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law of 1824, which authorized Judge Peck to adjudicate." But if the claim of Soulard was peculiar and original in its characteristics, how could the decision of that claim have a fatal effect, even if it should be established into law, (which by the way it could oniy be by the affirmance of the decision by the Supreme Court) “ upon almost every other claim that was presented or could be presented before that court,” such other claims being of a character different from that of Soulard? The errors of Judge Peck, even if they should be established into law by the Supreme Court, could not possibly have a fatal effect on other claims of a different character, and, consequently, turning on different principles; and the leading characteristics of Soulard's claim, we are assured, were peculiar and original. Even although these other claims of a different character were, in the first instance, to be adjudicated by Judge Peck, after his errors in Soulard's case should have been established into law, by the Supreme Court, still, if, in these new cases, kurning on different principles
, his perverse and habitual propensity to error (which seems to be the insinuation) should plunge him into new errors, still those errors could not have a fatal effect while there was a court of revision above, until these new errors should, in their turn, be also established into law,
The witness could scarcely have intended to pay Judge Peck so high a compliment, as to imply that the Supreme Court of the United States would follow his track through all these causes, and establish his errors into law as fast as he should commit them.
It is manifest that the witness was embarrassed by his consciousness, on the one hand, that the point decided in Soulard's case identified it with others still depending in court, and that the nominal attack on that decision, not only had an immediate bearing on cases still sub judice, but that its public effect was intended for these cases alone, and not for that which had been decided ; while, on the other hand, he was desirous of screening himself under a supposed principle of law, that, as the case which was the subject of his publication, had been finally decided, and had passed out of the court, having left no kindred cases behind it, he was no longer subject to the process of attachment for a contempt in having made a publication with regard to a case still pending before the court.
We have a further elucidation of this subject in his cross examination, at page 35 of the report. He is there asked whether he had not an interest in Soulard's case, and in other unconfirmed claims brought or to be brought before the court ? He answers, that he had. He is asked again, “ Were there not a number of causes before the court at the time of the publication, depending upon the principles of that determined, and involving other principles not decided in that case ?” He answers, “ I believe there were.” And yet he had before said, that the leading characteristics of Soulard's case were peculiar and original, and that it had no similarity with any ot hercases, ercept the being an incomplete claim. He is asked, again,“ Were there not other causes depending, involving other principles than those decided, the merits of which were attempted to be impressed upon the public in the publication ?” This pinching question he answers in the following words : “My object in the publication was to show that Judge Peck had taken several positions, in doctrine and in fact, which, should ey be sustained, would, in my opinion, be fatal to the great majority of the claims, and which, in my opinion, were erroneous. I was counsel in a great number of the claims depending at the date of the article.”
We have here, under the pressure of this question, a readmission of the fact that the positions taken by Judge Peck in Soulard's case were fatal to the great majority of the claims, which they could be upon no other principle than their identity ; and that the object of the publication was to show that such would be the effect of the decision on the pending claims, some of which had been previously admitted to depend on the very principles settled in Soulard's case.
We have here the avowed object of the publication, and a key to that sentence in the exordium to the “Citizen,” which has led to this commentary.
The writer proposes to point the attention of the public to some of the principal errors in the opinion of the Judge, with a view to affect the opinion of that public with relation to the claims which were still pending. More of this hereafter.
The author proceeds : “In doing so, I shall confine myself to little more than an enumeration of those errors, without entering into any demonstration or reasoning on the subject. This would require more space than a newspaper allows, and, besides, is not (as regards most of the points) absolutely necessary.” In this, at least, the author is correct ; and he has stated his proposition in a tone so subdued as to give it all the effect of the keenest irony : for, if the Judge had really made the assumptions which the author has imputed to him, not only was demonstration wholly unnecessary, but their absurdity is so glaring as to have rendered all reasoning to prove it, folly and insult to the understanding of the reader. The author's fault consists, not in failing to demonstrate that what he has alleged would have been error, but in stating, in the confident tone which he has assumed, and which is so well calculated to impose on the reader, that the errors which he specifies were, in fact, committed by the Judge, when, in truth, the opinion warrants no such statement.
