Against the prima facie impression to his disadvantage, arising from the fact that this committee have recommended an impeachment, he hopes, also, that he may be permitted to adduce the opposing facts, that this same petition of Luke E. Lawless was presented to this honorable House at the session of 1826-7, when the Judiciary Committee, to which it had been referred, and the Chairman of which was, and is, among the most distinguished legal characters in the United States, after examining the subject, prayed to be discharged from the further consideration of it, and that the petitioner have leave to withdraw his papers. The same petition was again presented at the session of 1828-9, when the committee, (two of whom had been on the first committee) seemed to have considered it not of sufficient consequence to engage their attention, since they made no report whatever on the case. Your memorialist is, nevertheless, sensible that the present report of the committee, connected with its accompanying evidence, (which is that of the witnesses called against him on the suggestion, as he presumes, of Mr. Lawless himself) even although the case should go no further, is calculated to throw a shade on his official as well as his personal character, which a full knowledge of the case would entirely remove; and, with this view, as well as to prevent a needless consumption of the time of this House and of the hon orable Senate, your memorialist humbly prays that you will permit him to lay before you a full exposition of all the facts as well as the law of this case, and that you will receive the testimony of some of the most respectable gentlemen who witnessed the whole transaction, and who have no connexion either with your memorialist or the petitioner, to influence the statements which they will lay before the House.

Your memorialist feels the most entire confidence that, if this request shall be granted, he will be able to satisfy you that his conduct with regard to the petitioner, so far from meeting the censure of this honorable House, deserves its approbation, and that, if he had failed to adopt the measure which he did adopt, he would have been unworthy of the place which he holds in the Judiciary of the United States.

In what form you will be pleased to receive this exposition and testimony, whether by a direct address to the House, or by re-committing the sub ject to the Judiciary Committee, with instructions to receive and report them to the House, or, with an instruction to the committee to reconsider the subject and report anew to the House, or in whatever other form, is a matter of entire indifference to your petitioner, since he feels no other solicitude on the occasion, than that the subject itself shall be thoroughly and fully understood by the House and by the nation, on all the evidence and the law which belongs to it; and that a public discussion shall not take place on that evidence only which is now before the House, and which gives but a partial and imperfect view of the subject.

Your memorialist begs leave to suggest, that, having been all along conscious of the entire rectitude of his own motives and conduct, and having been aware, also, of the former presentation of this same petition of Mr. Lawless to this honorable House, and of the failure of these efforts to satisfy the former committees, that there was any thing in the transaction to call forth the censure of this House, had felt no solicitude on the subject, until he was informed, by a private letter from Washington, that the Judieiary Committee had moved for, and obtained, leave to send to Missouri for persons and papers, with a view to the investigation of the charge; when he thought it proper to proceed in person to Washington; he did so, and on his

way, on the 28th of February, at Louisville, in Kentucky, he received a etter from the honorable Chairman of the committee, dated at Washington, on the 21st January, apprizing him that the committee had determined to investigate the subject of Mr. Lawless' complaint; that they had obtained leave from the House to send for persons and papers; and that they would receive any explanation which this memorialist might think proper to make, in relation to the charge.

The place and time at which your memorialist received this letter, the uncertainty of the duration of the session of Congress, the want of power to compel the attendance of witnesses from the State of Missouri, and his conviction that the permission to examine counter testimony would not be considered as coming within the scope of that explanation which the committee had declared themselves willing to receive, left to your memorialist no course but to proceed to Washington with as little delay as possible, and with no other means of explanation than such as he bore about him. He reached this city on the 9th of March, and on the 10th, addressed a letter to the honorable Chairman, simply requesting that he might be present at the examination of the witnesses summoned in support of Mr. Lawless' petition, and have permission to cross-examine them.

On the evening of Sunday, the 14th of March, your memorialist received the answer of the honorable Chairman, (dated on the 13th) by which he was informed that the committee would, on Monday, (the day after the receipt of the letter) receive any explanation in writing relative to the charge preferred by Mr. Lawless, which your memorialist might think proper to communicate; and that, after having made such communication in answer to the charge, your memorialist would be permitted to cross-examine such witnesses as might be examined for the purpose of sustaining it.

