proved. In the act itself, of making this rule, there is no indication of guilt. He did exactly what all other courts do, who consider it their duty to notice contempts of their authority; and there is no better reason for inferring a corrupt and guilty motive, in this case, than in the case of Judge Haywood, in the proceeding against Darby, or in the case of any other court, that has proceeded against a contempt of its authority. Why, then, suspect it here rather than in any other case; and convert this suspicion into proof?

Gentlemen indeed have affirmed, that his vanity was stung at having his errors so exposed, and his beautiful Opinion so marred and disfigured; that Opinion by which he set so much store and from which he expected a niche in the temple of Fame. Now, where is the proof of all this personal vanity, of all this inflamed estimate of his Opinion, and this expectation of a niche in the temple of Fame? There is not one tittle of proof, on any one point here assumed. No witness has imputed to the Judge this weak and unmanly vanity of character. No one has ever seen him otherwise than grave, temperate and sober, in his estimate either of himself, or others. No one has ever heard any effusion of vanity from the Judge, with regard to this Opinion. There is certainly no vanity on the face of it, but the reverse; for in the conclusion of it, admitting that he may have fallen into error in the first investigation of a subject so entirely new to him, he modestly and respectfully invites the discussion of these principles anew, whenever the question shall, again, arise. The only atom of fact on which the gentlemen rely for the proof of this vanity, is the publication of the Opinion; and that was distinctly shown to have proceeded from the united request of the bar, and particularly of the counsel for the land-claimants themselves; and this, for the best of reasons, as I have already explained. And, with the dissipation of this atom of fact, there is not, now, one vestige of proof remaining, to give the slightest color to this picture of irritated vanity which the honorable managers have drawn and painted for the Judge. Taking all the materials, form and coloring, from their own imaginations, they present the figure to you as that of Judge Peck, and having excited your indignation against this creature of fancy, which has no more resemblance to Judge Peck than it has to Judge Haywood, or any other modest and amiable man that ever lived, they expect you to transfer this gratuitous and unfounded excitement to the respondent, in the form of a sentence of guilty, on this impeachment. They say that Judge Peck was moved by wounded vanity and personal revenge. It is possible he was. It is equally possible that the same is true of every other court that has ever proceeded to punish a contempt on itself. But it is, also, possible that they were moved by a pure sense of official duty; and it is just as possible of Judge Peck. There is no more reason to suspect him than any other tribunal that has ever acted in this way. But suppose there was even room for suspicion is suspicion, proof? The maxim is, that the accused is to be presumed innocent, till the contrary is proved, not until it is suspected. Here is a case in which a good motive may as well be imputed to this judge as to any other court proceeding in such a case. And will this honorable Court, on such a trial as this, in which the accused has every thing at stake that can make life valuable to a man of honor-will you, in such a case, gratuitously impute to him a base motive—a criminal intention? I say, gratuitously; for, I repeat it, there is not one atom of proof to that effect, which will not equally serve to convict every other court of the same guilt!

But let us follow the honorable managers through the whole tissue of circumstances on which they rely, as proving this guilty intention.

They say the Judge was so infuriated that he would not listen to the remonstrance of his best friends who tried to stay him, but pressed on, in spite of them, to the gratification of his revenge: and in proof of this they cite the deposition of Mr. Bates. This gentleman, they say, advised the Judge that this was no libel, no case of contempt, no subject for punishment; and begged him not to think of proceeding against Lawless-but, in spite of this friendly warning and advice,

