United States. Congress.

Abridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives online

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Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 8 of 191)
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But that is not the question before us. We are
now called upon to decide whether, after Judge
Peck had declined to make such a request in the
committee, and after the committee have re-
ported the testimony, and their opinion upon
it, to the House, it is proper to allow him at
this stage of the proceeding to make his defence
and examine his witnesses either before the
same committee or before the House.

Our own precedents, it is said, differ from
each other ; but this is not the case, so far as
they i-elate to proceedings against judges.

As to the case of the Vice President, he pre-
sented his own case before the House, and de-
manded an investigation. All cases are not
necessarily subject to the same rule. One case
may demand one course of proceeding, and
another case require a different mode.

The remark which excited the ire of the gen-
tleman from Missouri, was merely a response to
an opinion expressed by the Judge in his me-
morial. I said that he had made his case
rather worse than better, by his cross-exam-
ination. I am still of that opinion.

I believe the best course of proceeding in
such cases, is that which the House have
hitherto adopted. Give a committee charge of
the c'omplaint, and they will seek for disinter-
ested witnesses from all sources within theii;
power ; they will inquire who is least excited ?
Who will be likely to give the most correct
statement of facts ? If they shall do this, and
honestly aim at attaining the ends of public
justice, without violating the rights of the ac-
cused, we shall have taken the most correct
course. I am in favor of referring this whole
case to the Committee of the Whole on the
state of the Union. If that course shall be
adopted, I shall not call up the report this
day ; but will endeavor to examine the prece-
dents as well in England as in this country,
and lay the result before the House.

As to the course pursued by the House of
Representatives of Pennsylvania, in similar
cases, which has been referred to by my col-
league, (Mr. SuTHBELAND,) of hearing the de-
fence of the accused, and examining his wit-
nesses, before voting an impeachment, it has
never met my approbation. I think I have
observed great inconvenience, if not great in-
justice, from that mode of proceeding. It must
necessarily prejudice the cause. The accused,
instead of going before the Senate without pre-
judice, shielded by the presumption, both of law
and justice, that he is innocent until he shall
be proved to be guilty, will be arraigned at
their bar, after having been convicted, upon a



H. OP E.]

Judge Peck.

[Apkil, 1830.

full trial, by the deliberate judgment of the
House. I repeat the opinion, that the best
mode of attaining justice is to intrust such com-
plaints to a standing committee, selected from
aU portions of the Union ; and which, from its
very constitution, must almost necessarily be
impartial. The members of such a committee,
acting under the responsibility which they owe
to the House and to the country, and clothed
with the power of sending for persons and
papers, will ever be careful to draw their testi-
mony from pure fountains. AftSr having col-
lected from impartial sources sufiScient testi-
mony to satisfy their consciences that the ac-
cused ought to be impeached, they will then
report this testimony, with their opinion, to the
House, as has been done upon the present occa-
sion, and leave each member to judge of its
effect for himself. In this manner the rights
of the accused will be best protected, and the
interests of justice best subserved.

If Judge Peck had insinuated, when before
the committee, that the parol testimony had
presented an incorrect statement of the trans-
action, and had asked that other witnesses
might be examined, I should have felt much
inclined, I confess, to grant the request. But
no such request was made or intimated. We
might have called on the gentleman from Mis-
souri (Mr. Pettis) to testify, and I am sorry
Judge Peck did not make the suggestion. .But
I protest against reflecting upon the committee,
as though they had not been disposed to elicit
the truth, the whole truth, and nothing but the

In conclusion, I say, let a suitable precedent
now be established for future times. Lefit be
solemnly determined whether a judge, when
accused, shall be at liberty to demand that his
whole cause shall be tried before the House of
KepresentativeS before an impeachment is re-
solved upon.

In deciding this question, I trust the House
will come to such a conclusion as will best se-
cure the rights of the people and the accused,
both now and hereafter.

