[Hinds' Precedents, Volume 3]
[Chapter 73 - Impeachment and Trial of James H. Peck]
[From the U.S. Government Publishing Office, www.gpo.gov]
IMPEACHMENT AND TRIAL OF JAMES H. PECK.
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1. Preliminary investigation by the House. Sections 2364-2366.
2. The impeachment carried to the Senate. Section 2367.
3. The articles and the managers. Sections 2368-2370.
4. Writ of summons and appearance of respondent. Section 2371.
5. Rules for the trial. Section 2372.
6. Answer of the respondent. Sections 2373, 2374.
7. Replication of the House. Section 2375.
8. Presentation of evidence. Section 2376.
9. Attendance of the House during trial. Section 2377.
10. Final arguments. Section 2378.
11. What are impeachable offenses. Sections 2379-2382.
12. Final decision. Section 2383.
13. Report of trial to the House. Section 2384.
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2364. The impeachment and trial of James H. Peck, United States judge
for the district of Missouri.
The impeachment proceedings in the case of Judge Peck were set in
motion by a memorial.
The investigation into the conduct of Judge Peck was revived by
referring to a committee a memorial presented in a former Congress.
Form of memorial praying for an investigation into the conduct of
Judge Peck.
The House decided formally to investigate the conduct of Judge Peck
only after the Judiciary Committee had examined the memorial.
On December 8, 1826,\1\ Mr. John Scott, of Missouri, presented a
memorial of Luke Edward Lawless, for an inquiry into the official
conduct of James H. Peck, district judge of the United States for the
district of Missouri, in relation to certain proceedings on an
attachment for contempt had by said judge against said Lawless. This
memorial was referred to the Committee on the Judiciary. On February
15, 1827,\2\ the House ordered the committee discharged from the
consideration of the memorial, and gave leave to the memorialist to
withdraw the same.
On December 29, 1828,\3\ on motion of Mr. George McDuffie, of South
Carolina, it was
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\1\ Second session Nineteenth Congress, House Journal, p. 32.
\2\ Journal, p. 300.
\3\ Second session Twentieth Congress, House Journal, p. 101.
Sec. 2364
Ordered, That the memorial of Luke Edward Lawless, presented on the
8th December, 1826, be referred to the Committee on the Judiciary.
No report was made at this session.
On December 15, 1829,\1\ on motion of Mr. McDuffie, it was
Ordered, That the memorial of Luke Edward Lawless, presented on the
8th December, 1826, praying for impeachment of John H. Peck, judge of
the United States court in the State of Missouri, be referred to the
Committee on the Judiciary.
This memorial \2\ was addressed as follows:
To the honorable the House of Representatives of the United States:
The petition of Luke Edward Lawless, a citizen of the State of
Missouri, and of the United States, respectfully showeth:
That, on the 30th day of March, in the present year, 1826, there
appeared in the Republican, a newspaper printed in the city of St.
Louis, State of Missouri, an article purporting to be the final decree
or opinion of the judge of the district court of the United States for
the district of Missouri, in the cause in which the widow and heirs of
Antoine Soulard were plaintiffs, and the United States defendant, etc.
The memorial goes on to set forth that an appeal had already been
taken to the Supreme Court of the United States when this final decree
was published; that the petitioner wrote a letter, which was published
in a St. Louis newspaper, setting forth in courteous and decorous
language the errors of fact and law which he conceived to exist in the
decree. This publication, as petitioner conceived, was meritorious
rather than censurable, since the land titles of a large district were
affected adversely by the decree, and speculators were taking advantage
of this fact. The petition goes on to set forth that he was, for this
publication, punished by Judge Peck for contempt. In conclusion the
memoralist says:
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:
First. 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.
Second. 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 therein as to your wisdom and justice shall seem proper.
And your petitioner, as in duty bound, will pray.
Luke Edward Lawless.
St. Louis, Mo., September 22, 1826.
Various documents accompanied this memorial, in substantiation of
those charges which he offered to prove.
On January 7, 1830,\3\ Mr. James Buchanan, of Pennsylvania, from the
Com-
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\1\ First session Twenty-first Congress, House Journal, p. 39.
\2\ For copy of this memorial in full see ``Report of the trial of
James H. Peck,'' published in Boston, in 1833, by Hilliard Gray & Co.
This publication has the proceedings of the trial in full. The Debates
of Congress give them in a very fragmentary form.
\3\ House Journal, p. 138.
Sec. 2365
mittee on the Judiciary, reported the following resolution, which was
agreed to by the House:
Resolved, That the Committee on the Judiciary be authorized to send
for persons and papers in the case of the charge of official misconduct
against James H. Peck, judge of the district court of Missouri.
2365. Peck's impeachment, continued.
In reporting in favor of impeaching Judge Peck the committee
submitted transcripts of testimony.
Following the Chase precedent, the committee refrained from giving
their reasons for concluding that Judge Peck should be impeached.
In the investigation of Judge Peck, the respondent cross-examined
witnesses, and addressed the committee.
The House declined to print with the evidence in the Peck
investigation the memorial or the address of respondent.
The report favoring the impeachment of Judge Peck was committed to
the Committee of the Whole House on the state of the Union.
On March 23 \1\ Mr. Buchanan submitted from that committee the
following report:
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.
In presenting the report Mr. Buchanan stated that the committee \2\
deemed it fairest toward the party accused not to report to the House
their reasons at length for arriving at the conclusion that he ought to
be impeached. In this respect they thought it advisable to follow the
precedent which had been established in the case of the impeachment of
Judge Chase.
The report contains, however, an abstract of the case of heirs of
Antoine Soulard v. United States, the opinion of Judge Peck therein,
the letter of Mr. Lawless criticising the opinion, and the court
records showing the arrest and punishment of the latter. The journal of
the committee also accompanies the report. It gives the testimony of
Mr. Lawless and others before the committee, and shows that Judge Peck
was present in the committee room in person, and cross-examined the
witnesses.
Mr. Buchanan moved that the report, with the documents as described
and the transcripts of the testimony, be printed. Thereupon Mr. Clement
C. Clay, of Alabama, moved to add to the matter to be printed ``the
memorial of Luke E. Lawless and the address of the judge to the
committee.'' This amendment was disagreed to, and then the original
motion of Mr. Buchanan was agreed to.
The report was committed to the Committee of the Whole House on the
state of the Union.
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\1\ House Journal, p. 454; Debates, p. 637; House Report No. 325.
\2\ This committee consisted of Messrs. Buchanan, Charles A.
Wickliffe, of Kentucky; Henry R. Storrs, of New York; Warren R. Davis,
of South Carolina; Thomas T. Bouldin, of Virginia; William W.
Ellsworth, of Connecticut, and Edward D. White, of Louisiana.
Sec. 2366
2366. Peck's impeachment, continued.
Judge Peck, threatened with impeachment, was permitted to make to the
House a written or oral argument.
Judge Peck, threatened with impeachment, transmitted to the House a
written argument, which was ordered to be read.
In Judge Peck's case the committee proceeded on the theory of an ex
parte inquiry.
Judge Peck was not permitted to bring witnesses before the House
committee, but cross-examined and filed a statement.
In the Peck case the House, with a view to English precedents,
discussed the nature of the inquiry preliminary to impeachment.
Form of memorial in which Judge Peck asked leave to state his case to
the House.
On April 5 \1\ the Speaker laid before the House a memorial:
To the honorable 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.
The memorialist goes on to describe the status of the case, and says
that in view of the gravity of the proceeding he--
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.
The memorialist then cites in support of this assertion the case of
Warren Hastings.
The memorialist further asks that he may be permitted to adduce
against the prima facie impression to his disadvantage arising from the
report of the committee the fact that Mr. Lawless's petition had been
presented in former Congresses, and that the able men to whom it was
referred found no grounds for proceeding.
The petitioner suggests that any method which may be taken to enable
him to present ``a full exposition of all the facts'' will be
satisfactory to him, whether by direct address to the House or before a
committee.
When the memorial of Mr. Lawless had been referred to the Judiciary
Committee, they had notified the present memorialist, Judge Peck, that
they would receive ``any explanation'' which he might think proper to
make in reference to the charge. In the brief time allowed he had made
such a statement as was possible, although it was inadequate. But when
it was handed in, the chairman of the committee did not read it, but
proceeded immediately to examine the witnesses.
It is true, also,
continues the memorial--
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
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\1\ House Journal, p. 499; Debates, p. 736; House Report No. 345.
Sec. 2366
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 memorialist is
sincerely satisfied that it was their purpose to treat him, as, in this
view of the subject, they did in fact treat him, with great liberality
and indulgence.
But your memorialist submits, with great respect, that the proceeding
of the House of Representatives, in inquiring whether they will, or
will not, institute an impeachment, is not to be governed by those
strict rules which confine a grand jury to ex parte evidence. It was
not the course pursued by the House of Commons of Great Britain, in the
case of Warren Hastings, to which he has referred, and in which the
House, before they voted the impeachment, heard not only the defense,
but the testimony of his witnesses.
And the memorialist concludes:
Your memorialist, therefore, respectfully prays that your honorable
body will receive from him a written exposition of the whole case,
embracing both the facts and the law, and give him, also, process to
call his witnesses from Missouri in support of his statements, before
any discussion or vote shall be taken on the evidence as it is now
presented with the report of the committee. * * *
If this prayer can not be granted, his hope and prayer is that your
honorable body will, if it meet your own approbation, vote the
impeachment at once, without any discussion on that partial evidence
which presents a garbled view of the subject, greatly to the prejudice
of your memorialist, and that he may have as speedy an opportunity as
the nature of the case will allow to exhibit before the tribunal of the
Senate and before his country the entire transaction, in all its parts,
as it really occurred, being conscious and confident that to insure his
acquittal from all censure in the minds of all honorable men accustomed
to discussions of this kind, the case requires only to be fully
understood.
And in the strong hope that the one or the other of these prayers
will be granted, your memorialist, as in duty bound, will ever pray.
James H. Peck.
Washington City, April 5, 1830.
Mr. Henry R. Storrs, of New York, at once moved that the memorial be
referred to the Committee of the Whole House on the state of the Union,
to which the report of the Judiciary Committee had already been
referred.
A debate \1\ at once arose as to the propriety of granting the prayer
of the petitioner. Mr. Clement C. Clay, of Alabama, said:
As to precedents, there was no uniformity in them on this subject.
One high case had been referred to, that of Warren Hastings, and also
that of Judge Chase. But the practice in the several States differed
from that which had been pursued by the General Government. In his own
State (and he hoped he should not be considered as presumptuous in
referring to the practice of a State which had so recently been
admitted to the Union) the course pursued in cases of impeachment was
different and he thought there were many inducements for the House to
pursue the practice there adopted. He could not unite in the opinion
that the House should proceed precisely as did a grand jury in ordinary
cases of indictment. The present case was totally different. A great
officer had been accused of a great offense. Did gentlemen suppose,
could they think, that when a high officer of the Government was
accused by a private individual he must, on the mere ex parte testimony
of that accuser, be at once impeached? Mr. Clay said he should hesitate
much before he could subscribe to such an opinion. He thought the House
ought to proceed with very great caution. Merely to accuse was not all
that was necessary in
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\1\ Annals, pp. 737, 738.
Sec. 2366
order to have a judge impeached. Some gentlemen seemed to conceive that
the memorial of this petitioner asked that witnesses might be examined
at the bar of that House; but it made no such request directly. It only
asked this as one alternative--that his witnesses might be heard here,
if not elsewhere.
Mr. Buchanan said:
Judge Peck, in that memorial, suggests that the Committee on the
Judiciary sent for such witnesses only as had been selected by Mr.
