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The Origin of Impeachment

Published online by Cambridge University Press:  12 February 2009

T. F. T. Plucknett
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Extract

Strangely enough, it is only during the last few years that constitutional historians have turned their attention to the origin of impeachment. Yet it was one of the most spectacular of parliamentary proceedings, often a decisive weapon in political warfare, and of such proved usefulness that it came to be regarded as an inherent function of any representative legislature, and as such it figures not only in the American constitutions but also in so recent a document as the Weimar constitution of 1919.

Type
Research Article
Information
Transactions of the Royal Historical Society , Volume 24 , December 1942 , pp. 47 - 71
Copyright
Copyright © Royal Historical Society 1942

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References

page 47 note 1 Miss Clarke, , Fourteenth century studies, p. 268Google Scholar, traces the rise of this notion to the year 1624; it became classical dogma in Hale, , History of the pleas of the crown, ii. 150.Google Scholar

page 47 note 2 Stephen, , History of criminal law, i. 145 ff. (a confused and unhelpful chapter).Google Scholar

page 48 note 1 Clarke, M. V., ‘The origin of impeachment’, in Oxford essays in mediaeval history presented to H. E. SalterGoogle Scholar; it will be cited here from the reprint in Clarke, , Fourteenth century studies, pp. 242–71.Google Scholar

page 49 note 1 Wilkinson, B.. ‘Latimer's impeachment and parliament in the fourteenth century’, in Studies in the constitutional history of the thirteenth and fourteenth centuries, pp. 82–107.Google Scholar

page 49 note 2 Rot. Parl., iii. 233b.Google Scholar

page 49 note 3 The phrase is at least as old as 1339: Year book 12 & 13 Edward III (Rolls Series), 101.Google Scholar

page 51 note 1 See further, Plucknett, , ‘Rise of the English state trial’ in Politica, ii. 542.Google Scholar

page 51 note 2 Not 1347 as Clarke, , op. cit., p. 257.Google Scholar

page 51 note 3 Rot. Parl., ii 169, no. 38Google Scholar; 170, no. 49; 171, no. 58.

page 52 note 1 For valuable light upon Cheriton's adventures in high finance see Sayles, , ‘The “English Company” of 1343’ in Speculum, vi. 177.Google Scholar

page 52 note 2 Rot. Parl., ii. 173Google Scholar, no. 68. For one more remark upon this case see below, p. 69. At least one merchant brought common law proceedings against Wesenham (ibid., p. 175, no. 1), and Cheriton's misdeeds were the subject of parliamentary complaint for some years: ibid., p. 230, no. 33 (1350); p. 242, no. 46 (1352); p. 307, no. 33 (1371).

page 53 note 1 Rot. Parl., ii. 297–8.Google Scholar

page 53 note 2 The roll says ‘mys a resoun’ which by itself may possibly not be a technical term implying legal procedure (cf. the use of ‘arraisonner’ in modern French); but see Hale, , History of the pleas of the crown, ii. 216 ff.Google Scholar

page 54 note 1 Clarke, , Fourteenth century studies, p. 260Google Scholar. For the Windsor affair, see Clarke, , ‘William of Windsor in Ireland’ in Proceedings of the Royal Irish Academy, 1932Google Scholar (which will be cited here from the reprint in her Fourteenth century studies, pp. 146–241).Google Scholar

page 54 note 2 Clarke, , op. cit., p. 157.Google Scholar

page 54 note 3 Printed ibid., pp. 184–205.

page 55 note 1 Calendared ibid., pp. 220–32.

page 55 note 2 Ibid., pp. 260–1.

page 56 note 1 Sayles, , Select cases in the court of king's bench (Selden Society), iii. lxxviGoogle Scholar, draws attention to new material.

page 56 note 2 See the valuable discussion and useful bibliography by Thorne, S. E., ‘Notes on courts of record in England’ in West Virginia Law Quarterly, xl. 347.Google Scholar

page 56 note 3 Eyre of Kent (Selden Society), i. 80 (1313)Google Scholar; Year Book II & 12 Edward III (Rolls Series), p. 627 (1338)Google Scholar. Similarly the bare word of Hengham, J., sufficed to convict two men of a trespass which he had happened to see: Select cases in the court of king's bench (Selden Society), i. 112 (1283).Google Scholar

page 56 note 4 15 Ric. II, c. 2.

