under the state laws. Would the offender be amenable to both jurisdictions, or to only one, and which of them? One established rule may be resorted to as partly affording an answer. The greater crime includes and absorbs the less.* But this rule does not afford a complete solution of the difficulty. A prosecution may be commenced in the state court, before one is instituted in the United States court. If, for instance, the officer who was beaten, commenced and persisted in a prosecution for the battery, it would seem that the offender would not be acquitted, because it appeared in evidence that his general object was to resist the laws of the United States. If he were prosecuted at the same time for robbing the carrier of the mail, and for a common highway robbery, both of which are offences of the same grade, and the latter, according to the laws of the state in which it was committed, might be as severely punished as the former; neither court would be bound to give way to the other, at least by the application of the rule before mentioned. A person convicted or acquitted in a court of competent jurisdiction, may plead such judgment in bar of a second indictment for the same offence, but he cannot plead an acquittal or a conviction of an inferior offence, in bar of an indictment for a higher offence, although each was part of the same act. Where, however, the offences differ only in name, the acquittal may be pleaded, as a man indicted of murder and acquitted, is not liable on an indictment of petit treason for the same act, because both offences are in substance the same; but when they are substantially different, though of equal degree, the acquittal in one does not constitute a bar to an indictment for the other.

It remains then to discover some other rule or principle to

* Opinion of Judge Chase, in Hall's Journal of Jurisprudence, 162.

Hawkins, b. 2. c. 39. § 5.

+ Ibid.

relieve us from this embarrassment. It has been laid down that the state courts retain their jurisdiction in all cases, which in their nature existed before the adoption of the Constitution, unless expressly excluded, or unless the exercise of it would be utterly incompatible with the authority granted to the Union.* In the case of offences which only arise by reason of the Union, as, for instance, treason against the United States, the state courts would have no jurisdiction. If in the state courts an indictment were preferred for murder or other capital crime, committed in the perpetration of treason, it must give way to the jurisdiction of the United States court, as well in respect to the superiority of jurisdiction, and the greater extent of public concernment, as the inferior nature of the crime. But if the act committed, amounting at the same time to offences against both bodies, were still in regard to each of them, of the same degree, there seems no reason why each should not sustain its jurisdiction. It would not contravene the maxim that no one shall be twice punished for the same offence, for the offences are different in the eye of the law, although the result of the same act on the part of the culprit.

We must, indeed, avoid too broad a construction of this maxim, for a double punishment for the same act, is not wholly unknown to the law, if the forms of proceeding and the objects are different; thus, he who has committed an assault, battery, wounding, or maihem, on the person of another, is liable both to an indictment, and to a civil action for damages. The satisfaction received by the public does not prevent the injured party from obtaining his peculiar redress. If the infliction of punishment by the state could impede the prosecution of the United States in such a case, a pardon granted by the state would have the same effect, yet it would be absurd to suppose

* Federalist, No. 82. 4 Dallas, Appendix, xxx.

that a pardon granted by the state for murder committed in the perpetration of treason, would bar the prosecution of the United States for such treason. On the whole, this difficult question may be fairly resolved on the principle, that immunity for one crime cannot be obtained by proving that in doing the act, the party committed another; and further, that each com munity is entitled, and its public officers are required, to prosecute offences committed against it.*

See the discrepant opinions of the judges of the Supreme Court of the United States in Houston v. Moore. The author of course adopts, and takes the liberty to say that in his own judgment he prefers, those of the majority.

CHAPTER XXII.

OF IMPEACHMENTS.

We are next to consider what courts or judicial tribunals are created by the Constitution itself, and what have been created under the power to that effect given to congress.

The language of the text is, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress may from time to time ordain and establish.

But no mention is made in any part of this article, otherwise than by way of exception as to the mode of trial, of a very high tribunal, which seems rather to have been supposed to flow from the formation of the Constitution, than to be expressly created by it.

The first mention of it is contained in the following words, in a preceding article: The house of representatives-shall have the sole power of impeachment.

In the third section of the same article, it is said, that the senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the president of the United States is tried, the chief justice shall preside, and no person shall be convicted without the concurrence of two-thirds of the members present.

Impeachments are thus introduced as a known definite term, and we must have recourse to the common law of England for the definition of them.

In England, the practice of impeachments by the house of commons before the house of lords, has existed from very ancient times. Its foundation is, that a subject entrusted with the administration of public affairs, may sometimes infringe the rights of the people, and be guilty of such crimes as the ordinary magistrates either dare not or cannot punish. Of these, the representatives of the people or house of commons cannot judge, because they and their constituents are the persons injured, and can therefore only accuse. But the ordinary tribunals would naturally be swayed by the authority of so powerful an accuser. That branch of the legislature which represents the people, therefore, brings the charge before the other branch, which consists of the nobility, who are said not to have the same interests, or the same passions as the popular assembly.

Such is the English theory, and it well suits a government in which there are three distinct and independent interests, and in which the crown, possessing the power of appointing the high officers, who are most frequently the subjects of impeachments, has also the sole power to carry on or withdraw prosecutions in the ordinary courts. For no misconduct, however flagrant, committed by such men, could the people obtain redress, if the monarch inclined to refuse it, unless a mode of proceeding had been invented which did not require his assent, and which he could not control, and therefore, as heretofore observed, he cannot defeat the inquiry by a previous pardon, although in the exercise of another branch of his prerogative, he may delay it by adjourning or proroguing the session of the parliament.

The difference between the two governments has no doubt already occurred to, the reader. Our ordinary tribunals are