Mr. Eliswoeth observed that the amend-
ment of the gentleman from South Carolina
brought the House to what he considered the
real question, and it was one which involved a
point of great interest, but not of much diffi-
culty, though gentlemen seemed not fully to
agree. Whether we are to follow precedents
already established in the cases of Judges Chase
and Pickering, or of WiUiam Blount, Senator,
or are to mark a new course to be followed
hereafter, it is important that we act with cau-
tion, doing justice to the accuser and the ac-
cused, as AveU as to the public. If the House
adopted the amendment, it would be only on
the idea that the Judge was to be impeached
or not, according to the judgment of the House
on the facts already in evidence. On these
facts he should be glad to hear the commentary
of the accused, who ought certainly to have an
opportunity of saying in his own behalf what-

ever he had to say. But, if a contrary course
should be adopted, and the House should reject
the amendment, he must conclude the House
intended, upon this inquiry, that the accused
should have liberty to introduce such evidence
as he pleased, and thus to put the matter into
the hands of the accused. Mr. E. said he could
not consent to such a course. This House has
no constitutional power to try the accused.
We are to inquire after the oppression com-
plained of, and to inquire until we are satisfied
that an impeachment is necessary, but we can
go no further ; we cannot try the case. Is the
accused to bring before us such witnesses as he
pleases, to take the defence into his own hands,
employ counsel, and try the charges fully and
perfectly ? This is not our business. We have
no charges framed, nor can we have, until we
decide to go forward. Erom what has been
said on this debate, (said Mr. E.,) he was con-
vinced some gentlemen misapprehended the
nature of the duties of the committee on which
he served.

This House was the grand inqijest of the na-
tion. A judge of the United States court was
here complained of by a private citizen, for an
alleged trespass upon his rights. The com-
plaint had been presented to this House, who
had referred the case to one of its own com-
mittees. The committee, in the discharge of
their duty, had sent for all such witnesses as
might enaijle them best to elicit the truth of
the case ; but he could assure the House that
the selection had not been made ex parte. The
committee had endeavored to obtain all such
testimony as would enable them to present the
case fairly to the House. The question now
was, whether they should say to the accused,
we will hear you on the testimony already ob-
tained, or whether they would go further,
and suffer the accused to introduce new testi-

Of the preliminary facts, he could say that
they were not of an ex parte natui-e. No doubt
it was the duty of the House to get all the in-
formation they might deem necessary to arrive
at the truth ; but he denied the policy or the
propriety of admitting an accused party to go
before a committee into a thorough trial of his
whole cause, with counsel to aid him, and then
to call upon this House to say whether he was
guilty or not. The committee had sent to
Missouri for A and B, for C and D, including
persons both for and against the accused. They
might have procured other testimony, but they
obtained all they thought necessary. It was
now for the House to say whether the accused
should have another hearing. English prece-
dents in Parliament have been searched, and
with the exception of Warren Hastings, who
was impeached by Edmund Burke, rising in
his place, the accused, has never introduced
evidence on the preliminary inquiry. If. the
amendment was adopted, he should under-
stand the House as coming to the conclusion,
that, as a grand jury, they were to get all the



Apbil, 1830.]

Juige Peek.

[H. OF R.

facts necessary to show whether there was or was
not ground of impeachment. But they were
not to hear Judge Peck, as if he were on his
trial before them ; the House was not the body
appointed to try him; and he hoped they
would proceed on the ground that the accused
was to confine his argument to such facts alone
as this House might choose to investigate, and
not to take the House into his own hands, as
though he were to have a full trial on this

Mr. HuNTrsroTOiT addressed the Chair, in sub-
stance as follows :

I have read the evidence on which the reso-
lution now under consideration is founded, with
attention, not only because I am called to give my
vote on that resolution, but because the subject
of it is of deep interest to the parties imme-
diately interested in it, and to the nation. If
the Judge, whose official conduct is condemned,
has so conducted as to require the constitutional
interposition of this House, in the form of im-
peachment, we ought not to shrink from the
duty imposed upon us, from a regard to his
reputation, his future standing, or the severity
of the punishment which will foUow conviction.
It is due, in such case, to the indignity offered
to the country," to the disgrace brought upon
the judicial office, to the honor and safety of
the bar, that this House should seek to remove
from a high and important station a judge who
fills it so unworthily. But if he has committed
no offence worthy such stripes — none embraced
in the constitution from which we derive our
authority to act^-then it is due to him to give
him our protection, to sustain his reputation,
and to declare him innocent of that offence
which would endanger the loss both of office
and character.

