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ed locked up there from four in the afternoon of the 21st April, 1826, until about nine o'clock at night, when he was brought before Judge Stuart, one of the Circuit Judges of the State of Missouri, on a writ of habeas corpus, and by said Judge discharged from imprisonment, on the ground that the order of commitment was a nullity, having no judicial seal or signature by which it could be authenticated.
Your petitioner showeth that, inasmuch as your petitioner was discharged from imprisonment in consequence of a mere formal defect in the order of commitment, he is still liable to be re-committed by said Judge Peck, whenever it shall please him so to do, by a warrant in proper form.
Your petitioner further showeth, that said Judge Peck, by that part of his sentence which suspends your petitioner from practice as attorney and counsellor, has not only injured your petitioner, but has violated the rights and endangered the interests of those persons (and they are numerous) who have entrusted their claims and causes in said court to your petitioner.
That your petitioner is prepared to prove, by the fullest evidence, as well written as oral, all that he has above alleged, and, for this purpose, begs leave to refer (amongst other matter) to,
1st. The opinion of Judge Peck in the cause of the widow and heirs of Soulard vs. United States, as published by said Judge in the Republican newspaper of the 30th March, 1826. (Marked No. 1.)
2d. The certificate on oath of the printer of the Republican. (Marked No 2.)
3d. The Missouri Advocate and St. Louis Enquirer of the 8th of April, 1826, containing the article signed “A Citizen.” (Marked No. 3.)
4th. The said article signed“ A Citizen," and so much of the text of the published opinion, placed in juxtaposition thereto, as will demonstrate the truth of the article, and the total absence of malice in the writer of it. (Marked No. 4.)
5th. A certified copy of the record of the District Court of the United States for Missouri, of the proceedings in this petition mentioned against the editor of the Missouri Advocate, and against your petitioner. (Marked No. 5.)
6th. A certified copy of the record of the proceedings of the Circuit Court of the county of St. Louis, State of Missouri, on the return to the writ of habeas corpus, in this petition mentioned. (Marked No. 6.)
7th. The certificate of eight respectable citizens of the State of Missouri, who were present in court when said Judge Peck reviled and insulted your petitioner, as herein before set forth. (Marked No. 7.)
8th. The testimony of other respectable citizens, who, if summoned, can prove, on their oaths, the manner and language made use of, as above alleged, by said Judge Peck, towards your petitioner.
Having thus submitted to your honorable body the facts of his case, and the evidence in support thereof, your petitioner begs leave to observe, that it appears from those facts
1st. That the said James H. Peck has, in his capacity of Judge of a District Court of the United States, been guilty of usurping a power which the laws of the land did not give him.
2d. That said James H. Peck has exercised his power, be the same usurped or legitimate, in the case of your petitioner, in a manner cruel, vindictive, and unjust.
Wherefore, and inasmuch as the said James H. Peck has not only outraged and oppressed your petitioner as an individual citizen, but, in your petitioner's person, has violated the most sacred and undoubted rights of the inhabitants of these United States, namely, the liberty of speech and of the press, and the right of trial by jury, your petitioner prays that the conduct and proceedings in this behalf, of said Judge Peck, may be inquired into by your honorable body, and such decision made thereon as to your wisdom and justice shall seem proper. And your petitioner, as in duty bound, will pray.
LUKE EDWARD LAWLESS. St. Louis, Missouri, 22 September, 1826.
This memorial was referred to the Standing Committee of the House on the Judiciary ; which consisted, at that session, of Messrs. Webster, Wright, Rives, Letcher, Humphrey, Owen, and Kerr. It was accompanied by various documents, which were referred to by the memorialist in illustration and proof of his cause of complaint. Nothing was heard from the committee upon the subject referred to them until the 15th of February following, when they prayed that the petitioner have leave to withdraw his petition and documents.
Here the matter rested till the session of 1828, when, on the 29th of December, the Hon. Mr Mc Duffie, of South Carolina, again presented the same memorial, and moved its reference to the Judiciary Committee, consisting, this year, of Messrs. P. P. Barbour, Buchanan, Rives, Wickliffe, Kerr, Storrs, and Bell. But the session passed, and no report was made on the memorial.
