misdemeanor / high misdemeanor

22 December 2019

As even non-lawyers know, in current U.S. legal parlance a misdemeanor is a less serious crime, whereas more serious crimes are classified as felonies. But what is the origin of the term? And how did it come to be used in the context of presidential impeachments in the phrase high crimes and misdemeanors?

Misdemeanor dates to 1487 in the form misdemeaning, where it appears in the Rolls of Parliament (Rotuli parliamentorum), 1278–1503:

For othre misdemenyng of the said John Morys ayenst your Highnesse.

The form misdemeanor appears a few decades letter in a 1504 law code, Act 19 Hen. VII, c. 14 §8:

This Acte to take his effect and begynnyng for such reteynours and offences and other Mysdemeanours as shalbe doon...contrary to the forme of this acte.

The distinction between felonies and misdemeanors in British law was abolished in 1967, but it is retained in the U.S.

Demeanor means conduct, so a misdemeanor is literally bad conduct. It comes from the verb to demean, meaning to conduct, to transact business and to behave oneself. Both senses of demean date to the 14th century. In Old French, the verb dates to the eleventh century, where it appears in La Chanson de Roland.

An ordinary misdemeanor is not to be confused with a high misdemeanor, which is legal horse of a different color. High misdemeanor is a largely archaic term except for one important context, the impeachment of officers, including the president, and judges of the United States. Article II of the U.S. Constitution states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

So a high misdemeanor is very serious misconduct, not a minor offense. The phrase appears as early as 1614 in the Charge of Sir Francis Bacon Knight, His Maiesties Attourney Generall, Touching Duells:

Wheresoeuer an offence is capitall or matter of fellony, if it be acted and performed, there the conspiracy, combination, or practise tending to the same offence is punishable as a high misdemeanor, although they neuer were performed.

Blackstone’s Commentaries on the Laws of England (1765-69) gives the phrase more definition:

Misprisions, which are merely positive, are generally denominated contempts or high misdemesnors; 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 house of peers shall deem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability.

When writing the U.S. Constitution, the framers were relying on this English legal tradition. The passage regarding impeachment was revised several times, and this gives us today a fairly good idea of what the framers meant by the term high misdemeanor. The original draft included only “treason and bribery” in the list of offenses. George Mason thought this too limiting and suggested the list be replaced by the word “maladministration.” But the framers thought that too broad a criterion, which would lead to impeachment for differences over policy and make the president subservient to the senate. So, Mason suggested the present language, which was accepted.

A high misdemeanor does not have to be a crime—the use of the phrase in the Constitution predates the U.S. Criminal Code, so that can’t be what the framers meant. And several federal judges were impeached in the nineteenth century for being intoxicated while on the bench, with the first one being in 1803, when many of the framers were still serving in the House and Senate and presumably understood what they had intended the phrase to mean. Being drunk on the bench is improper behavior to be sure but hardly a crime. A high misdemeanor is, perhaps, better defined as a violation of the public trust or one’s oath of office. Alexander Hamilton, in Federalist 65, writes of high misdemeanors:

Those offences 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.

There have been three presidential impeachments in U.S. history. (The case of Richard Nixon would have resulted in another impeachment had he not resigned before the House voted on his articles of impeachment.) Andrew Johnson was impeached in 1868 for violating the Tenure of Office Act by dismissing and replacing his Secretary of War without the consent of the Senate and for “bringing disgrace and ridicule to the presidency by his aforementioned words and actions.” Neither of these are crimes, but the first is a clear violation of his oath to “faithfully execute the laws of the United States.” Johnson was acquitted by the Senate by only one vote. Bill Clinton was impeached in 1998 for lying under oath to a grand jury and by so doing obstructing justice. Both of these are crimes, but the nature of the lie, to cover up an extramarital affair, is hardly a violation of the public trust, so whether or not this case constituted a high misdemeanor is a matter of opinion. Clinton too was acquitted by the Senate. In 2019, Donald Trump was impeached for “abuse of power” and “obstruction of justice.” The article on abuse of power included the elements of the crime of bribery but did not use that word. The obstruction of justice charge was for preventing administration officials from obeying Congressional subpoenas. Both are crimes, with the one essentially constituting bribery, which is explicitly defined in the Constitution as an impeachable offense, as well as violations of the public trust. As of this writing, the Senate has yet to take up the case, but it is expected to acquit him of both charges.

Given this history, perhaps then-Representative Gerald Ford was correct when in 1970 he defined an impeachable offense and high misdemeanor as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” Ford, of course, would become president after Nixon was driven from office by an impeachment inquiry.

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Sources:

Oxford English Dictionary, third edition, June 2002, s. v. misdemeanour, n.; misdemeaning, n.

