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that kind. He did not consider that it would be honorable in him to do injustice to his fellow men, whether in that House, in the other House, or out of the House, whether they differed with him in politics or not.

FRIDAY, DECEMBER 17.

After disposing of several private bills, and the consideration of Executive business, the Senate adjourned to Monday.

MONDAY, DECEMBER 20.

TRIAL OF JUDGE PECK.

[SENATE.

of the common law had no force in our tribunals. He was aware it might be said, that it was necessary for the courts to adopt some principle which would authorize them to maintain their jurisdiction by punishing for contempts committed within and against it. But the power of punishing for contempt was a high criminal power; and, although it was, of all others, the most dangerous that could be enhad been exercised by courts of chancery as well as law, it forced. He maintained that the power could not legally or constitutionally be exercised so as to disfranchise a citizen, or to deprive him of his liberty and the means of his existence. The correct principle, then, was this: the courts of the United States had no power to punish for contempt, further than their own self-preservation required. It was

The Senate resolved itself into a Court of Impeach-necessary that they should possess the power to protect ment, for the trial of Judge Peck, of Missouri.

The Marshal accordingly called over their names. Some of them did not answer.

Mr. MEREDITH observed, that three of the material witnesses for the respondent were not present. We are, said he, notwithstanding, ready to go to trial. Mr. McDUFFIE then rose, and opened the case for the prosecution in substance as follows:

themselves in the administration of justice; to prevent and The House of Representatives, preceded by their man-punish direct outrages upon the court; to prevent the agers, Mr. BUCHANAN, Mr. McDUFFIE, Judge judge from being driven from the bench, the jury from SPENCER, Mr. STORRS, and Mr. WICKLIFFE, came being assaulted, and the regular and fair administration of into the Senate chamber in a body, and having taken justice from being impeded. This power the courts posthe seats prepared for them, sessed independently of the laws of the United States, or Mr. BUCHANAN rose and said, that the managers on the common law. The right to punish in such cases was the part of the House of Representatives were now pre-inherent. But how far did it extend? What principle of pared to proceed in this trial. necessity, the tyrant's plea, would justify the exercise of Mr. MEREDITH, one of the counsel for the respon- this power? for nothing but necessity could justify it. dent, desired that the witnesses summoned in his behalf It could be enforced only so far as to protect the courts in might be called. the administration of justice; to prevent any obstruction in their proceedings. It must be a flagrant outrage in the face of the court to justify a summary punishment for contempt. If, in such cases, our courts had not the power to protect themselves in the discharge of their high functions, it would be in vain for them to attempt to administer justice. Certain powers, however, had been imperceptibly introduced here from the common law courts of EngMr. MCDUFFIE said, that, in opening this case, he should land; our judges and lawyers had been thus imbued with endeavor to reduce to the narrowest limits the preliminary certain principles, which were utterly incompatible with view, which he proposed to take of the principles upon liberty. What was the case of the respondent? He was which he should invoke the judgment of this honorable not in court; he was not in the actual administration of juscourt on the charge set forth in the article of impeachment tice, when the publication of Mr. Lawless was made. He against the respondent now upon his trial. It was unne- claimed the power of protecting his sacred person, like cessary for him to attract the special attention of the court, the King of England, from all scrutiny! The judgment by any exposition of the importance of the case. Every of the court had been rendered six months before the pubmember of this honorable court must be aware of its great lication. The decree had been entered. There was an importance to the respondent himself, and to the country end to the judicial functions of the judge as to that case. at large. He asked that patient attention, in the consider- But some four or five months after judgment rendered, ation of the case, which was indispensable to a correct Judge Peck, from some motive, no doubt having referdecision upon it. He then proceeded to lay down the ence to the public interest, thought proper to come out principles of the constitution and law upon the subject of and publish an extra-judicial opinion in the newspapers: a contempts, and contended that Judge Peck had violated labored argument, prepared after his judicial functions them, and had, in the summary punishment which he had had ceased, to make such an impression upon the land inflicted upon Mr. Lawless, been guilty of an illegal and claimants in Missouri as should correspond with his own. tyrannical usurpation of power. Whatever view the And it was this extra-judicial opinion which he sought to court might take of the powers of the judge, he maintain-protect from all scrutiny, by the principles of the common ed that no contempt had been committed. The common law; upon the principle that the king could do no wrong, law of England was utterly unknown to the judicial tribu- and that the judge was, as the representative of the king, nals of the United States. Upon what principle, he de- administering his justice, equally exempt from responsimanded, could it be contended that the English common bility.