The following session, Mr. Mc Duffie, on the 15th December, 1829, repeated the motion he had made at the last Congress, and the petition was once more referred to the Judiciary Committee, which now consisted of Messrs. Buchanan, Wickliffe, Storrs of N. York, Davis of S. Carolina, Bouldin, Ellsworth, and White of Louisiana. These gentlemen took up the subject with earnestness, and on the 7th of January ensuing, their chairman, Mr. Buchanan, moved that they be authorized to send for persons and papers. The motion was agreed to : witnesses were sent for and examined, and on the 23d of March following, Mr. Buchanan made a full report of the proceedings of the committee, exhibiting an abstract of the Soulard cause, (which had given rise to the the proceedings,) together with the depositions of Luke Edward Lawless, the memorialist ; Henry S Geyer, Arthur L. Magenis, and Charles S. Hempstead, practising lawyers at the Missouri bar; the Rev. Thomas Horrall, an Episcopal minister residing at St. Louis ; John Mullanphy ; and Edward Charless, the editor of the paper in which Mr. Lawless had published his strictures on the opinion delivered by Judge Peck in the Soulard cause. These gentlemen had been examined in the presence of the Judiciary Committee and of Judge Peck, by whom they had been cross examined ; but as all of them, save one, were afterwards examined on the trial, it is deemed unnecessary to present their examination before the committee. The report concluded with the following clause : “ That, in consequence of the evidence collected by them, in virtue of the powers with which they have been invested by the House, and which is hereunto subjoined, they are of opinion that James H. Peck, Judge of the District Court of the United States for the District of Missouri, BE IMPEACHED of high misdemeanors in office.”
The report was ordered to be printed ; an ineffectual attempt by Mr. Clay of Alabama to include in the order for printing the memorial of Mr. Lawless, and a letter addressed by Judge Peck to the committee, having failed.
On the 5th of April following, the Judge addressed to the House, through the speaker, the following memorial :
To the IIonorable the Speaker and Members of the House of Representatives of the
United States : The memorial of James H. Peck, Judge of the District Court of the United
States, for the District of Missouri, RESPECTFULLY REPRESENTS :
That, by a report of the Committee on the Judiciary, made to your honorable body on the 23d March, 1830, on the petition of Luke E. Lawless, it is proposed that your memorialist be impeached of high misdemeanors in office.
As the report consists only of that simple proposition, without any specification of charges, or of the grounds on which the measure is recommended, your memorialist is-lest to collect those charges and grounds from the petition of Mr. Lawless, and the evidence accompanying the report of the committee.
By that petition and evidence, it appears that the proposed impeachment has relation to one single charge against your memorialist, and one only, to wit : your memorialist having, in his character of Judge, in April, 1826, punished a contempt of court, committed by the said Luke E. Lawless, a practising attorney and counsellor of the court of which your memorialist is Judge, by a sentence of imprisonment for twenty-four hours, and by a suspension from practice as such attorney and counsellor in that court for eighteen months.
As the proceeding by impeachment is one of grave character, and is not less interesting to the public than to the individual who may be the subject of it, your memorialist presumes that it will not be displeasing to your honorable body to have a full view of the whole ground of this accusation, before you proceed to decide finally on the report of the committee.
In England, from which we borrow the process of impeachment, the House of Commons has been willing to receive such information from the party accused, before they will vote the impeachment. Thus, in the case of Warren Hastings, accused of high crimes and misdemeanors in his office of Governor General of Bengal, Mr. Burke presented the motion for impeachment to the House, with several articles of charge, on the 4th April, 1786. On the 26th April, the House received a petition, from Mr. Hastings, praying to be heard at the bar of the House, against the matter of the charges exhibited against him, and praying, also, for a copy of the charges; both of which were granted. On the first of May, that gentleman was accordingly admitted to the bar of the House, where he was heard in his defence for two days : his written defence was then received, with the documents to which it referred, and a number of gentlemen were then examined as witnesses at the bar of the House, which was continued, at intervals, throughout the month. In consequence of the opportunity of defence thus allowed to Mr. Hastings, the first article in the impeachment, and that on which the accusers seemed mainly to rely, was struck from the list ; and it was not until after the severest scrutiny, and discussion which continued to the close of the session, which was resumed in the following year, and was protracted until the 10th May, 1787, that an impeachment was finally resolved on by the House of Commons. Even after all this care and circumspection in the preparatory movements, that impeachment, after a trial which hung over the nation for seven years, proved abortive, by the triumphant acquittal of Mr. Hiastings on every charge.
