Imatges de pÓgina

ingly, that he, the said Judge Peck, having found your petitioner guilty of the original contempt in publishing the article signed “A Citizen," and of the aggravation of that contempt by declining to require interrogatories to be filed, and by declaring, that, if filed, he would not answer them, sentenced your petitioner to be imprisoned for twenty-four hours, and suspended from practice as attorney and counsellor at law in the District Court of the United States, for eighteen calendar months; which decision and sentence is entered on the records of said court in the following terms, to.wit:

United States,

Luke E. Lawless.

Friday, April 21, 1826. The defendant in this case having been brought into court by attachment, and the court having demanded of him whether he would answer interrogatories, or would purge himself of the contempt charged upon him, and the said defendant having refused to answer interrogatories, and having persisted in the contempt, the court doth find that the said defendant is guilty of the contempt to this court as charged in the said rule.

United States,


Luke E. Lawless.

The defendant in this case having refused to answer interrogatories, and having persisted in the contempt, it is ordered, adjudged, and considered, that the said defendant be committed to prison for twenty-four hours, and that he be suspended from practising as an attorney or counsellor at law in this court, for eighteen calendar months from this day.

Your petitioner further showeth, that, under said sentence, your petitioner was forthwith lodged in the common jail of the county of St. Louis, and remained locked up there from four in the afternoon of the 21st April, 1826, until about nine o'clock at night, when he was brought before Judge Stuart, one of the Circuit Judges of the State of Missouri, on a writ of habeas corpus, and by said Judge discharged from imprisonment, on the ground that the order of commitment was a nullity, having no judicial seal or signature by which it could be authenticated.

Your petitioner showeth that, inasmuch as your petitioner was discharged from imprisonment in consequence of a mere formal defect in the order of commitment, he is still liable to be re-committed by said Judge Peck, whenever it shall please him so to do, by a warrant in proper

form. Your petitioner further showeth, that said Judge Peck, by that part of his sentence which suspends your petitioner from practice as attorney and counsellor, has not only injured your petitioner, but has violated the rights and endangered the interests of those persons (and they are numerous) who have entrusted their claims and causes in said court to your petitioner.

That your petitioner is prepared to prove, by the fullest evidence, as well written as oral, all that he has above alleged, and, for this purpose, begs leave to refer (amongst other matter) to,

1st. The opinion of Judge Peck in the cause of the widow and heirs of Soulard, vs. United States, as published by said Judge in the Republican newspaper of the 30th March, 1826. (Marked No. 1.)

2d. The certificate on oath of the printer of the Republican. (Marked No. 2.)

3d. The Missouri Advocate and St. Louis Enquirer of the 8th of April, 1826, containing the article signed “A Citizen." (Marked No. 3.)

4th. The said article signed “A Citizen,” and so much of the text of the published opinion, placed in juxtaposition, thereto, as will demonstrate the truth of the article, and the total absence of malice in the writer of it. (Marked No. 4.)

5th. A certified copy of the record of the District Court of the United States for Missouri, of the proceedings in this petition mentioned against the editor of the Missouri Advocate, and against your petitioner. (Marked No. 5.)

6th. A certified copy of the record of the proceedings of the Circuit Court of the county of St. Louis, State of Missouri, on the return to the writ of habeas corpus, in this petition mentioned. (Marked No. 6.)

7th. The certificate of eight respectable citizens of the State of Missouri, who were present in court when said Judge Peck reviled and insulted your petitioner, as herein before set forth. (Marked No. 7.)

8th. The testimony of other respectable citizens, who, if summoned, can prove, on their oaths, the manner and language made use of, as above alleged, by said Judge Peck, lowards your petitioner.

Having thus submitted to your honorable body the facts of his case, and the evidence in support thereof, your petitioner begs leave to observe, that it appears from those facts

ist. That the said James H. Peck has, in his capacity of Judge of a District Court of the United States, been guilty of usurping a power which the laws of the land did not give him.

2d. That said James H. Peck has exercised his power, be the same usurped or legitimate, in the case of your petitioner, in a manner cruel, vindictive, and unjust.

Wherefore, and inasmuch as the said James H. Peck has not only outraged and oppressed your petitioner as an individual citizen, but, in your petitioner's person, has violated the most sacred and undoubted rights of the inhabitants of these United States, namely, the liberty of speech and of the press, and the right of trial by jury, your petitioner prays that the cons duct and proceedings in this behalf, of said Judge Peck, may be inquired into by your honorable body, and such decision made thereon as to your wisdom and justice shall seem proper. And your petitioner, as in duty bound, will pray.

LUKE EDWARD LAWLESS. St. Louis, Missouri, 22d September, 1826.

No. 4. The article signed " A Citizen," and Judge Peck's opinion compared. In the article signed “A Citizen," The following extracts, copied lite

published in the Missouri Advo rally from Judge Peck's published cate and St. Louis Enquirer, of opinion, will show that the Citizen the 8th April, 1826, the writer at has truly stated those propositions. tributes to Judge Peck, in his opinion in the case of the widow and heirs of A. Soulard, published by him in the Republican, of the 30th March, 1826, the following proposition:

gust, 1770.

