Constitutional history in the Anglosphere is a unity, and an ancient unity:
… there is an absolute continuity between medieval and modern constitutionalism. When President Nixon got into his helicopter and left the White House lawn and his office, he did so because he was afraid he would be impeached. Impeachment in the American constitution does not bear an accidental or trivial relationship to that which brought down Michael de la Pole, earl of Suffolk, chancellor of England in 1386. It was the same procedure and the descent can be traced without any shadow of doubt.
James Campbell, The Anglo-Saxon State.
F.W. Maitland noted as long ago as 1888 that impeachment in England had effectively died out. He noted that there had been only one impeachment in the 19th Century, and that back in 1805. The English procedure was akin to that provided in the U.S. Constitution. The House of Commons initiated an action against one of the king’s officers, who was then tried by the full House of Lords, sitting as a court. Unlike impeachment under the U.S. Constitution, which expressly restricts the penalty to removal from office, the English impeachment allowed any penalty the Lords saw fit to impose, including death. As we saw in the Clinton impeachment, the U.S. Senate acted in the unusual capacity of a court, as provided for by the Constitution, a vestige of its origins as an analog of the House of Lords, as the Founders intended.
Maitland noted that:
It seems highly improbable that recourse will again be had to this ancient weapon unless we had a time of revolution before us. If a statesman has really committed a crime then he can be tried like any other criminal: if he has been guilty of some misdoing not a crime, it seems far better that it should go unpunished than that new law should be invented for the occasion, and that by a tribunal of politicians and partisans; for such misdoings disgrace and loss of office are now-a-days sufficient punishments. Lastly a modern House of Commons will hardly be brought to admit that in order to control the king’s advisers it needs the aid of the House of Peers. However, there the old weapon is – an accusation by the commons of England at the bar of the House of Lords.
(Maitland, The Constitutional History of England.) I do not believe there has been any other impeachment in Britain since. So, this “old weapon” has most likely fallen into permanent desuetude. I suppose there is the remote prospect that an appointed House of Lords might be considered a more appropriate venue for an impeachment than a hereditary one, making a reappearance of this practice theoretically possible. Of course, if Britain were to go to an elective House of Lords, any power of impeachment would probably be expressly provided for by the enabling statute or written Constitution, whichever was employed. Retention of the right to summarily impose the death penalty on erring officers of the Crown is unlikely to be provided for, if the current soft-hearted attitudes continue to prevail. Not that there is anything wrong with that.
Our written American Constitution has allowed us to retain more of these ancient vestiges than the English one, curiously enough. The Second Amendment is a good example. The provision in the Bill of Rights of 1689 which it was based on holds that those “…subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law” — is now a dead letter. There is no way for a provision to “drop out” of the U.S. Constitution, short of amendment. A court may say that a provision is obsolete, but a later court may find a use for anything which is still there. “Young” America has a more “Ancient” Constitution than “Old” England, and has retained more of its freedom as a result.
(Cross-posted on Albion’s Seedling.)