Your memorialist has referred to this precedent simply for the purpose of showing, that the request which he is about to prefer is consonant with the practice of the British ouse of Commons in like cases.
Even without a precedent, and on the original grounds of reason and justice, your memorialist presumes that it would not be the disposition of the House, either to burthen the nation or to harass him with a prosecution, which can be shown to be without any solid foundation either in law or right.
In saying this, he intends no disrespect to the committee which has recommended the impeachment. They had before them, as your memorialist presumes, the witnesses, only, who had been selected and summoned at the request of Luke E. Lawless himself; nor can they, as your memorialist hopes he may, add, without the imputation, and certainly without the intention of disrespect, have had an opportunity of examining, deliberately, the adjudged cases on which he grounds bis principal proceedings against Mr. Lawless.
Against the prima facie impression to his disadvantage, arising from the fact that this committee have recommended an impeachment, he hopes, also, that he may be permitted to adduce the opposing facts, that this same petition of Luke E. Lawless was presented to this honorable House at the session of 1826–7, when the Judiciary Committee, to which it had been referred, and the chairman of which was, and is, among the most distinguished legal characters in the United States, after examining the subject, prayed to be discharged from the further consideration of it, and that the petitioner have leave to withdraw his papers.
The same petition was again presented at the session of
1828--9, when the committee, (two of whom had been on the first committee) seemed to have considered it not of sufficient consequence to engage their attention, since they made no report whatever on the case.
Your memorialist is, nevertheless, sensible that the present report of the committee, connected with its accompanying evidence, (which is the effect of the witnesses called against him on the suggestion, as he presumes, of Mr. Lawless himself,) even although the case should go no further, is calculated to throw a shade on his official as well as his personal character, which a full knowledge of the case would entirely remove ; and, with this view, as well as to prevent a needless consumption of the time of this House and of the honorable Senate, your memorialist humbly prays that you will permit him to lay before you a full exposition of all the facts as well as the law of this case, and that you will receive the testimony of some of the most respectable gentlemen, who witnessed the whole transaction, and who have no connexion either with your memorialist or the petitioner, to influence the statements which they will lay before the House,
Your memorialist feels the most entire confidence that, if this request shall be granted, he will be able to satisfy you that his conduct with regard to the petitioner, so far from meeting the censure of this honorable House, deserves its approbation, and that, if he had failed to adopt the measure which he did adopt, he would have been unworthy of the place which he holds in the Judiciary of the United States.
In what form you will be pleased to receive this exposition and testimony, whether by a direct address to the House, or by re-committing the subject to the Judiciary Committee, with instructions to receive and report them to the House, or, with an instruction to the committee to reconsider the subject and report anew to the House, or in whatever other form, is a matter of entire indifference to your petitioner, since he feels no other solicitude on the occasion, than that the subject itself shall be thoroughly and fully understood by the House and by the nation, on all the evidence and the law which belongs to it; and that a public discussion shall not take place on that evidence only which is now before the House, and which gives but a partial and imperfect view of the subject.
Your memorialist begs leave to suggest, that, having been all along conscious of the entire rectitude of his own motives and conduct, and having been aware, also, of the former presentation of this same petition of Mr. Lawless to this honorable House, and of the failure of these efforts to satisfy the former committees, that there was anything in the transaction to call forth the censure of this House, he had felt no solicitude on the subject, until he was informed, by a private letter from Washington, that the Judiciary Committee had moved for, and obtained, leave to send to Missouri for persons and papers, with a view to the investigation of the charge; when he thought it proper to proceed in person to Washington : he did so, and on his way, on the 28th of February, at Louisville, in Kentucky, he received a letter from the honorable chairman of the committee, dated at Washington, on the 21st of January, apprizing him that the committee had determined to investigate the subject of Mr. Lawless' complaint; that they had obtained leave from the House to send for persons and papers; and that they would receive any erplanation which this memorialist might think proper to make, in relation to the charge.