page 56 note 5 13 Hen. IV, c. 7.

page 57 note 1 The process was enrolled on the patent and close rolls, whence it is printed in Rymer, , Foedera (Record Commission), ii. 478Google Scholar; it was recited verbatim in Rot. Parl., ii. 3.Google Scholar

page 57 note 2 Palgrave, , Parliamentary writs, ii, pt. ii, app. 261Google Scholar (from the king's bench roll, the record having been removed into that court at a later date).

page 57 note 3 Printed in Davies, J. Conway, Baronial opposition to Edward II,. p. 565 (from exchequer miscellanea).Google Scholar

page 57 note 4 Palgrave, , Parliamentary writs, ii, pt. ii, app. 261.Google Scholar

page 58 note 1 Hale, , History of the pleas of the crown, ii. 216Google Scholar; Pike, , introduction to Year book 19 Edward III (Rolls Series), pp. xxxvii ff.Google Scholar

page 58 note 2 The argument was that since the courts were open it must have been time of peace. Cf. Finlason's note to Reeves, , History of English law, ii. 433Google Scholar; Richardson, , ‘Glanvill continued’ in Law Quarterly Review, liv. 388Google Scholar, note 24; Year book 20 & 21 Edward I (Rolls Series), 192Google Scholar; Pike, , introduction to Year book 14 Edward III (Rolls Series), xv, 130Google Scholar; Rot. Parl., ii. 428aGoogle Scholar; Coke, , First Institute, 249bGoogle Scholar; Dicey, , Law of the constitution (8th edn.), p. 545.Google Scholar

page 58 note 3 Printed in Rot. Parl., ii. 3 (from the close roll).Google Scholar

page 59 note 1 Printed, in Rot. Parl., ii. 52 (from the parliament roll).Google Scholar

page 60 note 1 Bracton, , De Legibus (1640), fo. 141Google Scholar, ‘qui suum secum portat judicium’; cf. fo. 152.

page 60 note 2 Bracton, , fos. 137–137b.Google Scholar

page 60 note 3 Until 1327 when I Edw. III, st. 2, c. 11 forbad it.

page 60 note 4 So under the Assize of Clarendon (1166), c. 14, persons found clean by the ordeal may yet be exiled if of bad fame.

page 60 note 5 For interesting material on the early continental history of ill-fame see Goebel, , Felony and misdemeanour, i. 65 ff.Google Scholar

page 60 note 6 Lyndwood, , Provinciale (ed. 1679), p. 290 gl. purgaverit.Google Scholar

page 60 note 7 Putnam, , Proceedings before justices of the peace (Ames Foundation), p. 154Google Scholar, no. 2 (1338); cf. ibid., p. cxxxiv. n.

page 61 note 1 Ibid., p. 164, no. 54 (1341). Some years later the statute 34 Edw. III, c. I (1361), gave powers to justices of the peace to take sureties for good behaviour from persons not of good fame—powers which are still used.

page 61 note 2 Rot. Parl., iii. 83, no. 38.Google Scholar

page 61 note 3 Ibid., p. 495, no. 30; 4 Hen. IV, c. 3.

page 61 note 4 2 & 3 Edw. VI, c. 1.

page 61 note 5 Calendar of fine rolls (1327–1337), 375Google Scholar. This was in November 1333, and the date, together with the subsequent reference to an inquest at Berwick, suggests that Marshal's troubles were connected with the capture of Berwick in July 1333.

page 61 note 6 Cal. Pat. (1334–1338), p. 171.Google Scholar

page 62 note 1 Chron. Knighton (Rolls Series), i. 473.Google Scholar

page 62 note 2 Rotuli Scotiae (Record Commission), i. 523a, 530b, 541a.Google Scholar

page 62 note 3 Cal. Close (1337–1339), p. 616.Google Scholar

page 62 note 4 Year book 12 & 13 Edward III (Rolls Series), pp. 96–101.Google Scholar

page 64 note 1 Rot. Parl., ii. 255, no. 9Google Scholar; 256, no. 12; the claimant is variously described in this record as ‘son’ and ‘cousin’ of his ‘grandfather’.

