that it might be published at length. And it is true, that, after the appeal had been taken, and after the adjournment of the court at which the final decree had been rendered, to wit, on or about the 30th day of March, 1826, the respondent, in compliance with that request, did cause his opinion to be published in a certain public newspaper, printed at the city of St. Louis, called the Missouri Republican; the opinion so published being in substance and effect the same which had been delivered on the bench.

The respondent had observed that such publications had been usual in the United States as well as in England; and he saw no impropriety in yielding to the request of the bar. On the contrary, there seemed to be a peculiar propriety in this case in yielding to it—

1. Because, as the opinion had proceeded exclusively on grounds which had not been fuily argued at the bar, and as the branch of law on which these claims necessarily rested was new both to the bench and the bar, the court was disposed to permit those grounds to be re-argued in the next case which might be presented for decision, and which rested on the same grounds; and, with this view, it was proper that these grounds should be opened to the deliberate consideration of the counsel who might be disposed to re-argue them.

2. If the counsel and their clients should become convinced, by the reasoning of the court, that the grounds of the decision could not be shaken, it might save to the parties, as well as to their counsel, much expense and trouble in the presentation of other claims, resting solely on those grounds; and, with this view, also, the respondent deemed it right that this reasoning should be submitted to the deliberate consideration both of the claimants and their counsel. 3. It might happen that there might be other cases, with relation to which facts might exist, that would enable the parties to take them out of the operation of these principles; and the publication of the opinion would apprize them of the necessity of that measure, and give them the opportunity of so shaping their cases as to avoid the operation of those principles..

4. The respondent was justly desirous that the claimants themselves, as well as their counsel, should see and know that these principles, which were understood to involve the fate of many other claims, had not been hastily and inconsiderately assumed by the court; but that they had been carefully and laboriously examined, weighed, and considered, and that the court had been constrained to come to its conclusion, by the force of evidence and of arguments which it could not conscientiously resist.

While all these considerations conspired so strongly to recommend the publication of the opinion, and the measure was justified by the practice of all courts, both in this country and in England, the court perceived no inconvenience which could possibly flow from it.

No damage to the land claimants could result from the publication of the opinion, which might not result in an equal, and, perhaps, superior degree, from the publication of the mere fact that the court had decided against the claim. On the contrary, the statement in the papers, of the general fact that the court had decided against the claim, was susceptible of being misconstrued as a decision against the whole mass of the Spanish claims at large; whereas the published opinion would show that the decision affected no other claims than those which rested on the precise and single ground on which Soulard's claim had been decided. With regard to prejudicing the public mind against the claims by the publication of the opinion, it would be a new thing to apply this principle to the publication of a judicial decision; and, again, what greater prejudice could be thus excited than by the publication of the single fact, that the court had decided against Soulard's claim?

It cannot be supposed that the decision of the Supreme Court on the appeal could be affected by the publication of the Judge's reasoning, except so far as that reasoning was solid, and thus far it would be a proper effect; and there

could be no doubt that the Attorney General of the United States would urge in support of a judgment of affirmance in that case, all the topics, and probably more and stronger ones, than those which had been urged by the Judge of the District Court.

This respondent has been thus particular in setting forth the reasons by which he was induced to yield to the request to publish his opinion; because the article of impeachment exhibited against him seems to imply that the honorable House of Representatives deemed that publication unlawful or improper; or that it considered that publication as inviting or justifying the publication signed "A Citizen," which is set forth in the article of impeachment.

It is true also that, after the opinion of the court had, for these reasons, been published in the "Missouri Republican," to wit: on or about the eighth day. of April, 1826, the said Luke E. Lawless did cause to be published, in a certain other public newspaper printed at the city of St. Louis, called "The Missouri Advocate and St. Louis Enquirer," a certain article signed "A Citizen," which is set forth at large in the article of impeachment.

It is true, also, that this respondent, considering this last publication as a contempt of the court, did, in his judicial character, in the honest and conscientious discharge of what he deemed his official duty, proceed to punish it as such in the manner which will be hereafter set forth.

He did consider that publication as a contempt, for the following reasons:

Because it misrepresented the opinion of the court which it professed to censure, in a manner calculated to destroy the public confidence in the integrity or intelligence of the tribunal, and to bring the court into disrepute, hatred, contempt, and ridicule; and, having been made by a person who was attorney and counsel in the cause, and who must therefore be presumed to have known and understood the opinion of the court, the respondent did believe, and was justified in believing, that those misrepresentations were wilfully, wantonly, and maliciously made.

2. Because, before, and at the time of the said publication, there were other claims for lands still pending and undecided, in which the said Luke E. Lawless, and others, were of counsel for the petitioners, which other claims were of the same character, and rested for their decision on the same general principles on which the case of Antoine Soulard's representatives had been decided by the court; and the immediate tendency and object of the publication were to prejudice the public mind with regard to these claims; to excite the resentment and hostility of the numerous and influential body of land claimants in Missouri, and their connexions, against the Judge, who alone composed the court; to destroy the public confidence in the integrity and judgment of the tribunal; to influence and restrain the court in the free and independent exercise of its judgment, with regard to these remaining claims, and thus to disturb and interrupt the due and regular administration of justice.

