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A. I have no distinct recollection of this explanation by Judge Peek, but I understood him to have the intention of enabling me to purge myself of what he called a contempt, by those interrogatories. I don't recollect the details.
Q. By the same. Do you recollect of your coming in to address the court for the purpose of asking time to attend to a cause depending in the Circuit Court then sitting?
A. I do not say positively I did not, but I don't recollect it.
Q. By the same. Do you recollect commencing to address the court upon any subject pending the rule against you, and in which address you began to say may it please your honor," and in a manner marked and significant, stopt in the middle of the word “honor" and adopted a different address?
A. I have no recollection of any such thing.
Q. By the same. Were you present when the opinion of the court in the case of Soulard's heirs was delivered?
A I have no distinct recollection that I was; but I think it probable that I was, as counsel in the case.
Q By the same. Was the opinion delivered and the decree rendered at the same term?
A. I am not certain, but believe they were. I have no recollection of hearing the reasons for the judgment delivered in open court. It seems to me, on recollection, I was not present.
L. E. LAWLESS. Sworn and subscribed before the Judiciary Committee on the 19th March, 1830.
JAMES BUCHANAN, Chairman.
Henry S. Geyer, being duly sworn according to law, doth depose and
say as follows:
Some time in the month of April, 1826, I was informed that proceedings had been instituted against the printer of the Missouri Advocate, for an alleged contempt towards the District Court, then sitting for the trial of land
I went into the court, at which Judge Peck presided. According to my recollection Colonel Lawless was then addressing the court in behalf of the editor. I remari ed at that time, that the judge treated Col. Lawless as the author of the publication. In the course of Colonel Lawless' remarks he was often interrupted by the judge, with observations like these: “But, sir, in your strictures, you say;" he would then repeat something which I supposed had been said in the publication imputed to Colonel Lawless. Once or twice, I think, he added, with some emphasis, “Which is false." I thought the judge, at that time, somewhat excited. After Col. Lawless had concluded his remarks, I, of my own accord, without solicitation from any person, addressed an argument to the court, against the alternative presented by the rule, which was an attachment. I was heard by the court without interruption. The point for which I contended, in that argument, was, that the publication could not be punished as a contempt, insisting that
the guaranties of the Constitution extended to all cases not absolutely necessary to protect the court from interruption in the administration of justice; that the publication being made after the decision of the cause, if libellous, must be punished as a libel as against any other person; and insisted, also, that the published opinion of a judge was a fair subject of criticism to all persons; and if misrepresented, it must be met as the misrepresentation of the conduct of any other public officer. Those propositions were all overruled by the court. On the next day after I had appeared before the court, I was informed that Col. Lawless had been given up as the author of the publication in question, and that a rule had been made upon him to show cause why an attachment should not be issued against him for a contempt. I again went into the court. Col Lawless, with Mr. Magenis, and Col. Strother, were sitting at the bar. These gentlemen, I was informed, were to act as the counsel of Col. Lawless. Mr. Lawless requested me to assist them in the argument of the question. Mr. Magenis made an argument, but I am not certain whether Mr. Stother did or not. I followed Mr. Magenis, and attempted to re-argue the whole ground which had been taken on a former occasion. I was stopped by Judge Peck, who stated, that he had already decided the publication was a contempt, and that he would hear no argument on that point. I then insisted that the court could not punish Col. Lawless, in his character of counsel, for the publication, by suspending him from practice, as had been intimated in the rule. I maintained, that the counsel, as such, was only to be punished while acting in that character in court, or in relation to business of that court, out of it. After the argument was concluded, Judge Peck requested Mr. Bates, then District Attorney, to read the publication, signed “a Citizen,” sentence by sentence. At the end of each sentence the judge made some commentaries. I remember when Mr. Bates read the following sentence from the publication: “I observed that, although the judge has thought proper to decide against the claim, he leaves the ground of the decree open for further discussion," the judge repeated the first words, putting an emphasis on the word “judge,” adding, “there, it is very manifest, that this publication is aimed at the judge, with a view to bring him into contempt.” This was said with an unusual degree of emotion, I thought. It appeared to me, at that time, from the manner of the judge, as well as from expressions he used, he thought the attack was made upon him from some motive of personal hostility, and that advantage had possibly been taken of his then situation in order to impress upon the public mind, that he was incompetent to the duties of his station. He was some time in delivering his opinion, and in the argument in support of it, to make the rule absolute against Col. Law. less. In the course of which I thought some of his remarks exceedingly harsh, so much so, that I told Col. Lawless, who was sitting near me, that I did not think he ought to stay there and listen to that abuse of himself. The only expression that I remember distinctly, however, was, in substance, this: the judge said, “that in China such a calumniator would have his house blacked, as a fit emblem of his heart, that all persons might avoid him.” This made an impression on me at the time, as the fact was new, and because it put Col. Lawless in the attitude of a libeller, and, as such, I thought could not be punished summarily. Before the final order was taken I left the court house. I saw nothing more on that occasion that I remember.
