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rialist is sincerely satisfied that it was their purpose to treat him, as, in this view of the subject, they did, in fact, treat him, with great liberality and indulgence,
But your memorialist submits, with great respect, that the proceeding of the House of Representatives, in inquiring whether they will, or will not, institute an impeachment, is not to be governed by those strict rules which confine a grand jury to ex parte evidence. It was not the course pursued by the House of Commons of Great Britain, in the case of Warren Hastings, to which he has referred, and in which the House, before they voted the impeachment, heard not only the defence, but the testimony of his witnesses.
In the digested report of the committee of the House of Commons, which follows the report of the arguments of the managers who conducted that impeachment, it will be seen, too, that, in the estimation of that committee, the proceedings of courts of law furnish no rule whatever for the proceedings in an impeachment ; the latter being governed by no other law or custom than the ler et consuetudo parliamınti, which left the House at perfect liberty to pursue the great ends of justice untrammelled by any other rules than those which reason and public utility prescribe, and of which they have left us a practical commentary in the privilege of defence and counter testimony accorded to Mr. Hastings, preliminary to the vote of impeachment.*
Your memorialist submits, with great deference, to the consideration of this honorable House, that the great purposes proposed to be attained by the process of impeachment, can be secured in no other way than by resorting to this measure in those cases only which demand a public example in the punishment of the oflender. A resort to it in cases in which there is no probability that the impeachment can be ultimately maintained, though its effects on the individual who is the subject of it would be to harass him with wanton cruelty, and to break down his spirit of independence, by encouraging the assaults of private and personal malignity ; yet its effects on the public would be to destroy all the solemnity and efficacy of the measure ; to remove its terrors, and to render it so common and unproductive of any great result, as rather to throw ridicule on this great feature of the constitution, than to surround it with that awe which properly belongs to it.
In the present instance, although the petitioner, Mr. Lawless, has attempted to give solemnity to his complaint, by representing the freedom of the press, the right of trial by jury, and the liberty of the American citizen, to have been violated in his person, in the summary punishment for a contempt of court, inflicted on him, yet your memorialist has no fear of satisfying this honorable House, if an opportunity shall be afforded him, that these are the trite topics continually resorted to, and resorted to in vain, in Great Britain, whenever the courts of that country have found it necessary to punish summarily, a contempt—the rights secured to the subject by the Magna Charta of that kingdom being no less dear to them, nor less strongly guarantied, than those in our constitution ; that it would be a prostitution of these sacred principles to apply them to such a case as this ; that the court has done no more, in this case, than has been continually done, without çensure, in contempts of an inferior character, in the courts both of England and of this country, and of the very State where this was done ; and that, if the power exercised by your memorialist, be denied to the courts of the United States, they are deprived of that salutary power of selfprotection, which, we are told on the highest authority, that all courts have possessed, from time immemorial, which it is indispensable to their existence that they should possess; and, deprived of which, courts must lose all their value, and sink into inevitable contempt and insignificance.
Your memorialist, therefore, respectfully prays, that your honorable body will receive from him a written exposition of the whole case, embracing both the facts and the law, and give him, also, process to call his witnesses from Missouri in support of his statement, before any discussion or vote shall be taken on the evidence as it is now presented with the report of the committee. In the hope that the case may be permitted to tuke this course, he is now proceeding, with all possible despatch, to prepare the statement in a form which may fit it for the reception of this honorable House, and he hopes to have it ready in a few days.
* See the History of the Trial of Warren Hastings, published at London, for J. Detrett, 1796, Supplement, page 1 to 41.
If this prayer cannot be granted, his hope and prayer is, that your honorable body will, if it meet your own approbation, vote the impeachment at once, without any discussion on that partial evidence which presents a garbled view of the subject, greatly to the prejudice of your memorialist, and that he may have as speedy an opportunity as the nature of the case will allow, to exhibit, before the tribunal of the Senate and before his country, the entire transaction, in all its parts, as it really occurred; being conscious and confident that, to ensure his acquittal from all censure in the minds of all honorable men, accustomed to discassions of this kind, the case requires only to be fully understood.
And in the strong hope that the one or the other of these prayers will be granted, your memorialist, as in duty bound, will ever pray.
JAMES H. PECK.
This memorial was followed, on the 14th of the same month, by the following Letter and Explanations.
Sir : Permit me, through you, to avail myself of the permission of the Hon. House of Representatives, by their resolution of Wednesday last, to pre to that body my explanation in answer to the charges preferred against me by Luke E. Lawless, Esq. with the documents referred to in that explanation.
With great respect,
JAMES II. PECK.
Congress United States.
To the Honorable the Speaker and Members of the llouse of Representatives of
the United States : James H. Peck, Judge of the District Court of the United States for the District of Missouri, availing himself of the permission granted by this Hon. House, on Wednesday last, to present any argument on the law and matters of fact now in evidence before the House, which he may
in answer to the charges preferred against him by Luke E. Lawless, Esq. begs leave to represent, that the complaint of the petitioner grows out of the notice which the court felt itself constrained to take of certain strictures published by the petitioner in a Missouri newspaper, on an opinion delivered by the court in 1826, in the case of Soulard's heirs against the United States—a Spanish land claim presented for judicial decision, under the act of Congress of the 26th May, 1824.