Notwithstanding the respectable source from
which this resolution has emanated, and with
no feelings but those which proceed from an
anxious desire to judge righteously, (for all the
parties more immediately interested are stran-
gers to me,) I cannot concur in the result to
which the Committee on the Judiciary have
come, on this interesting subject ; and I hope
that, in submitting the reasons on which my
opinion is founded, I shall not be justly ob-
noxious to the imputation of favoring judicial
tyranny, the worst of all tyranny, because so
difficult to detect, and so oppressive in its con-
sequences. I am a member of the same pro-
fession with the individual who is said to have
been oppressed, and I can surely wish no rule
should be applied to my brethren in Missouri,
which I should repudiate when sought to be ap-
plied to myself.

The resolution submitted to us is, that James
H. Peck be impeached of high misdemeanors in
office. It is somewhat difficult, if not impossi-
ble, to give a definition of the term misde-
meanor, as used in the constitution, which will
include every case embraced "by that word. It
does not mean, merely, an indictable offence at
common law ; for if a judge should come on to
Vol. XI.— 3

the bench in a state of intoxication, or, whUe
there, should employ himself in playing games
of chance, he ought, in either case, to be im-
peached. Nor does the term include incompe-
tency to discharge the duties of the office,
arising from physical or mental inability. The
judge holds his office " during good behavior ; "
but that phrase is the opposite of the causes for
which he may be impeached — "high crimes
and misdemeanors." What constitutes a judi-
cial misdemea«dr, subjecting to impeachment,
must depend upon the circumstances of each
case as they 6xist. As applied to this case, I
think it susceptible of a precise definition.

It is an assumption of judicial power, exer-
cised to the injury of an individual, and done
malo animo.

To sustain this resolution, the committee
must be satisfied that Judge Peck had no power
to imprison, and erase from the roll of attor-
neys the name of Mr. Lawless, for the causes
which led him to do it ; that the exercise of this
power operated to the injury of Mr. Lawless ;
and that it was done with a corrupt motive.
If either of these points is with the Judge, the
resolution ought not to pass. If they are all
against him, it ought to be adopted.

I shall spend no time on the inquiry, whether
Mr. Lawless sustained an injury by reason of
the proceedings instituted against him, for it is
obvious that a suspension from practice for
eighteen months, and the deprivation of his
personal liberty for four hours, were both in-
jurious to him. The right, on the part of the
Judge, to do these acts, and the motives with
which they were done, are the only topics to
which I shall ask the attention of the com-

As to the right. Was the conduct of Mr.
Lawless such as to justify the court in treating
it as a contempt, punishable by imprisonment
and suspension from practice ? It may be as-
sumed as a correct, legal proposition, that any
publication, the object and design of which is
to corrupt the fountains of justice, by its ten-
dency improperly to affect the due admiuistra-
tion of it in causes which are depending in the
courts of law or equity, is a contempt, au-
thorizing a summary proceeding by process of
attachment, punishable by fine and imprison-
ment, and, in case of an attorney, by suspen-
sion from practice. And it is immaterial
whether the effect is attempted to be produced
by the operation of the publication on the judge,
the jurors, the witnesses, or the public. It is
equally immaterial what the text is, which is
made the basis of the publication ; it may be
the opinion of a judge in a cause previously de-
cided, or it may be any thing else ; nor is it
necessary that the design of the writer should
have been accomplished. The essence of the
offence consists in the intent with which the
publication is made, and its tendency improper-
ly to affect the decision of causes undetermined.
Such is the law of contempts, as it relates to
the proceedings which have led to the resolution



H. OF R.]

Judge Peck.

[Apeil, 1830.

before us ; and its applioation to these proceed-
ings is now to be considered.