Question by Mr. Davis, of So. Co. Did the judge exhibit much anger or excited temper when giving his reasons for making the rule absolute!
Answer. I thought he was very angry, more so than I had ever observed him on any occasion. That circumstance struck me with particular force, as Judge Peck was generally mild.
Q. by the same. Was the conduct of the memorialist generally decorous or otherwise in the presence of the judge, on the proceedings against him under the rule?
A. I do not remember that Col. Lawless said one word after the rule had been made against him. In the discussion of the rule against the printer, his manner was unusually subdued. He bore his interruptions submissively, much more so, than, from my knowledge of him, I had anticipated.
Q. by the same. Did the suspension continue till after the time that trials of these land causes were limited by the act of Congress?
A. I think it did, beyond the time limited by the first act.
A. I think it could not have been more than two or three hours, when he was brought into the Circuit Court, in custody, and the argument continued two or three hours, when he was dismissed.
Q. by Mr. Wickliffe. Was Col. Lawless suspended from practice in the District Court when sitting for the trial of ordinary causes as well as when sitting for the trial of land causes?
A. It was so understood both by the court and the bar, as I believe. In point of fact, Col. Lawless did not practice in either court during the eighteen months for which he was suspended.
Q. by Mr. Buchanan. Why was Mr. Bates requested to read the publication, signed “A Citizen?” A. I suppose
it was because Judge Peck had very sore eyes, and could not see to read himself. I believe he was almost entirely blind at the time.
Q. by the same. To what did you refer when you said you believe Judge Peck supposed that advantage had been taken, by Mr. Lawless, of his then situation, to impress upon the public his unfitness for the office which he held?
A. I allude to this: the situation of Judge Peck's eyes had been the subject of much conversation out of doors. Many persons were under the impression that, under such circumstances, he was incapable of discharging his duties; and, I suppose that Judge Peck imagined, that the opportunity had been thus seized, part of the public being thus impressed, to create the belief that he was incapable, mentally, as well as physically, of discharging his duties.
Q. By the same. How long was Judge Peck delivering his opinion, when he made the rule absolute?
A. At this distance of time, I cannot answer that question with precision; but my impression is, he was between two and three hours.
Q. By the same. What portion of that time did Mr. Lawless remain in court?
A. I don't think he was in the court room more than one hour.
Question by Judge Peck. Do you know what number of days had been consumed by the counsel in the argument against the rules against the printer and Col. Lawless.
Answer. I cannot answer the question with certainty. I was there part of two days myself, and occupied about four hours in the two days, address
ing the court against the rules. I know that Col. Lawless occupied considerable time about two hours after I came into the court the first day, on the rule against the printer. On the second day Mr. Magines occupied some time-how long, I can't say. I now rememben, also, Col. Strother commenced a speech; but in consequence of his taking a ground which Col. Lawless did not wish him to assume, he was desired by Čol. Lawless not to proceed further in his remarks,
Q. By the same. What ground was Mr. Strother assuming when Col. Lawless interrupted him?
A. I think he was rather manifesting a disposition to apologise and acqui, esce in the positions assumed by the court.
Q. By the same. Was it after he, Strother, had requested the use of Wheaton's reports, which the court had procured for him to examine a case in those reports, and after he had examined the case?
A. There was, at the time, a vol. of Wheaton's reports on the table; how he procured them, I know not; or whether he read it on the occasion, I do not remember.
Q. By the same. Was there, at that date, a sentence of suspension against Col. Strother himself in the Circuit Court, as attorney and counsellor of that court?
A. I know there had been such a sentence for six months; whether it was in force or not at that time, I know not of my own knowledge.