law, as such, had any force in this country? Were it not Was there any thing in this case to justify the exercise that it had been partly adopted in some of the States by of such an extraordinary power, as that assumed by the legislative enactments; had we not been educated in its judge, to commit and suspend Mr. Lawless? Was justice principles; would it occur to any human being in this coun- likely to be impeded, because, by an extra-judicial act of try that it had any existence here? It was utterly absurd the judge himself, his opinion was subjected to public disto say that the common law was in force in the courts of cussion? Suppose the article written by Mr. Lawless to the United States. He granted that, as respected many of have been, what it was not, an atrocious libel, founded in our laws and acts of Congress, especially those which pro- falsehood, an infamous and defamatory libel, where was vided for the organization of our courts, they were ex- the evil? What injury could it have done to the adminispounded according to the principles and rules of the com- tration of justice? Was it a case of emergency? No, sir. mon law. Where our courts were called upon to decide It would have been an ordinary case of libel, which could cases, they must have rules of proceeding and action, and just as well have been punished, through the ordinary he agreed that for these they had wisely and properly re-channel of trial by jury, in two years, as any other libel. sorted to the common law. These were wise rules of ac- Admit the impunity of Judge Peck from scrutiny; suppose tion for cases within the express jurisdiction of the courts. him to have been administering the king's justice, and to But, with regard to crimes and punishments, the principles have been protected from all animadversion; where then

SENATE.]

Trial of Judge Peck.

[DEC. 20, 1830.