For these reasons, the respondent did consider and adjudge the said publication to be a contempt of the court; and did believe, and does still believe, that he was justified by the constitution and the laws of the land in so considering and adjudging it, and in punishing it as a contempt by the summary process of attachment, in the manner in which it was punished.

In addition to which, it may be observed that the suit to which the publication related was still pending on appeal to the Supreme Court of the United States, and was liable to be remanded again to the District Court for farther proceedings.

The respondent respectfully presumes that the questions presented by the impeachment for the consideration and decision of this honorable Court, are these :

I. Was the publication, signed "A Citizen," a contempt of the court?

II. If it was a contempt, was it punishable by the summary process of attachment in the manner in which it was punished?

III. If the court erred in adjudging and punishing it as a contempt, was it an innocent error of judgment on the part of the c urt, or was it a high misdemeanor, because wilfully and knowingly done in violation of law, and with the intention imputed by the article of impeachment, to wit: wrongfully, arbitrarily, and unjustly, to oppress, imprison, and otherwise injure, the said Luke E. Lawless, under color of law?

This respondent presumes that it is only by making good the affirmative of the last proposition, that the impeachment against him can be sustained. He humbly, but confidently trusts that, at the proper time, he will be able to satisfy the honorable Court not only that this affirmative is untrue, but that all and singular the things which he has judicially done in the premises were dictated by the purest sense of official duty; were warranted and justified by the constitution and known laws of the land; and were free from all feelings, designs, and intention, on his part, wrongfully, arbitrarily, and unjustly, to oppress, imprison, or otherwise to injure the said Luke E. Lawless, under color of law.

In the proper order of this answer, the first and great inquiry is, whether the publication signed "A Citizen," was a contempt of court?

The grounds on which the court held it a contempt, have been already distinctly stated: and the principal purpose of this answer is to show that these grounds have been correctly taken, in point of fact.

The publication was a misrepresentation of the opinion of the court, tending to destroy the respect and confidence of the community in the tribunal and to bring that tribunal into open and public.contempt and scandal.

The only difficulty which this respondent experiences in establishing the truth of this proposition, arises from the novel character of the controversy in which the opinion was pronounced. It will be impossible to decide whether the publication misrepresented the opinion, until the opinion itself shall be thoroughly understood; and the opinion cannot be so understood without a familiar acquaintance with the peculiar character of the controversy out of which it grew. In the country in which the publication took place, and in which it was intended to operate, the controversy was understood; and therefore the absurdities which that publication imputed to the court were immediately perceived and felt, and produced their intended effect on all who took their impressions only from that article. To enable the honorable Court to estimate the effects of the publication on the people of Missouri to whom it was addressed, it is necessary that they should possess the same familiarity with the nature of the controversy, the questions involved in it, and the peculiar character of the laws by which it was to be decided. For this respondent is convinced, that, without this familiar acquaintance with the subject, no person who now, for the first time, reads the opinion hastily and superficially, and as hastily and superficially compares it with the publication, will be struck with the misrepresentation; but that such a reader will, on the contrary, be apt to suppose that there is resemblance enough between the argumentative conclusions drawn by the Judge in his opinion, and the assumptions imputed to him by the publication, to authorize the belief that the Judge must have acted vindictively in treating it as a misrepresentation and punishing it as a contempt. It is in this that the art and mischief of the publication consist. This honorable Court must have observed, in the course of their experience, that the soundest conclusion which a logician can draw, may be rendered ridiculous by suppressing the reasoning which led to it, and under the pretence of giving the result, by giving it in terms which distort it, without entirely extinguishing the resemblance. It is this species of caricature which pervades the whole of the article signed "A Citizen," and it was from this character that its mischievous tendency and operation arose. But to render this truth palpable to this honorable Court, it is indispensably necessary that they should be able to institute the comparison between the opinion and the publication under those strong lights which can be

furnished only by a familiar acquaintance with the subject-matter of the controversy. This will give trouble. But this honorable Court is sitting in the last resort on a case most deeply affecting this respondent; and he feels the cheering confidence that the cause will now be mastered before it shall be decided.