Oxford English Dictionary, second edition, 1989, s. v. demeanour, n.; demean, v.1.

meritocracy

30 April 2019

The term meritocracy arose in socialist circles in the 1950s as a derisive term for a new system of class oppression. The first known use of the term is by Alan Fox in the journal Socialist Commentary of May 1956. Fox writes:

[Social stratification] will remain as long as we assume it to be a law of nature that those of higher occupational status must not only enjoy markedly superior education as well but also, by right and necessity, have a higher income in the bargain. As long as that assumption remains—as long as violation of it are regarded as grotesque paradoxes—then so long will our society be divisible into the blessed and the unblessed—those who get the best of everything, and those who get the poorest and the least. This way lies the “meritocracy”; the society in which the gifted, the smart, the energetic, the ambitious and the ruthless are carefully sifted out and helped towards their destined positions of dominance, where they proceed not only to enjoy the fulfillment of exercising their natural endowment but also to receive a fat bonus thrown in for good measure.

This is not enough. Merely to devise bigger and better “sieves” (“equality of opportunity”) to help the clever boys get to the top and then pile rewards on them when they get there is the vision of a certain brand of New Conservatism; it has never been the vision of socialism.

(I include this lengthy quotation because copies of the original source are difficult to find—as far as I know, it hasn’t been digitized—and the brief quotation in the Oxford English Dictionary doesn’t fully convey the context or tone of its use.)

The term made its way into mainstream discourse via the publication of Michael Young’s 1958 The Rise of the Meritocracy, 1870–2033: The New Elite of Our Social Revolution. Young’s book is a satirical look at 1950s British society from the perspective of someone writing from the distant perspective of the year 2034. Young writes:

Before the meritocracy was fully established, age-stratification as a substitute for the hereditary order may have been necessary for the sake of social stability.

Young is basically echoing Fox’s sentiment that the meritocracy is simply a replacement of one class of bosses with another. In this case, the hereditary rulers of Britain had been replaced by a seniority system (“age-stratification”), which, in the 1950s, was being replaced by one based on perceived merit. Young’s book made something of a splash, and was much commented upon in the mainstream press upon its publication.

Young later claimed to have coined the term, and he may have used it without conscious awareness that it was already in use. And many writers have followed suit, crediting Young with coining the term. But he did not—as any quick look at the OED, which contains the Fox citation from two years earlier, would confirm. Young was simply using a term that was already in use by those discussing the problems of social and economic stratification.

Meritocracy was originally derisive, not satirical, although Young’s book is definitely satire. But it is certainly ironic that twenty-first century capitalism has adopted this socialist slur as justification for its existence.

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Sources:

Fox, Alan. “Class and Equality.” Socialist Commentary. May 1956, 13.

Oxford English Dictionary, third edition. September 2001. s. v. meritocracy, n.

Young, Michael. The Rise of the Meritocracy, 1870–2033: The New Elite of Our Social Revolution. New York: Random House, 1959, 71–72. (Published in Britain by Thames and Hudson the previous year.)

Zimmer, Ben. “A ‘Meritocracy’ Is Not What People Think It Is.” The Atlantic. 14 March 2019.

meme

26 October 2019

Boromir meme with caption “one does not simply create a meme”

Most of us are familiar with memes, those images with varying text that propagate, often virally, through the internet, but where does the word meme come from?

It may be surprising to many, but the word meme was coined by biologist and famed promoter of atheism Richard Dawkins in 1976. Dawkins was trying to label those bits of culture that spread and become iconic. He considered these bits of culture to be analogous to biological genes. From his book The Selfish Gene:

The new soup is the soup of human culture. We need a name for the new replicator, a noun which conveys the idea of a unit of cultural transmission, or a unit of imitation. “Mimeme” comes from a suitable Greek root, but I want a monosyllable that sounds a bit like “gene.” I hope my classicist friends will forgive me if I abbreviate mimeme to meme [...] It should be pronounced to rhyme with “cream.” Examples of memes are tunes, ideas, catch-phrases, clothes fashions, ways of making pots or of building arches.

It wasn’t until around 1998 that meme was applied to the internet images we know today. While this is a more specific application of Dawkins’s original sense, it is true to general principles: they are cultural units; they spread, with successful ones outcompeting less prolific ones; and, like biological genes, they can mutate (the changing text that overlays the images).

The first citation in this newer, more specific, sense in the OED is from the CNN program Science and Technology Week of 24 January 1998, in reference to the computer-generated image of a dancing baby that had appeared on the television show Ally McBeal that month:

The next thing you know, his friends have forwarded it on and it’s become a net meme.

From Richard Dawkins to Ally McBeal to internet phenomenon, but a bad start for a short, little word.

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Sources:

Oxford English Dictionary, third edition, June 2001, s. v. meme, n.