Lawless. That is far from being the fact. The committee acted upon
higher principles. They were sensible of the high responsibility which
they owed, both to this House and to the country, for the correctness
of their proceedings; and had, therefore, inquired and ascertained,
from the best sources in their power, the names of such witnesses as
would be most likely to give an impartial and intelligent statement of
the transaction. They had sent for and examined seven witnesses; and he
owed it to them to say that, although he had long been in the habit of
examining witnesses in courts of justice, he had never observed, on any
occasion, more candor or more impartiality than these seven gentlemen
had exhibited upon their examination before the committee.
It is true, as the memorial suggests, that, in the case of Warren
Hastings, the House of Commons did hear the accused, and did permit him
to produce testimony, before they voted an impeachment against him. But
this was only a single instance. That course might have been adopted,
because Mr. Burke, merely as in individual Member of the House, had
risen in his place, and moved the impeachment. Whether he was correct
in this conjecture or not, it was certain there had been no case of an
impeachment by this House, in which so much indulgence was granted, as
had been allowed to the accused upon the present occasion. He was
permitted to furnish the committee with a written explanation of his
conduct, and his request that he might cross-examine the witnesses was
promptly granted.
Mr. Ralph I. Ingersoll, of Connecticut, confessed that this was, in a
great measure, a new case to him. The only one that he had ever before
witnessed was that in which charges, through a newspaper of this
district, had been brought against the Vice-President about three years
ago. That officer had presented these charges to the House, as the
grand inquest of the nation, and requested an inquiry. A committee had
been appointed to investigate them; and, before that committee, a
friend of the Vice-President had been permitted to appear and represent
him throughout the whole investigation. Witnesses, also, had been
examined on the part of the accused. How it had been in the case of
Judge Chase, or of Judge Pickering, from New Hampshire, he did not
recollect; but he well recollected that witnesses in favor of the Vice-
President had been examined, as well as against him, and that his
representative had been allowed to be present before the committee
through every stage of that examination. The committee at that time
took some pains to ascertain what was the proper mode of proceeding,
and they became satisfied that the party accused had, in these
preliminary proceedings, a right to be thus heard.
Mr. Spencer Pettis, of Missouri, said that the practice in cases of
impeachment, so far as regarded the proceedings of this House, was now
to be settled; for it was obvious that it had not yet been settled by
precedent. Gentlemen had, indeed, spoken of the case of Judge Chase;
but that case had no application to the present one as it now stands.
Judge Chase did not ask to make his defense before this House, nor did
he ask either to cross-examine witnesses on the part of the Government,
or to have an examination of his own witnesses. As the present question
was not then raised, that case can form no precedent to govern in this
instance.
Mr. Pettis also went on to cite the investigations of the conduct of
Mr. John C. Calhoun, as Secretary of War, and of Secretary of the
Treasury William H. Crawford. In both investioations the accused had
been permitted to have witnesses examined
Sec. 2366
before the committees. Both these gentlemen were charged with high
misdemeanors, and the charges had been preferred in times of great
political excitement.
Mr. James Strong, of New York, said that, from the little examination
he had been able to give to this subject, he had come to the conclusion
that the present proceedings should be strictly ex parte, rigidly so.
It had been said by the gentleman from Massachusetts [Mr. Everett] that
the committee had departed somewhat from this line. It was true that
they had deviated from it in a slight degree, but the departure was not
such as to warrant the House in taking the other step which was now
requested. There was a very material difference between hearing the
party accused and hearing his witnesses. The Members of the House were
not judges to try or to condemn the accused. It was true that the
matters in this testimony might not be such as to mix themselves up
with party politics; but suppose that it were proposed to impeach a
political man of high standing, and that the witnesses were brought to
the bar of the House, he put it to every man to say whether the safety
of the country did not require that in such cases politics should be
thoroughly excluded from that tribunal. And how could this be done but
by keeping the proceedings strictly ex parte? Complaints had been made
that the committee had not reported articles of impeachment; the case
had been referred to them for no such purpose; their duty had been
simply to ascertain facts. The House did not want even their opinions;
it wanted the facts only, and on one side. What the House had to decide
was, whether the testimony did or did not contain matter to warrant an
impeachment. If it did, then the House would say the party should be
impeached, and the next step would be to appoint a committee to frame
the articles. These would be reported to the House, and, if they were
agreed upon, then managers would be appointed to conduct the trial
before the Senate. It struck him that the safest course would be to
keep the proceedings as near ex parte as possible.
Finally the memorial was ordered to be laid on the table for
printing, and was not referred to the Committee of the Whole.
On April 7,\1\ Mr. Pettis proposed a resolution which, after
modifications, read as follows:
Resolved, That James H. Peck, judge of the district court of the
United States for the district of Missouri, be permitted, at any time,
until Wednesday next at 12 o'clock, to make to this House any written
or oral argument on the law or matters of fact, now in evidence before
the House, he may think proper, in answer to the charges preferred
against him by Luke E. Lawless, esq., which charges have been reported
on by the Committee on the Judiciary.
Mr. William Drayton, of South Carolina, moved to strike out the words
``or oral.'' He said that in making the motion he had no intention of
preventing the individual concerned from availing himself of the full
benefit of what the resolution proposed to grant to him, but had been
influenced by the consideration that, if his exposition should be made
in writing all the Members of the House would have an opportunity of
examining it; but if made orally it would be impossible that all the
Members should distinctly hear it, and, if they did, they would
probably not retain the substance of it distinctly in their memories.
This was one reason which actuated him. Another was that, in his
opinion, ill consequences would be likely to arise
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\1\ House Journal, p. 513; Debates, p. 746-753.
Sec. 2366
from the personal appearance of the memorialist before the House. He
might aver that a material fact could be established by testimony
incorrectly or imperfectly referred to in the report of the committee,
and ask leave to introduce it fully. Should his application be
rejected, he might regard the permission to be heard as illusory.
Should his application be acceded to, they would be drawn into a trial
of the cause.
The amendment was disagreed to by the House.
On behalf of the resolution, Mr. Pettis said that he had examined the
precedents since 1640 and had found none against the proposed action.
Mr. Buchanan said that he had examined the British precedents, and
found that in several cases the party had been admitted to the floor of
the House of Commons simply to make an argument on the testimony which
had been previously given to the House. This was the utmost extent of
the privilege so far as he had examined, except in a single instance--
that of Warren Hastings. He should make no objection to a mere
permission to make an exposition of the law and an argument upon the
facts as they appeared in the testimony already taken.
Mr. William Drayton, of South Carolina, drew a distinction between
this House and the House of Commons. This House had no other
inquisitorial authority than was expressly delegated to it by the
Constitution. The House of Commons, on the other hand, was the ``grand
inquest'' of the nation. It may even supersede the courts in cases of
individual misdemeanors, as in the case of Alice Pierce, Sir John
Fenwick, etc. British precedents were more likely to mislead than
assist. The Constitution simply gives this House power to decide
whether the case shall be tried before another body. The House could
not itself try the case. Unless it should confine itself to what was
termed ex parte evidence there would be no bounds to the inquiry.
Mr. Buchanan said his desire was that the House might establish such
a precedent as should protect the interests of the accused in all
future time. The Judiciary Committee had Judge Chase's trial before
them. The mode of proceeding in that trial they considered as strictly
proper and delicate. The committee in that case were directed to report
their opinion on the charges against Judge Chase, which had been made
on the floor of the House. For the purpose of enabling them to do so
they procured all the testimony in their power. This they reported to
the House, together with a simple statement of their own opinion upon
it--nothing else. And why? He presumed that, as it was a judicial
proceeding, they wished to leave every gentleman to decide for himself
on the naked testimony. They considered one Member as competent to
decide as another. Their report was referred to the Committee of the
Whole House on the state of the Union, and there it was discussed. If
in this case the Committee of the Whole should concur with the
Judiciary Committee in their view of the case, then the House would
appoint a committee to draft articles of impeachment. These articles
would be considered and adopted by the House. Until after this second
decision the accused would not be called upon to answer. As to the
course pursued by the Pennsylvania house in a similar case, it had
never met his approval.
The House agreed to the resolution proposed by Mr. Pettis without
division.
Sec. 2367
Judge Peck did not avail himself of the permission to come before the
House and make an oral statement; but on April 14 \1\ the Speaker laid
before the House a letter from Judge Peck transmitting his
``explanation in answer to the charges,'' with documents referred to in
the answer.
The House decided that the explanation should be read, but after a
time the reading was suspended and the statement alone having been
ordered printed, it was, with the documents, referred to the Committee
of the Whole House on the state of the Union.
2367. Peck's impeachment, continued.
After consideration in Committee of the Whole, the House concurred in
the proposition to impeach Judge Peck.
The impeachment of Judge Peck was only for ``high misdemeanors in
office.''
Forms and ceremonies of carrying the impeachment of Judge Peck to the
Senate.
The impeachment of Judge Peck was carried to the Senate by a
committee of two.
After discussing precedents the Senate appointed a committee to
consider the message impeaching Judge Peck.
The Blount precedent for requiring bonds of the respondent was
discussed adversely in the Peck case.
Mr. Senator Benton was excused from voting on a preliminary question
in the Peck impeachment.
On April 21, 22, 23, and 24 \2\ the Committee of the Whole House on
the state of the Union considered the question of impeachment, the
debate being on a resolution proposed, as follows, by Mr. Buchanan:
Resolved, 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.
Mr. Edward Everett, of Massachusetts, moved to amend the resolution
by striking all out after the word ``Resolved'' and inserting as
follows:
That though, on the evidence now before it, this House does not
approve of the conduct of James H. Peck, judge of the district court of
the United States for the district of Missouri, in his proceeding by
attachment against Luke E. Lawless for alleged contempt of the said
court, yet there is not sufficient evidence of evil intent to authorize
the House to impeach the said judge of high misdemeanors in office.
This amendment was disagreed to.
The resolution was then agreed to, ayes 113, negative not taken.
The Committee of the Whole then rose and reported the resolution to
the House, whereupon the question was put:
Will the House concur with the Committee of the Whole House [on the
state of the Union] in the adoption of the said resolution?
and there were ayes 123, nays 49.\3\
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\1\ House Journal, p. 532; Debates, p. 789; House Report, No. 359.
\2\ House Journal, pp. 558, 560, 564, 565; Debates, pp. 810, 814,
818.
\3\ It was stated later by Mr. Manager Spencer, in his argument to
the high court, that this decision was not at all on party lines. (See
Report of the trial of James H. Peck, p. 289.)
Sec. 2367
So the resolution was agreed to.
It was then \1\--
Ordered, That Mr. Buchanan and Mr. Henry R. Storrs, of New York, be
appointed a committee to go to the Senate and, at the bar thereof, in
the name of the House of Representatives and of all the people of the
United States, to impeach James H. Peck, judge of the district court of
the United States for the district of Missouri, of high misdemeanors in
office, and acquaint the Senate that the House of Representatives will
in due time exhibit particular articles of impeachment against him and
make good the same.
Ordered, That the committee do demand that the Senate take order for
the appearance of the said James H. Peck to answer to said impeachment.
On motion of Mr. Henry R. Storrs, of New York--
Resolved, That a committee be appointed to prepare and report to this
House articles of impeachment against James H. Peck, district judge of
the United States for the district of Missouri, for high misdemeanors
in his said office.
And Mr. Buchanan, Mr. Storrs, of New York; Mr. George McDuffie, of
South Carolina; Mr. Ambrose Spencer, of New York, and Mr. Charles A.
Wickliffe, of Kentucky, were appointed the said committee.
All of this committee were from among those who had voted in favor of
the impeachment.
On April 26 \2\--
Ordered, That James H. Peck have leave to withdraw his memorials and
the documents which accompanied the same.
