Agitated late night tweets from the Oval Office are evidence of a President under stress as the Special Counsel’s investigation grinds ever close to 1600 Pennsylvania Avenue. Whatever the outcome of the Mueller investigation and the subsequent political theater, President Trump can take some consolation from the fact that the Founding Fathers did not import British impeachment wholesale into the U.S. Constitution. The British system allows for the defendant to a House of Commons bill of impeachment to be imprisoned in the Tower of London until trial. Penalties were also not limited to removal from office; they could include being placed in the stocks or public pillory, flogging, fines, forfeiture of assets, imprisonment, and even death. Furthermore under Section 4 of the Act of Settlement 1701, the Crown’s power to pardon under the Great Seal of England was removed for all cases of impeachment. If the House of Lords convicted on a bill of indictment from the Commons, there was no “get out of the Tower free” card that could be played by the Monarch.

U.S. impeachment was derived from the British procedure; as the Federalist papers say, “American impeachments stand on English feet.” The terminology is the same. So for example, the impeachment charge for much of the last five hundred years on any bill of indictment, as in the United States, was for “high crimes and misdemeanors.” And the outlines of the procedure are similarly bicameral: indictment in the Commons, and then trial in the Lords. However, the purpose, scope of application and penalties were (and are) very different. American impeachment, for one, cannot lead to flogging, asset forfeiture, or death by beheading. Under Article I, Section 3, paragraph 7 of the Constitution, the power of impeachment only applies to removal from office—though once removed, a former President could be subject to normal civil and criminal procedure, as any other citizen. Clearly in comparison to British impeachment, impeachment under the 1789 U.S. Constitution is a modernizing and liberalized measure, ensuring accountability but with appropriate due process safeguards.

The impeachment process grew out of Parliamentary frustration with the inability of its members to control Ministers of the Crown. Prior to the establishment of effective parliamentary government, parliamentary power was limited to the (the admittedly not inconsiderable) leverage of its consent to taxation. Impeachment was developed to further advance the control of Parliament over the Crown by holding its ministers, and potentially a broader set of executive and legislative officers, to account. It could be used to bring a particularly badly-behaved Minister personally to heel; be deployed symbolically pour encourager les autres to respect Parliament; or used to make a point about parliamentary opposition to Crown policy.

Some monarchs however went to reckless lengths to protect their ministers from the wrath of Parliament. In 1628 Charles I even suspended Parliament when his chief minister, the Duke of Buckingham, George Villiers, was subject to an indictment on a bill of impeachment in the Commons. The peremptory suspension of Parliament to protect an incompetent minister twice threatened with impeachment was a further step to civil war, and ultimately to the execution of Charles himself. Villiers benefited little from such monarchical protection. A few weeks later he was assassinated (to much public joy).

Although 72 individuals were impeached between 1372 and 1806 (when the last Commons bill of indictment failed to result in a conviction in the Lords), most impeachments took place in two historic phases. First, in the 14^th and 15^th centuries, in a period of dynastic disruption to the Crown, and second, during the period in the run up the civil war and execution of Charles I. Approximately one-quarter of all bills of impeachment in British history were tabled between 1620 and 1649. Frequent recourse to impeachment was an indication of English, then British, political crisis and a failure of the political system to develop effective means of political accountability.

After the English Civil War and the growth of Parliamentary control over the Crown’s ministers, the use of impeachment declined. It tended to be used in cases of rebellion (principally against treacherous Jacobite peers) and corruption, most notably in the case of Warren Hastings, Governor General of India, who was ultimately acquitted. The Founding Fathers would have been reading reports of Hastings’ trial in Westminster Hall, which began in 1788, while attending the Constitutional Convention. The details of the charges against Hastings—of bribery, corruption, and abuse of power—are likely to have had an impact on the members of the Convention when they were drafting the Constitution. No one has actually been convicted on a bill of impeachment since the middle of the 18^th century, and the last bill of indictment to reach the Lords was in 1806, when the defendant was Lord Melville, Secretary of State for War, for misappropriation of public money. (He, too, was acquitted.) Later cases, such as the attempt in 1846 to lay a bill of indictment against Lord Palmerston for allegedly agreeing a secret treaty with Russia (which may have a modern ring) also failed.

Impeachment is not governed by statute but is rather a common law process, contained in at least the earlier editions of the bible of British parliamentary procedure, Erskine May. What amounts in U.S. terms to a bill of indictment is drawn up by the Commons, and, as in the House of Representatives, a bill is carried by simple majority. Thereafter the procedure differs. Once indicted, the defendant has to appear before the bar of the House of Lords, where the Lord Chancellor, as Speaker of the Lords, would decide whether bail should be granted or the defendant should be placed in custody.

Trial in the Lords is similar to the one in the United States: a quasi-criminal procedure involving prosecution and defence counsel, the tendering of evidence, and cross-examination. However, unlike the Senate, the Lords may appoint a judge to run the procedure. Both houses sit as a jury, with two major differences. First, whilst the Senate has 100 members, the Lords have approximately 800, including 26 bishops. Second, conviction is not by two-thirds as in the Senate, but by simple majority.

The object of the British impeachment is not just removal from office, but punishment. The Lords can inflict any punishment known to law. Nor is impeachment limited to ministers of the Crown. All persons, including legislators, can be impeached. Even overzealous sermonizing London clerics in the 17^th and 18^th centuries occasionally found themselves on the wrong end of a bill of indictment. Only members of the royal family are immune from impeachment (no doubt a great relief to the Duchess of Sussex).

Various British parliamentary reform committees in the 1960s and 1970s had taken the view that the impeachment process was obsolete and should be expressly repealed. However, in 2004, a motion was laid before the House of Commons to set up a committee to draft a bill of indictment against then-British Prime Minister Tony Blair over his handling of the Iraq invasion. This was accepted by the Speaker, though it failed to gain sufficient support to be carried. It is therefore likely that British impeachment remains a dusty but potent legal weapon.

Again, President Trump can feel relieved—that he only has a Scottish mother, was born in the United States, and did not in fact lead the Brexit campaign and instead ran for the U.S. Presidency.