The questions on this part of the case are
1. Whether the opinion of the court was misrepresented in the article signed “A Citizen ;” and
2. Whether this misrepresentation was a contempt, for which the offender was liable to an attachment, and to be put to answer interrogatories.
The Judge maintains the affirmative of both these propositions : and now to the proof.
The charging part of the article proceeds in these words : “ Judge Peck, in this opinion, seems to me to have erred in the following assumptions, as well of fact as of doctrine :
“1. That, by the ordinance of 1754, a sub-delegate was prohibited from making a grant in consideration of services rendered or to be rendered.”
The Judge affirms that he made no such assumption, and took no such position. In his examination before the Judiciary Committee, the accusing witness produced the newspapers in which the opinion of the Judge, and his strictures, respectively, were published, having marked, as he says, the passages in each, so as to place in juxtaposition the charge and its correspondent proof; and, in support of his first charge, he is thus discovered to rely on the following sentence in the Judge's opinion : “He, the sub-delegate, is not made the judge of the value of services of the nature of those upon which the concession in question is alleged to have been issued.”
Now, it is manifest that the single sentence in the opinion on which the accuser relies to support his first charge, disproves it. The charge accuses the Judge of assuming, “ that, by the ordinance of 1754, a sub-delegate was prohibited from making a grant in consideration of services rendered or to be rendered.” What reader would not understand from this statement that the Judge had declared that ordinance to contain a positive prohibition on the sub-delegate from making a grant in conersidation of services of any kind, rendered or to be rendered? The charge is direct and express, as to the prohibition ; general and universal, as to the services : whereas the sentence quoted from the opinion avers no more than that, by that ordinance, the sub-delegate was not made the judge of the value of services of the nature of those on which Soulard's concession is alleged to have been issued'; which implies that there were services of which the subdelegate was, by that ordinance, made the judge ; and thus disproves the sweeping charge in the article.
But is this a proper mode of representing the opinion of a Judge ? tearing a single sentence from the context, and then misrepresenting even that single sentence? No court would suffer evidence to be thus garbled, nor an authority to be thus mangled ; and the counsel who should attempt it would do it at the peril of his character. The sentence quoted belongs to an important discussion, of a higher character, the whole of which must be taken together, in order to ascertain the meaning of the Judge.
The counsel for the claimant had maintained that the royal order was in force in Louisiana, and that this concession authorized the reward for services which had been made by the Lieutenant Governor, Trudeau, to Soulard. The first question was examined by the Judge at much length, and by all the lights within his reach. The discussion extends from page 5 to 12 of the report of the committee. His conclusion is, that the order was not in force in that province until partially introduced by Morales. In the course of the discussion, he takes up the powers of the sub-delegate under that order. He shows that the order professed to detail the whole duties and powers of that officer, and did detail them with minute specification ; giving all his duties and powers to sell and compound for land, in every supposable case ; and, with regard to granting land in reward of services, recognizing that power only in the seventh and eighth sections of the order, by which the Judge admitted that the sub-delegate was authorized to grant land as a reward for the services therein mentioned. But, inasmuch as the order professed to give the whole powers of the sub-delegates, and gave no power to give lands as a reward for services, except in the cases mentioned in those sections, his conclusion was, that the ordinance contained no authority to a sub-delegate to grant lands in reward of any other services, of which description were those rendered by Soulard. The question was not whether the order prohibited such a grant as this, but whether it authorized it. The claimant, relying on that order, was bound to show that it authorized it, so as to enable the court to reser, in its decree, to that order, as the basis of confirmation. He did not show it : for there was no such authority there ; and this was all that the court said on this point. The whole paragraph from which the complainant has taken his sentence is found in page 12. And this conclusion, thus reached by a process of reasoning on the order, which seems irrefragable, is gravely perverted by the accuser into an assumption, on the part of the Judge, that, “ by the ordinance of 1754, a sub-delegate was prohibited from making a grant in consideration of services rendered or to be rendered.”