On April 26,\3\ in the Senate Messrs. Buchanan and Storrs, Members of
the House of Representatives, with a message from that House, were
announced, and, having taken the seats assigned them,
The President \4\ informed them that the Senate was ready to receive
any communication they might have to make.
Mr. Buchanan then rose and said:
We are commanded, in the name of the House of Representatives and of
all the people of the United States, to impeach James H. Peck, judge of
the district court of Missouri, of high misdemeanors in office, and to
acquaint the Senate that the House of Representatives will, in due
time, exhibit particular articles of impeachment against him and make
good the same, and we do demand that the Senate take order for the
appearance of the said James H. Peck to answer to said impeachment.
Messrs. Buchanan and Storrs, having retired,
Mr. Littleton W. Tazewell, of Virginia, rose and said that in looking
over similar cases for the purpose of ascertaining what would be the
proper course of proceeding, he discovered that messages, similar in
most particulars to the one just received, had been presented to the
Senate in three cases. The first was the case of Blount, one of the
Members of this body; the next was that of John Pickering, judge of the
district court of New Hampshire, and the third was that of Judge Chase.
Upon each of these cases there seemed to have been some anxious
consideration in order to adopt the course most proper to be pursued.
Mr. Tazewell
-----------------------------------------------------------------------
\1\ House Journal, pp. 566, 567; Debates, p. 819.
\2\ House Journal, p. 670.
\3\ Senate Journal, p. 269; Debates, pp. 383, 384.
\4\ John C. Calhoun, of South Carolina, Vice-President, and President
of the Senate.
Sec. 2367
would state in what the proceedings in these cases differed. The case
of Mr. Blount, being the first of the kind that had ever occurred,
presented so anomalous a practice that it never could be referred to as
a precedent. The other two were consistent with the general principles
of law and justice. From these it seems that it had been settled that
when the House of Representatives informed the Senate that they were
about to present articles of impeachment a select committee was
appointed to take the subject into consideration and report what
measures were proper to be taken. He would read for the information of
the Senate the cases as they occurred.
Mr. Tazewell, having read the precedents in the cases of Blount,
Pickering, and Chase, said that as to the precedent in the case of
Blount the idea of calling upon an individual to enter into a
recognizance to appear at no named time at no given place to answer
charges not yet set forth in articles of impeachment was so manifestly
contrary to justice that the Senate itself seemed to have abandoned it.
Therefore he concluded that the Blount case would not be considered a
fit precedent, so he moved the following resolution to the message:
Resolved, That it be referred to a select committee, to consist of
three members, to consider and report thereon.
This resolution was agreed to.
The Senate then proceeded to ballot for the committee.
Mr. Thomas H. Benton, of Missouri, asked to be excused from voting on
the question, and the question being taken he was excused.
Then the committee were chosen, as follows: Messrs. Tazewell, Samuel
Bell, of New Hampshire, and Daniel Webster, of Massachusetts.
On the same day, in the House,\1\ Mr. Buchanan reported that, in
obedience to the order of the House, they had been to the Senate, and
in the name of the House of Representatives and of all the people of
the United States had impeached James H. Peck, judge, etc., of high
misdemeanors in office; that the committee had acquainted the Senate
that the House of Representatives would, in due time, exhibit
particular articles of impeachment against the said James H. Peck and
make good the same, and that the committee had demanded that the Senate
take order for the appearance of the said James H. Peck to answer to
the said impeachment.
On April 27 \2\ in the Senate, Mr. Tazewell, from the Select
Committee appointed on the subject, made the following report; which
was concurred in by the Senate:
Whereas the House of Representatives on the 26th of the present
month, by two of their members, Messrs. Buchanan and Storrs, of New
York, at the bar of the Senate, impeached James H. Peck, judge of the
district court of the United States for the district of Missouri, of
high misdemeanors in office, and acquainted the Senate that the House
of Representatives will, in due time, exhibit particular articles of
impeachment against him, and make good the same; and likewise demanded
that the Senate take order for the appearance of the said James H.
Peck, to answer the said impeachment: Therefore,
Resolved, That the Senate will take proper order thereon, of which
due notice shall be given to the House of Representatives.
And the committee further recommended to the Senate that the
Secretary of the Senate be directed to notify the House of
Representatives of the foregoing resolution.
-----------------------------------------------------------------------
\1\ House Journal, p. 671.
\2\ Senate Journal, p. 271; Debates, p. 385.
Sec. 2368
Accordingly, after the report had been concurred in, it was
Ordered, That the Secretary notify the House of Representatives
accordingly.
On the same day the message was communicated to the House.\1\
2368. Peck's impeachment, continued.
The respondent in the Peck impeachment communicated with the Senate
as to the trial before articles had been presented.
The article of impeachment against Judge Peck was considered in
Committee of the Whole before being agreed to by the House.
All of the committee who framed the article in the Peck case had
voted for the impeachment. (Footnote.)
The article in the Peck impeachment appears in the House Journal on
the day of its adoption.
The managers of the Peck impeachment were chosen by ballot, a
majority vote being required for election.
Instance wherein the Journal recorded the names of the tellers on a
vote by ballot.
Form of resolutions providing for carrying to the Senate the article
impeaching Judge Peck.
All the managers in the Peck trial were of those who had voted for
impeachment.
On April 28 \2\ the Vice-President communicated to the Senate two
letters from Judge Peck, notifying the Senate of his intention to go to
Baltimore, where he should remain some days; and requesting that, in
the arrangement of the Senate chamber preparatory to his impeachment, a
seat might be assigned him by which he might avoid facing the windows.
The letters, having been read, were laid on the table.
On April 29,\3\ Mr. Buchanan, from the committee appointed for the
purpose, reported an article, to be exhibited to the Senate of the
United States in behalf of themselves and of all the people of the
United States, against Judge Peck, a judge of the district court of the
United States for the district of Missouri, in maintenance and support
of their impeachment against him. It was laid on the table and directed
to be printed.
On April 30,\4\ on motion of Mr. Buchanan,
Ordered, That the article of impeachment against James H. Peck, judge
of the district court of the United States for the district of
Missouri, be committed to the Committee of the Whole House on the state
of the Union.
On May 1,\5\ the article was considered in Committee of the Whole,
and, after a verbal amendment, was reported favorably to the House.
And the question was then put:
Will the House adopt the said article, as its article of impeachment
against James H. Peck, judge of the district court of the United States
for the district of Missouri?
-----------------------------------------------------------------------
\1\ House Journal, pp. 573, 574.
\2\ Senate Journal, p. 272.
\3\ House Journal, p. 584; Debates, p. 863.
\4\ House Journal, p. 588; Debates, p. 866.
\5\ House Journal, pp. 591-596; Debates, p. 869.
Sec. 2369
And it passed in the affirmative, without division.
The article \1\ appears in full in the Journal of the House of this
date.
On motion of Mr. Buchanan,
Resolved, That five managers be appointed, by ballot, to conduct the
impeachment against James H. Peck, judge of the district court of the
United States for the district of Missouri, on the part of this House.
The House proceeded to the appointment of five managers, by ballot,
when the following gentlemen received a majority of votes, and were
appointed, viz: James Buchanan, of Pennsylvania; Henry R. Storrs, of
New York; George McDuffie of South Carolina; Ambrose Spencer, of New
York, and Charles Wickliffe, of Kentucky.
The first four were elected on the first ballot. But four ballots
were taken before a majority was given for Mr. Wickliffe.
The Journal records that Messrs. William McCoy, of Virginia, Daniel
H. Miller, of Pennsylvania, and Robert Desha, of Tennessee, were
appointed tellers to examine the ballots on the vote.
The managers were the same as the committee appointed to prepare the
article of impeachment; and all had been favorable to the impeachment.
On motion of Mr. Buchanan, it was
Resolved, That the article agreed to by this House, to be exhibited,
in the name of themselves and of all the people of the United States,
against James H. Peck, in maintenance of their impeachment against him
for high misdemeanors in office, be carried to the Senate by the
managers appointed to conduct said impeachment.
On motion of Mr. Buchanan, it was
Resolved, That a message be sent to the Senate, to inform them that
this House have appointed managers to conduct the impeachment against
James H. Peck, judge of the district court of the United States for the
district of Missouri, and have directed the said managers to carry to
the Senate the article agreed upon by this House, to be exhibited in
maintenance of their impeachment against the said James H. Peck, and
that the Clerk of this House do go with said message.
2369. Peck's impeachment continued.
The message announcing to the Senate that an article impeaching Judge
Peck would be presented gave the names of the managers.
The Senate adopted a rule prescribing ceremonies for receiving as a
court the articles impeaching Judge Peck.
Form of oath prescribed for Senators in the Peck trial.
Form of proclamation of the Sergeant-at-Arms when articles of
impeachment against Judge Peck were to be presented.
On May 3,\2\ in the Senate, the Clerk of the House delivered this
message:
Mr. President, I am directed to inform the Senate that the House of
Representatives have appointed Mr. Buchanan, of Pennsylvania, etc.
(naming the others), managers to conduct the impeachment against James
H. Peck, judge of, etc.; and have directed the said managers to carry
to the Senate the articles agreed upon by the House to be exhibited in
maintenance of their impeachment against the said James H. Peck.
-----------------------------------------------------------------------
\1\ As shown above, the committee which framed this article was
composed entirely of Members who voted for the impeachment.
\2\ Senate Journal, p. 282; Debates, p. 405.
Sec. 2370
The message having been delivered and read, on motion by Mr.
Tazewell, it was
Resolved, That at 12 o'clock to-morrow the Senate will resolve itself
into a court of impeachment, at which time the following oath or
affirmation shall be administered by the Secretary to the President of
the Senate, and by him to each Member of the Senate, viz:
``I solemnly swear (or affirm, as the case may be) that in all things
appertaining to the trial of the impeachment of James H. Peck, judge of
the district court of the United States for the district of Missouri, I
will do impartial justice according to law.''
Which court of impeachment being thus formed will, at the time
aforesaid, receive the managers appointed by the House of
Representatives to exhibit articles of impeachment, in the name of
themselves and of all the people of the United States, against James H.
Peck, judge of the district court of the United States for the district
of Missouri, pursuant to notice given to the Senate this day by the
House of Representatives that they had appointed managers for the
purposes aforesaid; and that the Secretary of the Senate lay this
resolution before the House of Representatives.
Resolved, That after the managers of the impeachment shall be
introduced to the bar of the Senate, and shall have signified that they
are ready to exhibit articles of impeachment against James H. Peck, the
President of the Senate shall direct the Sergeant-at-Arms to make
proclamation, who shall, after making proclamation, repeat the
following words: ``All persons are commanded to keep silence, on pain
of imprisonment, while the grand inquest of the nation is exhibiting to
the Senate of the United States articles of impeachment against James
H. Peck, judge of the district court of the United States for the
district of Missouri.'' After which the articles shall be exhibited and
the President of the Senate shall inform the managers that the Senate
will take proper order on the subject of the impeachment, of which due
notice shall be given to the House of Representatives.
On the same day the first of the above resolutions was communicated
to the House of Representatives by message.\1\
On May 4 \2\ the Senate resolved itself into a high court of
impeachment,\3\ and the Secretary administered the prescribed oath to
the Vice-President, who then administered it in turn to the Senators.
The managers on the part of the House of Representatives appeared and
were admitted; and Mr. Buchanan, their chairman, having announced that
they were the managers instructed by the House of Representatives to
exhibit a certain article of impeachment against James H. Peck, judge
of the district court of the United States for the district of
Missouri, they were requested by the Vice-President to take seats
assigned them within the bar; and the Sergeant-at-Arms was directed to
make proclamation in the words following:
Oyez! Oyez! Oyez! All persons are commanded to keep silence, on pain
of imprisonment, while the grand inquest of the nation is exhibiting to
the Senate of the United States articles of impeachment against James
H. Peck, judge of the district court of the United States for the
district of Missouri.
