the jury. That was the only means we intended and that was fufficient.

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But it is not enough to pervert teftimony, law too must be perverted. Because the author of Eunomus inftructs a jury to regard what is laid down to them as law by a court; judge must be criminal who tells a jury, that what another judge has faid, has nothing to do with the question before them. Because it is laid down in Bacon's abridgement (2 Bac. 97,) that a judge is never anfwerable for an error in judgment; and to this annexes a marginal note, that for corruption he is answerable in the star chamber and in parliament; the book is read as if the note were a continuation of the text, leaving out the important words "for corruption ;" and made to say that for an error in judgment, a judge is an, fwerable in parliament. Because Hawkins fays, that a judge is anfwerable in parliament for any thing, and gives instances of notorious corruption and proftitution of authority; he is cited to convince you, that you may punish a judge for any thing whatsoever. And becaufe King Alfred (perhaps by his own authority) hanged many judges, (and for grofs corruptions) Mr. Dallas by citing this authority, would if he durft, tell you that you ought to hang me.

Many of the cafes cited from the English books, were in times when the conftitution of that country and the laws and adminiftration of justice there were not fettled on the regular and firm bafis on which they now ftand, when parliament refembled the tumultuous arraignments of antient Rome, rather than the just and rational feat of British Themeis.* Many of them were in times of ungoverned violence and furious rage of power and party fpirit. Many of them were in times when the judges were as dependent on the king, as a day laborer on his employer, and could be turned off for what he pleased, and called to answer where and for what he pleafed. Many of them were cafes of impeachment, which were never tried, as thofe of Lord Finch and chief juftice Scroggs. Such authorities would be hiffed out of Weflminifter hall.

In England impeachments will lie for treafon and felony and judgment of death may be given on them. Wherever our conftituión and common and ftatute law is the fame as in England, English authorities deferve refpect. Wherever they differ they have no weight. We have a conftitution which defines and regulates impeachments and the fubjects of them.

* 2 Wooddes. 577.

By that we must be governed and not by English precedents founded on laws totally different. On this conftitution then this Senate will fet its foot and fay hitherto we will go and no further. By this conftitution an impeachment will lie only against an officer and for a misdemeanor in office. A mifdemeanor in office is an offence and an offence is an unlawful act done with an evil intention. The question be. fore you is whether guilty, or not guilty and there is no evil intention.

:

On the question before the Affembly in the year 1788, for the impeachment of the judges of the fupreme court, Mr. Findley, then a member of the legislature, has juftly and forcibly spoken the true conftitutional language on this fubject. Though he deemed it his duty to pronounce, that the de- ́ cifion of the fupreme court was a deviation from the spirit and letter of the frame of government; yet he did not mean to affert that any ground has been fhewn for the impeachment of the judges. But on the contrary he agreed that Bribery, corruption, or wilful and arbitrary infraction of the law, were the only true causes for inftituting a profecution of that Such was the law of impeachments then and fuch is the law of impeachment now. Though a judge acts unlawfully and unconftitutionally; he caunot be convicted on an impeachment, unless he has acted wilfully fo.

nature."*

Having thus ftated fome of the perverfions, of teftimony and of law made by Mr. Dallas I will now examine his reafoning on the points on which he has relied.

1. The president and each of the judges are equal in authority like the speaker of a bouse, the chairman of a committee, the foreman of a grand jury. This is proved from the conftitution and the law establishing courts. The judges being all equal none can control any other, and their authori ty being derived from the conftitution and the law; no more can be vefted in one than in another, nor can any agreement among themfelves ftrip one judge of any part of his lawful authority, and veft that portion of it in another.

I do not object to thefe principles but to their aplication to this cafe. Admitting that the conftitution gives them all equal power, when they come together may it not neceffarily arife out their union on one fubject that they fhall lay down certain rules of order for the regulation of themfelves in their proceedings, & agree that certain things may be done by fome of themselves which may not be done by others. For inftance, by long, eftablished ufage rifing out of an exprefs or implied

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* 1 Dallas Rep. 335.

agreement among themselves the foreman of a grand jury figns a bill, the chairman of a committee announces a report, a fpeaker declares the rules of the houfe, and a prefiding judge delivers a charge to a grand jury. Thefe duties rife not out of the conftitution, for all the members are equal; but they flow from agreement and usage among themselves. Admitting that the conftitution gives equal powers and duties to all, those powers are by the conftitution confined to official duties; and though no agreement or ufage could change their powers and obligations in official duties; it does not follow that by confent the court may not agree to do some other things not ftrictly official but fuppofed proper and give the power of doing that to one of their members exclufive of the reft. If the thing to be done be lawful, or the conftitution does not hinder them from doing it, nor require them to do it; the constitution therefore gives no right; and the right is derived from the agreement of the members and is regulated by that agreement and not by the conftitution.