If it should be suggested that “A Citizen," although his language is general as to all services, must be considered as meaning the kind of services, on which the concession in Soulard's case was founded, the answer is obvious, that he must be considered as meaning whatever a reader of that article must have understood him to mean.
If he had stated in the article the kind of services on which Soulard's concession was founded, and limited his charge to those services, there would have been no complaint. If the Judge's opinion had been contained in the same number of the same paper, or had ever appeared in a previous number of that paper, there might be some color for the excuse. But it had never appeared in that paper at all; in all probability had never been seen nor read by a subscriber to that paper ; the apology, therefore, must be deemed inadmissible, and the misrepresentation inexcusable.
But there is something still more serious in this misrepresentation. It is in proof that there were in Missouri many other grants depending on the same principles with Soulard's : that is, grants by the Lieutenant Governor, in reward of services. At the time of the decision in Soulard's case, it was the universal impression that we were not in possession of all the orders, decrees, and commissions, from Spain, which bore on the land titles in that State ; and hopes were entertained by every liberal man, that although as yet nothing had come to light in support of those claims, discoveries might thereafter be made which would support them. The idea that any known order contained a positive prohibition on those grants, never had been suggested, nor entered any mind. Yet this first charge presents Judge Peck to the whole body of those claimants, as the extinguisher of their last hope, by representing him as having assumed that the order of 1754 did contain a prohibition on all those grants for services. Had
the author even qualified this unjust and incorrect charge, by stating the fact that Judge Peck had also held that the ordinance was not in force in Louisiana, he would have relieved, in some degree, the pressure of this charge. But this opinion of the Judge he keeps out of view; thus leaving the public, whom he professed it to be his intention to inform, under the impression that the order was in force in Louisiana, and that it contained a prohibition, which abolished these claims.
To make the misrepresentation still more injurious to the court, the order of 1754 was then public, and any man who could read was able to see that it contained no such prohibition, and consequently, that the Judge who, according to the author, had assumed that it did, must be either a dolt or a knave : for no man whom “ A Citizen” should lead to the perusal of that order, would look for more than the author's charge had put him to inquire into, to wit, whether it contained the prohibition in question ; and, finding no such prohibition there, he would be very ready, (more especially if he were one of the numerous holders of concessions for services) to unite in the cry of impeachment against Judge Peck.
The next assumption imputed to the Judge by the article is, “ 2. That a subdelegate in Louisiana was not a sub-delegate as contemplated by the above ordinance."
Judge Peck requests the House to consider for a moment, how a reader of this article, who had never seen the opinion of Judge Peck, and who knew no more of the case than “A Citizen” had chosen to communicate, would probably understand this charge? How else could such an one understand it, but that a sub-delegate was not a sub-delegate ; since the additional words contemplated by that ordinance,” being unintelligible to a reader no otherwise informed than by that article, could have conveyed no explanatory or qualitying idea. Even to a more acute and reflecting reader, who had only that article before him, the charge could convey no other meaning. For the previous charge was calculated to leave the erroneous impression, that the Judge had admitted the ordinance of 1754 to be in force in Louisiana ; and it would appear by that article that the power of a sub-delegate under that order, then in force in Louisiana, was in question. Combining the two charges, therefore, the impression to such a reader, not otherwise informed, must have been, that, although that order was in force in Louisiana, and the order thus in force recognized the powers of the officer called a sub-delegate, yet that such a subdelegate, although he might be a sub-delegate anywhere else in the Spanish dominions, was not a sub-delegate in Louisiana.
Now, let this charge be compared even with the single sentence, which the accuser (according to his habit) has quoted from the opinion in support of it. That sentence is : “According to this evidence, the Lieutenant Governor of Upper Louisiana was not a sub-delegate within the intention of the ordinance.” The House cannot but perceive that the sense is entirely varied. But when you go from this single detached sentence, to the entire context with which the position is found connected, you will find that it is not possible to controvert the truth of the proposition, and that it is equally impossible to believe that any man who had intended to represent the opinion of the court with candor, could have so perverted his sense, or made an error out of his position.