To enable the House to understand these charges, and the answers which it is proposed to give them, it becomes necessary to take a cursory glance at the character of these claims, and the general legislation of Congress with regard to them, and then to present a distinct view of the opinion of the court in Soulard's case, and the character of the strictures on that opinion, published by the petitioner, which the court considered and punished as a contempt.
It is known to the House, that the province of Louisiana belonged originally to France ; was ceded to Spain in 1762, though possession was not taken by Spain under that treaty, until 1769. That in 1800, the province was re-ceded by Spain to France, by the treaty of St. Ildefonso ; the Spanish authorities, nevertheless, retaining possession until and after the cession by France to the United States, by the treaty of Paris, of 30th April, 1803.
By the third article of this latter treaty, the United States stipulate that the inhabitants of the ceded territory shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess; and in execution of this article, so far as it respected real property, Congress immediately proceeded to establish, in various parts of the province, Boards of Commissioners, to examine and report upon all claims for lands made by the inhabitants under French or Spanish titles. The claimants were all required to present their claims to these Boards within a limited time, under the penalty of having them perpetually barred ; but the time was opened and extended by successive acts, and the most liberal provisions were made for the protection of all bona fide titles. Amidst all this liberality, however, Congress showed, by their laws, that they were perfectly aware of the temptation thus held up to the cupidity of adventurers inhabiting a frontier country, far removed from the restraints of their former European sovereigns, and, as is usual in such situations, not under the constant dominion of those moral restraints which prevail in ancient and long established settlements. This people, too, it was natural to believe, had had that salutary pride of character, which is the best pledge and preservative of moral purity, greatly weakened, if not destroyed, by the manner in which they had seen themselves transferred, and re-transferred, from master to master, like cattle bought and sold in the market; and Congress gave warning of the mischiefs which they apprehended, and which historical events, recently disclosed, prove that they had good reason to apprehend, by requiring the Boards of Commissioners to note especially, in every case, all false, fraudulent and antecated claims. These laws are now collected in the volume compiled under the direction of this House, on the subject of public lands, and they carry their own com
ommentary on their face. The Boards of Commissioners were continued in operation for many years ; but, notwithstanding the warning continually given, and repeated by the acts of Congress to all claimants, to present their claims, under the penalty of having them forever barred, it was still found, after the Boards had closed, that there were yet other claimants, who, under various excuses, had omitted to present their claims to the Commissioners, and who now presented them to Congress, and importuned that body for relier.
These petitions finally produced the act of the 26th May, 1824, entitled “An act enabling the claimants to lands within the limits of the State of Missouri, and Territory of Arkansas, to institute proceedings to try the validity of their claims.” By the first section of this act, all persons claiming lands in Missouri, by virtue of any French or Spanish grant, &c. legally made, fc. before the 10th March, 1804, by the proper authorities, to any person resident, &c. and which might have been perfected into a complete title, under and in conformity to the laws, usages, and customs of the Government under which the same originated, were authorized to present a petition to the District Court of Missouri, setting forth the nature of their claims, &c; and by the second section of the act, the couit were required, in all cases, to rifer, in their decree, to the treaty, law, or ordinance, under which the claim was confirmed or decreed against.
These provisions clearly indicated an apprehension, on the part of Congress, that claims might be presented on titles not legally made by the proper authorities, and that their confirmation might be urged on grounds, other than those solid grounds of treaty, law, or ordinance, which alone Congress authorized the Judge to regard as grounds of confirmation.
The duties thus thrown upon the Judge, to investigate, in every case, the authority of the officer from whom the alleged title proceeded, and to examine the treaties, laws, and ordinances, under which alone the confirmation could be claimed, called him into a field of inquiry entirely new to the profession of law in the United States; and it was indispensably necessary to a just discharge of these duties, that he should be put in possession of all the French and Spanish laws and regulations which bore upon the subject of the grant of lands in that province. As his judicial conduct is in question in this proceeding, it may not be deemed irrelevant to state, that, in order to fit himself for a conscientious and correct discharge of these important duties, and to enable him to do right to the suitors, as well as to the United States, as soon as he became apprized of the passage of the law of 26th May, 1824, and had time to look around him, to see what materials of information were within his own reach, he addressed several letters to the Secretary of State of the United States, (of which he begs leave to annex copies, marked A,) requesting to be furnished with all the laws, royal orders, and regulations, of France and Spain, which affected the grant of royal domain in Louisiana, and specifying such of them as his researches had led him to believe did exist. In consequence of these applications, one royal order only, that of the 24th August, 1770, which may be more particularly noticed by-and-by, was ultimately procured; but even that came too late to assist him in the decision of the case of Soulard's heirs : had it arrived before that time, it would have furnished a new ground in confirmation of his decision in that cause.
For the purpose of carrying into effect the provisions of the act of 1824, the Judge of the District of Missouri was required to hold his sessions at three different places in that State ; and it was with good reason anticipated that very numerous claims would be presented before the court for consideration and decision.