page 64 note 2 Eyre of Kent (Selden Society), i. 141 (1313–14)Google Scholar; 22 Ass. 73 (1348); 25 Edw. III, St. 6, c. 9 (1352); 29 Ass. 45 (1355).

page 65 note 1 Lapsley, , ‘Archbishop Stratford and the parliamentary crisis of 1341’, Engl. Hist. Rev., xxx. 6 ff., 193 ff.Google Scholar

page 65 note 2 Year book 14 & 15 Edward III (Rolls Series), 258.Google Scholar

page 65 note 3 Cal. Pat. (1340–1343), pp. 110–11Google Scholar. Extracts from the text are printed in the introduction to the Year book, p. xxiiiGoogle Scholar. As the commission is dated 13 Jan., 1341, the trial was probably in Hilary term 1341; the Croniques de London (Camden Society), p. 87Google Scholar, date it 10 and 11 Jan., 1341. The year book seems to have misplaced it in Michaelmas term 1340.

page 66 note 1 Year book 17 Edward III (Rolls Series), p. 214 (1343)Google Scholar, states the principle, although it hardly applied to the case in hand, for the stolen cup was not found in the prisoner's possession; but the court was disposed to treat it as constructively maynour. For a prisoner who was discharged in 1290 because he was neither appealed nor indicted nor taken with the maynour, see Sayles, , Select cases in king's bench (Selden Society), ii. 26.Google Scholar

page 66 note 2 Their use as initiating criminal proceedings excited protest however; ibid., ii. 131 (1292). For further examples of prosecutions initiated by private information, see ibid., iii. 63, 106, 168.

page 67 note 1 Sayles, , op. cit., iii. lxiv.Google Scholar; Winfield, , History of conspiracy and abuse of legal procedure, pp. 67–70.Google Scholar

page 67 note 2 Until 1 Edward III, st. 2, c. 11; unsuccessful appellants could be fined and imprisoned under the statute of Westminster II, c. 12.

page 67 note 3 Croniques de London (Camden Society), p. 87.Google Scholar

page 68 note 1 Rot. Parl., ii. 127, no. 8.Google Scholar

page 68 note 2 Pseudo-Birchington, in Wharton, , Anglia Sacra, i. 40Google Scholar (on the authorship of these lives of the archbishops, see Tait, , Chronica Jahannis de Reading et Anonymi Cantuariensis, pp. 63 ff.).Google Scholar

page 68 note 3 Rot. Parl., ii. 131, no. 44Google Scholar, where the proceedings are treated as at the suit of the king.

page 68 note 4 The documents in the affair were committed to Killesby (ibid., p. 132, no. 49). How far the proceedings went does not appear, but in 1343 the documents were called into parliament to be quashed; ibid., 139, no. 22.

page 69 note 1 Above, p. 52.

page 69 note 2 Above, p. 53; cf. the complaint against John Molyns in the great council of 1353; Rot. Parl., ii. 253, no. 40.Google Scholar

page 69 note 3 Above, p. 54.

page 69 note 4 Anominalle chronicle (ed. V. H. Galbraith), pp. 85–8.Google Scholar

page 69 note 5 Ibid., pp. 89–90.

page 70 note 1 This is the approximate date implied by the chronicler; the roll contains very few dates, although it does suggest (Rot. Parl., ii. 327, no. 30)Google Scholar that the trial of Latimer began on 26 May. For a discussion of these difficult chronological puzzles see Wilkinson, , op. cit., 95–6.Google Scholar

page 70 note 2 Rot. Parl., ii. 324, no. 20.Google Scholar

page 70 note 3 Ibid., p. 325, no. 25.

page 70 note 4 Ibid., p. 325, no. 26.

page 70 note 5 Ibid., p. 323, no. 17.

page 70 note 6 Ibid., p. 330, no. 47.

page 70 note 7 Anominalle chronicle, pp. 96, 98Google Scholar; Rymer, , Foedera, vii. 163, 168.Google Scholar