was the necessity for inflicting punishment by a mode of tending to impede the course of justice, any insult to the trial which excluded all investigation; without any trial in court or jury, any contempt perpetrated in the face of the fact: without investigation; without the interposition of a court, by fine and imprisonment. The express grant of jury? Would any man of sense contend, on these princi- one power was the negation of another. The power ples, that the judges of the United States had any power, conferred by this act raised a presumption that Congress any right, to punish any libel, however flagitious, on any had not intended to go further; that the federal courts act of the court, after it had been done as a contempt? possessed no other or greater authority in relation to conHad the people no right to discuss the principles of the tempts. He humbly conceived that the kind of punishjudges of the Supreme Court of the United States? Had ment indicated by that act, was that by fine and imprisona South Carolina editor, for example, no right to examine ment alone. If it were, it would be most extraordinary the opinion of that court in the case of Cohen,and to produce that the courts should claim the power to punish in any it as evidence that the judges were the ministers of despot- other way than by fine and imprisonment. Unquestionaism? He demanded of this honorable court, whether there bly, they did not possess any such authority. What arguwas any unmeasured language of reprobation, in which a ment, then, could justify the respondent? Although Concitizen might not indulge towards a court for pronouncing gress had authorized only fine and imprisonment for the an opinion, and proclaiming principles dangerous to liber- higher grades of contempt, the respondent claimed the ty, and to the free institutions of his country? Would the power to inflict a greater punishment for the milder Supreme Court send the Marshal to South Carolina or grades. In any view, whether we regarded the common Louisiana to bring such an editor before them for con- law, the laws or usages of our own country, or of Engtempt, and to punish him by the summary process of at- land, or the principles of the constitution, our courts and tachment? From his knowledge of that court, and of the judges could not inflict a greater punishment for contempt Chief Justice, he had no hesitation in saying that they than fine and imprisonment: they could not inflict disfranwould unanimously, and with one accord, decide that they chisement: they could not deprive a man of his occupawere a court of limited powers; that they did not possess tion, his inheritance, or the means of subsisting his family. any authority on the subject of contempts, except the in- Such a power was never claimed before by any tribunal herent power to protect themselves in the administration in the civilized world. of justice, and to prevent its obstruction. To support his It must be apparent, by this time, that the district court argument, Mr. McD. adverted to the sedition law, not for of Missouri had no power to punish a citizen of the United the purpose of exciting any prejudice, or reviving any States for contempt, further than to protect the court in party feeling, in this honorable court, but as furnishing the actual administration of justice. Even the principles some analogy for the illustration of the present case. That of the common law conferred no semblance of authority law was thoroughly understood by every public man in the to punish a contempt against the majesty of a court. country. It was settled in the public mind to be an usur- What was the principle assumed in regard to contempts by pation. Every man of understanding considered it to the courts of England? In the case of the King against have been unconstitutional. And yet it was a mitigation Almon, which was no case at all, a mere extra-judicial of the common law of England. It exploded the mon- opinion of Chief Justice Wilmot, found among his papers strous heresy, that the greater the truth the greater would after his death, all the principles laid down in it were the be the libel. But it was deemed unconstitutional. Con- principles of unmitigated judicial despotism. This ingegress were condemned not for having passed an act which nious and artful tissue assumed, that the judges of Engmitigated the principles of the common law of England, land, deriving their authority from the King of England, but because they had no authority to pass any law restrict- and administering the King's justice, were an emanation ing the liberty of speech or of the press; because they had of his power, and that the same principle which protected conferred on the federal courts a power to punish for the character and person of the King, as sacred, protected contempt any man who might utter or publish what they those of his judges in like manner. This opinion was gomight deem a libel. Was not this a grievance? The law ing the whole. The judges, sitting in the seat of the had been repealed: it had become universally odious. And King, could not be called to account for denying the writ now, the President, the Senate, and House of Represen-of habeas corpus, or refusing to grant it, without making tatives, together, did not possess the power which Judge the King violate his coronation oath! This miserable tisPeck, representing the King of England, and administer- tue of sophistry and falsehood was used to justify the puning his justice, claimed, of punishing a citizen for con-ishment of a fair and manly publication on the law of hatempt, in daring to question the infallibility of his opinion. beas corpus as a contempt! God forbid that any man in Whence did he derive a power which did not belong to this country should say that the opinions of judges were the united functionaries of this Government? Under the not a fair subject of animadversion, or that the proceedsedition law, the citizen accused of a libel was entitled to ings of this honorable body were not also open for discusa trial by jury, and to give the truth in evidence. sion. No man, according to this doctrine, had a right to

By its repeal, the people of the United States had de- publish any thing, true or false, concerning any public cided that the President, Senate, and House of Represen-functionary, disparaging him, his character, or opinions. tatives could not subject a citizen even to trial by a jury for This principle of the English courts, a district judge of the most defamatory libel. But here, in this case, the the United States has had the boldness to advance to jusjudge undertakes, not by the interposition of a jury, but tify his judicial tyranny. Could this be law? Any publi of his own will, to punish for a contempt imagined by cation against a private citizen was prima facie a libel: it himself, which nobody else would have noticed or view- was the private individual that ought to be protected from ed as a contempt. Without law, this honorable judge calumny. The same immunity did not belong to the pubclaimed a power to punish, much greater than that which lic functionary. What might properly be punished for was possessed by every other branch of the Government being said against a private citizen, it would be justifiable united. He claimed a power to make the law, and punish to say against a public functionary. There was hardly under it, at the same moment. This was the most infa- any thing, true or false, that ought not. with impunity, to mous and tyrannical of the whole tissue of usurpations. be allowed to be published against a public man, rather We had analogics in the acts of Congress bearing on this than run the hazard of restricting the liberty of discusBy the judicial act of 1789, the federal courts have sion. By the irreversible decision of the people of the the power to punish for contempts committed during the United States upon the sedition law, it had been decided progress of a trial of any cause depending in court. In that you cannot punish any thing said against a public carrying this law into effect, they might punish any act officer. A decision so unanimous as that was did not ex

case.