Before, however, this is done, I deem it
necessary to notice some remarks which have
fallen from my friends from Pennsylvania and
New York, (Mr. BtroHAiTAif and Mr. Stokes,)
which, in my judgment, have no connection
with the merits of the question under consid-
eration, and are calculated to produce impres-
sions not justified by the acts of the Judge
which are complained of. I will not stop to
examine whether these gentlemen, in the style
and manner of debate in which they indulged,
exhibited more feeling than properly belonged
to the station which they occupy ; for I am
perfectly sure that neither of them was actuated
by any other consideration thap that high sense
of duty which we all ought to feel ; but I must
say, topics have been introduced, which de-
serve, I will not say reprehensions, but a reply.
My friend from New York told the committee,
yesterday, that Judge Peck, in his written
apology, had stated that, if he had erred in this
matter, it was an error on the side of Govern-
ment, and calculated to protect its interests.

[Here Mr. Stoees explained. The gentleman
had misapprehended him. The Judge, in the
paper which he had furnished, did show that
he had erred on the side of the Government,
and enumerated a number of cases where his
decisions had the effect of saving the public

Exactly as I understood him, (said Mr. H.,)
though not expressed in the same terms. Sir,
the observation was calculated to impress the
committee with the idea that the Judge wished
us to recollect that if he had proceeded in an
unlawful manner, he ought to be shielded^ be-
cause he had done so in order to favor the Gov-
ernment. Sir, no such conclusion will follow
an examination of that paper. All that the
Judge says is this : that, as very numerous
claims were pending, which embraced the same
principles as the case of Soulard, he felt it to
be his duty to give that case a most thorough
and close examination ; and I say, that whoever
reads that opinion, cannot avoid coming to the
conclusion that it is both an elaborate produc-
tion, and one written in good faith.

But we are told that the opinion of the
Judge, except in one particular, was extra-
judicial. If this was intended to afford an ex-
cuse for the criticism of Mr. Lawless, I differ
most materially from the gentleman from Penn-
sylvania, (Mr. BtrcHANAN,) and my friend from
Yirginia, (Mr. Doddeid&e.) Neither do I
agree with them in relation to these obiter
dicta. My poor reading has led me to con-
clude that it is not best to travel out of the
record, and to express a legal opinion in a case
not before the court. But may I not ask
whether, in this opinion delivered by Judge
Peck in the case of Soulard, any man can see
aught that looks like an extra-judicial opinion?
He first settled the case, and he needed not to
have gone any further ; but he then proceeds

as if he would say, if I have been wrong thus
far, there is another point which makes equally
against the claimants. That is all he has done.
He gives different reasons for coming to the
same result. They are reasons called for by
the case, and such as it was not only proper,
but his duty, to consider and discuss! The
gentleman from Pennsylvania seems to lay
stress on the fact that the Judge printed his
opinion in a newspaper. If that remark was
intended to have any effect, it must be this,
that such a proceeding was derogatory to his
judicial station. The gentleman says that when
the Judge had given his opinion, there he ought
to have stopped; but I ask, was there any
thing improper in publishing his opinion ? It
is a proceeding, which, if not frequent, yet
sometimes occurs.

When the bar requested this publication,
ought the Judge to have told them that a com-
pliance would be derogatory to the profession ?
But the gentleman adds that the Judge pub-
lished this opinion in a political newspaper.
Now, sir, I should be glad to know where he
could have found any paper which was not po-
litical. If it was lawful for him to publish at
all, I do not know where he must have gone to
do it.

[Here Mr. Buohanatt explained. As refer-
ence had several times been made to what he
had said on that subject, he wished to remind
the committee that he had said at the time that
he knew the character of the paper only from
the Judge himself ^ it had been designated by
him as a " political newspaper."]

But the honorable gentleman, I will not say
in the coloring he gave to the testimony, but in
his comments and argument, inquired why
Judge Peck solicited the name of the publisher.
Did not the Judge know who he was ? "Was
not his name on the paper ? Now, sir, if this
was meant for any thing, it was to strengthen
the idea that the Judge had selected his victim.
But surely the gentleman knows that no attach-
ment could issue to bring the party before the
court, without an affidavit to found it upon.
Ajid though the Judge might see on the face of
the paper that A B was the publisher, he could
not issue a rule on such evidence — it must be
of record. There was, then, nothing improper
in taking steps to procure an affidavit.

