms
"impeachment," "treason, bribery, or other high crimes and misdemeanors"
were lifted bodily from the English law. The age-old division
of functions between the House of Representatives and the Senatee.4
Aware, in the words of James Wilson, that "numerous and dangerous
excresences" had disfigured the English law of treason, the Framers
delimited and defined treason and thereby, as Wilson told the Pennsylvania
Ratification Convention, put it beyond the power of Congress to
"extend the crime and punishment of treason."5 They banned the related
bill of attainder and corruption of blood,6 they replaced an unimpeachable
King with an impeachable President: and, profiting from
Charles II's pardon of the Earl of Danby, 7 they withheld from the President
____________________________________________________________________________
3. Professor Kurland said with respect to removal of judges. "There is more literature
than learning." Kurland, The Constitution and the Tenure of Federal Judges: Some
Notes from History,
36 U. CHI. L. REV. 663, 668 (1969).
4. THE FEDERALIST, supra note 2, No. 65 (A. Hamilton) at 425.
5. 2 WILSON, WORKS 663 (R. McCloskey ed. 1967); (hereinater cited as WILSON); 2
J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION
469 (2d ed. 1836) (hereinafter cited as ELLIOT).
6. U.S. CONST. art. I, § 9(3); art. III, § 3(2). For discussion of bills of attainder, see
Z. CHAFEE, THREE HUMAN RIGHTS IN THE CONSTITUTION 90 et seq. (1956) (hereinafter cited
as CHAFEE); J. BELLAMY, THE LAW OF TREASON IN ENGLAND IN THE LATER MIDDLE AGES
177-205 (1970).
7. In the midst of his impeachment proceeding, the Earl of Danby produced a

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