2370. Peck's impeachment, continued.
The article of impeachment against Judge Peck.
The article of impeachment in the Peck case was signed by the Speaker
and attested by the Clerk.
The article of impeachment in the Peck case was read by the chairman
of the managers, and appears in full on the journal of the trial.
-----------------------------------------------------------------------
\1\ House Journal, p. 603.
\2\ Senate Impeachment Journal, second session Twenty-first Congress,
pp. 240-243; Debates, pp. 411-413.
\3\ During this trial the court is described by the singular number
``impeachment.'' In former trials the word has been ``impeachments.''
Sec. 2370
Having laid the article impeaching Judge Peck on the Senate table,
the managers returned and reported verbally to the House.
The article of impeachment against Judge Peck having been presented,
the Senate ordered a writ of summons to issue, and informed the House
thereof.
After which the managers rose, and Mr. Buchanan, their chairman, read
the following article, which appears in full in the journal of the
impeachment:
Article exhibited by the House of Representatives of the United
States, in the name of themselves, and of all the people of the United
States, against James H. Peck, judge of the district court of the
United States for the district of Missouri, in maintenance and support
of their impeachment against him for high misdemeanors in office.
article.
That the said James H. Peck, judge of the district court of the
United States for the district of Missouri, at a term of the said
court, holden at St. Louis, in the State of Missouri, on the 4th Monday
in December, 1825, did, under and by virtue of the power and authority
vested in the said court, by the act of the Congress of the United
States, 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,'' approved on the 26th
day of May, 1824, render a final decree of the said court in favor of
the United States, and against the validity of the claim of the
petitioners, in a certain matter or cause depending in the said court,
under the said act, and before that time prosecuted in the said court,
before the said judge, by Julie Soulard, widow of Antoine Soulard, and
James G. Soulard, Henry G. Soulard, Eliza Soulard, and Benjamin A.
Soulard, children and heirs at law of the said Antoine Soulard,
petitioners against the United States, praying for the confirmation of
their claim, under the said act, to certain lands situated in the said
State of Missouri; and the said court did, thereafter, on the 30th day
of December, in the said year, adjourn to sit again on the third Monday
in April, 1826.
And the said petitioners did, and at the December term of the said
court, holden by and before the said James H. Peck, judge as aforesaid,
in due form of law, under the said act, appeal against the United
States from the judgment and decree so made and entered in the said
matter, to the Supreme Court of the United States; of which appeal, so
made and taken in the said district court, the said James H. Peck,
judge of the said court, had then and there full notice. And the said
James H. Peck, after the said matter or cause had so been duly appealed
to the Supreme Court of the United States, and on or about the 30th day
of March, 1826, did cause to be published, in a certain public
newspaper, printed at the city of St. Louis, called ``The Missouri
Republican,'' a certain communication, prepared by the said James H.
Peck, purporting to be the opinion of the said James H. Peck, as judge
of the said court, in the matter or cause aforesaid, and purporting to
set forth the reasons of the said James H. Peck, as such judge, for the
said decree, and that Luke Edward Lawless, a citizen of the United
States, and an attorney and counsellor at law in the said district
court, and who had been of counsel for the petitioners in the said
court, in the matter aforesaid, did, thereafter, and on or about the
8th day of April, 1826, cause to be published in a certain other
newspaper, printed at the city of St. Louis, called ``The Missouri
Advocate and St. Louis Enquirer,'' a certain article signed ``A
Citizen,'' and purporting to contain exposition of certain errors of
doctrine and fact alleged to be contained in the opinion of the said
James H. Peck, as before that time so published, which publication by
the said Luke Edward Lawless was to the effect following, viz:
``To the Editor:
``Sir: I have read, with the attention which the subject deserves, the
opinion of Judge Peck on the claim of the widow and heirs of Antoine
Soulard, published in the Republican of the 30th ultimo. I observe
that, although the judge has thought proper to decide against the
claim, he leaves the grounds of his decree open for further discussion.
``Availing myself, therefore, of this permission, and considering the
opinion so published to be a fair subject of examination to every
citizen who feels himself interested in, or aggrieved by, its
operation, I beg leave to point the attention of the public to some of
the principal errors which I
Sec. 2370
think I have discovered in it. In doing so, I shall confine myself to
little more than an enumeration of those errors, without entering into
any demonstration or developed reasoning on the subject. This would
require more space than a newspaper allows, and, besides, is not, as
regards most of the points, absolutely necessary.
``Judge Peck, in this opinion, seems to me to have erred in the
following assumptions, as well of fact as of doctrine:
``1. That, by the ordinance of 1754, a subdelegate was prohibited
from making a grant in consideration of services rendered or to be
rendered.
``2. That a subdelegate in Louisiana was not a subdelegate, as
contemplated by the said ordinance.
``3. That O'Reily's regulations, made in February, 1770, can be
considered as demonstrative of the extent of the granting power of
either the governor-general or the subdelegates, under the royal order
of August, 1790.
``4. That the royal order of August, 1770 (as recited or referred to
in the preamble to the regulations of Morales, of July, 1799), related
exclusively to the governor-general.
``5. That the word `mercedes,' in the ordinance of 1754, which, in
the Spanish language, means `gifts,' can be narrowed, by anything in
that ordinance, or in any other law, to the idea of a grant to an
Indian, or a reward to an informer, and much less to a mere sale for
money.
``6. That O'Reily's regulations were in their terms applicable, or
ever were in fact applied to, or published in, upper Louisiana.
``7. That the regulations of O'Reily have any bearing on the grant to
Antoine Soulard, or that such a grant was contemplated by them.
``8. That the limitations to a square league of grants to new
settlers in Opelousas, Attakapas, and Natchitoches (in eighth article
of O'Reily's regulations) prohibits a larger grant in upper Louisiana.
``9. That the regulations of the governor-general, Gayoso, dated 9th
September, 1797, entitled `Instructions to be observed for the
admission of new settlers,' prohibit, in future, a grant for services,
or have the effect of annulling that to Antoine Soulard, which was made
in 1796, and not located or surveyed until February, 1804.
``10. That the complete titles made by Gayoso are not to be referred
to as affording the construction made by Gayoso himself, of his own
regulations.
``11. That, although the regulations of Morales were not promulgated
as law in upper Louisiana, the grantee in the principal case was bound
by them, inasmuch as he had notice, or must be presumed, `from the
official station which he held,' to have had notice, of their terms.
``12. That the regulations of Morales `exclude all belief that any
law existed under which a confirmation of the title in question could
have been claimed.'
``13. That the complete titles (produced to the court) made by the
governor-general, or the intendant-general, though based on incomplete
titles, not conformable to the regulations of O'Reily, Gayoso, or
Morales, afford no inference in favor of the power of the lieutenant-
governor, from whom these incomplete titles emanated, and must be
considered as anomalous exercises of power in favor of individual
grantees.
``14. That the language of Morales himself, in the complete titles
issued by him, on concessions made by the lieutenant-governor of upper
Louisiana, anterior to the date of his regulations, ought not to be
referred to as furnishing the construction which he, Morales, put on
his own regulations.
``15. That the uniform practice of the subdelegates, or lieutenant-
governor of upper Louisiana, from the first establishment of that
province to the 10th March, 1804, is to be disregarded as proof of law,
usage, or custom therein.
``16. That the historical fact that nineteen-twentieths of the titles
to lands in upper Louisiana, were not only incomplete but not
conformable to the regulations of O'Reily, Gayoso, or Morales at the
date of the cession to the United States, affords no inference in favor
of the general legality of those titles.
``17. That the fact that incomplete concessions, whether floating or
located, were, previous to the cession, treated and considered by the
Government and population of Louisiana as property, salable,
transferable, and the subject of inheritance and distribution ab
intestato, furnishes no inference in favor of those titles, or to their
claim to the protection of the treaty of cession, or of the law of
nations.
``18. That the laws of Congress heretofore passed in favor of
incomplete titles furnish no argument or protecting principle in favor
of those titles of a precisely similar character, which remain
unconfirmed.
Sec. 2370
``In addition to the above, a number of other errors, consequential
on those indicated, might be stated. The judge's doctrine as to the
forfeiture which he contends is inflicted by Morales's regulations,
seems to me to be peculiarly pregnant with grievous consequences. I
shall, however, not tire the reader with any further enumeration, and
shall detain him only to observe, by way of conclusion, that the
judge's recollection of the argument of the counsel for the petitioner,
as delivered at the bar, differs materially from what I can remember,
who also heard it. In justice to the counsel I beg to observe that all
that I have now submitted to the public has been suggested by that
argument as spoken, and by the printed report of it, which is even now
before me.
``A Citizen.''
And the said James H. Peck, judge as aforesaid, unmindful of the
solemn duties of his station, and that he held the same, by the
Constitution of the United States, during good behavior only, with
intention wrongfully and unjustly to oppress, imprison, and otherwise
injure the said Luke Edward Lawless, under color of law, did,
thereafter, at a term of the said district court of the United States
for the district of Missouri, begun and held at the city of St. Louis,
in the State of Missouri, on the 3d Monday in April, 1826, arbitrarily,
oppressively, and unjustly, and under the further color and pretense
that the said Luke Edward Lawless was answerable to the said court for
the said publication signed ``A Citizen,'' as for a contempt thereof,
institute, in the said court, before him, the said James H. Peck, judge
as aforesaid, certain proceedings against the said Luke Edward Lawless,
in a summary way, by attachment issued for that purpose by the order of
the said James H. Peck, as such judge, against the person of the said
Luke Edward Lawless, touching the said pretended contempt, under and by
virtue of which said attachment the said Luke Edward Lawless was, on
the 21st day of April, 1826, arrested, imprisoned, and brought into the
said court, before the said judge, in the custody of the marshal of the
said State; and the said James H. Peck, judge as aforesaid, did,
afterwards, on the same day, under the color and pretenses aforesaid,
and with the intent aforesaid, in the said court, then and there,
unjustly, oppressively, and arbitrarily, order and adjudge that the
said Luke Edward Lawless, for the cause aforesaid, should be committed
to prison for the period of twenty-four hours, and that he should be
suspended from practicing as an attorney or counsellor at law in the
said district court for the period of eighteen calendar months from
that day, and did then and there further cause the said unjust and
oppressive sentence to be carried into execution; and the said Luke
Edward Lawless was, under color of the said sentence, and by the order
of the said James H. Peck, judge as aforesaid, thereupon suspended from
practicing as such attorney or counsellor in the said court for the
period aforesaid, and immediately committed to the- common- prison in
the said city of St. Louis, to the great disparagement of public
justice, the abuse of judicial authority, and to the subversion of the
liberties of the people of the United States.
And the House of Representatives, by protestation, saving to
themselves the liberty of exhibiting, at any time hereafter, any
further articles, or other accusations or impeachment, against the said
James H. Peck, and also of replying to his answers which he shall make
unto the article herein preferred against him, and of offering proof to
the same, and every part thereof, and to all and every other articles,
accusation, or impeachment, which shall be exhibited by them as the
case shall require, do demand that the said James H. Peck may be put to
answer the misdemeanors herein charged against him, and that such
proceedings, examinations, trials, and judgments, may be thereupon had
and given, as may be agreeable to law and justice.
A. Stevenson,
Speaker of the House of Representatives, United States.
Attest:
M. St. Clair Clarke,
Clerk House of Representatives, United States.
The Vice-President then informed the managers that the Senate would
take proper order thereon, of which the House of Representatives should
have due notice.
The managers, by their chairman, delivered the article of impeachment
at the table of the Secretary, and then withdrew.