The place and time at which your memorialist received this letter, the uncertainty of the duration of the session of Congress, the want of power to compel the attendance of witnesses from the State of Missouri, and his conviction that the permission to examine counter testimony would not be considered as coming within the scope of that explanation which the committee had declared themselves willing to receive, left to your memorialist no course but to proceed to Washington with as little delay as possible, and with no other means of explanation than such as he bore about him. He reached this city on the 9th of March,
and on the 10th, addressed a letter to the honorable chairman, simply requesting that he might be present at the examination of the witnesses summoned in support of Mr Lawless' petition, and have permission to cross-examine them.
On the evening of Sunday, the 14th of March, your memorialist received the answer of the honorable chairman, (dated on the 13th) by which he was informed that the committee would, on Monday, (the day after the receipt of the letter) receive any explanation in writing relative to the charge preferred by Mr Lawless, which your memorialist might think proper to communicate ; and that, after having made such communication in answer to the charge, your memorialist would be permitted to cross-examine such witnesses as might be examined for the purpose of sustaining it.
Your memorialist begs leave to observe, that, being afflicted with an inflammation and weakness of the eyes, which compelled him to have recourse to an amanuensis; being now in a place in which he is a stranger ; and the explanation which he was expected to make, calling, in his opinion, for an extended statement of facts, and for a minute reference to law authorities in support of his judicial decision, which authorities he had no means of commanding ; the few hours allowed him for making this explanation, rendered the task a perfectly hopeless one. The committee, no doubt, thought the time amply sufficient. As the charge was a single one, they naturally enough supposed that the explanation must be brief. But if this honorable House shall be pleased to receive that exposition which your memorialist has prayed leave to offer, you will be satisfied, that, though the charge be single, yet the facts out of which it has grown, and the principles of law involved in it, are multifarious, and that the case cannot be fairly understood without a full developement of all those facts and principles. It is proper, also, to add, that the committee themselves extended the time for making this explanation for several days. Yet such was still the haste, and such the disadvantages under which your memorialist was compelled to prepare the statement, that he was constrained to submit, as part of it, crude memoranda, not designed for such a purpose, with an appendage equally crude; and he doubts whether his narrative could been have read, or, if read, could have been clearly intelligible to the committee. Your memorialist was desirous that his explanation of the case should have been fully read and understood by the committee before the examination of the witnesses was taken up, in order that the committee might have a distinct view of the points in issue between the petitioner and your memorialist, and be thus the better able to direct their own examination, as well as to take the points and appreciate the force of the cross interrogatories which your memorialist intended to propound; but to his great regret, on the very morning on which he handed in his statement, which was on Friday, 19th March, (and which was as early as it was possible, in the nature of things, for him to prepare the statement, even in that crude form,) the honorable committee, without reading the statement, proceeded immediately to examine the witnesses.
It is true, also, that your memorialist was permitted to cross-examine, to a certain extent, the witnesses who had been summoned and examined in support of the charge, but this cross-examination was much restricted by frequent objections, and by the strong desire evinced by the committee to get through the examination at least within the two remaining days of the week. And your memorialist having been more than once admonished that he was there, ex gratia, felt himself checked and restrained from extending the cross-examination to points which seemed to him to belong to the inquiry; so that his having been permitted to be present, under such circumstances, is rather a disadvantage to him than a benefit, because it gives to the transaction all the semblance of a free and full investigation of the whole case, without the reality. Your memorialist does not make this remark in censure of the honorable committee ; on the contrary, considering the proceeding, as they manifestly seemed to do, as being analogous to an inquiry by a grand jury, and to be governed by the same rules, your memo