DEC. 20, 1830.]

Trial of Judge Peck.

[SENATE.

ist on record. He would now barely call the attention of Mr. Lawless presented the strongest illustration of judicial this honorable court to one or two British authorities to despotism that had ever been exercised, from the first satisfy them that Judge Peck had been guilty of a high dawn of civil liberty to the present day. It must have remisdemeanor, even if we admitted the force of the com- quired all the disordered imagination and furious passion mon law in this country. Some of the elementary Eng- of this judge to distort into a contemptuous libel one of the lish authors carried the doctrine of contempt further than most innocent publications ever issued from the press. As others. God was his judge, if he did not know the respectable Blackstone, in whose work, unfortunately for many of counsel of the respondent, he should say, from the defence us, we were educated as a text book, supported the autho- of the judge, that he must have been deranged. No man rity of the King on all occasions, and spoke of the right in his senses could have tortured the publication of Mr. of the court to punish for consequential contempts. But Lawless as he had done. In the case of Soulard's heirs, even he did not push the doctrine as far as this tyrannical although the judge had decided against the claimants, he judge had done. Hawkins broadly laid down the princi- said, in his published opinion, that it was still open for the ple, that any words, however true or false, which might discussion of counsel. Mr. Lawless, therefore, combe uttered, reproachful of the judge, were immediately menced his publication, with an unbecoming humility to finable by the court; but that the better opinion was, that the court, such as no citizen ought to have manifested, by a man could not be punished for words said against a judge saying that he would avail himself of the permission grantnot in the actual execution of his official duties. If a man ed by the judge, to point the public attention to some said that a judge was a numskull, and deserved to be of the principal errors which he thought he had discoverhanged for giving such an opinion, here was contemptu-ed in his opinion. This very apology had been seized on ous as well as reproachful language; but the man could by this jealous tyrant, and tortured into an insult upon the not be punished for it. This had been laid down by a court. The judge alleged that he had not said the case writer who pushed the King's prerogative to its utmost was open for newspaper discussion; nor had Mr. Lawless limits. Such a man might say to a judge, out of court, said so. But the judge seemed to suppose that Mr. Law"your opinion is a fair subject of investigation: I have a less had discovered a secret; that by the publication of his right to pronounce you a fool or a scoundrel." This lan- opinion, Judge Peck had shown so little sense of judicial guage would not be a proper subject of indictment. He decency and decorum as to invite a newspaper discussion would not pretend to compare language so contemptuous of a case which had been decided in his court. And this and disrespectful as this to the publication, by Mr. Law- was the insult which Mr. Lawless had committed! This less, of "A Citizen," for which his majesty Judge Peck was the congeries of ridiculous absurdities uttered by the had imprisoned, suspended, and disfranchised the author. judge; this was the defence which he had dared to make His was a respectful and harmless publication. He would before the highest tribunal in the United States! Such produce another English elementary writer. According an idea never could have been conceived by any man of to Holt, it is held in England that a judicial opinion is a understanding. Humbly as the judge might estimate the fair subject of discussion, provided no bad or corrupt mo- land claimants in Missouri, no one of them would have tive be ascribed to the judge. Although he would not ad- been so deficient in common sense as to have put the conmit that it was punishable to say to a tyrannical judge, struction which he had put on the apology of Mr. Law"you are a judicial tyrant," yet, even according to the less. Mr. McD. then consecutively and critically examEnglish law, as expounded by the writers to whom he had ined every specification in the publication of "A Citizen,' referred, Judge Peck had no right to punish Mr. Lawless, with the commentary of the judge upon it; and, in relation who had ascribed no wrong or corrupt motive to his opi- to the first, he remarked, among other things, that, with nion in the case of Soulard. The power exercised by due deference to Mr. Lawless, he thought the only crime he that judge was the most arbitrary and dangerous ever ex- had committed was a violation of grammatical accuracy; a ercised by any court or judge in this country. It was a blunder which, he believed, was common to the Irish and pregnant proof of the danger of such an exercise of judi- Scotch Irish; he had construed a want of power in a subcial power, to say, as he would declare, that the power to delegate of Louisiana to grant land for services rendered, or punish for contempt, even in cases of necessity, was a to be rendered, into a prohibition from making such grants. dangerous power, a despotic power, an anomaly, utterly And for this monstrous and flagitious blunder in the King's incompatible with liberty, the essence of tyranny and des- English, committed by Mr. Lawless in the presence of his potism. It was the very illustration of tyranny, that a honor Judge Peck; for thus wounding the vanity of the judge might make the law, fix the punishment, and pun-judge, clothed in a little brief authority, Mr. Lawless was ish, at the same time. Could any man doubt that Judge charged with the suggestion of a falsehood, and sent to Peck had assumed the right to punish a contempt against prison for a contempt! In the progress of his analysis, his sacred person; that he had fixed the punishment, and Mr. McD. endeavored to demonstrate, that many of the enforced it too; that he had performed the functions of interpretations put by Judge Peck upon the publication legislator and judge in his own case? Could any man of Mr. Lawless could have been conceived only by the doubt that this judge, to gratify his vindictive passions, very spirit of judicial cavilling; by none but a tyrant in the had, by an arbitrary and summary process, deprived an meridian of his tyranny; by nothing but the very genius American citizen of his rights, subjected him to an igno- of despotism in its maddest freaks. He pronounced Judge minious confinement in prison, and deprived him of the Peck himself to be the most accomplished libeller that had means of supporting his family? Was not such a man a ever appeared in a court of justice, and declared that his judicial tyrant, whose crimes called aloud for exemplary whole commentary upon the publication of "A Citizen," punishment? was a tissue of libels offensive to decency. The charge