On motion by Mr. Tazewell, it was
Resolved, That the Secretary be directed to issue a summons, in the
usual form, to James H. Peck, judge of the district court of the United
States for the district of Missouri, to answer a certain article
Sec. 2371
of impeachment exhibited against him by the House of Representatives on
this day: that the said summons be returnable here on Tuesday next, the
l1th instant, and be served by the Sergeant-at-Arms, or some person to
be deputed by him, at least three days before the return day thereof;
and that the Secretary communicate this resolution to the House of
Representatives.
On motion by Mr. Tazewell,
The court then adjourned to Tuesday next at 12 o'clock.
On the same day, in the House, the managers reported: \1\
That they did, this day, carry to the Senate, then in session as a
high court of impeachment, the article of impeachment agreed to by this
House on the 1st instant, and that they were informed that they would
take proper measures relative to the said impeachment, of which the
House would be duly notified.
A little later, on the same day, the Secretary of the Senate
communicated \2\ a message:
In Senate of the United States,
High Court of Impeachment,
Tuesday, May 4, 1830.
The United States v. James H. Peck.
Resolved, That the Secretary be directed to issue a summons, etc.
[here follows the text of the resolution already given above].
Attest:
Walter Lowrie, Secretary.
2371. Peck's impeachment, continued.
Form of proclamation of Sergeant-at-Arms enjoining silence at the
opening of the high court of impeachment for the Peck trial.
Form used by the Sergeant-at-Arms in calling Judge Peck to appear and
answer the article.
Form of return made by the Sergeant-at-Arms in the Peck trial, and
oath taken by him at the time.
Ceremonies at the appearance of Judge Peck in response to the writ of
summons.
Judge Peck appeared in person, attended by counsel, in answer to the
writ of summons.
Having appeared, Judge Peck asked time to prepare his answer,
accompanying the request with an affidavit.
The Senate declined to allow Judge Peck until the next session of
Congress to file his answer, and set an earlier date.
The answer of Judge Peck to the article of impeachment was ordered to
be filed with the Secretary.
The Senate notified the House of the date fixed for Judge Peck to
file his answer.
On May 11,\3\ the high court of impeachment was opened by
proclamation of silence by the Sergeant-at-Arms, as follows:
Oyez! Oyez! Oyez! Silence is commanded on pain of imprisonment while
the Senate of the United States is sitting as a high court of
impeachment for the trial of James H. Peck, judge of the district court
of the United States for the district of Missouri.
-----------------------------------------------------------------------
\1\ House Journal, p. 605; Debates, p. 872.
\2\ House Journal, p. 606.
\3\ Senate Impeachment Journal, second session Twenty-first Congress,
pp. 244-248; Debates, p. 432.
Sec. 2371
The return of the Sergeant-at-Arms of the summons issued to James H.
Peck was read, as follows:
I, Mountjoy Bayly, Sergeant-at-Arms of the Senate of the United
States, in obedience to the within summons, to me directed, did proceed
to Barnum's Hotel, in the city of Baltimore, on Thursday, the 6th
instant, and did then and there deliver to, and leave with, the within-
named James H. Peck a true copy of the within writ of summons and a
true copy of the precept thereon indorsed, and did show him both.
Mountjoy Bayly.
Washington, May 8, 1830.
The Secretary then administered the following oath to the Sergeant-
at-Arms:
You, Mountjoy Bayly, Sergeant-at-Arms to the Senate of the United
States, do swear that the return made and subscribed by you upon the
process issued on the 4th day of May, instant, by the Senate of the
United States against James H. Peck, judge of the district court of the
United States for the district of Missouri, is truly made, and that you
have performed said services as therein described. So help you God.
Proclamation was then made as follows:
Oyez! oyez! oyez! James H. Peck, judge of the district court of the
United States for the district of Missouri, come forward and answer the
article of impeachment exhibited against you by the House of
Representatives.
Whereupon James H. Peck appeared at the bar, attended by William
Wirt, as his counsel, and they were seated within the bar.
The Vice-President informed Judge Peck that the court was ready to
receive his answer.
Judge Peck rose and addressed the Senate as follows:
Mr. President: I appear, in obedience to a summons from this
honorable court, to answer an article of impeachment exhibited against
me by the honorable the House of Representatives; and I have a motion
to make, which I request may be done by my counsel.
The Vice-President having signified the willingness of the court to
receive the motion,
Mr. Wirt rose and read a letter addressed to the President of the
Senate and signed by the respondent, in which were set forth the
necessity of time to prepare a defense, and in which was also included
a motion, respectfully submitted:
1. That a reasonable time may be allowed me to prepare my answer and
plea; and, for this purpose, I ask until the 25th day of the present
month.
2. That, after my answer and plea shall be filed, process for
witnesses may be awarded to me, and a reasonable time may be allowed to
collect my witnesses and proofs from the State of Missouri.
The communication also referred to an accompanying affidavit. In this
affidavit James H. Peck made oath that certain named persons were
material witnesses for him, that there were other witnesses not named
who would be material, and that there were certain public records
needful to his defense; and that in order to produce these the delay
asked for was not too much. He further made oath that his application
was not for purposes of delay.
The reading having concluded, Mr. Daniel Webster, of Massachusetts,
then submitted the following order:
Ordered, That James H. Peck file his answer and plea with the
Secretary of the Senate to the article of impeachment exhibited against
him by the House of Representatives, on or before the second Monday of
the next session of Congress.
Sec. 2372
On motion of Mr. George M. Bibb, of Kentucky, this order was amended
by striking out all after the words ``on or before'' and inserting
``the 25th day of the present month;'' and as amended the order was
agreed to.
It was further--
Ordered, That the Secretary notify the foregoing order to the House
of Representatives and to James H. Peck.
On the same day this message was duly communicated to the House.\1\
2372. Peck's impeachment, continued.
In the Peck trial new rules were not adopted, the rules framed in the
Chase trial being considered as operative.
On May 11,\2\ also, the Senate (not the high court of impeachment)
agreed to the following:
Ordered, That the Secretary of the Senate direct copies of the rules
of proceedings, prescribed in cases of impeachment, to be printed for
the use of the Members, and laid on their tables on the first day of
the next session of the court; and also that copies be furnished to the
managers of the impeachment in the case of James H. Peck and to the
accused and his counsel.
The rules referred to are those agreed upon at the trial of Samuel
Chase. They are printed as a footnote in the Journal of the
impeachment; but they were not acted on in any way by the court at this
time, being treated as existing rules.\3\
2373. Peck's impeachment continued.
In the Peck trial the House decided to attend its managers at the
presentation of the answer but not during the trial.
On May 25,\4\ in the House, Mr. Storrs, of New York, observed that,
as the Senate would meet to-day as a court of impeachment for the
purpose of receiving the answer of the respondent, Judge Peck, it was
indispensable that the House come to some order immediately on the
subject. He therefore moved a resolution that the House would, in
Committee of the Whole, attend the Senate during the trial of James H.
Peck. Mr. Storrs argued that the resolution was in accordance with
former usage and that the House should be present during every day of
the trial. The appointment of managers was not intended to dispense
with the presence of the House. The managers could take no step without
consulting the House, which must, therefore, be present.
On the other hand, Mr. Pettis and Mr. Joel B. Sutherland, of
Pennsylvania, insisted that the presence of the managers alone would be
sufficient, and that if the House were to attend daily the other
business would suffer. Mr. Sutherland said it would be very proper to
go to the Senate to-day, and be present at the opening of the court for
the impeachment, and receiving the answer of the accused; but
afterwards, unless some very pressing occasion should require it, the
presence of the House would be unnecessary. The object in appointing
managers was to leave it to them to conduct the impeachment. He cited
Jefferson's Manual to
-----------------------------------------------------------------------
\1\ House Journal, p. 625.
\2\ Senate Journal, first session Twenty-first Congress, p. 296.
\3\ Senate Impeachment Journal, second session Twenty-first Congress,
pp. 248-250.
\4\ House Journal, p. 714; Debates, p. 1134.
Sec. 2374
sustain his opinion, and moved to modify the resolution so as to
provide that the House would attend this day.
In accordance with this suggestion, the resolution was modified and
agreed to as follows:
Resolved, That this House will, this day, at such hour as the Senate
shall appoint, resolve itself into Committee of the Whole, and attend
in the Senate on the trial of the impeachment there pending of James H.
Peck, judge of the district court of the United States for the district
of Missouri.
2374. Peck's impeachment continued.
Arrangement of the Hall and ceremonies at the presentation of Judge
Peck's answer.
Form of answer of Judge Peck in answer of the article of impeachment.
Judge reek, in his plea, declared that the acts charged were
justified by the law of the land.
The answer in the Peck case was read by counsel for respondent and
then delivered to the Secretary.
Form of journal entry describing the attendance of the House in
Committee of the Whole at the Peck trial.
The House was furnished by the court with a copy of Judge Peck's
answer.
On the same day, May 25,\1\ in the high court of impeachment, at the
hour of 12 o'clock, the court was opened by proclamation in the usual
form.
On motion by Mr. Webster, it was
Ordered, That the Secretary give notice to the House of
Representatives that the Senate are now in their Chamber and are ready
to proceed on the trial of the impeachment of James H. Peck, judge of
the district court of the United States for the district of Missouri;
and that seats are provided for the accommodation of the Members of the
House of Representatives.
And this notice was duly received by the House.\2\
In the high court seats had been arranged on the right and left of
the Chair, for the accommodation of the Senators, and their seats
assigned to the managers and Members of the House of Representatives,
and the accused and his counsel.
Judge Peck appeared, accompanied by William Wirt and Jonathan
Meredith as his counsel, and they occupied seats assigned them to the
right of the Chair.
The managers and Members of the House of Representatives appeared and
took the seats usually occupied by the Senate.
The Vice-President then asked Judge Peck whether he was prepared to
answer the article of impeachment exhibited against him.
Judge Peck replied that his answer and plea were prepared and desired
that they might be read by his counsel.
The Vice-President asked Judge Peck whether the answer now to be made
was to be considered as his final answer on which he intended to rely;
and the judge having answered in the affirmative, the counsel was
directed to proceed to read it.
-----------------------------------------------------------------------
\1\ Senate Impeachment Journal, second session Twenty-first Congress,
pp. 249-326; Debates, pp. 455, 456.
\2\ House Journal, p. 717.
Sec. 2374
Mr. Meredith read the answer (which occupied upward of two hours). In
form the answer began as follows:
The answer of James H. Peck to the article of impeachment exhibited
against him by the honorable House of Representatives of the United
States.
The said James H. Peck, saving to himself all exceptions whatsoever
to the said article and the charges therein contained, answers and
says:
Here follows the answer in detail, and the conclusion:
In all which actions and doings of this respondent in the premises,
he avers that he was supported and justified by the Constitution and
laws of the land, and that he will be prepared to make good this
averment at such time as this honorable court shall appoint.
And, solemnly denying the intention charged to him by the article of
impeachment, ``wrongfully and unjustly to oppress, imprison, and
otherwise injure the said Luke E. Lawless, under color of law,'' and
asserting, in the presence of the Supreme Searcher of Hearts, that in
all that he did in the premises he was actuated by the purest sense of
what he deemed a high official duty and was, as he believed and still
confidently believes, well warranted and supported in every step by the
Constitution and laws of the land, this respondent, for plea to the
said article of impeachment, saith that he is not guilty of any high
misdemeanor, as in and by the said article is alleged, and this he
prays may be inquired of by this honorable court in such manner as law
and justice shall seem to them to require.
James H. Peck.
This answer, with sundry exhibits referred to therein, is spread on
the Journal of the high court of impeachment. It was delivered to the
Secretary of the Senate after the reading.
