By Malick W. Ghachem

The impeachment process just concluded in Washington made remarkable use of the eighteenth century as a source of political and legal authority. Progressive law professors confidently proclaimed an emphatically originalist approach to the interpretation of the Constitution. Lawyers for the President showed a sudden and suspicious interest in “dusty old books” (Alan Dershowitz). The arguments of the two sides featured warring references to obscure cases like the 1725 impeachment of the first Earl of Macclesfield in the House of Lords. All of these are signs that history was once again being used as a cover for decisions and judgments involving the exercise of contemporary political will rather than the dictates of a supposedly objective reading of the past.

Criticizing the legal and political elites for their instrumental ransacking of the eighteenth century is perhaps an easy way out for the historian, however. When history is brought to bear on the present by people who aren’t professional historians, the latter can always cry “anachronism”—usually with very good reason. Is there a more affirmative message that scholars of the Age of Revolutions can say about the impeachment saga just concluded? One of the revolutionary-era precedents that has figured in the recent legal-political turmoil—the impeachment of Warren Hastings between 1787 and 1795 for acts committed as Governor-General of India during the 1770s and 1780s—suggests that the answer is yes. It is a message about the nature of American power that was almost entirely lost in the adversarial, Trump-centric arguments of the past couple of months.

The impeachment of Warren Hastings was one of the great constitutional dramas of the Age of Revolutions not only because of the nature of Hastings’ offenses in India but also because of the identity of his prosecutor-in-chief: Edmund Burke. By the start of the Hastings trial in 1788, Burke had been a Whig member of Parliament for more than two decades—starting in 1765, with the Stamp Act controversy that set the American colonies on the path to revolution. In his speeches on American Taxation (1774) and on Conciliation with America (1775), Burke emerged as a leading critic of British coercion of the colonists and an advocate for a negotiated resolution to the imperial crisis. He is perhaps best known to students of the Age of Revolutions as the author of the brilliant Reflections on the Revolution in France (1790) that predated but seemed nonetheless to anticipate the excesses of the movement to overthrow the Ancien Régime.

The Hastings affair of 1787-1795 fell in between these landmark moments of the Atlantic revolutionary era and, on its face, seems to have little to do with revolution per se. Because it generated one of the eighteenth century’s most powerful critiques of imperial hubris, however, the Hastings trial was very much a product of the Age of Revolutions. Indeed, the path to the Hastings impeachment passed through some of the same events that made the American and French revolutions possible, most notably the Seven Years War (1754-1763), which ended with Britain displacing France as the leading European power in the Indian subcontinent. In 1765, the British East India Company wrangled the right to collect the diwan (land tax) for the territories of Bengal and Bihar from the Mughal emperor, a power that transformed the Company from a monopoly trading company into a territorial sovereign (or a “company-state,” in Philip Stern’s suggestive phrase).

In an effort to assert greater oversight of the Company’s all-powerful officials and private army in India, Parliament in 1773 created the position of governor-general, a post that Warren Hastings would hold for more than a decade. For Burke and other critics of Hastings, this dual system of public and private government did little to restrain the worst impulses of Britain’s imperial presence in the subcontinent. The twenty-two articles by which Burke charged Hastings in the House of Commons in 1787 included everything from financial corruption and bribery to stealing the land of orphans and promoting the rapacious treatment of peasants across three of the Mughal Empire’s greatest provinces.

In the trial of President Trump, Burke’s prosecution of Hastings figured not as the powerful and expansive indictment of imperial rule that it was but rather in the narrow terms of originalist constitutional interpretation. The President’s trial memorandum cited the Hastings impeachment for the proposition that a president cannot be impeached until he has first been heard by the House of Representatives. (As I have told my students, this absurd rendering of the significance of the Hastings case earns an emphatic “F” on both historical and legal grounds.). A more contentious dispute goes to the implications of the Hastings affairs for the framers’ understanding of the meaning of “high crimes and misdemeanors.” Alan Dershowitz, who along with Ken Starr was one of two deeply ironic members of the President’s legal team, argued that the framers meant this term to encompass only conduct that can be charged under existing criminal law. Because abuse of power and obstruction of Congress (according to Dershowitz) are not criminal offenses, it follows that the President cannot have been guilty of impeachable conduct.

The vast majority of scholars who have studied this matter disagree with Dershowitz, citing an exchange between George Mason and James Madison that occurred near the very end of the 1787 Constitutional Convention.[1] On September 8, according to Madison’s notes, Mason objected to a proposed version of the impeachment clause that would have applied only to “treason and bribery.” Mason, like Madison a delegate from Virginia, pointed out that “[t]reason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason.” Mason therefore proposed to remedy the narrowness of the clause by adding the offense of “maladministration.” After Madison replied that such an amendment would make the President removable at the pleasure of the Senate, Mason promptly withdrew his amendment and substituted the phrase “other high crimes and misdemeanors”—a modification that was approved by a vote of eight to three.