1st. That, by the ordinance of 1st. “He, (the sub-delegate) is not 1754, a sub-delegate was prohibited made the judge of the value of the from making a grant in consideration services, of the nature of those upon of services rendered, or to be ren which the concession in question is dered.

alleged to have been issued.” 2d. That a sub-delegate in Lou 2d. “ According to this evidence, isiana, was not a sub-delegate as con the Lieutenant Governor of Upper tenplated by the above ordinance. Louisiana was not a sub-delegate

within the intention of the ordi

nance." 3d. That O'Reilly's regulations, 3d. “To him, (the Governor Gemade in February, 1770, can be con- neral) belonged the power to divide sidered as demonstrative of the ex and grant lands, in virtue of this ortent of the granting power of either der of August, 1770.“What the the Governor General or the sub-de- order was, what power, what discrelegate, under the royal order of Au- tion it vested in the Governor Gene

ral, in making grants of the royal domain, and what restrictions it imposed, are left to be inferred, (in the absence of the order from the regulations themselves, and the other acts of

the Governor General under it.” 4th. That the royal order of Au 4th. “We have the testimony of gust, 1770, (as recited or referred to Morales, the Intendant, in the prein the preamble to the regulations of amble to his regulations, that the Morales, of July, 1799,) related ex- power to grant lands belonged to the clusively to the Governor General. civil and military government, after

the order of the king of Spain, that is, in virtue of the order of the 24th August, 1770, the powers of the civil and military government, both cen

tered in the Governor General.” 5th. That the word “mercedes,” in 5th. “A view of the whole ordithe ordinance of 1754, which, in the nance removes all doubt as to the geSpanish language, means “ gifts,” can neral intention to sell, and not to give, be narrowed by any thing in that or the royal lands, except to the inhabidinance, or any other law, to the idea tants of towns for pasturage and comof a grant to an Indian, or a reward mons, according to their wants; and to an informer, and much less to a to the Indians, as mentioned in the mere sale for money.

laws 14 and 15, just recited; and except so far as the grants which may be made to those who shall give information against persons occupying lands without title, authorized by the 7th and 8th sections, may be considered as in the nature of gifts.”

“From this view of the ordinance, the ambiguous meaning of the term mercedes, to be found in its preamble, produces no difficulty. The sense in which that term must be received, is to be determined by a view

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of the whole ordinance; it need not necessarily be interpreted to mean gifts, but may as well be interpreted to mean grants; if, however, it necessarily imported gifts, effect is sufficiently given to it in this sense, by the gifts to be made to the inhabitants of towns for commons and pas turage; and to be made to the Indians, as directed in the 14th & 15th laws before adverted to."

“ A consideration, (public services) unknown to the ordinance, except in the case of an informer, as authorized in the 7th and 8th sections, where lands are authorized to be adjudged in moderate quantities, to those who shall give information

of them, as being occupied without 6th. That O'Reilly's regulations

6th. “ The regulations of O'Reilly were, in their terms, applicable, or were made for the entire province." ever, in fact, were applied to or published in Upper Louisiana.

7th. That the regulations of O'Reil 7th. It would appear that the polily have any bearing on the grant to cy apparent in O'Reilly's regulations, Antoine Soulard, or that such a grant did extend itself to the province of was contemplated by them.

Upper Louisiana. “Can it be believed that there existed an express authority, which authorized this grant of 10,000 arpents, without any reference to settlement, cultivation, or property qualifications? The view which has been taken, excludes such belief, and with it, every presumption in favor of the legality of the con

cession.” 8th. That the limitation to a square


“ Upon what reasons were league of grant to new settlers in Ope- grants of land to be limited in quanlousas, Attacapas, and Natchitoches, tity in Natchitoches, Attacapas, and (in 8th article of O'Reilly's regula- Opelousas, and unlimited in Upper tions) prohibits a larger grant in Up- Louisiana.” per Louisiana.

“The regulations of O'Reilly were

made for the entire province.' 9th. That the regulations of the 9th. “ The 14th section of GayGovernor General, Gayoso, dated 9th oso's regulations, operates directly September, 1797, entitled " instruc- upon the present claim: so likewise tions to be observed for the admission does the 4th section of the regulaof new settlers," prohibit, in future, tions of Morales.” a grant for services, or have the effect “That the regulations in whicb of annulling that to Antoine Soulard, these sections are found, are of a date which was made in 1796, and not lo- subsequent to the concession in this

cated or surveyed until February, case, forms no reason why they may 1804.

not impose duties on the claimants, and prescribe forfeitures for a failure

to perform these duties." 10th. That the complete titles ioth. “But complete titles have made by Gayoso, are not to be refer- been produced to show, in some inred to as affording the construction stances, that the regulations have not made by Gayoso himself, of his own been conformed to by the Governor regulations.

General, and by the Intendant, in confirmations made by them; and it is thence insisted that they were not in force in the province of Upper Louisiana; or, that, if they were in force there, they were only intended to provide for grants to emigrants and new settlers, and were not intended to provide for grants to the inhabitants generally; and that some law must be presumed which authorized grants of lands generally, in pursuance of which the confirmations mentioned, were made. In answer to it, it may be observed, in addition to what has been before said relative to the subject, that the regulations of Gayoso refer, by express words, to the province of Upper Louisiana, by the name of Illinois, the name by which it was then known; and that the regulations of Morales are general, and are indubitably intended to extend to every part of the province.'

This is equally the intention of each set of the regulations which have been mentioned. The regulations which we have, do not permit us to believe that there existed others.'

“ That the Governor General, who exercised a legislative power generally, and particularly for the distribution of lands, should feel himself authorized to dispense with the observ. ance of any of the provisions of his own laws, is not strange. Such a dispensing power is incident to the legislative department of every government. Legislation implies discretion in respect of the rules which are to be prescribed; the Governor General, with whom it was to exercise the power to make the law, could change

it, or could dipense with its observ

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