Mr. Storrs, in behalf of the managers, moved
That they have time to consult the House of Representatives on a
replication, and that they be furnished with a copy of the answer of
the respondent, which was agreed to.
On motion by Mr. Webster it was
Ordered, That when this court adjourn, it adjourn to meet again on
the second Monday of the next session of Congress, at 12 o'clock, then
to proceed with the said impeachment.
Mr. Wirt desired to know whether blank summons as for the attendance
of witnesses would be allowed to the respondent.
The Vice-President replied that they would.
The court then adjourned to the second Monday of the next session of
Congress.
The House Journal of this day has this entry: \1\
The House then, in pursuance of a resolution agreed to this day,
resolved itself into a Committee of the Whole House, and proceeded in
that capacity to the Senate Chamber, to attend the trial by the Senate
of the impeachment against James H. Peck, judge of the district court
of the United States for the district of Missouri; and, after sometime
spent therein, the committee returned into the Chamber of the House;
and the Speaker having resumed the Chair, Mr. P. P. Barbour, of
Virginia, from the said Committee of the Whole, reported that the
committee had, according to order, attended the trial by the Senate of
the said impeachment; that the answer and plea of the mid James H. Peck
were delivered in their presence; that some progress was made in said
trial, and that the Senate, sitting as a high court of impeachment, had
adjourned to meet again on the second Monday of the next session of
Congress, at 12 o'clock.
And on May 31 \2\ the Congress adjourned.
-----------------------------------------------------------------------
\1\ Page 717.
\2\ House Journal, p. 812.
Sec. 2375
2375. Peck's impeachment, continued.
A recess of Congress intervened between the filing of the answer and
the presentation of the replication in the Peck trial.
Form of replication to Judge Peck's answer and forms of resolutions
providing for its presentation.
Senators elected after the beginning of an impeachment trial are
sworn as in the case of other Senators.
At the next session of Congress the proceedings were resumed where
they had ended at the preceding session.
On December 13,\1\ 1830, in the House,
Mr. Buchanan, on behalf of the managers appointed to conduct the
impeachment against Judge James H. Peck, submitted the following
report:
The committee of managers appointed by the House of Representatives
to conduct the impeachment against James H. Peck, judge of the district
court of the United States for the district of Missouri, report that
they have had under consideration the answer of Judge Peck to the
article of impeachment exhibited against him by the House, and
recommend the adoption of the following replication thereto:
replication.
By the House of Representatives of the United States to the answer
and plea of James H. Peck, judge of the district court of the United
States for the district of Missouri, to the article of impeachment
exhibited against him by the said House of Representatives.
The House of Representatives of the United States having considered
the answer and plea of James H. Peck, judge of the district court of
the United States for the district of Missouri, to the article of
impeachment against him by them exhibited, in the name of themselves
and of all the people of the United States, reply that the said James
H. Peck is guilty in such manner as he stands impeached; and that the
House of Representatives will be ready to prove their charges against
him at such convenient time and place as shall be appointed for that
purpose.
The replication being read was agreed to by the House.
Thereupon, on motion of Mr. Buchanan,
Resolved, That the foregoing replication be put into the answer and
plea of the aforesaid James H. Peck on behalf of this House; and that
the managers be instructed to maintain the said replication at the bar
of the Senate, at such time as shall be appointed by the Senate.
Resolved, That a message be sent to the Senate to inform them that
this House have agreed to a replication on their part to the answer and
plea of James H. Peck, judge of the district court of the United States
for the district of Missouri, to the article of impeachment exhibited
to the Senate against him by this House, and have directed the managers
appointed to conduct the said impeachment to carry the said replication
to the Senate, and to maintain the same at the bar of the Senate, at
such time as shall be appointed by the Senate.
On the same day \2\ the high court of impeachment was opened by
proclamation,\3\ and the President \4\ administered the oath to Messrs.
David J. Baker, of Illinois, and George Poindexter, of Mississippi,
newly-elected Senators who had taken their seats at the first of the
session.
On motion of Mr. Levi Woodbury, of New Hampshire,
-----------------------------------------------------------------------
\1\ Second session Twenty-first Congress, House Journal, pp. 47, 48;
Debates, pp. 354, 355.
\2\ Senate Impeachment Journal, pp. 326, 327; Debates, p. 3.
\3\ The Debates say that this proclamation was made by the marshal of
the District of Columbia.
\4\ John C. Calhoun, of South Carolina, Vice-President and President
of the Senate.
Sec. 2376
Ordered, That the Secretary inform the House of Representatives that
the Senate are in their public Chamber, and are ready to proceed on the
trial of the impeachment of James H. Peck, judge of the district court
of the United States for the district of Missouri, and that seats are
provided for the accommodation of the Members.
The message from the House of Representatives announcing that the
managers had been directed to carry the replication was received.
The respondent, accompanied by Mr. Wirt and Mr. Meredith, his
counsel, appeared at the bar of the Senate. They were conducted to
seats, with a table before them, prepared for their convenience.
In a few minutes the managers to conduct the impeachment on the part
of the House of Representatives also came in and took their seats.
Mr. Buchanan, one of the managers, rose and said that the managers,
on the part of the House of Representatives, were ready to present the
replication of that House, to the answer and plea of James H. Peck,
judge of the district court of the United States for the district of
Missouri, to the articles of impeachment exhibited against him by that
body. He then read the replication, after which it was handed to the
Secretary to be filed.
2376. Peck's impeachment, continued.
In the Peck trial, after the witnesses had been called, the court
granted the request of the managers for delay to await a material
witness.
The President then informed the managers that they were at liberty to
proceed in support of the article of impeachment exhibited.
On request of Mr. Buchanan the witnesses on behalf of the managers
were called; and on request of Mr. Meredith the witnesses for the
respondent were also called.
Then it was
Ordered, That the Secretary inform the House of Representatives that
the Senate will, on Monday next, at 12 o'clock, be ready further to
proceed on the trial of the impeachment of James H. Peck, judge. * * *
The court then adjourned to Monday next at 11 o'clock.
2377. Peck's impeachment continued.
The House attended its managers a portion of the time during the Peck
trial, including the days of final argument.
The subject of attendance with the managers was discussed during the
Peck trial, with citation of American and English precedents.
The court of impeachment provided that the House should be notified
daily of its sittings.
The court of impeachment may adjourn over without interfering with
session of the Senate in the interim.
When the managers had returned to the House,\1\ a question was raised
over the fact that the House itself had not attended the managers. Mr.
Buchanan said that no motion had been made on the subject, and the
managers had felt it their duty to go and present the replication
without awaiting action. As to the question of attendance generally,
with the permission of the House he would state the course that had
been pursued by the managers. They had examined all the precedents
-----------------------------------------------------------------------
\1\ Debates, p. 358.
Sec. 2377
which had occurred in this country to guide them to a correct
performance of their duty. It was ascertained that since the adoption
of the present Constitution there had been three impeachments, viz,
those of Messrs. Blount and Pickering and Judge Chase. On the trial of
the first two the House did not attend in a body, but left it to the
managers to conduct the impeachment; on the trial of Judge Chase, they
did attend every day. It not being considered by the managers of the
pending trial that any principle so important as to interrupt the
legislative business of the House was involved in the present case,
they had gone to the Senate this day, as managers, and presented to
that body the replication agreed upon by the House. Mr. Buchanan
further remarked that he had consulted the English precedents. On the
trial of Warren Hastings the House of Commons attended at the
commencement of the trial, but they did not continue to do so. On the
trial of the Earl of Macclesfield they did not attend until his
conviction by the House of Lords; and then they attended in consequence
of a message having been sent them by that body that they were ready to
pronounce judgment on the impeached, if the House of Commons would
attend and demand it.
This question arose from time to time during the trial. On December
20,\1\ when the trial was to begin, Mr. Michael Hoffman, of New York,
proposed an order that the House, from time to time, resolve itself
into Committee of the Whole to attend, but after discussion as to the
state of the general business before the House, it was decided to
modify the proposition so as to provide merely for attendance on that
day. On December 22,\2\ a proposed order that the House attend each day
until otherwise ordered was disagreed to, yeas 83, nays 88. On December
23,\3\ by a vote of yeas 96, nays 30, it was--
Resolved, That during the trial of the impeachment now pending before
the Senate this House will meet daily at the hour of 11 o'clock in the
forenoon; and that, from day to day, it will resolve itself into a
Committee of the Whole and attend said trial during the continuance
thereof, and until the conclusion of the same.
The House acted in accordance with this resolution until January
4,\4\ when the vote agreeing to it was reconsidered, and then the
resolution was disagreed to, yeas 69, nays 118. Thereupon Mr. Kensey
Johns, jr., of Delaware, proposed this resolution:
Resolved, That a message be sent by the Clerk of the House, informing
the Senate that the House of Representatives decline further attendance
during the trial of the impeachment of Judge Peck.
This was criticised as likely to give an impression that the House
had abandoned the impeachment. Finally, after being amended, on motion
of Mr. Storrs, the resolution was agreed to in this form:
Resolved, That the managers appointed to conduct the impeachment of
James H. Peck be instructed to attend the trial of the said
impeachment, at such times as the Senate shall appoint for that
purpose; and that the attendance of the House be dispensed with until
otherwise ordered by the House, and that the Clerk communicate this
resolution to the Senate.
-----------------------------------------------------------------------
\1\ Debates, p. 378; House Journal, p. 80.
\2\ Debates, p. 379; House Journal, pp. 91, 92.
\3\ Debates, p. 382; House Journal, p. 97.
\4\ Debates, p. 399; House Journal, p. 140.
Sec. 2378
On January 17 \1\ it was resolved by the House that ``during the
argument of counsel in the impeachment'' this House ``will, from day to
day, resolve itself into a Committee of the Whole on the state of the
Union and attend the same.''
And in accordance with this order the House attended until the end of
the session.
On December 24,\2\ after the House had decided to attend each day,
the high court of impeachments--
Ordered, That the Secretary notify the House of Representatives, from
day to day, that the Senate is sitting as a high court of impeachment
for the trial of James H. Peck, judge of the district court of the
United States for the district of Missouri.
And on January 3, 1831,\3\ when it was ordered that the adjournment
of the high court on that day (a Monday) be to Wednesday, it was also
ordered that the House be informed. It may be noted that while the high
court of impeachment adjourned over January 4, the Senate itself was in
session on that day.
2378. Peck's impeachment continued.
The presentation of evidence and the arguments in the Peck trial.
On the final arguments in the Peck trial the managers had the opening
and closing.
In the Peck trial a Senator was examined as a witness on behalf of
respondent.
On receipt of a letter from a physician, showing the illness of one
of Judge Peck's counsel, the court adjourned.
On Monday, December 20,\4\ the court having been opened by
proclamation, and the managers accompanied by the House of
Representatives, and the respondent accompanied by his counsel having
attended, at the request of Mr. Meredith the witnesses in behalf of the
respondent were called. Although one or two material witnesses failed
to answer, Mr. Meredith announced that they were ready to go to trial.
The President informed the managers that they might now proceed to
substantiate their charge.
Mr. McDuffie thereupon proceeded to open the cause, and concluded on
the succeeding day. Then, on December 21 \5\ and thereafter until
January 5, 1831, witnesses were called for the managers, the same being
cross-examined on behalf of the respondent.
On January 5,\6\ Mr. Meredith opened the defense and began the
introduction of testimony, which continued to January 17.
On January 11,\7\ Thomas H. Benton, a Senator from Missouri, was
sworn on behalf of the respondent.
-----------------------------------------------------------------------
\1\ Debates, p. 518; House Journal, p. 186.
\2\ Senate Impeachment Journal, p. 329.
\3\ Senate Journal, pp. 67, 330.
