Imatges de pàgina

taken opposite sides in the political discussions of the day, and, it is to be presumed, therefore, were supported, in general, by different subscribers; so that the two publications would fall into the hands of different readers, and very few of those who read the “Citizen” would take the trouble to look up the opposite paper and read the opinion. Besides, the “ Citizen” is a shorter article; had the poignancy of ridicule on a Judge to give it zest, and recommend it to the general reader; and, with regard to the great body of the land claimants, formidable both by their numbers and influence in society, it addressed itself to their prejudices, and was sure to find that ready welcome, and to command that entire faith and confidence, which men are always ready to yield to what flatter's their interests.

The Judge was willing to make every reasonable allowance for that disappointment and chagrin which he knew that his decision must have inflicted on the land claimants and their counsel; and, had the publication been a decent and respectful discussion of the soundness of the opinion, and the subject-matter had not been still sub judice in the same tribunal, though in different names, and in a different tribunal between the same parties, the liberty of the press might have been successfully invoked for its protection. But it is no such discussion. It is no discussion at all. The author does not profess to reason on the subject. The publication consists entirely of a tissue of assumptions, which it imputes to the Judge, not one of which is true in point of fact, in the light in which it is presented; several of which are directly the reverse of what the Judge did decide; and several others the pure coinage of the author's own brain, having no foundation whatever, either in the opinion or the case. .

To a person acquainted with the subject-matter of the opinion, (as it is the purpose of this address that this honorable House shall be, and without which it will be impossible that they can decide intelligently on the subject before them,) it will be seen that the assumptions thus imputed to the Judge, rise in a sort of ascending climax from the beginning to the end, increasing in absurdity as they advance, and some of them so glaringly and ridiculously absurd, as to have satisfied any reader, who believed the statement, that the Judge was totally destitute either of common sense or common honesty. Indeed, the author has taken care to spice the publication with divers covert insinuations to this effect, as if afraid that the mere charge of these preposterous assumptions on the Judge would not be enough to awaken the contempt of the reader, without the aid of this further quickening.

It is true there is nothing gross in the language of the publication: for vulgar ribaldry is not the language of a satirist who understands his art. It was not the form but the substance which the court considered and treated as a contempt. It was the string of legal absurdities imputed to the court, calculated to excite the contempt and indignation of the public at large against the tribunal; to prejudice the public mind with regard to the claims of the same character yet remaining for decision before the same court; to impair the confidence of the suitors in the purity and intelligence of the tribunal before which the claims were depending; to awaken their resentment against the Judge, who alone composed the court, and thus to restrain the court in the free, and fearless, and independent, exercise of its judgment in the remaining cases:-It is this which was considered, and which is still considered, as a contempt of the court, punishable by the summary process of attachment; and this the inore especially, when the contempt is


considered as having been committed by an officer of the court, pursuing his practice therein under its protection, and bound, therefore, to treat it and its decisions with respect.

As the question here is, whether the court was correct in regarding the publication signed “A Citizen," as a contempt, it becomes important, and, indeed, indispensable, to understand the opinion of which that stricture professes to be a fair analysis, with the view of comparing the analysis with the opinion, and thus arriving at the object and character of the publication; after which, the objections will be considered of its having been a publication out of term time, and with regard to a case which had been finally disposed of by the court.

To understand the opinion, it is necessary that the House should know something of the case in which the opinion was pronounced, and of the peculiar law which was to govern the decision.

With regard to the case. Antoine Soulard claimed ten thousand arpents of land, under a concession made to him in 1796 by Don Zenon Trudeau, the Lieutenant Governor of Upper Louisiana, then called Illinois, and now Missouri. The Lieutenant Governor resided at St. Louis, and held his appointment under a commission from the Governor of Louisiana, residing at New Orleans. The form of the commission was before the court, and does not specify the powers of the Lieutenant Governor. The concession made by Trudeau to Soulard was for public services, and the kind of public ser. vices in consideration of which the concession was made, as they are to be collected from the evidence, (for the concession and the petition on which it was founded were not produced, being stated by Soulard to have been destroyed through mistake,) were services in the various characters of surveyor of Upper Louisiana, for which, it was said, he had received only the fees of office, of deputy adjutant for a time, and of assistant, or, as one of the witnesses stated it, the right arm of the Lieutenant Governor.

The questions pressed upon the consideration of the court by the act of Congress, were, whether this concession was legally made by a person duly authorized to make it, and whether there was any treaty, law, or ordinance, to which the court could refer, in its decree, as the basis of a confirmation of the claim.

There was no treaty affecting the case, except the treaty of 1803, which has been mentioned, and which left these questions entirely open.

