had acknowledged the justice of that very criticism of Lawless which he had nevertheless punished so severely as a contempt of court. Now, sir, there is just truth enough in this statement to furnish a pretext for the charge, while it is manifest to every reader of cominon candour and ordinary sagacity that the error which the Judge does confess, redounds to his honor as a Judge, while it has not the slightest connection with those errors that form the subject of Lawless' libellous publication. Permit me, sir, to explain this point for the honor of the Judge and the confusion of his accuser-if indeed there be sufficient grace left in that quarter to feel confusion under any exposure. You will observe that when Judge Peck decided Soulard's case, he had never seen the royal order of August, 1770, and knew nothing of the character or provisions of that order. The counsel in the cause had never seen it, and were as ignorant of its contents as the Judge upon the bench. All that any of them had seen, in the way of Spanish law, touching these land claims, were the successive Regulations of the Governors O'Reilly and Gayoso, and of the intendant Morales. But among the claims offered in evidence in the case of Soulard, there were several which did not conform to the Regulations, and the question was, how they came to be confirmed? The Judge, having observed that the two governors and the intendant had, all in succession, exercised the power of making laws for the government of these grants, supposed all their regulations to stand on an equal footing, in point of authority, and referred all these anomalous confirmations to a general dispensing power with their own laws, which these officers were supposed to possess. Such was the state of information, and such the opinion which he entertained, at the time of the decision of Soulard's case. But after that decision, and before the case of Chouteau came on, the Royal order of August 1770 had been procured from Spain, and threw an entirely new light upon the whole subject of these Regulations. That order was found to be an express confirmation by the King of the Regulations of O'Reilly, and a declaration that those regulations should remain in force until they should be altered by the authority of his majesty himself. Hence it was apparent that the provincial regulations did not rest, as the Judge had supposed, on the mere authority of the Provincial officers; but that O'Reilly's Regulations, at least, stood on the authority of the King himself, and were to remain unalterable except by his Catholic Majesty. Hence it was apparent that the governors of the province possessed no such power to dispense with these Regulations, which the Judge had attributed to them in the case of Soulard, and he had the magnanimity to confess the error; whereupon, Mr. Lawless springs upon him, through the columns of the newspaper, and, in the article which has been read to you in evidence, reproaches him with having punished him for charging error in his opinion in the case of Soulard, and then coming out in Chouteau's case, and confessing the error himself, as if the Judge had admitted the very errors which Lawless had ascribed to him, or any error which affected the validity of the opinion in the case of Soulard, whereas, in truth, the error which had been shown to the Judge, by the new light cast upon the subject, had no manner of relation or resemblance to the misrepresentations for which Lawless had been punished; and left the opinion in Soulard's case just as invulnerable as it was before. So that this publication of Lawless in Chouteau's case is only another specimen of his aptitude and propensity for misrepresentation, and of the settled hostility with which he hung upon the steps of the Judge.

Next came the case of Mackey Wherry for decision. This has, also, been here printed by the honorable managers. In the previous cases, there had been too much reason to suspect collusion, between the applicants and the granting officers of the crown; but as long as the matter continued to be the subject of suspicion, merely, it had drawn no animadversion from the Bench. But, in the case of Wherry, the fraud was so palpable that the Judge could shut his eyes to it no longer. He saw Delassus, Soulard, and others concerned in what he thought a gross fraud, and, in the judicial opinion which he ex

pressed on the occasion, he puts the decree, as it was his duty to do, distinctly and expressly on the ground of fraud. Whereupon out comes Lawless with another publication, inciting, irritating, and exhorting the claimants, the witnesses and their relatives to assail the Judge, for the conscientious opinion thus expressed in the discharge of his judicial duties, in the shape either of an action of slander, or in any other form more congenial with their exasperated feelings. Permit me, sir, to read this incendiary paper to the Court. It is found in the "St. Louis Beacon" of 17th June, 1829. [Here Mr. Wirt read the article, as follows :-]