\4\ Senate Impeachment Journal, pp. 327, et seq.; Debates, p. 10.
\5\ Senate Impeachment Journal, pp. 328-330.
\6\ Journal, pp. 331-335; Annals, p. 26.
\7\ Journal, p. 334; Debates, p. 28.
Sec. 2379
On January 13,\1\ the Vice-President communicated a letter from the
physician attending Mr. Wirt, one of the counsel for the respondent,
stating that Mr. Wirt would be unable to attend until the 17th.
Thereupon the high court adjourned until that date. Once previously it
had adjourned for the same reason at request of counsel and with
consent of managers.
On January 17,\2\ Mr. Spencer, on behalf of the managers, commenced
the argument in support of the article of impeachment, and on January
18, Mr. Wickliffe, also on behalf of the managers, continued.
On January 19,\3\ Mr. Meredith commenced the argument on behalf of
the respondent, and continued until January 22, when Mr. Wirt continued
the argument for the respondent until January 25, when he concluded.
From January 26 to 29,\4\ Messrs. Storrs and Buchanan occupied the
time with the arguments for the managers.
2379. Peck's impeachment, continued.
In the arguments in the Peck trial the managers resisted the theory
that impeachment might be only for indictable offenses.
Argument of Mr. Manager Spencer on the nature of impeachable
offenses.
In the course of the argument the managers and counsel for respondent
considered not only the evidence and law applicable to the article
itself, but discussed the nature of the power of impeachment. Mr.
Manager Spencer said: \5\
It is necessary to a right understanding of the impeachment to
ascertain and define what offenses constitute judicial misdemeanors. A
judicial misdemeanor consists, in my opinion, in doing an illegal act,
colore officii, with bad motives, or in doing an act within the
competency of the court or judge in some cases, but unwarranted in a
particular case from the facts existing in that case, with bad motives.
To illustrate the last proposition: The eighth article of the
amendments of the Constitution forbids the requirement of excessive
bail, the imposition of excessive fines, or the infliction of cruel or
unusual punishments. If a judge should disregard these provisions, and
from bad motives violate them, his offense would consist, not in the
want of power, but in the manner of his executing an authority
intrusted to him, and for exceeding a just and lawful discretion.
2380. Peck's impeachment continued.
Argument of Mr. Manager Wickliffe on the constitutional provisions
relating to impeachment.
Mr. Manager Wickliffe said: \6\
I do not know that it will be contended by the counsel for the
respondent, as it has been on a former impeachment before the Senate of
the United States, with great ability and apparent confidence, ``that a
judge can not be impeached for any offense which is not indictable;
that the Constitution declares the judges shall be removed from office
by impeachment for treason, bribery, and other high crimes and
misdemeanors;'' consequently as nothing less than the commission of
some offense which may be punishable by indictment, presentment, or
information comes within the known interpretation of the terms ``high
crimes and misdemeanors,'' no act, judicial or otherwise, unless
indictable, is impeachable.
I do not agree with this interpretation of the Constitution. * * *
I maintain the proposition that any official act committed or omitted
by the judge, which is in violation of the condition upon which he
holds his office, is an impeachable offense under the Constitution. * *
*
-----------------------------------------------------------------------
\1\ Journal, p. 335; Debates, pp. 23, 27, 28.
\2\ Journal, p. 335; Debates, p. 34.
\3\ Journal, pp. 335, 336; Debates, p. 34.
\4\ Journal, p. 337; Debates, p. 44.
\5\ Report of the trial of James H. Peck, p. 290.
\6\ Report of the trial of James H. Peck, pp. 308-310.
Sec. 2380
The framers of the Constitution wisely limited the punishment which
this court may award, fixing a point beyond which you can not go, but
leaving you in the exercise of a sound discretion to make it less than
removal from office. They were governed by equal wisdom when they left
the official delinquent to answer personally to the offended laws of
the State in which he had committed any crime or misdemeanor against
their injunctions.
The offense for which an officer may be impeached might not, in the
judgment of his triers (though deserving punishment), require the
infliction of the severer punishment, that of removal from and
disqualification for office. It might not deserve both of these
penalties, perhaps neither; a reprimand, a temporary suspension of his
functions and salary, might, in particular cases, be a punishment equal
to the official misdemeanor.
If nothing else had been said in this Constitution upon the subject
of impeachment, who would doubt the plenitude of power, the nature of
the punishment, or the objects upon which Congress could exercise it?
But, sir, the members of the convention, as if solemnly impressed with
the danger to the judiciary and other departments of the Government,
resulting from the humanity and mercy of the members of the tribunal
for the trial of impeachment; or, perhaps, looking at the dark side of
the picture of human nature, believing it possible that the time might
come when a judge or other officer, though stained with the foul crime
of treason and bribery, or other high crimes and misdemeanors, would
find favor in the sympathies, or cover in the bad passions of his
triers, who would blush, however, to pronounce him not guilty in the
face of conclusive evidence; but who would, nevertheless, diminish the
punishment under the discretionary power in the first article, and
leave the traitor or convicted felon to disgrace the judicial ermine or
official robe. To guard against this possible state of the case, * * *
the members of the convention intended, by the sixth section of the
second article, to declare what shall be the punishment to be awarded
by the court of impeachment for the enumerated offenses of treason,
bribery, and other high crimes and misdemeanors; hence they declared
that ``the President, Vice-President, and all civil officers of the
United States shall be removed from office on impeachment for and
conviction of treason, bribery, or other high crimes and
misdemeanors.'' This language is imperative; it leaves you no
discretion; you can not stop short of removal from office; you can not
exceed it,
If the construction of the Constitution which was contended for in
the impeachment to which I have referred be the true reading of the
instrument, and it shall be decided that no offense, no conduct of an
officer, unless it be a high crime and misdemeanor, within the
technical meaning of these terms, and punishable by some known and
existing criminal law, is impeachable, what would be the condition of
our Government, and especially the judicial department? No matter what
was the conduct of a judge in or out of court, if he kept himself
without the pains and penalties enacted for the punishment of treason,
felony, and vice, in the most degraded of civil society, no power
exists to strip him of the judicial character which he degraded. He
would, covered with disgrace and immorality, smile with contempt at
your power, and shield himself under the imputed ignorance of the
members of the convention.
A few cases will, I think, suffice to prove the fallacy of such a
construction of the Constitution. Suppose a judge, who is bound to open
his court at stated periods for the trial of causes, fulfills the
letter of the law, opens his court at the regular stated terms, but as
regularly adjourns, and refuses to hear and decide the causes pending
in court. This, sir, would be no indictable offense under any law; yet
I am inclined to believe this court would remove him from office for
official misconduct, for misbehavior in office, a forfeiture of the
condition upon which he held his commission.
Suppose a judge, under the influence of political feeling, * * *
shall award to his favorite a new trial, in an important cause, against
known law, would this be an indictable offense under any code of laws
in force in this Government?
Suppose a judge shall forget the dignity which belongs to the station
he fills, and to disregard that decorum which should ever regulate the
conduct of a judge, in and out of court, shall, while in court, take
advantage of his situation, and labor for two hours in pouring forth
his abuse and vituperation upon a respectable and unoffending citizen,
whom he has dragged before him by the strong arm of usurped power--in
what court would you file your indictment against him, for a high
misdemeanor? * * *
Take the case of the President of the United States. Suppose him base
enough, or foolish enough, if you please, to refuse his sanction to any
and every act which Congress may pass. This is a power which, according
to the Constitution, he can exercise. Will it be contended that he
could be indicted for it, as a misdemeanor, in any court, State or
Federal? Yet where is the man who would hesitate to remove him from
office by impeachment? If one of the heads of a department shall so far
forget the
Sec. 2381
obligations of his official duty as to direct his power and patronage,
not to the promotion of the welfare of the country, but with the known
and avowed purpose of his own personal or political aggrandizement, who
would think of finding an indictment in a criminal court of justice
against him? Yet who would not remove him from office by impeachment?
If precedent is to have any authority in this court, I consider the
question settled by the Senate of the United States in the trial of
Judge Pickering, of New Hampshire. The principal charge exhibited
against him was a disregard of a plain statute of the United States,
which makes it the duty of a district court, before restoration of
goods libeled for a violation of the revenue laws of the United States,
to the claimant in court, to take from him bond and security to return
the goods or to perform the judgment of the court. Upon this charge the
Senate found him guilty and removed him from office. He was also
charged with intemperance, which, though a misdemeanor, has never been
denominated or regarded by the laws of any country a ``high
misdemeanor.''
2381. Peck's impeachment, continued.
Argument of Mr. Manager Buchanan on the nature of impeachable
offenses.
Argument that the proof of intention is not necessary in an
impeachment trial to secure punishment for the fact.
Mr. Manager Buchanan said:\1\
The Constitution of the United States declares the tenure of the
judicial office to be ``during good behavior.'' Official misbehavior,
therefore, in a judge is a forfeiture of his office. But when we say
this we have advanced only a small distance. Another question meets us.
What is misbehavior in office? In answer to this question, and without
pretending to furnish a definition, I freely admit that we are bound to
prove that the respondent has violated the Constitution or some known
law of the land. This, I think, was the principle fairly to be deduced
from all the arguments on the trial of Judge Chase, and from the votes
of the Senate in the articles of impeachment against him, in opposition
to the principle for which his counsel in the first instance
strenuously contended, that in order to render an offense impeachable
it must be indictable. But this violation of law may consist in the
abuse, as well as in the usurpation of authority. The abuse of a power
which has been given may be as criminal as the usurpation of a power
which has not been granted. Can there be any doubt of this? Suppose a
man to be indicted for an assault and battery. He is tried and found
guilty, and the judge, without any circumstances of peculiar
aggravation having been shown, fines him a thousand dollars and commits
him to prison for one year. Now, although the judge may possess the
power to fine and imprison for this offense, at his discretion, would
not this punishment be such an abuse of judicial discretion and afford
such evidence of the tyrannical and arbitrary exercise of power as
would justify the House of Representatives in voting an impeachment?
But why need I fancy cases? Can fancy imagine a stronger case than is
now, in point of fact, before us? A member of the bar is brought before
a court of the United States guilty, if you please, of having published
a libel on the judge--a libel, however, perfectly decorous in its terms
and imputing no criminal intention, and so difficult of construction
that though the counsel for the respondent have labored for hours to
prove it to be a libel, still that question remains doubtful. If, in
this case, the judge has degraded the author by imprisonment and
deprived him of the mean of earning bread for himself and his family by
suspending him from the practice of his profession for eighteen months,
would not this be a cruel and oppressive use of authority, even
admitting the power to punish in such a case to be possessed by the
judge?
A gross abuse of granted power and an usurpation of power not granted
are offenses equally worthy of and liable to impeachment. If therefore
the gentleman could establish, on the firmest foundation, that the
power to punish libels as contempts may be legally exercised by all the
courts of the United States, still he would not have proceeded far
toward the acquittal of his client. * * *
It has been contended that even supposing the judge to have
transcended his power and violated the law, yet he can not be convicted
unless ' the Senate should believe he did the act with criminal
intention. It has been said that crime consists in two things--a fact
and an intention; and in support of this proposition the legal maxim
has been quoted that ``actus non fit reum, nisi mens rea.'' This
-----------------------------------------------------------------------
\1\ Report of the trial of James H. Peck, pp. 427-429.
