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that such is the state of the authorities that any professional man, of the first science in his profession, might with all his heart and conscience, have fully believed and affirmed the existence of the power? I will venture to assert that you may consult one hundred of the most eminent lawyers in this country on these authorities, and that a great majority of them will express an opinion in favor of the power. Permit me to ask this honorable Court — the authorities have all been read before you would it detract from the reputation of the first lawyer in the land to express the opinion that, according to these authorities, the power to punish such a contempt exists in our courts? You might differ with him in the opinion, but would you pronounce him ignorant of his profession nay more would

you pronounce him a scoundrel for having given such an opinion? Yet this is the drift of the argument on the other side. You are called upon to pronounce Judge Peck to be a criminal, for doing no more than what he saw had been done not only in England, but in all the courts of the United States. Yes, sir — in those states which have been the loudest and strongest in favor of the liberty of the press and the right of trial by jury, this power has been exercised by the courts. Look at Virginia. Is there a state in the Union more truly republican, more lofty and high-minded, more are nt in the assertion of all popular rights? Yet, in that state, you have seen, sir, that this same power has been asserted and exerted by her courts and declared to be indispensable to the protection, independence, and utility of those tribunals. Now, sir, with such a host of precedents before, him was it strange that Judge Peck should believe the power to exist ? and if he might have so believed, can you in fer from the simple act of its exercise, a criminal intention? For this is the argument which I am now resisting: the argument being that if he had not the authority of the law for what he did, there is no necessity to inquire into intention ; because the act being unlawful, the guilty intention follows as a necessary consequence. I say, on the contrary, that the question of legal power in this case, is a question on which the most enlightened men of the profession may honestly differ in opinion; and in this, I consider myself as making a very liberal concession, because I really think the power so clearly asserted by all the authorities, that, but for what we have heard, we might well have anticipated an entire unanimity of opinion in its favor. But it is enough for my argument to say that it is a power with regard to which enlightened and honest men may well differ in opinion : for if they may honestly differ, there can be no crime or misdemeanor in holding and acting upon VOL. IX.-NO. XVIII.


either opinion. Yet by the argument which I am resisting you are called upon to say that if, on your construction of the authorities, Judge Peck had not the power which he exercised, it follows as a legal consequence that he acted with the criminal intention charged in the article of impeachment. No, sir: a judge may mistake the law, and still be an honest man. How often do we find the most upright and enlightened judges differing in their opinion on questions of law? The one side or the other must be mistaken, for both cannot be right. The one side or the other must be for doing what is unlawful. But does it therefore follow that the side which is in error is criminal.'

In examining the facts of the case Mr. Wirt shows the same practised judgment as in every other part of the speech. All the circumstances which are unfavorable to Lawless, -all the facts which might render an exemplary punishment proper, for a publication intended to bring Judge Peck's judicial character into discredit, such as the situation of the western country, and the nature of the land claims, - every thing in short which the evidence in the case developed, calculated to justify or excuse the course adopted by his client, are carefully collected, and happily arranged, to make an impression; while the facts which appear unfavorable are not overlooked or neglected, but boldly examined and all shown to be consistent with honest intentions, and some even proofs of them. 'Let us come now, sir, to these after transactions, the final

- the conduct of the Judge under this rude assault on the court over which he presided. It is, here, that the honorable managers make their great stand. Indeed, they seem to think it the only part of the case that demands consideration. That guilty intention which the impeachment charges, and which they know that they are bound to prove, before they can demand a conviction, is to be made out, they think, from the conduct of the Judge himself. His conduct, they allege, proves personal malice against Mr. Lawless, and establishes that intention unlawfully to oppress and injure, by color of his office, which constitutes the vital point of this impeachment. On this ground I meet the gentlemen, sir, with perfect composure; for I know that, with all their acknowledged abilities, it is utterly impossible for them to extract this proof of a guilty intention, from the conduct of the Judge, except by the adoption of a process which every lofty and honorable mind will reject at once. Nay, it does not require loftiness or high


honor; it requires only common charity to reject and spurn the process by which alone a guilty intention can be inferred from the conduct of the Judge — and that process is by the gratuitous im. putation of a base motive to an act equally referable to a pure one. If the act be, in its own nature and character, equally consistent with a fair motive, what justice is there in imputing a foul one? Let it be observed, that there is no pretence of direct proof of malice (the malus animus) in the Judge. It is to be made out entirely by inferences drawn from his conduct. But in the process of inferring motive from conduct, the act under examination must not be equally referable to a good and a bad motive. In a criminal trial, particularly, where any man is presumed to be innocent till the contrary appears, there must be no equivocality in the act from which guilt is to be inferred; for that would be to presume guilt where innocence might, with equal fairness of reason, be presumed. The accused having, in the outset, the legal presumption of innocence on his side, must continue to be presumed innocent, until some act shall be adduced which is entirely inconsistent with such presumption, and consistent only with the presumption of guilt. But an act which, upon its face, is equally compatible with an innocent, lawful, and honorable motive, will never, on such a trial, and before such a tribunal as this, nor any other tribunal that knows its duty, be referred to a guilty and a base one. It does not require the inclination to err on the side of mercy rather than of justice, to acquit rather than to condemn, which distinguishes every enlightened tribunal, to adopt the course of construction on which I insist: it requires only common reason, common right, a common sense of justice. For what innocence, what virtue, what nobleness of character can protect a man, if the purest, and wisest, and best acts of his life may be tortured into guilt by ihe arbitrary imputation of a guilty motive. Gentlemen may descant as long, and as loudly as they please on the imaginary tyranny of Judge Peck. But the tyranny of a government in which such a principle of criminal law prevailed as that which is applied to fasten guilt upon him — the wanton and gratuitous inference of guilt from an act consistent with the purest innocence — would be a tyranny that would not be borne by any man who knew what freedom was, and had the power of locomotion. As for myself, sooner than live under such a tyranny,