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Mr. Mc DUFFIE then proceeded to call the attention of of falsehood, absurdity, libel, ran through it; it was the the Court to the publication of " A Citizen," which Judge phantom which haunted his imagination when he sent this Peck alleged to be a libel, punishable as a contempt; and man to prison. Frail would be the tenure by which the peohe analyzed it paragraph by paragraph, comparing it as ple would hold their liberties, if an American citizen could he went along with the opinion of the judge, on which it be punished by a judge for the coinage of his own brain; was a commentary, and with the answer to the article of if, frantic with rage, by a species of school-boy cavilling, he impeachment, in order to show that it was not even a mis- might perpetrate this indignity upon an American citizen! representation, much less a disrespectful contempt, of the Mr. Lawless had a full knowledge of the facts and the opinion of Judge Peck. By this analytical process also, laws in relation to land claims in Missouri at the time of he would demonstrate that the conduct of that judge to writing and publishing the article for which he was pun

SENATE ]

Trial of Judge Peck.

[DEC. 20, 1830.

Mr.

ished. He had approached much nearer to grammatical the English law. The constitution of the United States and substantial accuracy than had been supposed by was more free, and allowed a greater latitude. What was Mr. McD. yesterday. He had correctly represented the the criticism of Mr. Lawless? Was it upon the opinion of opinions of Judge Peck. The judge had, nevertheless, the court? No, sir: that judgment had been pronounced declared, in his answer, in relation to almost every speci- six months before. The decree had been entered. fication in the publication of Mr. Lawless, that it was un- Lawless had not taken exception to it after the case had true. Were Mr. Lawless the judge, Judge Peck himself been taken out of that court. The criticism was upon the would be liable to be attached and punished for contempt; long argument of Judge Peck, published in a newspaper, but God forbid that Mr. Lawless should, in that event, after the judgment had been rendered. The case was have the power to decide upon his own case. That gen- pending before the Supreme Court of the United States; tleman had, in his publication, imputed to the judge the and Judge Peck might have been attached for a contempt doctrine that the regulations of the Governor General of of that court, in publishing his argument in the newsLouisiana had the effect of annulling the grants of lands papers, upon much better grounds than those upon for services. It was fortunate for Mr. Lawless that this which he attached and punished Mr. Lawless. The opincase had occurred in 1826, before the great national ques-ion of Judge Peck, as published, had not been delivered tion of nullification had been raised: if it had not, Mr. in term time; it was published in vacation. Mr. Lawless Lawless might have been attached and punished for charg- had just as much right to criticise it as the Judge had to ing Judge Peck with nullifying the regulations of the publish it; and it was entitled to no more respect than if Governor General. The vanity of the judge had been it had been delivered on the hustings. We had heard cut, by giving his opinions without his remarks. Mr. Law- much about judicial decency and decorum. Judge Peck less had given the substance, stripped of the feathers. He had misconceived both by going into the newspapers; and had dared, with sacrilegious hands, to tear the opinion of his published opinion was not entitled to the decent and the judge from his sacred context, and to give it to the respectful notice which it had received from Mr. Lawless. public without his arguments; and for this he was to be Any citizen possessed a full, free, and clear right to invessent to jail, disfranchised, and deprived of his rights. tigate that opinion. He considered the judge to have been Having completed his analysis of the publication of Mr. extremely censurable, in publishing his opinion while the Lawless, of which no sufficient idea can be formed from case was pending before the Supreme Court of the United this imperfect report, Mr. McD. appealed to the can- States. Whatever might be the character of the contempt dor of the honorable court, to say whether that publica- imputed to Mr. Lawless, whatever might be thought of it, tion contained a solitary word or syllable disrespectful or the judge had transcended the limits of all authority in contemptuous to the court or the judge. It would be inflicting upon him the particular punishment which he difficult