The next, and the main question was, whether there was any Spanish law or ordinance which authorized the concession?

With regard to Spanish law, it was known that, long before the acquisition of Louisiana, Spain had held extensive possessions in America, and that, for the government of those possessions, the King of Spain had published a code of laws, under the title of “ Laws of the Indies," of which the royal ordinance of 1754, which regulated the grants of the royal domain, constituted a part.

One question in the case was, whether, on the acquisition of Louisiana by Spain, in 1762, the previous laws of Spain, with regard to the possessions in the Indies, attached at once upon the newly acquired province by their own proper force, or whether the laws of the former sovereign remained, until they should be displaced by a positive edict introducing those of Spain.

In considering this question, it appeared further, that, in 1769, Spain, for the first time, took possession of the province, under General O'Reilly, who was also, by special commission, invested with extraordinary powers as Go

vernor and officer had promuere expressly aThese

vernor and Captain General of the Province, and that, on the 18th February, 1770, this officer had promulgated at New Orleans, the regulations which bear his name, and which were expressly and exclusively directed to the regulations of grants of the royal domain. These regulations differed fundamentally from the laws of the Indies. By the latter, lands were granted only on sale, and with a view to revenue; by those of O'Reilly, which looked to the speedy settlement of the province, lands were given to settlers in proportion to their force, or means of cultivation, or to graziers in proportion to the number of their stock; no one regulation, however, contemplated u gift of land as a reward for services of any kind. The process in granting the lands, too, was entirely different under the regulations of O'Reilly from that which had prevailed either under the antecedent government of France, or that which prevailed by the laws of the Indies. O'Reilly simplified the process greatly, and placed the granting power immediately and exclusively into the hands of the Governor General.

In the year 1797, Governor Gayoso published additional regulations, preserving the features and policy of O'Reilly's, and certainly not authorizing the granting of lands for services.

In 1798, by an order of the King of Spain, the granting power was taken out of the hands of the Governor, and placed in those of an Intendant, and Morales was the person first appointed to that office.

In the year 1799, he published his regulations, in the preamble to which he recites, that he had examined with the greatest attention the regulations of O'Reilly and Gayoso, as preparatory to those which he was about to publish, giving no intimation of the existence of regulations by any other Governor. But in this same preamble he conveys the first and only intelligence which the Judge, or, he believes, any member of the profession had received of the existence of a royal order, affecting, in any manner, the grant of lands, posterior in date to the regulations of O'Reilly; and he refers to it in this way: After reciting that the King had been pleased to declare and order, that the Intendant be put in possession of the privilege to divide and grant all kind of land belonging to his crown, he adds, " which right, after his order of the 24th August, 1770, belonged to the civil and military government.”

The use which has been made of this order in the publication of " A Citizen,” and the necessity of giving the House full information with regard to the character of that stricture, renders it proper that they should be further informed with regard to the royal order of the 24th August, 1770.

Morales had given notice that such an order existed, but of what naturë or what was its extent, was entirely unknown at the time of the decision of Soulard's case. Morales had said nothing of it but that, under it, the right of granting lands belonged to the Governor, which was precisely the effect of O'Reilly's regulations in the preceding February, and Morales had referred to these regulations without any intimation that they had been altered by the royal order of the August following, so as to countenance the infer. ence that the sole object of the order might have been to confirm O'Reilly's regulations, instead of changing them in any particular. Since the decision of Soulard's case, a copy of the order itself has been obtained from Madrid, on the request of Judge Peck, before noticed, and it is discovered that his conjecture in relation to the order was not incorrect. The order, as procured from Spain, is now in the Department of State, and a translation of it, with some inaccuracies, is among the archives of this House, being “Document 121, Private Land Claims in Florida, 20th Congress, 2d Session," and more generally known by the name of Col. White's collection of the Spanish land laws. On reference to this document it will be seen that this royal order of 24th August, 1770, so far from altering or enlarging the regulations of O'Reilly, is a simple confirmation of them, and it directs that Louis de Unzaga, the Governor, to whom it is addressed, and his successors in the said government, shall have the sole power of distributing the royal lands, " con forming, in all respects, as long as His Majesty shall not make any other provisions, to the said instructions dated from that city, New Orleans, erroneously translated this city,) on the 18th February, of this year:" this being the date of the promulgation of O'Reilly's regulations at New Orleans. An abstract of all the claims confirmed by the Governor of Louisiana has been furnished to the Treasury Department, by which it appears that the first grant was made by Unzaga, in 1771, and on the margin of that abstract, it is stated, from that time down to a period just preceding the regulations of Gayoso, that the grants are made on the conditions set forth in the royal order of the 18th February, 1770; by which it is manifest, that Unzaga considered O'Reilly's regulations, as thus ratified, with relation back to their date, and as taking, from that date, the dignity of a royal order. ,

The House is now prepared for an examination of the opinion, with a view to a comparison of it with the representation made in the article signed “ A Citizen."