Your memorialist begs leave to observe, that, being afflicted with an inflammation and weakness of the eyes, which compelled him to have recourse to an amanuensis; being now in a place in which he is a stranger; and the explanation which he was expected to make calling, in his opinion, for an extended statement of facts, and for a minute reference to law authorities in support of his judicial decision, which authorities he had no means of commanding; the few hours allowed him for making this explanation, rendered the task a perfectly hopeless one. The committee, no doubt, thought the time amply sufficient. As the charge was a single one, they naturally enough supposed that the explanation must be brief. But if this honorable House shall be pleased to receive that exposition which your memorialist has prayed leave to offer, you will be satisfied, that, though the charge be single, yet the facts out of which it has grown, and the principles of law involved in it, are multifarious, and that the case cannot be fairly understood without a full development of all those facts and principles. It is proper, also, to add, that the committee themselves extended the time for making this explanation for several days. Yet such was still the haste, and such the disadvantages under which your memorialist was compelled to prepare the statement, that he was constrained to submit, as part of it, crude memoranda rot designed for such a purpose, with an appendage equally crude, and he doubts whether his narrative could have been read, or, if read, could have been clearly intelligible to the committee. Your memorialist was desirous that his explanation of the case should have been fully read and understood by the committee before the examination of the witnesses was taken up, in order that the committee might have a distinct view of the points in issue between the petition

er and your memorialist, and be thus the better able to direct their own examination, as well as to take the points and appreciate the force of the cross interrogatories which your memorialist intended to propound; but to his great regret, on the very morning on which he handed in his statement, which was on Friday, 19th March, (and which was as early as it was possible, in the nature of things, for him to prepare the statement even in that crude form,) the honorable committee, without reading the statement, proceeded immediately to examine the witnesses.

It is true, also, 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 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 jin 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 defence, but the testimony of his wit

nesses.

In the digested report of the committee of the House of Commons, which follows the report of the arguments, of the managers who conducted that impeachment, it will be seen, too, that, in the estimation of that committee, the proceedings of courts of law furnish no rule whatever for the proceedings in an impeachment; the latter being governed by no other law or custom than the lex et consuetudo parliamenti, which left the House at perfect liberty to pursue the great ends of justice untrammelled by any other rules than those which reason and public utility prescribe, and of which they have left us a practical commentary in the privilege of defence and counter testimony accorded to Mr. Hastings, preliminary to the vote of impeachment.* Your memorialist submits, with great deference, to the consideration of this honorable House, that the great purposes proposed to be attained by the process of impeachment, can be secured in no other way than by resorting to this measure in those cases only which demand a public example in the punishment of the offender. A resort to it in cases in which there is no probability that the impeachment can be ultimately maintained, though its

* See the History of the trial of Warren Hastings, published at London, for J. Detrett, 1796, Supplement, page 1 to 44.

effects on the individual who is the subject of it would be to harass him with wanton cruelty, and to break down his spirit of independence, by encouraging the assaults of private and personal malignity; yet its effects on the public would be to destroy all the solemnity and efficacy of the measure; to remove its terrors, and to render it so common and unproductive of any great result, as rather to throw ridicule on this great feature of the Constitu tion, than to surround it with that awe which properly belongs to it.

In the present instance, although the petitioner, Mr. Lawless, has attempted to give solemnity to his complaint, by representing the freedom of the press, the right of trial by jury, and the liberty of the American citizen, to have been violated in his person, in the summary punishment for a contempt of court, inflicted on him, yet your memorialist has no fear of satisfying this honorable House, if an opportunity shall be afforded him, that these are the trite topics continually resorted to, and resorted to in vain, in Great Britain, whenever the courts of that country have found it necessary to punish summarily, a contempt-the rights secured to the subject by the Magna Charta of that kingdom being no less dear to them, nor less strongly guarantied, than those in our Constitution; that it would be a prostitution of these sacred principles to apply them to such a case as this; that the court has done ne iure, in this case, than has been continually done, without censure, in contempts of an inferior character, in the courts both of England and of this country, and of the very State where this was done; and that, if the power exercised by your memorialist, be denied to the courts of the United States, they are deprived of that salutary power of self-protection, which, we are told on the highest authority, that all courts have possessed, from time immemorial, which it is indispensable to their existence that they should possess; and, deprived of which, courts must lose all their value, and sink into inevitable contempt and insignificance.

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 statement, before any discussion or vote shall be taken on the evidence as it is now presented with the report of the committee. In the hope that the case may be permitted to take this course, he is now proceeding, with all possible despatch, to prepare the statement in a form which may fit it for the reception of this honorable House, and he hopes to have it ready in a few days.

If this prayer cannot 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 ensure 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.