have a name in the penal code, too paltry for the notice of a court of Quarter sessions? This is indeed employing an elephant to remove an atom too minute for the grasp of an insect. Is the Senate of the United States solemnly convened and, held together in the presence of the nation to fix a standard of politeness in a judge, and mark the. precincts of judicial decorum? The honourable

gentleman who opened the prosecution (Mr. Ran-. dolph) has contended for a contrary doctrine, and held that many things are impeachable that are not indictable. To illustrate his position, he stated the cases of habitual drunkenness and profane swearing on the bench, which he held to be objects of impeachment and not of indictment. I do not desire to impose my opinions on this court as of any value. But surely I could not hesitate to say that both of the cases put by the gentleman would be indictable. Is there not known to us a class of of. fences, not provided for indeed by the letter of any statute, but which come under the general protection which the law gives to virtue, decency and morals in society-Any act which is contra bonos mores is indictable as such. And it is so, not by act of Congress, but by the pure and wholesome mandates of that common law, which some men would madly drive from our jurisprudence, but which I most sincerely pray may live forever.

If I am correct in my position that nothing is impeachable that is not also indictable, for what acts then may a man Le indicted? May it be on the mere caprice or opinion of any ten, twenty or one hundred men in the community; or must it not be on some known law of the society in which he resides? It must unquestionably be for some offence either of omission or commission against some statute of the United States-or some statute of a particular state, or against the provision of

the common law. Against which of these has the respondent offended? What law of any of the descriptions 1 have mentioned has he violated? By what is he to be judged, by what is he to be justified or condemned, if not by some known law of the country; and if no such law is brought upon his case-if no such violation rises on this day of trial in judgment against him, why stands he here at this bar as a criminal? Whom has he offended? The House of Representatives— and is he impeached for this? I maintain as a most important and indispensable principle, that no man should be criminally accused, no man can be criminally condemned but for the violation of some known law by which he was bound to govern himself. Nothing is so necessary to justice and to safety as that the criminal code should be certain and known. Let the judge, as well as the citizen, precisely know the path he is to walk in, and what he may or may not do. Let not the sword

tremble over his unconscious head, or the ground be spread with quicksands and destruction, which appear fair and harmless to the eye of the traveller. Can it be pretended there is one rule of justice for a judge and another for a private citizen; and that while the latter is prote&ed from surprize, from the malice or caprice of any man or body of men, and can be brought into legal jeopardy only by the violation of laws before made known to him, the latter is to be exposed to punishment without knowing his offence, and the criminality or innocence of his conduct is to depend not upon the laws existing at the time, but upon the opinions of a body of men to be collected four or five years after the transaction? A judge may thus be impeached and removed from office for an act strictly legal, when done, if any House of Representa. tives for any indefinite time after, shall for any rea

aી

son they may act upon, choose to consider such act improper and impeachable. The constitution, sir, never intended to lay the judiciary thus prostrate at the feet of the House of Representatives, the slaves of their will, the victims of their caprice. The judiciary must be protected from prejudice and varying opinion, or it is not worth a farthing. Suppose a grand jury should make a presentment against a man-stating that most truly he had violated no law or committed any known offence; but he had violated their notions of common sense, for this was the standard of impeachment the gentleman who opened gave us, he had shocked their nerves or wounded their sensibility. Would such a presentment be received or listened to for a moment? No, sir--And on the same principle, no judge should be put in jeopardy because the common sense of one hundred and fifty men might approve what is thus condemned, and the rule of right, the objects of punishment or praise, would thus shift about from day to day. to depend upon the House of Representatives for the innocence or criminality of our conduct? Can they create offences at their will and pleasure-and declare that to be a crime in 1804 which was an indiscretion or pardonable error, or perhaps an approved proceeding in 1800? If this gigantic House of Representatives, by the usual vote and the usual forms of legislation, were to direct that any act heretofore not forbidden by law, should hereafter become penal, this declaration of their will would be a mere nullity-would have no force and effect, unless duly sanctioned by the Scnate and the approbation of the President. Will they then be allowed, in the exercise of their power of impeachment, to create crimes and inflict the most serious penalties on actions never before suspected to be criminal, when they could not

Are we

have swelled the same act into an offence in the form of a law. If this be truly the case, if this power of impeachment may be thus extended without limit or control, then indeed is every valuable liberty prostrated at the foot of this omnipotent House of Representatives-and may God preserve us-The President may approve and sign a law, or may make an appointment which to him may seem prudent and beneficial, and it may be the general, nay the universal sentiment that it is so--and it is undeniable that no law is violated by the act. But some four or five years hence there comes a House of Representatives whose common sense is constructed on a new model, and who either are or affect to be greatly shocked at the atrocity of this act. The President is impeached-In vain he pleads the purity of his intention, the legality of his conduct, in vain he avers that he has violated no law and been guilty of no crime. He will be told, as judge Chase now is, that the common sense of the House is the standard of guilt, and their opinion of the error of the act conclusive evidence of corruption. We have read, sir, in our younger days, and read with horror, of the Roman emperor who placed his edicts so high in the air that the keenest eye could not decypher them, and yet severely punished any breach of them. But the power claimed by the House of Representatives to make any thing criminal at their pleasure, at any period after its occurrence, is ten thousand times more dangerous, more tyrannical, more subversive of all liberty and safety. Shall I be called to heavy judgment now for an act which when done, was forbidden by no law and received no reproach, because in a course of years there is found a set of men whose common sense condemns the deed. The gentlemen have referred us to this Standard, and being under the necessity to acknow-

ledge that the respondent has violated no law of the community, they would on this vague and dangerous ground accuse, try and condemn him. The code of the Roman tyrant was fixed on the height of a column, where it might be understood with some extraordinary pains; but here to be safe, we must be able to look into years to come, and to foresee what will be the changing opinions of men or points of decorum for years to come. The rule of our conduct, by which we are to be judged and condemned, lies buried in the bosom of futurity, and in the minds and opinions of men unknown, perhaps unborn.

The pure and upright administration of justice, sir, is of the utmost importance to any people--the other movements of government are not of such universal concern-Who shall be President or what treaties or general statutes shall be made, occupies the attention of a few busy politicians-but these things touch not, or but seldom, the private interests and happiness of the great mass of the community-But the settlement of private contro. versies the administration of law between man and man-the distribution of justice and right to the citizen in his private business and concern, comes to every man's door, and is essential to every man's prosperity and happiness-Hence I consider the judiciary of our country most important among the branches of government, and its purity and independence of the most interesting consequence to every man. Whilst it is honorably and fully protected from the influence of favour or fear from any quarter, the situation of a people can never be very uncomfortable or unsafe-But if a judge is forever to be exposed to prosecutions and impeachments for his official conduct on the mere suggestions of caprice, and to be condemned by the mere voice of prejudice, under the specious name of common