this tyrannical and oppressive Judge rushed forward to seize and immolate his victim on the altar of his revenge. Now, sir, look at the deposition of Mr. Bates, and see how little it supports the poetic paraphrase that has been made of it. Does Mr. Bates say that this publication was no libel; does he say it was no case of contempt; does he say it was no proper subject for punishment? Not one word of it. Sir, that part of the deposition in which Mr. Bates did express his opinion upon this subject has been expunged, under the decision of this honorable Court, on the objection of the honorable managers. We regret that it is so. But we must request that this paper may be referred to; and it will be seen that the opinions ascribed to Mr. Bates were never expressed by him. It is true he did advise the Judge to take no notice of the publication: but why? He assigns the reasons himself. It was not that he doubted the power. It was not that he thought the paper no libel. It was not that he thought Lawless did not deserve to be punished. No such thing. No, sir. The motives that he urged upon the Judge were his own peace and quiet." The proceeding will bring on a personal quarrel with Lawless-you will embroil yourself with him and with all his friends, and all whom he can influence." The question thus propounded to the Judge was, Shall I yield to this selfish policy, or shall I consult my duty? What was the answer? "Mr. Bates, I have taken my course. I see the line of my duty, and I shall follow it. I cannot, in a case of official duty, permit myself to look to personal consequences; "-and this answer, pronounced as calmly as firmly. When Lord Mansfield, in Westminister Hall, exclaimed, fiat justitia, ruat calum," it was thought a fine instance of the moral sublime. When Judge Peck modestly utters the same sentiment, in private to a friend, it is charged to a malignant and tyrannical disposition. Sir, the deposition comes in direct support of the motive which Judge Peck has always avowed, and refutes that which the honorable managers seek to extract from it. But the honorable managers, with their transforming eloquence, can turn whatever they touch into proof of guilt:-be it my office to endeavor to take off the spell of enchantment, and restore things to their proper shapes and colors.

Then come the proceedings in court; and there was nothing that the Judge could do or say which the honorable managers have not seized upon as evidence of guilt, even though forced in the next breath to admit that the act was a thing of course.

For instance, the honorable manager who spoke last introduces his narration of the Judge's conduct thus:-" After having gone through a little morning business, the Judge takes out a newspaper called 'The Missouri Advocate and St. Louis Enquirer,'-which contained the offensive article; and although, (says the honorable manager,) he knew the editor of that paper as well as any one in court, he affects not to know it, and addressing the bar and audience asks if any one knows who is the editor of that paper?"-And yet, the honorable manager (than whom no one is better acquainted with the duties of a judge) admits, in the next breath, that Judge Peck could not proceed judicially on his private knowledge of the fact, but must have an affidar it to found his proceedings. Then, why this remark in odium against the Judge? Why impute to a disgusting affectation what the honorable manager himself admits was a necessary act of duty? Trifling as it is, the circumstance shows the jaundiced medium through which every act of the respondent has been surveyed, and how little reliance can be placed on the eloquent reports of it from the other side.

In answer to the Judge's question, Col. Lawless, it seems, gallantly volunteered the answer which the Judge required, and gave the name of Foreman as the editor of the paper. But the affidavit and rule having been made, his courage seems to have exhausted itself in the effort, or to have oozed like that of Acres out of the palms of his hands; for we find him next, very strenuously exhorting Foreman, in private, not to give up his name as the author, and urging upon him, among other motives, that it was a fine occasion to raise his name, under the cry of persecution, and thus, to increase the number of his subscri

bers. Foreman, however, not feeling, like Erasmus, any peculiar call to martyrdom, declined both the honor and the profit held out to him by Mr. Lawless, and gave up his name.

The next step was necessarily a rule upon Lawless; and now, to show how "Trifles, light as air,

Are to the jealous confirmations strong

As proofs of holy writ,"

But

the honorable managers seize upon the different wording of the order against Foreman, and that against Lawless, to prove the Judge's malice against the latter. Now, to test this difference fairly, let us see whether there was not a difference in the two cases. Foreman was the editor of the paper merely, and had published an article written by another, without knowing any thing of the facts of the case or intending to make himself responsible for the truth of the publication. The rule against Foreman, therefore, calls the publication false, and nothing more. when Foreman gave up, as the author, Luke E Lawless, who, having been counsel in Soulard's case, must have understood the Judge's Opinion, must have known, therefore, that he was misrepresenting it, and could have had none but a wicked motive for so doing, the rule against him calls the article false and malicious -and malice, as this honorable Court knows, means in law language, only a lawless or wicked mind-the ma! a mens. Thus the different language of the two rules is found in the very different circumstances in which the two parties stood before the court. And, at least, the rule is a mere call upon the party to answer to the charge; and to answer it upon his own evidence merely, if he thinks proper to do so.

