Sunday, December 2, 2007

The Warren Hastings Impeachment

Today's trivia question: The impeachment and trial of Warren Hastings lasted how long in the British Parliament?

This is one of my favorite trivia questions, because the answer--9 years--just cries out for more detail. I will provide some details and then make some observations.

Warren Hastings had served as Governor-General of India for a period of time in the late 1700's. He resigned and returned to England in 1785. On 2/17/86, Edmund Burke began impeachment proceedings by seeking access to documents relating to Hastings' administration in India. Articles of Impeachment were eventually voted on by the House of Commons, and on 5/10/87 Hastings was impeached in the House of Lords, taken into custody, and had to post a 40,000-pound bail.

The House Managers finally competed their case on 5/30/91, leaving 16 of the 20 articles virtually untouched. Two years later Hastings completed his defense, and two years after that, on 4/23/95, the House of Lords finally voted, acquitting Hastings of all charges.

One might ask why they went to all this trouble, when Hastings had already left his post in India. Several reasons come to mind. First, part of impeachment is a prohibition against holding office in the future, not just removal from one's current office. Second, in that era a man's reputation and character were of the utmost importance, and that was what was at stake for Hastings. In fact, at one point Hastings asked his supporters in the House of Commons to vote *for* the Articles of Impeachment, so that he would have a chance to defend himself at the subsequent trial. Third, it is obvious from the fact that Hastings was taken into custody and had to post bail, that there was a criminal aspect to this, unlike in the U.S., so presumably some criminal sanctions were possible had he been convicted.

The way this was approached procedurally is interesting. Impeachment is an odd hybrid of the judicial and the political, and the rules to be followed were not clear. The House of Lords voted to follow the stricter judicial rules as far as the evidence was concerned, which limited what the House Managers could present. On the other hand, Burke was allowed to speak for days on end, indicating a more parliamentary approach to that aspect of the case.

Burke talked in generalities, without much attention to the details of the case. It was obvious he was speaking for posterity more than as part of a legitimate attempt to convict. Hastings, by contrast, was overly legalistic in his defense, and was criticized for *not* speaking in more general and historical terms.

The problems with having a legislative body sit as a "court" are obvious. Of 230 members of the House of Lords who sat in on the trial at one time or another, only 29 felt informed enough to vote!

In the end the case proved to be purely political. Both sides spoke freely to the press through the proceedings. The House Managers pursued the case vigorously, even though it was obvious early on they would lose. In a judicial proceeding, this would be unheard of, and highly unethical for a prosecutor to do.

The concepts which arose out of this proceeding are found in the U.S. approach to impeachment as well. The fundamental principle here is that impeachment is reserved for serious breaches of the public trust, and not just for "maladministration". This was debated at the Constitutional Convention, and Madison made the point that if you have maladministration as a basis for impeachment, this would be "equivalent to the President serving at the pleasure of the Congress". Madison's view of course prevailed.

The politically-motivated impeachments of Andrew Johnson and Bill Clinton are examples of a misuse of the impeachment process. In both cases, cooler heads prevailed and conviction was denied.

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