law of each State so far as each State has chosen to adopt it; but the United States did not bring the common law with them. There are no express words of adoption in the Constitution; and if a common law is to be assumed by implication, is it to be the common law of the individual States, and of which State? Or, is it to be the common law of England, and at what period? Are we to take it from the dark and barbarous pages of the common law, with all the feudal rigour and appendages; or is it to be taken as it has been ameliorated by the refinements of modern legislation? Would it not be absurd to refer us to the ancient common law of England? And if we are referred to it in its improved state, do we not rather adopt the statutes than the common law of that country? And is the common law to fluctuate for ever here as it may fluctuate there?

Here Mr. Dallas cited a variety of cases to show the extravagant length to which the ancient common law doctrine of impeachments had been extended, and insisted that there was no more occasion to go to the volumes of the English law for a glossary on the impeachment power, than for an exposition of the words "felony," "breach of the peace," &c. &c., all of which were in use, and perfectly understood, in the different States, before the present Constitution was established. The different States, speaking in the same language, make use of the same terms to express a similar idea; but, in instances innumerable, particularly on the subject of crimes and punishments, though their theories were the same their practice was widely different, not only with the practice of England, but with the practice of each other. Mr. Dallas then represented, and illustrated, the pernicious and absurd consequences that would ensue, either by adopting the penal common law of England, or the penal laws of the respective States, as the rule for the Federal Government. In the former event, though every State in the Union had rejected or amended the common law of crimes and punishments, all its rigour was to be revived and enforced; and, in the latter event, the principle of uniformity so anxiously sought after by the framers of the Constitution, and so essential to the administration of justice, would be effectually destroyed.

It is the object of the Constitution to establish a national government, independent in its operations, and with powers adequate to self-preservation. But Mr. Dallas observed, that the doctrine which the Managers contended for was at war with that object, and rendered the Government dependent upon the laws and usage of a foreign country. Nor was there the slightest necessity for the interposition of the doctrine, since the Constitution itself provides a means for carrying the impeachment power, as well as every other power, into effect; and if the cases and objects proper for impeachment are not sufficiently defined in the Constitution, Congress may pass a law to define and ascertain them.

The Honourable Manager has asserted, that the investment of the impeachment power is absolute. "The House of Representatives shall have the sole power of impeachment;" "the Senate shall have the sole power to try all impeachments." And, he contends, that the language of the 4th section of the 2d article, so far as it speaks of the "President, Vice-President, and all civil officers of the United States," is merely a recital, not to designate the objects of impeachment, but to point out a class of persons who, imperatively, "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours." But if this argument is just, it will equally apply in the case of the Executive and Judicial departments; for, the phraseology of the articles, with respect to the investment of their powers, is precisely the same; and the same common law code, to which we are referred for an exposition of the impeachment power, would also supply a political, technical, and exposition of the Executive and Judicial authority. Thus, in article the 2d, it is generally declared, that "the Executive

power shall be vested in a President of the United States of America ;" and the subsequent provisions may, with equal propriety, be denominated mere recital; designating a form of election, an oath of office, and some of the executive attributes. Again, in article 3d, it is generally declared, that “the Judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may, from time to time, ordain and establish;" but, surely, it was never thought that the power of the Federal Courts extended beyond the enumerated cases, though those cases are as much matter of recital as the cases prescribed for the exercise of the impeachment power.

2. But the doctrine is not only inconsistent with the general principles of our Federal compact, it is, also, inconsistent with the general policy of the law of impeachments. The system of criminal jurisprudence is co-extensive with all the ordinary objects of prosecution and punishment; but the jealousy that power might be used to protect official delinquents, gave rise to impeachments even in England. In the 2d vol. of Woodeson's Lectures, page 596, the fact is asserted. "It is certain (says that author) that magistrates and officers entrusted with the administration of public affairs, may abuse their delegated powers to the extensive detriment of the community, and, at the same time, in a manner not properly cognizable before the ordinary tribunals. The influence of such delinquents, and the nature of such offences, may not unsuitably engage the authority of the highest court, and the wisdom of the sagest assembly. The Commons, therefore, as the grand inquest of the nation, become suitors for penal justice; and they cannot, consistently either with their own dignity, or with safety to the accused, sue elsewhere but to those who share with them in the legislature. On this policy is founded the origin of impeachments, which began soon after the constitution assumed its present form." The author, in a subsequent page (p. 601), states, "that all the King's subjects are impeachable in Parliament; but with this distinction, that a peer may be so accused before his peers of any crime, a commoner (though, perhaps, it was formerly otherwise) can now be charged with misdemeanours only, not with any capital offence." This position, however, must be understood in co-incidence with the general policy previously stated; and then all subjects are impeachable, because all subjects may be magistrates and public officers. The instances specified by Woodeson are all of an official nature; and no other description of impeachment by the Commons can be traced in the English books.