But it is objected that the rule itself proves that the Judge had prejudged the case, and predetermined the species of punishment which should be inflicted; for it calls upon Lawless not only to show cause why an attachment should not be issued against him for the contempt, but also why he should not be suspended from practising in that court as an attorney and counsellor therein, for the said contempt and evil intent.”

Now we should be glad to learn how the same form of rule escaped censure from the honorable House of Representatives, in the case of Judge Conkling? for such exactly was the rule which he issued against Mr. Tillinghast; and yet those of the honorable managers, who belonged to the committee of the House in that case, saw nothing to censure in the same rule as issued by Judge Conkling. The truth is, that there is no impropriety in either case. It is true the rule calls it a contempt, but is this a pre-judgment of the case; if so, every rule is such a pre-judgment. With regard to the punishment, the rule is only notice of what the punishment would be, if the contempt should not b purged. Lawless was a member of the bar, an officer of the court if guilty of the evil intent and contempt, indicated, prima facia, y the published arti 1, he was no longer worthy of a place at the bar of the court which he had treated with so much indignity, from so vile a motive; and the rule informed h m, just as Judge Conkling's rule informed Mr. Tillinghast, that such would be the consequence, unless he should clear himself of the contempt. Sir, it was fair and proper that the rule should thus apprize him fully of the danger in which he had placed himself, and direct his attention to every point material to his vindication. The rule is merely an initiatory process to lead to inquiry; and, like all other initiatory process, it was proper that it should apprize the defendant fully of the character of the offence imputed to him, and the Consequences with which it would affect him; bt it is no more th prejudgment of the case than any presentment, indictment or information what

soever.

Another use has been attempted to be made of this rule by an honorable manager. He says it proves that the Judge had not, at the time this rule was drawn, considered the publication as having any effect on the claims still pending before the court; and that this obnoxious feature of the article, is an after

thought of the Judge's, growing out of the pressing emergency of his case. Sir, look at the language of the rule. What is it? It calls upon Lawless to show cause why an attachment should not issue against him for the false and malicious statements in said publication contained, in relation to a judicial decision of this court in the case of Julia Soulard, widow, &c. &c.; "with intent to impair the public confidence in the upright intentions of the said court, and to bring odium upon the court; and, especially, to impress the public mind, and particularly many litigants in this court, that they are not to expect justice in the cases now pending therein; and with intent farther to awaken hostile and angry feelings on the part of the said court, in contempt of the court." Here you have the very reference to the effect of the publication on the pending causes, and on the public mind in relation to those causes, which the honorable manager has charged as an after thought. And thus does every criticism on the conduct of the Judge, vanish at the first touch of sober and candid inquiry.

But we are told that the oppressive intention of the Judge was further evidenced by the repeated interruptions of Mr. Lawless in the argument. Now the same witnesses who speak of these interruptions, say that this conversation was invited by the colloquial manner of Mr. Lawless himself. Why, sir, such interruptions are very common. Judges frequently ask questions of the counsel in the course of argument, but they have never before been considered as proofs of malice. I have been interrupted and disconcerted, too, again, and again, by such questions; called off from the chain of argument I was pursuing, to some distant point, far a-head, to which I intended to speak by and by. Every lawyer knows how common this is. We generally bear with it. But when I have found it oppressive, and likely to impair the force of my argument, I have begged the court to permit me to proceed in my own way, with a promise that the question would be answered in the course of the investigation; and no court has ever failed to yield to the request. Sir, I repeat it, the occurrence is common; and it is done precisely as it was done here. It leads to a short dialogue between the advocate and the judge, and no one thinks any more of it. If Mr. Lawless was embarrassed by these interruptions, why did he not complain at the time? He did not complain. On the contrary, he himself invited the colloquies that occurred; and, though proved to be irritable in the extreme, he was perfectly calm under these conversations, as well he might be, since he invited them. One of the witnesses, indeed, says that Lawless seemed to be subdued: and yet he was so far from being subdued by this ferocious tyrant of a judge, that when respectfully asked whether he chose to answer interrogatories, he bearded this Rhadamanthus upon his throne, and gave him a rude and flat denial. Sir, you cannot but perceive that these interruptions, the daily and hourly occurrences of every bar, are miserable circumstances to offer in proof of such an impeachment as this and I shall dismiss them to the obscurity of their own insignificance. But we are told that the Judge further displayed his intention to oppress by the language which he applied to the libel. He called it, frequently, "false," malicious," "defamatory;" and gentlemen press this language into the service as clear and full proof of the guilty intention to oppress set forth in the impeachSir, there is not a judge that ever tried either a civil action, or a criminal prosecution for a libel, who has not given the same evidence of an arbitrary and oppressive disposition. Nay, there is not an indictment, information, or declaration, in such a case, that may not be impeached on the same ground; for these epithets are nothing more than the common language of the law in all matters of libel. And the witnesses all concur in telling you that the Judge applied these epithets to the libel, not to Lawless himself. He did not call Lawless a false, scandalous, malicious and defamatory libeller. This would be going out of the way. But, in speaking of the libel, he used the common and constant language of the law; and out of these materials have the eloquent managers wrought the picture of this very modest, very sensitive, and very delicate gen