To produce this effect, this respondent finds it necessary to begin by apprising this honorable Court that Soulard's case was one of those which grew out of the cession of Louisiana to the United States, in 1803. By the third article of the treaty of cession, the United States stipulated that the inhabitants of the ceded territory should be protected in their property. Louisiana belonged originally to France, had been ceded to Spain in 1762, though possession was not taken by this latter power until 1769. In 1800 it had been re-ceded to France, though the possession was retained by Spain until, and even after the cession of France to the United States, in 1803. From these circumstances it was known at the time of the last cession, that there existed various private claims to land in that province, both by French and Spanish subjects, and that these claims were of various characters. Some of them were mere rights by settlement and occupancy without any title whatever derived from either of the preceding governments; others, mere permissions to settle, which had never been surveyed; others, floating concessions for a given quantity of arpents, without any description of place, which had also never been surveyed; some of them were concessions by officers who had no right to make them; others, concessions surveyed, but which had not been carried into grant; and others complete and final grants. It became important to ascertain what portion of these claims were valid, and what spurious. This was necessary as well to enable the United States to keep its faith in protecting the inhabitants of the ceded territory in their property, as to ascertain what portion of the domain still belonged to the United States, and was subject to survey and sale by its authority.

To accomplish these purposes, special officers were first appointed, and then Boards of Commissioners were organized to receive, adjudicate, and report upon these claims to Congress. The claimants were required to present their claims to these tribunals within a limited time, under pain of having them forever barred. The Commissioners were clothed with the most liberal powers of confirmation with regard to all fair claims of given descriptions; but among these provisions there is one to which this respondent deems it important to call the attention of this honorable Court, as marking the sense of Congress with regard to the class of characters by whom it was anticipated that those claims might be presented. The Commissioners were required to note specially, and to report to Congress, all forged and antedated claims.

Through indulgence to the land claimants, the time limited by the original law for the presentation of their claims was opened again and again. The Boards of Commissioners were kept in operation for many years; but when at last they were finally closed, it was still found that there were many outstanding claims, which were now pressed on the consideration of Congress with great importunity.

Under this pressure, Congress passed 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."

To two of the provisions of this act, it is important to invite the attention of this honorable Court. By the first section of the law, the persons authorized to appeal to the jurisdiction of the court were the holders of grants, &c. legally made, before the 10th March, 1804, by the proper authorities. By the second section, the court were required, in all cases to refer, 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,

thalaims 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 meant to authorize the courts to regard as grounds of confirmation.

The judges of these courts were thus required, by this act of Congress, to inform themselves of the several and respective powers of the officers employed by the preceding governments in granting the royal domain in Louisiana, and of the various treaties, laws, and ordinances, under which confirmation could be demanded of the courts as matter of right: for the respondent did not consider himself as authorized by the act of Congress to administer any portion of the power of the United States, in their sovereign capacity, and, therefore, to confirm every claim which that sovereign, in the exercise of their free grace, might confirm. He considered such a power as not being communicable to the judiciary under the constitution of the United States; this instrument limiting the judiciary to the exercise of judicial power merely. From the constitution of the court, therefore, as well as from the terms of the act of Congress, he considered himself required in every case to call upon the claimant to show the authority of the officer from whom he had derived his title, and to show also the specific treaty, law, or ordinance, by which the court was authorized, as a matter of right, to confirm the claim.

The case of Soulard was this: Antoine Soulard claimed 10,000 arpents of land, under a concession alleged to have been made to him in 1796, by Don Zenon Trudeau, the Lieutenant Governor of Upper Louisiana, then called Illinois, and now Missouri. The concession was alleged to have been made for public services. The concession itself, and the petition on which it was founded, were not produced, they being stated by Soulard to have been destroyed through mistake. The court was therefore left to collect from the evidence the particular character of the public services, in consideration of which the alleged concession was made; and by this evidence, which was quite vague, it appeared that they were services in the various characters of Surveyor of Upper Louisiana, for which it was said he had theretofore received only the usual fees of office; of Deputy Adjutant of that part of the province for a time, and of Informal Adviser or Assistant, or, as one of the witnesses termed it, the right arm of the Lieutenant Governor.

The questions pressed upon the consideration of the court in this case, by the act of Congress, were;

1. Whether Don Zenon Trudeau, the Lieutenant Governor of Upper Louisiana, was authorized by the laws of Spain to make a concession of 10,000 arpents of land, for such services as these?

2. Whether there was any treaty, law, or ordinance, to which the court could refer in its decree, for a confirmation of the claim?

With regard to the laws of Spain, all that was known at the time of the decision, was this:

1. That, from the epoch of the discovery by Columbus, the several kings of Spain, in succession, had, from time to time, made orders and decrees relative to granting out the royal domain in the newly discovered countries, which, long before the acquisition of Louisiana by Spain, had been collected and published in a general code, under the name of " Laws of the Indies : " to this collection belonged the royal order of 1754, with which it is unavoidably necessary that this honorable Court should become better acquainted in the course of this

answer.

2. That when, in 1769, Spain for the first time took possession of Louisiana, under Count O'Reilly, that officer, who had been appointed by special commission Governor and Captain General of the province, had, on the 18th February, 1770, published at New Orleans a set of rules for the express purpose of directing the mode of granting out the lands in Louisiana; at the close of which reg