Q. By the same. Do you recollect, that, in the argument against the rule, the counsel had insisted that the opinion being published, made it public property; and that, if it had been misrepresented, the opinion itself could be recurred to to correct any misrepresentation which had been made of it; and that the court, in reply to that argument, said those who might see the misrepresentation, might never see the opinion which had been misrepresented; that men could not know, intuitively, whether what they read was true or false; that, if they could, calumny would cease to be mischevous, and would not require punishment; that there would be no wisdom in that law of China, by which the dwelling of the calumniator was painted black, as emblematical of the heart of the calumninator, while it afforded an admonition that what he should say should be harmless?
A. The substance of the argument of the counsel on that branch of the subject, and the answer given to it by the judge, as stated in the above question, is substantially correct, with the exception that I do not think that the allusion to the law of China, was made in reply to that argument of the counsel. The effortofthe judge was to prove the publication of Col. Lawless, signed “Acitizen," calumnious. In the course of his observations, Col. Lawless was represented as a libeller, and I thought that the allusion to the law of China was made in such form and in such connection, as satisfied me, that, in the mind of the judge, Col. Lawless was a fit subject for a similar operation. In this, however, I may possibly be mistaken. The judge was very warm and vehement in his manner, and may have intended a different application.
Q. By the same. Did the judge at that period wear goggles?
A. I am not certain that he wore goggles then, or a bandage over his eyes: one or the other he certainly wore.
Q. By the same. In the course of the argument, had popular themes been much dwelt upon by the counsel, such as the liberty of the citizen, of the press, and of speech, and the importance of the right of trial by jury: all said to be encroached upon, by the proceeding of the court?
A. The guaranties of the constitution, the freedom of the press, the liberty of speech, the right of trial by jury, were frequently referred to in the course of the argument, and it was insisted that all of them would be violated, if the author or publisher was punished, summarily, for contempt; and, in the course of my remarks, I referred to the bill of rights of the State of Missouri, which declares that no man shall be punished, summarily, for an offence indictable, unless by the intervention of a grand jury; and which also, authorizes the truth to be given in evidence upon the trial of all cases for libel. When I read those clauses in the bill of rights, the judge intimated that they were inapplicable to his court, to which I replied they were applicable in all cases to citizens in Missouri. The counsel spoke at large against the danger of invading those constitutional guaranties.
Q. By the same. Was there generally a crowded audience in attendance in court, during the argument and proceedings of the court upon the rules?
A. There were many persons both in the court room and the room adjoining, which was occupied by a private family, and as many persons as could gain admittance then were in the room.
Q. By the same. Was there a considerable excitement produced in the crowd, and generally through the city, by the argument of counsel?
A. I heard many persons express dissatisfaction at the conduct of the court: whether that was produced by the argument of counsel, or their own views of the subject, I am unable to say.
Those I heard express themselves most warmly, were some of those who were present at the ar. gument.
Q. By the same. Was the dissatisfaction expressed during the whole course of the proceedings?
A. I don't remember on the first day that I heard any person say any thing upon the subject. On the second day, there were many persons conversing freely and warmly among the crowd.
Q. By the same. Did the court, in its opinion, examine all the grounds which the counsel had taken in argument against the rule?
A. I think it did.
Q. By the same. Have not the Supreme Court of Missouri exercised the same power of punishing for contempts, when their opinions have been misrepresented by publications in the newspapers?
A. There was, I remember, a case which was decided by the Supreme Court of Missouri, affirming the judgment of the Circuit Court. The plaintiff in error, upon a petition, obtained a rehearing of that cause; and a publication was made in a newspaper, in relation to that cause, after the rehearing had been granted. The Supreme Court held that publication to be a contempt; not on the ground, as I understood it, of its being a misrepresentation of the opinion of the court, but a publication about a cause then pending. After argument of the rule against the publisher, the court ruled it to be a contempt, and the publisher purged himself of the contempt.
Question by Mr. Buchanan. What were the names of the parties in the cause to which you have alluded? and against whom was the rule to show cause granted?
A. Alexander Billissime was the plaintiff, and Joseph McCoy the defendant; and Col. Lawless was the person against whom the rule was granted.
Question by Judge Peck. What was the state of the Judge's health during the pending of these proceedings?
A. I do not think his health was good; he was enfeebled, and very much debilitated.