The first is William Blackstone's Commentaries on the Laws of England from 1765. In Book 4, Chapter 9, "Of Misprisions and Contempts, affecting the King and Government", there is a section on "contempts or high misdemeanours"
of which: The first and principal 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 peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability. Hitherto also may be referred the offence of embezzling the public money, called among the Romans peculatus, which the Julian law punished with death in a magistrate, and with deportation, or banishment, in a private person. With us it is not a capital crime, but subjects the committer of it to a discretionary fine and imprisonment.4 Other misprisions are, in general, such contempts of the executive magistrate as demonstrate themselves by some arrogant and undutiful behaviour towards the king and government.
Chapter 10, "Of Offences against Public Justice" describes another set of offenses punishable by impeachment: the "negligence of public officers, entrusted with the administration of justice." Blackstone condemns, in strong terms, a particular "offence against public justice, which is a crime of deep malignity," and especially so because "there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution." That offence is "the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office." All such offences against public justice could be prosecuted "by impeachment in parliament". Such misconduct was "sure to be severely punished" with penalties including forfeiture of office.
Again, in Chapter 19, Blackstone distinguished among "Courts of a Criminal Jurisdiction" and referred to the jurisdiction of parliamentary impeachment as concerned with “high misdemeanors” committed by high officials or peers:
For, though in general the union of the legislative and judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish.
The upshot is clear: As a matter of English practice and authoritative commentary by the mid eighteenth century, impeachment embraced offenses involving official misconduct not necessarily punishable by the ordinary criminal law.
The second place I would go to is Number 65 of the
Federalist Papers. Alexander Hamilton wrote
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
Hamilton clearly foresaw Moscow Mitch and his political shenanigans in this case. And he would not approve.
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