for them to lay their finger upon any political or had visited upon him for the offence. Fine and imprisonother publication so perfectly respectful as that was. Was ment were the only punishment of a citizen authorized by there in it a word of censure or of reproach? It was the the law of England or of the United States in cases of conpractice in South Carolina for every lawyer to make his tempt. Certainly, Congress had never delegated any own statement of any exceptions which he may take to an power to inflict a greater punishment for the highest opinion of the judges in the courts below, and to lay it grades of contempt. Any officer of a court, any attorney before the same judges, who constituted the Court of Ap- practising in a court, for malversation, fraud, peculation, peals in that State. There was not one case in one hun- unfair dealing with his clients, for any base or disgraceful dred of that description in which the lawyers were as cor- act, where convicted of fraud or perjury, might be stricken rect in giving the opinion of the judges as Mr. Lawless from the rolls of the court, as unworthy of confidence. had been in representing the opinion of Judge Peck. For these causes, in England and the United States, the They were not expected to give the dress and the feathers courts had assumed the power of striking from their lists of the judge. They were expected to give the opinion as of practising attorneys. But Judge Peck had not pretendthey understood it. Mr. McD. said he had never made ed that Mr. Lawless had been guilty of any of these. a statement in a bill of exceptions as correctly as that not this honorable court perceive that there was no relawhich had been made by Mr. Lawless, in his publication, tion between the offence and the punishment of that genof the opinion of Judge Peck. Differing, as he did, from tleman? Because Judge Peck's dignity had been offended, the judge, it was natural that he should put a different because he chose to think the publication of Mr. Lawless construction upon his opinions; but for this no lawyer in calculated to bring ridicule and contempt upon his court, that State had ever been sent to jail. Every man, whe- had he a right to strike him from the list of attorneys practher in our courts or in the gladiatorial halls of legislation, tising in his court, and to deprive him and his family of the was liable to have his argument misunderstood and misre-means of subsistence? Mr. Lawless was a lawyer, a pubpresented: but he did not wince at this, or rise up on lic man, in relation to the pecuniary interest of hundreds every occasion, and say, I did not make that remark, or and thousands of the citizens of Missouri: they had a right that argument. Was every man to be punished for mis- to his professional services, and this tyrannical judge had conceiving an argument or an opinion? said that he would deprive him of his and their rights. The Secretary having, at the request of Mr. McD., He had exercised a tremendous power, not called for by read to the court the publication of Mr. Lawless, that any public consideration, nor justified by any law, but orihonorable manager appealed, with perfect confidence, to ginating in the malevolent passions of the petty judge by the court, to say whether a more harmless or respectful whom the sentence had been pronounced. Having prepublication could have been made; whether a man, who sented to the court the facts and the grounds upon which could regard that publication as a contempt, and punish the managers, on the part of the House of Representatives, it by sending its author to jail, and depriving him of his prayed its judgment in this case, Mr. McD. would offer a right to follow his professional occupation, and of the few general remarks on the danger, the real, great, and means of subsisting his family, was not a judicial tyrant, alarming danger, of the precedent which would be estabcalling for exemplary punishment at the hands of this au- lished by this honorable court, if Judge Peck should be gust tribunal? According to the principles which he had suffered to go unpunished for this high misdemeanor. cited from the English books, any subject of England He had violated the liberty of the press in the most might publish a commentary or an opinion of a judge, if dangerous form. He had violated the right of trial by he did not ascribe corrupt motives to it. It was public jury, by drawing to himself the power to try and punish, property, and liable to animadversion, provided that the in a summary manner, an offence, which, if it were one, fair limits of criticism were not transcended. This was was a proper subject of ordinary indictment and trial.