It is deemed important, as having an immediate bearing on the inquiry before the House, to present, more distinctly, a view of the number, as well as character, of the claims—a) of which involved the very question decided in the case of Soulard's heirs, and which was forced upon the consideration of the court, by the act of Congress, to wit : the authority of the respective officers to issue the several documents or which these claims rested.
In order to give the House this view in the best mode which is now in the power of the Judge, he begs leave, in the first place, to refer them to the schedule C, hereto annexed, which is an authenticated abstract of claims, taken from the Registry of Surveys for the several districts of Upper Louisiana, exclusive of that of New Madrid. Of these claims, a considerable number had been confirmed by the several Boards of Commissioners and the Recorder of Land Titles : the precise number so confirmed, the Judge has not the means of ascertaining at this time, but the whole residue which remained unconfirmed, were authorized, by the act of Congress, to be brought before the court, and might be reasonably presumed to be so intended to be brought before it, and many of them did, in fact, afterwards compose the docket.
This schedule, numerous as it is, it will be observed, is confined to claims which purported to have been surveyed under the French and Spanish Governments, and by the same officer, continued under the American Government.
In addition to these, there were other surveys, which had been subsequently made, under the orders of the several Boards of Commissioners, of which there were, also, unconfirmed claims, within the jurisdiction of the court
. And, in further addition, were all the unsurveyed claims, which had been rejected by the Commissioners ; of the number of which, some idea may be formed by the list contained in the record of the case of the heirs of Macky Wherry, which accompanies this statement, and is marked B; and it is material to remark, that it relates to the unsurveyed claims in one district only, out of four.
The Judge considers himself as speaking within the limits of moral certainty, when he expresses the belief, that, at the time of the decision of Soulard's case, the claims of various kinds, under Spanish concessions, or orders of survey, either surveyed, or unsurveyed, which existed in the State, and which were properly within the jurisdiction of the court, under the act of 1824, amounted, in numbers to thousands. That many of these claims were, and are good, and worthy of confirmation, the Judge is ready to believe ; and, of the sincerity of this belief, he has given proof, by the fact of his having decreed in favor of some of them. But that there were others of an opposite character, the previous legislation of Congress, and the reports of the Boards of Commissioners, had authorized him to believe ; and discoveries, which have been recently brought before Congress, and the nation, from a part of the territory embraced by the act of 1824, concurring with the evidence in the case just alluded to, of the heirs of Mackey Wherry against the United States, which has been lately decided in the District Court of Missouri, (the opinion delivered in which case accompanies the record thereof, Document B,j rendered it impossible for charity herself to doubt, that, among those claimants, there were some who were disposed to take an unfair advantage of the good faith with which Congress were carrying into effect the third article of the treaty of 1803.
These claimants, so formidable in numbers, and some of them, at least, it is to be feared, still more formidable by the absence of moral restraint, and by their frontier habits of life, took care to interest in their success many of the gentlemen of the bar, whose compensation, from the evidence reported by the Judiciary Committee, it is presumable was contingent, and who, having, therefore, large interests at stake on the result, felt, very naturally, a degree of solicitude for the event not less keen than that of their clients.
What kind of Judge would have best suited the views of some of the claimants it is needless to remark. But it is proper to remark that it called for no common degree of constitutional firmness, as well as calmness, for a Judge to keep his balance against such an array of power; and that it was not in such a situation, nor in such circumstances, that the court was to relax any of those means of self-protection, with which they are clothed by the law of the land ; but that, on the contrary, the occasion pre-eminently demanded the firm and fearless exercise of judicial independence, and the rigorous application of all necessary and proper measures to preserve the authority of the court against those rude assaults, which there was too much reason to apprehend from the resentment of excited and disappointed suitors, emboldened by their numbers, embarked in a common cause, and by that propensity to the summary process of self redress, which is known to characterize those new and distant settlements. The House will perceive that the situation of the Judge was new and peculiarly trying, and that it would be unfair to compare it with that of a Judge administering the law in a single case, and in a long settled country, where the penple are accustomed to the curb of the law, and where the respect for courts is habitual.
He does not make this remark with the view of excusing or extenuating any breach of judicial propriety : for it will be seen in the sequel, that his course of action has been governed by the same rules which govern all courts in like cases ; but simply with the view of showing the House that the situation was one which forbade the exercise of that forbearance and indulgence, which, he may venture to say, (because it is partly in proof), is in far better accordance with his natural disposition and habits, than that course which he felt himself constrained, by a sense of duty, to adopt in this instance.
It was not anticipated, that the whole of the claims which existed in the State, and which properly belonged to the jurisdiction of the court, under the act of 1824, would be brought at once before that tribunal, because the presentation of unsettled claims for millions of acres, after the Boards of Commissioners had been so long in operation, would have been, of itself, calculated to startle the nation, and to awaken suspicions, and beget prejudices extremely unpropitious to the claims ; and those which were good would have been endangered by their association with tho-e which were of an opposite character. Ordinary skill dictated the policy, therefore, of bringing these claims gradually and cautiously before the court, and of putting forward only so many as were necessary to test and settle the principles on which the decision of the main body, held in reserve,