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these pages, he will be apt to doubt the truth of our statements. He will hardly believe that such abuses would have been suffered to cross the Atlantic, and cumber the laws of this free land. As laws are not considered here as intended for the good of the lawyers, but for the good of the people at large, whose interest it is that they should be as simple as possible, he will deem it unaccountable that such a host of subtleties should have been so long tolerated. But the truth is, that throughout the United States, lawyers have been always the most influential legislators; and if any body is interested in the continuance of the present state of things, it is they. For they are the high priests of these mysteries. With dismal perseverance they have delved amid black letter through the heyday of life, to master these abstrusenesses; and what would become of these years of toil, if the fiat of legislation should proscribe this hidden lore? The mere stripling in the law would then stand upon the same vantage ground as they. If, therefore, so highminded a class of men, as our whole history proves American lawyers to have always been, could yield to the suggestions of interest, they have precisely the same motive to resist a reformation in the law, that the priests had to resist the reformation in religion. Technicalities are to them a sort of franchise, a vested right, a monopoly. To legislate them away would be to legislate bread out of their mouths; and we can hardly wonder if they should think more than once of the weary days and nights they have consumed over the most dry and tedious inquiries which the mind ever prosecuted, before they would join with alacrity in the measures of reform. But let us do the members of the profession justice. Interest would not be the sole cause of their reluctance. They have feelings as well as other men. They have been long accustomed to technical distinctions; they have won laurels in the forum by their skill in applying them; they have seen case after case decided by means of them; and estate after estate pass according to them; and for all these reasons they have become sincerely attached to them. The musical enthusiast would not feel more keenly the absence of some notes from a favorite old tune, than would the worthy sage of the law feel the absence of those hallowed formalities, upon which his thoughts have so often dwelt. But notwithstanding these causes of reluctance, we have in the
present Lord Chancellor of England an illustrious case in point, to show that a great lawyer is not necessarily a great bigot; and so far from being an opposer, is likely to be the ablest advocate of legal reform.
We are fully aware that innovation is not always improvement. As applied to judges, we bow to the maxim, stare decisis; though we think that even they may carry it too far. In their zeal to tread super antiquas vias, we too often find them indorsing absurdities, because so are the precedents. For example, in looking over the Ohio Reports, where we did not expect to discover a very great veneration for ancient abuses, knowing how fearlessly the Ohio legislature has applied the knife to the excrescences of the common law, we were surprised to find three of the judges sanctioning that ineffably puerile doctrine, that an immaterial averment in a declaration must be proved; in other words, that if out of abundant caution you happen to state that which it was totally unnecessary to state, as not affecting your right of action, you are strictly held to prove it, simply because you have stated it. But at the same time we were rejoiced to find one of the judges, Judge Pease, dissenting from this doctrine. Though we have never seen this gentleman, we can never cease to respect him for the following sentiments. If the fact averred be every way immaterial, if it form no part of the plaintiff's right to recover, and if the contrary would constitute no defence to the action; then it would not only be useless to prove it, but would be an unnecessary waste of time and money, and a trifling with the administration of justice. If the averment be wholly immaterial, it is my opinion that it need not be proved, and I would overrule any authority to the contrary.' (1 Ohio Rep. 486.) This example will serve to illustrate our opinion as to how far judges are bound by prior decisions. We think them justified in overruling palpable absurdities, though they should never disturb the landmarks of the law.
But legislators are untrammelled, and it is to them that we look for reform. As it must be, that doctrines which originated in an age of darkness, will sometimes be unfitted for an age of light; and that doctrines established under feudal domination, will sometimes fail to harmonize with the spirit of free institutions; and as it is only in very palpable cases that the most
independent judges will feel at liberty to depart from precedents; it is on legislators that the great duty of reform devolves. We are aware that there is danger in going to the extreme; but this is not what we recommend. We invite investigation of the plan we have proposed. If there be any danger in adopting it, we hope it will be pointed out through the medium of this journal, that the antidote may follow the bane. In the mean time, we may take occasion in some future number, to discuss the question of reform in some other particulars. But we repeat that we are no advocates of theoretical speculative codification. We admire and reverence a great portion of the common law, and should utterly despair of finding a substitute therefor in legislation. At the same time, to deny that this system could be improved, would be to deny that the law is an improvable science; a doctrine to which we can never subscribe.
ART. III-TRIAL OF JUDGE PECK.
Report of the Trial of James H. Peck, Judge of the United States District Court, for the District of Missouri, before the Senate of the United States, on an Impeachment preferred by the House of Representatives against him for high Misdemeanors in Office. BY ARTHUR J. STANSBURY. BOSton. Hilliard, Gray, & Co. 1833. pp. 592.
