High Crimes and Misdemeanors from Blackstone

With impeachment being the center focus of news today, and the phrase “high crimes and misdemeanors” being debated, I thought it’d be useful to have some historical context.

So rather than argue over different modern interpretations for the phrase, I’m going to look at one specific source that keeps coming up when talking about our Founding Fathers’ interpretation of it. Blackstone’s Commentaries on the Laws of England in Four Books, published in the 1760’s. I’ll give my general interpretations, but my main goal is to show you the source material that our Founders would have based their understanding of high crimes and misdemeanors on.

Most of the following quotes come out of book four, with a few from book one, and I’ll add inline links to the pages from copies of the books found on The Internet Archive, with full links at the bottom.

A small note before getting into the text, there are two spellings for misdemeanors, the American English “misdemeanor” and the British English “misdemeanours.” Blackstone, however, in the early editions uses the spelling “misdemesnor,” and if you look at the actual text, he uses the long ‘s’ (which we now use in math for the integral sign). Later editions updated the spelling, but the edition I’m citing is one of the earlier printings, and I’ve left that archaic spelling in, along with the original punctuation, so you’ll get the same 1700’s version that they likely would have had in our Founders’ libraries.

Now to Blackstone.

In book one, in the first chapter, he divides up laws in several different sub-categories or classifications.

His first division is into “the rights that are commanded, and secondly the wrongs that are forbidden.”(Blackstone 1st, 118)

From this division he breaks them down again, with our interest in his division of wrongs:

Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors. (Blackstone 1st, 118)

So public wrongs are crimes and misdemeanors. A pretty straightforward and simple overview.

Moving on from the overview in Blackstone, in book four, titled “On Public Wrongs” he gives us his full definition of crimes and misdemeanors:

A crime, or misdemesnor, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours; which, properly speaking, are mere synonymous terms: though, in common usage, the word, “crimes,” is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler names of “misdemesnors” only. (Blackstone 4th, 5)

So to further confuse some of our modern understanding, in the definition he says that crimes and misdemeanors are synonymous terms. Yet, he also says that in common usage “crimes” denotes more serious offenses, while “misdemeanors” denotes small faults or omissions. Which comports with our current usage of misdemeanor, with “crimes” being replaced with “felonies” in our legal system for crimes of a more serious nature.

He further explains the distinction between public and private wrongs in the next paragraph:

The distinction of public wrongs from private, of crimes and misdemesnors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemesnors, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in it’s social aggregate capacity. As, if I detain a field from another man, to which the law has given him a right, this is a civil injury, and not a crime; for here only the right of an individual is concerned, and it is immaterial to the public which of us is in possession of the land: but treason, murder, and robbery are properly ranked among crimes; since, besides the injury done to individuals, they strike at the very being of society; which cannot possibly subsist, where actions of this sort are suffered to escape with impunity. (Blackstone 4th, 5)

This is where our modern usage differs slightly from the historical use. We wouldn’t call treason or murder a serious crime or misdemeanor, as murder is a felony, or a capital offense. A private wrong is strictly interfering with a right specifically given to a person by the government. He uses the example of detaining a field from a man whose has been given the right to that field. Since no man has any inherent right to own land, this is a right that extends from laws, and the public is not harmed or even necessarily aware of such a dispute.

Crimes, proper crimes as Blackstone puts it, are ones that extend beyond the injury done to individuals. He notes, however, that:

“In all cases the crime includes an injury: every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community.”(Blackstone 4th, 5)

So crimes and misdemeanors are both crimes and civil injuries. Murder is a civil injury, in that a single person’s life is taken away from them, but society loses one of its members and is harmed as well.

That is a general overview of Blackstone’s definition of crimes and misdemeanors. But what about high crimes and misdemeanors?

Blackstone does not use this exact phrase in his writing.

He does use high misdemeanor though, and as we’ve covered, crimes and misdemeanors are synonymous terms to Blackstone.