The decision of the Judge on this subject will be found in pages 9, 10, and 11, of the report of the committee. By a reference to these pages it will be seen, that the question under discussion, was the great question whether the order of 1754 was in force in Louisiana.
Among other arguments to prove that it was not in force in that province, the Judge relies on the different organizations and powers of the officers employed in grants of the royal domain.
It is in this connexion, and with reference to this question, that he is inquiring into the different modes of appointing sub-delegates under the order of 1754, and the Lieutenant Governor of Upper Louisiana, who acted as sub-delegate under the arrangements which prevailed in this province.
He quotes the first section of the ordinance of 1754, to show that, from the date of that order, the power of appointing sub-delegate Judges to sell and compromise for the lands, belonged exclusively to the Viceroys and Presidents of the royal Audiencias, who were required to send them their appointment or commission, with an authentic copy of the regulation.
He also notices the provision of that ordinance, that the Viceroys and Presidents should be obliged to give immediate notice to the Secretary of State and universal despatch of the Indies for their approbation, and that the sub-delegates so appointed, might sub-delegate their commissions to others. He then proceeds thus :
“ This section prescribes the authority by which alone a sub-delegate can be appointed. It gives to the Viceroys and Presidents of the Audiencias the exclusive power of making those appointments; makes them the exclusive judges of the places and districts where such appointments may be necessary, and vests the sub-delegates with power to sub-delegate their commissions to others for the distant provinces and places of their stations.
“ Had the Lieutenant Governor of Upper Louisiana his appointment, as subdelegate from the Viceroys or Presidents of the Audiencias ? or had he a subdelegation from one so appointed ? It has been proved, on behalf of the petitioners, that he had not. The evidence of the late Lieutenant Governor of Upper Louisiana to this point, is, that he and his predecessors acted as sub-delegates, without any commission as such ; that he and they performed the functions of that office in virtue of their commission as Lieutenant Governor, which issued from the Governor General of Louisiana ; that the practice in other parts of the province, in this respect, was the same as in Upper Louisiana ; in all, the Lieutenant Governors were er officio, sub-delegates. An appointment from the Viceroys or Presidents of the Audiencias of the Lieutenant Governors to be sub-delegates, is not permitted to be inferred from the performance of the duties of that office; the absence of such appointment, as well as the authority in virtue of which the duties of the office were assumed, having been proved.”
According to this evidence, the Lieutenant Governor of Upper Louisiana was not a sub-delegate within the intention of the ordinance. Nothing can be more clear, than that a concession of lands by a Lieutenant Governor, who had not been appointed a sub-delegate by the authority prescribed in the recited section of the ordinance, can be allowed to possess any validity, if that ordinance be considered as having been in force.
The House will perceive that the proposition which the Judge was maintaining, was, that the royal order of 1754 was not in force in Louisiana. This first argument is, that the great and almost sole purpose of that order was to make sales of lands for revenue, and not gifts. Whereas, in Louisiana, lands were given to encourage settlement and cultivation.
The second argument is, that, if that order had been there in force, the subdelegate must have been appointed in conformity with it, that is, by the Viceroys and Presidents of Audiencias, and with the other solemn sanctions thrown around that appointment by that order; and that the sub-delegate, so appointed, would also have had the important power communicated by that order, of sub-delegating his powers to others : whereas, it appeared by the evidence in the case of Soulard, that the Lieutenant Governor was not appointed by those authorities
; that his appointment was accompanied by no such sanctions; and that he had no power of sub-delegation. The conclusion of the Judge, therefore, was, that the Lieutenant Governor was not a sub-delegate, deriving his powers from the order of 1754, and that the powers of a sub-delegate could not be asserted for him, under the authority of that order.
It is submitted to the House, that this train of reasoning is entirely fair, and the conclusion safely and candidly drawn, and that nothing can be more unlike