"Equal in vote they are on official duties." That is not the queftion but whether fome duties do not belong to a prefident, fpeaker, chairman, foreman which no other member ought to perform; and thofe duties rifing out of no constitution no law; but the rule of order of the body. The discharge of fuch duties is not a matter of confcience on the affociate judge on which he is bound to speak his opinion publicly. It is not a queftion of right public or private. It is a question of order concerning only the body of the court and subject to the control of that body not of any member of it. It is a matter of difcuffion among the members of the body.

The court may permit their prefident to do certain things which they do not permit any other member, and in doing fo may leave the manner and the words to his difcretion. The Senate may direct the thanks of this houfe to be given to a certain man. The words and manner may be left to the

fpeaker.

The court of Allegheny county permitted, and many other courts have permitted their prefident to introduce extraneous matter into charges to grand juries. Does it follow from this that they must permit every member. The point is not whether all the members be equal, but whether the body can control one member.

In this extraneous matter the language of the prefident is not the language of the court, it is only his own language; it is always fo underftood, and the confcience of no other

member is touched by it, nor does his duty bind him publicly to correct or fupport it. For language on extraneous matter the prefident alone is anfwerable. If any member difapprove of this practice or of any thing improper be faid under it, this is a matter of private difcuffion among the judges, not of public to the jury. The court have permitted it. The court may fupprefs it. The prefident to whom it is given, has a right to use it only while the court, permits it. I gave it up when this one member diffented from it; there is no reafon that in difcufing, establishing or fuppreffing this regulation the judge fhould be in court or be heard by the public. All rules of order in their proceeding are framed by the judges in private.

This was the rule of order in Allegheny county nine years before Mr. Lucas became a judge.

In all matters relating to the immediate duties of any jury we have never hindered Mr. Lucas to express his opinion. In every thing official he has been left free to exprefs his opinion, diffent approve or enlarge.

Mr. Dallas first condemns extraneous matter in charges as altogether improper and unofficial, and then proves that Mr. Lucas has a right to ufe it, because he has a right to all official duties. This is ftrange reafoning.

My argument is, that no judge can claim it as a right, but courts may give it to one. They have given it to the prefident, but to no other member. He holds it by the permiffion of the court only, and fc long as the court permits it. No conftitution, no law gives it to any other judge. It is not an official duty.

The prevention in Dec. 1800 is not before the Senate and can not now be judged of, nor any opinion or sentence of this Senate now paffed on it. I was obliged to prove it to fhew that Mr. Lucas then knew the rule of order of the court.

In June 1801, there was no occafion for Mr. Lucas to exprefs his opinion to the public on my charge of Dec. 1800. He had done fo in Dec. 1800 in the newspaper, and this of his now read is not the fame.

He had no inducement to express any opinion in June 1801. My charge was free from extraneous matter, proper and full on the duties of a grand jury, and that fubject only.

When Mr. Lucas perfifted in violating a rule of order of the

court, what was I to do? Sit filent and fee that rule broken! Listen to what the whole court except himself had forbidden he fhould fay. It was a formal charge previously drawn up I should not relating to any immediate duty of the jury! have infulted the other judges if I had permitted the violation of a rule which they had all established.

I did the only thing I could do, I left the court, leaving him at liberty to speak if he pleafed. Had he gone while I fpoke, I fhould not have defifted.

Members of Affembly have felt it their duty to leave the House without a quorum to prevent an improper measure. The question is not whether this be regular or not, but whether confcientious or not; and if this tranfaction be without ill intention its legality is not now before the Senate; or if it were, unless it can be proved that I knew it to be unlawful, it is not impeachable.

It is the prevention in June 1801, and that only that is before the Senate. Was that unlawful? Did I know it to be unlawful? If not, no preceding circumftances, nothing in the manner, nothing in the confequences, can make it an offence. For this prevention only am I impeached. It is enough for me to fhew that in my circumftances a man of competent knowledge might honeftiy believe he acted right, unless it can be fhewn, that I knew I acted wrong, An indictment never was used to try a disputed right, neither can an impeachment.

But it is faid Ignorantia juris neminem excusat. This is true, but how does it apply to an officer acting in his official capacity? If an officer were to fay, I knew not that the law forbade me to violate the duties of my office, this pretence of ignorance would not excufe him. But if the rule of his duty was doubtful, and he honeftly mistook its true conftruction, fuch ignorance would excufe him.

In the cafe put by the attorney general, in ftealing a pocket handkerchief; if the perfon charged could fhew that he had mistaken it for his own, that he had one with fimilar marks, but had not obferved fome difcriminating circumftances, he must be acquitted.

And fo mult I though this Senate fhould think I entertained a falfe opinion of the law unless I did this wilfully or corruptly. This is well explained by chief juftice VaughI would know "faid that judge, whether any thing be more common than for two judges to deduce contrary

an.