I would


with BrutusLonge à servientibus abero, mihique esse judicabo Romam ubicumque liberum esse licebit. 1

1" I will remove far from all who are disposed to be slaves, and fancy myself at Rome wherever I can live free.” – Brutus' Letters to Cicero. Epist. XVI.

'Sir, I have not thus examined the conduct of Mr. Lawless. I have compared the act with the motive he avows, and with that to which I assign it, for the purpose of seeing whether it be such an act as would naturally spring from the motive he avous ; or whether, on the contrary, its very character does not obviously refer it to the worse motive? whether the motive he avows, had it been the true one, would not naturally have produced a different course of action; while the course he did pursue, must, from its very color, nature, and tendency, force the fairest mind to the conclusion of a different motive? Thus in the case which I have just examined, Mr. Lawless says the only motive of his publication was to guard his clients from that despondency under the Judge's Opinion, which might have delivered them up a prey to speculators. To test the truth of this declaration of motive, I have compared the motive with the act. Such a motive was perfectly pure and proper, and perfectly consistent with a just respect for the court; and I have shown that if such had, indeed, been the motive, Mr. Lawless' course would have been to have written a private letter to his clients, or, at the most, a card in the newspapers, expressing, in respectful terms, and under his own hand, his confidence that the judgment would be reversed. Such a motive required not the cloak of a fictitious signature. It required no misrepresentation of the Judge's Opinion. It required no contempt to be cast upon the court. It required no ridiculous caricaturing and falsification of the Judge's reasoning. All these offensive features are out of keeping with the motive assumed. They go beyond it. They are inconsistent with it. They call for the assignment of other motives; and the most obvious motives, for a libel of such a character, under such circumstances, in a court of justice, are, I humbly conceive, those which have been assigned; contempt for the court; a desire to bring it into general hatred, contempt, and ridicule, to destroy its authority with the people, and, by the same act, to enlist the public prejudices in favor of those Spanish land claims which were still before the court, waiting for decision.

'I ask only for the respondent the same rule of construction as to motives, which I have applied to Mr. Lawless. Let the act be measured by the motive hypothetically assumed: if it fits the standard of innocence, let it be adjudged innocent. If it goes beyond that standard, and matches only with the standard of guilt, let it be judged guilty. In other words, let the act be deemed innocent, if it be such a one, as may have sprung naturally from an innocent motive; and let it not be deemed guilty till it be shown to be such as could have sprung only from a guilty motive. This, I submit it, with confidence, is the true and only rule for the trial of intention, in a criminal case, where the intention is to be in ferred, merely, from the conduct. And assuming this to be the true principle, let us apply it fairly to the conduct of Judge Peck, which is here in question.

*The charge is that his intention was unlawfully lo oppress and injure Mr. Lawless, under color of law. The Judge, on the contrary declares that he is not guilty of this intention; but that, on the contrary, his sole intention was to discharge his official duty as a Judge, in punishing, in the common form, what he deemed a contempt of his court.

“We have shown that a libel on the proceedings of a court of justice is a contempt punishable by attachment. We have shown that this publication was a libel on the proceedings of a court of justice. If these propositions be true, it follows, with the certainty of syllogism, that the Judge had the right to punish this publication by attachment, as a contempt.

‘But suppose you think the Judge wrong as to the first proposition, to wit, that a libel on the judgment of a court may be punished as a contempt; still it is utterly impossible for you to withhold your assent from the proposition that the law in favor of the power is so strong, that an honest and enlightened judge might well believe that the power existed. We think we have demonstrated that it does exist. But it is sufficient for the acquittal of the Judge, if you should be of opinion, on a view of the authorities that he might have innocently believed the power to exist : and if he might not, then has there been no innocence on the English bench from the first institution of courts to the present day, nor on the enlightened benches of the several states of this Union, whose decisions have all been read. Sir, I have no fear of this point.

Or, suppose you believe the Judge wrong in the minor proposition which has been stated — to wit, that the publication was a libellous contempt of his court, must it not be admitted that it is one which Judge Peck might have sincerely thought so? Will you say it was impossible he could have thought so? Then you affirm as impossible what we were and still are prepared to prove not only possible, but true — to wit, that other persons, and those enlightened and honorable persons, among those to whom the paper was addressed, did think and do still think it a libel. Nay, may I not, with respect, ask if you have not found in your own consultations, among yourselves, a difference of opinion on

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