As Frank Bowman and other constitutional scholars have persuasively explained, this passage—which pivots almost entirely on the Hastings affair—suggests that the framers did not understand “high crimes and misdemeanors” to be limited to those offenses that were specified in the existing criminal law. In his opening speech before the House of Lords in February 1788, Burke argued that Hastings’ misdeeds “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.” Because the twenty-two articles of impeachment against Hastings did not recite technical criminal offenses but rather abuses of the natural rights of the Indian people, it follows that President Trump need not have committed criminal official conduct in order to be guilty of “high crimes and misdemeanors.” (This assumes, of course, that the two articles by which the President was impeached did not in fact include criminal allegations.)

In contrast to these narrowly instrumental readings of the Hastings case, historians and political philosophers have turned to Burke and the Age of Revolutions for a different set of lessons. For some, those lessons have to do with the importance of using persuasive moral rhetoric in framing political and legal debates. As Rob Goodman notes in an excellent article for The Atlantic, Burke’s purpose in concentrating his rhetorical firepower on a single figure (Hastings) was to “shape public perception of the system under which such a man had come to accumulate such power.” Indeed, the “system” was almost necessarily the only real target of Burke’s eloquence, for Hastings had retired from the governor-generalship in 1785, so a conviction would not have resulted in his removal from office.[2]

By contrast, our own impeachment drama has centered entirely on the question of whether the sitting President Trump can and should be removed from office. In the highly polarized and polemical back and forth between the prosecution and defense of the past few weeks, what was missing was precisely an understanding of “the system” in which our partisan national debates are contained. The core of the case against President Trump was not that he was attempting to dictate how another country should conduct its affairs, but rather than he was doing so in order to discredit a political opponent, thereby inviting foreign interference in an American election (and, in the process, defying a congressional determination as to how American foreign aid should be distributed). The “mere” exercise of American imperial power per se, by contrast, seemed to pass muster as an entirely innocent matter. It was assumed on both sides of this ferocious American political contest—Democrat and Republican—that it is the job of the United States to tell other countries how they ought to act in matters of their own domestic policy. Somehow, the provision of foreign aid (military or otherwise) is supposed to license the United States to extract concessions from, and exert pressure on, other countries that “voluntarily” accept that aid—as if a nation staring down the barrel of a Russian gun can be said to be acting “voluntarily” in any meaningful sense.

The relationship between the United States and the Ukraine, of course, is very different from the relationship between Britain and India in the eighteenth century. Let us, moreover, be clear that President Trump poses many dangers, and there are urgent political reasons for historians (as both citizens and scholars) to oppose his particularly authoritarian and racist brand of presidential leadership. But the job of the historian (as opposed to the biographer, the cable TV pundit, or the psychologist, for example) is to identify contexts that do not reduce to the motives and actions of a single individual. The path that led to the impeachment of Trump passes through some unspoken and widely shared assumptions about the legitimacy of American imperial power as it is formally and informally exercised through many different channels, most notably the use of foreign aid as a lever to force other nations to act in ways inconsistent with the interests of their own people. In this respect, the far-reaching critique of imperial power that the Age of Revolutions generated still has important lessons to teach us about some of the lingering blind spots of our own, ostensibly post-imperial political culture.

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Malick W. Ghachem teaches history at MIT.  His primary area of interest is the eighteenth-century Atlantic world, with an emphasis on questions of law, revolution, and slavery.

Title image: Sir Joshua Reynolds, Portrait of Edmund Burke, circa 1769 (left). Photo of Adam Schiff (right)

Further Readings:

Bowman, Frank O. High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. New York: Cambridge University Press, 2012.

Bourke, Richard. Empire and Revolution: The Political Life of Edmund Burke. Princeton, NJ: Princeton University Press, 2015.

Burke, Edmund. On Empire, Liberty, and Reform: Speeches and Writings, ed. David Bromwich. New Haven: Yale University Press, 2000.

Marshall, P.J. The Impeachment of Warren Hastings. Oxford, UK: Oxford University Press, 1965.

Stern, Philip. The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India. New York: Oxford University Press, 2012.

Endnotes:

[1] The framers convened in Philadelphia only days after Hastings was arrested and made to appear before Parliament for the first time, and the Hastings trial was widely reported in the American press.

[2] In 1795, Hastings was finally acquitted on all counts.