Mr. Dallas proceeded to argue, that the policy of the law of impeachments being thus ascertained in England, any departure from it in the practice of that country ought not to be made a precedent in America. Wherever the appointment to office is independent of the people, the policy is the same, whatever may be the form of the Government: but the reason of the law shows, and limits, its extent. It is not within the reason of the law of impeachments that any man, who is not a public officer, should be so prosecuted; nor any public officer for an offence which has no relation to his public trust.

3. The doctrine, in fine, is inconsistent with a fair construction of the terms of the Constitution. The operative words are express: "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 misdemeanours." Art. 2, sec. 4. The previous clauses are only descriptive of the power, and distributive of its exercise; declaring that the sole power to institute, and the sole power to try, impeachments, shall belong to the branches of the Legislature respectively. They contain no description of the persons liable to impeachment, nor of the offences for which impeachment may be brought. To suppose that they include a jurisdiction. over all persons, for all offences, is to annihilate the trial by jury where a

punishment more severe than death, to an honourable mind, may be inflicted; it is to overthrow all the barriers of criminal jurisprudence; for every petty rogue may be tried by impeachment before this High Court for every offence within the indefinite classification of a misdemeanour.

The reason of the thing, as well as the expression, shows, however, that the offender must be a civil officer, to vest the jurisdiction of impeachment. For every other offender a competent punishment is provided in the ordinary tribunals; but, in the case of a public officer, no sentence strictly judicial, in any common law court can affect the tenure of his office. In the business of offices, to appoint, to re-appoint, or to abstain from re-appointing, are attributes and exercises of executive authority; the ordinary judicial authority cannot exercise them, nor restrain or regulate their exercise by the proper magistrate. Hence arose the necessity of the judgment in case of a conviction on impeachment; which, by declaring that the delinquent officer shall be removed, and that he shall never be re-appointed, affixes, in effect, a check, or limitation to the general power of the Executive.

But, if civil officers are not exclusively contemplated, why limit the judgment on impeachment simply to a removal and disqualification? The common law maxim says, that no man shall be twice tried for the same offence; and if the Senate may, on any charge against any offender, try the whole merits of the accusation and defence, why restrain them from pronouncing the whole judgment? Why multiply trials, and parcel out jurisdictions, when one trial, one jurisdiction, would accomplish every purpose of justice? There is an appearance of absurdity in the doctrine that cannot be overlooked. A private citizen, who holds no office, may be impeached, on the speculation that, at some period of his life, it is possible he should be appointed a public officer. And, if any sentence is pronounced, it must, in his case, be a perpetual disqualification; whereas, in the case of a man actually in office, the sentence may only extend to a present removal.

Again, if the bare designation of the party who should impeach, and of the party who should try impeachments, creates a jurisdiction over all persons for all offences, why should the subsequent clause specifically name the President, Vice-President, and all civil officers of the United States? They would, certainly, be included in the general authority; and it can be no answer to say, that it was with a view, imperatively, to command their removal on conviction, because the restricted judgment of the Senate points emphatically at their case-a removal from office and a perpetual disqualifi cation. Would not those officers be removed or disqualified for any offence for which a private citizen might be disqualified on impeachment, though it is not one of the enumerated offences? It is here, likewise, to be remarked, that the persons subject to removal, are to be "civil officers of the United States," excluding all idea of affecting the station of State officers; and yet State officers, as well as private citizens, are liable to impeachment before this Senate, according to the present claim of jurisdiction.

And here Mr. Dallas again asked, if the general investment of the power of impeachment created so unqualified a jurisdiction, by what law are we to be guided, in instituting, conducting, and concluding the process? There is no act of Congress adopting, or prescribing, a rule; and if it is a matter referred, by implication, to the English code, whence will the Senate derive a discretionary power, to adopt the modern, and reject the ancient law; to select the doctrine as it relates to Peers, or the doctrine as it relates to Commoners? No: the words do not permit this latitude of jurisdiction;-the reason of the case does not require it. On the contrary, the Constitution presents a complete and consistent system :-it declares who shall impeach, who shall try, who may be impeached, for what offences, and how the delinquents shall be punished. Finding all these arrangements in the Constitution, finding every

thing that was necessary to suit the means to the design, to introduce a practice in conformity with the policy of impeachments, it would be unjust and unreasonable to suppose the framers of that glorious instrument meant more than they have expressed, or left in doubt and ambiguity so important a part of their work. The power, as it relates to the civil officers of the United States, is expressly given ;-it is not expressly given, as it relates to any other description of citizens; and, therefore, it is enough to observe, that it cannot be assumed or implied. Here Mr. Dallas added, that if the power was assumed under the general terms of the investment, it would equally embrace the case of military and civil officers; and the imperative clause, as it has been called, only demands the removal of civil officers on a conviction; whereas the policy, if it operates in the way contended for, would apply as much to military as to civil officers.

