646
Kennedy, J., dissenting
Clarendon's offense merited under the law established at the time of its commission, and was instead premised on Parliament's exaggeration of the gravity of the offense. Viewed this way, the Clarendon example lends no support to the majority's position, but instead undercuts it.
It must be acknowledged that, as the majority points out, a number of historians have treated one of the charges levied against Clarendon, that of betraying the King's secrets to the enemy, as impeachable treason. Ante, at 622-623. The historical judgment, however, is not as uniform as the Court makes it seem. See 7 E. Foss, Judges of England 130 (1864) ("No one can read the articles [against Clarendon] without seeing the weakness and frivolity of the allegations, none of them, even if true, amounting to treason"); R. Berger, Impeachment: The Constitutional Problems 45-46 (1974) (explaining the articles of impeachment against Clarendon as based on the Parliament's power to declare certain nontreasonous offenses to be treason).
Historians are in agreement, though, that the Commons could not substantiate the charge of betraying secrets to the enemy. 2 H. Hallam, Constitutional History of England: From the Accession of Henry VII to the Death of George II 367, 373 (rev. ed. 1881); Roberts, The Impeachment of the Earl of Clarendon, 13 Camb. Hist. J. 13-14 (1957); Roberts, The Law of Impeachment in Stuart England, 84 Yale L. J. 1419, 1426 (1975); Berger, supra, at 45, n. 193. It is due to this absence of evidence that the Commons refused to produce particulars of the treason charge against Clarendon, insisting instead the Lords trust their word that the underlying conduct was treasonous. Although the technical grounds for the Lords' objection to this charge was the lack of specificity, the objection can also be viewed as reflecting a belief that the Commons were attempting to aggravate Clarendon's offenses by labeling them as treason absent any justification. As Henry Hallam has explained in his respected study of the English constitutional history, "if the
Page: Index Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 NextLast modified: October 4, 2007