THE publishers of this work in advertising it gave the following notice, which we think it would have been better to prefix to the volume itself.
'Advertisement. The publishers greatly regret the delay which has occured in the appearance of this work. It is a delay for which neither they nor the Reporter are responsible. It was occasioned by the fact that Mr. Wirt, who was of council for the accused, was prevented by the pressure of official business, from completing, until a short time since, the revision and corection of the notes of his argument, which were furnished to him for that purpose, soon after the trial was closed. The publication of the work was suspended on this account, until the publishers began to despair of obtaining Mr. Wirt's argument at all, and resolved to proceed
without it; as, however, it was received in time to be included in the volume, it has been thrown into an appendix. The Report may be relied upon as authentic in all its parts. The testimony having been taken down on the spot, and since submitted to the inspection of the witnesses, who have certified to its correctness; and the arguments of counsel all being from under their own hands, full notes of their respective speeches having been submitted to them by the Reporter, and revised, corrected and extended by themselves. The details of the proceedings are taken from the Journals of the two Houses of Congress.
"The undersigned, witnesses summoned, as well on the part of the United States, as on that of the Respondent, on the trial of an Impeachment by the House of Representatives against James H. Peck, District Judge of the United States for the District of Missouri, having examined the Report of our testimony respectively as taken in the Senate Chamber by Mr. Stansbury, and by him prepared for publication, find the substance of our evidence to be reported with fidelity and accuracy.
L. E. Lawless, R. Wash, John B. C. Lucas, Thos. Horrell, Chas. S. Hempsted, Edwd. Charless, A. L. Magenis, M. P. Leduc, H. S. Geyer, J. B. W. Primm, Spencer Pettis, J. Spaulding, William C. Carr, G. H. C. Melody.'
'Washington, Jan. 1831.'
The report of the trial before us appears to be very full and faithful. The only serious defect that we noticed in it, is that it does not contain all the papers which the reader who wishes to study the case, will be desirous to see. Thus the whole of the opinion of Judge Peck in Soulard's case, though important in order to understand the ground of his defence, and several other of the documents mentioned on page 5, particularly a paper prepared by Mr. Lawless, that is also mentioned on page 159, and for which the reader is there referred to the appendix, are not given in any part of the volume.
An impeachment is always an object of deep interest. It is an affecting spectacle to behold a man whose reputation has been fair, and whose standing in the community is high, accused by the representatives of the nation, before its most august tribunal, of offences, a conviction of which would ruin his character and overwhelm him with hopeless disgrace.
As many of our readers may not have time or opportunity to examine the long report of Judge Peck's Trial, we shall en
deavor to give a brief history of the case and of the circumstances which led to the charges brought against him.
Louisiana, which formerly included the present state of Missouri, was ceded by France to Spain in 1762, and re-ceded by Spain to France in 1800, which latter power sold it to the United States in 1803. Numerous claims to a large quantity of lands existed at the time of the cession, which had arisen while the territory was governed by France and Spain. Boards of commissioners under the authority of Congress had adjudicated upon a part of these claims. In 1824 an act was passed by Congress, by which the District Court of Missouri was authorized to settle the claims of any persons to land in Missouri, arising under French and Spanish titles, upon a petition presented to the court by the claimant.
Under this law a large number of claims were brought before the court, and among others, one of the widow and heirs of Antoine Soulard. Luke Edward Lawless, who afterwards became the accuser of Judge Peck, was counsel for the claimants in this and a considerable number of the other cases. Soulard's case was argued at the March term 1825, and held under advisement until the term previous to December 1825, when Judge Peck delivered an opinion unfavorable to the claimants. This opinion was not in writing, but was of considerable length, and went fully into the case. decree was entered against the pealed to the Supreme Court. in this case a large number of drawn.
At the December term, 1825, a claimants, from which they apIn consequence of the decision the claims for land were with
On March 30, 1826, Judge Peck, at the request of some members of the bar, published his opinion in Soulard's case in the Republican, a newspaper printed at St. Louis. This opinion appears to have been substantially the same as the viva voce one, which he had previously delivered, taking the same positions and sustaining them by the same course of argument. On April 8, 1826, Mr. Lawless published in the Missouri Advocate and St. Louis Inquirer, an article commenting upon the judge's opinion, signed 'A Citizen.' It commences as follows.
'I have read, with the attention which the subject deserves, the opinion of Judge Peck on the claim of the widow and heirs of Antoine Soulard, published in the Republican of the 30th ultimo.