Proceeding to the second branch of the first general proposition (that the offence, for which an impeachment lies, must be committed in the execution of an official trust) Mr. Dallas observed, that the argument had necessarily been, in a great measure, anticipated. The ordinary penal law and courts of justice can punish every offence, whether it is committed by a public officer, or by a private citizen; but as official offences can only be committed by public officers, and as it would be a dangerous encroachment on the Executive power, to authorize the judges to pronounce a removal from office, a provision has been wisely superadded, which is at once calculated to preserve the independence of the departments of government, and to secure the people from an abuse of the Executive authority. It is evident, however, from the description of persons and offences impeachable, and the qualified nature of the punishment to be inflicted on a conviction, that official offenders and offences were alone contemplated. This opinion is fortified by the express provisions of the Constitutions of the individual States. Here Mr. Dallas read extracts from the Constitutions of New Hampshire, Massachusetts, New York, Pennsylvania, North Carolina, South Carolina, Georgia, Vermont, Kentucky and Tennessee, all of which restricted the power of impeachment to the case of offences committed in office: And he remarked, that this being the sense of the States individually, it may fairly be presumed to be their sense collectively. In politics, as well as in mathematics, all the parts are equal to the whole; and when we find all the parts pursuing this policy, we must, in order to be consistent, ascribe the same policy to the whole, when acting on the same subject. But, it may be added, that even the House of Representatives seems to have entertained the opinion, that an impeachable offence must be an offence committed by an officer, in the execution of his office; since it is stated, as the gist of the charge, in the articles of impeachment, that the defendant was a Senator (which the prosecutors contend is an office) and that the misdemeanours imputed to him, were committed contrary to the duties of his station.

2. That a Senator is not a civil officer, impeachable within the meaning of the Constitution; and that, in the present instance, no crime or misdemeanour is charged to have been committed by William Blount, in the character of a Senator.

In entering upon the discussion of this general proposition, Mr. Dallas thought it necessary to notice a verbal criticism, to which the Honourable Manager, in a state of evident embarrassment, had condescended to resort, in maintainance of the claim of jurisdiction. It had been seriously urged, that there was a distinction between officers of, and officers under the United States; the former designating the officers forming the departments of the government, Executive and Legislative; the latter designating the officers appointed by the Executive Department. But a moment's consideration will incontestably show, that the expressions "officers of," and "officers under," the United States, are indiscriminately used in the Constitution. Thus, in

the very section on which the controversy turns, it is said, that "the President, Vice-President, and all civil officers of the United States, shall be removed on conviction, &c." Will it be admitted, that the Executive and Legislative Departments are alone liable to be removed, under this provision, and that it does not extend to officers under the United States, appointed by the President? But the very judgment to be pronounced excludes such a construction; for, "judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit under the United States."

Again: The Constitution declares, that "no person holding any office of profit, or trust, under the United States, shall, without the consent of Congress, accept of any present, &c." May the President, Vice-President, and members of either branch of the Legislature, being, as it is said, officers of the United States, accept a present, or a title, without the consent of Congress? Again: the Constitution declares, that "the President shall appoint all other officers of the United States:" does this give him no power to appoint officers under the United States? If it does not, whence does he derive that power, which he daily exercises? By the 6th article of the Constitution it is provided, that "the Senators and Representatives before mentioned, and the members of the several State Legislatures, and all Executive and judicial officers, both of the United States, and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office, or public trust, under the United States:" Now, is it reasonable to interpret this article, so as to require the political test only from officers of the United States, that is from the President and Members of the Legislature, and not from officers under the United States, that is from persons appointed by the Executive? Or so as to exempt officers under the United States, that is, officers appointed by the Executive, from the religious test, while such a test may be exacted from the President and Members of the Legislature, under the description of officers of the United States? This cursory analysis is a sufficient refutation of the distinction, which has been attempted on a mere quibble, or play of words.

Mr. Dallas then proceeded to observe, that there were no words in the Constitution, that extended the impeachment power to the case of a Senator. The 4th section of the 2d article contains the only Constitutional description of persons liable to impeachment; and it does not expressly name a member of either branch of the Legislature. To involve a Legislator, therefore, in the operation of the power, it must be by implication, either including his case in the general terms of the investment, or in the description of civil officers. But why, he inquired, insert the President and Vice-President, and omit the Senator, if the Senator was equally intended to be affected by the provision? Under the general designation of "civil officers," it would surely have been much more natural to include the President and Vice-President, than the members of the Legislature. If the President and Vice-President are named as a department of the Government, so ought the Senators and Representatives. It is a rule of law, that by naming an inferior officer, a superior cannot be affected. The legislative department is, in all free governments, considered as the sovereign; and those who compose it cannot properly be classed with civil officers, the subordinate functionaries of the State. There is another rule of law, expressio unius exclusio alterius; and, therefore, by naming the Executive, the Legislative department, not being named, is excluded. But Mr. Dallas urged, at considerable length, the great inconvenience which would arise from an opposite construction, by destroying the independence of the two branches of the Legislature, by enabling the House of Representatives to drive a Senator from his seat, by arming a majority with the instruments of personal vengeance against their political opponents, and by rendering Sena