Mecca

25 May 2019

Mecca is a place name, a toponym, that has acquired a figurative meaning over the years. Literally, it is a city in Saudi Arabia, the birthplace of the prophet Muhammad, to which devout Muslims are required to undertake a pilgrimage to at some point in their lives. Figuratively, it is used to refer to any place that attracts a certain group of people or that is the center of their activity, as in, Las Vegas is a Mecca for gamblers or the new mall is a mecca for shoppers. The pilgrimage metaphor underlying the figurative sense is obvious, but when did the sense develop?

Mecca is a variation on the Arabic name for the city, Makka or Makkah. An earlier name for the city is Bakkah, but in present-day usage that word is generally reserved for the sacred space around the Kaaba within the modern city. The ultimate etymologies of both names are obscure.

The figurative use developed in the early nineteenth century. Edward Baines, in his 1817 History of the Wars of the French Revolution, wrote of the conflict between the British East India Company and the Maratha Empire in India:

Colonel Harcourt accordingly proceeded to Jagarnaut, the Mecca of the Hindoos, and on the 18th encamped in the neighbourhood of this metropolis of idolatry, the Pagoda having been previously evacuated by the Mahratta forces.

Here the use is still in a religious context but is not a reference to Islam.

The metaphor is completely separated from religion within a few years. An anonymous writer, going by the name of Scotus, writes of the glories of an Edinburgh medical education in the pages of the Lancet in 1826:

It was consequently the “Mecca,” the “Delphic Oracle,” the “Vale of Egeria,” to which all studious pilgrims should resort to drink of the pure springs of knowledge.

Many Muslims consider the figurative use of Mecca to be offensive, and it’s easy to see why when a spiritual practice is associated with such materialistic pursuits like gambling or shopping. To ameliorate this, many style guides recommend using lower case and an indefinite article when using Mecca figuratively, but that doesn’t seem like much of a fix.

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Sources:

Baines, Edward. History of the Wars of the French Revolution, vol. 1 of 2. London: Longman, Hurst, Rees, Orme, and Brown, 1817, 451.

Oxford English Dictionary, third edition, June 2011, s.v. Mecca, n.

Scotus. “Sketches of the Medical Schools of Scotland.” The Lancet, vol. 7, no. 169, 25 November 1826, 254–256: 254.

measles

2 July 2019

The measles is a potentially fatal disease caused by a Morbillivirus, and it is one of the most highly contagious diseases that infect humans. The disease, once rendered rare in the industrialized world, has made a comeback in recent years, largely due to low rates of vaccination. But the name measles is an odd one with an innocuous connotation that belies how dangerous the disease really is. Where does the name measles come from?

Measles comes from a Germanic root, but its exact route into English is uncertain. It appears by the early fourteenth century and is either a borrowing of the Middle Dutch masels or the Middle Low German maselen. Both of these Germanic etymons are plural, just like the English word. The Old Saxon masala is a blood blister, and the disease’s name comes from the red pustules that appear on the skin during the course of the disease.

The first known use of the word in English is from before 1325 in Walter of Bibbesworth’s Tretiz. Bibbesworth, an Essex knight, wrote the treatise to instruct English speakers in Anglo-Norman French vocabulary. He glosses the Anglo-Norman word rugeroles with maseles (or maselinges depending on which manuscript you consult). Rugerole literally means “red poppy” and was used to refer to the red rash caused by a variety of diseases. Here, Bibbesworth is referring not to the disease we now refer to as measles, but to a sexually transmitted one. And in early use the word was used to refer to any disease that caused red spots.

The form maselinges in one copy of Bibbesworth’s treatise can still be found in the form measlings in certain regions of Britain. This form comes to English via Scandinavia (compare the Swedish mässlingen, the Danish mæslinger, and the Icelandic mislingar—all plural forms), but this Scandinavian form comes from the Dutch/Low German word, just like the more common measles.

There is also the now obsolete mesel, originally referring to leprosy or other skin diseases and later extended to repellent individuals in general. This word also first appears in English around the year 1300, but it is of a very different origin, coming from the Anglo-Norman mesel, meaning “leprous, leper, repellent person” and ultimately from the Latin misellus, meaning “poor, wretched.” This word undoubtedly had and influence on the spelling and pronunciation of measles, but it’s not of the same origin.

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Sources:

Anglo-Norman Dictionary, 1977–92, s. v. rugerole.

Middle English Dictionary, 2018, s. v. masel, n.

Oxford English Dictionary, third edition, March 2001, s. v. measles, n., measlings, n., mesel, adj. and n. n.

Sayers, William, “A Popular View of Sexually Transmitted Disease in Late Thirteenth-Century Britain.” Mediaevistik, vol. 23, 2010, 187–96.