Did

DEC. 21, 1830.]

Trial of Judge Peck.

[SENATE.

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And he had defended his tyrannical conduct by the alle-ence of the judiciary to continue for a moment longer gation, that the charge of violating the liberty of the than he could help. A judge was as impalpable as air, if press was the stale declamation by which demagogues, you could not reach him through the public press. slanderers, and libellers, attempted to justify themselves, must permit him to go on with his outrages, without comand to bring the Government into contempt. He trusted plaint, until you could bring him before this august trithat liberty, the liberty of the press, was not thus to be bunal. You might bring him to account here, but no laughed and sneered out of the capital of the United where else. Had we come to this, that we may not call States by a petty provincial judge. When a European a judicial tyrant by his right name; that we may not call monarch had been hurled from his throne for daring to him to account for his crimes and misdemeanors? In the violate the liberty of the press, were we to be told that worst days of Paris the cry of tyranny was allowed. the liberty of the press was only the theme of dema- "Down with the tyrant" was echoed and re-echoed from gogues? Tyrants, alone, would so designate it. It had one end of Paris to the other. But when a judge combeen justly said, that the liberties of mankind could not mitted an outrage, we may not characterize it in the apsurvive the destruction of the liberty of the press. Even propriate language.

Hume, the English historian, the apologist of tyrants, had| It was in vain to attempt to disguise it. If this judge declared, that no people having the liberty of the press should be held guiltless, there could be no judicial outcould be enslaved. He had said, that the only difference rage which would not be clearly justified by the prece in Government, between his time and the reign of Eliza- dent. It had never occurred to a majority, in the most beth, was, that, when he wrote, England enjoyed the inflammable times, to punish so harmless an article as liberty of the press; that, with this privilege, Turkey her that for which Mr. Lawless had been punished. The self would be comparatively free. And yet we are told precedent of an acquittal in this case would justify any by this judge, that this was the theme of demagogues. judge in laying down any principle to justify such an He called upon this honorable court to look at the danger outrage. The most insidious encroachments of power of the precipice on which they stood, if they set the pre- would be sanctioned by precedents of this kind. It was cedent of acquitting this judge. Suppose he should be no extravagant supposition to imagine that this Governcondemned by this tribunal; suppose he should go back ment might, at some period hereafter, be administered to Missouri, and proclaim that he had been made the under the influence of party passions; that a party might victim of party feeling, as he had said in defence before get into power by intrigue and management, and that it the other House, where he had grossly reflected upon might occur to that party, consisting of a minority, to that House; suppose, that when he arrived in Missouri, attempt to maintain their power by muzzling or suppresshe should make the welkin ring with his charges against ing the freedom of the press. They might not pass a this court; would they, after the sedition law had been sedition law, but they might appoint ten thousand district driven from the statute book, make themselves the legis- and territorial judges; they might send justices of the lators, and judges, and executioners, of the law, by pun- peace into every town and parish in the Union; and each ishing Judge Peck for his calumnies against them? Would of these, upon the doctrine of Judge Peck, might drag any man think of