"Our readers will perhaps recollect that, some time in February last, Judge Peck published in the Missiouri Republican an article purporting to be an argument against the claim of Joseph Wherry and others, to the confirmation of their title to a tract of 1600 arpens, granted to the father of the petitioners by the Lt. Governor of Upper Louisiana. Amongst other positions taken in that argument by Mr. Judge Peck, were the following, to wit: That the "claim was fraudulent in its inception" and "wus an intentional fraud not confined to the original claimant, but extending to the officer making the concession, and implicating Soulard, the surveyor, in whose hand-writing the concession is proved to be." Again, Mr. Judge Peck informs the public, "that, on the hearing of the case of the heirs of Mackay, deceased, some days since, the Court (meaning himself, Mr. Judge Peck) believed, and now has no doubt but that three of the officers of the former Governor were concerned in antedating the concession upon which that claim was founded, viz. the Lt. Governor, (Col. Charles Dehault Delassus,) the surveyor, (Antoine Soulard) and the commandant of the Post of St. Andre, (James Mackay) in whose favor the concession was made." Besides the above charges of fraud and antedate against the officers mentioned, Mr. Judge Peck pretty plainly gives the public to understand, that the testimony of M. Marie P. Leduc (formerly private Secretary of the Lt. Governor of Upper Louisiana, and now presiding Judge of the County Court of the County of St. Louis) goes not only to establish the charge of fraud and malpractice against those officers, but furnishes conclusions by no means advantageous to the moral character of the witness himself.

"It may be recollected, that the errors of this argument have been already pointed out, in an article signed a Citizen,' published in the Missouri Republican of the 9th of March last, and written, as we are informed, by Mr. Lawless, who was counsel for the petitioners, and that Mr. Leduc, in order to enable the public to appreciate Judge Peck's insinuations against him, has published in the same journal, his testimony as actually given. We were much gratified that, thus far, Mr. Judge Peck's attack upon the reputation of his fellow-citizens was treated as it deserved; and we now have the satisfaction to state, on authority, that Col. Delassus (now at New Orleans) has declared it his intention to appeal to the law of the land for protection from Mr. Judge Peck's denunciations. He feels, as was anticipated, indignant that his well-earned reputation should be withered by the "breath from the nostrils " of a District Judge of the United States for the District of Missouri ! ! ! Col. Delassus has consulted eminent counsel, who have informed him that a libel is not less a libel for appearing in the garb of a judicial argument, gratuitously inserted by the author in a public newspaper, and that Judge Peck, if he has libelled Col. Delassus, is responsible criminally and civilly to the same extent that any other citizen would be.

"We for our part, hope, that the question of judicial impunity and power may be tested in this way. If the law be, that a judge can, in the shape of a newspaper essay, fling his unwarranted slanders on the best men in society-can blast the fair fame of the living and the dead-we say, that the sooner the law is altered the better. We however cannot believe, that, in the United States, such can be the law. Such a doctrine is repelled by all our institutions. We wish not to

be understood to contend that a judge, acting in the regular course of judicial proceedings, and within the limits of his function, should be liable to be sued for slander or libel; but we do believe that when a judge, wantonly and without any legal or official obligation upon him to do so, deliberately composes a labored essay, containing charges of fraud, perjury and prevarication, against respectable individuals, and causes that essay to be printed and published, he loses all title to judicial impunity; and upon this ground we repeat, that, if the charges made by Judge Peck against Col. Delassus are false, he, Judge Peck, ought to be considered and dealt with as a malicious libeller."

And this, sir, for no other offence, than the conscientious discharge of a public and painful duty!

One would have thought, sir, that Lawless might have been satisfied with these attacks on the Judge's official conduct. One would have supposed at least, that the Judge's personal misfortunes would have disarmed him. Coming from a nation distinguished for its generosity, and trained, as we are told, to the profession of arms, with which we have always been accustomed to associate only the best and noblest feelings of our nature, it was certainly not to have been anticipated that he would prove such a recreant to the land of his birth, and to his chosen profession, as to make these very misfortunes the subject of reproach in the public newspapers. Yet, hear the manner in which he taunts the Judge on the temporary blindness with which it had been the pleasure of Providence to visit him. That blindness, be it observed, had never interrupted the discharge of his official duties. No session of a court had been prevented, and no suitor had ever complained of neglect or delay. [Here Mr. Wirt read the article, as follows:-]