One of the first usages of high misdemeanor comes in book four. In his descriptions of private wrongs, he covers high treason, which is an act against the crown or government. When there is not action, but merely words spoken against the crown or government, it only amounts to a high misdemeanor. [3] The example Blackstone gives if of a gentleman, whose favorite buck is killed by the king, wishes the buck, horns and all, in the king’s belly. Since these would be words alone, without any evidence of intent to act upon them, they would not rise to high treason. However, since they still display a desire, even if one not acted upon, to harm the crown, and by extension (as far as England was concerned at the time) a desire to harm all of society, it could still be a misdemeanor. A public wrong. (Blackstone 4th, 80)

To understand this usage of high misdemeanor, we have to look at misprisions. This will make sense after defining them:

“Misprisions (a term derived from the old French mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offences as are under the degree of capital, but nearly bordering thereon: and it is said that a misprision is contained in every treason and felony whatsoever; and that, if the king so please, the offender may be proceeded against for the misprision only.” (Blackstone 4th, 119)

So in our common understanding, just as all crimes and misdemeanors contain a private injury along with a public offence, all treason or felonies contain a misprision. The misprision is the action of neglect or contempt towards the crown or government.

Misprisions break down into two categories, as Blackstone likes to do, with negative misprisions consisting in the concealment of something which ought to be revealed, and positive misprisions consisting in the commission of something which ought not to be done. (Blackstone 4th, 119)

An example given for a negative misprision is misprision of treason. This would consist of the bare knowledge and concealment of treason, without taking any actions to aid, assist, or even displays of support. Knowing of a treasonous meeting and concealing it would be a misprision of treason. Attending a meeting that you were aware was treasonous before attending, is considered assent rising to high treason.(Blackstone 4th, 120)

A positive misprision is where this all comes back to high crimes and misdemeanors. Blackstone gives us this general definition of a positive misprision:

“Misprisions, which are merely positive, are generally denominated contempts or high misdemesnors.” (Blackstone 4th, 121)

He then lists 5 or 6 positive misprisions, which I’ll condense below:

1. 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. (Blackstone 4th, 121)

2. Contempts against the king’s prerogative. As, by refusing to assist him for the good of the public; either in his councils, by advice, if called upon, or in his wars, by personal service for defence of the realm, against rebellion or invasion. (Blackstone 4th, 122)

3. Contempts and misprisions against the king’s person and government, may be by speaking or writing against them, cursing or wishing him ill, giving out scandalous stories concerning him, or doing any thing that may tend to lessen him in the esteem of his subjects, may weaken his government, or may raise jealousies between him and his people. (Blackstone 4th, 123)

4. Contempts against the king’s title, not amounting to treason or præmunire, are the denial of his right to the crown in common and unadvised discourse; for, if it be by advisedly speaking, we have seen that it amounts to a præmunire. (Blackstone 4th, 123)

5. Contempts against the king’s palaces or courts of justice have been always looked upon as high misprisions: and by the antient law, before the conquest, fighting in the king’s palace, or before the king’s judges, was punished with death.(Blackstone 4th, 124)

[Blackstone forgot or decided not to number this one]Lastly, to endeavour to dissuade a witness from giving evidence; to disclose an examination before the privy council; or, to advise a prisoner to stand mute; (all of which are impediments of justice) are high misprisions, and contempts of the king’s courts, and punishable by fine and imprisonment.(Blackstone 4th, 126)

A high misdemeanor then is doing something that ought not to be done, usually in regards to the crown or government. A sort of lesser treason, where the act is contemptuous and interferes with the operations of government.

To sum up everything, crimes and misdemeanors are public offences. Not in our modern sense of a public offence, but rather, any crime that harms the public. Treason and murder being extreme examples that would fall into this category. Misdemeanor had the similar common use meaning of being a crime of lesser offense.

High misdemeanors, a term generally used for positive misprisions, are mal-administration by high officers employed in some place of public trust, or some contempt against the king or government.

It is no surprise that these crimes are rather confusing is the U.S., as our legal definition of treason is intentionally very narrow. However, when our Constitution was written, these were some of the legal principles that were understood and used by our Founding Fathers.

It also makes me wonder… when Madison objected to “maladministration” for being too vague, so Mason proposed substituting in “other high crimes & misdemeanors” instead, was Mason suggesting it in partial jest, as maladministration is a specific type of high misdemeanor, to see if Madison understood what he was objecting to, or just disliked the sound of maladministration? Or maybe they thought high crimes and misdemeanors was more clear in defining them as public wrongs that were done intentionally with contempt, rather than from negligence or incompetence?

But that is a topic for another day. I hope this helps gives a better understanding of high crimes and misdemeanors based on one of the sources most cited by those who wrote our Constitution.

Blackstone, William Commentaries On The Laws Of England. Book The First., 1765. Internet Archive, www.archive.org/details/lawsofenglandc01blacuoft/

Blackstone, William Commentaries On The Laws Of England. Book The Fourth., 1769. Internet Archive, www.archive.org/details/lawsofenglandc04blacuoft/