But the gentleman asks, why call particularly
on Lawless, when all the bar and many other per-
sons were present? Why, su-, Lawless was not
specially called. The Judge inquired if any
one present knew who was the publisher of
that paper, and Mr. Lawless volunteered an an-
swer to the question. Without that answer he
could not have proceeded an inch. After Mr.
Lawless (and the fact is creditable to him cer-
tainly) had verified the fact, then the attach-
ment issued. But I have more to do with the
matter than the manner of the Judge. And I
proceed to inquire, Did Judge Peck assume
an authority which he did not rightfully pos-



Apkil, 1830.]

Judge Peck,

[H. OF R

The committee has been told, over and over,
in a style the most warm and animated, that
his conduct was arbitrary, oppressive, unconsti-
tntional — calcvilated to destroy the liberty of
the press, and that this gross assumption of
power was called forth by the exercise, on the
part of Lawless, of his undeniable and unalien-
able right as a free citizen of this republic.
Sir, let us descend a little from this lofty pinna-
cle, and let us calmly and cooUy ask, what did
Mr. Lawless do ? And was his act a contempt
of court? He published an article signed "A
Citizen " in one of the papers of St. Louis, and
which has been caUed " a respectful commen-
tary " on the Judge's opinion. Now, sir, there
is no member of this House, whose voice would
be sooner or louder raised against any attempt
to suppress the legitimate freedom of the press.
I hope I shall not be charged with any desire
to violate it. And I hope that our courts of
justice will never be held to be so sacred, that
their adjudications may not be the subject of
fair and temperate animadversion. No man is
above it, or ought to be above it. The mo-
ment you curtail the freedom of the press, you
destroy liberty.

But, sirj while I guard the freedom, I am as
greatly opposed to the licentiousness of the
press ; I will take care that the object of such
animadversions shall not be to bring down
upon a court the vengeance of the public, and
thus affect the great and vital interests of jus-
tice, and the peace and well-being of society.
The case has been treated as if this article,
signed " A Citizen," was no more than a fair
and honest commentary on the opinion pub-
lished by the Judge. Sir, was this so ? Were
there not causes pending, of a similar kind
with that which had been decided ? It is ad-
mitted — it appears in evidence, there were
other causes depending on Spanish concessions
t(^ be adjudged in that court. Look then at
this pubUcation, and see what its object was.
"What was its motive ? And what was likely
to be its effect on the causes pending? Sir,
what does Mr. Lawless tell us ? (No doubt he
has a right to come here and spread his wrongs
before this House, if he has suffered any — but
he is the accuser — the witness in his own
cause.) And what other witnesses have we ?
His two counsel. I do not deny that these
gentlemen are competent witnesses — but what
does every man of common sense know ? That
a party in interest or his counsel are to be
heard with allowance for their natural bias.
One of my friends has related to me a fact on
this subject. A judge wag some time since try-
ing a cause, when some point occurred of evi-
dent truth, but to which there was no witness.
One of the counsel in the cause offered himself
as a witness to prove the fact ; but the judge
suggested to him that it would be better to let
the cause go off, until a witness could be ob-
tained ; because it did not seem becoming in
counsel, when a cause -pinched, to offer himself
to be sworn. The lawyer, however, insisted.

When the judge said to him, " You are a com-
petent witness, and I may not refuse to have
you sworn ; but, if you do testify, I shall in-
struct the jury not to believe one word you
say." The judge may possibly have stretched
the rule, but the counsel wiU never forget it.
And in this case I do not say the witnesses are
not competent, but I say they are parties in
interest : and yet such are the principal wit-
nesses in the case. Now, I ask, what could
have been the,,motive of Mr. Lawless in writ-
ing that article ? It is said that it was to put
his clients upon their guard, and to prevent
them from becoming the prey of speculators.
Sir, this article itself develops his secret mo-
tive — it seems to me that I can read his heart
as plainly in that transaction, as if it was laid
open before my eyes. Is it not demonstrable
that his motive could not have been that which
is assigned by his advocates liere ? If it had
been, what could have been easier than to have

Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 8 of 191)