ment.

tleman, an American citizen, having been doomed to sit two hours to hear a torrent of the vilest abuse poured out upon his innocent and patriot head-a torrent of abuse which every clerk pours out who reads an indictment to a jury for a libel; which every judge pours out who charges a jury in such a case; which every author pours out who treats of the law of libel. If the eloquent gentlemen are to be permitted to transform the common language of the law into proof of the guilty intention charged in the libel, it is but of little consequence what is proved, or what is not. Any thing-or nothing-will suffice for a conviction. But I have no fear of any such consequence before this just and honorable Court.

But the Judge would not suffer Mr. Maginnis to argue over again, the truth of the specification, which he had already heard argued for two days in the rule against Foreman, and which he had solemnly decided in that case. This, to be sure, is a stupendous piece of oppression. How often, I would fain learn, is a judge bound to hear over again, a point which he has already decided on solemn argument? What lawyer has not been stopped, in the same way, again and again? Sir, it was time, when the brains were out, the man should die. The Judge had heard, for two days, every thing that could be said upon that subject had deliberately and solemnly decided it; and we do not learn from Mr. Maginnis that he had any new lights to unfold. Pray, sir, what would you think, after having heard this argument once, and decided this cause, of being requested, either by Judge Peck or Mr. Lawless, to hear the argument over again? I submit the objection upon the answer which I am sure you must give to this question: you know that a judge has something else to do than to be hearing over, and over, and over again, a point which has been once before fully heard and solemnly decided. Interest Reipublicæ ut sit finis litium. Mr. Maginnis was not stopped on the other parts of the cause: it was only on the single point of the truth of the specifications, which had been fully discussed and decided on the previous rule.

But the Judge, we are told, pressed on Lawless so furiously, that although engaged in another court, he would not permit him to absent himself. How can the honorable managers persist in this charge, when every member of this honorable Court knows that it is not only entirely without proof but has been directly disproved. The proof is that Lawless, being called for, was said to be in another court, then sitting in St. Louis: he was sent for; came in, and said that he was actually engaged in the trial of another cause in the other court, in which his presence was important to his clients; when the Judge at once yielded to his request, and gave him all the time he asked. Yet, in the face of this proof, gentlemen still repeat the charge.

But it is said, again, that such was the impatience of his tyranny and such his haste to do evil, that he did not take time to consider the arguments of counsel; "he had not the decency, even, say the gentlemen, to consult his pillow."

Sir, he had consulted it three times already, (for the argument had lasted four days) and if his pillow had not yielded the proper response in all that time, on such a question, it was not more likely to be found pregnant of wisdom on the fourth night. Pray, sir, did Judge Conkling consult his pillow even once? He consulted only the dinner-table. He came straight back from the banquet, and struck Mr. Tillinghast's name from the rolls. Yet Judge Conkling, it seems, was innocent, though he consulted his pillow not at all; while Judge Peck is guilty, though he consulted his, thrice.

But we are told that the Judge "was in a perfect frenzy-Bring in the man! and the honorable manager gave us what appeared to be intended as a fac simile of Judge Peck's manner in calling for the man-"Bring in the man!"-to which there is only this small objection, that it is a fac simile, without an original-a charge without the slightest scintilla of proof. What witness has said that Judge Peck was in a perfect frenzy, or a frenzy of any kind? What wit