"Lord Mansfield, in the full vigor of his mental faculties, resigned his seat as Chief Justice of England, because his eye-sight had become defective. Here we see one of the greatest judges that ever sat in a court of justice exhibit, by an act which admits of no doubt, his sense of judicial obligation. It does not appear that any objection had ever been taken by client or counsel to Lord Mansfield on account of his declining vision, or that any popular murmur was ever heard against him on that subject. His own conscience-his accurate knowledge of the nature and extent of the functions of a judge-his conviction of the impossibility of a blind man's administering justice or expounding or applying the law to the satisfaction of the parties, or with due precision and accuracy, impelled him to the honorable act of resigning his high and lucrative office. We cannot help contrasting this noble proceeding of Lord Mansfield with conduct of a totally opposite character on this side the Atlantic and the Mississippi. We have seen, to our utter indignation, we confess, and ineffable disgust, a judge with a bandage over his eyes, year after year, presuming to sit in judgment on the rights and titles of his fellow-citizens. We have seen this man using other men's eyes for the purpose of judicial inspection-we have seen him taking the law upon trust,-signing records upon trust, and, in fact, exhibiting, as a mere automaton judge, in every instance where physical vision was necessary to the execution of a judicial duty. It is difficult to conceive a greater abandonment than this amounts to, of every delicate sentiment, thus to cling to office and emolument, while utterly unfit and undeserving of either, shows a callousness of soul-an indifference to public opinion, and to the interests of justice, that must shock every man of sense and honor. Yet this offender has persevered for years in this course, and might, for aught we see to the contrary, have continued it to the end of his life, utterly irresponsible to the nation, and untangible by any code or court of criminal justice that we know of. It is the general opinion that impeachment does not reach his case; if not, what other mode exists of ridding the nation of such a nuisance? We know of but one, to wit: that of subjecting the judges, like all other public servants, to a depen

dence on the nation's will. The amendments to the constitution of Missouri will effect this as far as respects our state judiciary, and it is to be hoped that the same principle will be brought, sooner or later, to bear on the Constitution of the Union. The arguments in favor of subjecting our state judiciary to the control of the people apply with increased force to the judiciary of the United States. The particular case to which we have alluded is that of a Federal judge; but it is an excellent illustration of the mischief with which our present state judicial tenure is pregnant, and of the wise policy of the proposed Constitutional amendment. The following extract of a letter of Mr. Jefferson, will show that if he were now alive he would sanction those amendments. They are in fact suggested by him.

"To W. T. Barry, July 2, 1822.

"Let the future appointments of judges be for four or six years, and renewable by the President and Senate. This will bring their conduct, at regular periods, under revision and probation; and may keep them in equipoise between the General and special Governments." "

And this, sir, is the liberty of the press! And if this impeachment shall find favor here, such is to be the condition of the judges of our country. I make no farther comments, sir, on this inhuman article; I leave it to make its own, and to find such favor as it may, among the good and the wise.

Mr. President, I have now, under the pressure of ill health, and deep affliction of spirit, discharged the painful duty which rested upon me. I have spoken professionally, and trust that I may not be so misunderstood, as to be supposed capable of finding enjoyment in the wounds I may have inflicted. They are as painful to me as to others. But our duties, sir, whether pleasant or painful, must be done; and I should be unworthy of a place at your bar, if I could permit any ill-timed delicacy to interfere with their firm and faithful discharge. The question before you, sir, is not that of Judge Peck alone. It is the question of the independence of the American judiciary. It is in his person that that independence is sought to be violated. Is this Court prepared to suspend the sword by a hair over the heads of our judges, and constrain them to the performance of their duties amidst fear and trembling from the terrors of an impeachment? Or will you not rather, by your decision, maintain them in that firm, enlightened, and honest discharge of their duties, which has heretofore so pre-eminently distinguished them? Can you sacrifice such a man as Judge Peck to such a man as Lawless? Can you, by such a precedent strike a panic throughout the American bench, and fill the bosoms of all the reflecting, the wise and good, with dismay and despair? Sir, there is not a considerate man who has not long regarded a pure, firm, enlightened judiciary as the great sheet-anchor of our national constitution. Snap the cable that binds us to that, and farewell to our Union and the yet dawning glories of our Republic. I commit the subject to you, sir, without any apprehension of so dreadful a catastrophe from a tribunal like this.