That article commences with a misrepresentation, which is a fair specimen of the ingenuousness to be expected in the sequel. The Judge, in the close of his opinion, in explanation of the extensive range which he had taken in this discussion, finishes with this sentence: “ The decision of most of the points, therefore, having proceeded chiefly upon grounds which had been little, or not at all, examined in the argument in the cause, it is deemed proper to remark that counsel will not be excluded from again stirring any of the points which have been here decided, when they may hereafter arise in any other cause.No man of ordinary intelligence could possibly have been mistaken in the meaning of this sentence; much less could a professional man, acquainted in the slightest degree with the practice of his profession, have mistaken it. Now mark how the “ Citizen” takes it up, in allusion to this sentence: for there is no other to which he could possibly have had an allusion. He says, “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,&c. Now, what reader of this piece, who had not read the opinion, could doubt that Judge Peck had invited and challenged a discussion of the soundness of his opinion in the public prints; an act, of itself, so utterly inconsistent with the gravity and dignity of the judicial character, that, if Judge Peck had, in truth, been guilty of it, (more especially in the circumstances in which the undecided claims of the same character then stood) he would have proved himself unworthy of the office which he holds; yet such is the imputation on him in the introduction of the article signed ( A Citizen.”

The author, as if conscious of this perversion of the obvious meaning of the Judge, and that the act which he was about to do required some better apology, puts a bold face on the matter, and adds, " And considering the opinion so published to be a fair subject of examination to every citizen wir feels himself interested in, or aggrieved by, its operation, I beg leave to point the public attention to some of the principal errors which I think that I have discovered in it.”

It was not, then, for the candid purpose of convincing the Judge of his error, and inducing him respectfully to reconsider his opinion in reference to any future claim involving the same principles; it was not for the purpose of obtaining redress in the particular case, because that had been sought by appeal to the Supreme Court, where all errors committed by the Judge below could be legally and regularly, and without any breach of respect, pointed out and redressed; but for the purpose of disburthening the griefs of an injured party (whose griefs had, at that very time, been carried by appeal to the court of last resort, and were there depending,) and pointing the public attention to the errors committed by the Judge, that this article was published. But why point the attention of the public to these errors at this time, and in this form? Not with reference to the case of Soulard, because that had been decided, and the errors of that decision, if any had been committed, were in the proper course for redress. If it was with reference to Soulard's case, therefore, the motive could have been no other than one of personal vengeance against the court, or the Judge of the court, and this perfectly wanton and unnecessary, so far as the ultimate fate of the claim is concerned; because, if the decision had been the other way, there can be no doubt but that the United States would have appealed to the Supreme Court. But we are relieved from the necessity of all scrutiny into motives, because Mr. Lawless, in his evidence before the Judiciary Committee, has stated that the object of the publication was to produce an effect, not on Soulard's claim, but on other claims in which he was counsel, and which were still depending before the Court. His evidence on this subject is of so singular a character, as to call for particular notice. In his direct evidence (page 29 of the report of the committee) he says: “ In that case, [Soulard's] I had been employed as counsel for the petitioner in that court. I had also been employed in several other causes of a similar character." Here, appearing to recollect that the similarity of the causes still depending, with the cause of Soulard, which had been decided, might subject his publication to the censure of being intended to have an influence upon causes still pending in court, he adds, “When I say a similar character, I mean, founded upon unconfirmed French or Spanish titles. The similarity of character consisted only in being founded in an incomplete tille; because I consider the case of the heirs of Soulard as peculiar and original in its leading characteristics.” In a few more sentences, he adds: “ Those errors [in the opinion] appear to me to have a fatal effect if they should be established into law, upon that particular claim, and upon almost every other claim that was presented, or could be presented, to the court, under the law of 1824, which authorized Judge Peck to adjudicate.But if the claim of Soulard was peculiar and original in its characteristics, hów could the decision of that claim have a fatal effect, even if it should be established into law, (which by the way it could only be by the affirmance of the decision by the Supreme Court) "upon almost every other claim that was presented or could be presented before that court," such other claims being of a character different from that of Soulard? The errors of Judge Peck, even if they should be established into law by the Supreme Court, could not possibly have a fatal effect on other claims of a different character, and, consequently, turning on different principles; and the leading

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