sending for him to answer for the free an editor before him, punish him for contempt, and thus investigation which he might think proper to indulge in? destroy the liberty of the press. It was impossible to tell Would this honorable court act upon the principle which the extent to which this principle might be carried by they would consecrate by the acquittal of Judge Peck? party judges, in party times. It must appear much betAnd yet such would be the tendency of his acquittal. ter, in the view of every statesman, to suffer the most unEvery editor in the United States was liable to be im- just libels to be published in the newspapers, and to let mured within the walls of a prison, upon the principles their poisoned arrows recoil upon themselves, than to asserted by Judge Peck, unless this honorable court suppress the liberty of the press. But what was the liberty would say that it would be extremely dangerous for the of Mr. Lawless, according to the practical doctrine of President, Senate, and House of Representatives, to pun-Judge Peck? It was the liberty of being sent to prison, ish editors for the daily calumnies published upon them, incarcerated with common felons, and deprived of the as Judge Peck had punished Mr. Lawless. Should the means of his subsistence, for respectfully differing in Senate of Rome not punish a libel, and yet delegate the opinion with the judge. power to punish to its provincial proconsuls? Should it A wise man of antiquity, upon being asked what was be said that a proconsul, reeking with the blood of his the best form of Government, justified the character fellow-citizens, may exercise a power, may be trusted which he had received by the answer, that that was the with this power, rather than the Senate of Rome? It was best in which an injury done to a single citizen was felt said that the King of England could do no wrong, and as an injury done to the whole community. There was that the judges, deriving their authority from him, and not a man in the country that ought not to make the inadministering his justice, were entitled to an equal pro-jury done to Luke E. Lawless his own. We were told tection. Judge Peck derived his power from the Presi- that he was an Irishman. He deserved infinite credit, dent and Senate. You may slander them as much as you when ordered to prison, for the moderation which he exchoose; and yet you may not slander this pitiful emanation hibited, for not dragging the tyrant, as Virginius had of their authority.

dragged the tyrant Appius, from the throne. As God Mr. McD. contended that, if any public functionary was his judge, he believed, that if the case of Mr. Lawless ought to be held responsible to the press, which was the had been his; if he had been ordered to prison, he and organ, the only true organ, of the people, it was the his family, and deprived of the means of subsistence, he judges, who alone held their offices during good beha- should have dragged him from his seat on the bench. vior. If you would preserve the independence of the He had his whole life lived in abhorrence of despotism, judiciary, make them do their duty, and punish them for in every shape, whether in a judge, or an overseer of transgressing it. In this age, when tyrants were over- slaves; and he considered that this petty judge had been whelmed, and thrones overturned, for violating the liber- guilty of tyrannical conduct which would have disgraced ty of the press, would you suffer your judges to trample a slave-driver. upon it with impunity? He had always been in favor of the independence of the judiciary, and against the rotatory principle; but if the doctrine, that the judges were not liable to the animadversion of the public press, be esta

TUESDAY, DEC. 21.

The Senate again resolved itself into a Court of Im

blished, God forbid that he should permit the independ-peachment.

VOL. VII.--2

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