Sec. 2382
may be true as a, general proposition, and yet it may have but a slight
bearing upon the present case. Did the gentlemen mean to contend that
before the judge could be convicted we must prove by positive testimony
malice in his breast, a lurking emnity against Mr. Lawless and the
purpose of gratifying a base revenge? I should suppose that to have
been the reason for which they asked so many questions to show that the
judge and Mr. Lawless had previously been upon good terms. This
argument may be answered with great force in the strong language of the
respondent himself in his answer to the article of impeachment.'' Both
in law and morals (says the judge) every man is presumed to intend the
natural consequences of his own actions.'' This was the rule by which
he tried Mr. Lawless. He took up the article signed ``A Citizen'' and
from that article alone he inferred the intention of its author. In
doing this he acted correctly; but his jaundiced mind and wounded
vanity had so diseased his perceptions that he saw burnt letters upon
the scroll, although in themselves they were perfectly innocent and
harmless. * * *
I admit that if the charge against a judge be merely an illegal
decision on a question of property, in a civil cause, his error ought
to be gross and palpable, indeed, to justify the inference of a
criminal intention and to convict him upon an impeachment. And yet one
case of this character has occurred in our history. Judge Pickering was
tried and condemned upon all the four articles exhibited against him,
although the three first contained no other charge than that of making
decisions contrary to law in a cause involving a mere question of
property, and then refusing to grant the party injured an appeal from
his decision, to which he was entitled.
And yet am I to be told that if a judge shall do an act which is in
itself criminal, if he shall, in an arbitrary and oppressive manner,
and without the authority of law, imprison a citizen of this country,
and thus consign him to infamy, you are not to infer his intention from
the act? Is not the act itself the best source from which to draw the
inference? * * *
The fourth article of impeachment exhibited against Judge Pickering
charged him with having appeared upon the bench in a state of total
intoxication. This was gross official misbehavior. Would the Senate in
that case have gravely listened to an argument to prove that the judge
might have got drunk without an evil intention? Certainly not. The act
was done. The tribunal had been disgraced, and the Senate inferred his
intention from his conduct and turned him out of office.
2382. Peck's impeachment continued.
Mr. William Wirt argued in defense of Judge Peck that a judge might
not be impeached for a mere mistake of the law without guilty intent.
Mr. William Wirt's argument that intent was not established by proof
of the mere commission of an unlawful act.
Arguing for the respondent, Mr. Wirt said:\1\
Even if the judge were proved to have mistaken the law, that would
not warrant a conviction, unless the guilt of intention be also
established. For a mere mistake of the law is no crime or misdemeanor
in a judge. It is the intention that is the essence of every crime. The
maxim is (for the principal is so universally admitted that it has
grown into a maxim) actus non facit reum nisi mens sit rea.
Sir, if the impeachment had not contained the charge of the guilty
intention the respondent, under the advice of his counsel, would have
demurred to it; not by any special demurrer to the form, but a general
demurrer to the substance, for the intention is the substance of the
crime. The honorable managers who prepared this article of impeachment
were perfectly aware of this and have, therefore, very properly charged
the intention in express terms. Sir, it is a material part of the
charge, and what it was material to charge it is material to prove. * *
* One of the honorable managers, seeming to perceive the impossibility
of satisfying any candid mind that the respondent was guilty of the
intention charged, endeavored to escape this rule of the criminal law
by contending that if they fixed on the respondent the commission of an
unlawful act, the guilty intention charged in the impeachment followed
as a necessary implication of law. This I deny; for then every mistake
of law on the part of a judge would become a crime or a civil injury,
for which he would be personally responsible. The honorable manager
sought to illustrate his proposition by the cases of murder and
forgery. ``If,'' said he, ``a party be proved to have committed a
deliberate murder, will he not be presumed to have intended
-----------------------------------------------------------------------
\1\ Report of the trial of Judge Peck, pp. 485, 486, 492, 494-497.
Sec. 2383
to commit murder? Is separate proof of intention ever required in such
a case? Or if a man be proved to have committed forgery, will not the
law infer the intention from the act?'' This is plausible; let us
examine its solidity: It is the proposition which they must maintain,
and from which alone they can have any hope of success in this case. Is
it sound?
Mr. Wirt then proceeded to discuss the crimes of murder and forgery
to show that the guilty intention was part of the proof in such cases,
since neither crime existed without guilty intention. Continuing, he
said:
Another of the honorable managers (Mr. Wickliffe) has advanced a
proposition so novel and so directly confronted by all the authorities,
that had it not been for some other things that I have heard in this
case, I should have heard it with unmixed surprise. The honorable
manager tells us that ``he cares not for proof of intention; that he
cares not whether the judge acted wrong from ignorance or intention.
That ignorance of the law is no excuse in an unlearned layman, much
less in a learned judge. That every man is presumed to know the law,
and a fortiori, a judge whose office it is to understand and administer
the law. If, therefore, a judge through ignorance of the law has done
that which he has no power to do, he is just as guilty in the eye of
the law as if he had sinned intentionally against the light of
knowledge.''
Then, according to this process of reasoning, a mistake of the law by
a judge is an impeachable offense. But is it possible that the
honorable manager can mean to contend that a judge is answerable,
either civilly or criminally, for an error of judgment; that he can be
either sued, indicted, or impeached for such an error? If such be his
meaning, he is in direct conflict with all the authorities on the
subject. The question is not a new one. It has been long since settled
both in England and the United States; and I am not aware that, for
many centuries, any judge or advocate has, even by inadvertence,
sanctioned or even countenanced the position which has been thrown out
by the gentleman. From the reign of Edward III to the present day the
current of authorities is clear and uniform the other way, and
establish beyond controversy the principle that the judge of a court of
record is not answerable either civilly or criminally for a mistake of
judgment in his judicial character.
Mr. Wirt then discusses the case of Yates and Lansing, wherein the
English authorities were reviewed by Chief Justice Kent, and says:
What does the judge declare would be an impeachable offense? The
acting with knowledge (scienter) that the judge was violating the law--
``the intentional violation of the law.'' The chancellor, he says, was
bound to imprison the party if he considered his conduct as a contempt
of court. He might have been mistaken in considering that as a
contempt, which in truth was not one. But this would have been a mere
error of judgment, for which he was not answerable either civilly much
less criminally. If he knew it was not a contempt, and still punished
it as one, it would have been an intentional violation of the law,
which would have been an impeachable offense. Here is the very doctrine
for which we are contending--that it is the guilty intention which
forms the gist of the charge in every impeachment, and that a mere
mistake of judgment is not an impeachable offense. * * *
I have examined, with all the attention and care in my power, the
various cases of impeachment of judges, both in England and the United
States, and I have not observed that any counsel, even under the
severest stress of the evidence, has taken refuge in so bold a
proposition as this which we are considering--that error of judgment is
an impeachable offense. On the contrary, I think it will be found, on
the strictest perusal of all the cases that have been cited, that the
counsel on both sides have uniformly proceeded on the concession that
the guilty intention is the gist of the impeachment.
The discussion of the power of impeachment was preliminary merely,
the main force of the arguments going to the question of law as to the
right of the judge to punish for contempt, and the question of fact as
to his intention.
2383. Peck's impeachment continued.
The Senate proceeded to judgment in the Peck case without prior
deliberation in secret session.
Sec. 2383
The House accompanied its managers when the court pronounced judgment
in the Peck impeachment.
Form of question put in ascertaining the judgment of the court in the
Peck trial.
A Senator who had been a witness for respondent was excused from
voting on the judgment in the Peck trial.
A Senator who had taken his seat after part of the testimony in the
Peck trial had been taken was excused from voting.
Two-thirds not voting guilty, the Vice-President declared Judge Peck
acquitted.
Judgment being rendered in the Peck impeachment, the Vice-President
directed an adjournment sine die.
On Saturday, January 29,\1\ at the conclusion of the arguments, on
motion of Mr. Daniel Webster, of Massachusetts:
Resolved, That the Senate will, on Monday next, at 12 o'clock,
proceed further on the trial of the article of impeachment exhibited by
the House of Representatives of the United States against James H.
Peck, judge of the district court of the United States for the district
of Missouri.
On Monday, January 31,\2\ the court was opened as usual, with
proclamation. The managers, accompanied by the House of
Representatives, attended. James H. Peck, the respondent, and his
counsel also attended.
Mr. Littleton W. Tazewell, of Virginia, moved the following
resolution:
Resolved, That this court will now pronounce judgment upon James H.
Peck, judge of the district court of the United States for the district
of Missouri.
Mr. Tazewell observed that if there were one member of the court
unprepared for a decision on this impeachment at this time, or
preferred any other mode of proceeding to pronounce judgment, he would
cheerfully withdraw the resolution.
No objection having been made, the resolution was unanimously
adopted.
The names of the Senators were then called over by the Secretary.
The Secretary of the Senate, under the direction of the Vice-
President, read the article of impeachment exhibited by the House of
Representatives against James H. Peck, judge of the district court of
the United States for the district of Missouri.
The Vice-President rose and said:
Senators: You have heard the article of impeachment read; you have
heard the evidence and the arguments for and against the respondent;
when your names are called you will rise from your seats and distinctly
pronounce whether he is guilty or not guilty, as charged by the House
of Representatives.
The Vice-President then, in an audible voice, put the following
question to each of the Senators in alphabetical order:
Mr. Senator ------: What say you: Is James H. Peck, judge of the
district court of the United States for the district of Missouri,
guilty or not guilty of the high misdemeanor charged in the article of
impeachment exhibited against him by the House of Representatives?
Each Senator rose from his seat as this question was propounded to
him, and answered.
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\1\ Senate Impeachment Journal, p. 337.
\2\ Journal, pp. 337, 338; Debates, p. 45.
Sec. 2384
Messrs. Thomas H. Benton, of Missouri, who had been a witness, and
John M. Robinson, of Illinois, who had taken his seat on January 4,
after the testimony for the managers had been concluded, were, on their
request, excused from voting.
The vote having been ascertained, the Vice-President said:
Senators: Twenty-one Senators having voted that the respondent is
guilty and 22 that he is not guilty, and two-thirds of the Senate not
having voted for his conviction, it becomes the duty of the Chair to
pronounce that James H. Peck, the judge of the district court of the
United States for the district of Missouri, stands acquitted of the
charge exhibited against him by the House of Representatives.
The Vice-President then directed the marshal to adjourn the court of
impeachment; and it was accordingly adjourned sine die.
2384. Peck's impeachment continued.
A report of the acquittal of Judge Peck was made in the House in the
report of the chairman of the Committee of the Whole.
Forms of reports made by a chairman of a Committee of the Whole after
attending an impeachment trial. (Footnote.)
The House attended the Peck trial as a Committee of the Whole House.
(Footnote.)
The journal of the House for this day has this entry: \1\
The House again resolved itself into a Committee of the Whole House,
and proceeded to the Senate Chamber to attend the trial by the Senate
of the impeachment of James H. Peck, judge of the district court of the
United States for the district of Missouri; and, after some time spent
therein, the committee returned into the Chamber of the House; and, the
Speaker having resumed the chair, Mr. Cambreleng [Churchill, C., of New
York], from the Committee of the Whole, reported that the committee
had, according to order, attended the trial of the said impeachment,
and that the said James H. Peck had been acquitted by the Senate of the
matter whereof he stood charged by the House of Representatives, as
contained in their article of impeachment exhibited against him.\2\
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\1\ House Journal, p. 236.
\2\ The reports from day to day had been similar, but varied to meet
the conditions. Usually they ended somewhat like this: ``That further
progress had been made therein, and that the court of impeachment had
adjourned to meet again to-morrow, at 12 o'clock meridian.'' If no
progress had been made, the report simply gave the hour to which the
court had adjourned. (Journal, pp. 226, 229.) Mr. William D. Martin, of
South Carolina, acted as chairman of the Committee of the Whole a
portion of the time.
It is to be noticed that, while the impeachment had been considered
in Committee of the Whole House on the state of the Union, the House
resolved itself into the Committee of the Whole House to attend the
proceedings.